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STUART V. UNITED STATES, 85 U. S. 84 (1873)

U.S. Supreme Court

Stuart v. United States, 85 U.S. 18 Wall. 84 84 (1873)

Stuart v. United States

85 U.S. 85 U.S. (18 Wall.) 84


1. A contractor with the government to transport from port to port, remote from any seat of war, stores and supplies not forming any portion of the stores or supplies of an advancing or retreating army is not a person "in the military service of the United States" within the second section of the Act of March 3, 1849, "to provide for the payment of horses and other property lost" in that service.

2. A petition which represents that a party transporting &c., was "attacked by a band of hostile Indians," who, without any fault of the party transporting or his agents, captured certain oxen, part of the property in transit, which had never been recovered, is not sufficiently full and specific to answer the requirement of the said section, which provides compensation for "damage sustained by the capture or destruction by an enemy."

An Act of March 3, 1849, [Footnote 1] entitled "An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States," makes provision in its first section for payment for horses killed

Page 85 U. S. 85

or wounded in battle, or which shall have been injured or destroyed by dangers of the seas on a United States transport vessel, or which shall have been abandoned for want of forage by order of a superior officer, with certain provisions respecting deductions from future pay, which apply to enlisted men. The payment is limited by the words of this section to "officers, volunteers, rangers, mounted militiamen, or cavalry engaged in the military service of the United States."

The second section is as follows:

"That any person who has sustained or shall sustain damage by the capture or destruction by an enemy or by the abandonment or destruction by the order of the commanding general, the commanding officer, or quartermaster, of any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the military service of the United States either by impressment or contract, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner;"

"And any person who has sustained, or shall sustain, damage by the death or abandonment and loss of any such horse, mule, or ox, while in the service aforesaid, in consequence of the failure on the part of the United States to furnish the same with sufficient forage, and any person who has lost, or shall lose, or has had, or shall have, destroyed by unavoidable accident, any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the service aforesaid, shall be allowed and paid the value thereof at the time he entered the service:"

"Provided it shall appear that such loss, capture, abandonment, destruction, or death was without any fault or negligence on the part of the owner of the property and while it was actually employed in the service of the United States."

This statute being in force, Stuart entered into a contract with the United States.

By the first article thereof, it was agreed that he

"should receive such military stores and supplies as may be offered or turned over to him for transportation, and to transport the same with all possible dispatch,"

between the months of

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April and September from Fort Riley and Leavenworth and the Town of Kansas to New Mexico or Colorado; receiving for such transportation $1.97 per hundred pounds.

By the second article, that he should transport "any number of pounds of military stores and supplies from and between one hundred thousand pounds and ten millions of pounds in the aggregate."

By the tenth article, that he should be furnished with a

"suitable escort for the protection of the supplies, should he be required to transport in any one train a less quantity than one hundred and twenty-five thousand pounds, but whenever required to transport one hundred and twenty-five thousand pounds or more, then no escort shall be furnished."

Other articles, as the fourth, fifth, sixth, eighth, eleventh, twelfth, thirteenth, and sixteenth, described the duty of the contractor as that of transporting and delivering.

Stuart, while executing his contract, having, as he alleged, been attacked by a "band of hostile Indians," and having so lost fifty-six oxen, filed a petition in the Court of Claims, making claim under the second section, above quoted, of the Act of 1849, for indemnity by the United States. The petitioner, setting forth the particulars of his case in his petition, alleged:

"That in the month of July, 1864, while he was proceeding, in execution of his contract, with a train of wagons from Fort Leavenworth, Kansas, to Fort Union, New Mexico Territory, the said train was, on the 12th day of July, 1864, in the vicinity of Cow Creek, Kansas, attacked by a bond of hostile Indians, and without any fault or neglect on the part of the petitioner or of his agents, fifty-six head of oxen, employed in moving the said train, were captured by the said band of hostile Indians, and no part thereof has been recovered."

To the claim thus set forth the United States demurred, and the Court of Claims having sustained the demurrer and decreed against the petitioner, he brought the case here.

Page 85 U. S. 87

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