Adams v. United States

2 Ct. Cl. 70 | Ct. Cl. | 1866

Lead Opinion

Loring, J.,

delivered the opinion of the Court.

In this case the petitioner claims balances of accounts which he alleges to be due to him on contracts for the construction of mortar-boats and steam-tug boats, made with him on the part of the United States by Major General Frémont, while in command of the military department of the west; and he counts on the special contracts above referred to, and on a quantum meruit for labor and materials in furnishing the boats.

We find tbe facts to be: •

1st. That on tbe 17tb of June, 1861, tbe quartermaster’s department issued proposals for constructing gunboats on tbe western rivers, which stated that specifications would be prepared, and that “plans submitted by builders will be taken into consideration.”

2d. That in July, 1861, tbe petitioner submitted to the Quartermaster General a plan and specification for tbe construction of mortar-boats, to be used upon tbe western rivers, together with a detailed estimate of their cost, and a proposal to construct them.

3d. That tbe quartermaster’s department, under its proposals for gunboats above referred to, contracted with James B. Eades for seven gunboats, which, with three others then afloat, would consume, it was believed, very nearly tbe whole, if not tbe whole appropriation then made, and applicable to tbe purpose.

4th. That tbe plan and specifications for mortar-boats above mentioned were examined at Washington by tbe Quartermaster General, tbe Assistant Secretary of tbe Navy, and Major General Frémont, and tbe proposal of Mr. Adams to construct them was considered, but not adopted by tbe quartermaster’s department. And the subject was referred by tbe Quartermaster General to General Fremont, as be was to have tbe command of tbe military operations on tbe Mississippi, and if be thought these mortar-boats would be useful, be could communicate to tbe War Department, and take such action as might be decided upon.

5th. That on tbe 31st July, 1861, the Secretary of Wai’, by an order addressed to Knapp, Rudd & Company, at Pittsburg, directed that sixteen nine-inch guns made for tbe navy should be forwarded with tbe greatest despatch to Major General Frémont, at St. Louis; and that thirty thirteen-inch mortars be made as soon as possible and forwarded to tbe same address, together with shells for both guns and mortars.

6th. That on tbe 24th of August, 1861, tbe petitioner submitted bis plans and proposals for mortar-boats to Major General Frémont, by bis direction, and offered to build tbe same for eight thousand two hundred and fifty dollars each, with iron sides, which General Frémont bad suggested; and if tbe ironed sides were dispensed with, for five thousand two hundred and fifty dollars each.

7th. That Major General Frémont accepted tbe first proposal of tbe petitioner, and directed tbe petitioner to proceed with all possible de-spatch to construct thirty-eight of said mortar-boats, with ironed sides, as described in said plan and specifications, for the sum of eight thousand two hundred and fifty dollars each, and reserved to himself tbe right to increase or diminish the number of said boats according to his judgment of the number required; and directed that Quartermaster McKinstry should have executed a formal contract in writing. Quartermaster McKinstry referred the execution of said formal contract to Captain Turnley, assistant quartermaster. The contract was written, and was signed by the petitioner, but it was not signed by Captain Turnley on the part of the United States.

8th. That the petitioner, under the proposals, acceptance, and contract aforesaid, proceeded to build and completed the said thirty-eight mortar-boats. And on the 20th day of November, 1861, Assistant Quartermaster Turnley requested flag-officer Captain Foote of the navy to direct competent officers to inspect the boats built by the petitioner, and report thereon in reference to his payment. And thereafter the Quartermaster General, on learning the completion of said boats, and that there was some difficulty about them, ordered Major Allen of the quartermaster’s department to have the mortar-boats sent down the river to receive their guns; and this was done.

9th. That on the 10th of September, 1861, General Fremont, on the part of the United States, contracted with the petitioner for four tug steamboats, to be built according to specifications set forth in a written contract therefor, and each for the sum of twenty-five hundred dollars, payable on delivery, and after inspection. And the said vessels were to be completed within thirty days, under a forfeiture by the petitioner of fifty dollars for each day’s delay on each boat, to be paid to the United States as liquidated damages. And it was ordered by General Fremont that said contract should be signed by Major Allen of the quartermaster’s department, for and in behalf of the United States, The contract was signed by the petitioner, but was not signed by Major Allen.

10th. That on the fifteenth day of September, 1861, General Fré-mont, on the part of the United States, made a second contract with the petitioner for four additional steam-tug boats, to be built by the petitioner for the same price and on the same terms and conditions as the four steam-tug' boats first contracted for, as above set forth. And General Frémont ordered that said second contract should be signed by Major Allen, for and in behalf of the United States. The contract was signed by the petitioner, but was not signed by Major Allen.

11th. That on the twentieth day of September, 1861, General Fré-mont, on the part of the United States, contracted with the petitioner that he should build cabins and pilot-houses, and put steering wheels and apparatus and windlasses on said eight steam-tug boats, and do all the necessary painting on them, and all the work necessary to put them in condition for sailing, for the sum of eighteen hundred dollars for each boat; the said eight cabins to be completed as soon as the engine work was done, or within five days thereafter. And General Frémont ordered that said Major Allen should sign said contract, for and in behalf of the United States. The contract was signed by the petitioner, but was not signed by Major Allen.

12th. That under the contracts aforesaid, the petitioner proceeded to build the eight steam-tug boats, and their cabins, pilot-houses, &c., and completed the same according to said contracts; and the boats thus completed having been duly inspected and approved, were received by the officers of the quartermaster’s department in the army commanded by General Frémont. The said eight tug-boats were for the purpose of moving and towing the mortar-boats, and were adjuncts thereto and part of the petitioner’s original plan therefor.

13th. That on the tenth day of December, 1861, the Secretary of War made to Congress the following communication:

WAR DEPARTMENT,

December 10, 1861.

Sir : I have the honor to submit herewith the report of the Quartermaster General to this department, setting forth the necessity of an early provision to meet the expense of constructing the armed flotilla on the western rivers, and respectfully invite the attention of Congress thereto.

I am, very respectfully,

SIMON CAMERON,

Secretary of War.

Hon. the Speaker of the House of Representatives.

Quartermaster General’s Office,

Washington City, December 5, 1861.

Sir : I respectfully call your attention to the propriety of early provision to meet the expense of constructing the armed flotilla on the western rivers.

Under the appropriations, amounting to $1,100,000, for gunboats on the western rivers, made by Congress at its last session, I was directed to contract for seven gunboats. The plans of these vessels had been prepared by a naval constructor, specially assigned to that duty by the Navy Department. Proposals were invited by advertisement, and it was concluded that the building, equipment, and maintenance of seven of these boats, with payment for three other gunboats, then in service, would exhaust the appropriation.

The general commanding the department of the west ordered, at St. Louis, the construction of a fleet of mortar-boats, and of several tug-boats to be used with them, and the purchase and alteration into gunboats of two river steamers, the New Era, and the Submarine. All these were ordered by him in addition to those provided for by the quartermaster’s department.

Under his orders, some money remitted to the quartermaster at St. Louis for other purposes has been paid upon the contracts for this flotilla.

The officers of the quartermaster’s department who have expended this money were bound by the orders of the general commanding in the department, and should be protected from pecuniary liability incurred in the execution of those orders.

While I am not called upon to express an opinion as to the necessity for the construction of so large a flotilla, I have no doubt that the government is bound to pay the contractors their reasonable expenditures; and I have no doubt that if armed and equipped, and well manned, the vessels will add to the strength of the army in the west, and conduce to the success of the expedition intended to open the Mississippi.

In the annual estimate from this office is au item of $1,000,000 for gunboats on the western rivers. Its early appropriation would enable the department to complete and pay for the boats under construction, some of which are in danger of being delayed at St. Louis until the interruption of navigation by ice.

It would relieve those who, in good faith, expended their labor and money upon these boats from heavy pecuniary liabilities.

I am, respectfully, your obedient servant,

M. C. MEIGS,

Quartermaster General.

Hon. SimoN CameRon,

Secretary of War.

14th. That by the act of December 24,1851, (e. 5,) Congress appropriated one million of dollars “for gunboats on the western rivers;” (32 Stat. L., 331.)

15th. That in January, 1862, the Secretary of War directed that the said thirty-eight mortar-boats built by the petitioner, and then at Cairo, should be completed for service by getting on board their armament, for which they were then ready, at the earliest date practicable; and this was done, and the mortar-boats and tug-boats were taken into the service of the United States and immediately used in the military operations on the Mississippi river.

16th. That Congress by act of July 16, 1862, (c. 45, 12 Stat. L., 547,) enacted that the western gunboat fleet, constructed by the War Department for operation on the western waters, should be transferred to the Navy Department.

17th. That on the 25th of October, 1861, the Secretary of War, by direction of the President, appointed a board of commissioners “to examine and report upon to the Secretary of War all unsettled claims against the military department of the west that had originated prior to the 14th day of October, 1861.”

18th. That on December 18, 1861, the petitioner presented to said commissioners his claims for said mortar-boats, tug-boats, and cabins, &c., in two accounts, as follows:

[First account.]

The United States to Theodore Adams, Dr.

For building 38 mortar-boats for the United States, as per order of Major General Frémont herewith attached, dated August 24,1861. $313,500 00

Deduct this amount, paid by Major McKinstry on the-

day of-. $75,000

Deduct this amount, paid by Major A. Allen, quartermaster, 7th to 32th November. 55,000

Total to be deducted. 130,000 00

Balance due. 183,500 00

And on this account the commissioners allowed the petitioner.... $75, 959 24

[Second account.]

The United States to Theodore Adams, Dr.

For building 4 hulls for tug-boats for the United States, as per contract herewith, dated September 10, 1861, by Major McKinstry,

quartermaster, at $2,500 each. $10,000 00

For building 4 hulls for tug-boats for the United States, as per contract herewith, by Major McKinstry, quartermaster, dated

September 21, 1861, at $2,500 each. 10,000 00

For building 8 cabins for tug-boats for the United States, as per contract herewith, dated September 20, 1861, by Major McKins-

try, quartermaster, for $1,800 each. 14.400 00

34.400 00

Deduct amount already paid 9,000 00

And on this account the said commissioners, deducting therefrom $5,204 from the charge for tug-boats, allowed the petitioner-$20,196 00

$25,400 00

19fcb. That on his said claims the said petitioner received from the said commissioners vouchers for the said sums of seventy-five thousand nine hundred and fifty-nine dollars and twenty-four cents, and twenty thousand and one hundred and ninety-six dollars, and signed a receipt for said two vouchers in the words following, viz: “ The undersigned acknowledge to have received the vouchers referred to and described below, which, when paid; will be in full of all demands against the United States on account of the respective claims set opposite their several names.” And the petitioner was not allowed by the commissioners to receive said vouchers until he had signed the said reciept; and he protested against such action of the commissioners, and signed the receipt and agreement under said protest.

20th. That Congress by the joint resolution of March 11, 1863, (12 Stat. L., 615) provided as follows:

“ Resoloed by the Senate and House of Representatives of the United States of'America in Congress assembled, That all sums allowed to be due from the United States to individuals, companies, or corporations, by the commission heretofore appointed by the Secretary of War, (for the investigation of military claims against the department of the west,) composed of David Davis, Joseph Holt, and Hugh Campbell, now sitting at St. Louis, Missouri, shall be deemed to be due and payable, and shall be paid by the disbursing officer, either at St. Louis or Washington, in each case, upon the presentation of the voucher, with the commissioners’ certificate thereon, in any form plainly indicating the allowance of the claim and to what amount. This resolution shall apply only to claims and contracts for service, labor, or materials, and for subsistence, clothing, transportation, arms, supplies, and the purchase, hire, and construction of"vessels.”

And the said sums of seventy-five thousand nine hundred and fifty-nine dollars and twenty-four cents, and of twenty thousand one hundred and ninety-six dollars, allowed as aforesaid by said commissioners to the petitioner, were paid to him by the United States under the said resolution.

21st. That the value to be found on a quantum meruit for the said mortar-boats (exclusive of the invention) was $6,547 60, and for the said tug-boats, cabins, &c., $3,200.

And on the facts stated, a majority of the court are of opinion that the petitioner is not barred from maintaining this action by the receipt and agreement signed by him.

And that he is entitled to recover from the United States the balance unpaid on the contracts above set forth, viz: For the mortar-boats, $107,544 76; for tbe tug-boats, cabins, &c., $5,204, amounting to the s'um of $112,748 76, for which judgment is to be entered for the petitioner, and a certificate issued to him.

A majority of the court are of opinion that by the act of December 24, 1861, appropriating one million of dollars to the gunboats on the western rivers, enacted after the communication made to Congress by the Secretary of War, December 10, 1861, submitting the report of the Quartermaster General of December 5,1861, and with a full knowledge of the circumstances and opinions therein set forth, and by the exigency of the important military operations then pending on the Mississippi river, and awaiting the means of execution, the Secretary of War was authorized, without previously advertising, to acquire to the United States the mortar-boats, and the tug-boats, which were in fact a part of the mortar-boats; and that he did this in January, 1862, by ordering that the mortar-boats should be completed, and taking them and the tug-boats into the service of the United States. And that he thereby bound the United States to pay for them, the price specified in the contracts under which they were built, because the boats were delivered to the United States under those contracts, and as the Secretary neither objected to those contracts nor proposed any other, it is to be presumed that he adopted those.

It was contended for the defendants, in the able argument of the assistant solicitor, that the petitioner was barred of his claim by the payment of the money allowed him by the commissioners, and his agreement to receive it in discharge of his whole claim. But that agreement is not shown to have been made between the parties here, who are the United States and the petitioner. The commissioners were not authorized by the United States to require such an agreement, and therefore it was not the act of the United States. The commissioners were merely appointees of the Secretary of War, and their whole authority was to examine and report to him upon the claims submitted to them, and they had no authority to adjudicate or make terms and conditions between the United States and the petitioner. When the petitioner appeared before them he thereby submitted himself to their proper authority, and no other; and he protested against the requirement of the agreement in question. Then the joint resolution of the 11th March, 1862, refers to the commissioners as appointees of the Secretary of War, and thus recognizes their authority as conferred by him, and no other; and it then declares that the amounts allowed by them shall be deemed “due and payable,” and thus recognizes their report for what it was, the evidence from a department like an auditor’s report of a debt shown in that department. But it does not recognize it as a legal judgment, or an adjudication of any sort of its own force binding on the United States, and conclusive of the rights of the parties here. The resolution does not recognize, mention, or refer to the agreement in any way whatever, and there is nothing in the case that shows that Congress ever adopted or sanctioned the agreement. It cannot be presumed that the United States sought to enforce the petitioner to accept less than was his due, or their conclusion as to that, in violation of his right to its judicial determination; and as the action of the commissioners in requiring the agreement transcended their authority and infringed upon the rights of the petitioner, the legal presumption and conclusion is that the government disclaimed it. In Story on Agency, (sec. 320,) the rule is thus stated: “Where a person is clothed with authority as a public agent, it cannot be presumed that the government justify or even excuse his violations of his own proper duty under color of authority.” If that is so, the agreement as between the parties here is not proved, hut it is disproved.

And if the agreement was proved, as stated, it would not support the defence of a compromise or an accord and satisfaction, for it would be nudum pactum and void, for want of a consideration. And it would not support the defence of a release of a doubtful claim, for there is nothing in the case to show or indicate that the claim was doubtful, or that the petitioner so considered it, for the evidence of the contract and of its performance was abundant and attainable, and the debtor-solvent.

And what is proved is, that the commissioners refused the petitioner their voucher unless he signed the agreement, and that he signed it under protest, and because he could get the voucher to which he was entitled in no other way ; and where public officers or agents condition the performance of their duty on terms they have no right to require, it is duress, and the terms are not binding on the party on whom they were thus illegally enforced.

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Dissenting Opinion

Peck, J.,

dissenting.

I am of opinion, under the circumstances shown by this record, that the contracts for the building of boats and vessels, stated as the foundation of this claim, were not authorized, and are not obligatory upon the United States.

I also think the claimant is precluded, by his submission to the Holt-Davis commission, the acceptance of its finding, and the receipts given in satisfaction, from all right to a further recovery.

It has been the policy of the government for many years to invite proposals for all structures, supplies, &c., required for its use, by advertising therefor, whenever “ the public exigencies do not require the immediate delivery of the article or articles, or performance of the service;” but when an immediate delivery is necessary, the articles or service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold, or such services, engaged between individuals. It is also directed (Brightley’s Digest, vol. 2, p. 93) that no contract or purchase shall he made, unless the same be authorized by law, or under an appropriation adequate to its fulfilment, except for clothing, subsistence, forage, fuel, quarters, or transportation; which are not to exceed the necessities for the current year. (See Opinions of Attorneys General, vol. 2, p. 257; vol. 3, p. 437; vol. C, p. 407; vol. 9, p. 407.)

Thus has the law-making power been assiduous to protect the public against a want of vigilance in its agents.

The contracts involved in this controversy do not come within any of the statutory exceptions. No immediate delivery was expected or exacted; and although the vessels to be built were expensive, no appropriation adequate to the fulfilment of the contracts or otherwise had been made.

It was assumed on the argument, with great apparent confidence, that General Frémont had been invested with such plenary powers when placed in command of the department of the west, that he might either suspend or revoke the law at his pleasure, and therefore, in his department, contracts should be held obligatory whether made conformably to law or not. To support this view, his own testimony is put in the record, from which it seems he had much the same conception of his powers; for he says he was expected and authorized to exercise any and whatever power was necessary, in his opinion, to carry out the work he was sent to accomplish, without regard to the limits conferred by his commission. These opinions of his powers he says he derived from conversations with the President, the Secretary of War, and the Postmaster General, and the reason he gives for this peculiar conclusion, was that none of these officials used any expression which implied a restriction of power; on the contrary, he says the drift of the conversation with them was to the effect that he should exercise any power required. These opinions, he added, gathered strength from' the fact that he had heard that the President had said tliat be, Frémont, bad more power tban the President himself possessed.

These delusions, which seem to have impressed General Fremont, are not of importance, except as explanatory in some degree of the ■irregularities which this record exhibits, connected with these contracts; which it is assumed derive their vigor from the exercise of his great powers. I cannot admit the authority of the three officials named, acting separately or in conjunction, to confer power on any individual■, no matter what his rank, beyond what the law authorizes. They could no more give a General, control over the law, than they could give him control over the tides, or make him “ague-proof.” The law commands, the officer executes. The established and recognized distinctions between the functions of legislative and executive powers are too precious and vital to be easily displaced. They are our guides and protection, and upon them depends in a great measure the safety of our institutions. The only exception to the supremacy of the laws is in the face of contending armies, where the contest is proximate and the exigency imminent. It is the contact and peril, not the pomp of war, that makes the law silent. When the danger is distant, when what is needed to be done can be accomplished in conformity to law, its mandates must be observed, or the obligation attempted to be created without such observance, and which the law is invoked to enforce, may be found defective under its tests.

No emergency is shown to have existed for the construction of these vessels which would justify an omission to advertise, inviting competition for that object. I do not discover any reason in the record, why the several vessels built by claimant could not have been got ready in as good time as they actually were, without any departure from the rules and regulations which the law prescribes.

It is insisted that the law which requires public notice before contracts can be made, is merely directory to the officers, and does not affect the validity of the obligation. The government necessarily conducts all its business by the instrumentality of agents, who derive their powers from the law, which is their only authority; and whoever deals with them must take notice that they have no other warrant than what the law confers, and that whenever the law is transcended, their action is null. Why should not the rules which govern agencies apply equally to public and private agents? In transactions between individuals, whoever deals with an agent is bound to see that he acts within the scope of his authority, if he desires that the principal shall be held; and I see no reason for excusing a party from using equal diligence when he negotiates with an agent of the public. The fact that an officer may be in some way punished for not obeying the directions of the statutes, when he is acting for the government and involving it in pecuniary liabilities, would be but a poor equivalent for the losses he may occasion. The intention of Congress in prescribing rules for the transaction of the business of the government, and giving directions in that regard, was rather to protect the public and establish safeguards for the treasury than to punish delinquent officers, against whom the same statutes declare no punishment nor fix any penalty.

The citizen, who for his own gain co-operates with an officer in making a contract which is not in conformity to law, should not be permitted to shield himself, and claim not only immunity, but profit, by interposing the officer as an appeasing sacrifice to the law. When both have been delinquent participators in an unauthorized transaction, the citizen cannot excuse himself by saying, “ True, j'our agent has contracted with me in your name, in disobedience of public law, of the existence of which I am not permitted to be ignorant. Punish his transgression as much as you please, but nothing must be done to prevent my receiving the full benefit of our joint wrong-doing.” This would indeed be softening the way of one of the transgressors in a manner incompatible with reason and justice. The statutes regulating the making of contracts, in my opinion, are alike obligatory upon the citizen and the officer; prohibitory, as well as directory to both; a warning as well as a caution; and the fruits of the disobedience of them should not be all sweetness to one, and all bitterness to the other.

The Quartermaster General had advertised for proposals for the building of some of these boats, and this claimant made his bid, which was referred to General Fremont, not that he should close a contract, but that he should “ communicate with the War Department, and take such action as might be decided upon.” Instead of communicating with the War Department, as he was requested to do, General Fré-mont accepted a different proposal, which added largely to the cost of each boat, increasing the expense beyond what was originally contemplated — no competition having been invited by him for the construction of boats on the new plan, notwithstanding the increase of cost. The new proposal was by General Fremont referred to his quartermaster, with a direction to have more formal papers prepared, which was not done. The claimant, nevertheless, proceeded to build the boats, and does not explain why he did so, without obtaining the “ more formal papers,” otherwise than by showing that the quartermaster who was directed to prepare them, declined the duty, and referred him to another, who, in his turn, failed or refused to act.

Another peculiar feature of this transaction, is that the number of boats to he built under it was to be at the discretion of General Fremont, not to exceed thirty-eight in all j and although it was never indicated how many of these boats were required, the claimant proceeded to build the largest number.

Similar difficulties attended the execution of the contracts for the tug-boats. No quartermaster was willing to execute any of them. Contracts were prepared for execution by claimant or some other person, but they remained incomplete in spite of the orders from General Frdmont that they should be executed, which order it is to be observed, was obtained long after the work was commenced.

The statement of these numerous irregularities, which are not by any means all that might be presented, furnishes abundant reasons why the claimant should ask, as he did, when seeking for redress, that the commissioners before whom his claim was pending should deal liberally with him. His claim was not liquidated, depending upon computation to fix the amount due, but it was involved in uncertainty and doubt. No one of the numerous contracts upon which his demand rested had been executed. Work had been done and materials furnished by claimant, and he had received money on account, hut the sum to be paid him as the balance due rested in uncertainty, and was to be determined upon just and equitable principles. Some of the tug-boats, it appears from the certificate of Quartermaster Turuley, were actually completed and delivered not only before contract executed, hut before any order was obtained even for the execution of a contract for their construction.

The foregoing statements of the unusual course pursued in the case of this claimant, which it is shown was but one of a number of similar cases, will explain the necessity for the appointment of a commission of inquiry, for the benefit of all parties. Although the commission was in the first instance to inquire only, its powers were subsequently extended, so that its conclusions were recognized by the government as final, and payments were made upon its orders and findings. Creditors of the government upon ascertaining that difficulties were intervening between unauthorized contracts, allowing extravagant prices, and the receipt of money, became anxious for an adjustment of their demands, and availed themselves of the assistance of the commissioners to obtain settlements.

The commission when organized established rules, and in its proceedings conformed as nearly as practicable to the usages of courts of justice, and after bearing proofs, decided. The commission did not exercise compulsory, powers, but only heard those who voluntarily sought its assistance, and required that all should take an oath as preliminary to a hearing. Those who did not submit themselves to the authority and inquiry of the commission suffered no loss by the failure to do so. Every redress or remedy which belonged to the creditor before the appointment of the commission remained with him as fully after, as it did prior to its organization.

The United States consented on their part to submit the adjustment of any claims against the government, to the commission, which the creditors on their part might desire to have submitted, agreeing to be bound by the decision.

This claimant, with other creditors, presented his case to the commission for its decision; he took the oath, required as a preliminary step; he was examined in support of his claim; and on the thirteenth of January,’ 1862, appealed to the commission by letter, beseeching it to “ deal liberally with him.” He did not demand a specific sum; he did not insist that his debt was liquidated; he did not deny that his claim was open to dispute, nor the right of the commission to reduce the amount, but he submitted himself to whatever decision it might make.

After a decision had been made, when he desired to receive the benefit of it, and obtained his vouchers for that purpose, he protested against the form of the receipt required for the protection of the government; but'notwithstanding this protest, he subsequently demanded and accepted the money which the commission had allowed, without protest. Suppose the claimant had retained his voucher with the receipt upon it, and had not presented it for payment, his right of recovery would not have been impaired if he could show that duress or other improper means had been used to obtain his signature; or had he declined to give the receipt, if the finding of the commission was not to be binding, as he now insists; his rights and remedies would be as complete now as ever. This court would still have been open to him; and had he chosen to seek a remedy here, the receipt upon the voucher; if he could show that it had been obtained by duress and without consideration, would not defeat a recovery. Had his voucher been withheld from him because of his refusal to sign the receipt, this court is authorized to procure it, or such other evidence from any department where it might be deposited, as would obviate any difficulty in that regard, and almost daily exercises similar authority.

Notwithstanding his protest, the claimant afterwards accepted the money awarded him, with a full knowledge that if he took it at all, it was upon the express condition, that it should be in satisfaction of his whole demand.

He was forewarned, not only by the terms of the receipt, but by the whole action of the commissioners, if he accepted the money, that it was upon the express stipulation that his claim was to be barred forever. The claimant was not laboring under any mistake of law or fact; he had ample time for deliberation; the whole transaction was without any appearance of fraud, and the claimant having made his choice, should be hound by it.

I am aware of the rule of law which declares that the receipt of a part of a debt due, even under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the unpaid balance; hut I think the rule only applies to cases where the claim is for a fixed and liquidated amount, capable of ascertainment by arithmetical calculation, and in no respect open to dispute; but not to a case like that under consideration, arising out of unexecuted contracts, where the right of recovery depends upon a quantum meruit.

In support of the view I take of this ruling, I refer to the following decisions: McGlynn v. Billings, 16th Vermont Reports, 329; McDaniels v. Lapham, 21st Vermont, 222; Same v. Same, 26th Vermont, 230; Wikinson v. Byers, 1st Adolp & Ellis, 106. In the case cited from the 21st Vermont, the case of McGlynnv. Billings is commented upon as follows : “ In that case the plaintiff and defendant met for the purpose of making a settlement, and, having examined their accounts, they disagreed as to the balance due to the plaintiff from the defendant. The defendant then drew an order in favor of the plaintiff upon a third person for the sum he admitted to be due, and offered it to the plaintiff as the balance, his due. The plaintiff refused to receive the order, and claimed a larger sum as being the.amount the defendant owed him. The defendant then gave the order to one Hanley, who was present, and directed Hanley to deliver the order to the plaintiff when he would receive it as the balance due to him. The plaintiff subsequently took the order from Hanley, but at the same time declared that he did not receive it in full for the balance due him from the defendant, and brought his suit to recover the balance. The auditor reported that there was still a clear balance due to the plaintiff above the amount of the order. In that case, this court held that the acceptance of the order by the plaintiff under the circumstances operated as a full discharge of all his claims, although he expressly declared he did not so receive it. And we are satisfied that that case was decided upon correct and established legal principles.” In the casein the 21st Vermont, the court says: “It would seem to follow, as a necessary deduction from this well-established rule,” (a rule in relation to tenders,) “that when the party makes the offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and attaches to his offer the condition that the same, if taken at all, must be received in full or in satisfaction of the claim in dispute, if the other party receive the money he takes it clogged with the condition which the other party has attached to it, and is thus bound by its fulfilment.”

When the boats built by claimant were taken into the possession of the government, his claim for building them was before the Holt-Davis commission, and the agents of the government, if they are presumed to be informed on the subject, might well infer either that the boats had been paid for, or if not, that the claimant would be satisfied with whatever the commission might allow for them.

The boats were useless to the claimant; he was seeking his pay for them, and his delivery of them to some one of the multitude of officers then in existence, should not be held to be a ratification of contracts, of which the officer accepting had probably never heard. A rule which would hold an individual to the ratification of contracts, who acts in his own right, with a full knowledge of their terms and obligations, stimulated all the while by an active personal interest; would be very unjust as applied to the government, which acts always by agents, who are frequently being changed, who are without personal knowledge, and who are presumed to be without pecuniary interest. What is offered to them as public property they accept as such, intending only to receive what is delivered, not pretending to any knowledge of title or obligations, or supposing that they thereby ratify anything.

The reasons which should hold an individual to the affirmance of a contract; are wanting in government transactions. I am unable to find in the act approved December 24, 1861, which is in these words, “ that the sum of one million of dollars be, and the same is hereby, appropriated, out of any money in the treasury not otherwise appropriated, for gunboats on the western rivers,” any recognition by Congress of the transaction involved in this controversy. Gunboats had previously been built on the western waters, and others were then building; the boats built by this claimant wore not gunboats, nor were they so called. The application to Congress for an appropriation to pay for gunboats, &c., based upon the letter of the Quartermaster General, included the boats built by Adams, which were designated in the letter as the “armed flotilla;” but Congress limited tbe appropriation, to tbe payment for gunboats only, omitting entirely all allusion to tbe “ armed flotillahence, if any inference is to be drawn from tbe action of Congress, it is against a recognition, of tbe contracts set up by Adams. Tbe Quartermaster General bad previously repudiated tbe contracts, and had referred all tbe questions connected with them to the commission for settlement; and any appropriation asked for by him could only have been intended to satisfy such sums as tbe commission might award. Adams, if we may judge from bis letter to the commissioners of 19tb of January, 1862, did not expect any relief except through . tbe commission. If Congress designed, by tbe act referred to, to recognize tbe contracts set up by Adams, neither he nor tbe Quartermaster General so understood it. Adams certainly did not, or be would not, twenty days after tbe passage of tbe act, have been appealing to the commissioners to deal liberally with him in regard to them. The relation of tbe act of appropriation above quoted to tbe transaction with this claimant is no more apparent to my mind than it was to his. I do not see any connection between them, and I am not willing to accept a construction of this statute which is not consonant to its letter or intent.

I think that judgment should be for the defendants.