#### J. M. CEBALLOS v. THE UNITED STATES.

[42 C. Cls. R., 318; 214 U. S. R., 47.]

*On the claimant's Appeal.*

After the protocol, August 12, 1898, for 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 claimant’s 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 the 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 fifteen 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 *599and 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 than 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.

The court below decides:

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 writing."*Contracts made in emergencies and under exigencies need not be reduced to writing nor await advertising for bid (Rev. Stat., §§ 3709, 3723), and a commanding officer in conquered country, or the Secretary of War, 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.

IY. 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.

Y. 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 authorities offered for transportation. Their rights depend upon the contract and not upon a proper interpretation of the treaty of Paris.

' YI. 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.

*600VII.TRe defendants were not responsible for tlie 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 “ *each 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 and 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 the account examined and adjusted by the court.

The decision of the court below is reversed in part on the ground that the court erred in holding that the wives and children of Spanish officers, civil and military, and other noncombatant prisoners of war transported as first-class passengers and afforded cabin accommodations aboard ship were to be paid for at the third-class rate specified in the contract, to wit, $73.75.

Mr. Justice White delivered the opinion of the Supreme Court May 17, 1909.