cost of the building would be appropriated for in a succeeding year or years, held that a contract might (upon advisement, &c.) be legally entered into for the entire work of the erection of the building, for the full consideration named in the first act, without a contravention of the terms of Sec. 3733. 43, 375, October, 1890. 893. Held, that it would be legally authorized to enter into a contract for the construction, for the sum of $2,130, of quarters for hospital stewards at Jefferson Barracks; the limitation of contracts for such quarters to a less sum by the act of February 24, 1891, being confined to the fiscal year to which that act pertained, and therefore no longer in force. 61, 101, August, 1893. 894. Sec. 3690, Rev. Sts., in providing that balances of appropriations for any fiscal year remaining unexpended at the end of such year shall not be applied to the "fulfillment" of any contracts except those "properly incurred during that year," expressly excepts "permanent or indefinite appropriations." The existing law (Sec. 1661, Rev. Sts.) makes a permanent appropriation of a certain sum annually "for the purpose of providing arms and equipments for the militia." Held that a balance of this appropriation, remaining unexpended on the last day (June 30th) of a certain fiscal year, could legally be used for the payment of a contractor in December following, under a contract entered into, in November, with the Ordnance department for the manufacture of an arm intended to be issued to the militia. XXXI, 85, December, 1870. 895. Under Secs. 3739-3742, Rev. Sts., it is illegal for an officer of the United States to enter into a contract or make a purchase of a firm or association (not incorporated) of which a member of or delegate to Congress is a member or in which one is pecuniarily interested. XLII, 344, June, 1879. 896. The Army Regulations prohibit purchases by officers of the army from any other person in the military service." Held that this prohibition did not embrace civilians employed in the public service under the War Department, or in connection with the military administration, and therefore did not preclude the making of a contract by an ordnance officer, as representing the United States, with a civil employee at an arsenal, for the use of an invention patented by the latter. XXI, 320, April, 1866; XLII, 308, May, 1879. (See $$ 956, 957, post.) 897. In view of the positive prohibition of Sec. 3737, Rev. Sts., that 'See 6 Comp. Dec., 815; id., 898. That Sec. 3739, Rev. Sts., does not affect contracts made with persons who have been simply elected members of or delegates to Congress, but have not actually become such by being sworn in, see opinion of the Attorney General in 15 Opins., 280. See A. R., 1002 of 1863; 1632 of 1881; 746 of 1889; 589 of 1895; 671 of 1901. 'See United States v. Burns, 12 Wallace, 246, 251; 10 Opins. At. Gen., 2; 20 id., 329. no contract or interest therein shall be transferred by the contractor, and the further provision that any such transfer shall operate as an annulment of the contract, "so far as the United States are concerned," held that an officer of the army representing the United States in a contract for military transportation, would not be authorized, of his own discretion, to consent or waive objection to an assignment, in whole or in part, of a contract, by the contractor, so as to admit the assignee to perform the service.1 XXXI, 436, June, 1871; XXXVII, 13, May, 1875. 898. Where a contract has been once formally entered into with a certain party, for the officer representing the United States to assume to admit additional parties into the agreement and undertaking (thus in fact consenting to a transfer by the contractor of an interest in the contract) would be wholly unauthorized. XXXVI, 463, May, 1875. 899. A mere power of attorney given by a contractor to another person authorizing him to receive for the contractor moneys coming due under the contract, cannot of course operate as a transfer of an interest therein; but where, by a written agreement between a contractor and another party, the latter was empowered to receive the payments from the United States, in consideration of which he undertook to continue and complete the work contracted for, held that such agreement was a power coupled with an interest, and operated as a transfer within the meaning of Sec. 3737, Rev. Sts. XXVIII, 346, January, 1869. 2 900. Under Sec. 3737, Rev. Sts., the assignment of a contract does not render it absolutely void, but voidable at the option of the United 1That an assignment of a contract transfers no legal claim or right of action to the assignee, and that a contract when assigned is no longer binding upon the United States, see Wheeler v. United States, 5 Ct. Cls., 504; Wanless v. United States, 6 id., 123; Gill v. United States, 7 id., 522; McCord v. United States, 9 id., 155; Francis v. United States, 11 id., 638; 10 Opins. At. Gen., 523. But it has been held by the Attorney General that the statute on the subject (Sec. 3737, Rev. Sts.) is intended simply for the benefit and protection of the United States, which, therefore, is not compelled to avail itself of a transfer by the contractor to annul the contract, but may recognize the same and accept and pay the assignee. "Were it to be held,' observes the Attorney General, "that a transfer of an interest would absolutely avoid the contract, it would enable any party making a contract with the United States to avoid it by simply transferring an interest therein, which is a construction manifestly inadmissible. Opinion in the case of the "Fifteen per cent. contracts," (15 Opins., 235.) And similarly held by the same authority in a later opinion (16 Opins., 277) that while the United States may avail itself of an assignment to declare the contract annulled, it is not required to do so, but, if deemed to be for its interest, may recognize the assignee. But it is clear that an officer of the army could not properly assume to treat an assignment of a contract (or interest therein) as valid, without the authority and direction of the Secretary of War. That for a mail contractor to contract with another person to transport the mail for him, and as his servant or employee, was not an assignment of his contract with the United States, was held in the recent case of Frye . Burdick, 67 Maine, 408. That a power coupled with an interest is irrevocable, see Hunt . Ennis et al., 2 Mason, 244; Wheeler . Knaggs, 8 Hammond, 169; McDonald v. Admr. of Black, 20 Ohio, 185; 7 Opins. At. Gen., 35. 1 States. Where the Government accepts from the assignee work or materials under the contract, or permits a part performance, it ratifies the assignment. 16, 1, April, 1887; Card 2933, February, 1897. Where the War Department assented to the transfer of a contract for the manufacture of ordnance from one iron works to another and accepted deliveries from the latter, held that the contract remained in full force. 16, 1, supra. 901. The expression in a contract that the contractor agrees “for heirs, executors and administrators" is not essential. The personal representatives of a deceased contractor are entitled to carry out his contracts, and the estate, both personal and real, of such contractor is liable for his debts and contracts independently of the provisions of the contracts. The provision that the transfer of the contract or any interest therein "shall cause the annulment of the contract so far as the United States is concerned," being the words of the statute (Sec. 3737, Rev. Sts.), may properly be incorporated in the contract, but it would be better to substitute therefor the provision that "in case of such transfer the United States may refuse to carry out this contract either with the transferor or the transferee," as more clearly expressing what is intended by the statute as construed by the courts. Card 2878, January, 1897. 902. An assignment, to have the effect of invalidating a contract, need not be express; nor need it be technical, formal, or written.3 It may be evidenced by the various facts or circumstances illustrating the relations and intention of the parties. 62, 211, November, 1893. 903. It has been held by the Supreme Court that Sec. 3477, Rev. Sts., which prohibits or makes null and void all transfers and assignments of claims against the Government does not apply to involuntary assignments in bankruptcy or even to voluntary assignments for the benefit of creditors and the reasoning applies with equal force to Sec. 3737, Rev. Sts. So held that an assignment for the benefit of its creditors by the company under contract with the United States to build the Memorial Hall at West Point, N. Y., was not void under Sec. 3737, Rev. Sts. Card 2828, December, 1896. Further held that where there had been an assignment for the benefit of creditors, payments due or becoming due on the contract should be made to the duly appointed assignee and could not legally be made to the assignors, and See 15 Opins. At. Gen., 235; 16 id., 277; 18 id., 88; also Francis . United States, 11 Ct. Cls., 638; 2 Comp. Dec., 49; 4 id., 43; 6 id., 88. 2 See Wheeler r. U. S., 5 Ct. Cls., 504; 2 Comp. Dec., 49. 3 Francis c. U. S., 11 Ct. Cls., 638. * Erwin v. U. S., 97 U. S., 392, and Goodman r. Niblack, 102 id., 556. 52 Comp. Dec., 49. 16906-01 -17 that par. 1, Circ. 13, A. G. O., 1895, did not apply to such an assignment. Card 2052, February, 1896. 1 904. Sec. 3737, Rev. Sts., does not apply to an assignment by operation of law. Thus where a party died pending the execution of a contract by him with the United States, held that his executors could legally be permitted to complete the contract after filing a certificate from the proper court of their appointment, but for them to assign the contract to others would be a violation of its terms and also of Sec. 3737, Rev. Sts. Card 5849, February, 1899. And where a bidder died before the contract was entered into, held that the contract and bond should be in the names of the executors of his estate as such executors. Card 8403, May, 1900. 905. The assignee of a party entering into a contract with the United States should sign the same as assignee, or if signed for him by an agent, the authority, in writing (under seal if the contract be under seal) of such agent should accompany the contract. Card 2446, July, 1896. 906. A receiver duly appointed for a company having a contract with the United States may be permitted to execute the contract, payments being made to the receiver on receipts signed by him. Such action would not amount to an assignment of a contract prohibited by Sec. 3737, Rev. Sts. This section applies to voluntary transfers and not to such as are made under judicial proceedings. The receiver is an officer of the court which appointed him, acts under its orders, is appointed on behalf of all parties interested, and stands in the place of the company. And after his appointment the company can exercise no acts with reference to its property and contracts, such matters being in the hands of the receiver. Card 7508, January, 1900; 9247, November, 1900. 907. It is a general principle that after a government contract has been once duly consummated, the same cannot legally be modified as to any of its material stipulations by the consent of the immediate. parties. To agree to such a modification is in effect to make a new 266 * * * 1 Concurred in by the Comptroller of the Treasury under date of Feb. 20, 1896. 2 The power vested in the head of an executive department to make contracts for work or materials does not imply the power to rescind or alter such contracts when made." 9 Opins. At. Gen., 80. "The authority to make a contract implies no authority to change it after it is made." Id., 104. "When the contract is closed, the general rule is that it must be executed without change of terms. The terms of contracts made by government officers are not in general subject to change at the will of either party, or of both parties. If they were, every legal guard against fraud and favoritism in making contracts could be easily evaded." 10 id., 476, 480. The later authorities, however, appear to favor the exercise, by the head of a Department, of a discretion to consent to modifications in the course of the execution of public contracts, where such modifications (not being in contravention of law) are found to be for the public interest, and are not of such a character as to operate to the pecuniary disadvantage of the United States. See United States . Corliss Steam-Eng. Co., 1 Otto, 321; 15 Opins. At. Gen., 481; 21 id., 207; 2 Comp. Dec., 182; 3 id., 54; 4 id., 38; 5 id., 83; 7 id., 92. contract. Thus where a contract had been duly made and executed for the furnishing of a certain specified quantity of military stores, held that an agreement subsequently entered into between the contractor and the officer representing the United States, that the former should deliver and the latter receive, under the contract, a certain additional quantity of the same stores, was not merely a modification of the existing contract, but was in fact the making of a new contract, and this without a compliance with the formalities required by statute. And advised that the stipulation thus agreed to (but not in fact carried into effect) be rescinded as unauthorized and in contravention of law. XLI, 182, April, 1878. 908. Of course no new term or condition can be ingrafted upon a contract by the United States without the assent of the contractor. 29, 324, January, 1889. Material changes made in a contract not stipulating for the same, by supplemental contract or otherwise, will operate in law to discharge the sureties on the contractor's bond unless they formally assent to the same, whether such change or changes be prejudicial to them or the reverse. 30, 116, February, 1889; 55, 365, September, 1892. But where, in the course of the execution of a contract for the dredging of a river, there was developed certain work requiring to be done, which was not embraced in the work contracted for but was quite new and distinct, viz, the removal of a bar formed in the river after the work under the contract had commencedheld that the same could not be included by consent in the existing contract, or covered by a supplemental contract entered into, without advertising, with the same contractor, though such course might be more advantageous to the United States, but that the law must be complied with by a new advertisement for proposals followed by a separate formal contract. 47, 257, May, 1891. 909. Where a contract stipulates for a modification of its terms, by consent of parties, to be set forth in a supplemental contract, such supplemental contract must be confined to modification merely of the specific undertaking which is the subject of the original contract. A modification which introduces any new matter not originally contracted for-as different and distinct work to be done or service to be performed is a new and independent contract made without advertising for bids, and not legitimate. So held that a contract for 1See U. S. Glass Co. v. W. Va. Flint Bottle Co., 81 Fed. Rep., 993, where the court, while holding that the alteration in question was material, also held that an immaterial alteration by the parties to a contract would discharge the sureties, if made without their consent. In an opinion dated August 13, 1895 (21 Opins., 207), the Acting Attorney General held that a modification of a contract, "where the interests of the Government will not be prejudiced or any statutory provision violated thereby," may be made, although it may be a departure from the advertisement for proposals, citing U. S. v. Corliss Steam Engine Co., 91 U. S., 321, and Ferris v. U. S., 28 Ct. Cls., 332; that a |