Louisiana. An action was instituted on a Treasury transcript for
the recovery of the balance stated to be due to the United States
by the defendant as Assistant Deputy Quartermaster General. The
defendant pleaded as setoff a claim on the United States which had
been assigned to him by the owners of a schooner chartered to the
united States on a voyage from New Orleans to Appalachicola with
troops, &c. This claim was presented to the proper officer of
the government and refused.
Held: the defendant was not
entitled to plead this as a setoff of the claim of the United
States.
The rule as to setoff, in questions arising exclusively under
the laws of the United States, cannot be influenced by any local
law or usage. The rule must be uniform in the different states, for
it constituted the law of the courts of the United States in a
matter which related to the federal government.
When a defendant has, in his own right, an equitable claim
against the government for services rendered or otherwise and has
presented it to the proper accounting officer of the government,
who has refused to allow it, he may set up the claim as a credit in
a suit brought against him for any balance of money claimed to be
due by the government, and when the vouchers are not in the power
of the defendant before the trial or, from the peculiar
circumstances of the case, a presentation of the claim to the
Treasury could not be required, the offset may be submitted to the
action of the jury. But a claim for unliquidated damages cannot be
pleaded by way of setoff in an action between individuals, and the
same rule governs in an action brought by the government.
Where the parties in their contract fix on a certain mode by
which the amount to be paid shall be ascertained, the party that
seeks an enforcement of the agreement must show that he has done
everything on his part which could be done to carry it into effect.
He cannot compel the payment of the amount claimed unless he shall
procure the kind of evidence required by the contract or show that,
by time or accident, he is unable to do so.
The United States on 10 January, 1822, instituted a suit by
petition in the District Court of the United States in Louisiana
against the defendant, William L. Robeson, late Assistant Deputy
Quartermaster General in the Army of the United States, claiming to
recover the sum of $2,663.61 for the balance of his account as such
officer as settled and examined, adjusted, admitted, and certified
at said department.
Page 34 U. S. 320
To this petition and the citation issued thereon the defendant
answered and pleaded that the United States was indebted to him in
the sum of $3,000 for work, labor, attendance, &c., bestowed by
him in and about the business of the United States and for the
United States at its request and for materials and necessary things
by him before the time of action bought, found, and employed in and
about the said work and labor, for goods sold and delivered, and
for money laid out and expended for the United States at its
request, for money due and owing to him and interest thereon, which
sums of money exceed the sum claimed by the United States from him,
and out of which sum so claimed he is willing and offers to set off
and allow to the United States the full amount of their claim.
On the same day this answer and plea were filed, 21 January,
1822, William L. Robeson filed an affidavit sworn to and subscribed
in open court stating that he was equitably entitled to credits
which had been submitted, previously to the commencement of the
suit, to the accounting officers of the Treasury and rejected; that
the credits are as follows,
viz. the sum of $30 for
transportation of officers to Baton Rouge and back to New Orleans,
and an amount of $39 for transportation of officers from Pass
Christianne to New Orleans. That a claim of $364.50 for
transportation of contractors' stores taken from the wreck of the
schooner
Italian and delivered at Appalachicola in April,
1818; a claim for demurrage at Mobile Point, of the schooner
Experiment in a voyage from New Orleans to Appalachicola
in 1818, to-wit, $330, were presented to the Quartermaster
General's Department and returned.
Issue being joined, and the cause having been brought to trial
in December, 1829, a verdict was found for the plaintiff for a less
amount than the balance of the account stated at the Treasury of
the United States, the verdict being for $1,656.11, instead of
$2,663.61. This difference resulted from allowances made by the
jury under the ruling and direction of the court upon various
points which arose at the trial, in respect to which several bills
of exception were filed by the counsel of the United States.
The first bill of exceptions stated that the defendant gave
Page 34 U. S. 321
in evidence certain depositions to prove the amount of loss and
damage claimed by Forsyth and Walton and Breedlove, owners of a
certain schooner called the
Experiment to be due to them
by the United States, together with an assignment by the said
owners to the defendant, for the consideration of $500, of the
whole of the amount so claimed by them under a charter of the
Experiment to the defendant, as assistant deputy
quartermaster general, to proceed from New Orleans to Appalachicola
with stores, their claim being for the transportation by the
Experiment of provisions and stores belonging to the
United States taken from the wreck of a schooner and carried to
Appalachicola, amounting to $364.50, for demurrage of the schooner
$330, and for the loss of a cable and anchor $226.20, together
$920.70.
The plaintiffs prayed the court to instruct the jury that the
defendant could not set off against the demand of the United States
a greater sum than that expressed as the consideration of the
transfer,
viz., $500. The demurrage claimed was for
detention of the schooner at Mobile Point, and he proved by the
charter party the right of the charterers to the same and his right
under the assignment thereof and offered evidence of the detention
of the vessel at Mobile Point.
The plaintiffs prayed the court to instruct the jury that
evidence of a detention at Mobile Point could not sustain a claim
for damage under the charter party and that under the pleading and
Treasury report, no offset could be sustained for a detention at
Mobile Point, but the court refused so to instruct, and to these
refusals the plaintiffs excepted.
The third bill of exceptions relates to the assignment from the
owners of the schooner
Experiment, mentioned in the first
bill. The plaintiffs objected to its admission in evidence because
it had been received by the defendant after he had ceased to be in
the employ of the United States, and because not offered as proof
of payment of a debt due from the United States, but as evidence of
the purchase of a claim against the United States, which could not
be set off in this action. The court overruled these objections,
and the plaintiffs excepted.
The other bills of exception are not inserted, as they were not
noticed in the opinion of the Court.
Page 34 U. S. 323
MR. JUSTICE McLEAN delivered the opinion of the Court.
The plaintiffs brought their action against the defendant in the
District Court of Louisiana to recover a balance of public money
which remained in his hands as late assistant deputy quartermaster
general. The pleadings being made up, the cause was submitted to a
jury, which rendered a verdict for a
Page 34 U. S. 324
sum less by $1,007 than the reported balance at the Treasury
Department.
This difference was produced by certain decisions of the court,
on the trial, and to which exceptions were taken. And these
exceptions are now brought before this Court by a writ of
error.
In the first bill of exceptions, it appears, the defendant gave
in evidence certain depositions to prove the amount of loss and
damage sustained by the owners of the schooner
Experiment
on a voyage from New Orleans to Appalachicola with troops and
stores for the government of the United States, and also a certain
instrument by which the owners of the said schooner
Experiment transferred to the defendant their claims for
compensation upon the United States, &c.
And in the third bill of exceptions, the district attorney
prayed the court to instruct the jury that the above claim could
not be pleaded by the defendant as a setoff in this action, which
prayer was refused.
The first question which arises on these exceptions is whether a
claim which has been transferred to the defendant, forms a proper
subject of setoff, under the acts of Congress, to a demand of the
government. If this question shall be decided in the negative, it
will not be necessary to inquire whether the claim in itself
constitutes a proper item of setoff. It seems to have been
presented to the proper accounting officer of the government as a
credit, and that he refused to allow it.
This is a question which arises exclusively under the acts of
Congress, and no local law or usage can have any influence upon it.
The rule as to setoff in such cases must be uniform in the
different states, for it constitutes the law of the courts of the
United States in a matter which relates to the federal
government.
Where a defendant has in his own right an equitable claim
against the government for services rendered or otherwise, and has
presented it to the proper accounting officer of the government,
who has refused to allow it, he may set up the claim as a credit on
a writ brought against him for any balance of money claimed to be
due by the government. And
Page 34 U. S. 325
where the vouchers were not in the power of the defendant before
the trial or, from the peculiar circumstances of the case, a
presentation of the claim to the Treasury could not be required,
the offset may be submitted for the action of the jury. But a claim
for unliquidated damages cannot be pleaded by way of a setoff in an
action between individuals, and the same rule governs in an action
brought by the government.
There is no law of Congress which authorizes the assignment of
claims on the United States, and it is presumed if such assignment
is sanctioned by the Treasury Department, it is only viewed as an
authority to receive the money, and not as vesting in the assignee
a legal right. But whatever may be the usage of the Treasury
Department on this subject, it is clear that such an assignment, as
between individuals, on common law principles, cannot be regarded
as transferring to the assignee a right to bring an action at law
on the account in his own name, or to plead it by way of setoff to
an action brought against him, either by an individual or the
government.
The claim set up by the defendant as a setoff in this case may
have been fairly obtained, and indeed such is the presumption in
the absence of all evidence going to impeach the assignment or the
consideration on which it was made; but the assignee, not holding
the legal right, cannot assert the claim as a setoff in this
action.
If any individual who holds in his hands public money could
defend himself against an action brought by the government by
purchasing claims against it, he might speculate on such claims to
almost any extent. This practice would be as impolitic for the
government as it would be injurious to individuals.
The practice of the state courts, which has been adopted under
the Act of Congress of 1824 for the courts of the United States in
Louisiana, cannot affect the point under consideration. For if it
were made to appear that under the laws of that state an open
account is assignable, so as to enable the assignee to bring an
action in his own name or to plead the account by way of setoff, it
could not be done in the present case.
The principles involved in this case are connected with the
fiscal action of the government, and they cannot depend either upon
the local practice or law of any state.
Page 34 U. S. 326
The second bill of exceptions states that
"On the trial of this cause, a certain charter party or
instrument marked B, &c., and by which the steamboat
Tennessee was chartered for the conveyance of a detachment
of troops under the command of Colonel Arbuckle, was offered in
evidence; that by said charter party it was agreed that if a larger
quantity of baggage and stores should be carried in said boat than
was stipulated in said charter party, that freight should be paid
on the same on the production of the certificate of the said
commanding officer, Colonel Arbuckle. The defendant offered in
evidence the deposition of witnesses to prove the carrying, by the
said steamboat
Tennessee, of a greater quantity of baggage
and stores than that stipulated in the charter party, to the
introduction of which testimony the district attorney objected
because, under the terms of the said charter party, no other
evidence than the certificate of the said Colonel Arbuckle could be
received to establish the claim to surplus freight, but the court
overruled the objection and admitted the evidence."
In the charter party it is agreed that Breedlove, Bradford, and
Robeson should transport, unavoidable accidents excepted, a part of
the seventh regiment of infantry, under the command of Colonel M.
Arbuckle, and their baggage, together with a quantity of stores,
not to exceed the bulk of eight hundred barrels, to the port of
Arkansas, &c.,
"for the true and faithful performance of the above,
certificates of which to be given by colonel M. Arbuckle, or
officer commanding, the party of the second part binds himself, as
agent of the United States to pay,"
&c.
And on the charter party is endorsed
"It is understood that, for all stores, &c., above the
quantity specified, the same rate shall be paid upon producing
duplicate specified certificates of the commanding officer."
The following certificate of Colonel Arbuckle was endorsed on
the charter party.
"I certify that captain A. B. Bradford did, in compliance with
the foregoing agreement, transport from New Orleans to this place a
part of the seventh regiment of infantry, amounting to one hundred
and ninety-nine, with a suitable number of officers and their
baggage, and that he did also transport thirty men of the seventh
regiment, not belonging to the Arkansas command, from New Orleans
to the
Page 34 U. S. 327
mouth of Red river. The boat was detained at Baton Rouge about
nine hours, and at the mouth of Red river about twenty hours.
Captain Bradford furnished, for the use of the troops, six cords of
wood, for which he is entitled to compensation."
As it appears in the record that payment has been made for the
services covered by the above certificate, the evidence which was
admitted to be given to the jury, it is presumed, must have been to
show the transportation of freight or men, in addition to that
which is certified by Colonel Arbuckle. And the question as to the
legality of this evidence is raised.
It appears that the agent of the government expressly stipulated
to pay the money under the contract on the certificate of Colonel
Arbuckle or the officer commanding the party. And for any
additional services to those provided for in the contract, payment
was to be made at the same rate "upon producing duplicate specified
certificates of the commanding officer."
It does not appear that any excuse was offered why these
certificates were not procured, and the question is whether the
claimant, at his option, can establish his claim by other evidence.
The contract is a law between the parties in this respect, as they
expressly agree that the amount of the service shall be established
by the certificates of the commanding officer. Can it be
established in any other manner without showing the
impracticability of obtaining the certificates? Is not this part of
the contract as obligatory as any other part of it, and if so, is
not the obtaining of the certificates a condition precedent to the
payment of the money?
Where the parties in their contract fix on a certain mode by
which the amount to be paid shall be ascertained, as in the present
case, the party that seeks an enforcement of the agreement must
show that he has done everything on his part which could be done to
carry it into effect. He cannot compel the payment of the amount
claimed unless he shall procure the kind of evidence required by
the contract or show that by time or accident he is unable to do
so. And as this was not done by the defendant in the district
court, no evidence to prove the service, other than the
certificates, should have been admitted by the court.
Had the defendant proved that application had been made
Page 34 U. S. 328
to the commanding officer for the proper certificates and that
he refused to give them, it would have been proper to receive other
evidence to establish the claim.
Other exceptions were taken to the rulings of the court in the
course of the trial, but as they relate to the assigned claim set
up by the defendant, it cannot be necessary to consider them.
On the grounds that the district court permitted the assigned
account to be given in evidence by the defendant as a setoff, and
allowed, under the circumstances stated, other evidence than the
certificates of the commanding officer to prove the transportation
account, the judgment below must be
Reversed and the cause remanded for further
proceedings.
