Chouteau v. United States

• Decision Date: 01 October 1877
• Citation: 95 U.S. 61,24 L.Ed. 371
• Parties: CHOUTEAU v. UNITED STATES
• Court: U.S. Supreme Court

95 U.S. 61

24 L.Ed. 371

CHOUTEAU v. UNITED STATES.

October Term, 1877

APPEAL from the Court of Claims.

On the ninth day of July, 1863, Charles W. McCord entered into a written contract for building at St. Louis an iron-clad steam-battery, which was built and delivered, and was called the 'Etlah.' Complete specifications for its construction were part of the contract; and the United States agreed to pay for the battery the sum of $386,000. The contract also provided tha the Navy Department might make alterations and additions to the plans and specifications at any time during the

progress of the work, as it might deem necessary and proper, and should pay any extra expense caused by such changes, at fair and reasonable rates, to be determined when the changes were directed to be made. It was also agreed that the battery should be completed and delivered within eight months from the 24th of June, 1863, and that for every month that the delivery might be made earlier than that time McCord should receive $4,500, and for every month later he should pay a like sum.

The vessel was not finished ready for delivery until November, 1865, more than twenty months after the date fixed by the contract; but the Court of Claims found that her completion within the stipulated time was prevented by the United States, and that the cost of the work required by the contract was, owing to the increased price of materials and skilled labor, enhanced $118,283.20 above the sum originally specified. Many and important changes were made in the plan and specifications for the battery by the bureau of construction and repair of the Navy Department; but no agreement as to the additional cost of the work was made, as the contract provided for, except in some matters not now in controversy.

This extra work the petition alleges was of the value of $172,273.55; and the Court of Claims so found. $116,111 was paid for it; and in this action the recovery of the difference of $56,162.55 is sought. Under the finding, the only defence to this branch of the case is that the sum paid was received and accepted as payment in full, as appears by the following voucher, certified by the auditor of the treasury for the Navy Department:——

'ETLAH.—PAYMENT ON ACCOUNT OF EXTRAS.

'NEW YORK, April 24, 1866.

'U. S. Navy Department to Charles W. McCord, Dr.

"(Appropriation: Construction and Repair.) For work done to the light-draft monitor 'Etlah,'which is extra to the contract dated June 24, 1863, being the full and final payment on all extras, and in full for all claims and demands for that work . . . . .$31,114.00

Less amount paid E.W. Barstow & Son, as per

order.................... $605.65

Outfits and equipments called for by the

contract, but not furnished. 3,852.18

---------

$4,457.83

---------

$26,653.17

'I certify that the materials and labor which are extra to the contract dated June 24, 1863, put upon the vessel 'Etlah,' built by Charles W. McCord, amount in value to $116,111 (certificates having been previously given for $85,000), and they are according to directions which have been given from time to time.

'ROBERT DANBY,

'General Inspector Steam-Machinery for the Navy.'

'Approved:

'F. H. GREGORY,

'Rear-Admiral Superintending'

'NAVY DEPARTMENT,

'BUREAU 'CONSTRUCTION,' &C.,

'$26,653.17.]

'April 26, 1866.

'Approved in triplicate for twenty-six thousand six hundred and fifty-three dollars and seventeen cents, payable by the paymaster at New York.

'JOHN LENTHALL, Chief of Bureau.'

'PAYMASTER'S OFFICE, U. S. NAVY,

'29 BROADWAY, NEW YORK, May 11, 1866.

'Received of J. C. Eldredge, paymaster, twenty-six thousand six hundred and fifty-three 17/100 dollars, in full of the within bill, and have signed duplicate receipts.

'$26,653.17.]

CHARLES W. McCORD,

'Per GILMAN, SON & CO., Att'ys.

'1,887. 21,519 B₂.'

'I certify that the above is a true copy of the voucher on file in this office.

'S. J. W. TABOR, Auditor.'

The powers of attorney under which the voucher was signed by Gilman, Son & Co. are as follows:——

'Know all men by these presents, that I, Charles W. McCord, of St. Louis, in the State of Missouri, have made, constituted, and appointed, and by these presents do make, constitute, and appoint Gilman, Son & Co., or either member of said firm, in the city of New York, my true and lawful attorney, for me and in my name, place, and stead, to collect from the navy agent or authorized officer of the United States government all payments due or to become due to me for building an iron-clad vessel at St. Louis, Missouri, named the 'Etlah,' as per contract dated 24th June, 1863, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof.

'In witness whereof, I have hereunto set my hand and seal the twenty-fourth day of November, in the year 1863.

'CHARLES W. McCORD. [SEAL.]

'Sealed and delivered in the presence of

'THOMAS L. THORNELL.'

'STATE OF NEW YORK, County of New York,

'Be it known, that, on the twenty-fourth day of November, 1863, before me, a notary public in and for the State of New York, duly commissioned and sworn, dwelling in the city of New York, personally came Charles W. McCord, and acknowledged the above letter of attorney to be his act and deed.

'In testimony whereof, I have hereunto subscribed my name and affixed and seal of office the day and year last above written.

'THOMAS L. THORNELL, Notary Public.'

[Internal-revenue stamp, one dollar.]

'Know all men by these presents, that Charles W. McCord, of the city of St. Louis and State of Missouri, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Messrs. Gilman, Son & Co., of the city of New York, my true and lawful attorney, for me and in my name, and for my use, to ask, demand, sue for, recover, and receive all such sum or sums of money, debts, goods, wares, and other demands whatsoever which are or shall be due, owing, payable, and belonging to me, by any manner or means whatsoever; especially to receive any payments that are and will be due me by virtue of a contract entered into with the Navy Department to build a light-draft monitor named 'Etlah,' said contract bearing date June 24, 1863, for which I am to receive, upon the full compliance of said contract, the sum of $386,000, in eight equal payments, the Navy Department reserving twenty-five per cent on such payments until completion and reception of said vessel: giving and granting unto my said attorneys by these presents full power and authority in and about the premises to have, use, and take all lawful ways and means, in my name, for the purposes aforesaid; and upon the receipt of any such debts, dues, or sums of money (as the case may...