
    CRARY’S CASE. Humphrey H. Crary v. The United States.
    
      On the Proofs.
    
    
      The steamboat J. A. Stevens is in the military service, wider a written charter-party, at $120 a day. The rate is reduced by order of the Quartermaster Genei'al. The owner objects, but allows the boat to remain in the service. The rate is again reduced, but the order of reduction is not communicated to the owner until after the boat has gone into service under a second charter.
    
    Where the owner allows his vessel to remain in the military service, after knowledge of an order of the Quartermaster General directing' that the charter rate ho reduced or the vessel he discharg-ed, he will he deemed to have assented to the reduction. But where the order to reduce is not communicated to the owner until after liis vessel has gone into service, under a new charter, he should recover at the agreed rate.
    Messrs. Chipman and Hosmer for tbe claimant:
    Tbis is a claim under a charter-party, made by the Quartermaster’s Department and the claimant for the services of the steamboat J. A. Stevens. The charter-party is dated December 31, 1862, and stipulates for a payment of $120 “for each and every day of twenty-four hours while she may be kept in the service of the United States under this charter.” While the charter was. in full force an arbitrary reduction was made to take effect from May 1,1863, of $40 per day. This reduction continued until the 24th day of November, 1863, when a further reduction of $20 per day was similarly made. These reductions continued until December 17, 1863, when a second, charter-party was forged upon the claimant, stipulating for $60 per day, which was to take effect on the 1st day of December, 1863. While it may be insisted that this second charter-party had no validity, the petition treats it as valid after the 1st December, 1863, and claims the amount withheld under the reductions from May 1,1863, to December 1, 1863.
    We make the following points :
    1st. That the reduction from $120 to $80 per day was wholly unwarranted, void in law, and was never consented to or legalized in any form by act or word of the claimant.
    2d. That the second reduction, from $80 to $60, was alike illegal and void, was repudiated and protested against by the claimant, and never assented to by him, until from the necessi ties which surrounded him, the withholding of payments of money due him under a valid charter, he was induced to execute a second instrument, to take effect from the 1st of December, 1863, at the last reduced rate of $60 per day.
    
      The Assistant Attorney General for the defendants:
    To this claim, and to any claim for more than the sum of $60 per day for services rendered by this steamer after March 31, 1863, it is a sufficient answer that the claimant having, on December 17, 1863, entered into a new charter-party, by which he agreed to accept the rate of $60 per diem, from December 1, 1863, did, on May 23,1864, consent that that charter should-take effect from. March 31, 1863.
    An attempt is made to invalidate this agreement by showing that the claimant executed it only upon condition that the valuation of the vessel at $38,000 should be inserted in the charter, which not being done by the Quartermaster General, the signature of the claimant is to be treated as though never made.
    This view of the matter, however, is of no avail to the petitioner, for it appears that the charter-party, as executed by the Quartermaster General, was returned to the claimant, and he made no objection whatever to the amount at which the vessel was valued by the Quartermaster General.
    ' For a year and a half thereafter he left his vessel in the service of the United States without objection on account of her undervaluation, which undervaluation became of no significance to either party by the return to this claimant of his steamer in November, 1865.
    The officers of the Treasury Department, in considering this claim, deemed the condition proposed by this claimant (in the matter of valuation) to have become binding uxion the United States, and their view may be correct. If so, the stipulation is, of course, binding upon the claimant.
    The allegation that payment of moneys due to this claimant was withheld, in order to force him to consent to these new contracts, is not sustained by the facts proved.
    The first payment for services from December 31, 1862, to May 1,1863, (four months,) was made as late as June 22,1863, 
      when there was no attempt to obtain a nexo contract. The nest payment for services to November 1,1863, was made December 1, 1863, seventeen days before the second charter xoas signed, at a time token, even as he alleges, the government officers xoere xoith-holding payments in order to compel this claimant to malee a nexo contract.
    
    That such withholding of moneys lawfully due the claimant does not constitute itself a duress, see the opinion of Justice Miller in giving the decision of the Supreme Court, affirming the decision of this court in the case of Francis A. Gibbons, sr.
    The decision also of the Supreme Court as to the effect of a payment in full by the Dnited States, and of a receipt in full by a government creditor, is applicable to this case. (See 7 Wallace, 463.)
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $8,680, upon the charter-party of the steamboat J. A. Stevens, bearing date the 31st December, 1862.

There are two causes of action alleged in the petition. The first is the reduction by the Quartermaster General of the charter rate of the steamboat from $120 a day to $80 from the 1st May, 1863, to the 24th November; the second is for the further reduction to $60 a day from the 24th November to the 1st December.

As to the first cause of action, a majority of the court are agreed that the claimant voluntarily allowed his boat to remain in the service after notice of the reduction ordered by the Quartermaster General. Therefore the case is within the rule laid down in Clyde’s Case, (ante, p. 13o,) and the claimant should not recover.

As to the second cause of action, I am unable to perceive the slightest distinction between it and the case of Spear and Lang, brought for the services of the Maple Leaf, (ante, p. 166,) except that in that case the action of the Quartermaster’s Department was slightly more illegal than it has been in this. There the order of the Quartermaster General was retroactive in terms; here it is merely ex post facto in effect. But the majority of my brethren who pronounced judgment against the owners in Spear axid Lang’s Case, perceive a difference between the two oases, and agree with me in thinking the owners should recover for the moneys withheld before notice of reduction. My own reasons for the decision are fully and precisely stated in my dissenting opinion in that case.

The judgment of the court is that the claimant recover on the second cause of action $130; and that as to the first cause of action the petition be dismissed.  