Volume 44 — Court of Claims Reports

The Reporters’’ statement of the case: The following are the facts of the case as found by the court: I. On the 6th of August, 1898, the Quartermaster-General of the Army adopted new specifications for undershirts for the army, based on recommendations made by the depot quartermaster at Philadelphia.

The Reporters’ statement of the case: The following are the facts of the case as found bj? the court: I. On September 16, 1901, the Postmaster-General of the United States advertised for proposals for carrying mails in various cities, and among others, for screen-wagon, mail-messenger, transfer, and mail-station service at the city of Omaha, Nebr., on what is known as route No. 457005, for the period between July 1, 1902, and June 30, 1906.

The Reporters' statement of the case: The facts of the case will be found stated in the opinion of the court. , The act of May 24, 1888, has both by many adjudications in the nineties and in the recent Warfield case been held to extend to substitutes, nor is this unjust. The regulations forbidding overtime were interpreted by the postal officials as not referring to substitutes.

The Reporters’ statement of the case: The facts of the case will be found stated in the opinion of the court. Since this case involves mainly a question of statutory construction, we will gather together at the opening of this brief all the statutes bearing upon the status of letter-carriers. The employment of letter-carriers was first authorized by the following provision (Act of March 3,1863,12 Stat. L., 703): “ Sec. 11.

The Reporters’ statement of the-case: This case was first tried, in 1907 and is reported in 42 C. Cls. R., 385. Subsequently the claimants moved to change and modify both findings and opinion and a new trial was had.

<p>The Reporters’ statement of tbe case:</p> <p>The following is the separate opinion referred to in the preceding case, pp. 48, 120:</p>

The Reporters’ statement of the case: The grounds of the defendants’ motion will be found stated in the opinion of the court. The negligence of Mr. Shonts in signing the contract of July 12,1906, if the court should find that such act was negligent, could not bind the Government further than to place the claimants in statu quo, or, in other words, to restore to them anything that they may have lost in costs and expenses.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Philip Leach, was commissioned an assistant surgeon in the United States Navy July 9, 1881, having been appointed from civil life, and during the period covered by this claim he was a surgeon in the navy, with the rank of lieutenant. II.

The Reporters' 'statement of the case: The following are tlie facts of the case as found by the court: I. The Cherokee Nation of Indians is a body politic, recognized as such by the United States, with a written constitution and system or code of laws and the right of local self-government granted under the provisions of treaties made with the United States and with full authority to make and carry into effect all such laws deemed necessary for the government and protection…

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, as assistant naval constructor in the United States Navy, while regularly detailed for duty at the navy-yard, Brooklyn, N. Y., was a member of the officers’ mess at that yard between October, 1904, and February, 1905.

The Reporters’’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein is a… Held: “‘ I am of the opinion, and so decide, that it is required of you to ascertain the amount of all loss, damage, or additional expense to wbicb the Government has been subjected in the present case by reason of the failure on the part of the New Jersey Foundry and Machine Co. to complete its contract within the specified time and in…

The Reporters’ statement of tlie case: The following are the facts of the case as found by the court: I. The claimant, James Blazek, was a private and sergeant, Company A, Thirtieth U. S. Volunteer Infantry, one of the regiments of volunteers raised for the suppression of the Philippine insurrection under the act of March 2, 1899 (sec. 12, 30 Stat. L., 979).

The Reporters' statement of tbe ease: The following are the facts of the case as found by the court: I. The claimant is a citizen of the United States. II.

The Re-porters’’ statement of the case : The substance of the petition demurred to will be found in the opinion of the court:

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Alexander Kiskadden, is a citizen of the United States,… Held: and which applies equally to this case, the liability assumed by the United States is that which would attach to a corporation or individual employer at common law. 4. Eeasonable wear includes only such decay or depreciation in value of the property as may arise from ordinary and reasonable use.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, Robert F. Lopez, was on, and some time prior to’, July 22, 1904, a lieutenant-commander in the United States Navy with more than twenty years’ service, and was in command of the torpedo-boat destroyer Preble. II. The Preble had no pay officer assigned to duty on board.

The Reporters' statement of the case: The following are the preliminary statement and. facts of the case as found by the court: The following bill was referred to the court on the 3d day of March, 1905, by resolution of the United States Senate under an act of Congress approved March 3, 1887, known as the Tucker Act: “A BILL For the relief of Jones and Laughlins (Limited) and others. “Be it enacted by the Senate and House of Representatives of the United States of America in…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The schooner Endeavor, whereof Nathaniel… Held: from what it concludes, that the capture was illegal, and recovery would have been had. In the Aurora the record is silent as to details of the attack and fight, but in the case of the Endeavor the conduct of the captor was illegal and unlawful, and as held in the above-cited cases any defense on our part would be justified.

The Reporters’ statement of the ease: The following are the facts of the case as found by the court: I. In pursuance of the provisions of the treaties of February 14, 1833 (7 Stat., 414), and December 29, 1835 (7 Stat., 478), between the United States and the Cherokee Nation, and in accordance with the provisions of the act of May 28, 1830 (4 Stat., 411), the President of the United States, on December 31, 1838, executed a patent conveying to the Cherokee Nation…

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. Under the authority of the act of Congress approved July 3, 1852 (10 Stat.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. At the time of the depredations hereinafter stated the claimant, Milton J. Thompson, was a citizen of the United States. II. At the time of said depredations the defendant Indians were in amity with the United States. III. Two tribes or bands of Indians bore the name of Klamath Indians, growing out of their location and not out of any ethnological ancestry.

The Reporters'1 statement of the case: The following are the facts of the case as found by the court: ‘ I. The claimant entered the regular United States naval service September 24, 1869, after over five years’ previous service as paymaster’s clerk, and’has since then served continuously in the Pay Corps of the Navy until the present time. He was appointed a pay inspector November 12,1899, and a pay director September 28, 1902.

The Reporters’’ statement of the case: The following are the facts of tbe case as found by the court: I. On or about December 15, 1896, the claimants herein, Avery T. Crary, Allen Packer, and Albert A. Knott, citizens of the United States, purchased, through their agent, J. B. Manby, from Carlos Zuloaga at his ranch in the State of Chihuahua, Mexico, for shipment into the United States, 5,238 head of sheep, for which they paid $2.25 per head in Mexican money, the equivalent…

The Reporter's statement of the case: This case was tried at the last term of the court and judgment rendered for $18,000 in favor'of the claimant, without an opinion. Defendants move for a new trial.

The Reporters'* statement of tbe case: The following bill was referred to the court March 2, 1907, by resolution of the United States Senate, under act of Congress approved March 3, 1887, known as… Held: and used by the United States as the basis for and in and about the plans for the fortifications and defense of the capital of the United States during the civil Avar.

<p>The Reporters’ statement of the case:</p> <p>The grounds of the motion will be found stated in the opinion of the court.</p>

The Reporters' statement of the case: The following are the facts of -the case as found by the court: I. The claimant, Thomas G. Eoberts, entered the naval service on the 27th day of May, 1890, and on the 1st of July, 1904, reached the grade of naval constructor of the rank of lieutenant. He was, therefore, during the time covered by this claim, a naval constructor in his first five years of service in that grade and more than ten years’ service in the navy. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Charles Coe, after serving during several terms of enlistment with continuous service, was honorably discharged- as a chief musician April 22, 1899, at Savannah, Ga.

The Reporters'1 statement of the case: The facts alleged in the petition are sufficiently set forth in the opinion of the court. Under a former law a Member of Congress had to certify to “ his actual expenses of traveling from' his home to the seat of government each session of the House to which he belongs! That was not additional compensation! Nothing but actual expenses was paid the Member. If no expense, no pay. It all depended on the actual expense.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimants, James H. Owen and Charles H. Hille, are citizens of the United States, and at the time of the occurrence of all the events hereinafter mentioned and the time of filing suit herein were citizens of 'the United States and copartners under the firm name of Owen & Hille, engaged in business as contractors and builders, and during the year 1896 they had their…

The Reporters’ statement of the case: The facts alleged in the petition sufficiently appear in the opinion of the court. The contract obligated the parties to submit everything to the decision of the engineer officer, which decision should be binding and the amount so decided should be paid. The Work was done, and the contractor furnished supplies aggregating $22,970.26.

The Reporters’ statement of the case: The following is the motion of the claimants on which this decision is based: Now comes the claimants, the freedmen of the Cherokee Nation, and by Robert H. Kern, their attorney of record, and suggesting the death of Moses Whitmire, their trustee in this behalf, move the court to appoint as their trustee in his place and stead, Jacob B. Wilson, one of their number, selected by them for that purpose; and claimants further move the court…

The Reporters’ statement of .the case: The following are the facts of the case as found by the court: I. Petitioner is a citizen of the United States, residing at this time at Washington, D. C., and is the sole owner of the claim sued on, no part thereof having been assigned or transferred to anyone. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. Claimant is a citizen of the United States and a resident of Monongalia County, W. Va., and in the year 1903, and for many years before, was the owner in his own right and in possession of a tract of land bordering on the Monongahela River and containing about 10-J acres situate about 4 miles from Morgantown, a town of about 12,000 population, in Monongalia County, W. Va.,…

The Reporters' statement of the case: The following- are the facts of the case as found by the court: I. During the years .1889, 1890, and 1891 Montford T. Johnson, the claimants’ decedent, was a Chickasaw Indian and a citizen of the Chickasaw Nation or tribe of Indians. II.

The Reporters' statement of the case: The following are the facts of the case as found by the court : The claim in this case for horses taken by the Comanche Indians in September, 1866, from the claimant’s decedent, William Hoclochubbee, a Chickasaw Indian residing on the Chickasaw Reservation, ivas referred to the court April 19, 1904, by the Secretary of the Interior, under section 2 of the act of March 3, 1883 (22 Stat. L., 485). The claimant, Amos IT.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: The claim in this case for horses taken by the Comanche Indians in September, 1866, from the claimant’s decedent, Kenarta, a Chickasaw Indian residing on the Chickasaw. Keservation, was referred to the court December 11, 1907, by the Acting Secretary of the Treasury ünder the provisions of section 2 of the act of March. 3, 1883 (22 Stat. L., 485).

The Reporters' statement of the case: The following are the facts of this case as found by the court: I.The schooner Betsey, Francis Bulkeley, master, sailed on a commercial voyage on the 23d day of April, 1800, from St. Vincent for New London and Hartford, Conn. While peacefully pursuing said voyage, on the 20th day of May, 1800, she was seized on the high seas by the French privateer Reunion, Captain Ferry, and carried into Porto Bico.

The Reporters’ statement of the case: The following are the facts as found in the case: I. The claimant, James A. Ring, entered the naval service as an assistant paymaster on January 24, 1870, and since that date has served continuously as an officer in the Pay Corps of the navy, reaching on December 10,1902, the grade of pay director with the rank of captain, which rank he held during the period covered by the claim upon which this suit is based.

The Reporters' statement of the case: The following are the facts as found by the court: • This is a claim for use and occupation of real estate belonging to claimants’ decedent, William Markham, of Fulton County, State of Georgia, by the military forces of the United States during the late civil war.

The Reporters' statement of the case: The following are the facts as found by the court: I. On March 18,1905, the Commissioner of Indian Affairs issued a circular announcing that on Tuesday, April 18, 1905, at 2 o’clock p. m., sealed proposals for leasing certain lands designated as leasing districts Nos. 1, 2, and 3 in the Fort Berthold Indian Reservation in the State of North Dakota would be opened; and it was required that each proposal should be accompanied by a…

The Reporters’ statement of the case: The claim herein, for difference in travel pay as second lieutenant in Company L, Thirtieth Regiment U. S. Infantry Volunteers, provided for by Revised Statutes, section 1289, and the amount received under the act of May 26, 1900, was referred to the court on January 29, 1907, by the Committee on War Claims of the House of Representatives.

The Reporters' statement of the case: The following are the facts as found by the court: I. Samuel I. Little, late a citizen of the United States and resident of the District of Columbia, died in said District in June, 1855. II.

The Reporters'1 statement of the case: The following are the facts of the case as found by the court: • I. On August 10,1901, the claimant, who was an employee of the United States and was receiving a salary of $3,000 per annum, while under such employment was appointed a special disbursing agent by the Secretary of the Interior, the appointment being in the following words: “ DEPARTMENT OE THE INTERIOR, “ Washington, August 10, 1901. “ Mr. George W. Evans, “ Disbursing…

The Reporters’ statement of the case: The following are the facts as found by the court: I. On October 24, 1906, a contract was entered into between Lind & Co., by Erik G. Lind, and the United States, the following provisions of which govern the issues upon which this claim is based: “ That they, the said party of the first part, will furnish and deliver at their, own risk and expense, at such places as. specified below, from the date of this contract, the following…

The Reporters’ statement of the case: •The following are the facts of this case as found by the court: I. The claimant company herein is a corporation organized under the laws of the State of New Jersey, having an office for 'the transaction of its business in the city and State of New York. II.

<p> On the claimant's Appeal. </p> <p>After the protocol, August 12, 1898, for the cessation of hostilities between the United States and Spain, but before the ratification of the treaty of peace, December, 1898, the military authorities in Manila employ the claimant’s vessels to transport about 1,000 sick and wounded Spaniards from Manila to Spain. The reason for immediate action is because their presence is deemed a menace to the public health. The services are rendered under a parol agreement with the Secretary of War. Accounts for the service are presented and approved by the accounting officers and paid. After the treaty of Paris a formal written contract is entered into for the transportation of about 16,000 repatriated Spanish prisoners. Two hundred and fifteen dollars is to be paid for each officer and $73.75 “for each enlisted man, private soldier, or other person.” The number of persons transported is to be determined by the number counted on board each ship by a representative of the Government at the time of embarkation. The contract contains no provision expressly referring to the wives and children of officers or other noncombatants. Under this contract the claimants assign the wives and children of officers to officers’ quarters and claim the higher rate of compensation. One hundred and ninety-eight more persons are carried to Spain than are counted at the place of embarkation. One hundred and eighteen persons die on the voyage and are buried at sea. Forty-two persons voluntarily leave the ship and stop on the way, not being carried to Spain.</p> <p>The court below decides:</p> <p>I.The action of the accounting officers in approving and allowing the accounts of a contractor for services rendered does not preclude the defendants from disputing their correctness by setting up a counterclaim to recover back illegal or unauthorized payments. The presumption that such payments were lawfully made continues only until the contrary appears.</p> <p>II. Where services were rendered under a parol contract the contractor can recover in quantum, meruit notwithstanding the provisions of the Revised Statutes (§ 3744) which require contracts entered into by officers of the Government to “ he reduced to writing." Contracts made in emergencies and under exigencies need not be reduced to writing nor await advertising for bid (Rev. Stat., §§ 3709, 3723), and a commanding officer in conquered country, or the Secretary of War, can make reasonable expenditures incident to the removal of prisoners without the formality of a written agreement.</p> <p>III. The treaty of Paris, December 10, 1898, authorized and required the United States at their own cost to remove Spanish soldiers and other persons and send them to Spain.</p> <p>IY. A contract for the transportation of Spanish officers, enlisted men, and other persons entitled to repatriation in the judgment of the Secretary of War was authorized by the treaty, and the transportation of officers’ wives and children and other persons not connected with the army was authorized by the contract.</p> <p>Y. The claimants were carriers without opportunity or power to determine what persons were entitled to transportation and were bound to transport all whom the military authorities offered for transportation. Their rights depend upon the contract and not upon a proper interpretation of the treaty of Paris.</p> <p>' YI. As the contract provided for the transportation of Spanish officers at one rate, and of enlisted men and “'all other persons ” at a lower rate, there are but two classes specified. Therefore, for transporting officers’ wives and children the claimants can recover only at the lower of the two prescribed rates.</p> <p>VII.TRe defendants were not responsible for tlie assignment of quarters after the persons to be transported were placed on shipboard; i. e., where the master of a vessel assigned second-class passengers to first-class quarters the responsibility was on the claimants and not on the defendants.</p> <p>VIII.An express agreement excludes the possibility of an implied contract, and a contract for the transportation of repatriated persons includes all repatriated persons who are to be transported.</p> <p>IX.Under a contract providing that the contractors shall be paid $73 for “ each person ” transported, the defendants can not count two children as one person.</p> <p>X.When requests for transportation were to be made by the defendants’ officers at the place of embarkation, the liability of the defendants was limited, and can not be enlarged by the claimants showing that more persons were disembarked at the end of the voyage than the officers had required transportation for.</p> <p>XI.Where a contract provides that the number of repatriated persons to be carried on a vessel shall be ascertained at the time of embarkation, the fact that some died on the voyage and others voluntarily left the vessel before arrival does not relieve the defendants from liability. The claimants are entitled to recover for all embarked by the defendants. Certain disputed items of the account examined and adjusted by the court.</p>