
    WILLIAM DICKSON, ASSIGNEE OF FINLEY, v. THE DISTRICT OF COLUMBIA.
    [No. 305.
    Decided June 22, 1896.]
    
      On the Proofs.
    
    The claim is assigned after the ■work has been completed and all transactions between Finley and the District have taken place. Suit is then brought by tlie assignee under the act 1880. A set-off is pleaded for overpayments to the contractor made in mistake of fact. The court sustains the set-off, but judgment is not rendered against the assignee for the balance, it being held that by accepting the assignment of the contractor’s rights he did not become liable on account of his wrongs, except so far as to extinguish his demand by virtue of the set-off. Under the act 1895, it appears that the contractor is entitled to board rates, not before allowed him, to an amount in excess of the set-off.
    I. "Where a contractor with the District of Columbia assigned his contract after performance, the assignee stands in exactly the same position as to the right of recovery as the contractor would if there had been no assignment.
    II. In accepting an assignment of a contractor’s rights, the assignee does not become liable on account of the assignor’s wrongs, except so far as his demand may be reduced, or extinguished by set-off.
    III.An overpayment made to the assignor in mistake of fact constitutes a good set-off to the demand of the assignee.
    IY. Under the Act 13th February, 1395 (28 Stat. L., p. 664), a claimant against whom a judgment was rendered in a suit brought under the District claims act, 1880, is entitled to a new trial and to recover at board rates more than the District of Columbia had legally contracted to pay under decisions of this and the Supreme Court.
    
      The Reporters1 statement of the case:
    The following are the facts of the case as found by the court:
    I. On September 18,1871, said Finley entered into a contract with the Board of Public Works, No. 4, for laying foot pavements and setting curb on Eleventh street west, from E to F streets, which was, on May 20,1872, extended to embrace work on said street from F to N streets, under which, among other things, he did certain excavations for grading and hauling earth.
    
      II. The Board of Public Works by general order, without contract in writing, increased the price of haul of grading from one-half cent per cubic yard, contract rates, to 1£ cents per cubic yard for each 100 feet of haul, to apply to all work performed after January 1, 1873, and this increase became known as “the rates established and paid” by said board, or “board rates,” but were not so paid in this case, as is hereinafter set out.
    III. After January 1, 1873, said Finley excavated and hauled the following under extension of contract 4:
    Eleventh street west, F to N northwest, 39,640 cubic yards hauled 5,100 feet over 200 feet, for which he was allowed and paid only contract rates instead of board rates, to which he-became entitled under Act of February 13, 1895 (28 Stat. L.,. 664), the difference being $5,982.30.
    All work was completed June 2, 1873, and whatever accrued to said Finley under the contract was paid to him before his assignment to the claimant.
    IY. On the 23d of September, 1875, said Finley presented, to the Board of Audit the following claim:
    “Washington, D. C., 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 the earth hauled during the year 1873, and an additional allowance for filling canal.
    “Sworn and subscribed 23d day of September, A. D. 1875.”'
    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 him for hauling the same whereas no such agreement ever had existed, made an allowance to him accordingly, “for work on 11 st. NW., F to N, filling canal, 30,640 yds. 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.
    
      It was so found in tbe former findings of tbe court and is now found anew, and all tbe previous findings of any transactions between said assignor and assignee and between either of them and tbe District of Columbia (tbe same as reported in 17 C. Cls. R., 402) not inconsistent with these findings, are hereby adopted.
    On tbe 14th of December, 1880, said Finley made the following assignment to tbe claimant:
    “ 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. * * *
    “ Witness my hand and seal this fourteenth day of December, 1880.”
    Upon the foregoing findings of fact the court decided as a conclusion of law that the claimant is entitled to recover under the Act of February 13, 1895 (28 Stat. L., 664), the sum of one thousand three hundred and eighty-six dollars and thirty cents ($1,386.80), as due and payable June 2,1873, within the intent and meaning of said act of 1895 and the Act of June 16, 1880 (21 Stat. L., 284); being the balance due said Finley when his assignment was made.
    
      Mr. V. B. Fclwards for the claimant.
    
      Mr. Robert A. Howard for the defendant.
   RichardsoN, Ch. J.,

delivered the opinion of the court:

The claimant, as assignee of Frank N. Finley, who had contracts for work for the defendants through the Board of Public Works, in 1873 and previous years, and who made assignments of amounts due him thereon to several different persons, brought his action in this court against the District, as did other assignees.

These cases were consolidated and tried together, as reported in 17 C. Cls. R., 303, 402.

The claimant’s assignment was dated December 14, 18S0, after the work under the contract had been completed and all the transactions mentioned in the findings between said Finley and the District had taken place, so that the claimant stood in exactly the same position as to the right of recovery as did Finley. In that action the claimant was not allowed “the rates established and paid” by the Board of Public Works, but was lield to contract rates.

The defendant relies upon a set-off for $4,596 on the-facts formerly found and as now found anew in finding iy, and the court sustained the same, but judgment was not rendered thereon against the claimant, manifestly because in accepting an assignment of Finley’s rights he did not become liable for refund on account of Finley’s wrongs except by way of set-off, judgment was rendered dismissing the petition.

April 6, 1895, the claimant filed a motion for a new trial, which was allowed under the following act of Congress:

Be it enacted, etc., That in the adjudication of claims brought under the provisions of the act entitled ‘An act to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other purposes,’ approved the sixteenth of June, eighteen hundred and eighty (Twenty-first Statutes at Large, page two hundred and eighty-four), the Court of Claims shall allow the rates established and paid by the Board of Public Works; and whenever said rates have not been allowed the claimant or his personal representative shall be entitled, on motion made within sixty days after the passage of this act, to a new trial of such cause.” (Act February 13, 1895, ch. 87, 28 Stat. L., p. 664.)

We have now found the amount due for Finley’s work at the rates established and paid by the Board of Public Works in excess of that which had been previously allowed, to be as stated in finding in, $5,982.30.

And we find that there must be deducted therefrom the sum of $4,596 wrongly paid to said Finley before the assignment to the claimant.

In relation to this setoff we said in our former opinion in this case (17 C. Cls. R., 423), and we adhere to the same now:

“On. the 23d of September, 1875, Finley presented to the Board of Audit a claim for additional compensation for depositing earth in the canal. The Board of Audit havin g been induced by the misrepresentations of the claimant or otherwise to suppose that the Board of Public Works had agreed to give him 15 cents per cubic yard for earth deposited in the canal in addition to the 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 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, tbe claim bad 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 counterclaim against Finley.”

It is therefore a valid set-off to his claim in the hands of his assignee.

For the balance, $1,386.30, we give judgment in favor of the claimant under said act of February 13, 1895, assuming that Congress had the right to require the court to grant a new trial and to allow the claimant more than the District had legally contracted to pay, as decided by this court in several cases and by the Supreme Court on appeal. (Roche's Case, 18 C. Cls. R., 217; Barnard Case, 20 C. Cls. R., 257, and 127 U. S. R., 409; Barnes Case, 22 C. Cls. R., 366; Eslin's Case, 22 C. Cls. R., 395, and 29 C. Cls. R., 370.)  