J. W. HANCOX’S CASE. J. W. Hancox v. The United States.
On the Proofs.
A charter-party provides a fixed rate of compensation, hut allows the Government to discharge the vessel at any time. The Quartermaster-General orders her rate to he reduced or that she he discharged. The order is to talce effect sixty days after date of the charter-party. The ownei• assents to it, hut intimates that he will have a remeasurement of the vessel, and will then claim increased compensation. This he does. The Quartermaster Department alloivs an increase, though not so much as the owner seelcs, and re-opens the accounts and carries the amended rate hade to the point of sixty days after the date of the charter-party. The owner accepts and receipts in full, hut brings smt for the balance of the charter-rate, and offers evidence of usage in the Departments to do away with the effect of the receipt.
Where the Government possesses the right by the terms of a charter-party to discharge a vessel at any time, notice by the Quartermaster-General *408that the rate must be reduced or the vessel he discharged, followed hy the owner’s leaving the vessel in service, accepting the reduced rate, and procuring a re-adjustment of it "beneficial to himself, concludes him from seeking the contract rate, irrespective of his giving or not giving a receipt in full.
The Reporters’ statement of the ease:
The court found the following facts:
I. 'On the 21st April, 1864, the claimant and the defendants entered into the agreement or charter-party for the steamer Hero, annexed to and forming part of the petition, and the vessel entered the service of the Quartermaster Department, and continued in service thereunder until the 20th August, 1865.
II. On.the 8th June, 1864, the Quartermaster-General ordered that the charter rate of the Hero be reduced to $207.90 per day, to take effect sixty-days from the date of her charter, and that unless she was continued in the service at such reduced rate she would be discharged therefrom. Notice of this order was duly communicated to the owner, and in reply, on the 23d June, 1864, he notified the Quartermaster Department that he accepted "the reduced rate, but that he intended to have the vessel remeasured, and expected, when her actual measurement of tonnage should be shown to the Department to be greater than her then enrollment, that the Government would, in future settlements, make up the excess. Subsequently, to wit, on the 18th July, 1864, the Quartermaster Department paid the owner for the months of April and May, 1864, at the charter rate, and again on the 10th August, 1864, for the month of June, at the charter-rate, and again on the 6th September, 1864, for the month of July, at the charter rate, and again on the 30th December, 1864, for the month of August, at the charter-rate; for all of which payments the claimant receipted as “ in full of the above account.’ But on the 5th January, 1865, the Quartermaster Department paid the owner for the months of September, October, and November at the rate of $207.90, and also deducted from such reduced payment $42.10 per day from the 20th June to the 31st August. The effect and intent of such reduction was to reduce the charter rate of the vessel to $207.90 per day after the expiration of the first sixty days of service under her charter. The owner received the balance after such *409deductions bad been made, and receipted for the same as “ in full of the above account,” but he shortly thereafter requested the Quartermaster Department to re-examine the case with reference to the size or tonnage of his vessel ; and on the 2d March, 1865, he re-iterated such request, and if it should’ not be complied with and a rate in proportion to the Hero’s capacity should be refused^ that he might have his vessel discharged. In compliance with such request the Quartermaster Department increased the allowance of the vessel’s tonnage, and allowed to the owner $221.45 per day, and the Department also opened and re-adjusted the previous accounts of the vessel, so that the increase to $221.46 per day should take effect from sixty days after the date of her charter; and on the 15th May, 1865, paid the same to the owner upon an adjusted account stated to that effect, upon which the owner receipted “ in full of the above account,” and the Department also paid the owner at the same rate of $221.46 per day for all of the remaining time that the vessel ‘continued in the Government service, and the owner receipted in full for each of such payments.
. Mr. Thomas J. Durant for the claimant.
Mr. Alexander Johnston (with whom was the Assistant Attorney - General) for the defendants.
Nott, J.,
delivered the opinion of the court:
In Clyde’s Case, (5 C. Cls. R., p. 134,) this court held that “ where a charter-party, made by a quartermaster under proper authority, fixes the compensation for a vessel in the military service, the Quartermaster-General has no arbitrary power to reduce it either for the period already past when the reduction is ordered, or for any future period during which the vessel is compelled to remain in the service against the request of her owner. But'where the owner allows'the vessel to remain in the service after her charter has been disapproved and a reduction of compensation ordered he can recover only at the reduced rate.” The decision went upon the ground that when the Government possessed the right by the terms of the charter-party to discharge the vessel at any moment, the disapproval of the charter by the Quartermaster-General, and his order that she be discharged unless the owner would assent to a reduced rate, *410so fax annulled the contract that the vessel ceased to be in the service under the charter, and remained in it under the new terms imposed by the Quartermaster-General. The Supreme Court in the same case went much farther than this, and held that the mere fact of the Quartermaster-General’s order made the case one of dispute, and that the acceptance of the reduced rate accompanied by the giving of a receipt in full, concluded the owner from seeking more.
In the case now before us the owner offers evidence to do away with the effect which the Supreme Court has ascribed to a receipt in full given amid such circumstances. We are, however, of the opinion that the facts of the case are substantially like those in Clyde's, and that though the receipt be out of it, the fact still remains that the owner allowed his vessel to continue in the service after her rate of compensation had been reduced by the Quartermaster General. It is indeed a weaker case than Clyde's, for here the Quartermaster Department re-opened and resettled the account, allowing an increased compensation retroactively, which the claimant accepted, and for which he receipted in full. The case, therefore, if taken out of the decision of the Supreme Court, is still ruled by the decision of this court in both Clyde's and Sweeney's Cases.
The judgment of the court is that the petition be dismissed.