#### HEATHFIELD'S CASE. Thomas D. Heathfield *v.*The United States.

*On the Proofs.*

lit I860 *a quartermaster enters into two informal agreements with one G.for the purchase of*80,000 *bushels of oats. The agreements speeifg that the oats are to be furnished through one II. H. furnishes the oats, which are inspected and accepted by the proper officer of the Quartermaster Department, and then slipped by the Department from Boston to Washington. On their arrival they are alleged to be unmerchantable. A board of survey is ordered to examine them, and on the report the Quartermaster-General directs a reduction to be made from one of*two *vouchers held by II. S. accepts payment of one voucher •with hnowledge of this order, but refuses to receive the reduced amount of the other. Upon it he now brings his action. Both vouchers are in his name, and not in the name of G.*

I. "Where an express contract is void, the person who has delivered his goods to the Government may recover on the implied contract in *quantum meruit.*

II. Where a quartermaster and the assignee of a contract "both treat the contract as a nullity, the assignee actually furnishing the goods, and the quartermaster dealing with him, giving him vouchers in his own nanje and certifying- that he purchased the goods from him, an action on the vouchers is projierly brought in the name of the party in interest.

III. If the Government is not hound by the inspection of its official inspectors nnderthereceut decision of the Supreme Court in *Justice’s Case,*(ante p. 37,) nevertheless the burden of proof is on the Government to show its loss, and the extent of it, by reason of the inferiority of the goods received.

IV. A military hoard of survey is an *ex-parle*tribunal whose decision is not binding upon a contractor, nor are its proceedings evidence against bim. If the record is admissible for any purpose, it is simply to show that a hoard was ordered- as an incident of the dispute.

*214Y. Acceptance of payment of one voucher by a contractor, with knowledge of the fact that the Quartermastor-General has ordered a reduction to be made on another voucher for an alleged deficiency of the goods de- ° livered, does not make the case one of compromise, under *Child, Pratt Fox*and *Clydds Cases,*(7 C. Cls. R., pp. 209, 262.) The distinction is that there the contractor accepted without protest all that the Quartermaster-General offered, while here he not only objected to the reduction, but positively rejected the proffered compromise.

*Mr. Charles E. Bike*for the claimant:

This claim is founded upon an agreement made io June, 1865, between one A. Girard (by bis agent, E. Kiernan) and Charles W. Holt, captain and assistant quartermaster United States Army. The amount claimed is for the price ($3,331.79) of certain oats delivered under said agreement, with interest thereon; and also for the interest upon the price ($12,503.20) of a certain other quantity of oats delivered ünder the same agreement, but payment for which was delayed. The agreement was for the delivery in Boston of 80,000 bushels of oats at 68 cents per bushel, subject to weight and inspection. The petitioner, Heathfield, is the party in interest, and is entitled to bring this action. Under said agreement there were delivered (July 31, 1865,) 5,193f J bushels of oats, which have never been paid for.' Said oats were inspected and received as of good quality by the Government inspector at Burlington, and also by the Government inspector at Boston, by which latter inspector they were also weighed, and account rendered to .Holt.

When an article is sold subject to the inspection of the purchaser or his agent, and is received upon such inspection, there is no warranty of quality on the part of the *vendor.*— Allen v. *United*States, (3 C. Cls. B., p. 93.)

The Government in this case is concluded by the inspection and approval of Clark and *Dudley.*— Brown v. *United States,*(1 O. Cls. B., 309.)

The cases above cited must control the decision in this case unless the Government can show that there was fraud or concealment practiced upon the inspector, or collusion between the inspector and the contractor or claimants, for the purpose of defrauding the *Government.*— Brown v. *United States,*(1 C. Cls. B., 309;) *Richardson v. United*States, (2 O. Cls. B., 500;)-*215
      *Allen*v. *United States,*(3 O. Cls, B., 93.) But there is no proof of any such fraud, concealment, or collusion.

If the oats are proved to have been bad at the port of delivery, that fact does not justify the inference that they were bad when shipped. If there was an intermixture of good and bad oats furnished by several parties the vendor of the good oats is not responsible for the *consequences.*— Allen v. *United States,*(3 0. 01s. B., 93.)

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

Nott, J.,

delivered the opinion of the court:

In June, 1885, the defendants, by Captain Charles W. Holt, an assistant quartermaster, entered into two informal agreements with one Girard for the purchase of 80,000 bushels of oats. The agreements specified that the oats were to be furnished through the claimant, and that drafts were to be drawn by Girard in favor of the claimant, which the quartermaster was to accept and pay.

Under these agreements oats were furnished by the claimant which were inspected and accepted by the proper officers of the defendants, and were then shipped by the Quartermaster Department from Boston to Washington. Two quartermaster’s vouchers in the name of the claimant at the same time were given to him, the one for $12,503.20, the other for $3,531.79.

On the arrival of the oats at Washington they were found to be unmerchantable, as is alleged; a board of survey was appointed to examine them, and the Quartermaster General ordered that the voucher for $12,503.20 be paid in full, but that a reduction of $3,320.33 be made from the other. The claimant, with knowledge of this order, accepted payment of the former voucher, but refused to receive the reduced amount of the latter, and upon it he now brings this action in his own name.

It is contended by the defendants that Girard’s contract existed, and could not be assigned under the *Act nth July,*1862, (12 Stat. L., p. 596, § 14,) and that it is void under the *Acts 2d March,*(12 Stat. L., p. 220,) and *4th July,*1864, (13 *Id.,*396, § 4.)

Conceding that these objections are well taken, it does not follow that the party is without redress. It is well settled that *216where an express contract is void the person who has delivered •his goods to the Government may recover on the implied contract in *quantum meruit.*As to the objection that the claimant cannot maintain his action because of the agreement between the defendants and Girard, it is hot perceived how he can be hindered by a contract which both parties have treated as a nullity. The claimant actually furnished the grain, and the quartermaster dealt with him, giving him vouchers in his own name and certifying that he purchased the grain of him. If the right of action depended upon the express contract, it might be that the action must be brought in the name of the contractor. But here the express contract never had a legal existence 5 and the defendants dealt with the party in interest in his own name. They cannot now aver that the express contract was void, and at the same time avail themselves of its conditions.

It is also contended that the oats were of inferior quality; that the Government is not bound by the inspection of its official inspectors under the recent decision of the Supreme Court in *Justice’s Case,*(ante, p. 37;) and that the deduction ordered by the Quartermaster-General should be sustained.

If this position can be sustained and the decision of the Supreme Court goes the length contended for, nevertheless the burden of proof is on the defendants to show their loss and the extent of it. In this case the claimant has not relied upon inspection and acceptance, but has called witnesses to prove the good quality of the grain delivered, and the weight of the testi-timony is decidedly in his favor. The defendants’ case depends upon the finding of a board of survey which recommended the deduction ordered by the Quartermaster-General. Wehave repeatedly held that the decision of such an *ex-parte*tribunal is not binding upon contractors, nor are its proceedings evidence against them. If this record of the board of survey can be admitted for any purpose, it is simply to show that a board was ordered as an incident of the dispute.

It is also contended by the defendants that the order of the Quartermaster-General rendered the case one of dispute, and the acceptance of payment under that order by the claimant rendered it one of compromise, under the decisions of the Supreme Court in *Child, Pratt & Fox*and *Clyde’s Cases,*(7 C. Cls. R., pp. 209, 262.) The distinction, however, between this and *217those cases is this: that there the claimant accepted and received without objection or protest all that the Quartermaster-General offered; while here he not only objected to the reduction, but positively rejected the proffered compromise. Accepting payment of an amount which was then unquestionably due, and the payment of which did not in any manner waive or affect the legal rights of the defendants, cannot conclude the claimant from prosecuting his reserved cause of action. The purpose of the Quartermaster-General in ordering the reduction to be made on one voucher, and that the smallest of the two, was probably to enable the claimant to do what he has done without the additional risk and harassment of having all of the money due to him needlessly withheld.

The judgment of the court is that the claimant recover of the defendants $3,531.79.

Loring, J., concurred in the result that the claimant is entitled to judgment.,