Dermott v. Jones. at a proper time and in a proper way, or that he was prevented by the act or default of the other contracting party." (2 Parsons on Contracts, ch. 3, 189.) The first installment was to be paid on an appointed day, in consideration of the work to be begun; and the second installment was to be paid on a subsequent day, if the work should then be finished and delivered over to the defendant, ready and fit for use and occupation. Before that day it could not have been demanded; on that day, the work having been performed, it might have been. The evidence shows that the work had not been done on the 1st of October, 1851, and was not finished until the 1st of December. The plaintiff avers in his first amended count that he had, on his part, complied with his undertaking in the special contract. The issue upon it is, that he had not done so, and he gave no proof to sustain the averment. The evidence entitled the defendant to a verdict on that count; but the court, without regard to the time fixed upon for the work to be finished, instructed the jury, that if the work had been done according to the specifications forming a part of the contract, in a skillful and workmanlike manner, or if his execution of it was with the knowledge and approbation of the defendant, then they were to find for the plaintiff the sum of five thousand dollars, with interest from the date of the delivery of the stores and warehouse. It must be obvious that this instruction makes between the parties a different contract from that into which they had entered, and one different from that the plaintiff.had declared upon. [* 233 ] *The plaintiff gave no evidence to support the count; but there was evidence showing the reverse of performance on his part. For this error in the court's instruction to the jury upon the first amended count, we shall remand the case for another trial upon the plaintiff's original declaration in debt with the common counts, as in indebitatus assumpsit. We do not consider that the plaintiff's right to recover upon that declaration was in any way affected by the extra work which was done upon the requisition of the defendant, or by the increase of materials which he furnished for that purpose; or that the sinking of the foundation of the buildings excused him from finishing the work by the time specified; or that the acceptance of the buildings by the defendant as they had been constructed by the plaintiff was any release of the plaintiff from his undertaking to finish. them in the time specified in the contract. But after that time had passed, the plaintiff continued, with the knowledge and permission of the defendant, and also with the knowledge of her. Dermott v. Jones. superintending architect, to do the work specified in the contract, and also to do the extra work, and to furnish the materials necessary for both. And when the work was done by the plaintiff, however imperfectly that may have been, the defendant accepted it. The law in such a case implies that the work done and the materials furnished were to be paid for. The general rule of law is, that while a special contract remains open-that is, unperformed the party whose part of it has not been done cannot sue in indebitatus assumpsit to recover a compensation for what he has done, until the whole shall be completed. This principle is affirmed and acted upon in Cutter v. Powell, 6 Term Reports, 320; also in Hulle v. Heightman, 2 East. 245, and in several other cases. But the exceptions from that rule are in cases in which something has been done under a special contract, but not in strict accordance with that contract. In such a case, the party cannot recover the remuneration stipulated for in the contract, because he has not done that which was to be the consideration of it. Still, if the other party has derived any benefit from the labor done, it would be unjust to allow him to retain * that [* 234] without paying anything. The law, therefore, implies a promise on his part to pay such a remuneration as the benefit conferred is really worth; and to recover it, an action of indebitatus assumpsit is maintainable. Such is the law now in England and in the United States, notwithstanding many cases are to be found in the reports of both countries at variance with it. It was recognized by this court to be the existing rule in the case of Slater v. Emerson, 19 Howard, 224, 239. The difference between the rule now and in earlier times, it is believed, has caused much of the difficulty in the establishment of the present rule. Formerly it was held, that whenever anything was done under a special contract not in conformity with it, the party for whom it was done was obliged to pay the stipulated price; but that he might resort to a cross-action, to indemnify himself for the deficiency in the consideration. Blair v. Davis, 1794, cited in 7 East. 470. See Smith's L. Cases, in the notes following the case of Cutter and Powell, 2d vol., for a full description, historical and chronological, of the rule as it now prevails: and as it formerly was. The rule as it now exists has been recently discussed and affirmed in the Queen's Bench, in the case of Munroe v. Phelps and Bell, 8 Ellis and Blackburn, 739; 92 English Common Law. It has been the rule in the courts of New York for more than Dermott v. Jones. thirty years. In the case of Jewell et al. v. Schroepnell, 4 Cowan, 564, it was decided, that if there be a special contract under seal to do work, and it be not done pursuant to the agreement, whether in point of time or in other respects, the party who did the work may recover, upon the common counts in assumpsit, for work and labor done. If, when the time arrives for performance, the party goes on to complete the work, with the knowledge of his employer, it was evidence of a promise to pay for the work. So if the employer does not object. This rule prevails also in Massachusetts, in Pennsylvania, and in several of the other States. Also in Alabama, as may [*235] *be seen in the case of McVoy v. Wheeler, 6 Porter, 201. It is discussed, with a very accurate discrimination of its application, in the 2d vol. of Professor Parsons upon Contracts. In the trial of such an action, where the defense is not presented as a matter of set-off, arising on an independent contract, but for the purpose of reducing the plaintiff's damages, because he had not complied with his cross obligations arising on the same contract, the defendant may be allowed a recoupment from the damages claimed by the plaintiff for such loss as she shall have sustained from the negligence of the plaintiff. Such evidence is allowed to prevent circuity of action, and to prevent further litigation upon the same matter. It may be well to say, that the court allowed a recoupment in Green and Biddle, 8 Wheat., 1, to a disseizor, who was a bona fide occupant of land, for the improvement made by him upon it against the plaintiff's damages. But such recoupment cannot be claimed unless the defendant shall file a definite statement of his claims, with notice of it to the plaintiff, sufficiently in time before the trial term of the case to enable the latter to meet the matter with proof on his side. We have pursued the case in hand further than may have been necessary; but it was thought best to do so, as the points now here ruled have not before been expressly under the consideration of this court. The judgment given in the court below is reversed; and we shall order that the case shall be remanded to it, with directions for its trial again, pursuant to our rulings in this opinion. Hooper v. Scheimer. NATHAN E. HOOPER and others, Plaintiffs in Error, v. JACOB SCHEIMER. 23 H. 235. EJECTMENT-REGISTER'S CERTIFICATE NO TITLE. 1. It is the settled doctrine of this court that no action of ejectment can be sustained in the federal courts on a certificate of entry in the land office. Where the statutes of the State have provided otherwise, it is only binding on the State courts, and not on the federal courts. 2. In all courts of common law the patent from the United States carries the fee, and is the best title known to such courts. WRIT of error to the circuit court for the eastern district of Arkansas. The case is stated in the opinion. Mr Stillwell, for plaintiff in error. Mr. Hempstead, for defendant. * Mr Justice CATRON delivered the opinion of the court. [*248] An action of ejectment was brought in the circuit court of the United States for eastern district of Arkansas, founded on an entry made in a United States land office. This was the only title produced on the trial by the plaintiffs. The defendant held possession under a patent from the United States to John Pope, (governor, &c.,) with which the defendant connected himself by a regular chain of conveyances. The circuit court held the patent to be the better legal title, and so instructed the jury, who found for the defendant; and the plaintiffs prosecute this writ of error to reverse that judgment. * By the statute of Arkansas, an action of ejectment [* 249] may be maintained where the plaintiff claims possession by virtue of an entry made with the register and receiver of the proper land office of the United States. Ar. Digest, 454. This court held, in the case of Bagnell et al. v. Broderick, (13 Peters, 450,) that congress had the sole power to declare the dignity and effect of a patent issuing from the United States; that a patent carries the fee, and is the best title known to a court of law." Such is the settled doctrine of this court. But there is another question, standing in advance of the foregoing, to wit: Can an action of ejectment be maintained in the federal courts against a defendant in possession, on an entry made. with the register and receiver? It is also the settled doctrine of this court that no action of ejectment will lie on such an equitable title, notwithstand | 23h 235 L-ed 452 381 790 381 791 The United States v. White. State legislature may have provided otherwise by statute. The law is only binding on the State courts, and has no force in the circuit courts of the Union. Fenn v. Holme, (21 How. 482.) It is ordered that the judgment be affirmed. No. 60 depends on the same titles and facts and instructions to the jury as are set forth in 59; and the same verdict and judgment were given in the circuit court. We order it to be affirmed likewise. THE UNITED STATES, Appellants, v. ELLEN E. WHITE, Administratrix of Charles White. 23 H. 249. CALIFORNIA LAND GRANTS. 1. Where it appears that a valid grant has been made by the Mexican government, the courts will not permit the authority of the federal government to be interposed against a claimant on the ground that another claimant has a better right. In such case the United States has no interest. 2. But where the court below has permitted the United States to set up the rights of a third party against claimant, this court will reverse and remand the cause, that the conflicting rights of the adverse claimant may be contested according to the provisions of section 13 of the act of March 3, 1851. APPEAL from the district court for the northern district of California. The case is well stated in the opinion. Mr. Black, attorney general, and Mr. Crittenden, for appellants. Mr. Cushing and Mr. Phillips, for appellee. [* 253] * Mr. Justice GRIER delivered the opinion of the court. It is clear, from the evidence in this case, that, as against the United States, either Ortega or Miranda has a just claim. to a confirmation of his title to the tract in dispute. But whether Ortega was landlord, and Miranda his tenant, or which of the claimants has attempted to overreach the other, are questions in which the government has no interest. The United States officers are not bound to settle this dispute between these parties in these proceedings. Nor should either party be permitted to carry on their litigation, by assuming to act for the government, and thus take the advantage of their opponents, by fighting under its shield and at its expense. The district attorney of California had neither interest nor authority to represent Miranda in order to defeat Ortega; nor can this court be thus compelled, on an appeal by the attorney |