
    GRANT & CO.’S CASE. A. Grant et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants contract with the government, through an officer of the War Department, to erect in the city of Philadelphia a fireproof storehouse, to furnish all the materials, to perform all the labor, and to complete the building 
      
      according io Hie specifications annexed to the contract, for the price named. It is also provided that no extra charge for modifications shall he allowed tmlcss agreed upon in writing. An appiropriationis made hy Congress to cover the cost of the building ; m the erection of the building, and hy direction of the agent of the government, extra materials are furnished, and extra labor performed, largely increasing the cost of construction beyond the original contract price, and beyond the appropriation made therefor, and without any written agreement. The building is made more valuable, and the government accepts the same and enjoys the benefit of its increased value. The claimants were ready and tvilting to complete the building according to the original contract.
    
    I. Where a written contract, entered into hy the War Department, contains fall specifications of a building to be erected, and limits the cost, with a provision that no extra charge for modification shall he allowed unless agreed upon, in writing, and where an appropriation therefor is made by Congress agreeing- with the contract price, yet if the contractor is directed by ah agent of the War Department to furnish extra materials and perform extra labor, so that the building- is rendered more valuable and useful, and is thus aecoxited and used by the government, the defendants become liable in an action on an implied contract for tho fair and reasonable value of the extra materials furnished, and for the extra labor performed, notwithstanding the cost exceeds the appropriation, and notwithstanding- tho Act 2d June, 1862, (11 Stat. L., p. 411,) limiting- the power of the Secretary of War, as well as all officers or agents acting-under him, in matters of contract, to written agreements.
    II. When a contractor, in the erection of a building for the government, obeys a subordinate acting without authority, and is thus delayed in the completion of his contract and thereby suffers loss and damage, he does it in his own wrong, and the government cannot be held liable for the injury ho has sustained.
    
      Mr. Enoch Totten for tbe claimants:
    Tbe plaintiffs contracted with tbe defendants to supply tbe materials and construct a fire-proof storehouse in Philadelphia, according to certain plans and specifications. While the work was progressing tbe defendants required tbe plaintiffs to make alterations in and additions to tbe said plans and specifications, which involved tbe purchase of large quantities of extra materials and tbe performance of a great deal of extra labor. Much delay, was caused by tbe defendants through these additions and alterations and other circumstances, which postponed a great part of the work until the winter set in, thereby greatly increasing the cost of labor and materials.
    This action is instituted to recover for the said extra labor and extra materials, as well as for the additional cost of materials and additional cost of performing the labor occasioned by such delay.
    
      The act of July 13, I860, appropriated. $146,000, to be disbursed for the “erection of a fire-proof building” at or near the Schuylkill Arsenal, in Philadelphia. (14 Stat., 92.)
    The contract to construct this building was awarded to the plaintiffs after regular advertisement according to law, and was executed by the United States through General G. H. Grosman, assistant quartermaster general, at Philadelphia. The sum agreed to be paid the plaintiffs was $138,800, and the building was to be constructed according to plans and specifications exhibited at the time of making the contract, and forming a part thereof.
    The plaintiffs claim that they have constructed a building which is worth, and which actually cost them, over $200,000, in consequence of additions and alterations made in and about the storehouse by the directions of the defendants. A special clause in the contract arises here for consideration, which is in these words: “No'extra charge for modifications will be allowed, unless such modifications are agreed upon in writing by the parties.” And in the specifications is found the following: “ No allowance will be made for any extra work whatever, unless the cost of the same, previous to execution, is agreed upon in writing between the' parties to this contract or their legal representatives.”
    Upon any construction that may be put upon this clause, and the clause from the specifications, the defendants cannot be permitted to screen themselves behind such a defence against an action for additional labor performed and additional- materials furnished, at their request, and from which they have derived a substantial benefit. The most that can be said of this provision, that extra labor and materials should not be paid for unless the prices thereof had previously been agreed upon and reduced to writing, is, that the defendants would be bound to pay for them on such a written agreement. After a parol agreement to depart from the terms of a written contract has been made and executed, and the defendants have received and accepted the benefit thereof, they cannot seek refuge behind a proviso of this kind, and enjoy the benefit of the plaintiffs’ labor and materials without paying for them. (Pierre-pout v. Barnard, 6 N. Y., 279; Allen v. Jaquish, 21 Wend., 678; Dearborn v. Gross, 7 Oowen, 48; Smith v. Gugerty, 4 Barb., 614; 1 Greenleaf’s Ev., § 207.)
    
      This court beld, in tbe case of Bestor v. The United States, (3 C. Cls. B.., 425,) tbat a proviso in tbe contract in tbat case, very similar to tbe one here, applied only “to tbe vessel described in tbe contract and to details necessary for tbat,” and not “to alterations from, or additions to, tbe plan fixed by tbe contract.”
    In tbis ease Ave are not compelled to rest entirely upon a construction of tbe law. Tbe plaintiffs undertook to follow tbe guidance' of tbe contract and require written stipulations, but tbe defendants wrote a letter, wbicb was delivered to the plaintiffs, of wbicb tbe following is an extract: “It is desired tbat tbe work be pushed forward with all possible vigor, and be under roof before tbe cold weather sets in; and in any case of controversy wbicb may arise, wbicb would either increase or diminish tbe amount to be paid, it is suggested tbat such controversies be left for decision until tbe final payment is made.”
    Upon tbe basis of tbis letter tbe assistant quartermaster general and tbe plaintiffs entered into an agreement tbat tbe work should go on Avitbout interruption, and tbat all contiwer-sies then existing, and wbicb might subsequently arise, should be decided by a board of experts or arbitrators.
    If, however,. these actions did not constitute a compliance Avitb tbe peculiar provisions of tbe contract there can be no reasonable doubt that they constituted a waiver of tbe defendants’ right to rely upon them. Either party to a contract may waive any right introduced into or provided by tbe contract, either expressly or tacitly, by acts or declarations, fairly indicating a relinquishment of any provision or part of a provision, and without tbe performance of wbicb, without being relinquished or waived, a recovery could not be bad. (Shaw v. The Lewistown Turnpike Go., 2 Penn., 454; Munroe v. Berkins, 9 Pick., 298 ,• Aclamé v. Hill, 4 Step., 215; Toimyv. Jeffreys, 4 Dev. & Batt., 216.)
    Tbe doctrine regulating tbe recovery of tbe value of extra labor performed and extra materials furnished, in cases where tbe special contract has been deAÚated from, has been well settled for many years. If the contractor performs labor or furnishes materials not included in tbe contract, at tbe request of the employer, be is entitled to recover what they are reasonably worth. (Robson v. Godfrey, 1 Holt, N. P., 236 1 Starkie, 275, S, C.; Dubois v. Del. and Hud. Ganal.Oo., 4 Wend., 291.)
    
      This court has frequently recognized the contractor’s right to recover in such cases. (Curtis y. United States, 2 C. Ols. B., 151; Kingsbury v. United States, 1 O. Ols. B., 13; Bestor v. United States, 3 0. Cls. B., 426.)
    It is a sound legal proposition that where an employing party knows that a departure has been made from the special contract, necessarily increasing the cost, and he authorizes, or silently, with full knowledge, assents, he is liable for the increased expense. (1 Parsons on Contracts, 541.) The defendants were represented here by General Grosman, his two assistants, and the supervising architect. None of these additions were made, except on the order of General Crosman or the architect. But if the court should be of the opinion that the officers did not give such directions in regard to these extras, and that the architect had no authority to bind the government, then, upon the principle declared by this court in the case of Beeside v. The United States, (2 0. Ols.B., 1,) theplaintiffs are entitled to recover.
    Here the proper officers of the government received the services and property, and appropriated them to a lawful and necessary purpose, and the government derived, and is now deriving, legal benefit from the same.
    For the damages resulting to the plaintiffs by reason of the delays caused by unreasonable interruptions, the defendants are liable. (Ciarle v. UnitedStates, 1 C. Ols. B., 246; 6 Wallace, -.)
    
      The Assistant Attorney General for the defendants:
    The contract and specifications under which it is claimed that the claimants have a right to recover these several items of claim .were executed by the claimants in their own behalf, and by Brevet Brigadier General George H. Orosman, Assistant Quartermaster General, on behalf of the United States, and was dated April 13, 1867. The contract and specifications thereto attached, under which these claims arise, contained the following provision. That of the contract was as follows:
    “ It is distinctly understood, that the true intent and meaning of this contract is, that the parties of the first part are to furnish all the materials and perform all the work necessary to render tbe buildings and appurtenances perfect and complete in every respect, according to tbe plans and specifications annexed, whether expressed in tbe same or not; and no extra charge for modifications will be allowed, unless such modifications are agreed upon in writing by tbe parties; and no changes or modifications, mutually agreed upon by tbe parties to this contract, shall in any way affect its validity.”
    Tbe provision inserted in tbe specifications is equally explicit, and is as follows:
    “No allowance will be made for any extra work whatever, unless the cost of tbe same, previous to execution, is agreed upon in writing between tbe parties to this contract ■ or their legal representatives.”
    The claimants have been paid tbe price agreed to be paid for tbe construction of said building, and tbe sum of ttoo thousand tioo hundred and eighty-six dollars and thirty cents has -been paid them for extra work and materials furnished.
    It is not our purpose to discuss tbe evidence which it is alleged establishes tbe several items of the claimants’ demand. Tbe evidence adduced for that purpose may be regarded as sufficient to establishes tbe claimants’ right to recover, if tbe government is liable to pay, tbe several amounts tbe claimants allege they are entitled to receive.
    The. United States will endeavor to maintain tbe following propositions:
    First. That tbe claimants cannot recover any of tbe several items of their claim, because it is provided in tbe contract under which it is claimed that said charges for extras have accrued, that “ no extra charge for modifications will be allowed unless such modifications are agreed upon in writing by tbe parties, and no changes or modifications mutually agreed upon by tbe parties to this contract shall in any 'way affect its validityand that, inasmuch as said modifications and extra charges therefor were not agreed upon in writing by tbe parties to said contract previous to tbe making of such modifications, tbe United States are not liable, by tbe express provisions of said contract.
    Second. That tbe claimants cannot recover that portion of their claim which is demanded as damages for tbe delays and interruptions to the claimants in tbe fulfilment of the contract, because tbe claimants allege that the agents willfully and wrongfully caused the work of said claimants, in the execution of said contract, to be delayed and suspended; and for the wrongful or unauthorized acts of its agents, the United States are not liable.
    We submit, from the evidence, that the two inquiries, for the solution of which we have collated from it so fully, must be answered against the pretensions of this claim, and that the court must find, as matters of fact: First. That there was not a compliance with the provisions of the contract in regard to extra charges for modifications. Second. That there was no waiver of the provisions of said contract in that respect by any person .authorized thereto.
    The claimants cannot recover for damages for two sufficient reasons:
    First. Because the evidence adduced to sustain it is too vague, unsatisfactory, and inconclusive.
    Second. Because the items of claim from which these damages are made up resulted from the unauthorized, tyrannical, and oppressive acts of the subordinate agents of the United States.
    It cannot avail the claimants that General Grosman testifies that whatever was done by Captain Craig was by his authority and with his approval. -
    General Orosman could not rightfully devolve the powers and duties derived from this contract to his subordinates.
    It is insisted, on behalf of the claimant, that the acts of the agents of the United States, in connection with the execution of said contract, amount to a waiver of those provisions of the contract and specifications relating to compensation for extras, and the counsel for the claimants announces the following legal conclusion:
    
      “ Either party to a contract may waive any right introduced into or provided by the contract, either expressly or tacitly, by acts or declarations fairly indicating a relinquishment of any provision or part of a provision, and without the performance of which, without being relinquished or waived} a recovery could not be had.’7 (Shaw v. The Lewistown Turnpike Go., 2 Penn., 454 ■, Munroe v. Perkins, 9 Pick., 298 •, Adcvms v. Hill, 4 Shep., 215; Yoimg v. Jeffreys, 4; Dev. and Batt., 216.)
    
      Neither this legal proposition nor the authorities cited in its support, can have any bearing upon the questions involved here.
    Those cases presented questions of the right of a party to show a waiver or abandonment of contract under seal by subsequent parole agreement, and the courts held that evidence of a subsequent parole agreement to waive or abandon the provisions of an instrument under seal, was admissible. The questions to be considered here are questions of authority, and upon these it will be urged:
    1st. That General Grosman had no authority to dispense with the requirements of those provisions of the contract and specifications in regard to previous agreements in writing, where modifications were to be made from which extra charge would result.
    2. That General Bucher had no power to authorize any waiver of the provisions of said contract by which the cost of the building to be constructed under it would be increased.
    3. That the letter of General Bucher is not sufficient, even if he had authority to give it, to dispense with the provisions of the contract.
    The authority for the erection of this building was given by an appropriation made by Congress for that purpose, in the following language:
    “One hundred and forty six thousand dollars, to be disbursed for the erection of a fire-proof building at or near the Schuylkill Arsenal, in Philadelphia, to be used as a storehouse for public property.” (14 Stat., 92.)
    The agents of the United States could not, by any act of theirs, bind the United States beyond the amount of this appropriation.
    ■ In the case of Curtis v. The United States, 2 C. 01s. E., 144, 152, the court uses this language:
    “ In actions on contract, express or implied, the government •is to be regarded as the principal and its officers as its agents, ■ and no acts of theirs can bind the government for a greater amount than that to which it has limited its liability by statute.”
    The provisions of the contract and specifications to which we have referred were as clear a limitation of the power of that agent of tbe United States charged with its execution as was tbe limitation upon tbe power' of tbe Secretary of War contained in tbe act of appropriation.. Tbe subordinate officer was restrained by two limitations. 1st. He could not bind tbe government beyond tbe amount appropriated for tbe construction of tbe building. 2d. He could not bind tbe United States for any amount not expressed in tbe contract except as provided by tbe contract and specifications under which be was , acting.
    Tbe attention of tbe court has-been directed to tbe evidence from which this branch of tbe claim results. We apply to it, therefore, a principle of law to which tbe attention of tbe court has been frequently directed. That principle is as follows:
    “It is plain that tbe government itself is not responsible for tbe misfeasances, or wrongs, or negligences, or omissions of duty of tbe subordinate officers or agents employed in tbe public service 5 for it does not undertake to guarantee to any persons tbe fidelity of any of tbe officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments and difficulties, and losses which would be subversive of tbe public interest$ and, indeed, laches are never imputable to tbe government.” (Story on Agency, Bennett’s ed., sec. 319.)
    In tbe casé of Gibbons v. The United States, (2 O. Cls. R., 421,) one of tbe items of claim asserted by the claimant was for advance in tbe price of oats be bad delivered to an agent of tbe United States under a threat from some officer of arrest if be refused to do so. Tbe oats bad been tendered to tbe officer previously, but refused by him because be bad not storage room for them. Judge Peck, in delivering tbe opinion of tbe court, uses this language:
    “ Tbe officer who threatened bad no authority to compel him to deliver tbe oats. He was released from bis obligation by tbe conduct of tbe government, and tbe threats used were superserviceable and improper. If be was so unwise as to submit to tbe menaces of tbe quartermaster, be must take tbe consequences. It is not to be presumed that tbe government ever authorized its agents to resort to illegal means to accomplish any purpose whatever.”
    Tbe court will be well satisfied, from an examination of this record, that the acts of those agents of the government from which it is alleged so much loss resulted to these claimants, were “both super serviceable and improper,” for which they, and not the United States, are justly responsible.
   Milligan, J.,

delivered the opinion of the court:

On the facts of this case, which are briefly stated in the opinion, the claimants .seek, first, $47,038 80, less $2,280 30, which have been paid them for extra work and materials furnished on the building; and, second, $46,493 73 for damages produced by the delays and interruptions in the fulfilment of their contract with the defendants.

1. In respect to the facts which are applicable to the first demand, the United States Assistant Attorney General, after a most careful examination of the whole testimony, in his printed brief, very justly remarks that “ it is not his purpose to discuss the evidence which it is alleged establishes the several items of the claimants’ demand. The evidence adduced for that purpose may be regarded as sufficient to establish the claimants’ right to recover, if the government is liable to pay, the several amounts the claimants allege they are entitled to recover.”

Assuming that the admission of the Assistant Attorney General is justified by the facts proven in the record, which we do not doubt, the question, so far as the first branch of this inquiry is concerned, turns wholly upon the law of the case. The contract obliged the claimants to supply the materials and complete the building according to certain plans and specifications thereunto annexed. And General Grosman, by whom the contract was signed, and the supervising architect, by the contract itself, were constituted the agents of the United States to superintend the erection of the building, with full and equal power to reject any materials or workmanship Avhich, in their opinion, or the opinion of either of them, were not of the best quality. Neither of them had in this respect superior power to the other, as was erroneously supposed by General Ekin, in his final decision of this case in the Quartermaster’s Department. The contract limited the powers of each, and neither could go beyond its fair and reasonable interpretation.

The materials were to be of the best quality, and all the work performed necessary to render the building perfect and complete in every respect, according to tbe plans and specifications annexed, whether expressed in the same or not, and no extra charge for modifications allowed, unless such modifications were agreed on in writing, and no change or modification mutually agreed on by the parties was to affect the validity of the original contract.

It is obvious from this language that the parties provided in their agreement for changes and modifications in the work; but it is equally clear that these changes could not be made, according to the contract, unless they were first mutually agreed on by the contracting parties, and that agreement reduced to writing. Every modification, by the terms of the agreement, contemplated a new contract, which in no way was to affect the validity of the old one.

Thus the case stood under the original agreement. But it is argued that that part of the agreement which relates to changes or modifications in the original contract was waived or modified by parol, and that the general principles of the public law authorize the plaintiffs to recover for the extra labor and materials bestowed on the building.

The strictness which in former times prevailed in relation to a claim for extra labor has in more modern times been somewhat relaxed; and the rule in this respect, as laid down by Professor Parsons, is as follows: “ The party cannot recover for extra work, or even for better materials used, if he had not the authority of the other party therefor. But the authority will be implied if the employing party saw or knew of the work or materials in time to object and stop the work without injury to himself, and not under circumstances to justify his belief that no change was intended, and did not object, but received and held the benefit of the same; and if he received from the employed an estimate of the cost of such eajirawork, and then ordered it, the party employed might be bound by such estimate. And if the changes were such that the employer need not infer that they involved any other additional expense, and he was not so informed, an express assent to them does not imply a promise to pay for them, because it is fair to suppose that he believed they were done under the contract, and assented to only on those terms. If the. changes necessarily imply an increased price, and he expressly authorizes, or silently, hut with full knowledge, assents to them, he is then hound to pay for them.” (1 Parsons on Contracts, 541; see, also, Munford v. Brown, 6 Cowen, 476; Dubois v. Delaware and Hudson Canal Company, 4 Wend., 291.)

Tbe facts of this case bring it within the principles of law just laid down, and they would necessarily carry the judgment of this court in favor of the claimants, were there no other intervening obstacles. For it cannot be denied, on the proof in this record, that the changes made in the original plans and specifications necessarily involved, in many instances, an increase, both of labor and cost of materials, which was known to General Crosmau, the government agent. He stood by and daily, witnessed their completion without objections,-and if not in terms assenting to them, impliedly authorizing their completion. And when the work was substantially stopped on the whole .building, by his authority, the contractors refused to proceed, except on the authority of General Pucker’s letter, which, by them and the architect, not to say General Gros-man, was regarded as a waiver of the requirement in the contract, that “ no extra charge for modifications will be allowed, unless such modifications are agreed upon in writing,” and that the cost of all such changes and modifications should, when the building was completed, be settled by a board of arbitrators.

These facts, with many others in which the record abounds, leave no doubt that the alterations made after the 28th of September, 1867, were made under the supposed authority of the Pucker letter, and che new and additional parol agreement of the parties entered into at the time, and distinctly proven by Mr. Fraser, the architect, Allen A. and Jackson Grant, and others.

Assuming, therefore, that the claim for extra work and material, which is the foundation of this action, rests on a parol agreement, the first question which presents itself is whether the Secretary of War, in person, or through those acting under him, had lawful authority to make such a contract. If the authority exists, we are bound to enforce the contract; but if it be wanting, it is equally clear we cannot enforce it as a contract against the defendants, who never authorized it. The government, abstractly considered, is a legal entity, and can neither speak nor act except through its official seal and its lawful officers and agents, who, in every instance, act under tbe authority and restraints of law; and when any such officer or agent, whether he stand at the head of an executive department or act as the agent of such head, assumes to contract with a third person, such person must look to the statute under which his contract is made, and see for himself that his contract conies within the terms of the law, otherwise he takes the consequences of his own folly. (T he Floyd Acceptance cases, 7 Wallace’s R., 666-680; Curtis’s Case, 2 C. Cls. R., 144-152; Henderson’s Case, 4 C. Cls. R., p. 75.)

The act of Congress approved March 2, 1861, (12 Stat. L., 220,) and the act of June 2, 1862, (12 Stat. L., 411,) are applicable to the class of cases of which the one under consideration falls. The first section of the act of June 2, 1862, declares “ that it shall be the duty of the Secretary of War, of the Secretary of the Navy, and. of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them severally, or by their officers under them appointed to make .such contract, to be reduced to writing, and signed by the contracting parties, with their names at the end thereof, a copy of which shall be filed by the officer making and signing said contract in the ‘return office’ of the Department of the Interior as soon after the contract is made as possible, and within thirty days, together with all bids, offers,” &c. * * * * * *

The tenth section of the act of March 2, 1861 — which is a substantial copy of the sixth section of the act of March 1, 1820 — after prescribing the different modes in which all contracts shall be made, declares that K no contract or purchase shall hereafter be made, unless the same he authorized hy lato, or tinder an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.”

It is obvious, from the act of June 2,1862, aud the establishment under that statute of the “ return office,” that Congress intended to limit the power of the Secretaries of War, Navy, and Interior, as well as all officers or agents acting under1 their authority in matters of contract, to written agreements signed by the contracting parties. It is true the act does not in terms declare parol contracts invalid; but when this statute is construed in connection with the act of March 2, 1861, which provides for the exigencies under which parol contracts and purchases may be made, there can be no doubt that such contracts are prohibited, and we are therefore denied the right of enforcing them, as contracts in this court. And it can make no difference in this respect whether the original contract rests in parol, or the subsequent or collateral agreement is verbal. If the contract sued on falls within the prohibitions of the acts of Congress referred to, this court has no power, without further legislation on the subject, to enforce it.

But in this ease the record demonstrates, beyond all question, that extra work was performed, and extra materials furnished, which largely increased the labor of construction and the value of the building beyond the original contract price, 'and which the United States have accepted and appropriated without just compensation.

Under this state of facts, and dealing with this case as a transaction between individuals, there can be no doubt 'that the claimants could recover the quantum meruit. But to this ground the tenth section of the act of March 2, 1861, already quoted, is interposed, which prohibits all contracts or purchases, unless the same be authorized by law, or under an appropriation, adequate to its fulfilment. The second section of the act of July 13, 1806, (14 Stat. L., 90,) under which the contract in question was made, is in the following words: “ That the sum of $Í46,000 be, and the same is hereby, appropriated to be disbursed by the Secretary of War in the erection of a fire-proof building in the State of Pennsylvania, to be used as a storehouse for government property at that post.”

It is clear that this act, without the appropriation, contains no words authorizing a contract for the building; but the amount appropriated was considered adequate to the completion of the building desired, and therefore the authority of the Secretary charged with its disbursement to contract for the work designated in the law. The contract was strictly lawful to the extent of the appropriation, but no further. But the cost of the building, under the authority of the government agents intrusted with its erection, was carried beyond the appropriation, and under their orders completed, and subsequently it has been accepted by the United States, and now is in their use and occupation. In this state of the case, are the defendants answerable for the fair and reasonable value of the extra work and materials put upon it? Were tlie question one of original authority in the Secretary or liis agents to contract for a building which would cost more than the appropriation, we should unhesitatingly hold with the cases cited from the Opinions of the Attorneys General, (4 yoL, GOO; 9 vol., 19,) that he had no power to contract for more work than he could control money to pay for. But such is not this case. Here the extra work has been done and materials furnished under the supposed authority of the chosen agents of the government, when the contractors were ready and willing to complete the building in strict accordance with their original agreement. The building is made more valuable, permanent, and useful, by the extra work and materials bestowed upon it, than it would have been had it been completed according to the terms and specifications of the written contract; and we think, upon the plainest principles of natural justice and common equity, the United States are bound to pay the fair and reasonable value of the extra work and materials.

We are aware that this is a delicate doctrine when applied to the United States, which only act through their agents, whose authority is limited by law; but under the broad provisions of the act of February 24, 1855, organizing this court, we have jurisdiction over all “claims founded on contracts, either express or implied,” and'a stronger case of implied contract can scarcely be presented.

To hold otherwise, under the circumstances of this case, would be to hold that the United States, through their accredited agents intrusted with the supervision of the execution of their contracts, could at their own option put it out of the power of the contractors to fulfill their agreements with the government, by compelling them to depart from the original stipulations in the written agreements, and to perform other and additional labor, which they were not bound under contract to perform, and then escape payment by pleading nonperformance. Such a doctrine is abhorrent, and opposed to all the well-settled principles of justice and equity, and cannot be recognized by any court of justice.

Besides, this general doctrine here enforced has been recognized by this court in the case of Fowler v. The United States, (3 C. Cls. R., 43.) This case, although not in all respects like the one under consideration, bears a strong analogy to it, and in it a contract which exceeded, the appropriation was upheld, and judgment given in damages for its breach. And in no instance, to my knowledge, have we declined to give judgment for the claimant, when on grounds of quantum meruit he has shown himself clearly entitled to recover. Any other doctrine would be dishonoring to the government, and often embarrassing to the executive departments intrusted with the execution of contracts made under appropriations, which, with all the precaution the departments could exercise in letting them, sometimes prove slightly inadequate to their fulfillment.

2. The second ground of complaint, which is a claim for damages growing out of the misconduct of General Grosman’s subalterns, is readily disposed of. It was the claimant’s own folly to obey the orders of those he was not bound to obey, or to suffer delays and losses through the officious intermeddling of parties unknown to the contract. (See Gibbon’s Case, 2 C. Cls. R., 420.)

It is true, it is admitted by the Assistant Attorney General that the conduct of Oaptaiu Craig, which General Grosman seems to have indorsed in some instances, was both unjustifiable and unauthorized,” but we cannot hold the United States responsible in damages, even for the acts of their own agents, much less of third parties, when the government took no benefit from them; “for the government does not undertake to guarantee to any person the fidelity of any of its officers or agents whom it employs, since that would involve them in all their operations in endless embarrassment and difficulties, and. losses which would be subversive of the public interest.” (Story on Agency, section 319.)

On the whole case, we reject the claim for damages altogether ; and award judgment for the extra work actually done, and materials furnished, which, according to the estimate of Mr. Fraser, the defendant’s own architect, we find, after rejecting all items that may be legitimately referred to the contract, to amount to the sum of $34,225 14, for which judgment will be entered.

Loring, J.,

dissenting:

I think the amount of the appropriation in the statute limited the power of the Secretary, and all acting under him, and that neither he nor they could contract beyond it, either in the original contract or by any supplementary contract, for additions and extras.

But the appropriation for the'building was $146,000, and the contract price $138,000; and this left $8,000, which, on the facts, I think can be appropriated to the extras. I understand the facts to be, that the original contract stipulated that all contracts for extras, &c., should be “ agreed upon in writing between the parties,” and that the contractor desired the extras, &c., called for and required, should beso agreed upon in writing, and the officers and agents of the government refused and prevented this.

And upon these facts I think it is not competent for the United States to object that such extras were not “ agreeduponin writing.” An individual cannot object the nonperformance of a stipulation in a contract when he has himself prevented its performance; and I think the same rule binds the United States here. The refusal to make the agreement in writing was, it is true, the act of their agents, but the United States are liable for the failure or refusal of their officers to perform a contract or any stipulation in it; and it is on that ground that damages are awarded, in actions for breach of contract, here.

I think, therefore, the claimant is entitled to recover for the* extras, &c., required and furnished, and not put in writing, to the amount of $8,000, by which the appropriation exceeded the contract price, exactly as he would have been if such extras, &c., had been agreed upon in writing.

And that the United States waived the express contract and made a new implied contract, by accepting the building at its increased cost, I think is not proved; for that would require the action of Congress, and none is shown. And all that is shown, is the action of an executive department in entering upon and using a building designed for its use; and that is to be referred to the performance of its own proper official duty, which has no connection with or reference to a contract with the claimant.

It may be that the claimant has been very unjustly dealt with, and subjected to great loss, but his application for relief for that must be to Congress and not to this court, whose power, I think, is limited by the statute making the appropriation.  