
    MIX’S CASE. James Mix v. The United States.
    
      On the Proofs.
    
    
      A loyal citizen holding a Treasury permit to l>uy cotton within the insurrectionary districts agrees with S. for three hundred hales, to he delivered at Grand Junction, to he paid for in gold at different rates, as per samples. S. delivers a portion, and is paid for it. The rebels burn some in the hands of S., which he considers his own loss. Before the contract expires, the commanding officer of the department forbids the payment of gold. The vendee then verbally agrees with the vendor “for tlie balance of tbe cotton remaining at Harrison’s gin,” at an advanced price in currency. Before delivery the cotton is captured. But the vendor gives the vendee an order for it, or the proceeds, and the vendee pays the purchase-money.
    
    I. Where a contract is for the sale and delivery of an entire quantity of goods, denoted as those bales of cotton’which remain of a lot partially burned at a certain gin, the contract can bo performed only by the delivery of . those specific bales; and though it has to be weighed to ascertain the lirice, still the thing sold is definite, and the property rests in the vendee, who may maintain an action for the proceeds thereof under the Abandoned or captured properly act, (12 Stat. L., p. 820.)
    II. Where a party has contracted for specific goods, and, as against the vendor, has acquired the right to complete the contract, and, after the capture of the property during the rebellion, completes the contract by paying to the vendor the price, he is the owner, as against the govern- ■ ment, within the moaning of the Abandoned or captured property act.
    
    
      Mr. G. F. Peek for the claimant:
    The Act July 13,1801, generally known as the non-intercourse act, Avhich forbade commercial intercourse between the citizens .of the loyal and those of the insurrectionary States, contained tills exception: “ Provided, hoicever, That the President may, in Ms discretion, license and permit commercial intercourse with such part of said State or section, the inhabitants of which are so declared in insurrection, in such articles, and for such time, and by such persons as he, in his discretion, may think most conducive to the public interest; and such intercourse, so far as by him licensed, shali be conducted and carried on only in • pursuance of rules and regulations prescribed by the Secretary of the Treasury. And the Secretary of the Treasury may appoint such officers at places where officers of the customs are not now authorized by law, as may be necessary to carry into effect such .licenses, rules, and regulations.” (12, Stat. L., p. 255, § 5.)
    On the 28th of February, 1862, tlíe President of the United States issued his proclamation, under the authority of this act, licensing and permitting commercial intercourse in all cases within the rules and regulations prescribed or to be proscribed by the Secretary of the Treasury on the inland waters and ways of the United States.
    Thereupon the Secretary of the Treasury issued a series of regulations to carry into effect the said act of Congress and proclamation of the President.
    The Secretary of War on the same day issued a general order forbidding all interference with these regulations, unless such interference should be absolutely necessary to the successful execution of military plans or movements.
    This claim is proved almost entirely by documentary evidence.
    The claimant received a permit from the agents of the Treasury Department as early as June, 1862.
    Under this permit he purchased from one Robert W. Smith a lot of three hundred bales of cotton, which Smith was to deliver at Grand Junction.
    Before this cotton had been delivered to Mix the rebel forces made a raid upon the country where it was situated and burned all but twenty-four or twenty-five bales of it.
    The original, contract was thereupon rescinded, and Mix agreed with Smith to take this cotton at thirty cents per pound. This contract was made on the 11th day of November, 1862; in the mean time the claimant had received two other permits.
    This i>ureliase is shown to have been open, complete, and fair in every 'respect. The purchase-money was paid and the property identified, pointed out, and placed at the disposal of the purchaser. Nothing more remained to be done, and the claimant could at any time remove the cotton; but before he was able to do this the cotton was seized by the officers of the United States.
    Application was at once made to the military court for a return of the cotton. Evidence was taken before William S. Hillyer, the provost marshal general, and on the 2d of February, 1863, he issued an order for the return of the cotton. The testimony of the vendor was taken before him, and we insist is in evidence.
    Mr. Smith did not give an ex parte affidavit, bub was examined by the officer representing the United States before the only court which then existed.
    He has since died, and we insist that his evidence before the military’court shall be received here.
    The order of the provost marshal was not carried out, because the cotton had been sent forward and sold, and the returns from the War Dexiartment show that the proceeds were paid into the Treasury, and the claimant referred to his remedy in this court.
    These points establish the ownership of the claimant, the seizure and sale by the United States, and that the proceeds, amounting to $5,378 27, have been paid into the Treasury.
    The loyalty of the claimant is the only other condition imxiosed by the statute. This is fully established by the testimony. The claimant was a citizen of Northern Illinois, in every way identified with the Union cause.
    This court has already» decided, in the case of Thomas P. Bubey v. The United States, (3 0. 01s. R., p. 59,) that a person situated as this claimant is may avail hiiftself of the remedy given by the Captured and abandoned property acts.
    
    
      Mr. Alexander Johnston for the defendants.
   Losing, J.,

delivered the oxfinion of the court:

The petitioner claims the net proceeds of twenty-four bales of upland cotton, and the court finds the facts to be—

That previous to June 25,1862, the petitioner held x>ermits from a special agent of the Treasury to purchase cotton in the States of Mississippi and Tennessee. On June 25,1862, he contracted with .Robert Smith; of Tupper County, Tennessee, for three hundred bales of cotton, to be delivered at Grand .function, Tennessee, within sixty days, by giving notice, said Mix to pay, in gold, 13,14, and 15 cents per pound, as per samples, on delivery at Grand Junction.

At the time required by said contract the said Smith had at Harrison’s gin, near Grand Junction, cotton.for the performance of the contract, and therefrom delivered one hundred and sixty-two bales, under the contract, to Mix, who paid therefor.

After this a portion of said cotton not delivered was burned by the forces of the Confederates in a raid made by them. And an order was issued by General Grant, commanding that military district, forbidding the payment of gold for cotton. Afterward, and in consequence of these circumstances, the said petitioner made a verbal contract with said Smith to. give him 30 cents in currency per pound for the balance of this cotton remaining at Harrison’s gin, and to this Smith agreed.

Soon after this agreement was made twenty-four bales of said cotton at Harrison’s gin were seized by the United States and transported to Jackson, Tennessee, and there sold by them, and the net proceeds thereof, amounting to $o,378 27, were afterward paid into the Treasury of the United States.

On the 26th day of January, 1863, the said Smith, in writing of that date, directed Colonel William S. Hillyer, provost marshal general at Memphis, Tennessee, to deliver to the petitioner an order for the proceeds of said twenty-four bales of cotton.

On the 2d of February, 1863, Colonel Hillyer, in writing of that date, ordered Colonel Charles A. Reynolds, chief quartermaster at Memphis, to deliver to R. W. Smith, or order, the proceeds of said twenty-four bales of cotton.

. A few days after the order last above mentioned the petitioner paid to said Smith the price agreed upon, being 30 cents in currency per pound, for said twenty-four bales.

No action was had on the order of said Hillyer to said Reynolds, and the case being deferred by the order of General Grant, was afterward reported to the Secretary of War, who said it was a subject for judicial decision.

At the timé of the contract for the twenty-four bales of cotton, at 30 cents currency per pound, the United States forces had possession and occupation of Grand Junction and the country where the contract was made, and thereafter held it.

James Mix, the petitioner, lias at all times borne true allegiance to the government of the United States, and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against said government.

The written contract of the 25 th June was executory merely, for a given-number of bales of cotton. And as it could have been performed by the delivery of the given number of any bales corresponding with the samples, no property passed in any specific bags until delivery; and this was manifestly the intent and understanding of the parties, for when- a part of the cotton held by Smith was destroyed before delivery it was treated between them as the loss of. Smith, and “ res perit dominoP

But the subsequent verbal contract wyas for specific bales', so that the thing sold was specified and ascertained between the parties before delivery. Three hundred bales of cotton had been contracted for, and this quantity Smith had in his possession, at Harrison’s gin, and a portion of it was burned, and the verbal contract was “for the balance? This was for an entire quantity, and denoted those bales of cotton which remained of the lot partially burned; and the contract could be performed only by the delivery of those specific bales. It was thus a new contract for a different thing, at a different price, and the thing sold being definite, the property in. it passed at the time the contract was made. The cotton was sold by the pound, and therefore it had to be weighed to ascertain the price, so that something remained to be done between the parties; but where that is necessary merely to ascertain the price, and not to identify the subject of sale, it does not prevent the property from vesting in the vendee by the contract of sale. (2 Comstock, p. 258; 2 Hurlstone & Coltman, p. 200.)

And the conduct of the parties shows that they intended the property should pass before delivery or payment, arid considered that it did; for, before the payment was made, Smith gave the petitioner an order on Colonel Hillyer for the proceeds of the sale of the cotton, and without receiving-those proceeds the petitioner paid Smith for the cotton the price stipulated.

On the evidence, therefore, we think the property in the twenty-four bales of cotton vested in the petitioner when the contract for them -was made and before its seizure by the United States.

Besides this, the petitioner had, at all events, contracted for he specific twenty-four bales, and as against the vendor had acquired the right to complete the contract, if that was only nchoate at the seizure, and the contract was after the seizure completed between the parties, by the payment of the contract price. And under the third section of the Act 12th March, 1803, the United States waive their title, by capture, in favor of loyal claimants, and this should relieve from the consequences of their capture rights of contract, as well as rights of property, and leave the case to be decided as if there had been no capture, and on the title of the claimant as against third parties.

The cotton was sold at Jackson, by a quartermaster, and the net proceeds were deposited on the 27th October, 18G3, at St. Louis, Missouri, with the Assistant Treasurer of the United States, to their credit-, and the evidence does not trace the money further. But under the Act 12th. March, 1863, as well as under the Joint resolution 30th March, 1868, which refers to money that had never reached the Treasury, it'was the duty of the Assistant Treasurer at St. Louis to pay the net proceeds of the cotton in question here into the Treasury, and the legal presumption is that it was done.*

And on the facts stated the court finds that the petitioner is entitled to recover of the United States the net proceeds of said cotton, amounting to $5,378 27, for which judgment is ordered.  