1. The Act of Congress approved June 2, 1862, 12 Stat. 411,
which makes it the duty of the Secretary of War, the Secretary of
the Navy, and the Secretary of the Interior to require every
contract made by them severally on be half of the government or by
officers under them appointed to make such contracts, to be reduced
to writing, and signed by the contracting parties, is mandatory,
and in effect prohibits and renders unlawful any other mode of
making the contract.
2. Where, however, a parol contract has been wholly or partly
executed on one side, the party performing will be entitled to
recover the fair value of his property or services as upon an
implied contract for a
quantum meruit.
3. In the present case, the contract for the use of the
claimant's vessel, and for the payment of her value if she should
be lost in the service of the government, was not reduced to
writing. When in that service, she was manned by a captain and crew
furnished by the Quartermaster's Department and lost, but no
negligence was attributed to them.
Held that the implied
contract being such as arises upon a simple bailment for hire, the
claimant cannot recover for her loss.
4. The forms of pleading in the Court of Claims do not preclude
a claimant from recovering what is justly due him upon the facts
stated in his petition, although there be no count in the petition
as upon an implied contract.
5. No question having been raised as to the claimant's title to
the vessel, and there being no suggestion of any concealment or
suppression of the truth on his part at the time the agreement to
compensate him for the use of her was made, she being then in
Mexican waters, it would be bad faith on the part of the
government, after getting her within its jurisdiction and into its
possession, under the pretense of hiring her, to set up that the
claimant, having obtained her from the Confederate government in
1863 in payment for supplies furnished to the Quartermaster's
Department of that government, had no valid title to her as against
the United States.
This is a claim against the United States for the value of a
steamer lost in the government service in September, 1865, and for
her use for eight days before the loss occurred, at $150 per
day.
The Court of Claims found the following facts:
1. In September, 1865, at Brownsville, Texas, the claimant and
Major O. O. Potter, an officer in the Quartermaster's Department,
entered into an oral agreement, with the approval of General
Steele, commanding the Western Division of Texas. The agreement was
that the Quartermaster's Department should pay the claimant $150 a
day for the use of the steamer
Belle,
Page 95 U. S. 540
but no specific contract was made or to be made as to time until
she had made a trial trip from Brownsville to Ringgold Barracks and
return to prove her ability to perform the service for which the
Quartermaster's Department needed a steamer, and if she made a
satisfactory trial trip, the parties were then to enter into a
formal written contract for her future use at the same price per
day. It was also at the same time agreed orally that the
Quartermaster's Department was to run the steamer on her trial trip
at the expense of the government, and that if she were lost on her
trial trip, the government should pay for her whatever three
disinterested men should estimate her value to be.
2. Under this agreement, the claimant delivered the steamer to
the Quartermaster's Department at Brownsville. The quartermaster
then put his own captain and crew on the vessel and sent her to
Ringgold Barracks. On her voyage, while thus in the service of the
government, she was wrecked and proved a total loss. Three
disinterested persons were then agreed upon and requested by Major
Potter and the claimant to appraise the value of the vessel. They
so acted, and, by a written award, found the vessel to be of the
value of $60,000. The claimant has also proved by evidence other
than the award that $60,000 was the reasonable value of the vessel.
The steamer was in the service of the government before her loss
eight days. The United States has not paid for the value of the
vessel nor for her service.
3. The steamer
Belle was previously owned by, and in
the military possession of, the Confederate government. The
claimant acquired his title to her about the year 1863, taking her
in part payment of a claim he held for supplies furnished by him to
the Confederate Quartermaster's Department. At the time she was
chartered by Major Potter, as set forth in the first finding, she
was in the claimant's possession as alleged owner, and she was also
in Mexican waters, beyond the jurisdiction of the United
States.
Upon these facts the claim was dismissed.
The claimant then brought the case here.
Page 95 U. S. 541
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The first objection made to the claim is that the contract was
not in writing as required by the Act of June 2, 1862, entitled "An
Act to prevent and punish fraud on the part of officers entrusted
with the making of contracts for the government." 12 Stat. 411.
This act provides:
"SEC. 1. That it shall be the duty of the Secretary of War, of
the Secretary of the Navy, and of the Secretary of the Interior
immediately after the passage of this act to cause and require
every contract made by them severally on behalf of the government
or by their officers under them appointed to make such contracts to
be reduced to writing and signed by the contracting parties with
their names at the end thereof, a copy of which shall be filed by
the officer making and signing the said contract in the 'returns
office' of the Department of the Interior (hereinafter established
for that purpose) as soon after the contract is made as possible,
and within thirty days, together with all bids, offers, and
proposals to him made by persons to obtain the same, as also a copy
of any advertisement he may have published inviting bids, offers,
or proposals for the same, all the said copies and papers in
relation to each contract to be attached together by a ribbon and
seal and numbered in regular order numerically according to the
number of papers composing the whole return."
The act further provides that the officer shall affix an
affidavit to his return, and makes it a misdemeanor to neglect
making his return, and directs the heads of departments to furnish
printed instructions and forms of contracts &c.
It is contended on the part of the government that this act is
mandatory and binding both on the officers making contracts and on
the parties contracting with them, whilst the claimant insists that
it is merely directory to the officers of the government, and
cannot affect the validity of contracts actually made, though not
in writing. The Court of Claims has heretofore held the act to be
mandatory, and as requiring all contracts made with the departments
named to be in conformity with it. The arguments by which this view
has been enforced by that court are of great weight, and, in our
judgment, conclusive. The facility with which the government may be
pillaged by the presentment of claims of the most extraordinary
character,
Page 95 U. S. 542
if allowed to be sustained by parol evidence, which can always
be produced to any required extent, renders it highly desirable
that all contracts which are made the basis of demands against the
government should be in writing. Perhaps the primary object of the
statute was to impose a restraint upon the officers themselves, and
prevent them from making reckless engagements for the government;
but the considerations referred to make it manifest that there is
no class of cases in which a statute for preventing frauds and
perjuries is more needed than in this. And we think that the
statute in question was intended to operate as such. It makes it
unlawful for contracting officers to make contracts in any other
way than by writing signed by the parties. This is equivalent to
prohibiting any other mode of making contracts. Every man is
supposed to know the law. A party who makes a contract with an
officer without having it reduced to writing is knowingly accessory
to a violation of duty on his part. Such a party aids in the
violation of the law. We are of opinion, therefore, that the
contract itself is affected, and must conform to the requirements
of the statute until it passes from the observation and control of
the party who enters into it. After that, if the officer fails to
follow the further directions of the act with regard to affixing
his affidavit and returning a copy of the contract to the proper
office, the party is not responsible for this neglect.
We do not mean to say that where a parol contract has been
wholly or partially executed and performed on one side, the party
performing will not be entitled to recover the fair value of his
property or services. On the contrary, we think that he will be
entitled to recover such value as upon an implied contract for a
quantum meruit. In the present case, the implied contract
is such as arises upon a simple bailment for hire, and the
obligations of the parties are those which are incidental to such a
bailment. The special contract being void, the claimant is thrown
back upon the rights which result from the implied contract. This
will cast the loss of the vessel upon him. A bailee for hire is
only responsible for ordinary diligence and liable for ordinary
negligence in the care of the property bailed. This is not only the
common law but the
Page 95 U. S. 543
general law on the subject.
See Jones, Bailm., p. 88;
Story, Bailm., secs. 398, 399; Domat, Lois Civiles, lib. 1, tit. 4,
sec. 3, pars. 3, 4; 1 Bell, Com., pp. 481, 483, 7th ed.
As negligence is not attributed to the employees of the
government in this case, the loss of the vessel, as before stated,
must fall on the owner.
Of course the claimant is entitled to the value of the use of
his vessel during the time it was in the hands of the government
agents, which, as shown by the findings, was the period of eight
days. This value, in the absence of any other evidence on the
subject, may be fairly assumed at what was stipulated for in the
parol contract. Though not binding or conclusive, it may be
regarded as admissible evidence for that purpose. Neither party
thought fit to adduce any other. The cases bearing on this subject
are collected in Browne's Treatise on the Statute of Frauds, secs.
117-130, but they mostly refer to the question whether the
contract, though void by the statute of frauds, can be regarded as
conclusive evidence of the
quantum meruit. Whether or not
it is admissible as some evidence, though not conclusive on either
party, is apparently not much discussed, though it seems to us that
it may fairly be deduced from the tenor of the cases that the
evidence is admissible. At all events, that is our view. As a
declaration of the parties, it is entitled to some credence.
The stipulation in this case, as appears by the findings, was
for $150 per day. This would make the amount of the claim $1,200.
For this amount the claimant is entitled to a decree.
If objected that the petition contains no count upon an implied
contract for
quantum meruit, it may be answered that the
forms of pleading in the Court of Claims are not of so strict a
character as to preclude the claimant from recovering what is
justly due to him upon the facts stated in his petition, although
due in a different aspect from that in which his demand is
conceived.
The other objection relied on by the government in this case is
that the claimant had no valid title to the steamer as against the
United States, having obtained her from the Confederate government
in 1863 in payment for supplies furnished to the
Page 95 U. S. 544
Quartermaster's Department of that government. This objection
cannot be sustained. When the contract was made with the claimant,
the vessel was in Mexican waters, and not subject to the
jurisdiction of the United States. The claimant was applied to for
its use. It was agreed that he should be compensated. No question
was made about his title, and it is not suggested that he was
guilty of any concealment or suppression of the truth in regard to
it. Under these circumstances, it would be bad faith on the part of
the government, after getting possession of the steamer and getting
it within its jurisdiction under pretense of hiring it of the
claimant, to set up that he had no title to it. This is so
obviously in accordance with the justice of the case that we deem
it unnecessary to make any further observations on the subject.
The decree of the Court of Claims must be reversed and the cause
remanded with directions to enter a judgment in accordance with
this opinion, and it is
So ordered.
MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD and
MR. JUSTICE HUNT, dissenting.
While I agree to the reversal of the judgment in this case and
to so much of the opinion as gives compensation for the use of the
vessel before she was destroyed, I cannot agree to the more
important part of the opinion, which holds the contract void
because it was not reduced to writing.
The Act of June 2, 1862, which is interpreted by the Court to be
a statute of frauds, making all contracts of the Departments of
War, Navy, and Interior void which are not reduced to writing and
signed by the parties, is not, in my judgment, properly
construed.
It cannot be doubted that it was competent for Congress to
impose upon the officers of these departments the duty of having
all their contracts made in writing and filed in the proper office,
without making absolutely void a parol contract made on a fair
consideration and within the scope of their authority. In other
words, Congress had a right to give such directions to those
officers as would secure a statement in writing of the contract
itself, for the use of the proper officers of the government,
without making it obligatory on the individual contracting with
Page 95 U. S. 545
the government, so that his contract, otherwise valid, would be
void for want of that formality.
Looking at sec. 1 of the statute as it is cited in the opinion
of the Court, it will be found wanting in the essential words of
all known statutes of fraud.
There is no declaration that a parol contract shall be void, or
that it shall not be enforced, or that no suit may be sustained on
it.
There is no language in it addressed to the party contracting
with the government. It is obvious that the primary purpose of the
statute -- in my judgment, the only one -- is to secure authentic
and perfect statements of such contracts and of the proposals,
advertisements, bids, and all the papers relating to them, to be
filed in an office at Washington, where they can be inspected by
any one having an interest, and especially by those superior
officers whose approval or rejection may affect their validity. The
statute seems in terms to apply to contracts in existence when it
was passed as well as to those to be made in future. Returns of all
contracts are to be made and filed in the office created for that
purpose within thirty days, together with bids, advertisements
&c.
The second section requires the officer making these returns to
verify them by affidavit, and the object of this undoubtedly was to
have evidence on which the government could rely of the precise
nature of the contract and of the circumstances under which it was
made.
The third section imposes a penalty on the officer for failing
to make returns to the proper office, as required by the statute,
by a fine, but no penalty for making a contract not in writing and
signed by the parties.
In short, I cannot conceive, looking to the whole statute, that
Congress intended any thing more than to regulate the conduct of
its own officers in compelling them to furnish all the evidence in
their power of the contract and the circumstances attending its
negotiation, and it seems to me to be going a long way to hold that
it was the purpose to establish an entirely new rule as to the
validity of contracts, at variance with any law heretofore known in
this country or perhaps any other.
Page 95 U. S. 546
If that was the purpose, it is hard to see why contracts in the
three departments mentioned are selected for the operation of the
rule, while the far more numerous and equally important contracts
of the Post Office, the Attorney General's Office, the Treasury and
the State Departments are left to be controlled by the law as it
stood before.
If there is any branch of the public service where contracts
must often be made speedily and without time to reduce the contract
to writing, it is in that of the army. Sudden occasions for
supplies, for the occupation of buildings, for the transportation
of food and munitions of war, are constantly arising, and in many
of them it is impossible to do more than demand what is wanted and
agree to pay what it is worth. Did Congress intend to say that the
patriotic citizen who said "take of mine what is necessary" is to
lose his property for want of a written contract or be remitted to
the delays of an act of Congress?
It seems to me that if Congress had been intending to enact a
statute of frauds, they would have made some limitation of its
operation to cases of future delivery of property or future
performance of service, and would not have passed a statute like
this, which, if its effect is such as the Court declares, renders
void all contracts for compensation for the thousand small services
and supplies which are daily needed by those in the employment of
the government for its use.
I think the construction given by the Court unwarranted and
unfortunate and of sufficient importance to record my dissent from
it.
