
    JAMES HUGHES v. THE UNITED STATES.
    [No. 15762.
    Decided June 9, 1890.]
    
      On the Proofs.
    
    A contractor on the Pension Building, at the request of the superintendent, procures mechanics and laborers by “day’s work.” He pays their wages, and, according to established usage, is entitled to a commission. A general account is made out by the clerk of the superintendent to which a receipt, in full is appended; but it appears by parol that the amount qiaid merely re-imbursed the contractor.
    I. A receipt in full is but evidence, ordinarily, in the nature of an admission, liable to be explained or contradicted. But in cases,of implied contract, where tbe consideration is ¡undetermined and the parties may agree upon the price, the receipt in full is an agreement to fix ■ the value of the thing sold, and to consider the price so agreed upon as the full consideration of the contract.
    II. A payment of a part of a debt is not payment of the whole; but in cases of implied contract there is no whole and no part until the amount is fixed by agreement of parties or the verdict of a jury.
    
      III. Where there wore two obligations resting upon the defendants, to refund money paid to their use and to compensate the claimant for a service rendered at their request, a receipt in full will not conclude him, though the transaction was one of implied contract, if it appears by parol that the money paid merely discharged one obligation.
    IV. If the obligations are not distinct, if the contractor merges them into one, if he accepts ever so small a consideration for the second, or if a dispute or controversy exists, payment and receipt in full will be a discharge of both obligations.
    V.As a matter of pleading a plaintiff may not be allowed to split up his demand and bring one suitfor money paid to the use of the defendant and another for his commission; but if the defeudant. pays for the one and not for the ohher, a receipt in full will not conclude the plaintiff; a payment of one debt can not be made payment of another through the medium of a receipt in full. .
    
      The Reporters’ statement of the ease.
    The following are the facts of the ease as foundby the court:
    1. The claimant and General M. C. Meigs, supervising engineer and architect for the Pension Office, on the 17th day of September, 1886, entered into the contract annexed to and forming part of the petition. The following are proposals of the claimant and the material parts of the specifications annexed to and forming part of the contract:
    “ WASHINGTON, D. 0., Sept. 6, 1886.
    “ General M. C. Meigs,
    
      “Supervising Engineer and, Architect,
    
    “Z7. S. Pension Building:
    
    
      u Sir : I propose to furnish all labor, tools, and scaffolding, mix the mortar, and execute all the plastering in the U.S. Pension Office Building, as follows:
    “ All the interior of great hall, the large columns, the office rooms not yet plastered, the four gate-ways, walls, and ceilings, and the principal stair-ways; the seven communicating partitions and arches in the rooms now plastered, the ceilings of the fourth floor, and roof ceilings of office-rooms; in fact, all the plastering to be done above the first floor except the gate ways and the hall face of colonnade and parapet. Also and to include the running of all plaster molds and cornices, the fixing of the cast plaster ornaments on the great column pilasters and in the soffits of arches. All to be done complete as per plans and the specifications dated August 14, 1886, and complete the entire work in four months from award of contract, for the sum of fifteen thousand seven blind red and seventy-four dollars ($15,774).
    “And it is hereby agreed that all the plastering work done by the Government since September 1, 1885, above the first story shall be deducted from this proposal at a fair price.
    “ Respectfully submitted by
    “ James Hughes.”
    “ The gate-ways of the first story and face of arches of first story parapet mentioned in this proposal are meant to be included in the work to be done under this proposal.
    “James Hughes.”
    “ Specifications for plastering, extracts from.
    
    “ The United States will furnish the material for the plastering, delivered near the new Pension Building.
    “ The contractor is to mix the mortar, furnish material for, build and remove the scaffolding, and furnish all the labor and tools for the complete execution of the work herein specified, leaving the whole in perfect order.
    “All the work is to be done in the best and most workmanlike manner, and to the entire satisfaction of the supervising engineer and architect, whose decisions on all questions pertaining to the manner of doing the work and the quality and measurements thereof shall be final and shall be accepted by the contractor.
    “ The contractor is to protect his own work until its final acceptance, when he is to turn over the whole in good order and condition.
    II. Referring to items 1 and 2 of Exhibit B, annexed to the petition, to wit:
    1. To 807 square yards 3-coat plastering in basement stairways and rooms back of stairways, at 25c.. $21(5. 75
    2. To 137 square yards white-coatragin basement stairways, at 10c.. 13.70
    The court finds that the work described as plastering and white-coating “ in basement stairways ” was performed on the “ principal staircases ” of the building, and was included in the written contract annexed to the petition; and that no evidence has been offered to establish the quantity of plastering which was done by the claimant in the “ rooms back of stairways,” as set forth in item No. 1.
    III. Referring to item 4 in Exhibit B, to wit:
    4. To 1,900 square feet arch molding, first story arcade, at 25c- §475. 00 The court- finds that tbe wort was not included in the written contracts; that the arch molding described amounted to 1,140 feet by simple linear measurement and to 1,900 square feet by convex surface measurement, it being more than 1 foot in width; that the latter method was the usual manner in the city of "Washington of measuring such moldings, but that no express contract existed fixing the price of this molding, and that the claimant has not shown what was the value of such molding when estimated by the square foot. The court also finds that the work was paid for by the linear foot upon the following account and receipt:
    
      The United States'to Janus Hughes, Hr.
    
    Oct. 23, 1886. For work done by liim putting on plastering in lower story and rooms in new Pension Building to this date:
    Lower story, 2,108 sq. yds., 2d coat work, at 11c. $231.88
    2,296 “ “ 3d “ “ “ 9c. 206.65
    1,140 lin. ft. molding, at 25c. 285.00
    67 sq. yds., 2 coats in rooms, at 20c. 13.40
    Total... 736.92
    Deduct previous payments on this ac.:
    Voucher 2537, Sept. 25, 1886. $180.99
    “ 2584, Oct. 9, “ . 384.99 565.08
    One hundred and seventy-one i304,- dollars. $171.84
    (W. E. E. — This work is not provided for under the terms of any existing contract.)
    “ October 23,1886.
    “ I certify that the articles above enumerated have been received or services rendered; that they were necessary for and have been or will be applied to completing the fire-proof building for Pension Office; and that the prices paid were in my opinion just and reasonable; and that the purchases were made in open market or under contract, in compliance with section 3709, Revised Statutes.
    “ M. O. Meigs,
    “ Supervising Engineer and Architect,
    
    
      11 Brevet Major-General, TI. S. A..
    
    “Received, at Washington, D. O., Oct. 23d, 1880, of Geo. W. Evans, disbursing clerk, Department of the Interior, one hundred and seventy-one ($171-$¡V) dollars, in full of the above account.
    “ James Hughes.*
    
      IY. Referring to items 15 and 16 of Exhibit B, to wit:
    15. To 184 dayb’ work, plasterers patching throughout tlie building, old and new work, from time to time, at $4.50. $828.00
    16. To 21 days’ work, laborers attending plasterers while patching, at $2.50.-. 52.50
    The court finds that the replacing or patching above described was in part caused by the employés and agents of the Government after the rooms had been relinquished to their use by the contractor, and in part to injuries and accidents incidental to such work, and against which the contractor was bound to protect the work until final acceptance according to the terms of the specifications; and the court also finds that the claimant has not shown how much of the replacing or patching was referable to the one cause and how much to the ■other.
    Y. Referring to the following items of Exhibit B, to wit:
    8.To 4 moulded brackets at foot basement stairways, at $5.00... $20.00
    5. To 186 moulded corbels under ends of 4th story itoor beams, at $8.50. 051.00
    0. To 54 moulded corbels on thick walls formed to correspond with the brick corbels, at $5.00.;... 270.00
    7. To 318-,s2- lineal feet O. G-. moulding under marble cap 3d story parapet wall, at 15c. 62.70
    8. To 52 oaps and bases at intersection of columns with ceiling groins, at $4.00. 208.00
    9. To 8 cast brackets on side wal's of stairways, at $6.00. 48.00
    10.To 204 lineal feet picture mould around terra cotta ornaments in main stairways, at 45c. 91.80
    The court finds that the brackets, corbels, and moldings described were ornaments not shown or designated on the plans of the- building which were exhibited to the claimant when he entered into the written contract, and are not enumerated in that contract, and that the prices above named are the fair and reasonable value of the same.
    YI. Reí erring to item 17 of Exhibit B, to wit:
    17.To 206 days’ work, laborers screening saud-for plastering and other trades, at $1.50. $309.00
    The court finds that the sand referred to was not in a condition when delivered to the contractor fit to be made into mortar, and that it required screening to so fit it for use, which was done by the claimant. The fair and reasonable value of the service was $309. The court also finds that sand for plastering purposes is ordinarily delivered in Washington screened And fit for immediate use.
    
      VII. Referring to items 11, 12. 13, 14, 18, and 19 of Exhibit B, to wit:
    11. To 49 days’ work, plasterers wireing flanges 4th-story floor fleams, at 554.50. 55220.50'
    12. To 40^ days’ work, plasterers whitening ornaments for Corinthian caps of great columns and cutting loaves of same, at 554.50 . 182.25
    13. To 82£ .days’ work, plasterers cutting flrick-work on parapet walls, at $4.50 . 378.25
    14. To 32£ days’ work, plasterers lathing pilasters in upper mid hall 146.25
    18. To 144 days’ work, plasterers running Keen’s cement wash-hoard, at 554.50. 648.00
    19. To 73 days’ work, laborers attending plasterers running wash-hoard. 182.50
    The court finds that the claimant furnished plasterers and laborers to perform work not required by his contract, to the number of four hundred and twenty-one days ; that no express contract existed fixing the price or value of the service so furnished by the claimant; that the supervising engineer and architect of the Pension Building allowed and paid to the claimant from time to time as the service was rendered, the precise amount which the claimant paid to the men so employed, and for these payments receipts in full were given in the form hereinafter set forth, but that no commission or profit was paid to the claimant, and these payments so made and receipted for amounted to a mere re-imbursement of the wages which the claimant had paid to the men so employed.
    The court also finds that the claimant notified the supervising engineer that he would not accept these payments as a discharge of his entire demand, and that, by usage in! the city of Washington, a contractor so furnishing labor by what is known as “ days’ work ” receives a commission or profit of 75 cents per man per day.
    The receipts above referred were in the following form :
    
      The United States to James JSughes, Dr,
    
    1887. For work (lone by men in bis employ and paid fly him, not provided for under the terms of any existing contract. From January 8, 1887, to March 4, 1887, inclusive : 27 days’ work of plasterers whitening cast plaster ornaments, at $3.75. $101.25
    Feb’r. 16. 1 day’swork ofplasterer cutting- away brick projections- 3.75
    One hundred and five dollars. 105.00
    “ March 7,1887.
    111 certify that the articles above enumerated have been received or services rendered ; that they were necessary for and have been or will be applied to completing tbe fireproof building for Pension Office, and that the prices paid were, in my opinion, just and reasonable, and that the purchases were made in open market or under contract, in compliance with section 3709, Eevised Statutes.
    “M. C. Meigs,
    
      “Supervising Engineer and Architect,
    
    “ Brevet Major-General, TJ. 8. A.
    
    “ Eeceived at Washington, D. G., March 8,1887, of G-eo. W. Evans, disbursing clerk, Department of the Interior, one hundred and five ($105.00) dollars in full of the above account.
    “James Hughes.”
    And upon the foregoing findings of fact, the court decided as conclusions of law:
    1. As to the causes of action set forth in Findings II, III, and IV, the claimant should not recover.
    2. The claimant should recover upon the causes of action set forth—
    In Eixuling V. $1,351.50
    In Emding VI.•. 309.00
    In Einding VII. 315.75
    Amounting to. 1,976.25
    
      Mr. John J. Weed for the claimant.
    
      Mr. James R. Nixon (with whom was Mr. Assistant Attorney-General Ootton) for the defendants.
    The principles which will govern this court in cases where the words, “ No extras of any kind are to be allowed,” appear in a contract are clearly indicated in Ford v. The United States (17 O. Ols. B., p. 60) and Grant v. The United States (5 O. Cls. E., p. 71).
    What, if any, was extra work under this contract, and, if extra, whether paid for, are the principal questions to be discussed, and are questions of fact only.
    Against the contention that although a receipt in full for wages has been given, a sum in excess of the receipt may be recovered, the case of Averill v. The United States (14 O. Ols. B., p. 200), Ford v. The United States (supra) and Case v. The United States (11 O. Ols. B., p. 712), are cited.
   Nott, J.,

delivered the opinion of the court:

The causes of action set forth in Findings II, III, and IYfail for deficiency of proof; the causes of action set forth in Findings Y and YI are dependent upon issues of fact, which are determined in favor of the claimant; the only question of law involved is presented by Finding YII.

The question involved in those facts is peculiar, or rather the application of the law to the facts of the case is without a precise precedent in this court.

The claimant was a contractor engaged in plastering the ■walls of the Pension Building under an express contract. In addition to the work required by his contract he occasionally furnished mechanics and laborers to work for the Government by what is termed in the trade day’s work.”

From time to time accounts were made out by the disbursing agent of the Government, in which these services were stated at a rate which the contractor paid the men, and nothing •more. To these accounts were appended receipts in full, which the claimant signed when he received the money.

A receipt in full ordinarily is but evidence in the nature of an admission, liable to be explained or contradicted, and it is well settled, even as against the Government, that where the amount of a debt is fixed and ascertained payment of a part cau not be made payment of the whole through the instrumentality of a receipt in full. (Bostwick's Case, 94 U. S. R., 53.) But the law which allows contracting parties, through the medium of an express contract, to fix the value in advance of a thing to be delivered, or a service to be rendered, also allows them to fix the value in cases of implied contract after the thing has been delivered or the service has been rendered. If the consideration of the implied contract is still open and undetermined, they may still agree upon the price or the compensation, and it is only where they fail to agree that the law answers the question in controversy by the words in quantum meruit, or in qu,antum valebat. In such cases, if the debtor proffers payment as payment in full, as a discharge of his existing indebtedness, the creditor must accept it as such or not accept it at all, and acceptance will discharge the debt. (Comstock's Case, 9 C. Cls. R., 141; Savage’s Case, 92 U. S. R., 382.)

A receipt in full in such cases is something more than an admission of payment, it is an agreement to fix the value of the thing sold, and to receive the price agreed upon as the full consideration of the implied contract. Such agreements may be attacked as all written contracts may be upon the ground of fraud or mistake, but they can not be overthrown by the doctrine applicable in cases of express contract that payment of a part of a debt is not payment of the whole. In cases of implied contract there is no whole and no part until the amount is fixed by agreement of parties or the verdict of a jury.

Here, it will be observed, there was no express contract fixing the consideration of the implied contract, which sprang up whenever the service was rendered. At the first glance, and upon a mere inspection of the accounts, it would be said that the debtor paid.iu full, as evidenced by the termsof thereceipts, and that the creditor accepted payment in full, and thereby discharged the indebtedness of the other party. And if, instead of procuring the services of these mechanics and laborers, at the request and for the benefit of the other party, there had been the sale of a commodity in which the- contractor dealt, such would be the effect of the payment.

A closer inspection of the case, however, brings other and distinctive facts into view.

The contractor here did not buy and sell labor as a commodity, but procured it for the use of the other party. On his part there was the trouble of procuring mechanics and laborers; the obligation of paying them ; the expense incidental to keeping their time, and carrying the pay-rolls and the usage of the trade. On the part of the Government there was nothing more than a repayment to the contractor of what he had paid out as wages to the employés, The parol evidence shows that here, there were two obligations resting upon the Government — to refund to the contractor the money which he had paid to its use; to compensate him for the trouble and expense which he had undergone at the Government’s request.

The evidence also shows that the accounts and receipts in full, though general in terms, related exclusively to the former obligation, and did not include the latter. While, therefore, the transaction arose under an implied contract and upon its face looks very much like the parties settling the price or consideration by payment and acceptance, it is really, by virtue of its dual obligations, one of those cases where payment of a part of a debt can not be allowed to stand as payment of the whole. In other words, payment of the indebtedness for money expended to the use of the defendants can not be allowed to stand as payment of the indebtedness for service rendered at their request, be the accounts and receipts upon which payment was made ever so general in terms.

If these obligations had not been distinct; if the contractor had merged them in one; if he had accepted ever- so small a consideration in addition to the money which he paid to these third persons for the use of the defendants and at their request, or if any dispute or controversy had existed and the payment had been proffered as a settlement of it, the transaction would have been closed by the voluntary act of the parties, and the debt discharged. The distinction between this and ordinary cases of implied, contract is that here there were distinct transactions — the service rendered, the money paid. As a matter of pleading a plaintiff may not be allowed to split up his demand and bring one suit for his commission and another for the money he paid out; but if a defendant paid for the one and did not pay for the other, a receipt in full should not conclude the plaintiff from his right of action. If payment of a part is not payment of the whole, still less is payment of one debt payment of another.

The judgment of the court is that the claimant recover of the defendants the sum of $1,976.25.  