
32 U.S. 28 (____)
7 Pet. 28
THE UNITED STATES, PLAINTIFFS IN ERROR
v.
THOMAS FILLEBROWN, JUN.
Supreme Court of United States.

*37 The case was argued by Mr Taney, attorney-general, for the United States; and by Mr Coxe and Mr Jones, for the defendant.
*42 Mr. Justice THOMPSON delivered the opinion of the Court.
This case comes before the court on a writ of error to the circuit court of the district of Columbia. The action was brought to recover a balance certified at the treasury against the defendant, on the settlement of his accounts as secretary of the commissioners of the navy hospital fund. Upon this settlement, the defendant set up a claim for compensation, for what he considered extra services, in bringing up and arranging the records of the board antecedent to his appointment as secretary, and also for commissions on the disbursements of moneys under the orders of the board. These claims had been rejected by the accounting officers of the treasury, and were now set up by way of set off against the demand on the part *43 of the United States; and the questions before the circuit court were, whether the defendant was entitled to the compensation he claimed.
Upon the trial, after the testimony was closed, the counsel for the United States prayed the court to instruct the jury as follows:
1. That if, from the evidence aforesaid, it should appear to them that the defendant had accepted the appointment of secretary of the board of navy hospital commissioners upon the terms mentioned in the said appointment, and in the letter of Samuel L. Southard to him, of the 7th of November 1825, as hereinbefore stated; that in that case he was not entitled to any extra compensation for the disbursement of the moneys belonging to the said navy hospital fund; and that he was only entitled to two hundred and fifty dollars a year, for the whole of the services performed by him for the said board.
2. That if they should be satisfied, by the evidence aforesaid, that the said board of commissioners had never passed any order or resolution for the payment of any commission, upon the moneys disbursed by the defendant for the said board; and that the claim for commissions which he now makes, had never been sanctioned or settled by the said board; that it is not competent for him now to set up the said claim for commissions against the claim of the United States, for which this suit is brought.
Which instructions the court refused to give: but at the instance of the defendant's counsel gave other instructions which will be hereafter noticed.
The jury found a verdict for the defendant, and certified a balance in his favor, against the United States, for four hundred and thirty dollars; and the case comes here on a bill of exceptions.
Whether the first instruction asked on the part of the United States ought to have been given, must depend upon the defendant's appointment as secretary, and the extent of his duties under that appointment. The court was requested to instruct the jury, that if the defendant had accepted the appointment on the terms mentioned, he was entitled to no compensation *44 beyond his salary of two hundred and fifty dollars, for any services performed by him for the board.
The second instruction asked, involves the inquiry whether some order or resolution of the board for the payment of the commissions was not indispensably necessary to entitle the defendant to the allowance claimed by him.
The defendant was appointed secretary, at a regular meeting of the board, on the 7th of November 1825; and so far as his duties are defined, they are to be collected from the following resolution:
"Resolved, that a secretary be appointed to this board, to take charge of the books, papers, &c. belonging to the hospital fund, and to execute such duties relative thereto, as may be required of him by the board, for which services he shall be allowed the sum of two hundred and fifty dollars per annum."
The authority of the commissioners to appoint a secretary has not been denied; and this same authority must necessarily exist to appoint agents and superintendents for the management of the business connected with the employment of the fund; and which, in the absence of any regulation by law on the subject, must carry with it a right to determine the compensation to be allowed them.
It is admitted, on the part of the United States, that the defendant's being secretary of the board, forms no objection to his performing other services not included in his duty as secretary, and receiving a compensation therefor in the same manner as any other person might.
The terms on which the defendant accepted the appointment of secretary, being to execute such duties, relative thereto, as should be required of him by the board; it becomes proper to examine how the board considered the appointment, and what duties were required of him as secretary.
It is proper here to inquire, how the secretary of the navy, as one of the commissioners, stood in relation to the other members of the board.
It is evident from the manner in which this fund was created, and the purposes and objects to which it was applied, that the general and active superintendence over it belonged appropriately *45 to the secretary of the navy. It was therefore almost matter of course that the board should commit to him the principal management of the business, and consider him the agent of the board for that purpose. In addition to this, he was actually constituted such agent by the board.
Mr Southard, in his deposition, states that he was, by the direction of the board, and by the previous practice and usage, acting commissioner of the fund, and attended to all matters connected with it. But, when any new arrangements were to be made, or money to be expended on a new object, he consulted with, and had the approval and authority of the whole board. And all his acts were considered as authorized and sanctioned by the board.
With respect to the one hundred and twenty-five dollars claimed for six months salary, Mr Southard is very explicit. This allowance, he says, was made for extra services, and related to a time previous to his appointment; and that the allowance had the approbation of the board. This was a service not required or considered by the board as coming within his duty as secretary under his appointment, and a stipulated compensation agreed to be paid him therefor. It is not perceived what possible objection can exist against his being allowed this stipulated sum. Whether or not it was more than a just compensation for his services, is a matter which this court cannot inquire into. Indeed, that has not been pretended, if he is entitled to any thing beyond his salary of two hundred and fifty dollars.
With respect to the commissions, Mr Southard says, that, subsequent to the appointment of the defendant as secretary, the commissioners were enabled by appropriations, and collecting money belonging to the fund from various sources, to proceed to apply the funds to the establishment of navy hospitals as required by the act of congress. That these funds were placed in the hands of the treasurer of the United States, as the treasurer of the commissioners; and that in collecting and disbursing the fund, it was found indispensable to have an agent who should attend carefully to it, and be responsible to the board. That this did not belong to the duties of the secretary. But that it was thought best to give the agency to him on *46 account of his acquaintance with every part of the interest of the fund, and his fitness to discharge the duty. That he was appointed the agent with the understanding that he should receive a suitable compensation for the services he should render in that capacity. That it was the understanding of the commissioners that he should receive compensation in the mode, and according to the practice of the government in other similar cases. That he is under the impression that this was to be by a per centage on the money disbursed; and that he is also under the impression that he did, by the authority of the board, allow one or more of the accounts presented by the defendant in conformity to the facts and principles he has detailed.
From this testimony it is very certain that Mr Southard considered the agency of the defendant in relation to the fund as entirely distinct from his duty as secretary, and for which he was to have extra compensation. And it is fairly to be collected from this deposition, that all this received the direct sanction of all the commissioners. But, whether it did or not, it was binding on the board; for the secretary of the navy was the acting commissioner, having the authority of the board for doing what he did, and his acts were the acts of the board, in judgment of law. It was, therefore, an express contract entered into between the board or its agent, and the defendant; and it was not in the power of the board, composed even of the same men, after the service had been performed, to rescind the contract, and withhold from the defendant the stipulated compensation. There is no doubt the board composed of other members, had the same power over this matter as the former board. But it cannot be admitted that it had any greater power. The rejection, therefore, of these claims on the 7th of September 1829, after all the services had been performed by the defendant, can have no influence upon the question.
It has been argued, on the part of the United States, that the sanction of the secretary of the navy, as one of the commissioners, can give no right to the allowance without the concurrence of the other members. This proposition is not denied: but the testimony of Mr Southard, as has been already shown, goes fully to establish the fact, that he had the general authority *47 of the board to act as its agent; and leaves little or no doubt of the sanction of the board to the particular claims in question. It was, however, pretty strongly intimated at the bar, though it was not understood to be positively asserted, that these facts could not be established by parol, but that the proceedings of the board must be shown in writing. And this would seem to be one of the questions intended to be made under the second prayer. It would be a sufficient answer to this, that no objection was made at the trial to the admission of the evidence. But the objection, if it had been made, could not have been sustained. There is no general principle of law known to the court, and no authority has been shown establishing the doctrine, that all the proceedings of such boards must be in writing, or that they shall be deemed void, unless the statute under which they act shall require their proceedings to be rendered to writing. It is certainly fit and proper that every important transaction of the board should be committed to writing. But the law imposes no such indispensable duty. The act of 1811, 4 Laws U.S. 311, constituting the fund for navy hospitals, only makes the secretaries of the navy, treasury and war departments, a board of commissioners by the name and style of commissioners of navy hospitals, and gives some general directions in what way the fund is to be employed; but the mode and manner of transacting their business is not in any respect prescribed. It is not true even with respect to corporations, that all their acts must be established by positive record evidence. In the case of the Bank of the United States v. Dandridge, 12 Wheat. 69, this court says, "we do not admit as a general proposition, that the acts of a corporation are invalid merely from an omission to have them reduced to writing, unless the statute creating it makes such writing indispensable as evidence, or to give them an obligatory force. If the statute imposes such restriction it must be obeyed." Considering then the testimony of Mr Southard as competent evidence to establish the acts of the board, it shows very clearly, that the services rendered by the defendant, and for which he claims compensation, were not embraced within his duties as secretary of the board; but were extra services, for which the commissioners agreed to make him compensation.
*48 Another question may perhaps arise under the latter branch of the second prayer, whether the sanction or approval by the board of commissioners was an indispensable preliminary step to entitle the defendant to set up in the present action his claim against the demand of the United States. And we think it was not. If the board had authority to employ the defendant to perform the services which he has rendered, and these services have been actually rendered at the request of the board, the law implies a promise to pay for the same.
This principle is fully established in the case of the United States v. Wilkins, 6 Wheat. 143; which brought under the consideration of the court the act of the 3d of March 1797, 2 Laws U.S. 594, providing for the settlement of accounts between the United States and public receivers. And the court says, "there being no limitation as to the nature and origin of the claims for a credit which may be set up in the suit, we think it a reasonable construction of the act, that it intended to allow the defendant the full benefit at the trial of any credit, whether arising out of the particular transaction for which he was sued, or out of any distinct and independent transaction, which would constitute a legal or equitable set-off, in whole or in part, of the debt sued for by the United States," subject, of course, to the requirement of the act, that the claim must have been presented to the proper accounting officers and disallowed.
The circuit court, therefore, properly refused to give the instructions asked on the part of the United States.
The instructions given to the jury are as follows:
If the jury believe from the evidence, that the regular duties to be performed by the defendant as secretary to the commissioners of the navy hospital fund, at the stated salary of two hundred and fifty dollars per annum, did not extend to the receipt and disbursement of the fund; that the duty of receiving and disbursing the fund was required of, and performed by him as an extra service, over and above the regular duties of his said appointment; that it has been for many years the general practice of the government and its several departments to allow to persons, though holding offices or clerkships, for the proper duties of which they receive stated salaries or other fixed *49 compensation, commissions over and above such salaries or other compensation, upon the receipts and disbursements of public moneys appropriated by law for particular services, when such receipts and disbursements were not among the ordinary and regular duties appertaining to such offices or clerkships, but superadded labour and responsibility, apart from such ordinary and regular duties: and that the defendant took upon himself the labour and responsibility of such receipts and expenditures of the navy hospital fund at the request of said commissioners, or with an understanding on both sides that he should be compensated for the same as extra service, by the allowance of a commission on the amount of such receipts and expenditures, then it is competent for the jury in this case to allow such commissions to the defendant on the said receipts and disbursements as the jury may find to have been agreed upon between the said commissioners and the defendant; or in the absence of any specific agreement fixing the rate of commissions, such rate as the jury shall find to be reasonable, and conformable to the general usage of the government and its departments in the like cases.
These instructions were entirely correct, and in conformity to the rules and principles laid down in the former part of this opinion.
Another bill of exceptions was taken to the ruling of the court, with respect to evidence of usage.
The record states, that upon the trial of this cause the defendant offered to prove, by the testimony contained in the preceding bill of exceptions, the general usage of the different departments of the government in allowing commissions to the officers of government upon disbursements of money under a special authority, not connected with their regular official duties. The counsel of the United States objected to the admission of parol evidence to prove such usage, but the court permitted the evidence to be given.
The real point of this exception is not very apparent. From the form in which it is put, it would seem that the objection was to the admission of parol evidence of the usage. But this probably was not the restricted sense in which the objection was intended to be made. The offer, however, was not to *50 introduce new evidence of usage, but to prove it by the testimony contained in the preceding bill of exceptions. It amounted, therefore, to nothing more than a mere inference or deduction from the evidence already before the court and jury, and which had been admitted without objection. But we see no grounds for objection against the usage offered to be proved, and the purpose for which it was so offered, as connected with the very terms upon which the defendant was employed to perform the services. It was not for the purpose of establishing the right, but to show the measure of compensation, and the manner in which it was to be paid. Mr Southard states that it was the understanding of the commissioners that the defendant was to receive compensation, in the mode and according to the practice of the government in other similar cases. And the usage offered to be shown was, that such compensation was made by allowing commissions on the disbursement of the money expended; and in this point of view it was entirely unexceptionable.
We are accordingly of opinion that the judgment must be affirmed.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia holden in and for the county of Washington, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed.
