
    HOUSTON’S CASE.
    Emory S. Houston v. The United States.
    
      On the Proofs,
    
    
      Houston and Eggleston agree with each other that they toill sell forage to the Quartermaster Department and divide the profits. To that end Eggleston enters into a contract with a quartermaster and Houston becomes his surety. Subsequently notice is given that Eggleston cannot furnish the forage, and the quartermaster at the post purchases it of Houston at a much higher price than the contract-rate. The defendants refuse to pay the vouchers issued to Houston and he brings suit. The contract on which he is surety provides that if the forage is not f urnished, the receiving officer may “ supply the deficiency by purchase and have the contractor charged with the difference.”
    Where one is nominally surety on a contract but really a partner in the transaction, and the contract provides that in case of default the receiving officer may “ supply the deficiency by purchase and have the contractor charged with the difference,” the surety cannot evade the obligations of the contract by selling in his own name to the receiving officer (to supply such a deficiency) at an increased price. In an action to recover such increased price the defendants may avail themselves of his character of partner and restrict his recovery to the original contract-price.
    
      
      The Reporters’ statement of tbe ease.
    The court found:
    That previous to the letting and making of said contracts,, it was agreed between said Irving Eggleston and the petitioner that said contracts should be obtained and taken in the name-of said Eggleston, and that the petitioner should become one of the sureties on the bonds to be given therefor, and that the expenses of performance and the profits on said contracts should be divided between them as follows, viz: That said Houston, being a merchant, should exchange his goods for corn and hay in quantities sufficiently large to supply the requirements under said contracts, and should be credited for said goods at the ordinary selling price thereof, and the difference between his. bill and the amount of the vouchers given under the contracts should be equally divided between said Eggleston and the petitioner in' monthly settlements.
    Under said arrangement hay and corn were supplied by said Houston, and the said contracts so carried on, and vouchers therefor received in the name of said Eggleston from July, 1869, to January 1, 1870, when the said Eggleston left Nacog-doches to reside permanently at Austin, with an understanding with said Houston that he would continue to supply corn and hay under said contracts and receive the vouchers in his name until the post was discontinued, which was then expected.
    On the 1st day of February, 1870, the following order was issued:
    “ It having been officially reported by 2d Lieutenant H. P. Eakin, 6th U. S. Cavalry, A. A. Q. M., to the commanding officer of this post that the contractor for the supply of forage has signified his inability to fulfill his contract, the Act. Q. M. will purchase corn and hay in open market in quantities sufficient to meet the current wants of the command, until directions shall be received in the premises from hd. qrs. 5th Military District.”
    And in pursuance of said order the said Eakin purchased of the petitioner the corn and hay specified in the voucher, a copy of which is hereto annexed, as follows :
    
      
      “ The United States to E. S. Huston, Ur.
    
    “ Date of purchase.
    Dollars. Cts.
    'March 1st, 1870. For (347) three hundred and forty-seven bushels of corn, © ($2.50) two dollars and fifty cents per bushel. 867 50
    Nacogdoches, Texas. For (23,826) twenty-three thousand eight hundred aud twenty-six pounds of hay, © ($5.00) five dollars per (100) one hundred pounds...1,191 30
    Purchased as per annexed authority.
    Two thousand and fifty-eight and
    Tp50o dollars. 2,058 80
    Approved.
    JOSEPH CONRAD,
    
      Gapt. 11th Infthj, Bvt. Gol., U. S. A. Oom'Wg Post. ”
    
    The contracts above referred to in the findings of the court were for the sale by Irving Eggleston to the United States of corn and hay at prices much below those subsequently agreed to be given to the claimant. Upon these contracts the claimant was surety for their due performance.
    
      Mr. B. F. Grafton for the claimant.
    
      Mr. A. D. Iiohinson (with whom was the Assistant Attorney - General) for the defendants.
   - Loring, J.,

delivered the opinion of the court:

The statement of facts shows that the contracts claimed upon were obtained by collusion between the petitioner and Eggles-ton for their joint interest in profit and loss, with an arrangement that the contracts should be taken in the name of Eggles-ton alone, and that Houston should sign Eggleston's bonds as .-surety.

As a party cannot be contractor and surety on the same contracts at the same time, the United States have the right to consider Houston as contractor with Eggleston, and then both would be equally liable for the performance of the contracts on the terms specified in them. And the facts found show, also, that when Eggleston left Nacogdoches to go to Austin to remain he agreed with Houston that the latter would make the deliveries required by the contract, and receive under that,-in his own name, the vouchers accruing under it. And of this contract between the parties the United States have, by the rules-in assumpsit, a right to avail themselves.

As the petitioner was as partner bound to deliver under the • contract the corn and hay he delivered in February and March, 1870, he was entitled for such deliveries only to the .contract price, amounting to the sum of $2,136.99. He has been paid the sum $1,708.20 for deliveries he was bound to make under the contract, which leave a balance due him of $125.79, for which judgment is rendered in his favor.

Richardson, J., was absent when this case was determined.  