The act

521.99, and entered judgment accordingly. | lands disposed of by the United States for
The cause was taken to the supreme court of any of the purposes already mentioned and
Nebraska, where, on October 5, 1898, the for the purpose of procuring from the United
judgment of the trial court was reversed States a donation of the swamp and over-
(State v. Kennard, 56 Neb. 254, 76 N. W. flowed lands within its borders.
545); and again, on February 9, 1899, upon left the compensation of the agent to be
a rehearing, the same conclusion was agreed upon by the governor and the agent,
reached. A writ of error was allowed, Jan- but provided, in effect, that the agent should
uary 17, 1901, and the cause brought to this not be entitled to any compensation for col-
court.
lecting from the United States any part of
the 5 per cent cash school fund which had
been donated to the state by the United
States by § 12 of the enabling act aforesaid.
The governor of the state entered into a con-
tract with Kennard in pursuance of the act
of the legislature just mentioned, in and by
which he authorized Kennard to prosecute
and collect the claims of the state against
the nation in conformity with the act of the
legislature, and that the state should pay
him one half of all moneys, except such cash

The facts of this case appear, sufficiently for our purposes, in the following extract from the opinion of the supreme court of Nebraska, filed upon a rehearing of the case in that court:

"This is a rehearing of State v. Kennard, 56 Neb. 254, 76 N. W. 545. By § 12 of the enabling act passed by Congress, April 19, 1864 (13 Stat. at L. 47, chap. 59), the United States donated to the state of Nebraska 5 per centum of the proceeds of sales of all public lands lying within the state of Ne-school fund, he should collect for the state braska which had prior to that time been sold, or which should subsequently be sold, by the United States, after deducting expenses incident to such sale. At the time the state was admitted into the Union a tribe of Indians, known as the 'Pawnees,' occupied in common a tract of lands in this state known as the 'Pawnee Indian reservation.' After the state was admitted into the Union the United States took such steps as resulted in the extinguishment of the rights of these Indians to the lands in this reservation, sold the lands, and, it seems, used the proceeds of the sale to defray the expenses incident thereto in procuring other lands for the Indians elsewhere, and placed the remaining proceeds of the sale of these lands in the United States Treasury to the credit of the Indians. By an act passed by the legislature of the state of Nebraska in February, 1873 (see Gen. Stat. 1873, chap. 59), it seems that the legislature was of opinion that by reason of § 12 of the enabling act the United States was indebted to it for 5 per cent of the value of the lands lying within the state used as Indian reservations, and 5 per cent of the value of all lands on which private parties had located military land warrants and land scrip issued for military service in the wars of the United [306 States, and 5 per cent of the value of all such as had been donated by the United States to railroads.

"It is also recited in said act that the United States had donated to other states swamp and overflowed lands lying within their borders, but that no such donation or allowance of swamp and overflowed lands had been made to this state, and it seems to have been the opinion of the legislature that all the swamp and overflowed lands lying within the state belonging to the United States should by it be donated to the state. The act under consideration authorized the governor to employ an agent in behalf of the state, to prosecute to final decision beforc Congress or in the courts, the claim of the state of Nebraska against the United States for the 5 per cent of the value of the

as such agent. Mr. Kennard entered upon
the performance of his contract with the
governor, and by his efforts induced the Sec-
retary of the Interior to acknowledge that
the United States were indebted to the state
of Nebraska in the sum of 5 per centum of
the proceeds of the sale of the 'Pawnee In-
dian reservation' lands made by the United
States subsequent to the admission of the
state into the Union; and, in pursuance of
this decision of the Secretary of the Interior,
the United States paid into the treasury of
this state $27,000. Mr. Kennard, by per-
mission of the legislature, then brought this[307)
suit to recover one half of that sum. He
had judgment in the district court for Lan-
caster county, and the state brought the
same here for review, and the judgment of
the district court was reversed. We based
our judgment of reversal of this judgment
upon the proposition that the lands of the
Pawnee Indian reservation' were public
lands within the meaning of § 12 of the en-
abling act, and that the only money collected
by Mr. Kennard was the 5 per cent of the
proceeds of the sale made of these lands by
contract, he was not to have any compensa-
the United States, and, by the terms of his
tion for collecting these moneys."

Upon this statement of the facts, does this court have jurisdiction to review the judg ment of the supreme court of the state of Nebraska?

There was no dispute as to the facts out of which the controversy arose. The right of the plaintiff to recover under his contract with the state is not for us to determine, unless the record discloses that he has been deprived of some title, right, privilege, or immunity secured to him by the Constitution of the United States, and unless it appears that such title, right, privilege, or immunity was specially set up or claimed in the state court. F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Columbia Water Power Co. v. Columbia Street R. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247.

Looking into the record, we do not find in

the pleadings, or in the petition for a hearing, any specific statement or claim by the plaintiff in error of any right, title, privilege, or immunity secured to him by any provision of the Constitution of the United States. This, indeed, is admitted in the brief of the plaintiff in error, but it was claimed in the petition for allowance of a writ of error from this court, "that in the rendition of the judgment by the supreme court of the state there was drawn in question the construction of the statutes of the United States with reference to the lands of the Pawnee Indian reservation located in the state of Nebraska, and the act of Congress authorizing the admission of the state of Nebraska into the Union, passed April, 1864 (13 Stat. at L. 47, chap. 59), and that the decision of said supreme court was against the plaintiff in error in such construction," and that "said decision was nec[308]essary to the judgment "given by the said su

preme court, and without such decision and
construction the said judgment could not
have been given." And it is now contended
that the plaintiff's right to recover was de-
reated solely by the construction the state
court placed upon the congressional acts,
and that thus a Federal question appears in
the record, giving this court power to re-
view the decision of the state court.

It

*UNITED STATES, Piff. in Err.,

v.

EDWARD J. FREEL, as Executor of the
Last Will and Testament of Edward
Freel, Deceased.

(See S. C. Reporter's ed. 309-319.)
release of surely

Principal and surety
change in principal's obligation -- appeal
-when objection too late.

1. The surety on a contractor's bond condi-
tioned for the performance of a contract to
construct a dry dock was released by a change
made by the contracting parties, without his
consent. in the location of the dry dock.
which required the contractor to make addi-
tional excavations and connections with the
water at an increased expense, and gave an
increased time of performance, as such a
change was not contemplated by the provi-
sions of the contract for such changes in the
plans and specifications as might be found ad-
vantageous or necessary.

2.

I

The objection that a surety should have set up as an affirmative defense by plea or answer, and not by demurrer, the fact that such changes were made in his principal's contract as would release the surety if made without his consent, cannot be urged on appeal, where the declaration set out the original and supplemental contracts, and contained no aver ments that the surety had knowledge of or consented to the changes made by the sup plemental contract, and no leave to amend was asked when the demurrer was sustained. [No. 224.]

1902.

N ERROR to the United States Circuit Court of Appeals for the Second Circuit to review a judgment which affirmed a judg ment of the Circuit Court for the Eastern District of New York sustaining a demurrer to a complaint in a suit to recover on a contract of suretyship. Affirmed.

But the validity of the acts of Congress referred to was not drawn in question by the facts of this controversy. Our jurisdiction to review the judgment of the state court rests upon § 709 of the Revised Statutes. has often been held that the validity of a Argued April 17, 1902. Decided June 2, statute or treaty of the United States is not "drawn in question," within the meaning of § 709, every time rights claimed under a statute or treaty are controverted, nor is the validity of an authority every time an act done by such authority is disputed. Balti more & P. R. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503; Cook County v. Calumet & C. Canal & Dock Co. 138 U. S. 635, 653, 34 L. ed. 1110, 1116, 11 Sup. Ct. Rep. 435; Borgmeyer v. Idler, 159 U. S. 408, 40 L. ed. 199, 16 Sup. Ct. Rep. 34; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; Florida C. & P. R. Co. v. Bell, 176 U. S. 321, 328, 44 L. ed. 486, 490, 20 Sup. Ct. Rep. 399; Columbia Water Power Co. v. Columbia Electric Street R. Light & Power Co. 172 U. S. 488, 43 L. ed. 525, 19 Sup. Ct. Rep. 247. The decision by the supreme court of the

state, that the Pawnee reservation lands in
Nebraska were public lands within the
meaning of the 12th section of the enabling
act, did not bring into question the validity

of that section--much less was it a decision
against its validity. As, then, the plaintiff
in error specially set up or claimed no Fed-
eral right, and as the judgment of the su-
preme court of Nebraska did not impugn
the validity of any statute of the United
States, we find nothing on which to rest a
right to review that judgment, and the writ
of error is accordingly dismissed.

See same case below, 39 C. C. A. 491. 99 Fed. 237.

The facts are stated in the opinion.

Mr. George Hines Gorman argued the cause, and, with Assistant Attorney General Pradt, filed a brief for plaintiff in error:

The supplemental contract was not, as a matter of fact, a change in the original contract for the construction of this dry dock. either in location of the site or in character of construction.

Simpson v. United States, 31 Ct. Cl. 217.

made a part of the bond; and therefore, in The contract guaranteed is by reference order to determine the scope of the defondant's undertaking, the two instrument> must be read together.

Smith v. Molicson, 148 N. Y. 241, 42 N. E. 669.

The obligation of the surety upon this contract is precisely the same as the obliga tion of the principal.

Benjamin v. Hillard, 23 How. 164, 16 1. NOTE. On the release of surety by change in principal's contract-see note to Miller v. Stew

art. 6 L. ed. U. S. 189.

[309]

ed. 520; Gamble v. Cuneo, 21 App. Div. 413, | 443; United States v. Case, 25 Int. Rev. 47 N. Y. Supp. 548. Rec. 56; United States v. Corwine, 1 Bond, 339, Fed. Cas. No. 14,871; Paine v. Jones, 76 N. Y. 274.

Parties may by their contract enlarge their liabilities beyond that which the law would otherwise impose, either expressly or Where the original contract requires the by fair implication; and if they do so en- contractor to make any and all changes, large their liabilities by their own con- and that the change shall be set forth in tract, the courts will not undertake to re-writing, alterations made pursuant to verbal lieve them by any process of construction or interpretation, but will enforce the contract as the parties made it.

dry dock and appurtenances in accordance | Y., as shall be designated by the party of
with the said contracts, plans, and specifi- the second part."
cations, at a cost to the United States of
the sum of $370,000; that the sum of $72,-
414.16 represented the damages sustained by
the plaintiff by reason of said Gillies' breach
of contract; that Edward Freel died on the
24th day of December, 1896, leaving a last
will appointing Catharine Freel, Edward J.
Freel, and Frank J. Freel executors thereof;
that the said defendant John Gillies neg-
lected and refused to perform the terms and
conditions of said contract on his part, and
that the plaintiff has performed, fully and
completely, all the terms and conditions of
said contract on its part. Wherefore the
plaintiff demanded judgment against the
said defendants in the said sum of $72,414.-
16, with interest from April 1, 1897.

"Seventh. The construction of said dry dock and its accessories and appurtenances herein contracted for shall conform in all respects to and with the plans and specifications aforesaid, which plans and specifications are hereto annexed and shall be deemed and taken as forming a part of this contract with the like operation and effect [312] as if the same were incorporated herein. No omission in the plans or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect, in accordance with the true intent and meaning hereof, shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, perOn November 26, 1898, Edward J. Freel, formed, and observed by the contractor, and as executor of Edward Freel, deceased, ap- all claims for extra compensation by reason peared and demurred to the complaint upon of or for or on account of such extra perthe ground that it appeared upon the face formance are hereby, and in consideration thereof that said complaint did not state of the premises, expressly waived; and it is [311]facts sufficient to constitute a *cause of ac- hereby further provided, and this contract tion. On May 24, 1899, after hearing the is upon the express condition that the said counsel of the respective parties, the circuit plans and specifications shall not be changed court sustained the demurrer, and dismissed in any respect except upon the written orthe complaint as to said Edward J. Freel der of the Bureau of Yards and Docks; and as executor. 92 Fed. 299. The case was that if at any time it shall be found advantaken to the circuit court of appeals for the tageous or necessary to make any change, second circuit, and on January 5, 1900, that alteration, or modification in the aforesaid court affirmed the judgment of the circuit plans and specifications, such change, altercourt. 39 C. C. A. 491, 99 Fed. 237. Onation, or modification must be agreed upon December 22, 1900, a writ of error was allowed, and the cause was brought to this court.

The question in this case is whether a surety on a contractor's bond, conditioned for performance of a contract to construct a dry dock, was released by subsequent changes in the work made by the principals without his consent.

As the question is presented to us on a general demurrer to the complaint, it is necessary to set forth, with some particularity, portions of the original and of the supplemental contracts, which form parts of the complaint.

The original contract, dated November 17, 1892, contained, after alleging that proposals had been made and accepted for the construction by contract of a timber dry dock, to be located at the United States Navy Yard, Brooklyn, New York, the following

provisions:

"First. The contractor will, within twenty days after he shall have been tendered the possession and occupancy of the site by the party of the second part, which possession and occupancy of the said site during the period of construction and until the completion and delivery of the work hereinafter mentioned, shall be secured to the contractor by the party of the second part, commence, and within twenty-seven calendar months from such date, construct and complete, ready to receive vessels, a timber dry dock, to be located at such place on the water line of the navy yard, Brooklyn, N.

in writing by the parties to the contract,
the agreement to set forth fully the reasons
for such change, and the nature thereof, and
the increased or diminished compensation,
based upon the estimated actual cost there-
of, which the contractor shall receive, if
any; Provided, That whenever the said
changes or alterations would increase or de-
crease the cost by a sum exceeding five hun-
dred dollars ($500) the actual cost thereof
shall be ascertained, estimated, and deter-
mined by a board of naval officers to be ap-
pointed by the Secretary of the Navy for the
purpose; and the contractor shall be bound
by the determination of said board, or a ma-
jority thereof, as to the amount of increased
titled to receive in consequence of such
or diminished compensation he shall be en-
change or changes: Provided further, That
sions shall be ordered by the Secretary of
any enlargement or increase of dimen-
the Navy during the construction of said
dry dock, that the actual cost thereof shall
be ascertained, estimated, and determined by
a board of naval officers, to be appointed by
the Secretary of the Navy, who shall revise
said estimate and determine the sum
sums to be paid the contractor for the addi-
tional work that may be required under this
contract: And provided also, That no
further payment shall be made unless such
supplemental or modified *agreement shall[313]
have been signed before the obligation aris-
ing from such change or modification was
incurred and until after its approval by the
party of the second part: And further pro-
vided, That no change herein provided for

if

or

shall in any manner affect the validity of
this contract."

"And it is therefore agreed that the time fixed in the original contract for the completion of the said dry dock shall be ex

The supplemental contract of June 16, 1893. contained, among other things, the fol-tended three (3) months, on account of the lowing:

"This agreement. entered into this 16th day of June, 1893, between John Gillies, contractor, for the construction of a dry dock at the U. S. Navy Yard, Brooklyn, New York, party of the first part, and Norman H. Farquhar, Chief of the Bureau of Yards and Docks of the Navy Department, for and in behalf of the United States, party of the second part,

"Witnesseth: That, whereas, the Navy Department has decided to lengthen the said dry dock from six hundred (600) feet, as called for in the specifications forming a part of the contract for the construction of a dry dock at the above-mentioned location, entered into by the above-mentioned parties of the first and second parts on the 17th of November, 1892, to six hundred and seventy (670) feet from the outer gate sill to the coping at the head of the dock.

extra labor necessary to carry out the extension of the said dry dock as called for by this agreement."

The supplemental contract of August 17, 1893, contained the following:

"This agreement, made and concluded this seventeenth day of August, A. D. 1893. by and between John Gillies, of the city of Brooklyn, in the State of New York, party of the first part, and the United States, represented by N. H. Farquhar, U. S. Navy, Chief of the Bureau of Yards and Docks, Navy Department, acting under the direc tion of the Secretary of the Navy, party of the second part,

"Witnesseth: That whereas it has been deemed desirable to change the location of the dry dock now being constructed at the U. S. Navy Yard at Brooklyn, New York, under contract with the said John Gillies, party of the first part, dated November 17th, A. D. 1892:

"And, whereas, a board of naval officers, consisting of Captain J. N. Miller, U. S. N., Civil Engineer P. C. Asserson, U. S. N., and Civil Engineer, F. C. Prindle, U. S. N., was ordered by, and did convene, by order of the Secretary of the Navy, in compliance with the requirements of paragraph 7, page 2, of the contract. to fix this additional compensation to be allowed to said party of the first part for the additional labor and ma-the said dry dock, change its location to one terial required for said extension.

"Now, therefore, this agreement witnesseth that in consideration of the premises and for and in consideration of the payment to be made as hereinafter provided for, the party of the *first part, for himself, his heirs[315] and assigns, and his legal and personal representatives, agrees to and with the United States that he will, in the construction of

laid from the present pump house, including the piping, round piles, sheet piles, timber, iron work, excavation and back filling, etc., and all other work incident to said change of location, supplying all the labor and materials therefor.

sixty-four (64) feet further inland than "And, whereas, said board of naval of that laid down and staked out when the said ficers, after careful and mature delibera- contract was entered into, and that he will tion, did fix the additional compensation to perform all the additional excavation necesbe paid said party of the first part for the sary at the entrance of the dry dock in consaid extension of the said dry dock at forty-sequence of the said change of location; also five thousand five hundred and fifty-six all the additional work necessary to ($45,556) dollars, and did allow an exten-lengthen the suction pipes provided to be sion of three (3) months' time on account of said extension of said dry dock: "Now, therefore, the party of the first part does hereby agree to extend the said dry dock to a length of six hundred and seventy (670) feet, measuring from the [314]outer gate sill to *the coping at the head of the dock, in the same manner and under the same conditions as though said extension had been included in the original contract. "And it is further agreed by the party of the first part to accept from the United States, as a just compensation for said work of extension, the sum of forty-five thousand five hundred and fifty-six ($45,556) dollars, in full therefor, payment to be made under the same conditions and requirements as exacted by the original contract.

"And it is further agreed by the party of the second part that, in full and just compensation to the party of the first part, the sum of forty-five thousand five hundred and fifty-six ($45,556) dollars shall be paid for the additional labor and material necessary to extend the said dry dock, as heretofore agreed to, payments to be made under the same conditions and requirements as exacted in the original contract.

"And this agreement further witnesseth that the United States, party of the second part, in consideration of the stipulations. agrees that for the faithful performance of this agreement by the party of the first part there shall be paid to the said party of the first part the sum of five thousand and sixty-three dollars and eighteen cents ($5,063.18), United States currency, as full compensation. Said payment to be made in accordance with all the terms and conditions of payments as provided in the said contract and specifications.

"And the United States further agrees that the time limited by the said contract for the completion of the dry dock shall be extended for a period of eight (8) weeks on account of the said change in the position of the dry dock.

"It is also agreed that the provisions and conditions contained in the said contract and the specifications thereto attached. in regard to the character and quality of the