
    COLUMBUS J. ESLIN, Administrator, v. THE DISTRICT OF COLUMBIA. OSCEOLA C. GREEN v. THE SAME. WILLIAM W. GALT v. THE SAME. SAMUEL J. RITCHIE v. THE SAME.
    [Nos. 375, 280, 162, 150.
    Decided May 28, 1894]
    
      On the Proofs.
    
    These are the same cases reported in 22 C. Cls. R., 395. They now come np on the Teport of a referee. The original claimant was paid at “hoard rates” instead of contract. The principal question involved is whether the payment was in legal effect a compromise of a disputable demand.
    I. A referee’s report states that, a controversy having arisen “vrirespect of the amount ofworlc clone under the original contract, the matter was referred. to a commission for adjudication, and a settlement of the account was made in accordance with the award.” This does not show a controversy concerning the contract price, and consequently a payment at a higher rate than the contract rate cannot he upheld as the settlement of a controversy.
    II. As between the original contractor and the District of Columbia, a general account should be stated, in which he should be charged with overpayments; but the assignee of a contract which is profitable, can not be charged with his assignor’s overpayments on another. The former decisions in regard to “hoard rates” and “ contract rates” reaffirmed.
    
      The Reporters’ statement of tbe case:
    The following are the facts of these cases as found by the court:
    I. During the years 1872, 1873, 1874, and 1875 Daniel A. Connolly had a large number of written contracts with the District of Columbia for the improvement of the streets of Washington, made and signed, as required by the Act of Feb-mary 21,1871, chapter 62, section 537 (16 Stat. L., 427). His administrator now sues to recover balances alleged to be due on eleven of these contracts, with their extensions.
    The claims in the other three above-entitled cases are based upon assignments from said Connolly.
    
      II. There is no controversy about contracts Nos. 209, 231, and 1035. It is admitted, and the court so finds, that the amounts claimed are due thereon; in all, $241.18.
    On contracts Nos. 209 and 231 the last payments were made April 7,1873, and on No. 1035, August 1, 1874. None of the work was done after these respective dates.
    III. At different times the board of public works prescribed scales of prices for contracts for the various kinds of work to be done. Upon the subject of grading the following entries are found upon their journal:
    “ Sept. 14, 1871. — -The following scale of prices for work and material was adopted:
    * * * # # * *
    “ G-rading per cubic yard, earth to bedeposited where directed without extra charge, 20 cents.”
    “September 26, 1871. — Resolved, That infixing the price of grading at the rate of 20 cents a cubic yard, the board did not intend that it should apply to old graveled streets ordered to be cut down; but will allow 40 cents for all such grading for the depth of 2 feet below the surface; and that the chief of the bureau of contracts be notified of this action.”
    “Jan’Y 22,1872.
    “ Ordered, That the prices of grading be fixed from and after this date at 30 cents per. cubic yard, including the hauling, not to exceed two hundred (200) feet; for each additional two hundred (200) feet 1 cent additional per cubic yard will be allowed.
    “Washington, July 17,1872.
    
    “ E. C. Phillips, Esq.,
    “ Chief .Engineer:
    
    “Sir: You are hereby informed that,inasmuch as frequent applications are being made to the board for the allowance of the advanced rates for work done previous to such increase, it is their desire and intention to adhere strictly to the old rates applicable to contracts made prior to the increase of prices, and allow the latter only on contracts since awarded.
    “By order of the board:
    “Ohas. S. Johnson,
    
      “Assistant Secretary.”
    “July 15', 1873. — Auditor was notified that the price for hauling earth has been established at 1¿ cents per cubic yard for every'100 feet of haul over first 200 feet, since June 1,1873. Contract clerk so notified.”
    
      “Washington, D. 0., September 23,1873.
    
    “ G-entlesien : In making our assessments on certain streets where final measurements are made, but no settlement bad with the contractor, I find that the item of “Haul so many feet over 200 feet” gives constant rise to questions with the contractor as to the amount allowed therefor. At present it; stands at cents per yard for every yard hauled 100 feet over 200 feet for all work done since June 1,1873. Tet the board, in a few instances, have granted the 1| cents for work done prior to that date, and all contractors claim the same amount “ in view,” as they say, “of the fact that they have to stand a discount of 20 per cent” on their paper. I think all this could be satisfactorily arranged by allowing 1¿ cents for all open accounts, that is, where final .and absolute settlements have not been made. I respectfully suggest this, in order that assessments may be complete and agree with the final bill as settled with the contractor.
    “Yery respectfully, “J. C. Lay,
    
      “Auditor Board of Public Works.
    
    “The Board oe Public Works.”
    “ Sebtember 27,1873. — J. O. Lay, auditor, was notified that in settlements of accounts for extra haul, that 1^ cents per cubic yard for each additional 100 feet beyond the first 200 feet for all work done since January 1,1873, will be allowed.
    “Board oe Public Works,
    “District oe Columbia,
    “ Washington, September 27,1873.
    
    “Sir: I am directed by the board to notify you that in the settlement of accounts for extra haul, that cents per cubic yard for each additional 100 feet beyond the first 200 feet for all work done since January 1,1873, will be allowed.
    “Yery respectfully, “Edward Johnson,
    , “Assistant Secretary.
    
    “J. C. Lay, Esq.,
    
      “Auditor, etc.”
    
    “ IY. Contract No. 243 and extensions. — This contract, made and concluded this twenty-fourth day of April, in the year one thousand eight hundred and seventy-two, by and between Ileury D. Cooke, Alexander B. Shepherd, James A. Magruder, A. B. Mullett, and S. B. Brown, constituting and composing the board of public works of the District of Columbia, of the first part, and Daniel" A. Connolly, of Washington, D. C., of the second part, witnesseth: First. That the said party of the second part has agreed, and by these presents doth agree, with the said party of the first part, for the consideration hereinafter mentioned and contained, and under the penalty expressed in a bond bearing even date with these presents and hereunto annexed, to furnish at his own proper cost and expense all the necessary materials and labor, and in a good, firm, and substantial manner to grade Massachusetts avenue from New Jersey avenue to Lincoln square, in the city of Washington, D. 0., said grading to- be executed in every respect in conformity with the specifications following, to wit:
    “The base of excavation, including the sidewalks, will be -feet wide. The roadbed proper will be -feet between the curbs, and must be graded to-(-) inches below the level of the curb at the center of the street, and- (-) inches below the level of the curb at the side, leaviug
    the roadbed a fall of-inches from the center to the sides.
    “The material obtained in grading will be deposited where directed by the chief engineer of the board of public works; and no sand, gravel, cobblestones, curb, bricks, or pipe obtained in the excavation or found on the premises shall be considered the property of the party of the second part, nor used by him or them, except as hereinafter prescribed.
    “The filling must be done in layers not exceeding 18 inches in thickness, so that the same may be well compressed by the driving of the carts over it.
    “The excavations will include only the roadbed, sidewalks, and the slope from them to the building line, according to the grade to be given by the chief engineer of the board of public works. No more grading must be commenced at any one time than 1 square, except by permission of the chief engineer; and the filling must be brought up to grade established and shown by plans before the work can be accepted as completed.
    “In the allowance for hauling, the length of the haul over 200 feet and the amount of material hauled will be determined on an average basis by the chief engineer of the board of public works, whose decision shall be final. All materials, such as curb, cobble, brick, etc., removed from the premises, and deposited under the directions of the chief engineer, will be paid for at the rates for hauling established by the board of public works.
    “All measurements will be made in the excavation only.
    “ Second. It is further agreed that the said party of the first part shall ajipoint, from time to time, such persons or person, as may be by said party deemed proper, to inspect the material to be furnished and the work to be done under this contract, and that such persons or person shall have any and all opportunity and privileges which may be necessary to enable them to faithfully make the inspection aforesaid.
    “Third. It is further agreed that the work under this contract shall be commenced on or before the 29th day of April, in the year 1872.
    “Fourth. It is further agreed that the said party of the first part may, on notice to the party of tbe second part, suspend work under this contract; but if not suspended, it shall be completed within ninety days from the date fixed for its commencement, and that the said work shall not be sublet without the consent in writing of the said party of the first part.
    “ Fifth. It is further agreed that if, at any time, the party of the first part shall be of opinion that the said work, or any part thereof, is unnecessarily delayed, or that the said contractor is willfully violating any of the conditions or covenants of this contract, or is executing the same in bad faith, all of the work may be discontinued under this contract, or any part thereof, and the said party of the first part shall thereupon have the irnwer to place such and so many persons as may be deemed advisable, by contract or otherwise, to work at and complete the work herein described, or any part thereof, and to use such materials as may be found upon the line of said work, or to procure other materials for the completion of the same, and to charge the expense of said labor and materials to theparty .of the second part, and the expense so charged shall be deducted and paid by the party of the first part out of such moneys as may be then due, or may at any time there-, after grow due to the said party of the second part, under and by virtue of this agreement, or any part thereof,- and in case such expense is less than the sum which would have been payable under this contract if the same had been completed, the party of the second part shall be entitled to receive the difference, and in case such expense shall exceed the last said sum the amount of such excess shall be paid to the party of the first part by the party of the second part.
    “Sixth. It is further agreed that all loss or damage arising out of the nature of the work to be done under this agreement, or from any unforseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances to individuals, property, or otherwise, on the line of the work, or adjacent thereto, shall be sustained by the said contractor.
    “Seventh. It is further agreed that the said party of the second part shall punctually pay the workmen who shall be employed by him on work under this contract, in cash current, and not in what is denominated store pay or orders; and that he will from time to time, and as often as may be required by said party of the first part, furnish to said party satisfactory evidence that all persons who have done work or furnished materials have been paid as herein required. And if such evidence is not furnished, such sum or sums as may be necessary for such payment or claims shall be retained by said party of the first part until the said claims shall be fully satisfied. *
    “Eighth. And it is further agreed that partial payments' shall be made by the duly authorized financial agent of the' said party of tbe first part on tbe monthly estimates of tbe chief engineer of tbe board of public works aforesaid, and that whenever tbe said chief engineer aforesaid shall certify, in writing, that tbe party of tbe second part completely performed this contract on bis part, and shall submit with said certificate , bis estimate of tbe amount due tbe party of tbe second' part, then within thirty days, as hereinafter provided, tbe said party of tbe second part shall be entitled to receive tbe full amount due under this contract, deducting therefrom all previous partial payments which may have been made, as hereinafter mentioned. And it is further expressly agreed that no money shall become due and payable under this contract, except uj>on the certificate of said engineer, as hereinbefore provided; and the said party of the second part further agrees that he shall not be entitled to demand or receive payment for any portion of the aforesaid work, except in the manner set forth in this agreement; and when each and all of the stipulations hereinbefore mentioned are complied with, and the engineer shall have given his certificate to that effect, a final settlement shall be made in writing between the parties, and the whole amount found due the party of the second part under this contract shall be paid to him, excepting such sum or sums as may be retained under any provision of this contract. Provided, that partial payments may be made under direction of the board, otherwise than upon the estimates of the engineer, as provided above, if in the opinion of the board the vigorous prosecution of the work will be promoted thereby.
    “ Ninth. It is further agreed that if at any time during the 2>eriod of one year from the completion of the work to be done under this contract, any part or parts thereof shall become defective from imperfect or improper material or construction, and in the opinion of the said party of the first part require repair, the said party of the second part will, on being notified thereof, immediately commence and complete the same to the satisfaction of the party of the first part; and in case of a failure or neglect of the said party of the second part so to do, the same shall be done under the directions and orders of the party of the first part, at the cost and expense of the party of the second part.
    “Tenth. It is further agreed that the said party of the second part shall receive the following prices as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to be done under this agreement, and in all respects completing the same, to wit: grading, thirty (30) cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding two hundred (200) feet, and one cent additional per cubic yard for every two hundred (200) beyond the above, which said sums or prices the said party of the first part shall pay to the said party of the second part, as herein provided.
    
      “Eleventh. It is farther agreed that the measurements shall be made by the engineer of the board or his assistants.
    “Twelfth. And the said party constituting and composing the board of public works in and for the District of Columbia aforesaid, agree with the said party of the second part to perform all the stipulations of this contract obligatory in it, and to pa,y or cause to be paid to the said party of the second part, or to his heirs, executors or administrators, in lawful money of the United States, the amount which may be found from time to time due him according to the contract.
    “Thirteenth- It is further agreed that this contract shall be subject to any and all provisions of an act entitled £An act to provide a government for the District of Columbia,’ approved February 21,1871, so far as the same shall or may be in any respect applicable to said contract, and also to any law of the District of Columbia pertinent thereto, or to any part thereof, as fully as if the same were particularly set forth herein.
    “In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.” [Signed by the parties.]
    After a large amount of work had been done under this contract, and several partial measurements and payments made, the work was suspended by the board of public works under article 4 of the contract.
    After the appointment of Commissioners under the act of June 20, 1874, at the request of Connolly, work was resumed under this contract, and partial measurements and payments from time to time were made thereon.
    In making payments on four of these measurements, the “ haul” was computed at the rate of 1J cents for each 100 feet over 200 feet instead of 1 cent for each 200 feet over the first 200 feet, as provided in the contract. These four items of computation are shown below.
    A referee appointed by this court in these cases thus reported :
    “A controversy having arisen between Connolly and the board of public works in respect of the amount of work done under the original contract No. 243, the matter was referred ■on November 20, 1873, for adjudication to a commission consisting of S. T. G-. Morsell, Thomas M. Plowman, Joseph F. Collins, and W. P. Bell, and a settlement of the account under said original contract was made in accordance with the award of said commission, as reported by that body to the board of public works November 27,1873.”
    There is no sufficient evidence to support this statement of the referee.
    
      Reporters’ statement of the case.
    (1) December 5,1S7S. — 38,007 cubic yards of earth hauled 1,000 feet over 200 feet, computed at 1J instead of one-half cent for
    each 100 feet "beyond 200 feet, making an excess of. $2,850.52
    (2) July 7, 1875. — 26,083.43 cubic yards haul, 1,250 feet over 200 feet allowed, at 1J cents per 100 feet, in lien of contract rate
    of 1 cent per 200 feet. Excess on above. 2, 445. 32
    (3) July 27,1875. — 20,875.46 cubic yards haul, 1,717 feet over 200 feet allowed, at 1£ cents per 400 feet, in lieu of contract rate
    of 1 cent per 200 feet. Excess on above. 2,687.71
    (4) February 2, 1876. — 5,740 cubic yards haul, 1,000 feet over 200 feet allowed, at 1J cents per 100 feet, in lieu of contract rate
    of 1 cent per 200 feet. Excess. 430.00
    Total alleged overpayments. 8,413.55
    Tbe work iu items 2, 3, and 4 was done after the resumption, and in 3 and 4 after May 4, 1875.
    These computations were made by the District auditor or • engineer, and paid through the board of audit.
    In this calculation all the work done under the two extensions and on Fifth street northeast, between D and EL', as shown in Finding V, is credited to Connolly. Owing to alleged assignments, it is separately calculated in Finding V.
    If the alleged overpayments are credited to the defendant, there will still be due the claimant on this contract $936.40; if not so credited, $9,349.95 will be due.
    The above payments were made through “ the board of public works.”
    Y. First extension of contract No. 243. — May 4, 1875, the parties entered into the following contracts:
    “ For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Daniel A. Connolly that contract No. 243, in the series of contracts made by the board of public works of the District of Columbia, be, and the same is hereby, extended with its various terms, conditions, and stipulations to embrace the following work, viz:
    “Grade upon the following streets, between the points named:
    “ B st. south, between 4th st. east and Boundary;
    “ C st. north, between 4th st. east and Boundary;
    “ A st. south, between 3d st. east and Boundary;
    “D st. north, between 1st and 4th st. east;
    “ Delaware ave., between C st. north and Boundary;
    “E st. north, between 2d and New Jersey ave.;
    “ 6th st. east, between Mass. ave. and East Capitol st.;
    “1st east, between G st. north and Boundary; or upon such and so many of these streets as the engineer of the .District of Columbia shall determine. It is understood that the work herein described is in lieu of similar work relinquished on Massachusetts avenue, and the engineer aforesaid shall determine what amount of grading will be a just equivalent for work relinquished on said Massachusetts avenue, as contemplated by this agreement. And the said Daniel A. Connolly shall, under the direction of the engineer aforesaid, replace the old material on said streets — that is to sa,y, reset the curbs, and relay the brick foot-pavements where necessary, according to specifications hereunto annexed.
    “ It is further agreed that the said Daniel A. Connolly shall receive the prices established and paid by the board of public works for work of similar character, provided that payment shall be made in the bonds issued by the sinking-fund commissioners of the District of Columbia, under and by virtue of section 7 of the act of Congress approved June 20,1874, which bonds shall be accepted and received at their par value.
    “In witness whereof, the saidDistrict of Columbia has caused this instrument to be signed by the Commissioners of said District, appointed under the act of Congress, entitled ‘An act for the government of the District of Columbia, and for other purposes,’ approved June 20,1874, and the common seal of saidDistrict to be hereto affixed, and the party of the second part to these presents has hereunto set his hand and seal.”
    [Signed by the parties.]
    Second Extension of Contract No. 243. — October 6,1875, the parties entered into the following contract:
    “For and in consideration of the stipulations hereinafter contained, it is agreed, by and between the Commissioners of the District of Columbia and Daniel A. Connolly, that contract No. 243, in the series of contracts made by the board of public works of the District of Columbia, be, and the same is hereby, extended with its various terms, conditions, and stipulations, to embrace the following work, to wit: Delay the old material on Massachusetts avenue, between New Jersey avenue and Lincoln Square, wherever directed by the engineer of the District of Columbia.
    “It is further agreed, that the work herein specified shall be completed by the 1st day of November, 1875, under penalty of forfeiture of all right and title to perform the same.
    “It is further agreed, that the said Daniel A. Connolly shall receive the prices established and paid by the board of public works for work of similar character, provided that payment be made in the bonds issued by the sinking-fund commissioners of the District of Columbia, under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value.”
    
      All the work contracted for by these two extensions was performed, proper measurements thereof made, pay computed according to stipulations of the contracts, and payments made thereon. The computations and paymeuts are embraced in the statement of accounts under contract No. 243, whereby the balance of 19,349.95, upon which claimant sues, is made to appear.
    Said Connolly, in mistake as to the extent of the two extension contracts, did certain work on Fifth street, between D and H streets, northeast, not stated in the contracts. This work was computed at the rates named in the two extensions, and amounted to $2,327.91.
    As a precaution against conflicting claims, said Connolly, , at the suggestion of the defendant, procured from one William Hussey, in whose contract this work was supposed to be included, an assignment, dated July 31,1876, of his interest therein, and on the same day assigned $2,327 thereof to William M. Galt, the claimant in case No. 162, upon which assignment the said Galt bases his claim in said case. Both of these assignments are set forth in finding xvii.
    If the said Galt or other assignees are entitled to claim the $2,327 so assigned, the same should be deducted from any sum that may otherwise be found in favor of the claimant, Eslin, it having been credited to him in the accounts under contract No 243, from which arises the alleged balance of $9,349.95.
    The last payment on contract No. 243 and extensions was made January 1,1876, and all work uuder them was done prior to that date.
    YI. Contract No. 349. — This contract is dated June 24,1872, and, except as to the work to be done, is like contract No. 243 < in finding IV:
    “Grading, 30 cents per cubic yard, including a haul of 200 feet and one (1) cent additional per cubic yard for every 200 feet of haul beyond the first 200 feet.”
    A final measurement of the work done under this contract was made December 2, 1874. Three items of the work were computed by the District auditor or engineer at the following prices:
    (1) 2,250!- cubic yards grading, computed at 40 cents a cubic yard instead of 30 cents, as provided in the contract, making an
    excess of. $225.05
    
      (2) Haul on said 2,250J cubic yards, 2,800 feet oyer 200 feet, computed cents a cubic yard for every 100 feet over 200 feet instead of 1 cent for every 200 feet, as provided in the contract, making an excess of. $474.00
    (3) Haul of 1,406 cubic yards 800 feet over 200 feet, computed as in item 2, making an excess over contract rate of. 84.00
    Total excess of the three items. 783.05
    Other grading and haul, appearing upon the same vouchers, are computed at the contract rate.
    February 2, 1875, these several bills were paid through the board of audit.
    If these alleged overpayments are credited to the defendant there will still be due the claimant $2.51. If not so credited there will be due him $785.56, the amount claimed. Last payment made December 1,1874.
    VII. Contracts Hos. 595 and 1057-J — Contract No. 595 is dated November 12,1872, and provides for certain work on A street south. Prices stated for grading, 30 cents per cubic yard, to include the first 200 feet of haul, and 1-| cents per cubic yard for each additional 100 feet of haul beyond the first 200 feet.
    Contract No. 1057J is dated April 8,1874, and provides for certain work on A street southeast. It is drawn on a printed blank and the blanks for prices are not filled in.
    The work was done under these two contracts, and, as computed by the District auditor or engineer and the board of audit, amounted to $9,911.93. The payments made amount to $9,845.93, leaving a balance due claimant of $66.65, the amount claimed in the petition.
    In making the computations by which the above amount is found due 2,400 cubic yards of grading, done under contract No. 595, is reckoned at 40 cents a cubic yard instead of 30 cents, as provided in the contract, making an excess of $240, which sum was paid February 9, 1875, through the board of audit.
    In the same voucher 5,003 cubic yards grading is reckoned at 30 cents a cubic yard, as provided in the contract.
    If this excess were credited to the defendant, the claimant would be overpaid $173.35; if nob so credited, the balance in favor of the claimant is $66.65.
    The last payment on contract No. 595 was made August 1, 1874.
    
      YIH. Contract No. 665. — Under this contract, dated April 22,1873, the contractor agreed to perform certain work on B street north, between Second and Fourth streets east. Article 10 of said contract stipulated that he should receive the sum of 30 cents per cubic yard for grading, to include 200 feet of haul, and 1 cent additional for every 200 feet hauled beyond the first 200 feet.
    A final measurement for this work was made for Connolly by Assistant Engineer Bodfish, dated .December, 1874. In voucher based on said measurement the contractor is allowed 1|: cents per cubic yard for every 100 feet of haul beyond the first 200 feet, in lieu of contract rate of one-half cent.
    The amount is as follows:
    
      February 9, 1875. — 9,847 cubic yards haul, 2,124 feet over 200 feet allowed 1J cents per 100 feet in lieu of contract rate, 1 cent per 200 feet. Excess. $1,568.62
    This sum was paid through the board of and it February 9, 1875.
    If this alleged overpayment were credited to the defendant, the claimant would be overpaid on this contract $1,012.37; if not so credited, there is still due the claimant the sum of $556.25, as claimed in the second amended petition.
    IX. Contract No. 690. — May 20,1873, the contract clerk was ordered by the board of public works to prepare a contract with Daniel A. Connolly for grading, setting curb, and laying the sidewalks on B street north from Delaware avenue to First street east, and on First street east from B street north to B street south, work to be completed in thirty working days, and the dirt to be deposited in the reservation at foot of Capitoi.
    A contract was prepared, and, although bearing date as of May 20,1873, appears not to have been executed until November, 1873, as the records of the board of public works show that several amendments and modifications of said contract were ordered to be made between May and November, 1878, the last amendment ordered being November 1, 1873, all of which appear in the body of the contract as of May 20,1873.
    By this contract Connolly agreed to grade, set the curbstones, and lay and put down the brick foot pavements on B street north from Delaware avenue to Second street east; also, to grade the carriageway, set the curbstones, and lay and put down the brick foot pavements on First street east, between East Capitol street and B street north; also, to grade tlie side • walks on the east side of First street east, between A and B streets north.
    The prices to be paid for doing tbe work embraced in this contract (article 10) are as follows:
    Grading, 30 cents per cubic yard, to include the first 200 feet of haul, and" 1 cent additional per cubic yard for every additional 200 feet of haul beyond the first 200 feet for B street and 40 cents per cubic yard for First street, conditions as to haul the same as on B street. For laying brick foot pavements and setting curbstones the rates are the same as those specified in other contracts in this cause.
    It will be observed that the order to draw the contract embraced work on First street east from B street north to B street south, but as drawn only embraced work on First street east from East Capitol street to B street north, covering two blocks only. The work was, in fact, done from C street north to B street south, covering five'blocks.
    Under what arrangements this additional work was done does not appear.
    A final measurement of all this work was made December 27, 1873, by Assistant Engineer Charles E. Barney.
    . According to this measurement, which is undisputed, 11,100 cubic yards of grading was done on the two blocks named in the contract and hauled 2,800 feet over the first 200 feet. The price of the extra haul was reckoned and paid at the rate of 1¿ cents a cubic yard for each 100 feet, making an excess over the contract rate of $2,331.
    On the three blocks not named in the contract, but measured and paid on the same vouchers, the amount of grading done was 32,193 cubic yards and the extra haul 2,800 feet. The price of extra haul was reckoned at 1£ cents for each 100 feet, which was the board rate, making an excess over the rate prescribed in the contract for the other two blocks of $6,760.53. If the District should be credited with both these alleged overpayments, Connolly has been overpaid in the sum of $9,091.53 less $30.49=$9,061.04. If credited with the smaller sum only, Connolly has been overpaid $2,331 less $30.49=12,300.51. If credited with neither, there is due the claimant $30.49.
    
      These alleged overpayments were made December 31, 1873. The last payment on the contract was made June 1,-1875.
    These computations were made by tlie District auditor or engineer.
    X. Contract No. 828. — Tliis contract was made August 8, 1874. The work amounted to $1,159.5(5, of which $300.01 remains due and unpaid.
    XI. Contract No. 1028. — By this contract, made January 30, 1874, the claimant agreed to do certain grading on G street north and Second street east. Relative to payment, the contract contains the following provision:
    “Grading, thirty (30) cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding two hundred (200) feet, and one (1) cent per cubic yard for every additional two hundred (200) feet of hauling beyond the first 200 feet.
    “ Grading of old graveled streets for first-feet, per
    cubic yard,-cents.”
    June 2,1874, there was a partial measurement of the work made by the District engineer, and upon it the price of grading is calculated at 40 instead of 30 cents a cubic yard on 3,000 cubic yards, making a difference of $300. If this alleged overpayment is credited to the defendant, there will still be due to the claimant $1,645.09. If not so credited there is due him $1,945.09. This $300 was paid through the board of audit. Last payment made January 1, 1876.
    XII. Counterclaim. — Contract No. 447. — This contract is dated July 12,1872, and provides for certain grading to be done on Third street east, between Maryland avenue and H street north. The contract provides the following prices:
    Grading, 30 cents per cubic yard, to include the first 200 feet of hauling, and 1 cent per cubic yard for every additional 200 feet of hauling.
    September 20,1872, Connolly applied for a measurement of the grading done by him on Third street northeast from Maryland avenue to F street, and thereupon a measurement of the same was made by William Forsyth, assistant engineer, showing the amount of grading done to October 5,1872, to have been 17,325 cubic yards, which amount ivas audited by the auditor of the board of public works at the contract rate, 30 cents per yard, making $5,197.50, for which certificates were issued to Connolly and the account closed on tlie 7th. day of April, 1873.
    This account was afterwards opened by the board of audit, upon a sworn statement ma.de by Connolly, on the 2d day of November, 1875, that the 17,325 cubic yards had been hauled a distance of 1,700 feet. Assuming this statement to be correct, he was entitled, according to the terms of the contract, to claim $1,299.38 additional compensation. The board of audit, however, reckoned the haul at cents for every 100 feet, making the amount $3,681.56, making an excess over contract rates of $2,382.18.
    This sum of $3,681.56 was paid to Albert G-leason, assignee of Connolly.
    Contract No. 527. — This contract, dated September 13,1S72, provided for certain work on several streets. Prices fixed as follows:
    Grading, 30 cents per cubic yard, to include the first 200 feet of hauling, and 1 cent per cubic yard for every additional 200 feet of hauling.
    The amount of work done under this contract, as reported by the engineers of the board of public works, is as follows:
    E street, 7,327 cubic yards grading, at 30 cents per yard. $2.198.10
    Certificate of Win. Forsyth, assistant engineer, October 5, 1872, with no allowance for hauling, Fourth street:
    7,999 cubic yards grading, at 30 cents. 2, 399.70
    7,999 cubic yards haul 600 feet over 200 feet, at 30 cents_ 239.97
    Making. 4,837.77
    Which amount was audited by the auditor of the board of public works and certificates issued to Connolly therefor. This account was opened by the board of audit under the same conditions as already stated under the head of contract No. 447, and a haul of 1,000 feet at 1-j- cents per 100 feet allowed on the work done on E street, making an additional allowance on 7,327 cubic yards, at 12-¿- cents per yard, equal to $915.87, which sum wa.s paid A. Gleason under the assignment elsewhere referred to. If this excess is credited to the defendant, it will leave a balance of $622.79 in favor of the District.
    Contract No. 693. — This contract is dated May 21,1873, and provides for work on certain streets. The provision for payment is as follows:
    “Grading, thirty (30) cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding two hundred (200) feet, and one (1) cent per cubic yard for every additional two hundred (200) feet of hauling beyond the first two hundred feet.
    “ Grading of old graveled streets, for first-feet, per cubic yard,-cents.”
    The work contracted for was completed and measured, computed, audited, and certificates given therefor under the board of public works. The computation was made at the rates provided for in the contract. Thus the account was closed.
    These accounts were afterwards opened by the board of audit, and the following additional allowances made thereon, to wit:
    Alley in square 575,861 cubic yards, at 1J cent per 100 feet of haul in lieu of one-half cent per 100 feet, Being in excess of contract price. $129.15
    Third street northeast, 7,540 cubic yards, at 1£ cents per 100 feet . of haul in lien of one-half cent per 100 feet, beingin excess of
    contract price. 904.80 '
    Total additional allowance by hoard of audit .. 1,033.95
    If this alleged overpayment is credited to the defendant the contract is overpaid in the sum of $1,033.95.
    These three items of counterclaim amount to $5,062.02. All were paid to Albert Gleason, assignee of Connolly.
    The case was once before a referee, who found the amounts of the counterclaim as above stated. No exception was taken in the court to the amount of the overpayments, but exception was taken to the allowance as a counterclaim, because they were paid, not to the claimant, but to Gleason.
    These three items of counterclaim were paid to Gleason under the following assignment:
    “For and in consideration of the sum of one dollar ($1.00) lawful money of the United States, the receipt whereof is hereby acknowledged, I hereby transfer and assign to Albert Gleason, of the city of Washington, District of Columbia, all of my right, title, and interest in and to any and all claims that may have been or may be presented to or allowed by the board of audit of the District of Columbia,- arising under or out of any and all of my contracts with the late board of public works of the District of Columbia for work done by me prior to July 7,1874, and I hereby make, constitute, and appoint, and by these presents do make, constitute, and appoint the said Albert Gleason my true and lawful attorney, irrevocable, for me and, in my name, place, and stead, hereby annulling and revoking all former powers of attorney or authorizations whatever in the premises, to collect, receipt for, and receive from the board of audit of said District, all sums of money, certificates, or other evidences of indebtedness now due or that may become due me under or in connection with said contracts as above specified, and to and from time to time furnish any further evidence necessary or that may be demanded; giving and granting to my said attorney full power and authority to do and perform in my name all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might do or could do if personally present at the doing thereof, with full power of substitution and revocation, and in my name to receipt and sign all vouchers, and indorse, transfer, and sell all my certificates, orders, and warrants; hereby ratifying and confirming all that my said attorney or his substitute may or shall lawfully do or cause to be done by virtue thereof.
    “In witness whereof I hereunto set my hand and seal this 29th day of October, 1875.
    “Dawiel A. Connolly.” [seal.]
    [Witnessed and acknowledged.]
    XIII. It does not appear, that said Gleason has ever claimed, under his assignment, any of the balances sued upon in this case, uor has the defendant set up the assignment as a defense.
    It does not appear that Daniel A. Connolly, or his administrator, ever ratified the act of Albert Gleason in receiving overpayments on claims presented to the board of audit, or ever received any benefit therefrom.
    XIY. By contract No. 31, new series, between Daniel A. Connolly and the District of Columbia, dated June 19,1876, it was, among other things, agreed as follows:
    “It is further agreed that in consideration of this contract . the said Daniel A. Connolly will make no claim against the District of Columbia for damages on account of suspension of work, or for other cause, under any order for work, or any contract or agreement between the Commissioners of the District of Columbia and the said Daniel A. Connolly, heretofore existing between said parties and now cancelled, except for just settlement for work already completed.”
    “ NV. Applicable to the case of Downman & Green, No. 280. — It is hereby agreed between Bawleigh W. Downmau and Osceola C. Green, both of the city of Washington, of the first part, and Daniel A. Connolly, of the second part, that, whereas the said party of the second part has executed a certain power of attorney, dated December, 1874, whereby the said parties of tbe first part are authorized to draw and receipt for money, bonds, or certificates due said party of tbe second part from the District of Columbia for work done or to be done under contract No. 243: Now, then, tbe party of tbe second part agrees that tbe said parties of tbe first part may sell or hypothecate so much of tbe bonds or certificates so drawn under said power of attorney as may be necessary to reimburse said parties of tbe first part for all moneys advanced by them and for all proper costs, charges, and commissions, and upon the discharge of all such indebtedness tbe said parties of tbe first part hereby agree to return, surrender, and release said power of attorney and tbe residue, if any, of such bonds or securities, to the said party of the second part. “
    “ In testimony whereof the said parties of tbe first part and the said party of tbe second part have hereunto set their hands and seals this 1st day of December, 1874.
    “ DANIEL A. CONNOLLY.
    “ Osceola O. Gbeen.
    “ E. W. Downman.”
    SEAL.
    SEAL.
    SEAL.
    “Know all men by these presents that I, Daniel A. Connolly, of Washington City, in the District of Columbia, have made, constituted, and appointed, and by these presents do make, constitute, and appoint E. W. Downman and Osceola O. Green, of Washington City, in the District of Columbia, my true and lawful attorney, for me, and in my name, place, and stead to demand, ask, sue for, collect, and receive all sums of money, bonds, or any other claims whatsoever which are due, owing, or payable to me from the District of Columbia, or any of the late governments or authorities therein, arising from work done, to be done, on Massachusetts avenue under contract No. 243, between New Jersey avenue and Lincoln Square; and for the purpose aforesaid I do hereby grant unto my said attorney lull power and authority to do and perform all and every act whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue hereof, hereby annulling and revoking all former powers of attorney or authorizations whatever in the premises.
    “In witness whereof I have hereunto set my hand and seal the 5th day of December, in the year 1874.
    “Daniel A. Connolly.” [seal.]
    “Know all men by these presents that I, Daniel A. Connolly, of Washington City, in the District of Columbia, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, Eawleigh W. Downman and Osceola O. Green, or either of them, my true and lawful attorneys, for me, and in my name, place, and stead to collect, sue for, receive, and receipt for all monies or certificates of indebtedness now due or to become due to me by reason of work done for the District of Columbia on the streets named in letter from the engineer’s office, of April 21,1875, and also 2d st. east from Mass, to Maryland avenue, No. 1948, Yol. A., 1875, in consideration of monies advanced by them to pay for labor in the execution of the above mentioned contracts, giving and granting to my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present at thedoing thereof, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute may or shall lawfully do or cause to be done by virtue hereof.
    “In testimony whereof I have hereunto set my hand and seal this 25th day of May, 1875.
    “DaNiel A. Connolly, [seal.]
    “This agreement, made this 31st day of July, A. D. 1875, between E. W. Dowmman and O. C. Green, trading under the firm name of Downman & Green, of the first part, and Daniel A. Connolly of the second part, all of the city of Washington, District of Columbia, witnesseth:
    “ Whereas the said Daniel A. Connolly has entered into a contract with the Commissioners of the District of Columbia to make certain improvements on Mass, avenue, D st. NE., Third st. E, and other streets designated in letters from the engineer of D. C. under dates of April 21st, ’75, and May 20th, ’75, and any other work which may be hereafter ordered to be done in connection therewith; and whereas the said Daniel A. Connolly has requested the said Downman & Green to raise for him, and furnish from time to time as the same may be required, money sufficient to carry on and complete the said contract; and whereas the said Downman & Green have agreed to furnish said money, and have actually paid certain sums in performance of said agreement, the said Daniel A. Connolly having executed and filed with the board of audit of the District of Columbia a power of attorney empowering the said Downman & Green to receive and receipt for all monies or certificates payable to him from the District of Columbia on account of work done under the aforesaid contract:
    “Now, therefore, in consideration of the performance of the services before mentioned by the said Downman & Green, the said Daniel A. Connolly here authorizes the said Downman & Green to sell or otherwise dispose of the certificates by virtue of said power of attorney aforesaid, and out of the proceeds arising therefrom first to reimburse themselves for all sums advanced under this agreement and in addition a sum equal to per cent of the amount advanced by them as compensation for their time and trouble in procuring the money to be advanced according to the terms of this agreement.
    “ Witness our hands and seals this 31st day of July, A. D. 1875. “Downman & Green. [seal.'
    “Daniel A. Connolly.” [seal.’
    “Whereas the firm of Downman & Green, acting under a certain agreement with me, have from time to time advanced certain sums of money to me to be used in prosecution of certain contracts between me and the District of Columbia, which advances were made upon the terms set forth in said agreement; and whereas the said Downing & Green have at my request from time to time advanced other moneys to me for the payment of notes, interest, tases, etc.: Now, I do hereby acknowledge and declare that I agreed with said Downman & Green, when I requested them to make advances other than those necessary for carrying on my contract with the District of Columbia, that I would pay interest at the rate of 10 per cent per annum upon all such advances by them made to me or for my use (and not embraced in the original agreement between us) from the date of. such advances until payment of the same. “Daniel A. Connolly.
    “Washington,. D. O., June 15,1876.”
    
    “Know all men by these presents that I, Andrew Gleason, in consideration of the sum of two thousand three hundred and eighty-one dollars in cash and the further sum of two hundred and ninety-eight -&%- in 3.65 bonds, to me paid by Daniel A. Connolly, do hereby relinquish all my interest in contract No. 243 for work on Mass, avenue, between New Jersey avenue and Lincoln Square.
    “Andrew Gleason.”
    Downman & Green furnished the money to carry on contracts 243 and 1948.
    It does not appear that any settlement has ever been made by Downman & Green with Connolly, nor that any statement of advances and receipts by Downman & Green was ever rendered to Connolly; it appears that Downman & Green made advances amounting in all to upwards of $58,000, and that in February, 1876, their advances exceeded receipts in the sum of about $8,700.
    After this (July 9, 1880) Oonnolly revoked his powers of attorney to Downman & Green.
    
      “XVI. Applicable to tbe case of S. J. Eitcbie, No. 150.— Know all men by these presents that we, Eawleigh W. Down-man and Osceola C. Green, as firm of Downman & Green, of Washington, D. C., in consideration of ten ($10) dollars, lawful money of the United States, to ns paid before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have sold, assigned, transferred and set over unto S. J. Eitchie, of Summit County, Ohio, his executors, administrators, and assigns, to his and their own proper use and benefit, all our and each of our right, title, and interest in and to any and all sum or sums of money now due or to grow upon certain contracts between the late board of public works of the District of Columbia, numbered, respectively, 243 and 1028 (and the extensions thereof by the Commissioners of said District) between I he said board of public works and one Daniel A. Connolly, together with all our right, title, and interest in and to the same by virtue of powers of attorney from said Connolly to us now in the hands or custody of the said Commissioners or otherwise; which accounts have been audited and allowed by the late board of audit of said District for the full amount of seven thousand and fifty dollars ($7,050), and we do hereby give the said S. J. Eitchie, Ms executors, administrators, and assigns, the full power and authority, for his or their own use and benefit, but at his or their own cost, to ask, demand, collect, receive, compound, and give acquittance for the same, or to any part thereof, and in our and each of our names or otherwise to prosecute and withdraw any suits or proceedings at law or in equity therefor.
    “And we, the said Eawleigh W. Downman and Osceola C. Green, for and in consideration of the further sum of ten ($10) dollars to us paid by the said S. J. Eitchie at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, do hereby constitute, appoint, and substitute the said S. J. Eitchie and his assigns to be our attorney irrevocable in the premises, to do and perform all acts, matters, and things touching the premises, in the like manner to all intents and purposes as we could if personally present.
    “In witness whereof we have hereunto set our hands and seals this 11th day of February, 1878.
    “Eawleigh W. Downman. [seal.] “Osceola O. Green.” [seal.]
    “XVII. Applicabletothecaseof William. M. Galt,No. 162.— For a valuable consideration in hand paid by Daniel A. Connolly, of the city of Washington, in the District of Columbia, and received by me, I do hereby assign and transfer to the said Daniel A. Connolly and his assigns an interest to the extent and amount of twenty-three hundred and twenty-seven dollars ($2,327.00) in my claim against the District of Columbia for moneys due me for work and labor done by me for said District under and by virtue of the terms of a certain contract between myself and said District, known as contract No. 5S2, to be collected and paid out of any moneys due me under said contract. And 1 further authorize and empower the said Connolly to demand and receive the aforesaid sum of $2,327.00 from the District of Columbia and the authorized representatives thereof, the same to be by them deducted from the amount due me.
    “And I further give and grant to the said Connolly full power and authority to do and perform all and every act and thing- whatsoever requisite and necessary to be done in the premises as fully as I might or could do, with fall power of substitution or assignment, and to receipt and sign all vouchers to the extent of the interest hereby assigned, hereby ratifying and confirming all that the said Connolly or his assigns may or shall lawfully do or cause to be done by virtue thereof.
    “In witness whereof I hereunto set my hand and seal this 31st day of July, A. D. 1876.
    “William; Hussey.” [seal.]
    “For a valuable consideration in hand paid by William M. Galt, of the city of Washington, in the District of Columbia, and received by me, I do hereby assign and transfer to the said-William M. Galt and his assigns all my right, title, and interest acquired by virtue of a certain transfer or assignment heretofore made to me by one William Hussey, and dated the 31st day of July, A. D. 1876, in and to a certain claim heretofore presented against the District of Columbia by the said William Hussey, for moneys due him for work and labor by him performed for said District, under and by virtue of a certain contract between the said William Hussey and the District of Columbia, known as contract No. 582.
    “The extent and the amount of the interest in said claim transferred by said William Hussey to me by said assignment is $2,327.00; and I do hereby authorize and empower the said William M. Galt to demand and receive the aforesaid sum of $2,327.00 from the District of Columbia and the authorized representatives thereof, the same to be by them paid out of and deducted from any moneys due me under said contract by virtue of said assignment or otherwise.
    “And I further give and grant to the said William M. Galt full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in the premises as fully as I might or could do, with full power of assignment or substitution, and to receipt and sign all vouchers, to the extent of the said interest hereby assigned, hereby confirming all that the said William M. Galt, or his assigns, may or shall lawfully do or cause to be done by virtue hereof.
    “In witness whereof I hereunto set my hand and seal this 31st day of July, A. D. 1876.
    “Daniel A. Connolly.” [seal.]
    XVIII. Of all the assignments and powers hereinbefore set forth the defendants had due notice.
    
      Mr. Jere Wilson, Mr. J. W. Douglass, Mr. George A. King, Mr. William B. King -for claimants.
    
      Mr. Felix Brcmnigcm (with whom was Mr. Assistant Attorney-General Dodge) for the defendants.
   Davis, J.,

delivered the opinion of the court:

This case now comes before ns for a new trial, based upon assignments of error alleged to have been committed in our former findings of fact and conclusions of law.

The first error alleged is that Connolly, the contractor, is charged with $2,850.52, paid him December 5, 1873. Plaintiff urges in support of his contention that a controversy arose between Connolly and the board of public works as to his compensation; that the matter was referred to commissioners, who found a certain amount due, which was paid. This, it is contended, was in effect a submission to arbitration. The conclusion was in effect an award of duly empowered arbitrators, it is said, and the District can*not now recover back any money paid under the commissioners’ decision. The account (plaintiffs urge) must be held to be finally and conclusively settled.

The only evidence we have upon this point is found in the report to this court of the referee appointed by us prior to the former hearing. He thus reported:

“A controversy having arisen between Connolly and the board of public works in respect of the amount of work done under the original contract, No. 243, the matter was referred on November 20, 1873, for adjudication to a commission consisting of (four names mentioned), and a settlement of the account under said original contract was made in accordance with the award of said commission as reported by that body to the board of public works, November 27,1873.”

There is no dispute in this matter as to the amount of work done. The point is that Connolly was allowed board of works rates instead of Ms contract rates in tMs payment. We do not consider that the referee’s report (and we have no other evidence) shows a submission to an arbitration which could produce an award binding and conclusive upon the District, or that the decision of these commissioners effected such a settlement as amounts in law to an accord and satisfaction. On the contrary, this report, in our opinion, simply shows a payment made upon the statement of adjusters appointed in the course of business, prepared upon the assumption that Connolly should be allowed board rates and not contract rates, an assumption held by this court to be unwarranted.

As to this we can only repeat our former ruling herein, to wit:

This question has been so fully discussed in the recent opinion of the chief justice in the case of Barnes v. The District of Columbia (22 C. Cls. R., p. 366), that it is unnecessary to go over the ground again. We hold in these cases, as we held there, that these orders (of the board of public works) do not change “the written contracts between the parties made before the orders were issued, and much less contracts made thereafter.”

The plaintiff coming into court for a final settlement with the District, and having received public money, to which he had no legal claim, must be held liable to refund it. (22 C. Cls. R., 400.) See also Barnard's Case (127 U. S., 409, 410).

We now again hold that the District can recover back the overpayment-; but this only as to Connolly, the contractor.

Otherwise is it as to his assignees: Between Connolly and the defendants it may be well enough to make a general account covering all his contracts, and, after striking a balance, to cause the defendant to pay the sum shown due him, or to authorize the defendant to recover the sum due from him, as the result may be in Connolly’s favor or against him. But an assignee of a contract which is profitable can not be charged with his assignor’s loss upon another — entirely different and losing — contract, when, as in this case, he has furnished the money upon which the contract was completed, with the knowledge of the defendant. The rights of Connolly’s assignees, therefore, are (after the assignment of which' defendant had knowledge) not tobe confounded with Connolly’s rights or his duties or his liabilities; if his assignee’s assignment be of a profitable contract upon which something now remains due and unpaid, recovery can not be defeated by the fact that Connolly owes the District for overpayment upon another and losing contract with which the assignees are in no way connected.

Counsel for Connolly’s administrator urge that as payments, now held to be overpayments, were made to Lay & Co. as Connolly’s agents, or attorneys, or assignees (their quality of agency is disputed), and as they were authorized to receive only what “ was due ” and not to receive what was not due (that is, not to receive overpayments), no recovery can be had by defendants for such overpayments. It appears, however, at this trial, that the payments made to Lay & Co. reached Connolly. In view of this fact, to wit, that Connolly had the benefit of the payment, we see no reason to change our finding of fact or to examine the nature of Lay & Co.’s assignment or power of attorney, as to which there is dispute. We allow the exception as to Finding X, and allow the $300.04.

During the trial it was stated that all questions between the different assignees were reserved. Judgment will therefore be suspended.  