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United States v. Robert Tillotson.

they would facilitate the execution of the contract. But this is not a natural or fair construction of the clause. No new object or inducement was presented to justify the conclusion, that more liberal advances were to be made to Hawkins, than Hopkins by his contract was to have made to him. Both were to facilitate the execution of the contract, by furnishing the contractors with funds to pay for the materials as delivered, and to enable them to pay off the workmen monthly. The sureties cannot therefore be made responsible for advances to Hawkins, except for materials delivered at the place, and for work actually done.

It is not understood by the contract, that the materials were to be delivered to the agents of the United States so as to become their property, and remain at their risk. The property still continued in the contractor, and the sureties were responsible for its faithful application to the building the fortification according to the contract.

Whatever work therefore has been done according to the contract, the plaintiffs have had the benefit of it, and there is no complaint that the materials delivered have been misapplied. Upon this view of the case then, there is no foundation for any claim upon the sureties.

It has been further urged in discharge of the sureties, that ·by the last contract, Hawkins relinquished all claim to an allowance to which he was entitled, in consequence of the United States neglecting to have an agent at Mobile Point in the fall of 1818, to point out the site of the fortification, and to give the necessary instructions to Hopkins.

The case states, that Hopkins in his lifetime did make a claim to a considerable amount on this account. And the very fact, that a relinquishment of it by Hawkins was inserted in the new contract, would seem an implied admission, that some importance was attached to it. And if Hawkins has by any stipulation with the plaintiffs or their agent, re

United States v. Robert Tillotson.

linquished any benefit to which he was entitled under the contract, it was an act to the prejudice of the sureties.

The case has thus far been considered under the supposition, that the original contract with Hopkins remained valid and binding, except so far as it was altered by the new contract with Hawkins; and this may be true as between the parties themselves. But as it respects the sureties, very different considerations are presented. The law is particularly watchful over the rights of sureties ; and will not countenance any transactions between the parties that shall lessen the ability of the principal to comply with his contract, or that shall alter the rights of the parties, or enlarge the demand to the prejudice of the sureties. To permit parties to modify and alter their contracts as they please, and to hold the sureties answerable for the performance of such parts as were not altered, would be transferring their responsibility without their consent from one contract to another. The contract by the modification and alteration becomes a new and a different contract, and one for which the sureties never became responsible.

Under these views of the case, I am satisfied that the defendants are not answerable for the claim set up against them, and I might here dismiss the cause. But it may not be amiss briefly to notice some other points urged upon the argument in support of their defence, and which would certainly be entitled to great weight, were it necessary to draw them into examination and to decide upon them.

It was contended, that the death of Hawkins before the expiration of the time limited for the completion of the work, put an end to the contract and discharged the sureties.

Without expressing any opinion upon this point, the facts in the case present an alternative in exoneration of the sure

United States v. Robert Tillotson.

ties, that cannot easily be surmounted.

If the contract survived, its performance devolved upon the personal representative of Hawkins, who it appears, offered to go on and execute it, but was refused so to do by the agent of the United States; saying he must have instructions from the War Department for that purpose. The offer was forwarded to the department, and no answer given, which was equivalent to a refusal. Why this offer was refused is not readily perceived, as by the contract no advances were to be made for materials until delivered, or for work until performed, so that no great risk would have been thereby incurred. And by the recitals in the bond upon which this suit is founded, it would appear to have been the understanding of the parties, that upon the death of the contractor, the obligation, and duty of completing the contract, fell upon his personal representatives. The recital to which I allude is as follows: "Whereas the said Benjamin W. Hopkins has lately died intestate, without having completed the contract, by reason whereof the obligations of performing the said contract, on the part of the said Benjamin W. Hopkins, deceased, has devolved upon the person or persons who may be authorized to administer the personal estate of the said intestate.” We find also the same admission in the second contract, made between Col. Gadsden and Hawkins. It recites the death of B. W. Hopkins, and the granting of administration to Roswell Hopkins, who as administrator, was legally authorized to assign the contract to Hawkins,

Again, it was urged that all obligations growing out of the contract are discharged, by Congress withholding the appropriation necessary to complete the works.

By the original contract, the fortification was to be completed by the first of July, 1821. By the act of the 3d March, 1821, only thirty thousand dollars was appropriated

United States v. Robert Tillotson.

to this object, and it is admitted, that no more could have been applied to it until a further appropriation was made; and the case states, that six hundred and ninety thousand dollars was necessary to complete the fortification. If this act had made it unlawful to proceed further with the works, it might well be urged that the contractor was discharged from all obligations and accountability growing out of the contract, the performance having become illegal by a legislative act. But as the necessary appropriation was only in part withheld, the operation of the law probably ought to be considered only a temporary suspension of the execution of the contract. And should no further appropriation be made, the contractor, was he living, could not be called to account in any manner for a breach of contract. The plaintiffs could not certainly be permitted to stop short when they pleased, and demand a reimbursement of the money advanced. Even admitting that Hawkins was accountable for all advances to Hopkins, there could be no violation of his engagement in this respect until the expiration of the term allowed for completing the contract; and if the plaintiffs by their own act, have either suspended or entirely defeated the performance, it does not lie with them to allege a breach on the other side.

I am accordingly of opinion that the defendants are entitled to judgment.

CIRCUIT COURT OF THE UNITED STATES.

NEWYORK, APRIL TERM, 1824, AT NEW-YORK.

Before I Non. SMITH THOMPSON, Associate Justice of the Supreme

Court.
Hon. WILLIAM P. VAN NESS, District Judge.

THE UNITED STATES v. HATCH AND BARSTOW.

A bond given by the master of a vessel, conditioned for the exhibition of the

list of his ship's company to the first boarding officer, at the first port of his arrival in the United States, and for the production of the crew, was beld to be a valid bond under the act of the 28th of February, 1803, although it was not expressed to be taken in pursuance of said act, and although it was not stated on the face of the bond which of the obligors was the principal and which the surety. And the declaration on the bond was held good

although it did not refer to the statute. An alteration in the bond, made by one of the clerks of the custom-house,

after its execution, for the purpose of rectifying it, but which did not affect its construction, was held to be the act of a stranger, and immaterial, and

not to avoid the bond. The certificate of the consul, to cxcuse the master, ander the proviso of this

act, must state that the seamen were left in a foreign port with his consent. A certificate that they were left in a hospital unable to return, and that the master had paid for their maintenance, and left the amount of their wages, was held insufficient, and parol evidence of the consent of the consul or seamen inadmissible.

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