United States v. Derringer

The plaintiffs to support the issue on their part joined offered evidence, tending to prove that on the 16th day of April, 1845, one Benjamin B. French was clerk, duly elected and qualified as clerk of the house of representá-tives of the United States, and so continued to be until the 1st day of November following; and long after that, on the day and year first aforesaid, the said French, as such clerk, caused to be published in the National Intel-ligencer and other newspapers printed and published in the city of Washington, in the District of Columbia, a notice in the words following: (Prbut the same.) The plaintiffs then offered evidence tending to prove that proposals for furnishing said wood were accordingly made by sundry bidders; that the lowest bid was made by the defendant, and at the rate of ¡$5.49,per cord; that on-day of May, 1845, the said French, as such clerk, accepted the defendant’s said bid; that on the 8th of May next following, the defendant and the said French, as such clerk, entered into a contract for the delivery of said wood, and on the same day the defendant executed his bond for the delivery of said wood, which said contract and bond were read in evidence to the jury and are in words and figures following: (Prout the same.) The plaintiffs then offered the evidence of B. B. French, tending to prove that on or before the 1st day of September, 1845, the day fixed by the condition of said bond for the delivery of said wood, the defendant called on said French, represented that he was not prepared to deliver the said wood on that day, and solicited an extension of the time for delivery throughout said month of September; that said extension was granted by said French as such clerk, but that in all other respects the original contract remained unaltered; that said wood, or any part thereof, was not delivered nor offered to be delivered during said month of September, nor at any other time; that on the 1st day of October next following, one I. C. Millard, a clerk in the office of said French, by authority of said French, addressed a letter to the defendant in the words and figures following: (Prout said letter.) This letter of October 1, 1845, was given in evidence by plaintiffs before the parol evidence as to extension of time, and the defendant objected to that part of the parol evidence of French which tended, to prove that the extension of time for delivery was confined to the month of September, to the exclusion of the first day of October. The court admitted the evidence subject to the further consideration of the court.

The plaintiffs then offered evidence to prove that on or before said 1st day of October, 1845, and thereafter, the defendant resided in Georgetown. District of Columbia; that the office hours of said French, clerk as. aforesaid, ended at 3 o’clock p. m., and it was the usage of his office for letters written there to be sent to the post office after 3 o’clock in the afternoon; that the defendant on or before the 1st day of October, 1845, kept a wood and coal yard in the city of Washington, but had no wood; that shortly before the 2d day of October, 1845, the said French addressed *838letters to the two bidders. successively, who were next lowest to the defendant, apprising them on information which said French had received of the probability that the defendant would fail to comply with his contract, and enquiring whether they would be willing to furnish the wood; that receiving no answer from either of the two next lowest of them, or an answer declining, he agreed with the third for the delivery, sawing and piling away of the wood, as provided by the contract, at the price of $6.50 per cord; that this was a fair market price on the 2d of October, 1845, of hickory wood of the quality called for by the contract, delivered, sawed, and piled away as thereinrequired; that the new contractor was industriously occupied between three and four weeks delivering, sawing and piling away said 100 cords of hickory wood, which was conveyed in numerous carts, some of them being hired by the contractor, and that for them he paid at the rate of $1 a cord; that with the aid of all the carts in the city of Washington and Georgetown, it would have been impossible for 100 cords of hickory wood to be conveyed, sawed and piled away in the vaults of the house, of representatives iñ a single day. The plaintiffs further offered in evidence the rules of the house of representatives, existing and in force when said contract was made, being the rules printed by order of said house, in the year 1837, by Thomas Allen, printer thereto, and the plaintiffs then offered evidence tending to prove that in the year 1833, the said French was first employed in the clerk’s office of the house of representatives, and that there was then existing and in force a usage (established long before the passage of the act of congress of February 23. 1815 (3 Stat. 212], requiring the clerk of the house of representatives, to give bond and security for the faithful application and disbursement of the contingent fund), under which usage it was the duty of the clerk to have- charge of the contingent fund annually appropriated by congress for the use of said house; to provide and pay for out of it fuel and other necessaries for the use of said house, and to make contracts for their purchase and delivery; that claims for articles furnished under such contracts, after being passed by the committee of accounts, were paid by the clerk, and sub- . sequently allowed at the treasury of the United States; that when the contingent fund was exhausted congress made appropriation for the deficiency, and such claims as the first appropriation had proved insufficient to meet were, as aforesaid, paid out of the appropriations for deficiency, and allowed at the treasury; that before the passage of the act of congress of 26th of August, 1842 [5 Stat. 534], requiring printing and stationery to be advertised for, it was the usage for the clerk to make purchases and contracts without advertising for proposals, but that since the passage of that law, the usage has been ; ! : for the clerk to advertise for proposals to furnish fuel, in the manner prescribed by that law, in regard to stationery and printing; and that in view of the possibility of the contingent fund proving insufficient for its objects, a clause was generally inserted in the contracts, to the effect that the articles (after being audited by the committee of accounts) should be paid for “as soon as an appropriation should be made therefor,” which clause was inserted in. the contract with the defendant, although by the act of congress of March 3, 1845 [5 Stat. 752], making appropriations for the civil and diplomatic expenses of the government, for the year ending June 30, 1846, and for other purposes, $100,000 were appropriated for stationery, fuel, printing and all other contingent expenses of the house of representatives; and although no deficiency in said fund so appropriated was apprehended. And the plaintiffs offered evidence tending to prove that in point of fact no such deficiency did occur, and that the wood furnished under the defendant’s contract by the substituted contractor was paid for out of said appropriation.

1 The defendant then offered evidence tending to prove that in the months of September and October, 1845, the best hickory wood in Georgetown was sold and delivered in Georgetown at $5.50 per cord, but that this price was exclusive of the cost of sawing and piling away

Instructions:

' ; ; Whereupon the defendant’s counsel prayed the court to instruct the jury as follows: That if they believe from the evidence the said B. B. French had no authority in law to contract for and on behalf of the United States, and to bind the United States by the said contract in the declaration ihentioned, and that the said contract not binding on the said United States did not bind said defendant, he is entitled to a verdict in this suit, which was given.

THE COURT gave also the following instructions:

1. That if the jury find from the evidence that by mutual agreement between B. B. French, clerk of the house of representatives, and the defendant, the time for the delivery of the wood in the declaration mentioned was extended and enlarged for the 1st day of October, 1845, then the defendant has verified and maintained his second, third, fourth, and’ sixth pleas, and the jury should find for the defendant.

2. That if the jury shall find from the evidence the letter bearing date October 1, 1845, to be genuine letter issued from the office of the clerk of the house of representatives, by the authority of B. B. French, the clerk, and delivered to the defendant on the same day, then the law of the case is for the defendant, and the jury should find for him.

To which giving of said instructions the plaintiffs, by their counsel, except.

*839The above instructions were concurred In by

Verdict for defendant.

Motion for new trial on above exceptions. Motion overruled, and judgment rendered on the verdict.