#### JAMES W. GEORGE v. THE UNITED STATES.

No. 12893

April 23, 1883.

'The claimant carried the United States mail in Missouri, under contract with the Postmaster-General, from April 11 to July 11, 1861. He brings suit to recover payment therefor on account of the appropriation made by Congress in the *Act of March*3, 1877, ch. 105 (19 Stat. L., 344, 362), for such service. None of the appropriation was paid out by the Secretary of the Treasury, and it has been covered into the Treasury.

Held :

I. Upon authority of *HnhilVs Case*(16 C. Cls. R., 562) and *Hnffman’s Case*(17 C. Cls. R., 55), mail contractors who in 1859-1861 carried the mails in the States named in the *Act of March*3, 1877, ch. 105 (19 Stat. L., 362), and for whom an appropriation was there made, can recover for the service performed, although the appropriation has been covered into the Treasury.

II. When the service was performed in States which did not join the Confederacy, it is not necessary for the claimant to prove that he was not paid by the Confederate authorities under the provisions of a Confederate act of Congress.

This action was brought to recover for carrying the mails in Missouri in 1861.

The following are the facts found by the court:

I. The contract mentioned in the claimant’s petition was duly -executed by both parties and set forth in full m the exhibit thereto as therein stated.

II. Claimant carried the mail under this contract for a period ■of three months, to wit, from April 11, 1861, to July 11, 1861, and then, without permission, without notice of his intention so to do, and without notice of danger or request for protection, abandoned it, because the war at that time rendered it unsafe and impracticable to carry the mail on that route.

III. Claimant made no demand for the payment of anything alleged to be due him under said contract at any time before the commencement of this suit, and no payment has been made by the Government or received by the claimant for the aforesaid services or any services under his contract, and there remains unpaid and due to him a balance of $58.

*433This claim has never been paid wholly or in part by the Confederate States Government.

IV. At an early day after the passage of the *Sundry civil appropriation Act of March*3, 1877, ch. 105 (19 Stats. L., 344, 362), which contains a certain appropriation of $375,000, referred to in the claimant’s petition,'the Secretary of the Treasury issued an order that no payments should be made out of the appropriation until all claims covered by its terms should have been received and adjusted, and if the appropriation should prove insufficient, they should then be paid *pro rata.*In consequence of this order no claims were adjusted within two years of the date of the act, and the appropriation was therfore covered into the Treasury under the requirements of section 5 of the *Legislative, executive, and judicial appropriation Act of June*20, 1874, ch. 328 (18 Stat. L., 85, and 1 Suppl. Eev. Stat., 48).

*Mr. George A. King*for the claimant:

The performance of ser.vice is proved partly by the record of the Department and partly by parol'. The law does not exclude parol evidence of the service where the witnesses testify positively to it, as in this case, and having personal knowledge of the facts.

*Mr. A. JD. Robinson*(with whom was *Mr. Thomas*Simons, Assistant Attorney-General) for the defendants:

1. There being no proof of perfect service beyond May 31 at Thomasville, and June 30, 1861, at Eminence, there can be no recovery beyond those dates.

2. Claimant, having violated his contract, cannot recover.

3. The evidence falls far short of showing any legal excuse for abandonment of the contract. Nothing short of an act of God .or the public enemy would afford an excuse. *(Beebe*v. Johnson, 19 Wend., 500; *Hidings -*v. Craig, Addison, Pa., 342; *Gilpin*v. *Gonsegua,*1 Pet., O. C., 91; *Harmony*v. *Bingham,*12 N. Y., 99; *Baiter*v. *Johnson,*42 N. Y., 126; *JDermatt*v. *Jones,*2 Wall., 7.)

OPINION.

Scofield, J.,

delivered the opinion of the court:

The claimant contracted with the Post-Office Department to carry the mail once a week between Eminence and Thomas-ville, in the State of Missouri, from April 11, 1861, to June 30, *4341862, for $232 a year.. Under this contract he carried the mail for three months, and then, finding it impracticable to-fulfill his contract in consequence of the rebellion, without permission or notice abandoned it all together. Nothing whatever has been paid him for the three months of service.

By the *Act of March*3, 1877 (19 Stat. L., 362), Congress appropriated—

> Three hundred and seventy-five thousand dollars to pay the amount due-to mail contractors for mail service performed in the States of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Texas, Tennessee, Virginia, and West Virginia for the years 1859, 1860, and 1861, and before said States respectively engaged in war against the United States. * * * *Provided,*That any such claims which have been paid by the Confederate States Government shall not be again paid.

In order that the claims embraced in this appropriation might be paid *pro rata,*in ease it should be found insufficient to cover-them all, the Secretary of the Treasury directed that none should be paid until all should have been received and adjusted. In consequence of this order no claims were paid within two-years. The whole appropriation, as the law requires, was therefore covered into the Treasury. The claimant sues to recover the amount to which he might have been entitled under the lapsed appropriation.

In *Hukill’s Case*(16 C. Cls. R., 562) this court held that the rights of parties provided for in this appropriation were not lost by its covering into the Treasury, but remained subsisting rights which this court had jurisdiction to enforce. That case also decided that the legislation of the Confederate States-created a presumption that contractors on routes within the insurrectionary States were paid by that Government, which presumption the claimant must, as a condition precedent to> recovery, in some measure rebut. But in *Huffman’s Case*(17 C. Cls. R., 55) the court again decided that no such presumption arose against contractors whose routes were in the States-of Missouri, Kentucky, and West Virginia. These States having never joined the Confederacy were not included in its legislation. It is not necessary in this case to restate the argument by which the court arrived at these conclusions. The principles settled in'these two decisions control this case, and upon the findings of fact rule it iu favor of the claimant.

Judgment will be entered for the claimant and against the-defendants, in the sum of $58.