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United States v. Robert Tillotson

It appeared that Hopkins, in his lifetime, made a claim on the government for expenses and loss of time, which he alleged that he had incurred by the failure of an engineer to attend and point out the site for the fort, as stipulated in the contract.

Congress, on the 3d of March, 1821, passed “an act for making appropriations for the military service of the United States for the year one thousand eight hundred and twenty-one,” hy which there was appropriated for fortifications 200,000 dollars, in addition to an unexpended balance of 100,000 dollars, to be applied to certain fortifications in the proportions therein designated, among which was mentioned, “ Mobile Point, thirty thousand dollars," and no more than this sum could have been advanced by the War Department to Hawkins, had more been demanded. But it appeared from an estimate by the Engineer Department that 690,000 dollars would be required to complete the fort.

The administrator of Hawkins on the 18th of May, 1821, addressed a letter to the superintendent of the works at Mobile Point, expressing his regret that an assignee or agent appointed by Hawkins to perform the contract, had not been recognised, and offering himself to go on with the work. To this letter the superintendent replied, that he could not recognise the administrator nor any one else as the successor of Hawkins, without instructions from the War Department.

In the account of Hawkins with the Treasury Department, a transcript of which was produced, he was charged with 90,907 dollars 29 cents for advances to Hopkins. It did not appear from the account at what times or for what purposes such advances had been made. But transcripts of various documents were also produced, from which it appeared that a greater part of the advances were for the passage expenses of men, pay to mechanics and labourers, provisions, clothing,

United States v. Robert Tillotson.

and transportation of men, construction of houses for the men, making brick-yards, pay for horses, &c. In most cases where there appeared to have been any materials furnished, they were so blended in the vouchers with other things, that it was impossible to separate them. Those advances which appeared to have been wholly for materials, amounted to only a few thousand dollars. Large advances, but not for work done, were made on account, without any evidence that any thing had been furnished. The advances for materials, where there was evidence that they were for materials, were principally made for materials which it appeared had not been delivered at or near Mobile Point. In June, 1819, Hopkins performed work to the amount of 5902 dollars 3 cents, for which he was regularly paid at the end of the month. This was the only work done by him, and the only advance made to him specifically for work. It did not appear that invoices of the materials had been furnished, except in a very few instances.

Hawkins was also charged in said account, on the 1st of January, 1820, with 10,000 dollars, and on the sth of September, 1820, with 8,643 dollars 37 cents, and on the 3d of May, 1821, with 2,783 dollars 60 cents, advanced him, with. out its being expressed for what such advances were made. It however appeared from the vouchers, that 15,000 dollars was advanced before any materials were furnished by him. On the 1st of November, 1820, he was charged with 4,092 dollars 57 cents, for that amount of provisions furnished him by the commissary. The whole amount of materials furnished by him was between five and six thousand dollars.

He was credited in said account with the work done by Hopkins, amounting to 5,902 dollars 3 cents, and with work done by himself to the amount of 3,304 dollars 46 cents. Of this, 135 dollars was for work done prior to June, 1820, and the residue for work done during and subsequently to that month, and estimated and charged according to the new contract entered into hy Hawkins and Gadsden.

United States v. Robert Tillotson.

The balance of the account due the United States was 107,220 dollars 34 cents.

D. B. Oaden for the plaintiffs.

T. A. EMMET and C. G. HAINES for the defendants, contended .

First. That the sureties were discharged by the making of the new contract between Gadsden and Hawkins.a

Second. That the death of Hawkins exonerated the suretjes. b

Third. That the performance of the contract was prevented by the plaintiffs : lst, by their refusal to suffer the administrator of Hawkins to proceed to complete the work; and, 2d, by the want of a sufficient appropriation by Congress. · Fourth. That the sureties were not liable for the advances made, as they were not made agreeably to the contract.d

Fifth. That Hawkins was not bound to account to the War but the Treasury Department.

a 2 Bro. Ch. 582.; 2 Ves. jr. 542.; 2 Term Rep. 256.; 2 John. Ch.560.; 10 John. Rep. 182. ; 2 Caines' Cas, in Er. 49.; 3 Binney's Rep. 523. ; 3 Madd. Rep. 21. ; 10 John, Rep. 587. 595. ; 2 Dessassure's Rep. 230. 339. 604.; 17 Johp. Rep. 384; 3 Price's Exch. Rep. 214. 218.

0 1 Dall. Rep. 210.; 2 Coke's lost. 206. a.; 1 Bac. Abr. 432. (Tit. Cont. letter Q, 11.); 2 Mod, 200.; 12 Mod. 381; 1 Salk. 170.; 2 Atk. 18.; 3 Bur. 1637.; 2 Call. 286.; 7 Mod. 338.; Allyn's Rep. 26..

c 17 John. Rep. 364.; 19 id. 534.; 2 Coke's Inst. 206. a.; 3 Com. Dig. 92, 93. " Contract."; Cro. Eliz. 479.; 3 Com. Dig. 271.“Covenant." Letter F.; Roll. Ab. 445.; 1 Term Rep. 638; 2 Doug. 694.; Id. 688. n.; 10 East, 536; 2 Cranch. 345.; 1 Salk. Rep. 198.; 3 Bos. & Pul. 301.; 10 East, 536.

d 2 Term Rep. 366. 370.; 10 John. Rep. 180.; 2 Caines' Cas. Er. 49.58. 65. e Act of March 3, 1817. 20 sec. (6 Laws U. S. 199.)

United States v. Robert Tillotson.

THOMPSON, J. The rules and principles of law by which the rights of the parties in this case are to be determined, seem not so much to have been drawn in question upon the argument, as the correct application of those principles to the contracts and circumstances embraced in the

case.

The defendants are prosecuted as the sureties of Samuel Hawkins, upon a bond duly executed by them, bearing date the second day of November, in the year one thousand eight hundred and nineteen, conditioned for the faithful performance by Hawkins of a contract entered into by him with the proper department of the government for building a fortification at Mobile Point, in the state of Alabama.

It is contended on the part of the defendants, that they are exonerated from all responsibility as sureties, by reason of a subsequent contract entered into with Hawkins, varying essentially as is alleged, the stipulations in the contract, for the performance of which the defendants became sureties. Other grounds were raised and urged on the argument, upon which the sureties claim to have been exonerated from all responsibility, but the one principally relied upon, is the second contract I have referred to. This contract was entered into without the knowledge or consent of the sureties, and nothing was afterwards done by them, in any manner to ratify or confirm the same.

The general principles of law applicable to this class of cases, are too well settled and understood, to require authorities or illustration in their support. Sureties cannot be made responsible beyond the scope of their engagement. Any agreement between the creditor and principal, which varies essentially the terms of the contract, without the consent of the sureties, will exonerate them from their responsibility. Any new debt incurred, or the demand enlarged, or any act.

United States v Robert Tillotson.

done to the injury and prejudice of the surety will discharge him from all liability. These are undeniable and controlling rules, and universally admitted, both in Courts of Law and Equity. And the only inquiry before us, 's as to their application to the case under consideration.

The hond executed by the defendants, and upon which this suit is brought, contains several recitals stating substantially, that Benjamin W. Hopkins, on the 13th of May, 1818, entered into a contract with Joseph G. Swist, chief engineer of the United States, to construct, or cause to be constructed, a fort, at such place in the vicinity of Mobile Point in the state of Alabama, as the United States by any engineer might direct, and refers to that contract for more particular information respecting it. That Hopkins has since died, and that his administrator had duly assigned and transferred to Samuel Hawkins, the said contract, with all its conditions, stipulations, and advantages, thereunto in any wise appertaining. And it is admitted in this case, that Hawkins was acknowledged by the authorized agents of the United States to be the lawful assignee of the contract, and that he entered upon the performance and execution thereof, under the superintendence and direction of the agents of the United States. And on the 7th day of June, 1820, the second contract was entered into between Col. James Gadsden, then acting as the agent for fortifications at Mobile Point, and Samuel Hawkins, the legal effect and operation of which, as is contended, is to discharge the sureties from all responsibility. Such are the general outlines of the case ; and I now proceed to notice more particularly the points that have been drawn into discussion.

The first inquiry which seems naturally to present itself is, the effect of the new contract upon the one for the performance of which the defendants became sureties. It is objected

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