1. A. agreed to furnish the United States a number of cubic
yards of rubble stone, for the construction of a public building
under a contract which, after prescribing the dimensions of the
material, and the price to be paid therefor, provided that no
departure should be made from its conditions, without the written
consent of the Secretary of the Treasury. Such consent was not
given. The assistant superintendent, in charge of the erection of
the building, declined to receive certain of the stones, although
they were within the description of the contract, and required A.
to furnish others of a different and more expensive kind, which the
latter did.
Held that, as A. was bound to take notice of
the fact that the assistant superintendent had no power to vary the
contract, he is only entitled to recover according to its
terms.
2. The question of agency discussed.
The facts are stated in the opinion of the Court.
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 upon 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
Page 96 U. S. 690
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 percent of the stone delivered, at five dollars per cubic
yard; it being stipulated that ten percent 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.
Page 96 U. S. 691
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. State of Illinois,
26 Wend. (N.Y.) 91;
People v. The Phoenix Bank, 24
id. 430;
Mayor & 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
Page 96 U. S. 692
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
Page 96 U. S. 693
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 quantity of the stone for which compensation is
claimed was delivered under the contract, is exhibited in the
record, and it is equally certain that the claimant knew that the
agents in charge of the work had no authority whatever to enlarge
or diminish, vary or alter, any of its terms, stipulations, or
conditions, as the contract itself provided that no departure from
its condition shall be made without "the written consent of the
Secretary of the Treasury." Confirmation of that view is also
derived from the act of Congress which conferred the authority to
make the contract; the language of the act being that the money
appropriated shall be
"expended under the direction of the Secretary of the Treasury,
and that he shall cause proper plans and estimates to be made, so
that the whole expenditure for the erection and completion of the
building shall not exceed the sum appropriated for that
purpose."
17 Stat. 390.
Page 96 U. S. 694
Aid in the construction of the contract may be derived from the
advertisement under which the bids were received, as the
advertisement is expressly referred to in the written contract.
Bids were invited by the advertisement for
"one thousand cubic yards, more or less, of rubble stone, . . .
which is flat on the bed, sound, durable, and which breaks with a
clean, square fracture, 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. No stone containing less than one and one half
cubic feet, or less than twelve inches in thickness, will be
received. Wheeler, Civil Engineering 140."
Nothing can be plainer than the proposition that the contract
was framed in conformity with the advertisement and the act of
Congress, which provided in effect that the erection and completion
of the building should be under the direction of the Secretary of
the Treasury. Both parties concur in the construction of the
written contract, but the claimant undertakes to set up a
subsequent implied contract between himself and the assistant
superintendent.
Beyond doubt it is true that subsequent oral agreements between
the parties to a written contract, not falling within the statute
of frauds, if founded on a new and valuable consideration, may,
when made before the breach of the written contract, have the
effect to enlarge the time of performance specified in the written
instrument, 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;
Leonard v. Vredenburgh, 8 Johns.
(N.Y.) 28.
Concede that proposition in its fullest extent, and yet it
cannot benefit the claimant, as the findings of the court furnish
no ground whatever to show that any subsequent parol agreement was
ever made between the contracting parties to vary, enlarge, or
diminish any of the terms of the written contract; nor is anything
of the kind pretended by the appellant. What he alleges is that he
was required by the assistant superintendent to furnish better
stone than that specified in the written agreement. Proof of that
allegation is exhibited, but there is not a particle of proof that
the assistant superintendent ever promised that the United States
should pay for the stone delivered any
Page 96 U. S. 695
greater sum than five dollars per cubic yard; and if he had so
promised, it could not benefit the claimant; as the contract under
which he rendered the service, and under which the four payments to
him were made, contained the express stipulation that no departure
from the conditions of the contract should be made without the
written consent of the Secretary of the Treasury.
Four times, his accounts for rubble stone delivered were
adjusted during the progress of the work, in accordance with the
terms of the written contract, as follows:
1. For three hundred cubic yards of rubble stone at five dollars
per cubic yard.
2. For two hundred cubic yards of rubble stone at five dollars
per cubic yard, and the account refers to the written contract as
the basis of the charge.
3. For one hundred and fifty cubic yards of rubble stone at five
dollars per cubic yard, less ten percent retained, and again refers
to the written agreement as the source of explanation.
4. For two hundred cubic yards of rubble stone at five dollars
per cubic yard, less ten percent reserved, with a similar reference
to the written agreement for the necessary explanation.
Appended to each is the customary certificate of the
superintendent, and the receipt of the claimant for the amount of
the charge, stating that it is received "in full payment of the
above account." Proofs more persuasive and convincing that the work
was done and that the payments were made under the written
agreement can hardly be imagined; and they are certainly sufficient
to show that the court below committed no error, either in the
findings of fact or in their conclusions of law.
Ranged rubble or broken ashlar stones are usually of a larger
size than ordinary rubble stones; and the former when trimmed are
suitable to make a wall of coursed masonry, as if constructed of
squared stone of different sizes, resembling somewhat a wall
constructed of dimension stones. Loss to a considerable extent is
sustained by the cutting and trimming, so that the stone measures
less in the wall than when first quarried. Such a wall is more
expensive than one made of mere rubble stone, on account of the
increased cost of the stone, and the additional labor in cutting
and fitting the same before it is laid in the wall.
Page 96 U. S. 696
Rubble stones flat on the bed, with certain other conditions,
were specified in the advertisement, but the assistant
superintendent desired to construct a wall which required a ranged
rubble stone. Mutual consent is required to modify a contract; and
of course the directions of the assistant superintendent were not
obligatory, for two reasons:
1. Because in contemplation of law he was not a party to the
contract.
2, Because he had no authority to act in behalf of the United
States.
Viewed in that light, it is clear that the claimant might have
declined to follow the directions given, or, if not allowed to
complete his contract, might have maintained an action for damages.
When the directions were given, he might have refused to comply and
given notice to the United States, and if he had done so, he proper
authority would have had an opportunity to determine whether the
directions given should be overruled, or whether the wall should be
constructed as proposed by the assistant superintendent. Nothing of
the kind was done, and the opportunity was lost to the United
States to exercise any option in the matter. Instead of that, the
claimant readily submitted to the directions given by the
unauthorized agent, without giving any notice to the proper
authority of the United States that he should claim any greater
compensation. Subsequent complaints were made by him, in the
presence of the superintendents, that he was required to furnish a
superior stone to that required by the contract; and at one time he
announced his intention to make claim for extra allowance which is
in fact what the claimant now demands.
Two facts are the chief reliance of the claimant, to-wit, 1,
that the stone delivered is better than that which the claimant
contracted to furnish; 2, that the United States accepted the
material, and is now in the full enjoyment of the same. Based on
these facts, the proposition of the claimant is that he is entitled
to recover the actual value of the materials, without reference to
the contract price, which cannot for a moment be admitted, as the
findings show that the written contract was in full force and
operation, no attempt having been made by either party to vary or
rescind it; and that the claimant acted under it in furnishing and
delivering the stone; and that the public authorities, also, in
adjusting his accounts and in making
Page 96 U. S. 697
the payments referred to, conformed in all respects to its
terms, stipulations, and conditions.
Unquestioned authority was given to the Secretary of the
Treasury to make the contract, and he in contemplation of law made
it when he approved the instrument signed by the claimant and the
superintendent. Even the claimant does not pretend that any other
contract was ever approved by the Secretary, nor does he pretend
that the assistant superintendent ever promised to pay and greater
sum than the original contract price. All the claimant ever
suggested was, that he intended to make claim for extra allowance,
for which there is no pretence of any express contract; nor can
such a claim be supported, under the circumstances of this case,
upon any implied promise, the record showing that the express
contract was in full force and operation.
Ladd v.
Franklin, 37 Conn. 62.
Express stipulations cannot in general be set aside or varied by
implied promises, or, in other words, a promise is not implied
where there is an express written contract, unless the express
contract has been rescinded or abandoned, or has been varied by the
consent of the parties. Hence the rule is that, if there be an
express written contract between the parties, the plaintiff in an
action to recover for work and labor done, or for money paid, must
declare upon the written agreement so long as the special agreement
remains in force and unrescinded, as he cannot recover under such
circumstances upon a
quantum meruit. 1 Story, Contr. (5th
ed.), sec. 18;
Selway v. Fogg, 5 Mees. & W. 83;
Creighton v. City of Toledo, 18 Ohio St. 447;
Weston
v. Davis, 24 Me. 374;
Whiting v. Sullivan, 7 Mass.
107;
Merrill v. The Ithaca & Owego Railroad Co., 16
Wend. 586;
Glacius v. Black, 50 N.Y. 145.
When a special contract for work and services has been abandoned
and put an end to, if the employer has derived some benefit from
work done under it, he may be made liable upon an implied promise
to make reasonable remuneration in respect to such work.
Burns
v. Miller, 4 Taunt. 745;
Inchbald v. Plantation
Company, 17 C.B.N.S. 733;
Bartholomew v. Markwick, 15
C.B.N.S. 711; Addison, Contr. (6th ed.) 23.
Implied promises or promises in law exist only when there is no
express promise between the parties --
expressum facit
Page 96 U. S. 698
cessare tacitum. Hence, says Chitty, a party cannot be
bound by an implied promise, when he has made an express contract
as to the same subject matter; which is certainly sound law unless
the express contract has been rescinded or abandoned. Chitty,
Contr. (10th ed.) 62;
Toussaint v. Martinnant, 2 T.R. 100;
Cutter v. Powell, 6
id. 320;
Ferguson v.
Carrington, 9 B. & C. 59;
Atherton v. Dennett,
Law Rep. 7 Q.B. 327.
Apply these principles to the case before the court, and it is
clear that none of the errors assigned can be sustained, the rule
being that, where the service is performed under an express
contract, there can be no recovery where there is no proof of a
breach of the agreement. Where there is a breach of the agreement,
an action will lie for the breach; but, if there be no breach, no
action will lie, as an implied assumpsit does not arise in such a
case, unless it be shown that the parties have abandoned the
express agreement, or have rescinded or modified it so as to give
rise to such an implication.
Mayor & City Council of
Baltimore v. Eschbach, 18 Md. 276.
Jurisdiction is not conferred upon the Court of Claims to allow
mere extra allowances in a case where there is no promise to that
effect, either express or implied. Power to hear and determine
claims founded upon any law of Congress, or upon any regulation of
an executive department, or upon any contract, express or implied,
with the government of the United States, and all claims which may
be referred to it by either house of Congress, is vested in the
Court of Claims. Mere applications for extra allowance, unsupported
by any contract express or implied, must be made to Congress, where
alone they can properly be entertained. Rev.Stat., sec. 1059.
Judgment affirmed.