#### ALBERT GRANT, SURVIVING PARTNER, &c., v. THE UNITED STATES.

No. 3697

June 11, 1883.

•Congress passed an act 1883, January 5, ch. 10 (22 Stat. L., — ), directing the court to reopen and readjudicate the claimant's case, upon the evidence on which it was tried more than thirteen years previously, and if it should find that the court at that time gave judgment for a different sum from what it intended or what the evidence sustained, it should correct the error and adjudge to the claimant an additional sum.

■Of the five judges who heard the ease before, only one is now on the bench— Judge Nott, and he is absent by reason of illness. Chief Justice Casey and Judges Peck and Milligan have died, and Judge Loring has resigned.

Held :

.It is now found that the court did then give judgment for a different sum than was intended or the evidence sustained, and an additional judgment is rendered in his favor.

The following are the facts found by the court:

I. The Senate Committee on Claims, on or about the 15th February, 1882, made the following report to the Senate;

Mr. Fuye, from the Committee on Claims, submitted the following report (to accomxiany bill S. 486):

[Senate Report No. 180, 47th Cong-., first session.]

The Committee on Claims, to whom was referred the bill (S. 486) for the relief of Albert Grant, have examined the evidence submitted, and finding that it has been correctly stated in House Report No. 897, Forty-sixth Congress, second session, adopt that as a just and accurate .statement of facts, annexing it hereto, and report back the accompanying bill, with a favorable recommendation:

*The Committee on Claims, to whom loas referred the memorial of Albert Grant, haring had the same under consideration, beg leave to malee the following report:*

At the December term, 1868, of the United States Court of Claims, the memorialist obtained judgment for the sum of $34,225.14 for extra work *733and material furnished in the erection of a fire-proof store-house at the-Schuylkill Arsenal, in Philadelphia, in the year 1867. The memorialist claims that the court, in entering judgment in said cause, made a mistake, having taken Mr. Fraser’s report, as architect of the War Department, instead of his evidence in the cause, -which would have made the judgment. §46,738.86.

Upon the examination of the evidence taken in said cause, it clearly appears that therewas.no evidence upon which such a judgment could he rendered.

Four witnesses testified to the value of such extra work, and their testimony was in no way contradicted, and was as follows:

Total estimated extras, as per B. Oertly’s testimony. $47,038 68

Same, John Fraser’s testimony. 46,738 86

Same, Allen A. Grant’s testimony. 48,814 64-

Same, Jackson Grant’s testimony.....:. 50,373 55

The average of this testimony is $48,241.48, showing the court to have made a mistake of $14,016.34.

In the course of the trial it appeared that the witness Fraser, being the Government architect, had, some time previous to giving his testimony in said cause, been called upon by the War Department to make an estimate of the value of extras, and in such estimate had fixed them at the sum of $34,225.14.

On the trial of the cause Mr. Oertly testified to the extras as follows (taken from claimant’s testimony, Exhibit- A, on file with the committee, pages 75 to 77, inclusive):

Item 1. For cutting out and removing 315 cubic feet of concrete footing and replacing same by grouted, work of pure cement, at $1 per foot. $315 06

Item 2. For difference common concrete as required by contract, and grouting of pure cement, as required by the Government, on 349 perches of footings, at $7.50 per perch. 2,617 56

Item 3. For changing 75 stones placed in walls for iron beams to rest upon, required by the specifications to be 8 by 12 inches, taken out and replaced by stones 8 by 24 inches, and the same taken out and again changed to 8 by 12, as also for taking down the brick walls, securing them, and rebuilding the same by order of the Government officials_. $500 06

Item 4. For plastering of basement walls, one coat, 1,722 yards, at 20 cents per yard. 344 46

Item 5. For extending projection four inches, and filling in between rafters around the entire building of brick work, being 37,080 bricks, at $50 per thousand. $1,854 06

Item 6. For 5,000 superficial yards of grouting,_2£ inches thick, spread over floor, in addition to that required for haunches, being of pure cement, at $1.25 per yard. 6,250 00

Item 7. For the difference in leveling up the haunches of the arches, for the floors to rest upon, in grout- of pure cement, rather than in concrete of lime and sand, as required by contract, amounting to 311 perches, at $10 per porch. 3,110 06

*734Item 8. Eor difference between, laying floor arches in lime, cement, and sand, as required by contract, and laying tlie same in pure cement mortar, 369,380 bricks, at $6 per thousand. $2,216 28.

Item 9. Eor difference between common 'concrete made of lime and sand for cellar floors, and grouting of pure cement, 212 perches, at $9 per perch. 1,908 00

Item 10. For difference in roof, between that as required by contract and as actually built by order of the Government officials, including a change in the iron tie-rods from single 1£ inch round rod to complicated double rods, increasing the number of trusses, drilling purlines, and supporting the same by iron rods encased in gas-pipe, making four complete sets of tie-rods running around the entire building, in making extra hips and valleys, occasioning large increase in material and labor, with other modifications and changes. 13,938 48

Item 11. For scuttle to roof, none being required by plans or specifications. 75 00

Item 12. For carrying up partition walls to ridge of roof, requiring 37,092 bricks, at $30. $1,112 76 and fitting and cutting to roof 324 lineal feet of wall, at 50 cents per foot. 162 00 1,274 76

Item 13. For topping eight chimneys with North River flagging. 96 00

Item 14. For transom windows with iron sash and glass. 100 00

Item 15. For taking down 31,500 bricks and stone belt-course on west front of building, and relaying and resetting the same (all difficult work), at $30 per thousand. 945 00

Item 16. For 50 sets'of bolts placed in the walls for roof trusses over court-yard, viz, two bolts and iron plate to the set for clamping brick work. 150 00

Item 17. For taking down four 9-inch beams and replacing the same by four 12-inch girders, viz, placing 12,300 pounds iron beams, at f cent per pound. 92 25

Item 18. For building addition walls between old and new building, and placing iron beams for said walls to rest upon, requiring 14,400 bricks, at $30 per thousand. $432 00 and placing of 1,820 pounds of iron beams, at § cent per I)ound... 13 65 445 65

Item 19. For difference between copper gutters, ridges, valleys, and down-spouts, as required by the Department, and the tin gutters, valleys, spouts, and ridges required by contract. 8,608 25

Item 20. For 2,610 pounds additional iron beams in west stairway, not required by the original plans, at 10 cents per pound-261 00

item 21. For cutting 27 holes for hoisting apparatus, and putting iron eyes, at $6 each. 162 00

Item 22. For cutting out brick work to admit new girders (see Item 17) necessary on account of delay. 175 00

Item 23. For placing 700 iron beam-plates not required by specifications, after ail the beams had been placed, at 50 cents each. 350 00

*735Item 24. For change of hatchway on account of error in drawings, 2 additional beams required,.and altering and changing frame work, also -making good the brick work. $150 00

Item 25. For closing four windows opening into basement of old building. 100 00

Item 26. For four sets of plank steps,to basement, not required by contract.'. 200 00

Item 27. For difference between bedding the brick pavement of the several floors in pure cement, 1£ inches thick, and bedding the same in common mortar, as required by contract, 6,667 yards, at 87 cents per yard.r. 5,800 29

Total. 47,038 86

On the trial of the cause, Mr. Fraser, architect of War Department, testified as follows, to wit: '

“ The amount of my estimate was $34,225.14. I was induced to make this report low understanding that the contractors had large amounts to pay upon the building; supposing that, by making it low it would be more likely to be allowed by the Department.- Since making my report I have, with Mr. Oertly, reviewed my estimates as to the extra work charged. The paper now shown me, marked Exhibit A, appended to the deposition of Mr. B. Oertly, in this case, gives the estimate as made by us.

I have compared the estimate in my report with tho estimate made by Mr. Oertly and myself, of items number 1 to 21, inclusive, and they are identical ; I have had occasion to change the amount of my estimate on items number 1 and number 21, inclusive, by adding $6,038.43; the total amount of my present estimate upon these items is $40,263.57. On inspecting the building and comparing it with the specifications, plans, &c., I find other items than those before reported by myself; these additional items of extra work are set forth in the amended petition, and numbered from 23 to 27, inclusive. I have made my present estimate ■ from actual inspection of the work, and from comparing it with the contract, plans, and specifications ; the work charged for as extra was all done under me, with the excep>tion of items one, two, three, and fifteen; it was done by my order, and with the knowledge of the Government officers; Government officers visited the work daily with me; I was at the -.building with Colonel Crilly almost every day from the time of my appointment.”

Nowhere in the evidence can any testimony he found to support a judg- • ment of $34,225.14. No evidence was produced to cut down the amount of the estimates as made by the different witnesses. The court, in rendering judgment, say:

“ In respect to the facts which are applicable to the first demand, the United States Assistant Attorney-General, after a most careful examination of the whole testimony in his printed brief, very justly remarks that — t

“ ‘It is not our purpose to discuss the evidence which it is alleged establishes the several items of the claimants’ demand. The evidence adduced for that purpose may be regarded as sufficient to establish the claimants’ right to recover, if the Government is liable to pay, the several amounts the claimants allege they are entitled to receive.’ ”

*736Tie same Assistant Attorney-General who had the case in charge for the United States makes the following statement:

“ Department of Justice,

*“ Washington, Ja/nuary*11, 1875.

“Sir: Your note to the Assistant Attorney-General, in regard to the claim of A. Grant, has been handed to me, as I had charge of the defense of his suit against the Government in the Court of Claims. Whether the court made a mistake in rendering judgment in Grant’s case is rather a matter of inference than of positive knowledge. When the judgment was rendered I supposed the court had made a mistake, and wondered why Grant’s counsel did not move for a correction of the judgment. The figures given by the court in the judgment are not to be found in the testimony of any witness, but are taken from a report made by Mr. Fraser before the suit was brought. Mr.- Fraser was a witness in the case, and in his testimony he estimates the value *of*the extra work done by Grant at $46,738.86. This was the lowest estimate made by any of the witnesses.

“Very respectfully,

“Alexander Johnson,

“ *Special Assistant Attorney-General.*

“Hon. J. C. Burrows,

*“Souse of Representatives.”*

The Hon. Joseph Casey, then'Chief Justice of the Court of Claims, makes the following statement relative to the error of the court:

“Washington, D. C., *January*13, 1875.

“Dear Sir: I have yours of yesterday. I have carefully re-examined your case in the Court of Claims, for compensation for building a fire-proof storehouse at the Philadelphia Arsenal for the United States. And in connection with my memoranda, kept at the time, two items of claim were made : 1st, about $50,000 for extra work; 2d, near same amount for damages for delays, losses, and interest on account of changes, &c.

“The original estimate by the Government architect for the changes- and extra work was something over $34,000.

“ The survey and actual calculation of the cost and value of this work at the contract prices, after it was doue, as made by four different architects, was an average of over $48,000, that of the Government architect being $47,000.

“The court, after trial, rejected the claim for damages, and allowed.that for extra work.

“ The mistake in the amount of the judgmont, which should have been for $47,000, arose, 1 am sure, from adopting the architect’s prior estimate instead of his subsequent actual calculations of the cost of the work.

“My attention was not called to this error until after the judgment had been certified and paid.

“Iam quite sure that you should have had $14,000 in addition to the judgment rendered in the case for compensation alone, without any interest or damage.

“I am, very respectfully, yours,

‘ Jos. Casey.

‘ Capt. A. Grant.”

*737II. The court at the trial of this cause, reported in the fifth, volume of the Court of Claims Reports, gave judgment for a different sum than the court intended.

III. In order to correct such error and adjudge to said Albert Grant such additional sum in this cause as the evidence justifies, he should receive a further sum of fourteen thousand and sixteen dollars and twenty-nine cents.

*Mr. B. P. Loioe*and *Mr. John B. Sweat*for the claimants.

*Mr. Thomas Simons,*Assistant Attorney-General, for the defendants.

OPINION.

Davis, J.,

delivered the opinion of the court:

The Act of July 13, 1866, appropriated $146,000 for the erection of a fire-proof building in Philadelphia. (14 Stat. L., 92.) The contract for the construction of the building was awarded to the claimants, and a written contract therefor was made in the form required by law.

During the progress of the work sundry changes were made in the drawings and specifications by-the defendants? agents, and the work was done in accordance with the changes. After it was completed the claimants, brought suit to recover for the extra work.

There was a large amount of testimony introduced bearing upon its value. Among the documents in the case was a report from Mr. Frazer, the supervising architect, charged with the construction of the building, in which he referred in detail to the items of extra work, and estimated them at $34,225.14. This report, upon principles of evidence which this court has invariably adhered to, was not,admissible as proof of the results reached by Frazer. There was also in the case testimony from Frazer and other experts as to the worth of the extra.s. , In his evidence Frazer'fixed their value at a larger sum than he had stated in his report, and explained wherein the difference consisted, and why he had originally estimated them at the smaller sum. The court gave judgment for the exact sum named in Frazer’s letter. There is in the record no evidence on which that particular sum could apparently be based except the statement in that letter.

*738The claimant was then in arrears to his men, and needed the money, and was paid and accepted the amount of the judgment. He then went before Congress, alleging that there was an error of fact in the judgment — that the court intended to give him the amount of Frazer’s estimate as stated in the evidence, and that by mistake it took the estimate in the letter.

The matter was brought before successive Congresses without result until the death of Judge Milligan, who had given the opinion. Chief Justice Casey meanwhile had retired, and as the court which had rendered the judgment was rapidly changing, the claimant apparently thought proper to obtain and lay before the committee the views of Chief Justice Casey as to the merits of his request. Finally, a House committee reported a bill in his favor, accompanying it with a written report, which we shall consider later.

The bill as enacted by Congress reads as follows:

> AN ACT for the relief of Albert Grant.

> *Be it enacted, Sre.,*That the Court of Claims he, and is hereby, directed to reopen and readjudicate the case of Albert Grant and Darius Jackson (doing business as A. Grant and Company) upon the evidence heretofore submitted to the said court in said cause (Fifth Court of Claims Reports, page eighty), and if said court in such readjudication shall ñnd from such evidence that the court gave judgment for a different sum than the evidence sustains or the court intended, it shall correct such error and adjudge to the said Albert Grant such additional sum in said cause as the evidence shall justify, not to exceed fourteen thousand and sixteen dollars and twenty-nine cents; and the amount by readjudication in favor of the said Albert Grant shall be a part of the original judgment in the cause recorded in the Fifth Court of Claims Reports, page eighty. (January 5, 1883, ch. 10, 22 St. L. — )

The act is as remarkable for wbat it omits as for what it directs. While directing us on one line “to reopen and read-judicate the case” upon the former evidence, on the next line it deprives us of the power of a- general readjudication, and orders us only to inquire whether there was an error in the Government’s favor. Still further, it not only authorizes us to inquire whether the evidence supported the former judgment in this error, but it also confers upon us the remarkable power to determine whether the court which gave the judgment in 1873 intended to give a different judgment. Thus the act, in fact, if not in form, directs us in our readjudication to base our results, not upon our own conclusion from the evidence, but *739upon our opinion as to what the court, as constituted in 1873, intended to do.

In the revolutions of time no judge who took part in the judgment in 1873 takes part in the judgment in 1883. Death has taken away Chief Justice Casey and Judges Milligan and Peck, the Chief Justice and Judge Pebk having each previously retired. Judge Loring, who is still enjoying a vigorous old age, dissented from the judgment; and ill-health has deprived us of Judge Nott’s assistance during the whole of this term.

- The report of the House committee to which we have referred was adopted verbatim by the Senate committee as a reason for the passage of the bill which was recommended and passed. It- explains the purposes of Congress in this unusual legislation. It reviews the case. It affirms that the evidence shows that the court made a mistake of $14,016.34. It declares that nowhere in the evidence can any testimony be found to support a judgment of $34,225.14, and it asserts that Chief Justice Casey was of opinion that there was an error in the amount of the judgment, that it should have been for $47,000, and that the error arose from adopting Frazer’s prior estimate, instead of the actual calculation which he gave with his testimony.

The committees of Congress having reached these positive conclusions as to the effect of this evidence, the act which they recommend, and which passed, directs this court to examine it, and, if we shall be of opinion that there was an error in the judgment against the claimant, to correct the error, provided the correction shall not exceed the sum stated in the act-.

We cannot say with the committee that, there was no evidence upon which the judgment could be rendered; on the other hand, in the conflicting proof, there is abundant evidence to support a judgment for the further amount indicated by the act; and we are of opinion that so far as the judgment actually rendered rested on Frazer’s report to the Department, it had no foundation in the evidence. -

As to the second subject referred to us, there is convincing internal evidence in the proof that the court intended-to adopt the views of Mr. Frazer, and that it did practically adopt the views which he expressed in his letter to the Department. The report of the committees to the houses of Congress goes further, and assumes as a proved fact that the court intended to adopt the views expressed by Frazer in his evidence, and by mistake *740took those stated in his letter. Still further, the committee stated to Congress the sources from which they derived this conviction, viz, that Chief Justice Casey had so stated in a form which the committee accepted as truth. On this report they recommended the passage of the accompanying bill, and Congress adopted their views and enacted it.

This act directs us to ascertain the intent of the parties from the evidence. We may not inquire what Chief Justice Casey or Judges Peck or Milligan in their lifetime said of it. We are not empowered under the terms of this act even to ask Judge Nott, if he were here, what his intent was when he assented to that judgment. We cannot turn to Judge Loring for information, not only because the statute does not permit it, but also because he dissented and took no part in the judgment. We must determine this delicate fact from the old record alone.

If there were no conflict of evidence as to the value of this extra work, and the court had by clerical error rendered a judgment for a wrong amount, the evident intent of Congress by the passage of such an act would be this: to have this court pass upon the evidence and enter a judgment in accordance with its own convictions. But such'is not this case.

This court is directed to ascertain the intent of four judges ten years since, not in a matter where there is a palpable clerical error, but in a matter in which those judges exercised their discretion in weighing and balancing conflicting evidence; and it is forbidden to seek information on the point to be adjudicated from the only sources of absolute knowledge. If, therefore, we cannot learn the purposes of Congress from the recommendations of its committees on which its action is based, but one answer can be given to the question put to us: The only proof of the intent of the judges is in the judgment they rendered ; and, even if we should derive a different result from weighing the proof, we could not say that they intended to estimate it as we do.

This answer is so natural, so obvious, so inevitable, that Congress never could have intended to send this case here to receive it. The reports of their committees upon which they based their action show exactly what they did intend. They were led to believe by the declarations of Chief Justice Casey that an error had been inadvertently committed by which the claimant had been injured and the intent of the court had been *741frustrated. They did not feel willing, or perhaps competent, to go through the record «and ascertain whether it conformed with the recollections of Chief Justice Casey. They did not care to right the claimant’s alleged wrongs till that' should be done; and they sent the case here for that purpose.

Construing the act in this light, we think we must limit ourselves to inquiring whether the evidence shows anything inconsistent with the conclusions which Congress derived from the committees’ reports. We cannot say that it does; on the contrary, as we have already said, there is in this conflicting evidence proof to sustain those conclusions.

On both points we have felt constrained to find for the claimant. We think it proper to add .that.our findings are not to be ■taken as evidence of the conclusions which we should have reached had the action" of Congress left a larger measure of discretion to the court. We express no opinion on the general merits of this controversy.'

The judgment of the court is that the claimants recover of the defendants the sum of 14,016.29.