#### JUAN M. CEBALLOS ET AL. v. THE UNITED STATES.

[No. 23689.

Decided April 22, 1907.]

*On the Proofs.*

After the protocol, August 12, 1898, fqr the cessation of hostilities between the United States and Spain, but before the ratification of the treaty of peace, December, 1898, the military authorities in Manila employ the claimants’ vessels to transport about 1,000 sick and wounded Spaniards from Manila to Spain. The reason for immediate action is because their presence is deemed a menace to the public health. The services are rendered under a parol agreement with the Secretary of War. Accounts for the service are presented and approved by tlie accounting officers and paid. After the treaty of Paris a formal written contract is entered into for the transportation of about 16,000 repatriated Spanish prisoners. Two hundred-and fifte.en dollars is to be paid for each officer and $73.75 “ *for each enlisted man, private soldier, or other person."*The number of persons transported is to be determined by the number counted on board each ship by a representative of the Government at the time of embarkation. The contract contains no provision expressly referring to the wives and children of officers or other noncombatants. Under this contract the claimants assign the wives and children of officers to officers’ quarters and claim the higher rate of compensation. One hundred and ninety-eight more persons are carried to Spain tlian are counted at the place of embarkation. One hundred and eighteen persons die on ’the voyage and are buried at sea. Forty-two persons voluntarily leave the ship and stop on the way, not being carried to Spain.

I. The action of the accounting officers in approving and allowing the accounts of a contractor for services rendered does not preclude the defendants from disputing their correctness by setting up a counterclaim to recover back illegal or unauthorized payments. The presumption that such payments were lawfully made continues only until the contrary appears.

II. Where services were rendered under a parol contract the contractor can recover *in quantum meruit*notwithstanding the provisions of the Revised Statutes (§3744) which require contracts entered into by officers of the.Government to *“he reduced to loriting.”*Contracts made in emergencies and under exigencies need not be reduced to writing nor await advertising for bids (Rev. Stat., § 3709, 3723), and a commanding officer in conquered country, or the Secretary of *319War, can make reasonable expenditures incident to the removal of prisoners without the formality of a written agreement.

III. The treaty of Paris, December 10, 1898, authorized and required the United States at their own cost to remove Spanish soldiers and other persons and send them to Spain.

IV. A contract for the transportation of Spanish officers, enlisted men, and other persons entitled to repatriation in the judgment of the Secretary of War was authorized by the treaty, and the transportation of officers’ wives and children and other persons not connected with the army was authorized by the contract.

V The claimants were carriers without opportunity or power to determine what persons were entitled to transportation and were bound to transport all whom the military authoriies offered for transportation. Their rights depend upon the contract and not upon a proper interpretation of the treaty of Paris.

VI.As the contract provided for the transportation of Spanish officers at one rate, and of enlisted men and “ *all other persons*” at a lower rate, there are but two classes specified. Therefore, for transporting officers’ wives and children the claimants can recover only at the lower of the two prescribed rates.

VII.The defendants were not responsible for the assignment of quarters after the persons to be transported were placed on shipboard; i. e., where the master of a vessel assigned second-class passengers to first-class quarters the responsibility was on the claimants and- not on the defendants.

VIII.An express agreement excludes the possibility of an implied contract, and a contract for the transportation of repatriated persons includes all repatriated persons who are to be transported.

IX.Under a contract providing that the contractors shall be paid $73 for “ eac7i, *person*” transported, the defendants can not count two children as one person.

X.When requests for transportation were to be made by the defendants’ officers at the place of embarkation, the liability of the defendants was limited, and can not be enlarged by the claimants showing that more persons were disembarked at the end of the voyage than the officers had required transportation for.

XI.Where a contract provides that the number of repatriated persons to be carried on a vessel shall be ascertained at the time of embarkation, the fact that some died on the voyage *320and others voluntarily left the vessel before arrival does not relieve the defendants from liability. The claimants are entitled to recover for all embarked by the defendants. Certain disputed items of account examined and adjusted by the court.

*The Reporters**statement of the case:

The following are the facts of the cáse as found by the court:

I. That Juan M. Ceballos, John S. Fiske, and Anderson C. Wilson compose the firm of J. M. Ceballos & Co., with their principal office at No. 27 William street, New York City, in the State of New York; said Juan M. Ceballos and John S. Fiske are citizens of the United States by birth, and said Anderson C. Wilson is a subject of Great Britain.

The members of the firm were the American operators and agents of the Compañía Transatlántica, a line of steamers engaged in the transportation of freight and passengers between the ports of Spain and the Philippine Islands, and upon the vessels of which all the repatriated Spanish prisoners were transported from the Philippine Islands to Spain, or were undertaken to be transported.

Contract relations existed between the Government of Spain and the Compañía Transatlántica, beginning in 1887 and ending in 1907, and were in force at the outbreak of hostilities between Spain and the United States. In accordance with this contract and the general instructions under the same in relation to transportation, the Spanish Government had the right and the duty imposed upon it of carrying in the boats of the Compañía Transatlántica all active and licensed members of the army and navy, and all officials engaged in the civil possession of the States who should be sent to the provinces, to the colonial possessions, and to foreign ports, or who should be returning from one or the other of these; those sentenced to penal establishments, or who returned from such establishments; the Sisters of Charity, and the missionaries who traveled to one or the other of the Spanish territories; the exiled, the shipwrecked, and the poor who claimed the protection of the authorities, and the women and children and widows of the chiefs, *321officers of the army and navy, and of public officials, to whom there was required to be accorded the same service to which the head of the family was entitled.

The Compañía Transatlántica was ordered by the Spanish Government to repatriate all Spanish residents in the Philippines .who, at the termination of the war, had to return to the peninsula, cooperating with the Government of the United States or the person or entity to whom the service for the transportation of prisoners should be awarded — the Spanish Government on its part guaranteeing the Compañía Transatlántica as the minimum price to be received for passages undertaken by the Compañía Transatlántica the amount arranged for according to the terms of the contract between the Government of Spain and said .Compañía Transatlántica.

The Compañía Transatlántica sent to the Spanish Government its bill made in accordance with the rate fixed in its contract for the certain transportations which s are now claimed in this suit; and the sums for which suit is now brought against the United States herein have all been settled and paid by the Spanish Government to the Compañía Transatlántica in Spain. It does not appear that the claimants, Ceballos & Co., have been obliged to pay the balances for which this action is brought, or any of said balances, to said Compañía Transatlántica or that plaintiffs have incurred any liability therefor.

Ceballos & Co. were agents of the company’s business for ordinary traffic between New York and ports in Spain, but .their agency ceased at the breaking out of hostilities between the two countries.

When hostilities between the two countries ceased Ceballos & Co. made arrangements with the Compañía Transatlán-tica whereby the transportation of the Spanish prisoners of war contracted for with the United States Government was effected in the vessels of said Compañía Transatlántica, and the contracts hereinafter mentioned were made between the United States and Ceballos & Co. alone.

II. The city of Manila surrendered the 13th of August, 1898, and August 14 the United States and Spanish author*322ities agreed upon written terms of capitulation, of which article 5 is as follows:

“All questions relating to the repatriation of officers and men of the Spanish forces and of their families and of the expenses which said repatriation may occasion, shall be referred to the Government of the United States at Washington.”

III. By the treaty of peace executed at Paris by representatives of Spain and. the United States on December 10, 1898, it was stipulated in paragraph 1, article 5, that—

“ The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by-the American forces.”

And in article 6, that—

“ Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offenses, in connection with the insurrection in Cuba and the Philippines and the war with the United States.

“ Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines.

“ The Government of the United States will, at its own cost, return to. Spain, and the Government of Spain will, at its own cost, return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, resxiectively, under this article.”

IV. There was surrendered to the United States forces at Manila on August 13,1898, a large number of civil, naval, and military officers and their families, and a much larger number of enlisted men, together with the wives and children of some of these enlisted men. Many of these were in a pitiable condition physically, exhausted with exposure and disease' — 1,200 being sick at one time — all of them fed, guarded, and attended at the expense of the United States. Smallpox had been prevalent and infection was apprehended. The civil prisoners included Spanish civil officers on duty in the Philippine Islands under the Government of Spain. *323Many of these had wives and children with them. There were besides a number of civilians, such as nurses, nuns, monks, friars, sisters of charity, and lady pensioners. The United States treated all of these classes as prisoners of war, and had supreme control of them after the surrender of Manila until they were delivered aboard plaintiffs’ ship for transportation, at which time the supervision of the United States ceased. Spanish officers had in the meantime only such supervision over their troops as the United States permitted.

V. General Otis, commanding the United States forces in Manila, considered that an emergency existed requiring immediate action, and on October *1*and October 24,1898, cabled the War Department at Washington the request of the Spanish general at Manila for permission to allow sick Spanish officers and soldiers to depart for Spain. Permission being granted, these officers and soldiers were shipped on vessels of the Compañía Transatlántica by the Spanish authorities in Manila, acting under the supervision and control of the United States authorities, but under an oral agreement with plaintiffs as hereinafter stated.

Bills for these shipments were rendered after the execution of the written contract.

VI. In the emergency deemed existing by the commanding general, and communicated to the War Department, the Secretary of War, in October or November, 1898, entered into an oral agreement with the petitioners under their firm name of J. M. Ceballos & Co., by which the latter agreed to transport such of the Philippine prisoners as the United • States desired to return to Spain, the price to be paid for such transportation to be the price fixed after the United States should advertise for bids for such transportation, under contract expected thereafter to be entered into under the terms of a treaty of peace between the United States and Spain.

Under this oral agreement the petitioners immediately began furnishing vessels, and the transportation of the Philippine prisoners commenced by the first vessel in charge of plaintiffs which sailed from Manila November 7, 1898, and continued until another and a written contract was - entered *324into for the transportation of those prisoners not transported under the oral agreement.

VII. January 20, 1899, the Quartermaster-General of the Army advertised for bids for suitable vessels for the repatriation of the Spanish prisoners. Following is a copy of his advertisement :

“ WAR DEPARTMENT,

“ Quartermaster-General’s Opeice,

“ Washington, *D. 0., January BOth, 1899.*

“ TRANSPORTATION EOR SPANISH PRISONERS OP WAR PROM THE PHILIPPINE ISLANDS TO SPAIN.

“ By direction of the Secretary of War, sealed proposals are invited for the transportation of the Spanish prisoners of war now in the Philippine Islands from Manila or such other ports in the Philippine Islands as -may be most convenient for their embarkation to Cadiz or such other ports of Spain as may hereafter be designated. Their number is estimated as about 16,000 officers and enlisted men. Cabin accommodations are to be supplied for the officers and third-class or steerage accommodations, having suitable galley accommodations, conforming to the United States requirements as to sxiace and ventilation, for the enlisted men.

“ The United States Government will deliver the prisoners on board the vessels at Manila, or such other ports as may be designated for their embarkation. Proposals will state the price per capita for transportati'ng officers and for transporting enlisted men and for their subsistence and delivering them on shore at the Spanish port, or ports to be designated, and will be accompanied by a guarantee that the prisoners will be comfortably cared for and subsisted while on the journey. The subsistence to be equal to the United States ‘ garrison ’ rations, as follows: One thousand complete rations. Meat — Pork, 1-10, 75 pounds net weight; bacon, 2-10, 150 pounds net weight; tinned roast beef, 7-10, 700 net-weight. Flour or hard-bread, net weight 1,000 pounds. Vegetables — Dried beans, net weight 75 pounds, or iye, net weight 50 pounds; fresh potatoes, net weight 800 pounds; onions, net weight 200 pounds. Coffee, roasted, net weight 80 pounds. Soap, net weight 40 pounds. Salt, net weight 40 pounds. Pepper, black, net weight 25 pounds.

“ Proposals will state the number of vessels which are proposed to be used for the service; the name and classification of each; the tonnage capacity of each; their speed; the berth *325accommodations upon each, and the approximate length of time required by each vessel to make the voyage from Manila to the coast of Spain. Proposals will also state the time at which each vessel will arrive in the harbor of Manila and report to the chief quartermaster at that place ready for the embarkation of the prisoners of war. Vessels of any nationality may be tendered and will be considered for the service required. Payment for the service will be made when evidence is furnished that the ship has arrived with her passengers at point of destination. The number of officers and men counted aboard at place of embarkation by the quartermaster is to determine the number to be paid for. Proposals should be addressed to the depot quartermaster, San Francisco, California, at which place they will be opened at 12 o’clock m., standard time, on the 1st day of February, 1889, and submitted to this office. The Government reserves the right to reject any and all proposals submitted.

“ M. I. LttdiNGtoN,

“ *Quartermaster-General, V. 8.*Army.”

VIII. The petitioners, through E. A. C. Smith, their at-tomey-in-fact, submitted their bid, accompanied with the number and names of the vessels, etc., as required by the advertisement, which bid was accepted by the War Department and is as follows:

“ SiR: In accordance with the advertisement of Gen. M. I. Ludington, Quartermaster-General, U. S. Army, copy of which is hereto attached, I propose, on behalf of Messrs. J. M. Ceballos & Co., agents of the Compañiá Transatlántica, de Barcelona, to furnish transportation for the Spanish prisoners now in the Philippine Islands to any port or ports in Spain. Their number estimated at 16,000 officers and enlisted men. I propose to use in this service the steamers named in the annexed list, which fully sets forth the classification of each, the. tonnage capacity of each, their speed, the berth accommodations upon each, and the approximate length of time required by each vessel to make the voyage to Spain. (The length of tim.e is estimated from Manila.) Said list gives the time at which each vessel will-arrive in or off the harbor of Manila for orders, the act of God and all dangers of the sea . excepted.

“ .It is proposed not to load the steamers beyond two-thirds of their steerage capacity. This is considered not only advisable as an act of humanity, but absolutely necessary, owing to climatic conditions and length of voyage.

*326“ I further propose to call at any port of the Philippine Islands that the U. S. Government may designate, provided the vessels can safely lay afloat.

“ The charge for this service is dependent on the ports of call in the Philippines and also on the quarantine regulations in Spain, but I propose and hereby agree to do this service at a price not to exceed in any case :

For each officer_$215.00

For each enlisted man_ 73. 75

“ It is proposed to furnish subsistence equal to the United States garrison rations, or, if preferred, the usual rations furnished under Spanish regulations.

“ I will furnish- a satisfactory bond for the faithful fulfillment of this service.

“Very respectfully, R. A. C. Smith.”

IX. The bid of petitioners was accepted, and on March 4, 1899, the contract was put in writing and signed by Hon. It. A. Alger, Secretary of War, on behalf of the United States, and by J. M. Ceballos & Co., through R. A. C. Smith, attorney in fact, and is as follows:

“ Whereas under the terms of the treaty of peace entered into by and between the representatives of the Governments of the United States and of Spain, signed at Paris on December 10, 1898, it is mutually agreed and stipulated in the first paragraph of Article V, that

“ ‘ The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces.’

“And in Article VI, which reads as follows:

“‘ Spain will, upon the signature of the present treaty, release all prisoners of war, and all jiersons detained or imprisoned for political offenses, in connection with the insurrection in Cuba and the Philippines and the war with the United States.

“ ‘Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines.

“ ‘ The Government of the United States will, at its own cost, return to Spain, and the Government of Spain will, at its own cost, return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article.’

*327“And whereas sealed proposals having been invited for the transportation of the Spanish prisoners from Manila or such other port in the Philippine Islands as may be designated to Cadiz or such other port in Spain as may be designated, and in response thereto the proposal of J. M. Ceballos *&*Company, of New York, having been duly accepted by the Secretary of War of the United States,

“ Therefore this article of agreement is made and entered into this 4th day of March, 1899, by and between the Secretary of War and the said J. M. Ceballos and Company, for the transportation of the said prisoners of war, from the Philippine Islands to Spain, as are designated in the terms of the treaty of peace, referred to and quoted herein.

“ The said J. M. Ceballos and Company hereby agree to furnish good and safe transportation for such number' of prisoners of war and persons as may be designated by the Secretary of War, from the Philippine Islands to such port in Spain as may be designated by the Secretary-of War, and to furnish to them subsistence while en route and on board the ships, and to deliver them on shore in Spain.

“ The said company further agrees that for the purpose herein stipulated they will provide a sufficient number of steamships for the safe and comfortable transportation of the prisoners of war *and stcch other persons*as may be designated by the Secretary of War, *with cabin accommodations for all officers, and third-class or steerage accommodations, space, and ventilation for the enlisted men and other persons on board each ship;*that the subsistence furnished by the company shall be equal in every respect to the United States Army garrison rations.

“ The company further agrees to provide a sufficient number of steamships in the harbor of Manila to perform *the entire service as herein stipulated,*so that the embarkation of the last of the prisoners of war and otlier persons may be made not later than May 1st, 1899; that the ships to be used for the purpose are named and described in the list submitted with their proposals,' copy of which is hereto attached as a part of this agreement, and the company agrees that no troops shall be transported upon any one of said ships in excess of two-thirds of the steerage capacity of each ship as shown in the list referred to.

“ In consideration of the faithful performances of the foregoing stipulations and .in compensation therefor, the Secretary of war hereby agrees -on behalf of the United States to pay to the said J. M. Ceballos and Company, for the transportation, subsistence, and delivery on shore of each commissioned officer, the sum of two hundred and fifteen *328dollars ($215.00), and for each enlisted man, private soldier, or other person designated by the Secretary of War for transportation the sum of seventy-three dollars and seventy-five cents ($73.75), the said sums to be due and payable upon evidence that said officers, enlisted men, or persons have been transported, subsisted, and delivered on shore in Spain.

“ It is further agreed that the prisoners of war and all other persons to be transported shall be delivered bjr the United States on board the ships at such ports in the Philippine Islands as may be designated by the Secretary of War, within five (5) working days after the vessel or vessels are ready to receive them. Demurrage, if any, earned by any such steamer or steamers to be paid by the United States at the rate of fifteen cents (15c.) per gross ton register per day, and for any prisoners on board at the rate of $1.50 for each officer per day and forty cents for each enlisted man per day. An account of the number of officers, enlisted men, or other persons to be taken at the time of embarkation by a representative of the Government of the United States and a representative of the said J. M. Ceballos and Company, and payment to the said company shall be made upon the basis ox the number of officers, enlisted men, and persons counted on each ship.

“It is further agreed that all steamers shall call at the port of Manila for orders, and should the Secretary of War elect to deliver prisoners to any steamer or steamers at any other port in the Philippine Islands, orders to that effect-must be given within twenty-four hours after the steamer or steamers have reported to the commanding officer at the port of Manila.

. “ No Member or Delegate to Congress, nor any person belonging to, or employed in, the military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit which may arise therefrom.

“ In witness whereof we hereunto set our hands and seals this 4th day of March, A. D. 1899.

“ (S’g’d) K. A. Alger, [seal.]

“ *Sec’tfy of War.*

“ J. M. Ceballos & Co., [seal.]

“ By B. A. C. Smith,

*“Attorney in Fact.*

“ Witnesses:

“ (S’g’d) G. D. I-I. Hopkins,

“As *to B. A.*A.'

“ “ L. 'F. BaNdo’ph.”

*329X. In performing the obligations of their contract the petitioners supplied vessels with cabin accommodations and steerage accommodations, as had been agreed, and in the cabins were carried the officers, civil and military, with their respective families, and in the steerage the enlisted men and their families and other persons entitled to third-class passage. If any persons other than officers were given cabin accommodations, the United States did not assign or place such persons in the steamers’ cabins.

It does not appear from the evidence in the 'cause that the United States assigned or designated cabin accommodations for the commissioned officers or the wives and children of the commissioned officers. The evidence does establish to the satisfaction of the court that when the wives and children of the military and civil officers of the Spanish army in the Philippine Archipelago went on board the plaintiffs’ vessels the plaintiffs made no claim that the United States should pay for the wives and children of such commissioned officers at commissioned officers’ rates.

XI. For the first twenty-five shipments of prisoners 0f war from the Philippine Islands to Spain payment was made by the Government of the United States upon the certificates of the masters of the respective ships on which said prisoners of war and other persons were transported, certified to be correct at the place of landing, showing the different classes of passengers; and payment was made for the total number of prisoners of war and other persons shipped at Manila, as shown by such certificates, regardless of the fact that many of those so shipped died or were left en route and were not landed in Spain.

XII. The obligation of this country to repatriate any other persons or classes of persons than those who were actually prisoners of war or political prisoners was questioned by the American Secretary of War.

On December 18, 1899, the Secretary of War addressed an official letter to the Attorney-General stating that under the terms of the treaty of peace the obligation of the United States to send to Spain at its own cost the wives and children of officers and soldiers and civil prisoners designated *330as officials and their wives and children was not clearly defined, and that the rates of compensation for the transportation of such persons were not set forth in the contract. But in that connection the Secretary requested an opinion as to the construction of the treaty of peace in regard to the scope of the description of Spanish prisoners, whether and to what extent the treaty included the repatriation of noncombatants at the cost of the United States. The Secretary further requested a construction of the contract rate of compensation which might be allowed and paid per capita for each class of persons charged for under the terms of the contract with Ceballos & Co. On January 6, 1900, the Attorney-General answered this official communication of the Secretary of War and construed the contract substantially as follows: That it was questionable whether all the persons tendered and transported were not within the purview of the treaty, but that this was a question for the United States authorities and not for the carrier who would have been guilty or might have been guilty of a breach of his contract in refusing to carry persons designated to be carried by the United States. The Attorney-General further informed the Secretary of War that the contract related to the transportation of prisoners; that as between the contracting parties it rested alone with the United States to say who it would send back to Spain, and in doing so to alone determine who were prisoners and who came within the purview of the treaty or the contract. That the words “ other persons ” were included within “ enlisted men,” and that as to all enlisted men and all persons other than officers, military and civil, $73.75, and no more, was payable by the United States to plaintiffs under the contract.

XIII. The Comptroller of the Treasury concurred in the construction given to the contract by the Attorney-General.

XIY. On January 19, 1900, the Secretary of War notified one of these plaintiffs that he had, on January 17, cabled General Otis at Manila that civil officials, prisoners’ wives and children were entitled to passage to Spain, and that the contract provided for shipment of civil- officials as officers on the basis of $215 per capita; that wives and children of officers, soldiers, and civil officials were entitled to transpor*331tation to Spain on the basis of $73.75 per capita. In this connection the Secretary of War notified J. M. Ceballos that *“*in the reports received from the commanding general in the Philippines as to the number of Spanish prisoners of war embarked upon the ships for transportation to ■ Spain, the number of officers and soldiers only have been stated, and these do not correspond with the number of those charged for in the bills of your company submitted to the Department. That “ these reports covered seventeen shipments only ” * * * and that “ further payment upon the bills is deferred, awaiting receipt of report called for by the Department of November 27, 1899,” relating to the number of passengers.

NY. Of the last 15 shipments of prisoners of war, running from February 20, 1900, up to July 14, 1901,'the list of passengers shipped, as shown by -requests for transportation and quartermaster’s requisitions (based on requests from the Spanish authorities) is as follows:

Military officers_ 164

Civil officials_ 28

Military officers' wives_1- 20

Military officers’ children (major)- 35

Military officers’children (minor)- 5

Enlisted men_•— 1, 560

Enlisted men’s wives_ 0

Enlisted men’s children (major)- 6

Enlisted men’s children (minor)- 6

Civil officials’ wives-:-,- 13

Civil officials’ children (major)- 9

Civil officials’ children (minor)- 3

Civil Spanish subjects_ 11

Wives of civilians_ 3

Children of civilians (major)- 8

Children of civilians (minor)- ' 3

Monks_ 24

Priests _ 37

Civil lady pensioners_ 2

Major child of civil lady pensioner- 1

Spanish subject, wife and child- 3

Child of telegraph oi>erator (minor) —r- 3

Child of civil lady pensioner (minor)-,- 1

Total. 1, 971

*332Upon the above shipments the Auditor for the War Department made the following allowances:

Officers (which included civil officials of the class of military officers), 184, at $214 each.

Enlisted men and other persons, 1,589, at $73.75 each.

And disallowed payment for the following persons because not called for and not included in requests for transportation of the claimant company at the time of embarkation:

Military officers_^_ Civil officials_ Military officers’ wives_ Military officers’ children (major) Military officers’ children (minor) Enlisted men_ Enlisted men’s wives_ Enlisted men’s children (major) _ Enlisted men’s children (minor)Civil officials’ wives_ Civil officials’ children (major)_ Civil officials’ children (minor)_ Civil Spanish subjects_ Wives of civilians_ Children of civilians (major)_ Children of civilians (minor)_ Civil lady pensioners_ Major child of civil lady pensioner— Spanish subject, wife, and child_ Child of telegraph operator (minor) Child of civil lady pensioner-■prifists_ _ 87 to ^ CC QO

Making 198 persons in all whose passages were not allowed for by the Auditor for the War Department for the reason that they were not included in requests for transportation.

If allowed for such service on the basis of $215 for each military and civil official, and $73.75 per capita for enlisted men and other persons, the amount due to plaintiffs on the said 198 persons would be $15,732.50.

The method of counting prisoners entitled to transportation under the contract was changed as to the last fifteen *333shipments so that requests for transportation with reference to available space should be made upon the plaintiffs. Thereupon a requisition for transportation was issued by the United States quartermaster at Manila in words and figures following, to wit:

“ HeADQTJARTERS DEPARTMENT OE THE PACIFIC

and Eighth Corps, U. S. Army,

*“Ayuntamiento, Manila, April 10,1900.*“J. M. Ceballos & Co.

“ Sirs: Under articles of agreement dated February-,

A. D. 1899, between the Secretary of War and J. M. Ceballos & Co., you are requested to furnish transportation to the following Spanish prisoners from Manila, P. I., to Spain on steamship *Leon XIII:*

“ Payment for this service will be made in Washington, D. C., U. S. A., at the office of the Quartermaster-General of the Army. '

“ 10 commissioned officers.

“ 258 enlisted men.

“ 3 civilian officials.

“ 8 wives of officers and officials.

“ 3 children under 3 years of age.

“ 6 children 3 years to 10 years of age.

“ 1 child over 10 years of age.

“Approved.

“By command of Major-Gen. E. S. Otis, U. S. V.vmili-tary governor P. I.:

“C. P. Miller,

“ *Manor and Quartermaster, U. S. A., Chief Quartermaster.*

*“*C. H. Murray,

*“Mayor and Inspector-Gen., U, S. V., Secretary A*

Pursuant to.t-he requisition of the Quartermaster-General all the men who were placed on the list of passengers for each shipment were required to be at a' particular place at a certain time in the morning, and they were counted by an officer * * * of the Quartermaster’s Department * * * and taken aboard launches and carried out to the Spanish vessel ready to sail; and as they went on board, the persons mentioned in the requisitions were counted by another United States officer accompanied with the officer who represented the steamship company. Occasionally speeial permission was given to officers of considerable rank to go aboard in *334their own conveyances, and these were checked off when they went aboard by an officer representing the Government and an officer representing the plaintiffs, and were thereby included in the numbers called for by the requisitions.

The 198 persons now claimed for were not included in the count at the time and place of embarkation.

No objections were offered at the time of the change in the method of computing the number of persons to go aboard by the plaintiffs.

The accounts presented to the Treasury for payment asked compensation for 198 persons, according to a certificate in form and figures following, to wit:

“ BARCELONA, SPAIN, -.

“ I certify that the following Spanish prisoners have been furnished transportation from Manila, P. I., to Spain by J. M. Ceballos and Co. on steamship *Leon XIII:*

“ 10 commissioned officers.

“ 259 enlisted men.

“ 5 civilian officials.

“ 8 wives of officers and officials.

“ 3 Avives of enlisted men.

“ 2 children under 3 years of age.

“ 6 children 3 years to 10 years of age.

“ 2 children over 10 years of age.

“ 2 children of enlisted men under 3 years of age.

“ 4 children of enlisted men under 3 years to 10 years.

“ 5 children of enlisted men over 10 years.

“ 3 volunteers, 3d class.

“ James G. Lax,

*“American Consul.”*

The foregoing form of requisition for transportation Avas used for fourteen other ships besides the steamship *Leon*XIII, but on different dates, according to time ofsailings, and embraced officers, enlisted men, and other persons on Avhich the count was made as set forth.

The evidence does not establish to the satisfaction of the court that these 198 persons certified to by the American consul at Barcelona Avere prisoners of Avar, entitled to transportation under the contract.

XVI. The following sums haA^e been paid to the claimant company for the transportation of jmsoners of Avar, consist*335ing of officers, enlisted men, and other persons, in the ships of the Compañía Transatlántica, between the 7th day of November, 1898, and the 14th day of July, 1901, embracing the following classes at the following amounts:

1,613 military officers, at $215_ $346, 795. 00

405 military officers’ wives, at $73.75_ 29, 868. 75-

575 military officers’ children (major), at $73.75_ 42,406. 25

301 military officers’ children (minor), at $36.875_ 11,099.375

15 minor children, at $73.75_ 1, ÍÓ6. 25

338-civilian officials, at $215_!_ 72,670.00

78 civilians, at $73.75_1_ 5, 752. 50

157 civilian officials’ wives, at $73.75_ 11, 578. 75

187 civilian officials’ children (major), at $73:75_ 13,791.25

94 civilian officials’ children (minor), at $36.875_ 3,466.25

3 civilian officials’ children (minor), at $73.75- 221.25

13,583 enlisted men, at $73.75_ 1, 001, 746. 25

19 enlisted men’s wives, at $73.75_ 1,401. 25

25 enlisted men’s children (major), at $73.75_ 1, 843. 75

11 enlisted men’s children (minor), at $36.875_ 405.625

6 enlisted men's children (minor), at $73.75_ 442.50

Making total payment oí_ 1, 544, 595. 00

XVII. The total number of prisoners of all classes delivered by the United States aboard ship for which there were quartermaster requisitions and transported by the petitioners, in accordance with their two contracts (one of which was oral and the other of which was in writing, and set forth herein), was 17,305 — that is to say, 1,938 naval and military and civil officers and 15,367 enlisted men and other persons. The total amount due the petitioners for such service, upon the basis of $215 per capita for the 1,938 military and naval officers and $73.75 for each enlisted man and other person, is $1,549,986.25.

The total amount paid to the petitioners by the United States at various times and by sundry checks as part payment of this indebtedness (which amount includes the defendants’ counterclaim of $9,721.25) is $1,544,595, as set forth in previous findings.

The balance due the petitioners by the United States for such service is $5,391.25.

*336XVIII. In. addition to the total number of prisoners of war and other persons delivered by the United States aboard ship at Manila and transported by the petitioners in accordance with their two contracts (one of which was oral and the other of which was in writing), which amounted to 17,305 passengers of all classes, there were carried in the same ships and at the same times, along with said prisoners of Avar and other persons transported on account of the United States Government, 6,481 passengers.

*Mr. John J. Hemphill*for the claimants. *Mr. 8. 0. Neale*and *Mr. Edwin H. Duff*were on the brief:

When it was provided in the contract that the United States would pay to Ceballos & Co. for each commissiohed officer $215, and for each enlisted man, private soldier, or other person $73.75, the real meaning was that the higher rate should be paid for all who enjoyed cabin accommodations and the lower rate for all who were given steerage accommodations. So far as Ceballos & Co. were concerned, it Avas wholly outside the question as to Avhether a certain passenger held a commission in his pocket or not. The only question with them was whether he Avas given by the United States first-class accommodations or third class. This was necessarily so by reason of the circumstances of the case. All these prisoners were under the dominion and control of the United States; their officers in Manila had a complete roll of the prisoners, with designation as to their class and rank; they had agreed by the contract to deliver these people on board the ship; they had agreed with Spain to transport and deliver them on Spanish soil, and they could not relieve themselves of their treaty obligations by turning over the responsibility of repatriating these prisoners to Ceballos & Co. or to any other private individuals.

Besides the injustice and unreasonableness of contending that the Avorcls “ other persons ” in conjunction with “ enlisted men ” and “ steerage accommodations ” can be so enlarged as to embrace the wives and children of the most eminent citizens in the Philippine Islands, we submit that the language of the contract when read as a whole shows that no such purpose was in the mind' of either party to it.

*337The words “ other persons,” following after and joined to the words “ enlisted men,” both classes, according to the contract, being entitled to “ steerage accommodations, space, and ventilation,” clearly define the kind of people intended to come under the designation “ other persons,” i. e., they are the “ other persons ” of the same class and entitled to the same accommodations as “ enlisted men,” and for whom the United States required that Ceballos & Co. should furnish “ steerage accommodations.”

The United States voluntarily assumed the right to designate the persons to be transported and which of them should be treated with a certain and proper dignity and distinction and which of them should be carried as ordinary soldiers.

It was out of the question that the United States should turn over to the three private persons composing the firm of J. M. Ceballos & Co., whatever their ability or distinction as citizens, the right to select the prisoners of war to be transported or to say which of them were officers, civil or military, or the wives of officers, or, in fact, to make any distinctions between the persons whom the United States tendered for transportation, and every one of whom this Government had agreed to return to their Spanish homes. It is not too much to declare that it would have been the height of presumption in Ceballos & Co. to assume to say which of the prisoners should be transported to Spain; which should go first class and which third class; which were entitled to certain consideration and dignity of treatment, and which were not.

By the terms of the treaty of peace between .the United States and Spain no distinction was made between the different classes of prisoners. It was simply provided that all the prisoners released by or whose release was secured by the United States should be returned to Spain.

But the custom of civilized nations forbade that an important official of the Spanish army or of its civil government should be subjected to the same class of treatment as a steerage passenger. .Consequently, the United States recognized this distinction between classes by requiring in its advertisement for bids that the ships upon which the Philip*338pine prisoners were to be repatriated should be provided with first-class or cabin accommodations, the number as to each vessel to be set out in the bids.

There was necessarily the implied obligation upon the part of the United States that in repatriating the officers and soldiers of the Spanish forces they would not do violence to the long-recognized distinctions between classes existing in Spanish countries, and that the laws under which these people had been transported from Spain to the Philippine Islands would not be ruthlessly violated when they were being returned to their homes at the expense of the United States.

In our country it is a well-recognized principle that an “ implied obligation is part of the contract itself, as much so as if 'incorporated into it by express language. The United States when they contract with their citizens are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them.” *(United States*v. Bostick, 94 U. S., p. 66.) “It is a fundamental rule that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.” *(Merriam*v. *United*States, 107 U. S., p. 441; *Gibbons*v. *United*States, 109 U. S., p. 203.)

The great difference in the charges for first and third class passage shows that it was never intended that anyone should be transported as a first-class passenger and be paid for at third-class rates. *(Harvey*v. *United*States, 105 U. S., 688.)

Even if Ceballos & Co. and the United States had been dealing on a footing of equality, the conduct of the United States officials in inducing the former to believe that certain jirisoners of war were of the class that were entitled to cabin accommodations, even though these passengers were not military officers, is sufficient to bind the United States to pay for such service as it has actually received. *(Bank*v. Kennedy, 17 Wall., 19-28.)

*339If the United States required more of the petitioners than • was provided for in the contract by requiring them to transport as first-class passengers those who by the terms of the contract were entitled only to third-class passage, the petitioners are entitled to be paid a rate corresponding with the service actually rendered by them. *Alvord*v. *United*States, 95 U. S., p. 356-359.) The United States having the right and power to decide what persons were to be transported as first-class passengers, was bound to exercise that power so that the contractor would not be misled or injured, *((ribbons*v. *United*States, 109 U. S., p. 204.)

Ceballos & Co. did not contract to transport a certain number of officers and a certain number of enlisted men. Their agreement was to furnish certain cabin accommodations, the number being specified as to each vessel, and certain steerage accommodations with space and ventilation specified as to number for each vessel. These accommodations the United States having secured, were at liberty to use as they deemed best for the purpose of carrying out satisfactorily their treaty stipulations with the Spanish Government. If, for political or any other reasons, the United States had seen fit to fill the cabin of one or more vessels with private soldiers, Cebal-los & Co. Avould have had no earthly right to complain. The cabins did not belong to them, but had been delivered over to the United States for the time being for governmental purposes, and it was entirely within the rights and power of the United States to fill them with whomsoever they pleased, so far as these petitioners were concerned. But when the United States used the space, which is not denied, for the transportation of the families of-the important personages of the Spanish Government, it can not now shield itself from its just obligation by saying that it required of Ceballos & Co. more than the contract called for.

Where goods have been delivered, or service rendered and the Government has received the benefit thereof, it is bound to make payment according^. *(BerehilVs*case, 4 C. Cls. R., 549; *Donald's*ease, 5 C. Cls. R., 65-10.)

When one contracting party requires of the other more than should be required, but which the other is bound to do, *340if required, and does it, it would be a novel rule which would permit the first party to refuse payment upon the ground that he ought not have required so much.

Even if some persons were tendered, and therefore transported, who did not come within the purview of either the treaty or the contract, this did not affect the validity of the contract which, rightly construed, is one for the transportation of prisoners only, but was merely an error in performance, and one for which the United States authorities alone are responsible.

It is a well-established principle of law that where the contract is indefinite or ambiguous the practical interpretation given by the parties themselves is entitled to great, if not controlling, influence in determining the meaning of the contract. *(Chicago*v. Sheldon, 9 Wall., 54; *Steinbaeh*v. *Stewart,*11 Wall., 576; *Topliff*v. Topliff, 122 U. S., 121, 131.)

Even if the literal construction of the contract would produce a different result from the practical construction placed upon it by both parties while in the act of performing its obligations, such practical construction will prevail over the language of the contract. *(District of ¡.Columbia*v. Gallaher, 124 U. S., 505-510; *Omaha*v. Hammond, 94 U.'S., 98-99.)

When the United States took the officers and their families and the enlisted men and their families in bunches and delivered them to the ship lying out in the Bay of Manila, it was the reasonable and natural course for the wives and children of the officers to go with the officers to that portion of the vessel set apart for them, and for the wives and children of the soldiers to go with the soldiers to that portion of the vessel designated for them. That is what airy sensible person would naturally expect; and if it was the purpose of the Government that any other course should be adopted as to the families of officers it should have been made known then. Silence under such circumstances is equivalent to a positive assent, and all parties are justly bound by the action then taken.

We have discussed this case so far as if there was really some ground for the United States contending that the wives *341and children of military and civil officials are embraced in the words “ other persons ” as found in the contract.

The testimony in the case, however, demonstrates beyond question that there is no ground for this contention upon the part of the Government. There can be no basis for such claim unless there was a meeting of the minds of the parties who entered into this contract upon the point, so that the wives and children of officers were intended by them to be included in the expression “ other persons.”

That this was not understood or intended so far-as Ceballos & Co. is concerned is shown by the fact that they have from the beginning and clear through this controversy insisted that the families of officers were not included or intended to be included in the expression “ other persons,” and they naturally assumed that if persons of this class were transported as first-class passengers and paid for at first-class rates in the repatriation of the Cuban prisoners, the same thing would be done in the repatriation of the Philippine prisoners. That has been their contention throughout.

On the other hand, it is equally clear that the officials of the United States did not understand or intend that the wives and children of the civil and military officers should be included within the expression “ other persons.”

The limited view of the obligation of the United States entertained by Secretary Alger, General Otis, and others doubtless arose from the fact that military men are apt to regard prisoners of war as composed entirely of the officers and soldiers of an army. The officials of the United States evidently did not realize that Spain was surrendering completely her control of the Philippine Archipelago, and that all of her officials, civil and military, and their families, were prisoners and were to be returned to the mother country.

On January 6, 1900 (R., 186), the Attorney-General in response to the request of the Secretary of War gave an opinion construing the contract with Ceballos & Co., and sustained the view of the claimants that all persons whose liberty was restrained, either by the United States or the insurgents, were embraced within the terms of the treaty of peace and of the contract made for their repatriation. *342The Attorney-General evidently did not know at that time that the wives and children of the civil and military officials had not been in contemplation at all by the United States officials when the contract was made, nor was he informed that they had actually been transported in the ships furnished by Ceballos & Co. as first-class passengers. With these facts before him we submit that he could not have held that these persons, although transported as first-class passengers, were to be paid for at third-class rates. On the contrary,. he must as a lawyer have held that when the United States received at the hands of Ceballos & Co. a first-class service for a large number of persons whom the United States were bound to transport, but whom the officer did not have in contemplation when the contract was made, they were obliged to pay for such service at the rate provided for in the contract for service of that character.

The courts have held that the United States is bound by an implied obligation and is compelled to pay for goods furnished or service rendered in the same manner that an individual. is. A written contract as required by the act of March 2, 1861 (12 Stat., 220), is not necessary to sustain a recovery where goods have been delivered to and used by the Government. *(Burehiel*v. *United States,*4 C. Cls. R., p. 549.)

An unwritten agreement, executory in its nature but invalid under the act of June 2, 1862, because not in writing and signed by the parties, may receive a legal ratification from the acts of the parties. Faithful performance by the contractor and a benefit received by the Government will take the case out of the statute so far as to leave it within the equitable rule of implied contracts. *(Danolds*v. *United States, 5*C. Cls. R., p. 65.)

“ No lease in form was ever executed in this case; but the contract, followed by the delivery of possession and occupation under it, is equivalent for the purposes of this action to a lease duly executed, containing all the stipulations agreed-upon.” *(Bostwiclc*v. *United States,*94 U. S., 53-66; *McClure*v. *United*States, 19 C. Cls. R., 179; *Adams*v. *United United States,*9 C. Cls. R., 441.)

This court held that where a contractor agrees to transport a specified quantity of. freight within a certain time *343and is ready, willing, and able to meet bis engagements, so that the expense and liability thus imposed upon him was nearly equal to that which would have, followed full performance, it is equivalent to actual performance, and the measures of damages is the full contract price. *(Hardy*v. *United*States, 9 C. Cls. R., 244.)

In this case Ceballos & Co. had not only been ready, willing, and able to carry these passengers, but had actually taken them aboard and started on the journey and were unable to land them because of the act of God as to some and the voluntary quitting of the ship by others.

*Mr. Franklin W. Oollins*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants:

It is insisted that the only possible claim for compensation for these first four shipments that the claimant company could have as against the United States would be, of course, under a contract either express or implied, and there could be no contract, either express or implied, in the absence of some agreement on the part of the Government to pay the claimant company something for such service.

There is no such thing as a ratification by an alleged principal of an act which was not intended by any of the parties to it to bind him. *(Sperry*v. *Pittsburg Short Method Smelting*Go., 48 Pac. Rep., 315.)

One whom a contract does not purport to bind can not become bound thereby by ratification, but must make a new contract assuming or adopting the obligation. *(West Pub. House*v. *District*Township, 84 Iowa, 101.)

These payments were made upon the approval of the Auditor for the War Department and upon his mistake of law. They should never have been made, but the money having been paid without warrant of law, and under a mistake of law, the Government of the United States is not precluded from recovering back the same as though the transaction had been one between individuals.

This has been repeatedly held by the courts from the case of the *United States*v. *Kirkpatrick et dl.*(9 Wheat., 785) down through a long line of cases.

*344The same doctrine is upheld in *United States*v. *Bank of Metropolis*(15 Pet., *311),*and also practically in *MeElrath*v. *United States*(102 U. S., 426). The law is correctly stated as follows:

The receipt by a claimant of public money to which he has no right, either legal or equitable, gives the United States a cause of action which may be presented in the way of a counterclaim or set-off to the suit brought by said claimant against the United States. The allowance of the claim by the accounting officers of the Government constitutes no obstacle to a recovery. Jurisdiction to hear set-offs and counterclaims having been conferred upon the Court of Claims by section 1061 of the Devised Statutes and also by the act of March 30, 1868 (15 U. S. Stat. L., 54), which provides for revision of settlements made by the accounting-officers of the Government “ by Congress or through the courts,” there can be no question, therefore, concerning the power of revision by the courts. It has been held that neither the United States nor the claimant is bound by such settlements. *(United States*v. *Bank of*Metropolis, 15 Pet., 377; *United States*v. Iiaufmann, 96 U. S., 561.)

It has also been held by the courts that money paid improperly and without authority of law by the agents of the Government may be recovered. *(Goohe*v. *United*States, 91 U. S., 391; *Bayne*v. *United*States, 93 U. S., 642; *Attorney-General*v. *Perry,*2 Com., 481; *United States*v. *Bartlett,*2 Ware, 9; *Duke de Gadaval*v. *Gollins,*6 Nev. & M., 324;' *Jones*v. *Barhley,*2 Doug., 684, 691; *Muttyloll Seal*v. *Dent, 8*Moo. P. C. C., 319; Evans Essay on the-Action for Money Had and Deceived, 28, 29.)

Clearly the claimant company was only entitled to be paid for those passengers of the classes named who were delivered on shore in Spain, and in the absence of such delivery there can be no recovery, and payments otherwise made are manifestly unwarranted and unlawful and should be restored by the claimant company and returned to the Treasury.

The force of this provision is not broken or impaired by the subsequent language of the contract to which attention is directed in claimant’s brief (p. 11), which says:

*345“An account of the number of officers, enlisted men, or other persons to be taken at the time of embarkation by a representative of the Government of the United States and a representative of the said J. M. Ceballos & Co., and payment to the said company shall be made upon the basis of the number of officers, enlisted men, and persons counted on each ship.”

In other words, the count first made, while a necessary and important condition precedent, was not and could not have been intended to be final and conclusive evidence of the number transported, subsisted, and landed on shore in Spain.

Manifestly it could not be so, nor is it shown by the proofs presented that many of those first counted never in fact embarked, and of those who really embarked many died or left the ship at various places where the ships touched en route for Spain.

Obviously it was not intended to pay the claimant company the full passage rates for such passengers, but only for those who were in fact transported, subsisted, and delivered on shore in Spain.

The case of *Iiarcly*v. *United States*(9 C. Cls. R., 245), cited by opposing counsel, is not in point, for the reason that in that case the contract provided for the transportation of a specified amount of Government stores and required the contractor to remain ready to transport the whole of said specified amount, and for this purpose'he purchased and hired a team and was put to substantially the same expense as if allowed to perform, and brought action for the whole amount of the contract price, and the court held that he was entitled to recover, whereas in this case the claimant company simply agreed to “ furnish good and safe transportation for such number of prisoners of war and persons as may be designated by the Secretary of War from the Philippine Islands to such port in Spain as may be designated by the Secretary of War, and to furnish to them while en route and on board ship, and to deliver them on shore in Spain,” thus differing in important particulars between the contract in suit and the contract in the Hardy case. Moreover, the hardship in this case is not comparable in any respect with that in the Hardy case. ,

*346Claimant company’s contention as to what it terms the second principal question is manifestly untenable.

It is obvious that according to both the language and spirit of the contract the officers’ wives and children, if included in the contract at all, are unquestionably embraced in the category of “ other persons.”

Claimants contend that even if this be true the Government would be bound because it not only arbitrarily decided who should be carried, but also how and where they should be carried — in other words, what accomodations the officers’ wives and children should receive on shipboard — and that the Government, through its army officials, demanded of the claimant company first-class or cabin accommodations for the officers’ wives and children (claimant’s brief, pp. 20 and 2Í)-

While it is true that the contract required the claimant company to “ provide a sufficient number of steamships for the safe and comfortable transportation of the prisoners of Avar and such other persons as may be designated by the Secretary of War, with cabin accommodations for all officers, and third-class or steerage accommodations, space, and ventilation for the enlisted men and other persons on board each ship,” it is nevertheless unreasonable to infer therefrom that the United States had and exercised such control over the space of the steamers in question that they compelled the steamship company to furnish the officers’ wives and children Avith accommodations in the cabins.

Howkat, J.,

deliA^ered the opinion of the court:

The subject-matter of this controversy is the expense involved in the repatriation of certain prisoners of Avar from the Philippine Islands succeeding the close of hostilities between this country and Spain. The issues arise on the demand of the plaintiffs, stating a total earned of $1,837,841 and claiming a balance amounting to $293,246.25 alleged to be due under two agreements, one verbal and one in writing, on account of services alleged to have been performed by them for the repatriation of 17,527 persons.

The first thing to be considered relates to the action of the parties under the alleged parol agreement. Payments for *347large amounts were made without any written contract for the repatriation of those prisoners whose presence was deemed specially undesirable. These payments cover the first five shipments and amount to a sum aggregating $371,988.75. Defendants deny the existence of any oral agreement, and allege that until the treaty was signed an authorized agreement was impossible for the reason that the authority for an agreement could only come from the treaty itself. Restitution of the amount of the expenditures under the alleged parol agreement is demanded by way of counterclaim.

On August 12, 1898, our Secretary of State and the French minister at Washington, acting for the Spanish Government, entered into a protocol for the cessation of hostilities between the United States and Spain, in which it was provided that “ the United States will occupy and hold the city, bay, and harbor of Manila, pending the conclusion of a treaty of peace which shall determine the control, disposition, and government of the Philippines.” Manila surrendered the next day, and the authorities of the two'Governments there agreed in writing that “ all question relating to the repatriation of officers and men of the Spanish forces and of their families and of the expenses which said repatriation may occasion shall be referred to the Government of the United States at Washington.” The prisoners were then estimated to number about 16,000,. but an actual count subsequently increased the estimate to something over 17,000 persons.

No steps were taken immediately for any removal, but the necessity existed to bring about better conditions in the fallen city. The Spaniards themselves were perhaps anxious to go home, and it Avas understood by both sides that, under the terms of the capitulation, the military occupation o’f the United States was likely to be permanent. There was a large number of sick and wounded in the vicinity of Manila and elsewhere in the archipelago. These numbered more than 1,000 persons, and the presence of so many Avas a menace to the health of the place. Out of these conditions arose the actual transportation of a large number for which *348accounts were presented and paid and from which the- first counterclaim has arisen.

It is proiDer at this point to notice plaintiffs’ contention that by the action of the accounting officers, who approved the accounts, the defendants are precluded from disputing the correctness of the payments for the five shipments in dispute.

Jurisdiction to hear set-offs was conferred by an act approved March 30, 1868, which provides for revision of settlements (15 Stat. L., 54). This statute is now section 1061 of the Revised Statutes, which, in turn, was reenacted by the first section of the Tucker Act with respect to all set-offs on the part of the Government against any claimant in this court. There is no reason to discredit the set-off merely because the accounts Avere passed upon at the Treasury. True, the presumption is that the payments Avere lawfully made, and this presumption continues until the contrary appeal’s. The fact that the action of the accounting officers (Avho generally resolve eA^ery doubt in auditing public accounts in faAmr of the Government) is under consideration at the instance of the laAV officers of the Government in no Avise diminishes the value of the demand for restitution. Quite the contrary. The very object of the statute relating to the revision of settlements is to place the action of those most responsible for them under the Avatchful care of those Avhose duty it is to appear for the Government in the courts. The right to recoA^er moneys illegally paid by a public officer exists in this court eA^en Avithout a counterclaim whenever it appears that the settlements are unlawful. *(Wisconsin Central R. R. Co.*v. *U. S.,*164 U. S., 190.)

The material inquiry, then, is the nature of the operations under which the first five shipments were made. We have carefully considered this phase of the matter because of its immediate bearing upon the claim for a large refund. As our findings are not the subject of revieAV, their importance can not be oArerestimated.

The telegraphic correspondence betAveen General Otis, commanding in the Philippines, and the Adjutant-General of the Army in Washington tends to rebut the idea of any *349parol agreement of the first shipments at the expense of the United States. But the commander there did not, so far as this evidence shows, know that Ceballos & Co. were in consultation with the Secretary of War here. The correspondence offered in evidence does not in itself disprove the allegation that negotiations were then going on at the seat of government for the removal of the sick from the Philippine Islands to Spain. It is historically true also that negotiations were in progress at the same time for the removal of the sick and wounded prisoners of war from Porto Rico and Cuba. But there was a special necessity to get the sick and wounded from the more distant conquered territory. The correspondence recognized these conditions for the relief of a state of affairs which was as well understood by the Government at home as by the commanding general on the spot.

Careful scrutiny compels us to say we are unable to see any actual inconsistency in the testimony relating to the occurrences here with respect to the initial shipments. It positively appears from the plaintiffs’ testimony that an agreement was made with the Secretary of War. Neither the Secretary nor any civil or military authority of the Government in the War Office has ever made any denial of the direct testimony relating to the agreement. This agreement is proven by Ceballos & Co. as having been made in Washington with the Secretary of War. It is inferentially corroborated by the subsequent telegrams of the commanding general in the Philippines that in all instances the departure of the prisoners was urged and hastened. Finally, the Treasury officers were satisfied (by the response to their first objections) to make the payments for the shipments, and with the sufficiency of the agreement exhibited in the correspondence with the War Department in that connection. The findings establish the parol agreement between plaintiffs and the Secretary of War. The particulars are there set forth in the nature of a special verdict, which are believed by the court to substantially embody all that is material in the matter in dispute. Without multiplying words on this part of the case, we pass to the question of the sufficiency of the agreement.

*350Government liability to pay anything under the parol agreement is denied by defendants because any contract, they say, with respect to the first five shipments was within section 3744 of the Eevised Statutes, and not having been “ reduced to writing, and signed bjr the contracting parties with their names at the end thereof,” can not be sued upon. Defendants cite *Clark*v. *United States,*95 U. S., 539; *Salomon*v. *United States,*19 Wall., 17; *South Boston Iron Co.*v. *Same,*118 U. S., 42; 18 C. Cls. R., 165; *Lindsley's case,*4 id., 359; Jones’3 *case,*11 id., 733; *Steele's case,*19 id., 181.

But this is a completed agreement. The service was actually performed and defendants got the benefit of it. In a recent case in the Supreme Court — affirming this court— Mr. Justice Holmes said that if the United States, instead of paying for the subject-matter of the suit there, had set up the invalidity of the contract, the claimant could still have sued on a quantum valebat. *(St. Lords Hay Co.*v. *United States,*191 U. S., 163.) In that case the court cited the leading case of *Ciarle,*v. *United States,*supra, with approval, where it was held that if a parol contract has been wholly or q>artially executed and performed on one side the party performing will be entitled to recover the fair value of his property or service as upon an implied contract for a quantum meruit. An. examination of these two cases we think authorized settlement of the right of plaintiffs to recover on whatever the services are shown to be worth.

But there is another aspect in which this part of the case may be viewed. It has appeared that by the terms of the ■capitulation the expenses of the repatriation were referred to the United States pending the treaty. This language did not make a contract, it is true, but it certainly threw the responsibility upon our Government to consider for itself the matter of expense in the intended removal of the captives. The situation of the prisoners and tlie small naval and military force of the United States among millions of natives made it very desirable for this Government to rid the islands of Spanish influences as quickly as possible. We have already adverted to the burdens imposed by the presence of the sick and wounded. Smallpox had been prevalent and *351there was fear of infection. The prisoners were as anxious to go as our authorities were to see them go, and it 'is reasonably certain that it was assumed (under- the terms of the capitulation) by both Governments that the United States would bear the expense incident to repatriation when that question came to be considered. That it was to be considered is evident from the terms of the agreement of capitulation. Contracts for services made in emergencies and under exigencies need not always rest upon advertisements or be in writing. (Secs. 3709 and 3732, Rev. Stat.; *U. S.*v. *Speed,*8 Wall., 77.) The state of affiairs shown by the findings appear about as emergent as anything well could be, and the counterclaim on this point can not be sustained.

Independent of the statute authorizing parol agreements in cases of emergency, certain acts don'e in the exercise of the war power .by public agents bind the Government to pay, regardless of a contract in writing. “No one disputes the proposition,” recently said one of the ablest constitutional lawyers in the country, “ that when territory i.s acquired by conquest the President, as Commander in Chief of the Army and Navy, may continue to hold and govern it through the military authorities until such time as Congress can exercise its jurisdiction.” The functions of any sort of government in conquered territory are to preserve order, protect the lives and property of the inhabitants, and preserve the interests of the conquering power until the constitutional authority of the proper civil agencies can be established by Congress upon the cession of the territory. The situation of the prisoners and the burdens imposed by the conditions to which we have adverted as existing there made it immediately desirable to provide for the prisoners elsewhere. A commander in the field, with prisoners on his hands, with no treaty to guide their disposition, could certainly incur reasonable expenditures incident to removal without the formalities of a written agreement. -Actual necessity for quick action existed.

The Secretary of War could, of course, provide the same thing which a commander could direct. In legal contemplation the Secretary is an arm of the Executive. “ The *352President speaks and acts through the heads of the several Departments in relation to subjects which appertain to their respective duties.” (101 U. S., *770.)*Anything the President may lawfully do the head of a Department may do in his name. So, unless public money is better protected than the safety and lives of inhabitants, and unless an army of occupation must be sacrificed to emergencies, the expenditures for the removal of sick and wounded captives was a proper charge against the Treasury independent of any contract, if the Secretary of War directed it, as *\ve*have found he did do.

We come now to the treaty of Paris of December 10, 1898, and the written contract under it.

The treaty provided: “ The United States will, upon the signature of the present treaty, send back to Spain at its own cost the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces.” Article VI provides that “ the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines.”

“ The Government of the United States will at its own cost return to Spain, and the Government of Spain will at its own cost return to Cuba, Porto Pico, and the Philippines, according to the situation of their respective homes, the prisoners caused to be released, respectively, by them under this article.”

When the treaty was promulgated, the Quartermaster-General advertised for bids for suitable vessels for the repatriation of the Spanish prisoners, estimating their number at 16,000. Plaintiffs submitted a bid for this contract, accompanied with the number and names of the vessels, which was accepted by the Secretary of War, and on March 4, 1899, a written agreement for the repatriation of the Spanish prisoners was executed by the Secretary and these plaintiffs. Under this contract the prisoners then on hand were transported, subsisted, and landed in Spain, except as hereinafter set forth. Under the terms of the contract the officers were to be repatriated on the basis of $215 for each officer and-*353the enlisted men and other persons on the basis of $73.75 for each person.

Plaintiffs agreed for the purposes of the contract that they would provide a sufficient number of steamships for the safe and comfortable transportation of prisoners of war and such other persons as might be designated by the Secretary, with cabin accommodations for all officers and third class for steerage passengers, with ample galley accommodations, space, and ventilation for the enlisted men and other persons on board each ship, and that the subsistence furnished by the company should be equal in every respect to the army garrison rations. In consideration of faithful performance the Secretary of War agreed on behalf of the United States to pay to plaintiffs the contract price mentioned above, upon evidence that the officers, enlisted men, and other persons so designated were transported, subsisted, and delivered on shore in Spain.

Pending the execution of the treaty and the contract under it the obligation of this country to repatriate persons other .than soldiers or political prisoners was questioned by the Secretary of State. Thereupon the Secretary of War requested construction of the law officers of the Government with regard to the repatriation of the families of the officers and of civil prisoners in the hands of the insurgents. The Secretary was advised by the Attorney-General that the provisions of the contract under the treaty embraced noncombatant prisoners as well as soldiers and all prisoners captured and held by the United States or held and released by the insurgents, whether their detention was originally voluntary as to them or otherwise. His opinion was that the United States had the right to adopt as against themselves as liberal a construction of the treaty as they chose, and that this Government would not have tolerated any such impertinence or delay as would have resulted in the contractors questioning the action of the Government, and that the contract when referred to the treaty was not *ultra vires*the Secretary of War. (23 Opin. Atty. Gen., 14.)

No questions were raised respecting the conduct of the Government in carrying out the treaty under the construction *354given by the Executive Departments. Nor did the accounting officers of the Treasury object to making the payments as the bills were presented. But it is now argued that it is open to grave question whether any obligation was imposed on the United States by the treaty of Paris or the contract under it to carry to Spain the civilians, the women and children, and other noncombatants, who could not properly be classed as prisoners of war.

The treaty provided that the United States would release all persons made prisoners of war by the American forces. Undoubtedly every Spaniard in the archipelago was considered a prisoner of war. Certainly no one of them could have left the islands without the permission of the commander of the American forces. The original terms of capitulation referred to this Government all questions relating to the repatriation of officers and men of the Spanish forces *and of their families*as well. Said the Attorney-General, the contractors had nothing to do with the construction given by this Government as to what was to be done. Certainly they had no discretion except to transport all persons tendered by the United States aboard their ships. Plaintiffs were carriers only, without opportunity or power to determine who were entitled to transportation, and had they, as carriers, undertaken to decide that question for themselves they would have done so in violation of one of the express provisions of the contract and at their own risk as for a breach. Any objection raised by the contractors as to the nature of the treaty would probably have resulted in stopping the business of embarkation. Whether the treaty obligation extended to the repatriation of monks, nuns, priests, sisters of charity, and the families of the officers and enlisted men, at the expense of this country,, does not seem to us as now presenting material inquiry under the contract.

But the most important question is as to the price to be paid for persons other than commissioned officers and enlisted men who were treated as prisoners by the United States. Plaintiffs claim that the Avives and children of all military and naval officers and of all civil officials, besides sundry cabin passengers, must be paid for at the rate of $215 for. *355each person on all shipments. They undertake to support their contention by what they' say were the views of the Secretary of War when the shipments were being made, from which it appears that as to certain noncombatants, which included wives and children of officers and soldiers and civil prisoners, the Secretary said that the obligation of the United States was not clearly defined in the treaty and that the rates of compensation for the transportation of such persons were not set forth in the contract. Plaintiffs urge that the United States should not now persuade its courts to adjudge the obligation of the treaty so that any part of the expense incident to repatriation should be borne by Spain. Defendants contend that the contract fixed the rate to be paid for the wives and children of the military, naval, and civil officers, as well as all persons other than officers, at a rate which must exclude all these other persons from the higher rate. They rely upon the construction given to the contract by the Attorney-General, who said that there were but two rates of price to be paid for the service, and that the lower rate covered each person other than an officer transported to Spain. (28 Opin. Attorneys-General, 14.)

It is true that the cost of transportation was not defined in the treaty, but the cause of action does not grow directly out of treaty stipulation, nor is the right to recover dependent upon any part of the treaty. If it were, the jurisdiction to proceed might be questioned under section 1066 of the Revised Statutes, unless the act of 1881, commonly known as the Tucker Act, repealed the earlier statute prohibiting the exercise of jurisdiction by this court in cases dependent entirely upon treaty stipulation. Without considering the treaty obligation we pass to the contract, because plaintiffs must stand upon that, as the proximate cause of action is the contract and not the treaty.

As to this contract, the Secretary of War did say that the rates of compensation for the transportation of persons other than officers did not appear to be set forth.

But the Secretary was not undertaking to construe the' contract, and whatsoever views were advanced by him were only incidental to inquiries propounded to the law officers *356of the Government when their advice was sought to determine his official action; for within a few days the Secretary of War notified one of these plaintiffs that civil officials and prisoners’ wives and children were entitled to passage, but that the contract provided for shipment of civil officials as officers at the higher rate, and the wives and children of officers, soldiers, and civil officials at the lower rate. -

It is urged by plaintiffs .that when they submitted their bid it was their expectation to make two classes of people and two classes of accommodation, and to receive two classes of ' payment for every person transported, whether a military or political prisoner, male or female; that the words “ other persons ” were used to designate classes, and not “ officers,” or *“*soldiers ” of the captured army; that the words as used in the contract are subject to interpretation in connection with other parts of the agreement, from which it is unreasonable to suppose that it was intended that women should be transported as steerage passengers.

The phrases “ other persons,” “ persons,” or “ all other persons ” occur seven times in the contract. The higher rate related to one class and the lower rate to another class, and within the second class the contract embraced priests, nuns, sisters of charity, all women and children, and every other person designated within the term “ prisoners ” by the United States.

However proper it might seem that the families of the officers should have been given the same kind of accommodations as the officers themselves, plaintiffs can not narrow the meaning of the agreement by the restrictions which they now allege to have been their expectations — that only enlisted men were to go at the lower rate.

The fifth paragraph of the contract, being free from ambiguity, must control, unless there is something else in the contract, which, taking the agreement as a whole, operates to destroy the terms fixing the rates for the families of officers upon a different basis from the rates fixed for the officers themselves. The advertisement for bids called for cabin accommodations to be supplied to the officers, and third class, or steerage accommodations, conforming to our regulations *357as to space, for enlisted men. The proposals were to state the price per capita for transporting officers and for transporting enlisted men and for their subsistence, and delivering them in Spain, accompanied by a guaranty that the prisoners would be comfortably cared for and subsisted while on the journey. Exactly why the advertisement for bids called for two classes instead of three classes does not appear. It does not appear that the proposal of plaintiffs to furnish the transportation conformed to the advertisement, because the proposal offered to perform at a price “ *not to exceed*in any case $215 for each officer and $73.75 for each enlisted man.”

Why the contracting parties still ignored the anomalous status of women and children, and other noncombatants, remains unexplained. But, though plaintiffs’ bid was accepted by the United States, the contract in evidence was executed. By its terms the higher rate was applied to officers only and the lower rate “ for each enlisted man, private soldier, *or other fersonP*Thus, there is nothing in the agreement, and in the negotiations leading up to the agreement, which destroys the effect of the clause fixing the rate on the basis indicated by its language. Indeed, it would seem that the minds of the contracting parties met very clearly when the proposals, and the acceptance of the same, came to be exactly defined by a written contract.

Undoubtedly both parties to the agreement expected the repatriation to include every person on the islands whom the United States regarded as prisoners of war. For plaintiffs now to claim that a rate equivalent to that bid for commissioned officers should be applied to their families would seem unjust to the Government, because the logical conclusion arising from such a contention would be a full rate for every child occupying cabin accommodations as first-class passengers, contrary to the rules and customs governing the transportation of children across the seas at a lower rate than adults. Inasmuch as the rate was not to exceed the sums indicated in the proposals, it is clear that the way was left open for a lower rate than that called for by the advertisement and the proposals in question. It is equally clear that when the parties came' to make a contract they agreed that *358two rates should govern, and it then devolved upon plaintiffs to provide such quarters as should be safe and comfortable for all. Plaintiffs can not now be heard to say that the accommodations for those carried at the lower rate were not safe and comfortable, and before they can collect the officers’ rate for the persons hot entitled to cabin accommodations they must show that defendants imposed upon them the obligation to furnish more than it contracted to furnish.

But this does not appear. The evidence does not establish that the United States had anything to' do with the assignment of the quarters of the persons repatriated under the contract, but that these persons were merely delivered in Manila Bay to the plaintiffs’ steamers to be counted and transported according to contract. Doubtless jdaintiffs contracted upon the expectation of profit on the whole contract and got it. Whether they did or not find the contract profitable the court can not undertake to transpose the words “ other persons ” from the lower rate to the higher. The function of the court is not to make a contract for the parties.

The cause of action is on the express contract embracing all repatriations undertaken. There is nothing in the transactions of the parties outside o'f the express agreement to indicate that compensation for any service to be performed by plaintiffs was contemplated, or that they could perform any service which should be paid for on a different basis than that expressed in the writing. There is therefore no room to invoke quantum meruit. As said in *Hartman*v. *United States*(40 C. Cls. R.., 133), “the express written agreement excludes the possibility of implied contract; ” and that the minds of the parties met when they formulated their written agreement for the lower rate to include women and children seems clear from the prevailing conditions to be gathered from the official correspondence, which shows that early doubts existed as to who were to be regarded as prisoners. But the parties proceeded upon the assumption that civil officials and women and children were to go and constructed their agreement accordingly. That this agreement was mutually satisfactory and profitable to both must be concluded from what the agreement itself shows and the circumstances *359under which it was made. Some doubts as to whether civil officials and women and children were to be regarded as prisoners at all entitled to transportation under the treaty must have been shared by the Government of Spain also, because we find that Government giving orders to its subsidized company under its contractual relations with that company to cooperate with plaintiffs in the premises. Spain apparently believed that this Government was doing what in any view of the case it contracted to do under the treaty in providing for all classes in a safe and comfortable way, as no claim was then made upon this Government to do more. None could have been made under the treaty as to the kind of accommodations extended by the United States after it appeared that the accommodations provided were reasonably comfortable and safe. The repatriation of women and children alone involved an expenditure of several hundred thousand dollars by this Government, and as the matter stands it seems just for it to end.

Assuredly plaintiffs ought not to expect a judgment in their favor for the part paid by Spain to the Compania Transatlántica for coming into the matter to make more easy the journey to the peninsula for the women and children. In no event are plaintiffs entitled to anything- for the service performed by others and paid for by Spain with neither compulsion nor request.

Under the construction we have given to this part of the agreement all children must be paid for at the uniform rate fixed for enlisted men and other persons. The amounts paid in settlement of some of tlie shipments were for minors at the rate of $36.87-J each. By these settlements it appears that two minor children were treated as one person. Plaintiffs are entitled to collect the round rate fixed for all persons other than officers as above stated, irrespective of the first settlements. These settlements had their origin in the presentation of accounts for transportation on those shipments made in advance of any written agreement under the treaty. The findings show that these accounts were presented on the five shipments pursuant to the oral agreement, and the question of compensation for those persons transported before *360the written contract was left open to be settled when the United States was prepared to ask for tenders. The first shipments were to be paid for on the written contract, which was expected to be made and which in point of fact was made. So, 'the written contract under the treaty fixed the rate payable for all persons transported under the oral agreement. Plaintiffs may have expected the written agreement to conform to their ideas of what should be paid for all the service, but as they entered into a written contract which defined the rate there must be an application of the rate agreed upon for all persons repatriated.

Another question has arisen relating to the number transported on the last fifteen shipments. This dispute relates to the passages for 198 persons, some on the basis fixed for officers and some at the rate provided for the transportation of enlisted men.

Masters of vessels certified to the landing of so many persons on many vessels, for which accounts were presented and paid without question.. But this system was changed as to the last fifteen shipments, so that requests for transportation were required to be made and quartermasters’ requisitions for transportation were certified to the carriers at the place of embarkation. No objections were offered at the time to the new method of computing the number of persons. The record does not disclose that any protest was" offered at any time to the new plan. Plaintiffs now contend that unless the report of the American consul at Barcelona, in Spain (who must have obtained his information from the vessel masters as to the number landed at home), be accepted and paid for the carriers are thereby “ made responsible for and held to perform the duty which the United States had assumed in the treaty with Spain and which they had no power or authority to delegate “ to others,” thereby.meaning that quartermasters’ requisitions were an infringement on the rights of the carriers as measured by the treaty obligation.

But this obligation of thq United States was to return at its own cost to Spain all prisoners released or caused to be released under the sixth article of the treaty. It nowhere *361appears that this obligation was violated. Neither does it appear that the United States demanded the transportation of persons outside of the requisitions. Secondly, it is objected that unless the report of the master of each vessel of the number landed at home be accepted the contract itself is violated. We do not think so. The contract provides that “ an account of the number of officers, enlisted men, or other persons be taken at the time of embarkation by a representative of the Government of the United States and a representative of the said J. M. Ceballos & Co., and payment to the said company shall be made on the basis of the number of officers and enlisted men and persons counted on each ship.”

Unless the means adopted to secure the integrity of the count so operated as to cause the carriers to repatriate prisoners not covered by the quartermasters’ requisitions the contract- is not violated. The proof is insufficient to show that, either at the time of the promulgation of the new requirement or during the shipments under the requisitions, the carriers undertook to transport or actually transported more prisoners than the number contained in the requisitions. The burden of proof rests upon them to show that the account of the number landed across the water included “ prisoners ” in excess of the official count at the place of embarkation. The onus is equally upon plaintiffs to show that when the official account came to be taken at the time of embarkation of the persons classed as prisoners Ceballos & Co. were deprived of the right to verify the requisitions at the starting point. It is not to be supposed that plaintiffs would receive 198 persons on board not entitled to transportation — some chargeable at the rate of $215 and others at the rate of $73.75 each — and take action only by sending from Spain a list not covered by the requisitions at Manila. The Government was not bound to depend upon the master’s statement of the number carried or upon the statement of some one in Spain as to the number who appeared to have been carried, because that provision of the contract which required the prisoners to be designated at the time of embarkation afforded that measure of protection which the *362Government was entitled to have under the contract and which must govern the number designated as prisoners. Why should plaintiffs neglect at the place of embarkation and against their interest that provision of the agreement which authorized their representative to count the number designated for transportation? The count was to be taken at the time of embarkation and the place for the count was where the prisoners embarked. (The advertisement called for place while the contract designated time.) That was to insure the repatriation of prisoners only, which was the thing, apparently, which plaintiffs now seek to evade. The requisitions of quartermasters were merely the means employed to attain certain ends — that is, the requisitions were introduced to determine who were entitled to transportation where both parties to the agreement could see that no imposition was made the one upon the other. There is nothing inconsistent in the means employed to secure the proper execution of the agreement. Certainly there is nothing unfair disclosed, and without something more definite in the way of proof to establish injury to plaintiffs the transportation of the 198 persons alleged to have been carried outside of the requisitions can not be charged to the' United States. Especially is this rule proper in view of the fact that many persons were carried to Spain who were not properly classed as prisoners of war and did not claim to be.

For the transportation of 100 other prisoners embarked in the first twenty-five sailings and not landed in Spain defendants urge that the contract has been broken by plaintiffs ; and inasmuch as these have been paid for, the Government wants restitution, and counterclaims to the extent of $12,788.75.

It appears that 118 of the prisoners died on the passage, and 42 stopped on the way. The contract provides for all transportation to be due and payable upon evidence that the officers, enlisted men, or other persons were transported, subsisted, and delivered on shore in Spain. The number to be paid for is fixed by that other paragraph in the agreement which provides for an account of the number of prisoners embarking. • The findings show that when the prisoners *363were delivered on board, some were ill. The shipments included wounded as well as sick persons.

We do not think that another and different mode of payment than that fixed by the contract at the place of embarkation ought now to be insisted upon,, unless plaintiffs are clearly in fault. It would seem unjust, after the parties have agreed upon one basis of computing payment, for the Government to claim settlement by another method not in conformity with that part of the contract, unless plaintiffs are themselves responsible for neglect in performing their part' of the agreement.

The rule of travel upon the high seas is that when a person dies on the passage he shall be buried at sea, and by this rule plaintiffs ought to recover for the persons designated to be carried, but who died on the passage. There is no proof of any steamship line furnishing accommodations and undertaking to transport people abroad and refunding passage money for those who die on the way. There may be such a rule somewhere, but the Government has not undertaken to show it. Without knowledge of such-a provision in the ordinary contract of transportation this court will not undertake to deprive plaintiffs of their expenditures in this behalf. '

As to those persons who stopped on the way, we do not accept plaintiffs’ contention that the prisoners were under the control of the United States after their delivery aboard ship. Neither is this contention necessary to maintain their claim in this respect. Having provided means for the transportation of all such prisoners as were tendered, it would seem unreasonable to hold that it is incumbent on plaintiffs to show that they failed to land these persons in Spain. When the prisoners went on board the vessels designated to carry them they were there pursuant to the agreement. The prisoners were no more under the control of plaintiffs, except as passengers, than under duress on the part of the United States. If,’ without the permission of the carriers, these persons got off, plaintiffs should not be held responsible.

Certain amounts representing payments for officers and *364men in excess of the number actually transported, on one of the ships are set forth by the defendants by way of counterclaim. The amount of refund demanded is $9,721.25. The contention on this item grows out of the certificates of the masters of the vessels and the certificate of the quartermaster in charge of transportation matters at the place of embarkation. The findings show the proper deductions on the counterclaim.

Summarizing the matters in dispute, we find that a preliminary agreement in parol for the transportation of sick and wounded prisoners of war was made between plaintiffs and defendants after the surrender of the Spanish forces in the Philippine Islands, but before any contract under the treaty .was made, and the plaintiffs performed services under the agreement for which they were rightfully paid for the five initial shipments; that the matter of compensation for these five initial shipments was, by verbal agreement between the parties, to be fixed by subsequent written agreement under the treaty of peace; that the written agreement made after the promulgation of the treaty established a rate of compensation applicable to all shipments of $215 for each civil, naval, and military officer, and $73.75 for all shipments of enlisted men and every other person treated as a prisoner by the United States, and that under the •finding in this behalf plaintiffs were properly paid the amounts received on the first five shipments.

The conclusion follows that the counterclaim of $371,988.75 must be rejected. Next, that under the written contract, plaintiffs are entitled to collect on the whole account $215 for each officer, civil and military, and $73.75 for each enlisted man and every other person treated as prisoners and transported as such. There results to plaintiffs the right to collect the full rate fixed for enlisted men and others for each child delivered as a prisoner to plaintiffs for transportation. That as to 198 persons not covered by quartermaster’s requisitions, but claimed by plaintiffs, to have been carried to Spain, nothing can be paid to plaintiffs, because they were not properly designated as prisoners or treated by the parties at the place of embarkation as persons entitled *365to passage at the expense of the United States; that as to 118 prisoners who died on the passage and 42 who stopped on the way plaintiffs are entitled to collect the rates fixed by the written contract, because the said plaintiffs are not responsible for the failure to deliver these persons on shore in Spain after the Government had imposed that duty upon them by delivery of these persons to the plaintiffs’ steamships. It follows from this conclusion that the second counterclaim of $12,778.75 must be rejected; that there was an overpayment for certain military officers and certain enlisted men, in excess of the number of officers and men actually transported, of $9,721.25, and as to this amount the defendant’s third counterclaim is sustained.

The total number of prisoners delivered aboard plaintiffs’ ships which were designated according to the contract at the place of embarkation to be transported.in accordance with the agreement was 17,305, of whom 1,938 were military and civil officers and 15,367 were enlisted men and other persons treated as prisoners of war by the United States. Plaintiffs have been paid under the parol agreement and the written contract $1,544,595. Deducting the amount of the third counterclaim and allowing for all naval, military, and civil officers at the highest rate named in the contract, and for all enlisted men and other persons at the lowest rate named therein, the total amount which plaintiffs are entitled to have for their services is $1,549,986.21. The net result found due and unpaid from the United States to the jfiaintiffs for all the services is $5,391.25, for which judgment will be entered.