United States v. Johnston

• Decision Date: 09 January 1888
• Citation: 31 L.Ed. 389,124 U.S. 236,8 S.Ct. 446
• Parties: UNITED STATES v. JOHNSTON
• Court: U.S. Supreme Court

124 U.S. 236

8 S.Ct. 446

31 L.Ed. 389

UNITED STATES v. JOHNSTON.

January 9, 1888.

This writ of error brings up for review a judgment for the defendant in error in an action brought against him on the twenty-ninth day of April, 1879, for the value of certain cotton which came to his hands, as an assistant special agent of the treasury department, in the year 1865, and which, it is alleged, he has not accounted for to the plaintiff, but converted to his own use The defendant became such agent on the eighth of May, 1865, under a written appointment by the secretary of the treasury. He was charged with the duty of receiving and collecting such cotton in the counties of Lowndes, Monroe, Oktibbeha, and Noxubee, in the state of Mississippi, as had been purchased by or was held on account of the so-called Confederate States government, and of forwarding the same to agents of the department as Memphis or Mobile, as, in his judgment, was best for the government. His commission was accompanied by a letter of instructions requiring him, with as little delay as possible, to ship the cotton received or collected to William W. Orme, supervising special agent at Mobile, 'sending forward with each lot an account of expenses, (which will be paid by them,) together with a full record of the cotton shipped, etc., as required by the fourth regulation concerning captured, abandoned, and confiscable personal property.' He was informed that his compensation would be thereafter fixed, and would depend, in great measure, upon the result of his efforts; but that it should be reasonable and liberal for the services performed. The defendant, in his answer, denied that he had omitted to account for any cotton received or collected by him as such agent. For further defense, he alleged that after the times mentioned in the complaint, and on or about March 15, 1866, a just, true, and full accounting of his acts as such agent was had with the United States, upon which he surrendered all papers, documents, and vouchers in his hands relating to his agency; that upon such accounting the sum of $33,972.59 was awarded to him, of which $2,186.69 represented his per diem allowance, and the balance his commissions; that said per diem allowance was paid on the fifteenth of May, 1866, and said commissions on the fifteenth of January, 1868; and that he was thereupon fully released, acquitted, and discharged from liability of every kind to the government. By agreement of the parties, the issues were heard and determined, in the first instance, by Hon. William G. Choate, as referee, who made a report of his special findings of fact and law, accompanied by an elaborate opinion, in support of the conclusion that the defendant was entitled to a judgment dismissing the complaint on the merits. The case was subsequently tried by the court; the parties, by written stipulation filed, having waived a jury. The court adopted the special findings of fact made by the referee as its own findings, and dismissed the complaint.

The several lots of cotton in question were delivered to one Stewart, of Mobile, in the latter part of the year 1865. The circumstances under which they were delivered were, according to the findings of fact, as follows: The cotton in the counties constituting defendant's district was stored at various points more or less remote from the Mobile & Ohio Railroad; much of it in very bad condition, requiring rebaling, or new covering and ropes. In consequence of many impediments, arising from the unsettled state of the country, to the successful execution by the defendant of his duties by agents of his own selection, he obtained special authority from the secretary of the treasury to make contracts with responsible persons for collecting cotton, putting it in shipping order, and delivering it at the railroad; the contractors to be paid in kind at the time of delivery, or in money after he cotton had been sold, and the proceeds realized by the government. The first lots of cotton were shipped to Dexter, the supervising agent at Mobile. Afterwards, the defendant was directed by the secretary to ship, and he did ship, the cotton directly through his own agents at Mobile, to Simeon Draper, at New York, who had been appointed as the general agent of the treasury department to sell all the cotton collected in the South. Defendant's first agents at Mobile were Weaver & Stark, but on August 14, 1865, he appointed one Cuny. The government did not furnish money to pay the expenses attending the collection, transportation, and shipping. But Cuny undertook with the defendant to settle all bills for railroad freights, the weighing and pressing of the cotton, and other incidental expenses connected therewith up to the time of shipment to New York, and he also agreed with the defendant to furnish the means necessary to cover such expenses. He arranged with Stewart at Mobile to provide means for these purposes, the latter to be reimbursed from time to time by government cotton at the market value. Stewart accordingly made large advances to Cuny between September 4, 1865, and January 26, 1866. These advances included $9,307.21 of expenses which Dexter, supervising special agent for the treasury department for the district in which Mobile was situated, incurred on cotton from Johnston's district, and which expenses Dexter insisted should be paid by the defendant. The latter at first declined to pay that bill; but subsequently, upon the advice of Mellen, a general agent of the treasury department, he sold cotton to meet it. Under the arrangement between Cuny and Stewart, the latter received between October 17, 1865, and December 16, 1865, different lots of cotton, aggregating 483 bales, which is the cotton now in question, and gave credit therefor, at its market value, in his account with Cuny for advances. The total value of this cotton was $82,300.24. Stewart paid the internal revenue tax of two cents per pound—$3,486.64—on all except the last 100 bales, leaving $79,813.60 as the net value of the cotton. The first of these transfers to Stewart was without the knowledge of the defendant, but he subsequently approved or acquiesced in what Cuny did. This disposition of the 483 bales was without authority from the plaintiff, except as to the part used in meeting Dexter's bill. The following additional facts were found by the court below:

'August 18, 1865, the secretary of the treasury issued a general letter of instructions directing all cotton to be forwarded to Simeon Draper, at New York, for sale, and that all money required by supervising agents to defray expenses should be sent upon their estimates therefor made to the secretary on the first of each month. In September, 1865, Mr. Johnston had made an arrangement to draw against Simeon Draper, at New York, for the expenses on the cotton incurred at Mobile, including the cost of transportation to Mobile, and such drafts were drawn accordingly to the amount of upwards of $150,000 between the twenty-ninth of November, 1865, and the thirty-first of January, 1866. The drafts included one dollar a bale commission, which defendant paid to Cuny on the cotton shipped by him after the drafts were paid. To carry out his instructions, that these drafts should be accompanied by vouchers showing the details of the expenses drawn for, the receipted bills of the railroad company paid by Cuny through the advances made by Stewart, and other bills so paid, were surrendered, and duplicate receipts were taken to conform to the shipments to Draper, against which drafts were drawn, and these duplicate vouchers accompanied the drafts. The same expenses which had thus been paid out of the cotton transferred to Stewart, to the amount of about $68,000, were included in the drafts upon Draper, and by him paid to Johnston, so that as to these 483 bales the defendant had been a second time paid by the government to that extent the expenses for the payment of which they had been transferred to Stewart. On the eleventh of January, 1866, the secretary of the treasury, by letter, called upon the defendant to make up and forward a full statement of his transactions; and some time in the month of February, 1866, the defendant and his chief clerk, Dr. Vaughan, went to Washington with their books and papers, and an account current or summary statement which had been made up at Columbus, purporting to show the whole amount of cotton collected by the defendant, and the disposition thereof. They were referred, by the subordinate in the secretary's office in charge of the captured and abandoned property division, to the commissioner of customs, who at that time, under direction of the secretary, had charge of the examination and passing of similar accounts. Meanwhile, however, certain charges against the defendant had been received in the treasury department from the war department, and the secretary directed that these charges should be answered before the defendant's account was passed upon, and a special reference of these charges was made by the secretary for examination to a clerk in his office named Parker, since deceased. These charges were satisfactorily answered, and the examination of his accounts by the commissioner of customs followed. Some objections were made to the form of the account of cotton collected, and a new account was made up upon blanks furnished by the office of that part of the transactions. In the account current or summary statement made up at Columbus, the 483 bales of cotton in question were stated as follows:

"Sold by R. H. Cuny, to pay bills of Dexter and others, 483''

At the suggestion of the examining officer in the commisioner's office, a new summary statement was made up by Dr. Vaughan, dividing this item into two, namely:

"'Sold by consent of General Agent Mellen, by R. H. Cuny, to pay Dexter's bill of expenses,................. 55

"'Sold and proceeds paid to officers and garrisons to secure protection to...