
    STOW’S CASE. Louis Stow, appellant, v. The United States, appellees.
    (5 Court of Claims R., p. 362; 18 Wall. R., p. —.)
    
      On the claimant’s Appeal.
    
    
      The claimamt agrees in Ms own name with defendants to sell them earn, and is alone known to the Quartermaster Department; hut one W. furnishes the corn and receives the money, allowing to the claimant a commission for his services and the use of his name. The balance due being in dispute, the claimant gives to W., at his reguest, a power of attorney in blank to collect the balance, with authority to release and receipt for it. The power does not fulfill the requirements of the Act 26th February, 1853, (10 Stat. L., p. 170.) W. fills the blank with the name■ of an attorney of the court below, and directs him to bring an action in the claimant’s name. The petition avers that the suit is “ for tie use and benefit ” of W., and recites that he furnished the corn in the claimant’s name. .After suit is brought the claimant asserts “ a partial interest in the claim,” but never disclaims the suit, alloioing it to proceed and assisting in its prosecxttion. Before judgment and during vacation it is settled 
      
      by the defendants giving a credit on apre-existing indebtedness of the Banlc of the Metropolis, and by the banlc giving a similar credit to W. The attorney of record indorses the Treasury draft drawn in settlement, but no stipnlationto discontinue the suit is given. At the next term the claimant procures an order to amend the petition “ so far as relates to one W. and his alie gedinterest therein, and to ' eonforih to the facts as they now stand.” He then brings the case to trial, and insists on his right to recoven- in his own behalf notwithstanding the settlement. The cotirt below decides that the claimant is estopped from alleging his own adverse interest against the settlement, and that in talcing the suit on Ms own . behalf he tools it cum onere, and subject to all the former acts and stipulations of the attorney. Judgment for the defendants. The claimant appeals.
    
    I. Where a suit is brought in the name of S. "for the use and benefit” of W., and S. suffers the suit to. proceed, and eo-operatss with the attorney of W., who is the attorney of record in its prosecution, he cannot, after the suit has been settled by W., be allowed to say that the statements contained in the petition are not true, nor be allowed after settlement to take a new position, viz, that he is himself the party in interest, because a partial interest which he held was left unprotected by the settlement,
    II. Where one allows a suit to be brought in his own name "for the use and benefit” of another, if he afterward amends the petition and avers that he is himself the party in interest, he thereby recognizes the authority of the attorney to institute the suit, and takes it for his own benefit, subject to any previous settlement of the cause of action which may have been made by the attorney.
    III. Where a court allows an amendment of a petition to be made by striking out an averment that the suit is prosecuted “for the use and benefit ” of another, and to allege that it is prosecuted for the use and benefit of the nominal party, the amendment cannot affect the rights of the defendants acquired while the suit as originally framed was pending.
    
      The Reporters’ statement of the ease:
    Tlie following are the findings of the Court of Claims:
    1. In October, 1863, the officers of the Quartermaster Department, refusing to deal with one A. M. White, the claimant, in his own name, offered to furnish the grain mentioned in the petition, and his proposal was accepted. The claimant alone was known to the officers of the Quartermaster Department, and all vouchers and drafts, under his agreement, were issued to him; but White purchased the grain and received the purchase-money, except in the instance hereinafter stated, allowing to the claimant a commission for his services and the use of his name.
    2. The defendants having neglected to pay a portion of the money due under the agreement, the claimant, on the 14th January, 1864, at the request of White, executed a power of attorney iu blank, authorizing the blank attorney, “for me and in my name, to collect and receive any and all moneys due and coming due to me” under the said agreement, “and to make, execute, and deliver, to any officer or person authorized by the Government to pay said moneys, a good and sufficient release, acquittal, or receipt for the same, or any part that may be paid to my said attorneys, and generally to do any and all things necessary in the premises.” This power was not executed before two witnesses, but was acknowledged before and witnessed by a notary public. Subsequently to the giving of the power of attorney, the defendants paid to the claimant, on account of moneys due under the agreement, $154,856.03, which amount was paid over by the claimant to White. But, the defendants refusing to pay the balance due, as set forth in the petition, White inserted in the power of attorney the names of “Theodore M. Davis, of New York City, and Thomas J. D. Fuller, of Washington, D. 0.,” as attorneys in fact of the National Bank of the Metropolis, of Washington, D. O.,” and he instructed Mr. Fuller, who was an attorney of the court, to bring an action against the defendants. Mr. Fuller had no authority from the claimant to bring the suit other than the power of attorney, but brought this action against the defendants in the name of the claimant, for the use of White, by the filing of the original petition herein. Subsequently, the claimant, with knowledge of the facts, suffered the suit so brought to proceed, and cooperated with White in the prosecution thereof.
    3. While the action was still pending, and before the trial thereof, viz, on or about the 7th September, 1868, a settlement or compromise of the cause of action was effected by White and the defendants, in the manner following: The National Bank of the Metropolis being indebted to the defendants, and White being indebted to the bank, a war-warrant was drawn, on the 7th September, 1868, by the defendants’ officers, on the Treasurer of the United States, for the balance of the claimant’s account set forth in the petition, payable to “Louis Stow, present, or order.” This warrant was indorsed “ Louis Stow,” by Fuller and Davis, his attorneys, under the power before mentioned, and made payable to the order of the National Bank of the Metropolis. It was next indorsed by the National Bank of the Metropolis to the order.of the Treasurer of the United States. On the 9th September, a draft was drawn by the Treasurer in favor of “F. E. Spinner, Treasurer United States, assignee,” for the amount of the war-warrant. The defendants then credited this amount to the bank, and charged it to the claimant, and the bank at the same time credited it to White. But the defendants’ law-officers, having charge of the defense of the action, were never informed of the settlement, and the suit was not formally discontinued of dismissed. The claimant, Stow, was not a party to the arrangement with the bank, but he allowed it to proceed without notifying the defendants of his alleged interest or of his objection to the settlement. Pending the settlement, he asserted to Mr. Fuller that he had an interest to the amount of several thousand dollars in the claim, and endeavored to obtain the requisition himself; but this notification and proceeding were entirely between himself and White and between himself and the defendants.
    
      Mr. Reverdy Johnson, with whom was Mr. James H. Embry, for the claimant, appellant.
    
      Mr. Solicitor-General Phillips for the United States, appellees.
   Mr. Justice Davis

delivered the opinion of the court:

The case, as found by the Court of Claims, discloses the following state of facts: In October, 1863, the Quartermaster Department entered into a written contract with Stow to deliver mixed grain at certain agreed prices. The contract was fulfilled, and a balance found due upon it. The defendants having neglected to pay a portion of this balance, Stow, at the request of one White, the real party in interest, executed a blank power of attorney, with the usual directions to do what was necessary to collect the money from the Government, and delivered it to White. White, on the continued refusal to pay, filled the blank in the power with the names of two attorneys, and instructed one of them to bring an action against the United States. This was done, and the suit was instituted in the name of Stow to the use of White, with a declaration in the petition that White furnished the grain delivered to the United States in the name of petitioner.

Stow did not communicate with Fuller, tbe attorney of record, until after tbe suit was brought, nor did he authorize its institution, unless such authority was conferred by the powér of attorney. Subsequently, with knowledge of the facts, he suffered the suit to proceed, and co-operated with White in its prosecution.

While the action was still pending, a settlement was effected between White and the, defendants. Stow was not a party to this settlement, but he allowed it to proceed without objection or disclosure of any adverse interest.

The suit was not formally discontinued, because the law-officers of the Government were not advised of the proceeding which resulted in the settlement. Stow afterward, by leave of the court, filed an amended petition, denying White’s authority to settle, and seeking to obtain from the Government a re-payment of the money already paid for White’s benefit.

The Court of Claims, on hearing the case, dismissed it, on the ground of the conclusiveness of the settlement with White, and we think correctly. Stow, by his own action, is estopped from disputing the validity of this settlement. If it be conceded that the power of attorney was not an effective instrument tor any purpose, (10 Stat. L., p. 170,) because not executed in conformity with law, the concession cannot operate to the advantage of Stow, because he acted in such a way, after the suit was brought, as to preclude him from assuming the position he took in his amended petition. This action has induced the accounting officers of the Government to treat White as the only party in interest, and if loss is suffered on this account, it should not be borne by the defendants. Stow, in suffering the suit to proceed, and co-operating with White’s attorney in the prosecution, cannot be heard to say that the statements contained in the petition are not true. It would be wrong to allow him to stand by and see the suit settled on the basis of the truth of those statements, and then to turn around and take a new position, because the partial interest which he held in the claim was left unprotected by the settlement. If there be cause of complaint against any one for the failure to protect this interest, it is not against the defendants, whose officers conducted and completed the negotiation, on the faith that White, as declared in the petition, was the real owner of the claim, and that the suit was prosecuted for his benefit. In assisting to carry on this suit, Stow adopted the proceeding on which it was based, and in effect notified the defendants that they could safely settle the cause of action with the attorney of record. Besides, in taking-charge of it after the settlement, and asking leave to amend the petition, he recognized the authority of the counsel who instituted it, and it is very clear that the amendment which he was permitted to file could not affect rights acquired while the suit, as originally framed, was pending.

Judgment affirmed.  