Chouteau v. United States

Mr. Justice Miller, after stating the case, delivered the opinion of the court. It appears from the findings of the Cpurt of Claims that the proper officer of the Navy Department estimated the same extra work and material at $116,111, ydiick that court now estimates at $172,273.55; and that McCprd accepted this sum, if the voucher is binding on him, as the full value of his labor and materials, and acknowledged it to be payment in full. His name -is signed to this receipt by Gilman, Son & Co., his attorneys ; and it is insisted by counsel chat they could only bind him for the sum received, and not for [ts acceptance as full compensation. It is said in argument that they were bankers in New York, and had no other power than to receipt for such sums as might be paid them. . Two powers of attorney are produced from McCord to Gil-man, Son & Co., — one of the date of Nov. 24,1863, and the other Jan. 2, 1864. These are very full, and especially the latter, -it makes them his true and lawful attorneys, “ to sue for, recover, and receive all sums of money, debts, goods, wares, and *67 other demands whatsoever,” and especially payments that are or will be due on his contract for building the “ Etlah; ” gives “ them full power in and about the premises to have, use, and take all lawful ways and means in his name for the purposes aforesaid, and to make such acquittances, or other sufficient discharges, for me and in my name, and generally to do all other acts necessary and lawful to be done in and about the premises.” We are of .opinion that this authorized Gilman, Son & Co. to accept payment of a voucher which declared on its face that it was the last, the full payment for the extra work- done on the vessel, and thereby bind their principal to such acceptance. But if we could be mistaken in this, the reasonable presumption is that Gilman, Son & Co. had nothing to do with obtaining this voucher from the Navy Department, but that it was so obtained by McCord himself, and forwarded by him to Gilman, Son & Co. for collection of the paymaster at New York. This is quite consistent with the fact that they were mere bankers. It is certainly fair-to suppose that M'cCord presented his own statement of the account to the navy officers, and the final approval of the chief of the bureau of construction at Washington is dated April 26, 1866. The payment as indorsed on that same voucher by the paymaster at New York to Gilman, Son & Co. is dated May 11, 1866, which is just about a reasonable time for the voucher to have been received from Washington by McCord at St. Louis, and by him forwarded to Gilman, Son & Co. at New York for collection. If this be the true history of the voucher, McCord is bound by his own actions; for the voucher, while in his hands, had on its face- the clearest statement that the sum therein allowed was “the full and final payment on all extras, and in full for all claims and demands for that work,” and if he forwarded it in this shape -to his bankers to get the money on it, without protest, he must be bound by that statement in the voucher. The Court of Claims finds that the delay in completing the vessel was caused by the changes ordered by the United States, and that, owing to the rise in the prices of the laboiVand materials on the work done under, the original contract, and without reference to the changes, the cost of that work was increased to the buil lev $118,283.20. *68 The appellants asserted a' claim for this amount also, which the court refused. It is very, clear that both parties contemplated the probability that the work would not be completed at the precise period of eight months from the date of the .contract. They also pontemplated that changes would be made in the construction of the battery. They made such provision for these mat-' teps as they deemed necessary for the protection of each party. Eop the reasonable cost and .expenses of the changes made in the construction, payment was to be made; but for any increase-in the cost of the work not changed, no provision was made. There was a provision for delay, by which the contractor was to submit to pay $4,500 for every month of that delay. ' This provision, the only one on that subject, if strictly enforced,might have made- him a still greater loser; but it seems to have been waived. But we áre very ■ clear that without any such provision he must be held to have taken the risk of the prices of the labor and materials which he ivas bound to furnish, as every other contractor does who agrees to-do a specified job ■at a fixed price. ' It is one of the elements which he takes into account when he makes his bargain, and he cannot expect the other party to ’ guarantee him against unfavorable changes in those prices. ■ Judgment affirmed.