competent for plaintiff below to show by parol evidence that the contract was finally executed and delivered by defendant at a date subsequent to that mentioned in the contract itself, from which latter date the time allowed for the manufacture and delivery of the pipe should be computed; that the manufacture and delivery of the pipe within the time mentioned constituted a condition precedent, and that no recovery could be had on the contract for any pipe delivered to and accepted by defendant after the time specified for delivery; that if plaintiff was entitled to recover for pipe delivered after the times mentioned, defendant was entitled to offset the penalties against the contract price as liquidated damages; and that no interest ought to have been allowed in the recovery. Messrs. Andrew B. Duvall and Clarence A. Brandenburg submitted the cause for plaintiff in error: The commissioners of the District of Columbia are not the municipality, and had only such authority in the premises as was conferred upon them by Congress. District of Columbia v. Bailey, 171 U. S. 161, 43 I.. ed. 118, 18 Sup. Ct. Rep. 868. A contract on behalf of the corporation by an agent who affixes his private seal has the effect of binding the corporation only by simple contract. Bank of the Metropolis v. Guttschlick, 14 Pet. 29, 10 L. ed. 340; Tiedeman, Mun. Corp. 165; 1 Dill. Mun. Corp. § 452; 21 Am. & Eng. Enc. Law, p. 910, 2d ed. pp. 1040, 1041. Where duly appointed officers or agents acting within the scope of their authority execute an instrument on behalf of a corporation, signing their own names and affixing their own seals, such seals are merely nugatory, and the instrument is to be regarded as a simple contract, and, if otherwise valid, binding on the corporation as such. Regents of University v. Detroit Young Men's Soc. 12 Mich. 138; Blanchard v. Blackstone, 102 Mass. 343; Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198. An instrument purporting to be the deed of a corporation, and executed in its name by its president, with the word "seal" at the end of the signature, is not effective as the deed of the corporation, either at common law or under the Code. Such deed is only the personal act of the president, and is not admissible in evidence to prove the conveyance by the corporation. Caldwell v. Morganton Mfg. Co. 121 N. C. 339, 28 S. E. 475. A deed purporting to be the deed of a corporation authorized by law to have and use a common seal, which is not sealed with the corporate seal, is void. Danville Seminary v. Mott, 136 Ill. 289, 28 N. E. 54; Female Orphan Asylum v. John son, 43 Me. 184; Whitford v. Laidler, 94 N. Y. 145, 46 Am. Rep. 131. A corporation can only execute a formal bond with its corporate seal, countersigned by an officer entitled to affix its seal. South Missouri Land Co. v. Jeffries, 40 Mo. App. 360. An agent or attorney of a corporation in executing a deed in its name must, in order to make it the act and deed of the corporation, affix thereto the corporate seal. Savings Bank v. Davis, 8 Conn. 191; Thompson, Corp. 1 5080, and cases cited; Randall v. Van Vechten, 19 Johns. 60, 10 Am. Dec. 193; Bank of the Metropolis V. Guttschlick, 14 Pet. 29, 10 L. ed. 340; Bank of Columbia v. Patterson, 7 Cranch, 299, 3 L. ed. 351; Mitchell v. St. Andrew's Land Bay Co. 4 Fla. 200; State v. Allis, 18 Ark. 269. The demurrer to the defendant's plea of the statute of limitations reached back through the whole record, and raised the question whether the declaration was good. Clearwater v. Meredith, 1 Wall. 25, sub nom. Ferguson v. Meredith, 17 L. ed. 604. Covenant cannot be maintained on a contract under seal, the material part of which is subsequently varied by parol agreement. The remedy is on the substituted agreement. M'Voy v. Wheeler, 6 Port. (Ala.) 201; Raymond v. Fisher, 6 Mo. 29; Vicary v. Moore, 2 Watts, 451, 27 Am. Dec. 323; Ellmaker v. Franklin F. Ins. Co. 6 Watts & S. 443: Heard v. Wadham, 1 East, 630; Littler v. Holland, 3 T. R. 590; Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429; Ford v. Campfield, 11 N. J. L. 327; Jewell v. Schroeppel, 4 Cow. 564; Carrier v. Dilworth, 59 Pa. 406. An action will not lie on a contract not performed in time, but recovery may be on quantum meruit. Slater v. Emerson, 19 How. 228, 15 L. ed. €26; Dermott v. Jones, 2 Wall. 1, sub nom. Ingle v. Jones, 17 L. ed. 762; Dermott v. Jones, 23 How. 223, 16 L. ed. 442. Where it is necessary on the part of the plaintiff to aver performance, it must be set forth with such certainty as to enable the court to judge whether the intent of the Covenant has been fulfilled. There was no sufficient averment here. Thomas v. Van Ness, 4 Wend. 549; 1 Chitty, Pl. 325. An allegation of an original contract does not let in evidence of its modification. Lanitz v. King, 93 Mo. 513, 6 S. W. 263; Fallon v. Lawler, 102 N. Y. 228, 6 N. E. 392; Henning v. United States Ins. Co. 47 Mo. 425, 4 Am. Rep. 332; Pharr v. Bachelor, 3 Ala. 237; Buchanan v. Beck, 15 Or. 563, 16 Pac. 422; Salter v. Ham, 31 N. Y. 321. A declaration on an express contract, alleging performance, does not let in evidence of an excuse for nonperformance. Colt v. Miller, 64 Mass. 49; Palmer v. Sawyer, 114 Mass. 1; Purdue v. Noffsinger, 15 Ind. 386; Bernhard v. Washington L. Ins. Co. 40 Iowa, 442; Fauble v. Davis, 48 Iowa, 462. Nor under such declaration can excuse be shown in rebuttal, where plaintiff's nonperformance is set up as a defense, as in this case. Eiseman v. Hawkeye Ins. Co. 74 Iowa, 11, 36 N. W. 780; Boon v. State Ins. Co. 37 Minn. 426, 34 N. W. 902; Potts v. Pleasant Point Land Co. 47 N. J. L. 476, 2 Atl. 242. As plaintiff must allege and prove per formance, a general denial lets in evidence of | Foundery v. Hovey, 21 Pick. 428; Ransom ▾. breach. Caverly v. McOwen, 123 Mass. 574. Upon the failure of the plaintiff to deliv er the iron pipe mentioned in the contract, at the times and in the quantities specified, the defendant had the right to charge against the price it had agreed to pay the plaintiff for said pipe, as liquidated damages, the penalties provided for in the con tract Emack v. Campbell, 14 App. D. C. 186. At common law, interest was not allowed; it is the creature of statute alone. A municipal corporation is created for public purposes and with limited powers; and it has been held that, where it is not named in the act regulating interest, it is not liable for interest. Pekin v. Reynolds, 31 Ill. 529. Stonington Sav. Bank, 13 N. J. Eq. 212; Where a deed is executed or a contract made on behalf of a corporation by an officer duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the corporation, notwithstanding that the officer may be described as one of the parties, and may have affixed his individual name or seal. Johnston v. Crawley, 25 Ga. 316, 71 Am. Dec. 173; Hodgson v. Dexter, 1 Cranch, 345, 2 L. ed. 130; Sheets v. Selden, 2 Wall. 187, 17 L. ed. 825. See also Eureka Clothes Wringing Mach. Co. v. Bailey Washing & Wringing Mach. Co. 11 Wall. 488, 20 L. ed. 209; Jacksonville, M. & P. R. & Nav. Co. v. Hooper, 160 U. S. 514, 40 L. ed. 515, 16 Sup. Ct. Rep. 379; Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 65; State v. McCauley, 15 Cal. 429; Hopkins v. Mehaffy, 11 Serg. & R. 126; Tenney v. East Warren Lumber Co. 43 N. H. Adams Exp. Co. v. Milton, 11 Bush, 49. 344; McDaniels v. Flower Brook Mfg. Co. 22 And where interest is recoverable, not as Vt. 274; Stebbins v. Merritt, 10 Cush. 34; a part of the contract, but by way of dama-Haven v. Adams, 4 Allen, 80; Fleckner v. ges, if the plaintiff has been guilty of laches in unreasonably delaying the prosecution of his claim. it may be properly withheld. It is never allowed when the delay is the result of mere failure of the creditor to press the collection of his claim. Redfield v. Ystalyfera Iron Co. 110 U. S. 176, 28 L. ed. 110, 3 Sup. Ct. Rep. 570; United States v. Sanborn, 135 U. S. 271, 34 L. ed. 112, 10 Sup. Ct. Rep. 812; Redfield v. Bartels, 139 U. S. 694, 35 L. ed. 310, 11 Sup. Ct. Rep. 683. The date of a writing is that part which purports to specify the time when it was executed. 8 Am. & Eng. Enc. Law, 2d ed. p. 727. When time or place or any other circumstance is material, the plaintiff cannot vary from his previous statement of it. Chitty, Pl. 638, 644, 648. When the parties to a written agreement have made the date of the instrument a material part of the contract, as, when the time of perforinance is fixed with reference to it.-oral evidence is not admissible to vary or change it. Joseph v. Bigelow, 4 Cush. 82; Huston v. Young, 33 Me. 85; Story, Prom. Notes, 6th ed. § 85. Mr. Samuel Maddox submitted the cause for defendant in error: A seal is not necessarily any particular form or figure; any mark or sign indicating an intention to seal is sufficient. Bank of United States, 8 Wheat. 357, 5 L. ed. 635; Heidelberg School Dist. v. Horst, 62 Pa. 307. It is always competent to show that a deed was executed on a day subsequent to the date on which it is stated to have been executed. Hall v. Cazenove, 4 East, 477; Baldwin v. Freydendall, 10 Ill. App. 112; Com. v. Welch, 144 Mass. 356, 11 N. E. 423; Bruce v. Slemp, 82 Va. 352; School Dist. No. 4 v. Stilley, 36 Ill. App. 135; Treadwell v. Reynolds, 47 Cal. 171. The time of the delivery of a deed may be proved by parol. Mayburry v. Brien, 15 Pet. 21, 10 L. ed. 646; United States v. Le Baron, 19 How. 73, 15 L. ed. 525. If a party to a contract who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispenses with, or by any act of his own prevents, the performance, the opposite party is excused from proving a strict compliance with the condition. Williams v. Bank of United States, 2 Pet. 102, 7 L. ed. 362; Chicago, M. & St. P. R. Co. v. Hoyt, 149 U. S. 14, 37 L. ed. 629, 13 Sup. Ct. Rep. 779; Re Van Vliet, 10 L. R. A. 451, 43 Fed. 762; Van Buren v. Digges, 11 How. 479, 13 L. ed. 778; United States v. Peck, Hacker's Appeal, 121 Pa. 192, 1 L. R. A. 102 U. S. 65, 26 L. ed. 47. See also Parker 861, 15 Atl. 500; Jacksonville, M. & P. R. & Vein Coal Co. v. O'Hern, 8 Md. 201; Coke, Nav. Co. v. Hooper, 160 U. S. 519, 40 L. ed. Litt. p. 207; Powell, Contr. 417; Marshall v. 521, 16 Sup. Ct. Rep. 379; 1 Sugden, Powers, Craig, 1 Bibb, 390; Stewart v. Keteltas, 36 *283; Bowman v. Robb, 6 Pa. 302; Hast- N. Y. 388; Hinckley v. Pittsburgh Bessemer ings v. Vaughn, 5 Cal. 318; Osborn v. Kist-Steel Co. 121 U. S. 264, 30 L. ed. 967, 7 Sup. ler, 35 Ohio St. 102; McKain v. Miller, 1 McMull. L. 313; Eames v. Preston, 20 Ill. 389; Davis v. Burton, 3 Scam. 4. 36 Am. Dec. 511; Green v. Lake, 2 Mackey, 162; Pillow v. Roberts, 13 How. 474, 14 L. ed. 229. A corporation may adopt and use any seal it chooses for the time, as an individual. Bank of Middlebury v. Rutland & W. R. Co. 30 Vt. 171; Proprietors of Mill Dam Ct. Rep. 875; Ashcraft v. Allen, 28 N. C. (4 Ired. L.) 99; Holme v. Guppy, 3 Mees. & W. 386. The District is estopped from claiming penalties for delay in delivering pipe. Dickerson v. Colgrove, 100 U. S. 580, 25 L. ed. 619; Ketchum v. Duncan, 96 U. S. 659, 24 L. ed. 868; Swain v. Seamens, 9 Wall. 254, 19 I.. ed. 554; Moran v. Miami County "remain and continue a municipal corpora- Oomrs. 2 Black, 722, 17 L. ed. 342. See al-acted that the District of Columbia should Cutter v. Powell, 2 Smith, Lead. Cas. 8th No penalty should be allowed except to the This legislation is considered and set forth in Metropolitan R. Co. v. District of Columbia, 132 U. S. 6, 33 L. ed. 233, 10 Sup. Ct. Rep. 19. By 37 of the act of February 21, 1871 Scofield v. Tompkins, 95 Ill. 193, 35 Am. [457] *Mr. Chief Justice Fuller delivered the propriations made by law, and not until such appropriations shall have been made." Section 5 of the act of June 11, 1878, provided: "All contracts for the construction, improvement, alteration, or repairs of the streets, avenues, highways, alleys, gutters, sewers, and all work of like nature, shall be made and entered into only by and with the official unanimous consent of the commissioners of the District, and all contracts shall be copied in a book kept for that purpose and be signed by the said commissioners, and no contract involving an expenditure of more The 1st section of the act "to Provide a Government for the District of Columbia," approved February 21, 1871 (16 Stat. at L. [458]419, chap. 62), provided: "That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal pur poses, and may contract and be contracted with, sue and be sued, plead and be im-than one hundred dollars shall be valid until pleaded, have a seal, and exercise all other recorded and signed as aforesaid.” powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act." A governor and legislature were created; also a board of public works, to which was given the control and repair of the streets, avenues, alleys, and sewers of the city of Washington, and all other works which might be intrusted to their charge by either the legislative assembly or Congress. They were empowered to disburse the moneys received for the improvement of streets, avenues, alleys, sewers, roads, and bridges, and to assess upon adjoining property specially benefited thereby a reasonable proportion of the cost, not exceeding one third. June 20, 1874, an act was passed entitled "An Act for the Government of the District of Columbia, and for Other Purposes." 18 Stat. at L. 116, chap. 337. By this act the government established by the act of 1871 was abolished and the President by and with the advice and consent of the Senate was authorized to appoint a commission, consisting of three persons, to exercise the power and authority vested in the governor and the board of public works, except as afterwards limited by the act. By a subsequent act approved June 11, 1878 (20 Stat. at L. 102, chap. 180), it was en 952 On March 3, 1887, an act of Congress was approved, by which the sum of $100,000 was appropriated for "repairing and laying new mains," and "lowering mains," and for engineers and others under the water department of the District government. 24 Stat. at L. 580, chap. 389. The contract in this case was signed by all of the commissioners and recorded in a book kept for that purpose as required by the act of Congress. Unquestionably the commissioners when they executed the contract were authorized to purchase iron pipe for the extension of the water service, and as the municipal corporation had the right to have a seal, which could be changed from time to time, it had the right to execute contracts under seal. The principal objection here is, however, that this was not the sealed obligation of the District. It is conceded that the commissioners, who signed the contract officially, were not personally liable thereon, and that the contract bound the District, but it is insisted that the contract was not a specialty. The opinion of the court of appeals by Chief Justice Alvey satisfactorily disposes of this objection, and we concur with the views therein expressed. *The board of commissioners was consti-[480) tuted by statute to carry the powers of the municipal corporation called the District of 181 U. Columbia into effect. The commissioners The next proposition of the District, that The general rule is "that when a deed is executed, or a contract is made on behalf of a state by a public officer duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the state, notwithstanding that the officer may be described as one of the parties, and may have affixed his individual name and seal. In such cases the state alone is bound by the deed or contract, and can alone claim its benefits." Sheets v. Selden, 2 Wall. 187, 17 L. ed. 825; Hodgson v. Dexter, 1 Cranch, 345, 2 L. ed. 130. As to private corporations, where authority is shown to execute a contract under seal, the fact that a seal is attached with intent to seal on behalf of the corporation, is enough though some other seal than the ordinary common seal of the company should be used. Jacksonville M. P. R. & Nav. Co. v. Hooper, 160 U. S. 514, 40 L. ed. 515, 16 Sup. Ct. Rep. 379; Stebbins v. Merritt, 10 Cush. 34; Bank of Middlebury v. Rutland & W. R. Co. 30 Vt. 159; Tenney v. East Warren Lumber Co. 43 N. H. 343; Porter v. Androscoggin & K. R. Co. 37 Me. 349; Phillips v. Coffee, 17 11. 154, 63 Am. Dec. 357. Many of these cases are cited by Judge Dillon in his work on Municipal Corporations (4th ed.), § 190, where he says: "Respecting seals, the same general principles apply to private and to municipal corporations. Thus, a corporation of the latter class would doubtless be bound equally with a private corporation by any seal which has been authoritatively affixed to an instrument requiring it, though it be not the seal regularly adopted." 461] *Under the former corporate organization of the District a seal had been adopted, but it was not until after this contract was entered into that the board took official action in respect of it. It is to be assumed on this record that the commissioners affixed their seals as the seal of the corporation. It was for them to determine whether the interest of the District required the contract to be sealed. We agree with the court of appeals that this contract was not only the contract of the District, as is conceded, but that it was its deed, upon which an action of covenant could be maintained. It was therefore properly admitted in evidence, and recovery could be had thereon, if otherwise justified. As such an action is not barred in three years the demurrer to the plea of the three years' statnte of limitations was necessarily sustained. I 181 U. S. U. S., Book 45. In United States v. Le Baron, 19 How. 73, 15 L. ed. 525, it was ruled that a deed speaks from the time of its delivery, not from its date; and Mr. Justice Curtis, who gave the opinion, cited Clayton's Casc, 5 Čoke, 1; Oshey v. Hicks, Cro. Jac. 263, and Steele v. Mart, 4 Barn. & C. 272; to which the court of appeals added Hall v. Cazenove, 4 East, 477. These cases fully sustain the doctrine that parties, situated as here, are not precluded from proving by parol evidence when a deed or contract is actually made and executed, from which time it takes effect. In Williams v. Bank of United States, 2 Pet. 102, 7 L. ed. 362, it was laid down as a general principle of law that “if a party to a contract who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispense with. or by any act of his own prevent, the per-[462] formance, the opposite party is excused from proving a strict compliance with the condition. Thus, if the precedent act is to be performed at a certain time or place, and a strict performance of it is prevented by the absence of the party who has a right to claim it, the law will not permit him to set up the nonperformance of the condition as a bar to the responsibility which his part of the contract had imposed upon him.” In this case the further performance of the contract was determined by the consent of the parties, but the contract was not rescinded except as to the future manufacture of pipe for delivery. The third objection of the District is that an action of covenant on the contract would not lie to recover the price of the pipe that was delivered, because there had not been full performance; yet the pipe, to recover the price for which this action was brought, was, as the court of appeals said, manufactured, delivered, and accepted under the contract, in part performance thereof, and with reference to the specifications and price agreed upon as set forth in the contract. The dispensation of complete performance did not make a new contract, nor alter the terms of the existing agreement. It was a mere waiver of further performance. It is said that the demurrer to the plea of limitations, the ninth plea, ought to have been carried back to the declaration. The hearing of that demurrer was reserved by stipulation to the trial of the cause, no suggestion of this kind was then made, and the declaration was good as against a general demurrer. The company averred full perform60 953 ance, "except in so far as it was prevented the contention as to penalties and forfeit- The court left the matter of interest to the In M'Combs v. McKennan, 2 Watts & S. 216, it was held that covenant may be sustained upon a contract under seal, notwith-jury, and refused to give at defendant's restanding by subsequent consent of the parties the place at which the articles called for were to be delivered was changed. In Phillips & C. Constr. Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341, it was held that defendant was liable on his covenant for the [463] contract *price of the work when completed, where absolute performance had been waived. And in many cases of prevention by the defendant or of tender and refusal, the plaintiff has been held to have the right of action on a special contract, prevention or refusal being equivalent for that purpose to performance. quest an instruction that no interest should Mr. Justice Brown and Mr. Justice Assuming that full performance was dis-McKenna dissented. pensed with, the court did not err in ruling that the right to sue upon the contract remained. The court gave to the jury, on behalf of plaintiff, the following instructions: "If the jury believe from the evidence that the plaintiff corporation was prevented from completing the delivery of pipe by it stipulated to be manufactured and delivered under the contract offered in evidence within the time or times therein limited by any act or omission on the part of the defendant, then the defendant is not entitled to charge against the plaintiff any fines or penalties for such delay in delivering pipes as was occasioned by such act or omission. "If the jury believe from the evidence that the defendant, by its silence or conduct, caused the plaintiff corporation to believe, on or about the 1st day of December, a. D. 1887, that all pipe thereafter delivered would be taken and paid for at contract rates, without any deduction, and thereby induced the plaintiff to act on that belief and thereafter deliver pipe to the defendant, which the plaintiff would not have other THE BARNSTABLE. (See 8. C. Reporter's ed. 464-473.) Admiralty-calling in charterer liability of charterer or owner for collision. 1. 2. A proceeding on petition of the owner and claimant of a libeled vessel to call in the charterer to show cause why it should not be condemned for damage resulting from the collision for which the libel is filed is within the power of the court under general admiralty rule 59, as it is clearly within the spirit, though not within the words, of the rule. Liability for damage caused by negligence of the officers and crew of a vessel, who are appointed and paid by charterers, is not, as between the charterers and the owners, Imposed upon the owners by a clause of the charter party requiring the owners to "pay for the insurance on the vessel." [No. 178.] wise done, and the defendant accepted such Argued March 3, 1901. Decided May 13, pipe, the defendant is estopped from charg ing against the plaintiff any fines or penalties for not delivering such pipe within the time or times specified by the contract." Defendant asked the following instruction, which the court refused to give: "If the jury believe from the evidence that the failure of plaintiff to deliver the iron pipes mentioned in the contract given in wvidence at the times and in the quantities specified hindered and delayed the defendant in extending the water service in 1887, then the defendant had a right to charge against the price it agreed to pay the plaintiff for the pipe it undertook to deliver as liquidated damages the penalties provided in the con tract. 1901. Statement by Mr. Justice Brown: ers of the schooner Fortuna against the Brit-" "This case originated in a libel by the own ish steamship Barnstable, for a collision which took place off Cape Cod on January 13, 1896, and resulted in a total loss of the schooner, and the personal effects of her mas ter and crew. Nine of the crew were drowned. A claim was interposed by the master of the Barnstable on behalf of the Turret |