#### Robert Kirkham & W. R. Brown *v.*The United States.

*On the Proofs.*

*Subsistence is furnished by the claimants to men not mustered into the service of the United*States, *under an agreement with the colonel commanding. Vouchers are issued therefor by the several captains of the respective companies. A certain amount is paid, and a receipt is given in full of all demands on said vouchers. Suit is brought claiming an addition to the amount paid.*

I. An officer of volunteers neither mustered into the United States service nor specially empowered to make contracts for subsisting his troops, cannot bind the defendants by express contract; nor are vouchers given by him evidence to bind the government.

II. Where there is no valid express contract, a payment received and receipt given, without objection or protest, are conclusive upon the contractor.

*Mr. A. L. Merrimcm,*for claimant:

This is a claim for $7,054 29, balance unpaid of certain vouchers issued to claimants for subsistence of the 131st regiment Illinois volunteers.

The vouchers, ten in number, were signed by the respective captains of the ten companies, and approved by the colonel of the regiment, George W. Neely.

In addition to the fact that these vouchers are evidence of the contract between the parties, it appears from the evidence that there was a separate written contract for the subsistence and lodging of these troops, at 38 cents per day, upon which basis these vouchers were made. This original contract, however, cannot now be produced.

We therefore claim that as the contract was made in good faith and at a reasonable rate, which contract was performed by claimants and the proper vouchers issued to them as evidence thereof, there was no substantial reason for such deductions, and that judgment should be rendered for the account so unpaid.

The *Assistant Attorney General,*for the defendants:

I. The contract is not produced nor accounted for, nor are its contents set forth or proven.

*224II. The contract was not authorized by the United States authorities, but by the governor of Illinois.

III. The contract was not made “by advertising a sufficient time previously,” and was therefore prohibited by law. *(Act of March*2, 1861, § 10, Stat. L., par. 12, p. 220.)

IY. The contract not being binding on the United States, and being unlawful, it is optional with the executive and legislative branches of the *government*how far *it shall he*adopted and how much shall be paid on it. This court cannot fix the amount.

Y. If allowed to recover on a *quantum, meruit,*the claimants cannot recover on the testimony before the court. The contract is alleged to have been for *subsistence.*Williams testifies that he *thinlcs*38 cents per day for subsistence *and lodging*was a reasonable charge. The regiment was *in camp,*and any charge for lodging the men is simply absurd.

And another reason why no recovery can be had on a *quantum meruit,*on the testimony, is that the claimants do not show what they furnished.

YI. The claimants have been paid for the subsistence furnished, and so far as the testimony shows they have been paid all they demanded. Every voucher upon which the claim is based is receipted in full. Where a receipt in full is given for a disputed or unliquidated debt, it is binding on the creditor, and is a bar to any action for the remainder of the amount claimed. *(Loughridge*v. *Dorville, 5*B. *&*Aid., 117; *Wilhinson*v. *Byers, 1*Ad. & El., 106; *Atlee*v. *Blaekhouse,*3 M. & W., 651; *McDaniel*v. *Lapham,*21 Yer., 223; *Palmerton*v. *Huxford,*4De-nio, 166; *Tuttle*v. *Tuttle,*12 Met., 551.)

YII. But in case a contract is held to exist on the part of the United States to pay these claimants for subsistence furnished by them, such contract certainly cannot be extended further than to pay for subsistence to men then or thereafter mustered into the service of the United States. The evidence furnished by the War Department shows that vouchers were issued for the subsistence of more men than were mustered in.

Casey, Ch. J.,

delivered the opinion of the court:

This is a claim for the recovery of $7,054 29,being a balance alleged to be due on several vouchers. The claim arose out of *225subsistence furnished to men who were afterwards mustered into the service of the United States and formed the 131st regiment Illinois volunteers, in the fall of 1862.

The subsistence was furnished by the claimants while the regiment was being recruited and organized, at Camp Massac, near the town of Metropolis, in Massac county, Illinois.

The petition alleges a contract made with Colonel Neely for the subsistence of these men at the rate of 38 cents per man per day; and vouchers are signed by the several captains of the respective companies certifying the number of men subsisted in the different companies, and for what length of time. The contract alleged with Colonel G-. W. Neely is not produced. The claimants allege that it was filed with the papers relating to their claim in the War Department ,• and the officers of the appropriate departments certify that after diligent search there they have been unable to find it. Colonel Neely was examined in reference to the contract, and says:

> “I made that contract for subsistence with Mr. Kirkham, one of the claimants; my authority for making the above contract was a general order issued by the adjutant general of the State of Illinois, confirmed and approved by Richard Yates, then governor of the State of Illinois; as I best recollect, that contract for subsistence, at above price, was reduced to writing, and is, I suppose, now on file in the proper office."

He says he approved of each of the vouchers, the balances on which is claimed in this suit.

It is not shown when this regiment, or any of the officers who give the vouchers in this case, were mustered into the service of the United States, or indeed that they were ever so mustered into the United States service, or had any lawful authority to sign these vouchers and thus create a charge against the United States. It rather appears that the subsistence was furnished before the regiment was mustered in, and while it was being recruited 5 and from Colonel Neely’s testimony, in making the contract he appears to have been acting under State authority, and not under any warrant or power from the national government. It must therefore be apparent that if Colonel Neely, who made the contract, and the officers who gave the vouchers, were not officers or agents of the United States at the time, their acts were not binding upon the government of the United States. This is the exact condition in which the evi*226deuce presented to us leaves this claim. Tliere was therefore no express contract in reference to this matter between the United States and the claimants. If there was any liability to paj1-, it arose on an implied engagement, irrespective of the contract with Colonel Neely, or the vouchers. That was to pay what the subsistence was worth. This the parties appear to have done, by fixing the rate of payment at 28 cents instead of 38 per man per day. This amount is paid by the United States and received by the claimants, and who at the time signed a receipt and acquittance in full of the vouchers. There is no evidence that there was any duress, or undue influence brought to bear on these claimants to compel or induce them to sign these receipts; nor that they protested or even objected at the time to the deductions then made. In the absence of such evidence we must presume that the whole thing was fair, open, and honest. The claim as against the United States was not a settled, fixed, and liquidated claim for any specific amount. At best, the only obligation was to pay so much as the supplies furnished should be reasonably worth, without regard to the contract of Neely or the vouchers. And the only inference we can draw from the evidence given is, that the deductions were made and the amounts adjusted with the consent and acquiescence of the claimants. A receipt in full of any demand is al ways *prima facie*that the whole claim has been paid and adjusted. It is liable to be rebutted and explained by evidence which shows that it was otherwise than it purports to be. But a receipt, as much as any other writing, is *prima facie*evidence of the fact it recites, and when it says that the payment was in full of any designated claim, it is proof of that fact, unless overthrown by other evidence in the cause.

The vouchers themselves are irregular: some of them are in the name of William E, Brown, others in the name of Kirkham *&*Brown; and if they were set up here as express contracts, would only support actions iiu the name of the parties to whom they were given.

Taking all the facts in the case, we think the case is not made out by the proofs laid before us, and we therefore dismiss the petition.