
    Gallus Kerchner v. The United States.
    
      On the Proofs.
    
    
      A contract for the building-stone of the Indimapolis arsenal provides that the stone shall he delivered on the cars at North Vernon, and he inspected hy a person to he designated hy the commanding officer. The stone is inspected at the quarry and delivered on the cars ; but some of it on arrival at Indianapolis is found to he defective or deficient in-size and is there rejected. The Government pays for that actually used in the building, hut refuses to pay for the 
      
      remainder. A receipt in fall is given by the contractor for the payment of a specific number of yards, being that portion which toas accepted and used. He brings Ms action upon the contract for the remainder.
    
    I. Keceiving payment and giving a receipt in fall under a well understood compromise will conclude a claimant. But where there are no disputed facts and the receiptdn terms is for the payment of a specific number of yards of stone delivered and accepted, it does not conclude the claimant from seeking payment for other stone not embraced in its terms though delivered under the same contract.
    II. Whore a contract provides that certain building-stone shall be delivered on the cars at a specified place, and shall be inspected by a person to be designated by the defendants’ officer, and the stone is inspected at the quarry and then delivered by the contractor on the oars, it cannot be again inspected and rejected after shipment.
    
      Mr. V. B. Edwards for the claimant:
    Tiie claimant, at North Vernon, Indiana, delivered on board the cars of the Madison and Indianapolis Kailroad, being the place of delivery specified in the written contract, dated July, 1854, dimension stone, 2,307 cubic yards, under the contract, and inspected by Thomas Yost and Fall, the persons designated by the commanding officer, Captain Whitmore, as provided by the contract. No other person was ever designated by or had any authority from Captain Whittemore, the commanding officer, to measure the stone. Key was designated by Captain Tread-well under another contract, and plaintiff objected to his measurement. There, was a legal contract, an adequate appropriation. (12 Stat. L., p. 537; 14 Stat. L., p. 487.)
    -The number of yards delivered on the cars at North Vernon, in all, 2,743.
    Value of stone, average, $14.50.
    Number of cars, first and second 'contract, G20; of the carloads delivered, 96 were under the first contract, 524 under the second.
    The average on the car was four and a half yards. The Government agent, Fall, says 4 — the heavy stone shipped before he went there — the others 5 yards.
    The stone was quarried according to the bills of dimensions furnished, and was inspected and approved by the Government agent. The claimant insists that, under the contract, he is entitled to the reasonable value, $14.50 per yard, on the excess over 1,500 yards delivered: that the. amount paid $825.25.
    
      Kerchner refused to sign the receipt, claiming more due. His creditors forced him to sign. Besides, the receipts can only be construed as so much money paid, the essence of the contract being the quantity or number of yards of stone delivered, and show upon their face that they are for so many yards. The receipt, dated April 21, 1861, upon examination, it will be noticed that is only iu full of the lo per cent, withheld by the United States at the various dates.
    
      Mr. Assistant Attorney-General MoMichael for the defendants.
   Milligan, J.,

delivered the opinion of the court:

The cause of action presented in this record arises on a written contract made and entered into by the claimant with the Government of the United States, through their officer and agent, Captain James M. Whittemore, on the 1st day of July, 1SG1, whereby the claimant bound himself, under certain stipulations therein mentioned, to furnish to the Government 1,500 cubic yards of such stone from his quarry at North Vernon, in the State of Indiana, as may be required for the erection of the main arsenal building at Indianapolis.

The stone, by the terms of the contract, was “to be of first-quality blue limestone, and to be of such dimensions and in such quantities as may be specified from time to time by the said Captain J. M. Whittemore, commander of the Indianapolis arsenal, or his successor. The quantity of stone to be furnished •to be one thousand five hundred (1,500) cubic yards, more or less. All of said stone to be delivered on the cars of the Madison and Indianapolis Railroad at North Vernon aforesaid, for transportation to Indianapolis. The delivery of said stone to begin two days from date of this contract, and continue thereafter as'fast as may be required for the work on the building, until the whole quantity required is delivered. All of said stone to 1e inspected by the master-builder, or by such person as may be designated by the commanding officer of the Indianapolis arsenal, and to be measured according to the bills of dimensions.

“All these stone are to be delivered by the said party of the first'part; and all claims under this contract, if transferred to another party, are to be by such transfer forfeited, saving the rights of the United States. Payments, in such funds as the Treasury Department may provide, are to be made at the rate of five dollars ($5) per cubic yard, aud in sums not less than five hundred dollars, ($500;) fifteen per cent, of which will be retained until the fulfillment of this contract.”

The claimant avers the fulfillment of his part of the contract, and alleges that he has not been fully paid for the amount of stone delivered and accepted by the defendants.

In his petition he states that he has delivered for the use of the United States 2,308 cubic yards of stone, for which he has been paid, at the contract price, for only 1,211-t cubic yards, leaving unpaid 1,096£ cubic yards. Of this amount he claims that he ought to be paid for only 288J yards at the contract price, and for the remainder — 808 yards — under an implied contract, at the fair and reasonable value of the stone per yard, which he claims to be $14 per cubic yard, making, in the aggregate, $12,754.50.

The essential facts on which the case rests are found to be as follows:

There appear to have been two contracts under which the claimant delivered stone to the defendants. But little is said of the first contract in this record, and nothing is claimed under it. It serves, however, to show that the first stone which were delivered in the fall of 1863 and spring of 1864 were delivered under it; but they have all been paid for, and need not be further noticed in this case, which rests wholly on the second contract hereinbefore referred to.

The delivery of stone under the contract sued on began soon after its date, and continued up until the spring of 1866. The stone were all “ dimension stone,” and gotten out at the quarry according to the bills of dimension furnished by Mr. Key, the foreman of the arsenal works. These bills were furnished to Thomas Fall or Thomas Tost, who were sent to the quarry by James M. Whittemore, commander of the Indianapolis arsenal, as inspecting and receiving agents of the Government; and every stone, before it was loaded on the cars at the quarry, was measured, numbered, and inspected as to its quality by one or the other of these gentlemen. The United States paid the freight on the stone from the quarry to the arsenal building, where they were again inspected and measured by the master-builder, or some one appointed thereto by the officer in command at the arsenal. Some were rejected on inspection at the arsenal under both the first and second contracts. Those rejected under tbe first were afterward paid for by tbe Government ; but there is no proof which shows that any portion of the stone which were rejected under the second contract have ever been paid for.

The precise quantity of stone shipped by the defendants from the quarry does not appear; nor is it distinctly shown how many cubic yards were rejected under either contract at the arsenal. It does, however, appear by the books of the railroad company that prior to the 6th of July, 1864, there were shipped under the first contract 178 car-loads, and subsequent thereto, under the second contract, 442 loads, making in all 620.

Every stone that was shipped from the quarry to the arsenal grounds was inspected by Tost or Fall before it was loaded on the cars; and if by mistake or accident any one was put on the cars which was not fully up to the specifications, it was rejected and thrown off the cars and another put in its place. Each car-load, on an average, contained 4£ cubic yards of stone in gross.

The claimant has been allowed and paid for 1,224J cubic yards; and on the last and final payment he executed the following receipt:

Dato of purchase. Appropriations — arsenals. Amount. Remarks, shewing the objectsofthepurchaso or expenditure.

I860. April 21 2£ yards stone, at $5. 15 per cent, reserved on former hills, it being in full of all accounts to date on stone, according to contract. Total amount. §12 50 812 75 825 25 For main building

I certify that the above account is correct and just.

JAS. M. ’WHITTEMORE,

Ca/pt & JBvt. Maj. Ord. Com'd'g.

Received at Indianapolis this 21si day of April, 1866, from William Y. Wiley, M. 8. K., the sum of eight hundred and twenty-five dollars twenty-five cents, in full of the above account.

GALLUS KEROHNER.

On the foregoing facts only two questions are raised by the defendants’ counsel: First, it is insisted that the receipt found in the record concludes the claimant from all further recovery in this action; and, second, if be is ,not concluded by the receipt, bebas been fully paid for all tbe stone delivered and accepted by tbe Government.

1. In answer to tbe first question, it is readily admitted, if tbe claimant received payment and executed tbe receipt presented in tbe record, under a fair and well-understood compromise between bim and tbe defendants, be is concluded thereby, and can take nothing by bis subsequent action. But there do not appear to have been any disputed facts respecting it; and tbe record leaves no doubt that it was understood by both parties at tbe time of its execution that tbe receipt covered nothing but tbe amount of stone which actually went into tbe building. Nothing was said by the parties, or intended by tbe receipt, which affects tbe amount of stone1 that was received at .the quarry, and afterward rejected at tbe arsenal. Tbe receipt is, therefore, final and conclusive on tbe claimant as to tbe matter about which it purports to speak, but it does not constitute a bar to tbe claimant’s right to recover for tbe stone received at tbe quarry, and subsequently rejected on tbe arsenal grounds.

2. Tbe second ground of objection presents a mixed question of law and fact, which involves a fair and just interpretation of tbe contract, and an application of tbe facts to such interpretation.

In respect to tbe first branch of this inquiry, it may be remarked that tbe only question of construction arising on tbe contract is as to tbe place where the stone was to be delivered. Tbe contract itself removes all difficulty on this point. It declares that “ all of said stone to be delivered on tbe cars at North Vernon aforesaid for transportation to Indianapolis.” Tbe place of delivery is, therefore, fixed at North Vernon, where tbe quarry is located; and tbe subsequent clause in tbe contract, which requires tbe stone to be inspected “by tbe master-builder, or by such person as may be designated by tbe commanding officer of tbe Indianapolis arsenal,” in no sense conflicts with this view of tbe contract. Tbe inspection was made at. tbe quarry, before shipment, by tbe authorized agents of tbe commander of tbe arsenal; and when tbe claimant bad furnished the stone there, according to tbe bills of dimensions, and they were received and loaded on tbe cars at North Vernon, be bad done all tbe contract required bim to do, and from that time forth tbe stone were at tbe risk of the defendants, and they liable to pay for them.

The precise quantity of stone thus delivered is not shown by the proof, but it abundantly appears that he delivered more than the 1,500 cubic yards required of him in the contract. The books of the railroad company over whose line of road the rock were shipped show that 442 car-loads were shipped under the second contract; and the proof establishes that each car-load averaged, in gross, 4£ cubic yards, making in the aggregate 1,989 yards in gross. The claimant has been paid for 1,224J cubic yards, and the balance remains unpaid.

But this result rests on the average estimate in gross of each car-load shipped from the quarry, and it is impossible for the court to fix, with absolute accuracy, the specific quantity of stone delivered by the claimant. But vague as the proof is in this respect, it is certain that he delivered under this contract the full amount of 1,500 yards called for in it; and for this amount, less the 1,224],- yards for which he has been paid, he should recover.

The stone delivered were all “ dimension stone,” and by the terms of the contract they were to be paid for at $5 per cubic yard, which gives for the 275],- yards still unpaid for the sum of $1,377.50, for which judgment will be entered.

Nott and Peck, J. J., agreed with the opinion read by Judge Milligan,

Drake, Ch. J., dissented.

LoriNG, J.,

dissenting:

I think in this case it is shown that the petitioner has been paid for all stone accepted under the contract and used in the arsenal building. But the evidence also shows that stone required for the building was used in various ways by the United States, but how much was so used is not shown. And as the burden of proof of that is on the petitioner, I think he is not -entitled to judgment had, but that his case should be remanded to the docket for evidence.  