Wilmot, J.,
delivered the opinion of the Court.
On the 1st of July, 1861, Albert Brown, of Kingston, N. H., entered into a contract with Major Morris S. Miller, quartermaster United States army, acting for and on behalf of the United States, by which said Brown was hound to make and deliver to the United States one hundred six-mule wagons, according to specifications contained in said contract; forty of which were to he completed and ready for delivery by the 31st of July, 1861, and the remaining sixty on the 31st of August following; the United States to pay for each wagon completed and delivered, one hundred and forty-one dollars. The petitioner avers that he completed tmd delivered the one hundred wagons, made in all respects in conformity with the contract, and now claims payment for the same; which payment having been refused at the quartermaster's department, he comes into this, court seeking to recover the sum of $14,100, the contract price of said wagons.
" By the contract it was stipulated that the work should be inspected from time to time, as it progresses, by an officer or agent of the quartermaster's department, and none of it shall be painted until it shall-have been inspected and approved by said officer or agent authorized to inspect it. When finished, painted, and accepted by an officer or agent of the quartermaster's department, and delivered as herein agreed, they shall be paid for." •
On the same day of the contract, the quartermaster, Miller, addressed to Brown, the contractor, the following letter :
Portland, Maine, July 1, 1861.
Sir : The wagons to he manufactured under your contract with the United States, of this date, should be shipped, when ordered by the Quartermaster General, on bills of lading or railroad receipts taken in duplicate; one to be sent by you to the consignee, the other to be sent with your certificates of inspection and bill of wagons to the Quartermaster General. The bill of lading is proof of delivery.
I am, very respectfully, your obedient servant,
MORRIS S. MILLER,
• Major, Quartermaster.
Albert Brown,
Contractor, Kingston, N. H.
Quartermaster Miller also on the same day addressed Mr. W. C. Patten the letter which follows :
(Exhibit C.)
Portland, Maine, July 1, 1861.
Sir : Having this day contracted for one hundred wagons for the United States, to he manufactured at your town, I have to request that you will inspect the same for the government.
The material should be inspected in the rough, and the wagon, when made, before it is painted. You should give for those which pass inspection a certificate stating that you have duly inspected the wagons under Mr. Brown's contract, and that they agree in every particular with the terms thereof.
You will he paid seventy-five cents for each wagon so inspected.
I am, very respectfully, your obedient servant,
MORRIS S. MILLER,
Major, Quartermaster U. S. Army.
~W. C. Patten, Kingston, N. U.
The inspector of the wagons was here appointed, and the manner of the delivery prescribed. Upon the inspection and approval of the wagons, and the delivery of them to the railroad company, we cannot see why payment should be refused at the quartermaster's department.
On the 28th of August, 1861, Mr. W. 0. Patten gives the following certificate of inspection and approval of the wagons :
(Exhibit D.)
State of New Hampshire, Rockingham County,
Kingston, August 28, 1861.
I hereby certify that, after due examination of stock and materials while in process of manufacture, and of the same when completed, I declare the wagons built by Albert Brown for the United States government to be made of good stock, and in accordance with the specifications laid down in the contract made July 1, 1861, between said Brown and Major Morris S. Miller.
WILLIAM C. PATTEN, Inspector.
By letter of General Meigs, Brown was directed to send the wagons to Perryville, Md., consigned to Captain O. G. Sawtelle, assistant quartermaster, and they were accordingly so sent — forty on the 17th, and sixty on the 2Sth of August — and railroad receipts taken therefor. After the arrival of the wagons at Perryville, Captain Sawtelle had another inspection made of them, and reported that they were unfit for service, and wholly worthless to the United States, and thereupon General Meigs ordered that payment be not made.
It is very clear that the United States is concluded by the inspection and approval of Patten, unless deceit and fraud were practised on him by Brown, or there -was collusion between Brown and the inspector to defraud the government. While there is evidence in the case going to show that the workmanship of these wagons was bad, the material poor and unfit for use, the iron-work small and light, it is not, nor can it be, pretended that the evidence establishes fraud or concealment on the part of Brown, or collusion between him and the inspector to practise a cheat upon the government; and clear and strong evidence of this can alone defeat or affect the claimant's right of recovery. We have been impressed with the evidence of Hon. Oakes Ames, which is most positive and direct, specifying particulars wherein the workmanship and material were bad and imperfect, and such as rendered the wagons unfit for government service. While this evidence of Ames is met and attempted to be overthrown by several witnesses who have every means of accurate knowledge, and who testify generally that the wagons were of good material and make, and compared favorably with other wagons received and used by the government, we are still inclined to think that they were not in all respects such as the contract required. But with the question, whether the wagons were or were not in -strict conformity with the specifications and requirements of the contract, we are not to deal. They were inspected and approved by the agent appointed by the government; they were delivered as instructed, by a delivery to the railroad company at Kingston, consigned to Captain C. G. Sawtelle, Perryville, Md. If the inspector appointed to inspect these wagons was incompetent to a proper performance of that duty, or if he gave to the wagons a careless and. negligent inspection, the government must abide the consequence, and cannot withhold payment after the delivery of the property to its agents, because upon a subsequent and more careful examination it is found they are inferior to the requirements of the contract. In common justice, the government, upon refusal to receive the wagons at Perryville, should have offered to return them, or have given Brown notice that they were there subject to his order and disposal; neither of which was done, but the wagons were permitted to lie all the winter exposed to the weather, and must, of necessity, have suffered injury and depreciation.
Mr. J. J. Coombs for the claimant.
Mr. J. J. Weed, Assistant Solicitor, for the government.
It is considered and adjudged by the court that the petitioner have and recover from the United States the sum of fourteen thousand and one hundred dollars, and it is ordered that judgment be entered in favor of said petitioner, Albert Brown, against the United States for the aforesaid sum.