
    Thomas A. Brown v. The District of Columbia. Francis Prott v. The same. Thomas A. Brown et al. v. The same. William Dickson v. The same. William Dickson v. The same.
    
      On the Proofs.
    
    
      Each clamant sues, notin his own right, hut as assignee of a contractor named Finley. The defendant alleges overpayment to Finley and seeks to recover hack money paid in mistake of fact hy the hoard of audit. It appears that a balance is due to Finley exceeding the amounts sought to he recovered hack hy way of set-off. One of the claimants seeks to recover losses sustained hy Finley in selling his certificates of indebtedness for less than the par value thereof, caused by the defendant’s breach of contract in not paying in lawful money.
    
    I.Though the hoard of public works agreed to pay its contractors in lawful money of the United States, and instead of so doing gave them certificates of indebtedness which jhey could only dispose of at a heavy discount, the District of .Columbia is not liable for the loss sustained by contractors in the sale of certificates, nor for the difference between the market value and the face value of such certificates at the time of settlement.
    II.Money paid through settlements made by the board of audit upon mistake of fact may be recovered back by way of set-off if it appears that the amount so paid was not justly due and owing.
    III. When claimants invoke the equity jurisdiction of the court under the District claims Act, 1880 (1 Supplmt. R. S., 562), and the defendant seeks to recover back by wa3 of set-off moneys allowed by the board of audit in mistake of fact, the set-off should bo npheld by the court upon the fundamental principle of courts of equity, that he who seeks equity must do equity.
    IV. The assignee of a claim against the District of Columbia suing under the District claims Act, 1880 (1 Supplmt. R. S., 562), stands in the place of the assignor, and may recover just what the latter would have recovered hut for the assignment, and no more.
    
      The Reporters’ statement of the case:
    These cases were previously before the court (see ante, p. —), when, upou the defendant’s motion, they were consolidated. They now come before the court for final hearing. The following are the facts as found by the court:
    I. Frank H. Finley entered into a contract in writing, with the board of public works (No. 795), dated July 28, 1873, by which he agreed, among other things, to lay blue-stone pavement on K street, between North Capitol and Seventh streets, in the city of Washington, and to construct sewers on said street between those limits, the portions of which material in this case, or referred to by either party at the trial, are as follows :
    “ 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 unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances or injuries to individuals, property, or otherwise, on the line, of the work or adjacent thereto, shall be sustained by the said contractor. *****##-
    • “ 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: *' * * * # * *
    ‘‘Laying and putting down blue-stone pavement, per square yard, one dollar and fifty ($1.50) cents, which shall include two (2) feet of grading.
    “Excavations and refilling, forty (40) cents per cubic yard, to be measured in excavation only.
    “ Thirteenth. 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 pay 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 contracts.
    “ Fourteenth. 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 any part thereof, as fully as if the same were particularly set forth herein.
    “Spefifications * * * 13. Sheet-piling to be used where the same may be necessary, but no allowance will be made therefor; in all cases tbe sheet-piling is to be drawn as the work progresses, unless ordered otherwise by the said board, in which case the sheet-piling so ordered to be left in the trench will be measured and allowed for at the -same rate as foundation plank.” •
    In relation to the sewer work under said contract, the following correspondence and action occurred:
    “Washington, May 23rd, 1874.
    “ To the Hon. Bd. of Public Works:
    
    
      ■ “ G-rntlbmen : I would respectfully call your attention to the brick sewer work performed by me on .K street north, under contract with the board, and for which no settled price had been agreed upon. In estimating the price to be allowed me, the engineer has rated it at $23 per 1,000. The innumerable difficulties that beset the accomplishment of the work impel me to appeal to you for a better rate and a more equitable settlement of my contract. Laboring under the disadvantage of quicksand bottom, and compelled to pa.y cash prices for the material used, I shall be at considerable loss, having been obliged to negotiate the auditor’s certificates held by me at 45c. on the dollar in payment for bricks used, the actual cost of the brick purchased in this way amounting to over $26 per 1,000 — the rate allowed without considering the cost of laying or the cement used. As the board have in some cases heretofore allowed a better rate in the settlement for a similar, I would therefore ask that a fairer and more just price be allowed me for the work performed, as it was one of the most difficult jobs imaginable, and I only ask to be paid a price that would equal the losses that I have thus far sustained in carrying on the work.
    “ Bespectfully,
    “Frank H. Finley.”
    “Board or Public Works, “District.or Columbia,
    “ Washington, June ‘2d, 1874.
    “ Bespectfully referredTo theengineer department to examine and report upon the rate's Mr. F. is entitled to.
    “By order of the board:
    “ Frank’n T. Howe,
    “ Chief Cleric:’
    
    “ Board or Public Works,
    “ District or Columbia,
    “ Oreice or Chier or Engineers,
    “ Washington, I). C., June 3, 1874.
    “ Hon. John B. Blake :
    “ Sir : I have the honor to return papers 5186 & 5291 Finley, and 5284 ofB. Both well, all relating to the prices to be allowed for tbe construction of brick sewers for which they had contracts, viz: Finley for a sewer on K st. N. W., & Both well for one on 10th st. S. E.
    “The rates assumed last summer for main brick sewers were—
    For excavation, per cubic yard. 77
    “ brick per M.$23 00
    “ shoring, per lin. foot... $1 08
    to which add 15% for discount, as has already been stated by Ch. E. Barney in his endorsement on paper, $5284.
    “His statement, of $30.06 per M for brick was, however, incorrect, as only $23 per M was assumed. I think that the brick sewers constructed by these gentlemen during last summer ought to be classified as main sewers, and that the above rates ought to be allowed, as also in the case of Chenowith’s sewer on 10th and T st. N. W.
    “ The extra bill of Mr. Finley (paper 5186) will, if the above rates are allowed, be covered by the price thus increased, and will have to be disallowed.
    “Very respectfully,
    “ B. Oertly,
    “ Deputy Engineer.”
    “ Respectfully referred to the board for consideration.
    “ Jro. B. Blake,
    
      11 Member in Charge ofEng’r’s Office.”
    
    The following is “the extra bill of Mr. Finley” above referred to:
    “Washington, May 19,1874.
    “ Board of Public Works to F. FC. Finley.
    
    For extra work done on brick sewer from H. Capitol to 2nd st. if. ( "W., on K, as follows: \ 4,827 cubic yards extra excavation, caused by quicksand and Í caving.; 4,000 ft. lumber left in sewer and destroyed.!
    “ I certify that the above work was done and material furnished by contractor, as alleged above.
    “Geo. M. Fillmore,
    “ SpecH Supt.”
    
    “Board oe Public Works,
    “ District oe Columbia,
    “ Washington, E. C., June 9, 1874.
    “ Sir : I am directed by the board to notify you that your contract $795 lias been amended so as to allow main sewer rates, viz: Excavation, 77 cents; brick masonry, $23 per M; and slioreing', $1.08 per lin. foot, with 15 per cent, additional for discount, for the sewer on K street between North Capitol and 2nd streets.
    “ Your bill of the 19th ultimo for extra work is disallowed.
    “ Very respectfully,
    “ Chas. S. JohnsoN,
    “ Secretary.
    
    “ F. H. Finley, Esq., City.”
    
    Thereafter the following extensions of said contract were made:
    “[Extension of June 9, 1874.]
    It is hereby agreed that this contract, with its various terms, conditions, and stipulations (except as respects the time of execution), shall be extended so as to embrace for the two (2) ring brick barrel sewer, three feet six inches (3' 6") inside diameter on K street N. W., between North Capitol and First street N. W., and the two (2) ring brick barrel sewer, three (3') feet inside diameter on said K street N. W'., between First and Second streets N. W., in the city of Washington, D. C., the following rates, to wit:
    “Excavation and refilling, to be measured in excavation only, per cubic yard, seventy-seven ($0./^) cents.
    “Brick masonry per thousand, twenty-three ($23-1°Tr°g-) dollars.
    “ Shoring per lineal foot, one dollar and eight (-^lj-oV) cents.
    “ With fifteen per centum additional to the prices aforesaid.
    “ [Extension .of May 19, 1875.]
    “For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and F. H. Finley that contract No. 795, in the series of contracts made by the board of public works of the District of Columbia, be, and the same is herebjg extended with its various terms, conditions, and stipulations, to embrace the folio wing, work, to wit:
    “ Grade E street south, between North Carolina avenue and Second street east; Second street east, between Pennsylvania avenue and F street south; Virginia avenue, between New Jersey avenue and Sixth street east; First street east, between North Carolina avenue and F street’south.
    “It’is further agreed that the saidF. H. Finley 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 30, 1874, which bonds shall be accepted and received at their par value.”
    
      XI. Said Finley also made another contract with the board of public works, dated September 18,1871 (No. 4), the portions •of which material in this case, or referred to at the trial by either party, are as follows:
    “ This contract, made and concluded this eighteenth day of September, in the year one thousand eight hundred and seventy-one, by and between * * * the board of public works of the District of Columbia of the first part, and Frank H. Finley, 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 lay and put down a brick foot pavement along Eleventh street west, from F street N. W. to E street N. W., in the city of Washington, D. C., and to set the curbstones along said. Eleventh street west between said points, the said paving and curbing to be executed in all respects in conformity with the specifications following, to wit: * * *
    “ Tenth. It is further agreed that the said party of the said 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 per cubic yard, twenty cents.”
    This contract was extended May 20, 1872, as follows :
    “ It is hereby agreed that this contract, with its various terms, conditions, and stipulations (except as respects the time of execution), shall be extended so as to embrace the laying of foot pavements and the setting of curbstones on Eleventh street northwest, from F street north to N street north, in the city of Washington, D. C., said work to be executed in every respect in conformity with the aecompan’ing specifications.”
    The scale of prices for work and material adopted by the board of public works, September 14,1871, contained the following, among other items:
    “ Grading, per cubic yard, earth to be deposited where directed without extra charge, 20 cents.”
    On the 22d of .January, 1872, the following order was adopted by the board:
    “Ordered, That the price of grading be fixed from and after this date at thirty (80) cents per cubic yard, including the hauling, not to exceed two hundred (200) feet; for each additional two hundred (200) feet, one cent additional per cubic yard will be allowed.”
    The following correspondence in relation to prices occurred ' at the respective dates thereof:
    “Board or Public Works,
    “District or Columbia,
    “ Washington, Dee. 18, 1872.
    “ Hon. A. R. Shepherd,
    
      “V.P.B.P. Worts, D. G.:
    
    “Sir : On 17th of June, 1872, permission was given me (verbally) by Dr. Wallace, inspector, to deposit surplus earth taken from 11th st., bet. F & N, N. W., in the canal. I respectfully request to be informed if I will be allowed board rates for hauling same and depositing therein.
    “Very respectfully,
    “F. H. Finley.”
    “Board or Public Works,
    “District or Columbia,
    “ Washington, Dec. 19, 1872.
    “ Frank H. Finley, Esq.:
    “ Sir : In reply to your communication of the 18th inst., statin g verbal permission had been granted you to haul and deposit earth in the canal, and requesting to be informed if you will be paid therefor, I am directed to inform you that you will be allowed the regular board rates for hauling.
    “ By order of the board.
    “Chas. S. Johnson,
    
      “AssH See’y.”
    Thereafter, in pursuance of said permission and in accordance with the information communicated to him by the board as aforesaid, he deposited in the canal the earth excavated by him on Eleventh street, under his contract No. 4.
    III. Under the extension of May 19, 1875, of contract No. 795, set forth in the first finding, said Finley did work in grading Virginia avenue, for which there was found due and owing to him on the 10th of March, 1876, a balance of $10,965.89, which has not been paid, and is still owed by the District, subject to the offset and counter-claims, if liable thereto, hereinafter set forth.
    IV. RELATING TO RIRST ITEM IN PLEA OR COUNTER-CLAIM.
    Among other work done by said Finley under said contract No. 795 was the laying of 8,822.06 square yards of blue-rock pavement on K street, prior to September 27, 1874, which, at the price named in the contract, came to #13,233.09.
    This amount was paid to him as follows: On the 13th of November, 1873, a partial payment by the board of public works (in certificates which were subsequently redeemed), upon an account stated, in which the price Avas put at #1.50 a. square yard. On the back of this account stated, said Finley signed an acknowledgment of the receipt of said certificates. On the 7th of November, 1874, a payment was made by the board of audit (in certificates subsequently redeemed), upon an adjustment of his accounts, including this and other work, styled therein “final,” and in which the price of his work was also put at #1.50 per square yard. At the bottom of this account said Finley signed the following receipt:
    “Received this 7th day of November, 1874, from the board of audit, their certificates Nos. * * * in full settlement of the above stated claim.”
    Said Finley was aware of the contract price, and that his settlements were based thereon, at the times they were made.
    On the 16th of August, 1875, Finley filed a claim before the board of audits as follows:
    “Washington, D. 0., Aug'. 16, ’75.
    “ To the Hon. Board of Audit :
    
    “Upon examining the settlement of my account under contract 795, for work done on K st. N. W., from 7th to N. Capitol sts., I find that I Avas allowed only #1.50 per sq. yard for blue-rock pavement. The price was #1.75, as I understood and expected to receive. Will you be kind enough to have the account corrected, and the amount, #2,205.52, paid me? I would also make inquiry whether the two feet of grading was deducted. My understanding was that two feet of grading was not deducted from blue-rock pavement.
    “Yours, respectfully,
    “F. H. Finley.”
    Upon this application the board of audit, on the 20th of August, 1875, by mistake of fact through' the misstatement of Finley that the price for laying blue-rock pavement Avas $1.75, whereas it was #1.50 per square yard, made an allowance as folioavs : Additional on 8,822.06 square yards blue-rock pavement, #2,205.52; and said Finley on the next day received and receipted for board of audit certificates for that amount, and the same have since been redeemed.
    
      V. RELATING- TO THE SECOND ITEM IN PLEA OF COUNTERCLAIM.
    Said Finley did work under his said contract No. 4, in grading Eleventh street; and on the 29th of April, 1873, he'made the following communication to the board of public works:
    “Washington, D. 0., April 29,1873.
    “Hon. A. It. Shepherd,
    “ Vice-Pres. B. P. W.:
    
    “Sir: Having completed my contract on Eleventh street N.
    W., from F to N sts., you would confer a favor by ins’ructing the engineer, at his earliest convenience, to make a final measurement.
    “Yours, with respect,
    “F. H. Finley.”
    In compliance with this request, the engineer of the board of, public works measured and certified the amount of work for grading and hauling, and thereupon an account was stated in which said Finley was allowed (in addition to grading), for hauling 30,640 cubic yards of earth a distance of 5,100 feet over 200 feet, at the rate of one cent per yard for each 200 feet after the first 200 feet, amounting to $7,813.20. This amount was paid by the board of public works, June 2,1873, in certificates (since redeemed), for which said Finley receipted on the back of the account, and received payment without objection. The earth thus hauled was deposited in the canal mentioned in the correspondence between him and the board of public works, set out in the second finding.
    On the 23d of September, 1875, said Finley presented to the board of audit the following claim :
    “Washington, D. O., Sept. 23,1875.
    “ To the Board of Audit :
    
    “I certify that I performed the work under contract No. 4 for the improvement of 11th street, between F and N streets northwest, and that I was allowed in settlement for the said work 30,640 cubic yards of earth excavated and hauled to the canal, for which I received payment at the rate of one-half cent for each 100 feet over 200 feet; that all of the earth removed from 11th street was deposited in the canal under orders of the board of public works, and that deponent is fully entitled to three-quarters of a cent additional pay for all of the earth hauled during the year .1873, and an additional allowance for filling canal.
    “F. H. Finley.
    “ Sworn and subscribed before me this 23d day of September, A. D. 1875.
    “Robert Y. Hughes, J. P.” [seal.]
    Upon this application the board of audit, in mistake of fact in supposing that the board of public works had agreed to pay said Finley 15 cents per cubic yard for depositing earth in the canal in addition to the price paid bim for hauling the same, whereas no such agreement ever had existed, made an allowance to him accordingly, “ for work on 11 st. N. W., F to N, filling canal, 30,640 y’ds, at 15 cts-., $4,596,” and that amount was paid to him October 19,1875, in board of audit certificates (since redeemed), and he receipted for the same.
    YI. RELATING TO THE THIRD ITEM IN THE PLEA OF COUNTER-CLAIM.
    On the 13th of June, 1874, the board of public works stated a final account with Finley for sewer work on K street under contract No. 795, allowing him the increased prices named in the extension of June 9, 1874, and in the previous correspondence upon which it was founded as set out in the first finding, showing the amount due him to be $14,395.02. Of this sum the board of public works paid him, June 13, 1874, in certificates (since redeemed), $8,000, and charged him with materials furnished $967.50, for which he receipted on the back of the account, without objection to the prices.
    On the 7th of November, 1874, the board of audit paid to said Finley in certificates (since redeemed) the balance of said account, $5,427.52, and he receipted the account, “in full settlement of the above stated claim.”
    On the 6th of August, 1S75, in mistake of fact in supposing that this was an outstanding claim set up by Finley, whereas it had been all settled by the previous action of the board of public works upon Finley’s representations, and Finley made no claim thereto, the board of audit made the following allowance.
    “Washington, D. O., Aug. 6,1875.
    
      “District of Columbia to Frank H. Finley, f>r.
    
    For work on K st., between 7 & N. Cap.:
    Final measurement.$1,741 66
    
      This allowance was made upon the following bill, which had been filed with the board of public works in April, 1874, prior to the contract extension of June 9,1874, and the correspondence preceding' the same, set forth in finding one:
    “ Washington, D. 0., April 27, 1874.
    “ Board, of Public Works, I). 0., to P. H. Finley, I)r.
    
    K, N. W. (7th to Nor. Capitol st’s):
    Hauling 215 feet Scotch pipe to 6th st. wharf, .04 c. 8 CO “ 12 “ “ “ connections, .04... 48
    “ . 27 « “ “ “ .04... 1 08
    221 cub. y’ds rock excavation, $1.50. 331 50
    3,500 “ “ extra excav. (caving quicksand), .40... 1,400 00
    1,746 66
    “ I h ereby certify that 1 have m ensured and inspected the work done by F. H. Finley, on the improvement of K street N. W. (between 7th & Nor. Capí, sts.), in sqr.-, embraced in the foregoing account, which work was done under the order of the board of public works, and find it correct as to quantity and quality, and that the work has been done and material and labor furnished as per orders.
    “Dated April 27, 1874,
    “Chas. E. Barney,
    “ Assistant Engineer.
    
    “Approved April 27,1874.”
    For the excavation called for by the original contract No. 795, to which the excavation mentioned in the above bill was extra by reason of quicksand, the board of public works, subsequently to the presentation of the bill to that board, allowed to him 77 cents per cubic yard, and $1.08 a lineal foot for shoring his trenches, with 15 per cent, added to both, in consideration of the difficulties expressed in his letter of May 23, 1874, set out in the first finding, and he was so paid; and this claim was thus adjusted, compromised, and settled.
    This bill was among the archives of the board of public works, was never presented to the board of audit by said Finley, and was never claimed by him. The first he knew of its being before the board of audit lie was notified that there was a certificate there for him. He took-the certificate, and the same has been redeemed.
    VII. Said Finleymade, executed, and delivered to the parties therein named the following written papers:
    
      [No. 1.]
    “ To the Son. Commissioners of the District of Columbia:
    
    “You will please pay to Thomas A. Brown the sum of ten thousand dollars out of the balance coming to me for work done under my contract (No. 795) for grading, &c., on Virginia avenue, in this city, that amount being due him for money which he advanced me for the purpose of carrying on the work under said contract.
    “’Washington, D. C., March 28, 187C.
    “Frank H. Finley.”
    [No. 2.]
    “ To the Hon. the Commissioners of the District of Columbia:
    
    “You will please pay to Francis Prott the sum of fourteen hundred and fifty dollars ($1,450) out of the balance coming to me for work done under my contract (No. 795) for grading, &c., on Virginia avenue, in this city, that being due him for money which he advanced me for the purpose of carrying on the work under said contract.
    “AVashingtou, D. C., March 31, 1876.
    “Frank H. Finley.”
    [No. 3.]
    “Know all men by these presents that I, Frank H. Finley, of the District of Columbia, have made, constituted, and appointed, and by these presents do make, constitute, and appoint Charles P. P. AVroe, of the District of Columbia, my true and lawful attorney irrevocable, for me, in my name, place, and stead, hereby annulling and revoking all former powers of attorney or authorizations whatever in the premises, to the amount of five hundred and fifty dollars, to be deducted out of monies due me in a certain claim against the government of the District of Columbia, filed with the late board of audit of the said District, for hauling and removing old material from Eleventh and Twelfth streets, northwest, and to, from time to time, furnish any further evidence necessary or that may be demanded, giving and granting to my said attorney full power and authori ty 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 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 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 have hereunto set my hand and seal this fourth day of April, eighteen hundred and seventy-seven.
    “F. H. Finley.” [seal.]
    [Acknowledged before a notary public April 4, 1877.]
    [No. 4.J
    “ Know all men by these presents that I, Frank H. Finley, of the city of Washington, D. 0., for value received, do hereby grant, assign, and transfer unto Thomas A. Brown, of the said city, all claims and demands which I have against the District of Columbia for all sums of money due me from the District of Columbia for work and labor done and materials furnished in the improvement of certain streets in said city of Washington, and all other claims and demands whatsoever which I have against said District of Columbia.
    “In witness whereof I hereto set my hand and seal this twenty-third day of October, A. D. 1880.
    “F. H. Finley.” [seal.]
    [Acknowledged before a notary public October 23,1880.]
    . ' [No. 5.]
    “Washing-ton, D. 0., December 14,1880.
    “For value received, I hereby assign unto William Dickson all my right, title, and interest in and to a claim for extra allowance due in haul on contract No. 4 issued by the board of public works, being the difference between the amount paid on account of said claim, $4,596, and the amount due, $11,791, with interest to time of settlement. Also assign to the said William Dickson the amounts claimed to be due as difference between the value of the certificates received in payment for work done under contracts No. 4 and No. 795 with board of public works and lawful money of the United States, William Dickson having full power to prosecute the said claims and to collect the amount from the Court of Claims.
    “ Witness my hand and seal this fourteenth day of December. 1880, A. D.
    “F. H. Finley.” [seal.]
    [Acknowledged before a notary public December 14, 1880.]
    ■ Upon the foregoing findings the court- decides as conclusions of law as follows:
    1. The claim of $10,965.89 against the defendant set forth in the third finding is sustained, subject to the set-off hereinafter specified.
    
      2. The defendant’s set-off and counter-claims of $2,205.52 set forth in .the fourth finding, of $4,596 set forth in the fifth finding, and of $1,741.66 set forth in the sixth finding, are sustained.
    3. The balance due to said Finley, on .the adjustment of his accounts with the District, before the making of any of the writings set forth in the seventh finding,, after deducting said offsets and counter-claims, was $2,422.71.
    4. The claimant Brown, as equitable assignee of said Finley, is entitled to recover said sum of $2,422.71 in his action No. 3.
    5. The claimant Prott, in his action No. 161, is not entitled to recover, and his petition must be dismissed.
    6. The claimants Brown and Wroe, in their action No. 223, are not entitled to recover, and their petitions must be dismissed.
    7. The claimant Dickson, in his action No. 305, is not entitled to recover, and his petition must be dismissed.
    In the case of Dickson, No. 309, in which the defendant has filed a demurrer to the claimant’s petition, the demurrer is sustained.
    
      Mr. W. D. David ge and Mr. Reginald Fendall for Brown; Mr. W. K. Dulumel for Prott; Mr. Woodbury Blair for Dickson,
    
      Mr. Assistant Attorney-General Simons and Mr. J. O. Fay for the defendant.
   Bici-iardsoN, J.,

delivered the opinion of the court:

The complications which arose upon the allegations of the several petitions in these five cases, and the plea of set-off and counter-claim filed by the defendant, increased by the fact that the suits were all brought in the names of alleged assignees of the original contractor and creditor, and he was not made a party to the proceedings, have been very much reduced since the recent order of the court consolidating the cases and directing that the assignor be cited in to prove any claim which he might have, or be concluded by the judgment of the court therein.

Frank H. Finley, the assignor, was cited in on motion of all the claimants, appeared in response to the citation, and filed a written disclaimer to any demand in his own name against the District in the subject-matters and controversies involved in each and all of said cases, with a declaration that he has no defense or objection to the assignments, powers of attorney, or other documents signed by him and delivered to the respective claimants touching those matters.

The claimants have filed a stipulation that Thomas A. Brown disclaims any interest in the claims suedforby William Dickson (Nos. 305 and 309), that said Dickson disclaims any interest in the claims sued for by said Brown (No. 3), by Francis Prott (No. 161), and by Brown and Wroe (No. 223), and that said Wroe disclaims any interest in the claims sued for in said Brown and Prott eases (Nos. 3 and 161).

We shall consider the several claims and cases in the reverse order of their importance.

In the case of Brown & Wroe (No. 223) the claimants seek to recover more than eleven thousand dollars for extra work done by Finley, their alleged assignor, in connection with his contracts made with the board of public works. No evidence whatever has been introduced to support this claim, and therefore no finding of fact is made on the subject. There was another claim set up in the case for the balance of whatever might be recovered for other work done by Finley and sued for in the action of Brown (No. 3) after the amounts assigned to said Brown and to Prott should be paid, but the claimant Wroe lias disclaimed any interest in that matter, and it is out of his case. So the petition of Brown and Wroe (No. 223) has nothing to stand upon and it must be dismissed.

In the case of William Dickson (No. 305) the claimant, as assignee of said Finley, seeks to recover $7,123.80 as the difference between what was paid Finley for hauling 30,640 cubic yards of earth under his contract No. 4, and that which he claims was due him therefor. No evidence was introduced by the claimant, and his case must be decided upon the second finding in relation to contract No. 4, and the fifth finding in relation to the defendant’s counter-claim.

It appears that the original contract No. 4 (finding 2) allowed twenty cents for grading and nothing extra for hauling the earth. But by an order of the board of public works January 22,1872, the price was raised to thirty cents for grading, including the hauling, not to exceed two hundred feet, and for each additional two hundred feet one cent additional per cubic yard. By correspondence between Finley and the board, which took place in December, 1872, it was agreed that Finley should be allowed the regular board rates for hauling, so that he was thus promised the benefit of this order.

Ou the 29tb of April, 1873, Finley notified the board of public works that he had completed his contract, and asked that the engineer might be instructed to make a final measurement. Accordingly a measurement was made by the engineer, and an account was stated by the board, in which Finley was allowed for the haul at the rate specified in the order of January 22, 1872. Ou the back of this account Finley receipted for payment of the amount thus found due him. After this Finley made a claim to the board of audit for extra compensation because he deposited the earth in the canal, and was paid $4,596 therefor. This last item of payment is a subject of counterclaim, and we shall have occasion to consider it further in connection with Brown’s case.

Thus it appears that Finley was paid for hauling the earth mentioned in Dickson’s petition the exact rates fixed by the board; that he knew of those rates when he was paid, since he receipted for the money on the very account itself, and made no objection. Flor could he well object. The price at which he had contracted to do the work had been greatly enlarged by a general order'of the board, and he had been given the full benefit of that order, instead of being held to his original agreement. Dickson stands in no better position as assignee than did his assignor, and his petition (No. 305) must be dismissed.

In the other ease of William Dickson (No. 309) the claimant alleges in substance that by the terms of the contracts of said Finley with the board of public works (Nos. 4 and 795) it was agreed that he should be paid for all work done thereunder in lawful money of the United States; that he did a large amount of work, and the board failed and refused to pay him in lawful money of the United States, but compelled him to receive at their face value certificates of indebtedness of the board of public works of the value in lawful money of the United States of 50 to 60 cents on the dollar; that to provide money with which to pay his workmen he had to sell said certificates, and did sell them, and realized the highest market value thereof, whereby he was damaged to the amount of $88,743.

To this petition the defendant files a general demurrer.

Finley’s grievances, of which complaint is now made and for which damages are claimed against the District of Columbia, are these; and a mere statement of them is quite sufficient to dispose of the case in favor of the defendants. The board of public works, representing tbe District in the matter, owed to to him a large amount of money; they bad no money with which to pay him, and they gave him certificates acknowledging the indebtedness. That wastheexacttenorof each certificate. This did not change the relation of the parties or the nature of the contract between them.. It was-not payment and satisfaction of the debt. The certificates were payable in lawful money, and after the receipt of them by Finley the board or the District was still under obligations to pay as before in lawful money of the United States. He was not compelled by contract, express or implied, with the District or the board of public works to sell these certificates. He might have brought suit upon them and recovered judgment for the full amount due him, or he might have held them until the District or the board should be in funds to pay. them. But he did neither. He was pressed for money with which to pay his workmen, and was apparently without ready capital with which to carry on his work. In this emergency of his own, he went into the market and sold his certificates at great discount. The District in due lime redeemed the certificates and so paid them in full, according to their tenor or to the satisfaction of the holders. The loss made by Finley was of his own creation,, and, although it may have been a remote consequence of the breach of contract on the part of the board of public works in not paying at the time agreed upon, the District could be held to pay only the amount actually due; and that they have done. The measure of damages for the non-payment-of money at the time fixed by contract is the amount of money promised, with interest thereon from the time ivhen due or demanded.' In this case all such damages were settled and paid when the certificates were redeemed and surrendered. (Vennum v. Gregory, 21 Iowa, 326; Insurance Co. v. Piaggio, 16 Wall., 378.)

If the board of public works, with its limited and special powers, superadded to the general restraints on public officers in contracting in the name of their principal, could not by express oral contract bind the District to pay such losses as Finley sustained by the sale of his certificates, we are certainly not at liberty to charge the District on an implied contract of that kind, arising from his being compelled by his own necessities to dispose of his claims at great discount. (Bauer v. Franklin Co., 51 Mo., 205; Dillon on Municipal Corporations, 503.) And that the board of public works had no power to bind the District by oral contracts to indemnify its creditors, who received its certificates of indedtedness, against loss in the sale of them, for want of a previous appropriation therefor and other causes, is fully shown by the court in the case of the Neuchatel Rock-paving Company v. The District of Columbia (ante, p. —), and we refer to that opinion for further exposition of our views.

The demurrer in this case is sustained.

This disposes of all the consolidated cases, except those of Thomas A. Brown (No. 3) and Francis Prott (No. 161). These two cases are governed by facts the same in the one case and the other, and are founded upon a claim for work done by Finley under his contract No. 795 for grading Virginia avenue, upon which the findings show that there was due him the sum of $10,965.89, subject to the decision of the court as to certain counter-claims. Of this sum Brown claims $10,000 under his assignments from Finley, and Prott claims the balance under the assignment to him .made subsequently to the first one to Brown.

The balance due Finley, aside from the counter-claims, was not controverted at the trial, but was agreed upon by the parties. The whole controversy is confined to the validity of. three items of set-off and counter-claims, pleaded by the defendant. These we shall consider in their order as pleaded.

1. By contract No. 795 (first finding) Finley agreed to lay and put down blue-stone pavement, for which he was to receive, as therein specified, per square yard, one dollar and fifty cents ($1.50), which shall include two (2) feet of grading.” He laid 8,822.06 square yards of such pavement, which at the contract price entitled him to receive $13,233.09.

An account was stated by the board of public works, on a partial measurement of the same, specifying that price, and a partial payment thereon was made to him by the board, and he receipted for the same on the back of the account.

After the abolition of the board of public works, a final measurement was made and an account stated at the same price. The board of audit paid to him the balance of the account, and he signed a receipt at the bottom thereof “ in full settlement of'the above-entitled claim.”

Subsequently, on the 16th of August, 1875, Finley filed a claim before the board of audit, alleging that he was entitled to $1.75 for laying that pavement, instead of $1.50 as paid to-him. Upon'this claim the board of audit, on the 20th of August, 1875, allowed him 25 cents additional per yard on all such paving for which he had been paid $1.50 a yard, amounting to-$2,205.52, and that amount was paid to him.

The defendant seeks to charge Finley with this sum as paid to him without authority of law and in mistake of fact. We are of opinion that its position is sound and must be sustained.

The authority of the board of audit to permit the presentation of claims was first limited to ninety days after the first publication of notice of the board calling for such presentation.. This time was twice extended, and the last limitation-expired July 1,1875. (Fendall’s Case, 16 C. Cls. R., 118.) It was more than six weeks after this extension had expired, August 16, before Finley presented this claim. At that time the board had no jurisdiction to receive claims, and all action by them upon claims thus presented was ultra vires and voidable if not void. (Demarest v. Barbadoes, 40 N. J. L., 604; Starkweather v. Supervisors, 42 N. Y. Sup. Ct., 325; Donoho v. The Mayor, &c., 17 id., 37.) The defendant was not bound by the action of the board in such case. Money received by Finley upon its authority, in payment of an alleged claim over which it had no jurisdiction, was received without consideration, and may be recovered back by counter-claim or otherwise, unless ic was in fact justly due and owing to him, in which case it might perhaps make no difference how he happened to receive it. But this money was not legally and justly due and owing to him.. He had contracted to do the -work at $1.50 a yard; he had assented to the statement of his account and had received payment at that price, and he had given a receipt in full settlement of the claim.

The allowance was made by the board of audit in mistake of fact upon the misrepresentation by Finley that the price contracted for was $1.75 per yard. This brings the matter exactly with the decision of this court in Neitzey v. The District of Columbia [ante, p. 111), in which we held thatf money paid by the District upon an allowance made by the board of audit upon mistake of fact may be recovered back by means of a plea of counter-claim. (Kelly v. Solari, 6 M. &. W., 53; R. R. Co., v. Faunce, 6 Gill, 68; Johnson v. Rutherford, 10 Pa., 455; Law rence v. The Bank, 54 N. Y., 432; Stewart v. Sears, 119 Mass., 143; Story on Contracts, § 541.)

In Adams’s Case, decided at this term, we reviewed the origin and functions of the board of audit, and showed that it was not the representative of the corporate powers of-the District. Its officers were merely accounting officers forced upon the District and its creditors by Congress. “ That board,” said the Supreme Court, in District of Columbia v. Cluss (103 U. S. R., 706), “was not a judicial body whose action was final; it exercised little more than the functions of an accountant. A claim allowed by it was not necessarily a valid one; a claim disallowed was not, therefore, illegal. Its action either way left the matter open to contestation in the courts.”

Upon the allowance of a claim by the board of audit a certificate was issued which was redeemed by sinking-fund commissioners, who, likewise, were not the representatives of the corporate power of the District, and who had no authority to revise the action of the board of audit. They were bound to redeem whatever certificates that board issued, whether rightly or wrongly, and could not go behind them. When, therefore, the board of audit allowed claims upon mistake of facts, and the sinking-fund commissioners redeemed the certificates issued thereon, it cannot be held that payment was made by the District voluntarily and with knowledge of the facts. The District is not concluded by the errors of those accountants designated by Congress, but it can set them up whenever the matters are brought into court, either to defeat claims irpon which they are founded or to reaver back money paid on account of them.

The settlement of accounts by boards thus constituted ought not to be held as binding and conclusive as settlements made by the accounting officers of the Treasury of the United States when consummated by payment upon the warrant of the Secretary of the Treasury, who, in that regard, is to some extent the representative of the government. But even in the latter case payments made in error may be recovered back by way of setoff when the claimant-brings the government into court and seeks to recover a balance which he alleges to be due to him. (McElrath's Case, 102 U. S. R., 441, affirming 12 C. Cls. R., 215; Real Estate Savings Bank Case, 16 C. Cls. R., 350; McKnight's Case, 13 C. Cls. R., 292; McKee’s Case, 12 C. Cls. R., 560.)

2. In Finley’s contract No. 4, of September 18, 1871 (second finding), tbe price for grading was fixed at twenty cents per cubic yard. This was the same price which had been fixed by the board of public works by general order September 14,1871, wherein it was specified that the earth was to be deposited where directed without extra charge.

On the 22d of January, 1872, an order was adopted by the board of public works by which the price of grading was changed from and after that date and established at 30 cents per cubic yard, including the hauling, not to exceed 200 feet, and for each additional 200 feet one cent additional per cubic yard.

On the 22d of May, 1872, this contract of Finley was extended to include additional work on Eleventh street, with no change in prices specified.

Thereafter, on the 18th of December, 1872, Finley notified the board of public works that he had been given permission by their inspector to deposit the earth taken from Eleventh’street in the canal, and requested to beinformed if he would be allowed board rates for hauling the same and depositing it therein. In reply to this communication he was informed by the board that he would be allowed regular board rates for the hauling. Whereupon he continued to deposit in the canal the earth excavated by him.

On the 29th of April, 1873, Finley notified the board that he had completed that work, and asked for a final measurement. A measurement was thereupon had and an account stated, in which Finley was allowed for hauling (in addition to grading) 30,640 cubic yards of earth, at the exact price specified in the order of the board of January 22, 1872, which Finley had been notified, in response to his request, would be allowed to him, although it was much larger than the rate named in his contract. This account thus made up showed that there was due him the sum. of $7,813.20. This amount was received and receipted for by him June 2, 1873, on the back of the account and without objection to the price allowed.

Long afterward, when the board of public works had ceased to exist, on the 23d of September, 1875, he presented to the board of audit a claim for additional compensation for depositing this earth in the canal. The board of audit having been induced by the misrepresentations of the claimant or otherwise to suppose that the board of public works had agreed to give Mm 15 cents per cublic yard for eartli deposited in tbe canal in addition to tbe price for hauling, made allowance to him therefor to the amount of $4,596, and he was paid that sum on such allowance.

This claim was also presented long after the authority of the board to receive claims had expired, and its action thereon was ultra vires, and voidable if not void. Besides, the claim had no foundation in fact. The board of public works never did agree to pay 15 cents or any other price for depositing earth in the canal the' hauling of which they were to pay for according to distance hauled. Such an agreement was not expressed in any of the writings or facts set forth in the findings; and it is not to be presumed, so closely would it border upon absurdity. When a contractor agrees to excavate earth and haul it away, and prices are expressly fixed for the excavation and for the haul, it is hardly to be conceived that it could be understood that he was to have extra compensation for emptying his carts. And yet such was Finley’s claim, and the board of audit fell into the mistake of accepting it.

This allowance was made in mistake of fact, and the defendant has a right to set it up as a counter-claim against Finley.

3. On the 13th of June, 1874, the board of public works stated a final account with Finley for sewer work on K street, under contract No. 795, allowing him the increased prices named in the extension of June 9,1874, and the previous correspondence upon w’hich it was founded. (First finding.) This showed the amount due him to be $14,395.02.

Of this sum the board of public works paid him part, and he receipted on the back of the account without objection to the prices. After that board was abolished the board of audit paid him the balance and he receipted for the same on the account “in full settlement of the above stated claims.”

Finley never claimed anything more, but by some means, not explained, the board of audit, without any demand or presentation of claim by him, allowed to Finley $1,741.66 for extra excavation, on account of quicksands and other matters, upon an old bill which somebody other than Finley had exhumed from the archives of the board of public works, and which had been compromised, settled, and abandoned long before the board of audit came into existence. The facts about that old bill seem to be these:

In April, 1874, he had sent his claim for extras to the board of public works. Soon afterward, on the 23d of May following, he wrote to the board appealing for better rates of compensation than his contract specified, on account of the difficulties that beset him in accomplishing the work. The board took into consideration his appeal, and the bill for extras which he had presented, and they very largely increased the prices for work under his contract No. 795. These prices were allowed for all work included in the final settlement, and were intended to cover all the items of the bill which the board of audit afterward allowed, and were a discharge and satisfaction thereof. Finley so understood it, for he never thereafter claimed the same as due him, and never presented any such demand to the board of audit. He took the money, not because it was due to Mm, nor because he had set up any claim to it, but merely for the reason that the board had mistakenly allowed it to him. It was, in fact, forced upon him.

It would be a perversion of justice, when he comes into court and asks for a final settlement of his accounts, and for payment of the balance due him, if he could retain money of the District thus wrongfully obtained from it. We cannot do otherwise than hold that, the allowance and payment being made in mistake of fact, the defendant may set up the same against Finley by way of counter-claim.

Such was the state of the account between Finley and the District of Columbia, when legally and equitably made up, and the result was as follows: The District was indebted to Finley for work on Virginia avenue a balance of $10,965.89. Finley was indebted to the District in the sum of $8,543.18 for money paid to him without consideration and in mistake of facts, and which he had not in equity and good conscience any right to retain. Deducting the one sum from the other left a net balance in Finley’s favor of $2,422.71, which was due and payable March 10, 1876.

The claimants appeal to the equity jurisdiction conferred upon the court by the act of June 16,1880, but that is not favorable to their demands. One of the first principles of equity jurisprudence is that he who seeks equity must do equity. To allow Finley to recover from the District without deducting from his claim wha.t he has already received, in overpayments and without consideration, would be a palpable violation of that fundamental maxim.

All the proceedings to which we have thus far referred took place previous to the giving of any of the orders and other -documents by Finley set forth in the eighth finding.

On the 28th of March, 1876, Finley gave to the claimant Brown an order upon the District for the sum of $10,000, to be paid out of the balance going to Finley for work done under contract No. 795, for grading on Virginia avenue. On the 31st of March he gave to the claimant Prott a similar order for $1,450.49. On the 23d of October, 1880, he made a general assignment under seal to the claimant Brown of all claims and ■demands whatsoever which he had against the District of Columbia.

It is unnecessary to determime whether or not the orders to Brown and Prott, directing the District to pay to them each a specific sum of money, supposed then to be only part of the whole amount due, are such assignments as authorize the drawees to maintain suits in equity in their own names against the District to recover the several amounts thus ordered to be paid, if there were sufficient due to Finley to pay the same. If Prott’s order is a valid assignment, so then is Brown’s first order; and Brown’s order, being of prior date to that of Prott, and for an amount larger than the balance found due to Finley, absorbs the whole fund and leaves nothing for Prott. ’ If neither Prott’s nor Brown’s order is valid as an assignment, then Brown’s general assignment of a later date is operative, and transfers to Brown all the claims and demands of Finley against the District. In either case Brown is the sole assignee or representative of Finley, as to the balance which the findings show to be •due, his assignor, and is entitled to recover just what Finley might have recovered but for his orders and assignment.

Brown’s order and assignment at most were equitable assignments of a non-negotiable chose in action, and such assignments are subject to all equities between the original parties which occurred prior to the time of giving notice thereof to the debtor. The assignee stands in the place of the assignor, and the rights of the debtor are not changed by the assignment. (Brashears v. West, 7 Pet., 616; Maugles v. Dixon, 3 House of Lords’ Cases, 731; Mosteller v. Bost, 7 Iredell, 39; Faul v. Tinsman, 36 Penn., 108; Timms v. Shannon, 19 Md., 296.)

It follows, therefore, that the claimant Brown is entitled to judgment for the balance found due to Finley, $2,422.71.

The several judgments to be entered are as follows:

The petitions of Francis Prott, No. 161, of Thomas A. Brown and Charles P. P. Wroe, No. 223, and of William Dickson, No. 305, are dismissed.

The demurrer of the defendants to the petition of William Dickson, No. 309, is sustained.

Thomas A. Brown,' in his action No. 3, has judgment for $2,422.71, due and payable as of March 10, 1876.  