#### PROVINE'S CASE. James M. Provine, appellee, *v.*The United States, appellants.

(5 Court of Claims, R., p. 455. Not reported in Wallace.)

*On the defendants’ Appeal.*

*In February,*1853, *a block of stores in Memphis is taken possession of by the military, and, after being materially altered, is used as a hospital. In February,*1864, *the Government still being in possession, the depot quartermaster agrees to pay the owner*-$125 *a month. An assistant quartermaster-general succeeds the depot quartermaster, and raises the rent to*$250 *a month. By a mistake of Ms clerk it is not reported for some time to the Quartermaster Department, and until the mistake is corrected only*$125 *a month is paid, for ivhich the owner gives receipts. Upon the surrender of the stores by the Government he declines to receive them in their altered condition. The assistant quarlermaster-general recommends Mm to restore them to their former condition and present his bills to the Quartermaster-General for payment. Payment being refused, Che owner sues to recover the diferenoe in the rent dwring the interval caused by the clerk’s mistake; also, his expenses in restoring the*
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      *premises. The Court of Claims decides that the property was held under a contract, andhence thatit may entertain jurisdiction. Judgment for the claimant on both causes of action. The defendants appeal.*

On the facts found by tbe Court of Claims in tbis case tbe Supreme Court is equally divided, and the judgment stands approved without opinion.

*The Reporters’*statement of tbe case :

The following are the material facts found by the court below :

After the occupation of Memphis by the Union Army, and about the 13th February, 1863, a block of eight stores in that city, six of which belonged to the claimant, and two to a lady by the name of Talbot, were taken possession of by the military and occupied and used as a hospital. They were held under this military seizure and occupancy until about the first of February, 1864, when Captain Eddy, the depot quartermaster, entered into a verbal contract with the owner to pay them the sum of $125 per month, as rent for each store. From this time they were borne upon his monthly abstracts aud returns to the Quartermaster-General, and the stipulated rent was paid by him, and returns thereof duly made in his accounts current, up to October 1, 1864. Captain Eddy was then relieved, and Colonel Bobert E. Clary succeeded him as post quartermaster at Memphis. He reported the claimant’s stores at the same rent up to March 1, 1865, and from that at $250 per month, until the 22d May, 1865, when they were surrendered and possession delivered up to the owner. About the latter end of October or first of November, 1864, the attention of Colonel Clary was called to the inadequacy of the rent being paid for these stores, by Mrs. Talbot, the owner of two of the eight in the block, with the request that the rent should be increased. Colonel Clary, upon inquiry, determined that the rent being paid by the United States for these stores was much below what they could be rented for to private individuals, and determined to increase the rent to $250 per month for each store; and he directed his clerk to so return them at the increased rent. By a mistake or omission of the clerk, only Mrs. Talbot’s two stores were returned at the increased rent, from November 1,1864, while the claimant’s were borne upon the returns at the former rate of $125 per month. These returns were so continued up to March 1, 1865, when Colonel Clary’s attention was called to *78tbe matter by tbe claimant, when be caused tbe returns thereafter to be made at tbe rate of $250 for each store, and paid tbe claimant at that rate, until tbe surrender of tbe premises on tbe 22d May, 1865. These matters were represented to Colonel Clary by tbe claimant in December, 1865, and Colonel Clary reported them to tbe Quartermaster-General.

Tbe claim for tbe additional rent was rejected by tbe "War Department. Tbe alterations made in tbe buildings, wbicb rendered repairs and restorations necessary, were made by tbe agents and officers of the United States while tbe premises were held under tbe appropriation or seizure, and before any contract existed for tbe rent of tbe premises.

Upon tbe surrender of tbe stores Mr. Provine declined to receive them in tbe condition they were in, as being unfit for tbe use intended, and requested Colonel Clary to have tbe necessary repairs and restoration made. This Colonel Clary declined to do, for the want of time and means to doit, but recommended Colonel Provine to go to work himself and make tbe necessary changes in tbe buildings to restore them to their former condition, (ordinary wear and tear excepted,) keep an accurate account of tbe expense, and take regular vouchers for each expenditure, and present bis bills to tbe Quartermaster-General for payment *•,*wbicb Mr. Provine did.

And upon tbe facts so found tbe court ruled as matter of law:

1st. That tbe property was held under a contract and not by virtue of an appropriation by tbe Army, and that tbe court has jurisdiction of tbe subject-matter of tbe claim.

2d. That, upon tbe contract made with tbe quartermaster, the claimant is entitled to recover tbe balance of tbe rent of $125 per month for. each store, from tbe 1st November, 1864, till March 1,1865, amounting to tbe sum of $3,000.

3d. That, upon tbe facts stated, tbe claimant would be entitled to recover tbe amount on an implied contract for use and occupation, if no amount was expressly agreed upon, that being tbe fair value or rent of tbe premises.

4th. That, upon tbe facts stated, tbe claimant is entitled to be repaid tbe sum necessarily expended by him in putting tbe premises in tbe same condition and repair as when tbe United States took possession of tbe same.

5th. That, upon all tbe facts stated, tbe claimant is entitled *79to judgment for the sum of $7,485; and for this sum judgment is rendered in his favor.

*Mr. Assistant Attorney-General Sill*for the United States, appellants:

The *Act July*4, 1864, declares “ that the jurisdiction of the Court of Claims. shall not extend to or include any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the Army.” The facts in this case show clearly an appropriation of the property within the meaning of this act. The stores were taken possession of and the alterations necessary to render them suitable for hospitals were made in them before an agreement of any kind was made to pay rent for them; and the subsequent payment of rent cannot change the character of the first taking. The finding of the Court of Claims, that this was not an “ appropriation,” is a decision of a question of law, and is not conclusive upon this court. The •Government contends that the case falls within the recent decision "of *Mlor*v. *The United States,*(9 Wall., ■45.)

It appears that upon the payment of rent allowed by the deputy quartermaster, receipts in full were given by Provine. This, under the recent decisions of this court, is a final settlement of the *claim.*— United *States*v. *Child,*(12 Wall., 232;) *United States*v. *Clyde,*(13 Wall.)

But even admitting that there was no appropriation of the property which will take the case out of the jurisdiction of the Court of Claims, it is very apparent from the facts of the case that the agreement of Colonel Clary to pay the additional rent from November was only conditional on its approval by the War Department, and it was rejected by the Quartermaster-General. If Colonel Clary had undertaken to bind the Government by such an agreement, he had no power to do so, and the Government would not be responsible for any such undertaking. *Mlor*v. *The United States,*(9 Wall., 48.)

The alterations in the buildings, which were necessary to render them suitable for hospitals, and which principally necessitated the expenditure made by the claimant after the buildings had been surrendered to him, were made upon the first seizure of the property by the Government, and before any contract whatever was made in regard to the rent. However it may be *80as to the other amount claimed, as to this there is no evidence of any agreement, express or implied, to pay for such repairs, or to restore the building, after the Government left it, to the* condition in which it was before they took it. This claim, at least, comes within the *Act July*4, 1864, *“*being damage to property by the Army or Navy ** * **engaged in the suppression of the rebellion,” and no suit can be maintained thereon in the Court of Claims.

*Mr. T. J. D. Fuller*for the claimant, appellee:

*Filer’s Case,*cited by the appellants, is notin point for appellants, but is for appellees. The contract in *Filor’s Case*was made in 1861, as the law then was, and the court decided the lieutenant acting assistant quartermaster, without the ratification of the Quartermaster-General, had no authority to bind the United States. In this case the contract was made by Deputy Quartermaster-General Clary, an officer of the United States, of equal authority with the Quartermaster-General, independent of him, appointed and assigned to duty as chief quartermaster of a military department, under the provision of the *Act July*4, 1864, (13 Stat. L., p. 394,) by the Secretary of War. By the provisions of that act, the sixth division is charged with the duty of procurement of all *hospital*buildings, by either hiring or building them.

Surely the authority *to*take, *to*occupy, *to*rent, *to surrender up,*the possession of premises, in behalf of the United States,must exist somewhere and in somebody. That ideal, intangible, artificial person, the United States, could not do it without using some instrumentality, some natural agent. Who could do this better than the man with whom the Government had intrusted the command of its armies ?

A receipt in full is always explainable. The cases of *Child*and *Clyde,*cited by the learned counsel, have’ no application to this case, because it was understood by both parties to the transaction, General Clary and Provine, that the partial payment of rent was not to be in full for the claim. In the cited cases the intention was most manifest that the Government intended the payments to be in full discharge of the claim, and that the claimants accepted the payments with the knowledge of that intent on the part of the Government.

When the premises were restored, the landlord required the *81partition-walls to be rebuilt and tbe windows closed before accepting them. They were wholly unsuited for occupation as stores, and could not be used for that purpose — were untenantable for such a purpose. General Clary directed claimant to mate the repairs him self, and present his bills to the Quartermaster-General for payment. He did so, and the bills were rejected under the operation of the *Joint' Resolutions February 9th*and *19th,*1867, (14, Stat. L.) The fact that the buildings had been *seized*/the year previous, and not reported monthly, makes but so much the stronger case for the claimant; that there was a new arrangement'made; a new holding; a changed condition of - things. The possession and occupancy of the United States prior to February 1, 1864, *was adverse*and *tor-tious*as against the real owner. But, after that, it was in submission to the title of the claimant. The monthly report of persons and property hired and rented, and the payment of rent,-established anew relation — that of landlord and tenant, with all of its well-known and well-defined incidents. It had the approval of the Quartermaster-General, and there can arise no question of want of authority in the deputy quartermaster-general to make this arrangement. It furthermore appears that the payment of the rent was ordered by General Thomas, the commander of the department.

The tenant, as a matter of implied contract, arising from the relation of the tenancy, is bound to restore the premises in like good order and condition as when taken, ordinary wear and tear excepted; the act of God and the king’s enemies alone excepted. As against the tenant’s wrongful acts, the law very clearly implies a contract, not to make *strip*or *toaste,*and not alter the premises, but to restore them in their former condi*tion.*— Arehbold’s *Landlord Tenant,*177; *Wood*v. *Pope,*(1 Benj. N. 0., 467, E. 0. L., vol. 12;) *Hoover’s Case,*(3 N. & H., p. 309.)

The judgment of the Court of Claims being affirmed by the equal division of the Supreme Court, no opinion was delivered.