
    Edward Braden et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants agree to build walls for the Quartermaster Depa/rtment at San Antonio of “ rubble-stone. ” The superintendent of the work compels them to build the walls of “ ranged rubble” or “broken ashlar” They object, hut comply, neglecting to notify the Quartermaster-General. They appeal to Congress, and an aet is passed referring the claim to this court “to be lieard and determined according to law and justice.” Other questions also arise involving an interpretation of the statute and a construction of the contract.
    
    I. Where a statute refers a claim to this court without defining it, the court must necessarily look behind the statute to ascertain what the claim referred is.
    II. Statutes referring controversies between the government and its citizens to judicial tribunals for judicial redress are modern, and have received no comprehensive examination. The cases where they have received interpretation in this and the Supreme Court cited and examined.
    III. In construing these acts of reference, the court in each oase will from tl»e language of the act, and from the nature of the case, and from the surrounding circumstances, endeavor to ascertain and carry out the legislative intent.
    IY. Where the court has jurisdiction of the cause of action without the aid of a referring act and the statute of limitations does not bar a consideration of the case upon its merits, and the defect in the claimant’s case is apparent upon the face of his contract, and the facts and circumstances which would prevent a recovery upon the merits were known to Congress, it must be held that the purpose of the referring act was to operate upon the cause of action.
    V. If parties whose claims are referred to this court “to.be heard and determined according to laic and justice” (or other equivalent phrase) cannot recover upon ordinary legal principles, their cases are beyond the remedial purpose of Congress, and must fail.
    
      VI.Where a contractor was compelled, by an unauthorized agent of the government to erect a better wall than his contract bound him to do and Congress with knowledge of the facts, referred the claim “to be heard and determined according to law and justice,” the statute will be deemed a ratification so far as the government reaped a benefit, and a submission of questions of liability and damages to the legal legal determination of the court.
    VII.But where the contractor voluntarily furnished better material or more expensive work than his contract called for, it will not be inferred, in the absence of words to that effect, that Congress intended a gratuitous payment for an outlay neither required by the contract, nor brought about by an agent of the government.
    VIII.A statute which simply refers a claim for hearing “according to law and justice” confers no equity jurisdiction upon the court, and the court cannot reform a contract in the suit as a court of equity upon the same facts might do.
    IX.A voluntary substitution of one building contract for another must be regarded as a relinquishment of any damage incurred by a party under the abandoned contract.
    X.If a contract expressly provide that certain building sand to be furnished by one party shall be subject to the approval or rejection of an officer of the other party, it cannot be shown by parol that the sale was by sample.
    
      The Reporters’ statement of tbe case:
    Tbe act for tbe relief of tbe claimants will be found set forth in tbe opinion. Tbe following are tbe facts of tbe case as found by tbe court:
    I. On tbe 12tb day of May, 1876, tbe Quartermaster-General advertised for proposals for tbe erection of tbe San Antonio quartermaster’s depot. Pursuant to sucb advertisement, tbe claimants, Edward Braden and Job W. Angus, partners under tbe firm name and style of Ed. Braden & Co., submitted a proposal for tbe erection of said buildings. Among other things, this proposal contained tbe following, .viz.:
    “If extra excavation is needed beyond tbe three feet, add one cent per foot; and for mason work extra in cement mortar, add $3.50 per perch.”
    Also tbe following, viz:
    “The sand to be used for tbe masonry is tbe Alamo sand or its equal.”
    On tbe 7th of June, 1876, Oapt. E. D. Baker, acting chief quartermaster Department of Texas, entered into the contract in writing with claimants for the erection of said buildings set forth in the petition.
    II. The contract referred to in fin ding I was not approved by the Quartermaster-General pursuant to the ninth article thereof. But the Quartermaster-General caused to be draughted and prepared the following contract, which was transmitted to San Antonio and duly executed by the parties thereto at some time subsequent to its date:
    “ This agreement made and entered into this seventh day of June, one thousand eight hundred and seventy-six, by and between Captain E. D. Baker, assistant quartermaster United States Army, acting chief quartermaster Department of Texas, for and on behalf of the United States of America, party of the first part, and Edward Braden, of San Antonio, Texas, and J. W. Angus, of Washington, District of Columbia, transacting business under the firm name and style of Ed. Braden and Go., parties of the second part, for themselves, their heirs, executors, administrators, and assigns, witnesseth:
    “That the said parties have covenanted and agreed, and by these presents do covenant and agree, to and with each other, as follows:
    “Article 3. That the said party of the second part, for and in consideration of the sum of eiglity-three thousand nine hundred dollars, to be paid to the party of the second part by the party of the first part, in the manner and at the times as hereinafter described to be paid, shall furnish at their own risk and expense all the material and work necessary, in the erection and construction, near San Antonio, Texas, of a stone building, to be known as the San Antonio depot, and within the court yard inclosed by the said depot of one stone watch and water tower, and finish and complete the same in accordance with the plans and specifications and notes of Oapt. Goo. W. Davis, U. S. Army, hereto annexed, which form a part of this contract, said building and tower to be coverered with tin roofing and to be entirely completed and ready for occupancy and delivered to the party of the first part on or before the thirtieth day of June, eighteen hundred and seventy-seven.
    “ And it is further mutually agreed by the parties to this contract that all materials furnished and work performed shall be of the quality described in said specifications and notes, and subject to the inspection, approval, or rejection of the chief quartermaster Department of Texas, or such other person or persons as he may designate for such duty; and that the said chief quartermaster Department of Texas, or his agents, shall have full power to reject any materials or workmanship which, in their opinion, is not in every respect in complete conformity with the aforesaid plans and specifications, and that the said materials and workmanship thus rejected shall be immediately removed from the premises by the party of the second part.
    “ And it is further mutually agreed to by the parties to this contract that the party of the first part shall harm full power to make such alterations in or additions to the aforesaid described buildings as he may deem advisable, the nature of such alterations or additions to be first mutually agreed upon by the parties to this contract. The rates of payment therefor to be fixed by the Quartermaster-General.
    “ Article 2. That for and in consideration of the faithful performance of the stipulations of this agreement the party of the second part shall be paid at the office of the chief quartermaster Department of Texas, at San Antonio, Texas, as the work progresses, upon monthly estimates, to be made by the superintending officer, of the value of the work done and materials delivered, less ten (10) per cent. Upon completion and acceptance of the work the retained ten (10) per cent, to be paid in full by. the party of the first part.
    “Article 3. That in case of failure of the said parties of the second part to comply with the stipulations of this contract according to the true intent and meaning thereof, or any failure on their part to complete the said depot and tower within the time heretofore stipulated, then the party of the first part shall have full power to complete the entire work or any part thereof remaining to be completed either by contract or by day’s work, or open purchase, as he, the said party of the first part, shall deem to be best for the interest of the public service.
    “ Article 4. That it is expressly understood by the parties of the second part that in conformity to the requirements of section 3737 of the Revised Statutes, neither this contract nor any interest therein shall be transferred to any other party or parties, and that any such transfer shall cause the annulment of the contract so far as the United States are concerned; all right of action, however, for any breach of this contract by the contracting parties being reserved to the United States.
    “ Article 5. That it is expressly agreed and stipulated between the parties to this contract that upon mutual agreement it may be changed, altered, modified, or abrogated in whole or in part; but no such change, alteration, modification, or abrogation shall entitle the said Ed. Braden and J. W. Angus to increased rates of compensation over the rates herein specified, except the alterations or modifications referred to in last clause of article 1 of this agreement.
    “Article 6. That it is further expressly agreed and understood that no member of O. ngress, officer, agent, or employé of the government shall be admitted to any share or part of this agreement or derive any benefit to arise therefrom.
    
      “ This agreement is made subject to the approval of the Quar-master-General XT. S. Army, Washington, D. O.
    “In witness whereof, the undersigned have hereunto subscribed their names and affixed their seals tbe day and date first above written.
    “E. D. Baker, [l. s.]
    “ Gapt. & A. Qr..Mr., U. S. A., Acting Chief Quartermaster.
    
    “Ed. BradeN. [l. s.]
    “J. W. Angus. [l. s.]
    “Approved:
    “M. C. Meigs,
    “ Quartermaster-General, But. Major-General, U. S. A.”
    To the foregoing contract, forming a part thereof, were appended, among others, the following specifications:
    “ Specifications of the worlcmanship and materials required in the ' erection of a stone water AND watch tower at San Antonio depot, Texas, the same to he built under the direction and-inspection of the U. S. officer in charge, and in accordance with the drawings made for the same in the Quartermaster-General’s Office, Washington, JD. 0., which drawings are hereby made a part of these specifications.
    
    “The water and watch tower to be erected in the center of the court-yard of the San Antonio depot, Texas, will be built of stone, in the form of a square tower, its base being fifteen (15) feet and its height ninety (90) feet, in which, at the height of sixty-four (64) feet, is a watchman’s room, and above this room a water-tank of iron.
    “The corners of the tower, from its base to the eaves of the roof, will be carried up in the form of projecting quoins, alternating, large and small, with rock-work face and chamfered edges, and on each face there will be a projecting balcony with a stone floor, supported on cut-stone brackets.
    “ The stone to be used in these buildings is to be obtained from quarries near San Antonio, some of which have been placed at the disposal of the United States for use of the building. It is a soft calcareous stone, much softer than marble, and works much like Oaen or the other soft French building-stones.
    
      “Outer walls. — To commence at top of base course; to be two (?) feet six (6) inches thick, and carried up with that thickness to the full height of seventy-five (75) feet; from thence to top of tower one (1) foot six (6) inches thick. To be built of first class rubble masonry, with corners of hammered-stone quoins, well bonded, and laid in good lime mortar; to show a uniform face on the inside and no projection over two (2) inches on the outside; to be carried up plumb and true, and. all outside joints to be well pointed with cement mortar.
    “ Ashlar. — Base and belt course, brackets, supporting baleo-nies, cornices, and floors of balconies to be of cut stone; quoins to be hammer-dressed; sills for doors and windows to be of cut' or hammered stone, and all of the form and shape as shown on drawing.
    “ Timber. — All timber used in the building to be of good clear pine or oak, free from knots or defects of all kinds.
    
      u Roof and cornice. — Roof and cornice to be as shown on drawing, properly framed, with ornamental cap and iron vane terminating in tank. Roof to be sheathed with good merchantable plank, free from large or loose knots or other defects, and covered with either the best quality of XX bright tin, slate, or tiles, as may be hereafter determined upon.
    
      u Plastering. — Lath and plaster the ceiling, and plaster the walls of the watch-room with two (2) coats of best quality lime, sharp sand, and hair mortar. '
    
      “Materials. — All materials used to be of good quality. The entire work to be done in a neat, substantial, and workmanlike manner, conforming in every respect, both in form and dimensions, to the drawings hereto annexed, and to the complete and entire satisfaction of the U. S. officer in charge.
    “ All labor and material that may be necessary for the proper completion of the building which may not have been mentioned or described in the above specifications shall be done, and the same furnished, as though mentioned therein, so as to form a complete, well-appointed, and thoroughly constructed building, ready for immediate occupation.
    “No allowance will be made for any extra work which may be claimed to have been done, unless the same has been specially provided for beforehand by a written agreement to that effect, or unless it has been done upon an order in writing from the chief quartermaster, Department of Texas; the price to be paid for any authorized extra work to be approved and determined upon by the Quartermaster-General TJ. S. A.
    “ Specifications of the workmanship and materials required in the erection of a stone building at San Antonio, Texas, to be known as the San Antonio depot, the same to be built under the direction and inspection of the TJ. S. officer in charge, and in accordance with the drawings made for the same in the Quartermaster-General’s Office, Washington, D. 0., which drawings are hereby made apart of these specifications.
    
    “San Antonio depot, to be built on four (4) sides of a hollow square; each side six hundred and twenty-four (624) feet long, will consist of an office building, two (2) stories high, on one side of the square, to be one hundred and sixty-seven (167) feet six (6) inches long and thirty-three (33) feet wide, subdivided, as shown on plan, into rooms to be used as offices, with two (2) wings, each one (1) storydiigli and one hundred and sixty-six (166) feet long; and on two (2) other sides of the square of two one (1) story buildings, one six hundred and twenty-four (624) feet long and thirty-three (33) feet wide, and the other four hundred and ninety-nine (499) feet six (6) inches long and thirty-three (33) feet wide; these latter, together with the wings of office building, to be subdivided by fire-proof walls into storerooms 30x40 feet.
    “These several buildings will be connected with each other, as shown on drawing, by stone walls.
    “The fourth side of the square will be completed by a wall twenty-four (24) feet high, with buttresses on inside six (6) feet long, of same thickness as the wall, and placed sixty (60) feet apart, against which are to be built wagon-sheds.
    “The stone to be used in these buildings is to be obtained from quarries near San Antonio, some of which have been placed at the disposal of the United States for use of the building. It is a soft calcareous stone, much softer than marble, and works much like Caen or the other soft French building-stones.
    
      “Foundation. — All foundation walls to commence at least eighteen (18) inches below the natural surface of the ground at its lowest point, provided at this depth a good compact soil is. found; if not, the depth must be in creased until this soil is reached; to be laid in good cement and lime mortar — one-half cement, one-half lime, and a due proportion of sand — and to be twenty-seven (27) inches thick at its base, which will be of large stone, or of cement and broken stone concrete, and carried up with proper footings, as shown on drawing, to the bottom of the water-table, which is to be six (6) inches thick, with a wash of two (2) inches; between the water-tables and the lower course of all walls, throughout their entire length, one course of slate is to be laid.
    “ Walls. — All walls above the water-table to be eighteen (18) inches thick, except division walls of office building, which will be one (1) foot thick; to be built of first-class rubble masonry, well bonded with frequent throughs, and laid in good lime mortar mixed in proper proportions. Division walls of store-rooms to be' carried up above the eaves of the building with slope of roof to apex, its top coincident with upper face of sheathing, all to show a uniform face on both sides; outside walls to have a uniform face on the inside, and no projection over two (2) inches on the outside, all to be carried up plumb and true; outside joists to be well pointed with cement mortar ; the outside corners of the building to be marked by a draught of not less than one (1) inch on each face.
    “ Timber. — All timber used in the building to be of good pine or oak, free from knots and defects of all kinds.
    “ Joists. — Floor-joists for 1st story, office building, to be 3x12, and2d story 3x10; ceiling-joists 2x8, all placed sixteen (16) inches, between centers, and trussed with one (1) course of cross-bridging in the centers. All joists under partitions to be double.
    “ Floors. — First and second floors of office building and that of veranda to be of best quality f seasoned hard pine, not over five (o) inches wide, tongued and grooved, blind-nailed, and laid in courses; to be free from knots or defects, mill-worked and smoothed.
    
      “Roofs and cornices. — Eoof of store-room buildings, consisting of principals and common rafters, will be as shown by detail drawing. The principals to be placed twelve (12) feet, and the common rafters two (2) feet between centers. All the timbers to be of the following sizes: tie-beams 4x10king-posts (double) l.JxG, principal rafters 4x7, struts 3Jx5, wall-plate 6x8, pole-plate 6x6, purlins 6x6, and common rafters 2x5. Eoof of office building to be framed on ceiling-joists, as shown by detail drawing, with timbers of the folio wing sizes: king-posts (double) 1x6, rafters 2x6, and struts 1x6. Eoof of veranda: rafters 2x6, plate 4x8, posts 8x8, with suitable sawed brackets, caps, bases, and chamferred edges, and ceiled with narrow plank, close-jointed, and beaded edges.
    “Eoof of shed, supported on posts and connecting stone wall, to be framed, as shown by detail drawing, with timber of the following sizes: posts, 8x8, resting on stone piers, and well fastened to them by 2x£-inch angle-irons, four to each post; wall-plate, 8x8; struts, 2x6; and rafters 2x8, placed two (2) feet between centers. All the several roofs to lie sheathed with, good merchantable plank, free from large or loose knots and other defects. The sheathing-plank of the store-rooms must not rest on the stone division-walls, but butt against them; the party-walls are to cut off all wooden connection between the roofs of the several store-rooms.
    
      “Materials. — All materials used to be of good quality; all lumber and timber of the floors and joiner-work to be well seasoned, and the entire work to be done in a neat, substantial, and workmanlike manner, conforming in every respect, both in form and dimensions, to the drawings hereto annexed, and to be done to the complete and entire satisfaction of the U. S. officer in charge.
    “All labor and material that maybe necessary for the proper completion of the building which may not have been mentioned or described in the above specifications shall be done and the same furnished as though mentioned therein, so as to form a complete, well-appointed, and thoroughly constructed building, ready for immediate occupation. Eo allowance will be made for any extra work which may be claimed to have been done, unless the same has been specially provided for beforehand by a written agreement to that effect, signed by the chief quartermaster Department of Texas; the price of such extra work as may be'thus allowed to be fixed by the Quartermaster-General of the Army.”
    III. On the 16th June, 1876, the following supplemental contract was signed, which was duly approved by the Quartermaster-General:
    “This special agreement made and entered into this 10th day of June, 1876, between Oapt. E. D. Baker, asst, quartermaster, U. S. Army, for and on behalf of the U. S. of America, party of the first part, and Ed. Braden and J. W. Angus, contractors for the construction of the San Antonio depot buildings, party of the second part, for themselves & their heirs, executors, and administrators and assign, witnesseth:
    “ That the said parties have covenanted and agreed, and by these presents do covenant and agree, to and with each other, as follows:
    “Article 1. That the said Ed. Braden and J. W. Angus shall furnish and use in the construction of the San Antonio depot buildings no other but the best quality of quartz sand, subject to the insepetion, approval, or rejection, provided for by Article I of an agreement entered into between the parties to this contract under date of June 7th, 1876, for tlie construction of the San Antonio depot buildings.
    “Article II. That for and in consideration of tbe faithful performance of the stipulations of this agreement, the party of the second part shall be paid at the office of the chief quartermaster Department of Texas the sum of twelve hundred dollars, and in accordance with the terms of payments prescribed in Article II of the agreement referred to in Article I of this agreement.
    “Article III. That it is expressly agreed and understood that no member of Congress, officer, agent, or employé of the government shall be admitted to any share or part in this contract or agreement, or derive any benefit to arise therefrom.
    “Article IV. That it is further expressly agreed and understood that this agreement is made in accordance with the last clause of Article I of the agreement for the construction of the San Antonio depot buildings.
    “In witness whereof the undersigned have hereto subscribed their names and affixed their seals the day and date first above v ritten.
    “E. D. Baker, [seal.]
    “ Oapt. and Asst. Quartermaster, Acting Chief Quartermaster.
    
    “Witness:
    “0. Bollinger. “ED. Braden, [seal.]
    “ San Antonio, Texas.
    
    “John B, Dukes.
    “J. W. Angus, [seal.]
    “ Washington, District Columbia
    
    “G. Friesliben.
    “Approved. “M. O. Meigs,
    “ Quartermaster-General, Bvt. Major-General, U. S. A.
    
    “June 30th, 1876.”
    
      IY. Capfc. George W. Davis, IT. S. A., was designated by the chief quartermaster of the department, as his agent, to reject such workmanship and material as in his opinion and judgment were not in conformity to the plans and specifications. The work was done by the claimants, to the satisfaction of Captain Davis, and they have received the $83,900 and the $1,200 consideration of said contracts.
    Y. From time to time work extra to and outside of said con- ' tract, and alterations and additions thereto, were agreed upon •and performed by claimants. The rates of payment therefor were fixed by the Quartermaster-General at $14,219.49, and •claimants have received the same, making a total of $97,339.74 received by claimants from the United States for material and labor in the construction of the quartermaster depot at San Antonio.
    YI. The appropriation of $100,000 made by act of March 3, 1873, for the construction of depot buildings at San Antonio, Tex., has been exhausted, with the exception of $119.55; which sum was carried to the surplus fund June 30, 1879.
    YII. Three different donations of land had been tendered to the defendants by the city of San Antonio, Tex., as sites for the depot buildings, which were known and designated as the first, second, and third donations. At the time claimants made their proposal for the work and entered into the first contract of June 7,1876, it was understood by both parties to that contract that the buildings were to be erected on the third donation, on which site it was thought by both parties that extra excavation beyond three feet beneath top of water table would be required.
    On the 14th day of June following, the second donation was adopted by defendant’s officers as the building site. It was believed by both parties to the contract that extra excavation beyond three feet beneath the top of the water table would not be required on this site. Extra excavation and masonry beyond three feet beneath the top of the water table was in fact required on this site, and was made by the claimants without extra compensation being paid to them, and was reasonably wmrth $2,006.17.
    YTII. As soon as the first contract of June 7,1876, had been executed, claimants were directed by Captain Davis, the superintendent in charge on behalf of the United States, to begin work at once on the site known and designated as “ the third donation.” Claimants a.t once commenced the erection of shops necessary to carrying on tlie work, and contracted for the transportation of the entire amount of stone required from the quarries to this site — 9,285 lurches in all — with a responsible party, at the rate of 75 cents per perch. After the shops were in pare erected and about twenty perches of stone delivered on this site, Captain Davis directed claimants to abandon the work at that place and commence work on the site known as “the second donation,” on which site the buildings were erected.
    After the change of the building site was made the subcontractor refused to deliver the stone on the site of the second donation at the contract price. It cost claimants $1.25 per perch for transportation of the 8,750 perches of stone required for the building from the quarries to the site of the second donation. The cost of the additional transportation of stone to the site of the second donation over the cost of sack transportation to the site of the third donation was 50 cents per perch, amounting to $4,375. The distance was a quarter of a mile greater from the quarries to the site of the second donation than to the site of the third. The elevation of the site of the second donation was greater than that of the third, and the haul was longer and more difficult.
    Apart from the loss caused to the claimants by reason of the refusal of their subcontractor to deliver the stone at the new site on the second donation, the reasonable value of such additional transportation was 12£ cents per perch, amounting to $1,093.75.
    Claimants had to remove twenty perches of rock that. had been delivered at the site of the third donation to the site of the second donation, at a cost of $12.75, and had to tear down and remove a shop they had erected on the site of the third donation, to the site of the second donation, at a cost to them in labor expended and lumber wasted of $75.
    When the claimants were informed that the change of site from the third to the second donation had been determined upon they raised no objection, and on the contrary expressed satisfaction thereat; and after this change of site had been determined upon, and the fact communicated to the claimants, they signed and executed the second contract set forth in Finding IX.
    IX. When the third, or supplemental, contract, set forth in Finding III, was executed, tbe superintendent exhibited to the claimants a sample of quartz sand. Such, it was supposed by the claimants, would be required under that contract. While the walls were in progress of erection sand equal to the sample to the amount of about 10,000 barrels was.accepted. While the plastering, concrete work, and. cisterns were building, the superintendent required a white quartz sand of the same kind, but superior in quality, which, was more expensive than the sample. About 5,000 barrels of this white quartz sand were required and furnished. The additional value of this better quality of sand, and consequent cost to the claimants, was about 20 cents a barrel, amounting to $1,000.
    X. At the time the contract was made the term “first-class lumber” in a building contract was, by the usage of builders and lumber dealers in San Antonio, understood to mean first-class Texan lumber, and if other lumber was intended it was designated as first-class Louisiana, first-class Georgia, &e. The claimants in this case put into the building a large quantity of Louisiana lumber which was worth $10 p>er thousand feet more than Texan lumber. But the Texan lumber which the claimants sought to use in the building was rejected by the superintendent, Captain Davis, not because it was Texan - lumber, but because in his judgment it did not comply with the requirements of the contract. The additional cost and value of the Louisiana lumber to the claimants was $1,500.
    XI. The claimants began the erection of walls of first-class rubble masonry, which came up to the standard of that required by the contract; but the superintendent, Captain Davis,, required the ciaimants to furnish a better style of masonry, which was, in fact, though not so designated by him, what is called ranged-rubble or broken-ashlar stone, more expensive in kind than that described by the contract, and which made a wall superior in appearance to that contemplated by the specifications. The wall generally known as nibble masonry was common in San Antonio, and was so designated there; but the wall which the claimants were required to build was then entirely unknown there.
    The claimants objected to the requirement, and insisted that they were being compelled to build a better wall than the contract required them to do, but complied without appealing to either the chief quartermaster of the department or to the Quartermaster-General, and without the authorization of either of them.
    There was 476 perches of masonry in the tower. The additional post to claimants in building the wall required by the superintendent in the tower above the kind of work specified in the contract was $4 per perch, amounting to $3,904.
    There was 5,351 perches of masonry in the outer walls of the building. The additional cost to claimants in doing the kind of work required on the outer walls above the kind of wall required by the specifications was $2 per perch, amounting to $10,702,
    The total additional cost to claimants by reason of the superior masonry required was $12,606.
    XII. The claimants, with the consent of the superintendent, but without being required by him, constructed a more expensive and ornamental cornice than was required by the contract, they expecting that the Quartermaster-General would approve the alteration. He approved their claim for this extra work only as regards a distinctive portion technically termed by builders “the returns of the cornice.” -For the returns he allowed them the full value, to wit, $200, which has been paid to them. The remainder of the extra cornice work, which has not been paid for, was reasonably worth $277i
    And upon tlie foregoing findings of fact the court decided as conclusions of law:
    1. As to the relief asked for that the contract be reformed and the claimants compensated for an extra depth of foundation, as set forth in Finding VII, the court is without jurisdiction to grant such relief.
    2. As to the expense caused to the claimants by reason of the change of site from the third to the second donation, as set forth in Finding VIII, the claimants are not entitled to recover.
    3. As to the additional expense cast upon the claimants by the superintendent requiring them to furnish white quartz sand, as set forth in Finding IX, the claimants are not entitled to recover.
    4. As to the additional expense cast upon the claimants by reason of their furnishing Louisiana lumber, as set forth in Finding X, the claimants are not entitled to recover.
    5. As to the additional expense cast upon the claimants by the superintendent’s requirement that they erect walls of the masonry, described in Finding XI, the claimants should recover the fair and reasonable value of such additional work, to wit, the sum of $12,606.
    6. As to the additional expense assumed by the claimants in regard to the cornice of the building, as set forth in Finding XII, the claimants are not entitled to recover.
    
      Mr. B. F. Grafton for the claimants:
    If this court has in this case the ordinary jurisdiction of courts of equity and law, it has power to reform the contract on this point according to the intent of the parties, and then to enforce it. ■ (Gillespie v. Moon, 2 Johns. Ch., 6805 Keisselbrach v. Livingston, 4 Johns. Ch., 144; 1 Story’s Eq. Jur., sec. 161.) But the jurisdiction conferred on this court in this case by the act approved June 1, 1880, is broader.than that entertained by courts of law or equity. The act confers upon this court power to adjudicate the cause upon principles of absolute justice, whether such principles • have or have not been incorporated into our systems of law and equity jurisprudence.
    
      Mr. John S. Blair (with whom was the Assistant Attorney - General) for the defendants :
    It is contended by the United States that the claimant to recover must show two things: First. Either a mutual agreement that the work was extra, or a written order from the chief quartermaster specifying the work as extra. Second. An allowance in his favor by the Quartermaster-General. These, we think, are conditions precedent, and we contend that the case is governed by Worsley v. Wood, 6 T. B., 710; Reynolds v. Galdwell, 51 Pa. St., 305; Morgan v. Birnie, 9 Bing., 672; Smith v. Briggs, 3 Denio, 73; Sweeney v. the United States, 15 O. Ols. R., 400.
   Nott, J.,

delivered the opinion of the court:

This case in its principal cause of action bears a striking resemblance to the recent case of Hatohins (12 O. Cls. R., 181; ■96 U. S. R., 689). In both cases the contracts in suit were building contracts; in both the claimants agreed to build walls of rubble-stone; in both, the superintendent of the work, without authority to order an alteration, compelled them to build the walls of ranged rubble or broken ashlar; in both they complied, but maintained that they were building a better wall than their contracts required; in both they neglected to notify the responsible agent of the government at Washington, who, in . the former case, was the Secretary of the Treasury, and in this the Quartermaster-General.

Here the similarity of the cases ends and their diversity begins. In the former, the claimant brought his action in this court to recover for the extra value of the better walls. The court found the facts and fixed the amount of the damages, but held that the action of the local superintendent did not bind the defendants, and that the claimant having proceeded without due authority could not recover.

Hawkins appealed, and the Supreme Court affirmed the judgment. He then went to Congress for relief, and Congress perceiving that the government had acquired from him through the action of its own agent a better building than he was bound to furnish for the price paid him, a benefit which in equity and good conscience should be paid for, acted upon the facts judicially ascertained by this court, and gave him the precise amount which he would have recovered in his action if the work had been duly authorized. (Act 2d March, 1881, 21 Stat. L., p. —, chap. —. See also report 886, Com. Claims, H. B.., second session Forty-sixth Congress.)

In this case the claimarits went in the first instance to Congress, and the same Congress which passed the act for the ■relief of Hawkins passed the following act for their relief:

“AN ACT for tlie relief of Edward Braden and J. W. Angus.
“Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That the •claim of Edward Braden and J. W. Angus for extra compensation for the construction of supply depot building and shops at San Antonio, Texas, be referred to the Court of Claims,- to be heard and determined according to law and justice.
“Approved June 1, 1880,” (21 Stat. L., p. —, chap. —.)

If the two last words of this statute had been omitted — if it had stopped with the words “to be heard and determined according to law”— it might be well asked whether any benefit whatever would have been conferred upon the claimants; whether their case would not have come into this court in precisely the same plight in which that of Hawkins was, notwithstanding that at the time when this act for their relief was passed, the decision of the Supreme Court in Hawkins’ case had been rendered, and the case reported; and notwithstanding that, Congress must be supposed to have had a knowledge of the law of the land as declared and expounded by the highest judicial authority. The question, therefore, is, whether Congress intended to waive the technical defense which prevailed in the other suit (inequitably, as Congress subsequently thought) and whether that intent is sufficiently expressed by this statute ? For if the statute does not authorize this court to find for the claimants in quantum meruit, at least so far as the defendants were benefited by the interference of their own agent, the action must be adjudged against the claimants, and the act passed for their relief must be deemed entirely inoperative and meaningless.

These special or private acts referring individual cases in this court have always occasioned an embarrassment of interpretation. They generally refer the “ claim ” of theparty, which, being an undefined thing, leaves it uncertain whether the cause of action presented by the pleadings here is precisely tlxe same thing which Congress intended to refer. There being no legislative record of a claim in Congress analogous to the judicial record of a suit in a court of justice, whereby the precise thing sought to be recovered can be ascertained, it is almost always a matter of uncertainty as to what relief Congress intended to grant. Ordinarily courts look to the terms of a statute to ascertain the legislative intent, but when the terms of a statute refer to something which is not set forth, a court must necessarily look behind the statute to ascertain what that something is.

In the legislative practice of Parliament all private bills are-prefaced by a preamble in which the petitioner is required to set forth the nature of his claim, and the preamble restrains the construction of the act and aids in the interpretation of its terms. In this country no such legislative practice exists.

Statutes referring controversies between the government and its citizens to judicial tribunals for judicial redress, are exceedingly modern, being no older than this court, and thus far have received no comprehensive examination. From time to time,. however, they have come before the courts, and it will be well Before going farther to ascertain what has already been determined.

In Meade’s Case (2 C. Cls. R., 224; 9 Wall. R., 691), the statute referred back the claim to this court; it recited that doubts were entertained as to whether the court had jurisdiction, and •declared that it was passed to remove such doubts. Both this and the Supreme Court held that it did not operate to authorize a decision upon the merits irrespective of a bar arising from a former adverse decision of a special tribunal having jurisdiction of the claim.

In Nock’s Case (2 C. Cls. R., 451), judgment had gone against the claimant, yhen Congress passed an act re-referring the claim to this court “for its decision in accordance with the principles of equity and justice,” but limiting the amount for which judgment might be rendered. The counsel for the government thereupon set up the former judgment in bar, and argued that Congress had no judicial power to award a new trial, nor legislative power to circumscribe or limit the judgment of a court. But it was held by this court that Congress were, to all intents and purposes, the defendants in the suit, and as such might come into court through a statute and say that “ they will not plead the former trial in bar, nor interpose ■a legal objection which defeated a recovery before, but that they thus consent upon the condition that the recovery, if any shall be had, shall not exceed a certain amount.” Other cases might be cited, and notably that of Cross (post), where the statute, though in form a legislative act, is in substance a consent or stipulation by a party litigant, and where the real intent of Congress must be ascertained by supposing them to be the ■defendants in the suit.

In Cross’s Case (5 C. Cls. R., 80; 14 Wall. R., 479), Congress, with reference to a certain case then pending, waived a defect in the claimant’s title to a lease on which he was seeking to recover. He subsequently brought a second action for rents subsequently due, and the question was whether the act referring the claim and waiving the defect extended to rents not then due and could be used to sustain the second action. This •court held that there was not one provision in the enactment that could, by any acknowledged and known rule of interpretation and construction, be made to apply to any other case than the one then remanded.” But the Supreme Court reversed the decision, and said:

“We cannot suppose, without an express declaration to that effect, that Congress intended to legislate in a manner that would enable a creditor of the government to obtain only a part of his claim, when the whole of it was deemed by the court that tried the case to be meritorious.”

In Roberts’s Case (6 C. Cls. R.; 92 U. S. R., 41), the claimants perfprmed a mail service additional to that required by their-contract, it being expressly agreed between them and the Postmaster-General that the additional service was subject to the ratification of Congress and imposed no obligation upon the department. The claimants brought their action, and while it was pending Congress enacted that “the claim” “for compensation for services in addition to the regular service required under the contract” be refereed to the Court of Claims “to determine and adjudge whether any, and, if any, what, amount is dire said trustees for said extra service.” This court held that “private acts” “are always to be strictly construed;” that “most especially are they to be so construed as to prevent the entrapping of the government by fixing upon it a liability where the intention of the legislature was only to authorize an investigation and determination of the question of liability;” that when Congress refer a case to this court “ to decide whether any amount is due we must decide that precise point at the threshold of the case, and no latitude of construction of particular words or phrases in the act to dispense with our performance of that plain duty is allowable in favor of the party for whose benefit and through whose efforts the act was passed and, finally, that “ against him the rule of strict construction is always to be enforced.” But the Supreme Court reversed the judgment, and, on the contrary, held that “.under the peculiar circumstances of the case, its well-known history and its frequent consideration by Congress,” the act was intended to validate the suit, which had been pending for five years in this court, and that “ where a necessary public service has been performed at the request of the proper government agents and under the expectation of compensation, and with reliance upon Congress to fix the amount, and where Congress upon application made to it has referred the matter to the Court of Claims, that court is authorized to make and adjudge such an allowance as is required ex cequo et bono.”

In Haskell's Case (9 C. Cls. R., 410) the suit was barred by the statute of limitations when the act of reference passed. The claim had been before the Davis-Holt-Campbell Commission, and an award upon it had been made which the claimant had accepted and the defendants had paid. Congress referred, the claim with directions that the court “ adjudicate it on terms of equity and justice,” but there was nothing to imply that Congress were informed when they passed the act that the claim had been compromised and was in law satisfied. Accordingly it was held that the act did not reopen a controversy which had been compromised and settled, nor authorize the court to disregard a legal defense which precluded a consideration of the case upon its merits.

In Harvey & Livesey’s Case (12 C. Cls. R., 141) the claimants had sought to recover in an action at law, but j udgment had gone against them. Congress then came to their relief and passed an act conferring equity jurisdiction upon this court, and authorizing it to reform the contract in suit according to the principles of equity jurisprudence. The claimants filed their petition and sought, among other things, to reopen demands at law which had been decided against them in the former suit. But this court held .that the purpose of the statute was merely to supply a defect of jurisdiction, and that the court must proceed simply as a court of equity to give the relief which it could not give before as a court of law.

In Erwin’s Case (13 C. Cls. R., 49; 97 U. S. R., 392), the statute recited the fact that a suit under the Abandoned or Captured Property Act, by accident or mistake, had not been brought within the jurisdictional period for bringing such actions and authorized this court to take jurisdiction of the case under the provisions of that act. Both this and the Supreme Court held that it did not enlarge the claimant’s rights in the proceeds of the captured property and that its purpose was strictly jurisdictional.

In Reynolds’s Case (15 C. Cls. R., 314), the statute was the converse of that in Erwin’s case. That is to say, a paymaster had lost a package of public money in 1865, for which suit had been brought against his sureties and judgment had been recovered. They maintained that the loss was without fault or negligence on his part, and went to Congress for relief. The paymaster had neglected to bring a suit for relief in. this court under the Disbursing officers’ Act (Rev. Stat., 1059, 1062), and thedecision of this court in Hall’s Case (9 id., 270) was anauthority for supposing that the officer and his sureties were too late to bring’ such, a suit after judgment and satisfaction against them. Congress therefore passed an act for their relief. But this act did not, as in Erwin’s case, refer the jurisdiction, to the general statute, but, on the contrary, prescribed conditions of its own resembling yet not identical with those of the Disbursing officers’ Act. This court held that it conferred ampler discretion than the general statute, and by its terms enlarged the ordinary rules of evidence.

In the Caldera Cases (15 C. Cls. R., 546) the claimants’ demands had been adjudged by a special tribunal and the relief awarded them had been accepted. The statute conferring jurisdiction upon this court did not designate the claimants by name nor profess to reopen the awards. It, however, provided that “ any person” “making any claim upon the balance of the fund usually designated as the Chinese Indemnity fund” “for loss sustained by the plunder and destruction in the year 1854 of the bark Caldera may commence proceedings,” &c., and that the court “shall have full jurisdiction to hear and determine such claim or demand according to the principles of justice and international law.” Of this statute the court said:

“ These comprehensive terms, taken in connection with the fact that it was well known to Congress when they passed the act that all claims now sued on had been before the board, and that 40 per cent, of them had been allowed and paid, and 60 per cent, disallowed, lead us to the conclusion that it was the intention of Congress to grant these claimants a rehearing before this court as to the disallowed 60 per cent.; for otherwise the act refers nothing whatever to us.”

The difference between these cases and that of Haskell {supra) did not lie in the form of the two statutes (for, so far as form went, the Haskell case was the stronger of the two), but in the extrinsic circumstance that Congress when enacting the Caldera statute must have known that a former award had been made by a board having jurisdiction, and that the claimants who accepted it were substantially the only parties who held claims upon the fund.

While the purpose of some of these acts of reference may be merely to confer jurisdiction, as in Meade’s Case (2 C. Cls. R., 225), or to ratify a previous transaction and validate an exist-lug cause of action, as in Roberts's Case (92 U. S. R.), or to waive a technical defect, as in Cross's Case (14 Wall. R., 479), or to take a case out of a statutory limitation of time, as in Erwin’s Case (13 C. Cls. R., 49; 97 U. S. R., 392), and while a purpose is to be ascribed to a statute if possible, as was held in the Caldera Cases (15 C. Cls. B., 546), nevertheless these special acts are not to be construed to repeal by implication a general and public act, nor to take the case referred by the one out of the restrictions imposed by the other. Thus, in TiUson's Case (100 U. S. B., 43), the claimants had been financially ruined by the delay of the accounting officers in passing and paying their accounts. Congress passed an act for their relief, referring to this court the claim “ growing out of the failure of the government to keep and perform the contract or contracts as to time and manner of payment,” and directing this court to “adjudge the amount equitably due said firm, if any, for such loss and damage.” The only damage which could be awarded for this delay, upon legal principles, was interest, and the Supreme Court intimated that as between ordinary litigants interest would have been recoverable, but that the special act did not by implication take the case out of the operation of the general statute which provides “that no interest shall be allowed on any claim,” “unless upon a contract expressly stipulating for interest.” (Bev. Stat., § 1091.)

Finally, it is to be observed that the words “ to adjudge the claim according to the principles of equity and justice,” or some such equivalent words, are to be found in almost all acts of reference, whether to this court, or, in times past, to special tribunals or boards of arbitration, yet they have never been held to invest the judges of a court with an unlimited personal discretion, nor even to confer upon the tribunal an equity jurisdiction. So long as a tribunal remains a court it must proceed, if a court of law, according to the rules of law; and if a court of equity, according to the principles of equity j nrisdiction. As was said by the Supreme Court in Tillson’s case (supra):

“ The reference is made to the court as a court, and not to the judges as arbitrators. The determination is to be made according to the fixed rules which govern that court in the adjudication of causes, and not at the discretion of the judges. The same principles of jurisprudence, and the same statutory regulations as to practice are to be applied here that would be if the case had come into the court under its general jurisdiction. * * * To our minds the word ‘equitably’as here used [in the statute] means no more than that the rules of law applicable to the case shall be construed liberally in favor of the claimants.”

Speaking for myself and not for the court, I deduce from the foregoing cases for my own guidance the following rules of construction :

1. Where Congress refer a claim, or class of claims, with instructions to the court to render judgment for whatever may be found to be justly and equitably due to the claimant (or some such equivalent expression), full effect should be given to the remedial purpose of the statute, but at the same time the court should be vigilant to see that it is not applied to matters whereof Congress might have been ignorant when it was passed, or made to work results which probably were beyond the legislative purpose of its framers.

2. Where a claimant could not have maintained an action in this court, either for want of jurisdiction or because his demand was barred by lapse of time, the purpose of Congress in passing an act of reference ordinarily must be deemed to have been to confer jurisdiction or to take the case out of the statute of limitations, and not to validate or affect the cause of action.

3. Where it is plain that a claimant performed a meritorious service, whereby the government reaped a benefit, for which in equity and good conscience it should respond; or where he rendered work and service at the solicitation of the agents of the government, but without due authority on their part; or where he rendered service to the government without the solicitation of its agents, but subject to the approval of Congress, and no other rational purpose can be ascribed to Congress in passing the act, it must be inferred that the legislative purpose was to ratify the transaction so far as to enable the claimant to recover for services rendered in quantum meruit, or for goods furnished in quantum valebant.

4. But a special act of reference will not take a case out of the operation of a general statute without express words to that effect, or by necessary implication; neither will a general direction in the act that a claim be adjudicated upon principles of equity and justice (or other equivalent phrase) be held to confer equity jurisdiction, or to authorize the judges to award damages in their discretion.

But the majority of the court limit the expression of their' opinion concerning the construction of these referring acts to. the following conclusion, viz: that in each case the court will, from the language of the act, and from the nature of the case,, and from the surrounding circumstances, endeavor to ascertain, and carry out the legislative intent.

Seeking for the legislative intent in the present case, we find that tne purpose of the act could not have been to confer jurisdiction, for this is a case coming within the general jurisdiction of the court. It could not have been to take the case out of the statute of limitations, for the statute does not yet bar the demand. We also find that the defect in the claimants’ case— the want of authority in the superintendent who required the better kind of masonry to be built — was apparent on the face-of the contract, which reserved to the chief quartermaster of the department all authority to order alterations, and which limited the duties of the superintendent to inspecting the work and rejecting material. We also find that these provisions of' the contract were quoted and clearly brought to the attention of Congress-in the report of the committee on which the claim was considered, and that all of the material facts since substantiated by evidence were set forth in that report! (See Report 162, Committee on Military Affairs, Senate, second session Forty-sixth Congress.) Taking this private act in connection with these primary facts, and interpreting it in connection with the previous decision of the Supreme Oourt in Hawkins’s Case, and the subsequent relief given by the same Congress to that claimant, we are satisfied that the purpose of Congress was that the act referring the claim should also operate upon the cause of' action, and that the claimants’ case comes within the decision of the Supreme Court in the case of Roberts (supra).

Assuming, then, that this statute was intended as something more than a mere act of reference, the question arises, in what manner and to what extent does it operate upon or affect the cause of action ?

The claimants’ counsel contended on the trial that the authority given to the court to adjudicate the claim according-to law and justice” entirely relieved the court from the restrictions of the ordinary rules of law; that it is “ a broader jurisdiction than that entertained by courts of law or equity,” and that the court has acquired power by the simple introduction ■of tlie word “justice” in the not “to adjudicate the cause upon principles of absolute justice, whether such principles have or have not been incorporated into our systems of law and equity jurisprudence.” But the decision of the Supreme Court in Tillson’s Case (supra) is adverse to the proposition, and it is manifest that, if the claimants cannot recover upon ordinary legal principles, their case is beyond the remedial purpose of Congress, and must fail.

The principle which should govern such a case as the claimants’, or the effect which should be given to such a statute as has been passed for their relief, we apprehend is not that of' •absolute discretion on the part of the judges, nor a gratuitous making a contractor whole irrespective of his legal rights or the defendanst’ legal liabilities, but is simply this:

When a man accepts the services of another, or receives his goods, he is ordinarily in equity and good conscience bound to pay for them, and the law imports from the transaction an implied contract, and upon principles of equity and justice awards to the plaintiff compensation for his services hi quantum meruit, and for his goods in quantum valebant. If, however, it appear that the work was done under an express contract, the law ■excludes evidence as to its value, and does not stop to inquire whether it was done at a profit or loss, but limits the damages to the price fixed by agreement of the parties. If, notwithstanding that there was an express contract between the parties, it appears (say, in the case of a building contract like the present) that the owner subsequently requested the contractor to perform another and more costly kind of work than that specified in the contract, the law applies the contract so far as it is appli- ■ cable to the case, but for the extra work or increased cost awards to the contractor such compensation as it was fairly worth. But if, notwithstanding the benefit thus conferred upon the owner, it appear that departure from the contract was the unauthorized act of his agent, and that the extra work was ■done with neither his authority nor his sanction, no legal obligation will arise out of the transaction, and it will rest entirely with the conscience of the owner whether to ratify the unauthorized act of his agent, or to leave the contractor without recompense for the benefit received. In such a case it might happen — it indeed often does happen — that a conscientious owner, unwilling to do wrong to his builder, and being ignorant as to wlmt bis moral obligation in the premises may be, refers to some friendly arbitrament the questions, whether there was a departure from the contract, whether it was ordered by his architect, and what the value of the additional work thus done may be. In precisely the same manner Congress, being in the stead of owners and defendants, have purposed here to give relief to these builders, and to chat extent have ratified or assumed the unauthorized act of their agents, and submitted the question of liability and damages to the legal determination of this court. To that extent, therefore, we understand the statute as authorizing the court to do “justice” to the claimants, and within those limitations we proceed to adjudicate the case according to law.

Applying these principles to the specific causes of action set forth in the findings of fact, we reach the following final conclusions of law:

1. As to the cause of action set forth in Findings I and VI, and the demand based thereon that the contract be reformed by inserting the omitted provision of the claimants’ proposals (which was inserted in the abandoned contract) relative to the depth of the foundations, and that the court render judgment for the damages which the claimants would be entitled to recover if that provision had been inserted in the final contract, viz: $2,000.17, we agree with the committee of the Senate (supra) in thinking that the claim was meritorious, but are of the opinion that the statute which referred the claim confers upon the. court no equity jurisdiction, and, therefore, that we are unable to decree relief. Haskell’s Case (9 C. Cls. R., 410); Harvey & Idvesey’s Case (12 id., 141).

2. As to the cause of action amounting to $4,375, set- forth in. Finding VIII, for losses and expenses thrown upon the claimants by the defendants changing the site of the proposed building, we are of the opinion that, having been incurred before the contract was approved by the Quartermaster-General, as was. required by its own terms, they were incurred at the risk of the contractors. Moreover, we are of the opinion that the claimants’ subsequent acceptance and execution of the second contract was a voluntary substitution of the one for the other, and a. relinquishment of any damages which might have been caused to them under the first.

3. As to the cause of action amounting to'$>l,000, for a superior quality of sand, as set forth in Finding IX, we are of the ■opinion that the sale, according to the terms of the contract, was not a sale by sample, but subject to inspection and rejection by the superintendent. Evidence to show what transpired prior to the execution of the written agreement is clearly ■evidence to vary its terms, and inadmissible.

4. As to the cause of action amounting to $1,500, set forth in Finding X, for Louisiana lumber, the contract required an article which should be “ free from knots and defects of all kinds,” and it, like all the other material for the building, was to be subject to the inspection and rejection of the superintendent. Nothing was said in the contract about either Texan or Louisiana lumber, and neither was required by the superintendent. He merely required lumber to be furnished which, in his judgment, complied with the terms of the contract; and the claimants’ inability to furnish Texan lumber of that quality was their misfortune. In our opinion the action of the superintendent imposed no liability on the defendants.

5. As to thecause of action for building walls of ranged rubble or broken ashlar masonry, set forth in Finding XI, the defendants reaped a positive benefit from the act of their superintendent in requiring that kind of work to be done, and in our opinion the claimants should recover its reasonable value; that is to say, the additional cost of the same, which is fixed by the findings at $12,606.

6. As to the cause of action amounting to $277, for an improvement in the cornice, set forth in Finding XII, the work was voluntary; the superintendent did not require it; the alteration was permitted at the claimants’ request, and the permission was made expressly subject to the approval and ratification of the Quartermaster-General. The benefit, if any, was a mere matter of taste, which one person might admire and ■another disapprove of. The Quartermaster-General, who stood in the place of the owners, selected that portion which he regarded as beneficial, and paid for it. As to the remainder, the court cannot say that the defendants have either received a benefit or incurred a liability.

The judgment of the court is that the claimants recover of •the defendants the sum of $12,606.  