
    HENRY L. CRANFORD ET AL. v. THE DISTRICT OF COLUMBIA.
    [No. 359.
    Decided November 18, 1895.]
    
      On the Proofs.
    
    The claimants bring suit for work done on the streets of Washington, the demand being for a price in excess of $3 per yard, the price paid them. Subsequently Congress pass the Act 13th February, 1895, directing the court to “ allotv the rates established and paid by the board of public ivories,” and to allow new trials. It appears that $3 was the only price entered on the minutes of the board, but that the board subsequently to the minute uniformly paid $3.20.
    I. The court reiterates the decision made in the case of Taylor v. District of Columbia (17 C. Cls. R., 367) that where the District Commissioners agreed to pay for work the price previously paid by the board of public works, the contractor is not limited to the price fixed by an order of the board appearing on its minutes, but is • entitled to the price actually paid.
    II. Under the Áet IS February, 1896 (28 Stat. L., p. 664), a contractor with the Commissioners of the District of Columbia may recover the rate fixed by the board of public works, $3.20, notwithstanding that judgment has been previously rendered against him on the same cause of action upon the ground that he was estopped from claiming more than $3.
    
      The Reporters’ statement of the ease:
    The following are the facts of the case as found by the court:
    I. On the 9th day of June, 1875, the defendant entered into a contract with the claimants, which was known and designated as extension of contract No. 762, in which, among other things, it was stipulated and agreed—
    “First. The said Henry L. Cranford and Bindley M. Hoffman, for and in consideration of the stipulations hereinafter contained, hereby agree to repair the pavement of the carriage way of K street between Ninth street and the intersection of K street and Pennsylvania avenue northwest, under the direction of the engineer of the District of Columbia, and in the following manner, to wit: The wood pavement shall be taken up from Ninth to Eighteenth streets northwest and be replaced by vulcanite concrete pavement, to be at least six inches in thickness after being thoroughly compressed, and must be composed of the very best material.
    íí ^ ^
    “All the sound blocks on the street will be used as the work progresses in repairing K street between Eighteenth street' and the circle aforesaid.
    # * * * # * *
    “It is further agreed that the said parties of the second part hereto shall receive the price established and paid by the board of public works for the vulcanite concrete pavement.”
    After making the above-mentioned contract the defendant entered into eight other contracts with the claimants, which were known and designated as extensions of contracts Nos. 44, 270, 323, 346, 571, 620, 626, and 627. Said last-mentioned contracts, although some of the work provided for in some of them had been done prior to that time, were signed as shown in finding v. The stipulations in each of the eight subsequent contracts above mentioned as to the work to be done and the price to be paid were the same as in extension No. 762, except as to the locality of the work, which was different in each contract, and except also the- stipulations in relation to price in contracts Nos. 44 and 346, the language in those in relation to the price to be paid being “ paid” instead of “ established and paid,” and except also that there was no old wood pavement to be taken up on the street mentioned in contract No. 762.
    II. Subsequent to the 9th day of June, 1875, the claimants laid in accordance with requirements of said contracts 73,741.09 square yards of concrete pavement, which was duly measured and inspected and accepted by the defendant.
    The claimants have received for the work at the rate of. $3 per square yard only.
    III. The price established and paid by the board of public works for concrete pavements was $3.20 per square yard, including 2 feet of grading. This was the customary price contracted for and paid by the board of public works. No deduction was made by the board of public works from that price because the quantity of grading was not 2 feet.
    The board of public works also established and paid 20, 30, and 40 cents a yard for grading, depending on the character of the work, and also established as a price for hauling away the earth necessarily taken up one-half a cent per yard for every 100 feet over the first 200, which price continued up to the first of June, 1873, and then was established and paid after that time at 1J cents per cubic yard.
    IY. In the years 1872, 1873,1874 the firms of J. P. Cran-ford & Co. and J. Y. W. Yanderburg & Co., of each of which firms the claimant, Henry L. Cranford, was a member, laid a large quantity of the said concrete pavement on the streets of the city of Washington, under contracts with the said board of public works, in which the price stipulated was $3.20 per square yard, and the same was in every instance paid, although in most of them much less than 2 feet of grading was necessary. That one of the contracts made by the defendant with the firm of J. Y. W. Yanderburg & Co., being contract No. 922, provided for the taking up of an old wood pavement and the substitution therefor ol the concrete pavement; that the claimant, Henry L. Cranford, was the managing partner of the two said last-mentioned firms,and had the personal supervision and control of said work, and was familiar with the work and the prices established and paid by the said board of public works in the said years 1872,1873,1874.
    Y. On the 13th day of September, 1875, the defendant stated an account with Murdock for laying concrete pavement under contract dated August 5, 1875, which was for doing the same class of work, and contained the same stipulation in relation to price as appears in the contracts now sued upon, and said Murdock was allowed and paid at the rate of $3.20 per square yard for that work.
    YI.
    
      
    
    YII. In doing the work under the contracts sued upon the claimants had to take up an old, worn-out wooden pavement and grade out a hard gravel substance that was under it. The depth of wooden pavement and gravel removed was 9 or 10 inches. The blocks sufficiently sound to be used in repairing other wood pavement had to be separated from the rotten and worthless, and the wooden débris and gravel hauled away, the distances averaging about three-fourths of a mile. The removal of the blocks, sand, and gravel was equal to the ordinary grading under the board of public works.
    YIII. That the claimants were not allowed or paid anything for the taking up and hauling away of the old wood pavement and the débris and gravel in which it was laid and the necessary grading to be done to fit the street for the reception of the concrete pavement. That such labor was at least as great and as expensive, .if not more so, than doing 2 feet of ordinary grading, and as expensive as the grading actually done under the contracts with the board of public works, mentioned in claimant’s fourth request for finding of facts.
    IX. The claimants, in presenting bills for work after the 28th of September, stated the price to be $3, and received the same without protest.
    X. On the 14th of September, 1871, the said board of public works, by an order entered on its minutes — of which it does not appear that either of the claimants had any knowledge— fixed the price to be paid by it per square yard for concrete pavements as follows: For concrete, $3; for Scharf, $3.20; for Parisién, $3.20; each of which prices included whatever grading was necessary up to 2 feet, but no deduction was in any case made from those prices because of that quantity not being necessary.
    The said order remained unmodified by any entry on the record of the board from that date up to and including the time the said 73,741.60 yards of concrete ivas laid by claimants.
    XI. Said board in July and October, 1873, and after the last-named date, made contracts for concrete pavement, under which it paid contractors $3.20 per square yard for laying down such pavement, which price includes 2 feet of grading, which was after that date tne usual price paid by the board for such work.
    XII. The clause in the contract of the board of public works in reference to the price to be paid is as follows:
    “Also, to take up and remove the wooden pavement on Pennsylvania avenue, between Ninth and Tenth streets NW., in the city of Washington, D. C.; and to lay and put down the pavement known as and called the vulcanite concrete pavement, on the carriageway of said Pennsylvania avenue, between said Ninth and Tenth streets NW., in the city of Washington.
    * * * * * * *
    “Tenth. It is' further agreed that the said parties 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 the said vulcanite concrete pavement, per square yard, three dollars and twenty ($3.20) cents, which shall include two (2) feet of grading, which said sums or prices the said party of the first part shall pay to the said parties of the second part, as herein provided.”
    # * & # * # #
    XIII. It does not appear at what precise date the contracts Nos. 270, 323, 44, and 627 were let, but work was commenced on each of said contracts after the 28th of September, 1875? as is shown in finding vi, and the aggregate amount of work done under those contracts is 36,813 square yards.
    On the 28th of September, 1875, when the first estimate was made, the parties differed as to the construction of the contracts in relation to the price, the claimants insisting that they were entitled to $3.20, without reference to the amount of the grading, and the defendant insisting that they were not. After that date the said last-mentioned contracts were let and bills were made out by the defendant at $3 per yard, to which claimants did not object. After the 28th of September the claimants did not object to the defendant’s construction, and entered into new contracts. The amount of work done in contracts let before the 28th' of September is 36,928 yards.
    XIV. At the time of the making of said contract it was the practice (as under the Commissioners) of the engineer department, under whose direction the contract was prepared and executed, and by whom all measurements were made and certified, to make a ratable deduction for the cost of grading if no grading was done, and that such was the construction of the “board price.”
    XV. On the completion of the work authorized under said contract the same was measured by the engineer, and the requisite grading not having been done, as claimed by the engineer, a deduction of 20 cents per square yard was made on said measurement, being tbe board price as construed by tbe engineer for grading, and sucb measurements were audited by tbe board of audit, and tbe amounts so certified were paid tbe claimants, wbo receipted for tbe same, “in full,” on tbe 28tb day of September, 1875, but signed tbe receipt under protest, claiming that tbey were entitled to $3.20.
    XVI. After tbe said 28tb of September, to wit, on tbe 14tb day of October, 1875, tbe claimants signed other contracts, known as extensions of contracts 44, 270,323,346, 620, 626, and 627, for tbe same kind of work, and in wbicb tbe price to be paid was expressed in tbe same language. Tbe said extensions bad been made before said 14tb of October, and a portion of tbe work done, but it does not appear when tbe contract was made.
    XVII. In tbe former trial of tbis case tbe claimants recovered a judgment for tbe sum of $7,385.60, being 20 cents per yard on 36,928 yards of tbe 73,741.09, leaving 36,813 upon wbicb compensation was allowed at tbe rate of $3 per square yard, as shown by tbe conclusion of law announced by tbe court. Tbe judgment was paid by tbe defendants.
    
      Mr. W. L. Gole and Mr. Y. S. Edwards for tbe claimants.
    
      Mr. Felix Brannigan (with whom was Assistant Attorney-General Dodge) for tbe defendants.
   Weldon, J.,

delivered tbe opinion of tbe court:

On the 17th of March, 1883, tbe claimants brought suit to recover from tbe defendants tbe sum of $14,746.83, due, as tbey alleged, for certain work done on tbe streets of Washington in tbe year 1875. In that proceeding tbey recovered tbe sum of $7,385.60, as will appear from tbe findings, on 36,928 yards of concrete pavement, at tbe rate of $3.20 per yard. (20 C. Cls. R., 381.) For 36,813 yards embraced in tbe contracts upon wbicb tbe suit was brought claimants recovered nothing, tbe court bolding that for that amount of work $3 per yard was tbe measure of their compensation, wbicb bad been paid by tbe defendant. No appeal was taken by either party, and tbe judgment was settled pursuant to tbe order of tbe court. On February 13, 1895, Congress passed an act as follows:

“An act to amend an act entitled ‘An act to provide for tbe settlement of all outstanding claims against tbe District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other purposes,’ approved June sixteenth, eighteen hundred and eighty.
“Be it enacted, &c., 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 ou 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.” (28 Stat. L., p. 664.)

In pursuance of the provisions of said law the claimants, on the 12th of April, 1895, filed a motion for a new trial, as follows:

“And now come the claimants, Henry L. Cranford and Lind-ley M. Hoffman, and suggest to the court that it appears by the record in this case that the above-entitled suit was instituted under the act of Congress entitled ‘An act to provide for the settlement of all outstanding claims against the District of Columbia,’ &c., approved June sixteenth, eighteen hundred and eighty, to recover from the defendants the sum of fourteen thousand seven hundred and forty-eight and twenty one hundredths dollars, being twenty cents per square yard for laying for said District seventy-three thousand seven hundred and forty-one square yards of concrete or vulcanite pavement; that prior to the institution of said suit they had been paid three dollars per square yard therefor, but were entitled to receive three dollars and twenty cents per square yard, being the price theretofore established and paid for similar work by the late board of public works of the said District, commonly called ‘board rates,’ and that by the judgment of this honorable court entered iu this cause on the first day of June, eighteen hundred and eighty-five, they were allowed the sum of seven thousand three hundred and eighty-five and sixty one-hundredths dollars, being twenty cents per square yard for thirty-six thousand nine hundred and twenty square yards of said work, but were denied the right to recover the said twenty cents per square yard for the remaining thirty-six thousand eight hundred and thirteen square yards of said work.
“Claimants further show to the court that by virtue of the act of Congress approved February thirteenth, eighteen hundred and ninety-five, they are entitled to recover the rates established and paid by the board of public works for such work, to wit, at the rate or price of three and twenty one-hun-. dreclths dollars per square yard for the residue of said work, to wit, thirty-six thousand eight hundred and thirteen square yards upon which claimants in said suit have received only three dollars per square foot [yard].
“Claimants therefore pray that a new trial of said case be granted, and that upon such new trial they may be granted judgment against the said defendant for the additional sum of seven thousand three hundred and sixty-two and sixty one-hundreths dollars, with interest thereon from the first day of January, eighteen hundred and seventy-six, until jiaid, as by said act of Congress and the facts appearing in the record of said cause they are entitled.”

The motion was allowed on the 15th of April, 1895. In the former trial the court excluded from the j udgment any recovery upon the contracts entered into after the 28th of September, 1875, for reasons assigned in the opinion, and because of such exclusion the claimants in this proceeding ask a judgment upon the authority of the act of February, 1895, for the amount so excluded.

Under said act it is made the duty of the court to grant a new trial upon the application of the “claimant or his personal representative” if made within sixty days from the passage of the law. The motion in this case was made within the prescribed time, and a new trial was granted.

Under the statute it is made the duty of the court to allow the “rates established and paid by the board of public works.”

In the first trial of the cause the court held that for contracts entered into after the 28th of September, 1875, a recovery could be had only to the extent of $3, and in the conclusion of the court $3 was allowed in contracts let after that time. It will be seen by the following extract from the opinion why the court distinguished between contracts let before and after said date:

“Having ascertained and determined the meaning of the contract as to compensation, it by no means follows that the measure of such compensation is continuous and commensurate with the time and scope of the agreements. It is true that the terms expressed in the contract were the same before, at, and after the disagreement and dispute of the parties on the 28th of September, but their acts, while they do not change the terms of their agreement, may in law affect their interests, increasing or diminishing the responsibility and liability of the parties.
“ The officers of the District said to the claimants at the first estimate under the contracts let before that time, ‘We will only pay you $3 per yard;’ and while the claimants disagreed to that construction, so as to save vested rights, they afterward made agreements, commenced and finished similar work under other contracts with the District, without objection or protest, thereby in effect acquiescing in the construction of the engineer as to the compensation to be paid after said date.
“ It does not appear that they objected after the 28th of September, and their silence might, we have no doubt was, accepted by the officers of the defendant as an agreement on their part to do the work at $3 per yard.
“We do not, by the distinction we make in the time antecedent and subsequent to the 28th of September, construe the contract as meaning one thing before said date and another after that time; but predicate the difference in compensation upon the ground that the claimants, under the facts and circumstances, are estopped from claiming for contracts let after the disagreement more than $3.”

At the time of the decision on this claim the question of the compensation of the contractors as to the contract and board rates was not a new one, as it had been decided in the case of Taylor v. District of Columbia (17 C. Cls. R.., 367), in which it is said:

“Where the District Commissioners agreed to pay for work the price previously ‘paid by the board of public works,’ the contractor is not limited to the price fixed by the order of the board of public works appearing on its minutes, but is entitled to the price actually paid by the board. * * * An order of the former board of public works fixing the price to be paid for concrete pavement was simply a rule for its own government, and could not by the mere force of its adoption bind a contractor.”

It is insisted by the defendant that the order embraced in the minutes of the board as shown in finding x is the price “established and paid” by the board of public works. The same finding in substance was in the case of Taylor, and the reasoning of the court in that case was applicable to that finding. In the former trial the court in the opinion refers to the case of Taylor and adopts its construction of the effect of finding x in connection with other findings in the case. The court held in the first trial of this case that the parties were estopped from claiming $3.20 for pavement laid after the 28th of September, because they had acquiesced in the construction of the agreements as contended for by the defendant.

The third finding shows that the price established and paid by the board of public works for concrete pavement was $3.20 per square yard, including 2 feet of grading. This was tlie customary price contracted for and paid by the board of public works. The substance of this finding is embraced in the fifth finding in the Taylor Case, and upon the faith of that finding the court predicated its iudgment in the Taylor Case, and in the former trial of this case the court gave a judgment for a part of the work on substantially the same finding. The court is not now called upon to enter into a discussion of the law presented by the facts, as no new questions have arisen. We are only required to apply the statute granting a new trial in the measurement of the compensation of claimants, and determining as we do in the third finding that the price established and paid was $3.20 we are of the opinion that the claimant is entitled to recover the sum of $7,362, due and payable as of the 1st of January, 1876.  