#### BATTELLE & EVANS’ CASE. Battelle et al. *v.*The United States.

*On the Proofs.*

*In February,*186?, *ennlraotors agree in writing to furnish beef-cattle at*7 J *cents per pound to the extent of*“one hundred head, more or less,” *for “*Lander’s division and such troops as may he attached thereto.” *Subsequently the commissary who made the contract is detached from Zander’s division at Cumberland and removed to a post on the western side of Che moimtamis. In May,*1862, *General Frémont orders him to procure cattle immediately for a military exigency, being for the use of his army marching in pursuit of Stonewall Jackson. Zander’s division is not attached to Frémont’s army. The commissary, however, telegraphs to his former contractors to forward*800 *head and send them on immediately at any cost. The contractors do so. The cattle accompany the army on its march. They remain in the immediate charge of the contractor’s drovers, who slaughter them from time to time as required by the troops. After the cattle reach the army some are lost and some are captured by the enemy. On the settlement with the contractors the commissary refuses to pay more than the old contract pnce of*7-} *cents, and refuses to pay anything for the cattle lost or captured, but agrees that the residue of the claim shall be reserved for adjustment by the Board of Unsettled Claims. Mo such adjustment is made, and the contractors bring their action.*

I. Where a written contract is for heef for a division of the army to the extent of 100 head of cattle, more or less, at a specified price pier pound, it will not he hold to relate to cattle subsequently furnished to a distinct part of the army to meet a military exigency amid circumstances of peculiar difficulty and danger.

II. Where the commanding general orders a commissary to procure cattle for the use of the army during a military exigency immediately, and the commissary telcgrai>hs to contractors to forward them immediately and at any cost, and the contractors do so, the order is obeyed and the contract is executed when the cattle roach and pass under the control and into the possession of the army, and the delivery is complete. If cattle are subsequently captured or lost before vouchers are given, while they remain in charge of the contractor’s drovers, who act as butchers for the troops, the loss will fall on the Government.

III. Where contractors are to have the hides and tallow of cattle which they furnish to the army while on the march, the hides and tallow are the property of, and at the risk of, the contractors. The fact that the commanding general gave them an order for the transportation of the hides .and tallow is not sufficient evidence of a promise on the part of the G-ov-.ernment to transport or pay for them if lost.

*296*The Reporters’*statement of tbe case:

Tbe court found tbe following facts :

Early in May, 1862, General Frémont, commanding- tbe Mountain Department, moved with tbe forces under bis immediate command from New Greek, in tbe northern part of Western Virginia, southerly, to re-enforce tbe Union forces threatened by tbe confederate army under General “ Stonewall” Jackson.

At Petersburg!!, where a commissary’s depot bad been established by Captain Mackenzie, assistant commissary, General Frémont directed him to procure immediately beef-cattle to accompany bis march, as be bad not sufficient transportation to carry supplies for bis troops.

And on tbe 8tb day of May, 1862, Captain Mackenzie at Petersburgb sent to tbe petitioners at New Creek tbe following* telegram:

“Petersburg®, *May*8,1862.

" To Battelle :

“No cattle yet received on my order, except thirty-seven bead from Mr. Shook, brought from Moorfield. Forward (300} three hundred bead to this post immediately ; no time to lose;, answer what you can do and when.

“J. M. MACKENZIE,

“ *Commissary of Subsistence.”*

And on tbe 8th day of May, 1862, the above telegram was received at New Creek, by the agent of tbe petitioners employed by them to forward cattle to tbe Army.

On tbe 8th day of May, 1862, tbe following order was issued by General Frémont to Captain Mackenzie :

“ Headquarters Army in the Field,

“ Petersburgb, *May*8, 1862.

“ Captain : Tbe general commanding directs that you procure five hundred bead beef-cattle on tbe most reasonable and proper terms; but procure them, no time to be lost.

“ALBEET TEACY,

“ *Colonel'and Adjutant-General.”*

This order was sent by Captain Mackenzie, on tbe 8th day of May, from Petersburgb to tbe petitioners at New Creek,. *297and received there the same day by their agent. ■ And on the 9th day of May, Captain Mackenzie sent to the petitioners the following telegram:

“ Messrs. Battelle & Evans,

*Beef Contractors, Neio Creelc:*

“Why cannot I hear from you? We want (500) five hundred head cattle here as soon as you can get them; not a moment to be lost. Send forward to this post one hundred, more or less, at a time. I have bought fifty head here, which will only last through to-morrow. Send on immediately at any cost.

“ In haste, yours, &c.,

“ J. M. MACKENZIE,

*“ Commissary of Subsistence, United States Army.*

“ Peteesbtjkg-h, *May*9,1862.”

And the *troops of*General Frémont at Petersburgh, and on their march from Petersburgh to near McDowell, and thence to Franklin, where General Frémont made his headquarters for ten days, were supplied under said orders and telegrams with beef-cattle by the petitioners', whose employés drove the cattle from New Creek to General Frémont’s army, where the cattle passed into the control and possession of the army. And the employés of the petitioners remained with the army and accompanied it on its march to drive the cattle and slaughter them as beef was needed for the army; and according to orders given for the purpose.

While the army of General Frémont was at Franklin two hundred head of cattle delivered to the army, as above stated by the petitioners, were pastured in a field at night, with the river on one side and fenced on the other side. And the nest morning nine of the cattle were missing, and were lost.

On the 23d day of May, 1862, Captain Mackenzie, at Peters-burgh, received the following telegram from Franklin :

“ Captain Mackenzie:

“Forward two hundred head of beef-cattle per day' until further ordered.

“ By order of Major-General Frémont:

“ ALBEBT TBACY,

*“ Colonel and Assistant*Adjutant-General.”

*298And Captain Mackenzie sent to tbe petitioners at New Greek the following telegram:

“ To Eyans & Battblle :

“ Forward cattle as fast as possible. Two hundred per day until further orders.

“J. M. MACKENZIE,

*“ Captain and Commissary of Subsistence.”*

And the above telegram was received by the petitioners on the 24th day of May, 1862.

On the 25th day of May, 1862, General Frémont with the forces under his command left Franklin to *go*to the relief of General Banks in the Shenandoah Valley, and, passing through Petersburg!! and Moorfield, crossed the mountains at Hunting Bidge, and, passing-through Wardensville, reached the point of division of the roads to Winchester and Strasburgh on the 2d of June.

And on this march the army of General Frémont was supplied with beef by the petitioners, whose employós drove the cattle from New Creek to the said army on its march, when the cattle passed into the control and possession of the army. And the employés of the petitioners accompanied the army on its march to drive and herd the cattle,, and slaughter them as beef was needed for the troops, and according to orders given for the purpose.

The petitioners were informed that a military guard would accompany the cattle; and a guard of cavalry, detailed for the purpose, did accompany the cattle on the march.

The cattle were driven from New Creek to Franklin under unfavorable circumstances, as there was great difficulty in getting men to drive the cattle through the country, which was infested with guerrillas; and food for the cattle was difficult to be procured; and the march of General Frémont from Franklin to near Strasburgh was a forced march, over bad and broken roads, and, in part, through a hostile and mountainous country. The army moved rapidly, and the cattle were overdriven, and lost weight. The fences of fields on the way had been destroyed, and it was difficult to secure the cattle at night; guerrillas followed the army on either flank, and the guard of cavalry was often insufficient for the protection of the cattle, and some were lost.

*299Between Moorñeld and Wardensville, when the army encamped at night, eighty head of cattle were pastured in a fenced field, and under a guard within the pickets and inside the camp.

Fifty-seven of these cattle were surreptitiously taken by the troops, and slaughtered and used by them; and for these fifty-seven head of cattle no vouchers could be obtained by the petitioners.

Near Wardensville the butchers of the petitioners were waked at night and ordered to slaughter forty head of cattle for the morning, and these cattle were slaughtered. Early the next morning the army broke up its camp aud resumed its march in such haste that a part of the beef was left on the ground, and not taken or used by the troops. And for- these forty head of cattle the petitioners could obtain no vouchers.

The beef-cattle delivered to the army of General Frémont were ordered by him on an emergency, requiring their immediate delivery, and precluding the delay of advertisements. And they were delivered by the petitioners on the orders and telegrams above set forth and the contract thereby made, with the understanding between them and Captain Mackenzie that they should receive a just compensation for extra trouble and expense in procuring an increased number on short notice, as well as increased risks in driving to points not contemplated in the written contract.

The hides and tallow of the cattle slaughtered for the army of General Frémont belonged to the petitioners, and were worth on an average about $13 a head. They were but in small part secured by the petitioners, because they could not obtain transportation for them, although they requested it. On one occasion, at Franklin, General Frémont, at the request of the X>etitioners, gave to his commissary a written order for the transportation to New Greek of the hides and tallow of the cattle killed at Franklin, but the order was not executed. On one occasion General Frémont ordered some of the hides and tallow to be burned, but -what quantity was not shown.

In the early part of 1862, before Captain Mackenzie went to Petersburg!), in Virginia, to establish there a commissary depot, as above stated, he was acting as brigade commissary for General Kelley’s headquarters at Cumberland, in the State of Maryland j and there, on the 1st day of February, 1862, he, on *300the part of the United States, made with the petitioners the contract, by which the petitioners contracted as follows : “ To deliver and supply General Lander’s division of the army now camped at Camp Kelley, and other troops that may hereafter be attached to said division, with fresh beef,” &c. But the troops specified in that written contract formed no part of the forces above mentioned as under the immediate command of General Frémont. “Lander’s division” and the troops “afterward attached to it” belonged to General Banks’s command. ’

On the retreat of General Banks from Harrisonburgh he was closely pursued by the confederate forces through Winchester on the 24th of May, and Martinsburgh on the 25th of May, to the Potomac, which he crossed on the 26th of May. There were at Winchester nineteen head of cattle supplied, under said written contract, to the forces of the United States, by the petitioners, and which were for the use of the hospital at Winchester. And from the suddenness and hurried manner of General Banks’s retreat, and the closeness of the pursuit by the enemy, it was not possible to save these cattle, which, with their keepers, were captured by the confederates.

On the 25tb of May, 1862, sixty-five head of cattle, sent by the petitioners from New Creek, under said written contract, for the supply of the Union troops, were received by their agent by railroad near Martinsburgh, and by him pastured in a field near there. On the retreat of General Banks and the advance of the confederates, it was not possible to remove these cattle, as no men could be procured for the service. And these sixty-five head of cattle were captured by the confederates, and on their retreat they drove forty-eight head of these cattle near to Winchester and left them there, and they were afterward taken possession of by General Cooper, commanding the advance of General Siegel’s division.

Vouchers for 362,711 pounds of beef were given to the petitioners for the beef of the cattle slaughtered by them for the army of General Frémont. And on these vouchers the petitioners were paid by Captain Mackenzie 7J cents per pound of beef, the price specified in said written contract, and the residue of the petitioners’ claim was left by agreement between them and Captain Mackenzie’to be thereafter adjusted by the board of unsettled claims. No such adjustment has been made. And the United States, on demand made, refused to make any *301further payment on said petitioners’ claim than the payment made as specified on said vouchers.

The beef of the cattle delivered, as above stated, averaged in weight 700 pounds per head on the foot.

We find that a just compensation for the trouble and expense and risks in procuring and furnishing cattle to the army of General Frémont on its march from Petersburg!), as herein above stated, was 10J cents per pound..

*Mr. R. M. Corwine*for the claimant.

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

Loring, J.,

delivered the opinion of tie court:

By the contract made between Captain Mackenzie, on the part of the United States, and the petitioners, on February 1, 1862, at Cumberland, the petitioners were to supply Lander’s division, then at Camp Kelly, near Cumberland, and any other troops that might be attached thereto, “ with fresh beef, in quarters, in such quantities as might from time to time be required, not oftener than five times a week, for 6J cents per pound.”

And Battelle and Evans were to accompany the expedition then contemplated with one hundred head of beef-cattle, more or less, as might be required, and with ox-teams, wagons, horses, •&c.j and if any beef-cattle were lost by the way, notwithstanding due care and diligence on the part of Battelle and Evans, the United States were to pay such portion of the loss as might be agreed upon. And 1 cent per pound additional to the 6-]-cents specified was to be allowed for the difficulties of the forward movement while those difficulties continued.

The contract thus related to *“ Zander’s division and such troops as might he attached*thereto,” and though this did not specify the number of men, it indicated generally the body of troops of a division commander, for the supply of which the contractors were to make their preparations.

The contract referred to a contemplated movement of the forces it specified, without indicating what that movement was to be. It was undoubtedly known to the contracting parties at the time, and is shown by the subsequent movements. When Lander’s division first moved does not precisely appear, but the *302bistory of tbe war in Virginia shows he had moved southerly down the valley from Cumberland to Moorfield, and captured that place, before the 11th of February, 1802.

Subsequently General Lander, on account of ill-health, resigned his command, and was succeeded in it by General Shields, and under him the division formed a part of the Fifth Army Corps, under General Banks, on the eastern side of the mountain, and on the 22d of March it fought and won the battle of Winchester, having been left there by General Banks, who, with the rest of his command, had marched southerly to Sfcras-burgh and Harrisonburgh. ■ On the 15th of May General Shields’s division was detached from the corps of General Banks and ordered to join the forces of General McDowell at Fred-ericksburgh, on the Iiappahannock Biver, and marched from the valley of the Shenandoah easterly for that purpose.

About May 1,1862, Captain Mackenzie, who had made the contract of February 1,1862, with the petitioners for Lander’s division, was ordered from Cumberland to Petersburgh, on the western side of the mountains in the valley of Virginia, and there formed a commissary’s depot, and on the 5th of May General Frémont, who had been appointed to the command of the mountain department, marched from New Creek southerly, to the relief of the positions of the Union forces threatened by General “ Stonewall” Jackson, and reached Pittsburgh about the-7th of May, and there he ordered Captain Mackenzie to procure beef-cattle to accompany the march of the army as stated, and under these orders eight hundred head of cattle were ordered of the petitioners on the 8th of May. General Frémont continued his march southerly, toward Franklin, where General Schenck was stationed. At this time General Milroy, commanding at McDowell, was attacked there by General *“*Stonewall” Jackson, and driven back on General Schenck; there a stand was made, and General Frémont coming up with his army, the enemy withdrew, and General Frémont, with the forces now under his command, made his headquarters at Franklin, where he remained ten days.

The object of General “Stonewall” Jackson in attacking General Milroy was to prevent his junction with General Banks on the easterly side of the mountains at Harrisonburgh, and this, being effected by the defeat of General Milroy, General *“*Stonewall” Jackson rapidly crossed the mountains and fell on Gen*303eral Banks, and on the 24th and 25th of May drove him through Strasburgh, northerly, and through Winchester and Martins-burg’h to the Potomac and over it, General Banks crossing the river on the 20th of May.

On the 23d May General Frémont was ordered to march from Franklin to General Banks’s aid, and on the 25th of May he started with all the forces under his command. The roads to Petersburgh and Moorheld were broken up by wagon-trains and heavy and rough, and at Hunting Bulge he turned and crossed the mountains, and, by a forced and difficult march in bad and rainy weather, in eight days from the time he started he reached the division of the roads leading to Winchester and Strasburgh. In the mean time General Shields, on his march to Frederieksburgh, had learned the defeat of General Banks, and retraced his steps back to Front Boyal to aid General Banks and cut off General “ Stonewall” Jackson’s retreat. For the same purpose General Sigel marched with his division from Harper’s Ferry westerly toward Winchester, which his advance, under General Cooper, reached May 25. But between all these forces, marching from the east and west, General Stonewall Jackson passed safely with his army and retreated, southerly, through Winchester and Strasburgh. After this General Banks with his command returned from the Potomac, and his forces being combined with those of General Shields’s and General Sigel’s and General Frémont’s, pursued General Stonewall Jackson, and he, to stop their pursuit, turned and fought them at Gross Keys, June 8. After this check the Union Army fell back to Mount Jackson and rested there.

This sketch of the movement of the different forces shows that during the time of General Frémont’s march from New Greek to near McDowell and thence back to Franklin, from the 5th to the 25th May, and on his forced march from Franklin across the mountains to near Strasburgh, General Lander’s division, to which the written contract referred, formed no part of General Fremont’s army, and that all the time these different forces were on different sides of the mountains.. And it shows also that the movement referred to in the contract of February 1 was not the forced march of General Frémont to aid General Banks in his retreat of 24th and 25th May. And, therefore, it shows that the supplies for which this suit is brought were furnished to troops and in localities, quantities, *304and circumstances to which, the written contract of February 1 did not relate, and under another and distinct contract made at a different time and place, and for a different purpose, and in a different manner, and under a different authority; for it was made under the orders of General Frémont, and by the telegrams above shown, and with'no other reference to the written contract than an express agreement for a different price, and in an emergency which the written contract did not contemplate and could not meet. That contract specified the number of cattle to accompany the march of Lander’s division, then contemplated at one hundred head, *“*more or less. This by legal construction could not be extended beyond one hundred and some part of another hundred, while eight hundred head of cattle were ordered for the army of General Frémont in one day, and on his forced march from Franklin the order was for two hundred head every day till further ordered.

The orders of General Frémont were for beef-cattle to accompany his army on its march, and when the cattle were driven to the army and accompanied its march the order was obeyed and the contract was executed; the cattle then passed into the control and possession of the army, and the delivery was complete. The cattle used, and for which vouchers were issued, were partly paid for as hereafter stated. But for those that were lost or captured no vouchers were issued, and they were not paid for at all, and, therefore, their whole price is recoverable here.

As to the cattle captured and abandoned by the rebels near Winchester, and of which General Cooper’s forces took possession, they were the property of the petitioners that came to the use of the army. And they were sent by the petitioners from New Creek, for the use of the army, under the written contract of February 1, and are thus within the scope and operation of that contract.

And the evidence showed that the cattle had to be driven on foot from New Creek; that the roads were bad, and great difficulties were encountered, especially in the mountains, where it was difficult to keep the cattle up with the army in its rapid and hurried movements, or to obtain food for them, or protect them from the guerrillas, who infested the march and made it perilous. And in such circumstances the cattle lost weight, and many were lost altogether. These dangers were not, so *305far as the evidence showed, encountered in supplying the cattle on the eastern side of the mountains under the written contract of February 1. And, therefore, we allowed 3 cents per pound additional to the contract price for the cattle supplied to General Frémont’s army, and the contract price of *V¿*cents for those shown to have been delivered on the eastern side of the mountains at Martinsburgh and Winchester.

The evidence showed that the contract made by the orders of General Frémont was made in an emergency which precluded advertising, and which, in his deposition, he thus describes: “ The troops were entirely without provisions, so much so in the camp at Franklin, that there was an attempt at mutiny in some regiments for want of provisions, and under these circumstances supplies were furnished for my command wherever they could be procured, and in the most expeditious way.”

And, moreover, *his*army was in the field, moving rapidly from point to point, and a contract with cattle-dealers whose resources could supply the pressing necessities of his army then and there, and made in such manner as would meet the emergency, was the absolute requirement of the circumstances, and, therefore, the usual mode of purchasing and the only mode practicable in such circumstances.

The facts are found that it was agreed between the contracting parties that the contractors should receive an extra compensation beyond that stated in the written contract of Feb* ruary 1, for their extra trouble, expense, and risks in supplying cattle to General Frémont’s army on its marches, and that under this agreement the supplies were furnished. And it is also found that in the settlement made with Captain Mackenzie it was arranged between the parties that the price specified in the written contract should be paid to the petitioners then, and the extra allowance to be made left to the board of unsettled accounts. Afterward the United States refused to pay more than they had paid, and this gave the right of action here.

The different estimates of the weight of the cattle delivered were 600, 700, and 800 pounds; and we have taken 700 pounds as their average weight.

Nothing is allowed for the hides and tallow; the evidence indicated that these were to belong to the petitioners, and that they lost most of them, because they had no means of transporting them to a market or place of safety. But no provision *306was made as to them or as to their transportation in the written contract, or afterward, between the parties. As the property of the petitioners they would be at their risk. And we think the fact that on one occasion General. Frémont, on the application of the petitioners, gave an order for the transportation of some hides and tallow from Franklin to New Creek, is not sufficient evidence of a promise on the part of the United States to transport or pay for the hides and tallow of the cattle slaughtered. It was shown in evidence that on one occasion General Frémont ordered some hides and tallow to be burned, but it was not shown how many or why.

Drake, Gb. J.,

dissenting:

I regret my inability to concur with, the majority of the court in their judgment in this case. That the claimants have a just claim upon the Government seems to me clear; but it seems to me equally clear that their just claim is not represented by the judgment now directed to be entered. And it also appears to me that a large part of that judgment is made up of matters of which this court has no jurisdiction.

This is a suit upon a contract. In the petition the claimants aver:

> “ That in the spring and summer of 1862 they were contractors to furnish the United States Army with beef for the sustenance and support of that portion of the Army constituting and belonging to the mountain department, then under command of Major-General Frémont. That said forces were then in the field, and in pursuit of the enemy, and said supplies of beef were designed to be used by said forces as they moved from point to point.

> “Petitioners further represent that said contracts are evidenced by letters, verbal orders, and telegrams. That under said contracts, telegrams, letters, and orders, petitioners delivered to said army 603,361 pounds of beef, of the quality stipulated for, which was received and consumed by said forces, amounting to the sum of $72,916.65, upon which payments have been made amounting to $27,204.32, leaving a balance due petitioners of $45,712.33, which they say is justly due to them, and for which they pray judgment.”

That is the case which the claimants brought into this court *307for adjudication, a simple case of merchandise sold and delivered.

The defendants pleaded the statute of limitation of six years to the action, and the plea was sustained by this court, and the petition ordered to be dismissed. (7 C. Cls. R., p. 297.)

The claimants appealed to Congress for relief, and procured the passage of an act for their benefit, approved April 15,1872, whereby it was provided, “ That the Court of Claims is authorized and directed to again take up, hear, and pass upon the claim of Battelle & Evans for cattle and beef sold and delivered by them to the United States for the use of the army, in the year 1862, which claim is in suit in said court; and said suit shall be adjudged on its merits, and without respect to the lapse of six years since the cause of action accrued, but within six years since the final decision of the accounting officers thereon.”

Upon this act alone our jurisdiction of the case now rests. Being a private act, it must be strictly *construed.*— Roberts’ Case, (6 C. Cls. R., p. 84.) And the Supreme Court, in *DeGroot*v. *United States,*(5 Wallace, p. 419,) said: “If the Court of Claims has the right to entertain jurisdiction of cases in which the United States is defendant, and to render judgment against that defendant, it is only by virtue of acts of Congress granting such jurisdiction, *and it is limited ‘precisely io such*cases, *both in regard to parties and to the cause of*action, *as Congress has*prescribed.”

This rule of construction confines this court precisely to the cause of action set forth in the suit of the claimants then pending here. Strictly speaking, no suit of the claimants was then pending here; but the Government having gone into the trial of this case, as if it were the one contemplated by the act, I raise no question on that point. But it is to that case, and no other, and to the cause of action therein set forth, and no other, that the acts relates. It is the action for 503,361 pounds of beef of the quality stipulated for, delivered by claimants to and received and consumed by said forces, that the act of April 15,1872, authorizes us " to again take up, hear, and pass upon.”

At the trial, the quantity of beef claimed to have been delivered to those forces, and for which vouchers were issued and payments made to claimants, was found to have been only *308362,711 pounds, about which there is no controversy. The claimants admit having been paid for that quantity cents per pound, aggregating $27,204.32; but they claim 3 cents per pound additional, on the ground of extra expense, trouble, and risk attending the furnishing of cattle in May and June, 1862, to General Frémont’s army to meet a pressing emergency.

It is in connection with this point that the claimants may have a just claim against the Government. I would be glad to consider and adjudicate it if I could see lawful authority for so doing. • But such authority is not apparent to my mind.

The finding of facts made by the majority of the court thus sets forth the facts in this connection:

> “ The beef-cattle delivered to the army of General Frémont were ordered by him on an emergency requiring their immediate delivery, and precluding the. delay of advertisements. And they were delivered by the petitioners on the orders and telegrams above set forth, and the contract thereby made, with the understanding between them and Captain Mackenzie that they should receive a just compensation for extra trouble and expense in procuring an increased number on short notice, as well as increased risks in driving to points not contemplated in the written contract hereinafter specified as annexed and marked *ZP*

Upon this state of fact a very important question arises in connection with the tenth section of the act of March 2,1861, (12 Stat. L., pp. 214, 220, ch. 84,) which provides as follows :

> “That all purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, when the public exigencies do not require the immediate delivery of the article or articles, or performance of the service, shall be made by advertising a sufficient time previously for proposals respecting the same. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold, or such services engaged between individuals.”

In my judgment, the language of this provision does not admit of Government officers ordering supplies with an understanding between them and the parties from wffiom they are ordered that those parties shall receive a compensation, not *309specified as to amount or rate, for extra trouble and expense in procuring and forwarding tbe supplies. This is not “ the manner in which articles are usually bought and sold between individuals.” It seems to me that the legislature could not have intended, through this act, to authorize indefinite verbal understandings between public officers and private parties, by which the Government sliould be liable at any time to heavy demands, resting upon mere general assurances given by one of its officers, and for ultimate fixation depending upon the testimony of men as to what compensation such assurances would, in their opinion, justify. It is clear to me that the “ open purchase ” mentioned in the statute was intended to be a bargain and sale for a price agreed upon at the time; not an indefinite and un-ascertained compensation for extra trouble and expense, to be thereafter settled either in such a suit as this or iu the more exceptionable mode of a departmental decision based on *ex-jparte*evidence.

In point of fact, notwithstanding the terms of the petition, this suit is not for the price of the beef sold and delivered by the claimants. For that beef they have been paid cents per pound, which was the contract price. They now claim more, not having been specifically agreed upon between them and the Government officers, but as a *quantum meruit*based on the verbal assurance of Captain Mackenzie, given by the authority of the commanding general, that a just compensation should be made to them for extra trouble, expense, and risk. Neither that officer nor the commanding general had, in my opinion, any authority to bind the Government by any such assurance. If it was worth more than the contract price to furnish beef to meet the emergency, it was very easy for the parties to have agreed upon the price to be paid for the beef furnished for that occasion; and that price the claimants could probably have recovered here without difficulty. But when they accept the contract price, and claim an indefinite amount more under a verbal understanding with the commissary, they must show his legal authority to bind the Government in that way. In my judgment no such authority existed, and, therefore, there can be no recovery here based on any such understanding.

That there was a contract price for the beef furnished by the claimants, there can be no doubt. The petition avers that the 503,361 pounds of beef delivered to the army were *“ of the qual**310*ity stipulated for f*and there is no evidence of any stipulation as to quality but that contained in the written contract between the claimants and Captain Mackenzie, commissary of subsistence, entered into on the 1st of February, 1862. In that contract it is stipulated that the beef should be of “ *good and wholesome*quality.” And by the same instrument it was further agreed that the claimants should £t receive 6J cents per pound for every pound of fresh beef delivered and accepted under this contract;’7 and for cattle with which they accompanied the army on its march they should, *“for the additional expense and rislc of property thus incurred, receive an additional one cent per pound for all the heef thus foirnished to said expedition, counting it at*7J *cents per pound from the first movement until the circumstances lessening the expense admit of reduction to contract price of*6 J *cents per pound.7’*

The officer who entered into this contract with the claimants testifies that all the beef delivered by them was delivered and accepted under this contract; and it appears that the claimants were paid for the *362,711*pounds in question the extra price of cents per pound, and received the money without protest or demur. Under the rulings of the Supreme Court this concludes them from asserting here any further *claim.*— United *States*v. *Child,*(12 Wallace, 232;) *Mason*v. *United States,*decided at December term, *1872.*

With these remarks I dismiss that portion of the case which relates to the extra compensation promised by Captain Mackenzie to the claimants, and proceed to the other matters of claiih which, without being specified in the petition, were set up at the trial and enter into the judgment of the court.

The majority of the court are of the opinion that, in addition to the extra compensation of 3 cents per pound upon the 362,711 pounds of beef delivered by claimants, and for which vouchers were issued and payments made to them, making an aggregate of $10,881.33 of extra compensation, they should have judgment for the following causes of action and sums :

1. Nine head of cattle lost at Franklin, *700 pounds*each, at 10£ cents per pound... $661 50

2. Fifty-seven head stolen near Moorfield, at same weight and price..... 4,189 50

*3113. Forty bead killed near Wardensville, at same weight and price. 12,940 00

4. Nineteen bead captured at Winchester by the enemy, at same weight and at the price of *V¿*cents per pound. 997 50

5. Forty-two bead taken by General Cooper, at same weight and price as the last. 2,205 00

12,994 00

Bess $13 per head for hides and tallow.. . 2,171 00

Leaving balance of. 10, 823 00

As to the third of these items, I am of opinion that the claimants are entitled to payment for the forty head of cattle slaughtered near Wardensville under military order, and for which vouchers were never delivered to them. When the cattle were so slaughtered, I would regard them as legally delivered to the army, and the claimants as entitled to be paid for the beef, and would allow them for 700 pounds for each of the forty head, at 7-1 cents per pound, making in the aggregate $2,100.

But as to the remaining one hundred and twenty-seven head, I can see no ground upon which this court has jurisdiction of any claim against the United States, in this action, for cattle which were either lost, or stolen, or captured by the enemy; nor, if it had jurisdiction of such a cause of action, do I *con-,*sider a case made out which will justify any judgment against the Government.

If those cattle had not been delivered to the Government before they were lost, stolen, or captured, then there can be no recovery for them in an action for the • price of beef delivered to and received by the army.

If they had been delivered to the Government, then they were the property of the Government, and the claimants cannot sue the Government for the loss, theft, or capture of property which belonged to it and not to them.

The difficulty presented by these plain propositions is not removed by the finding of the fact that all the cattle which the claimants drove to the army were, by the fact of their being so driven, taken into the possession and under the control of the *312army, so as to constitute a delivery of them, to the United States; for at the same time the further fact is found that the employés of the claimants remained with the army and-accompanied it on its march to drive the cattle and slaughter them, as beef was needed for the army, and according to orders given for the purpose. The latter fact is inconsistent with the idea of a delivery accomplished; for if there had been a delivery, there was no more occasion for those employés to drive and slaughter the cattle. Contractors do not furnish men to drive and slaughter cattle that belong to the Government, nor does the Government have its own cattle driven and slaughtered by the employés of individuals, but by its own.

In a certain sense it was true that when the cattle were driven by the claimants to the army, they passed into the possession and control of the army. The army could and would prevent their removal, either by the claimants or others, or their being appropriated to any other than army use. But the cattle which were lost, stolen, or captured were, at the time of their loss, theft, or capture, in the direct and immediate custody of the claimants or their employés, and not in the custody of any officer of the Government. There was not, up to that time, any moment when, but for the restraining and controlling presence of the armed power with which they were dealing, the claimants might not have driven their cattle back to the point from which they started, and left the army without beef.

But the contract of the claimants was not to drive cattle to the army, but to supply the army with fresh beef, in quarters; and that could only be done when the cattle were killed, dressed, and quartered.

That contract was to be fulfilled through certain officers of the commissary department of the army, and not through the army itself. When, therefore, the cattle were driven to the .army, it was no delivery of them to the United States, unless they passed into the possession ;and control of the officer charged with the commissariat of the army, so as to make him chargeable therefore to Ms Government.

To me, therefore, no conclusion is more clear than that the one hundred and twenty-seven head of cattle in question were never, in law, delivered to the United States, but were lost, stolen, or captured while still the property and in the posses-*313siou of the claimants; and that the Government is not chargeable for such loss, theft, or capture.

The only semblance of obligation on the part of the Government in regard to the loss of cattle driven with the army is in the written contract, in these words:

> “And should any part of said stock of beef-cattle * * be lost, and the said Evans & Battelle use due and proper diligence to take care of the same, the Government shall pay such portion thereof as may be agreed upon between the parties.”

At the trial the claimants’ counsel, while not invoking that contract for any other purpose, based upon it, and it alone, the right to recover for lost cattle. Let the claimants be held to its terms. It does not bind the United States to pay them for lost cattle, but only'to pay *such portion thereof as might he agreed upon between them and the Government.*Until such agreement is arrived at, there can be no right of action on account of lost cattle; and as soon as it should be arrived at no action would be necessary, for payment would doubtless immediately ensue.

I feel constrained to extend this expression of my views to the first, second, fourth, and fifth items of cattle lost, stolen, or captured, which are mentioned above.

And, first, as to the nine cattle lost at Franklin. The finding of facts adopted by the majority of the court says:

> “While the army of Gen. Frémont was at Franklin, two hundred head of cattle delivered to the army, as above stated by the petitioners, were pastured in a field at night, with the river on one side and fenced on the other side; and the next morning nine of the cattle were missing, and were lost.”-'

I do not see my way clear to charge the United States with this loss. The cattle, when lost, were the property of the claimants or the property of the United States. If the former, they were at the claimants’ risk, and it was the claimants’ business to see that they did not stray away. If the latter, it was nothing to the claimants whether the cattle staid or strayed. They neither gained by the former nor lost by the latter; and it is impossible for me to see how they can, on either theory, maintain a claim against the United States for the value of the beef in the cattle.

Next, as to the fifty-seven head stolen near Moorfield; in re*314gard to which the facts are found by the majority of the court as follows:

> “Between Moorfield and Wardensville, when the army encamped at night, eighty head of cattle were pastured in a fenced field, and under a guard, within the pickets, and inside the camp. Fifty-seven of these cattle were surreptitiously taken by the troops, and slaughtered and used by them. And for these fifty-seven head of cattle no vouchers could be obtained by the petitioners.”

These cattle were either the Government’s or the claimants’. If the former, the claimants cannot make the Government pay them the value of the Government’s own cattle, slaughtered and used, however surreptitiously, by the Government’s own troops. If, on the other hand, the cattle belonged to the claimants, the surreptitious taking and slaughtering of them was a tort for which no action lies against the United States, though it were committed in the service and to promote the interest of the *Government.*— Gibbons v. *United States,*(8 Wallace, 269.)

Nest, as to the nineteen head of cattle captured by the enemy at Winchester; in regard to which the majority of the court find the facts to be as follows:

> “On the retreat of Gen. Banks from Hamsonburgh he was closely pursued by the confederate forces through Winchester on the 24th of May, and Martinsburgh on the 25th of May, to the Potomac,- which he crossed on the 26th of May. There were-at Winchester nineteen head of cattle, supplied under said written contract *Z*to the forces of the United States by the petitioners, and which were for the use of the hospital at Winchester. And from the suddenness and hurried manner of Gen. Banks’ retreat, and the closeness of the pursuit by the enemy, it was not possible to save these cattle, which, with their keepers, were captured by the confederates.”

If these cattle belonged to the United States, what right have the claimants to demand pay for their capture *%*It would seem to be enough for the United States to lose them, without having to pay the value of them to parties who had no title to them. If, however, the cattle were the property of the claimants, I look in vain for any law which authorizes the rendition of a judgment against the United States for the value of private property captured by the enemy in the movements of the war.

Finally, as to the forty-two head of cattle taken by General *315Cooper j iu regard to which the facts found by the majority of the court are as follows:

> “On.the 25th of May, 1862, sixty-five head of cattle, sent by the petitioners from New Creek, under said written contract, for the supply of the Union troops, were received by their agent by railroad near Martinsburgh, and by him pastured in a field near there. On the retreat of Gen. Banks and the advance of the confederates, it was not possible to remove these cattle, as no men could be procured for the service. And *these*sixty-five head of cattle were captured by the confederates, and on their retreat they drove forty-eight head of these cattle near to Winchester, and left them there, and they were afterwards taken possession of by General Cooper, commanding the advance of Gen. Sigel’s division.”

Here is no finding of a delivery of the cattle to the Government ; and they unquestionably belonged to the claimants when they were captured by the rebels. By the rebels they were left near Winchester, where they were found by General Cooper, and taken into the possession of his troops, and without doubt appropriated to their use.,

As they went to feed troops of the United States, the claimants ought to be paid for them; but, in my opinion, this court has no jurisdiction of their claim. It was a clear case of appropriation of property by a portion of the Army to its own use; and jurisdiction of any such claim is denied to this court by the *Act July*4, 1864, (13 Stat. L., p. 381, ch. 240.) In *Filor*v. *United States,*(9 Wallace, 45,) the Supreme Court said, in interpreting that act: “ If the right to the property, or to its use, is not obtained by valid contract with the Government, the taking or use of it is an appropriation of it within the meaning of the act of Congress. * * * If the petitioners are entitled to compensation for the use of the' property, they must seek it from Congress. The Court of Claims can award them none.”

I regret the necessity which appeared to me to exist for this extended expression of the grounds of my dissent. When I am so unfortunate as to differ from my associates, I would ordinarily prefer a simple statement of the fact; but in a case involving such important questions as seem to me to be presented in this, I feel justified in stating my views more extendedly than in any ordinary case might be expedient.