Opinion of the court.

roborates the view taken by us in the relations between them and the other side touching all the consignments.

Mr. Justice DAVIS delivered the opinion of the court. The correctness of the charge of the court to the jury, and the refusal of the court to charge as requested, present the only questions in this case which we are required to consider.

The plaintiffs in error, who were the defendants below, insist that they are injured by the action of the court in not allowing their defence to go to the jury. Their position is, that the evidence in the case proved their defence, or, at least, tended to prove it; and if it did, it was the province of the jury, and not of the court, to say what effect should be given to it.

It is not denied, that in the dealings between McCabe & Co. and Drakely & Fenton, there existed the relation of principal and factor, and that if Gregg & Hugnes had not intervened, Drakely & Fenton would have had a lien on the surplus, after all the consignments were closed up, for their general balance. The question then arises, whether this relation was changed by the intervention of Gregg & Hughes? The defendants in error contend that it was, so far as the shipment of hams was concerned, because they were received as the property of Gregg & Hughes, after notice that it was their property; on the contrary, the plaintiffs in error insist that the relation of principal and factor was unchanged as to all the shipments, for the reason that Gregg & Hughes, after the receipt of the hams by Drakely & Fenton, put themselves in the place of McCabe & Co. in regard to the whole transaction, adopted what had been done in reference to each shipment, and claimed to be the owners of all the property, and did direct and control the disposition of it. The case was tried substantially on this issue.

There is no dispute that the warehouse receipts gave to Gregg & Hughes the legal title to all the property described in them; and if so, it necessarily follows that McCabe & Co. could not lawfully contract with Drakely & Fenton to receive

Opinion of the court.

and sell this property without the consent of Gregg & Hughes. There is no doubt if this consent had been obtained in advance of the making of the contract, that Gregg & Hughes would have been bound by it, and could not free themselves from any of the obligations which rested on McCabe & Co. to discharge.

But as this consent was not obtained before the movement of the property commenced, the important inquiry is, whether the consignment of hams is separable from the preceding consignments, and whether the loss on the pork and shoulders must be borne by Drakely & Fenton, or by Gregg & Hughes. This must depend on the terms on which the hams were received, and these terms need not be embodied in the form of a written agreement, but can be gathered from the correspondence and conduct of the parties. If the case stood alone, on the naked fact that notice of title was given while the hams were in transitu, there would be no difficulty. But it is claimed that Gregg & Hughes adopted McCabe & Co.'s contract throughout; substituted themselves in their place as to all the consignments-pork, shoulders, and hams-and continued in their own name, the relation of principal and factor, before existing between McCabe & Co. and Drakely & Fenton. If this were so, the case would be equally free from difficulty; for, if Gregg & Hughes were not bound by a contract which McCabe & Co. had entered into with reference to their property, they could elect, after being informed of the nature of the contract, to reject it or adopt it. If, with a full knowledge of the facts concerning it, they ratify it, they thereby make themselves a party to it, as much so as if the original agreement had been made with them. And if they ratified it, no new or additional consideration was required to support the ratification, because in adopting the contract, they accepted with it the original consideration on which it was founded, as a sufficient consideration for their adoption of it.

With this general statement of the principles of law applicable to the controversy, we are met with the inquiry, whether there is any evidence in the case to support the

Opinion of the court.

theory of the plaintiffs in error, that Gregg & Hughes intended to, and did, adopt the contract of McCabe & Co. with them. It is not enough that Drakely & Fenton should have so understood the agreement, but the proof must also show that Gregg & Hughes had a similar understanding of it, and manifested their intention to be bound by it.

The evidence in the case, to which no exception was taken, consists of a voluminous commercial correspondence, and some parol proof, explanatory of the conduct of the parties. The correspondence covers many pages of the record, and there is a marked difference in its tone and bearing after it had progressed for several months. It would be difficult to discuss the evidence in reference to the theory advanced by the plaintiffs in error, without indicating, in a greater or less degree, our views as to the effect that should be given to it. If the case is to be tried again, it is not proper to do this, for in that event it is the province of the learned court and the jury to determine the effect of the evidence.

The only question with which we have to deal at the present time is, whether the evidence in this record tended to prove the position assumed by the plaintiffs in error; for if it did, the learned court should either have submitted the evidence on this point to the consideration of the jury, or if, in the opinion of the court, there were no material extraneous facts bearing on this question, and the contract relied on must be determined by the commercial correspondence alone, then to have interpreted this correspondence and informed the jury whether or not it proved the contract to be of the character contended for by the plaintiffs in error.*

We have examined the record in this case carefully, and are of the opinion that there was evidence at the trial which tended to prove that, after the hams were received by Drakely & Fenton, Gregg & Hughes, with full knowledge of the agreement between McCabe & Co. and Drakely & Fenton, and its partial performance, ratified and adopted it.

Statement of the case.

Whether the evidence actually proves this ratification and adoption, we express no opinion. It is enough, as we have seen, for the purposes of this writ of error, that it tended to prove it.

As the learned court below submitted the case to the jury, on the single issue of legal title to the hams in Gregg & Hughes, and notice of that title to Drakely & Fenton, it follows that the judgment of the Circuit Court should be reversed, and a

VENIRE DE NOVO AWARDED.

GIBBONS ". UNITED STATES.

1. In the Court of Claims the government is liable for refusing to receive and pay for what it has agreed to purchase.

2. When an individual who has been absolved from such a contract, by the refusal of the proper officer to receive the articles when tendered, afterwards consents to deliver them under a threat of the officer that he will withhold money justly due to the plaintiff, he can only recover the contract price, whatever may have been the current market value of the articles.

3. The government is not liable on an implied assumpsit, for the torts of its officer committed while in its service, and apparently for its benefit.

4. To admit such liability, would involve the government in all its operations, in embarrassments, losses, and difficulties, subversive of the public interest.

5. When the injury to individuals in such cases merits redress by the government, the remedy is with Congress. The statute does not confer jurisdiction on the Court of Claims.

APPEAL from the Court of Claims.

The case as found by that court was thus:

Gibbons entered into a contract with the United States for the delivery of two hundred thousand bushels of oats within thirty days from the date of the contract.

He delivered a portion of the oats, and was ready and offered to deliver the residue within the thirty days, but was prevented by the officers of the United States from so doing; they would not receive it, because they had not convenient storehouses for it.

Statement of the case.

Subsequently to this refusal, the quartermaster having charge of the contract on the part of the United States, sent an "orderly" to Gibbons, requesting his immediate presence with the messenger at the quartermaster's office. This was understood by Gibbons to be an arrest. About the same time, notice was given to him, that he must deliver the residue of the oats specified in the contract under penalty of a purchase in open market; the difference of cost to be charged to him. The quartermaster at this time held a large sum of. money in his hands, the price of grain before that time delivered. Gibbons remonstrated, contending that the contract was at an end. Influenced, however, by the above-mentioned assumption of power, and by the threats used, or by some reason, he did deliver the quantity of oats sufficient to make iu all the amount specified in the contract.

By this time oats had advanced in price, and the price which Gibbons was compelled to pay in the market to get them, exceeded the amount paid to him by the government, as he alleged, 84 and 12 cents per bushel.

Gibbons was compelled to pay $333 demurrage on certain vessels which were laden with a portion of the oats, and which were detained by the government officers in receiving the cargoes.

On final settlement with the quartermaster, he was charged for 8000 bushels of oats purchased by the quartermaster in open market, after the expiration of the contract, at an advanced cost of 12 cents per bushel. This money was detained from him.

On this case, the Court of Claims, upon the petition of Gibbons setting forth a claim for the difference, 81 and 12 cents per bushel, in the price of oats, delivered after the expiration of his contract, for demurrage, "for damages sustained by failure of the government to receive oats under contract at the time of delivery, $400," and for the money detained, but not alleging anything about duress, - thus announced its conclusions in law:

"The obligation on the part of the government under the contract to receive the oats when they were offered, was as