delivered the opinion of the court:

The statement of facts shows that the contracts claimed upon were obtained by collusion between the petitioner and Eggles-ton for their joint interest in profit and loss, with an arrangement that the contracts should be taken in the name of Eggles-ton alone, and that Houston should sign Eggleston's bonds as .-surety.

As a party cannot be contractor and surety on the same con*766tracts at the same time, the United States have the right to consider Houston as contractor with Eggleston, and then both would be equally liable for the performance of the contracts on the terms specified in them. And the facts found show, also, that when Eggleston left Nacogdoches to go to Austin to remain he agreed with Houston that the latter would make the deliveries required by the contract, and receive under that,-in his own name, the vouchers accruing under it. And of this contract between the parties the United States have, by the rules-in assumpsit, a right to avail themselves.

As the petitioner was as partner bound to deliver under the • contract the corn and hay he delivered in February and March, 1870, he was entitled for such deliveries only to the .contract price, amounting to the sum of $2,136.99. He has been paid the sum $1,708.20 for deliveries he was bound to make under the contract, which leave a balance due him of $125.79, for which judgment is rendered in his favor.