Argument for the contractor.

acted upon it, pro tanto, the government cannot be allowed to say it was not obligatory upon him. The fact, if it were a fact, that the direction of the War Department for the inspection in Boston and New York, was for the benefit of the contractor, cannot destroy his rights under the modification of the contract.

The inspection by Major Eaton, his acceptance thereof, as shown by his certificate, passed the title in and to the goods inspected and marked.

After inspection and marking, the goods remained in the possession of the claimant but for transportation. The completion of this was prevented by the public enemy, and consequently the loss must be borne by the government. The capture of the goods by an armed force, in rebellion, acting with intent to subvert the government, under the facts found in the case, is a delivery to the United States of the goods ordered.

The relation of the parties, the purpose of the seizure made by the enemy, the use for which the supplies were intended, taken in connection with the fact that the petitioner, as a contractor with the government, must be regarded as in its service, and was rightfully in the face of the enemy, conduce to show that the capture, in this case, by an armed enemy of the government, stands upon grounds peculiar and distinct from those which may or may not apply to a capture from a contractor under other circumstances.

Upon principle, in all cases in which private property is seized by a public enemy, without any default of the owner, the government is bound to sustain the loss. Vattel* concedes the principle, although he adds, "that no action lies against the state for misfortunes of this nature." He denies but the remedy. He says that "the sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it."

II. The rescission of the contract, by Secretary Cameron, without cause shown, and in the absence of any default on

*Law of Nations, p. 403.

Opinion of the court.

the part of the petitioner, entitles him to damages, which are to be determined by an ascertainment of the profits which he would have made if the contract had not been rescinded, or by a consideration of the expenses which the petitioner had incurred in obtaining teams, &c., to enable him to execute his contract.

Mr. Dickey, Assistant Attorney-General, contra, contended:

I. That the claim for the loss of private property taken in war by the enemy, could not be sustained on principles of law, and was no such claim as the Court of Claims has jurisdiction to try and allow.

That the inspection of goods of a contractor thousands of miles from the place of delivery, did not vest the property so inspected in the United States.

That the whole claim for the loss by capture rested upon the position, that this resulted, without the fault of clainant, from delays caused by the culpable neglect of the United States to inspect the goods at an earlier day; but that the facts did not sustain the claim.

II. As to the rescission. That assuming that the order of Secretary Floyd was a contract, it nowhere appeared that any such supplies were needed after the rescinding of the order. The rescinding of it, therefore, was after the full execution of it, inasmuch as all the supplies needed, &c., had already been furnished, and nothing remained to be done under the order, or if it were a contract, under the contract.

Mr. Justice DAVIS delivered the opinion of the court. On the theory that the order of the Secretary of War of March 9th, 1860, granting to Taliafero and Grant the privilege of furnishing and delivering, at certain posts in Arizona, for two years, all the supplies that might be needed there for the service, at certain stipulated rates, was a contract, mutually binding on the government and the claimant, the obligations imposed on the parties to it are clearly defined.

It was the duty of the claimant, as well as his exclusive privilege, to furnish all the supplies which were needed for

Opinion of the court.

the use of the service in Arizona, and on the receipt of the goods there, the government was bound to pay him for them the prices which were fixed in the order. It is too plain for controversy, that the property did not vest in the United States until it was delivered. To escape the force of this rule at law, it is insisted, as the goods were inspected in New York and pronounced to be of the proper kind and quality, that the title then passed to the United States, and that they only remained in possession of the claimant for transportation, and as he was prevented from delivering them by the public enemy, the loss must be borne by the United States. This position cannot be sustained, for the inspection at New York, on which it is based, did not work a change of title in the property, nor was it in the contemplation of the parties that it should. It did not affect the contract at all. The goods, by a well-known usage of the War Department, had to be inspected somewhere, and as the contract contained nothing on the subject, it was for the advantage of the contractor that they should be inspected before shipment, rather than at the point of delivery. The War Department took upon itself no additional responsibility by inspecting them in New York, instead of Arizona, and this inspection in no wise relieved the claimant from any obligation which he had assumed. He had agreed to deliver the goods in Arizona, and until he did this there was no contract on the part of the government, either express or implied, to pay him for them. All that the certificate of Major Eaton, the inspecting officer, proves, is, that the goods, when presented to him for inspection, were contained in strong, sound, full-hooped barrels and well-secured tierces, properly marked with the names of the places to which they were destined, and were of the kind and quality usually provided by the subsistence department.

But, it is said the capture of the property is chargeable to the delay of the War Department in making the inspection, and in consequence of this, that the government is not only bound to pay for the supplies which were taken possession of by the enemy, but also to reimburse the claimant for the

Opinion of the court.

loss of his wagons and teams. The answer to this is, that the order of the 9th of March, 1860, did not require inspection at Boston or New York, and if the Secretary of War chose to change the order afterwards, by directing that the goods should be inspected at those places, it was optional with the claimant whether or not he would submit to such direction.

But, conceding that the Secretary of War had the right to direct where the goods should be inspected, still he was not required to inspect, until the goods were substantially ready for inspection, and he was notified of the fact; and it is plain, by the finding of the court below, that after such notice and actual readiness, he did not culpably delay the inspection. The evidence shows very clearly, that the difficulty which the agents of the claimant experienced in filling the requisition, was the cause of the delay in inspecting and shipping the goods. If, however, it be admitted that the government was in default in not inspecting sooner, that default had no connection with the subsequent injury suf fered by the claimaut, and was not the proximate cause of it. In such a case the rule of law applies, that where property is destroyed by accident, the party in whom the title is vested must bear the loss.*

It is insisted that this rule does not apply where private property is seized by the public enemy without any default of the owner, and that in such a case the government is bound to indemnify the sufferers. But the principles of public law do not sanction such a doctrine, and Vattel (page 403) says no action lies against the state for misfortunes of this nature. "They are accidents caused by inevitable necessity, and must be borne by those on whom they happen to fall."

Whether there are equities in this particular case, and if so, whether they require that the claimant should be reimbursed, in whole or in part, for the capture of his property, under the circumstances, are questions that must be addressed

McConihe v. The New York and Erie Railroad Company, 20 New York, 496.

Statement of the case.

to Congress, for it is not the province of the iudicial department of the government to determine them.

The only remaining point in the case, relates to the rescission by Secretary Cameron of the order of the 9th of March. This proceeding was undoubtedly taken because the supplies needed in Arizona could be either purchased there at cheaper rates, or forwarded more securely from St. Louis. Whether the conduct of the Secretary of War was or was not justifiable, is not a question to be considered in deciding this suit, for the claimant has not shown a state of case on which he could recover if the rescinding order had never been made. The contract entitled him to furnish, at certain prices, all the supplies that might be needed in Arizona until the 20th of March, 1862. To enable him to recover, for a breach of this contract, he should have proved that supplies were needed at the posts in Arizona after the rescinding order was made, and the pecuniary loss he sustained in not being allowed to furnish them. This he has wholly failed to do.

We cannot see that this is a case for even nominal damages; but if it is, the Court of Claims was not instituted to try such a case.

JUDGMENT AFFIRMED.

UNITED STATES v. SHOEMAKER.

Prior to the act of June 12th, 1858, providing compensation not exceeding one quarter of one per cent. to collectors acting as disbursing agents of the United States in certain cases, such collector, if receiving his general maximum compensation, under the act of March 2d, 1831 (¿ 4), and also his special maximum of $400, under the act of May 7th, 1822 ( 18), could not recover on a quantum meruit or otherwise for disbursements made for building a custom-house and marine hospital at the port where he was collector.

ERROR to the Circuit Court for the Eastern District of Michigan.

This suit was brought by the United States on a bond