
    PORTER’S CASE. James R. Porter v. The United States.
    
      On the Proofs.
    
    
      On the 5th of February, 1867, a contract is entered into by the chief quartermaster of the Department of the Platte for the purchase of 5,000 bushels of corn, to be delivered by the claimant at Fori Phil Kearney on or before the 15th March. The Government is “ to furnish escort for Mr; Porter's train while en route.” For delays, while “waiting on escort after application,” the claimant is to be paid $10 a day per team. On the 25th February, at Fort Laramie, he requests an escortto be in readiness on the 28th. Onthe23thhis traincomes up, butispre-ventedfrom moving by the xoeather, and remains at Fort Laramie. Until the last of March it is detained by the weather, and until the 6th April it waits for an escort. But no other application for an escort is made than that of the 25th February. On the 6th the train starts without an escort. Between Laramie and Fort Phil Kearney it is attacked by Indians and loses a great number of oxen, and is compelled to halt and aivait an escort. It at length reaches Kearney, and the corn is accepted and paid for. The claimant brings his action for demurrage while awaiting an escort, and for the loss of his oxen killed and captured by the Indians.
    
    I. Where a contract provides that the contractor shall he paid demurrage for his transportation train while “waiting an escort after application,” and he axiplies for an escort to he in readiness on a certain day, hut on the day appointed the weather renders it impossible for a train to proceed, he may recover dumurrage for any subsequent delay in furnishing the escort after the weather admits of the train’s proceeding, hut not for the intervening period, when the detention was solely due to the weather.
    II. Where a contract provides that the Government is “ to furnish escort for Mr. Porter's train while en route,” and that for delays while “ waiting an escort, afte>' application,” he shall be paid $10 a day per team, and the contractor, after waiting for an escort a reasonable time, moves off without one, he does so at his own risk, and cannot recover for oxen killed and captured on the way by Indians.
    
      The Reporters1 statement of the case :
    The court found the following facts :
    In February, 1867, when the contract was executed, the troops-at Fort Phil Kearney and in its vicinity needed forage, and the contract was made to supply an exigency thus existing, and which did not admit of the delay of advertising proposals.
    Oju the 25th of February, 1867, the petitioner, by letter dated on that day, at Fort Laramie, Dak., requested that an escort might be in readiness by the 28th instant, of such numbers as General Palmer might deem sufficient, to accompany and protect a train of fifty-two wagons, one hundred and twenty mules, four hundred and eight oxen, and fifty-nine men, from Fort Laramie to Fort Phil Kearney; and stated that the train was loaded with forage, under contract with General Myers, chief quartermaster.
    The trains of the petitioner left Coffee’s Eanch on the 28bh of February, 1867, and proceeded about five miles to Fort Laramie, where they arrived the same day. The trains of the petitioner consisted of an ox-train of thirty-four wagons, with twelve oxen to each, and loaded with about 6,000 pounds of corn each, and of a mule-train of eighteen wagons, with six mules each, and loaded with about 5,000 pounds each.
    The mule-train remained at Fort Laramie until 7th March, and then, without an escort, proceeded to Fort Eeno with corn, and delivered it there, and returned, with an escort of eight soldiers, furnished to it at Fort Eeno, to Fort Laramie, and arrived there April 6, and remained there four'days. It then started for Fort Phil Kearney and overtook the ox-train at Bridger’s Ferry. From Fort Eeno to Fort Laramie, and thence to Bridger’s Ferry, the mule-train was accompanied by the eight soldiers furnished to it at Fort Eeno.
    
      The ox-train started the 6th of April from Fort Laramie for Fort Phil Kearney without an escort, and proceeded to Bridgets Ferry, where it was overtaken by the mule-train. Then both trains were attacked by the Indians, and thereby delayed three days; both trains then proceeded to Bad Lands, and on the 28th and 29fch of April they were attacked by the Indians in large force, and ninety-seven oxen and one mule were captured by the Indians, and the trains were compelled to intrench themselves on the 29fch of April. The petitioner, by two telegrams of that date, sent from Work Station, informed General Palmer at Fort Laramie that the train was above Bad Lands, and was harassed by Indians every day, had had two fights, and could not proceed without escort, and that if it did it would be lost; The petitioner also sent William H. Greenup, his assistant wagon-master, the day after the fight, to Fort Laramie, to obtain an escort from General Palmer, and to get oxen to supply the place of those captured. Greenup telegraphed General Palmer from Horseshoe Station for an escort, -and then proceeded on and reported in person to General Palmer the condition of the train, and asked him for an escort, but got none. Greenup stated to General Palmer that it was absolutely necessary an escort should be furnished, or that the train could not move.
    On the 30th of April the petitioner, by letter, dated Fort Laramie, Dak., April 30,1867, stated to General Palmer that he, the petitioner, had a train near the Bad Lands, on the north of the river Platte, on its way to Fort Phil Kearney, with forage for that post, under contract with Bvt. Brig. Gen. William Myers, chief quartermaster of the district of the Platte, which was daily harassed by the Indians, having had two fights and one of the escort killed; and that the protection was altogether insufficient to guard the life and property of the train; and the petitioner asked General Palmer to send him such relief as he might think sufficient to insure the safety of the train $ and suggested that, in his opinion, no train should pass over that road with less than one hundred soldiers.
    The road traveled by the trains of the petitioner was the Government road between Forts Laramie and Phil Kearney.
    Soon after the cattle were captured, as above stated, the trains at Bad Lands were joined by the mail-train, which was accompanied by an escort, consisting of a sergeant and from twenty-five to thirty men; and about May 14 the mule-train started from Fort Phil Kearney with the mail-train and its escort, and reached Fort Phil Kearney May 15. The officer commanding the escort of the mail-train was requested to wait for the os-train at Bad Lands; he declined to do so, as it would delay him. The ox-train could not keep up with the mail and mule •trains, and the cattle remaining after the attack and loss could not draw the wagons.
    Mr. Greenup left Fort Laramie the day after he arrived there with ninety-three oxen to replace those which had been captured, and proceeded toward the trains at Bad Lands, near Bridger’s Ferry. About the 15th May he was attacked by the Indians, and the ninety-three head of cattle were captured. The Indians were pursued and the cattle retaken, save twenty-five, which were killed. After the battle an escort attending a commissioner to the Indians came up and assisted Greenup in recapturing the stock, and then kept with Greenup’s party, and escorted them to the trains at Bad Lands, where they arrived May 21. On the 22d of May the ox-train, with the escort above mentioned, started for Fort Phil Kearney, and arrived there June 1, 1867.
    The ox-train was delayed for want of an escort as follows:
    Days.
    At Fort Laramie, thirty-four teams, from 1st April, inclusive, to 6th April. 5
    At Bridger’s Ferry, thirty ox-teams. 3
    Near Bad Lands, thirty ox-teams, from 28th April, inclusive, to the 22d May.... 24
    The mule-train was delayed for want of escort as follows:
    At Fort Laramie, from the 28th February to 7th March, eighteen teams. 6
    At Bridger’s Ferry, fifteen teams. 3
    Near Bad Lands, from ,25th April till 14th May, fifteen teams. 16
    The ox-train, thirty-four teams, was delayed at Fort Laramie from 1st March, inclusive, till 1st April, by bad weather. The oxen lost and killed were worth $250 per pair. The mule lost was worth $175.
    And on the facts stated the court find that the petitioner is entitled to receive of tbe United States for the delays of his trains, as follows:
    At Fort Laramie, 34 os-teams, 5 days.$1, 700
    At Bridger’s Ferry, 30 ox-teams, 3 days. 900
    Near Bad Lands,. 30 ox-teams, 24 days. 7,200
    At Fort Laramie, 18 mule-teams, 6 days. 1,080
    At Bridger’s Ferry, 15 mule-teams, 3 days. 450
    Near Bad Lands, 15 mule-teams, 16 days.. 2,400
    In all... 13,530
    Jlir. John D. Sanborn for the claimant:
    This action is brought to recover from the United State» $23,370 demurrage for claimant’s trains, while engaged in the performance of the contract set forth in the petition, and for the value of one hundred and twenty-two oxen and two mules,, captured and driven away by hostile Indians while engaged in the performance of said contract, and by reason of the failure of the Government to furnish escort and protection, as provided in and by said contract, making a total amount of $38,920.
    One branch of the case seems to have been referred to this court for the simple r.eason that the Quartermaster Department could not determine the precise amount of demurrage it should pay.
    The other branch of this case is to recover fifteen thousand and five hundred and fifty dollars damages, being the value of one hundred and twenty-two oxen and two mules, taken from the claimant and driven away and converted by hostile Indians while said stock was necessarily engaged in the performance of the contract set forth in the petition and proved in evidence. The facts pertaining to this portion of the case are simple, and concerning them there is no conflict in. the evidence. They are as follows: While the claimant was engaged in the performance of the contract set forth in the petition, and proceeding along the only route opened or traveled between Fort Laramie and Fort Phil Kearney, and after having demanded an escort for said trains, which the Government had failed to furnish, after thirty-six days, and in the absence of all escort, the Indians of the Sioux or Dakota nation attacked the train or camp, and captured, drove away, and converted to their own use ninety-seven bead of oxen. This was on the 27th of April, 1867. About the 15th of May following, at Bridgets Ferry, they killed and destroyed twenty-five head of oxen, and on other occasions two mules of the claimant, taken into that country for the same purpose, and that this property was captured and lost without any negligence or fault on the part of the claimant, and that the value of this property so captured, converted, and destroyed by these Indians was fifteen thousand five hundred and fifty dollars. The claimant insists upon this right to recover upon this branch of the case upon the following grounds, viz: That this property was captured and destroyed by an enemy of the United States while in the service of the United States by contract, and that he is therefore entitled to recover under the Act 3d March, 1849, (9 Stat. L., p. 415.) That the provision of the contract, “ The Government to furnish escort for Mr. Porter’s train while en route to Fort' Phil Kearney,” was violated by the defendants, and the loss of said property and said damages was the immediate result of said violation. That owing to the extraordinary and peculiar relations created and sustained by the United States toward the Indian tribes, they became responsible for, and the law raises an implied contract on their part to pay to citizens of the United States, all losses sustained by them' outside the Indian country, or while lawfully in or passing through the Indian country, without negligence or cariessness on the'part of the citizens. .
    We shall spend no time in the argument of the first proposition, unless the court signify its willingness to hear it re-argued.. We understand that this court has held that property engaged and employed in the performance of a contract to deliver military supplies is not in the military service of the United States within the meaning of the Act 3d March, 1849, above cited, and that to be in the military service, within the meaning of that act, under contract, the contract must pertain and apply directly to-the property, and not to transactions and results that necessarily imply its employment and use. We submit the following as our views of law under the second proposition: The legal effect of the stipulation in the contract, that “the Government will furnish escort to Mr. Porter’s train while en route to Fort Phil Kearney,” is to throwall risk on account of the public enemyupontheUnited States. Otherwise the stipulation is without any legal force or effect. The escort was to be furnished by the Goverement for a beneficial purpose. The only benefit it could be was to guard the train and protect it from the public enemy in that country.
    There is no conflict of testimony as to the facts upon which the third proposition rests. They are as follows: The claimant was lawfully in the Indian country, or pursuing his ordinary avocations in a lawful manner outside the Indian country, and while so doing was attacked and was overpowered by the Indians of the Sioux or Dakota nation, who captured, drove away, and converted to their own use property of the claimant of the value of fifteen thousand four hundred and fifty dollars, and that these Indians at that time were in treaty relations with the United States.
    We submit the following propositions of law and our conclusions therefrom under this branch of the case: The United States Government has, from its earliest history, considered and treated the Indian tribes within its borders as distinct, independent political communities, over whom it exercised exclusive control and guardianship, and as retaining their original natural rights as the undisputed possessors of the soil, until a voluntary relinquishment has been made or their country wrested from them by conquest. (Worcester v. The State of Georgia, 6 Pet., p. 519.) The policy and laws of the United States have always prohibited our people dealing with the Indians and from acquiring property from them in any manner whatever except through the intervention of the Government of the Union'. No remedy against the Indians has ever been provided for wrongs committed by them on our people, and any remedy a't law against them, if provided, would be fruitless, as all lands possessed by them are considered and treated as vesting in the Federal Government as soon as abandoned by the Indians$ and for a citizen of the United States to take from them any personal property, even in compensation or settlement of a wrong committed by them, is, and always has been, an heinous offense, punishable by fine or imprisonment. (2 Stat. L., p. 143; 4 Stat. L., p. 12.)
    The relations of our own citizens to each other are entirely different from the relations between them and the Indians. If one citizen commits an offense or wrongs another, the party injured has a certain, free, and prompt remedy in the law. To secure this remedy is the chief end of government, and the guarantee of this remedy, in all cases, relieves the government from liability to citizens by whom wrongs are suffered; but whenever a government fails to provide any remedy for natural rights invaded, property captured and destroyed, life sacrificed, against the wrong-doers, then, upon every rational and sound principle, the government itself stands in the place of the wrong-doers, and must make indemnification, if it rules in justice. Every citizen who bears his lawful proportion of the burdens of government is entitled to be protected in his person and property in some form. In no other way can justice be established or the general welfare promoted. (Cooley’s Constitutional Limitations, pp. 353, 354, 397, 2d ed.) From the organization of this Government, and long prior to its organization, the foregoing principles have been recognized and acted upon, and during the whole period of our existence as a nation the policy of indemnification to all citizens for wrongs suffered or losses sustained at the hands of the Indians has been considered wiser and more economical for the Government than for it to provide and maintain a remedy in the law for wrongs suffered. Hence indemnification by the United States was early guaranteed by statute and long maintained. (See sec. 14 Intercourse Act 1802, 2 Stat. L., p. 143; also sec. 17 Intercourse Act 1834, pp. 731, 732.)
    
      Mr. Alexander Jolmston (with whom was the Assistant Attorney-General) for the defendants.
    On the 5th of February, 1867, Bvt. Brig. Gen. William Myers, assistant quartermaster United States Army, entered into a contract with the claimant for 5,000 bushels of corn, to be delivered at Fort Phil Kearney before the 15 th of March following.-
    In the contract were the following provisions :
    “ The Government to furnish escort for Mr. Porter’s train while en route to Fort Phil Kearney. For delays of the train by military authority in writing, or waiting an escort after application, James It. Porter will be entitled to ten dollars ($10) per day for each team carrying thirty-five hundred pounds, or upward, so delayed.”
    In approving this contract the Quartermaster-General indorsed thereon: “ The danger attending transportation from Fort Laramie to Fort Phil Kearney, owing to Indian hostilities, justifies the high price for corn.”
    
      The contract was not lawfully entered into, and is therefore void. (Act March 2, 1861,12 Stat. L., p. 220; Act July 4,1863, 13 Stat. L., p. "393.) The defendants deny that there was at any time any refusal by any officer of the Government to furnish an escort. Most of the delay complained of was occasioned by storms and bad weather. The claimant was not by the terms, of the contract bound to travel without an escort, nor was he required to do so by any officer of the Government. He therefore did so at his own risk. The contract provided for the measure of damages to be paid the claimant in case of refusal to furnish an escort, viz, ten dollars per day for each team delayed thereby.. The dangers attending transportation were taken into consideration by the parties when the contract was entered into, and made up part of the price to be paid for the corn. The United States are not, and never were, liable for damages resulting from acts of hostile Indians, no matter where committed. Time was when the Government assumed liability for depredations of treaty Indians, or Indians “in amity with the Government of the United States;” but the statutes assuming such responsibility (which are referred to in in claimant’s brief) have long since been repealed. (Act February 28, 1859,11 Stat. L.,,pV401j Act July 15,1870,15 Stat. L., p. 360.)
   Loring-, J.,

delivered the opinion of the court:

The petitioner in this case claims—

1st..For the delays to which he was subjected in waiting for an escort the amount stipulated in the contract of $10 per day for each team of his train.

2d. For the loss of his oxen and a mule captured and killed by the Indians.

It was objected by the defendants that the contract was void,, because not according to the statute of 1861 or that of 1864. We think the contract was not affected by the latter statute and was authorized by the former, for it was for supplies required for a military post in an exigency which did not admit of the delay of advertising for proposals.

The contract provided as follows: “ For delays of trains caused by waiting an escort after application James B. Porter shall be entitled to $10 per day for each team,” &c.

And the facts find that the petitioner applied to General Palmer, commanding at Fort Laramie, by letter, on the 25tb February, as follows:

“ General : I would respectfully request that an escort may be in readiness by the 28th instant, of such numbers as in your judgment you may deem sufficient, to accompany and protect a train of ñfty-two wagons, one hundred and twenty mules, four hundred and eight oxen, and fifty-nine men, from this post to Fort Phil Kearney,-loaded with'forage, under a contract with General William Myers, chief quartermaster.”

A majority of the court are of opinion that the application thus made was explicit and full, and all that was required of the petitioner. It gave three days’ notice to General Palmer, •and stated the number of wagons, cattle, and men, the destination of the train, and its character and object. And that an •escort was then absolutely necessary is made certain by the •state of the country at the time, which was known to General Palmer, and by the experiences of this train and others on the route, as shown in the evidence. And the applications subsequently made to General Palmer by the petitioner, by telegram, letter, and messenger, when the train wras surrounded by and fighting with the Indians, and thus actually subjected to the peril against which the escort was intended as a defense, was •equally clear and explicit, and made more imperious by circumstances.

And we think the failure of the United States to furnish an •escort, as shown in the statement of facts, was equivalent to ■and in effect a refusal to do so and a breach of the contract, ■entitling the petitioner to the indemnity stipulated for in the ■contract for the delays found by the court on the evidence.

The petitioner claimed to be indemnified for his oxen and a mule captured and destroyed by the Indians, and rested his ■claim on two grounds :

First, on the Act 3d March,-1849, (9 Stat. L., p. 415,) providing indemnity for horses and cattle killed or lost in the service of the United States.

The learned counsel for the petitioner admitted that this court had decided, in the like case of Adolph Gutman, that the statute cited was not applicable. And we are of that opinion now, for we think that the statute applies to cases in which the United States have by impressment or contract taken the property specified into their possession and custody, and out of the possession and protection of its owner. And in transportation-contracts that is not the case' and was not the case here, for the petitioner retained the possession of his teams and was using them to perform his own contract, and they were thus in his. service, and not in the service of the United States, who were at the most only the other parties of the contract, in which the transportation was to be done by him.

The other ground of the petitioner’s claim was that the loss, of his osen and mule was the direct consequence of the defendants’ breach of contract in not furnishing an escort.

To this it was objected on the part of the defendants that the contract assured an indemnity for all delays to which he might be wrongfully subjected in the price stipulated for such delays, and that being thus secured against loss he was not obliged to start without an escort, and was not required to do so by any officer of the Government, and in doing so he acted at his own election, and therefore at his own risk. And a majority of the court are of this opinion. In that I do not concur, for I do not think that the petitioner was obliged to devote his life to the performance of this one contract, because of its breach by the United States, and therefore to abandon his home and all his other worldly concerns, and keep himself and his employés and his teams in the starving and barbarous region of Fort Laramie forever. And that, as the contract fixes no limits for delays, the law fixes a reasonable time as the limit; and that the waiting at Fort Laramie for over a month, as shown by the facts stated, was a fully reasonable time, and that at its expiration the petitioner had a right to proceed in his contract for trans- • portation and earn its price, and leave the United States to the consequences of their failure to perform their part of the contract ; and I think that the petitioners’ loss of his oxen and mule was a direct consequence of the Government’s breach of the contract in their failure to furnish an escort in the circum stances shown in the statement of facts, and that the United States are liable therefor.

Drake, Ch. J.,

dissenting:

I do not concur with the majority of the court in rendering a judgment in favor of the claimant on the ground of the detention of his trains for want of an escort. For the following reasons it seems to me that that claim is destitute of any just foundation:

1. The letter of the claimant to General Palmer, dated February 25, requesting that an escort might be in readiness by the 28th of that month, ceased to liave any effect as an application under the contract for' an escort when the weather was such for more than a month, after the 28th, that his ox-teams could not possibly have moved and were compelled to, remain at Fort Laramie. If, after the weather became such that those trains could proceed, the claimant wanted an escort, he should have renewed his request for one. He did not do so, but proceeded without an escort; and, in doing so, he took upon himself the whole responsibility.

2. But there is a much stronger reason against his right to a recovery here. His contract was to deliver the 5,000 bushels of corn at Fort Phil Kearney on or before the 15th of March, and he did not move his ox-trains from Fort Laramie until the 6th of April, twenty-two days after that on which his contract was to have been fully performed. Starting at that time, he had .. no right to demand an escort, for the period limited by himself for the fulfillment of his engagement had expired. If he was entitled to an escort then, he would have been equally entitled to it six or twelve months afterward. No principle is more sound or better settled than that he who has failed to fulfill his part of a contract cannot demand performance of the contract by the other party thereto.  