#### LOBB'S CASE. John A. Lobb *v.*The United States.

*On the Proofs.*

*C. is a contractor for army transportation, and D. is Ids sub-contractor or agent to perform. Rort Reno is the terminus of the route, the place at which the performance ends, according to the terms of both the original contract and of the agency. When the sub-contractor’s train reaches this terminus, the officers of the Quartermaster Department select a portion of the freight so as to materially affect the rate of compensation, and require the sub-contractor to carry it to*
      *251
      *Fort FMl. Kearney, beyond the prescribed route. This service he performs to the satisfaction of the Department. F£e does not present a demand for payment in his own name, and the Department pays 0. for this service at the rate prescribed by the contract. 0. pays the sub-contractor at the same rate, xvhich payment he accepts. FCe note brings suit for an additional rate*in quantum meruit.

Where the sub-contractor of a contractor for army transportation, after carrying the freight to the agreed terminus, is required by the Quartermaster Department to carry it to another point beyond the scope of the original contract, he may elect either to treat this as distinct service performed by himself under an implied contract, or as additional service rendered by his principal under the original agreement. If he elects the latter by dealing with his principal and accepting pay from him for the service at the original prescribed rate, and allowing his principal to settle with the Government, he is estopped from setting his claim for increased compensation.

*The Reporters’*statement of tbe case:

The court found the following facts :

I. During the year 1866, one Alexander Caldwell was a contractor with the Quartermaster Department for army transportation between Nebraska City and Fort Eeno, at an agreed compensation of $1.45 per 100 pounds per one hundred miles. The claimant was a sub-contractor of Caldwell, to perform his contract at an agreed compensation of $1.25 per 100 pounds per one hundred miles.

II. On the arrival of the claimant’s wagon-train at Fort Eeno, in September, 1866, the claimant was ordered by the defendant’s officers to proceed with a portion of the freight to Fort Phil. Kearney; which service the claimant performed to the satisfaction of the defendant’s officers.

III. The claimant did not present a demand to the defendant’s officers for payment of such service in his own name and right, and the defendant’s officers paid Caldwell for such service at the rate prescribed by his contract of $1.45 per 100 pounds per one hundred miles, and Caldwell thereupon paid the claimant for the same at the rate prescribed by the contract existing between them of $1.25 per 100 pounds per one hundred miles, which payment the claimant accepted and took.

*Mr.-Thomas J. Durant*for the claimant.

*Mr. Assistant Attorney-General MeMiehael*for the defendants.

*252Nott, J.,

delivered tbe opinion of tbe court:

One Caldwell was a contractor for army transportation, and the claimant was bis sub-contractor, or agent, to perform. Fort Eeno was tbe terminus of tbe route, tbe place at which performance ended, according to tbe terms of both tbe original contract and of tbe agency. When tbe claimant’s wagon-train reached this terminus, tbe officers of tbe Quartermaster Department selected a portion of the freight, so as to materially affect tbe rate of compensation, and required tbe claimant to carry it beyond the prescribed route.

It was then tbe right of tbe claimant to elect whether be would treat this as distinct service performed by himself under an implied contract, or as additional service rendered by bis principal under tbe original agreement. He elected tbe latter, by dealing with bis principal and accepting pay from him for tbe service as bis agent. It is said that the principal acted as tbe agent of tbe claimant in presenting the demand and receiving tbe payment; but that cannot be, for be received pay at tbe rate prescribed by bis contract with tbe Government, and paid to tbe claimant at tbe rate prescribed by their agreement of agency. This tbe claimant with knowledge accepted and took. He, in effect, looked on and saw tbe Government settle with bis principal, and ratified tbe settlement by accepting a portion of its fruits. Thereby be is estopped from setting up his own demand now. The defendants cannot be required to pay his principal a profit under tbe original agreement and then respond to tbe agent on an implied contract *in quantum meruit.*

Tbe judgment of tbe court is that tbe petition be dismissed.