-McMillan, J.
By the Court The agreement between the parties is the consideration of the assignment set up in the complaint; it is an executory agreement, and must be pleaded, and performance averred; all which allegations are material and traversable. 1 Ch. Pl. 296.
The answer denies each and every allegation as to the assignment and the agreement which is the consideration of it, except as therein afterwards admitted. The answer admits, that in order to enable plaintiff to obtain employment from other persons having similar claims, the defendant agreed with plaintiff, at the request of the latter, that the plaintiff might, and should, nominally, represent the defendant, as his attorney in the investigation and collection of his claims, but that he shouid not be entitled to or receive any compensation therefor, except, that if one-fifth part of the amount which should be collected from the United States, as the defendant’s claims,, by reason of the provision [434]*434so mado for the payment thereof, as in the answer stated, should exceed the sum of four thousand dollars, the plaintiff should be entitled to receive from the defendant an amount equal to such excess, and no more, and that in pursuance oí said agreement, and not otherwise, the said plaintiff did nominally represent this defendant as his attorney in the premises.
The terms of the contract set up in the answer are materially different from those in the complaint, and would not, under the allegations of the complaint, support the assignment, and, as we have stated, the contract in any other terms than as alleged in the answer is denied, we think, therefore, there was a substantial issue upon the terms of the contract.
The assignment does not purport to state the contract which by the allegations of the complaint forms an essential part of the consideration. The allegations as to the consideration, being traversable, and in issue, must be proved; and as no proof tending to establish them was offered, the action was properly dismissed.
The performance of the services should also have been proved. The answer admits, that under the contract set up by the defendant, the plaintiff did, nominally, represent the defendant as attorney in the premises, but denies all the services alleged in the complaint. The services alleged in the complaint are those required under the contract therein stated, and. are substantial, meritorious and material services; the services admitted in the answer, are nominal, that is, in name only, without material or substantial benefit, and rendered under the contract set up in the answer; all other services alleged in the complaint are denied. Assuming that the services admitted must be taken generally as an admission of services about the subject matter of both [435]*435contracts; yet proof of nominal services under the contract alleged in the complaint, would not be proof of performance by the plaintiff of his part of the contract which would entitle .him to recover.
Although the assignment is absolute in its terms, and the defendant subsequently received the money which by the terms of the assignment was transferred to the plaintiff, yet the action being in the nature of an action for money had and received-to the use of the plaintiff, if the assignment is void by reason of a failure of consideration, the plaintiff can not recover. No evidence tending to prove the performance of the contract by the plaintiff having been offered, was a further ground for dismissing the action.
It is claimed by the defendant, further, that the contract and assignment themselves are void under the first section of the act of Congress of February 26th, 1853 — U. S. Stats, at Large, vol. 10, p. 170- — -which declares that “All transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.”
If the claims of the defendant, for the collection of which the alleged contract was made between these parties, are claims upon the United States within the meaning of the act of Congress referred to, then the contract and assignment are doubtless void.
[436]*436The accounts for the collection of which the plaintiff was employed, as alleged in the complaint, were accounts “ had and owned by defendant, on and before the 8th of December, 1860, and which were then and there existing in favor of said defendant, for certain goods, wares and merchandize, then before sold, furnished and delivered by said defendant to certain Indians of the Sioux or Dakotah tribe, and which were then and there worth, and of the value of about twenty-four thousand dollars, and which claims and demands were then being investigated by the United States, and for the'paying off of which, so far as the same should be allowed and approved by the United States, provision had then been made. ”
There is nothing in the sale of goods, wares and merchandize by the defendant to the Sioux Indians, which in itself would create any claim upon the United States. The treaty stipulation therefor affecting this claim must be referred to in order to determine the existence, or non-existence of such claim.
By section 2 of the treaty between the United States and the Sisseton and Wahpaton bands of the Dacotah or Sioux tribe of Indians, concluded in Washington on June 19, 1858, ratified by the Senate March 9, 1859, it is stipulated, that the question, whether the Indians have a title to certain lands as a reservation for their future occupancy and home, shall be submitted to the decision of the Senate, and if they have, what compensation shall be made to them for the portion of the reservation specified in the treaty; whether they shall be allowed a specified sum of money therefor, and if so how much, or whether the same shall be sold for their benefit, they to receive the proceeds of such sale, deducting the necessary expenses incident thereto. “ Such, sale, if decided in favor of by the Senate, shall be [437]*437made under and according to regulations to be prescribed by the Secretary of the Interior, and in such manner as will secure to them the largest sum it may be practicable to obtain for said land. ”
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-McMillan, J.
By the Court The agreement between the parties is the consideration of the assignment set up in the complaint; it is an executory agreement, and must be pleaded, and performance averred; all which allegations are material and traversable. 1 Ch. Pl. 296.
The answer denies each and every allegation as to the assignment and the agreement which is the consideration of it, except as therein afterwards admitted. The answer admits, that in order to enable plaintiff to obtain employment from other persons having similar claims, the defendant agreed with plaintiff, at the request of the latter, that the plaintiff might, and should, nominally, represent the defendant, as his attorney in the investigation and collection of his claims, but that he shouid not be entitled to or receive any compensation therefor, except, that if one-fifth part of the amount which should be collected from the United States, as the defendant’s claims,, by reason of the provision [434]*434so mado for the payment thereof, as in the answer stated, should exceed the sum of four thousand dollars, the plaintiff should be entitled to receive from the defendant an amount equal to such excess, and no more, and that in pursuance oí said agreement, and not otherwise, the said plaintiff did nominally represent this defendant as his attorney in the premises.
The terms of the contract set up in the answer are materially different from those in the complaint, and would not, under the allegations of the complaint, support the assignment, and, as we have stated, the contract in any other terms than as alleged in the answer is denied, we think, therefore, there was a substantial issue upon the terms of the contract.
The assignment does not purport to state the contract which by the allegations of the complaint forms an essential part of the consideration. The allegations as to the consideration, being traversable, and in issue, must be proved; and as no proof tending to establish them was offered, the action was properly dismissed.
The performance of the services should also have been proved. The answer admits, that under the contract set up by the defendant, the plaintiff did, nominally, represent the defendant as attorney in the premises, but denies all the services alleged in the complaint. The services alleged in the complaint are those required under the contract therein stated, and. are substantial, meritorious and material services; the services admitted in the answer, are nominal, that is, in name only, without material or substantial benefit, and rendered under the contract set up in the answer; all other services alleged in the complaint are denied. Assuming that the services admitted must be taken generally as an admission of services about the subject matter of both [435]*435contracts; yet proof of nominal services under the contract alleged in the complaint, would not be proof of performance by the plaintiff of his part of the contract which would entitle .him to recover.
Although the assignment is absolute in its terms, and the defendant subsequently received the money which by the terms of the assignment was transferred to the plaintiff, yet the action being in the nature of an action for money had and received-to the use of the plaintiff, if the assignment is void by reason of a failure of consideration, the plaintiff can not recover. No evidence tending to prove the performance of the contract by the plaintiff having been offered, was a further ground for dismissing the action.
It is claimed by the defendant, further, that the contract and assignment themselves are void under the first section of the act of Congress of February 26th, 1853 — U. S. Stats, at Large, vol. 10, p. 170- — -which declares that “All transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.”
If the claims of the defendant, for the collection of which the alleged contract was made between these parties, are claims upon the United States within the meaning of the act of Congress referred to, then the contract and assignment are doubtless void.
[436]*436The accounts for the collection of which the plaintiff was employed, as alleged in the complaint, were accounts “ had and owned by defendant, on and before the 8th of December, 1860, and which were then and there existing in favor of said defendant, for certain goods, wares and merchandize, then before sold, furnished and delivered by said defendant to certain Indians of the Sioux or Dakotah tribe, and which were then and there worth, and of the value of about twenty-four thousand dollars, and which claims and demands were then being investigated by the United States, and for the'paying off of which, so far as the same should be allowed and approved by the United States, provision had then been made. ”
There is nothing in the sale of goods, wares and merchandize by the defendant to the Sioux Indians, which in itself would create any claim upon the United States. The treaty stipulation therefor affecting this claim must be referred to in order to determine the existence, or non-existence of such claim.
By section 2 of the treaty between the United States and the Sisseton and Wahpaton bands of the Dacotah or Sioux tribe of Indians, concluded in Washington on June 19, 1858, ratified by the Senate March 9, 1859, it is stipulated, that the question, whether the Indians have a title to certain lands as a reservation for their future occupancy and home, shall be submitted to the decision of the Senate, and if they have, what compensation shall be made to them for the portion of the reservation specified in the treaty; whether they shall be allowed a specified sum of money therefor, and if so how much, or whether the same shall be sold for their benefit, they to receive the proceeds of such sale, deducting the necessary expenses incident thereto. “ Such, sale, if decided in favor of by the Senate, shall be [437]*437made under and according to regulations to be prescribed by the Secretary of the Interior, and in such manner as will secure to them the largest sum it may be practicable to obtain for said land. ”
Section 3 is as follows: “It is also agreed if the Senate shall authorize the land designated in Article two of this agreement to be sold for the benefit of the said Sisseton and Wahpaton bands, or shall prescribe an amount to be paid to said band for their interest in said tract, provision shall be made by which the chiefs and head men of said bands, may in their discretion in open council authorize to be paid out of the proceeds of said tract, such sum or sums as may be found necessary and proper, not exceeding seventy thousand dollars, to satisfy their just debts and obligations, and to provide goods to be taken by said chiefs and head men to the said bands on their return: Provided, however, that their said determination shall be approved by the Superintendent of Indian Affairs for the Northern Superintendeney, for the time being, and the said payments be authorized by the Secretary of the Interior. ” U. S. Stat. at Large, vol. 12, pp. 1038-9.
The counsel for the respective parties, throughout their arguments, assume as a fact, that “the chiefs and headmen” of the Indian bands, in open counsel, authorized the claims of the defendant Sweetzer, which are the subject of the assignment, to be paid in pursuance of and in accordance with the provisions of the treaty referred to.
We proceed therefore, in the determination of this case, upon the assumption, that so far as this fact is concerned, whether as a matter of pleading, or proof, it sufficiently appears upon the record before us.
It seems to us, then, that the claims of the defendant referred to in the pleadings, were originally claims against [438]*438the Indians. But the relation of the United States to the Indians within our boundaries is peculiar; while for treaty purposes they are quasi independent, yet for many purposes they are the wards of the government, and are under its protection and care, and all the trusts and obligations growing out of this fiduciary relation rest upon the government. This relation, and these duties and obligations, which under some circumstances exist in the absence of any treaty stipulation, is we think recognized in the treaty referred to. The duty of securing the largest sum practicable to the Indians for the lands, is clearly expressed in the last clause of the second section; and the terms of the. third section of the treaty, by which it is stipulated, that the amounts to be paid in liquidation of the just debts of the Indians, and for goods taken by the chiefs and head men to the bands on their return from Washington, although allowed by the chiefs and head men of these bands in open counsel, should not be paid without the approval of the superintendent of Indian affairs of the northern superintendency, and the authority of the Secretary of the Interior, clearly, create a trust, and establish a relation between the United States and these Indians, which is altogether inconsistent with, their being independent equal sovereignties, and can only be explained by construing the treaty in the light of the relation actually existing between the parties,viz: guardian and wards sub modo, and as a recognition in terms of these relations, and an assumption by the United States of all the obligations and responsibilities springing therefrom. It is also clear, we think, that the government assumed to pay such claims against the Indians, as should be allowed in accordance with its terms, to the proper owner and holder thereof; the amounts allowed to these creditors of the Indians, therefore,were under the treaty, direct claims against the United States, and so [439]*439far as that is concerned, within the letter of the prohibitory act. Bat it may be said that they are not within its spirit, because the act is evidently intended to prevent frauds upon the treasury of the United States, and the liability of the government is limited by the treaty, and the amount paid by the government, to the extent of this limitation, is a payment under the treaty : the government therefore cannot be defrauded. To this the answer is, the government is to approve the allowance'of the claims, and authorize their payment to the owners: if we are correct in our view of the relation existing between the United States and the Indians, the highest obligation rests upon the former to exercise good faith in the allowance and payment of the claims, and to protect in every manner the interest of the Indians. In the examination of these claims, in order to approve the determination of the council, and authorize payment of the claims, every opportunity for the commission of fraud would present itself, which exists in regard to any other claim upon the government, and although the just debts, obligations and liabilities contemplated by the treaty may fall far below the maximum amount limited by its terms, yet the claims may through fraud be made to absorb the’ entire amount specified. Whether in any case the government would suffer direct pecuniary loss or injury by such fraud, we need not now consider; the claim as we have endeavored to show is one upon the United States, and if the fraud may not work pecuniary injury to the government, it certainly may to the Indians, the wards of i the government, whose protection in this instance is imposed by an obligation, as high, if not higher in its nature, than that to protect the treasury. The interest of the Indians and the government are in this instance identical; the fraud producing pecuniary loss to the Indians is a violation of the rights of the government in [440]*440its relation as guardian of the Indians, and assails not only the integrity of the government, but the safety of her citizens. It is therefore an injury to the government more serious than a pecuniary loss.'
We are of opinion that the assignment offered in evidence is void under the Act of Congress referred to, and the action for this reason was properly dismissed.
As this disposes fully of the cause of action, we need not consider the further question presented as to the statute of limitations.