
    THE CURTIS CASE. Joseph Curtis v. The United States.
    
      On the Proofs.
    
    
      Congress enact that all the contracts for the branch mint at San Francisco shall not exceed $300,000. The claimant contracts to erect the mint and furnish the machinery for $297,929. At the request of the agents of the government, he supplies additional machinery and does certain extra work north $8,680, malting an aggregate cost o/$306,609. The claimant also agrees that the building and machinery shall be for 1 ‘ a mint capable of coining $30,000,000 of goldper annumand “if there should lack in the schedule of necessary and propw machinery, implements or furniture for a branch mint of the capacity to coin $30,000,000 of goldper annum, that he will also furnish them," At iherequest of the agents of the government he furnishes a 11 separating department.” which, it is mutually understood, will be an extra charge. The “ separating department" is necessary for the coinage of California gold.
    
    I. The liability of the government in. actions on contract, express or implied, is simply that which the claimant might pursue against another defendant in another court. This court never gives greater or discretionary relief.
    In actions on contract, express or implied, the'government is to he regarded as the principal, audits officers as its agents; and no acts of theirs can hind the government for a greater amount than that to which it has limited its liability by statute.
    A statute limiting the amount of an expenditure is notice in law and in fact to the contractor that the officers of the government cannot exceed the prescribed bounds. If they are exceeded, the claimant must be deemed to have gone beyond the fixed limit at his own risk. (Act July 3, 1852, 10 Stat. L., p. 11.)
    II. When a contractor agrees that 11 if there should lack in the schedule” annexed ‘ ‘ implements or furniture for a branch mint of the capacity to coin $30,000,000 of gold per annum, that he will also furnish them,” nothing can be additional which is necessary for the coinage of the kind of gold intended to be coined at that mint.
    III. Where an act of Congress limits the expenditure for the erection of a mint and its-machinery, the limitation does not extend to a contract for planking the street in front of the mint, consequent to the street being regraded after the premises have been conveyed to the government.
    IV. The other points decided relate only to the particular contract in this case.
    Mr. Samuel E. Lyon for the claimant:
    This claim is for work and materials done and furnished by the claimant, in the erection of the branch mint at San Francisco, in 1853 and 1854, not included in his contract.
    The proofs show a contract between the Secretary of the Treasury and the claimant, by virtue of the two papers set out in the petition, the first dated 15th of April, 1853, and the second on the 6th day of July of the same year. Taken together, they constitute one contract, by which the claimant agrees to do the following things :
    1. To erect, finish, and complete,in San Francisco, a suitable building for a branch mint, on the site of the assay building, then occupied by the claimant, and the lot of twenty feet in width adjoining thereto ; such parts of the assay building then on the lot conforming to the drawings, to remain as it was, and the rest of the building “ to be built on (tied in) to it," and secured thereto in the most perfect, complete, and substantial manner.
    
      2. This building to be erected and finished throughout agreeably to the plans submitted by the claimant.
    8. He agreed to do this work (that is, the work in the manner specified) under the direction of the superintendent of public buildings in California, to his full and entire satisfaction and acceptance.
    4. He further agreed to furnish all the requisite machinery, fixtures and tools essential for a branch mint, in conformity to the act of Congress on the subject, capable of coining thirty millions of gold per annum, and a detailed specification of this machinery and necessary fixtures was signed in duplicate.
    5. He further agreed that all the machinery and implements for coining should be of the very best quality, equal to the Philadelphia mint, and if there should lack in the schedule implements or furniture for a branch mint of the capacity to coin thirty millions of gold per annum, he agreed to furnish them, and have the mint and all the machinery, implements, and tools ready and in complete working order for the business of 'coining that quantity of gold, on or before the 1st of February, 1854.
    Thus, by the contract itself, it is perfectly evident that a mint, with the machinery for coining gold, was the thing in the contemplation of the parties when the contract was made, and that only.
    Subsequently, the United States determined to add a separating department to the mint, and a refinery for “sweeps,” for which no provision was made in the contract, and the claimant, under the direction of the agent sent out by Mr. Guthrie, furnished all the materials and labor necessary therefor.
    This agent, Mr. George Eckfeldt, in his testimony, swears that neither the contract nor specifications contemplated a separating department, but “ that California gold is of itself not of standard fineness for coining, and there is not sufficient- silver .in it for the acid to act on.”
    
      The plaintiff's claim is divided under distinct beads ;
    1. For tlie money expended in altering the building, in consequence of the ■ change of the grade of the street on whieh it was built, as directed by the agents of the government having charge of the erection of the mint.
    Mr. Eckfeldt, the special superintendent, was sent out by Mr. Guthrie and reached California on the 16th November, 1853. Shortly before his arrival in San Francisco an ordinance had been passed by the municipal council of that city to raise the grade of Commercial street, on which the assay office stood, about three feet at that point. Mr. Hammond, then collector, was one of the commissioners for public buildings in California, .appointed by the Secretary of the Treasury in 1853, and was charged with the general superintendence of the United States mint. As soon as Mr. Eckfeldt arrived, both he and Mr. Hammond determined to have the assay building raised to the new grade, three feet; gave their orders to the claimant accordingly, and reported the same to the Treasury Department. Mr. Eckfeldt further testifies that. there was no practical difficulty in carrying out the contract by the claimant, as is evident, but the result would have been less convenient and the property less valuable to the government. It will not be forgotten that the ordinance for tlie change of grade was made after the contract was made.
    The next subject of claim is the additional expense to which the claimant was put in consequence of the superintendent erecting a separating department in the mint not provided for or contemplated in the contract.
    By referring to the contract the court will see that it relates solely to a mint for coining gold ; and by referring to the proofs it will be seen that the business of coining gold and -parting it, or separating it, are entirely distinct processes. In Europe, the two processes are not carried on in the same building. The gold is taken to the mint already refined, and it was supposed things would take that course in California, as- the character of that gold would make the business of refining by private enterprise profitable. • ■
    No provision was made in the contract to supply accommodation for the separating of gold or for refining “ sweeps,” but when Mr. Eckfeldt reached-there, he ordered it to be done, and it was put in at claimant’s expense. =
    The items of this work, it will be noticed, do not include, in any respect, any apparatus for the separating department.
    
      The last claim is for extra work done by order of Mr. Eckfeldt, not in the contract or in the preceding items.
    The principle npon which the claimant put his right to recover for the extra work, is the familiar one that the work was directed by the principal or his lawfully authorized agent, the same not being provided for or contemplated in the contract.
    The Deputy Solictor for the defendants:
    The claimant is making a demand upon the United States for extra compensation growing- out of alleged, extra work on the branch mint at San Francisco, in California, beyond the express terms and, limitations of his contracts.
    The special statements from the Treasury Department, in proof for the defendants, will show that this claimant has already been paid the sum of 3283,929 10, and as a full adjustment for all claims under Ms contracts, cited in Ms petition. Beside this aggregate amount, he has received from the director of the mint, as presumed to be due for suitable and efficient apparatus in a separating department for the branch mint, (included, as will be shown, within the terms* of Ms contracts, and so received under a misapprehension of his legal rights under said contracts,) the further additional sum of $14,000 for supplying and finding room for a separating department, and for all its apparatus and machinery in the proposed new building at San Francisco. The entire sum thus received by him will have been shown, under defend- . ant’s proofs, to reach $297,929 10, within the very verge of the confine set by the acts of Congress to the expenditure (in the whole) upon this branch mint in California, to wit, the sum of $300,000 ; and beyond which, under no contingency, could expenditure for a branch mint have been carried under any contract after the bids in this case. Act of 1852, ch. 54,,(10 Stat., 11,) the special clause .in the appropriation bill for year ending June 30,1853, (10 Stat., 96,) and the sixth section of the act to supply deficiencies for fiscal year ending June 30, 1853, (10 Stat., 188.) Additional proviso, further, as to the building and machinery, in act of 1852, ch. 54, establishing the branch mint in California. 10 Stat., 13; 10 Stat., 96.
    By the act of July 3,1852, (10 Stat., 11,) “a branch of the mint of the United States was established in California, to be located by the Secretary of the Treasury, for the coinage of gold and silver.” These are significant words, expressive of the whole intention of Com gresspand incapable of being narrowed down to square to any calcula tions of ingenious parsimony this or that contractor might adopt. The past legislation of Congress bad, in establishing branch mints, made distinction as to coinage of gold and silver, and for the coinage of gold only. In 1835 throe branches of the mint of the United States were established, as follows: one branch at the city of New Orleans for the coinage of gold and silver ; one branch at the town of Charlotte, in the State of North Carolina, for the coinage of gold only; and one branch at or near Dahlonega, in Georgia, also for the coinage of gold only. (4 Stat., 774 ) The number of officers of this branch at San Francisco were made to correspond with those at the branch in New Orleans, being one superintendent, one treasurer, one asssayer, one melter and refiner, and one coiner. The officers of the mint of the United States are a director, a treasurer, an assay er, a melter and refiner, a chief coiner, and engraver ; and it would require much stronger proofs than any given in this case, as now presented by the claimant, to have negatived the necessity of providing room in the San Francisco building for a separating department, when all such appliances are needed and found at the mint in Philadelphia and the branch at New Orleans, where there is a national “ coinage of gold and silver,” under the acts establishing the mint and the branches at New Orleans and San Francisco. In the act of 1837, supplementary to “An act establishing a mint and regulating the coins of the United States,” the duties of the melter and refiner are set down as follows : “ Fourth. The melter and refiner shall execute all the operations which are necessary in order to ■form ingots of standard silver or gold, suitable for the chief coiner, from the metals legally delivered to him for that purpose, (January. 18, 1037, 5 Stat., 136;) and in the same act, (5 Stat., 138, sec. 18,) when giving the rates of charges to which depositors are liable, the one for separating the gold and silver when these metals exist together in the bullion deposited should be conclusive against the allegation of the petition that the contracts for a branch mipt at San Francisco, where gold and silver, under the very act establishing the branch there in 1852, were to be coined after being brought to standard fineness, did not include a separating department or its machinery. Again, in the arrangements at the mint in Philadelphia, under the act of 1837, chapter 3d, just cited, there is full recognition of a separating department and of its necessity under acts establishing branch mints. Section 14 of this act (5 Stat., 138) allows gold and silver bullion brought to the mint to be received and coined by the proper officers for the benefit of the depositor: Provided, That it shall be lawful to refuse at the mint any deposit of less value than one hundred dollars, and any bullion so base as to be unsuitable for the operations of the mint: And firovided, also, That when gold and silver are combined, if either of these metals be in such small proportion that it cannot be separated advantageously, no allowance shall be made to the depositor for the value of such metal.” It will be in point here to note that the act establishing the branch mint at San Francisco, in California, makes all the laws in force for the regulation of the mint in the United States applicable to it. (3d July, 1852, 10 Stat, 11, sec. 5.)
    Again, by act of 3d of March, 1853, making appropriations for the civil and diplomatic expenses of government for eighteen hundred and fifty-four, (10 Stat., 212, 213, 214,) there was provision made for an assay office in New York “ for the receipt and for the melting, refining, farting and assaying of gold and silver bullion and foreign coin,, and for casting the same into bars, ingots or disks,” placed, like the branch mint at San Francisco, under the director of the mint, in sub;ordination to the Secretary of the Treasury. The 11th. section of this-act, establishing a mere assay office, authorizes the owner or owners of any gold or silver bullion, in dust or otherwise, or of any foreign coin, to deposit the same in the manner there prescribed,, and such bullion shall, without delay, be melted, farted, refined and. assayed, and the net value thereof shall be ascertained. It is now contended by this claimant that a branch mint afa San Francisco, under and in virtue of the act of 1852, ch. 54, (5 Stat.,. 11,) and the special clause of the appropriation bill already cited, (10 Stat., 96,) and of the deficiency bill of March'3, 1853, (LO Stat., 188,) did not require him to provide any room in the building he was about to construct in San Francisco for the needful machinery used in separating gold or silver. Yet this branch mint was for a national coinage of gold and silver., and', depositors of any gold or silver bullion at San Francisco-would' have-had legal grounds of complaint had they been denied, the facilities, held out to them by the act establishing the branch mint there,, with .full capacity for coinage, as at Philadelphia and New Orleans.
    The 6th section of the act of 1853 (10 Stat., 188) is as follows :
    “ Sec. 6. And be it further enacted, That the time for receiving bids-under the act of 3d July, 1852, for the erection,of a mint in California,, be extended to the first of April, 1853, and that the sum of three hundred thousand dollars appropriated by said act, or so much■ thereof as may be necessary, shall be applied only to the erection and putting in operation a mint in California, and not to the f urdíase of any building, for that purpose.”
    In this case, notwithstanding this section, a building was purchased,. needing enlargement, and this enlargement on a lot purchased by the United States has been “ built on or tied in ” to this old building. The United States are now called to answer in damages for extra work on such building so purchased, as alleged in petition, in the face of a prohibitory clause.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $27,333 41 upon certain contracts for the building and machinery of the branch mint in San Francisco. The case was once tried before three judges, but no judgment was rendered by reason of the disagreement of the. court upon the amount of damages to be awarded. It now comes before us on the following facts:

In the year 1853 Mr. Guthrie, Secretary of the Treasury, invited proposals for the construction of a branch mint at San Francisco, to which one William A. Barton, among others, responded. His bid was deemed the best and his proposals were accepted. These proposals with their acceptance were then, with the, assent of the Secretary, transferred to the claimant. Two contracts were subsequently executed, which departed somewhat from the tenor and provisions of the proposals; but the agreement to depart was mutual and no question was ever raised as to its legality, and the mint upon its completion was accepted fey the government. Shortly after the execution of the contracts the Secretary appointed two commissioners to superintend the work, and Mr. George Eckfeldt, an experienced machinist in the mint at Philadelphia, was sent out as a " commissioner for the building of-machinery.” During the progress of the work various alterations and additions were ordered and allowed by Mr. Eckfeldt and the commissioner, and out of these alterations and additions this suit arises. It involves chiefly matters of fact and .questions pertaining only to the construction of this particular contract, but there is one question of general importance also involved, which will be first considered.

The first section of the act of July 3, 1852, (10 Stat. L., p. 11,) provides “ that a branch of the mint of the United States be established in California” “for the coinage of gold and silver.” The tenth section limits the expenditures as follows, viz: “ That before the Secretary of the Treasury shall procure or erect the buildings provided for in the second section of this act, or commence operations under any of the provisions of the same, at San Francisco, State of California, it shall first be his duty to make a contract or contracts for the erection of said buildings, and procuring the machinery necessary for the operations of said mint, at a sum or sums which shall not, in the whole, exceed the sum of $300,000.” The original or written eontraet between the parties contemplated only the coinage of gold. It was not necessary that the contract should embrace both. The end might be obtained by one or by many contracts, only they would be subject to the limitation of the statute. This .limitation in clear terms bound the contracts for the coinage of gold and of silver — for the coinage of both or of either.

The aggregate consideration of the formal or written contracts of April 15 and July 6 was $283,809 10. By a subsequent agreement with the director of the mint the claimant agreed to furnish additional apparatus at the stipulated price of $14,000, whieh for the present we assume to be for the coinage of silver. During the progress of the work a number of alterations were made by the direction of the government agent, and these alterations the court find to be extra work of the value of $8,680, so that the moneys which the claimant has received, ($297,929 10,) with those which he has expended to the use of the government in the cost of the alterations, ($8,680,) amount in the aggregate to $306,609 10, or $6,609 10 more than the amount to which the expenditures were limited by Congress. The chief legal question in the case is, “ can the claimant recover for this excess ?”

The difficulty is not one of appropriation. Contracts in excess of an appropriation are held void ordinarily to that extent. That difficulty, however, so far as it relates to cases in this court, Congress has bridged by the general appropriation to meet its judgments. If this were not so we should be constantly stopped by that obstacle. The Court of Claims was established to meet those cases where a man came before Congress and said, “ I have expended money for, or rendered service to, the government, for which I could recover in a court of justice if the party with whom I dealt were a citizen or a body corporate. I ask a like remedy and a like liability on the part of the government.” Hence, there are claims properly and legally rejected by the departments for want of appropriations, yet properly and legally sustained here by virtue of the general appropriation to meet our judgments.

The proviso in this statute was not an appropriation, but a condition or limitation. It says, in effect: “ The cost of the branch mint in California, with all its appurtenances and apparatus, shall not exceed $300,000; and if it should, the government shall not be liable for the excess.” To all intents and purposes the government wrote this limitation upon the face of the contract. Is there any way by which the claimant can escape from it ?

The rule and principle adopted by this court for the administration of justice between a claimant and the government is simply to give that measure of relief which the law would award were the action between man and man. The court never gives greater and never gives discretionary relief. Sometimes this rule is modified by holding parties to greater care and vigilance than if they had dealt with private persons ; but the liability of the government in these actions on contract, express or implied, has been held generally to be simply that which the claimant might pursue against another defendant in another tribunal.

What, then, can the claimant here recover, if the government be re- • garded simply as the principal and its officers as its agents ? At the beginning of the transaction the principal gave to the contractor the plainest and the clearest notice that all of its expenditures and liabilities should not exceed a fixed and certain sum. The statute became to the claimant notice in law and in fact that the expenditures could not be'earried beyond certain bounds; and it was, moreover, by direct reference, stamped upon and made a part of the contract which is the foundation of the claimant’s rights. This condition the law-making power never relinquished, nor by any act waived, nor at any time authorized the executive officers to exceed. The law-making power was here the government, and the executive officers were its agents, and no acts of theirs could bind their principal for a greater sum than had been consented to and agreed upon.

Yiewed as a transaction between private persons, the claimant must be deemed to have gone beyond the fixed limit of his agreement at his own risk, trusting for recompense to the liberality of the party with whom he dealt — a liberality which courts of justice cannot enforce. Yiewed as a transaction between a contractor and the government, the claimant must be held to abide by the conditions which the statute imposed, both upon him and upon the officers who directed his expenditures. Were such statutory provisions to be disregarded, and were judgment to be given whenever a claimant shall prove that he has done work or rendered service under the direction of an executive officer, it would enable the executive branch of the government, with the aid of this court, to annul a law of Congress, and to throw down any limitation which Congress might impose upon the cost of our public works.

It remains to speak of the items which make up the claimant’s demand. Subsequent to the date of the written contracts for the erection of the branch mint, but before the work was begun, the municipal authorities of Sau Francisco raised the grade of the street in front of the building which had been procured for the mint. The agents of the government thereupon requested the claimant to raise the building so as to conform to the new grade. This alteration was not necessary to the performance of his contract, and was clearly a departure from its terms. He was not compelled by the contract or by the necessities of the case to make the alteration, but the alteration was a benefit to the government, and properly made at its request. We therefore think that for this, and for the expenditures incidental thereto, he should recover.

There was also an item of expenditure in planking the re-graded street, which we think does not come within the contract, and henee is not affected by the limitation of the act. The improvement of the street was not a part of the mint, but was an improvement to the property already sold to the government, for which it should be held liable, irrespective of the proviso that the contracts for the erection of the mint should not exceed $300,000. It was money paid to the use of the defendants, for which the claimant may recover as upon a separate and distinct contract.

The claimant also seeks to recover for certain alterations and additions in the building and of the apparatus, and for the erection of an independent department termed the “ separating department.” The right to recover here depends upon the construction to be given to the contract, and we therefore will consider these items as' one.

The act of Congress authorized the erection of a branch mint, as has been said, “for the coinage of gold and silverThe formal contract under it was for “ a suitable building, and to furnish all the requisite machinery, fixtures, and tools essential for a branch mint in conformity to the act of Congress.” The building was to be “ erected and finished throughout agreeably to the plans submitted by the party of the second part;” and the machinery was to be “ for a mint capable of coining thirty millions of gold per annum.” A “ detailed specification of this machinery ” was to accompany the contract; but it was expressly “agreed * * * that if there should lack in the schedule of necessary and proper machinery implements or furniture for a branch mint of the capacity to coin thirty millions of gold, fyc., that the party of the second part will also furnish them ” It was, we think, the intent and meaning of this contract that the contractor should do everything and furnish everything to render the mint complete; and, therefore, that nothing could be additional which was essential to the coinage of thirty millions of gold. But, on the other hand, the contract did not provide for alterations in the details agreed upon; and hence, where such were undertaken at the request of the defendants, and were a cause of extra expense to the contractor, they form a just cause of action here.

Against this it is insisted by the claimant that the “ separating department ” was something distinct and different from a mint, and was not included in the provision for coining thirty millions of gold,” which coinage may be, and was expected to be, made from gold already refined by private workers. To sustain this the claimant produces the special contract made with the director of the mint subsequent to the two formal contracts, which special contract includes apparatus for the separating department. He also seeks to establish this construction directly by parol evidence. But whatever may have been the opinion of the officers charged with the superintendence of the work, it cannot materially affect the legal construction to be given to the contract. The evidence shows that Californian gold is not of standard fineness for coining, and we think that when Congress established a branch mint in California, it was the intent of Congress that it should contain everything essential to the coinage of Galfornian gold. We think also that when the claimant undertook and agreed to erect a suitable building” and to furnish “ALL requisite machinery, fixtures, and tools essential for a branch mint in conformity to the act of Congress,” and to furnish this apparatus whether contained in the schedule or not, he thereby undertook and agreed to carry out and give full effect to the intent of Congress, and that the limited meaning con tended for by him cannpt be allowed in his case.

The damages now to be given, therefore, must be restricted to the difference between the sum already paid to the claimant, viz., $297,929 10, and the sum to which the expenditures for the branch mint were limited by Congress, viz., $300,000. That difference' is only $2,070 90 ; whereas the amount the claimant would be entitled to recover were it not for the provision in the tenth section of the act, would be $8,955.

We have come to this conclusion with extreme reluctance, and after a prolonged consideration of the case; for the claimant appears to have acted with liberality in everything that the officers of the government requested, and the loss to which he is subjected was caused by a misunderstanding on their part both of the contract and their powers and duties under the act of Congress.

The judgment of the court is that the claimant recover the sum of $2,070 90, and the further sum of $275, amounting in the aggregate to the sum of $2,345 90.

Luring, J., dissented.  