United States v. Jones (33 U.S. 375)

[Syllabus from pages 375-377 intentionally omitted]

IN error to the circuit of the United States for the county of Washington, in the District of Columbia.

In April 1821, the plaintiffs instituted an action of debt against Benjamin G. Orr, on a bond, joint and several, executed by Benjamin G. Orr, Alexander M'Cormick and William O'Neale, to the United States, on the 21st day of November 1816, in the penal sums of sixty thousand dollars, with the condition annexed, that 'if the said obligor, &c., shall in all things well, and truly observe, perform, fulfil, accomplish, and keep all and singular the covenants, conditions, and agreements, whatsoever, which on the part and behalf of the said Benjamin G. Orr, his heirs, executors or administrators, are or ought to be observed, performed, fulfilled, accomplished, and kept, comprised or mentioned in certain articles of agreement or contract, bearing date 21st day of November 1816, made between George Graham, acting secretary of war, and the said Benjamin G. Orr, concerning the supply of rations to the troops of the United States within the Mississippi territory, the state of Louisiana, and their vicinities north of the Gulf of Mexico, according to the true intent, meaning, and purport, of the said articles of agreement or contract.'

The contract was dated on the 21st day of November 1821, was made by Orr with the acting secretary for the department of war, and stipulated, that Orr, his heirs, &c. 'shall supply and issue all the rations, to consist of the articles hereinafter specified, that shall be required of him or them, for the use of the United States, at all and every place or places where troops are or may be stationed, marched, or recruited, within the limits of the Mississippi territory, the state of Louisiana, and their vicinities, north of the Gulf of Mexico, thirty days' notice being given of the post or place where rations may be wanted, or the number of troops to be furnished on their march, from the 1st day of June 1817 until the 31st day of May 1818, both days inclusive.'

The defendant, Orr, having died after the institution of the suit, it was proceeded in against Walter Jones, his administrator de bonis non, at May term 1829, who took defence in the action, and after oyer of the bond and condition, and the contract, pleaded performance, &c.

The plaintiffs replied, that Orr did not perform the contract entered into by him in that, although the United States advanced and furnished him with large sums of money on account of the contract, and although the accounts of the said Benjamin G. Orr, in relation to the articles of agreement aforesaid, have been duly and finally settled by the accounting officers of the government of the United States; and, upon the said settlement, there was found to be due to the United States, from the said Benjamin, the sum of three thousand six hundred and fifty-four dollars and forty-six cents, of which the said Benjamin had due notice.

To this replication there was a rejoinder and issue, and on the 31st of December 1831, the cause was tried, and a verdict and judgment rendered for the defendant.

The plaintiffs filed two bills of exception.

The first exception set forth the evidence, produced and relied upon by the plaintiffs, to be an account stated by the accounting officers of the treasury against Orr, under the contract refered to in the bond, upon which the balance of three thousand six hundred and fifty-four dollars and forty-six cents was claimed, and which, according to that account, was due to the United States. The plaintiffs produced no other evidence. The whole amount of debts in the account was one hundred and forty-one thousand and seventy-eight dollars and twenty-four cents. The defendant admitted some charges in the account for moneys paid to Orr, by warrants of the treasury, amounting to twenty-eight thousand five hundred dollars, but objected to the competency of the account to charge him with any other item. The charges admitted were,

1817. June 9, for warrant No. 521, received by him on account $10,000; Sept. 18, for part 953, do. $5,000; Oct. 6, for do. 1072, do. $8,500; Aug. 1, for do. 2419, do. $5,000-$28,500.

Among the items objected to were the following:

1818. Feb. 19, for warrant No. 1660, favour of Richard Smith, dated 27th Dec. 1817, and 11th Feb. 1818-$20,000.

1818. April 11, for warrant No. 1904, for the payment of his two drafts, favour of Alexander M'Cormick, dated 11th and 17th March 1818, for $5,000 each-$10,000.

1818. May 14, for warrant No. 2038, being in part of a bill of exchange in favour of Richard Smith for $20,000-$12,832 78.

1818. June 22, for warrant No. 2210, for a bill of exchange in favour of Richard Smith, dated 22d June 1818-$4,000.

1818. June 22, for warrant No. 2420, to Richard Smith, per order-$8,000.

1818. June 22, to accounts transferred from the books of the second auditor for this sum, standing to his debit under said contract, on the books of the second auditor, transferred to his debit on those of this office-$45,000.

The circuit court instructed the jury, that the accounts were not competent to charge the defendant with the items objected to, and the plaintiffs excepted to this instruction.

Second exception. The defendant then insisted, that he was entitled to credit for the several sums credited to Orr in the account for supplies, in execution of the contract, and prayed the court so to instruct the jury; to which the plaintiffs objected, unless jury were also instructed that the defendant could not rely on the account and claim the credits therein, without making the items of charge therein contained also evidence before the jury. The court gave the instructions prayed for by the defendant, without adding the further instruction prayed for by plaintiffs; to which instruction and refusal the plaintiffs excepted.

The plaintiffs prosecuted this writ of error.

The case was argued by Mr Butler, attorney-general, for the United States; and by Mr Coxe and Mr Jones, for the defendant.

For the United States, it was insisted:

I. That the first exception was well taken, the account stated being, under the acts of congress, and the provisions of the contract, competent evidence to charge the defendant—

1st. With all the items of charge therein contained; and if not, then:

2d. It was, at all events, sufficient to charge him with the moneys received on the various warrants specified in the account.

II. The second exception was well taken.

1st. The account was one entire document, and the defendant, if he elected to rely on any part thereof, was bound, by the general rules of evidence, to take the whole as evidence, so far as it was pertinent to the subject matter of the suit.

2d. There is the more reason for adhering to the general rule in this case, because the account was stated by a public officer, to whom, by law, and by the contract of the parties, the duty of settling the accounts in question, was to be referred.

The arguments presented to the court on this case, and on the following case, are reported together to avoid repetition.

Mr Justice McLEAN delivered the opinion of the Court.