United States v. Adams

• Decision Date: 01 December 1868
• Citation: 74 U.S. 463,19 L.Ed. 249,7 Wall. 463
• Parties: UNITED STATES v. ADAMS
• Court: U.S. Supreme Court

74 U.S. 463

19 L.Ed. 249

7 Wall. 463

UNITED STATES v. ADAMS.

December Term, 1868

APPEAL from the Court of Claims.

The suit was founded on the petition of Adams, claiming a balance against the government on contracts with General Fremont, commanding the Western Military District, for the construction of a certain number of mortar-boats and steam tug-boats, to be used on the Western rivers in the late civil war. The contracts were alleged to have been made on or about the 24th of August, 1861, for the mortarboats, at a cost of $8250 each; and on or about the 10th of September following, for the steam tug-boats, at the cost of $2500 each. The petitioner was also to build cabins and pilot-houses, and construct steering apparatus, and windlasses on the steam-tugs, for which he was to receive the sum of $1800 in addition for each boat.

After these boats were constructed they were received into the service of the government by the orders of the Secretary of War. This was in the latter part of November, 1861. Previous to this, on the 14th of October, of that year, General Fremont was superseded in his command. And, in consequence of representations of frauds and irregularities committed by General McKinstry, the chief quartermaster of the army of this military district, who had charge of making contracts for supplies and materials necessary for equipping the troops for the expedition

contemplated, and who made the contracts, among many others, in question, the Secretary of War, by order of the President, suspended payments upon all contracts within the department until an investigation could be had into the charges thus made.

General McKinstry was afterwards dishonorably dismissed the service for frauds found to have been committed against the government while serving as chief quartermaster of this army. And, after his suspension, on the 25th of October, 1861, the secretary, by a like order, appointed a board of commissioners 'to examine and report, to the Secretary of War, upon all unsettled claims against the military department of the West, that had originated prior to the 14th of October, 1861, the day General Fremont had been superseded.' This board, composed of three gentlemen of the highest intelligence and character (Messrs. David Davis, Joseph Holt, and Hugh Campbell), met, without delay, at the city of St. Louis, the headquarters of the military department in which the irregularities and frauds in its administration, as charged, had been committed, and entered upon their duties; first giving notice to all persons holding claims against the government to present them for examination, with such proofs and explanations as the claimant might think proper to exhibit. Under this notice, the petitioner, on the 10th of December, 1861, presented his claims, which were as follows:

The United States to Theodore Adams, Dr.

For building 38 mortar-boats for the United States, as

per order of Major-General Fremont, herewith

attached, August 24, 1861,........ $313,500 00

Deduct this amount, paid by Major McKinstry on the

--- day of ---........... $75,000

Deduct this amount, paid by Major A. Allen,

quartermaster, 7th to 12th November, 55,000

Total to be deducted,......... 130,000 00

---------

Balance due,....................... $183,500 00

---------

On this account the commissioners allowed the

petitioner........................ $75,959 24

For building 4 hulls for tug-boats for the United States,

as per contract herewith, dated September 10, 1861,

by Major McKinstry, quartermaster, at $2500 each,. $10,000 00

For building 4 hulls for tug-boats for the United States,..........................................

as per contract herewith, by Major McKinstry,

quartermaster, dated September 21, 1861, at $2500

each,............................. 10,000 00

For building 8 cabins for tug-boats for the United

States, as per contract herewith, dated September

20, 1861, by Major McKinstry, quartermaster, for

$1800 each,....................... 14,400 00

---------

$34,400 00

---------

Deduct amount already paid,........ 9,000 00

Balance,........................... $25,400 00

---------

On this account the commissioners, deducting

therefrom $5204 from the charge for tug-boats,

allowed the petitioner............ $20,196 00

For these several sums, $75,959.24 and $20,196.00, this board gave vouchers to the claimant as due from the government on these contracts, and received from him a receipt in full of all demands, which he signed under protest. When the papers were exchanged does not appear; but not long afterwards, on the 11th of March, 1862, Congress passed the following joint resolution:

'That all sums allowed to be due from the United States to individuals, companies, or corporations, by the commission heretofore appointed by the Secretary of War (for the investigation of military claims against the Department of the West) composed of David Davis, Joseph Holt, and Hugh Campbell, now sitting at St. Louis, Missouri, shall be deemed to be due and payable, and shall be paid by the disbursing officer, either at St. Louis or Washington, in each case upon the presentation of the voucher, with the commissioners' certificate thereon, in any form plainly indicating the allowance of the claim, and to what amount. This resolution shall apply only to claims and contracts for service, labor, or materials, and for subsistence, clothing transportation, arms, supplies, and the purchase, hire, and construction of vessels.'

Under this resolution the claimant and petitioner below presented his vouchers, and received payment of the several sums allowed by the board.

The present suit, as has already been said, was brought by him against the government to recover the balance of the contract price of the mortar and steam tug-boats, with their fixtures, over and above the amount allowed by the board, after an investigation into the merits and the payment of the same under this joint resolution.

The Court of Claims decided that he was entitled to recover that balance, and gave judgment for him against the United States for $112,748.76; finding, also, that the value of the mortar-boats and tug-boats was $274,408.80.

Mr. Hoar, Attorney-General, and Mr. Dickey, Assistant Attorney-General, for the appellants:

The case nowhere shows—the Court of Claims, we mean, has nowhere found as a fact——

1st. That anybody had authority to make these contracts; or——

2d. That anybody ratified, or meant to ratify them; or——

3d. That there was any emergency which justified making them.

The whole case is:

1st. That during the late civil war General Fremont did contract for the boats; and,

2d. That, after they were built, they were taken by the government, under orders of the Secretary of War, into government use.

Now, it cannot be successfully maintained that Fremont had power, even in virtue of his office, to bind the government by contracts whose magnitude was limited only by his own judgment. His power can be maintained only by an unjust and most dangerous extension of a just and safe principle, the principle that all appropriate means are allowable to carry out legitimate ends.

As to the Secretary of War, he had no power, because the statute of May 1, 1820,¹ thus enacts:

'No contract shall hereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except (1) under a law authorzing the same, or (2) under an appropriation adequate to its fulfilment; and excepting also (3) contracts for the subsistence and clothing of the army and navy, and (4) contracts by the Quartermaster's Department, which may be made by the secretaries of the departments.'

The whole case of the claimants, therefore, must rest on a ratification of the contract, as matter of law, upon the facts of the case; in other words, upon an assumption that by the secretary's taking the boats and tugs into the service of the United States, void contracts, by force of ratification, become valid ones. But the fact that property came into the possession of, and was used by the government, has no tendency to prove that it was received under a contract for a specific price, which contract the agents of the government receiving it, had no legal power to make. The only thing which can be presumed, where goods are accepted by a party, in the absence of all contract about what he shall pay for them, is, that he will pay for them what they are reasonably worth. That is presumable enough. This case, therefore, afforded grounds for a quantum meruit. And it afforded nothing else. But a settlement, and receipt of the money, upon this basis of a quantum meruit, understood to be paid upon that footing, precludes the subsequent assertion of a special different contract. And that, we submit, is the sort of settlement and receipt which took place in this case.

Messrs. Carpenter and Wills, contra, for the appellee; and Messrs. Carlisle and Corwine for appellees in other cases argued with this and involving the same question in principle. A brief of Mr. B. R. Curtis being also filed in the present case 1st. Had General Fremont power, under his authority as commanding general, to make these contracts?

In attempting to solve this question, it is in vain for the counsel of the government to seek the full measure of the authority of the commander of a military department, in time of war, either in the statutes of the United States or in the Regulations of the Army; for neither of them have attempted to define his powers.

It is true, that the Regulations of the Army declare that 'the Ordnance Department furnishes all ordnance and ordnance stores for the military service,'² and that 'the Quartermaster's Department provides the quarters and transportation of the army,' &c.³ But they are silent, and from the nature of the case, must be, on the great and essential points in time of war, of the plan of campaign, the...