DRAKE, Ch. J.,
delivered the opinion of the court:'
This case differs in no essential particular from that of William S. Shrewsbury, just decided. The terms of the contract-are the same as in that case, and the only difference between the two cases is that in this five of the claimant's trains went via Nebraska City, Kearney, Cottonwood, Denver, and Pueblo to Fort Union, and therefore did not travel either the Eaton or the Cimarron routes. But as the claimant was paid for those five trains the same distance as for those which went by the Raton route, and fails to show that the distance they traveled was any greater than that for which he was paid, he has no claim on their account.
Nor has he any claim for additional compensation for the transportation by the Raton route, for he fails to show what quantity of supplies he carried over the "wet route" and what quantity over the "dry route" between Fort Zarah and Fort-Dodge, and what quantity went by Maxwell's ranch, and what quantity went by the shorter road east of that ranch 5 and there is, therefore, no sufficient basis laid for any judgment in his favor.
A motion was made, as in Shrewsbury's case, to remand this case to the general docket for further evidence; which, on the grounds stated in that case, must be overruled.
This case, however, differs from that of Shrewsbury in the matter of the counter-claim in this, that the court has found affirmatively that five of - the claimant's trains went over the Cimarron route and carried 453,887 pounds, for the transportation of which he was paid as for 735 miles traveled, when, in fact, the travel was only <370 miles. He therefore charged and was paid for 65 miles more than his trains traveled, and the amount of the overpayment on . that number of pounds was $5,812.02. Dpon the question of the right of the defendants to recover under the counter-claim the court is divided in opinion, and there can, therefore, be no recovery thereunder.
The judgment of the court is that the petition and the counterclaim be both dismissed.