the construction company was contained in the company's letter to him dated April 23, in which they notified him that the cement had been shipped, would probably arrive about the 10th of May following, and had been selected because the construction company understood that German cement was preferred by the Government engineers. Captain Carter does not intimate that any indication of preference for this cement had been given by the Government officers, or that any previous request for its free importation had been made by them or by the construction company, and he merely states that he sees no objection to the use of the cement in question, provided it fulfills all the necessary conditions.

In the advertisement, specifications, and proposal leading up to the contract of the construction company as approved by the Secretary of War and submitted to me, while there are printed conditions requiring the prices to be for material in place, and to include the cost of all material of every description entering into the construction, and requiring the use of Portland cement as well as natural cement, and the preparation of different grades of concrete, composed of various proportions of Portland and natural cement, there are no provisions which appear to contemplate any variation from these requirements, nor in particular the use of foreign Portland cement, nor the exemption from duty of any material used. The proposal attached to the said contract is a blank form only, and is not filled out with any words or figures to adapt it to the particular contract before us; but this is the document with its various parts as actually combined and executed, from which the agreement of the parties is to be deduced, and the general rule of law is that it is not permissible to import into a contract from oral understandings or separate documents provisions which are contradictory of or additional to the terms expressed. Upon this state of the papers it appears that your declination aforesaid concurring in the views of the Chief of Engineers was based, and that the Chief of Engineers in expressing his view that in ordering the cement from abroad without first having submitted the question to the Secretary of War or notifying the engineer in charge the construction company took a course for which it alone is responsible, calls attention to the

fact that in its proposal for the work the company made no reference to using foreign cement, nor did it intimate that it expected articles which it intended to import to be admitted free of duty.

It is now stated, however, from the letter addressed to the Chief of Engineers by Capt. Cassius E. Gillette, dated Savannah, May 23, 1898, that the proposal of the Venable Construction Company, which was accepted by the War Department, contained, as matter of fact, upon the second page thereof, the clause, "Foreign, Portland, and domestic Rosendale to be used," and that the company, before the date of importation of the cement, asked Captain Carter to request you to admit the said cement free of duty, and that Captain Carter advised the company that upon specific application, giving the brand and quantity of cement and other necessary information, he would forward the matter to the Secretary of War for action; and it is further stated that the officers of the construction company understood that Captain Carter expressed a preference and desire to have all Portland cement used in the work to be of German manufacture, which would be free of duty; and that Assistant Engineer Gieseler, while not knowing what the bidders were given to understand by Captain Carter previous to the bidding, has the impression that nothing but imported cement was ever thought of by either Captain Carter or himself in connection with the work, particularly because he does not know of any Portland cement of American manufacture that is authoritatively accredited to compare in essential qualities with the German Portland, from which facts and the others heretofore referred to it appears to Captain Gillette that bidders were given to understand that foreign Portland cements were wanted, and that the bidder having specified such cement and entered into a contract in good faith involving the furnishing of the same, and in view of its actual use in the construction of the works, it would be unfair to the contractor to secure the benefits gained by the use of foreign cement without allowing him free entry, as appears to be provided by law.

It will be necessary at this point to consider the law upon the subject and the general statutory provisions applicable

to public contracts and determinations of my predecessors and the courts thereon.

Section 3744 of the Revised Statutes makes it the duty of the Secretary of War to require every contract made by him or by officers under him to be reduced to writing and signed by the parties at the end thereof, a copy of which must be filed in the proper office, together with all bids, offers, and proposals, and with a copy of the advertisement inviting hids; and by section 3745 it is the duty of the officer, in making return, to take an oath that the copy is an exact copy of the contract made, and that the accompanying papers include all those relating to the contract.

The contract before us is not a contract entered into by correspondence, in which case, however, the whole correspondence must be considered, and both parties must assent to a provision or condition before either is bound (United States v. Bostwick, 94 U. S., 53, 65; Lovett v. United States, 12 Ct. Cls., 67, 82); but it is a formal written contract which merges all previous negotiations, and is presumed to express without any uncertainty the final understanding of the parties, and antecedent conversations or previous or contemporary oral agreements regarding it are strictly inadmissible. (Brawley v. United States, 96 U. S., 168, 173–174; De Witt v. Berry, 134 U. S., 306; Johnson v. St. Louis, etc., Ry., 141 U. S., 602; Culver v. Wilkinson, 145 U. S. 205.) And although parol evidence is admissible to show the facts and circumstances amid which a contract was made, when necessary to explain its meaning or application (Bradley v. Steam Packet Co., 13 Peters, 89; Peck's Case, 14 Ct. Cls., 84), the rule just stated would also exclude antecedent correspondence when not in terms, by reference, or by effect, made part of the subsequent instrument. The general rule is therefore to be applied, viz: When the writing itself, upon its face, is couched in terms importing a complete legal engagement, without any uncertainty as to its object or extent, it will be conclusively presumed that the whole. engagement was reduced to writing. (Seitz v. Brewers' Refrigerating Co., 141 U. S., 510, 517, citing Greenleaf on Evidence, sec. 275.)

Now, section 3744 is a statute of frauds more stringent

and restricted than the English statute and others based upon it, in that part performance does not take a case out of the statute (Jones v. United States, 11 Ct. Cls., 733; South Boston Iron Co. Case, 18 Ct. Cls., 165; affirmed S. C., 118 U. S., 37; Barnes et al. v. District of Columbia, 22 Ct. Cls., 366), and its provisions are mandatory and not directory. (Clarke v. United States, 95 U. S., 539; Neuchatel Company's Case, 17 Ct. Cls., 386; Steele v. U. S., 19 Ct. Cls., 181.) Furthermore, under the circumstances of this case, and with regard to the pending question, the contract is to be considered as still executory, and therefore as not taken out of the statute because executed. And the Jones case supra and other cases cited are authority for the proposition that a subsequent verbal agreement may not alter a contract under section 3744.

While it has been held generally, under the statutes and regulations applicable to contracts of the Post-Office Department, that proposals duly accepted, without formal agreement, may constitute a contract complete and binding on the Government (15 Op., 226; 17 Op., 70; 20 Op., 293; Schneider v. United States, 19 Ct. Cls., 547, and authorities cited p. 552), this is not the case with contracts for public works and other contracts under section 3744. (So. Boston Iron Co. Case, supra; 20 Op., 445; Id., 496; and see 19 Op., 269.) As to such contracts the following language is instructive:

*

*

"Congress inserted these words ['signed with their names at the end thereof'] for a purpose, and courts must give them effect. * These additional words can not mean less than that the contract shall be so full and complete before signing that it can be signed in whole by both parties. It excludes the idea that one party may sign one part of the contract and the other party another, and leave the courts to arrange a contract by collecting and joining the pieces." (South Boston Iron Co. Case, 18 Ct. Cls., p. 177.)

This contract is, as matter of fact, a complete written contract, and it may be added that a parol agreement while the contract is executory is not obligatory on the Government (Wilson & Goss v. United States, 23 Ct. Cls., 77); that where there is a variation (as to a release) between an oral and written understanding, the latter must be considered to

be drawn according to the actual agreement ( Walsh v. United States, 21 Ct. Cls., 268); and that a contract can not be changed or modified by the protest of one party (Railway Company v. United States, 28 Ct. Cls., 379). Nor does this case involve the reasonableness or propriety of a modification actually made under a clause in a contract providing for that contingency, such as was allowed without a new advertisement by 21 Opinion, 207.

Consequently, where a contract is duly executed and approved, and the advertisement and specifications are in terms, as here, made part thereof, these papers constitute the contract, and we are not permitted to look outside them, and if the proposal as accepted is not attached and made part thereof in fact, it ought, at least, in order to be regarded, to be identified and included by appropriate reference. This leaves, however, for your determination as a question of fact and a part of the case the query whether the uniform or usual administrative practice of your Department views the proposal in such case and its formal acceptance by the Government as an integral portion of the agreement as executed, indicated by the filing of those papers on that theory in the proper returns office, and whether there was in this case such a proposal, duly accepted, and viewed and filed accordingly. Nothing in the foregoing review of the law would in that event (in my opinion) prevent your giving due weight to the circumstance.

Finally, in view of the foregoing résumé, it appears to me that there is no legal reason why you should not reconsider the case, and, without suggesting the proper course for your administrative judgment to take, or the proper conclusion for you to reach, it would seem to me to be right to inquire what provisions, if any, the proposal (if properly to be considered as part of the contract, as just indicated) contained, as matter of fact, in reference to the use of foreign Portland cement, and what, if anything, passed upon the subject between the representatives of the construction company and the officers of the Corps of Engineers, acting on behalf of the Government, anterior to the date of Captain Carter's letter to the Chief of Engineers, dated April 24, 1897, which might properly influence or control your views of the merit