CARPENTER fl. UNITED STATES.
a.ccident or mistake, either in blank, or for the amount of $1,280.20, and there being nothing upon its face that would indicate to the Denver Bank or the plaintiff that there was anything wrong about it, the maker should suffer for this mistake; the loss is the result of the negligence of an authorized agent of the United States. That loss should fall upon the party that occasioned it; the government having paid this check to the plaintiff under these ciroumstances and without any fraud on the part of plaintiff, is not entitled to recover or retain the money as against the plaintiff. The name of the payee in this check was shown upon the trial to have been written therein by a clerk in the office of said pension agent,and there was no perceptible difference in the writing upon the face of the check; the paying teller at the United States treasury who paid the check testified that in so doing he was governed by his knowledge of the handwriting of the pension agent and his clerk, whioh he l'ecognized upon the face of ,the check when paying the same, and thaf the same then appeared to him to be a genuine cher.k from the office of said agent; besides, the check was indorsed for account of the Bank of Denver, so that upon its face it showed that plaintiff was merely acting as an agent to collect the money and pay it over to its principal,and on thai ground it is also entitled to a judgment. . ; It is therefore ordered,that the .plaintiff in this action have and recover from the defendant the sum of$1,280.20together with legal interest thereon from January 6,1888; to January 31,1891, the date of this. decree, and amounting to $275.04. and making, for .principal and inter.est, the sum of $1,5,,55.24. Let judgment be entered accordingly.
CARPENTER 11. UNlTED STATES.
lY. D. February 21, 1891.)
CLAIMS AGAINST UNITBD STATBS7"'"UO OJ' PBIVATB PROPERTY.
Where a government employe, b,avinlJ:' property in possession, .for a certahi' purpose, by consent of the owner, uses It by order of biS superior ofllcer foranotber purpose, there is no legal implied contraot of hiring for government use. In such case, wbere the owUer recovers judgment for conversion of the property' against tbe employe, the latter cannot sue the .United States for indemnification, since Act Congo March 8, 1887, 81111, S1. giving the court of claims juTisdiction of all claims on auy contraot, exprell8' 'or implied, with the United States, expressly excepts cases sounding in tort. . .
" ', '. . '
SAME-CLAIM!I BX. DELICTO.
At Law. ..359, § 1, provides that the, court of Act Cong. March 3, 1887; C ·claimsshall have jurisdiction to hear and determine all. claims founded upon "any contract, express or .implied, with the United States, or for .damages,liquidated or unliquidated,in cases not sounding in tort, in of, which claims the party would be entitled· to redress against·
·-.in a QO\l.n oLl.aw. equity. or admiralty,if the United StatesweresuaMe." Bateman &:: Hqrplffjiro: ,plaintiff·. ' John W. Herron, fort :deftmdant.,
SAGE, J.After the ruling in this case, (reported 42 Fed. Rep. 264,) upon the suggestion of counsel for the plaintiff that the facts were imperfeotly stated in the ,petition, the demurrer to which had been sus· tained, andthatproperlyfitated they would sustainn claim for indemnification by the government, I permitted an amended petition to be filed, to which the government answered,' joining issue ,on the points hereinafter referred to. The causeis nowbeforE:l the cdurt upon the pleadings and testimony submitted ,by the parties. The first point made for the plaintiff is that the hiring of the fiatby Mr. Carpenter for the 'use of the government was legally authorized. The testimony does not establish thatthe fiat was hired. It had been in possession of the plaintiff. with the oonsentof,Mr. Wolf, the owner, for another purpose. ,That purpose having,beeri accomplished, the plaintiff', upon the order of Lieut. Mahan, took possession of it, and used it in the work of removing .a wreck from the channel of the Ohio river,. at a point a short. distance .below PittsbUllgh. The plaintiff was then in the of thegovernment,ul1der the orders of Lieut. Mahan,who was,subordinate to:Co1. Merrill. Cpl. Merrill had directed Lieut. Mahan to remove ,the, wreck in question, which was an obstrU<ltion to ,navigation, .and ,tbe:plainti,ff was assisililg in that work. This was in the spring of 1873. The next point for the plaintiff is that the hiring of the flat was rea· sonably necessary; and the -third, that, the plaintiff having acquired possession of it on behalf of the government, the government became bound Jor its surrender, and for the performance of plaintiff's contract in its behalf with Wolfrthe;0\vnerof the 'flat; thttOis, to take good care of it, to deliver it at the point agreed upon on the Ohio river, and to tbat"it was not the plaintiff's affair, pay Wolffor but th.e government's,;. in any respect in de· wasresponslblEl: tq ,damages under the contract implied"by the taking. possesSion of and .u·singthe flat; also that, inasmuch as plaintift'was su'eda'ndcoriipeHed to pay damages byrelison of as an agent of 'the. government, the his connecti.on with government must indemni(yhim; , . fpe fatal objection to· is thllfh..e sues for indemni. fication, and presents as his evidence therecGrd· .of the suit brought against him in the state court at PittElburgh. He seeks to recover the alnount of the j'udgment therein rendered against him, with his expenses i'ncurredinhis' defellSk!c!Tpe, statute of liQ1'itati'ons wouldhar a recovery upon, .anyother grclUnd;.. 'But ihatsuitl\fas an adiori soundingdn tort: ltwasbegun on the 3d: da.y ,of May." 1873, iathe district court of AI.. leghauy county; :' Acapias,.styledin troVi:>riwas issued against the plain tiff altd hisco'"idefeudants.: It.was:followed by a declaration in "tres-.
pass on the case," as<it is tatmellih the pleadings. The declaration, however, alleged the convatsl()n' <lfthe ·,flat by the defendants to their own use, and demanded damages The case proceeded to judgment for the sum of $874.78; ·. On the 9th of October, 1885, nothing having been paid upon the judgment, the plaintiff was arrested, and imprisoned for 28 dltysjand on the 6th of May, 1886,having, given bond for his release from imprisonment, he paid the alnUunt of the judgment, aJ;ld'tbe costs therootli in all $1,574.47 ;of whioh $26.30 'were the costs. He also sets up that hebasexpended'in attorney fees, and in thErpaymentof expenses in, his dMense,' '$156;88; wherefore he prays 'judgment against the gO'\Tel'nment forthesuln of $1,731.75, with interestfrom,Mlly 6, 1886. .:,' lnU.S; 'v'. ManufacturinfJ' Co., 112 U. S:. 645, 5 -S\l'p. Ct. Rep. 306, which is cited for the plaintifl';, itappeared tbl1t certain'property,to which the United'States asserted no title;cwastaken by its officers or agents,pursuantto·an;actof congre@s,as private prbperty fotthepublic use,atrd it: was' held; that the government was under an' implied obligation to :make 'just'conlpensation to the ownar. Itl'that case there had been no for the coiidemtlationofthe property to public use, lmt the oWner waived any objection th'athe,might have haEm make,based . upon the want ·of suoh "proceedings, and, elected to tElgard: the go"iernment as atakihg' under its' sovereign right of eminen't domain, andtheteforedemanded compenSlttibJ1 for erly.Tbe':supremecoutt held that DnitedStates; having by its agent, :proceeding under,the'au'thoritj'i act of congress,: take.n the property' of theclaittiant 'far public use, were· under· an obligation imposed by the constitution :to make· compensation. : The court said: "The :law 'will· imply'aptOmisetomake the required: eoilipeosationwhere property, to'" which the' government asserts no title, is pursuant to an aet ·ofcongrtlBS, all: private. prClperty to. be applied for public, usea. ·Suchan constitutional ,of the as well. as witllcommon cause, of. action is on,e that arises out of 'iInplied contract, within the meaning of the statute which confers 'jurisdi6tion' upon the court of claims'of actions fOllIided' upon any contract, express or implied, with;the government of the United Statea.'"
said: ,". " .. the cillitpartt rnakes,IJiJ,objection .to the particular mode inwhll;lh,the property has been taken, but'substantially waives it; by aS8erting, as is done in the pt'tition in this case,tQ:at tIle 'g()vernment took :tlie property for the public uses, desigIiated,'we do :not. perceive that the court is under ariydtity to make the' objection in order to relieve the United States from the obligation to make j-U8t compen\lation. . The radical· difference' 'between' that case and the case now befbre the "Court is: that there 'th-eplaintiff waived the tort; and based·:hiS :claim upon· the implied obligation': df' the g6-'Vei'nInent,: by .reason of the provisions of the statute, to make compensation for the property. But here there is on the one hand no showing whatever of any contract with Wolf, the owner of the flat, under which possession was taken, for the contrary appears upon the face of the petition; and, on the other hand,
there was no waiver by Wolf of the tortious taking, but he prosecuted bis claim for damages by reason of that taking. In Langford v. U. S., 101 U, S.341, the supreme court beld that the court of claims has jurisdiction only in cases ex contractu, and that an implied contract to pay does not arise where the officer of the government, asserting its ownership, commits a tort by taking forcible possession of the lands of an individual for public use. The court say that in sucll a case the government OJ:'. the officers who seize such property are guilty 9f a. tort if it be in fact private property, and that no implied contract to, pay can arise any more than in the case of such a transaction between individuals. With reference to the restriction of the court of claims to cases of contract, the court say that the reason therefor is that, .while congress might be willing to subject the government to the judicial enforceInent of contracts, which could only be valid as against the United States when made by some officer of the government acting under lawful authority, with power vested in him to make such contracts, or to do acts which implied them, the very essence of a tort is that it is an unlawful act, done in violation of the legal rights of some one, and for such acts,. ho\\ dver high the position of the officer or agent of the Rovernment :who did or con)manded them,congress did not intend to subject the government to the results of ,a suit in that court. Precisely the restriction to in thatcasEl is placed upon the jurisdiction of this court by the act of March 3, 1887, under which this suit is brought. In GibbO'fl8 v. U. S.,8 Wall. 269, the supreme court held that the government is not liable on an implied (.l88UllnpBit for the torts of its officer cOJ;Xlmitted while, in its service, aOO, apparently for its benefit. The court said that it was not to be disguised that the case was an attempt, under the assumption of an implied contract,;to make the government responsible for 'the unauthorized acts of its officers, those acts being in themselves torts, and that no government has ever held itself liable-to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers or agents. Justice in the course of his opinion, says that the language ofthe statutes wbjch confer jurisdiction upon the court of by the strongest ixpplication" demands against the government founded on torts, and that the general principle already stated as applicable to all governments forbids, on a policy imposed by necessity, that 'they should hold thetilselves liable for unauthorized wrongs inflicte,d by their officers on the citizen,though occurring while engaged in the discharge of official He further says that in such cases, where it is proper for the.United States to furnish a remedy, congress has wisely reserved the matter for its own determination, and that it certainly has not conferred it on the court of claims. These authorities cPQ·trol the case now· before the court, and in aocordanOl with them the judgment will be for the government, with costs.
MILLER 'U; EASTEItN OItEGON GOLD MIN. CO.
MILLER 'D. EASTERN OREGON GOLD MIN.
(OirCWU Oourt, D. Oregon.
MlU'oh 2. 1891.)
MOTION FOR NEW
A foreign corporation may be an "inhabitant" of a district or country other tha.n that of which it is a citizen or SUbject, or where it was organized, within the meaning and purpose of the term, as used in section 1 of the judiciary act of 1888. (SvtZabus by the Oourt.)
At Law.· Motion for new trial. John Gearin, for plaintiff. Arthur O. EmmO'l18 and. Frank V. Drake, for defendant.
D:EADY, J. This action was commenced on.May 7,1889, to recover damages for the wrongful refusal of the defendant to transfer 6,000 shares of its stock on its books, whereby the plaintifflost the sale thereof, and Was damaged $24,000. . On the same day a summons was issued against ·the defendant, which Bates, president, and J.Gilwas personally served at once on " bert Bowick, director," of the On May 17th a motion was made to set aside the service because the defendant "is a foreign corporation," and the alleged CRuse of action" arose without the jurisdiction of the court," and it does not appear that.at the time said CRuse of action arose, or since, the defendant "either carried on business or had propflrty within the jurisdiction of this court." . 'On May 20th the plaintiff filed his affidavit, in which it is.stated that the defendant was organized in 1888 in London, England. and is owner of the Monumental mine and mill property I situate in Grant county, Or., and of no other property anywhere; that the defendant was organized to purchase and work said propert)', and was then engaged, in so doing; that at the time of the service of the summons, 3S aforesaid l on Bates and Bowick, the former was president of the defendant,and the latter director thereof, and both were large stoekholders therein, .and were then in Oregon looking after the business of working and managing said mine. On May 24th the motion to set aside the service of the summons was df.hied, and on the 25th of the same month the plaintiff filed an aIUeilded complaint, alleging therein, among other things, the facts aforesaid concerning 'the location and ownership of said mine, and also that the de.fendant is carrying on business in the state,of Oregon, and "is an in· habitant" thereof. . On May 30th a demurrer was filed to the amended complaint, and on June 19th the same was withdrawn, and the defendant had leave to file a plea in abatement, which was done on July 8th. The plea contained no denial of any allegation of fact in the complaint, but alleged that the '4efendant was an "inhabitant" of London.