1878 (20 Stat., 151), above quoted, and does not authorize that Department to reimburse officers for hire of rooms or to hire additional rooms for the use of officers serving with troops at military posts where the number of assignable rooms belonging to the United States is in excess of the number authorized by law. Payments made in contravention of this act will be 'disallowed.

Cases involving precisely the same principle have repeatedly been so decided by the Second Comptrollers. See cases of Surg. J. R. Gibson, of April 12, 1890; Capt. Wm. P. Vose (No. 78428), of February 7, 1885; Maj. E. B. Williston (No. 84782), of April 29, 1886; Asst. Surg. T. B. Davis, of June 4, 1891; Captain Tolman, Lieutenants Foster and Edmunds, and others, settled by the Third Auditor and Second Comptroller. The papers are herewith returned.

Respectfully, yours,

The QUARTERMASTER-GENERAL,

EDW. A. BOWERS,

Acting Comptroller.

United States Army.

APPLICATION FOR REHEARING IN RECLAIM OF ELIZA A. ELLIS FOR RENT.

Where an oral contract for rent of buildings in 1864 and 1865 was made by a quartermaster, who gave the owner vouchers certifying that the services had been rendered, the same being duly reported to the Quartermaster-General, the owner is entitled to payment, although no formal approval of the contract by the Quartermaster-General, as required by regulations, is shown; an implied approval by him arising from the fact that it was reported to him and was not disapproved, both parties having acted upon the basis of the contract.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 5, 1895.

This claim arises from the use and occupation of four frame buildings belonging to the claimant, situated at Newbern, N. C., by the Quartermaster's Department, U. S. A., from April 1, 1864, to May 15, 1865.

The claim is based upon an alleged verbal contract between the owner and an officer of the Quartermaster's Department, and such contract is evidenced by the three vouchers issued

in duplicate to the claimant, one by Capt. A. S. Kimbail, assistant quartermaster, for $270, the other two by Lieut. Luther Bradley, acting assistant quartermaster, for $90 and $45. The vouchers are in the usual form, and contain certificates to the effect that the accounts are correct and just; that the services were rendered as stated, and that they were necessary for the public service.

On April 20, 1872, the Quartermaster-General transmitted the first of these vouchers to the Third Auditor for the action of the accounting officers, and stated that-

"The service has been reported to this office as required by regulation. Claimant was advised August 20, 1866, that, under existing orders, claims of this character arising in insurrectionary States during the rebellion could not be paid."

On June 17, 1872, referring a letter of the claimant inclosing the two latter vouchers, the Quartermaster General made the following indorsement:

"Respectfully referred to the Third Auditor of the Treasury for the action of the accounting officers.

"The two inclosed certified accounts in favor of Mrs. E. A. Ellis, for rent in 1865, stated at $90 and $45, have been reported to this office by the certifying officers as required by regulations.

This office has no knowledge of the merits of the account stated at $270 other than its face, the service not having been reported here.

"By order of the Quartermaster-General."

These two statements, made within two months of each other in 1872, and by the same officer, are in direct conflict; in the first it being stated that the service covered by the $270 voucher was reported to the Quartermaster-General's Office as required by regulation, and in the later indorsement this statement is made, the service not having been reported here."

There is no formal approval to be found in the papers by the Quartermaster-General of the contract made in North Carolina by the quartermaster, as is required by the regula tions. (Filor v. United States, 9 Wall., 48.) This, however, is not strange, nor is the discrepancy referred to in the two letters of 1872 singular when one considers the necessary volume of business and confusion incident to the conduct of the Quartermaster's Department in so great a conflict as our civil war.

From the letter of April 20 it appears that the Quartermaster-General reversed his former action of August 20, 1866,

holding that this claim could not be paid because it arose in an insurrectionary State Why this voluntary action on his part was taken does not appear, but as Attorney General Evarts in 1868, in the Rollings Case (12 Opin. A. G., 439), had so construed the acts of 1864 (13 Stat., 381), and of 1867 (14 Stat., 397), it may be presumed that this was the reason for his action.

In September, 1872, the Third Auditor acted on the case and disallowed the claim upon the ground that it was barred from settlement under the act of February 21, 1867, as having originated in an insurrectionary State. After this decision the claim was filed away as a disallowed claim, and was not reported to the Second Comptroller for his action as required by law because of an irregular and extraordinary practice pre vailing in the Third Auditor's office for a brief period. As the Auditor passed upon the merits of the claim and took final action thereon and failed to transmit the same to the Second Comptroller for revision as required by law, the claim may properly be said to have been in the constructive possession of the Comptroller on October 1, 1894, and accordingly within the jurisdiction of this office as the successor to the Second Comptroller. This being the case, no order for a rehearing is necessary, and, the Comptroller never having passed upon the matter, the claim will now be considered on its merits.

The objection raised to the payment of the claim by the Quartermaster-General in 1866, and by the Auditor in 1872, was that it was barred by the provisions of the acts of July 4, 1864, and February 21, 1867, above referred to. This question is decided by the opinion of Attorney-General Evarts in the Rollings Case, which, in brief, is that claims founded on contracts are not subject to the provisions of those acts. The syllabus is as follows:

"1. The act of July 4, 1864 (13 Stat., 381), so far as it relates to the jurisdiction of the Court of Claims, is a restraining statute; but, in so far as it relates to the adjustment of the claims for quartermaster and commissary stores therein mentioned, it is an enabling law.

"2. This act does not comprehend accounts founded upon express contracts for the purchase of supplies for the Army, made by the proper agents of the Government, within the scope of the Army appropriation acts.

"3. A claim arising upon such a contract can not properly be said to have originated in an insurrectionary State, although the contract may have been performed in such a State.

"4. The declaratory act of February 21, 1867 (14 Stat., 397), so far as it relates to the settlement of claims for supplies furnished to the Army, embraces only the class of claims covered by the act of 1864, and does not extend to accounts based upon contracts made by the duly authorized agents of the Government."

We may, therefore, dismiss the objection upon which this claim was originally disallowed as having no force.

The next and main question in this case is, Was there in fact a contract made between the owner of the buildings and the Quartermaster's Department, or is this merely a claim for reimbursement for an appropriation of the property for mili tary purposes?

It is a principle too well established to admit of controversy that the accounting officers of the Government have no jurisdiction to entertain claims for unliquidated damages, but in cases of debt arising from a contract of leasing the reverse is true. If, therefore, the claim under consideration comes within this jurisdiction, it must be because it is based upon a contract, express or implied. The evidence of a contract is to be found in the vouchers issued by the proper accounting offi cers of the Quartermaster's Department. The vouchers are in the usual form, such as would have been used had immediate payment been intended by the disbursing officer of the Government, and such as would have entitled the disbursing offi cer to a credit had they appeared as paid in his accounts. Vouchers of this character have been treated as based upon contract, and therefore as giving the accounting officers jurisdiction.

Upon this question Comptroller Brodhead, March 7, 1873, said:

"The decision of this office under which this claim is pre sented for payment was, in effect, that when regular service vouchers, such as would have been properly paid by a disbursing officer, are presented to the Treasury they are not barred by the acts of July 4, 1864, and February 21, 1867, but may be paid through the accounting officers." (Indorsement on commissary claim No. 26085. See also Second Comptroller's Letter Book No. 34, pp. 151, 200, 232.)

The act of March 2, 1861 (12 Stat., 220), now section 3744, Revised Statutes, requires all executory contracts to be made in writing.

The courts have held that such contracts not made in writing are void. (Lindley v. United States, 4 C. Cls. R., 359.) On the

other hand, I have been unable to find any authoritative decision going to the extent of saying an executed contract is void unless made in writing, and no payment could be made thereon. In case of Burchiel v. United States (4 C. Cls. R., 549) the court said:

"The defendants rely upon the fact that there was not a written contract in the case authorizing a recovery. We distinguish between the right of recovery upon executory contracts where damages are sought for nonperformance by the defendant and those that arise from an implied obligation to pay for articles actually purchased and used and applied by the defendant." The distinction here made by the court has always been recognized by the Second Comptroller, and no question has been raised as to the right and duty of the accounting officers to admit claims founded upon verbal executed contracts.

In the claim of the Christian Church, decided by the Second Comptroller August 19, 1886, vol. 54, page 118, 131, the Comptroller states his conclusions in the following propositions:

"1. The accounting officers have no jurisdiction to adjust claims for the use and occupation of real property in these States during the war period, when the occupation of the territory within these States by the armed forces of the United States was a military necessity, unless there is satisfactory evidence of an agreement on the part of some officer or agent of the Government, having authority to bind it in this respect, to pay for the use of the property.

"2. If, in the first instance, a promise should be made by an officer or agent not having sufficient authority to bind the Government, and the possession of the property is surrendered to the military authorities upon the faith of the promise, and the transaction is subsequently reported or made known to an officer possessed of authority to make a valid agreement of that kind, and is approved or ratified by him, it will be deemed the act of the latter.

"3. It is not necessary that all of the terms of the agreement should be definitely expressed. If the minds of the parties meet with reference to the contract of hire, but the amount of compensation to be paid is not fixed or is left to be adjusted at some future time when the full extent and the precise character of the use have become known, the accounting officers may fix and adjust the value of the use."

In these conclusions I concur.

Assuming that the quartermaster intended to enter into a contract with the owner for the rent of these buildings, is a formal approval of the contract by the Quartermaster-General necessary to its completion?

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