#### JOHN J. SHIPMAN v. THE UNITED STATES.

No. 12413

February 12, 1883.

Congress appropriated §7,000 for the purpose of constructing a road to a national cemetery under the direction of the Secretary of War.

A contract was made by the Secretary with the claimant, by which the latter was to do the work and furnish materials at prices therein fixed for the different kinds of work and materials; the whole expressly restricted by the contract to the amount allowed by Congress for that purpose.

The claimant received some payments as the work progressed, and in settling with the War Department he contended that he had done extra work beyond tho value of §7,009, for which he asked payment.

An engineer of the Quartermaster’s Office inspected the work, stated an account which set the value of the work and materials as per con- . tract at $7,000, and which, after deducting previous payments, showed a balance of $2,672 due to the claimant. This balance was paid to him, and he gave a receipt “in full of the above account.”

He claims to recover the alleged value of the work and materials above the $7,000.

Held :

I.Where the authority to enter into a contract for a particular work in behalf of the United States depends wholly upon an appropriation of money made for that purpose, no officer of the Government has power to create a liability therefor beyond the amount of the appropriation, and a contractor cannot recover more than the money appropriated, whatever may be the extent of his work. Where an alleged liability of the Government rests wholly upon an appropriation, they must stand or fall together, so that when the latter is exhausted the former comes to an end. In that respect the case differs from that where an act authorizes a thing to be done absolutely, but makes an inadequate appropriation or none at all.

II.If an officer is clothed with authority to do a piece of work, without limitation as to cost, the contracts made by him therefor are binding on the Government, whether money is appropriated for the purpose or not.

III. The restrictions of Rev. Stat., § 3732, are in the alternative, prohibiting a contract or purchase on the part of the United States, unless “authorized by law” *or*are “under an ax^propriation adequate to its fulfillment.” Contracts to be valid must be shown to come under one or the other of these provisions.

IV. When a disputed account is stated between the parties, and the creditor accepts the balance shown thereby to be due him, and gives a receipt “in full of the above account,” it is a mutual settlement of the matter in dispute, and is conclusive upon the parties.

*139The following are the facts found by the court:

I. Under the provisions of the Act of June 20, 1878, chap. 365 (20 Stat. L., 242), the claimant entered into a contract with the defendants, after advertisement and proposals, of which contract the following is a copy:

This agreement made and entered into this twenty-ninth day of October, 1878, hy and between Capt. A. F. Kockwell, Assistant Quartermaster, United States Army, at Washington, District of Columbia, for and on behalf of the United States of America, party of the first part, and John J. Shipman of Lewensville, Fairfax County, in the State of Virginia, party of the second part, for himself, his heirs, executors, administrators, and assigns, witnesseth:

That the said parties have covenanted and agreed, and hy these presents do covenant and agree, to and with each other, as follows:

Article 1. That the said John J. Shipman shall construct a macadamized roadway from the national military cemetery near the city of Vicksburg in the State of Mississippi, known as the Vicksburg National Military Cemetery, to said city of Vicksburg, as laid down in the plat of survey hereto attached and in accordance with the profile of said survey and specifications for said work also hereto attached and made part of this agreement.

Article 2. That the said party of the second part shall furnish all labor and material necessary for the proper execution of the work herein specified.

Article 3. That all materials before being used in the construction of the roadway shall be inspected and accepted by a civil engineer, or other agent to he designated by the party of the first part.

Article 4. That for and in consideration of the faithful performance of the stipulations of this agreement the party of the second part shall he paid hy the party of the first part as follows: For excavation or cut in clay or gravel sixteen (16) cents per cubic yard, and for excavation cut in rock sixty-five cents per cubic yard; for fill where distance of haul does not exceed six hundred (600) feet five cents per cubic yard, and one half (•£) C6nt additional per cubic yard for each and every hundred feet of haul in excess of six hundred feet; for gravel placed on the road and thoroughly rolled sixty-five (65) cents per cubic yard; for good hard bricks, laid in cement mortar, for culverts, basins and headings eleven (11) dollars per thousand; for vitrified drain-pipe, twelve inch, sixty-five cents per lineal foot; fifteen inch, ninety cents per lineal foot; and eighteen inch, one dollar and thirty cents per lineal foot, laid with closely cemented joints.

Article 5. That it is expressly understood and stipulated that this agreement is made contingent upon the granting to the United States by the proper local authorities of the right of way over the route for roadway indicated by the plat of survey hereto attached; and it is also further stipulated and provided that the work to be done and the materials to be furnished under this agreement shall be restricted to the amount allowed by Congress for this purpose.

*140Article 6. That the -work under this contract shall he commenced on or before December 1st, 1878 (subject to restrictions named in first clause of the fifth article of this agreement), and shall be completed by the first day of March, 1879.

Article 7. ¡That upon inspection and report of materials furnished or work done, during the performance of this contract, payment in part may be made to the contractor, said payment in no case to exceed eighty per cent, of the estimated value of -work done and materials'actually furnished, except -whenever the amount of work done and materials furnished shall be of the aggregate value of seven thousand dollars, then payment may be made therefor in full.

Article 8. That in case of failure on the part of the party of the second part to complete the work in the manner herein provided and as set forth in the profile and specifications hereto attached and at the time agreed upon, or upon his abandoning the construction of the road altogether, it is distinctly understood that the party of the first part will have the right to complete the work, and the total amount disbursed by the United States on this account shall be deducted from the contract price hereinbefore named, which would have been paid to the party of the second part, had he fim-ished the work as stipulated.

Article 9. That it is expressly conditioned that no member of Congress is, or shall be, admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is not transferable without the consent of the proper authority, that any sale, transfer, or assignment of it (except under a process of law) shall and will be considered an abandonment of it and the said party of the second part, or his sureties, be held responsible for all loss, delay, or damage to the United States which may arise from such abandonment.

In witness whereof the parties have hereunto set their hands and seals in quintuplícate the day and year first above written.

Sealed and delivered in the presence of:

A. F. Rockwell, [Seal.]

*Gapt. and A. Q. M., V. S. Army.*

John J. ShipmaN, [Seal.]

Approved:

Meigs,

*Quartermaster-General, Brvt. Major-General, U. S. Army.*

II. Work was commenced by the claimant about the middle of January and continued to about the middle of May, 1879.

From time to time the work done and materials furnished were inspected and reported by an engineer officer of the Quartermaster’s Department, upon which vouchers were given as follows:

Vicksburg National Cemetery,

*February 18th,*1879.

I hereby certify that I have inspected the work performed and material furnished by John J. Shipman, contractor, on the new road leading from *141the Vicksburg National Cemetery to the city of Vicksburg, as per statement attached.

I further certify that the work done and material used are satisfactory and in accordance with the requirements of the contract; and I estimate that there is due therefor to the said John J. Shipmau, contractor, the sum of eight hundred and forty dollars, less twenty per cent, to be deducted and withheld until completion of work.

James Gall, Jr.

*Civil Engineer and Inspector, Q. M. Dept.*

The aboye estimate is for work as follows:

Earth excavation, 3,000 cubic yards, ® 16c. 480 00

“ fill 3,000 “ “ “ 5c. 150 00

“ excavation & fill, 1,000 “ “ *“*21c. 210 00

840 00

*The United States to John J. Shipman, Dr.*

Appropriation fiscal year ending June 80th, 1879.

I certify that the.above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, ; and are borne on my report of persons, &c., for the month of February, 1879.

A. E. Rockwell,

*Capt. f Q.M., U. S. A.*

Received at Washington, D. C., the 25th day of February, 1879, of Captain A. F. Rockwell, asst, quartermaster, United States Army, the sum of six hundred and seventy-two (672) dollars and-cents, in full of the above account.

■ Macadamized road, Vicksburg, Miss.

John J. Shipman.

Similar certificates and vouchers were given, and the sums mentioned in like manner receipted for March 1, 1879, $640; March 19,1879,11,008; April 5, 1879, $1,000; May 3,1879, $1,008; and the final one as follows:

Vicksbueg- National Cemeteky,

*May*24, 1879.

I hereby certify that I have this day inspected the work performed and material furnished by John J. Shipman, contractor, on the new road leading from the Vicksburg National Cemetery, as per statement attached.

*142I further certify that the work done and material used are satisfactory and in accordance with the requirements of the contract; and I estimate that there is due therefor to the said John J. Shipman, contractor, the sum of seven thousand dollars, accordance with the requirements of the contract; and I estimate that there is due less the amount of previous payments.

James Gall, Jr.,

*Civil Engineer and Inspector, Q, M. Dept.*

*The United States to John J. Shipman, Er.*

I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and are borne on my report of persons, &e., for the month of May, 1879.

A. F. Rockwell,

*Capt. and A. Q. M., U. S. A.*

Received, at Washington, D. C., the 31st day .of May, 1879, of Captain A. P. Rockwell, ass’t quartermaster, United States Army, the sum of two

thousand six hundred and seventy-two (2,672) dollars and-cents, in

full of the above account.

Macadamized road, Yioksburg, Mass.

Joint J. Shipmaist.

To this last certificate was attached a full and. particular• statement of the work done in detail, with the following summary and recapitulation:

SUMMARY.

Pipe, 93 feet 24'. |232 59

“ 224 “ 15". * 201 *06*

*“*822 “ 12". 534 30

32 branch pipe. 65 00

Gratings. 27 90

Drain tile, 378 feet. 27 36

Brick, 16,000. 176 00

*143Stone, 59£ yds.. $296 25

Earth wort, 370 yds. 77 70

Eock 200 “. 130 00

Back ditches. 20 00j

RECAPITULATION.

Grading:

Earth, 20,045 yds. cut. “ 20,045 “ fill. Eock, 442 “ cut... Material on hand. Extra haul.. Drainage. $3, 207 20 1,002 25 287 30 664 64 50 00 1,788' 61

1, 788 61

Total 7,000 00

III. Early in the progress of the work a question arose between the parties as to the rate at which the claimant should be paid for excavation and haul of materials for filling taken from points off the line of the road, and as to that the correspondence took place which is set forth in Exhibits D and E annexed to the petition [which become immaterial in the view taken of this case by the court].

IY. Part of the materials excavated the claimant was required to throw off the bank outside the road, and he was required to excavate and haul other material not on the line of the road for the purpose of filling, and the distance of such haul was less than would have been that of the material excavated on the line of the road and thrown away. The claimant insisted upon payment for the haul of material so taken outside of the road, as though it had been taken from the more distant places on the line of the road, where he had been required to throw away other material. He was settled with in accordance with the terms of the letter set forth in Exhibit E annexed to the petition. Near the close of the work a controversy arose as to whether or not the claimant had not already done work and furnished material equal to or in excess of the amount of the appropriation. The final measurement and inspection by the Government engineer are shown by his final certificate set forth' in finding II.

Y. After said settlement the claimant asked for a remeasurment, and the Secretary of War authorized it to be done. An engineer of the Quartermaster’s Department made such re-*144measurement, but did not change the result. A civil engineer employed by the claimant also made a measurement, which differed materially from those of the officers of the Quartermaster’s í)epartment, and was more favorable to the claimant than theirs were.

YI. It does not appear that the final certificate of May 24, 1879, upon which he was paid the balance of the appropriation and for which he receipted May 31,1879, was not substantially correct; nor that he has done more work or furnished more material than he has been paid for.

*Mr. W. W. 'Willoughby*for the claimant:

1. The United States having received the benefit of extra work should pay a fair price therefor, the contract prices being *prima facie*evidence of value. (1 Parsons on Cont., 542; *Clark’s Case,*95 U. S., 539, 2 Wall., 1; *Solomons Case,*19 Wall., 17.)

2. As by the terms of the act, the work was to be performed “ under the direction of the Secretary of War.” The want of a sufficient appropriation was not a bar to the claim. *(Fowler’s Case,*3 C. 01s. B., 43; *Grant’s Case,*5 0. 01s. B., 71; *Curtis’s Case, 2*ibid., 144; *Burchiel’s*Case, 4 ibid., 549; *Pratt’s Administrator’s*Case, 22 Wall., 496.)

3. The $7,000 appropriated was not intended to fully complete the work, and subsequent appropriations which had been made by Congress and not applied could be used to pay for such extra work. *(Cook*v. *Hamilton Co.,*5 MacLean, 612.)

4. The receipt claimed to be a settlement was, in fact, signed before the tabulated statement was attached; and besides, such statement showed upon its face that it was a mere payment of the $7,000 appropriated, not even following contract prices, and not intended as any compromise or settlement of *extra*work. *(Pratt’s Administrator’s*Case, 22 Wall., 496; 48 N. *Y.,*204.)

5. By the express terms of the receipt it was confined to the specific items stated in the account, and to services rendered under contract dated October 29,1878, and did not refer to any extra work; which distinguished this case from that of Chou-teau, 95 U. S. B., 61.

*145*Mr. A. D. BoMnson*(with whom was *Mr. Thomas Simons,*Assistant Attomey-G-eneral) for tbe defendants:

1. There is no pretense that Congress at the time of the passage of the act, or claimant at the time of his contract, had any idea but that the appropriation would complete the work, or that any other appropriation would be needed or made. Therefore, any contract for the payment of any more was void by whomsoever or whensoever made. The claimant, having been paid the full amount appropriated, cannot recover *under any circumstances.*

2. The contract itself, in addition to the law, provided that no work should be done or materials furnished beyond the amount of the appropriation.

3. The settlement made by final voucher of May 31, 1879, was a full and final settlement of the whole account. *(Mc-Cord’s (Chotean) Case,*9 O. Cls. R., 155; 95 U. S. R., 61; *Kirkam’s Case,*4 C. Cls. R., 225; *Gilman’’s Case,*8 ibid., 521; *Comstock’s Case,*9 ibid., 141.)

4. The order for a remeasurement did not open the previous settlement or deprive it of its *legal*binding force. It was merely a proceeding “to inform the conscience” of the Secretary of War, and subject to such action as he should take upon it.

5. It is not proved that claimant did more work and furnished more materials than he has received pay for.

OPINION.

Richardson, J.,

delivered the opinion of the court:

The claim set up in this case is for work done and materials furnished for constructing a road to . a national cemetery in Mississippi under the direction of the Secretary of War.

The only authority which the Secretary had for undertaking the work was a clause in the *Act of June*20, 1878, chap. 365 (20 Stat. L., 242), which appropriated the sum of seven thousand dollars “for the purpose of constructing a macadamized road from the city of Vicksburg, Mississippi, to the national cemetery near that city, to be expended under the direction of the Secretary of War, or so much of the above sum as may be necessary.^

*146It is provided in the Revised Statutes as follows :

> Sbc. 8732. No contract or purchase on behalf of the United States shall be made unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.

This restriction both parties well understood, as appears from the fact that in their written contract it was specified that—

> The work to be done and the materials to be furnished under this agreement *shall'lie restricted to the amount allowed hy Congress for this purpose.*

And again, that—

> Upon inspection and report of materials furnished or work done during the performance of this contract, payment in part may be made to the contractor ; said payment in no case to exceed eighty j>or cent, of the estimated value of work done and materials furnished exeex>t whenever the amount of work done and furnished *shall he of the aggregate value of seven thousand dollars, then payment may he made therefor in full.*

To avoid these provisions of the contract and the statute the claimant alleges that he did extra work and furnished extra materials, which the defendants have accepted and used, and so an implied contract is raised to pay him therefor. But the extra work and materials for which he claims payment, according to his own allegations, are not other and different from those specified in the contract, but are, he alleges, of greater value than the limit of payment which the law fixed and to which he agreed. Had he proved the fact so to be, we do not think it would raise an implied promise to pay for such work, in view of the stringent restriction of the statute. To hold otherwise would be completely to nullify the statute and let down the bar set up by Congress to prevent executive officers from involving the Government in expenditures beyond those contemplated and authorized by the law-making power.

The liability in this case rests wholly upon the appropriation, and is different from those cases which frequently arise wherein Congress passes an act authorizing officers to construct a building or do other specified work, without restriction as to cost, and then makes an appropriation inadequate to do the whole of it or makes none at all.

In such cases the authority to cause the work to be done and to make contracts therefor is complete and unrestricted. All work, therefore, done under the direction of the officers thus charged with the execution of the law creates a liability on the *147part of tbe Government to pay for it, and if a written contract be made and work be done in excess of tbe contract-specifications, or entirely outside of or in addition to tbe written contract, and such work inures to tbe benefit of tbe United States, in tbe execution of tbe law, or is accepted by the proper public officers, a promise to pay its reasonable value is implied and enforced.

We have frequently held that where there is a liability on the part of tbe Government, it is not avoided by the omission on tbe part of Congress to provide the money with which to discharge it. *(Collins’s Case,*15 C. Cls. R., 35.)

But where an alleged liability rests wholly upon the authority of an appropriation they must stand and fall together, so that when the latter is exhausted the former is at an end, tó be revived, if at all, only by subsequent legislation by Congress. *(McCullom*v. *United States,*17 C. Cls. R., 103; *Trenton Co.*v. *United States,*12 ibid., 157.)

There are two other fatal defects in the claimant’s case. During the progress of the work, and especially near its close, controversies grew up involving the same claims which are now set up, and were considered by the parties. On the 24th of May, 1S79, an engineer of the Quartermaster’s Department, after inspection, made a certificate of work done and materials furnished, which appears to cover the whole ground, according to his estimate, and to present a full and final settlement. The certificate, after allowing for previous payments, showed a balance due the claimant of $2,672, the exact unexpended balance of the appropriation. This balance was paid to the claimant, and he receipted for the same “in full of the above account.” In our opinion this was a mutual settlement of a disputed account and was an accord and satisfaction. *(Ramsdell’s Case,*2 C. Cls. R., 508; *Livingston’s Case,*3 ibid., 131; *Martin’s Case,*5 ibid., 215, and 9 ibid., 126; *Sweeney’s Case,*5 ibid., 285, and 17 Wall., 75, and 8 C. Cls. R., 134; *Clyde’s Case,*13 Wall., 35, 38, and 7 C. Cls. R., 262.)

After this settlement the Secretary of War, at the claimant’s request, authorized a remeasurement of the work, and it was accordingly made by an Army engineer. The result at which he arrived was in accordance with the previous settlement, without material change. But a civil engineer employed by the claimant increased the account of work done and materials *148furnished by the claimant much beyond that of the Government officials. The testimony of these officers, and of other persons, and of the claimant, has failed to prove to the satisfaction of the court, as the sixth finding shows, that the final certificate, upon which he was paid the balance of the appropriation, was not substantially correct, or that he has done more work or furnished more materials than he has been paid for.

The claimant’s petition is therefore dismissed.