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teen working days. If she had been dis- coal mentioned in the foregoing findings the charged at not less than 100 tons per day, Honolulu harbor

harbor had eleven docks the time consumed would have been six-wharves, three of which only were used for teen days. It does not appear that the de- the discharge of coal. The docks were fendant was at fault either in the loss of crowded, and several vessels were moored time in arriving at the wharf, nor in the at the reef. By local regulations of the govdischarge of the cargo afterwards. The ernment, a harbor master had general court finds the defendant was able, ready, supervision of all vessels in the harbor, and and willing to receive the cargo as rapidly all vessels were anchored and assigned to as discharged at the wharf. The claimant berths, in the order of their arrival, by the paid to the shipowner $1,053.36 demurrage harbor master. There were no lighters for for these delays.

public use, and defendant had none at the “The second contract: 1. By the arrival port, and it was usual or customary to disof the bark Harvester, with 2,179 tons of charge freight upon the wharves. The decoal, August 28, 1898, at Honolulu, which fendant had no authority over the wharves, was placed at a berth at the wharf by the and was subject to local regulations and harbor master September 16, 1898, and be the order of the harbor master, the same as gan discharging coal on that date, and com- individuals." pleted same October 7, 1898, a period of As a conclusion of law the court decided eighteen working days. It does not appear that appellant was not entitled to recover. that the defendant was at fault in the loss 38 Ct. Cl. 590. of time of said last-mentioned ship in ar- The question in the case is whether the riving at the wharf.

delay at Honolulu in the delivery of the “2. By the arrival of the ship General coal was caused by the United States or by Gordon at Honolulu, August 27, 1898, with appellant; or, in other words, whether it 2,455 tons of coal. While at anchor, Sep- was the duty of the United States to desig. tember 9, 10, and 11, 330 tons were dis- nate and furnish a wharf for the discharge charged into steamship Arizona, a trans of the coal from the ships, or its duty only port of defendant, for its own use, after to receive the coal at the wharf when dewhich the Gordon was placed at a berth at livered there by appellant. the wharf by the harbor master, September The question is one of law. Any fault in 14, at 1 P. M., and then commenced the fur- fact upon the part of the United States is exther discharge of the cargo, completing the cluded by the findings of the court. The same October 4, no delays having occurred cause of delay is expressly found to have at the wharf. It does not appear the de- been due to the conditions in Honolulu har. fendant was at fault in the ship's delay in bor, and that to these conditions the United reaching the wharf. In the case of each States was as subordinate and subject as ship the defendants had notice in writing appellant. The liability of the United of their respective arrivals within twenty- States is asserted, nevertheless, on account four hours thereafter. The wharves at of the custom existing in San Francisco beHonolulu are under the control of a harbor tween shippers and shipowners. master. The practice of such harbor master But the terms of the contracts are ex. was to assign ships to berths at the wharves plicitly opposite to the custom. The cusin the order of their respective arrivals, and tom requires a consignee to designate a this practice was followed by him in respect berth for the discharge of cargo, and is to the ships mentioned. Claimant paid said hence responsible, it is contended, for the shipowners for delays $1,433.12 to the Har- delays to a ship in reaching the berth, vester and $744.48 to the General Gordon. though caused by the conditions existing at All coal delivered was paid for by defendant. the port of discharge. The contracts have

“V. The coal actually delivered under the no such provision, nor do they refer to the second contract was 4,634 tons, completed charter parties entered into between claimOctober 7, 1898. About a month subsequent ant and the ships. The contracts require to this, claimant purchased 366 tons of coal delivery to be “at wharf” (first contract); of the barkentine Omega, then in the Hono-"on wharf as customary(second contract). lulu harbor, and tendered the same to the “As customary" meant the mode of disdefendant upon its contract of June 23, charging freight at Honolulu. Culver, Car1898, but the defendant refused to receive riage by Sea, 696. The custom there was it, whereupon claimant sold the same in to discharge freight upon the wharves. The market, for the best price he could obtain, terms of the contracts, therefore, are reat $3.061 per ton less than $9, the contract inforced by the custom at Honolulu, and price with the defendant, equivalent to the custom at San Francisco cannot pre$1,120.87 in all, and to his loss in that vail against them. amount.

The effect of usage upon the contracts "VI. At the time of the delivery of the l of parties has been decided many times. It may be resorted to in order to make rive at Honolulu on or about the 1st day of definite what is uncertain, clear up what October, 1898. By the 7th of October de. is doubtful, or annex incidents, but not to livery was made of 4,634 tons. About a vary or contradict the terms of a contract. month subsequently appellant purchased 366 Various applications of this principle are tons of coal of a ship then in the harbor, presented in the following cases: Barnard and tendered the coal to the United States v. Kellogg, 10 Wall. 383, 19 L. ed. 987; in fulfilment of the contract to deliver Hearne v. New England Mut. Marine Ins. 5,000 tons. The United States refused to Co. 20 Wall. 488, 22 L. ed. 395; Orient Mut. receive it, and appellant sold it in the open Ins. Co. v. Wright, I Wall. 456, 17 L. ed. market for $3.061 per ton less than $9, the 505; Oelricks v. Ford, 23 How. 49, 16 L. contract price. This was the best price ed. 534; Hostetter v. Park, 137 U. S. 30, 34 which could be obtained, and the loss to apL. ed. 568, 11 Sup. Ct. Rep. 1; First Nat. pellant was $1,120.87. The court of claims Bank v. Burkhardt, 100 U. S. 686, 25 L. ed. held that the appellant was not entitled to 766. We do not think it is necessary to recover.

We think this was error. The make a detailed review of these cases or obligations of parties were reciprocal; one of the cases which appellant has cited in to deliver, the other to receive, about 5,000 which consignees have been charged with tons of coal, and equally reciprocal is the demurrage. To trace and relate the various liability for nonperformance of the obligaconditions upon which consignees have been tions. The only question can be, Is 366 held liable would extend this opinion to too tons less than 5,000 tons, “about 5,000 great length, and discuss matters irrelevant tons ?” We think not. The difference is to the case as we regard it. In all of the too great. We said in Brawley v. United cases cited there was an omission of duty States, 96 U. S. 168, 172, 24 L. ed. 622, 624, on the part of the consignees. In the case that in engagements to furnish goods to a at bar there was no omission of duty, and, certain amount the quantity specified is besides, the United States was not a con material and governs the contract. “The

“ signee of the coal in any proper sense of addition of the qualifying words ‘about,' that word. There was no privity between ‘more or less,' and the like, in such cases, is it and the ships. Its contract was to re-only for the purpose of providing against ceive coal at the wharf, and pay for it on accidental variations arising from slight delivery there, after inspection. Its con- and unimportant excesses or deficiencies in tract was not to receive coal in lighters, or number, measure, or weight.” See also

" to bear any expense in the transportation Cabot v. Winsor, 1 Allen, 546, 550; Salmon to the wharves. It is manifest that coal v. Boykin, 66 Md. 541, 7 Atl. 701; Indianon board ships in a harbor is not in the apolis Cabinet Co. v. Herrman, 7 Ind. App. same situation as coal on a wharf. The 462, 34 N. E. 579; Cross v. Eglin, 2 Barn. wharf, under the contract, was the place of & Ad. 106; Morris v. Levison, L. R. 1 C. P. destination, and the appellant took the Div. 155, 158; Bourne v. Seymour, 16 C. B. chances, as observed by the court of claims, 337, 353; Simpson v. Railroad Co. (Sup.) 38 of obstacles which should intervene to delay N. Y. Supp. 341, 342. the delivery of the coal at the wharf, as The record does not inform us why the they did of other obstacles which might have United States refused the tender, and we intervened to prevent the coal reaching the must assume that it had no other justificaharbor. It was not strictly the coal in the tion than its supposed right under the conships that the United States contracted to tract. take. It was certain quantities of coal, Judgment reversed, and cause remanded and on account of this, in the exercise of with directions to enter judgment for aptheir rights under the second contract, appellant (claimant) in the sum of $1,120.87. pellant bought coal in the open market and tendered it in fulfilment of that contract. Mr. Justice Holmes concurs in the The liability of the United States to accept result. we shall presently consider. We cite the

(196 U. S. 169) fact now as illustrating the meaning of the

THOMAS L. HARTIGAN, Appt., contract. It is manifest, from these views,

. the court of claims was right in holding the

UNITED STATES. United States was not liable for the delay caused to the ships by the conditions which existed in Honolulu harbor.

Army-West Point cadet not an officer. 2. By the terms of the second contract (June 23, 1898) the appellant agreed to A cadet in the United States Military Academy

at West Point is not an officer in the Army, deliver and the United States agreed to

within the meaning of U. S. Rev. Stat. & “receive about 5,000 tons” of coal, delivery 1229, U. S. Comp. Stat. 1901, p. 868, pro to commence with about 2,200 tons, to ar

hibiting dismissals from service in time of


peace, except after trial and conviction by | 1901, p. 868, and could only have been discourt-martial.

missed from the Academy upon trial and

conviction by court-martial, as provided in [No. 72.]

that section.

That section provides as follows: "The Submitted December 6, 1904. Decided Jan- President is authorized to drop from the uary 3, 1905.

rolls of the Army for desertion any officer who is absent from duty three months with

no shall view a judgment dismissing a petition be eligible for reappointment. And no to recover the pay of a cadet in the United officer in the military or naval service shall States Military Academy at West Point in time of peace be dismissed from service, after his summary dismissal by order of except upon and in pursuance of the senthe President. Affirmed.

tence of a court-martial to that effect, or See same case below, 38 Ct. Cl. 346. in commutation thereof." The facts are stated in the opinion.

In the Articles of War, enacted by § 1342 Messrs. L. T. Michener and W. W. of the Revised Statutes, the word "commuDudley for appellant.

tation” is changed to “mitigation.” Art. Assistant Attorney General Pradt and 99, U. S. Comp. Stat. 1901, p. 967. Mr. George M. Anderson for appellee. The first impression of claimant's conten

tion is that it ignores obvious distinctions, Mr. Justice McKenna

McKenna delivered the and makes a state of preparation for a posi. opinion of the court:

tion the same as the position itself, and Appellant filed a petition in the court of claims its sanction for one who is not bearclaims to have declared void his dismissal | ing its responsibilities or capable of disfrom the United States Military Academy charging its duties. And an examination of at West Point, and for judgment for his the Revised Statutes relating to the organpay as a cadet from July 27, 1883, to July ization of the Army confirms the impres1, 1889, amounting to $3,417.

sion. The appellant was duly appointed a cadet Manifestly, it is impossible to reproduce in the Military Academy on the 1st day of all the sections of the Revised Statutes apJuly, 1880, and served as such until the plicable to the military establishment, and 27th of July, 1883, when he was summarily we will only observe that they distinguish dismissed, by order of the President, upon between the Army proper and the Military charges of maltreating a new cadet upon Academy, and make a distinction between guard, as well as other improper conduct. an officer and a cadet. A few citations only After the dismissal of appellant another are necessary. cadet was appointed to succeed him, was

Title XIV. of the Revised Statutes of the duly graduated from the Academy, and ap- United States, U. S. Comp. Stat. 1901, p. pointed and commissioned a second lieuten- 942, provides “for the organization of the ant in the Army, and subsequently a cap- Army of the United States.

The name, tain of the Twenty-fifth Regiment of In- rank, and function of each officer is profantry.

vided for, and $ 1213, U. S. Comp. Stat. The appellant, subsequently to his dis- 1901, p. 854, explicitly states when a cadet missal, presented petitions respectively to shall become an officer. That section enacts the Adjutant General of the Army and to that when a cadet shall have regularly the Secretary of War, in which he asserted graduated from the Academy he “shall be his innocence of the charges made against considered a candidate for a commission in him, and prayed for reinstatement or trial any corps for whose duties he may be by court-martial. He also presented a peti- deemed competent." He then becomes a tion April 21, 1888, to the President, ask commissioned officer. Prior to that time he ing for a revocation of the order of dis- is denominated a cadet, appointed as a missal, a trial by court-martial, and for cadet, and provision made for him under an order assigning and appointing him to that name and state. He becomes an officer the Army as of the date of the assignment when he ceases to be a cadet; that is, when of the last graduate of his class. The peti- he has finished his pupilage; or, as § 1213 tions were all denied.

expresses it, when "he has gone through all The court of claims held that he was not his classes and received a regular degree entitled to


recover, and dismissed his from the academic staff” and commissioned. petition. 38 Ct. Cl. 346.

And his government while a cadet is proThe contention of appellant is that, as a vided for in chapter 5 of title XIV. cadet, he was an officer in the Army, within A cadet may be in the Army ($ 1094, U. the meaning of § 1229 of the Revised Stat- S. Comp. Stat. 1901, p. 783), may be an utes of the United States, U. S. Comp. Stat. I officer in a certain sense, as distinguished from an enlisted man, as it is contended by time of war almost meaningless. It is nevcounsel for the government he is, but never-ertheless contended by appellant that § 1229 theless § 1229 does not apply to him. That is unaffected by § 1342 and the Articles of section is one of a number of provisions for War, but is a part of § 1326, U. S. Comp. the organization and government of the Stat. 1901, p. 934, which gives the superinArmy, distinct from, and having no rela-. tendent of the Academy the power to contion whatever to, the provisions for the vene general courts-martial for the trial of government of the Military Academy and cadets. In other words, the contention is the cadets. Section 1229 is made part of, that $ 1326 is not merely a grant of power and the word "officer” given exact defini- to the superintendent of the Academy to tion by, § 1342, U. S. Comp. Stat. 1901, p. convene courts-martial for the

-trial of 944, which provides as follows:

cadets, but commands him to do so, and, it “Sec. 1342. The armies of the United would seem, necessarily, for every infracStates shall be governed by the following tion of discipline. What, it may be asked, rules and articles: The word 'officer,' as under the contention of appellant, is the reused therein, shall be understood to desig-lation between § 1326 and § 1325, U. S. nate commissioned officers; the word ‘sol-Comp. Stat. 1901, pp. 933, 934 ? By the dier' shall be understood to include noncom- latter section there can be deficiency in missioned officers, musicians, artificers, and studies as well as conduct. Can there be no privates, and other enlisted men, and the discharge from the Academy for deficiency convictions mentioned therein shall be un- in studies except upon and in pursuance of derstood to be convictions by court-mar- a court-martial to that effect? tial."

The cases cited by appellant do not conBy article 99 it is enacted:

flict with these views. United States v. “No officer shall be discharged or dis. Morton, 112 U. S. 1, 28 L. ed. 613, 5 Sup. missed from the service except by order of Ct. Rep. 1, decides only that the time of the President or by sentence of a general service as a cadet was actual time of service court-martial; and in time of peace no offi- in the Army within the meaning of the cer shall be dismissed except in pursuance statutes giving longevity pay to officers. In of the sentence of a court-martial or in United States v. Baker, 125 U. S. 646, 31 L. mitigation thereof."

ed. 824, 8 Sup. Ct. Rep. 1022, and United It is only a commissioned officer, there- States v. Cook, 128 U. S. 254, 32 L. ed. 464, fore, who is entitled to the protection of a 9 Sup. Ct. Rep. 108, statutes giving longevgeneral court-martial, and a cadet is not ity pay to officers in the Navy were cona commissioned officer.

strued, and it was held that a cadet midThe argument of appellant, contending shipman was an officer of the Navy. The against this construction of the statute, is reasoning of the court, however, has no apnot easy to reproduce or make clear, and it plication to the construction of $8 1229 involves the anomaly that there can be an and 1342. officer in the Army of the United States who is not covered by the Articles of War, not- delinquent cadet we do not understand is withstanding the declaration of § 1342, that questioned, except as that power is affected the Armies of the United States shall be by $$1229 and 1342. We may, however, governed by those articles.

refer to Ex parte Hennen, 13 Pet. 259, 10 The object of the argument is to make in- L. ed. 152; Blake v. United States, 103 U. dependent § 1229 of § 1342, and to give a S. 227, 236, 26 L. ed. 462, 465; Mullan v. cadet the protection expressed by the United States, 140 U. S. 240, 35 L. ed. 489, former, on the ground that a cadet is an 11 Sup. Ct. Rep. 788; Parsons v. United officer, but not a commissioned officer. That States, 167 U. S. 334, 42 L. ed. 188, 17 Sup. a cadet is an officer is deduced from the Ct. Rep. 880; Shurtleff v. United States, fact that he is appointed by the President, 189 U. S. 314, 47 L. ed. 831, 23 Sup. Ct. Rep. takes an oath to obey his "superior offi- 535. cers," and receives pay. But, as we have Judgment affirmed. already intimated, it is not necessary to dispute that a cadet is an officer. Whether

(196 U. S. 115) he is or not is not the question in the case. FIRST NATIONAL BANK OF JACKS- . The question is whether § 1229 applies to

BORO, Piff. in Err., him, and to so construe it would seemingly give it no application except to cadets (and

J. L. LASATER. officers in the naval service), and transfer it from the government of the Army to the Usury by national banksusurious interest government of the Academy; and, we may

must be actually paid effect of banke observe, would render the distinction im- ruptcy proceedings. plied by it between a time of peace and a '1. The giving of a renewal note will not pus..

ho a The power of the President to dismiss a

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tain a recovery from a national bank, under turned no assets to the trustee, and did not U. S. Rev. Stut. $ 5198, U. S. Comp. Stat. tell him or the creditors about this claim 1901, p. 3493, on account of usurious inter

for usury est in the original note, since the payment contemplated by that statute is an actual

On July 26, 1901, he brought this action, payment, and not a further promise to pay. under the authority of $ 5198, Revised Stat2. Title to a claim for usurious interest paid utes, United States, U. S. Comp. Stat. 1901,

to a national bank cannot be asserted by a p. 3493, to recover twice the amount of the bankrupt upon the termination of the bank- interest paid to the bank. The court of ruptcy proceedings, where he returned no assets to the trustee, and failed to notify either appeals found that part of the interest was the trustee or the creditors of the existence of paid more than two years prior to the the claim

commencement of the action, and held that

no recovery could be had as to that, but, [No. 73.]

reversing the district court, entered a judg

ment in favor of the plaintiff for double the Submitted December 6, 1904. Decided Jan-amount of the balance of the interest, on uary 3, 1905.

the ground that usury entered into it all.

Section 5198, Revised Statutes, provides : N ERROR to the Court of Civil Appeals

“The taking, receiving, reserving, or of the Second Supreme Judicial District charging a rate of interest greater than is of the State of Texas to review a judgment allowed by the preceding section, when reversing a judgment of the District Court knowingly done, shall be deemed a forfeiof Jack County in that State in favor of ture of the entire interest which the note, defendant in an action to recover usurious bill, or other evidence of debt carries with interest paid to a national bank, and en- it, or which has been agreed to be paid tering judgment in favor of plaintiff for a thereon. In case the greater rate of interest portion of the relief sought. "Reversed and has been paid, the person by whom it has remanded for further proceedings.

been paid, or his legal representatives, may See same case below in Texas Court of recover back, in an action in the nature of Civil Appeals, 72 S. W. 1054, and in Texas an action of debt, twice the amount of the Supreme Court on certified questions, 96 interest thus paid, from the association Tex. 345, 72 S. W. 1057.

taking or receiving the same: Provided,

such action is commenced within two years Statement by Mr. Justice Brewer:

from the time the usurious transaction ocThis case is here on error to the court of

curred.” civil appeals of the second supreme judicial district of the state of Texas. It was an

Messrs. J. W. Nichol, Thomas D. Sporer action brought in the district court of Jack and E. W. Nicholson for plaintiff in error. county by J. L. Lasater to recover from the

No counsel opposed. First National Bank of Jacksboro twice a sum claimed to have been paid as usurious Mr. Justice Brewer delivered the opininterest.

ion of the court: The material facts are as follows: J. L. The mere discharge by A. M. Lasater of Lasater and W. M. Maggard, as partners, the note executed by himself and J. L. borrowed of the bank $4,000, and executed Lasater, by giving his own note in renewal their joint note with A. M. Lasater as thereof, would not uphold a recovery from surety. They also mortgaged cattle as the bank on account of usurious interest in further security.

security. Subsequently Maggard the former note. Brown V. Marion Nat. sold all his interest in the mortgaged prop-Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. erty to J. L. Lasater, the latter assuming Ct. Rep. 390. The payment contemplated all liabilities and renewing the note with by the statute is an actual payment, and the same surety. Thereafter A. M. Lasater, not a further promise to pay, and was not the surety, bought all the mortgaged cattle, made until the bank, in June, 1901, received and, as part of the consideration, agreed to its money. Prior to the renewal by A. M. assume and pay off the note. In pursuance Lasater, in October, 1900, there were only of this agreement he took up the note of J. two or three small cash payments on the L. Lasater, and gave his own note therefor. indebtedness. This last note A. M. Lasater paid in full to We shall not stop to inquire whether J. the bank. After all these transactions, and L. Lasater can avail himself of the final on November 19, 1900, J. L. Lasater filed payment made by A. M. Lasater. The court his petition in bankruptcy in the district of appeals held that he could, reaching this court of the United States. On January 7, conclusion on the authority of cases like 1901, he was discharged of his debts, and Hough v. Horsey, 36 Md. 184, 11 Am. Rep. on June 11, 1901, the trustee was also dis 484; Richardson v. Baker, 52 Vt. 617, to charged of his trust. The bankrupt re' the effect that the grantee of mortgaged

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