On August 22, 1863, Donald McKay contracted with the United States for the construction of the gunboat Ashuelot; the contract to be completed in 11 months from that date. On account of changes and additional work required by the government, and other details for which it was responsible [172 U.S. 321, 322] the completion of the vessel was delayed from July 22, 1864, to November 29, 1865, a period of 16 months and 7 days beyond the contract term. Full payment of the contract price was made, and also of an additional sum for changes and extra work. On August 30, 1890, congress passed an act (26 Stat. 1247) submitting to the court of claims the claims of the executors of Donald McKay for still further compensation. Such act contains this proviso:
Under this act this suit was brought. Upon the hearing the court of claims, in addition to the facts of the contract, performance, time of completion, and payment, found that:
And rendered judgment in favor of the petitioner for, among other things, the increased cost of the labor and material furnished by him, consisting of two items of $12,608.71 and $14,815.66. From this judgment the United States appealed to this court.
Asst. Atty. Gen. Pradt and C. C. Binney, for the United states.
John S. Blair, for appellee.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
No question is made, except as to so much of the judgment as is for the increased cost of labor and material. The allowance for that is challenged under the clause of the act of 1890, 'but no allowance for any advance in the price of labor or material shall be considered unless such advance occurred during the prolonged term for completing the work rendered necessary by delay resulting from the action of the government aforesaid.' The finding is that there was an advance in the price of labor and material during the contract term of 11 months, and that such increased price continued thereafter without material change during the 16 months and 7 days between the close of the contract term and the actual completion of the vessel. Of course, but for the act of August 30, 1890, no action could be maintained against the [172 U.S. 321, 324] government. The statute of limitations would have been a complete defense. The petitioner's right, therefore, is measured, not by equitable considerations, but by the language of that statute. Beyond that the court may not go. If equitably the petitioner is entitled to more compensation, it must be sought by direct appropriation or further legislation of congress.
It seems to us clear that the court of claims was not permitted to consider any advance in the price of labor or material during the term named in the contract, to wit, 11 months. Evidently congress thought that the contractor took the risk of such advance when he signed the contract. The contract term is one thing; the prolonged term, another. If congress intended to allow for all advances in the price of labor or material at any time between the execution of the contract and the completion of the work, the proviso quoted was unnecessary. The fact that the proviso discriminates as to the term, an advance during which entitles to allowance, is conclusive upon the question. There are no terms to be distinguished, except the contract term of 11 months, and the subsequent prolonged term of 16 months and 7 days. Of course, no change in the price of labor and material after the work was finished could have been considered, and, if congress intended to either permit or forbid an allowance for any advance in the price of labor and material during the entire progress of the work, it was easy to have said so. That it qualified such a general provision by limiting it to a particular term, and that term one created by the action of the government, excludes all doubt as to the meaning of the words 'prolonged term.' Obviously the petitioner himself understood that they refer to the period commencing at the time fixed in the contract for the completion of the work, for in his petition it is said that 'during the term specified by the contract, and also through the prolonged term, there was a continuous rise in the prices of all labor and material entering into said vessel and machinery.' He did not then doubt the meaning of the statute, and the only difficulty is that, according to the findings of the court of c aims, his proof did [172 U.S. 321, 325] not establish all his allegations. We deem it unnecessary to follow the investigation made by counsel of the various proceedings before congress, to see if there cannot be disclosed some unexpressed intent on its part to authorize payment for every advance in the cost of labor and material. The language of the act is too plain to justify such investigation.
One other matter uequires consideration: Attached to the record certified to us by the court of claims is a stipulation signed by the counsel for both parties, which stipulation commences in these words:
This stipulation seeks to introduce into the record of this case the proceedings of the court of claims in another suit brought under the same act of 1890 by the same petitioner to recover additional compensation for the construction of a vessel other than the one described in the present suit; and this notwithstanding that this court is, at least in other than equity cases, limited to a consideration of the facts found by the court of claims. This additional record contains the findings of facts in that case, the conclusion and judgment, which was in favor of the petitioner, and states that such judgment was not appealed from by either party. The tenth finding of fact reads as follows:
The final clause in this stipulation of counsel seeks to explain this tenth finding in this way:
Upon this the doctrine of res judicata is invoked to uphold the judgment. A sufficient answer is that neither by pleadings nor evidence were the proceedings in this other case brought before the court of claims in the present suit. If a party neither pleads nor proves what has been decided by a court of competent jurisdiction in some other case between himself and his antagonist, he cannot insist upon the benefit of res judicata, and this although such prior judgment may have been rendered by the same court. Southern Pac. R. Co. v. U. S., 168 U.S. 1 , 18 Sup. Ct. 18, suggests nothing contrary to this; for there the prior judgment was offered in evidence, and the only question considered and decided by this court was the effect of an alleged failure to fully plead res judicata.
But, further, not only did the petitioner fail to either plead or prove the former judgment, but also the record, when produced, disclosed that the court found that the advance in price was during the prolonged term. Counsel propose by stipulation to change that finding so as to make it show that part of the sum named therein was for the advance during the contract term, and the other part for the advance during the prolonged term. In other words, counsel seek, without pleading or proof, to use a prior judgment as res judicata, and also by stipulation to change the findings of fact which were made in that case. It is clear this cannot be done.
The judgment of the court of cl ims will be reversed, and the case remanded to that court, with directions to enter a judgment for the claimant, less the two amounts of $12,608.71 and $14,815.66, the increased cost of labor and material.