
    LESTER A. BARTLETT AND JOSEPH WILLIAMS, TRADING UNDER THE NAME OF BARTLETT & WILLIAMS, TO THE USE OF LESTER A. BARTLETT, v. THE DISTRICT OF COLUMBIA.
    At Law. —
    No. 15,521.
    In declaring’npon contraéis with the Board of Public Works, it is not necessary to aver that such contracts were in writing, and that a <mm of money had been previously appropriated by law for the work embraced in the contracts. These are matters which come more properly by way of defense from the, other side.
    STATEMENT 0E THE CASE.
    There are two special counts in the declaration. The first set forth that on June 27, 1872, plaintiffs entered into a contraed with the Board of Public Works of the District of Columbia to grade Maryland avenue, between Third and Seventh streets southwest, in the city of Washington; said work to be done in accordance with specifications annexed to said contract; and said board agreed to pay the plaintiffs for ■doing said work thirty cents a cubic yard for such grading, &c. And it is then averred that the board agreed that they would perform all the stipulations of said contract, and would pay 'the plaintiffs in lawful money the amount which might be found from time to time due plaintiffs according to contract; that the amount found due to plaintiffs under said contract ■was $44,690.82, of which amount $18,468.48 are still due and unpaid. Plaintiff's further aver the faithful performance by them of the contract.
    
      Second count. Plaintiffs sue defendant for that: January 7, 1874, plaintiffs entered into a contract with the Board of Public Works in and for the District of Columbia to grade North Capitol street, between L street north and New York avenue, Washington, D. 0., said grading to be done in accordance with specifications annexed to said contract; and the said Board of Public Works for said District agreed to pay plaintiffs for doing the said work thirty cents for each cubic yard of grading, &c.; and said board did further agree with plaintiffs to perform all the stipulations of said contract, and to pay plaintiffs the amount which may be found due them according to contract. The amount found due plaintiffs under this contract was $28,404.68, of which amount $9,678 are still due and unpaid.
    Plaintiffs aver that, in all respects, they have faithfully performed their- part of said coutract, and are entitled to receive said balance.
    The common counts are added, with particulars of demand.
    The defendant, the District, of Columbia, demurs to the special counts because they contain no averment that said board made either of said contracts in writing, signed by the parties, or after a sum of money had been appropriated by law for said improvements. The thirty-seventh section of the organic act provides, among other things; that—
    “All contracts made by the said Board of Public Works shall be in writing, and shall be signed by the parties making the same; and a copy thereof shall be filed in the office of the secretary of the District.
    “And said Board of Public Works shall have no power to make contracts to bind said District to the payment of any sums of money except in pursuance of appropriations made by law, and not until such appropriations shall have been made.”
    Section 15 contains the following:
    “Sec. 15. And be it further enacted, That the Legislative Assembly shall never” * * * “ authorize the payment of any claim, or part thereof, hereafter created against the District, under any contract or agreement- made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.”
    
      Tbe demurrer is heard at the general term in the first instance.
    
      I. G. Kimball and J. M. Wilson, for plaintiff's.
    
      William Birney, for the District of Columbia.
    In the case at bar, the Board of Public Woi’ks was a creation of the statute; it could make a contract binding upon the District by following strictly the mode pointed out in the statute. In all other cases its contracts were void. The law does not, therefore, imply the validity of the contract except where the declaration avers that it was made after an appropriation law authorizing the improvement contracted for. In the absence of that averment, the law implies that the contract is void.
    The Board of Public "Works was of purely statutory creation ; its contracts were unknown to the common law; the statute directs that its contracts shall be in writing, and signed by the parties thereto; hence, under the rule, the plaintiff shows no right unless he alleges the contract to possess those features which are essential to its validity. A contract which is the creature of the statute must be alleged to be what the statute requires; otherwise, the plaintiff has not shown what is essential to the right he asserts.
    It is true that when a contract is known to the common law, the declaration need not allege it except in the most general terms. If a statute has made exceptions to the common-law rule, the defendant must plead specially, or bring himself within the exceptions by evidence on the trial.
    Examples: Plaintiff' sues upon a promise for consideration. If it is for the debt of another, and not in writing, defendant must plead that specially under the statute of frauds.
    ' If a plaintiff sues an executor for a debt due from his testator, the declaration need not aver that the promise is in writing, if such even be the fact. Defendant must plead the negative specially.
    If A sues B for necessaries furnished his “ son,” the decíaration is demurrable. The law will not presume that the “sou” is a minor.
    C applies for an injunction to prevent the levy of a county tax. His bill states that he is a resident of the county. It is demurrable. He should state that he is a property-holder’, liable to assessment of the tax. He must show his right to relief.
    If a party claim by inheritance, he must show how he is heir.
    If he claim real estate, he must allege title.
    In the case at bar, plaintiffs allege a universal term under which they can take nothing, instead of a particular term which alone can show their right.
    A condition precedent must be alleged in the declaration.
   By the Court:

In declaring upon a contract which is set forth in terms, it is necessarily shown to be in writing. If it is alleged to be a bond or promissory note, it cannot be otherwise than in writing. The contract may, however, be set forth according to its legal effect only, in which case it is not necessary to state that it was in writing. This is the rule in regard to all contracts good at common law. The act of Congress requires all contracts with the Board of Public Works to be in writing and signed by the parties. Now, why should it be any more necessary to aver in the declaration that it is in writing, than it would be in declaring upon a contract within the statute of frauds? They both relate to a species of well-known contracts, and require certaiu formalities in their form and execution. Contracts for repaving and grading streets are as ancient as our municipalities, and as well known as those within the statute of frauds. It is conceded that the law will imply that the latter are in writing, whether that fact is alleged or uot in the declaration, and will leave the defendant to plead it by way of defense. (1 Chit. PL, 221, 222.) We think the rule is the same here. We are also of opinion that the want of an appropriation of a sum of money for the work embraced in the contracts will come more properly from the defendant, and that therefore it was not necessary to state the tact in the declaration.

We overrule the demurrer, with leave to the defendant to plead over as he may be advised.  