The appellant brought this action in the court of claims to recover from the United States the sum of $125,000, with interest from March 1, 1867. The petition having been dismissed, the question upon this appeal is as to the liability of the United States to any judgment in behalf of the appellant. The facts found by the court of claims, and upon which the correctness of the judgment below must depend, are as follows:
The appellant, in February and March, 1867, was a national banking association, having its place of business in the city of Boston, Massachusetts; and there was in that city a firm of brokers under the style of 'Mellen, Ward & Co.,' the junior member of which was Edward Carter. At the same time, George D. Whittle was the chief clerk in the office of the assistant treasurer of the United States, in Boston, having its general management, and Julius F. Hartwell was disbursing clerk or paying teller. Prior to the twenty-eight day of February, 1867, Mellen, Ward & Co., acting through Carter, succeeded in inducing Hartwell to take out of the sub-treasury, at various times, and to place in Carter's hands, large amounts of money belonging to the United States, until, first and last, the sum so abstracted aggregated a million to a million and a quarter dollars. This money was used by Mellen, Ward & Co. in stock speculations. About the middle of February, 1867, the amount so obtained by Carter being then very lare, Hartwell informed him that in the use of the public money the were guilty of a crime. This, it is found by the court below, was the first information Carter had of the criminal character of these transactions.
Between the middle of February and the first of March, 1867, several conversations were held between Carter and Hartwell, in which in former expressed his purpose to make the latter's money right for the examination of the sub-treasury, which was expected to take place on the first of March, upon Hartwell's solemn assurance that he would let him have the money out of the sub-treasury again on the second of March, after the examination should be over, when Carter would repay the parties the moneys he had obtained, and, selling all the stocks and securities his firm held, replace as much as possible of the money in the sub-treasury, so as to reduce the loss to the smallest possible amount. Carter promised Hartwell that he would return all the money before the first of April, not again to come out of the sub-treasury. During the period within which those conversations between Carter and Hartwell occurred, the latter knew in a general way the extent of the resources of Mellen, Ward & Co., and how they were using the money he had let Carter have.
On the twenty-eighth of February, Carter returned to Hartwell all the money the latter had let him have, except the sum of $157,000, which the former promised to return to him the next morning. Among the funds so returned were United States gold certificates to the amount of $580,000. On the afternoon of the same day, Hartwell made known to Whittle that he had been loaning to Carter the funds of the government, and that all had been returned except about $150,000. He told Whittle that the money had been paid out to Carter, from time to time, to assist in stock speculations; that it was paid back again to tide over the monthly examination; that he had promised Carter that the money should be repaid to him the following day; and had told him that he would ask Whittle's consent that the money go back to him again. Whittle told Hartwell that it was an impossibility to let the money go back to Carter, and that any deficiency must be paid in before 10 o'clock the next morning.