United States v. Robert Tillotson.

(reference being thereunto had,) may more fully and at large appear. And whereas, also, the said Benjamin W. Hopkins. hath lately died intestate, without having completed said contract, by reason whereof the obligation of performing the said contract, on the part of the said Benjamin W. Hopkins, deceased, has devolved upon the person or persons who may be authorized to administer the personal estate of the said intestate and whereas further, Roswell Hopkins, father of the said Benjamin W. Hopkins, has taken upon himself the burthen of administering the personal estate of the said Benjamin W. Hopkins, having first been duly appointed administrator thereof. And whereas the said Roswell Hopkins, administrator as aforesaid, hath, by an instrument in writing, under his hand and seal, dated the 27th day of October, 1819, obligated himself legally and fully to assign, transfer, and set over to Samuel Hawkins, of the city of New-York, the said contract, together with all its conditions, stipulations, and advantages thereunto in any wise appertaining; and also all the benefits arising and to arise from the contracts entered into and made by the said Benjamin W. Hopkins, in his lifetime, with various individuals for work and labour, and for furnishing materials, &c. in and about the construction of the said. fort, together with all and singular the brick-yards, work-shops, sheds, lumber, and buildings of every description, tools and implements, provisions, mules, slaves, storehouses, horses, carriages, boats, vessels, iron, goods, and merchandises, and all other things provided by the said Benjamin W. Hopkins for the fulfilment of the contract so made by him as aforesaid. Now the condition of this obligation is such, that if the said Samuel Hawkins shall well and truly perform, or cause to be performed, all the covenants, undertakings, and engagements contained in the said contract so made as aforesaid by the said Benjamin W. Hopkins, in his lifetime, for the construction of the said fort, which remains to be fulfilled, and shall

United States v Robert Tillotson.

also well and faithfully account to the War Department of the said United States, for all sums of money heretofore advanced by the said United States, under and in virtue of the last mentioned contract, and also for all such further advances as may hereafter be made to facilitate the execution of the said contract; then this obligation to be void, otherwise to remain in full force and effect."

The contract referred to in the condition of the bond as made between the War Department and Benjamin W. Hopkins, was as follows:

"This agreement, or contract, made and concluded this 13th day of May, 1818, by and between Joseph G. Swift, chief engineer, on the part of the War Department of the United States, on the one part, and Benjamin W. Hopkins, of the state of Vermont, of the other part, witnesseth-That the said Benjamin W. Hopkins, will, for the consideration hereinafter stated, well and truly construct, or cause to be so constructed, at such place, in the vicinity of Mobile Point, Alabama, as the United States, by any engineer may direct, a fort, to be constructed of such walls, ditches, embankments, buildings, parts, and dimensions, as the said engineer may, from time to time, prescribe; and the said Benjamin W. Hopkins will well and truly furnish all materials of such quality, and all artisans, labourers, and workmanship, requisite for the construction of the fort aforesaid, as may be prescribed by the said engineer, and the whole workmanship and materials to be executed and found by the said Benjamin W. Hopkins. And the said Benjamin W. Hopkins will grout, or cause to be grouted, all the walls of the said fort. And that the construction of the said fort shall be commenced by the said Benjamin W. Hopkins on or before the first day of November, 1818; and that the said fort shall be completed, or caused to be completed, by him, the

United States v. Robert Tillotson.

said Benjamin W. Hopkins, by the first day of July, 1821. And the said War Department, by Joseph G. Swift aforesaid, will well and truly pay, or cause to be paid, unto him, the said Benjamin W Hopkins, for the workmanship and materials aforesaid, as follows: That is to say-for every cubic yard of earth excavated and removed as aforesaid, eighty-three cents and eight tenths of a cent; for every cubic yard of brick masonry, eleven dollars; for all carpentry where joists or scantling may be used of dimensions not exceeding in measure ten by ten inches breadth and thickness, sixty-two cents and one half of a cent per yard, running measure; for all carpentry where joists of dimensions smaller than six inches by eight inches breadth and thickness may be used, forty-four cents per yard running measure; for all flooring with two inch stuff, two dollars and twenty-five cents per square yard; for all flooring with three inch staff, three dollars and fifty cents per square yard; for all double doors, five dollars and fifty cents per square yard; for all windows, including frames, shutters, sash and glazing, five dollars and fifty cents per square yard; for all bunks and ceilings, one dollar and twenty-five cents per square yard; for all wainscoting, thirty-seven. and a half cents per running yard; for all iron work, twentyfive cents per pound. And the said Joseph G. Swift, on the part of the United States as aforesaid, will pay or cause to be paid unto him, the said Benjamin W. Hopkins, the amount of value of every cargo of materials, which the engineer aforesaid may pronounce to be delivered of proper quality, at or near the said Mobile Point, for the construction of the fort as aforesaid, the said value and amount to be considered in part payment of the work aforesaid; provided always, that the said Benjamin W. Hopkins shall and do deliver to the said engineer the invoice of the materials so delivered as aforesaid.. And the said Joseph G. Swift, on the part of the United States as aforesaid, shall and will pay, or cause to be paid,

United States v. Robert Tillotson.

unto the said Benjamin W. Hopkins the sum of twelve - thousand and five hundred dollars, if demanded, at the close of every month, after the work shall have been commenced; provided always, that the said work so done at the close of every month as aforesaid shall amount to twelve thousand five hundred dollars, exclusive of the materials used in the construction of the said work. It is clearly understood by this agreement or contract, that the work shall be executed agreeably to the orders and to the satisfaction of the said engineer or engineers, whom the government may appoint to direct or superintend the works as aforesaid. Also it is understood by the parties hereunto, that all walls of masonry shall be estimated in measurement, by their actual length, breadth. and thickness. This agreement or contract shall be considered binding upon both parties hereunto subscribing, as soon as the Secretary of War shall have signified in writing hereupon, his approval of the securities given for the faithful execution of this agreement. It is also understood, that at least thirty thousand cubical yards of masonry will be constructed, and at least one hundred thousand cubical yards of earth will be excavated and removed, in constructing the fort as aforesaid. In witness whereof, the parties have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in the presence of C. Vanderventer, Geo. Blaney. (Signed) J. G. Swift, Ch. Engineer. B. W. Hopkins."

The following breaches of the condition of the bond were assigned in the declaration.

First. That Hawkins did not perform, or cause to be performed, all the covenants made by Hopkins in said contract, which remained to be fulfilled at the making of the bond, inasmuch as Hopkins had agreed that the fort should be completed by the 1st of July, 1821, which was not done, although an engineer was ready at the place to give the requisite directions.

United States v. Robert Tillotson.

Secondly. That the plaintiffs, before the execution of the bond, had paid to Hopkins, under the contract, 90,907 dollars 29 cents, of which Hawkins had notice, but failed to account for it to the War Department, except as to 5,902 dollars 3

cents.

Thirdly. That the plaintiffs, after the execution of the bond, advanced, at different times, several sums of money to Hawkins to facilitate the execution of said contract; yet that Hawkins had failed to account therefor to the War Department, except as to 3,304 dollars 46 cents. Of all which matters the defendants had notice.

The defendants pleaded the general issue, accompanied with notice of special matter, to be given in evidence at the trial,

The cause was not tried; but by arrangement, a bill of exceptions was taken by the plaintiffs to a supposed charge of the Court, directing the jury to find for the defendants, in the same manner as if a trial had actually taken place. In order to obtain the opinion of this Court upon the points of law arising on the bill of exceptions, a case was agreed upon containing the following facts:

Benjamin W. Hopkins began, under the superintendence and direction of an engineer, as provided for by his contract, to construct a fort on Mobile Point, at the place for that purpose designated, according to said contract, and received from the plaintiffs, through their agents, at different times, the sum of 90,907 dollars 29 cents, as appeared from exemplifications of his receipts in the Treasury Department, and a transcript of Hawkins's account as settled at the Treasury. In this account he was credited with work which Hopkins had performed to the amount of 5,902 dollars 3 cents. On the 9th of August, 1819, Hopkins died, without having done any work on the fort, except that for which credit was so given.