Kellogg v. United States

APPEAL from the Court of Claims.

By an act of March 3d, 1853, Congress authorized the commencement of an aqueduct to supply Washington with water. Captain Meigs was appointed to superintend the work.

In January, 1854, Captain Meigs, on behalf of the United States, entered into a contract with Degges & Smith, by which they agreed to furnish for the work a certain number of bricks, for which the United States agreed to pay at a specified rate per thousand. To secure performance, Degges & Smith gave bond, with Mechlin & Alexander as sureties.

The contract between Captain Meigs and Degges & Smith contained a provision that neither the contract, nor any part of it, should be 'sub-let or assigned.'

In March, 1855, Congress having appropriated a certain sum for continuing the work, Captain Meigs gave notice to Degges & Smith, and also to their sureties, Mechlin & Alexander, that there would be required for the work of that season, a portion of the bricks. To this notice Degges & Smith made no response, but abandoned their undertaking, and failed to comply with their contract.

Degges & Smith having thus made default, Mechlin & Alexander, in order to save themselves from prosecution on their bond, entered into an arrangement with Captain Meigs, by which they assumed the contract which had been made with Degges & Smith.

Mechlin & Alexander, accordingly, made preparations for the manufacture of the bricks necessary to fulfil their contract; but before completing their arrangements, they, in March, 1856, entered into a contract with one Kellogg, by which he undertook to furnish all the bricks required, and to receive payment therefor from the United States at the contract price, and to pay over to Mechlin & Alexander, 5 per cent. of the amount so received; and Mechlin & Alexander by deed constituted him their lawful attorney to furnish the bricks, and to receive payment therefor.

Kellogg continued to furnish bricks, as the agent of Mechlin & Alexander, during the summer of 1856, until what remained of the appropriations for the building of the aqueduct was exhausted, when he received notice from Captain Meigs not to make or deliver any more.

On the 3d of March, Congress passed a joint resolution, containing a proposition to 'all parties respectively interested on account of their contract for manufacturing bricks for the Washington aqueduct,' that, if they would cancel it, the United States would settle with them, 'on the principles of justice and equity, all damages, losses, and liabilities incurred by said parties respectively on account of their contract.'