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United States v. Robert Tillotson.

ply to this part of the works, will appear from the certificate. of John Bliss the superintendent, being one of the documents referred to in the case. He certifies, that 7043 cubic yards of earth had been excavated from the ditches of the fortifications at Mobile Point by B. W. Hopkins, for the quarter ending 30th June, 1819. Upon which, an account is made out as follows: "7043 cubic yards of earth at eighty-three cents and eight tenths of a cent, agreeably to contract, five thousand nine hundred and two dollars and three cents," which was duly paid. In the last contract we find the following clause relating to this subject. "The party of the second part (Hawkins,) hereby agrees, that the following shall be the construction 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 off, 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 relays, or for each cubic yard of earth excavated and removed, in proportion to the value the same may bear to its finished state." Although this purports to be a construction of the first contract, no one can read the two provisions without at once perceiving a manifest difference, and that the lahour to be performed by Hawkins is increased, and the monthly payments therefore reduced.

Without noticing in detail, the particulars in which the contracts disagree in this respect, I shall only mention one about which there can be no difference of opinion, viz. the sodding of the remblais. No possible construction of the first contract could impose this upon the contractor. It is therefore an increased burden put upon him, and one too of

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United States v. Robert Tillotson.

no inconsiderable importance as to expense, which, if the sureties were bound to see done, would be increasing their responsibility beyond their engagements, and enlarging the demand against them without their consent.

But it is said that the defendants are not called upon to perform specifically the contract for the performance of which they become sureties, or for the payment of damages for the non-performance; but to reimburse the advances made to Hopkins and Hawkins, beyond the amount they were entitled to receive for work done and materials found. And for this it is alleged, there is an express stipulation in the bond upon which this suit is founded.

A little attention to the provisions in the bond, and in the contract with Hopkins, will show that this claim cannot be enforced against the sureties. By the bond the defendants among other things, became bound that Hawkins should well and faithfully account to the War Department of the United States, for all such sums of money theretofore advanced by the United States, under and in virtue of the late mentioned contract, and also for all such further advances as might thereafter be made to facilitate the execution of the contract.

If the United States have made any advances not required, or warranted by the contract with Hopkins, they have been made on their own responsibility, and for which the defendants cannot be held accountable. They only stipulate that Hawkins shall account for all advances under and by virtue of the contract.

The case furnishes no evidence that the sureties were apprized of what advances had been made to Hopkins, or that they had any knowledge of the state of the accounts between him and the United States. The sureties were bound only to look to the contract, to learn the extent of their responsibility. And they are entitled to all the guards and checks

United States v. Robert Tillotson.

This was

it contains to shield them from risk and hazard. doubtless taken into their calculation when they became sureties, and the United States were bound not to transcend these limits, and thereby expose the sureties to risks they never meant to assume.

We must then look to the contract to ascertain what advances were authorized; and the only stipulations we there find upon this subject are, that the United States will pay, or cause to be paid, to 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 that the United States shall pay, or cause to be paid, to the said Benjamin W. Hopkins, the sum of twelve thousand 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.

The sureties have a right, and doubtless did take into their calculation, that these checks would be strictly adhered to; and if so, the risk they incurred was comparatively trifling. No advances were to be made for materials until they were deposited at the place where the fortification was to be built, and duly approved by the superintending engineer. All the sureties had therefore to see to, with respect to the materials, was their faithful application to the contemplated works. This was a mere guaranty of the integrity and good faith of the contractor, and no advances on account of labour were

United States v. Robert Tillotson.

to be made until the work was done. So that no risk whatever was here incurred.

The amount claimed in this suit is one hundred and seven thousand two hundred and twenty dollars thirty-four cents, of which sum ninety thousand nine hundred and seven dollars twenty-nine cents, is the balance standing against Hopkins. No detailed statement of the account with him accompanies the case. The items therefore of which it is composed, and the grounds upon which this balance is struck, does not appear. Enough however is shown by the documents, to make it evident, that a great proportion of this balance is made up of advances, not required by the contract with Hopkins; being neither for materials delivered, nor work done upon the fortifications. Most of the expenses incurred, and for the payment of which the advances were made, related to preparations for commencing the works, as will be seen by reference to the documents accompanying the case; and if I am correct in the construction I have given to the engagement of the sureties, they are not responsible for these advances. The case does not furnish materials to enable me to say to what extent the advances were made, under and by virtue of the contract. And the advances on account, and drafts for materials and labour properly falling within the contract, are so blended with others, that it is impossible to separate them. Thus the first draft of the 15th of November, 1818, for three thousand dollars, purports to be for materials and passage-expenses of men, &c. That of the first of December, in the same year for ten thousand dollars, is for materials and expenditures on account of fortifications, &c. So also it appears from a certificate of Col. Gadsden upon some of Hopkins's accounts, and which was intended for and received as an authority for an advance of upwards of thirty thousand dollars. The items consisted of invoices of provisions, clothing, lumber, transportation of men, construction

United States v. Robert Tillotson.

of accommodations for them, expenses of brick-yards and pay of men employed at them; expense of excavators, their provisions and transportation, and quarters for their accommodation. Advances to a considerable amount appear likewise to have been made for brick at the kilns, and before delivery as provided by the contract. And to hold the sureties responsible for all these advances, would certainly be extending their liability far beyond the scope of their engagement. The plaintiffs are bound to make out distinctly the extent of the defendants' liability.

But it is said the defendants are responsible for all advances made to Hawkins without limitation or qualification: that their undertaking for him in that respect is different from that which relates to advances to Hopkins.

For the purpose of examining the soundness of this distinction, we must recur again to the bond, and look at the whole clause, which embraces both objects. It reads thus: He (Hawkins,) "shall well and faithfully account to the War Department for all sums of money heretofore advanced by the United States under and in virtue of the late mentioned contract," (thus far relates to advances to Hopkins,)" and also for all such further advances as may hereafter be made to facilitate the execution of the contract."

A fair construction of the latter clause, does not make it broader or more extensive than the former. The recitals in the bond showed, that the contract had been assigned to Hawkins, and the object of the arrangement was to put Hawkins in the place of Hopkins under the contract. And he is to account for such further advances as may be made to him. Such advances, necessarily implies like advances to those before made to Hopkins, and of course under the same limitations and restrictions.

It was urged on the argument, that there were no limits, but the discretion of the War Department, to such advances if

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