Kellogg v. United States — 74 U.S. 361

Majority — GRIER J.

p. 361

Kellogg v. United States.

Syllabus

An officer of the United States, under authority of Congress, made a contraet . with D. and S., by which they agreed to furnish bricks to the government. The contrae^ contained a clause that D. and S. should not sub-let ' or assign it. D. and S. having abandoned the'contract, it was taken, up, with the consent of the officer representing the government, by M. and A., the sureties of D. and S. to the government for its performance. M. and A. then entered into a contract with K., by which he undertook to perform the contract and to receive payment therefor from the United States at the contract price; and to pay over to M. and A. a certain • • percentage of the amount received, M. and A. constituting.him, at the same time, their attorney to furnish the bricks and to receive payment. The government, desiring to abandon their enterprise, proposed to all " parties respectively interested on account of their contract, &c.,'that if they would cancel it,'the United States would settle with tnem “on the principles of justice and equity ” all damages, &c., incurred by them. ■ Held, that K. was not a party to, nor interested in the contract.

Appeal from the Court of Claims.

By an act of March 3d, 1853, Congress authorized the commencement of an aqueduct to supply Washington with water. Captain Meigs was appointed to superintend the work.

In January, 1854, Captain Meigs, on behalf of the United

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States, entered'into a contract with Degges & Smith, by which they agreed to furnish for the' work a certain number of bricks, for’which the United States agreed to pay at a specified rate per thousand. To secure performance, Degges & Smith gave bond, with Mechlin & Alexander as sureties.

■ The contract between Captain Meigs and Degges & Smith contained a provision th(it neither the contract, nor any part of it, should be “sub-let or assigned.”

In March, 1855, Congress having appropriated a certain sum for continuing the work, Captain .Meigs gave notice ,to Degges & Smith, and also to their sureties, Mechlin & Alexander, that there would be required for the work of that season, a portion of the bricks. To this notice Degges & Smith made no response, but abandoned their undertaking, and failed to comply with their contract.

Degges & Smith having thus made default, Mechlin & Alexander, in order to save themselves from prosecution on their bond, entered into an arrangement with Captain Meigs, by which they assumed the contract which had been made with Degges & Smith.

Mechlin & Alexander, accordingly, made preparation's for the manufacture of the bricks necessary to fulfil their contract; but before completing their arrangements, they, in March, 1856, entered into' a contract with one Kellogg, by which he undertook to furnish all the bricks required, and to receive payment therefor from the United States at the contract price, and to pay over to Mechlin & Alexander, 5 per cent, of the amount so received; and Mechlin & Alexander by deed constituted him their lawful attorney to furnish the bricks, and to receive payment therefor.

Kellogg continued to furnish bricks, as the agent of Mechlin §• Alexander, during the summer of 1856, until what remained of the appropriations for the building of the aqueduót was exhausted, when he received notice from Captain Meigs not to make or deliver any more.

.On the 3d of March, Congi’ess passed a joint resolution, containing a proposition to “ all parties respectively interested on account of their contract for manufacturing bricks for the

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Washington'aqueduct,” that, 11 they would cancel it, the United States would settle with them, “ on the principles of justice and equity, all damages, losses, and liabilities incurred' by said parties respectively on account of their contract.”

After the passage of this resolution* Mechlin & Alexander, and Kellogg* also accepted the proposition, and cancelled the contract.

Upon this,, the' Secretary of the Treasury proceeded tó make the settlement contemplated by said joint resolution, and awarded to Mechlin & Alexander, as the only persons included in the provisions of the resolution, $29,534. Of the sum so awarded by the secretary to Mechlin & Alexander, Kellogg, accepting it under protest, received $10,476, as the amount' he was entitled to receive under his contract with Mechlin & Alexander.

.Kellogg now filed his petition in the court below, setting forth the facts above stated, and insistirig that the award of the said sum of money to Mechlin & Alexander, and the exclusion of him from the benefits of the resolution by the secretary, was erroneous, and contrary to the intent of the resolution; and that the secretary should have awarded him, as the amount he was entitled to receive under the resolution, as “ a party intereáted in said contract,” the sum of $62,692; to recover which sum and interest, amounting in a,ll to $91,389, the suit was instituted.

To this petition the United States demurred; and the demurrer having been sustained by the Court of' Claims and the petition dismissed, the case was now here on appeal.

Messrs. Carlisle and McPherson, for the claimant, Kellogg.

Mr. Talbot, contra.

delivered the opi nion of the court.

The case, well stated by the reporter, sufficiently demonstrates. that there was no error in the decision of the Court of Claims'sustaining the demurrer to the plaintiff’s petition.

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The claimant has not shown that he was ever known or recognized by the United States as one of the parties to, or as interested in, the contract made by Captain Meigs, on' behalf of the United States, for furnishing bricks for the construction of the "Washington aqueduct. ' That contract provides that it should not be sub-let or assigned.

The petition shows that the claimant was acting under a contract with Mechlin & Alexander (who were the sureties for the fulfilment of the contract of Degges & Smith), and not under a contract with the United States, and was recognized only as agent, attorney-in-fact, or employé of the sureties; and that under/the resolution of Congress, approved March 3d, 1857, by which the Secretary of the Treasury was authorized to settle with all "the parties, respectively, in the contract, the claimant was not included, because he was no party to it either originally or by substitution.

The award made by the Secretary of the Treasury, and the payment of the money under it, were in strict accordance with the provisions of the resolution. The secretary properly declined to settle the account between Mechlin & Alexander as to how the money so paid should be divided between them" and their agent. Of this sum the petitioner received $10,476, which he accepted, “ under protest; ” — which could only mean saving his right to importune Congress or the Court of Claims for more. This has occasionally proved a valuable privilege. But something more is necessary to recover in a" court of justice.

Judgment affirmed.