ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.
MR. JUSTICE HARLAN delivered the opinion of the court:
The National Home for Disabled Volunteer Soldiers, a corporation existing under the laws of the United States, brought this action against the plaintiff in error in the Supreme Judicial Court of Massachusetts to recover the sum of $15,000 with interest from November 20, 1879.
The defendant denied each allegation in the declaration contained, and, also, averred that he had paid the plaintiff in full all sums he ever owed it, due accord and satisfaction having been made. He filed, in addition, a declaration in set-off, stating that he was directed by the Board of Managers and Directors of the Home to act as its treasurer, which it was not his official duty to do; that he continued to act in that capacity until the expiration of his term of office as a Manager; that
his service as such treasurer was very onerous and responsible, he having collected, invested, reinvested, taken charge of and paid out, very large sums of money, in the aggregate more than ten millions of dollars, and kept the records and accounts and examined the vouchers thereof; and that he was relieved from that duty and service at his own request after ceasing to be a member of the Board. He claimed just and proper compensation for his services in that behalf.
Upon the petition of the defendant the case was removed for trial into the Circuit Court of the United States upon the ground that the plaintiff was a corporation created by an act of Congress, and the suit was, therefore, one arising under the laws of the United States. 18 Stat. 471, c. 137; Pacific Railroad Removal Cases, 115 U.S. 1.
After the removal of the cause the plaintiff filed an answer to the declaration in set-off, denying that the defendant had any legal claim for services as acting treasurer or otherwise, and averring that there never was any agreement or understanding between the Board of Managers and the defendant that the latter should receive compensation for services rendered or to be rendered, or duties performed or to be performed, by him in connection with the Home; that no salary or other compensation therefor was ever determined or fixed by the Board; and that the defendant never made any claim or demand upon the plaintiff for compensation for such services prior to the filing of his declaration in set-off.
The evidence on behalf of the plaintiff tended to show the following facts: The defendant, as acting treasurer of the Home, paid, May 7, 1879, to William S. Tilton, Manager of the Eastern Branch Home, the sum of $15,000 to be used for the purchase of leather for the manufacture of boots and shoes at the Eastern Branch, and charged the same as so paid out in his accounts. In payment of that advance Tilton, October 13, 1879, sent to Butler a sight draft for $9838, drawn by the latter on his financial agent and book-keeper, George J. Carney, payable to the order of Pitkin & Thomas, and sent by the defendant, as acting treasurer, to that firm in payment for clothing furnished by it to the Home. Pitkin & Thomas endorsed
the draft and delivered it to Tilton in payment of boots and shoes purchased of him by them. Tilton sent it together with his receipt for $5162, to Carney. The receipt was in these words: "Togus, Me., Oct. 13, 1879. Receipt for money this day received from Gen. B. F. Butler, acting treasurer of the National Home for Disabled Volunteer Soldiers, $5162. William S. Tilton, Acting Treasurer."
The letter to Carney, containing the draft and receipt, was as follows:
"TOGUS, ME., October 13, 1879.
"Col. GEORGE J. CARNEY, Financial Agent, Lowell, Mass.
"MY DEAR COL.: The General has requested me to arrange for the settlement of $15,000 which he loaned me for the purchase of leather.
"I enclose Gen. Butler's draft on you at sight $9,838
And my treasurer's receipt 5,162
"The Home owed me a balancehat account the repayment thereof, but entered both transactions in his "shoe-shop books."
It also appeared in the evidence introduced by the plaintiff that the $5162 was never in fact paid to Tilton, but that subsequently defendant gave Tilton an invoice for that sum the same as if it had been paid, and that Tilton took the same up on his regular account with the Home and accounted for it; that the defendant's accounts as acting treasurer were rendered quarterly on the last days of December, March, June and September, and in those for the quarter ending December 31, 1879, no credit was given the Home for the draft and recept sent by Tilton, but it was therein charged, under date of November 20, 1879, with the payment to Pitkin & Thomas of
the sum of $9838, and the payment to Tilton of the $5162; and that in the defendant's account book, kept by Carney, in connection with the entry of payment by the defendant, November 20, 1879, of the sums of $9838 and $5162 to Pitkin & Thomas and Tilton, respectively, was the following memorandum in Carney's writing: "No money passes from G. J. C. to settle these; they offset an advance to Tilton."
Some letters that passed between the defendant and his successor in office, Gen. Franklin, were put in evidence, ...