
    CAPE ANN GRANITE COMPANY v. THE UNITED STATES.
    [No. 11960.
    Decided January 12, 1885.]
    
      On the Proofs.
    
    Two contracts specify a fixed rate for "building stones which do not exceedl 20 feet; a cumulative rate for stones which do exceed that size. The Supervising Architect excludes the first 20 feet in computing the price of the larger stones. The claimant gives a receipt ira full, releasing all claims and demands, hut appends to it a protest. The original petition is general in terms, but covers all possible' services under the contract. Certain amendments set up items which have accrued since the filing of the original petition.
    I. "Where the contract price is “55 cents per foot for stones which do not exceed 20 feet in each stone, and 1 cent additional for every foot of those having dimensions exceeding 20 feet,” the cumulative pi'iee of the* latter is to be reokoned upon the entire number of feet in a stone.
    ■ II. A receipt in full is a mere admission in writing, which may be contradicted and disputed unless some intervening interest or right wilE be prejudiced by proving it to be untrue.
    III. Where the government maintains its own construction of a contract^, neither conceding nor compromising, but compelling the other party to accept simply what it admits to be due, the transaction cannot, be upheld as a settlement or compromise, though a receipt in full be given.
    
      IV.The case of Croft v. Lwmley (6 H. L., 672) rests on the disinclination of courts to enforce forfeitures, and on the right of a party paying money to have it applied as he directs. It cannot he extended to a case where a debtor seeks to pay a part of the debt for the whole.
    V.The case of Savage (92 IT. S.. K., 382) rests on the fact that Treasury notes could not be lawfully paid out as money for the redemption of a government bond unless the surrender of the bond was absolute. It cannot be extended to a case where the defendant did not day the debt in full.
    VI.Estoppels are not favored defenses, except when their technicality can be subordinated to equity.
    VII.A receipt in full and a protest attached to it are to be construed or-. dinarily as one transaction, and if there be neither compromise nor a new consideration in the transaction there will be no binding settlement.
    VIII.If the original petition cover every possible service rendered under a contract, It will stop the running of the statute of limitations as to items specifically set up by subsequent amendments.
    IX.Where services are rendered under the contract in suit subsequent to the bringing of the action, and are brought into the case by consent, the court will treat the original petition and the amendments as one consolidated cause of action.
    
      The Reporters' statement of tbe ease:
    Tbe following are tbe facts found by tbe court, so far as they relate to tbe questions of law determined :
    I. Tbe United States made with claimant the following contract, dated July 13, 1869:
    “This indenture of lease andcontract, made and entered into this thirteenth day of July, one thousand eight hundred and sixty-nine, by and between Gridley J. F. Bryant, superintending architectof the Treasury Department at Boston, Massachusetts, acting for and in behalf of the United States, under the authority and direction of the Secretary of the Treasury, of the first part, and the Cape Ann Granite Company, of the county of Essex, in said State, of the second part, witnesseth:
    
      “ Whereas on the eighteenth day of June, A. D. 1869, the said party of the first part addressed a circular letter to certain owners of granite quarries inviting sealed proposals for the lease of such quarries, and also for the quarrying from the quarry so leased, and delivering at the site of the new post-office and sub-treasury building in the city of Boston, fifteen thousand tons (more or less) of stone for the foundation of said building.
    #######
    “And whereas Jonas H. French, in behalf of the Cape Ann Granite Company, on the 22d clay of June, 1869, pursuant to the invitation contained in said circular letter, made and transmitted to the said party of the first part proposals for the lease of the quarry of said company and for quarrying and delivering the stone therein mentioned, which proposals are in the words .and figures following, to wit: ■
    “ Boston, June 22, 1869.
    “Dear Sir: * * * I propose to contract to take from the quarries so leased by the TJ. S., or any other eligibly situated and in the same working order according to the terms of your proposals, foundation stone, and deliver the same at the site of the proposed post-office building in Boston, at thirty-nine three-quarter cents per cubic foot, of stoch dimensions, not exceeding twenty feet, as may be ordered, and one cent additional for each cubic foot of every stone above such dimensions, and to give bonds in the*penal sum required, in sufficient sureties, for the faithful performance of the contract, in the form required, which I have •examined at your office.
    “I have the honor to be, your ob’t serv’t,
    “Jonas H. Frenoh,
    
      uIn behalf of the Gape Ann Granite Go.
    
    “ To Gridley J. F. Bryant, Esq.,
    “ Superintendent, <&c., Boston.
    
    “And whereas, with special reference to said circular letter •and the specifications therein contained, said proposals were made, and whereas the said party of the first part, by direction of the Secretary of the Treasury, has, with like reference to said circular letter and specifications, and in accordance therewith, accepted said proposals:
    “ Now, therefore, in consideration of the premises—
    # # # * # * #
    the party of the first part covenants and agrees to pay or cause to be paid to the party of the second part, its successors and assigns, the sum of thirty-nine and § cents per cubic foot for each ■cubic foot of stone so delivered as above contracted, when the dimensions does not exceed twenty cubic feet in each stone, with one •cent additional for every cubic foot in any single stone beyond said twenty cubic feet eachP
    
    III. Contract for the superstructure dated October 26,1869:
    “The party of the first part covenants and agrees to pay, or ■cause to be paid, unto the said party of the second part, or to their legal representatives, for the stone so delivered by saicl party of the second part for the said superstructure of said building, in lawful money of the United States, the sum of fifty-five cents per cubic foot for all stones the quarried dimensions of. which do not exceed twenty cubic feet in each stone, .and one cent additional for every cubic foot of those having such dimensions exceeding twenty cubic feet.”
    
      V. Under the original contract of July 13,1869, claimant delivered 21,355 cubic feet of stone prior to September 30, 1871, each of which exceeded 20 cubic feet in its contents, and 52,188 cubic feet of similar stone under the extension of said contract. Under the original contract of October 26, 1869, claimant delivered 98,679 cubic feet of similar stone, and under the extension thereof 94,234 cubic feet of similar stone. Number of stones, 6,547; 3,062 for original building and 3,485 for extension.
    YI. Payment was made on the assumption that the price per cubic foot for each stone is found by increasing the contract price per cubic foot for like stone measuring 20 cubic feet or under by as many cents, minus 20, as there are cubic feet in the given stone, thus making the price per cubic foot of a superstructure stone containing 30 cubic feet 65 cents (55 + 30 — 20= 65).
    VII. Voucher, receipt, protest of claimant:
    
      The Untied States to Cape Ann Granite Co., Dr.
    
    Date. Designation, application. Amount.
    1875. TWy 10. To amount of granite stock delivered for tlie construction of the TJ. S. P. 0.& sub-treasury at Boston, Mass., under contracts dated July 14th & October 26, 1869, as per statement herewith attached. Dollars. 141, 976 03.
    Chjspit.
    By amounts advanced as per schedule attached. 137, 666 38.
    Balance due. 4,309 65-
    “Beceived at Boston, Mass., this twenty-third day of February, 1875, from Win. L. Burt, disbursing agent, the sum of forty-three hundred nine & dollars, in full payment of the above account, and in full of all claims that have arisen or may arise under the contracts above specified, and in final and absolute settlement of the same.
    “$4,309.
    “Cape Ann Granite Co.,
    “Per Jonas H. French, Pres’t.
    
    “Boston, Tuesday, February 23, 1875.
    
       “Our receipt to voucher No. 23, February account of Gen’l Burt, D. A., is signed under protest that it does not cover certain claims, which the Cape Ann Granite Company have, which are not included in the vouchers on file, for the amount of which this receipt is given, so that the receipt in full is a receipt for the claims represented by those vouchers only.
    “Cape Ann Gbanite Co.,
    “Per JONAS H. FeeNCH, BresHP
    
    SI. The protest annexed to the receipt of the 23d of Feb-xuary, 1875, was made and annexed at the time the receipt was given. Giving the receipt and making the protest was at the same time and part of the same transaction.
    XII. At the time the receipt was given and protest made the measurement had been a subject of discussion and difference for a long time. It was discussed, at the time the protest was made and receipt given, between the president of the company •and William L. Burt, to whom the receipt was given. Burt made no objections to attaching the protest to the receipt. He knew at the time the company claimed a balance for improper measurement. In June, 1883, the voucher for $141,976.03 was -corrected by the officers of the government, and a deduction •of $3,487.63 made.
    
      Mr. Benjamin B. Butler and Mr. O. B. Barrett for the claimant:
    The contract says the proposal was accepted. It, therefore, follows that the intent of the parties can be sought for in the advertisement and proposal. There seems to be no room to doubt that the increase in the price per cubic foot for the large stone was to be equal to as many cents as the stone cofitained cubic feet.
    But if the language of the contract is susceptible of two meanings, the court will infer the intention of the parties and their relative rights and obligations from the circumstances attending the transaction.” (United States' v. Gibbons, 109 U. S. B., 200.)
    A clause substantially identical with the one in question, and in a similar contract, has received from the United States Supreme Court the construction we ask the court to give the clause in question. (Granite Company v. The United States, 105 U. S. B., 37.)
    The protests, filed with the receipts “in full,” are a complete bar to the claim of final settlement made by the defendants.
    
      
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    1. It is contended that the difference in the language of the-two contracts was intentional, and that the rule laid down by the government officers for payment was in accordance with the terms of the first contract and its extension.
    It is further contended that unless the stone under the first, contract which exceeded 20 cubic feet in dimensions were required to be in excess Of the standard, claimant can recover nothing.
    2. It is contended that the amended petition can only include deliveries of stone since April 16, 1878, because said amendment was not filed until April 16, 1884.
    3. When claimant, after the negotiations set forth in the-findings, accepted the $4,309.65, it took it upon the terms offered — to the payment a character had been given by the officers, of the United States which could not be qualified or modified by written or spoken works of the company — it could take the money on the terms offered or it could let it alone; but when it was taken the transaction was closed, and any protest is immaterial. (See Or oft v. Lumley, 6 H. L., 672, 694,696, 705, 719,. 724, 729, 733..)
    4. The principles laid down in Croft v. Lumley are applicable to the receipt of- July 24,1883, although it does not present so strong a case of claimant being put to his election, ft was-held in Savage v. The United States (92 U. S. R., 382) that the protest had no effect to qualify a voluntary acceptance of the-terms proposed by the Secretary of the Treasury and the surrendering of the securities.
    
      
       “The words ‘Our’instead of ‘This/ and ‘to voucher No. 23, February account of Gen’l Burt, D. A.,’ were added by me after signature, having full authority from the Cape Ann Granite Company so to do. March 27th,. 1875. — Bkkj. F. Butlek, Attorney in Fact.”
      
    
   Weldon, J.,

delivered the opinion of the court:

In the year 1869, the claimant, a corporation of the State of' Massachusetts, made two written contracts with the United States, and, among other things, agreed to deliver to them an indefinite quantity of granite, to be used in the erection of a, post-office and sub-treasury building in the city of Boston.

The first agreement was made on the 13th of July and the-second on the 26th of October, 1869, both of which were extended by act of the parties. The contracts ~and extensions will be found in finding I, or so muela of them as is material to be considered in the discussion and determination of the issues of this controversy.

The contract dated July 13 relates to the foundation material for said building, and the one dated October 26 to the material of the superstructure.

The contracts are very similar in their provisions, except as to the price to be paid by the defendants. In both it is provided that a certain per cent, shall be paid monthly as the delivery progresses, and the residue when the contracts shall_be fulfilled to the satisfaction of the United States.

Under the contract of July 13 claimant delivered 21,355 cubic feet of stone prior to September 30,1871, each stone exceeding 20 feet in contents, and 52,188 cubic feet under the extension of said contract.

Under the contract of October 26 claimant delivered 98,679 cubic feet of similar stone, and under the extension there of 94,234 feet, aggregating under both contracts 266,456 feet, as will be seen by reference to the findings.

For this amount of stone delivered under both contracts the defendants have paid the claimant, as it alleges, 20 cents per cubic foot less than it is entitled to; and this suit is prosecuted to recover the sum of $53,291.48 withheld by the government upon the construction of the contracts by the officers instrusted with the payment of the money.

The difference between the litigants originates as to the proper construction of the agreements in the amount to be paid for stone having a greater cubic content than 20 feet.

This controversy commenced in the early period of the work, and was a subject of contention at several times during the progress of the same.

In February, 1875, a voucher was certified by the proper officer of the government, for granite delivered by claimant under the different contracts, amounting to $141,976.03, with credits to the government of $137,666.38, leaving a balance due the claimant of $4,309.65. With that voucher there was presented to the claimant a receipt, bearing date on said day; and after reciting the amount of money, the receipt concluded with the following words: “In full payment of the above account, and in full of all claims that have arisen or may arise under tbe contracts above specified, and in final and absolute settlement of tbe same.”

Tbe receipt thus worded was executed by tbe president of tbe company, who at tbe same time, and as a part of tbe transaction, filed with said receipt, and attached to it, a written protest, in substance that the receipt does not cover certain claims which are not included in tbe voucher on file for tbe amount for which the receipt is given; “ that the receipt in full is a receipt for the claims represented by these vouchers only.”

The papers so executed were delivered to the' agent of the •defendants who paid the said sum of $4,309.65.

The phraseology of the protest of February 23, 1875, was, on the 27th of March, changed, by the consent of the parties, in ■order to identify it more accurately with the voucher and receipt, its legal effect from its mere words remaining the same.

On the 7th of October, 1882, another receipt was given by the claimant for stock supplied under said contracts, amounting to $30,000, which was “in full of the above account.”

Again, on the 24th of July, 1883, a voucher was made showing a balance due claimant of $7,357.33, and the claimant, by its president, executed a receipt for said balance, “ in full payment of the above account,” accompanying it with a written ¡protest “ that it does not cover certain claims which the Cape Ann Granite Company has, which are not included in the vouchers on file for the amount of which this receipt is given; that the receipt in full is a receipt for claims represented by this voucher only.”

The payments to the claimant were made on the assumption that the price per cubic foot for each stone is found by increasing the contract price per cubic foot for like stone, measuring 20 cubic feet or under, by as many cents, minus 20, as there are cubic feet in the given stone, thus making the price per •cubic foot of a superstructure stone containing 30 cubic feet 65 cents (55+30 — 20=65).

To the claimant’s right of recovery the defendants interpose «three objections: ' t

First. That by a proper and legal construction of the contracts the claimant has received as much as it is entitled to be paid. Second. That having executed a receipt in full, it is barred from recovering further compensation. Third. That as to a portion of the claim the statute of limitations destroys the right of action.

We will consider these defenses in the order named. In the contract of the 13th of July the doubtful phraseology is as follows : The party of the first part “ agrees to pay the sum of 39§ cents when the dimension does not exceed 20 cubic feet in each stone, with 1 cent additional for every cubic foot in any single stone beyond said 20 cubic feet each.”

In the contract of October 26 the words are “55 cents per cubic foot for all stones the quarried dimensions of which do not exceed 20 cubic feet in each stone, and 1 cent additional for every cubic foot of those having such dimensions exceeding 20 cubic feet.”

The words used in each contract are so similar that a construction of one is necessarily a construction of the other.

The question as to the proper construction of the agreements is not anew one in the jurisdiction of this court. In the case of Dix Island Granite Company v. United States (12 C. Cls. R., 624) a petition was filed embracing substantially the same cause of action asserted by the averments of the petition in this case. A demurrer was interposed, which was sustained by a majority of the court on the main question of the petition, and by all the court upon matters of detail. The case was finally heard on its merits before additional judges, and a judgment entered for the claimant, based upon the theory of compensation sought to be maintained by the claimant in this proceeding. The case was appealed to the Supreme Court, and is reported in 105 U. S. R., 37.

In the decision of the Supreme Court it is said:

“ Where a party who delivered granite was by the terms of his contract to receive the sum of 65 cents per cubic foot for all the stones when the quarried dimensions do not exceed 20 feet in each stone, and 1 cent additional for each cubic foot of those having such dimensions exceeding 20 cubic feet: Held, that where the dimensions exceed 20 cubic feet he is entitled for each cubic foot 65 cents, and 1 cent additional for each cubic foot of the entire stone.”

The only difference between the words of the contract of July 13 and October 26 is in the word’“beyond” being used in the one of July and the word “ exceeding” being used in the agreement of October 26. We do not regard this mere verbal difference as making in law a difference of construction.

In tbe contract considered by tbe Supreme Court in tbe Dix Island case tbe word "exceeding” is used, corresponding in that particular to tbe agreement of October 26.

Considering tbe two agreements in tbe light of tbe rule of construction announced by tbe Supreme Court as to tbe basis of compensation, we are constrained to bold that tbe measure of compensation counted on in tbe petition is tbe correct and legal one, which may be stated as follows: The price per cubic foot for each stone over 20 cubic feet is found by increasing tbe contract price per foot, for like stone measuring 20 feet or under, by as many cents as there are cubic feet in tbe given stone.

It is insisted that when tbe claimant (after tbe negotiations set forth in tbe findings) accepted tbe $4,309.65, it took the money upon tbe terms expressed, and that such terms were not affected by tbe protest; that tbe receipt in full operates in law as an estoppel against tbe claimant, and fixes not only tbe liability of tbe parties antecedent to February 23, 1875, but subsequent thereto.

In order to give tbe transaction of February 23 tbe effect claimed by tbe counsel for the government, we must bold it as having a broader significance than a mere receipt. It must have tbe legal embodiment of a settlement, compromise, or an accord and satisfaction. Tbe parties must have agreed on some basis as an adjustment of existing disputes.

Ordinarily a receipt in law is a mere admission in writing, which may be contradicted and disputed unless some intervening interest or right is to be prejudiced by proving tbe receipt to be untrue. The findings do not show that any right or interest of tbe United States became or was changed upon tbe faith of what was acknowleged by tbe claimant in tbe receipt.

At tbe time tbe receipt was given there were contracts between the United States and tbe claimant, in which each party bad such rights and interests as the law might determine. A surrender of any of them must be founded upon some consideration received. Tbe claimant said, by its agent, “ We are entitled to 20 cents more per cubic foot than you are willing to give us.” Tbe defendant said, by its agents, We acknowledge that there is due tbe claimant $4,309.65, and if it will execute a receipt in full of all claims that have arisen or may arise we will pay just wbat is clue for past service.” Tbe government maintained its position, it did not concede or compromise, and tbe plaintiff received in tbe transaction, wbicb is now claimed as a settlement in full, simply wbat its adversary admitted was its due.

If tbe claimant surrendered an asserted right, wbat was tbe consideration of tbe concession ? If tbe paper of tbe 23d of February is to bave tbe effect claimed for it by defendants, it must be because it is a transaction witb tbe government, and is therefore not subject to tbe rules of law defining and determining tbe rights of individuals. It has been decided by this court and affirmed by tbe Supreme Court that tbe liability of tbe government in actions of contract, expressed or implied, is. simply that wbicb the claimant might pursue against tbe defendants in another court (2 C. Cls. R., 214).

“ It is settled that when tbe United States become a party to commercial paper they are bound in any court to whose jurisdiction they submit by tbe same principles that would govern individuals” (7 Wall., 666; 7 C. Cls.R., 65). Thesecases are sufficient to establish tbe similarity as to tbe rights of the-government and individuals in a matter of contract, unless by tbe force of some statute tbe law is changed.

To maintain tbe theory of tbe defendants tbe counsel for tbe government cite two principal cases as embracing tbe law of receipts or transactions done under protest (Croft v. Lumley, H. L., 672, and Savage v. The United States, 92 U. S. R., 382).

In tbe case of Croft v. Lumley tbe court was asked to enforce a forfeiture against a tenant, in bolding that a payment made by tbe tenant was by way of compensation and not as rent. It was paid as rent by tbe lessee and received under protest by tbe lessor as compensation. Tbe lessor bad received money paid as rent by tbe lessee, and afterward sought to forfeit the-leaseby applying tbemoney as compensation. Courts are loath to enforce penalties or declare forfeitures, and will not do so unless in clear and imperative cases. In that case there was a payment of money, wbicb was to be appropriated either as rent or as compensation. Tbe party paying bad a right to bave it appropriated as be directed; and tbe receipt of it by the creditor, although under protest, bad the effect in law to give tbe money tbe direction indicated by tbe debtor. He distinctly paid it as rent. He refused to pay it otherwise than as rent. Two well-established principles of law distinguish that case from the case at bar: first, the disinclination of courts to enforce forfeitures, and, second, the right of a party paying money to have it applied or appropriated as he directs.

If the transaction in this case comes within the reason of the rule laid down in Savage v. TheUnited States, it is a complete answer in law to the claimant’s demand. Does it fall within the doctrine intended to be established by that decision ? ■

In the matter of the redemption of the Treasury notes issued under the authority of the act of July, 1861, the Secretary of the Treasury was dealing with a subject-matter regulated by statute, and whatever he did by way of redemption must be in strict accord with the requirements of the statute. The jiro-•ceeding of redemption, both on the part of the Secretary and the holder of notes, was regulated by positive law, and if they acted so as to work the redemption and surrender in fact, it had that effect in law. The court said:

“ Actual surrender of the Treasury notes to the Secretary was a condition precedent to the right of the Secretary to redeem the same, and that fact was as well known to the agents -of decedent as to the Secretary; and it must be that they knew full well that the payment of the Treasury notes could not be made unless the surrender was absolute and unconditional. Viewed in the light of these suggestions, it must be held that the protest was unauthorized by law, was a mere ex parte act, without any legal effect to qualify the voluntary surrender of the Treasury notes, which both parties understood to be absolute and unconditional.”

The only redemption authorized by law was absolute and unconditional. The transaction between the parties from which this litigation arises is not so circumscribed. We are asked to hold that the protest is without legal effect, and that the claimant is estopped by the receipt in full. Estoppels are similar in strictness to forfeitures and the enforcement of penalities. They are not favored defenses when the technicality of the es-toppel cannot be subordinated to its equity. Andrews v. Lyons (11 Allen, 349); Louensbery v. Depew (28 Barbour, 44) ; Waters' Appeal (35 Penn. St., 523); Babcock v. Pary (8 Ohio St., 270); State v. Pepper (31 Ind., 76).

The effect of a receipt in full is considered in the case of Baldwin v. The United States (15 C. Cls. R., 303). The court said:

“There is no principle of the common law better established and more generally recognized than that a payment, which is only in accordance with the terms of a contract, and after its maturity, of a part of a liquidated and ascertained debt is no satisfaction in law of the whole indebtedness, and that a receipt in full given upon such payment is nudum pactum as to the unpaid balance and not binding upon the maker. (Chitty on Contracts, Per. edition, 821, title Payment; 2 Pars., Con., 4th ed., 129; Bostwick v. The United States, 94 U. S. R., 53; 12 C. Cls. R., 67.) * * * To make the receipt of a part a discharge of the whole there must be a new consideration, or a voluntary and well-understood compromise, of a disputable and disputed claim, by which each party yields something for the concession of the other, or an accord and satisfaction by which a new contract is substituted, or a submission to arbitration; in each of which cases a consideration is expressed or implied.”

Child et al. v. United States (12 Wall., 232; 7 C. Cls. R., 209); Mason v. U. S. (17 Wall., 67; 8 C. Cls. R., 125), Comstock’s Case (9 C. Cls. R., 141).

We now come to the consideration of the receipt in connection with the protest. Whatever may be said of the legal effect of the protest, it was the intention of the claimant to save its rights in*the construction of the agreements as alleged in the-petition.

The protest was made at the time the receipt was made and given, and is, in fact;, a part of the same transaction.

It was cotemporaneous with it, and passed to the defendants in explanation of, and. as contradictory to, the receipt in full.

The effect of receiving a part as a satisfaction of the whole, without protest, has been discussed and decided by the Supreme Court in passing upon claims submitted to a commission, and we briefly quote from the decisions:

“If there had been no reference to, and no finding by, the commission, it would still remain true that here was a claim the justice of which had been denied, and the amount that was due on it had been in dispute for nearly two years. ' The government finally says to the claimants, ‘We will pay you a certain sum on this disputed claim, provided you will take it in satisfaction for the whole/when, without intimidation, without fraud or concealment on the part of the government, without protest or objection on their fart, the claimants accept the money offered and sign a receipt, acknowledging it to be in full of the whole claim. Is not this a legal and binding compromise of explicit demand? (U. S. v. Child & Co., 12 Wall., 245.)
“ This commission, like all others of similar authority, possessed no judicial power, nor did it attempt to exercise any. It could not compel a claimant to appear before it and submit to its action, nor would its decisions, in case there were no adversary party, have any conclusive effect. If, on the contrary, the party whose claim was disputed went before it, participated in its proceeding's, and took the sum found to he due him without protest, he cannot afterwards be heard to say that he did not accept this in full satisfaction of his demand. * * *
“It is always in the power of parties to compromise their differences. One way of doing this is by arbitrators mutually ■chosen, but from such submission neither party is at liberty to withdraw after the award is made. The condition creditor is better than this, for if dissatisfied with the allowance made him by the commission he can refuse to receive it, or can accompany his receipt of it, if he chooses to take it, with a proper protest. This protest is necessary to inform the government that the compromise is rejected, and that this rejection leaves the claimant free to litigate the matter in dispute before the Court of Claims. If with this knowledge and under these circumstances the money is paid, there can be no just cause of complaint on either side, .and the status of the parties is not affected by anything which transpired before the commission. (U. S. v. Justice, 14 Wall., 548.)
“Parties are bound to their good faith in their dealings with the United States as well as with individuals, and the court is of the opinion that no party in such a case could be justified, .after accepting such a compromise and executing such a discharge, in claiming damages for a breach of the prior contract which had been voluntarily modified and surrendered, unless the neto contract was accepted under protest or with notice that damages would be claimed for the refusal of the United States to allow the claimant to fulfill the contract which was modified in the new arrangement. * * * Nor can such a commission •compela claimant to appear before them and litigate his claim, but if he does appear and prosecute it, or subsequently accepts the terms awarded as a final settlement of the controversy, without protest, he must be understood as having precluded him•self from further litigation. (Mason v. U. S., 17 Wall., 73.)”

The receipt of the 23d of February, by its terms, not only ■operates on past transactions, but assumes to settle disputes that might arise subsequent thereto; and to hold that it “ works as an estoppel” would be to extinguish the rights of one of the parties and subject it to the irresponsible tyranny of the other. The United States changed it, eliminating claims embraced in the voucher on which it was founded.

A receipt in full is not binding as such simply because it ¡recites that it. is in full. It is open to contradiction according to the fact. • It has no force as a contract, and is inoperative to bind the parties, unless it is based upon an agreement, compromise, or settlement with a complete understanding. At the time the receipt was given the protest was accepted by the agent •of the government without objection, the president of the company asserting, beyond the protest, that there were other claims, to wit, as to measurement, which were not included in the receipt. Neither party to the transaction of giving and accepting the receipt understood it as a settlement of differences as to measurement. The protest was afterwards changed by the claimant, by the consent of the defendants, so as to preserve the identity between the receipt and protest. We do not regard the fact that the receipt was sent by one officer of the government and delivered by another as sufficient to change the law applicable to such transactions.

Construing the receipt and protest as one transaction in fact and in law, and finding no evidence that any settlement took place between the parties, we must hold that the receipt is inoperative as an estoppel against the right of the claimant to have its claim examined in this court.

As the statute of limitations is interposed to a portion of the claim embraced in the petition and amendments, it will be necessary to examine the condition of the record. '

It is insisted that for deliveries during a certain period between the date of the petition and amended petition of 1884 the claimant has no right to recover, because such deliveries could not be included in the original petition, being subsequent to the bringing of the suit, and not embraced by the averments, and more than six years prior to the amendment in April, 1884.

The original petition was filed on the 21st of September, 1878, and by its allegations it embraced causes of action founded on three distinct contracts, to wit, the contract of July 13,1839, October 26, 1869, and September 1, 1870.

Not only are the original and extended contracts counted on by averment and in legal effect, but the extensions of each contract is alleged in the petition, and copies of the originals and extensions are filed with the petition, and made part of it by direct averment. In the original pleading the claimant demands $22,666.94,[the^amount due it at the time of bringing the' suit.

After the first [petition was filed the claimant continued to furnish material, and the officers of the defendants in charge of the construction of the building and disbursement of the funds continued to pay upon their theory of the contract, and from which it became necessary to bring the original suit; and so, on the 27th of March, 1882, .the claimant, by consent, filed an amendment to the original petition for stone delivered until the date thereof, intending to embrace the material furnished since the filing of the petition and up to the date of the amendment.

The same condition of things still existing between the parties as to the delivery of the material and the payment, the claimant, on the 16th of April, 1884, filed a second amendment, claiming the sum of $53,291.48, being the full amount of compensation for all the stone furnished, and upon which it is alleged insufficient payments have been made.

While this court regards many of the rules of the common law on the subject of pleading as necessary to the administration of judicial justice, it is not bound by the strict requirement of those rules as incident to the court of common-law jurisdiction.

The first petition, by its averments, covers every possible service which might have been rendered under any of the contracts or extension declared on, and as the amendments refer to, and by legal intendment must embrace, the allegations of that pleading, they in legal effect became a petition for material furnished since the former pleading; and such being the legal effect of the amended petitions, they necessarily cover all periods of the execution of the contract; so that no delivery of stone can fall beyond the period of six years before the amendments made to the petition.

For the purpose of deciding the difference between the parties we regard the petition and amendments as a consolidated cause of action, embracing the issue between the parties in relation to the price of the material furnished!under the contracts- and extensions.

Upon the subject of pleading in this court, the Chief Justice,, in the case of Little, administrator, v. United States, says: “The Supreme Court of the United States said, The Court of Claims in deciding upon the rights of claimants is not bound by any special rules of pleading’” (U. S. v. Burns, 12 Wall., 246), and this court has been steadily ruled by the spirit of that comprehensive and liberal expression. In Burke’s Case (13 C. Cls. R., 231), it is said: “ This court is created by Federal law, with its seat in the Federal capital, with forms of proceeding prescribed by Federal law, for the recovery of money from the Federal Treasury.” The forms prescribed for it are neither taken from the common law or equity. They leave a large measure of freedom from the restraints of the special rules of pleading. Again, in Morse Arms Manufacturing Company's Case (16 C. Cls. R., 296): “ Proceedings are conducted here with a view of effecting substantial justice, irrespective of technical forms.” And again, in Brown v. The District of Columbia (17 C. Cls. R., 303): “ The court * * * seeks to administer justice between the contending parties by forms the most simple and convenient, and to make all such interlocutory orders as will lead to the doing of complete justice to all concerned, without prolonging litigation or subjecting either side of a controversy to unnecessary inconvenience and expense.”

The Supreme Court, in passing on the question of pleading in this court, said that "the forms of pleading in the. Court of Claims are not of so strict a character as to preclude the claimant from recovering what is justly due him upon the facts stated in the petition, although due in a different aspect from that in which his demand is conceived.” (Clark v. United States, 95 U. S. R., 543.)

The statute of limitations which is pleaded, and is always present as a jurisdictional inquiry, is therefore no legal defense to the claim of the petitioner for any material embraced in the •consolidated cause of action.

Other reasons might be urged against the application of the ■statute, growing out of the continuing character of the claim, but it is sufficient for the purpose of this case to hold that the ■comprehensiveness of the original petition and the legal effect of the amendments prevented the operation of the statute on any portion of the claim.

Adopting the construction given by the Supreme Court to a ■contract similar in its character, not regarding the receipts in full as concluding the claimant, and disapproving the application of the statute of limitations to any part of the claim, it is the judgment of the court that the claimant recover from the defendants the sum of $53,291.48.

Drake, Ch. J., sat in this case, but took no part in the decision.  