United States v. Bostwick

APPEAL from the Court of Claims.

This was a suit by Thomas R. Lovett, trustee of Mrs. Louisa Fletcher, against the United States, to recover the rent of and for damages to certain real estate and premises situated in the District of Columbia, and known as Kalorama.

The Court of Claims found the following facts:--

Thomas R. Lovett, as trustee of Mrs. Louisa Fletcher, was, on the seventeenth day of August, 1861, seised in fee of said premises, containing about ninety-one acres, a dwelling-house with wings, measuring in all one hundred and fifty by forty feet, a large stable, and a frame building, with a garden, lawns, and walks, a fence all around the premises, and a substantial wall, about a quarter of a mile long, from Rock Creek to the lodge gate on Boundary Street, and trees of various kinds, and shrubbery.

In consequence of application made to him for the lease of the premises to the United States for a hospital, by General Mansfield, Lovett authorized the following writings, marked 1 and 2:--

'GENERAL,-Inclosed is a note of terms for the mansion and lower grounds of Kalorama.

'The upper grounds contain about seventy acres, which may be occupied by the quartermaster for horses and wagons, or whatever else may be desired, at the rent of $100 per month.

'Respectfully,

'CHARLES F. FLETCHER,

'For THOMAS R. LOVETT, Trustee.

'TO GENERAL MANSFIELD, B. G. &c.'

'No. 2.

'KALORAMA, Aug. 17, 1861.

'GENERAL MANSFIELD:

'SIR,-I offer to the government, for the purposes of a hospital, that part of the place known as Kalorama, comprising the house and porter's lodge, together with about thirty acres of land immediately surrounding and including both sides of Rock Creek, bordering the same, upon the following terms:--

'The lease to be for the term of three years, with the privilege to the government to renew the same for three years longer, at the same rent, $450 per month.

'There will be left in the building a portable furnace and hall-stove, for the use of the government. It will be stipulated that the trees and shrubbery on the grounds shall be strictly protected, and any unnecessary injury to the same to be compensated for by the government; the buildings to be kept in repair by the government, and to be left in as good repair as ordinary wear and tear will permit. The grounds having already been occupied by troops, and the fence thereby destroyed, it is expected that the government will renew them, and leave them in good repair at the expiration of the term.

Very respectfully, yours, &c.,

'CHARLES F. FLETCHER,

'For THOMAS R. LOVETT, Trustee.'

Thereafter General Mansfield issued and sent to Lovett the following:--

'HEAD-QUARTERS, DEPARTMENT OF WASHINGTON,

'WASHINGTON, Aug. 17, 1861.

'As soon as vacated, within two weeks the United States will hire the whole property of Thomas R. Lovett, trustee of Mr. Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot, and all his land and privileges, for $500 per month, for the period of one year, with the privilege of keeping it at least three years, if desirable for all purposes.

'MANSFIELD, B. C., &c.'

Under the agreement above made the United States entered upon and occupied the said premises specified in General Mansfield's order, from Aug. 23, 1861, to Sept. 30, 1867, inclusive.

For rent of said premises the United States paid to the said Lovett $500 per month, from Aug. 23, 1861, to June 30, 1862; and for each monthly payment the petitioner signed a receipt, the form of which was as follows:--

'The United States to Thomas R. Lovett, Trustee, Dr.

'1862. For rent of Kalorama, occupied as hospital, from

June 1 to June 30, 1862, at $500 per month $500.

'I certify that the above account is correct and just, that the services were rendered as stated, and that they were necessary for the public service.

E. E. CAMP, Captain, A. Q. M.

'Received at Washington, D. C., the 15th of July, 1862, of Captain E. E. Camp, Assistant Quartermaster United States Army, the sum of five hundred dollars and _____ cents, in full of the above account.

THOMAS R. LOVETT, Trustee.'

For rent of said premises the United States paid to Lovett $250 per month, from July 1, 1862, to Feb. 1, 1865; and for each monthly payment he signed a receipt, in the following form:--

'The United States to Thomas R. Lovett, Trustee, Dr.

'1862. For rent of Kalorama, occupied as a hospital and camp-grounds from July 1 to Sept. 30, 1862, at $250 per month $750.

'I certify that the above account is correct and just, that the services were rendered as stated, and that they were necessary for the public service.

E. E. CAMP, Captain, A. Q. M..

E. E. CAMP, Captain, A. Q. M. D. C., the 9th of October, 1862, of Captain E. E. Camp, Assistant Quartermaster United States Army, the sum of seven hundred and fifty dollars _____ cents, in full of the above account.

THOMAS R. LOVETT, Trustee.'

From the 1st of February, 1865, to Sept. 30, 1867, inclusive, the United States paid for rent of said premises $200 per month; and for each payment received a receipt, in the form annexed.

'The United States to Thomas R. Lovett, Trustee, Dr.

'1867.

'Sept. 30. For rent of Kalorama, as hospital and camp-ground, from Sept. 1, 1867, to Sept. 30, 1867, one month $200.

'I certify that the above account is correct and just, that the services were rendered as stated, and that they were necessary for the public service.

A. P. BLUNT,

'Brevet-Colonel & A. Q. M., U.S. A.

'Received at Washington, D. C., the 30th of September, 1867, of Brevet-Colonel A. P. Blunt, Assistant Quartermaster United States Army, the sum of two hundred dollars and _____ cents, in full of the above account.

THOMAS R. LOVETT, Trustee.'

While the United States occupied the premises from Aug. 23, 1861, to Sept. 30, 1867, the main house was burned; the flower-garden and shrubbery were destroyed; three and one-half miles of fence torn down; a brick wall fifty feet long, nine feet high, and fourteen inches thick torn down, and the bricks used, partly for pavement and partly for building a lime-house, where the United States put clothes for purifying them. Some sheds were torn down. The part of the house not burned, about fifty feet long, was greatly damaged, and the glass, with the sashes, was carried away. Ornamental and shade trees of various kinds were cut down; a stone wall was taken down, and most of it carried away; and stone quarried and gravel dug from a quarry and a gravel-pit on the premises, and carried away. The premises were left in a dilapidated condition, and the house unfit for occupancy. To restore the building and premises to their condition when leased, reasonable wear and tear excepted, would have cost $20,000.

The stone quarried and carried away by the United States amounted to 2,327 perches, and was worth 25 cents per perch $581.

The gravel dug and carried away by the United States amounted to 2,347 yards, and was worth 21 7/10 cents per yard 509.

The stone wall taken down and carried away amounted to 505 perches, and was worth $3.50 per perch 1,767.

The extent and valuation of the damage to the part of the dwelling-house not burned, or to other buildings, the number or the value of the trees cut down, the value of the brick wall or fence destroyed, and the disposition of a fire-proof safe, boiler, stove, and heater, were not shown.

Two regiments were, previous to said written contract, encamped by the United States on the northern part of said premises; and thereon and during such occupation, previous to said contract, about fifteen hundred trees were cut down and a portion of the fencing destroyed by the soldiers of said regiments.

All the injuries to said premises during the occupation thereof, or of any part thereof, either previous to or during said written contract, were done by the military forces of the United States engaged in supressing the rebellion, who were encamped on the premises previous to said written contract, or who occupied them under said contract.

The dwelling-house was used by the United States for a small-pox hospital, and the ground as a camping-ground for soldiers. Seven or eight soldiers who died were buried on the place; and since it was vacated by the United States, Sept. 30, 1867, it has not been rented.

At the time the dwelling-house was burned it was insured by the AEtna Insurance Company and the Firemen's Insurance Company, on two policies of $5,000 each. Those companies adopted as their highest rate of insurance on buildings three-fourths of their cash value. The amount of the insurance, $10,000, was paid to the petitioner for a total loss.

On the 21st of December, 1868, Lovett presented for payment to the United States the following account or bill:--The United States to Thomas R. Lovett, Trustee, Dr.

Oct. 1. To rent of Kalorama, from Aug. 23, 1861, to

A .A. Oct. 1, 1867, 73 months, 8 days, at $500   $36,645.

$27,861.

E. & O. E.

JOHN D. McPHERSON, Attorney, &c.

DEC. 9, 1868.

On Feb. 8, 1870, the following notice was sent to Lovett:--

'WAR DEPARTMENT,

'QUARTERMASTER-GENERAL'S OFFICE,

'WASHINGTON, D. C., Feb. 8, 1870.

'THOMAS R. LOVETT, Esq., Washington, D. C.:

'SIR: You are respectfully informed that your claim as trustee, &c., of the premises known as 'Kalorama,' in this District, has this day been referred to the third auditor of the treasury for the payment of $21,040.42.

'Very respectfully, your obedient servant,

'By order Acting Quartermaster-General,

'JAMES A. EKIN,

'Deputy Quartermaster-General,

'Brevet Brigadier-General U.S. A.

'120-103 Claims.'The facts following were requested by the petitioner.

In October, 1867, the claimant made out and presented to the Secretary of War the following claim:--

  United States to Thomas T. Lovett, Trustee, Dr.

Oct. 1. To whole amount of rent according to contract,

from Aug. 22, 1861, to Oct. 1, 1867,

months, 8 days, at $500 per month $36,645.

Less amount received, from Aug. 23,

per month     $5,145.

From July 1, 1862, to Jan. 31,

From Jan. 31, 1865, to Oct. 1,

1867, at $200  6,400.

portion of mansion    $16,

Less insurance 10,

$32,493.25 Which was by the Secretary indorsed as follows:--

(Indorsed:) '25-1-'70. 120/103 Kalorama. Referred to the Quartermaster-General for investigation and report.

'EDWIN M. STANTON, Secretary of War.

'FEB. 12, 1868.'

On this claim the Quartermaster-General reports as follows:--

'QUARTERMASTER-GENERAL'S OFFICE.

'WASHINGTON, D. C., NOV. 11, 1869.

'Hon. WILLIAM W. BELKNAP,

'Secretary of War, Washington, D. C.:

'SIR,-I have the honor to return the enclosed claim of Thomas R. Lovett, trustee, &c., for rent and repair of premises known as 'Karlorama,' in this city, and for gravel, stone, &c., stated at $32,493.25, referred to this office from the War Department for further report, in connection with the additional evidence presented, and to invite your attention to the full abstract of the case herein.

'I consider the order of General Mansfield taking possession, and directing a monthly payment of $500, and the fact of the claimant receiving and receipting for this amount, sufficient evidence of a contract or lease, and therefore recommend that rent be paid from Aug. 23, 1861, to Oct. 1, 1867, 73 months, 8 days, at $500 per month, amounting to $36,633.33, subject to the deduction of all sums which were paid the claimant for the use of the premises during United States occupancy.

'It is evident from the abstract that injustice was done the claimant in the previous recommendation of Acting Quartermaster-General Rucker, as to the allowance for gravel taken and used.

'I recommend that Mr. Lovett be paid for 2,777 yards (60,250 bushels) of gravel, at the same rate as that allowed by the War Department in the 'Dennison' case, viz., one (1) cent per bushel, amounting to $602.50.

'So much of General Rucker's recommendation as is for repairs, $2,300, and for 2,327 perches of stone, at 25 cents per perch, amounting to $581.75, I recommend to be adhered to.

'Very respectfully, your obedient servant,

'J. C. McFERRAN,

'Deputy Quartermaster-General,

'Acting Quartermaster-General.

This report being examined by an officer of the War Department, he made a report to the Secretary, concluding with the following recommendation:--

'As to the item mentioned in Mr. Lovett's proposition as being in the house, a fire-proof safe, copper boiler, hall-stove, &c., and for which an aggregate charge of $218 is made, Messrs. Allen and Yeatman say that they are unable to determine whether the responsibility for these rests with the Quartermaster's or Medical Department, and the Quartermaster-General does not ask authority to pay them. It is considered, however, that, the responsibility of the Medical Depatment being a matter of doubt, they should be paid for by the same Department as the rest.

'It is recommended, therefore, that the Acting Quartermaster-General be directed to make the payments recommended in his letter of Nov. 11, 1869, and to pay, in addition, the sum of $218 for the items last referred to.'

Upon which the Secretary of War indorsed as follows:--

'Approved:

'WILLIAM W. BELKNAP, Secretary of War.'

Whereupon the Quartermaster-General wrote to Lovett as follows:--

'WAR DEPARTMENT,

'QUARTERMASTER-GENERAL'S OFFICE,

'WASHINGTON, D. C., Feb. 8, 1870.

'THOMAS L. LOVETT, Esq., Washington, D. C.:

'SIR,-You are informed that your claim as trustee, &c., of the premises know as 'Kalorama,' in this District, has this day been referred to the Third Auditor of the Treasury for the payment of $21,080.42.

'Very respectfully, your obedient servant,

'By order of the Acting Quartermaster-General,

'JAMES A. EKIN,

'Deputy Quartermaster-General,

'Brevet Brigadier-General, U.S. A.

'Allowed on request of Lovett. E. G. L.'

The accounting officers of the Treasury disapproved of the recommendation of the War Department, and rejected the claim, except as to the sum of $5,159.99, of which action the claimant was duly advised.

The following letter was received by the Quart ermaster-General:--'WASHINGTON, Jan. 31, 1868.

'To Brig.-Gen. RUCKER, A. Q. M. G., Washington, D. C.:

'GENERAL,-In reference to the accompanying account, I would respectfully state that the place known as 'Kalorama,' lately occupied by the government (a plat of which accompanies this communication), comprises about ninety acres of land. It was hired on the seventeenth day of August, 1861, by Brigadier-General Mansfield, on the part of the government, as a hospital and camp-grounds, by written contract, at a monthly rent of $500, of which contract the following is a copy:--

"HEAD-QUARTERS, DEP'T OF WASHINGTON,

"WASHINGTON, Aug. 17, 1861.

"As soon as vacated, within two weeks the United States will hire the whole property of Thomas R. Lovett, trustee of Mr. Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot and all the land and privileges, for $500 per month, for the period of one year, with the privilege of keeping it at least three years, if desirable for all purposes.

"MANSFIELD, Brigadier-General, &c.'

'Possession of the premises was given on the twenty-third day of August, and, on the tenth day of October following, the contract was filed in the office of Captain E. E. Camp, A. Q. M., and by him entered on the roll by order of Brigadier-General Van Vliet.

* *  *  *  *

'I am, respectfully,

'THOMAS R. LOVETT,

Trustee, &c., Mount Airy, Philadelphia, Pa.

As conclusions of law, the court found,--

That the letter of Charles Fletcher, for Thomas R. Lovett, trustee, dated Aug. 17, 1861, addressed to General Mansfield, as qualified by General Mansfield's reply, dated Aug. 17, 1861, and with that made a contract of lease subsequently acted on by the parties, by the terms of which the United States were bound to repair the premises in case of their damage by fire, and to release them in as good repair as ordinary wear and tear would permit.

That under said contract and under the tenancy between the parties the United States were liable for injuries to the premises, in the nature of waste.

That the claimant is not entitled to damages for the use of the premises as a small-pox hospital by the United States.

That the claimant is barred of all claims for reductions of rent by his receipts in full given for such rents.

That the United States were not entitled to be credited with $10,000 paid to the claimant by insurance companies on policies of assurance obtained and paid for by him for his benefit.

That the report of the officers of the Quartermaster's Department, that $21,040.42 were due to the claimant, approved by the Secretary of War, and ratified by the War Department to the claimant, was not binding and conclusive on the United States.

That the claims of the petitioner for loss by fire and damage by acts of waste were not barred by the Statute of Limitations.

There was a judgment of $20,000 in favor of the claimant; from which both parties appealed to this court.

Lovett having died pending the suit, Charlotte Bostwick, his administratrix, was substituted in his stead.

Mr. Assistant Attorney-General Smith, for the United States.

The contract under which the United States entered into the occupancy of the premises was completed by the verbal or implied assent of Lovett to the proposition, contained in General Mansfield's letter of Aug. 17, 1861. Lovett's letter of that date was a mere offer, not assented to, and constitutes no contract; for there must be not only a proposal, but an acceptance thereof. 1 Story Contr., sect. 490; Hazard v. ''N. E. Ins. Co.'', 1 Sumn. 225; Andrews v. Garrett, 6 C. B. N. S. 269; Tuttle v. Love, 7 Johns. 471.

Where a proposition is made, with certain conditions or limitations, the acceptance must correspond to it in terms; otherwise, it is a new proposition, requiring the subsequent assent of the other party to render it binding. 1 Story, Contr., sect. 503; Slaymaker v. Irwin, 4 Whart. 369; Honeyman v. Marryatt, 6 Ho. of L. Cas. 112.

Lovett, in his letter of Jan. 31, 1868, to General Rucker, expressly declares General Mansfield's letter of Aug. 17, 1861, to be the contract under which the premises were occupied.

General Mansfield's letter was not a lease, but a mere proposition to occupy, which, when accepted, constituted a verbal letting, and, under the first section of the Statute of Frauds, a tenancy at will.

There was no liability to rebuild in case of fire. Taylor's Land. & Ten., sects. 101, 146; Leach v. Thomas, 7 Car. & P. 327; Horsefall v. Mather, Holt, 7; Brown v. Crump, 1 Marsh. 567; Rook v. Worth, 1 Ves. Sen. 462; Wainscott v. Silvers, 13 Ind. 497; Warner v. Hitchins, 5 Barb. 666.

The claimant is bound by his assent to the reduction of the rent, especially as the government continued in optional occupancy, upon the faith of his acquirescence. United States v. Clyde, 13 Wall. 35.

As the government was not liable to rebuild, it was not liable to make repairs.

Teneral Mansfield's proposition was to take the property 'for all purposes,'-a term broad enough to include a small-pox hospital, or any other use to which the government might see fit to put it.

Mr. J. D. McPherson, for Bostwick.

The court below did not err in taking the whole correspondence to constitute the contract. Addison, Contr., c. 1, sect. 2, p. 41.

If one enter under an agreement for a lease, and pay rent, the relation of landlord and tenant arises, and the tenant holds under the terms of the agreement, as if embodied in a lease. 1 Platt on Leases, c. 4, sect. 4, pp. 611, 612.

The mere fact that the defendant, modifying certain terms, restates them, does not exclude others not modified or restated.

Out of the relation of landlord and tenant there arises on the part of the tenant an implied contract to use the leased premises in a tenant-like manner. White v. Nicholson, 4 Man. & Gr. 95; 43 E. C. L. 58; Nave v. Berry et al., 22 Ala. 382; Addison, Contr., sect. 711.

A general covenant to repair is binding on the tenant, whatever may be the cause of dilapidation. 2 Platt on Leases, p. 186; Bullock v. Demmet, 6 T. R. 650; Buckworth Canal Co. v. Pritchard, id. 750; Phillips v. Stevens, 16 Mass. 246; 3 Pars. Contr., c. 3, p. 503; Taylor's Land. & Ten., sect. 343; Addison, Contr., sect. 711.