United States v. Shrewsbury, 90 U.S. 508 (1874)

U.S. Supreme Court

United States v. Shrewsbury, 90 U.S. 23 Wall. 508 508 (1874) United States v. Shrewsbury

90 U.S. (23 Wall.) 508

APPEAL FROM THE COURT OF CLAIMS

Syllabus

Where, under a contract entered into between the government and a transporter of military stores in the wilds of the West, it was provided that a board of survey composed of military officers should on the arrival of the stores at their place of delivery examine the quantity and condition of the stores transported and,

"in case of loss, deficiency, or damage, investigate the facts and report the apparent causes, assess the amount of loss and injury, and state whether it was attributable to neglect or want of care on the part of the contractor or for causes beyond his control,"

a copy of which, said the contract, "shall be furnished to the contractor, shall be attached to the bill of lading, and shall conclude the payments to be made," held that a report which did not report investigation of facts and the apparent causes nor state whether the loss was attributable to neglect or the want of care on the part of the contractor or to causes beyond his control, but which merely on its face found the deficiency and charged it accordingly would be supported, the contractor not having at the time objected either as to the form or the substance of the report, when it was made, and objecting only when he came and got his money, when witnesses were scattered and gone, and most of them difficult if not impossible to be found, and then notifying to the quartermaster nothing more definite than that he, the contractor, would claim a readjustment and full damages.

The case found by the Court of Claims was thus:

On the 27th of March, 1865, W. S. Shrewsbury entered into a contract with the United States to transport army

Page 90 U. S. 509

stores from Fort Leavenworth, Kansas, and other forts there and in Missouri, to Fort Lyon and other forts in the territories of Colorado and New Mexico.

The contract contained a clause thus:

"In all cases where stores have been transported by the said Shrewsbury, under this agreement, a board of survey shall be called without delay, upon their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and in cases of loss, deficiency, or damage, to investigate the facts and report the apparent causes, assess the amount of loss or injury, and state whether it was attributable to neglect or the want of care on the part of the contractor, or to causes beyond his control, and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading and shall conclude the payments to be made on it."

"For loss of weight due to shrinkage . . . , the contractor shall not be liable if the packages are delivered in good order and condition and the board of survey shall be satisfied that such shrinkage did not arise from neglect or want of care on the part of the contractor or his agents."

"For deficiencies or damages the contractor shall pay the costs at the point he receives the articles, and freight shall be deducted in the latter case in proportion to the amount of damage assessed. Should no board of survey be called, through failure on the part of the quartermaster's department or other military authority to convene one, it shall be considered that the contractor has delivered all the stores, as specified in the bill of lading, in good order and condition, and he shall be paid accordingly."

On the 2d of June, 1865, one of Shrewsbury's transportation trains -- train No. 124 -- received, at Fort Leavenworth, 858 sacks of corn, weighing in the aggregate 101,860 pounds, averaging 118 3/4 pounds per sack. The train arrived at Fort Lyon, Colorado, in the latter part of July and delivered the corn in good order except that 9 sacks, amounting to 1,069 pounds, were lost. But, by reason of the difference or imperfection of the scales used in the determination of the weight of the remainder and the shrinkage in weight upon

Page 90 U. S. 510

the road, the remaining 849 sacks were reported to weight only 97,620 pounds instead of 100,791 pounds, their weight when they left Fort Leavenworth, and Shrewsbury was charged with the loss of 3,171 pounds. A board of survey was ordered on the 31st July, 1865, which met on the 1st August, 1865, and examined the supplies delivered.

The following were the proceedings of the board, as reported to the commanding officer, and as attached to the bill of lading:

"Proceeding of a board of survey which assembled at Fort Lyon, C.T., by virtue of the following order, viz.:"

"HEADQUARTERS, FORT LYON, C.T."

"July 31, 1865"

"[Special Order No. 145]"

"A board of survey is hereby ordered to meet at the commissary building tomorrow morning, at 9 o'clock or as soon thereafter as practicable to examine and report upon the quantity and condition of certain commissary and quartermaster stores being received by Lieutenant C. M. Cossett, Acting Assistant Quartermaster, and A.C.S."

"Detail for the Board"

"First Lieutenant J. A. Cramer, veteran battalion, First Colorado Cavalry."

"First Lieutenant Henry Gronheim, Fifteenth Kansas Cavalry."

"By order of Theo. Conkney, captain, commanding post."

"JAMES OLNEY"

"Second Lieutenant and Post Adjutant"

"FORT LYON, C.T."

"August 1, 1865"

"The board met pursuant to the above order."

"Present: First Lieutenant J. A. Cramer, veteran battalion, First Colorado Cavalry, and First Lieutenant Henry Gronheim, Fifteenth Kansas Cavalry, and proceeded to examine the supplies delivered by freight contractor W. S. Shrewsbury, in contractor's train No. 124, Fort Lyon, No. 5, and find as follows:"

"Packages all correct and in good order, with the exception of nine sacks of corn deficient; weight agreeing with the bill of lading with the exception of 4,240 pounds of corn deficient. "

Page 90 U. S. 511

"The board therefore recommend that the deficiency of corn be charged to the freight contractor and that Lieutenant C. M. Cossett, Acting Assistant Quartermaster, be permitted to drop said deficiency from his return."

"The board then proceeded to other business."

These minutes were signed in form by the officers composing the board.

In pursuance of the foregoing recommendation, Shrewsbury was charged by the quartermaster department for the loss of 9 sacks of corn, and in addition to the 9 sacks of corn with the 3,171 pounds of difference in weight of the remainder of the corn before mentioned, and for this difference $449.61 was deducted from his account. He had never been paid this balance. A general account was stated between the parties showing the amount allowed and deducted, entitled:

"An account for the transportation of military stores from Fort Leavenworth, Kansas, to Fort Riley, Kansas, under contract with the United States dated March 27th, 1865, as per the accompanying bills of lading, receipts, and proceedings of boards of survey, to-wit."

The claimant was paid the total of the amounts allowed, and at the foot he gave the following receipt:

"Received, at Fort Leavenworth, Kansas, the 23d of October, 1865, of Captain H. L. Thayer, Assistant Quartermaster, United States Army, the sum of $91,243.60, in full of the above account."

"W. S. SHREWSBURY"

At the time of receiving payment, Shrewsbury protested against the deduction, and notified the quartermaster who made the payment that he should look to the United States for a corrected adjustment and full payment.

The Court of Claims, upon the foregoing facts, decided as conclusions of law:

That as to the shrinkage of corn and difference of weight, the proceedings of the board of survey did not conform to the terms of the contract, inasmuch as the board did not investigate the facts nor report the apparent causes, nor state

Page 90 U. S. 512

whether the loss was attributable to neglect or the want of care on the part of the contractor, or to causes beyond his control, and that for the amounts thus withheld the claimant should recover.

Nott, J., in delivering the opinion of the court said:

"The sacks of corn averaged 118 3/4 pounds per sack. It is therefore apparent that the nine missing sacks (for which no claim is made by the contractor) could not have weighed 4,240 pounds when received at Fort Leavenworth, and that if 'the packages' were all correct and in good order, as found by the board, the deduction ordered was an arbitrary deduction, which any clerk could have made by a simple comparison of the two weights, and which involved the exercise of no real examination or discretion."

"But the rule which the parties established for themselves by their agreement was, that in case of 'deficiency' the board of survey should"

"investigate the facts and report the apparent causes and assess the amount of loss or injury, and state whether it was attributable to neglect or the want of care on the part of the contractor, or to causes beyond his control."

"In none of these particulars do the proceedings of the board in any manner carry out the intent and terms of the contract. The board did not investigate the facts, it did not report the apparent causes, it did not state whether the loss was attributable to neglect or to the want of care of the part of the contractor, or to causes beyond his control. As to all of these particulars the contractor had the right to receive the investigation of the board, and the contract was so rigid in assuring him of that right, that it provided that if the other party, who alone had the right to convene a board, should fail to do so, he should be deemed to have 'delivered all the stores, as specified in the bill of lading, in good order and condition, and be paid accordingly.' We do not mean to say that the failure of a board to investigate after it has been property convened will work the same result in favor of a contractor, but we do think that when a board is convened it must carry out the intent of the agreement in its investigations, or else that its proceedings will not be conclusive and binding upon the contractor."

The judgment of the court was that the claimant recover. The United States took this appeal.

Page 90 U. S. 516

MR. JUSTICE SWAYNE delivered the opinion of the Court.

The counsel for the appellee maintains that the Court of Claims in holding as it did for nought the findings and recommendations of the board was right because the agreement was that in case of deficiency, the board should

"investigate the facts and report the apparent cause, and assess the amount of loss or injury, and state whether it was attributable

Page 90 U. S. 517

to neglect or want of care on the part of the contractor, or to causes beyond his control,"

and that their proceedings failed to carry out the intent and terms of the contract in these particulars. This is too narrow and technical a view of the subject. The provision of the contract touching the board was important to the government. The points of delivery were in the wilds of the West. If there was any failure by the contractor, the time and place of delivery were the time and place to ascertain the facts, and to put the evidence in an effectual shape. Afterwards it might be impossible for the government to procure the proofs, and if it were done, the expense might greatly exceed the amount of the items in dispute. At the delivery, the bill of lading spoke for itself. The teamsters and guards who accompanied the train were present, and could readily be examined. It is said by the Court of Claims, in their conclusions of law, that the board failed to make the requisite investigations of the facts. To do this was one of the most important duties devolved upon them. It is to be presumed they discharged it. They did not say in terms that they had done so, but they reported conclusions carrying with them the strongest implication that what was recommended rested on a basis of ascertained facts. The board, as honest men, could not have announced such results without the proper previous examination. The means were at hand, and the work was easy. A formal and technical instrument was not to be expected from military men acting under such circumstances. We think the reports were sufficient, and that they conform in every substantial particular to the requirements of the contract.

It does not appear that the contractor objected either as to form or substance when the reports were made, nor that he disclosed any objection subsequently until the time of payment. Nor did his objections then assume a definite shape. He notified the quartermaster that he should claim "a readjustment and full payment." The reasons and grounds of the claim were not stated. The payments were made at a distant point and after the lapse of several months.

Page 90 U. S. 518

The witnesses were then scattered and gone. Most of them doubtless were difficult if not impossible to be found. As the contractor was silent when he should have spoken, he cannot be permitted to speak at the later period, in the altered condition of things, which then existed, as regards the other party. He must be held to have waived any exception which he might have taken at the proper time, and to have been, when the payments were made, finally concluded.

Judgment reversed and the case remanded with directions to dismiss the petition.

MR. JUSTICE FIELD dissented.