#### MADDOX'S CASE. Joseph H. Maddox et al., appellants, *v.*The United States, appellees.

(5 Court of Claims R., p. *372; 15*Wallace R., p. 58.)

*On the claimant's Appeal.*

*The petition shows an agreement between the claimants and a Treasury agent for bringing out the products of insurrectionary States during the rebellion; an order of the President securing to them free passage through and safe conduct within the lines; a subsequent purchase of the products in Richmond, January,*1885; *and then that the property so purchased was in part “*burned and destroyed by tbe military forces;” “ in. part taken by tbe military forces,” *“*and converted to tbe use of the United States,” *and in part destroyed by the fire in Richmond. The defendants beloiv having demurred, the Court of Claims decides that the case comes under the decision of the Supreme Court in*Lane’s Case;i (7 *C. Cls. R., p.*97.) *Judgment for the defendants. The claimants appeal.*

A contract made during tbe rebellion between citizens of loyal States and a Treasury agent for tbe bringing out of products from within tbe lines of tbe insurrectionary forces is void when tbe products are not owned by tbe contractors, under tbe decision in *Lane’s Case,*(7 C. Cls. R., p. 97,) and no title can be subsequently acquired by tbe contractors, notwithstanding that tbe President has previously directed that tbe products shall be free from seizure or detention, and that the military and naval forces shall furnish facilities for getting them within tbe Union lines. • Tbe case is not distinguishable from *Lane’s,*for the differences between them relate to tbe character of tbe facilities for getting out tbe products, and do not affect tbe validity of the contracts.

*The Reporters'*statement of tbe case:

Tbe following áre tbe agreement of tbe Treasury agent and tbe indorsement tbereon of tbe President, constituting together tbe foundation of the case: '

Memorandum of agreement made November 13, 1864, between H. A. Eisley, agent authorized to purchase for the United States products of States declared in insurrection, of one part, and Benjamin F. Camp, J. H. Maddox, andD. P. Parr, of tbe other part.

Tbe said Camp, Maddox, and Parr agree to sell to said Eisley, agent as aforesaid, and to deliver to him at Norfolk, or New *71York, six thousand boxes of tobacco, three hundred and forty barrels of turpentine, and seven hundred barrels of rosin, to be transported by the way of the Cone and Potomac Bivers, and the said Bisley, agent as aforesaid, agrees to purchase the same on the following terms and conditions:

The said products to be sold in New York or Baltimore, by or under the direction of said Bisley, under the same conditions as other sales of like public property are made $ all expenses, costs, and charges, connected with the purchase, storage, transportation, and sale of the same, together with the internal-revenue tax and permit-fees prescribed by regulations, to be first paid, and the net proceeds, over and above such expenses, costs, charges, taxes, and fees, to be disposed of as follows : One-fourth part thereof to be retained by the United States, and three-fourths to be paid to the said Camp, Maddox, and Parr, or their legal representatives.

And it is further agreed between the parties, that all products transported under this contract shall be consigned to said Bisley, agent as aforesaid, and shipped on a Government transport, or, if not so shipped, shall be in immediate charge of an agent to be appointed by said Bisley, whose compensation and expenses shall be paid by said Camp, Maddox, and Parr.

Nothing in this contract contained shall be construed as incurring any liability on behalf of the United States.

“Executive Mansion,

*“November*17, 1864.

“ An authorized agent of the Treasury Department having, with the approval of the Secretary of the Treasury, contracted for the products above mentioned, and the parties having agreed to sell and deliver the same to such agent:

“ It is ordered that products" moving in compliance with and •for fulfillment of said contract, and being transported to said agent or under his direction, shall be free from seizure or detention by any officer of the Government; and commandants of military departments, districts, posts, and detachments, naval stations, gun-boats, flotillas, and fleets, will observe this order, and give the said B. F. Camp, J. H. Maddox, and D. P. Parr, their agents and transports, free, unmolested passage, for the purpose of getting said products, or any part thereof, through the lines, and safe conduct within our lines, excepting *72blockaded line, while the same are moving within, strict compliance with regulations of the Secretary of the Treasury, and for fulfillment of said contract with the agent of the Government.

“ABRAHAM LINCOLN.”

*Mr. James Hughes*for the claimants, appellants :

The case of *The United States*v. *Lane*does not rule this case, because:—

I. The facts were different, and *the point resolved*'was, that carrying an outgoing cargo was without authority of law or regulations pursuant to law.

II. All comments of the court made in the *Lane Case*which do apply to this case are *obiter dieta,*and subject to be reviewed and reconsidered in this case.

*The Solicitor-General*for the United States, appellees :

This case is similar to that of *United States*v. *Lane,*(8 Wall., 185,) in which it was held, after an able and exhaustive review of the statutory provisions and the Treasury regulations concerning the purchase of products of insurrectionary States, that a purchasing agent, acting in behalf of the United States, had no authority to negotiate with any one in relation, to the purchase of such products, unless at the time of the negotiation the party either owned or controlled them — that neither was the law, nor were the regulations through which it was administered designed to protect a speculation wherein the products contracted to be sold were to be procured by the contractor within the rebel lines *after the contract was made.*The petition shows'that the appellants were not the owners of the tobacco in question at the time the contract was made, but that it was purchased by them within the rebel lines long afterward. The contract was therefore void.

But granting that the contract was valid, still the facts presented, in the petition do not exhibit any ground of claim against the United States for a breach of that contract. Thus the petition does not allege, and the facts do not show, that the appellants were ready and willing, or were even in a condition, to perform fully the contract on their part — that is to say, to deliver the whole of the products contracted for. On the contrary, it merely alleges *“*that they were prevented from, delivering *734,042 boxes of said tobacco to said Eisley under said contract, *and in ¡part performance thereof,*by tbe conduct of said military forces of tbe United States.” Tbe contract made no provision for a part performance; and it is very clear that unless tbe purcbasing-agent was bound by tbe terms of tbe agreement to accept a part performance, tbe prevention of tbe contractors from mating sucb jtart performance would not amount to a breach.

If tbe claim bad any foundation at all, it was tbe damage sustained by tbe appellants, not in consequence of any supposed breach of contract, but in consequence of tbe action of tbe military authorities; and a claim of this character was not within tbe jurisdiction of tbe court. — (See *Act July*4, 1864,13 Stat., 381.)

Mr. Justice Davis

delivered the opinion of tbe court:

Tbe court below sustained a demurrer to tbe amended petition of these claimants, and this appeal is prosecuted to reverse that decision.

Tbe claim is for damages for an alleged breach of contract, and is based substantially on this state of facts: H. A. Eisley, Treasury agent at Norfolk for tbe purchase of tbe products of insurrectionary States, in November, 1864, contracted in writing to purchase from tbe plaintiffs in this suit, loyal citizens of tbe United States, a large quantity of tobacco, rosin, and turpentine, situated in tbe States of Virginia and North Carolina, to be delivered in Norfolk or New York, and sold at certain points mentioned, under tbe same conditions as other sales of like public property.

With tbe contract Eisley delivered to Maddox and bis associates a request for safe-conduct and means of transportation.

This request was presented to tbe President of tbe United States, who indorsed on it that tbe property to be transported under tbe contract should be free from seizure or detention, and that tbe military and naval authorities be requested to furnish tbe necessary facilities for getting tbe products within our lines. These products, at tbe time tbe contract was made and tbe military safe-conduct delivered, were not owned or controlled by tbe claimants, but they expected to procure them in or about tbe city of Eichmond, in tbe State of Virginia. In tbe months of January and February, 1865, they succeeded, in part *74performance of their contract, in purchasing a large number of boxes of tobacco — less, however, than they had agreed to do— which were subsequently either burned by our military forces, appropriated by them to the use of the United States, or destroyed in the fires in Richmond at the time it was captured in April, 1865.

The United States are now called on to make good the loss caused by the alleged wrongful conduct of their military officers, and the inquiry is, can they be required to do it in this suit *%*The main question involved in this inquiry is important, on account of the large pecuniary interests at stake, but is freed from all difficulty since the decision of this court in *The United States*v. *Lane,*(8 Wall. R., p. 185.) The cases are not distinguishable. In both the right to recover was based on contracts made by the same Treasury agent with private citizens, for the purchase from them of products which were within the lines held by the insurrectionary forces. In each case the agent requested safe conduct for the parties and their necessary means of transportation through the Federal military lines. In neither case were the products owned, or even under the control of those who had contracted to sell them, but in each case the parties expected, after they had secured their contracts, to go within the rebel lines and obtain the products which they had agreed to deliver. It is true in *Lane's Case*there were greater facilities for the execution of the contract and better security for its performance, for Lane was allowed to take out a cargo of goods to exchange for the cotton to be purchased, and this cargo was in charge of a sub-agent, under instructions not to deliver it until treble its value in cotton should be put on board the vessel.

But these proceedings were intended only as a means to an end. The performance of the contract was the principal thing to be effected, and the license to take out a cargo of goods, under certain restrictions, was, of necessity, given for the mere purpose of securing a desired result. If Maddox did not enjoy the advantage of a similar license, he had the use of other means, not accorded to Lane, which were expected to. accomplish a similar result. It is easy to see that he could have few things better adapted to fortify him against failure than the certificate of the President that the products moved by him should be free from seizure, accompanied by an order'on the *75commandants of military districts aud naval stations to aid him in his enterprise. Whether the facilities extended to Lane were more ample than those which Maddox possessed is an immaterial subject of inquiry. It is enough to say that the difference in the character of these facilities constitutes the only distinction between the cases, and that this difference is incidental merely — not necessary to the chief purpose in each, and in no wise affecting the validity of the contracts. If this be so, there is an end of this litigation, for the entire subject embraced in this contract was before us in *Lane's Case*and passed on. Lane, in his petition to the Court of Claims, stated that he made a contract with Eisley, the Treasury agent, at Norfolk, similar to the one in controversy, and for the purpose of executing it purchased a steamer at great cost, with which he proceeded to Chowan Eiver, North Carolina, and loaded with cotton procured there, and that on the return voyage the steamer and cargo were forcibly seized by the naval authorities, and the cotton appropriated to the use of the United States. For this alleged wrongful seizure of the vessel and appropriation of the cotton he claimed that his contract was violated, and that he was entitled to remuneration. Nothing is said in the petition about an outward cargo, but the Court of Claims found, as one of the facts of the case, that Lane had a license to take out in his steamer certain articles, a schedule of which was attached to the safe-conduct given by the military commander. Manifestly, from this statement of the case, the'contract was the foundation of the whole proceeding, and if made without authority of law, the vessel and cargo were not protected, but were subject to seizure and detention.

It was therefore necessary, in order to see whether the citizen had the privilege of trading with the enemy in the manner contemplated by this contract, to review the statutory provisions, Treasury regulations, and executive orders concerning the purchase of the products of insurrectionary States. This was done, and after careful consideration we held that a purchasing agent, acting on behalf of the' United States, had no authority to negotiate with any one in relation to the purchase of such products, unless at the time of the negotiation the party either owned or controlled them; that neither was the law nor were the regulations through which it was administered designed to protect a speculaiion wherein the products con-*76traetecl to be sold were to be procured by tbe contractor witbin the rebel lines after the contract was made. Besides this, we decided that private citizens were prohibited from trading at all in the insurrectionary districts; that the object of the law, and the regulations made to carry it into effect, was to encourage the insurgents themselves to bring their products to us.

There were other elements of decision, but as they are not applicable to this suit they will not be noticed. It is unnecessary to restate the argument in support of the judgment in *Lane’s Case.*At the time the subject received our best thoughts, and reflection has only served to confirm the correctness of the decision.

These claimants occupy exactly the status of Lane. Bisley, therefore, in his character of Treasury agent, had no power to deal with them at all; but if it were otherwise, the contract which he did make was unlawful, for théy were nob the owners of the tobacco in question, nor did they control it even at the time the contract was made, but purchased it long afterward within the confederate lines..

The judgment is affirmed.