
    John Henegan’s administratrix v. The United States.
    . On the Proofs.
    
    
      The claimants contractedto excavate and'construct a canal; the defendants’ engineer to determine the quantity, tf-c.-, of theworlc, and the value of extra work; a percentage to hewitliheld. They performwork, receive payments fixed by the engineer, receipt in full therefor, but abandon the contract before completion. Congress pass aw act releasing them from their bond given to secure faithful performance. They bring an aetiononthe contract for the pereentagereserred. The defendants set up a counter-claim growing out of the claimants’ abandonment.
    
    * I. Where a contract provides that if the defendant’s engineer suspend work no claim for prospecti ve profits on -work not done shall he made or allowed, it precludes the contractor from seeking such profits in the case provided for. ,
    
      II.Where the engineer in charge is to determine the quantity of the work and the compensation to he allowed for extra work, ami the contractors accept payment upon the engineer’s estimates without objection, and receipt in full therefor, less a percentage withheld for final settlement, they are concluded by the engineer’s estimates.
    III. Where a percentage is to “be retained as a guarantee for the performance of the contract ” the contractor who abandons his contract cannot maintain an action for the percentage withheld, if the defendants have suffered damages to a greater extent.
    IV. Where a special act releases and discharges contractors from all liability by reason of their bond given to secure the faithful performance * of the contract, and provides that an action then pending be discontinued, it relinquishes the cause of action, which cannot be set up as a counter-claim by the government in another court.
    V,Though a special act may relieve contractors from all liability to the government, and may preclude the government from recovering damages, yet it will not be interpreted so as to relieve the contractors from the legal effect of their own negligences when they are seeking damages.
    
      The Reporters statement of tlie case:
    So much of the contract of this case as is necessary for a correct understanding of it will be found quoted in the opinion.
    The following are the facts as found by the court:
    I. On the 25th of September, A. II. 1867, in pursuance of previous' advertisement and proposals according to the statute, a contract was made between the defendants, through Maj. Gen. James H. Wilson, of the one part, and William Iíenegan and John Henegan, who were copartners, of the other part; a copy of which contract, with the specifications attached thereto, is fully set forth in the petition in this case.
    Said Henegans gave to said defendants, at the time of executing said contract, as was required of them, a bond, with sureties, in the penal sum of $175,000, conditioned for the faithful performance of the contract on their part. This bond is the same referred to in the act of Congress of March 3,1871, chapter 197 (16 Stat. L., 700).
    II. Said Henegans entered upon the work and continued thereon until some time in October, 1868. During the progress of the work, alterations in the form, dimensions, location, and* manner of doing the same were made'by the defendants’ officers in charge.
    
      By reason of tlie low price at which the Henegans had contracted to do the work, and their inability to raise money to carry on the same, they made such slow progress that it became evident to the engineer in charge that they could not complete the contract till some years after the time when they had contracted to have the same done.
    About the middle of October the Henegans informed the defendants’ engineer in charge that they were unable to pay their laborers for the September work, and that their bondsmen would not advance them any more funds. They requested that the government, in accordance with the stipulation in the contract, would pay the September pay-rolls, and were informed that this could not be done unless they abandoned their contract; whereupon they orally agreed to abandon the contract. Subsequently the Henegans refused to sign a written agreement to that effect when requested so to do.
    Thereupon the following official correspondence took place':
    “ü. S. Military Telegraph, 2.20 p. m.,
    
      “Oct. 19, 1868.
    “To Bvt. Maj. Gen. A. A. Humphreys,
    “ Chief of Eng’rs:
    
    “Henegan and Son have abandoned contract. Will require bondsmen to carry on work till a reletting can be made, which will be done on fifth (5 th) week, for no w work will not be delayed.
    “Jas. H. Wilson,
    
      “Bvt. Col. & Bvt. Maj. GenV\
    
    “Keoicuic, Iowa, October Mth, 1868.
    “To Geni. A. A. HuMPI-ireys,
    “ Chief of Engineers, Washington, E. C.:
    
    “Henegan and Son are unwilling to sign formal abandonment of their contract, although unable to proceed or make payments to men, and have failed to comply with the requirements of their contract. I have, therefore, to request authority by telegraph to declare that the contract has been violated and abandoned under corresponding clause of contract.
    “L. Cooper Overihan,
    “ Captain of Engineers, U. 8. A., in Charge, ése.”
    
    
      “Headquarters Corps oe Engineers,
    
      “Washington, D. G., Oct.- 24,1868.
    “Bvt. Maj. Geni. J. H. Wilson,
    
      “Lt. Col. 35th Infantry,
    
    
      “ (Or in Ms absence,)
    “Capt. L. O. OVERMAN,
    “ Corps of Engineers, Keolmk, Iowa:
    
    “The dispatch of Gen’l Wilson of nineteenth instant, and Captain Overman of twenty-fourth, received.
    “ Wm. & John Henegan, the contractors for work at Des Moines Bapids. have violated and abandoned their contract. You will, therefore, proceed to a reletting as required by law.
    “By command of Brig. Geni. Humphreys:
    “ Jno. G. Parke,
    
      “Major of Engineers, Bvt. Maj. Geni., U. IS. AP
    
    On the 24th of October, 1868, the defendants paid the September pay-rolls of said Henegans, amounting to $11,937.85, and on the 24th of November, 1868, they paid the pay-rolls of said Henegans for that part of the month of October up to the 24th day, inclusive, amounting to $9,588.87, according to the request of the contractors.
    On the 26th of October, 1868, the defendants took possession of the work, and published in a newspaper at Keokuk the following :
    “notice.
    “TJ. S. Engineer’s Oeeice,
    “Des Moines & Bock Island Bapids Improvement,
    “and Illinois Biver Survey,
    “ Keolculc, Iowa, Oct. 26th, 1868.
    “The following is published for the information of a,ll concerned: The contract heretofore existing between the United States of America and William Henegan & John Henegan for the faithful performance of certain work for the improvement of the Des Moines Bapids of the Mississippi Biver having, in the opinion of the Chief Engineer of the United States Army, been violated, is by him declared abandoned.
    “ The connection of the above parties with this work ceases from this date, and the work, until a new letting of the same be made, will be carried on by the United States Government, through its authorized agents.
    “By order of Brevet Major-Gen. J. H. Wilson :
    “L. Cooper Overman, “Captain, Corps of Engineers."
    
    
      ' The defendants continued the work thus abandoned by the contractors up to December 4,1868.
    
      III. On the 4th of December, 1868, in pursuance of previous advertisements and proposals according-to statute, the defendants entered into a written contract with James J. Dull for the completion of the*work previously contracted for by the Henegans, to the extent of the balance of the appropriation therefor then remaining. Said Dull did the word under his contract, and the cost thereof to the defendants amounted to $174,024.15 more, than the contract-price for the same work according to the terms which said Henegans had agreed to do the same for.
    IY. Attheendofeachmonthfrom October, 1867, to September, 1868, both inclusive, the engineer in charge, by himself or under his direction, made an estimate of all the work done under the Henegan contract for that month, with the compensation therefor to which he decided that said Henegans were entitled.
    Upon the basis of each estimate a voucher was made out therefor, and the balance found due to the Henegans, less 15 per cent, retained under the contract, was paid to them, and they gave receipts in full for the same.
    Said voucher and receipts were all in the same form as the following, which was given for the work for September, 1867:
    
      
    
    “ Received at Keokuk, Iowa, this 9th day of .November, 1867, from Bt. Maj. G-enl. Wilson, U. S. A.,lieut. col. 35th Infty., the sum of two thousand one hundred & twenty-five dollars and-cents, in full payment of the above account.
    “ Wsr. Henegan.
    “• Jno. Henegan.
    “$2,125.00.”
    “I certify that the within account is correct and just; that the services were rendered and that they were necessary for and were applied to tbe purpose set forth herein under the bead of applicatiou.
    “ J. H. Wilson,
    “ Lt. Gol. 35th Infty., Bt. Maj. Gen., U. 8. A.”
    
    Ou the28th of January, 18G9, theengineerinchargema.de and presented a final account and estimate of the.amount and quantity of the several kinds of work done and to be paid for under said Henegan’s contract, and the amount of compensation to be paid therefor, as follows:
    “final account.
    “ State of Iowa,
    “ County of Lee, ss:
    
    “Daniel O. Jenne, United States civil engineer assistant, engaged under the direction of Brevet Major-General J. H. Wilson, U. S. A., lieutenant-colonel 35th Infantry, on the canal for the improvement of the Des Moines Rapids of the Mississippi River, embracing the contract of William Henegan and John Henegan for excavating the prism and constructing the embankment-wall of the said canal, being duly sworn, saith: That he and his assistants have actually measured the materials delivered and the labor performed under the said contract since the thirtieth day of September, 18G8, the time of the last estimate, and up to the twenty-fourth day of October, 1868, and have estimated the prices therefor with reference to the prices contained in the contract, and that the whole amount of the labor performed and materials delivered between the dates aforesaid, according to such estimate, amount to the sum of thirteen thousand four hundred and forty dollars, and does not include any of the work done or material furnished which are included in any former estimate; also, that a statement of all the items of work done thereon, estimated value, and amounts, together with the location, character, and description of each, have been entered on page 17 of book No. 1 of monthly estimates.
    That the estimates for work done previous to and includingthe said 30th day of September, 1868, as per former estimates, amount to.$117,320 00
    Amount to be paid (15 per cent., $22,098.00, retained).$125, 222 00
    Work done as per present estimate. $13,440 62
    Amount to be paid (15 per cent., . $2,010.00, retained). $11, 424 53
    Total amount of work done and materials furnished.$160,760 62
    Amount paid and to be paid (15 per cent.,. $24,114.09, deducted).’.. $136, 646 53
    
      “And which amount does not exceed, to the best of his knowledge and belief, the actual quantities and value of the whole amount of materials delivered and labor performed by the aforesaid contractors.
    “ Daniel C. Jenne,
    “ United States Civil Engineer AsstP
    
    “Subscribed and sworn to before me this 28th day of January, 1869.
    [notarial seal.] “John Bruce,
    
      ''•Notary Pidblie, Lee Co., IowaP
    
    Of the above. $160,760 62
    Being the estimated compensation of their ■ whole work, the Henegans have been paid as follows:
    According to their monthly vouchers and receipts.'.$125,222 00
    Paid for their laborers, as stated in Finding II. 21,526 72
    - 146, 748 72
    Balance — being retained under the contract as therein provided-..,. 14,011 90
    
      Y. William Henegan died before the commencement of this action. John Henegan died after the action was commenced, and the present claimant, who is admitted to prosecute the same, has been duly appointed administratrix of the estate of said John Henegan.
    
      Mr. Enoch Totten and Mr. It. II. T. Leipold for the claimant:
    Prevented from the full performance of the contract by the illegal action of the -defendants, the claimants are entitled to full compensation for the services actually rendered and the materials furnished, and to reasonable damages, including a fair allowance for profits which would have inured to them had they been allowed to complete the work. (2 Parsons, 35, aud Bote C; Britton v. Turner, 6 N. H., 481; Howard v. Philadelphia, Wilmington and Baltimore Railroad Company, 13 How., 323; Ciarle v. United States, 6 Wall., 546; Smith v. United States, 94 Otto, 217; Kellogg Bridge Company v. United States, 15 C. Ols. B., 208, and authorities therein cited.) And independent of the illegal termination of the contract by the defendants, the claimants are entitled to proper compensation for all services rendered by them at the request of the defendants, which have been accepted by them, and the benefits of which they hace been and are enjoying. (Britton v. Turner, 6 N. H., 481; Haywood v. Leonard, 7 Pick., 181; Bassett v. Sanborn, 9 Cush., 58; Grant v. United States, 5 O. Cls. It., 71, and cases therein cited; Manufacturing Company v. United States, 17 Wall., 592.)
    The additions and alterations in the work ordered by the defendants constitute a new contract, and the claimants are entitled to the full value of all additional and extra work performed and materials furnished at the request of the defendants, including materials-washed away, regardless of the prices specified in the contract. (Deboris v. Delaware and Hudson Canal Company, 12 Wend., 334; De Boom v. Priestly, 1 Gal., 200; Hayioood v. Leonard, 7 Pick., 181; Ciarle v. United States, 6 Wall., 540.)
    The 15 per cent, of the monthly estimates retained by the defendants should be regarded in the nature of a guarantee for the performance of the contract, and an incentive for special efforts on the part of the claimants to complete the work; at the same time it represents part of the claimants’ compensation for services actually rendered, and the claimants having been illegally prevented by the defendants from completing the work, the amount retained belongs to the claimants. (Quinn v. United States, 99 Otto, 34; Howard v. Philadelphia, Wilmington and Baltimore Railroad Company, 13 How., 323.)
    If the defendants believed they had any just ground of complaint, or had suffered any damage by reason of the delay in the progress of the work after they declared the contract abandoned, they should have resorted to claimants’ bond for relief. {Clark v. United States, 6 Wall., 546.)
    
      Mr. John S. Blair and Mr. B. A. Orbison (with whom was the Assistant Attorney- General) for the defendants:
    It appears that William and John Henegan gave receipts to General James H. Wilson for money paid each month on the monthly vouchers from November 9, 1867, to October 7, 1868, for the work done during the preceding months, which vouchers contained itemized statements of the different kinds of work performed and the prices allowed for each; the receipts containing these words: “in full payment of the above account.”
    
      As the contractors accepted the amounts allowed by General Wilson and accompanied the same with receipts in full, all the consequences of releases under seal attach to the receipts, and are conclusive evidence of a legal agreement to accept the prices therein, and the amounts paid in satisfaction of any claim they may have had for material or labor furnished, which are mentioned in the vouchers. * (Comstock v. United States, 9 O. 01s. it., 141; United States v. Child tb Co., 12 Wall., 232; United States v. Justice, 14 Wall., 535; Case cf Van Wagener v. United States, 11 C. Cls. E., 712; Dale v. United States, 14 O. Cls. R., 514.)
    As the contractors agreed to abide by the decision of the engineer in charge, his action is conclusive and cannot now be overturned. (Kihlberg v. United States', 13 C. Cls. R., 148; Kihlberg v. United States, 97 U. S. R., 398; Sweeny v. United States, 15 C. Cls. R., 400; Case & Van Wagener v. United States, 11C. Cls. R., 712.) The action of the contractors must be construed as assenting to the changes without objection, and the court must regard the changes as an exercise by the defendants of their reserved power, made with the assent of the contractors. [Dalev. United States, 14 C. Cls. R., 514.)
    As the United Stales has suffered a loss of $175,000 by reason of the abandonment by contractors, the 15 per centum retained cannot be recovered, but should be applied to the reduction of the counter-claim. (Quinn v. United States, 99 U. S. R., 30.)
    As the determination as to whether or not contractors had violated their contract had been left to the engineer in charge, his decision was final, and the question cannot be opened at this •time. (Kihlberg v. United States, 13 O. Cls. R., 148; Kihlberg v. United States, 97 U. S. R., 398; Sweeny v. United States, 15 C. Uls. R., 400; Case & Van Wagener v. United States, 11 C. Cls. R., 712; Quinn v. United States, 99 U, S. R., 30.)
    As contractors failed in the performance of their contract, no right of action would accrue for prospective profits. The United States cannot be held liable for any damages incurred by contractors by reason of torts committed by them under the direction of the engineer in charge. (Gibbon v. United States, 8 Wall., 209; Morgan v. United States, 14 Wall., 53l.) The contractors having refused and neglected to continue the work under' .their contract in October, 1868, the government was con» polled to relet the same at prices much in excess of those contained in tbe contract of William and John Henegan.
    As the government, by reason of the breach on the part of William and John Henegan, was compelled to pay Dull $172,024.15 more than it would have paid the Henegans nuder their contract, judgment is asked for this amount against claimant. The general rule as to measure of damages in an action for breach of contract is the actual loss sustained. (Shannon v. Oomstoclc, 21 Wend., 457; Doolittle v. MeOullouah, 12 Ohio. St., 360.)
   Richardson, J.,

delivered the opinion of the court:

This action is brought upon a contract made in 1867 by William and John Henegan, who were'copartners—

“ To furnish all the materials (except the right of way and burrow-pits), which shall be of sound and good quality, and to perform all the labor necessary in excavating the prism and in constructing and finishing, in every respect, in the most sub stantial and workmanlike manner, the embankment-wall of the canal, or so much thereof as the [then] appropriation of $700,000' will pay for, the same being located for the improvement of the Des Moines Rapids of the Mississippi River, and the. work to be done, in all respects, according to the specifications hereto, annexed.

Work was to commence on or before October 1, 1867, and the whole ivas to have been completed on or before July!., 1869, unless unavoidably prevented by high watSr, in which, case it was to have been completed on or before October 30.. 1869.

A bond, with sureties, in the penal sum of $175,000, was. given to the defendants by the contractors, for the faithful performance of the -work.

The undertaking was a large one, and the findiugs,show that after the contractors had worked slowly on for one year they were unable to proceed further by reason of the low price at which they had agreed to do the work, and their inability to raise money with which to carry it on. They were paid regularly for the work done during each month, according to the estimates made by the engineer in charge, reserving 15 per cent., as provided in the contract, from September, 1867, to September, 1868, inclusive, when, in October, théy notified the defendants’ officers that they could not pay their workmen for September, and requested tbe defendants to make the payments for them. This led to the abandonment of the contract on their part, and it was finally declared by the engineer in charge, by orders from the department at Washington, to be abandoned, and public notice was made of the fact by an advertisement in a newspaper at ICeoknk on the 2Gth of October, 1868.

During the year that the contractors were engaged they did a large amount of work, estimated by the engineer iu charge to entitle them to the sum of $160,760.62. They received payments in money to themselves, and by payments to tlieir laborers, as they requested, to' the amount of #146,748,72, leaving $14,011.90 reserved as provided in the contract. The defend; ants might have reserved a larger amount, to wit, 15 per cent, of the. whole amount earned, and they did so tit- first, but the reservation was reduced by the payment of the contractors laborers by the defendants, at the request of the contractors themselves.

When the work was abandoned by the Henegans the defendants’ officers proceeded to advertise for proposals for completing the work, and upon bids made in response thereto they relet the same to another party, as the contract provided they might do. The damages which the defendants suffered by reason of the higher cost of the work which they were subjected to ou account of the Henegan contract and the making of a new contract are found to be $174,024.15.

The claimants now demand not only the amount reserved and held by the defendants as a guarantee for the performance of the contract, but they’ allege that they did much work which was not specifically mentioned iu the contract, and for which they insist that they are entitled to be paid, as upon a quantum meruit, without reference to the prices named in their agreement. They also demand $50,000 damages, because, as they allege, they were unlawfully’ expelled from the work by the officers of the United States, and if they had been permitted to finish the same according to the contract they would have realized that sum as profits.

The findings show that the contractors themselves abandoned the work, and that the defendants suspended the contract fox' that reason. It was expressly agreed “that in case the execution of this contract shall be suspended by the party of the first part on account of the lack of funds or for any other cause, no claim for prospective profits on work not done shall be made or allowed.” So the claim for damages on account of loss of prospective profits is not sustained.

What was the value of ahy work done by the contractors which may not harm been within the specified terms of the contract, or whether or not there was any such work done, we have not deemed it necessai’y to determine. As to those matters the contractors are concluded by the contract itself and the action of the parties thereunder.

It was agreed as follows:

“ENGINEER TO DETERMINE QUANTITIES.
“And to provide for a speedy and just settlement, and to prevent disputes, it is hereby further mutually agreed that the engineer in charge of the work herein contracted to be done ■shall in all cases determine the amount or quantity of the several kiuds of work which are to be paid for under this contract, and the amount of compensation to be paid therefor, and shall, within ninety days after the work shall in all respects have been completed according to the terms and conditions of this contract, present a final account and estimate of the same, which shall be final and conclusive on both parties to this contract; and Brevet Major-General James H. Wilson, U. S. A., will then pay to the parties of the second part the balance due, including fifteen per cent, retained on monthly estimates.
“ALTERATIONS AND DIRECTIONS TO BE COMPLIED WITH.
“And the said parties of the second part hereby further agree to perform all the work contracted for as specified in this contract; but any alteration in the form, dimensions, location, or manner of doing the work, directed by the engineer in charge, beyond what is contemplated in the specifications annexed, which shall increase the cost of the same, shall be done as directed, and the engineer shall decide in writing what increased compensation shall be paid for such alteration, which writing shall be attached to and thereafter form a part of this contract; •and the parties of the second part agree to do the work at the price established by the said engineer.
“INCREASED QUANTITIES WITHOUT CHANGING CHARACTER OR WORK.
“In case any of the quantities exhibited at the letting shall be increased or diminished without changing the character of the work, such increase shall be paid for at the prices in this •contract for the same class of work, and the parties of the second part agree to do tbe work at tbe prices stipulated, without making- any claim for damages in consequence of such increase or diminution.
“MONTHLY ESTIMATES. .
“And it is further agreed that approximate estimates shall be made at the end of each month, under the direction of said engineer, for all work doife under the contract for said month;, and that the amount of said' estimate shall be paid (less fifteen per cent, retained as a guarantee for the performance of the contract) by the middle of the succeeding month.”

From these proAisions it will be seen that the engineer in charge of the work was in all cases to determine tbe amount- or quantity of the several kinds of work, and the compensation-to be paid therefor; that the contractors Avere required to do-any work required, on account of alterations in the form, dimensions, location, and manner of the work beyond what was contemplated in the specifications; that the engineer was to decidewiiat increased compensation'should be paid therefor, and that the contractors should do the work at the price established by the engineer.

At thé end of each month during the progress of the work the engineer in charge made his estimate of the work done-during the month, specifying the same in detail and fixing the-prices to be paid. Not only that, but these estimates and pricesAvere transferred to vouchers, and the contractors were paid, the amount thus found due, and in every case they receipted for the same upon such Avoucher “ in full payment of the above account.”

After the abandonment of the Avork the engineer in charge made a final account and estimate of the ivliole work. From-this and the monthly account receipted by the contractors, after deducting the payments made to and for them, it appears that the balance is less than the 15 per cent, which the defendants have a right to retain. By the estimates of the engineer and the receipts in full by the contractors the claimant is concluded. (Kihlberg v. United States, 13 C. Cls. R., 148; affirmed on appeal, 97 U. S. R., 398. Sweeny v. United States, 15 C. Cls. R., 400; Case et al. v. United States, 11 id., 712; Comstock v. United States, 9 id., 141; Child et al. v. United States, 12 Wall., 232, 7 C. Cls. R., 209; Hawkins v. United States, 12 id., 181; affirmed on appeal, 96 U. S. R., 689.)

It remains to be considered whether,or not the defendants can still retain this balance. We hold that they can do so. The 15 per cent, reservation is three times referred to iu this contract, as follows: The defendants are therein required to pay the monthly estimates, “less fifteen per cent, retained as a guarantee for the performance of the contract.” 2d. In case the contract should be abandoned, “the fifteen per cent, retained from the monthly estimates shall be considered as forfeited to the party of the first part.” 3d. “Payment shall be made when the work herein contracted for shall have been delivered and accepted, reserving fifteen per centum from the payment until the whole work shall have been so delivered and accepted.”

. As the contractors abandoned their contract, and never fully performed their agreements, and as the defendants suffered damages for that reason to a much greater extent than the amount of the reservation, the claimants are not entitled to recover the same, but it is forfeited to the defendants. It would have been otherwise had .the United States sustained no loss or damage by the failure of the contractors to go on with the work according to their agreement. (Quinn v. United States, 99 U. S. R., 30.)

The defendants havefiled and pleaded a counter-claim for damages suffered by them on account of breaches of the contract by the Henegans, which damages are found to have amounted to $174,024.15. This they are entitled to recover if it has not been released by the action of Congress.

On the 3d of March, 1871, the following act was passed (16 Stat. L., 700):

a £5 2 c_i Q c o && e O S3 I ^ I ^ p § re © > £3 í> Q
Be it enacted, cue., That Charles Cooper, Goshorn A. Jones, Jerome Rowley, William Henegan, and John Henegan be, and they are hereby, released and. discharged from all liability to the United States under and by reason of their bond executed thereto to secure .the faithful performance by the said William Henegan and John Henegan of their contract with the Government of the United States for the improvement of Des Moines Rapids of the Mississippi River, in the State of Iowa; and that the action at law now pending in the circuit court of the United States for the sixth circuit and northern district of Ohio to enforce said bond be discontinued by the proper officer of this government, at the cost of the defendants.”

The bond referred to in this act was the identical bond given by tlie Henegans for the faithful performance of the contract to which this counter-claim applies. In fact, this counter-claim is for precisely the same cause of action as was the suit on that bond, which was discontinued by act of Congress at the cost of the defendants. In our opinion, it was the intention of Congress, in passing that act, to relieve the contractors from further liabilities to suit in any form for non-performance of their ■contract, and that the act has that effect.

The act was passed for the relief of all the parties, not only the sureties, but the principals also. It is to be presumed that Congress intended substantial relief — not merely relief from suit in thatone particular form — upon the bond. It would be littleor no relief to the contractors that an action on the bond would be abandoned if the government could maintain a suit against them in another form upon the same cause of action.

We cannot but hold that the act has discharged this counter-claim, which Congress has the right to do.

The liabilities of the contractors and their sureties on the bond which the act of Congress thus discharged was the damage sustained by the United States by reason of the non-performance of the obligations of the contractors, less the amount reserved as a guarantee, which had been forfeited, because that was all that could have been recovered on the bond. Such discharge, therefore, did not relieve the contractors from their obligation to prove that they had performed their part.of the contract, or that the defendants had suffered no injury by their default, as a condition precedent to the recovery of the amount reserved. This case materially differs from that of Sauner, administrator of Hall, decided at the present term, where a specific amount had been released by act of Congress.

The judgment of the court is that neither party is entitled to recover in this action, and that the petition of the claimants and the counter-claim of the defendants be dismissed.

Nott, J., did not sit at the hearing of this case, and took no part in the decision.  