Kellogg v. United States/Opinion of the Court

After the passage of this resolution, Mechlin & Alexander, and Kellogg, also accepted the proposition, and cancelled the contract.

Upon this, the Secretary of the Treasury proceeded to make the settlement contemplated by said joint resolution, and awarded to Mechlin & Alexander, as the only persons included in the provisions of the resolution, $29,534. Of the sum so awarded by the secretary to Mechlin & Alexander, Kellogg, accepting it under protest, received $10,476, as the amount he was entitled to receive under his contract with Mechlin & Alexander.

Kellogg now filed his petition in the court below, setting forth the facts above stated, and insisting that the award of the said sum of money to Mechlin & Alexander, and the exclusion of him from the benefits of the resolution by the secretary, was erroneous, and contrary to the intent of the resolution; and that the secretary should have awarded him, as the amount he was entitled to receive under the resolution, as 'a party interested in said contract,' the sum of $62,692; to recover which sum and interest, amounting in all to $91,389, the suit was instituted.

To this petition the United States demurred; and the demurrer having been sustained by the Court of Claims and the petition dismissed, the case was now here on appeal.

Messrs. Carlisle and McPherson, for the claimant, Kellogg.

Mr. Talbot, contra.

Mr. Justice GRIER delivered the opinion of the court.

The case, well stated by the reporter, sufficiently demonstrates that there was no error in the decision of the Court of Claims sustaining the demurrer to the plaintiff's petition.

The claimant has not shown that he was ever known or recognized by the United States as one of the parties to, or as interested in, the contract made by Captain Meigs, on behalf of the United States, for furnishing bricks for the construction of the Washington aqueduct. That contract provides that it should not be sub-let or assigned.

The petition shows that the claimant was acting under a contract with Mechlin & Alexander (who were the sureties for the fulfilment of the contract of Degges & Smith), and not under a contract with the United States, and was recognized only as agent, attorney-in-fact, or employ e of the sureties; and that under the resolution of Congress, approved March 3d, 1857, by which the Secretary of the Treasury was authorized to settle with all the parties, respectively, in the contract, the claimant was not included, because he was no party to it either originally or by substitution.

The award made by the Secretary of the Treasury, and the payment of the money under it, were in strict accordance with the provisions of the resolution. The secretary properly declined to settle the account between Mechlin & Alexander as to how the money so paid should be divided between them and their agent. Of this sum the petitioner received $10,476, which he accepted, 'under protest;'-which could only mean saving his right to importune Congress or the Court of Claims for more. This has occasionally proved a valuable privilege. But something more is necessary to recover in a court of justice.

JUDGMENT AFFIRMED.