#### John H. Waters *v.*The United States.

*On the Proofs.*

*The owner of the Union Motel, in Georgetown, D. G., leases it to cm assistant quar- ■ termaster for a hospital at*$500 *a month. There is no specified term agreed upon. Notice is given to terminate the lease, the premises a/re vacated, and the owner has been three daysin the “actual enjoyment” of them, lohen, liy an order of Brigadier General Wadsworth, military governor of Washington, they are taken possession of, and again used as a military hospital. For this second*
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      *oeeupmicy the owner is allowed*$100 *a month by the Quartermaster General. There is a certificate given after the transaction by the assistant quartermaster to the owner, and attached to his deposition offered in the evidence. Also a letter from the Quartermaster General to the owner subsequent to the transaction.*

I. Tlie official reports and correspondence of public officers made and carried on in the line of their duty are admissible in evidence; hut it is not the business of a public officer to make admissions against the government, nor can such admissions hind the defendants. Hence, a certificate given to a party by one public officer after the transaction, or a letter written to him by another, is not competent evidence.

II. Exhibits attached to the deposition of a claimant, and proved in no other way, fall with it, since the *Act 25th June,*1868, (15 Stat. L., p. 75, § 4.) See *SubbelVs Case,*p. 37, *mite.*

III. If a tenancy at the will of the parties is terminated by notice from the tenant, and his vacation of the premises is complete, and the landlord enters and is in the actual enjoyment of them, the tenancy must be deemed wholly at an end; a re-entry of the tenant by right of eminent domain must be deemed a new tenancy under an implied lease.

IY. The rent under an implied lease, when the government has taken forcible possession of property, like the consideration in all implied contracts, is the fair value of the thing taken.

Y. The *Act to restrict the jurisdiction of the Court of Claims, 4th July,*1864, (13 Stat. L., p. 381,) which provides that its jurisdiction shall not extend to claims growing out of the *“appropriation” “ of property by the army or navy” “ engaged im the snppi-ession of the rebellion,”*seems to imply that property *“ talcen for the use of, and used by, the a/rmy,” “ in States not im rebellion,”*shall be deemed taken under an implied contract. And where a building in the District of Columbia is taken by the military governor of Washington as a military hosintal, but is treated by the War Dexiartment as held under an implied lease, the court cannot say that it was property appropriated by the army, and will entertain jurisdiction of an action for a balance of the rent.

*Mr. T. J. D. Fuller*for tbe claimant.

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

Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $6,250 for the rent of, and for certain injuries to, the Union Hotel, in the city of Georgetown.

On the 9th of May, 1861, a verbal contract was made between the claimant and Captain Camp, assistant quartermaster of the *391United States army, whereby the Union Hotel, in Georgetown, with the furniture therein, was leased to the defendants for the purposes of a military hospital, at a rent of $500 a month. No certain term was named in this verbal lease. In one report Captain Camp says he “hired the building for no specified time in another, that it was “ for such time as it might be required by the government for hospital purposes.”

On the 19th May, 1862, notice was given to the claimant terminating the lease, and the building was vacated by the defendants. The rent for this period, it is tobe noted, has been paid. But on the 24th June following, a military order was issued by Brigadier General Wadsworth, military governor of Washington, directing that the hotel be taken possession of as a hospital. This was done, and for one year it was thus occupied by the defendants. For this second term of occupancy the claimant has been paid $100 a month by the Quartermaster General, and the chief question at issue is whether the former lease continued and bound the defendants.

Two points have been strenuously insisted upon by the counsel of the claimant. The first is an expression in a letter from the assistant quartermaster to the claimant to the effect that “ it was understood that it (the hotel) would be occupied as long as any building for hospital purposes in Georgetown^’ This letter is neither competent evidence nor sufficientlyproven. The official reports and correspondence of public officers made or carried on in the line of their duty, we have always admitted as evidence bearing the moral sanction of an oath. But it is not the business of a public officer to make admissions against the government, nor can any such admissions bind the defendants. This letter formed no part of the contract, but was a sort of certificate given subsequently to the claimant, and having none of the characteristics of an official report relating to the transaction. It is also brought into the printed case merely as an exhibit to the deposition of the claimant given in his own behalf, and is proven in no other way. The deposition being now incompetent under the recent act of Congress, *(Act*25 *June,-*1868,15 Stat. L., p. 75,) the exhibit falls with it.

The second point insisted upon by the claimant is that he was not restored to possession on the 19th May, 1862, but that the defendants were holding over in fact when the order of General Wadsworth was issued. To sustain this another expres*392sion is relied upon to be found in a letter from the Quartermaster General to the claimant, bearing date August 23,1862. It is that the government “ ordered this house vacated, *which was about to be done*when a public calamity compelled the military authorities to order its repossession by this department.” This letter is open to every objection stated against the other, and the ambiguous phrase *“*which was *about to be done*when a public calamity compelled the military authorities *to order its reposses*sion.,” is completely overthrown by the claimant’s own admission in his reply to the Quartermaster General, wherein he says, “ It required nearly one month *to complete the vacation, after wMch*I incurred an expíense of about $200 to put the premises in tenantable condition, *and had been in the actual enjoyment of them for only three days*when I was ordered to give them up to the government.” This is as clear and explicit as a declaration could be, for if the vacating of the premises was “ complete,” and the landlord'in the *"actual*enjoyment” of them but a single hour, the old tenancy at will was at an end.

It also appears that there was an actual change in the thing leased, or rather that a different and lesser thing was the subject of the second occupancy. This difference was the furniture. It went with the building under the first lease, but Avas not possessed or used by the government in the second term. What was the difference in value is not shown 5 but that there was an essential difference is undeniable. Therefore, there was equitably as well as legally a new holding on the part of the government, essentially differing from the first.

But the evidence shows that the rent of $100 a month paid by the quartermasters’ department for this second term was not the true value of the property. The testimony of Mr. Edward Clark, the government architect of the Capitol extension, a gentleman familiar with the value of property and the rates paid by the government, states that “ a fair rental for the year commencing June, 1862, and ending in June, 1863, would have been from $200 to $250 per month.” We are satisfied that this estimate is a reasonable one, and that the claimant should recover the balance if there is no legal reason to the contrary.

The hotel, as we find the facts to be, was taken by a United States quartermaster for a military hospital-, by the order of the military governor of the military district of Washington. Was this an ‘ ‘ *appropriation*” by the army Avithin the meaning of the *393
      *Act 4th July,*1864, (13 Stat. L., p. 381,) which, provides that “the jurisdiction of the Court of Claims shall not'extend to or include any claim against the United States growing out of the destruction or appropriation of, or damage to property by the army or navy, or any part of the army or navy engaged in the suppression of the rebellion, from the commencement to the close thereof?”

There have been two cases in this court somewhat bearing on the case at bar. The first is that of *Claris,*(1 C. 01s. B., p. 145.) There the building was in like manner taken by the military governor of Washington, and this court held that the claimant might recover. But the opinion places the decision upon the ground that the building “was used by a bureau in one of the executive departments of the government, and was *occupied exclusively by persons engaged in the civil service of the United States.”*Here the building was not used by one of the “executive departments” nor occupied “by persons engaged in the civil service,” but was held as a military hospital.

The second case is that of *Ayres,*(3 C. Cls. B., p. 1.) There the building was taken by the quartermaster for the use of the pay department. No rent was ever paid and no lease was ever acknowledged; and the building was situated at Memphis and was occupied for two years during the war. A clerk of the quartermaster, who was sent to select a building, promised the owner that he should be paid a reasonable rent. But the court held that the clerk had not “ *competent authority to bind the United States for the payment of the rent,'”*and the occupation of the building was “ *an appropriation of property by the army, and therefore excluded from our jurisdiction by the express terms of the act.”*

The act of 1864 manifestly relates to two classes of claims. The first embraces those arising from the ravages of war. The terms *“destruction of”*and “ *damage to”*can have no other meaning. But the term “ *appropriation of”*has an entirely different signification. “ *To appropriate is to talce from another to onés self with or without violence.”*(Worcester.) It is a term which excludes the idea of purchase and relates to those acts of military power which exist and belong within the state of war, and which are. generally confined to an enemy’s country.

The statute implies this last restriction. Its second section provides for the payment of “claims of loyal citizens *in States*
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      *not in*rebellion, for quartermaster stores actually ftirnisbed to the army of the United States and receipted for by the proper officer receiving the same, or *which may have been talcen by such officers without giving such receipt.”*And it is made the duty of the Quartermaster General, “if convinced” that the claim “is just, and of the loyalty of the claimant, and that the stores have been actually received *or talcen for the use of and used by said army,”*to report it to the Third Auditor for settlement. The third section, in like manner and in the same terms, provides for the payment of claims “for subsistence actually furnished” to the army “ *by loyal citizens in States not in*rebellion.” Thus it would seem to be the intent of the law that property “taken for the use of and used” by the army in the loyal States should be deemed taken under an implied contract, while property taken and used in the enemy’s country is to be deemed property appropriated by th$ army.

It is not, however, necessary to go to that length in this case, for in addition to the fact of the building in question being within the District of Columbia, and taken by officers engaged rather as a police force for the national capital than *"in the suppression of the*rebellion,” within the meaning of the act, it has also been recognized by the War Department as held under an implied contract.

An executive department undoubtedly has the right to make or ratify an implied' contract not forbidden by law, and represents, and in an executive sense is, the government. When the War Department treated this property as held by contract and paid the owner for or on account of its use, the court cannot say that it was property “appropriated by the army,” but must treat it as the government treated it, as property held under an implied lease. The rent under such a lease, like the consideration in all implied contracts, is the fair value of the thing taken.

There is also a claim in the case for $200, arising from injuries done to the premises under the first iease; but this we must dismiss for want of proof. And there is also a third item for injuries to the claimant’s ranges, furnaces, and gas fixtures, and of it the architect, Mr. Clark, who had charge of the repairs made by the defendants at the end of the-second term, says: “ As to the kitchen and ranges, the articles supplied and left there were considered as equivalent for the ones found there *395and tbe use of them.” The claimant has not accounted for these articles, and he must he deemed to have accepted them in satisfaction of the injuries complained of.

The judgment of the court is, that the claimant recover the sum of twelve hundred dollars, ($1,200'.)