Freeman v. United States

delivered the opinion of the court:

The petitioners claim for the hire of a steamboat, and the court find the facts to be—

That on the 25th day of April, 1861, Melanethon Freeman, Henry *274O. Freeman and John H. Suckley were co-partners in trade, doing business in the city of New York, under the firm and style of M. M. Freeman & Co.

That on said' 25th day of April the said firm contracted in writing with the United States for the hire of. the steamboat Cataline, for a term of not less than three months, at $10,000 per month, payable monthly — the boat to be run at the owners’ expense, and be purchasable by the government. All risks usually covered by marine and fire policies to be borne by the owners; all other risks by the government. In case of loss by any of the latter risks, $50,000 to be paid for the boat, and all injuries in proportion ; the term of letting and hire to commence at 12 o’clock noon on the 25th of April, 1861, and to terminate at the same hour she may be released to the owners in New York; all time lost by damage to the boat by the elements, bursting of boilers, breaking of machinery, or collision at sea or in port, to be deducted; the boat to be kept in perfect running order by the lessors all the time she is in the service of the government; payments for her services by the government to be made' upon the certificate of an officer of the army, or the affidavit of the master of the boat, explicit as to the fact of the boat having been kept in perfect running order.

Under the contract the Cataline entered into the service of the United States, and. was retained and employed by them until the 2d day of July, 1861, when she was burned.

On or about the 18th of June, 1861, the United States paid to the said lessors $10,000 as and for the hire of the boat for one month, from the 25th day of April, the date of said contract, until the 25th day of May, 1861. And the petitioners now claim, as the hire of the boat under the contract for the residue of the time for which she was in the service of the United States, $12,666 64.

After the burning of said vessel the lessors demanded said sum of the United States, and presented the documents set forth in the petition; but no payment thereof was or has been made.

At the time the claim therefor arose, Charles A. Stetson owned nine-tenlhs of said claim, and the firm of M. M. Freeman & Co. owned one-tenth. Afterwards, and on or about the 31st day of December, the said firm of M. M. Freeman & Co. was dissolved,, and a new co-partnership was formed by Melanctkon M. Freeman and Henry O. Freeman, under the name and style of M. M. Freeman & Co.; and on the 31st day of December, 1862, the said John H. Suckley assigned all his interest in said claim to the said new firm of M. M. Freeman *275& Co.; and on the 4th day of December, 1863, the said Charles A. Stetson also assigned all his interest in said claim to said new firm of M. M. Freeman & Co.

After this suit was commenced the said Melanethon M. Freeman, died, and by his will, duly proved the 26th of March, 1866, appointed said Henry 0. Freeman his executor, and the suit is now prosecuted by Henry 0. Freeman and John H. Suckley, surviving members of the original firm of M. M. Freeman & Co., and by Charles A. Stetson, petitioners, for the benefit of the said firm of M. M. Freeman & Co., to whom the claim was assigned as above stated.

The contract was made by the duly authorized agent of the United • States; it has been affirmed by the payment upon it of ‡10,000 for one month’s service, and the evidence shows it was fulfilled on the part of the lessors until the destruction of the boat, on July 2,1861.

On the facts stated we find the plaintiff is entitled to the contract price from the 25th of May until the 2d of July, 1861, amounting to the sum of $12,666 64, for which judgment is to be rendered for the petitioners.

dissenting:

I think the petitioners show that they are not entitled to maintain this action, because they show that they have not prod.uced to the United States that proof of service upon which they agreed with them the payment should be made,

The contract of parties is the law they have made for themselves, and the court can no more alter that, than they can a statute; their duty is to administer each as it was made. And to recover on a contract the claimant must prove he has performed his part and has done what he agreed should be done before payment, otherwise he does not show that on the contract the defendant is in default, and until the defendant is shown to be in default, no judgment can be rendered against him.

This contract prescribes as follows : “ Payment for her services to be made upon the certificate of an officer of the army, or the affidavit of the master of the boat, explicit to the fact of the boat’s having been kept in perfect running order.”

The language is precise. It calls for a certificate from an officer of the army — or an affidavit&ora the master of the boat, and thus expressly distinguishes between a certificate and an affidavit.

As the payment in the contract is conditioned on the production of *276tbe evidence specified, the officers of the department could not pay without it, for they had no authority to alter or waive the contract, or dispense with any of its provisions, and to put the United States in default it must be shown that such a demand was made as its officers could comply with, for the United States are not, as individuals are, to go in search of their creditor, but he is to demand payment at the place and of the officer appointed by law.

In this case I think the petitioners show they made a demand with which the officer could not comply, and therefor that they must make another before they can maintain any action.

The petitioners show that when they made their demand for payment they presented the papers set forth in the petition. These are, first, two certificates of an officer of the army, but these only state the time the vessel was in the service, and do not refer in any way to the running order she was kept in; secondly, a paper signed and sworn to by the master of the boat. This states the vessel was kept in perfect running order, but it is not an affidavit, because that means an oath in writing, and an oath must be administered by some one duly authorized, or it is a nullity, and the oath here was administered by a judge advocate, and a judge advocate is not a magistrate, nor has he any authority to administer oaths outside of a court-martial, unless specifically authorized, and no authority is shown or known for his act here.

Now, that the oath is legally a nullity, may he a matter of form, and it certainly does not go to the merits between the parties, but the want of the oath prevents the document presented for the payment from satisfying the contract, and by their plea the defendants say they are not liable on the case shown, and I cannot say that they are, for I cannot say that they are shown to be in default on this contract.

The United States may waive its terms, I cannot.