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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 had eleven docks or 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 port, and it was usual or customary to discharge freight upon the wharves. The defendant had no authority over the wharves, and was subject to local regulations and the order of the harbor master, the same as individuals."

"The second contract: 1. By the arrival of the bark Harvester, with 2,179 tons of coal, August 28, 1898, at Honolulu, which was placed at a berth at the wharf by the harbor master September 16, 1898, and began discharging coal on that date, and completed same October 7, 1898, a period of eighteen working days. It does not appear that the defendant was at fault in the loss of time of said last-mentioned ship in arriving at the wharf.

As a conclusion of law the court decided that appellant was not entitled to recover. 38 Ct. Cl. 590.

The question in the case is whether the delay at Honolulu in the delivery of the coal was caused by the United States or by appellant; or, in other words, whether it was the duty of the United States to designate and furnish a wharf for the discharge of the coal from the ships, or its duty only to receive the coal at the wharf when delivered there by appellant.

The question is one of law. Any fault in fact upon the part of the United States is excluded by the findings of the court. The cause of delay is expressly found to have been due to the conditions in Honolulu harbor, and that to these conditions the United States was as subordinate and subject as appellant. The liability of the United States is asserted, nevertheless, on account of the custom existing in San Francisco between shippers and shipowners.

"2. By the arrival of the ship General Gordon at Honolulu, August 27, 1898, with 2,455 tons of coal. While at anchor, September 9, 10, and 11, 330 tons were discharged into steamship Arizona, a transport of defendant, for its own use, after which the Gordon was placed at a berth at the wharf by the harbor master, September 14, at 1 P. M., and then commenced the further discharge of the cargo, completing the same October 4, no delays having occurred at the wharf. It does not appear the defendant was at fault in the ship's delay in reaching the wharf. In the case of each ship the defendants had notice in writing of their respective arrivals within twentyfour hours thereafter. The wharves at Honolulu are under the control of a harbor master. The practice of such harbor master was to assign ships to berths at the wharves in the order of their respective arrivals, and this practice was followed by him in respect to the ships mentioned. Claimant paid said shipowners for delays $1,433.12 to the Harvester and $744.48 to the General Gordon. All coal delivered was paid for by defendant. "V. The coal actually delivered under the second contract was 4,634 tons, completed October 7, 1898. About a month subsequent to this, claimant purchased 366 tons of coal of the barkentine Omega, then in the Honolulu harbor, and tendered the same to the defendant upon its contract of June 23, 1898, but the defendant refused to receive it, whereupon claimant sold the same in market, for the best price he could obtain, at $3.06 per ton less than $9, the contract price with the defendant, equivalent to $1,120.87 in all, and to his loss in that amount. The effect of usage upon the contracts "VI. At the time of the delivery of the of parties has been decided many times.

But the terms of the contracts are explicitly opposite to the custom. The custom requires a consignee to designate a berth for the discharge of cargo, and is hence responsible, it is contended, for the delays to a ship in reaching the berth, though caused by the conditions existing at the port of discharge. The contracts have no such provision, nor do they refer to the charter parties entered into between claimant and the ships. The contracts require delivery to be "at wharf" (first contract); "on wharf as customary" (second contract). "As customary" meant the mode of discharging freight at Honolulu. Culver, Carriage by Sea, 696. The custom there was to discharge freight upon the wharves. The terms of the contracts, therefore, are reinforced by the custom at Honolulu, and the custom at San Francisco cannot prevail against them.

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 deis 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, 1 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 they did of other obstacles which might have intervened to prevent the coal reaching the harbor. It was not strictly the coal in the ships that the United States contracted to take. It was certain quantities of coal, and on account of this, in the exercise of their rights under the second contract, appellant bought coal in the open market and tendered it in fulfilment of that contract. The liability of the United States to accept we shall presently consider. We cite the fact now as illustrating the meaning of the contract. It is manifest, from these views, the court of claims was right in holding the United States was not liable for the delay caused to the ships by the conditions which existed in Honolulu harbor.

2. By the terms of the second contract (June 23, 1898) the appellant agreed to deliver and the United States agreed to "receive about 5,000 tons" of coal, delivery to commence with about 2,200 tons, to ar

The record does not inform us why the United States refused the tender, and we must assume that it had no other justification than its supposed right under the contract.

Judgment reversed, and cause remanded with directions to enter judgment for appellant (claimant) in the sum of $1,120.87.

Mr. Justice Holmes concurs in the result.

(196 U. S. 169) THOMAS L. HARTIGAN, Appt.,

v.

UNITED STATES.

Army-West Point cadet not an officer.

A cadet in the United States Military Academy at West Point is not an officer in the Army, within the meaning of U. S. Rev. Stat. § 1229, U. S. Comp. Stat. 1901, p. 868, prohibiting dismissals from service in time of

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

court-martial.

[No. 72.]

missed from the Academy upon trial and conviction by court-martial, as provided in that section.

That section provides as follows: "The

Submitted December 6, 1904. Decided Jan- President is authorized to drop from the uary 3, 1905.

A

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

PPEAL from the Court of Claims to re-out leave; and no officer so dropped 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 in commutation thereof."

See same case below, 38 Ct. Cl. 346. The facts are stated in the opinion. Messrs. L. T. Michener and W. Dudley for appellant.

W.

Assistant Attorney General Pradt and Mr. George M. Anderson for appellee.

In the Articles of War, enacted by § 1342 of the Revised Statutes, the word "commutation" is changed to "mitigation." Art. 99, U. S. Comp. Stat. 1901, p. 967.

The first impression of claimant's contention is that it ignores obvious distinctions,

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

Appellant filed a petition in the court of claims to have declared void his dismissal from the United States Military Academy at West Point, and for judgment for his pay as a cadet from July 27, 1883, to July 1, 1889, amounting to $3,417.

The appellant was duly appointed a cadet in the Military Academy on the 1st day of July, 1880, and served as such until the 27th of July, 1883, when he was summarily dismissed, by order of the President, upon charges of maltreating a new cadet upon guard, as well as other improper conduct. After the dismissal of appellant another cadet was appointed to succeed him, was duly graduated from the Academy, and appointed and commissioned a second lieutenant in the Army, and subsequently a captain of the Twenty-fifth Regiment of Infantry.

tion the same as the position itself, and claims its sanction for one who is not bearing its responsibilities or capable of discharging its duties. And an examination of the Revised Statutes relating to the organization of the Army confirms the impression.

Manifestly, it is impossible to reproduce all the sections of the Revised Statutes applicable to the military establishment, and we will only observe that they distinguish between the Army proper and the Military Academy, and make a distinction between an officer and a cadet. A few citations only are necessary.

Title XIV. of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, p. 942, provides "for the organization of the Army of the United States. The name, rank, and function of each officer is provided 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 dismissal, a trial by court-martial, and for an order assigning and appointing him to the Army as of the date of the assignment of the last graduate of his class. The petitions were all denied.

The court of claims held that he was not entitled to recover, recover, and dismissed his petition. 38 Ct. Cl. 346.

The contention of appellant is that, as a cadet, he was an officer in the Army, within the meaning of § 1229 of the Revised Statutes of the United States, U. S. Comp. Stat.

is denominated a cadet, appointed as a cadet, and provision made for him under that name and state. He becomes an officer when he ceases to be a cadet; that is, when he has finished his pupilage; or, as § 1213 expresses it, when "he has gone through all his classes and received a regular degree from the academic staff" and commissioned. And his government while a cadet is provided for in chapter 5 of title XIV.

A cadet may be in the Army (§ 1094, U. S. Comp. Stat. 1901, p. 783), may be an 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 would seem, necessarily, for every infraction of discipline. What, it may be asked, under the contention of appellant, is the re

"Sec. 1342. The armies of the United States shall be governed by the following rules and articles: The word 'officer,' as used therein, shall be understood to desig-lation between § 1326 and § 1325, U. S. nate commissioned officers; the word 'soldier' shall be understood to include noncommissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions by court-martial."

By article 99 it is enacted:

"No officer shall be discharged or dismissed from the service except by order of the President or by sentence of a general court-martial; and in time of peace no officer shall be dismissed except in pursuance of the sentence of a court-martial or in mitigation thereof."

It is only a commissioned officer, therefore, who is entitled to the protection of a general court-martial, and a cadet is not a commissioned officer.

The argument of appellant, contending against this construction of the statute, is not easy to reproduce or make clear, and it involves the anomaly that there can be an officer in the Army of the United States who is not covered by the Articles of War, notwithstanding the declaration of § 1342, that the Armies of the United States shall be governed by those articles.

Comp. Stat. 1901, pp. 933, 934? By the latter section there can be deficiency in studies as well as conduct. Can there be no discharge from the Academy for deficiency in studies except upon and in pursuance of a court-martial to that effect?

The cases cited by appellant do not conIflict with these views. United States v. Morton, 112 U. S. 1, 28 L. ed. 613, 5 Sup. Ct. Rep. 1, decides only that the time of service as a cadet was actual time of service in the Army within the meaning of the statutes giving longevity pay to officers. In United States v. Baker, 125 U. S. 646, 31 L. ed. 824, 8 Sup. Ct. Rep. 1022, and United States v. Cook, 128 U. S. 254, 32 L. ed. 464, 9 Sup. Ct. Rep. 108, statutes giving longevity pay to officers in the Navy were construed, and it was held that a cadet midshipman was an officer of the Navy. The reasoning of the court, however, has no application to the construction of §§ 1229 and 1342.

The power of the President to dismiss a delinquent cadet we do not understand is questioned, except as that power is affected by 881229 and 1342. We may, however, refer to Ex parte Hennen, 13 Pet. 259, 10 L. ed. 152; Blake v. United States, 103 U. S. 227, 236, 26 L. ed. 462, 465; Mullan v. United States, 140 U. S. 240, 35 L. ed. 489, 11 Sup. Ct. Rep. 788; Parsons v. United States, 167 U. S. 334, 42 L. ed. 188, 17 Sup. Ct. Rep. 880; Shurtleff v. United States, 189 U. S. 314, 47 L. ed. 831, 23 Sup. Ct. Rep. 535.

Judgment affirmed.

The object of the argument is to make independent § 1229 of § 1342, and to give a cadet the protection expressed by the former, on the ground that a cadet is an officer, but not a commissioned officer. That a cadet is an officer is deduced from the fact that he is appointed by the President, takes an oath to obey his "superior officers," and receives pay. But, as we have already intimated, it is not necessary to dispute that a cadet is an officer. Whether he is or not is not the question in the case. FIRST NATIONAL BANK OF JACKSThe question is whether § 1229 applies to him, and to so construe it would seemingly give it no application except to cadets (and officers in the naval service), and transfer it from the government of the Army to the government of the Academy; and, we may observe, would render the distinction implied by it between a time of peace and a 1.

(196 U. S. 115)

BORO, Piff. in Err.,

บ.

J. L. LASATER.

Usury by national banks—usurious interest must be actually paid-effect of bankruptcy proceedings.

The giving of a renewal note will not sus

tain a recovery from a national bank, under | turned no assets to the trustee, and did not U. S. Rev. Stat. § 5198, U. S. Comp. Stat. tell him or the creditors about this claim 1901, p. 3493, on account of usurious interfor usury. est in the original note, since the payment contemplated by that statute is an actual payment, and not a further promise to pay. 2. Title to a claim for usurious interest paid to a national bank cannot be asserted by a bankrupt upon the termination of the bankruptcy proceedings, where he returned no assets to the trustee, and failed to notify either

the trustee or the creditors of the existence of

the claim.

[No. 73.]

On July 26, 1901, he brought this action, under the authority of § 5198, Revised Statutes, United States, U. S. Comp. Stat. 1901, p. 3493, to recover twice the amount of the interest paid to the bank. The court of appeals found that part of the interest was paid more than two years prior to the commencement of the action, and held that no recovery could be had as to that, but, reversing the district court, entered a judgment in favor of the plaintiff for double the

Submitted December 6, 1904. Decided Jan-amount of the balance of the interest, on

IN

uary 3, 1905.

N ERROR to the Court of Civil Appeals of the Second Supreme Judicial District of the State of Texas to review a judgment reversing a judgment of the District Court of Jack County in that State in favor of defendant in an action to recover usurious interest paid to a national bank, and entering judgment in favor of plaintiff for a portion of the relief sought. Reversed and remanded for further proceedings.

See same case below in Texas Court of Civil Appeals, 72 S. W. 1054, and in Texas Supreme Court on certified questions, 96

Tex. 345, 72 S. W. 1057.

Statement by Mr. Justice Brewer:

This case is here on error to the court of civil appeals of the second supreme judicial district of the state of Texas. It was an action brought in the district court of Jack county by J. L. Lasater to recover from the First National Bank of Jacksboro twice a sum claimed to have been paid as usurious interest.

The material facts are as follows: J. L. Lasater and W. M. Maggard, as partners, borrowed of the bank $4,000, and executed their joint note with A. M. Lasater as surety. They also mortgaged cattle as further security. Subsequently Maggard sold all his interest in the mortgaged property to J. L. Lasater, the latter assuming all liabilities and renewing the note with the same surety. Thereafter A. M. Lasater, the surety, bought all the mortgaged cattle, and, as part of the consideration, agreed to assume and pay off the note. In pursuance of this agreement he took up the note of J. L. Lasater, and gave his own note therefor. This last note A. M. Lasater paid in full to the bank. After all these transactions, and on November 19, 1900, J. L. Lasater filed his petition in bankruptcy in the district court of the United States. On January 7, 1901, he was discharged of his debts, and on June 11, 1901, the trustee was also dis charged of his trust. The bankrupt re

the ground that usury entered into it all. Section 5198, Revised Statutes, provides "The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same: Provided, such action is commenced within two years from the time the usurious transaction occurred."

Messrs. J. W. Nichol, Thomas D. Sporer and E. W. Nicholson for plaintiff in error. No counsel opposed.

Mr. Justice Brewer delivered the opinion of the court:

The mere discharge by A. M. Lasater of the note executed by himself and J. L. Lasater, by giving his own note in renewal thereof, would not uphold a recovery from the bank on account of usurious interest in the former note. Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390. The payment contemplated by the statute is an actual payment, and not a further promise to pay, and was not made until the bank, in June, 1901, received its money. Prior to the renewal by A. M. Lasater, in October, 1900, there were only two or three small cash payments on the indebtedness.

We shall not stop to inquire whether J. L. Lasater can avail himself of the final payment made by A. M. Lasater. The court of appeals held that he could, reaching this conclusion on the authority of cases like Hough v. Horsey, 36 Md. 184, 11 Am. Rep. 484; Richardson v. Baker, 52 Vt. 617, to the effect that the grantee of mortgaged

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