“ That there being no valid express contract founded upon advertisement or military exigency for the sale and purchase of the hay, the government was not liable for the entire quantity sold in November, 1864, at $38.50 per ton; but was liable for the hay taken and used, at its fair and reasonable value at the time of taking; and responsible for the wasteful and destructive manner in which it was taken and used; and that Gill should recover for three-fourths of the entire quantity ricked, at the rate of $45 a ton. ”

“ During the same month the military inspector of the district of Colorado, anticipating a short supply of hay for the winter, ordered the quartermaster of Fort Lyon 'to take the hay belonging to A. J. Gill and use it for government stock.' After this Gill exercised no control over the hay. He left Colorado on the 4th February, 1865, on business of his own, and did not return until the summer of 1866. In consequence of Indian troubles then existing it was unsafe for small parties to remain outside of government posts, and he was compelled to leave the hay without any one in charge of it ”

“ If judgment was to be given for the owner at all it should have been at the rate of $38.50 per ton, and no more. It was improper for the court to rate it as worth $45 per ton.
Messrs. T. J. Durant and C. W. Hornor, contra.
Upon the facts found, we think the judgment should have been for the value of the hay in November, 1864, to wit: $38.50 per ton, instead of $45, its value during the winter. ”