#### Hosea B. Emery et al. *v.*The United States.

*On the Proofs.*

*An order is issued by Mayor General Canby, commanding a military division, to Ms quartermaster at New Orleans, directing him to charter or impress vessels for the expedition against Mobile. The quartermaster accordingly charters the schooner Montezuma. The rate agreed upon is not 'unreasonable, but exceeds that prescribed for such vessels by the Quartermaster General. The Quartermaster General disapproves the charter and refuses to pay the rate agreed upon. The schooner, nevertheless, voluntarily remains in the service till January,*1866. *The owners finally accept the compensation alloived by the Quartermaster General, under protest, and with notice that they will seelc legal redress for the balance..*

I. The provision in tlie *Act 4th July,*1864, (13 State L., p. 394, § 4,) which authorizes a commanding general to order the procurement of supplies in a military emergency without advertisement, is limited to *“the continuance of the emergency.”*Hence where a vessel remains in service voluntarily after the emergency is past, sho must remain at the rate prescribed by the Quartermaster General and cannot receive that agreed upon in her charter-party. The distinction between this case and *Baker and Folsom’s*(3 C. Cls. K., p. 343) pointed out.

II. The law of general and special agents is applicable to general and subaltern officers in their relations with the government. The special agent cannot exceed the instructions of his principal, nor the subaltern officer the regulations of his superior. Hence where the Quartermaster General prescribes the rates at which vessels may be chartered, and a quartermaster exceeds those rates, the vessel voluntarily remaining in the *402service after her charter-party is disapproved by the Quartermaster General, the eharter-party is void for the excess of compensation. The principle laid down by Peels, J., in. *Stevens’ Case*(2 C. Cls., R. p. 95) cited and approved.

*Messrs. Chisman mid Sosmer*for tbe claimants:

This is an action based upon tbe stipulations of a charter-party entered into between tbe claimants and tbe United States at New Orleans, on tbe 18tb day of March, 1865, under which tbe schooner Montezuma, of Bangor, Maine, was received into tbe military service. Tbe charter took effect at 12 o’clock a. m. (midnight) of said day. Tbe charter rates agreed upon were $1,090 per month, which was to be paid “as a freight or hire of the said vessel during the term of this contract,” the charter to continue in force as long as said vessel may be required by the United States War Department. The vessel .continued in service under this charter-party until January 20, 1866, at 12 o’clock, noon, making ten months and two and a half days. The earnings of the vessel at the charter rates were $10,990 83. The claimant has received, on account of services rendered, $9,181 85, leaving a balance due of $1,808 99.

The Montezuma was one of the many vessels chartered or seized by the government at New Orleans in furtherance of General Cabby’s Mobile expedition. The usual order issued by General Canby is indorsed upon the charter-party, and is made part of it. The charter-party was forwarded to the Quartermaster General, who, on April 5,1866, sent a letter to General Canby’s chief quartermaster disapproving the charter, and stating that “ $4 50 per ton per month is considered a fair price,” and that on the Atlantic coast “quartermasters find no difficulty in procuring vessels at that rate.” The owners, however, were not paid for the hire of their vessel at *mvy*rate, until long after the final discharge of the vessel, the first payment ordered to be made being February 24,1866, at $5 50 per ton per month. This amount was received under protest by the owners.

Later, viz., in June, 1865, the Quartermaster General made a further allowance; the total being as above given. This last amount also was received under protest, it being distinctly understood by the Quartermaster General and claimants that the balance still due under the charter-party would be con*403tested before tlie Court of Claims. Tbis general outline, taken from tbe proofs, presents about all tbe points necessary to be noticed. We remark, upon tbe law of tbe case, that there are no principles presented wbicb have not in previous cases tried before tbis court 'been fully established. Tbe *George Caleb Case,*3 C. Cls. It., p. 351, was identical, in fact and in law, with tbe case at bar. Tbe *Pratt Case,*reported in tbe same volume, p. 105, was similar also to tbe present one. We think tbe liability of tbe government in these cases so clearly settled as to relieve us from all discussion of legal principles involved.

Mr. *T. R. Talbot,*(with whom was tbe *Assistant Attorney General)*for tbe defendants.

Nott, J.,

delivered tbe opinion of tbe court:

Tbis is an action brought to recover $1,808 99, an alleged balance due upon tbe charter-party of tbe schooner Montezuma.

On tbe 8th February, 1865, Major General Oanby, commanding tbe “ *Military Division of West*Mississippi,” issued tbis order to tbe chief quartermaster of tbe *"Department of the Gulf:” * * * **“If it be necessary to seize or charter any private transports, either steamer, sailing vessels, and barges, to carry out promptly tbe instructions given by Major General Canby, concerning tbe transportation of troops and supplies to Mobile and Pensacola Bays, you are thereby authorized and directed to cause tbe same to be done.”

Under tbis order tbe assistant quartermaster intrusted with its execution, Captain F. W. Perkins, chartered tbe schooner Montezuma, then at New Orleans, at tbe rate of $1,090 a month. Tbe charter-party took effect from tbe 18th March, 1865, and tbe schooner continued in service under it until tbe 22d January, 1866.

Before tbis charter-party was executed, tbe Quartermaster General bad fixed the limit of rates at wbicb vessels were to be chartered for tbe military service. Tbe rate of tbe Montezuma’s charter exceeded the ^Quartermaster General’s limit.

As was shown in tbe cases of *BaJcer and Folsom*and of *Caleb,*(3 O. Cls. B>., pp. 343, 351,) vessels could not be chartered at that time in New Orleans at tbe official rates; and, apart from the Quartermaster General restrictions, tbe amount agreed upon in tbis case was not unreasonable.

*404On tlie 5th April, 1805, the Quartermaster General disapproved all the charters-party of those vessels, and directed that their compensation, be reduced to the official rates. It does not appear when this disapproval was communicated to the captain or owners of the Montezuma, nOr when their first demaud for payment was made.

After the schooner had gone out of service, a payment was made by the Quartermaster General at the rate of $693 a month, which was subsequently increased to $910 84. Both payments were received under protest and with an avowed intention of seeking the balance by legal redress.

It is insisted on the part of the claimants, and apparently conceded on the part of the defendants, that this case is identical with the cases referred to in 3 C. Cls. R., pp. 343, 351. But to the court there appears to be an important distinction. The contracts of affreightment there were sustained upon the sole ground that the vessels were chartered for a military emergency, under the express orders of the commanding general, and that their service in all things complied with the *Act Uh*July, 1864, (13 Stat. L., p. 394, § 4,) and did not continue beyond *“the oontinucmce of the*emergency.” In this case the service continued until long after the war had ceased. The other vessels left the service in June, 1865, but the Montezuma continued till January, 1866. The question, therefore, is, does the statute sustain such an agreement? We think not.

The words of the *Aet “ to provide for the better organization of the quartermasters’*department,” (13 Stat. L., p. 394, §4,) are explicit and decisive:

> “That when an emergency shall exist requiring the immediate procurement of supplies for the necessary movements and operations of an army or detachment, and when such supplies cannot be procured from any established depot of the quartermaster’s department, or from the head of the division charged with the duty of furnishing such supplies, within the required time, then it shall be lawful for the commanding officer of such army or detachment to order the chief quartermaster of such army or detachment to procure such supplies *during the continuance of such emergency and no longer,*in the most expeditious manner and without advertisement; and it shall be the duty of such quartermaster to obey such order.”

Apart from this statute and the order issued under it, the *405claimants’ charter-party atéis wholly void. The assistant quartermaster at New Orleans had no right to contract Avithout the preAdous advertisement required by the *Act 2d March,*1861, (12 Stat. L., p. 220,) and had no right to give an excessive compensation forbidden by his superior officer, the Quartermaster General. Of both the law and the fact the claimants were chargeable with knowledge. A special agent cannot exceed the instructions of his principal, and “the law of general and special agents is applicable to general and subaltern officers in their relations Avith the government and its contractors.” *Stevens’ Case,*(2 O. Cls. R., p. 638.) The charter-party, therefore, can be upheld only to the extent authorized by the statute, and the statute limits it *to 'the continuance of such emergency and no longer*

In the cases before referred to the evidence showed that the emergency had ended and the vessels were returned to New Orleans and discharged from service in the month of June. We are satisfied that the same course should have been pursued with this vessel, and that her charter-party could not have been continued, legally, longer. This ruling will sustain the legal existence of the charter-party from the 18th March to the 18th June, a period of three months. For that period the claimants may recover the difference between the price agreed upon “($1,090 a month) and the price paid, ($910 84.)

The judgment of the court is that the claimants recover of the defendants the sum of five hundred and forty dollars, ($540.)