
    MUEPHY’S CASE.
    Kyran A. Murphy v. The United States.
    
      On the Proofs.
    
    I. Tlie claimant confcraqted to build a lodge for tlie defendants, with foundations to be sunk two feet. It being found necessary to sink them five feet, tbe claimant was directed to do so, and to inform tbe defendants’ agent wbat additional cost would bo entailed' by tbe proposed extra work. Tbe claimant answered tbat tbe additional cost would be $1,350. Tbe claimant performed tbe extra work at a cost of $160, and brought tbis suit to recover $1,350 for it. Seld, tbat bis letter is to be regarded only as an estimate, and tbat be can recover only tbe actual cost of tbe extra work, witb reasonable profit.
    II. Under another contract tbe claimant constructed a wall for tbe defendants. In some places it was necessary to sink tbe foundation below tbe depth called for by tbe contract. Tbe extra work was done in a manner inferior to tbat called for by tbe contract. Tbe defendant accejited all and paid for a portion at a given rate per cubic foot. Seld, tbat tbe claimant is entitled to recover an amount sufficient to reimburse him for tbe actual cost of tbe extra wall.
    III. Tbe claimant cannot recover for extra work in excess of tbat called for by the contract, when such work is done of his own motion and without tbe defendants’ request.
    
      The Reporters1 statement of tbe case:
    Tbe following’ are tbe facts found by tbe court in tbis case:
    I. On tbe lltb day of April, 1871, tbe claimant and tbe defendants, through an authorized agent, entered into a contract for tbe construction by tbe claimant of a lodge at. tbe national cemetery at Yorktown. Tbe following is a copy of said contract:
    “ Articles of agreement made and entered into tbis eleventh day of April, anno Domini one thousand eight hundred and seventy-one, between Major Henry 0. Hodges, quartermaster U. S. Army, Philadelphia, Pen’sylvania, of tbe first part, and Kyran A. Murphy, of tbe city of Washington, District of Columbia, of tbe second:
    “This agreement witnessetb tbat the said Major Henry C. Hodges, quartermaster, U. S. A., for and on behalf of tbe United States of America, and the said Kyran A. Murphy, for himself, his heirs, executors, and administrators, have covenanted and agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    “First. That the said Kyran A. Murphy shall build a superintendent’s lodge, of stone, at the national cemetery at Yorktown, Ya., according to the plans and specifications attached to this contract.
    “ Second. It is expressly understood and agreed that the lodge shall be completed and ready for occupancy by the 30th day of June, 1871.
    “ Third. In case of failure on the part of the party of the second part to complete the building in the manner prescribed in the plans and specifications and at the time agreed upon, or by his abandoning the construction of it altogether, it is distinctly understood that the party of the first part will complete the building. And the total amount disbursed by the United States in completing the building is to be deducted from the contract price hereinafter named, which would have been paid to the party of the second part had he finished the building as stipulated.
    “Fourth. It is agreed that from time to time, and when completed, the said building shall be inspected by an officer or agent of the U. Si Army to b ¿designated by the party of the first part; and after such officer or agent shall have certified that it is in all respects as contracted for, it shall be received and become the property of the United- States.
    “Fifth. It is agreed that, for and in consideration of the faithful performance of the above stipulations in all their parts, the party of the first part agrees to-pay or cause to be paid to the party of the second part, when in funds for that purpose, the sum of twenty-six hundred and fifty ($2,050.00) dollars.
    “ Sixth. It is further agreed and expressly conditioned that no member of Congress is or shall be admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is not transferable without the consent of the proper authority; that any sale, transfer, or assignment of it (except under a process of law) shall and will be considered an abandonment of it, and the said party of the second part or his securities be held responsible for all loss, delay, or damage to the United States which may arise from such abandonment.
    “In witness whereof the parties have hereunto set their hands and seals in quint-riplicate the day and year first above written.
    (Signed) “ HENRY U. HODGES, [seal.]
    “ Major and Quartermaster, U. S. A.
    
    (Signed) “KYRAN A. MURPHY, [seal.]
    “ Sealed and delivered in the presence of—
    (S’d) “H. W. Studley.
    (S’d) « E. S. Leow, M. D.”
    
      II. After tbe plans for tbe said lodge were settled, and tbe site tberefor was selected, it was found that, in consequence of putting tbe building on made ground, a foundation-wall deeper tban tbe one contracted for would be required. Tbe fact was made known to tbe defendants’ authorized agent, and said agent thereupon, on tbe 19th day of May, 1871, wrote to tbe claimant the following letter:
    “ Quartermaster’s Office, •
    “ Wo-. 1139 Girard Street, Philadelphia, Pa., May 19th, 1871.
    “Mr. Kyran A. Murphy,
    “ Contractor, Yorlctown, Va.:
    
    “ Sir : Tbe superintendent in charge of tbe Yorktown National Cemetery has reported to this office that tbe site selected for tbe new lodge at that cemetery is on “ made ” ground, and that, to secure a proper foundation for tbe building, tbe wall should be built (5) five feet below tbe level of tbe ground.
    “If, upon examination of tbe ground, you find it necessary to make tbe change in order to secure a substantial building, you will please sink tbe foundation-wall to a depth of five (5) feet instead of two (2) feet, as mentioned in the specifications attached to contract, and inform this office what is tbe additional cost entailed by tbe extra work.
    “Very respectfully, your obed’t servant,
    (Signed) “HÉNBY C. HODG-ES,
    “ Major & Quartermaster, U. S. A.”
    
    III. On tbe 23d January, 1872, before beginning work on tbe lodge, tbe claimant wrote to tbe defendants’ authorized agent tbe following letter:
    “Petersburg-, Va., Jan. 23rd, 1872.
    “Oapt. E.' B. Carling,
    “A. Q. M., U. S. A.:
    
    “ Sir : I have tbe honor to inform you that my stone for the Yorktown lodge is all quarried and ready at Bichmond for shipment to Yorktown. I expect to commence work within two (2) weeks from this date, if weather is favorable. Tbe increased depth of walls ordered by Major Hodges, Q. M. ,U. S. A., on account of bad foundation, will cost ($1,350) thirteen hundred and fifty dollars. Enclosed is a copy of Maj. Hodges’ letter in reference thereto. Tbe gateway at Bichmond cemetery is entirely completed. Tbe lodge at Staunton is also completed.
    “Tbe plasterers and painters are finishing tbe lodge at Poplar Grove, and tbe mason-work of lodge at City Point -is about balf done.
    “ I bare tbe honor to be, very respectfully, your obdt. servant,
    (Signed) “ KYRAN A. MURPHY.
    “A true copy.
    “A. F. ROCKWELL,
    ■ “Copt. & A. Q. M., U. 8. A ”
    
    IY. Tbe work required by tbe contract was performed by tbe claimant. Tbe foundations for tbe lodge were constructed and laid at an average depth of £ve feet, instead of at tbe depth of two feet, as called for by tbe contract. Tbe amount of tbe extra foundation was twenty-nine and nine-tenths perches, and the ■cost of constructing tbe same was $5.50 per perch, or $160 for tbe whole.
    Y. On tbe 14th April, 1871, tbe claimant and an authorized-agent of tbe defendants entered into a contract for tbe construction of stone walls (with stone piers and Ron gates) around tbe ■national cemeteries in Richmond and Wilmington, of which last-named contract tbe following is a copy:
    “Articles of agreement made and entered into this fourteenth day of April, anno Domini one thousand eight hundred and seventy-one, between Major Henry C. Hodges, quartermaster, U. S. A., Pliiladelphia, Pa., of the first part, and Kyran A. Murphy, of tbe city of Washington, District of Columbia, of ■the second part.
    “This agreement witnesseth■ that tbe said Major Henry C, Hodges, for and on behalf of tbe United States of America, and tbe said Kyran A. Murphy, for himself, bis heirs, executors, and administrators, have covenanted and agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    “ First. That the said Kyran A. Murphy shall build at each of the following-named national cemeteries, viz, Richmond, Ya., and Wilmington, N. C., a stone wall, with one double and one single iron gate, with two pillars of cut-granite stone (one on each side of the double gate), according to the plans hereto attached, and one stone pillar, of equal size and finish with the two mentioned above, on the right of the single gate. The wall to be built of good, sound rubble-stone, faced on the outer side, laid in lime and sand mortar, the lime and sand to be of the best quality, and so mixed as to give the most strength to the mortar. .The upright rails of the double iron gate to be of f-inch round iron, six inches from centres. Those of the single gate to be of f-ineb round iron, six inches from centres. The two-braces of the double gate to be of |-inch round iron, and secured by bolts and screw-nuts, as shown on plan. The brace of the single gate to be of -§-inch round iron, and secured by bolts and screw-nuts, as shown on plan. The two upper raüs and one lower rail of the double and single gate to be square iron x 2 inch. The two outside rails at either end of one-half of the double gate to be -§ x 2 inch.
    “ Second.- It is expressly understood and agreed that the wall at the Kichmond, Ya., and Wilmington, N. 0., national cemeteries shall be completed by the 30th day of June, 1871.
    “ Third. In case of failure on the part of the party of the second part to complete the walls, pillars, double and single iron gate in the manner prescribed in the plan and first clause of this contract and at the time agreed upon, or by abandoning the construction of them altogether, it is distinctly-understood that the party of the first part will conqfiete the walls, pillars, double and single iron gates, and the total amount disbursed by the United States in completing the walls, pillars, double and single iron gates is to be deducted from the contract price hereinafter named, which would have been paid to the party of the second part had he finished the walls, pillars, double and single iron gates as stipulated.
    “Fourth. It is agreed that-, from time to time and when completed, the said walls, pillars, double and single iron gates shall be inspected by an officer or agent of the U. S. Army, to -be designated by the party of the first part; and after such officer or agent shall have certified that they are in all respects as contracted for, they shall be received and become the property of' the United States.
    “Fifth. It is agreed that for and in consideration of the faithful performance of the aboA^e stipulations in all then parts, the party of the first part agrees to pay, or cause to be paid, to the party of the second part, when in funds for that purpose, the sum of three dollars and thirty-five cents ($3.35) for each and every linear foot of stone wall built at the Richmond, Ya., national cemetery, and the sun of three dollars and forty-five cents ($3.45) for each and every linear foot of stone Avail built at the Wilmington, N. 0., national cemetery; and for the three cut-granite stone pillars and double and single iron gates at the Richmond, Ya., national cemetery, the sum of four hundred dollars ($400.00), and for the three cut-granite stone pillars and double and single iron gates at the Wilmington, N. C., national cemetery, the sum of four hundred and eighty ($480.00) dollars.
    “Sixth. It is further agreed and expressly conditioned that no member of Congress is or shall be admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is non-transferable without the consent of the proper authority; that any sale, transfer, or assignment of it (except under a process of law) shall and will be considered an abandonment of it, and tlie said party of the second part or his securites be held responsible for all loss, delay, or damage to the United States -which may arise from such abandonment.
    “In witness whereof the parties have hereunto set their hands and seals in quintriplicate the day and year first above written.
    “The word “three” inserted before signing.
    (Signed.) “HENRY C. HODGES, [seal.]
    “ Major and Quartermaster, U. S. A.
    
    (Signed.) “KYRAN A. MURPHY. [seal.]
    “Sealed and delivered in the presence of—
    (Signed) “ J. H. Ohataig-ke.
    (Signed) “Alex. Nicholls.”
    YI. The claimant constructed the walls around said cemeteries and gates as required by said last-named contract. In constructing the wall around the Richmond cemetery, it was found necessary to lay 2,430 cubic feet of extra foundation. This was done by the claimant by direction of the authorized agent of the defendants. This extra wall was laid in a ditch, wherein water was standing. The lower part of said extra wall, from 8 to 18 inches in depth, was laid dry. The remainder was laid in cement mortar of poor quality. The cost of constructing the said last-named extra foundation was $640.90.
    YII. The claimant constructed the gate-piers required by said last named contract. The contract called for gate-posts 15 inches square. The posts were actually constructed 18 inches square. There were three piers, and the increased cost of workmanship and material of the piers furnished over those called for by the contract was $30 per post.
    Yin. The claimant was paid in full for the work done under the two contracts at the respective contract rates. For the work and material in the extra foundation for the wall around the Richmond cemetery the claimant was. paid the sum of $548.22, and gave a receipt therefor in the following form:
    “ The United States to K. A. Murphy, Ur.
    
    Place and date.
    “ 1873, August 12th—
    For building 2,068f cubic feet of extra founda-ion to the enclosing-wall of the Richmond National Cemetery, Ya;, © 26¿cents per cubic foot. $548 22
    “ Five hundred and forty-eight T2827. 548 22
    
      “I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and are borne on my report of persons, &c., for the month of August, 1873.
    “ THEO. J. BOKBESON,
    “ Cajpt. and A. Q. M.
    
    “ Received, at Fori; Monroe, Va., the 12th day of August, 1873, of Oapt. T. J. Bckerson, asst, quartermaster, United States Army, the sum of five hundred and forty-eight dollars and twenty-two cents, in full of the above account.
    K. A. MURPHY.
    “ (Signed in duplicate.)
    “Nat. Cemetery. F. Y. 1874.”
    For constructing the gateway at the said Richmond cemetery the claimant was paid the sum of $400, and gave a receipt therefor in the following form:
    
      " The United States to Kyran A. Murphy, contractor, Dr.
    
    Place and date.
    “Ft. Monroe, Va., Feb’ry 14, 1872—
    For construcing the gateway at the Richmond, Va., national cemetery, as per contract made with Major H. 0. Hodges, quartermaster, U. S. A., dated June 30, 1871.„. $400 00
    $400 00
    “ I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and are borne on my -report of persons, &c., for the month of February, 1872.
    “B. B. CARLING,
    “ Capt. and A. Q. M.
    
    “Received, at Ft. Monroe, Va., the 14 day of February, 1872, of Capt. E. B. Carling, asst, quartermaster, United States Axmy, the sum of four hundred (400) dollars and cents, in full of the above account.
    KYRAN A. MURPHY.
    “ (Signed in duplicate.) ”
    For the extra foundation of the lodge of the Yorktown cemetery the claimant presented a claim to the defendants to the amount of $1,350, and the defendants refused to pay the same and nothing has been paid to the claimant for the labor and materials therein.
    
      
      Mr. George D. Douglas for tbe claimant:
    1. As to tbe lodge, tbe charge of $1,350 named in tbe claimant’s letter was not objected to as in anywise excessive, but was assented to by tbe defendants, and tbe defendants are bound thereby. Claimant is clearly entitled to recover tbe sum named. (Kingsbury’s Case, 1 C. Cls. B., 13; Bestows Case, 3 C. Cls. B., 426; Cooper’s Case, 8 C. Cls. B., 199; Grant’s Case, 5 C. Cls. B., 71.)
    2. As to tbe extra wall, claimant is entitled to recover a fair price for tbe same, having in view the expensive materials required and tbe expenses necessarily incident to work unexpected and consequently unprovided for.
    3. As to tbe granite posts, tbe defendants'accepted tbe same, and tbe claimant is therefore entitled to recover at a reasonable rate therefor. (Cooper’s Case, 8 C. Cls. B., 179.)
    
      Mr. William H. Bradley for tbe defendants:
    1. As to tbe lodge wall, contracts made by an officer of tbe Army on behalf of tbe United States, to be valid, must be reduced to writing and signed by tbe contracting parties at tbe end thereof. (Bev. Stat., 3744; Grcmt’s Case, 5 C. Cls. B., 71; Ciarle v. United States, 92 U. S. B., 539.) There was no such writing in this case. ■ No special contract being shown, tbe defendant can recover only under a quantum meruit.
    
    
      2. As to tbe cemetery wall, tbe facts show an accord and satisfaction.
    3. As to tbe extra work on tbe piers, where there is a special agreement to do certain work at a stipulated price and tbe contractor iierforms extra work without tbe authority of tbe other party and without their knowledge or consent, be is not entitled to recover compensation therefor. (2 Parsons on Contracts, 57; Grant’s Case, 5 C. Cls. B., 81; Cooper’s Case, 8 id., 199.)
    Where, as in tbe present case, a question arises as to tbe. quantity and value of tbe work, which is disputed, and tbe claimant can only recover, if at all, under a qumturn meruit, a receipt in full is evidence of a settlement or compromise between tbe parties, and tbe contractor is estopped from prosecuting any further bis claim. {Child v. United States, 12 Wall., 232; Stoeeny v. United States, 17 id., 75; Comstóelc’s Case, 9 C. Cls. B., 141.)
   Davis, J.,

delivered tbe opinion of tbe court:

Tbe claimant did two distinct pieces of work for tbe defendants, and brings tbis. action to recover tbe value of labor and materials alleged to bave been done and furnished in each and not to bave been paid for.

Tbe first is said to bave been done on tbe foundation of a lodge for tbe national cemetery at Yorktown. Tbe claimant contracted to build tbe lodge according to agreed plans and specifications for an agreed sum. When tbe site for tbe building was selected, it was found necessary to make tbe foundations deeper than tbe specifications called for. Tbe quartermaster in charge thereupon requested tbe claimant to sink tbe foundation-wall five feet instead of two, and to inform tbe quartermaster’s office “of tbe additional cost entailed by tbe extra work.” Before tbe claimant commenced work, be wrote to tbe quartermaster “that tbe increased depth of walls” would cost $1,350. No reply appears to bave been made to tbis letter. Tbe claimant then performed tbe work contracted for, and also builttke foundations for tbe building five feet deep instead of two, as requested. Tbe actual cost of tbe extra work was $160. Tbe claimant has been paid in full for tbe labor and materials furnished under tbe contract, but nothing for tbe extra labor and materials on tbe foundation. He seeks to recover for tbe latter tbe sum of $1,350, on tbe ground that bis letter and tbe subsequent silence of tbe defendants, and their allowing him to perform tbe work and furnish tbe materials after bis letter without objection, constituted an express contract to pay him tbe sum named in bis letter.

In our opinion, tbis proposition cannot be maintained. We regard tbe claimant’s letter as an estimate of tbe pirobable cost of the extra work. It was written in response to a request from tbe defendants for such estimate, and therefore cannot be regarded as an offer to do tbe work at that price which was accepted by tbe defendants. Tbe claimant is entitled to recover only tbe actual cost of tbe extra work and labor, with a reasonable commission for bis trouble in superintending it. In tbe absence of evidence, we fix 10 per cent, as such reasonable commission.

The claimant also contracted with tbe defendants for tbe construction. of a wall around tlie Eichmond cemetery and of three gate-posts in the same.

In constructing the wall, it was again found necessary to deepen the foundations beyond the depth called for by the specifications. Two thousand four hundred and thirty cubic feet of extra foundation-wall were thus constructed. This extra work was not completed in the durable manner required by the contract for the contract wall. Dry walls were built instead of masonry for from 8 to 18 inches in height. The defendants paid the claimant for 2,068| feet of this extra wall at the rate of 26J cents per cubic foot. Nothing has been paid for the remaining 361J feet.

The actual cost of the whole extra foundation was '$640.90. Although the wall was inferior in quality and character to the work called for by the specification, we think that, as the defendants have the benefit of it, and have accepted and paid for a large portion of it, they should reimburse the claimant for its actual cost. They have already paid $548.22 on account of it; there remains therefore to be paid $92.6S.

The remaining demand of the claimant is for extra work on the gate-posts. The specifications called for walls of 18 inches in width and for gate-posts of 15 inches in width. The claimant, of his own motion, in order to harmonize the post with the wall in which it was to stand, put in the three posts of a width of 18 inches. The extra cost of such gate-posts was $30 each.

The claimant asks judgment for $90 for this extra work, on the ground that the defendants have the benefit of the increased Talue of the posts. We do not think the claim can be maintained.

For the foregoing reasons the claimant is entitled to judgment for the sum of $262.68.

Nott, J., was prevented by illness from taking part in the decision of this cí s i.  