
    David A. Bogert v. The United States.
    
      On the Proofs.
    
    
      The charter-party of the schooner Haxall provides that the “ war risk” shall he home by the government; and that the United States, during the continuance of the charter, “shall have the right to take her at the appraised value.'” While in the service of the United States she is sunk in the James river, by command of Mayor General Butler, under the direction of Lieutenant General Grant. The claim-, ant presents his account and charter-party to the Third Auditor, who makes an award for less than the vessel's appraised value. The claimant accepts the award, and brings this action for the balance: The defendants seek to prove the award by parol, and to treat it as a “ statutory judgment” under the act 3d March, 1849, (9 Stat. L.,p. 414,) and an estoppel.
    
    I. The construction given to the charter-party, and the views expressed as to the Claimant’s right to recover, when the case was before the court on demurrer, affirmed. (See 2 C. Cls. B., p. 159.)
    H. If an award by the Third Auditor fora vessel destroyed in the military service of the United States under the act 3d March, 1849, (9 Stat. L., p. 414,) is a “statutory judgment” which maybe set up as an. estoppel, it is in the nature of a record and cannot be proved by parol.
    III. The provisions of the act 3d March, 1849, (9 Stat. L., p, 414,} which made the award of the Third Auditor for horses lost.in battle and for other property . destroyed in the military service of the United States, final, and directed them to be entered in a book in his office as “judgments,” are repealed by the provisions of the act 28th July, 1866, (14 Stat. L., p. 327, sec. 8,) which directs that all such awards shall be sent to the Second Comptroller for revision.
    IV. The rule in Alire’s case (1 C. Cls. R., p. 234,) that the decision of an accounting officer does not bar an action in this court, is affirmed.
    Mr. J. Jolliffe for the claimant:
    After the claimant had filed his petition, the government had ample time to examine it, and either demur to it or traverse it. It was demurred to ; argued once ; so that the questions involved were well understood. The demurrer could have been withdrawn upon motion, but was adhered to; the case was argued a second time' upon the demurrer. And it was decided against him, and that judgment'yet remains in full force and effect, and has not been appealed from.
    The question now is, has the petitioner proved the material aver-ments in his petition %
    
    
      The learned Deputy Solicitor, while he has at all times earnestly contended that the payments made by the Third Auditor should have the force and effect of a judgment, and somewhat informally relies upon it, without pleading it in bar, seems to have forgotten that this court can enter judgments which are binding upon the parties before it, and that cannot be questioned upon an issue of fact.
    That judgment, if it had been against the claimant, would have bound him. He could have appealed, or, in a proper case, he might have moved the court to set it aside, and rehear, the case upon the demurrer ; but, unless in some such mode of proceeding, he could not have been heard for an instant to controvert its correctness.
    
      Stare decisis would have been the rule as to him, and is the rule also as to the defendant.
    But it is said that the valuation is not correct.
    I refer you to the testimony of Michael S. Allison, who carefully examined and repaired the Haxall; who states, when called by the government, upon cross-examination, that it would have taken $25,000 to $30,000 to replace that schooner or build'one like her.
    But if the parties could agree, and did agree, that the vessel was worth $14,000 at the date of the charter-party, in the absence of any averment of fraud or mistake in making that agreement — of any attempt to reform the contract, of any proof of fraud or mistake — • then I suppose the contract of the parties as to her value, while the vessel was “ alive and well,” and lying open to inspection at the wharf at New York, will control the judgment of the court, and the sum-then fixed upon will be regarded as correct.
    The Deputy Solicitok for the defendants:
    The judges being equally divided on the question of jurisdiction, a reargument of the demurrer filed in this case was thereupon ordered. Submitted among the earlier cases of the present term, the demurrer was overruled, with leave to defendants to answer over, one' of the judges being of opinion, on the whole case, that judgment should be' rendered for the defendants.
    Succinctly stated, this is an action for the recovery of an alleged' balance of $3,717 84, assumed to be due the claimant, and now recoverable before this court, even after the petitioner has confessed a settlement on a submission of the matters in controversy to the Third Auditor of the Treasury, and the, acceptance of ten thousand dollars under that officer’s legal action. This payment made up the statutable 
      allowance for tbe destruction of a certain schooner, called the Haxall, of 257 tons burden, while in the military service of the United States, under the order of a major general commanding a department.
    The facts of the case, as shown in tbe testimony, are such as prove tbe ownership of the property destroyed in the James river, near Dutch Gap, below Richmond, by order of Major General Butler, in order to prevent the rebel rams from coming down to destroy the transports and supplies at Oity Point, and the -claimant’s loss, with the loss of several other vessels, belonging to other parties, sunk at the same time for the same purpose. The other vessels, thus sunk at the same time, were subject to the like rules as to mode and extent of statutable compensation, and the inquiry naturally arises whether the claimant’s case is, in any degree, an exceptional one, by any proof of his refusal to take the benefit inuring to him and others under the acts of March 3, 1849, (9 Stat., 414,) and March 3, 1803, (12 Stat., 736.) While the destruction of the schooner Haxall was not the result of any unavoidable accident, unless the exercise of a right of eminent domain be so regarded, it was, after all, a case of destruction of property by tbe army engaged in the suppression of the rebellion, to which the jurisdiction of the Court of Claims no longer extended. It is clear, then, that the claimant made the best use of his opportunity in seeking out the statutory tribunal regulating compensation for property destroyed under certain special'circumstances. He took pains to select his own forum, and yet he now disclaims the lex fori thus eagerly sought for his relief, with the forms of .remedies, the modes of proceeding, and the execution of judgments under the above-cited acts. Mr. Bogert, the owner of the vessel, admits, on his cross-examination, that he, first and last, in conference and correspondence, submitted the valuation of this vessel to these rules, being such as, in the opinion of the President, were best calculated to obtain the objects of these acts, paying a due regard as well to the claims of individual justice as to the interests of the United States, (Sec. 3 of act of March 3, 1849, 9 Stat., 415,) anid that he accepted the amount ascertained and the statutory judgment rendered, while accompanying the receipt with expressions of dissatisfaction and hopes of having the balance he had claimed.
    If the claimant had a right to - apply to the Third Auditor, under the circumstances of this case, and receive the valuation assessed, he surelv has no right now to file a petition in the Court of Claims for any balance unadjudged, when his property had been clearly destroyed by the army ,of the United States, (Stat. L., vol. XIII, p. 381.) He bad made his application to that officer, not under the terms of any contract, hut on the single fact of property destroyed, and so subject to the valuation under the act of 1863.
    Courts are always disposed to maintain awards, (Caldwell on Arbitrations, 123.) ■ Here is an award, or its statutory equivalent, under a submission, not pro hac vice, in the- name of any individual claimant, as in Gilbert’s case, (1 Nott and Huntington, 108,) but under general acts of Congress, embracing all such instances of destruction or loss of property coming within their provisions. The settlement of questions as between the government and individual claimants is familiar to the legislation of Congress,1 ( United States v. Ferreira, 13 Howard, 47.) It is as a matter of grace and favor that the government consents to be sued at all; and damages resulting from the acts of the army and navy during the rebellion are no longer cognizable in the Court of Claims. It was only through the intervention of. the Third Auditor, as commissioner, arbitrator, or under whatever other name he may be designated, that remuneration could have been asked and had for the destruction of a vessel under the circumstances stated in the petition.
   Nott, J.,

delivered the opinion of the court:

This is an action brought upon the charter-party of the schooner Haxall, and to recover a balance alleged to be due of $3,717 84. The facts of'the case are these:

On the 23d April, 1864, the claimant, by B. F. Small & Co., his agents in the city of New York, and- the defendants, by their assistant quartermaster, Captain Francis J. Orilly, execute a charter-party 'of the schooner Haxall. By this charter-party it is provided that the schooner shall be employed in the military service of the defendants, “the war risk to he home by the United States, the marine risk to he borne by the owner,” and the schooner “to he employed in such service as the party of the second part may direct.”

It is also further provided, that “the said vessel is valued and appraised at the sum of fourteen thousand dollars, and should she be retained so long in the service of the United States that the money paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repairs the said vessel during the said time, together with a net profit of 25 per cent, per annum, on said appraised value) shall be equal to the said appraised value, then the said vessel shall become the property of the United States without further payment, except such sum as may then he due on account of the services of the said vessel rendered under said charter.

11 And further, f at any time during the continuance of this charter-the United States shall elect to purchase the said vessel, then they shall have the right to take her at the appraised value at the date of the charter, and all the money then already paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repairs the said vessel during the said time, together with a net profit of 25 per cent, per annum on the original appraised value) shall apply on account of the said purchase.”

The schooner enters into the service of the defendants under the charter-party, and is employed on the James river, below Richmond. On the 15th June, 1864, by order of Major General Butler, commanding the military department, he acting under the direction of Lieutenant General Grant, commanding all the armies of the United States, the schooner Haxall is taken, for military purposes, and sunk in the James river. On the one hand no reference is made to her charter-party, and on the other it is not pretended that she is captured or enemy’s property; she is simply needed for military defensive operations, and is taken accordingly.

The owner thereupon applies for compensation, first to the quartermaster in New York, General Yan Vliet, and next to the Third Auditor. In this second application he furnishes the Third Auditor with the charter-party of the .schooner, and a certificate of her destruction, and an account showing the amount due by the terms of the charter-party, as agreed and settled by the quartermaster in New York. The claimant makes no claim outside, of his charter-party, and his account is made up in accordance with its terms.

The balance due upon this account under the charter-party is $13,717 84; no proof is offered of any other sum, nor is the value shown in any other way, but the Third Auditor only allows upon the claim $10,000, and the claimant objecting that he does not accept this as a full settlement of his demand, nevertheless receives it. Subsequently he files a second claim with the Third Auditor for this balance, and finally brings his action in this court.

When this case was before the court on demurrer, the facts consid- ■ ered were substantially those now presented by the evidence. We then held that the action could not be sustained as an action on a valued policy of insurance wherein the term “war risk” covered the claimant’s loss by the destruction of his schooner; and that the taking of the schooner was not under the right of eminent domain, nor was it to be deemed an “appropriation” of property by tbe army or navy within the meaning of the act to restrict the jurisdiction of this court, (act 4 July, 1864, 13 Stat. L., p. 381,) and we held directly that the taking of the vessel by the military authorities was to be a taking under and by virtue of the contract, and that it was immaterial what might have been the individual intent of the officer making the seizure, or whether he knew or was ignorant of the fact that such a contract existed. But we were careful to say that “whether the proceedings before the Third Auditor, followed by the claimant’s acceptance of the award, were final and conclusive upon him; and whether, by preferring his claim to the Third Auditor upon the statutory ground of the vessel having been destroyed ‘by the order of the commanding general,’ he may be held to have abandoned his contract, and to have elected to pursue a remedy inconsistent with his right to again resort to the contract, aré questions upon which, we express no opinionand we at the same time pointed out the fact that “ if the claim was presented to the Third Auditor as one founded upon an express contract, then his award could not have been based.upon the statutory ground of ‘ destruction by the order of the commanding general,’ and he must have sat as an •ordinary accounting officer.” (2 C. Cls. B., p. 159.)

The principal point now made by the Deputy Solicitor (who represents the government upon the trial) is the same question as to the effect of the award of the Third Auditor, and he insists that “ the traverse now filed has given full opportunity for the present claimant to show what was the course he adopted, and whether he did not abandon his contract, and elect to pursue a remedy under the statutory rules for compensating all having their property destroyed in the military service, under the order of a commanding general. It seems clear, from the evidence, that the claim was regularly made in view of the act of 1863 j” but there are two objections to this conclusion.

In the first place, this statutory award, judgment, or whatever it may be, is not properly in evidence. The Deputy Solicitor says that the Third Auditor sat as a commissioner or arbitrator, and he speaks of the award as a “ statutory judgment ” The statute also speaks, of these awards as “adjudications” and “judgments,” and directs that they shall be entered in a book to be provided for that purpose, (act 3 March, 1849, 9 Stat. L., p. 414.) The statutory award, therefore, is in the nature of a record, and could only be proved as a record, and not by parol. That section of the statute has since been repealed, (act 28 July, 1866,14 Stat. L., p. 327, sec. 8,) but the case was decided before, and the record might be produced. N o such record is produced, and in the absence of such vital evidence this court cannot give effect to an award which is not properly before it, nor say that the action of the Third Auditor is final and conclusive, and estops the claimant from seeking relief in legal tribunals.

In the second place, the evidence offered by the Deputy Solicitor does not sustain that position, but, on the contrary; leads to an opposite conclusion. The certificate of the Third Auditor shows that the claimant did submit the charter-party as the ground of his demand, and that he did claim compensation under it, and that he did not “ abandon his contract, and elect to pursue a remedy under the statutory rules for compensating all having their property destroyed in the military service, under the order of a commanding general.” The parol testimony, too, of the claimant, which is cited for the defendants, is to the same effect: “ I came first,” he says, “ with the accounts to General Van Yliet, quartermaster in this city. There the accounts were all made out and sent to the Third Auditor at Washington. I heard nothing of it for some time, and then I went to Washington and saw the Auditor, and asked about the matter. He sent me, I think, to the chief clerk, who told me he could not attend to it at present. I then corresponded with the Third Auditor, who requested me to send papers and documents, which I did. He then sent me a draft for $10,000.” Here is nothing which looks like a trial on evidence “ taken and authenticated” under the rules prescribed by the statute, but, on the contrary, the action of the Third Auditor as an accounting officer adjusting the accounts of a creditor upon contract. In Alire’s case, (1 C. Cls. B., p. 234,) this court hold that “in cases of money claims it has not been considered as ousting or affecting our jurisdiction that the accounting officers, or even the head of a department, has decided that the claimant was not entitled to be paid.” We have repeatedly re-expressed the same conclusion in different forms, and under it we can give no binding or final effect to the award in this case.

Lojring, J.,

dissenting:

I think the vessel was taken, not under the charter-party, but under the right of the government to take private property for public use. This entitled the petitioner to “an indemnity,” but that could not be fixed beforehand by the acting quartermaster who made this charter-party, for he was not the agent of the United States for that purpose— that duty was not committed to him and he could not perform it, for he could not tell beforehand what would be “an indemnity” or the worth of the vessel at some future time not fixed, and I think there ' is no evidence that he attempted it. His acts are to be referred to his authority and their express terms. His authority was to hire and purchase vessels for transportation, and the terms of the charter-party refer to the use and purchase of the vessel, and perils from the public enemy in her use.

The destruction of the vessel was by the orders of Generals Grant and Butler, and it is not shown or suggested that they acted in any reference to the charter-party, and they were as unauthorized as the quartermaster to fix “the indemnity.”

I think the ■“ destruction” of the vessel is within the terms and meaning of the first section of the act of 4th July, 1864,(13 U. S. L., 381,) and I think the case is removed from our jurisdiction by that act.  