United States v. Robert Tillotson. After Hopkins's death, Hawkins became the lawful assignee of his contract; and after the execution by Hawkins of the before-mentioned bond, he was always admitted and acknowledged by the plaintiffs, or those acting in their behalf, as the lawful assignee, or substitute, of Hopkins, in relation to said contract, and the performance thereof, on his part. Hawkins, after the assignment to him of Hopkins's contract, entered upon the performance thereof, under the superintendence of an engineer, and received several sums of money from the plaintiffs, as appeared by his receipts and account exemplified from the Treasury Department. In March, 1821, he died, without having completed the fort, and before the time for its completion had expired, having performed no work, nor done any thing else in regard to the erection of the fort, except to the amount of 3,304 dollars 46 cents, for which he was credited in his said account, in different items. Neither Hopkins nor Hawkins ever accounted for the monies received by them, except by the account before referred to. On the 7th of June, 1820, while Hawkins was proceeding in the execution of the contract, Colonel James Gadsden, then acting as the agent for fortifications at Mobile Point, and thereto duly authorized by the War Department, entered into a new agreement, or contract, with him, touching the contract with Hopkins, and the erection of the fort, which new contract was in the following words: "Memorandum of an Agreement entered into and concluded this seventh day of June, in the year of our Lord one thousand eight hundred and twenty, at Mobile Point, in the state of Alabama, by and between Captain James Gadsden, of the Engineer Corps of the United States, in pursuance of instructions of the Secretary of the War Department of the United States, on the part of the United States, of the first United States v. Robert Tillotson. part, and Samuel Hawkins, of the second part, witnesseth: That whereas the late Benjamin W. Hopkins did, on the thirteenth day of May, in the year of our Lord one thousand eight hundred and eighteen, make and enter into an agreement or contract, with Joseph G. Swift, agent, and acting on behalf of the United States, to erect, build, and complete, a fortification for the United States, at Mobile Point, which said fortification was principally, as to the revetment walls, to be built of brick; and for the erecting, building, and completion of which said fortification, the said Benjamin W. Hopkins was to receive eleven dollars per cubic yard for the mason work aforesaid, as will more fully appear by the aforesaid contract or agreement, executed by Joseph G. Swift and Benjamin W. Hopkins, as aforesaid, and now on file in the department of the Secretary of War. And whereas the said Benjamin W. Hopkins died some time in the month of August, eighteen hundred and nineteen; and whereas Roswell Hopkins was duly and legally empowered, authorized, constituted, and ap pointed administrator of all and singular the rights and credits, goods and chattels, which were of Benjamin W. Hopkins, deceased, at the time of his decease; and whereas the said Roswell Hopkins did, on the twentieth day of November, eighteen hundred and nineteen, and on the second day of May, eighteen hundred and twenty, being thereto as administrator legally authorized, make over, assign, and convey, the said agreement or contract, entered into and executed as aforesaid, by Joseph G. Swift and Benjamin W. Hopkins, for a valuable consideration, to Samuel Hawkins, as will more fully appear, reference being had to the said assignments or conveyances, made and executed as aforesaid, by the said Roswell Hopkins, as administrator as aforesaid, to the said Samuel Hawkins; and whereas the said Samuel Hawkins, together with Robert Tillotson, and Nicholas Gouverneur, executed on the second of November, eighteen hundred and nineteen, a United States v. Robert Tillotson. bond to the United States of America, in the sum of one hundred and fifty thousand dollars, for the true and faithful performance, by Samuel Hawkins, of all the covenants, undertakings, and engagements, entered into by Benjamin W. Hopkins, in the contract or agreement made by the said Benjamin W. Hopkins with Joseph G. Swift, as aforesaid; and whereas the party of the first part has received authority to substitute for the building, erecting, and constructing the revetment walls of the said fortification at Mobile Point, in the place of brick, a certain composition called tapia; the said tapia to be substituted for brick in such portions of the walls aforesaid, as shall be designated by the superintending engineer of fortifications at Mobile Point, which said tapia is a species of artificial stone, formed by a proper union, in equal proportions, of sharp sand, fresh lime, and oyster shells, with water sufficient to produce adhesion, provided the said Samuel Hawkins would consent to receive ten dollars per cubic yard, in lieu of the eleven dollars contracted to be paid to the said Benjamin W. Hopkins for each cubic yard of masonry. Now, therefore, it is agreed by the party of the first part and the said party of the second part, that such portions of the revetment, and other walls, of the said fortification to be erected at Mobile Point, as the engineer may designate, shall be constructed of tapia; the oyster shells to be broken up, and the composition, running it in the frames, and every necessary operation in the making and placing the said tapia in the revetment walls, is to be made, done, and executed, to the complete satisfaction of the superintending engineer of the fortifications to be erected at Mobile Point. "The said party of the second part hereby relinquishes to the United States of America, all claims which he now has, or hereafter may have, in consequence of the assignment aforesaid by Roswell Hopkins, as administrator as aforesaid of the agreement aforesaid, between Joseph G. Swift and United States v. Robert Tillotson. Benjamin W. Hopkins, for any lost time, as damages sustained by the said Benjamin W. Hopkins, in consequence of the United States of America neglecting to have an agent at Mobile Point in the fall of eighteen hundred and eighteen, to designate the site of the fortification to be erected at Mobile Point, or instruct the said Benjamin W. Hopkins what he, the said Benjamin, was to do. The said party of the second part hereby agrees, that the following shall be the construction of that part of the contract, entered into by Joseph G. Swift and Benjamin W. Hopkins, which relates to the excavation, viz. The eighty-three and eight tenths cents allowed for each cubic yard of earth excavated and removed, applies to each cubic yard composing the remblais in its finished state, embracing the several stages of excavation, removing, putting up, ramming, sodding, dressing, &c. and every thing necessary to complete the remblais; and that the monthly receipts for labour performed, in reference to this part of the contract, will be by the relays, or for each cubic yard of earth excavated and removed, in proportion to the value the same may bear to its finished state. And it is further agreed between the contracting party of the first part and the said party of the second part, with a view of equalizing the advantages and disadvantages arising from inequalities on the earth's surface at the site of the fort to be erected at Mobile Point, that the quantity of earth composing the remblais in its finished state, on which the said party of the second part will be entitled to eighty-three and eight-tenths cents per cubic yard, agreeable to the stipulations of the contract aforesaid, will be ascertained by measuring the cubical contents of the earth, dug, formed, raised, removed, rammed, and sodded above the level of the parade, now permanently designated and fixed, Remblais, the necessary earth brought on the natural ground, for throwing up a rampart, parapet, glacis, and other earth-work. United States v. Robert Tillotson. by the upper surface of a small brick monument, enclosing and supporting a pine stake, marked "centre polygon ;" the said stake being the centre of the fort. And the said party of the second part, hereby agrees to receive ten dollars per cubic yard for every cubic yard which shall be built of tapia, instead of the eleven dollars per cubic yard, agreed to be paid for mason or brick work, as mentioned in the agreement between Joseph G. Swift and Benjamin W. Hopkins. And it is further agreed by both parties aforesaid, that this agreement, or contract, is to have no effect on any part, or construction of any part of the contract, entered into between Joseph G. Swift and Benjamin W. Hopkins as aforesaid, except as in this agreement mentioned. In witness whereof, we have hereunto set our hands and seals, in presence of Horace C. Story, Lieut. Engineers, E. J. Lambert, Lieut. 8th Reg. Infan. (Signed) Samuel Hawkins, James Gadsden, Capt. of Engineers. Certified to be a correct copy from the original. (Signed) E. J. Lambert, Lieut.. Sth Infantry, attached to Engineers. A true copy." This last contract was entered into by the parties without the knowledge, privity, or consent of the defendants. As soon as it was executed, however, it was transmitted to the War Department, and a copy was immediately enclosed to the defendants in a letter from the Secretary of War, dated the 10th of July, 1820, in which they were requested to declare their assent or dissent to the contract, in order that it might be determined whether to ratify or reject it. This letter was sent by mail, but there was no other proof of its receipt by the defendants. No answer to it was ever received at the War Department, in consequence of which the contract was not ratified by the Secretary of War; nor was it ever ratified or acted upon, except so far as it appeared to have been from the transcripts offered in evidence from the War Department, |