
    THE CARMICK AND RAMSEY CASE. Edward H. Carmick and A. C. Ramsey v. The United States.
    
      On Demurrer.
    
    
      The Postmaster General contracts with the claimants to carry the mails from Vera Cruz to San Francisco. * There is an express proviso that the contract “ is to have no force or validity until it shall have the sanction of Congress ” by 11 an appropriation to camp it into effectThe claimants prepare to perform, but Congress, by reason of the false representaZions of a subsequent Postmaster General, refuse to sanction the contract. Subsequently Congress direct ike First Comptroller of the Treasumj Hto adjust the damages due” to the claimants, and 11 to adjudge and award to them, according to the principles of law, equity, and justice, the amount so found date,” and at the same time direct the Secretamj of thQ Treasury to pay the same. — (Act 18í/¿ August, 1856. 11 Stat. L., p. 95.) The Second Comptroller makes an award which the claimants accept and receive.
    
    I. When a contract provides that “ it is to have no force or validity” until sanctioned by Congress, a report by the Postmaster General falsely representing that the claimants are not prepared to perform on their part, and the consequent refusal of Congress to sanction the contract, do not constitute a breach, nor entitle the claimant to recover for damages suffered in preparing to perform.
    II. The submission of a claim by Congress to an officer of the Treasury Department, with instructions to “adjudge and award” “according to the principles of law, equity, and justice,” constitutes an arbitrament, and the acceptance of the award by the claimants is conclusive evidence of their assent, and a waiver of any irregularity in the proceeding.
    A claim for unliquidated damages is not a subject for settlement before the accounting officers. The cases of Gordon, 1 C. Cl’s K., p. 1; Gilbert, id., p. 108; and Kellogg, id.,p. 310 reviewed and affirmed.
    Mr. Thomas Wilson, and Mr. C. F. Peck, for the claimants :
    •I. This contract was made in March, 1853. It was for the transportation of the mails. The parties to it were these plaintiffs, in their’ own behalf, and the Postmaster General on behalf of the United States. He had charge of that particular department, and by law (see acts March 3, 1845, and March 3, 1851) he had specific authority to make absolute contracts.. He made this contract subject only to the contingency of Congress making an appropriation to carry it into effect. Whatever may be the wording, this contingency is implied in every contract made with the government. Without this subsequent ratification by Congress no contract for transporting the mails could be carried into effect. By implication every contract has this contingency inserted in it, and therein there is no difference between this and every other contract for carrying mails.
    In every contract the Postmaster General binds himself to represent the matter readily and as fairly to Congress as he has to the contractor, and ask the approbation of Congress by an appropriation to carry it into effect.
    It may be laid down as a general rule, that if a deed contain a grant on condition, if there be a breach of the condition the grant is void and the estate not vested; but if the grantor, by Ms own act, defeat the condition, then the grantee may have his action in damages as for a breach of the whole contract.
    “ When the performance of the condition becomes impossible by the act of the party who imposed it, the estate is rendered absolute.” Bouvier’s Law Die. Tit. Condition, p. 263.
    
      “ But if the condition of a bond, &c., is possible at the making, but before it can be performed becomes impossible by the act of God, of the law, or of the obligee, the obligation is saved.” Bac. Abr. Tit. Conditions, N., p. 306. Coke on Littleton, 206, a.
    “ When a grant is made on condition subsequent, and it becomes impossible by act of the grantor, such condition is void.” United States v. Arredondo et als., 6 Peters, 745.
    The same if it occur by the failure or neglect of the obligee. Whitney v. Spencer, 4 Cowen, 39.
    See also Sedgwick on Damages, 2d ed., chap. 10, p. 280-’3. Bement v. Smith, 15 Wend., 493. Cort v. Ambergate, 17 Ad. & Ellis U. S., 144. Clark v. Marsiglia, 1 Denio, 317.
    He will not be entitled to the whole amount agreed to be paid under the contract, but only such damages as have accrued to him from the breach. Chambers v. McAllister, 6 Dana, 357. Derby v. Johnson, 21 Vermont, 17.
    But in estimating these damages he will be allowed the gain or'profit he would have made if he had been permitted to complete the contract. Phil, Wil. Sf Balt. R. R. v. Hovjard, 13 How., 330.
    II. As soon as Congress should make the appropriation, the plaintiffs were bound to commence carrying the mails; and forfeitures and fines against them and their sureties were provided, in case of their failure to carry the mail the full and requisite number of trips, or at the re-, quired rate of speed. Their compensation commenced at that time, and they must be ready to commence the service at that time.
    Coaches, wagons, and harness must be made in the States and taken to Mexico by steamer. The service, from Acapulco to San Francisco, required transportation by steamer. The building in the United States, and their trip round Cape Horn to the place of service, could not have been done prior to the time when the Postmaster General set his final seal of condemnation upon the contract, in his annual report to Congress, December 1, 18-53.
    It is on account of these expenditures, and the damages resulting from the abrogation of the contract, that this suit is brought. It is not to recover any portion of the $424,000 per annum.
    That these expenses, or the most of them, were required to be made in advance of the passage of an appropriation by Congress, there can be no doubt. The contractors must have been ready, on their part, to carry their contract into effect. That they might be ready, involved these expenses.
    On the 15th of June, 1853, only three months after the execution of the contract, the department was informed that the coaches, wagons, and literas would be in Mexico in the months of June and July; that 1,000 horses and mules would be there by August 10.
    The preparation had to be made before the mail could be carried, and before the compensa'.ion commenced. Would Congress ever have voted this appropriation, if the contractors had stood by idly waiting an appropriation before they commenced work ?
    The Postmaster General recognized the necessity and propriety of the advanced expenditures and the correctness of the position taken by these plaintiffs when he reports to Congress, December 1, 1853, and January 31, 1855, that they were unable or not ready to carry, their contract into effect.
    These plaintiffs contend that they had a legal right, and were required by their contract, under a fair and legitimate construction of its terms, to make these advanced expenditures; and now, should it be determined that they were not entitled to damages for the abrogation of the contract, and to payment of the amount which they might have* made as profit out of the contract bad it been fully executed, they contend tbat tbey are entitled at least to a repayment of these expenses, so made as aforesaid.
    If the contract be separable, and some portion can be performed independent of a breach of the condition, tbat portion may be performed and a breach of the condition will not vitiate it. If, according to the “ reason and sense of the thing,” the condition was not intended to apply to a certain portion of the contract, or that a certain portion was intended to be performed independent of the breach of the condition, then that portion may be performed and an action will lie fora recovery upon the performance of the portion so exempted. 2 Parsons on Contracts, 39. Maholm v. Hays, 2 M. & Gr., 266. Ritchie v. Atkinson, 10 East., 295. Boone, v. Eyre, 1 H. BL, 273, N., (a.)
    III. The questions of whether there was a valid and subsisting contract between the United States and these plaintiffs, whether the same was abrogated by the act of the Postmaster General, and whether these plaintiffs were entitled to damages for such abrogation have been definitely settled by legislation.
    Congress enacted, August 18,1856, that the First Comptroller of the Treasury he, and he is hereby, required to adjust the damages due to Edward H. Carmick and Albert C. Ramsey on account of the abrogation by the Postmaster General of the contract to carry the mail, &e., &c.
    IV. The reference by Congress of this claim to the First Comptroller, was not final or conclusive, nor was the award made in consequence thereof. It was not a judicial decision. Cons. U. S., sec. 1, art. 3. Ex parte. Randolph; Broekenbrough, 447.
    Nor can this reference be considered an arbitration. The amended petition shows that Congress still retained and exercised control over the claim, and could revoke or transfer the reference made by the act of August 18, 1856.
    It is a principle well settled, that in order to make a legal submission to arbitration, the covenants and promises to abide the award must be mutual; and it was for this want of mutuality that this court decided against the claimant in the case of Gordon, 1 C. Cls., R., p. 1.
    We urge that the submission in this case was not for arbitration, and that the rule applied in Gordon’s ease is applicable in this.
    The act referring this matter to the Comptroller was passed August 18, 1856, and its provisions were in the same general terms as that enacted in Gordon’s case. By the act and the report made by Mr. Durkee, page 128, Ex. Doc. No. 30, second session thirty-fifth Corn
    
      gress, yol. 5, 1858-’9, Congress decided that the Postmaster General had abrogated -the contract, and that these plaintiffs were entitled to damages therefor.
    Let us now examine the subsequent legislation of Congress.
    In the winter of 1857-8, the Comptroller suspended action in the examination of the claim, because the Postmaster General had, in his report to the third session of the thirty-fourth Congress, argued the matter elaborately and asked for a repeal of the act of August 18, 1856. (See page 50, Ex. Doc.30, second session thirty-fifth Congress, . vol. 5, 1858-9.) Congress having adjourned without repealing ihe act, in April, 1857, the Comptroller took up the case and decided that damages were due to Carmick and Ramsey, but fixed no amount. He resigned May 1, 1857, and Governor Medill was appointed, who at first refused to make any further examination, acting under the opinion of the Attorney General, April 7, 1857, page 26, same document. Congress being appealed to, to compel action on the part of the Comptroller, on June 11, 1858, the Committee on the Judiciary reported, through Mr. Billinghurst, that the law was already upon the statute-books, and there was nothing to do but to. carry it out.
    The Comptroller then proceeded to examine the claim, and on the 11th of August, 1858, he decided “ that I find nothing due from the United States to Messrs. Carmick and Ramsey under the contract aforesaid.” Page 26, same document.
    Here was one decision of the Comptroller, and if this was a submission to arbitration or the judgment of a judicial officer, why was it not held to be final, and why is it not just as final as the decision of Comptroller Taylor, which gave to these claimants the sum of $43,000 %
    
    Congress, dissatisfied with the action of the Comptroller, on the 23d of December, 1858, passed a resolution requesting the President to report if “said section 6th of said law, August 18, 1856, yet remains unexecuted, and if so, that he report the reasons therefor.”
    In answer to this, the President, January 7, 1859, presented Ex. Doc. No. 30, to the thirty-fifth Congress, second session, House of Representatives, and which is to be found in vol. 5 for that year.
    A select committee was appointed in the Senate, consisting of five senators, to inquire if the 6th section of the act of August 18, 1856, had been executed by the Comptroller, and whether any further legislation was necessary to carry into effect said act, and report by bill or otherwise.
    On the 12th of June, 1860, Mr. Green made a report, No. 270, thirty-sixth Congress, first session, and recommended that the power given and duty devolving- on the Comptroller by the act of August 18, 1856, be transferred to and performed by the Register of the Treasury and Commissioner of Patents.
    Before action was taken upon this, Governor Medill went out of office, and Mr. Whittlesey was re-appointed, and he looking over the action of Congress, decided that it was the intention of Congress not to consider the decision of Governor Medill as final and conclusive, and so took up the ease, disregarding the decision of Governor Medill, received testimony, and, as he told his son, was ready to enter his decision, giving the claimants the sum of #185,000, when he suddenly died, not having entered the same of record.
    The duty then devolved on Mr. Taylor, the present incumbent, who of necessity required a re-hearing, and after much vexatious delay and the surmounting of every possible obstacle thrown in the way of a fair trial by the Post Office Department, who employed an eminent attorney to defeat the claim, it was argued and finally submitted on the 15th of December, 1863. On the 16th of December, a resolution was introduced in the House by a gentleman lately connected with the Post Office Department, revoking the authority of the Comptroller, annulling his action and transferring the cause to the Court of Claims for trial. This passed the House, and in the Senate was amended, but the amendment failed in the House. The Comptroller, again recognizing the power in Congress to control his action as a mere ministerial officer, again suspended action until the adjournment of Congress without the passage of the resolution, and on the 9th of November, 1864, he made the award as set forth in the petition. It was sent to the Auditor, approved and an account stated, the statement approved by the Comptroller in his official character, a warrant drawn in favor of Car-mick and Ramsey, which, after many frivolous and vexatious technicalities interposed by the attorney for the Post Office Department as to who should sign the draft, and by writs of injunction, was all at last overruled by the Comptroller. Mr. Carmick was permitted to indorse the draft thus, “ Carmick and Ramsey,” and on the 7th of January, 1865, he drew the #43,830 04 given him by the Comptroller.
    The plaintiffs spent two years and #10,000 in obtaining the grant from the Mexican government and the contract from the United States. They spent nine months and #113,000 in establishing the route through Mexico ; and they spent nearly twelve years in obtaining the damages which were to make them whole, and which, when obtained, amounted to but $43,830 04.
    
      They were two years ia getting a law to adjust the damages, and were eight years getting the damages adjusted.
    The Roman book of laws was prefaced with these words: “Justice is the unchanging, everlasting will to give each man his right.” If this saying be true, then can these plaintiffs truly say they have not had justice done unto them.
    'The Assistant Solioit@R, for the defendants:
    1st. The contract, by its own terms, was not to become operative until sanctioned by Congress. That it never received the sanction of Congress, “ by the passage of an appropriation to carry it into effect,” the petition admits. The claimants elected to take the risk of an appropriation by Congress. If the appropriation should not be made, then no contract with the government resulted from the action of the Postmaster General.
    2d. The claimants insist that the passage by Congress of the act authorizing the First Comptroller to settle any claims against the government which might have arisen in their favor from the failure of the Postmaster General to report their contract to Congress, was a recognition by that branch of the government of the validity of their contract. The act upon which the claimants rely does not go to this extent; it merely recognizes the equitable right of the claimants to have some return for moneys expended on behalf of the government in anticipation of the consummation of a contract which they might reasonably have expected would become binding upon the government by the passage of the act by Congress necessary to give it validity. 'This act of Congress has no other significance than this ; it was in no. sense a ratification of this contract or a recognition of its validity.
    3d. The settlement of this claim by the First Comptroller was final and conclusive, and this court has no power to review the decision of that officer.
   Casey, C. J.,

delivered the opinion of the court:

On the 15th of February, 1853, the claimants entere,d into a contract with the Postmaster General of the United States to carry the mails from Vera Cruz, in Mexico, via Acapulco, to San Francisco, in thirteen days each way, at the sum of four hundred and twenty-four thousand dollars per annum. The contract contained the following clause:

•“ And it is hereby expressly understood that this contract is to have no foree or validity until it shall have the sanction of the Congress of the United States by the passage of an appropriation to carry it into effect.”

In the clause of the contract fixing- the compensation to he paid for the service, it says : for and during the term commencing from the time Congress shall ratify this contract, and ending four years from that date.”

This agreement was entered into with these claimants by Postmaster General Hubbard, in the last days of President Fillmore's administration, and just before the incoming of President Pierce. He was succeeded in the Post Office Department by Judge Campbell. This latter officer was of a different opinion from his predecessor, in regard to this service, and especially of this contract; and early in July, 1853, notified the claimants of his opposition to an appropriation being made for carrying it into effect.

At the meeting of Congress, in December, 1853, the Postmaster General advised against the ratification of this contract, and against the making of any appropriation to carry it into effect. In consequence of this recommendation of the Postmaster General, Congress took no action whatever in the matter. The claimants allege that it was the duty of the Postmaster General to have made a favorable report, and a recommendation that an appropriation should be made. They then aver “ that the Postmaster General did not truly and faithfully represent unto Congress the action of the department and of your petitioners, but that he did falsely and erroneously represent unto Congress that your petitioners had abandoned their contract and were not prepared to carry the same into effect, and recommended that no appropriation be made therefor ; that in consequence of which false representation and recommendation, the said contract, so made as aforesaid, was, by the Postmaster General, abrogated, set aside, and held for naught, by reason of which your petitioners were damaged to a large amount, to-wit: the sum of two hundred thousand dollars, and the United States becomes indebted to them in the said sum of two hundred thousand dollars, ($300,000.)”

They also aver:

“ Your petitioners further state that upon the signing, sealing, and delivery of said contract, they immediately proceeded to carry the same into effect; that they purchased a large number of horses and mules, coaches and mail wagons, employed the necessary carriers, drivers, &c., and incurred divers and sundry expenses, amounting to the sum of one hundred and twenty-two thousand three hundred and twenty-two dollars, ($122,322,) all of which was made and done for the purpose of carrying into effect the said contract so made as aforesaid.”

On the 18th day of August, A. D. 1856, Congress passed an act containing the following provision for the adjustment of the claim of Carmick and Ramsey, to wit:

“ Sec. 6. And be it further enacted, That the First Comptroller of the Treasury he, and he is hereby, required to adjust the damages due to Edward H. Carmick and Albert C. Ramsey, on account of the abrogation by the Postmaster General of their contract on the Vera Cruz, Acapulco and San Francisco route, dated the fifteenth of February, eighteen hundred and fifty-three; to adjudge and award to them, according to the principles of law, equity, and justice, the amount so found due; and the Secretary of the Treasury is hereby required to pay the same to the said Carmick and Ramsey out of any money in the treasury not otherwise appropriated.” — (11 Stat. at Large, p. 95.)

“ The case was first before Hon. Elisha Whittlesey, who was at that time First Comptroller. He resigned without having acted finally on the matter. His successor, Comptroller Medill, decided that nothing was due under the contract. Mr. Whittlesey again came into the office of Comptroller, and the matter being moved before him, was under his consideration when he died, without having rendered any final decision in the case. His successor, Mr. Taylor, took up the case, and on the 9th of November, 1864, rendered the following decision : “ I adjudge aud award to Edward H. Carmick and Albert C. Ramsey, under the authority of the 6th section of the act of August 18, 1856, the above-named sum of forty-three thousand eight hundred and thirty dollars and four cents, ($43,830 04.) ”

This amount was afterwards paid to and received by the claimants, and this suit is to recover the balance of the two hundred thousand dollars, the damages they allege they have sustained by the breach of the contract.

To the petition, the solicitor for the United States has filed a general demurrer, alleging that the matters set forth therein are not sufficient in law to entitle them to recover.

On the hearing of the demurrer, the solicitor contended—

1st. That Congress having failed to ratify the contract, it never had any “ force and validity,” and there could be no damages for the breach of a contract which was never obligatory on either party.

2d. That the claimants are barred by the act of the 18th August, 1856, referring the matter to the First Comptroller, his award made under that act, and the acceptance of the amount so awarded.

I. There are some propositions so plain that they defy both argument and illustration. And the first point in this case is a pregnant example. These parties, the Postmaster General and Carmick and Ramsey, drew up the form of an agreement in writing, both agreeing that it should have “ no force and validity,” should impose no obligation on either, until ratified by Congress. If Congress should approve, it is expressly stipulated it should commence from that time. Until such ratification took place, it imposed no obligation and conferred no rights on either side. It simply remained in abeyance. The Postmaster General, who entered into this conditional agreement, did not even stipulate, on behalf of either himself or his successor, to urge the appropriation upon Congress. It may well be doubted how far such an agreement would have been available against the United States ; but it is unnecessary to consider that question, as nothing of the kind appears in the agreement. In the absence of all stipulations on the subject, we cannot doubt but that it was right and proper for Postmaster General Campbell, if he believed tbe contract an unfavorable one for the government, to so inform Congress, and advise against its ratification and adoption. And his action in doing so could not amount to an abrogation of the contract, for none existed. It was like any other contract, made to take effect on the happening of an event which never occurs. It was a mere embryo, which never arrived at the period of birth, but miscarried before it attained vitality at all.

If these claimants, upon a thing so nebulous as this alleged contract, proceeded to make the larg-e expenditures alleged, we are sorry for their misfortune, hut cannot commend their sagacity, especially when they were apprised at an early period of the hostility of the Postmaster General to its ratification Resting therefore as the case does upon the breach of this alleged contract, which in our opinion never was in anywise obligatory upon the United States, it is wholly without any foundation whatever.

II. Did the act of Congress of 18th of August, 1856, and the proceedings under it, constitute a submission and award 1 If they did, it is admitted the claimants have no cause of action. The counsel of the claimants, by an argument of much ability and ingenuity, liave invited us to a review of our rulings upon this subject. It is contended that the decision of this court in the Gordon case is in conflict with the later cases of Gilbert and of Kellogg. That in the Gordon case the true ground is assumed, that a reference by Congress of a claim to an officer of the accounting or executive departments is not to be regarded as a submission, but as a mere reference for settlement and statement. That neither party is precluded by such reference and report from contesting the matter before the legal tribunals of the country. That the case of Kendall v. The United States, 12 Peters, 524, as to the conclusiveness of the report in that case was predicated of the executive departments, and not intended to give a conclusive and binding effect in the nature of a judgment, so as to preclude judicial cognizance and inquiry of and into the subject-matter. If these positions are correct and are sustained by the authorities, it behooves us to review and correct the errors of the cases cited. And we address ourselves briefly to that inquiry.

The controversy in the Kendall case arose between the Postmaster General and large mail contractors, who claimed certain extra compensation which had been given them under the administration of the department by Mr. Kendall’s predecessor. These the latter refused to recognize or allow. The contractors appealed to Congress, and they, on the 2d July, 1836, passed an act authorizing and directing the Solicitor of the Treasury “ to settle and adjust the claims ” of the contractors ; “ to inquire into and determine the equity of the claims, or any of them“ and to make such allowances therefor as upon a full examination of all the evidence may seem right, according to the principles of equity.” 6 Stat., 665. The act further enacted, “ and that the Postmaster General be, and he is hereby, directed to credit such mail contractors with whatever sum or sums of money, if any, the Solicitor shall so decide to be due to them for or on account of any such service or contract.” The Solicitor assumed upon himself the duty enjoined by the act, and made an award in favor of the contractors in the sum of one hundred and sixty-one thousand, five hundred and sixty-three dollars and eighty-nine cents, ($161,563 89.) The Postmaster General claimed that the award was for more than was due, and refused to give a credit to the contractors for more than one hundred and twenty-two thousand, one hundred and two dollars and forty-six cents, ($122,102 46.) It was to compel him to allow and credit the residue of the award, viz., the sum of $39,462 43, that the mandamus was prayed for in that ease. The relators based their right to the writ on the ground that there had been a submission of the question involved to arbitration, and an award made, which was obligatory upon all the parties, and an end of the controversy. The same objections to the conclusiveness and finality of the award that have been so earnestly pressed upon us, were urged with great ability upon the attention of tlie Supreme Court by tire eminent counsel who represented' the respondent. But, notwithstanding, the court decided that the report of the Solicitor was a valid and binding award, and left no room for the exercise of any discretion in the Postmaster General. So far as we know, this point of the case has never been doubted, disputed, or departed from in the least by that high tribunal. But, on the contrary, the question having again arisen upon the same award, it was most expressly and distinctly reaffirmed with great clearness and emphasis in the subsequent case of Kendall v. Stokes, 3 How., 87. In this case the same mail contractors sought to recover of Mr. Kendall damages for having refused to give the credits and make the allowances as adjusted by Mr. Barry, his predecessor. But the Supreme Court held that such damages were a part of the subject-matter referred to the Solicitor of the Treasury, or grew directly out of the same, and that any inquiry into them was precluded by the award in that case,' it being final and conclusive of all matters embraced in the submission. Mr. Chief Justice Taney, in delivering the judgment of the court, says,“ The question, then, on the first count is, can a party, after a reference, an award, and the receipt of the money awarded, maintain a suit on the original cause of action upon the ground that he had not proved before the referee all the damages he had sustained; or that the damages exceeded the amount awarded ? We think not. The rule on that subject is well settled. It has been decided in many cases, and is clearly stated in Dunn v. Murray, 9 B. & C., 780.”

The case in 9 Barnewall & Cresswell, cited by the court, arose out of a difference in regard to the wages of a person who had been dismissed by his employer before the end of the time for which he had been hired. That case was referred to an arbitrator, who awarded to the servant the wages to which the whole period of service would have entitled him. The same party,'after having accepted the amount of the award, brought a new suit to recover damages sustained by reason of his dismissal. The former award was held to be a complete bar.

The cases of Gilbert’s Adm’r v. The United States, 1 C. Cl’s R., 108, and Kellogg v. The United States, id. 310, are full recognitions of the binding authority of the cases we have cited. In neither of those cases were the words of the acts making the reference so strong and explicit as in this case; nor were the attendant circumstances showing concurrence in the submission and acquiescence in the award any more emphatic than in the present case.

But the claimants suppose that the case of Gordon, administrator of Fisher, v. The United States, is precisely like this case; and inasmuch as we there held that the reference to the Secretary of War and his report did not constitute an award, that we must, necessarily, to maintain the doctrine, decide this case in the same way. In our opinion the two cases are entirely dissimilar. In that case there were four different acts passed in relation to the adjustment of the same claim. The first was approved on the 12th of April, 1848. — (9 Stat., 712.) And if the question had depended upon the award made under that act, without any further acts or proceedings than the receipt of the money by the claimant, we might have -ruled it differently. But the question of submission to arbitration, or reference to a person, is but one form of a contract, and the proof of its existence and rules for its interpretation are the same as in any other kind of agreement. And in all such the governing and controlling consideration is the intention of the parties, as it may he gathered from their words and actions. And while we have said the words of the first act under which it was referred, and all the attending circumstances of the case, up to the passage of the 2d act on the 22d of December, 1854, (10 Stat., 835,) were such as would have induced us to.suppose that it had been intended to close the case finally, by a binding and conclusive award; yet it was perfectly competent for the parties interested to put their own construction on their own acts. There was nothing to prevent Congress and the claimants from agreeing to hold it as not precluding further inquiry. That they did so agree is evidenced by the fact that by the mutual consent and authority of Congress and the claimant, the case was again and again regarded and held as an open one. Four several acts directing re-statements and- settlements were passed by Congress. Each time the claimants acquiesced in, nay, doubtless requested the passage of these acts; each time appeared and claimed before the officer designated to make the settlement. The language of the last act, under which the award was -made which was claimed as conclusive, was peculiar. It directed the Secretary of War “ to restate and resettle the account,” and to make such corrections in his former statement and settlement, and sueh further allowances, if any, on account of said claim, beyond what has heretofore heen allowed and paid, as, in his opinion, justice to the claimant shall require.” Nor does this one, or the two preceding acts, make provision for the payment of the amount found due upon the ‘‘ restatement or resettlement ” directed. The first act contained that provision, all the others omitting it, thus -leaving it to be inferred that Congress did not intend that it should be a final and binding submission ; for by the omission of any provision for payment, it would necessarily have to pass under the revision of Congress, when an appropriation should be asked for that purpose. Upon what ground could we have held that this report was final, when the parties themselves had elected-to consider all the previous ones as only statements or efforts to attain a final and satisfactory settlement ? Both parties heretofore had concurred that they did not intend a final and binding effect to be given to similar acts and declarations in the same case. Upon what fair and reasonable interpretation could we find they intended this to be otherwise? And in further evidence of that intention we had the express declaration of Congress, in the repeal of the resolution under which the settlement was made, declaring that it was not final, and not so regarded by one of the contracting parties. In every aspect we considered that case devoid of merits. It came up on demurrer, and we did not consider it uecessary to go into all the facts and circumstances of the case. We thought then, and still believe, that the case is impregnable on the grounds assumed in the opinion of Judge Peck, when taken in connection with the history of the case and the acts of the parties, and their mutual dealings in regard to the subject-matter. If the decision is read in the light of its own facts and history, and with reference to them, and not as an abstract homily on law in general, ,we are satisfied it will be found free from conflict with the cases of Gilbert & Kellogg, and also of Kendall v. The United States. (12 Peters, 524.) Parties have a perfect right to agree that the reports or awards made on references or submissions of this kind shall not be final, or that they shall only be so when the parties both agree to them after made. Their agreement makes the law of the case.

Now let us examine the case in hand a little closer, to see how it stands on the principles decided in these cases. The claimants, believing they had a valid claim against the United States, applied to Congress for its payment. It being an unliquidated claim, sounding alone in damages, and Congress, having no means of determining the matter, said : “We will refer the whole subject to the First Comptroller of the Treasury. That officer shall ‘adjust the damages due to’ you ; and, after having made that adjustment, he shall ‘adjudge and award to you, on the principles of law, equity, and justice, the amount-so found due.’”

Tliis was a distinct- offer by Congress to the claimants to submit the matters in dispute. It was only an offer. There was nothing compulsory in it. They might accept or refuse. This court was open to them; and had they refused to accept the reference, or present their case to the referee, and in case of an ex parte hearing and award, and the claimants refusing to receive a benefit from it, or to ratify it, we should unhesitatingly hold that there was no submission, no binding award, and nothing to affect or preclude a recovery in this court. But these claimants chose directly the opposite course. They accepted the submission. They tried their cause before the arbitrator. They presented their testimony ; cross-examined the witnesses of the United States; argued and submitted the whole case. They did more : they accepted the award made in their favor, thus ratifying, adopting, and confirming the whole proceedings, and forever closing their lips against the impeachment of it in any way.

It is now contended that this is no award, but a mere statement of the account, by order of Congress, by an officer of the accounting department. But against this theory is the fact that it was a pure question of assessment of unliquidated damages. There was no account to state or settle. It presented a clear case for the action of a judge, an arbitrator, or jurors, to settle and determine the damages. There was nothing whatever in it that pertained to the duties of an auditing or accounting officer. It was out of the usual course of official routine. If it had been the subject of settlement as a public account at all in the regular course, it must have gone first to the Postmaster General, who would have determined and settled the grounds and principles upon which the account should be stated. The Sixth Auditor would have settled and adjusted the account, and the First Comptroller, on appeal, could have revised such settlement only so far as the Sixth Auditor’s adjustment or statement of the account was concerned; but the law gave him no power of appeal or revision over the action of the head of the department in allowing a claim, and deciding how and to what extent it shall be paid. But the act took the matter out of the usual course of proceedings in the accounting department; made him sole judge and final arbiter of the case; and the Secretary of the Treasury is ordered to pay the amount without further adjustment or settlement.

Can it be doubted that the same facts and circumstances occurring between two individuals would be held to constitute an arbitrament and award 1 One man makes a demand upon another for damages, by reason of an alleged breach of contract. That other writes: “ I have referred the matter to Mr. A. B., who is required to adjust the damages due to you, and to adjudge and award to you, according to the principles of law, equity, and justice, the amount so found due; and I have filed herewith a check, blank in amount, on my banker for the sum which Mr. A. B. shall find in your favor, with authority to fill it up.”

Now, the claimant need not accept this proposition. He is at perfect liberty to reject it, or to say and do nothing. He can say, “I have a right to try this question before the judicial tribunals. I do not want Mr. A- B.’s award upon it.” He can refuse to appear and submit his case to A. B.; and should A. B. proceed to hear and determine the case ex parte, and make an award, it is beyond all controversy a nullity, unless the claimant should by subsequent acts adopt and ratify the award ; for subsequent ratification is equivalent to precedent authority.

But suppose, without making any actual written or verbal response to the proposition of his adversary, the claimant comes voluntarily before A. B., the referee named, submits his case, produces his testimony, cross-examines the witnesses of the other side, is heard by counsel, secures a report in his favor, A. B. fills up the check deposited by the debtor party, and the claimant indorses it, and lifts the money. Is this an arbitrament and award ? If not that, it is nothing. But it is surely something; and it would be a misnomer to call it by any other name than a pure, simple, indubitable award at common law. There is no form or formula of submission to arbitration. It is simply a question of intention; and that intention may be evidenced by acts as well as words, by what the parties did as certainly as by what they said or what they wrote. It is not necessary that there should be any agreement that it should be final and conclusive; it is so in its nature. Such is the legal effect of arbitrations at common law, without any stipulation to that purport. Two neighbors dispute about their boundary line. One says : “Let us get a surveyor, and let him settle the liñe.between us.” The other says : “Agreed.” The surveyor comes, and funs and marks the line. It is conclusive. Why ? Because it was submitted to him as an arbiter in the case. His line designated upon,the ground is his award; and although it may not be the true line, yet, if made according to the submission, and without fraud or undue bias, it is conclusive. (Bowen v. Cooper, 7 Watts, 311; Perkins v. Guy, 3 Serg’t and Raw., 327; Robertson v. McNeil, 12 Wend., 578; Mitchel v. Bush, 7 Cow., 185; Babb v. Stromberg, 2 Harris, 399.) In this latter case there was.a parol offer of submission, which was not formally accepted; but the parties went before the arbitrator, and he made an award. Gibson, C. J., says : “Now, it is not pretended there was, in this, an explicit submission expressly offered and accepted; but a parol submission, like any other agreement, depends on the assent of the parties, and it may be signified by acts as well ,as words.” In the case of Burchell v. Marsh, (17 How., 344,) Mr. Justice drier says: “ If the arbitrators have given their honest, in-corrupt judgment on the subject-matter submitted to them, after a full and fair hearing of the parties, they are bound by it, and a court of chancery has no right to annul their award because it thinks it could have made a better.” In the case of Ghrismany. Moran, (9 Barr, 487,) a party, who had a legal ground of objection against the appointment or substitution of an arbitrator, made the objection, and then agreed with the other side to go on and try the case before the arbitrator, reserving his objection; but it was held to be waived by going to trial. Gibson, C. J., says : “ He was bound to give up his chance of an award in his favor, or his objection ; for they could not exist together. Had the arbitrators awarded in his favor, he might, notwithstanding his protest, have enforced the award, and mutuality of submission requires that both should be bound or neither.”

A submission to arbitration is but one form of a contract. Its existence may be proved, and its terms interpreted in the same way as other agreements; the intention of the parties being the polar star by which we are to be guided and governed. It need not be written. At common law a submission and award both may be by parol. (Cope v. Gilbert, 4 Denio, 347.) The award must be according to the submission ; must be mutual, certain, and final. Here the intention on the part of Congress is clear and explicit. The acts of the claimants are as unequivocal as are the declarations of Congress on the same subject. The award is strictly according to the submission. It embraces the whole subject-matter, and nothing else; and it is rendered in the very words of the submission. It is mutual; for it has been held that an award of a sum of money carries in itself a mutuality, as it must be held to be in satisfaction of the matter submitted. ( Weed v. Ellis, 3 Cai. Rep., 253; Munroe v. Alaire, 2 Cai. Rep., 320.) It is certain. There is no ambiguity in its terms. It was for a definite, specific sum of money for the damages sustained. It was final. After the execution or performance of the award, by the payment of the money on one side, and its receipt on the other, it closed the whole controversy. (See 3 Chitt. Com, Law, 637, 668; 3 Bl. Com., 17; Chitty Ed. Caldwell on Arb.; Kyd on Awards; Watson on Arbitration, 145 et seq.)

In any view we take of this case, we think the claimants are without any standing in court. Upon the contract or paper set up there is no sort of claim made out. It never became binding on the paij ties, because it was never approved or affirmed by Congress. And there could be no breach where there was no obligation, no abrogation of that which did not exist, and no damage where there were no rights to invade or property to destroy.

Whatever rights were acquired under the act of 18th August, 1856, were fully satisfied by the award and its acceptance. Those were a full execution of its provisions. Such we conceive to be the law of this case; and it is a source of satisfaction to believe that its application in this instance does no injustice to the claimants.

The demurrer is sustained, and the petition dismissed.

Judge Peck did not sit in this case.  