fendants' laches in presenting their side of the case would be more apparent. In view, therefore, of the fact that when the case was first reached for trial the defendants were under a stay, (till the return of the Bremen commissionj) that their counsel 'Was then. actually engagedj and that the voluminous Kansas City depositions were then being taken, presumably requiring the attendance of party as well as counsel,-1 am inclined to grant the motion to relieve the defendants from the stipulation, leaving the trial judge, when the case next appears on the day cale,ndar, to make such disposition of it as a just regard for the rights of both parties may then suggest. (d) The motion to amend the answer. Under the pleadings as they stand, the defendant seems to be sufficiently protected, except possibly as to the defense of payment. If the plaintiffs on the trial show sales (and contracts for sale) of their goods to the defendants, through Jules Arbib & Co. and Auffmord & Co., 8S mere selling agents, and it fu:rther appears that the defendants were chargeable with knowledge that these firms were such agents only, then it would seem that they should have availed of that knowledge earlier in preparing their defense, and should not have waited so long before moving to amend. If they were not so chargeable, or if from the complaint taken, in connection with the transactions which form the subject-matter of the action, they were fairly warranted in assuming that it was not for the purchases from those firms that they were called upon to account, the court can, upon the trial, allow such amendment as will enable them to show that those purchases were paid for. In order, therefore, that an amendment at this stage of the case may not be availed of as an excuse for further postponement, I shall deny the motion without prejudice to its renewal on the trial should the evidence warrant it, and without prejudice to its renewal as a chambers motion should there be 8. further adjournment of the
CHASE 11. UNITED STATES.
(Otrcuit Court, D. Indiana. November, 1890.)
CLAIMS AGAINST UN1.TED STATES-AUTRORITY-POSTHASTER GENERAL.
Under Act Congo March 2,1861 1 §10, (12 St. at Large 220,) providing tbat"nocon· tract or purcbase on behalf of the United States sball be made unless the same is. authorized by law, or is under an appropriation adequate to its fUlfillment," th& postmaster general is not empowered to lease on bebalf of the government a building for a post-oftlce for the term of 20 years, and such lease, taken by the postmaster in May, 1870, cannot be enforced against the government after it has vacated the premises,
At Law. A. O. Harris, for plaintift'. Smiley Ohambers, U; S. Atty.
GRESHAM, J. OnJllly 17, 1866, John K. Snider to the United States fora term of 10 years a lot, and building standing thereon, in th&
CHASE V. UNITED STATES.·
Ind., to be occupied as The lessee until December 24, 1869, when the building was destroyed by fire; ,the lessor, in the mean time,having conveyed the title and his interest in the lease to James Montgomery. On May 1, 1870, Montgomery executed a lease to the United States, represented by John A. J. Cresswell, then postmaster general, for described portions of a building, which Montgomery covenanted in the instrument he would erect upon ,the same lot. The lease was for a term of 20 years, at an annual rental of &1,5PO, payable in equal quarterly installments. The lessor agreed, at his own expense, to furnish and keep in repair, to the satisfaction of the postmaster general,' all boxes and fixtures for a post-office. Montgomery erected a building according to the terms of the lease, and the lessee went into possession. On April 15, 1870, Montgomery assigned his interest in the lease to Chauncey C. Tuttle, who, on February 10, 1871, assigned to Hiram W. Chase. Chase died January 25, 1889, testate, and the plaintiff duly qualified as executrix of the will. The lessee, on May 1, 1886, without complaining that the lessor or any of his had failed to comply with the terms of the lease, va.cated the premises, and refused to pay rent thereafter. The declaration avers that; after the assignment to Chase, and while the pl'enlises were occupied by the lessee, Chase from time to time laid out and expended for furniture, fixtures, and required changes, $2,000, and that he was engaged in making further repairs and additions, at the request of the postal officers, when the premIses were vacated. Judgment is demanded for $6,000, the rent claimed for the unexpired term of the lease. The defendant demurred to the declaration. The executive officers oithe government have no power to bind it by contract, unless there be statutes expreSSly or by clear implication authorizing them to do so. 'l'he. annual appropriations which are made by congress to defray the expenses of the executive departments do not authorize heads of those departments to bind the government by contract beyond the time for which such appropriations are made applicaple.,I.t is true that when this was executed it was the duty of the postmaster general to establish post-offices for the convenience and accommodat.i,9n of the people, and that an appropriation had made to enable hipl to discharge that duty and pay rent for that year. This authorized him to lease buildings, not for a term of years, but for one year"...,...the time for which the appropriation was applicable. If the postmaster general was authorized to lease the premises for 20 years, he was authorized to buy them for th government in fee, and itwill not ) be contended that he could have done that. Section 10 of the act of March 2, 1861, (12 St. at Large, 220,) provides that...... oity,< pf·;
. "No contract or purchase on behalf of the United States shall be made unless the saine is authorized by law, or is under an appropriation adequate to its fultUlment, except in the war' and navy departments. for clothing. subsistence,fueI, quarters which. however, shan not exeeed the current necessities of the year."
There was no; statute infOrde :on the 4th day February, 1870, or the ll§tday Of 'May of same year, other than that in which an ap.: propriationwasinade to 'pay for the use of btiildingsoccupied as postoffi<les, ,which authorized the postmaster 'general to make a contract of lease. The tenancy commenced on the 1st day of May, 1870,R1'ld can:' tinned frorn year to year until the 1st day of May, 1886, when the government abandoned possession and refused to pay rent thereafter. If the premises had been held longer, but less than a yeat, the government might have been liable for another full year's rent as tenant by the year. l>emurrersustained.
(Oircuit Court, S. D. New York;: January 0,1891.)
In the second circuit, the rule is settled in favor of taxing the fees for taking depositions before the examiiler, pursuant to equity rule 67 of tbe supreme court of the United States. In the secolid circuit, tbe charge for printing records and briefs iu compliance with the circuit court rules will be taxed. ' Wbere, in taking depositions, an for so long ,a time as to warrant witnesses in returning home between appearances Is had by the fault of the uusuccessful party, the additional traveling eJtpenses will be taxed to:him.
BAKE-PRINTING RECORDS AND BRIEF'S.
Briaen &: Knauth, for complainant. Walter D. EdmondJJ, for defendants.
For opinion on the merits, see 37 Fed. Rep. 783, and ante, 283.
LACOMBE, Circuit Judge. This is an appealby the complainant from the taxation of defendants' costs. 1. His first exception is to the item of "deposition fees, $60." This includes the taking of the testimony of 24 different witnesses before the examiner, pursuant to rule 67 of the equity rules of the supreme court. The depositions of these witnesses were admitted or used in evidence on the trial. The complainant cites the cases of StraU88 v. Meyer, 22 Fed. Rep. 467, aud of Tuck v. OldJJ, 29 Fed. Rep. 883, in support of his contention. In this circuit, however, the qUE'Stion has been settled the other way, and no sufficient ground for reconsidering the views expresslld in the earlieJ; decisiona The clerk's taxation in this particular is affirmed. SttimpaO'n v. Broolcs, 3 Blatchf.456; Wooater v.lJOIndy, 23F!3d. Rep. 49; SpiUv. Manufacturing <::h., 28 FeIJ. Rep. 870; Factmyv. Oorni.ng, 7 Blatchf. 17. See also the opinion of Judge J .enON .in ingham v. Pierce, 37 Fed. Rep. 647.