#### ALEXANDER KISKADDEN, ADMINISTRATOR, v. THE UNITED STATES.

[No. 22953.

Decided February 1, 1909.]

*On the Proofs.*

During tbe civil war tbe claimant lets a wagon train to tbe Quartermaster’s Department for tbe transportation of supplies from Denv.er to Fort Union. Tbe train is in possession of and operated by tbe officers of tbe Government. A military, emergency requires extraordinary efforts to reinforce tbe fort. In consequence of forced marches a number of tbe claimant’s borses and mules are exhausted and have to be abandoned. Congress send tbe claim .to tbe couyt by a special jurisdictional act.

I.Where a contractor lets bis wagon train to tbe Government, it being in the possession of and operated by officers of the Quartermaster’s Department, it is a case of bailment, and the common law rule applicable to a similar bailment between ordinary persons is obligatory upon the Government.

II.The destruction of personal property under hire by the bailee amounts to a conversion, and proof of injury by the bailee makes a *prima facie*case of negligence on his part.

III. A military emergency unexpectedly requiring forced marches and injury to and abandonment of the bailor’s horses and mules does not relieve the Government from its responsibilities as bailee.

IV. The ordering of a board of survey at. the end of a forced march to estimate damage and loss to property carried with the expedition is proof 'that the march was unusual and_ severe.

V.The payment of the consideration of an express contract, about which there is no dispute, does not estop the contractor from asserting a demand for damages caused by the defendants. Neither can the payment, though receipted for in full, be considered as made in accord and satisfaction, nor as the compromise of a disputable demand.

VI.¡Where the military authorities take immediate possession of a contractor’s wagon train and it remains in their custody and control and is ultimately returned by them to the contractor the contract is one of hiring and not of service.

*206*The*Reporters’ statement of the case:

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

I. The claimant, Alexander Kiskadden, is a citizen of the United States, of lawful age, residing in the State of Ohio, and is the duly appointed and qualified administrator of the estate of William Kiskadden, deceased, a duly authenticated copy of which appointment is attached to the petition, and he is the jiroper party in interest herein.

II. On the 22d day of February, A. D. 1862, the said William Kiskadden, a citizen of the United States, residing in Denver City, Territory of Colorado, under the terms of a verbal contract with Captain S. H. Moer, Acting Assistant Quartermaster-General, United States Volunteers, furnished a transportation train of 32 teams of 4 mules or horses and mules each, with wagon and driver, to transport the camp and garrison equipage and public stores of the First Kegiment Colorado Volunteer Infantry from said Denver City to Fort Union, in the Territory of New Mexico. (Said train was to be returned to said William Kiskadden at Denver City and the United States was to furnish forage for said animals and rations and subsistence for the drivers.)

III. The public exigencies required the immediate delivery and performance of the services. Said outfit was procured by open contract and in the manner in which such services were usually engaged between individuals at such places.

IV. The said William Kiskadden furnished the United States under said contract 32 good and serviceable wagons, 128 good and serviceable mules and horses, and good harness for the same, with a man to drive each double team.

V. Said property was in the military service of the United States from February 22 to March 28, 1862, inclusive, and during said time was under the exclusive charge and control of Thomas Pollock, wagon master, forage master, and agent for said Captain Moer, and said William Kiskadden had no direction or authority over said train or said drivers.

All operations of troops, including progress on the march in which this property was used, were under the direction and sole control of Colonel Slough, commanding the First Kegiment of Colorado Volunteers. Neither Kiskadden, the *207owner, Captain Moer, the contracting officer, nor Thomas Pollock, the wagon master, had anything to do with the number of miles traveled per day, and fast driving and forced marches over long distances were made notwithstanding the repeated protest of Thomas Pollock wagon master and agent for Captain Moer, the contracting officer.

During the entire time stated herein the horses and mules received from Pollock and the drivers under his direction the best care possible under the conditions governing the march. The drivers furnished by William Kiskadden were responsible for the feeding and care of each team.

YI. Said wagons were heavily loaded from the start. They were in charge of a wagon master, Pollock, agent of Captain Moer, and were accompanied by James Kiskadden, a brother of the deceased claimant, who assisted in the care of the outfit. The heavy loading was necessary because there was no depot between Denver and Fort Union, and it was necessary to take along everything the troops and animals needed on the journey. The journey was contracted for and undertaken in the dead of winter with cold, windy, snowy weather prevailing in a mountainous country, through a barren and thinly settled region where there was little or no hay or rough forage, and where the water supply was poor and scanty, and where the roads over the Eaton Mountains were rough, hilly, and mountainous. It was the common knowledge of everyone that the expedition was for the relief of Fort Union. The deceased claimant, William Kiskadden, knew the general conditions under which the journey was to be undertaken when he made this contract.

On the journey the animals belonging to William Kis-kadden were fed and cared for by the teamsters furnished by him, and the best care possible under the extraordinary conditions governing such a march was given said animals, and the harsh treatment they suffered was in the number of miles they were compelled to go daily and the food and water they received. The ordinary wear and tear on teams and wagons in that season, over such a road, would be great.

The forage furnished for use of the horses and mules on this journey was necessarily carried on the wagons and con*208sisted of hard Mexican corn, which was the only kind of forage obtainable at Denver at the time the contract was made and the wagons loaded. This Mexican corn was dangerous to feed without rough forage, such as hay or fodder, which could not be obtained on the trail from Denver to Fort Union except in small quantities, and when procurable it was purchased or seized by the quartermaster and fed.

VII. The march to Pueblo, Colo., was an ordinary one and the train reached there in good condition. When said regiment and train was at Pueblo news was received that Colonel Canby and the Union forces had been defeated at Val verde, near Fort Craig, N. Mex., on February 21, 1862, and that the enemy was advancing up the Rio Grande River on Albuquerque and Santa Fe with the intention to march on Fort Union, the depot of military supplies for all that country. Col. John P. Slough, commanding said regiment, thereupon ordered a forced march to Fort Union.

VIII. Said regiment and train covered the entire distance of 225 to 275 miles from Pueblo to Fort Union in eight days. At Red River, 108 miles from Fort Union, said Colonel Slough, learning that the Union outposts at Fort Union had been driven in by the confederate forces, ordered the camp equipage and other property carried in said wagons to be unloaded and the sick and exhausted soldiers carried instead. The bows and covers on said wagons were thrown away and said teams were forced to cover the said distance of 108 miles in two days and one night. The teams traveled over 60 miles within one day..

IX. By reason of said wagons being overloaded and because of the poor and insufficient forage furnished on the march and because of the forced and unreasonable marching, thirty-six horses and mules died on the march or had to be abandoned before the train returned to Denver, and the rest were damaged and reduced in value and some of them permanently injured. All the wagons were damaged, the covers and bows having been thrown away by the soldiers, the wagon boxes eaten and destroyed by the animals because of want of sufficient forage or broken up by the soldiers for fuel in preparing food, and were otherwise depreciated in *209value. Some of .the harness was lost or abandoned before said train returned to Denver and the balance was damaged by reason of lack of care and attention and from the hard usage caused by the forced marching ordered by the commanding officer of said regiment.

X. By authority of an order duly issued by the commanding officer of said regiment a board of survey convened at Camp Slough, near Fort Union, N. Mex., March 14, 1862, to inquire into the condition of certain stock used in the transportation of the First Regimept, Colorado Volunteers,' to Fort Union, N. Mex., to ascertain the cost and value of certain stock alleged to have died en route, and to report their proceedings in writing to Lieutenant-Colonel Tappen, commanding said regiment. Said board met, pursuant to said order, and the following proceedings were had:

Camp Slough, N. M., *March H, 1862.*

Special order.

Capt. Cook,

“ Logan,

Lieut. Dickerson

are hereby appointed a board of survey to inquire as soon as possible into the condition of public stock used in transportation of the 1st Regt. Col. Vol. to Ft. Union, New Mexico, to ascertain the cause — value &c of certain stock alleged to have died on the route and to report their proceeding in writing to the Lieut. Col Tappin com. 1st Regt. Col. Vol.

Camp Slough Near Ft. Union *March ll¡.th 1862.*

The board met pursuant to the above order. Present all the members and proceeded to ascertain the cause of, and the amount of animales lost in the transportation of the 1st Regt. Col. Vol. while in march from Denver City, Col. Ter., to Ft.'Union, New Mexico.

After a careful examination of witnesses on oath the board find that 36 animales consisting of mules and horses were completely worn out and broken down from severe driving and want of forage and were unavoidably abandoned, they being unable to travel!

The board also find the following as being a fair, average valuation, viz:

33 Head of Muels 150 per head.

1 . “ “ 186 “ “

2 head of horses 283 “ “

*210The board attached no blame to J. C. Anderson, regimental quartermaster in charge.

The board having no further business before it adjourned signed die.

Capt. S. M. Logan,-

*President.*.

Lieut. E. Dickerson,

*Recorder.*

Approved.

Sam F. Tappen,

*Lt. Col. 1st Reg. Col. Vol.,*

*Commander.*

(Written upon the back of one page of above exhibit is the following) :

“ 5 head Red River, 3 died, 2 stray

“ 16 jayhawk — Pollock ”

XI. On account of the service rendered by William Kis-kadden, deceased, pursuant to the verbal agreement with Capt. S. H. Moer, assistant quartermaster, under which Kiskadden furnished the transportation facilities for transporting troops and supplies as stated, said William Kiskad-den was paid by the United States the sum of $13,440, being in full payment of the agreed contract price, for the period from the date of departure from Denver, Colo., February 22, 1862, to the date of return thereto, March 29, 1862, and for which vouchers were duly furnished, and receipts in full signed by William Kiskadden.

XII. Claimant suffered loss by reason of the premises aforesaid in the sum of $9,702 by the destruction and loss of thirty-six of said animals and by reason of damage to the balance of said transportation train, including wagons and harness. Said death, loss,' abandonment, destruction, and damage was without any fault or negligence on the part of the owner of said property and while it was actually employed in the service of the United States.

XIII. This claim was referred to the Court of Claims by act of Congress, approved on the 27th day of March, 1902 (32 Stat. L., 243),

*211*Mr. Alexander Kiskadden*and *Mr. Frederick C. Bryan*for the claimant:

1. The contract was not required to be in writing, and as the public exigencies required m immedate delivery, it was not necessary to advertise for proposals. That a public exigency existed the evidence is clear. *(Reeside*v. *U. 8.,*2 C. Cls. E., 1; *Mowry*v. *U. 8.,*2 C. Cls. E., 68; *Stevens*v. *U.*8., 2 C. Cls. E., 95; *Henderson*v. *Ü. 8.,*4 C. Cls. E., 85; *BurcMel*v. *U. 8.,*4 C. Cls. E., 594.)

2. There can be no question about the validity of the original contract. The United States received the use of the train and paid the stipulated price, which was a sufficient ratification, if any such was'needed. *(Danolds*v. *U. 8.,*5 C. Cls. E., 65.)

3. The loss, abandonment, and destruction of horses, mules, and harness was without any fault or negligence on the part of the owner of the property and while it was actually employed in the service of the United States. (Act of Mar. 3, 1849, sec. 2; U. S. Eev. Stat., sec. 3483; 10 Op. Atty. Gen., 21.)

There can be no question that the contract provided for the return of the teams to William Kiskadden in as good order as when received, ordinary wear and tear only excepted. *(Smith*v. *U. 8.,*9 C. Cls. E., 237.)

This case is like *Walton et*ad., v. *United States*(24 C. Cls. E., 372), in that it has been referred to this court by a special statute indicating that legal relief is intended, in which event, as the court there held, and which applies equally to this case, the liability assumed by the United States is that which would attach to a corporation or individual employer at common law.

4. Eeasonable wear includes only such decay or depreciation in value of the property as may arise from ordinary and reasonable use. *(Green*v. Kelly, 20 N. J. L., 547.) The use made of Kiskadden’s property was extraordinary and unreasonable. Eeasonable wear does not include total destruction of the property by a catastrophe which was never contemplated by either party. *(Manchester Bonded Warehouse*v. *Carr,*5 C. P. D., 507; see also 30 Am. & Eng. Ency. of L., 445.)

*212Driving or working a sick borse, one unfit for use, or continuing a journey in consequence of which a horse died, shows lack of exercise of ordinary care and makes the person responsible liable for the value of the horse. *(Thompson*v. Harlow, 31 Ga., 348; *Marshall*v. Bingle, 36 Mo. App., 122; *Conrad*v. Hildebrand, 69 Wis., 396; 3 Am. & Eng. Ency. L., 745.)

5. This court is supposed to know judicially the principal features of the geography of our country, and is bound to take notice of public facts, and of that which men of common information must know. It may sometimes be necessary to seek information from individuals whose official position or pursuits have given them opportunities of acquiring-knowledge, leaving it to the court to decide what weight is to* be given to information thus obtained. *(Fremont*v. *The United States,*17 How., 557; *Jones*v. *U. S.,*137 U. S., 202; *The*Montello, 11 Wall., 414; *The Apollon,*9 Wheat., 374; *Wood*v. *Fowler,*26 Kans., 687, cited in *United States*v. *Bio Grande Dam. c& I. Co.,*174 U. S., 698; *The Delaware,*161 U. S., 472; *Cosmos Co.*v. *Gray Eagle Co.,*190 U. S., 698; *Michigan Cent. R. B.,Co.*v. *Powers,*201 U. S., 300; *Banle of Ky.*v. *Express Co.,*93 U. S., 185; *Mills*v. *Green,*159 U. S., 657; *American Net <& Twine Co.*v. *Worthington,*141 U. S., 474; *Oakes*v. *United States,*174 U. S., 795.)

*Mr. Clark McKercher*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants:

1. Under the conditions shown by the evidence there can be no claim that there was any warranty, express or implied, for the safe return of this outfit. The contract as stated in Kiskadden’s affidavit is entirely silent on the subject.

In the Simpson case a claim was made for extra expense alleged to have been incurred by the contractors on a dry dock by reason of encountering unusual conditions in the soil not provided for in the contract. It was held that the contractor takes his own risk, even on unknown conditions. (31 C. Cls.; 240.) The Supreme Court sustained that view and added that a claim could not be founded on the complaint that the pecuniary result of a contract did not come up to the expectations of one of the parties, and that such a *213warranty as would relieve the claimant must be expressed in the contract. (172 U. S., 372.) •

The payment made represented the full contract price, and the same was accepted without protest and without any suggestion of a claim for damages. It is not claimed here that there is anything due on the contract price. This is wholly a separate claim for damages.

It has been held by this court that whatever claim a contractor may have for damages in the performance of a contract caused by the acts of the other party is a part of the contractor’s whole claim on account of the contract work, “ and should be asserted before he receives and finally receipts in full for the contract price. He can not settle and receive the contract price and then set up a separate claim for damages.” *{Andrews*v. *The United States,*16 C. Cls. R., 275, 276.) The same rule was announced by the Supreme Court in the case of *Francis*v. *The United*States, in which the claimant sought to recover damages on account of the expense of maintaining idle teams during the progress of a contract for hauling wood. There the claimant delivered the wood under the contract, collected. and received the contract price for the same, and gave receipts in full for the same as a transaction completed in pursuance of the contract. The Supreme Court sustained the judgment of this court, dismissing the petition on the ground that “ having since hauled and delivered the wood and received his pay in full for the same under the contract, it is too late to prefer such a claim against the United States.” (96 U. S., 358; see also the claim of Swift and the Niles Works, 14 C. Cls. R., 235.)

2. It is first important to note the distinction between a contract for hire and the contract in the case at bar, which was a contract for services of this outfit and the drivers. The service consisted of transporting the troops and supplies from Denver to Fort Union. As an indication of this, it may bé pointed out that there is nothing in the contract which would have prevented the claimant from carrying-supplies other than those belonging to the Government for a profit either in going to Fort Union or in returning to Denver. The difference is illustrated in the Starin case (31 C. Cls., 66, 89).

*214In the case of *Blach*v. *United States*(10 C. Cls., G03; 91 U. S., 267) it was contended that under a contract to haul army supplies from a certain point to other designated points, the contractor was entitled to pay for hauling the empty wagons to a point designated by the officer as a point of departure not mentioned in the contract. The court held that no compensation was due for hauling the empty wagons.

This being a contract for service to be rendered, it follows that without some express provision to the contrary no compensation is due for any journey upon which the service was not rendered, no matter how necessary the contractor might find the extra journey to be in order to comply with the contract.

It is held that where a contractor agrees to do work at a certain place his expenses in transporting teams, etc., to that place must be borne by himself in the absence of an agreement to the contrarjr, *(Chandler's case,*17 C. Cls., 1.)

The case at bar, when viewed as based on a contract for service, can also be brought within the principle that service necessarily incident to service specifically described in a contract is included in the contract without additional compensation. Where a pavement was to be taken up and replaced by new material the contract, although silent on the subject, contemplated hauling away the old material *(Taylor*v. *United*States, 17 C. Cls., 867), and so where necessary excavation is to be made *(Crowley'1 s*case, 20 C. Cls., 238).

On this contract for service and transportation the Government was no more liable for the care and preservation of the outfit, especially on the return journey, than it would be to a railroad for the wreck of a train upon which it had a similar contract, without any other stipulation, to carry the mail.

3. Another view of this case not heretofore considered may be taken. Whatever damage was sustained was entirely outside the contract, which was completed, closed, and all demands satisfied by the payment and acceptance of the contract price without protest or additional claim.

If, as contended by counsel for claimant, this damage was all due to the wrongful acts of the officers of the United States in driving these animals too fast without sufficient *215food, then the claim rests entirely upon a tort, notwithstanding the act of May 27, 1902. *{Langford*v. *The United*fStates, 101 U. S. ft., 345.)

Booth, J.,

delivered the opinion of the court:

This is a suit under a special jurisdictional statute. The claim is one for damages growing out of the alleged misuse of certain horses, mules, and wagons employed by the military authorities of the Government in February, 1862. During the progress of the civil war it became necessary to reenforce the garrison in charge of the federal supply depot at Fort Union, N. Mex. The most available troops for the purpose were then stationed near Denver, Colo., some 275 miles distant. Pursuant to a military order issued by Major-General ITunter, then in command of the Department of Kansas, directed to the governor of Colorado, the First Regiment Colorado Volunteer Infantry was immediately dispatched to Fort Union. The claimant’s decedent was engaged by verbal contract, made by lawful authority, to transport the camp equipage and public-stores of said regiment from Denver, Colo., to Fort Union; The contract called for, and the claimant furnished for the 'purpose, a transportation train of 32 teams, of four mules, or horses and mules, each, with suitable wagon and driver. The expedition started from Denver on February 22, 1862, and. notwithstanding the depth of snow and state of the weather, proceeded with ordinary dispatch until Pueblo, Colo., was reached.

At this point news was received that the Union forces had been defeated at Val verde, N. Mex., and the enemy advancing up the Rio Grande, with ultimate intention of marching upon Fort Uni°n> the only federal supply depot in this vicinity. This alarming intelligence imperatively demanded immediate haste upon the part of the colonel in command of the Colorado regiment, and forced and unusual marches were immediately ordered, and such celerity of movement obtained that the distance from Pueblo to Fort Union'was covered in eight days, a portion of the way being-over the Raton Mountains. In consequence of such strenuous service the wagon train of claimant’s decedent suffered severe injury, many of the horses and mules employed either *216died or were abandoned • en route, the wagons and harness were severely injured, and the horses, wagons, and harness were returned to the claimant considerably damaged. The contract placed the transportation train in the custody of the military authorities, forage was to be furnished by the latter, and it was under the supervision of Thomas Pollock, wagon master and agent of Capt. S. IT. Moer, Acting Assistant Quartermaster-General, U. S. Army. The service rendered, and subsequently paid for, extended from February 22, 1862, until March 28, 1862. A board of survey, ordered by the commanding officer of the regiment, inquired into the condition of this stock when it reached Fort Union, and its findings are set forth in detail in Finding X.

The special jurisdictional statute (32 Stat., 243) provides as follows:

> “ That full jurisdiction is hereby conferred upon the Court of Claims to hear and determine the claim of the personal representatives of William Kiskadden, deceased, against the United States for twenty-one thousand dollars, growing out of the alleged destruction of and damage to one hundred and twenty-eight head of horses and mule.s, thirty-two wagons, and sixty-four sets of harness belonging to the said William Kiskadden, resulting from the use of said teams under a contract made by the Government with the said William Kis-kadden to transport the First Regiment of. Colorado Volunteers from the city of Denver, Colorado Territory, to Fort Union, Territory of New Mexico, between the twenty-second day of February, eighteen hundred and sixty-two, and the twenty-eighth day of March, eighteen hundred and sixty-two; notwithstanding the lapse of time since such alleged destruction and damage. That upon petition being filed in said court, within six months from the passage of this act, by the personal representatives of said William Kiskadden, the court is authorized and directed to determine the merits of said claim, and to render judgment for the sum, if any, found due the personal representatives of said William Kis-kadden because of such destruction and damage to said horses, mules, wagons, and harness, with right to either party to appeal to the United States Supreme Court; and in the trial of said cause the affidavits on file in the War Department shall be received as competent evidence, and the finding of a board of survey (supervisors) convened at Camp Slough March fourteenth, eighteen hundred and sixty-two, that thirty-six of said animals, worn out and broken down from *217severe driving and want of forage, were abandoned before reaching Fort Union, if such finding be shown, shall be deemed and taken to be prima facie proof of the fact of such abandonment and loss: Provided, That in case judgment shall be rendered against the United States the Secretary of , the Treasury shall be, and he is hereby, authorized and directed to pay the personal representatives of said William Kiskadden whatever sum shall be adjudged by the court to be due out of any money in the Treasury not otherwise appropriated.”

The provisions of the foregoing statute, supplying, as it does, the essential testimony to establish the claim, reserve 'to the defendants a defense predicated wholly upon a detailed discussion of claimant’s testimony and the legal principles applicable thereto. Taking up these defenses in the order presented, it is first urged that the hazards attending the undertaking were fully known to claimant, that the contract wat made with full knowledge of the claimant that he was to accompany a military expedition, and he thereby assumed all the risks incident thereto. It is settled law that “ when a government enters into a contract with an individual it deposes, as to the matter of the contract, its constitutional authority and exchanges the character of a legislator for that of a moral agent with the same rights and obligations as an individual.” (3 Hamilton’s Works, p. 518; *Lyons*v. *United*States, 30 C. Cls., 352-361.) The contractor and defendant being mutually obligated under the agreement, the common law rule respecting an ordinary bailment obtained.

While the contractor knew that he was engaging to perform a service in connection with military forces of the Government, still there is nothing in the record to indicate that he had reasonable or just grounds to anticipate the total destruction of his property. There were no hostile forces in this immediate vicinity, he was not put in possession of any military secrets, and it is inconceivable that the contractor would, for the stipulated compensation, subject to misuse and destruction a valuable transportation train ordinarily used by him in private enterprise. It is elementary that the total destruction of personal property under hire to a bailee, *218by the latter, amounts to a conversion of the same. It is likewise elementary that the proof of injury to or destruction of personal property under hire to a bailee, by the latter, raises a prima facie case of negligence upon the part of the bailee, which it is incumbent upon the latter to overcome by a preponderance of the testimony.

In the case at bar the findings disclose that this military expedition proceeded by ordinary stages until interrupted by the intelligence of federal reverses and a probable danger to the base of Union supplies. The relieving expedition at the time was many miles from its final destination, and the subsequent events set forth in the findings conclusively show that the military necessities of the hour compelled a disregard of rights of property and, to some extent, human life. The ordering of a board of survey to estimate damage and loss to property carried with the regiment is conclusive proof that the forced march was unusual, severe, and attended with much hardship.

It is next contended that the payment of and receipt in full for the compensation agreed on between the parties, without protest, estops the assertion of the present claim. This case differs from the case of *Andrews*v. *United States*(16 C. Cls. R., 274). In the Andrews case the damages claimed are incident to and part of the contract itself. The controversy arose out of an alleged failure upon the part of the Government to perform a certain obligation imposed upon it by the express terms of the contract. The court said (p. 275) :

> “ But had there been any such delay, the claimant could not demand damages therefor, since he made no complaint at the time; nor did he make any demand or request for a speedier location of the site; nor did he express any objection to the location, except that which had reference to the depth of the water; and that objection was promptly yielded to by the government officers by the selection of another site. On the contrary, he went straight on with the contract work, and, as it turned out, furnished four times the quantity of stone originally estimated for; and was paid the contract price for all that he furnished; and so the transaction was closed without objection on his part.”

It is quite apparent that the rule so stated has no application here. The action here is independent of the contract, *219an action ex delicto, arising out of the negligence of the defendant in carelessly destroying and injuring claimant’s property. Certainly it can not be held that the payment of an express amount due under a contract, about which there is no dispute, although receipted for in full, estops the assertion of claim for damages arising independent of the same. It can not be considered an accord and satisfaction; for no new contract was substituted for the old one; the old one was executed and nothing remained except to pay the consideration agreed upon.

A receipt, though purporting upon its face to be conclusive, is subject to explanation and contradiction as between the parties thereto, in absence of intervening rights. What consideration passed to support the relinquishment by the claimant to the defendant of his cause of action ? There was no compromise, thé claimant received his due under the agreement, and it is clearly indisputable that the creditor has a legal right to payment of debts due him, in strict accord with the obligation entered into, in whole or in part, and when he so receives it, he receives only that to which he is entitled under the law, and the transaction can not be so construed as to support a promise not to pursue his remedy for injuries occasioned independent of the contract. There is no consideration to support such a promise. (Page on Contracts, 468, and authorities there cited; *Murdock*v. *District of*Columbia, 22 C. Cls. R., 464.) Receipts given and settlements made in contradiction of the above rule are the results of controversies compromised by the parties thereto.

The contract was one of hire and not of service. The military authorities took immediate possession and control of claimant’s property, which was under the direction of the commanding officer of the regiment, and was returned to the owner by the wagon master of the regiment. The defendant so construed the contract and paid accordingly, as the vouchers indicate.

The jurisdictional statute makes the findings of the board of survey, convened March 14, 1862, prima facie proof of the facts recited therein, and to this extent fixes, as per Finding X, the value of the horses and mules lost or abandoned *220at $5,702. Some animals were lost or abandoned on the return journey, just bow many it is impossible to determine.

The record sustains a total damage to property, in addition to ordinary wear and tear, of $9,702, for which amount judgment will be awarded the claimant.

Howery, J., was absent and took no part in this decision.