Hawkins v. United States

• Decision Date: 01 October 1877
• Citation: 24 L.Ed. 607,96 U.S. 689
• Parties: HAWKINS v. UNITED STATES
• Court: U.S. Supreme Court

96 U.S. 689

24 L.Ed. 607

HAWKINS v. UNITED STATES.

October Term, 1877

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. Enoch Totten for the appellant.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Verbal agreements between the parties to a written contract, made before or at the time of the execution of the contract, are in general inadmissible to vary its terms or to affect its construction, the rule being that all such verbal agreements are to be considered as merged in the written instrument. But oral agreements subsequently made, on a new and valuable consideration, and before the breach of the contract, in cases not falling within the Statute to Frauds, stand pon a different footing; as such agreements may, if not within the Statute of Frauds, have the effect to enlarge the time of performance, or may vary any other of its terms, or may waive and discharge it altogether. Emerson v. Slater, 22 How. 28; Goss v. Nugent, 5 Barn. & Ad. 58; Nelson v. Boynton, 3 Met. (Mass.) 396; Harvey v. Grabham, 5 Ad. & E. 61; Leonard v. Vredenburgh, 8 Johns. (N. Y.) 28; Chitty, Contr. (10th ed.) 105.

Authority was conferred upon the Secretary of the Treasury, by the act of the 10th of June, 1872; and he was therein directed to cause to be erected a suitable building at Raleigh, North Carolina, for the use and accommodation of the courts of the United States, post-office, and other offices of the government, with fire-proof vaults extending to each story of the building. 17 Stat. 390.

Pursuant to that authority, the contract in question was made by the superintendent appointed for the purpose, with the plaintiff, to furnish and deliver, on the site for the building, one thousand cubic yards, more or less, of rubble-stone, on his bid for the same; it being covenanted and agreed between the parties that the 'contract shall be valid and binding when approved by the Secretary of the Treasury, and not otherwise, and that no departure from its conditions shall be made with out his written consent.'

By the terms of the contract, the rubble-stone was to be in every way equal to the sample furnished with his bid: one-quarter to be bond-stones, of a length equal to the thickness of the walls, and to contain not less than ten cubic feet; and no stone to contain less than one and one-half cubic feet, or to be less than twelve inches thick, to be delivered at such times and in such quantities as may be deemed necessary by the superintendent. Monthly payments were to be made, as the work progressed, for ninety per cent of the stone delivered, at five dollars per cubic yard; it being stipulated that ten per cent should be retained until the completion of the contract and the approval and acceptance of the same by the superintendent.

Leave to amend having been granted, the petitioner enlarged his charge for work done, and claimed that there was a balance due to him of $8,962.50, after deducting cash paid, and the rubble-stone quarried and rejected before it was shipped. Hearing was had, and the court rendered judgment for the plaintiff in the sum of $1,566.50, as appears by the transcript. Immediate appeal was taken to this court by the plaintiff; and he assigned the errors following: 1. That the court below erred in the measure of damages which they adopted in the case. 2. That the court erred in not holding that the claimant is entitled to recover the fair value of the material delivered and accepted, without regard to the price prescribed by the contract. 3. That the court should have computed the stone furnished as nine hundred and fifty-eight and three-fourths cubic yards, at $12.50 per yard, as the value of the stone delivered.

Congress directed the Secretary of the Treasury to cause the building to be erected, and appropriated $100,000 to accomplish the object; the same act providing that the money appropriated should be expended under the direction of the Secretary, and that he should cause proper plans and estimates to be made, so that the whole expenditure for the construction and completion of the building should not exceed the amount of the appropriation. Neither limitations nor precautions are always effectual in such cases; and Congress, at the next session, found it necessary to make another appropriation of the same amount, for the same object: but the provision that the Secretary of the Treasury should cause the building to be erected, and that the money appropriated should be expended under his direction, was never repealed or modified. 17 Stat. 524; 18 id. 228.

Such being the state of congressional legislation, it necessarily follows that the contractor, as well as the superintendent, knew that the appropriations were to be expended by the Secretary, and that no one else was authorized to direct as to the character and construction of the building. Individuals as well as courts must take notice of the extent of the authority conferred by law upon a person acting in an official capacity; and the rule applies, in such a case, that ignorance of the law furnishes no excuse for any mistake or wrongful act. State, ex rel. & c. v. Hayes, 52 Mo. 578; Delafield v. The State of Illinois, 26 Wend. (N. Y.) 91; The People v. The Phoenix Bank, 24 id. 430; The Mayor and City Council of Baltimore v. Reynolds, 20 Md. 1; Whiteside v. United States, 93 U. S. 247.

Different rules prevail in respect to the acts and declarations of public agents from those which ordinarily govern in the case of mere private agents. Principals in the latter category are in many cases bound by the acts and declarations of their agents, even where the act or declaration was done or made without any authority, if it appear that the act was done, or the declaration was made, by the agent in he course of his regular employment; but the government or public authority is not bound in such a case, unless it manifestly appears that the agent was acting within the scope of his authority, or that he had been held out as having authority to do the act, or make the declaration, for or on behalf of the public authorities Story, Agency, 307 a; Lee v. Munroe, 7 Cranch, 366.

Fifty cubic yards of rubble-stone were quarried, shipped, and delivered by the contractor soon after the contract was executed, which was rejected by the assistant superintendent of the work, and he refused to receive any of the same description. By the finding of the court, it appears that the rubble-stone rejected was such as came within the description and standard of the small-sized stone required by the contract, and that the assistant superintendent informed the claimant of the kind which must be furnished to make such a wall as he wanted; which was, in fact, what is called ranged-rubble or broken-ashlar stone, more expensive in kind than that described by the contract, and which would make a wall superior in appearance to that contemplated by the specifications. Two hundred and thirty cubic yards of rubble-stone had then been quarried by the claimant, and were ready for transportation and delivery. Wheeler, Civil Engineering, 209.

Throughout, the claimant maintained that he thought that the stone he had delivered was up to the contract: but he expressed the desire to furnish such material as would give perfect satisfaction to the government and their agents; and he quarried, transported, and delivered, within the period mentioned in the finding, nine hundred and fifty-eight and three-fourths cubic yards of ranged-rubble or broken-ashlar stone, different from that described in the contract, and worth $12.50 per cubic yard when delivered. These stones so furnished were cut, trimmed, and squared by the workmen, so as to fit the same for such a wall as the assistant superintendent desired to make, it appearing that one-fourth part of the measurement of the stone was lost by such fitting. Apart from that, the findings of the court also show that the market-value of the fifty cubic yards of the rubble-stone rejected, and of the two hundred and thirty cubic yards quarried and not shipped, was $456.80, which is nearly $350 less than the cost of quarrying the said quantity not shipped.

Tested by these considerations, it is clear that the measure of damages adopted by the Court of Claims is correct.

Three items were allowed to claimant, as follows: 1. For nine hundred and fifty-eight and three-fourths cubic yards of stone delivered, at the contract price of five dollars per yard, less the amounts paid to him in the settlement of his account. 2. Forty-five cubic yards of rubble-stone delivered, and rejected by the assistant superintendent, at the contract price, less the market value of the same. 3. For two hundred and thirty cubic yards of stone quarried, and refused by the assistant superintendent, at the cost of quarrying, less the market value.

Sufficient appears to show that the contract was never rescinded by either party, and that the claimant never signified any intention to abandon it. All that is proved in that regard is that he maintained that the first parcel of stone delivered was up to the contract; and that he protested, in presence of the inspector and superintendents, that he was required to furnish stone superior to that described in the contract, and that he announced to them his intention to make claim for extra allowance. Four payments were made to the claimant, amounting in all to $3,825; and it appears that the vouchers were generally made out upon estimates in advance of the work actually done at the time, copies of which, with the certificate of the superintendent and the receipts of the claimant, are exhibited in the record.

Evidence of the most persuasive and convincing character, to show that the whole...