United States v. Shrewsbury

APPEAL from the Court of Claims.

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 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 curvey 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 1069 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 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 3171 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 31st, 1865.

[Special Order No. 145.]

'A board of survey is hereby ordered to meet at the commissary building to-morrow 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 Lientenant 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 1st, 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, a d 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 4240 pounds of corn deficient.

'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 3171 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 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: