#### STATE OF NEW YORK v. THE UNITED STATES

[No. 34022.

Decided February 23, 1926]

*On the Proofs*

*Contract with National Guard of New Yorlc; delivery to Federal Government; Mobility of Federal Government to the State.*— A contractor agreed with the National Guard of the State of New York to rent to it certain horses and mules, those not returned to be paid for at a price stipulated. Before delivery of the animals certain units of the National Guard of the State of New York were called and mustered into the service of the United States. Some of the animals thus contracted for were taken over from the contractor by an officer of the Regular Army of the United States, who had been duly authorized to purchase horses for National Guard units in Federal service. The United States paid to the contractor the contract price for a part of the animals thus taken over, after the said contractor had stipulated with the State of New York that such payment should not prejudice his rights against the State. Thereafter the contractor, by suit, recovered from *738the State the contract price including rental of the remaining animals taken over by the Federal Government and not paid for. *Held,,*that the State could recover from the United States the reasonable value of the animals so taken over from the contractor and not paid for, but not including hire.

*The Reporter's*statement of the case:

*Mr. William B. King*for the plaintiff. *Messrs. George R. Shields*and *Albert Ottinger*and *King db King*were on the briefs.

*Mr. James J.*Lenihan, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. In the spring of 1916, the military authorities of the State of New York, acting for the governor of said State, planned to mobilize all the units of the National Guard of said State for maneuver exercise and training instruction at Camp Whitman, Greenhaven, New York, for a period of 15 days during the month of July of that year. The necessary expenses for the equipment of such troops were to be paid from funds provided by the Federal Government.

.II. On the 25th day of May, 1916, the chief of the Quartermaster Corps of the National Guard of the State of New York advertised for sealed proposals for furnishing horses and mules for the use of State troops during mobilization and in response to such advertisement a proposal was received from one B. Lawrence Smith, 17 Battery Place, New York City, in the following terms:

Max 25, 1916.

Chief Quaeteem a ster DivisioN, N. G., N. Y.

Sir: I hereby agree to furnish 1,034 draft horses (artillery), 691 saddle horses (cavalry), and 508 mules, draft, from on or about July 1, 1916 to on or about July 24, 1916, with the understanding that these animals will be hired by the State of New York at the rate of $8 per day per animal, for a period of at least 16 days, and not to exceed 16 days, and will be foraged by the State for a period of at least 21 days, and not to exceed 21 days. All amounts due by the State under this contract shall be paid not later than 30 days from the date of termination of the term of hiring. It is understood that all animals furnished will be suitable and thoroughly broken for the purpose intended.

*739They shall be inspected by inspectors of the National Guard, either at Jersey City or in New York, at such times as may be designated by me, and all animals accepted shall be returned at the end of the period of hiring in as good condition as when delivered. Any animals not returned shall be paid for at prices hereinbelow quoted.

The State or National Guard of the State shall have the-privilege of purchasing any or all of said animals at the expiration of the term of hiring at the following prices, to wit:

Artillery horses at $165 each; cavalry horses at $140 each; large mules at $175 each; small mules at $160 each.

If the foregoing is satisfactory kindly indicate your acceptance of the same below.

Very respectfully yours,

R. LaweeNCe Smith,

*17 Battery*Place, *N. Y. Gity.*

Approved :

Chas. I. De Bevoise,

Colonel, *1st Cavalry.*

Said proposal was accepted by the chief of the Quartermaster Corps of the National Guard of New York on the 13th day of. June, 1916, and was duly filed in the office of the Comptroller of the State of New York and approved by him.

Another proposal for furnishing additional horses and mules was received from said R. Lawrence Smith by the Chief of the Quartermaster Corps of the National Guard of New York as follows:

“ Chief, QtjarteRmaster Division, N. G., N. Y.

“Sirs: I hereby agree to furnish 2,640 saddle horses (cavalry), and 1,627 mules, draft, from on or about July 1,1916, to on or about July 24,1916, with the understanding that these animals will be hired by the State of New York at the rate of $3 per day per animal, for a period of at least 16 days and not to exceed 16 days and will be foraged by the State for a period of at least 21 days and not to exceed 21 days. All amounts due by the State under this contract shall be paid not later than 30 days from the date of termination of the term of hiring. It is understood that all animals furnished will be suitable and thoroughly broken for the purpose intended.

“ They shall be inspected by inspectors of the National Guard either at Jersey City or in New York, at such times *740as may be designated by me and all animals accepted shall be returned at the end of the period of hiring in as good condition as when delivered. Any animals not returned shall be paid for at the prices hereinbelow quoted.

“ The State or National Guard of the State shall have the privilege of purchasing any or all of said animals at the expiration of the term of hiring at the following prices, to wit:

“Artillery horses, at $165.00 each; cavalry horses, at $140.00 each; large mules, at $175.00 each; small mules, at $160.00 each.

“If the foregoing is satisfactory, kindly indicate your acceptance of the same below.

“ Very respectfully yours,

“ 17. LaweeNoe Smith,

*“17 Battery Plaice, N. Y. City.*

“ Approved:

“ Chas. I. De Bevoise,

“ *Colonel, 1st Cavalry.*

“ Entered 6/30/16.

“ Approved July 10, 1916. ct

*a Deputy State Comptroller,*

“ *United Chapter §1$, Laws 1913P*

Said proposal was duly accepted by the Chief of the Quartermaster Corps, National Guard of the State of New fork, on the 25th day of June, 1916, and was duly filed in the office of the Comptroller of the State of New York and approved by the deputy comptroller.

At the time of acceptance of the proposals the Chief of the Quartermaster Corps, National Guard of the State of New York, was acting strictly in his capacity as an officer of the National Guard and had not been mustered into the service of the United States.

The number of animals covered by the two proposals was 3,331 cavalry horses, 1,034 artillery horses and 2,135 draft mules, a total of 6,500 animals.

III. On the 18th day of June, 1916, the Secretary of War, acting by authority of the President of the United States, addressed to the Governor of the State of New York the following telegram:

*741JuNE 18, 1916.

Hon. Chakles S. Whitman, Albany, *N. Y*

Having in view the possibilities of further aggression upon the territory of the United States and the necessity for proper protection of the same, the President has thought proper to exercise the authority vested in him by the Constitution and laws and to call out the Organized Militia and the National Guard necessary for that purpose. I am consequently instructed by the President to call into the service of the United States forthwith through you the following units of the Organized Militia and the National Guard of the State of New York, which the President directs shall be assembled at the State mobilization camp at New Dorp (or at a place to be designated to you by the commanding general, Eastern Department) and for muster into the service of the United States as follows:

One division of three brigades of three regiments each of Infantry.

One regiment, one squadron, and one machine group troop of Cavalry.

Two regiments of Field Artillery.

Two battalions of Engineers.

One battalion of Signal Corps.

Three field hospitals.

Four ambulance companies.

Organizations to be accepted into the Field Service shall have the minimum peace strength now prescribed for Organized Militia. The maximum strength at which organizations will be accepted and to which they should be raised as soon as possible- is prescribed in section 2, Tables of Organization, United States Army. In case any regiment, battalion, or squadron now recognized as such contains an insufficient number of organizations to enable it to conform on muster to Regular Army organization tables, the organization necessary to complete such unit may be moved to Mobilization Camp and there inspected under orders of the department commander to determine fitness for recognition as Organized Militia by the War Department. Circular 19, D. M. A., 1914, prescribes the organization desired from each State as part of the local tactical division and only these organizations will be accepted into the service.

It is requested that all officers of the Adjutant General’s Department, Quartermaster Corps, and Medical Corps, duly recognized as 'pertaining to State headquarters under Table 1, Tables of Organization,' Organized Militia, and any elsewhere required for duty in State administration, be ordered to camp for duty, as camp staff officers. Such num*742ber of these staff officers as the department commander shall determine may be mustered into the service of the United States for the purpose of proper camp, adminstration and will be mustered out when their services are no longer required. Where recognized brigades or divisions are called into the service from a State the staff officers pertaining to these units under Tables of Organizations, United States Army, will be mustered into service, and also the authorized inspectors of small-arms practice pertaining thereto. Except for these two purposes and mobilization camp service, and the prescribed staff service with tactical units, officers of State headquarters under Table 1, above mentioned, will not be mustered into service at this time. If tactical divisions are later organized the requisite additional number of staff officers, with rank as prescribed for division staff, will, as far as practicable, be called into service from those States which have furnished troops to such divisions. Acknowledge.

(Signed) Bakee,

*Secretary of War.*

The call for National Guard troops as thus made was enlarged by the addition of other specified units on June 28 and 29 and July 11 and 19.

The Governor of the State of New York, acting through the military authorities of said State, complied with the requirements of this telegram and ordered the National Guard of the State to assemble in accordance therewith.

IV. The contracts had by the State- with R. Lawrence Smith for the necessary supply of horses and mules for the use of its troops fixed a fiat rate of hire of $3 per day for each animal accepted and used by the State with an agreed price per animal in addition, for each class of animals involved, which the State should elect to keep or otherwise fail to return.

At the time the State troops were being mobilized for muster into the Federal service, Colonel Bellinger, who was quartermaster of the Eastern Department of the Army, was advised as to the existence and terms of said contracts.

Y. On receipt of the orders of the President of the United States as promulgated by telegram from the Secretary of War set forth in Finding III, the Chief of the Quartermaster Corps of the National Guard, State of New York, act*743ing for the governor, called upon R. Lawrence Smith, to anticipate the dates of delivery specified in his contracts with the State and begin the delivery of horses and mules thereunder with the utmost dispatch.

R. Lawrence Smith complied with the orders of the State authorities and began at once the delivery of horses and mules to the State, such deliveries being in advance of the dates specified in his contract.

On June 30, 1916, shipment of animals to the State was stopped by order of the chief of the quartermaster corps from headquarters division National Guard before Smith had completed delivery of the full number of animals called for by his contracts, such stoppage of deliveries being occasioned by the hurried departure of troops for duty on the Mexican border.

All transactions had by Smith with reference to the horses and mules covered by his contracts with the State were with Col. H. S. Sternberger, Chief of the Quartermaster Corps of the National Guard, State of New York, and all deliveries of animals under such contracts were at times and places and to the persons designated by Colonel Stern-berger.

YI. On June 25, 1916, The Adjutant General of the Army, Gen. Henry P. McCain, telegraphed the commanding general Eastern Department at Governors Island, N. Y., as follows: “ Reference your telegram June 24, you will authorize your department quartermaster to purchase in open market such number of animals as may be required to equip the militia troops of New York, New Jersey, and Massachusetts, in accordance with the method outlined by you in your telegram above referred to, at prices not to exceed following: Cavalry horses, one hundred forty dollars each; Field Artillery horses, one hundred sixty-five dollars each; mules, lead, one hundred sixty dollars each; mules, wheel, one hundred seventy-five dollars each. Inspections and purchases will be made under supervision of your department quartermaster.”

On June 29, 1916, the Quartermaster General of the Army, Gen. Henry G. Sharpe, telegraphed the department quartermaster at Governors Island, N. Y., directing him to *744purchase “ not exceeding ten hundred ninety-six cavalry and riding horses, ten hundred thirty-three artillery 'horses, three hundred sixty-three wheel, three hundred sixty-three lead, and on hundred fifty-two pack and riding mules for New York troops ” and directing him further that “ prices must not exceed one hundred forty dollars each for cavalry, one hundred sixty-five dollars each for artillery, one hundred sixty dollars each for lead mules, and one hundred seventy dollars each for wheel mules, as stated in Adjutant General telegram June twenty-fifth.”

VII. In two telephone conversations on successive days between the Chief of the Quartermaster Corps of the New York National Guard and Colonel Bellinger, the quartermaster of the Eastern Department, United States Army, the latter was informed of the contracts with Smith and their terms and on the day of the second conversation a copy of these contracts was sent to Colonel Bellinger. In the first conversation, when informed as to the contract price for such horses and mules as were not returned Colonel Bellinger expressed the opinion that the prices were reasonable and said that they would be taken over by the United States.

After the receipt of the telegrams referred to in the preceding finding the commanding general of the Eastern Department of the Army appointed certain boards of officers known as “ horse boards ” to inspect and purchase animals for troops of the National Guard of New York. All of the officers so appointed and serving on said horse boards were officers of the Regular Army, except Col. Charles I. De Bevoise, who was a colonel of the First New York Cavalry, mustered into the Federal service on June 30, 1916, and Lieut. Col. J. C. McLeer, who was a lieutenant colonel of the First New York Cavalry,' mustered into the Federal service on June 30, 1916, but, both of whom were in the Federal service at the time of their service on these horse boards.

Thereafter animals arriving for delivery to the State of New York by Smith under said contracts, were by direction of the chief of the quai'termaster corps of the State, and to the extent hereinafter shown, turned over to said Army *745inspection boards and such animals as passed inspection were accepted into the service of the United States, branded “ U. S.,” and delivered in the various units formerly of the National Guard, but now mustered into the service of the United States as necessary equipment preparatory to their service on the Mexican border.

VIII. Smith delivered, where directed by the Chief Quartermaster of the New York National Guard, under his said contracts with the States of New York, a total of 4,523 animals,-2,422 of which were returned to him by the State and 51 of which died. The remaining 2,050 were taken over by the United States and consisted of -1,294 horses and 756 mules.

IX. After deliveries had been completed by Smith under his contracts his representative solicited payment of the quartermaster of the New York National Guard, who suggested that perhaps payment would be made direct by the United States, and it was ascertained that this would be done to the extent of the value of the animals taken and that vouchers had been prepared for execution by Smith; but before accepting any payments from the United States Smith addressed to the adjutant general of the New York National Guard a letter as follows :

E. Laavrence Smith, 17 Battery Place,

*New York, July 26,1916.*

Telephone Sector 5071.

ADJUTANT GENERAL Lours Stotesbury, N. G., N. Y.

*Beekman, New York.*

Dear Sir : The Federal Government is proposing to make certain payments to me for horses and mules taken by it from among those furnished by me to the State of New York under my contracts with said State dated May 25, 1916, and June 25, 1916, and proposes that such payments be accepted by me on account of the amounts due from the State under those contracts. Before accepting such payments I desire to haAe it understood that I am not to be considered as waiving my claim for hire for the full period of 16 clays piwided for by the contracts for the horses furnished thereunder, nor for forage for such horses for the period of 21 days as provided in such contract, in addition to the purchase price of the horses as stipulated in the contracts.

*746Will you kindly confirm by note to the messenger who delivers this letter my understanding that there was nothing in the arrangement under which the Federal Government took said horses which in any way militated against my claim as above stated?

Very respectfully yours,

E,. LawkeNCe Smith.

To which the adjutant general replied as follows:

State oe New York,

The Adjutant General’s Oeeice, Albany,

*Gamp "Whitman, July £6,1916.*

Mr. E. Lawrence Smith,

*17 Battery*Place, *New York Gity:*

Dear Mr. Smith: I have your note of this date and in reply will say that you are at liberty to accept any payments the Federal Government is willing to make on account of contracts you hold with the State of New York for horses and mules. This without prejudice to any claim that you may have to assert or that may have to be maintained on the part of the State relative to the obligation of payment, of hire or rejection upon inspection of any of the animals offered under the contract.

Yours very truly,

Lotos W. Stotesbury,

*The Adjutant General.*

Thereafter upon public vouchers duly signed by Smith he was paid by checks drawn upon the Treasurer of the United States, $287,865 for 1,826 animals being—

568 Cavalry horses, at $140__$79, 240

604 Artillery horses, at $165_ 99,660

267 wheel mules, at $175_ 46, 725

389 lead mules, at $160_ 62,240

1, 826 287, 865

These vouchers, four in number, were prepared at Army headquarters at Governors Island and sent to Smith for signature and were signed by him after the correspondence with the adjutant general hereinbefore set out. They were paid in full and it does not appear that Smith ever presented any other vouchers to the United States for payment or in any other way made any further claim against the United States.

*747X. Of the horses and mules furnished to the State of New York by Smith pursuant to his said contracts the United States took over 124 cavalry horses and 100 mules, 50 of which were wheel mules and 50 of which were lead mules, for which the United States has not made any payment.

The contract prices under Smith’s contracts with the State of New York for cavalry horses was $140 each, for wheel mules $175 each, and for lead mules $160 each, which were also the prices which officers of the United States directed to purchase such animals were authorized to pay and which were also the reasonable values of such animals at the time they were taken over by the United States.

At such values said 124 cavalry horses and said 100 mules were worth $34,110.

XI. B.. Lawrence Smith paid for forage of animals delivered by him under his said contracts at the Jersey City and the Sixtieth Street stockyards the sum of $26,132.70, and for miscellaneous items of expense in connection with said animals the sum of $4,529.88, which sums were recovered by him from the State of New York in the suit hereinafter referred to.

XII.. Thereafter, in pursuance of the statutes of the State of New York, said It. Lawrence Smith sued the State in the Court of Claims of the State of New York for the sum of $294,191, with interest thereon, claiming that said sum and interest were due him from the State under said contracts.

The Court of Claims of the State of New York referred the claim to Hon. Willard Bartlett, official referee of the State, to hear, try, and determine the same.

On September 4, 1917, the State of New York by its attorney general, served notice upon the Attorney General of the United States of the pendency of said suit and called upon said Attorney General of the United States to assist in the defense of the suit.

The Attorney General of the United States by letter of September 11, 1917, to the attorney general of New York, declined to enter an appearance or to take any part in the defense of the suit, stating that in his view there was no liability on the part of the United States, and stating *748further that even if there were liability on the part of the United States, he doubted his authority to take part in defending proceedings in the State court.

Said official referee on the 17th day of November, 1917, reported to said Court of Claims of New York his findings of fact and conclusions of law. Among said findings of fact were the following:

“IV. That under and in pursuance of the provisions of said contracts plaintiff furnished and delivered to the defendant from June 22, 1916, to July 3, 1916, one thousand seven hundred and six (1,706) cavalry horses, one thousand three hundred and nine (1,309) artillery horses, three hundred and seventy-two (872) wheel, or large, mules, and one thousand one hundred and thirty-six (1,136) lead, or small, mules; that at the request of the duly authorized agents of the defendant, the plaintiff commenced the delivery of said animals June 22, 1917, instead of July 1, 1916, as called for by said contracts.

“ V. That of the said animals so delivered the defendant retained the following:

“ Five hundred and sixty-six cavalry horses, 774 artillery horses, 372 wheel, or large, mules, 389 lead, or small, mules.

“ VI. That the total of the prices agreed' in and by the said contracts for the purchase of the horses so retained is as follows:

566 cavalry horses at $140.00_$79,240. 00

774 artillery horses at $165.00_127, 710.00

372 wheel mules at $175.00_ 65,100. 00

389 lead mules at $Í60.00_:_ 62,240. 00

Total___ 334; 290.00

“VII. That in said contacts the defendant agreed that all animals delivered thereunder would be hired by the defendant at the rate of $3 per day per animal for a period of at least sixteen (16) days and not to exceed sixteen (16) days; that the total number of animals delivered, as found in No. IV hereof, was four thousand five hundred and twenty-three (4,523), and that the total amount of hire thereof, as provided in said contracts, is two hundred and seventeen thousand one hundred and four ($217,104) dollars.

“ VIII. That in said contracts it was provided that all animals delivered to the defendants thereunder would be foraged by it for a period of at least twenty-one (21) days and not to exceed twenty-one (21) days; that after the delivery of said animals to the defendant and while the same or a portion thereof were at the various stockyards await*749ing removal therefrom by defendant, the plaintiff paid forage for each of said animals at the rate of fifty-five (550) cents a day, for and on behalf of the defendant, which was a fair and reasonable amount for such purpose, and that the total amount so paid by the plaintiff was twenty-six thousand one hundred and thirty-two and 70/100 ($26,132.70) dollars.

“ IX. That between June 26, 1916, and October 6, 1916, plaintiff paid out and expended at the request and for the account of the defendant, various sums of money for sundry supplies used in connection with said animals after their delivery to the defendant as heretofore found, such expenditures being for forage supplied at different points and not covered in Finding No. VIII, freight charges in moving the animals from the stockyards to points designated by the defendant, halters, veterinary services, .and medicines.

“That said expenditures aggregated the sum of four thousand five hundred and twenty-nine and 98/100 ($4,-529.98) dollars, and were reasonable in amount.

“ X. That the said contracts entered into between the plaintiff and defendant provided that all amounts due from the defendant thereunder should be paid not later than thirty (30) days from the date of termination of the hiring period; that all of the animals delivered to the defendant as above found were delivered not later than July 3, 1916; that the termination of the hiring period was July 19, 1916, and such amounts as became due from defendant to plaintiff under said contracts were payable August 19, 1916.

“ XI. That the amount of four thousand five hundred and twenty-nine and 98/100 ($4,529.98) dollars set out in Finding No. IX, was included in the demand served by plaintiff on the adjutant general of the State of New York, and rejected by him on November 29, 1916.

“ XII. That the total amount of the contract price for the animals retained by the defendant, as above found, is three hundred and thirty-four thousand, two hundred and ninety ($334,290) dollars; that the total amount of the item of hire for the animals delivered by plaintiff to defendant, as stipulated in said contracts and above found, is two hundred and seventeen thousand, one hundred and four ($217,104) dollars; and the amount paid by the plaintiff for forage of the animals delivered to defendant, and as above found, is twenty-six thousand one hundred and thirty-two and 70/100 ($26,132.70) dollars; that the total of all of said amounts is the sum of five hundred and seventy-seven thousand, five hundred and twenty-six and 70/100 ($577,526.70) dollars.

*750“XIII. That no payment has been made by defendant or by anyone in its behalf on account of the foregoing amount claimed by plaintiff, except that on the 7th day of September, 1916, plaintiff received from the United States Government the sum of two hundired and eighty-seven thousand, eight hundred and sixty-five ($287,865) dollars' leaving a balance of two hundred and eighty-nine thousand six hundred and sixty-one and 70/100 ($289,661.70) dollars, which, added to the said item of four thousand five hundred and twenty-nine and 98/100 ($4,529.98) dollars, makes a total of two hundred and ninety-four thousand one hundred and ninety-one and 68/100 ($294,191.68) dollars, and which is the amount claimed by the plaintiff in this action, with interest.

“ XIY. That said payment of two hundred and eighty-seven thousand eight hundred and sixty-five ($287,865) dollars, made by the United States Government, was accepted by the plaintiff with the consent and approval of the adjutant general of the State of New York, and without prejudice to the said claim of the plaintiff against the defendant.

“ XY. That the claim of plaintiff has not been assigned, and has not been submitted to any other tribunal or officer for audit or determination, except that it has been submitted to the adjutant general of the State of New York and was rejected by him on November 29, 1916.

“ XYI. That on December 8, 1916, plaintiff filed in the office of the clerk of the Court of Claims and with the attorney general a written notice of intention to file his said claim against the defendant, as required by section 264 of the Code of Civil Procedure.”

Said official referee found as a conclusion of law as follows:

“ 1. That by reason of the foregoing findings of fact the plaintiff, E. Lawrence Smith, is entitled to a judgment against the defendant, the State of New York, for the sum of two hundred' and ninety-four thousand one hundred and ninety-one and 68/100 ($294,191.68) dollars, with interest on two hundred and eighty-nine thousand six hundred and sixty-one and 70/100 ($289,661.70) dollars, from August 19, 1916, and on four thousand five hundred and twenty-nine and 98/100 ($4,529.98) dollars, from November 29, 1916, and I direct that judgment accordingly shall be entered in the .office of the clerk of the Court of Claims.

*“*Dated, November 17th, 1917.”

*751Thereupon on the 21st day of November in the year 1917, said Court of Claims of the State of New York, after reciting the proceedings, entered the following judgment:

“ Now, therefore, it is ordered and adjudged that E. Lawrence Smith, the above-named claimant, recover herein against the State of New York the sum of two hundred and ninety-four thousand one hundred and ninety-one and 68/100 dollars ($294,191.68), with interest on two hundred and eighty-nine thousand six hundred and sixty-one and 70/100 dollars ($289,661.70) from August 19, 1916, to the 21st day of November, 1917, to wit: $21,821.18, and on four thousand five hundred and twenty-nine and 98/100 dollars ($4,529.98) from November 29, 1916, to the 21st day of November, 1917, the date of the entry of this judgment, to wit: $265.76, amounting in all to the sum of three hundred sixteen thousand two hundred seventy-eight and 62/100 dollars ($316,278.62) in full settlement of said claim.

“ Dated Albany, N. Y., November 21, 1917.

“FREDERICK D. COLSON,

“ *Glerh of the Court of Claims.”*

Said judgment was paid in full by the State of New York to said Smith.

The court decided that plaintiff was entitled to recover, in part.

DowNey, Judge,

delivered the opinion of the court:

In 1916 the State of New York, in preparation for the annual encampment of its National Guard to be held in July, advertised for and received bids and entered into contracts with E. Lawrence Smith for horses and mules for the use of its troops during such encampment. The contracts were primarily on a hiring basis at a rate of $3 per day for 16 days for each animal, but they also provided for foraging by the State for 21 days, for the right to purchase at the expiration of the 16 days at stated prices, and for payment at those prices for all animals which for any reason the State should not return.

On June 18, 1916, due to the Mexican situation, the President, through the Secretary of War, instructed the Governor of New York to assemble certain units of the National Guard of that State for muster into the Federal service and other units were thereafter included.

*752The governor complied with these instructions and the Chief of the Quartermaster Corps of the New York National Guard requested Smith to anticipate deliveries under his contracts and make same as rapidly as could be done. Smith complied with this request and commenced deliveries within a few days thereafter, the first delivery being made on June 23. Deliveries were at such stockyards as were directed by the Chief Quartermaster of the National Guard.

The commanding general of the Eastern Department of the Army, located at Governors Island, was authorized by the Adjutant General to purchase horses for the use of the militia troops of several Eastern States and the department quartermaster was authorized by the Quartermaster-General to purchase certain numbers of certain classes of animals for the New York troops at stated prices.

The commanding general of the Eastern Department appointed a number of boards of officers called “ horse boards ” to inspect and accept horses and mules and they at once became active. It was known that Smith was delivering large numbers of horses and mules under contracts he had with the State and this immediate source of supply was very naturally resorted to by the boards which were inspecting and taking over the stock necessary to supply the needs of the New York troops. It is hardly probable that these boards gave any thought to the question as to whether these horses and mules were being taken from Smith or from the State of New York. They were concerned only with getting the necessary stock and getting it quickly so that the troops might be on their way.

Smith delivered in all 4,523 animals, of which the State returned to him 2,422, and 51 of which died, leaving 2,050 not returned. The United States tendered to' Smith prepared vouchers for execution by him covering payment for 1,826 animals in the aggregate sum of $287,865, which he executed only after stipulating with the adjutant general of the State that he might accept this amount direct from the United States without prejudicing his claim against the State under his contracts. This left 224 animals, 124 horses and 100 mules, of those which we have found were taken over *753by the United States for which the United States has not paid.

Smith sued the State under his contracts for the use of the animals delivered, their forage and for the value of those not returned, crediting against his claim the $287,865 which he had received from the United States. The findings of the referee fully sustained his claim and, based thereon, he was given judgment for $294,191.60, with certain allowances of interest which increased the amount of the judgment to $316,278.62, and the amount of this judgment was paid to him by the State. This judgment included the ascertained value at contract prices, which we have also determined to be the reasonable value, of all animals not returned, less the credit of $287,865, and therefore of necessity included the value of the 224 animals taken over by the United States and not paid for.

So far as these 224 animals are concerned the case is largely one of fact dependent for its solution on a rather voluminous record full of details and by no means free from complications. It is not strange that apparent discrepancies in accounting should appear in a transaction conducted as was this under the stress of an emergency and with many different “ horse boards ” operating day and night at' different localities. Rather is it strange that in the midst of all these complications the conclusion may finally be so satisfactorily reached. The 124 horses are claimed for as artillery horses and upon the question of their classification the record is not entirely satisfactory. There is basis for the claim as made but the better sustained conclusion seems to be that they were cavalry horses and we have so found.

Passing the determined question as to whether the United States got these 224 animals for which it did not pay, we find it contended that all animals taken over by the United States were taken from Smith and that the State has therefore no right to recover. The fact that Smith signed vouchers for 1,826 animals and received payment therefor of $287,865 from the United States is strongly urged. The facts appear in the findings and to us they seem to sustain a different conclusion. They indicate clearly as do all other *754facts bearing at all on the question that Smith regarded himself at all times as dealing with the State under his contracts. There was a large sum of money involved and he no doubt wanted to be paid what was due him but when informed that Government vouchers were ready for his signature on which he could obtain a considerable payment he refrained from signing these vouchers until he had taken the matter up with the State authorities and been assured that he might receive this payment and credit it on his claim without prejudicing his rights under his contracts with the State.

It is not to be contended that there was such a delivery of these animals to the State as vested ownership but the ultimate effect so far as liability is concerned was the same. There was delivery under direction of the chief quartermaster of the State for the use of the State under contracts which obligated the State to pay for such animals as it did not return. The State was in the first instance but a bailee obligated to pay an agreed hire but when it failed to return the property liability for its agreed value attached. And when the United States took the property and thus imposed on the State the obligation to pay for it the United States in turn became liable to the State for the value of the property. But aside from any academic discussion of the question the fact remains that the State has been required by the judgment of a competent tribunal to pay for the property in question, and even though we may not be bound by the findings in that case it is an adjudication which should at least go far in determining who may now sue the United States for property it has received and has not paid for. That suit, the judgment and its payment would certainly estop Smith from asserting any claim against the United States on account of the property in question and relieve the situation from the possibility of adverse claimants.

The plaintiff asserts as the values of the animals in question the values which we have found, being the same as the prices provided in its contracts, plus $48 as to each animal, the claim as thus made being predicated on the contract provision for the payment of $3 per day for 16 days for the use of each animal. We can not adopt this theory of values as *755a basis of recovery because it necessarily involves the untenable theory that the United States assumed the obligation of the State to pay for the contemplated use of the animals. This theory was in effect disposed of by the court when, upon consideration of a-demurrer to the amended petition in which claim was asserted for the “ rental of 4,523 animals for 16 days at $3 per day per animal constituting a portion of the purchase price and value of said animals taken over by the United States,” it was concluded that no recovery could be had on the claim for rental and that under section 165 of the Judicial Code the taking of testimony on that item should not be authorized. That item included the rental of all animals furnished by Smith under his contracts and therefore includes this element of the present asserted values.

An item of the present claim stated as “ Balance due on animals for which partial payments were made, 1,826 at $48 additional each, $87,648.00 ” scarcely needs discussion in view of what has been said. The payments referred to as “ partial ” are the payments for 1,826 animals made to Smith as shown in Finding IX. Aside from other considerations it is difficult to justify characterizing these payments as “ partial.”

The claim otherwise is for the two items of $26,132.70 and $4,599.98, referred to in Finding XI. These two items were both included in Smith’s recovery against the State, but they embraced expenses incurred, in relation to the whole number of animals delivered by Smith under his contracts for which there is no apparent liability on the part of the United States. If any portion of such expense was incurred in relation to the animals taken over by the United States after they were taken over, the facts might furnish a possible basis of liability, but they do not appear.

We have directed judgment for the determined value of the 224 animals taken by the United States and not paid for, which we conclude is the limit of liability.

Gkaham, *Judge;*Hat, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.