#### James Lindsley, for the use of Panamore et al., *v.*The United States.

*On the Proofs.*

*During the war an assistant quartermaster at Nashville, whose duty it is to promvre sand for military building purposes, sgieaks to the owner of a sand bed near the oity. The owner gives permission that the sand be taken upon the promise that he shall be compensated. After government teams have drawn away the sand the quartermaster estimates the amount taken at four thousand loads, and gives a voucher at seventy-five cents a load. The Quartermaster General subsequently holds that the price allowed is excessive, and reduces the amoimt alloived to the usual rate paid by the government, ten cents a load. There was no advertise**360*ment by the quartermaster for sand, nor order by the commanding general for procuring it withoxit advertisement, nor was the pretended coxitract ever reduced to writing.*

I.Under the *Aot 4Jk July,*1864, (13 Stat. L., p. 381,) which provides that the jurisdiction of the Court of Claims shall not extend to claims growing out of the *“appropriation of or damage to property hy the army or navy” “ engagedin the suppx'ession of the rebellion,”*the jurisdiction does not depend on the form of the transaction, nor the will or caprice of the officer procuring the property. Hence, where an officer takes fjroperty in an insurrectionary State, and makes promises of payment or gives vouchers, the owner doing nothing whatever on the faith of the pretended agreement, it will he held an approximation of x>roperty hy the army, and without the jurisdiction of the court.

II.The *Aot 2cl Jume,*1862, (12 Stat. L., p. 411, § 1,) which requires contracts with the government to he reduced to writing, (see *Henderson’s Case,*p. 75, *ante,)*is between the government and its contractors as a “ *Statute of Frauds;”*it does not xn'ohibit contracts, hut regulates the manner of making them.

III.A contract, not in writing, as required hy the *Aot 2d June,*1862, (12 Stat. L., p. 411, § 1,) for the sale of sand, to he taken from time to time from the owner’s bed hy the defendants, is void; and if the claimant can recover in any event, it will rest with him to show the value of the sand taken.

*Messrs. Weed, and Clarice*for tbé claimants:

Tbe claimants in this suit by their original petition seek to recover the sum of $2,600, being’ the balance due for sand sold by the claimant Lindsley to the United States, under an agreement made in its behalf by John 0. Crane, an assistant, quartermaster in the United States army. The facts shown in the record in this case are as follows:

1st. During the year 1864, the United States, in the prosecution of its military operations, found it necessary to use a large quantity of sand in the railroad machine shops and for other purposes at Nashville, Tennessee. The nature of the agreement between the claimants and the United States is best stated in the language of the witness, John C. Crane, with whom, as the agent of the United States, the agreement was made. He testifies that—

“ Mr. Lindsley was spoken to in relation to the sand, and gave permission that it might be taken, with the promise that he should be compensated in such amount as might be proper for his sand. The quantity of sand furnished by him, in my *361opinion, was mueb in excess of that for wbiob tbe voueber was issued, but, upon consultation and investigation, be seemed fully satisfied in payment of $3,000, seventy-five cents per load being a proper price.”

2d. That upon a settlement for tbe sand furnished under said agreement, bad between said Crane and said Lindsley after said sand bad been furnished, tbe said Crane, acting on behalf of tbe United States, issued and delivered to tbe claimant Linds-ley a voueber in due form for tbe sand delivered by said Linds-ley to tbe United States, stating tbe amount to be paid for it.

3d. That said voueber was not paid by said Crane for want of funds.

Tbe claimants will endeavor to maintain tbe following legal propositions as applicable to this case:

1st. That tbe quartermaster by whom this agreement was made bad authority to bind tbe United States in tbe manner and form stated by him, and an agreement so made is binding upon tbe United States.

2d. That tbe proof of tbe voueber offered in evidence in this case establishes *prima facie*tbe existence of the facts therein stated, and they are:

1. That tbe United States bad received from tbe claimant Lindsley four thousand loads of sand.

2. That they should pay him therefor tbe sum of $3,000. *(Parish,*v. *The United States,*2 O. Cls. R., 366.)

3. That tbe said assistant quartermaster, acting for and on' behalf of tbe United States, bad authority in bis official character to settle and adjust tbe demand of said claimant, Lindsley, against tbe United States for sand furnished .by him to said quartermaster for tbe use of tbe United States, and, upon such adjustment or accounting, said quartermaster bad authority to issue bis voueber for tbe amount due from tbe United States to said claimant upon such accounting.

4. That tbe issuance of such voueber upon such accounting by such officer, and proof thereof, is sufficient evidence to establish tbe existence of a debt against tbe United States in favor of tbe person to whom such voueber is issued for tbe amount stated therein.

5. That such account having been stated by an officer or agent of tbe United States, having authority for that purpose, tbe United States is concluded thereby, unless it is shown that *362its agent acted fraudulently or in bad faith, or that there has been- gross error or mistake in the statement of the account. (Ohittyon Contracts, 554.)

*The Assistant Attorney General*for the defendants:

It is claimed that a contract was entered into by John C. Crane, a quartermaster in charge of military railroads at Nashville, with the claimant, for the purchase of sand. Crane, who is the only witness who testifies as to ’the contract, says:

“ *I made no contract otherwise than a verbal one.”*

The terms of the contract, according to the same witness, were:

“ It was our custom, during that year, in Tennessee, to take possession of or use any material that we required for military railroads, and pay for the same, if the parties were loyal and entitled to the same. Mr. Lindsley was spoken to in relation to the sand, and gave permission that it might be taken, with .the promise that he should be compensated in such amount as might be proper for his sand.”

I. Under the *Act March*2,1861, (12 Stat. L., p*. 220,) the purchase was illegal. No public exigency existed. The fact that the sand was taken from time to time during eleven months is conclusive on this point.

IE The *Act Jtvne*2, 1862, (12 Stat. L., p. 412,) requires *all*contracts to be in writing, and signed by the contracting parties. This requirement is peremptory, and operates equally upon both parties. The officers of the government have no-authority to make a contract otherwise than as authorized by law; and the parties with whom they contract must inquire into and ascertain the extent of this authority. There is no difference in this respect between an agent of the government and an agent of an individual. *(Henderson’s Case,*decided at the present term of this court.)

III. There was no contract at all with the claimant. Crane says that “Mr. Lindsley *was spohen to in relation to the*sand, and gave permission that it might be taken, with the promise that he should be compensated in such amount as might be proper for his sand.” This statement is so vague that it amounts to nothing.

IY. If the taking of the sand raised an implied contract to *363pay for it, yet tbe *Act July*4, 1864, (13 Stat. L., p. 381,) excludes tbe claim from tbe jurisdiction of tbis court.

V. Tbe act of tbe claimant in receiving a portion of tbe claim — tbe amount of tbe claim and its validity being matters of dispute — bars bim of any suit to recover more. *(Lough-riclge*v. *Dorville,*5 B. & Aid., 117; *WilMnson*v. *Byers,*1 Ad. *&*Bl., 106; *Atlee*v. *Baclchouse,*3 M. *&*W., 551; *McDaniel*v. *Lapham,*21 Verm., 223; *Palmerton*v. *Kuxford,*4 Denio, 166 ; *Tuttle*v. *Tuttle,*12 Met., 551.)

Nott, J.,

delivered tbe opinion of tbe court:

Tbis is an action brought by tbe assignor of a claim for tbe use of tbe assignees, tbe equitable owners thereof. It is to recover $2,600, tbe balance alleged to be due for 4,000 loads of sand purchased by an assistant quartermaster for and on behalf of tbe defendants. Tbe facts are these:

In 1864, at Nashville, Tennessee, tbe quartermasters’ department of tbe army which held that city was building certain railroad factories and founderies. A large quantity of sand was required for tbe work. Tbe quartermaster whose duty it was to procure it, spoke to tbe claimant, tbe owner of a sand-bed. near tbe city. Tbe claimant *"gave permission that it might he talcen, with the promise that he should he compensated in such amount as might he proper for his sandP*After it bad been taken" tbe quartermaster estimated tbe quantity at 4,000 loads and fixed tbe price at seventy-five cents a load. There was no advertisement as required by the *Act 2d March,*1861, (12 Stat. L., p. 220,) and no order of tbe commanding general as required by tbe *Act teh July,*1864, (13 Stat. L.. p. 394, § 4,) neither was tbe alleged contract reduced to writing, as required by tbe *Act 2d*June, 1862, (12 Stat. L., p. 411 § 1.)

When tbe quartermaster’s voucher for tbis sand came before tbe Quartermaster General, be declared tbe price allowed excessive and unreasonable; and basing bis award on tbe price usually paid by tbe government for sand, be cut down tbe demand to ten cents a load and paid to tbe assignees $400. They duly objected to tbis reduction, and receiving it under protest, avowed their intention of seeking legal redress for tbe balance.

We are of tbe opinion that tbis court has not authority to bear and determine tbe action.

*364The“.Aciio *restrict the jurisdiction of the Court of.*Claims,” *ith July,*1864, (13 Stat. L., p. 381,) provides that its jurisdiction shall not extend among other things to any claim growing out of the *“ appropriation of or damage to property by the army or navy” engaged in the stippression of the*rebellion.” It is supposed that because the quartermaster spoke to Mr. Lindsley and procured his consent with an assurance of compensation, that the case is taken out of the restrictions of the statute. This cannot be so. The rights of the citizens of the United States and the jurisdiction of their courts cannot depend upon the caprice or partiality or politeness of any official. No power was ever given to any military officer to confer or withhold the jurisdiction of a court at his pleasure. The law conferred no authority on this quartermaster to say to one citizen “ I take your property by appropriation,” and to another “I take yours by contract.” The operation and effect of the statute must depend on some principle, and not on the mere form of the transaction occurring between the officer and the claimant.

It may be that this court is not restricted from jurisdiction of an action where the claimant has actually delivered his property, or rendered his service to the government on the faith of an agreement. That is, where one man in pursuance of a previous contract has brought in supplies, or another has rendered service, it,may be that his action will'not be withheld from us by the statute. If, for example, Mr. Lindsley had dug and carted and delivered this sand to the quartermaster at so much a load, and in pursuance of an agreement in due form of law, we do not say that this court could not entertain jurisdiction; for in such a case the government would have reaped a positive benefit from the agreement, and the claimants would have made a positive sacrifice on the faith of the agreement; and where there has thus been gain on the one side and loss on the other, and the gain has been acquired and the loss suffered on the faith of an agreement between the parties, it should if j)ossi-ble be upheld in a court of justice.- But in this case there was nothing gained by the government, nor lost by Mr. Lindsley through his consent. The government would have lost nothing, and he would have saved nothing if he had withheld it. There was no civil law to be violated, no constitutional obligations to be defied. The property was within a military camp held by. force of arms in a hostile country, and the rights of its owner *365depended, on tbe will of tbe commanding general. During tbe war one quartermaster seized property, and told tbe owner that be was a rebel, and seizing bis property served him right: tbe next also Sbized it but gave some soothing words with assur-an ces of payment, and perhaps tbe formality of a voucher. Tbe legal rights of a party cannot depend on, or be judged by such trivialities. They must be founded in positive law, and be independent of tbe will and pleasure of any officer.'

We have also looked into tbe merits of tbe case, sufficiently to feel confident that if we could entertain jurisdiction, tbe case would still fall within tbe decision in *Sender son’s Case,*(p. 75, cmte,) and tbe contract be held void under the *Act 2d June,*1862, (12 Stat., L., p. 411 § 1,) which requires all contracts to be reduced to writing.

Tbe estimate or appraisement of tbe quartermaster, and bis voucher for tbe sand, therefore, would not conclude tbe defendants. An officer can only bind tbe government in tbe manner prescribed by law, and not by a proceeding defiant of law. We do not say that a party who upon tbe faith of an agreement not in writing has parted with bis goods to tbe government may not recover for their value. There would probably be such a resulting liability from tbe acceptance and use of tbe goods. Tbe statute is between tbe government and its contractors as a statute of frauds: it does not prohibit contracts but regulates tbe manner of making them. But a claimant in such a case would have to establish tbe *quantwm, valebant,*of tbe goods. In this case tbe weight of evidence as to tbe value of tbe sand is with tbe defendants. Tbe price fixed by tbe quartermaster, and tbe manner of making tbe contract and managing tbe business illustrate tbe wisdom of tbe statute.

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

Loring, J.,

concurring:

I think tbe evidence shows that tbe sand was procured by a contract, and not by axipropriation. Colonel Crane, tbe quartermaster who procured tbe sand, thus testifies: “I made no contract otherwise than a verbal one.” This is his declaration that be made a contract, and be thus states its terms. “ Mr. Lindsley was spoken to in relation to tbe sand, and gave permission that it might be taken with tbe promise that be *366should be compensated in such amount as might be .proper for his sand.”

As the sand was taken by the permission of the owner obtained beforehand, and upon a promise to pay for it, I think the case shown is, in the language of the text-books, a sale for a reasonable price.

. But as the contract was not made in writing, nor signed by the parties, and was made without advertising, it is (as objected’ by the Attorney General) within the prohibitions of the acts of March 2,1861, and June 2,1862, and the decision in Henderson’s Case, and there can be no recovery on it.