United States v. Robeson
34 U.S. 319 (1835)

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U.S. Supreme Court

United States v. Robeson, 34 U.S. 9 Pet. 319 319 (1835)

United States v. Robeson

34 U.S. (9 Pet.) 319

ERROR TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

Louisiana. An action was instituted on a Treasury transcript for the recovery of the balance stated to be due to the United States by the defendant as Assistant Deputy Quartermaster General. The defendant pleaded as setoff a claim on the United States which had been assigned to him by the owners of a schooner chartered to the united States on a voyage from New Orleans to Appalachicola with troops, &c. This claim was presented to the proper officer of the government and refused. Held: the defendant was not entitled to plead this as a setoff of the claim of the United States.

The rule as to setoff, in questions arising exclusively under the laws of the United States, cannot be influenced by any local law or usage. The rule must be uniform in the different states, for it constituted the law of the courts of the United States in a matter which related to the federal government.

When a defendant has, in his own right, an equitable claim against the government for services rendered or otherwise and has presented it to the proper accounting officer of the government, who has refused to allow it, he may set up the claim as a credit in a suit brought against him for any balance of money claimed to be due by the government, and when the vouchers are not in the power of the defendant before the trial or, from the peculiar circumstances of the case, a presentation of the claim to the Treasury could not be required, the offset may be submitted to the action of the jury. But a claim for unliquidated damages cannot be pleaded by way of setoff in an action between individuals, and the same rule governs in an action brought by the government.

Where the parties in their contract fix on a certain mode by which the amount to be paid shall be ascertained, the party that seeks an enforcement of the agreement must show that he has done everything on his part which could be done to carry it into effect. He cannot compel the payment of the amount claimed unless he shall procure the kind of evidence required by the contract or show that, by time or accident, he is unable to do so.

The United States on 10 January, 1822, instituted a suit by petition in the District Court of the United States in Louisiana against the defendant, William L. Robeson, late Assistant Deputy Quartermaster General in the Army of the United States, claiming to recover the sum of $2,663.61 for the balance of his account as such officer as settled and examined, adjusted, admitted, and certified at said department.

Page 34 U. S. 320

To this petition and the citation issued thereon the defendant answered and pleaded that the United States was indebted to him in the sum of $3,000 for work, labor, attendance, &c., bestowed by him in and about the business of the United States and for the United States at its request and for materials and necessary things by him before the time of action bought, found, and employed in and about the said work and labor, for goods sold and delivered, and for money laid out and expended for the United States at its request, for money due and owing to him and interest thereon, which sums of money exceed the sum claimed by the United States from him, and out of which sum so claimed he is willing and offers to set off and allow to the United States the full amount of their claim.

On the same day this answer and plea were filed, 21 January, 1822, William L. Robeson filed an affidavit sworn to and subscribed in open court stating that he was equitably entitled to credits which had been submitted, previously to the commencement of the suit, to the accounting officers of the Treasury and rejected; that the credits are as follows, viz. the sum of $30 for transportation of officers to Baton Rouge and back to New Orleans, and an amount of $39 for transportation of officers from Pass Christianne to New Orleans. That a claim of $364.50 for transportation of contractors' stores taken from the wreck of the schooner Italian and delivered at Appalachicola in April, 1818; a claim for demurrage at Mobile Point, of the schooner Experiment in a voyage from New Orleans to Appalachicola in 1818, to-wit, $330, were presented to the Quartermaster General's Department and returned.

Issue being joined, and the cause having been brought to trial in December, 1829, a verdict was found for the plaintiff for a less amount than the balance of the account stated at the Treasury of the United States, the verdict being for $1,656.11, instead of $2,663.61. This difference resulted from allowances made by the jury under the ruling and direction of the court upon various points which arose at the trial, in respect to which several bills of exception were filed by the counsel of the United States.

The first bill of exceptions stated that the defendant gave

Page 34 U. S. 321

in evidence certain depositions to prove the amount of loss and damage claimed by Forsyth and Walton and Breedlove, owners of a certain schooner called the Experiment to be due to them by the United States, together with an assignment by the said owners to the defendant, for the consideration of $500, of the whole of the amount so claimed by them under a charter of the Experiment to the defendant, as assistant deputy quartermaster general, to proceed from New Orleans to Appalachicola with stores, their claim being for the transportation by the Experiment of provisions and stores belonging to the United States taken from the wreck of a schooner and carried to Appalachicola, amounting to $364.50, for demurrage of the schooner $330, and for the loss of a cable and anchor $226.20, together $920.70.

The plaintiffs prayed the court to instruct the jury that the defendant could not set off against the demand of the United States a greater sum than that expressed as the consideration of the transfer, viz., $500. The demurrage claimed was for detention of the schooner at Mobile Point, and he proved by the charter party the right of the charterers to the same and his right under the assignment thereof and offered evidence of the detention of the vessel at Mobile Point.

The plaintiffs prayed the court to instruct the jury that evidence of a detention at Mobile Point could not sustain a claim for damage under the charter party and that under the pleading and Treasury report, no offset could be sustained for a detention at Mobile Point, but the court refused so to instruct, and to these refusals the plaintiffs excepted.

The third bill of exceptions relates to the assignment from the owners of the schooner Experiment, mentioned in the first bill. The plaintiffs objected to its admission in evidence because it had been received by the defendant after he had ceased to be in the employ of the United States, and because not offered as proof of payment of a debt due from the United States, but as evidence of the purchase of a claim against the United States, which could not be set off in this action. The court overruled these objections, and the plaintiffs excepted.

The other bills of exception are not inserted, as they were not noticed in the opinion of the Court.

Page 34 U. S. 323

MR. JUSTICE McLEAN delivered the opinion of the Court.

The plaintiffs brought their action against the defendant in the District Court of Louisiana to recover a balance of public money which remained in his hands as late assistant deputy quartermaster general. The pleadings being made up, the cause was submitted to a jury, which rendered a verdict for a

Page 34 U. S. 324

sum less by $1,007 than the reported balance at the Treasury Department.

This difference was produced by certain decisions of the court, on the trial, and to which exceptions were taken. And these exceptions are now brought before this Court by a writ of error.

In the first bill of exceptions, it appears, the defendant gave in evidence certain depositions to prove the amount of loss and damage sustained by the owners of the schooner Experiment on a voyage from New Orleans to Appalachicola with troops and stores for the government of the United States, and also a certain instrument by which the owners of the said schooner Experiment transferred to the defendant their claims for compensation upon the United States, &c.

And in the third bill of exceptions, the district attorney prayed the court to instruct the jury that the above claim could not be pleaded by the defendant as a setoff in this action, which prayer was refused.

The first question which arises on these exceptions is whether a claim which has been transferred to the defendant, forms a proper subject of setoff, under the acts of Congress, to a demand of the government. If this question shall be decided in the negative, it will not be necessary to inquire whether the claim in itself constitutes a proper item of setoff. It seems to have been presented to the proper accounting officer of the government as a credit, and that he refused to allow it.

This is a question which arises exclusively under the acts of Congress, and no local law or usage can have any influence upon it. The rule as to setoff in such cases must be uniform in the different states, for it constitutes the law of the courts of the United States in a matter which relates to the federal government.

Where a defendant has in his own right an equitable claim against the government for services rendered or otherwise, and has presented it to the proper accounting officer of the government, who has refused to allow it, he may set up the claim as a credit on a writ brought against him for any balance of money claimed to be due by the government. And

Page 34 U. S. 325

where the vouchers were not in the power of the defendant before the trial or, from the peculiar circumstances of the case, a presentation of the claim to the Treasury could not be required, the offset may be submitted for the action of the jury. But a claim for unliquidated damages cannot be pleaded by way of a setoff in an action between individuals, and the same rule governs in an action brought by the government.

There is no law of Congress which authorizes the assignment of claims on the United States, and it is presumed if such assignment is sanctioned by the Treasury Department, it is only viewed as an authority to receive the money, and not as vesting in the assignee a legal right. But whatever may be the usage of the Treasury Department on this subject, it is clear that such an assignment, as between individuals, on common law principles, cannot be regarded as transferring to the assignee a right to bring an action at law on the account in his own name, or to plead it by way of setoff to an action brought against him, either by an individual or the government.

The claim set up by the defendant as a setoff in this case may have been fairly obtained, and indeed such is the presumption in the absence of all evidence going to impeach the assignment or the consideration on which it was made; but the assignee, not holding the legal right, cannot assert the claim as a setoff in this action.

If any individual who holds in his hands public money could defend himself against an action brought by the government by purchasing claims against it, he might speculate on such claims to almost any extent. This practice would be as impolitic for the government as it would be injurious to individuals.

The practice of the state courts, which has been adopted under the Act of Congress of 1824 for the courts of the United States in Louisiana, cannot affect the point under consideration. For if it were made to appear that under the laws of that state an open account is assignable, so as to enable the assignee to bring an action in his own name or to plead the account by way of setoff, it could not be done in the present case.

The principles involved in this case are connected with the fiscal action of the government, and they cannot depend either upon the local practice or law of any state.

Page 34 U. S. 326

The second bill of exceptions states that

"On the trial of this cause, a certain charter party or instrument marked B, &c., and by which the steamboat Tennessee was chartered for the conveyance of a detachment of troops under the command of Colonel Arbuckle, was offered in evidence; that by said charter party it was agreed that if a larger quantity of baggage and stores should be carried in said boat than was stipulated in said charter party, that freight should be paid on the same on the production of the certificate of the said commanding officer, Colonel Arbuckle. The defendant offered in evidence the deposition of witnesses to prove the carrying, by the said steamboat Tennessee, of a greater quantity of baggage and stores than that stipulated in the charter party, to the introduction of which testimony the district attorney objected because, under the terms of the said charter party, no other evidence than the certificate of the said Colonel Arbuckle could be received to establish the claim to surplus freight, but the court overruled the objection and admitted the evidence."

In the charter party it is agreed that Breedlove, Bradford, and Robeson should transport, unavoidable accidents excepted, a part of the seventh regiment of infantry, under the command of Colonel M. Arbuckle, and their baggage, together with a quantity of stores, not to exceed the bulk of eight hundred barrels, to the port of Arkansas, &c.,

"for the true and faithful performance of the above, certificates of which to be given by colonel M. Arbuckle, or officer commanding, the party of the second part binds himself, as agent of the United States to pay,"

&c.

And on the charter party is endorsed

"It is understood that, for all stores, &c., above the quantity specified, the same rate shall be paid upon producing duplicate specified certificates of the commanding officer."

The following certificate of Colonel Arbuckle was endorsed on the charter party.

"I certify that captain A. B. Bradford did, in compliance with the foregoing agreement, transport from New Orleans to this place a part of the seventh regiment of infantry, amounting to one hundred and ninety-nine, with a suitable number of officers and their baggage, and that he did also transport thirty men of the seventh regiment, not belonging to the Arkansas command, from New Orleans to the

Page 34 U. S. 327

mouth of Red river. The boat was detained at Baton Rouge about nine hours, and at the mouth of Red river about twenty hours. Captain Bradford furnished, for the use of the troops, six cords of wood, for which he is entitled to compensation."

As it appears in the record that payment has been made for the services covered by the above certificate, the evidence which was admitted to be given to the jury, it is presumed, must have been to show the transportation of freight or men, in addition to that which is certified by Colonel Arbuckle. And the question as to the legality of this evidence is raised.

It appears that the agent of the government expressly stipulated to pay the money under the contract on the certificate of Colonel Arbuckle or the officer commanding the party. And for any additional services to those provided for in the contract, payment was to be made at the same rate "upon producing duplicate specified certificates of the commanding officer."

It does not appear that any excuse was offered why these certificates were not procured, and the question is whether the claimant, at his option, can establish his claim by other evidence. The contract is a law between the parties in this respect, as they expressly agree that the amount of the service shall be established by the certificates of the commanding officer. Can it be established in any other manner without showing the impracticability of obtaining the certificates? Is not this part of the contract as obligatory as any other part of it, and if so, is not the obtaining of the certificates a condition precedent to the payment of the money?

Where the parties in their contract fix on a certain mode by which the amount to be paid shall be ascertained, as in the present case, the party that seeks an enforcement of the agreement must show that he has done everything on his part which could be done to carry it into effect. He cannot compel the payment of the amount claimed unless he shall procure the kind of evidence required by the contract or show that by time or accident he is unable to do so. And as this was not done by the defendant in the district court, no evidence to prove the service, other than the certificates, should have been admitted by the court.

Had the defendant proved that application had been made

Page 34 U. S. 328

to the commanding officer for the proper certificates and that he refused to give them, it would have been proper to receive other evidence to establish the claim.

Other exceptions were taken to the rulings of the court in the course of the trial, but as they relate to the assigned claim set up by the defendant, it cannot be necessary to consider them.

On the grounds that the district court permitted the assigned account to be given in evidence by the defendant as a setoff, and allowed, under the circumstances stated, other evidence than the certificates of the commanding officer to prove the transportation account, the judgment below must be

Reversed and the cause remanded for further proceedings.

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