#### HENRY W. VOLK, AS TRUSTEE IN BANKRUPTCY OF THE WIDELL-FINLEY COMPANY, BANKRUPT; EMIL SCHOYEN, AS ADMINISTRATOR OF THE ESTATE OF FREDERICK KRON, DECEASED, AND WILLIAM G. HOERR v. THE UNITED STATES.1

[Nos. 31436-A and 31436-B.

Decided October 31, 1921.]

*On Defendant's Motion Under Section*175, *Judicial Code.*

*Ofintraetj jurisdiction; res judicata.*— A construction company entered into a contract with the United States to perform certain excavation work, and after having performed a certain amount thereof, the company became bankrupt, and the United States took charge of the work and completed the same at a cost in excess of what it would have had to pay if the company had completed it. The Government brings suit against the bonding company in the circuit court (now district court) and the bankrupt company is allowed by the court to be made a party defendant as to the excess cost of completing said work, and it defends upon the ground that the Government’s classification of materials was erroneous thereby greatly increasing the cost of the work, but set up no counterclaim. The case was tried before a jury which rendered a verdict that the United States was not entitled to recover against either the bonding company or the contractor. *Held,*that the claim of the United States for excess cost of completing the work was *res judicata,*but that any claim of the bankrupt company, against the United States was not *res judicata*because the circuit court had no jurisdiction of such a claim.

*New trial ■under Section 115, Judicial Code.*— The Court of- Claims has exclusive'jurisdiction to decide whether a motion for a new trial under section 175, Judicial Code, for alleged “fraud, wrong, or injustice ” done the United States, shall be granted, and there is no right of appeal from such decision.

*The Reporter’s*statement of the case:

The following statement is referred to in the opinion of the court:

*396STATEMENT FROM ELEADINGS, ETC., IN CASE IN CIRCUIT (NOW DISTRICT) COURT.

In case No. 215 tlie complaint of tlie United States, plaintiff, filed in the Circuit Court in April, 1910, alleged “ for a cause of action ” against certain individual defendants (tlie sureties on the contractor’s bond)—

1. The advertisement for proposals for the construction of stated work.

2. The submission by the Widell-Finley Company of a bid thereon.

3. The acceptance of that bid and the making of a contract, a copy of which was attached to the complaint (and a copy of which is attached to the original petition herein).

4. The execution of a bond by the Widell-Finley Company with the individual defendants as sureties in the penal sum of $21,500, a copy of the bond being attached.

5. That the Widell-Finley Company began work under the contract, büt became bankrupt in February, 1906, and suspended work and abandoned the same, and that thereupon the United States took charge of the work and proceeded to complete the same in accordance with paragraph 21 of the specification. Paragraph VI of the complaint is as follows:

“ That in the completion of said work after suspension and abandonment thereof by said Widell-Finley Co., as aforesaid, the plaintiff necessarily paid out and expended over and above the contract price, as specified in said agreement, and in excess of what the plaintiff should have paid if said agreement had been performed by said Widell-Finley Co., as therein stipulated and agreed, the sum of $59,009.06, and plaintiff alleges that by reason of the default, negligence, and failure of said Widell-Finley Co., to complete said contract in manner and form as therein provided, the plaintiff was damaged in the sum of $59,009.06.”

6. That after the completion of the work “ a statement of account showing the balance due the United States as aforesaid was presented ” to the contractor and its receiver in bankruptcy and “ demand for payment of said sum was made upon the said bankrupt contractor and its receiver,” and that afterwards demand was duty made upon the defendant sureties for the amount of the penalty of the bond.

*3977. That by reason of the premises, default had been made in the condition of the bond and plaintiff was entitled to have and recover from the sureties the sum of $21,500.

It therefore prayed judgment against them for said sum, interest, and costs.

After the action had been commenced against the sureties in April, 1910, a stipulation was entered into between the plaintiff, by its attorney, and the Widell-Finley Company and its trustee in bankruptcy and the sureties, by their attorneys, in July, 1911, whereby these parties were admitted as parties defendant to said action against the sureties, the parties by the stipulation agreeing that the contractor and its trustee in bankruptcy were joined as parties defendant in said case No. 215 as fully, to all intents and purposes, as if originally made defendants; that the question of liability of the sureties and of the other defendants could be tried together and the jury could render separate verdicts under appropriate instructions from the court; that service of summons and complaint was waived and the stipulation was to be decreed an appearance in the cause by the contractor and trustee; and that the complaint could be amended to demand judgment for $59,009.06 against the contractor and trustee.

The sureties filed their separate answer, as also did the Widell-Finley Company and its trustee, respectively.

The answer of the sureties presented two matters of defense, (1) that there had been a material change in the location of the canal by the Government without their consent,- and (2) that there had been an erroneous classification of materials made by the Government.

The answer of the trustee was a general denial of the cause of action and set up a counterclaim based upon the taking or using by the United States of certain personal property belonging to the Widell-Finley Company at the time the contractor ceased work. This counterclaim, however, was subsequently withdrawn.

The Widell-Finley Company, “ interpleaded by stipulation.” denied the allegations of the complaint, except so far as the allegations of the answer are admitted, explained, or qualified.

*398Several separate defenses were alleged in the answer, (1) to the effect that the Government had changed the location or course of the canal without the contractor’s consent. This attempted defense was disposed of by the court in his charge to the jury; (2) that before the contractor ceased work it had earned at least the sum of $125,000, which, because of erroneous classification by the Government’s agents, it has been allowed only the sum of about $82,000 for, and that after the Government took over the work it had credited the contractor on its statement of account with $94,904.25 when the amount should have been “ at least $125,000.”

In the course of its answer the company admitted that the plaintiff had presented to it and to its trustee and to the bondsmen a. statement of account purporting to show a balance due the United States “ by reason as claimed by the United States ” that it cost them “ over $59,009.06 over and above the amount specified in the contract to complete the work.” It was also alleged that the’ bankrupt’s receiver had earned under the contract for work done “ a large amount of money, to wit, about $5,287.56.” Further, that at the time the trustee in bankruptcy was elected there was due and unpaid and in the hands of the plaintiff over $25,000 for work, labor, and services performed by said Widell-Finley Company, or on its behalf, under the contract, “ no part of which sum has been paid, though often demanded.”

The plaintiff filed a general replication to the. several answers.

Evidence was introduced by the parties at the trial, and the court’s charge to the jury is here set forth (omitting that part which relates to the defense made by the sureties that there had been a change in the location of the canal without their consent and omitting also that part of the charge which relates solely to the case No. 226, consolidated with No. 215). The court charged the jury:

*“*Now, as to this second defense, there is no dispute between the parties as to the total amount of earth excavated by the Government after it took charge of the work, but the dispute is as to the classification. The testimony of the Government is that after it took hold of the work it moved 128,003 cubic yards of material which came under class one, for which the contractor was entitled to receive 12.9 cents per yard. There *399is evidence on the part of the defendants that only 25,000 cubic yards of material were removed which came under class one. The Government has given the contractor credit for $16,512.38 at the contract price for 128,003 yards of first-class material. The defendants say that they were not entitled to any such credit as that, but that they were only entitled to a credit of $3,225.

“ The testimony of the Government tends to show that it removed 87,877 yards of second-class material, for which the contractor was entitled to receive 25 cents a yard, and which amounted to $21,969.25, and they have given the defendants credit for that amount. There is testimony on the part of the defendants, however, you will remember the testimony of Mr. Finley that there were 160,000 yards of this second-class material (moved), and that' they should be entitled to a credit not of $21,969.25 but of $37,500. As to the third-class material, the Government says that they removed 7,288 yards, for which, at 56 cents a yard, they gave the defendants credit for $39,921.28. The defendants say that they were given too much credit for third-class material, and that there was removed only 15,000 yards in that class, for which credit should be given of $8,400.

“ The most important difference, however, appears in the fourth class of material. The Government says that it moved only 50 yards of fourth-class material, for which the contractor was entitled, at $1.25 a yard, to $62.50, and they have given the defendants credit for that amount. The testimony of Mr. Finley, however, is to the effect that 100,000 yards of fourth-class material were removed, for which they should have been given credit in the sum of $125,000. Summarizing these different amounts and the classes as claimed by the respective parties, we find it to be something like this: The Government has credited the defendants with $78,465.41 and the defendants claim that they should have been credited with $174,125. In other words, it is claimed that the defendants should have been credited with $95,659.59 more than they have been credited with. You will remember that the claim of the Government is for $59,000, so you will see that according to the contention of the defendants not only is the claim of the Government of $59,000 wiped out but there would be due from the Government a considerable balance for the defendants.”

“ It is for you to determine, gentlemen, just where or in which of these classifications this material should have gone. The contract provides that upon all questions of classification the decision of the engineer shall be binding upon both parties. I have held, as a matter of law, that that provision of the contract would bind both the contractor and the Gov-*400eminent as long as the contractor was carrying on the work; but I have also held that it was not binding either upon the contractor or the sureties after the contractor ceased to do the work and while it was being done by the Government.

“ The fact that the Government engineer classified this material as he did is not binding upon you, nor is it conclusive upon that point. It is for you to decide whether the classification made by the Government engineer was right or wrong. It will readily occur to you, in weighing the-evidence, that the testimony of Mr. Tillinghast, who was actually there and did actually measure the material when it came out, is entitled to weight, because this is not an estimate. Tillinghast is supposed to have measured the matérial right there and classified it. The testimony of Mr. Finley is, as he himself said, that it was an estimate, and you will have to be governed by his testimony as to just how he made that estimate. I held, as a matter of law, that Finley had shown himself sufficiently familiar with the work so as to be able to give his opinion as to how much of each kind of material was moved. And you will consider all this in determining the question.

“ There is, however, one thing that appears in evidence, which is that the Government engineer, Tillinghast, put into the third class a lot of material which the defendants claim should have gone into the fourth class. That presents another question which you will have to determine.

“ I call your attention again to these classifications, although they have been read to you several times, but particularly to classifications 2, 3, and 4. Class 2 covers ‘ In-durated matei'ial of all kinds which can not be plowed, as in class 1, but which requires loosening by powder and then can be removed by scraper.’ You will remember that one of the witnesses for the Government testified that a good deal of this shale rock could not be removed by a scraper. It is in evidence that the Government engineers themselves did not consider that this shale went into class 2, and Tillinghast testified that he put it into class 3.

“ Class 3 covers ‘All loose material in which large rock occurs to such an extent as to prevent the use of plow or scraper, but excluding masses exceeding 1 cubic yard in volume.’

“ Class 4 covers ‘All rock in masses exceeding 1 cubic yard and requiring drilling and blasting.’

“ You will notice that the word ‘ rock ’ occurs in both the third and the fourth classes. My recollection is that Mr. Walter testified that while he conceded that this shale was material which had to be loosened by blasting, still it was not *401rock for the purpose of the fourth class, but he considered it was rock for the purpose of the third class. While it is true that some fossilized rock was found in this cut, and also there is evidence that a certain amount of limestone was there, yet there is no evidence to show that anything which the Government could call rock was found in this cut to the extent of a cubic yard in volume; so that it really comes down in regard to the distinction between the third and fourth class as to whether the shale can be called rock. Ordinarily it would be a question for the court to determine as to what the meaning of the specification was, but in this case there was a conflict of evidence as to the nature and quality of this material which is called shale. The question presented is a mixed question of law and fact, and I am going to leave it to you, gentlemen, to say what that material was.

“ If you find that this shale was rock within the meaning of the specifications, then you should put into the fourth class all of it which existed in masses more than a cubic yard in volume and required drilling and blasting. It is for you to state the account between these parties and to say how much credit should be given the defendants for the work done by the Government after the work was abandoned by the contractor. As I said before, the Government has given them only a credit of $18,465.41, and.after having given them that credit it claims that the sum of $59,000 is due the Government. The defendants claim that they are entitled to a credit of $174,125. In other words, that they are entitled to ,a credit of over $95,000 more than they got. It is for you to determine just how much credit they should get. If you determine that they are not entitled to any more credit than they did get, that ends the case for this defense. If you find that they were entitled to more credit than they got by reason of improper classification, then you should deduct whatever you find over from this sum of $59,000. If you find they were entitled to recover $59,000 more than the claim of the Government, then that would balance the account.

“ If the amount does not come to $59,000, then the Government would be entitled to the difference between what credit you find should be given and the $59,000. If you find the amount to be more than $59,000, you can do nothing more than simply return a verdict for the defendants, because there is no affirmative relief asked by the defendants.”

The jury returned their verdicts in the two consolidated cases and judgment was rendered thereon as follows:

“ The jury in this cause having heretofore retired to consider their verdict come now and return into court by their *402foreman their (verdicts), which are in the words and figures following, to wit:

“ ‘ We, the jury in the above-entitled consolidated case, find for all the defendants and against the United States.

*“ ‘*Dated this 28th day of October, A. D. 1911.

“ *‘*Robert B. Forrest, Foreman.’

“ In accordance with the foregoing verdict, it is by the court considered, ordered, and adjudged that the United States of America, the plaintiff in case No. 216, take nothing by this its action, and that Adolph O. Eberhart, Thomas R. Coughlan, William G. Hoerr, and Frederick Kron, the defendants herein, do go hence without day.”

An appeal was taken to the Circuit Court of Appeals by the Government and also by defendants in case No. 226. See opinion affirming the judgment on the Government’s appeal and reversing the judgment in the other case (204 Fed. R., 884).

*Mr. Assistant Attorney General Robert H. Lovett*for the motion.

*Mr. John W. Schmitt*opposed.

1

 See also 55 C. Cls., 87.

Campbell, *Chief Justice,*

delivered the opinion of the court:

The defendant has filed a motion for a new trial under section 176 of the Judicial Code (Rev. Stat. 1088). From the final judgment of this court the defendant took an appeal to the Supreme Court of the United States, which is still pending therein.

Section 176 reads as follows:

> ■ “ The Court of Claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion, on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law.”

Its language authorizes the granting of a new trial though an appeal be pending in the Supreme Court. It is “ a peculiar provision, applicable only to the Court of Claims.” *Belknap*v. *United*States, 150 U. S. 588, 590, and the section was in*403tended “ to give the Government an advantage which, in respect to its form, is quite unusual, if not unprecedented, but which Congress undoubtedly saw sufficient reason to confer.” *Ex parte Russell,*13 Wall. 664, 668.

It therefore becomes the duty of this court to consider the defendant’s motion, notwithstanding an appeal taken long since from the judgment and yet pending. In *Young*v. *United*States, 95 U. S. 641, 643, it is said :

> “A case having been made upon the record, such as would justify its interference, that court had the right to hear the evidence and decide. Over its decision within that jurisdiction we have no control, for the statute has not provided an appeal. The new trial is to be granted if the evidence submitted, whether cumulative or otherwise, is sufficient to satisfy that court ‘ that fraud, wrong, or injustice has been done to the United States.’ The act was passed for the protection of the United States. It constitutes' one of the conditions which Congress has seen fit to attach to the grant of a right to sue the United States. The suitor can not complain, for he accepted this condition of the jurisdiction when he commenced his suit. * * * We are all of the opinion that the decision of the Court of Claims, upon a motion by the United States, within the prescribed jurisdiction, is conclusive and not subject to review. The claimant must rely upon his appeal from the final judgment upon the merits for protection against wrong under this form of proceeding.”

The section contemplates a new trial in respect of matters of fact and does not authorize the granting of a motion predicated solely upon errors of law. The latter may be corrected on appeal. *In re District of Columbia,*180 U. S. 250, 252, approving the rule stated in *Ealer's*Case, 5 C. Cls. 708.

Before entering upon a discussion of the motion we deem it proper to state, in general terms, a history of the proceedings in the case in this court.

The original petition was filed in February, 1912. Evidence was taken by both parties, and both the plaintiff and the defendant filed requests for findings of fact and briefs. These were of unusual length and presented elaborately the contentions of the parties. The attorneys representing the respective parties appeared and argued the case orally when it was submitted to the court for decision. After the *404submission the court prepared what is called “ tentative ” findings of fact and filed the same with an order allowing the parties to make objections thereto or suggestions for any changes therein. Thereafter proposed amendments to the findings were made by one or both of the parties, and on the day set the attorneys for the respective parties were again heard upon exceptions to the tentative findings.

In its exceptions to the tentative findings the plaintiff requested the court to make a finding to the effect that the Widell-Finley Company and its trustee in bankruptcy were made , parties defendant to the suit brought by the United United States against the bondsmen of the Widell-Finley Company in the District Court of the United States for the District of Minnesota, mentioned in Finding IX, and also to find that “ the right of the contractor and its trustee in bankruptcy to recover from the United States the withheld percentage or any of the claims involved in this action were not litigated or decided in that case.” The court, not being satisfied by the references to the record as to the facts thus requested to be found, made an order in which it was stated specifically that the plaintiff requested an amendment of the tentative findings “ by adding two clauses,” which were mentioned appropriately in the order, and further that it deemed a finding upon these matters to be material. This order provided that the parties have leave “ to produce and file in the clerk’s office a certified copy of the record and proceedings in cause 215 of the District Court of the United States for the District of Minnesota, wherein the United States of America was plaintiff and Adolph Q. Eberhart et al. were defendants, or a certificate of such part of the record and proceedings in said cause, or in the consolidated cause referred to in Exhibit O, as bears upon the matters in question, together with such other documentary proof in support of the requested change as the parties may see fit to file.”' This order was entered November II, 1919, and gave the parties until January 1, 1920, in which to comply. Following this the plaintiff filed a transcript of the record on appeal from the District Court to the United States Circuit Court of Appeals for the Eighth Circuit in the consolidated cases mentioned in 204 Fed. Rep. 884. The defendant offered no *405other evidence and filed no objection to the proposed finding, and the court, having amended the tentative findings, rendered judgment on January 26,1920, which is now complained of. Thereafter the defendant filed a motion to be allowed to file a motion for a new trial, which was overruled because the motion for a new trial had not been filed within the time fixed by the rules of the court. An appeal was then taken to the Supreme Court of the United States on the 24th day of April, 1920. The present motion for a new trial under section 175 was filed on the 3d day of October, 1921. When the” motion was filed and notice of it sent to the address of plaintiff’s attorney of record, it developed that he had died since the rendition of the judgment, and some delay in passing on the motion was occasioned by the fact that another attorney had to be selected by the plaintiff, his name substituted on the record, and he be given an opportunity to reply to the motion.

In this case it may be said that the matter now offered, if it is material, or would tend to produce a different result, should have been presented in compliance with the order of November 19, 1919, practically inviting parties to present the evidence upon the question now at issue.

The contention of the defendant on the motion is that the court erred in finding that the claims for which judgment was allowed had not been litigated and decided in the suit in the District Court brought by the United States against the bondsmen of the contractor, wherein the contractor, the Widell-Finley Company, and its trustee in bankruptcy, were by stipulation brought in as parties defendant. The affidavit of a court stenographer, who took down the proceedings in the consolidated cases in the District Court, is produced, and the court is asked to award a new trial, upon the theory that it will be shown by that witness that the matters referred to in the above findings were litigated and decided in the District Court and, further, that the court erred in its conclusions.

The findings stated in the concluding paragraph of Finding IX and here objected to was deemed to be the ultimate fact, without a recital of all the evidence establishing it, and to be, therefore, in accordance with the rule of the Supreme *406Court upon the subject of findings by this court. It was requested by the plaintiff to be found and was not objected to by the defendant. Of course, if additional findings were deemed essential, it was open to the defendant to request them within the time fixed by the rules (which was not done).

A more detailed statement of the proceedings in the case in the District Court could have been stated and, in our judgment, it will confirm the accuracy of the finding which is assailed. The statement is made án appendix hereto. The pleadings by the parties and the court’s charge show the issue and determine what was litigated and decided.

After the Government had taken charge of the work which the contractor, or its receiver in bankruptcy, had abandoned, as stated in Finding III, the Government completed the same. Thereafter an action, numbered 215, was brought by the United States against the sureties on the bond of the contractor. This -action was subsequently consolidated by an order of the court with another, numbered 226, which the United States, suing for the benefit of a bank, brought against the same sureties and the contractor. The latter case (No. 226) is not material here but is discussed at length in 204 Fed. Rep. 884, where the opinions of the Circuit Court of Appeals in both cases appear.

The complaint in case No. 215 shows that the United States sued the sureties of the contractor to recover the amount of the penalty of their bond. Afterwards, by stipulation of attorneys, the contractor and its trustee in bankruptcy were impleaded as defendants in that action. While the amount claimed as damages against the contractor is stated in the complaint to be $59,009.06, the ground of action is predicated on the alleged fact that it cost the Government more to complete the work after the contractor’s abandonment of it than it would have cost if the contractor had performed his contract. It is specifically averred that the plaintiff (the Government) paid out.and expended “over and above the contract price ” and in excess of what the Government would have paid if the contractor'had performed his contract the stated sum. This complaint made no reference to what the contractor had earned prior to the Government taking over the work. The complaint therefore presented *407the one issue that the Government was entitled to recover the sum stated because, on account of the contractor’s default, it had been compelled to complete the work at an increased cost over what it should have been done for by the contractor.

The contractor undertook to set up two defenses, but asked no affirmative relief. Both defenses were predicated on alleged erroneous classification of materials, one.setting up what the alleged error was before the contract was abandoned and the other alleging what the erroneous classification was after the Government took charge. The contractor claimed that the Government had not allowed him .enough for the work actually performed by' him, but this attempted defense was eliminated subsequently by the court’s ruling, to the effect that the classification made by the Government officer, while the work was being done by the contractor, was binding on both parties under a provision of the contract, and the jury were so instructed by the court. This left the only possible defense to be whether an erroneous classification was made of the material while the Government was completing the contract,- the court ruling upon that question that the officer’s classification during the period of the Government work was not binding on the contractor. (.This ruling was affirmed on the Government’s appeal.) The Government had completed the work and was entitled to charge the contractor with its excess cost over what, at contract prices and proper classification, it would have cost the Government if the contractor had performed. The. amount of materials removed was not questioned, the contract prices for the several classes were fixed, and the only dispute was as to the proper classification. Manifestly the contractor could not recover anything from the Government on account of the latter’s work in completing the contract, even though it were completed for less than the contract price. All he could claim, when sued by the Government on account of the excess cost, was that the contract prices for the materials, and the classification of them according to the contract, be observed to ascertain whether there was a liability to the Government. The court told the jury that they should state the account, and thus left to them the only question at issue. They found against the Government and returned a general verdict for *408the defendants. Judgment was rendered thereon and an appeal by the Government from the judgment was affirmed (204 Fed. Rep. 884). Thus not only as a matter of fact was the amount which had been retained by the Government not litigated and decided but, as a matter of law, it could not ha,ve been litigated and decided for the reasons to be stated. The Government’s contention upon that question — to the effect that if the judgment of the district court was conclusive upon the Government (the plaintiff in that action) it must be equally so upon the contractor and its trustee — is answered by the ruling of this court in *Atlantic Dredging Co. case,*35 C. Cls. 463, 484, where, upon a similar question, it was held that a judgment in a district court estopped the Government. The opinion by Judge Weldon uses the following apposite language:

> *“*In the proceeding in New York, the rights of the parties were not reciprocal. The plaintiffs [the Government] had the right to prosecute its action for any violation of the agreement on the part of the defendant, but the defendant was limited in the range of its judicial right to a defense in showing that it did not violate the contract, but beyond that it had no right of set-off or counterclaim. The law in its policy gave it a power to defend but no power to attack; and hence, while it might defeat the plaintiffs, it could not succeed in establishing any affirmative right or claim against the plaintiffs. *Tillou*v. *United States,*6 *Wall.*484. The exercise of that right was left to the jurisdiction of this court, and it now seeks to exercise that right in the presentation of its claim, unaffected by the claim of the defendant that it violated its agreement in the nonperformance of the contract.”

See also *Weisberger case,*54 C. Cls., 1, where the court held that the Government, having sued in a district court and a judgment rendered for the defendants, it was bound thereby as *res ad judicata*and the contractor was given a judgment.

As a matter of law it may be asserted that the contractor could not be estopped by the judgment of the district court, so far as its claims for which judgment was rendered in this court are concerned. Section 951 (Kev. Stat.) provides that in suits by the United States “ no claim for credit shall be admitted upon trial ” except as therein stated. This statute has been many times construed. See *Eckford case,*6 Wall. *409484; *Smythe*v. *United States,*188 U. S. 156, 172, 173, and cases cited. In *United States*v. *Nipissing Mines Co.,*206 Fed. Rep. 431, tbe Circuit Court of Appeals, in an opinion by Judge Noyes, say:

> “ Section 951 of the Revised Statutes allows set-offs when claims have been presented to accounting officers, but this statute does not authorize a judgment for an excess against the Government.”

Moreover, the district court could not have rendered judgment against the Government for a claim in excess of $10,000. The Tucker Act (section 24, subdivision 20, Judicial Code) gives the district court jurisdiction *“*concurrent with the Court of Claims ” of certain claims and contains the provision that “ all suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury.” There is no authority conferred to try a claim against the United States by a jury. In the case cited the Circuit Court of Appeals say: “ We think that this statute refers -to original suits and prescribes procedure inconsistent with its use as the basis of a counterclaim,” 206 Fed. Rep. 431, 434, and the judgment of the District Court against the United States upon a counterclaim, 202 Fed. Rep. 803, was reversed. Clearly, then, the claim of the contractor for the amount in the hands of the Government confessedly due the contractor upon work it had performed was not litigated and decided-against it. In view of section 951 *et seq.,*the court could not have allowed the claim to be litigated and it was without jurisdiction to determine the claim in a jury trial in view of the Tucker Act.

If the judgment rendered, appealed from, and affirmed- in these circumstances does not constitute a conclusive bar to the Government’s defense, attempted to be asserted in this court, it is difficult to see how a judgment can ever constitute an estoppel or be *res adjudicata.*If it had been content to prosecute its claim against the sureties alone, it may not have precluded itself to contest the question when sued by the contractor. See *California Bridge Co. case,*245 U. S. 337; 50 C. Cls. 40. It voluntarily consented that the contractor be impleaded as a defendant and must abide the consequences of the judgment against itself. *Weisberger case, supra.*If the *410District Court could not adjudicate the question at the instance of the contractor, its adjudication was not secured, indirectly, by any course the plaintiff there (the Government) may have taken. And in this connection it is to be noted that the Government’s complaint states that it “ necessarily' paid out and expended over and above the contract price * * * and in excess of what the plaintiff should have paid if said agreement had been performed by ” the contractor “ the sum of $59,009.06,” and it is accordingly alleged that “ the plaintiff was damaged ” in that sum. Thus, clearly, the entire amount due the Government for the work over and above what it should have cost it was in issue. On the other hand, the contractor and its trustee brought action here to recover the amount which was earned upon the basis of what it claimed was the correct classification for materials it had moved while engaged upon the work. It had not sought to.have the relief thus claimed when it filed answer in the District Court, in that it asked no judgment and could have had none.

This court’s findings (VI) of the cost to the Government to complete the work over and above what the contractor would, have been paid was made because of a request for a finding on that subject by the Government. Notwithstanding our view, that the matter was settled in the District Court, it was the right of the defendant to have the finding made. It is proper to say, however, that the amount stated in the conclusion of Finding VI was the amount found when the classification was according to the ruling of the Engineer officer under the provision of section 8 of the contract. There is no finding of what the amount would be if the classification by the officer was not binding after the Government took charge. The District Court and Circuit Court of Appeals held that the officer’s classification was not binding. It hence follows that the finding as made may operate against the contractor except for the explanation stated.

The litigation between these parties has been protracted. The petition was filed in February, 1912. Every opportunity was afforded the defendant to make its defense. The witness whose testimony is now asked to be taken was examined as a witness in 1915, and cross-examined by defendant’s counsel, *411and the latter was informed then that the witness (court reporter) had all his notes and could make a transcript from them. If the transcript was material, it should have been produced. The judgment of the court is for two items of moneys which have been withheld on account of work actually performed and accepted and two small items which the Government has admitted to be proper charges against it. Nothing has been allowed on account of the alleged erroneous classification. The work was completed about thirteen years ago. The contractor gets no interest on the claims. It would seem that he has been compelled to wait long enough for the principal. We do not regard the proposed *“*new ” evidence as material, if it were not cumulative, for the reasons above stated. We are satisfied that no “ fraud, wrong, or injustice has been done the Government, and the motion for a new trial is overruled.

All the judges concur.