
    GILL’S CASE.
    (7 Court of Claims R., 522;
    not reported in Wallace.)
    Andrew J. Gill, appellant, v. The United States, appellees.
    
      On the claimants Appeal.
    
    
      A contract is entered into by a quartermaster with one W., in 1868, for the purchase of twelve hundred cords of wood. The Government refuses to accept all of the wood, and an action is brought for the breach in the name of W. On the trial it appears that the contract toas transferred by W. to one G., and that the suitisin faetproseautedby G.forhis ownbenefit. The court holds, under the Act July 17, 1862, that the transfer annulled the contract, but gives judgment in favor of the claimant for so much of the wood as was accepted and used. Thereupon &. brings a second action, in his oten name, upon the contract, alleging that he was the real party m interest and W. merely his agent. The defendants put in evidence the judgment record in the former case. The court beloio decides that thefoymer suit bars the present action; also that since the Acts June 2, 1862, and July 17,1862, (12 Stat. L., 411, 597,) (which require public contracts to be signed by the contracting parties, and forbid their transfes;) a principal cannot maintain an aetion in his otim name on a contract with the Government made in the name of his agent. Judgment for the defendants. The claimant appeals.
    
    The decision of the Court of Claims affirmed without au opinion being delivered by the Supreme Court.
    
      The Reporters’ statement of the case :
    The following were the facts found by the court below:
    1. This suit was brought on the following contract:
    “This contract, made and entered into at Fort Lyon, Colorado Territory, this twenty-fifth day of August, in the year of our Lord oue thousand eight hundred and sixty-six, by and between Capt. H. L. Thayer, A. Q. M. U. S. V., for and in behalf of the United States of America, of the first part, and E. D. Wheeler, of the city of Denver, county of Arapahoe, Colorado Territory, of the second part, witnesseth :
    “That the said E. D. Wheeler agrees to deliver at Fort Lyon, Colorado Territory, twelve hundred cords (or such amount as may be required, to be determined by the chief quartermaster of the Department of the Missouri,) of good merchantable wood, properly corded, at such place at Fort Lyon, Colorado Territory, as the post quartermaster may direct; the delivery of said wood to commence November 15, 1866, and to be delivered at the rate of at least two hundred cords per month until the completion of this contract.
    “ And the said party of the second part further agrees that, if default shall be made by the said party of the second part in the time of the delivery of the said wood, or in any of the provisions of this contract, the said party of the first part shall have power to supply any deficiency that may exist by purchase in open market, or in such manner as he may elect, and the said party of the second part shall be charged with the difference in cost.
    “ The said party of the first part hereby agrees, for and in behalf of the United States of America, to pay or cause to be paid to the party of the second part the sum of fourteen dollars and seventy-four cents per cord for each and every cord of wood delivered and accepted in accordance with the terms of this contract; payments to be made on the delivery of every two hundred cords, or as soon thereafter as funds shall be received for that purpose.
    “ It is expressly understood, by and between the parties to this contract, that no member of Congress shall be admitted to any share or part therein or any benefit to arise therefrom.
    “In witness whereof the said parties have hereunto set their hands and seals on the day and year first above written.
    “H. L. THAYER, [seal.]
    “ Gcvpt., A. Q. M.
    
    “ E. D. WHEELED.
    “ Witnesses to signature of Oapt. H. L. Thayer:
    “C. H. Kimball.
    “Henry W. Whighorne.
    “ Witnesses to signature of E. I). Wheeler:
    “Alex. W. Atkins.
    “G. H. Mills”
    
      2. On the trial of this case the defendants put in evidence the record and judgment of the case of H. D. Wheeler v. The United Slates, determined in this court in 1870, together with the deposition of Andrew J. Gill, the present claimant, taken and filed by the defendants in that case.
    3. On the 10th day of December, 1868, Ernest D. Wheeler, the identical person who signed the contract upon which this suit is brought, and hereinbefore set ont in finding No. 1, filed in this court his petition, which is hereto annexed, marked A, and wherein he sets up in his own behalf a claim for damages for the breach of the same contract for which this suit is prosecuted ; the breach alleged by the said Wheeler being the same as that alleged by the claimant in this case.
    4. On the trial of Wheeler's Case the claimant’s- (Andrew J. Gill’s) testimony was taken by the defendants, and he proved that he alone was interested in the claim then in litigation, and that he individually instituted that suit, and was prosecuting it for his own benefit, and that up to that time he had borne all the expenses thereof.
    5. On the 24th day of May, 1870, Wheeler’s Case was heard on its merits $ and after argument of counsel on both sides, the court found that the contract sued on was transferred by Wheeler, to the said Andrew J. Gill, the present claimant, and that by reason of the act of Congress approved July 17, 1862, he could not recover thereon; but as it apr) eared the United States had used a portion of the wood delivered under it, the claimant was entitled, on grounds of quantum meruit, to recover for the value of the wood used, and gave a judgment as follows, viz : “The court, oh due consideration of the prem-' ises, find for the claimant, and do order, adjudge, and decree, that the said Ernest D. Wheeler do have and recover of and from the United States the sum $589.60.” ‘
    6. It further appears that the contract set forth in the petition was entered into on the day and date set forth, and signed by the parties as set forth.
    7. That E. D. Wheeler, who signed the said contract, had no interest in it, and signed the same for and on behalf of the claimant.
    8. That the claimant on his part carried out and performed fully the said contract, and delivered on said contract twelve hundred cords of wood of the quality specified in said contract, and corded the same as be was directed to do by the quartermaster at said post, and that sucb delivery of wood was effected by the claimant within the time specified in said contract, and at the rate per month specified therein; and that such delivery was completed before the defendant asserted any right to determine any other or different amount of wood for delivery at said post within the contract than the amount specified in said contract, viz, twelve hundred cords, eight hundred of which have been paid for by the United States and a judgment as aforesaid rendered in Wheeler’s suit for forty cords.
    9. That defendants refused to receive or pay for three hundred and sixty cords of said wood, which the claimant sold at $3 per cord.
    10. That the actual market value of said three hundred and sixty cords of wood thus left on the hands of the claimant was $1,080 and no more.
    
      Messrs. Durant & Rornor for the claimant, appellant:
    The court misapplied the principles of the thing adjudged. In Wheeler’s Oase, their decision was that there was not and could not be any agency in Wheeler to make the contract with the United States for Gill. “ Gill’s agency was only colorable, while he was in fact the real party in interest in the contract.” (5 O. Ols. R, 509.)
    If the contract be absolutely null, as the court holds, there can be no legal relations between Gill and Wheeler, and all that is said about privity is immaterial to the question. Besides, the judgment was not rendered on the contract in the Wheeler suit, as is said by the court in 5 O. Ols. R, 509, and Gill was no party thereto. The judgment was for a quantum meruit. The grounds on which the Court of Claims decreed the absolute nullity of the contract were that Ford v. Williams, (21 How., 287,) and BamsdelVs Oase, (2 O. Ols. R, 508,) were no longer law, because the.Acts June 2,1862, and July 17,1862, (12 Stat. L., 411 and 597,) as well as the Act July 4, 1884, (15 Stat. L., 397,) governed this case. That in the light of these statutes the real contracting party must comply with the mode and manner in which contracts like this shall be made; all other modes and manners are excluded; that his signature is indispensably necessary, because he makes himself a part of the land or naval forces of the United States. We contend that, even admitting e. g. that the quoted statutes are in force, (a fact which we greatly doubt,) they do not sustain the decision. Neither Gill nor Wheeler ever made himself a part of the land or naval forces oí the United States. Neither allegation nor proof of this fact, if it were one, is to be found in the record. Stuarts Case, (18 Wall., 84,) is conclusive upon this point.
    
      Mr. Attorney-General Williams and Mr. Solicitor-General Phillips for the United States, appellees:
    Gill is bound by the judgment in Wheeler’s Case, mentioned in the findings of fact in the record. It is found in the present case that Gill instituted that suit individually, and prosecuted it for his own benefit. In such case it makes no difference that he is not named upon the record. (Chirac v. Beinecker,-613, 622; 2 Sm. L. 0.,1866, p. 821., &c.)
    As to the subject-matter of that suit, the third finding is that the contract sued upon in Wheeler’s name is “ the same as that alleged by the claimant in the case.” It was also found that that cause was heard upon its merits, and that as Wheeler had transferred the contract to Gill, he (Wheeler) could not, because of the provisions of the act approved -July 17, 1862, recover thereon; but as it appeared that the United States had used a portion of the wood whose delivery was the subject-matter of the contract, this claimant (Wheeler) was entitled, on grounds of gumtum meruit, (valébat?) to recover for its value, and thereupon the court gave judgment “ that the said Ernest D. Wheeler do have and recover of and from the United States the sum of $589.60.” We submit that upon the record in Wheeler’s Case as disclosed in the findings, no matter what may have fallen (inadvertently or otherwise) from the judge who delivered the opinion, and no matter what appears in the facts found by the court acting as a jury, it must be taken that Gill (through Wheeler) has already recovered judgment upon the breach as stated in his petition, and consequently that the damages claimed there have passed in remjudicatem, and so cannot be sued upon again.
    Although there be nothing technical in the forms of pleadings adopted for the Court of Claims, yet the general principle of requiring a party to stand by that which he has once; for-purposes of gain, and with the result of gain, asserted in that court, seems-to make a necessary part of its maxims. So likewise the principle that its records are the exclusively admissible witnesses of its proceedings, unless upon an application to amend them. In this connection we quote passages from the acts which provide for the forms in which claimants shall present their cases, viz:
    “ The said court shall hear and deterniine all claims founded upon any law, &c., which may be suggested to it by a petition filed therein. * * ■ * It shall be the duty of the claimant in all cases to set forth a full statement of the claim, &e., specifying also what person or persons are owners thereof or interested therein, and when and upon what consideration such person or persons became so interested.” (Act of 1855, ch. —, sec. 1. 10 Stat. L., 612.)
    “Any petition filed under this act [one of general provision for the Court of Claims] -shall be verified by the affidavit of the claimant, &c., stating that no assignment or transfer of said claim, or any part thereof or any interest therein, has been made except as in said petition stated ; that said claimant is justly entitled to..the amount therein claimed.” (Act of 1863, ch. —, sec. 12, 12 Stat. L., 765.)
    The rules of practice adopted by the court are to the same effect; but as a non-observance of these in any particular case cannot have the effect attributable to non-observance of the statutory provisions.above, we shall omit them. We submit,
    then, that inasmuch as the Court of Claims has, by the above acts, no jurisdiction of a claim not presented by a petition in favor of some person named, directly or otherwise, as claimant, Wheeler’s-ease, above mentioned, was one in favor of Wheeler alone, upon the breach assigned, alone, that the money recovered therein was recovered upon such breach alone, and that Gill,is chargeable, by a presumption of law not to be contradicted, with having actively contributed to that result. tie is therefore bound by it; the case, being■ the converse of Stowe’s Case, (Id Wall., 13.) (See 2 Sm. L-. C„ pp. 796, top, and 799, last paragraph.) It seems that it is-necessary to take this position in order to support the judgment given, at Gill’s instance, in Wheeler’s Case; for the suggestion that a quantum valebat in favor of Wheeler arose upon proof of the use by the United States of Gill’s wood, is wholly inadmissible; and it is equally inadmissible to suggest that Wheeler’s name was used by Gill in order to recover upon a quantum valébat for wood wholly furnished by Gill. The parties to the special contract and to the quantum valébat were different persons. Their causes could not be joined in the same case. It is contradictory at once to the general rules of pleading (as a science) and to the provisions of the above acts to suppose that in a suit by Wheeler alone the merits of Gill alone could be a foundation for a judgment rendered in favor of Wheeler, upon supposition that he would turn over the proceeds to Gill. We submit, therefore, that the judgment in the former case is to be maintained only by referring it to the petition, and that Gill, as co-operator, is bound by its conclusion, as thus referred, upon the breach of contract now set up. If he were dissatisfied with the findings and conclusions of the court in Wheeler’s Case, he should have withdrawn his proceedings before judgment. He could not pocket the $589.60 therein adjudged without subjecting himself to every burden incident to such transaction, either by the rules of right reason, or by the provisions of the above acts of Con.gress, or by a due regard to the proper-protection of the public against claims having the suspicious quality of being loosely defined both as to subject-matter and as to owner.
    Gill cannot sue the United States upon a contract made by them with Wheeler. In putting the latter forward to execute and subscribe in his own name a contract to which Gill alone was party, he committed an obvious fraud upon the act of 1862, ch. 93, § 1, (12 Stat. L., 411.) There is clearly a public policy declared in this, and Gill willfully defeated it. He knowingly .prevented Captain Thayer from performing his duty of having the real contracting parties sign Ms name at the end of the contract. In such case it is not for Gill to make light of the evil •consequences of his act, or even to require us to specify those consequences, although some of them are not far to seek.
    The difference between the wording of the above act (viz, “ such contracts to be reduced to writing and signed by the contracting parties with their names at the end thereof”) and that •of the celebrated statute of frauds, which had a similar end in view, and was no doubt familiar to the draughtsmen of the act •of 1862, (viz, “the agreement,” &c., “shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized,”) makes it plain that tbe signature “E. D. Wheeler” cannot be justified on the ground that it is the signature of a person thereunto by “A. J. Gill” lawfully authorized. The statute is peremptory, and gives no such authority. In view of the fact that it was drawn in the very light of the statute of frauds, this omission is significant.
    The act .of 1862, ch. 200, § 16, (12 Stat. L., 596,) is not affected by Stuart's Case, (18 Wall., 84.)
    The latter decision is special, viz, that within the meaning of the act of 1849, (9 Stat. L., 414,) giving compensation for property lost or destroyed, &c., Stuart was not “in the military service.” Whether he (or Gill) might not have been “ a part of the land forces,” so as to be subject to the rules and regulations for their government, (act of 1862,) seems plainly a question to be decided otherwise. Here Gill evaded that statute by declining to appear as contractor.
   The judgment of the Court, of Claims was affirmed by the Supreme Court no opinion being delivered.  