David L. Yulee, Appellant, vs. Antonia A. Canova, Major and Chief of Subsistence and Commissary in the Confederate Army, Appellee, 11 Fla. 9

FORWARD, J., delivering the opinion of the Court. The bill now under the consideration of this Court, was filed in the Court below by the appellant against the appel-lee to compel a specific performance of the above contraes and stipulation in writing, set forth in the bill haec verba, as Exhibits A and B,.for the sale or purchase of sugar, forced under the impressment act of Congress ; and as by the pleadings the said parties differ materially as to what the contract; and stipulation really was, it involves also the construction of the same.

On the part of the appellant it is contended that on the dismissal of the bill and proceedings instituted by the city of Savannah against the appellee, set forth in the above statement of the case and forming evidence in ilt is case, the impressment, strictly speaking, fell with that case, and that therefore the sugar went into the hands of the appellee as Commissary, &c,, not by impressment, although impressment was threatened, and the anticipation thereof forced it, but by purchase.

That the present case is an agreed case, the only one under the contract that could be instituted, and involves, as it was agreed it should, the price or compensation to be paid for said sugar. On the part of the appellee it is insisted, 1st.

That the Court below had no jurisdiction to ascertain and decree the compensation to be paid by the Confederate States for the property impressed ; because in the acts of Congress authorizing -private property to be taken for public use, a constitutional and legal remedy is provided for the ascertainment and recovery of the compensation to be made ; and as well upon general principles as from the positive words of the acts, that remedy is exclusive. 2d. That the ‘Court liad no jurisdiction as aforesaid, because m point of fact, the whole question as to compensation was res adjudicata. 3d.

The Court had no jurisdiction as aforesaid, because if 1¿ie party could at all bring a suit against the appellee, as Major and Commissary of the Confederate States army, to recover the value of property taken and used by the Confederate States army, for the public good, his remedy is at common law and not in Chancery. 4th. That the Court had no jurisdiction as aforesaid, because, in point of fact, this is a suit against the Confederate States, through one of its military officers, for the recovery of money due and owing by the Confederate States for private property taken and appropriated to public use. 5th.

That the Court had no jurisdiction as aforesaid, because neither Major Canova nor his counsel had any authority to submit the ascertainment and recovery of compensation against the Confederate States, to any other tribunal than that provided by Congress. The first duty devolving upon the Court is the construction of the alleged contract or agreement and stipulation between the parties, and which is presented in the said Exhibits A and B, the two together, with the aid of the said extract from the letter of Mr. Yulee, which it seems was read in evidence without objection, composing the contract of purchase, &e.

In examining this question it is proper that the Court should consider the real ease and. its actual circumstances, as all of them maki ng up the history of the case are in evidence and form part of the record. It seems that at the time of the dismissal of the suit of the city of Savannah, and on the day of the entering into said agreement, in the first part thereof, to-wit: on the 11th of September, 1863, the said appellee, as Brigade Commissary, was ordered by Gen.

Finegan, commanding the District of East Florida, to “procure without delay, by purchase or otherwise, a supply of sugar for the troops in this District, sufficient to last until the incoming crop is gathered that Capt.

Call, the Adjutant, &c., had made a requisition upon the said appellant as President of the Florida Railroad, for the transportation of said sugar, and that “ the Government toas in immediate want of the sugarthat from the experience of the proceedings in the suit brought by the city of Savannah, there were many “obstacles” which the said appellant as producer and owner might interpose, thereby causing delay (ttt least) in the enjoyment of the use of said sugar by the said government; among them, 1st. The ascertainment under the 7th

section of the impressment act, by appraisers the amount necessary for the support of the owner and family, and to carry on Ids ordinary agricultural business. 2d. An adjudication as to whether Congress had established by law an impartial tribunal for ascertaining the fair and just value of the property taken. 3d. The inquiry whether there was an exigency of the army in the field making impressment absolutely necessary. 4th.

"Whether it was impracticable to accumulate sugar by purchase ; and as it would take some time to bring the case before the Court again on new pleadings, therefore, to remove all these obstacles and any other that might come in the way, it was, in the language of the answer of said appellee to this bill of complaint, “ agreed by and between the parties, complainant and defendant, that the government take the sugar and the question of compensation should be referred to his Honor, the Judge of this Court, for decision; and that the proceedings under the im-pressment act, which had been suspended by the bill of the city Of Savannah, should be completed ; and that when the local appraisement, provided for by the impressment act, ■Should have been made, subject to the right of appeal to the Board of Commissioners, provided for in said act, the ap^ praisement and the proceedings relative thereto might be placed in evidence before the Court.” It is true the said appellee in said answer also denies “ that he has admitted by any of the agreements entered into by him with the complainant, that the compensation tendered him, the said complainant, under the impressment law, is not just, or that the said complainant is entitled to any other mode of ascertaining the value of the said sugar.” Yet this is perfectly consistent with the agreement of purchase, and that an agreed case should be made up, and the question-of compensation “ aloné'’ shall be put in issue and referred to the Judge for decision ; and that on that issue the proceedings, as if the sugar was impressed, were to go on, and then placed in evidence before the Court.

But let us turn to the agreement. It sets forth the reasons why it is entered into, viz : “ This agreement is entered into because by judgment of the Court in the aforesaid case, it resulted that the contract of sale between D. L. Yulee and Edgar M.

McDonell was rescinded; and further, when the local appraisement, provided for in the appraisement act, shall have been made subject to the right of appeal to the Board of Commissioners provided for in said act, the said appraisement and the proceedings relative thereto may be placed in evidence before the Court.” if the appellee had insisted upon bis impressment, and that the proceedings under the said act before the appraisers and Board of Commissioners, were the exclusive inode of proceeding to ascertain the fair and just compensation, why enter into the agreement to refer that matter “ alone” to the Court, and stipulate that the proceedings should go on and be placed in evidence before the Court ? or why stipulate at all ?

It seems to us lie would have met the proposition to refer the compensation to the Court by the stern aud decided reply, the act of Congress has provided the course and the only course for ascertaining that fact, if lie had intended insisting upon that position before the Court.

In view of the history of this case, which is made evidence, and in view of all the facts, proceedings, and of the agreement entered into between the parties, the conclusion is irresistible to our minds, that the proper construction of the agreement is what it says, and in effect that the transaction was a purchase of the sugar, and the agreement was to refer the question of compensation alone to the Court, and that on the part of the appellee he was to have the right to go on under the form of proceedings laid down in the impressment act, which appraisement, when made and the proceedings relative thereto, he was to have the privilege of putting in evidence, that is to say as persuasive evidence on his part, to go before the Court as testimony, tor the Court to consider 1⅝ arriving at the amount of compensation to be allowed for said sugar.

We are strengthened in this view by reference to the letter above, addressed to E. M. McDonell, by said ap-pellee, dated 30th July, 1864, in which he says: “ I, on the part of the government, will agree to make up a case and submit the issues between us to his Honor Judge Dawkins, and have our rights determined without delay.” This was the proposition made to Mr. McDonell.

After-wards it appears the obstacles to immediate use by the government thickened ; the wants of the government were press-mg ; the ownership of the sugar was settled, and accordingly it became the interests of the government to remove all the obstacles. ’ To this end, it does seem to the Court the said appellee entered into said agreement. Whether he acted hy legal authority, or whether he incurred a personal responsibility, are different questions.

By entering into this agreement, and in consideration thereof, he disarmed the producer and owner, the said appellant, from every other proceeding against him, either at law or equity, excepting the one pointed out in said agreement. The contract is and was binding upon the appellant beyond all question, and lie could only be relieved from it by application to the Court of Chancery to have it rescinded, or by subsequent agreement or acts of the other party.

Should the appellant bring his action of trespass, trover or detinue against the appellee, he would be pointed to the agreement., and told you contracted not to do it. Should he bring his action of assumpsit for goods sold and delivered, the agreement would say in response, no delivery—by agreement you are in possession.

Thus it would seem the appellant, by the force and operation of said contract,, is entirely remediless in a court of law, and if lie haá no remedy in a Court of Chancery, then superior tactics have reversed the “ obstacles.”* Having thus construed the contract, the next question is, whether the Court below had the jurisdiction to enforce it \ and this will, we apprehend, depend upon, 1st. Whether the appellee incurred a personal responsibility in said purchase by entering into the contract % 2d. Whether the bill and pleadings are sufficient for that purpose % 3d.

Whether the Court had power to hold the parties to said agreement and stipulation 1 The well settled rule of law is, that a public agent contracting for the use of government, in the line of his duty and by legal authority, is not personally responsible though the contract is under his seal.—Hodson vs. Dexter, 1 Cranch, 343 ; Jones vs. Le Tombe, 3 Dallas, 385 ; Parks vs. Ross, 11 Howard, 374.

Bat if the credit be given to him, or was given, not as an official engagement, or not in the line of Ids duty and by legal authority, then he is personally responsible, or if he enter into a contract, not authorized by legal authority, then he is personally responsible.—Swift vs. Hopkins, 13 Johnson, 313. In this case the Court say, “ Unless the contractor shows distinctly that, in making the contract he expressly or ostensibly acted as a public agent, it must be deemed a private contract.

The return does not show that Swift assumed to act in an official capacity when he made this contract ; and the reason assigned by him for refusing to pay was, that he could, not make a charge of it against the government, is decisive to show that it was a private contract.” fcee also Lee vs. Monroe, et. al., 7 Cranch, 366. Having thus laid down the law governing this branch of the case, let us see whether. this contract for purchase was entered into and authorized by legal authority, and therefore made officially.

Let us examine the impressment act and see whether it wTas a subject fairly within the scope of his authority. The first act regulating impressments was passed the 26th March, 1863, and it enacts in the first

section thereof, “ That whenever the exigencies of any army in the field are such as to make impressments of forage, articles of subsistence or other property absolutely necessary, then such impressments may be made by the officer or officers whose duty it is to furnish such forage, articles of subsistence or other property for such army.

In cases where the owner of such property and the impressing officer cannot agree upon the value thereof, it shall be the duty of such impressing officer, upon an affidavit in writing of the owner of such property, or his agent, that such property was grown, raised or produced by • said owner, or is held or lias been purchased by him, not for sale or speculation, but for his own use or consumption, to cause the same to be ascertained and determined by the judgment of two loyal and disinterested citizens of the city, county or parish in which such impressments may be made; one to be selected by the owner, one by the impressing officer, and.in the event of their disagreement, these two shall choose an umpire of like qualifications, whose decision shall he final.

The persons thus selected, after taking an oath to appraise the property impressed, fairly and impartially, (which oath, as well as the affidavit provided for in this section, the impressing officer is hereby authorized to administer and certify,) shall proceed to assess just compensation for the property so impressed, whether the absolute ownership, or the temporary use thereof, only is required.” The second

section provides in substance, that at the time -of taking the property, the impressing officer must, pay to the owner the compensation fixed by the appraisers, and shall also give to him a receipt or certificate specifying the regiment, battalion, brigade, division or corps to which he belongs, that it is essential for the use of the army, and could not be otherwise procured, setting forth time, place, &c. This certificate is a good showing to the owner for the value specified in it, and, if the impressing officer fails to pay him for it at the time lie takes it, it is the duty of the proper disbursing officer to pay it. The third

section makes provision for those cases where it is impracticable to have appraisement made at the time of impressment.

Section fourth enacts, “ That whenever the Secretary of War shall be of opinion that it is necessary to take private property for public use, by reason of the impracticability of procuring the same by purchase, so as to accumulate necessary supplies for the army, or the good of the service, in any locality, he may, by general order through the proper subor-díñate officers, authorize such property to b§ taken for the public use; the compensation due to the owner for the same to be determined, and the value fixed as provided for in the first and second sections of this act.”

Section fifth enacts, “ That it shall be the duty of the President, as early as practicable after the passage of this act, to appoint a commissioner in each State where property shall be taken for the public use, and request the Governor of such of the States in which the President shall appoint said commissioners, to appoint another commissioner, to act in conjunction with the commissioner appointed by the President, who shall receive the compensation of eight dollars per day, and ten cents per mile as mileage, to be paid by the Confederate Government.

Said commissioners shall constitute a board whose duty it shall be to fix upon-the prices to be paid by the government for all property impressed or taken for the public use as aforesaid, so as to afford just compensation to the owners thereof. Said commissioners shall agree upon and publish a

schedule of prices every two months, or oftener if they shall deem it proper; and in the event they shall not be able to agree in any matter confided to them in this act, they shall have power to appoint an umpire to decide the matter in dispute, whose decision shall be the decision of the board ; and said umpire shall receive the same rate of compensation, for the time he shall serve, allowed to said commissioners respectively : Provided, That said commissioners shall be residents of the State for which they shall be appointed ; and if the Governor of any State shall refuse or neglect to appoint said commissioner within ten days after a request to do so by the President, then the President shall appoint both commissioners, by and with the advice and consent of the Senate.” ■ ■

Section sixth enacts, “ That all property impressed or taken for the public use, as aforesaid, on the lands of any person other than the persons who have raised, grown or produced the same, or persons holding the same for their own use or consumption, and who shall make the affidavit as hereinbe-fore required, shall be paid for according to the

schedule of prices fixed by the commissioners as aforesaid. But if the officer impressing or taking for the public use such property and the owner shall differ as to the quality of the

article or property impressed or taken, as aforesaid, thereby making it fall within a higher or lower price named in the schedule^ then the owner or agent, and the officer impressing or taking as aforesaid, may select each a loyal and disinterested citizen, of the qualifications as aforesaid, to determine the quality of said

article or property, who shall, in case of disagreement, appoint an umpire of like qualifications, and his decision, if approved by the officer impressing, shall be final; but if not approved, the impressing officer shall send the award to the commissioners of the State where the property is impressed, with his reasons for disapproving the same, and said commissioners may hear such proofs as the parties may respectively adduce, and their decision shall be final: Provided, That the owner may receive the price offered by the impressing officer, without prejudice to his claim to receive the higher compensation.” The seventh

section enacts, “ That the property necessary for the support of the owner and his family, and to carry on his ordinary agricultural and mechanical business, to be ascertained by the appraisers to be appointed as provided in the first

section of this act, under oath, shall not be taken or impressed for the public use ; and when the impressing officer and the owner cannot agree as to the quantity of property necessary, as aforesaid, then the decision of the said appraisers shall be binding on the officer and all other persons.

On the 27th April, 1863, Congress amended the above act -by enacting, “ That in all cases of appraisement provided for in said act, the officer impressing the property shall, if he believe the appraisement to be fair and just, endorse upon it his approval; if not, he shall endorse «pon it his reasons for refusing, and deliver the same, with a receipt for the property impressed, to the owner, his agent or attorney, and as soon as practicable, forward a copy of the receipt and appraisement and his endorsement thereon, to the board of appraisers appointed by the President and the Governor of the State, who shall revise the same and make a final valuation, so as to give just compensation jor the properly taken, which valuation shall be paid by the proper department, for use of which the property was taken, on the certificate of the appraisers as provided in the act of which this is amendatory.” The foregoing are all the provisions made by Congress applicable to this case and which were in force at the time of this transaction.

It is true Congress on the 16th February, 1864, subsequent to the decision of the Board of Commissioners passed an amendatory act, remodeling the manner of ascertaining the compensation, giving the right of appeal to the owner of property, and taking away appeal by the impressing officer from decisions of the local appraisers, &e.—(See Statutes at Large of the 4th Session of the 1st Congress, page 192.) Here in this act wc see the scope of authority plainly and the path of duty well blazed out. In entering into the contract in question, did he pursue the authority given him in the act ? It is obvious he did not.

While the act authorizes him to purchase, and it is made his duty to purchase, yet “ in eases where the owner of such property and the impressing officer cannot agree upon the value thereof it shall be the duty of such impressing officer,” The evidence is full and distinct that these parties could not agree upon the value of the sugar; therefore his duty and authority was not to refer the ascertaining of the cam-pensation to any other tribunal.—Paine, 646 ; U . States vs. Ames, Woodbury & Minot, 89. Again.

Did the ^pellee in entering into said contract act under authority of any legal order of the War Department 2 Dy the extract from General Order, TSTo. 92, given in the above statement of the case, it will be seen, he was authorized to purchase, and when necessary to impress, hut when ' authorized to resort to impressment, was required to observe - strictly the requirements of law, &c.

From the extract from General Order, Ho. 3T, the impressing officer is instructed what to do before any impressment of property shall take place; if the price offered is refused, then it directs that compensation for the property will be made according to the act of Congress aforesaid, for the regulation of impressments. Again. That the property shall remain in the possession of the owner, his bailee or agent, and at liis risk, during the pendency of the proceedings for the ascertainment of the compensation, unless, &c.

It is obvious there is no authority in these orders giving to the appellee the power to change the mode and manner of fixing the compensation. We ask, wherein then, is this contract connected with a subject fairly within the scope of liis authority ? It is certainly not found in this record. Again, it is not signed by the appellee officially. It is true he recognizes it, but it was the act of his attornies ; lie recognizes it as a private contract and stipulation.

We are forced to the conclusion that the appellee in entering into said contract did not act within the scope of his authority ; having done so, it is presu&ed he acted in his private capacity, and therefore became personally responsible. We would not be understood here, with a knbwledge disclosed by the record, of the pressing necessities of the government, and the difficulties and delays to the use of the government for the army attending all the obstacles of a legal contest, as easting any censure or gross violation of authority on the part of the appellee in sanctioning this contract and stipulation.

On the contrary, we think lie acted judiciously under the circumstances, and with a discretion involving his personal responsibility highly commendable to him, and in a manner which recommends him to a moral claim for indemnity from the government. Particularly as will be seen hereafter, that under the rulings of this court, the government has sustained no damage in consequence thereof, the rule of compensation being the same in íioth cases. Having declared the appellee personally responsible, the next question is, whether.this bill is instituted against him in his individual capacity? We think it is.

The fact that the defendant in the bill of complaint is described as Major & Commissary, &c., and. that he as such officer acted so and so, is but a mere descriptio personae, and may he treated as .inducement or surplusage. This brings us now to consider the question, whether the court below had jurisdiction over this contract, it being an agreement- respecting the sale of goods and chattels of a merely personal nature, and a stipulation as to the manner in which the compensation should be ascertained.

It is a general rule that courts of equity will not enter, tain jurisdiction for a specific performance of agreements respecting goods, chattels, &c., and other things of a mere personal nature, vet this rule is a qualified one and subject to exceptions. In enumerating these exceptions, Mr.

Story in his Commentaries on Equity Jurisprudence, Yol. 1, page 41, and paragraph 723, says : “Where the specific performance of a contract respecting chattels will be decreed upon the application of one party, Courts of Equity will maintain the like suit at the instance of the other party, although the relief sought by him is merely in the nature of a compensation in damages or value; for in all.such cases, the court acts upon. the ground that the remedy, if it exists at all. ought to be mutual and reciproca , as well for the vendor, as for the purchaser.” Now let us try this case by this rule.

Suppose the appellant entering into the agreement and stipulation in this ease, had refused to deliver the sugar, had refused to comply with his stipulation, and threw obstacles in the way of the appellee’s getting the same: is there any doubt but that a Court of Equity would upon his application have decreed a specific performance ? Would it have been any answer to such an application that “ consent cannot give jurisdiction ? ” Can there be anything found limiting the jurisdiction of the Court of Chancery ? We think not.

The common saying that the “ consent of parties can never give or bestow jurisdiction upon a court, where it does not otherwise exist” applies to courts of limited jurisdiction, that is to say matters in which the court is prohibited from "taking jurisdiction, either by the constitution or the laws, as for instance where it is declared the court shall not entertain jurisdiction where the amount in controversy does not exceed $50, &e., or where there is a clear, full and adequate remedy at common law.

If then this stipulation of the parties agreeing to sell this sugar, deliver it, and refer the compensation to the court, could be enforced by the appellee, then the same stipulation and agreement can be enforced by the other party. But, says Mr. Story in the same book, paragraph 717, “ The truth is, that upon the principles of natural justice, Courts of Equity might proceed much farther, and might insist upon decreeing a specific performance of all bona Jide contracts, since that is a remedy to which courts of law are inadequateand cites Halsey vs. Grant, 13 Ves., 76, 77; Alley vs.

Deschampa, 13 Ves., 228, as supporting this view, lie adds: There is no pretence for the complaints sometimes made by the common lawyers, that such relief in equity* would wholly subvert the remedies by actions on the case and actions of covenant; for it is against conscience that a party should have a right of election whether he would perform his covenant or only pay damages for the breach of it.” But we find the Supreme Court of the United States giving more extensive jurisdiction in equity to grant relief by a specific performance in contracts respecting personal chattels than is exercised in the English Courts.

In the case of The Mechanics’ Bank of Alexandria vs. Seton, 1 Peters, 305, that Court say: “ It has been said that a Court of Chancery will not decree a specific performance of contracts, except for the purchase of lands or tilings that relate to the realty, and are of a permanent nature ; and that where the ‘contracts are for chattels, and compensation can be made in damages, the parties must be left to their remedy at law.

But, notwithstanding this distinction between personal contracts for goods and contracts for lands, is to be found laid down in the books as a general rule, yet there are many cases to be found where specific performance of contracts, relating to personalty, have been enforced in Chancery; and Courts will only weigh with greater nicety contracts of this description, than such as relate to lands,” In our sister State of Georgia, the Court of Equity in that State say they would have decreed a specific performance of an express agreement to set off the debts against, each, pro tanto, if the agreement had been established.—Ruckersville Bank and others vs.

Hemphill and others, 7 Georgia, 397. Thus it will he seen that the Court of Chancery in the Suwannee Circuit, before his Honor Judge Dawkins, had jurisdiction of this agreement and stipulation, without the consent of parties, or in other words, it was not the consent of parties alone that gave the Court jurisdiction in this cause. We are, therefore, of the opinion the Court below had jurisdiction over this agreement and stipulation. We are next to consider whether, under the bill and pleadings, the case is sufficiently stated upon which the agreement and stipulation can be forced.

On this point we are constrained to say the bill is inartis-tically drawn. But it is not demurred to or excepted to ; we are, therefore, to take it as we find it. Upon referring to it we see that the contract and stipulation therein contained are sufficiently set forth; it is given hmc verba, and we find the prayer in conformity therewith, although it prays “ that a decree may be made awarding full and just compensation,” and it is as though it had prayed specific performance, for “fall and just compensation” was the basis and sum of the agreement and stipulation.

But on the part of the appellee it is contended with great ability and earnestness, that the Court below erred in receiving the proceedings of the local appraisers and Board of Commissioners in evidence, because in point of fact the whole question as to compensation was res. adjudicata. This brings us to inquire what constitutes res judicata ? Mr. Bouvier in his law Dictionary says, that “in order to make a matter res judicata there must be a concurrence of the four conditions, viz: 1. Identity in the thing sued for. 2.

Identity of the cause of action ; if, for example, I have claimed a right of way over Blackaere and a final judgment has been rendered against me, and afterwards I purchase Blackaere, this first decision shall not be a bar to my recovery when I sue as owner of the land, and not for an easement over it, which I claimed as a right appurtenant to my land White-acre. 3. Identity of persons and of parties to the action. 4.

Identity of the quality in the persons for or against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him is no bar to an action by Peter, administrator of Paul, to recover the same horse.” For the purpose of argument let us consider (which is not the fact,) that the proceedings under the ap-praisement were had by the Board of Commissioners before the parties entered into the agreement' in question.

The agreement being subsequently entered into, what would be the condition of the parties as individuals ?—(for what may have been the eifect of it upon the government and upon the appellee as its agent on a claim for indemnity is one thing, and the eifect of it upon him in his individual responsibility another thing.) Are the 2d, 3d and 4th conditions or any of them in concurrence with the 1st 1 No, for as we have already decided the cause of action in this case is against the appellee individually, and not against the government. Again, there is not an identity of persons and of parties to the action.

In the one the government was the party, in the other, the appellee. Again, there is not the identity of. the quality, for in the one case the party was agent of the government; in the other he was not, therefore not conclusive upon the same point.—Wright vs. Decklyne, 1 Peters, C. C. R., 199. But let us return to the facts as they are in the record.

We there learn that all of the proceedings before the local appraisers and the Board of Commissioners were had after the first agreement and stipulation tyas entered into between the parties, and that the proceedings on appeal before the Board of Commissioners were after the second agreement; and as we have held, these proceedings were in strict conformity with the agreement and stipulation; and as we have also held, by the express terms of that stipulation, these proceedings were to be used as evidence, i. e. persuasive evidence, on the issue of compensation.

They constitute the appellee’s evidence offered by him and received and read as such. The remaining question is, what compensation shall be allowed ? What is just compensation % When and where shall this compensation be fixed ? And first, what is just compensation ? The current of authorities which we adopt say, that “just compensation” means an equivalent, a recompense in value for the property taken,, what the

article would sell for in the market, quality and quantity considered, and not the price which the owner might demand, or which some person for especial reason might be willing to give. Secondly. Ey what market or where shall this compensation be fixed ? Having held the transaction in this case to be a purchase, it follows, it must be governed by the rides of similar contracts. We are of the opinion that, according to numerous decisions, the market price where the sugar was sold and delivered should be the governing rule in this case.

The sugar was sold and delivered in Waldo, therefore the price at that market should have been ascertained. Thirdly. When or upon what date shall the value or price be fixed ? On this point it is contended by the counsel for the appellant that it should be ascertained as of the day of the adjudication, i. e., the day of the date of the decree of the Court below, which was the 11th day of May, A. I). 1864. On the part of the appellee it is insisted it should be of the day the impressment was made, to-wit: the 25th July,, A. D. 1863..

In all contracts for the sale of goods, tie price to be fixed therefor, where no price is agreed upon, is the value thereof,, quality and quantity considered, on the day of the sale and delivery, and as this is adjudged to be a case of purchase and sale, we think that should be the rule in this ease. A more difficult question is to ascertain from the record-on what day the perfecting the sale by delivery of the sugar took place. The only testimony on that point is the two-parts of the agreement and the letter of said Yulee;'* The drat part of the agreement is dated the 11th day of Sept., A. D. 1863.

If this were all, we could conclude, under that portion thereof wherein it is stated and agreed “ that the sugar shall be forthwith transported, on the requisition this evening made upon the said Yuiee, President of the Florida Railroad Company, by Capt. Call, and no further obstacles to its transportation interposed,” that the delivery took place on that day. But we find that on the 23d September, A.

D. 1863, the appellant writes to his counsel, “ I am perfectly willing to its immediate delivery (the sugar,) if there is no change in the original understanding.” From these expressions we conclude the sugar had not then passed into the hands of the purchaser, and that there had been no delivery, the sale not as yet perfected. On the 23d October, A. I). 1863, the supplemental agreement was entered into. In that the following words are used ; “ It is agreed that the Confederate States have appropriated to its use sixty-four hogsheads sugar belonging to the complainant,” &c.

It appears evident that at thatirne last mentioned, to-wit: on the 23d October, A. I). 1863, the sugar had been "delivered. It must either have been delivered on that day or on someday between then and the 23d September. According to the testimony of Mr. Dozier, one of the local appraisers, it was in the depot warehouse at "Waldo on the 17th September, A. D. 1863. The Board of Commissioners made their valuation on the 20th October, A. D. 1863.

We conclude, therefore, that somewhere on or about the 23d of October aforesaid, the appellee took possession of said sugar, and accordingly fix the period for ascertaining the value on or about the 23d day of October, 1863. The Chancellor therefore erred, (tills being* a purchase,) in fixing the compensation on the 25th July, the date of the impressment. Here we do not wish to be understood as holding that under im-pressments the compensation should be fixed as of the day of the impressment.

That question, under the view which we have taken of this agreement, does not arise, and has, therefore, not been considered. Having thus laid down the rules under which the value is to be ascertained, we turn to the testimony to see what was the market price at Waldo aforesaid on or about the 23d of October, A. D. 1863. Upon a thorough examination of the testimony introduced by the appellant, the nearest to the period fixed is that of Mr. Houston, Mr. Burnett and Mr. Allen. The witness Houston says : That about six weeks ago, lie, as the agent ot Mrs. Hopkins, sold to Col.

Summers sugar at $2.05 per pound in new currency, delivered at Archer. This witness testified on the 10th May, A. I>. 1863. The price of the sugar should have been fixed as of on or about the 23d of October, A. D. 1863. Between those two dates there is a lapse of about five months. There is nothing in the record going to show that during these five months the price of sugar was the same, while on the contrary, it appears it was rising in value. The Court thinks this testimony too remote.

The witness Burnett says, he gave $1.75 a week before, which would be a week before the 10th of May, and about six months thereafter the delivery of the sugar was made. This is also too remote. The witness Allen testifies, that Ire was agent of the Commissary Department; .that at the time lie gave in his testimony, which was on the 10th May, 1864, he was instructed to give $2 per pound, delivered at the plantation.

This was almost seven months after the delivery of the sugar in question ; accordingly this testimony, without some evidence that the price was the same in the month of October preceding, is too remote. On the part of the appellee the only testimony ih the amount fixed by the local appraisers, which was on the 17th September, A. D. 1863, and the valuation by the Board of Commissioners on the 20th October, A. D. 1863.

Between the da} of the finding of the local-appraisers and the delivery of the sugar, there was a lapse of about five weeks, and the averments in the suit of the city of Savannah, which have been made evidence by the stipulation, are that sugar was rapidly rising at that time, and the current of testimony is that at no time was it falling. By the agreement it was rjiade evidence, and the Chancellor could not reject it. He was compelled, and so is this Court, to give it such weight and consideration as it is entitled to. The valuation of the Board of Commissioners comes up to on or about the delivery of the sugar.

By the said agreement of the parties it was also made evidence, and it was the duty of the Court below so to consider it, and, as we have already stated, this was persuasive evidence before the Chancellor, entitled to such weight as he in the sound exercise of his judgment might give it. The Chancellor, as appears in the decree, gave full weight and credit to the appraisement made by the local appraisers, and were it not for the fact that the record discloses, as will be seen by reference to the testimony of Mr. Dozier, that they, the appraisers, fixed the value as of on the 25th July, A.

D. 1863, the time of the impressment, instead of on the 17th of September, when they made it; and were it not for the fact, that the decree states that his Honor, the Judge in the Court below, was of the opinion that the compensation should be ascertained by the appraisement of the property on the said 25th of July, and so adjudicated, we would not send the case back for further testimony.

The testimony being so uncertain, conflicting and remote, we think the ends of justice will be best subserved by sending the case back to the Court below for further testimony in'this respect, and to decree under it as the proofs may warrant, according to the principles laid down in this opinion of the Court.

It is on consideration thereof, now here ordered and decreed by this Court, that the decree of the said Circuit Court in .this cause be and the same is hereby reversed, and that this cause be and is hereby remanded to the said Circuit Court, with instructions to take testimony and ascertain the amount of compensation to be allowed the appellant for said sugar, according to the principles and miles laid down in the foregoing opinion oí this Court, and to render decree therefor, and further, to do such acts and things as may be, necessary, and as good conscience may require.