86
FEDERAL REPORTER.
tion 3618 of the Revised Statutes, which requires the proceeds of any sale thereof to be conveyed into the treasury; nor was the money received therefor, received "for the use of the United States," within the purview of section 3617 of the Revised Statutes. As the agent arid guardian of the Indians, it was the duty of the defendant Sinnott, subject to the instructions of the commissioner of Indian affairs, to dispose of the lumber made at this mill, and not needed by the Indians for their own use, and to use or apply any money or other property received therefor for their benefit. This lumber was the product of Indian labor, combined with the labor and skill of white men, that the United States bound itself to furnish them in consideration of the cession of their lands. It was not, then, properly speaking, the property of the United States; and certainly not within the contemplation of the sections of the Revised Statutes, 3617, 3618. In this case it appears from the treasury statement and the defendant's accounts that in 1873 he received $1,079.31 from the sale of lumber, of which he deposited to the credit of the United States, or in some way conveyed into its treasury, $100.31, and used the remainder in payment of current expenses of the agency, including the wages of the sawyer and loggers, first charging himself with the amount received. At the time he had no instructions to make any other or special disposition of these funds, and did not receive any until October, 1876, when he was instructed to deposit the same to the credit of the United States. In the second quarter of 1874 the defendant furnished $200 worth of this Indian lumber for the building of the manual labor school on the reservation, and paid for it out of the funds furnished and designated for that purpose. The money received for this lumber he then applied to the payment of current expenses, first himself with the amount, as in the case of the funds so received in 1873. It is objected that this transaction was contrary to section 3679 of the Revised Statutes prohibiting expenditures in any department of the government in excess of appropriations. But, certainly, this section has no application in the premises. There is no question but that the money expended for the lumber for the labor school was appropriated for that purpose, and the agent had as much right to use it in the purchase of material from the Indians as anyone. So that the item of $200 is in the same category as the one of $979, and the question concerning both is, was the money disbursed or accounted for according to law? As I have said, in the absence of any instruction to the contrary, in my judgment it was; and the defendant nott should be credited with the amount· . And, even if the disposition of the money received from the sale of the lumber was a technical violation of section 3617 or 3618 of the Revised Statutes, there is no pretense but that the defendant acted in good faith, and the Indians to whom the, money really belonged of it. And therefore, upon any equitable view of the had the
UNITED STATES'll. SINNOTT.
87
transaction, he is entitled to be credited with the amount. U. 8. v. Robert8, 10 Fed. Rep. 540; U. S. v. Stowe, 19 Fed. Rep. 807. The item of $375, for double payment of salary, is manifestly a mistake of the superintendent's. It is admitted that the superintendent, Odeneal, who was subpcenaed as a witness, but is unable to attend, would testify, if sworn, that he did not pay the salary twice. Sinnott swears positively that he never received the money but once, and there is nothing in the treasury statement to the contrary. It appears from that that the superintendent paid the agent his salary for the second quarter of 1873, and took a voucher therefor in triplicate, and for some reason, or by mistake, 'sent two parts of such triplicate voucher, instead of one, with his accounts to the department. Upon this, the accounting officers have assumed, without, as it appears to me, any sufficient reason, that these two parts of one voucher relate to two different and distinct payments of the same amount for the same quarter's salary. Upon a parity of reasoning, if the superintendent had, for any cause, sent the three parts of this voucher to the department, the defendant would have been charged with receiving this salary thrice. It is but fair to add that there is a slight difference in the language of these two papers, in the statement of the account,-the one being for "salary" as Indian ;gent, etc.; the other for "services. rendered the Indian department," as Indian agent, etc. But there is no difference in the language of the receipt by Sinnott or the certificate of payment by the superintendent, and manifestly they are parts of one transaction, and relate to but one payment. It would be absurd, as well' as unjust, to charge Sinnott with the wrongful receipt of $375 on any such state of facts as this. And if the accounting officers have erroneously credited the superintendent's account with this amount as having been actually paid out by him, the agent is not responsible for the mistake. And furthermore, if this salary had been paid to the agent twice, he would not be liable therefor on his bond. The security for the proper disbursement of this money is the bond of the superintendent,-the officer who received it for that purpose. The agent's bond covers all moneys that come "into his hands," as agent for the Indians, but not that which was paid to him, rightfully or wrongfully, as a compensation for his services. He would be liable, of course, as an individual for money had and received by him, by mistake or otherwise,that belongs to the United States, but not on his bond as agent; nor would his securities be liable therefor at all. On July 2, 1874, Sinnott wrote to the commissioner of Indian affairs a statement of the employes engaged on the reservation. Among ,these was C. D. Folger, "superintendent of farms and mills," at salary of $1,000 per annum,-a place which seems to have been created for his benefit. On the seventh of the same month he wrote to the commissioner that he "was induced" 'to employ Folger "by
a"
88
some political friends" of his, but that, in his "judgment, a superintendent of mills is unnecessary," and that he "had better disapprove of the engagement of the superintendent of mills." And as to a superintendent of farms, he left that with the commissioner, saying, in a sentence t4at appears to lack something: "1 attended to the business of farmer since 1 came here myself, and now that the farm is to be discontinued after harvest." On July 25th the commissioner wrote in reply, disapproving of "the appointment of C. D. Folger" as unnecessary, the miller being sufficient to run the mill and the agent to manage the farm. But on September 5th he wrote again to the commissioner, urging the approval of Folger's employment, to which the replied on September 80th, refusing to approve the same. And on March 9, 1875, the commissioner wrote again to the agent, calling his attention to the fact that Folger's name appeared in his report of employes for the third and fourth quarters of 1874 "as superintendent of farms and mills;" and, after referring to the correspondence between them on the subject, closed bysaying: "You are now informed that vouchers for services performed by Mr. Folger will not be considered by this office." There is no pretense that Folger performed any service about the mill or farm, but it is claimed that he was of some use, or might have been, in showing the Indians the corners or boundaries of the allotments of lands which had lately been surveYEld and assigned to them in severalty. He also acted as clerk for the agent, and in that capacity received and opened his official correspondence. But the agent was not authorized .to employ him in any capacity without the approval of the commissioner, and certainly there was no excuse for his doing so after the employment was expressly disapproved by the latter. His excuse is that he never received the letter of March 9th, and he surmises and suggests that Folger may have suppressed it for fear of losing his place; and, at his request, a day was given him to produce Folger as a witness on this point. But the party, though living in the city, was not produced or examined. But the letter of September 30th was sufficient without anything further to make the employment plainly illegal. It is true that some of the payments, apparently amounting in all to $655, were on what was thonght equitable ground, allowed by the Indian bureau, after being rejected by the treasury auditor. For instance, the $250 paid for the third quarter of 1874, which was allowed on the supposition that it might have been paid before the letter of September 30th reached the agent. But this act of grace, as to part of the disbursement, does not render any of it legal, and is . no defense to a claim to recover the balance. The money was not only disbursed without authority, but directly in the face of it; and, what is more, with the admitted knowledge that the employment was merely to serve the interest of or oblige "some political friends," and not the public good.
UNITED STATES V. SINNOTT.
89
The plaintiff is entitled to a judgment against the defendants for this sum, less the credit of $5.82, with interest, in all $1,565.14, with costs and disbursements.
UNITED STATES
V.
SINNOTT and others.
«(Jirouit Oowrt, D. Oregon. January 11, 1886.) U. 8. v. Sin/Met, anw, 84, followed.
At Law. James F. Watson, for plaintiff. William B. Gilbert, for defendants. DEADY, J. This action is brought on the bond dated September 28,1876, of the defendant Patrick B. Sinnott, as Indian agent at the Grand Ronde reservation, and of the defendants Nicholas B. Sinnott, Daniel Handley, and William W. Page, as sureties therein, to recover a balance of $500, alleged and ascertained to be due the plaintiff thereon, at the United States treasury, on April 24-,1882, on account of money received by said Patrick B. Sinnott under said bond and not duly accounted for, with interest from said date at the rate of 6 per centum per annum, and costs and disbursements. The answer of the defendants consists of a denial of the allegations of the complaint showing a breach of the condition of the bond. The case was heard by the court without the intervention of a jury, in conjunction with the foregoing one. The sum songht to be recovered consists of two payments to C. D. Folger, as superintendent of farms and mills for the first and second qual'ters of the year 1876. The money was paid contrary to the instruction of the commissioner of Indian affairs, and was therefore illegally disbursed. See opinion in the foregoing case of U. S. v. Sinnott, ante, 84. There must be judgment for the plaintiff for the sum demanded, with interest from the date of settlement, amounting in all to $581.25, with costs and disbursements.
90
FEDERAL REPOBTER.
CLEAR
v. Fox.
(Oircuit Oourt, E. D. Virginia. April, 1885.) NEW TRIAL-ExCESSIVE DAMAGES.
A court will set aside a verdict as contrary to the law an:! evidence as often as considerations of justice may seem to demand. ",Vhere one jury found a verdict for $15,000, which was set aside, and another jury found a subsequent verdict in the same case for $9,500. this latter verdict was set aside.
In Assumpsit; Two verdicts in favor of the plaintiff were set aside in this case. The nature of the claim and the principal facts of the case are set out in the following opinion. Marge et Fitzh'ugh, for plaintiff. S. Ferguson Beach, for defendant. HUGHES, J. When the evidence was concluded at the original trial of this case, I thought it was one in which the jury, from sYmpathy for a worthy man, rather than on strict grounds of legal right, might allow the plaintiff two or three thousand dollars. When they gave a verdict for $15,000, I had no doubt that it was my duty to set it aside. On the second trial, the jury has given a verdict for $9,500; and I am now to pass upon the motion to set that verdict aside. These successive verdicts of exceptionally intelligent juries have given the case an importance which imposes upon me the duty of reducing to writing my views on the law questions involved. In doing so it will be necessary for me to state in outline my own understanding of the leading facts of the case, which I shall do with no pretension to absolute accuracy of statement, and only to such extent as shall serve the purpose of developing the legal questions on which the case depends. The defendant, Fox, was owner of a large and well-known gold property in Spottsylvania county, Virginia, which had, under previous owners, been profitably worked. Clear, the plaintiff, who had mined in California, applied to him for a lease, giving a surface-mining privilege. Obtaining this, Clear went upon the property and operated upon it for about seven years. Out of their mutual correspondence and transactions during this period grew this suit, in which Clear claims upwards of $30,000 as a percentage due him on an alleged sale of the property, and claims also a quantum meruit for services rendered. The plaintiff, Clear, went upon the Whitehall property of defendant upon a contract that he was to have half the gold he could obtain from surface mining, and was to have the nse of the farm and the dwelling-house for a nominal rent. The leases were from year to year. He was, from the beginning, repeatedly informed by Fox, the defendant, that he was not to expect the latter to layout any money both Fox and Clear looked to a sale on the place. From the
