
    WM. C. MURDOCK v. THE DISTRICT OF COLUMBIA.
    [No. 371.
    Decided November 16, 1885.]
    
      On the Proofs.
    
    A contractor seeks to recover §3.20 per square yard for paving at prices established by the Board of Public Works. The defendant seeks to recover back on counter-claim a payment for grading at less than 2 feet; also an allowance made for unforeseen difficulties, where the contract cast that risk upon the contractor.
    I.Where a contract prescribes |>3.20 per yard as the price, a receipt in full for a payment at $3 cannot be held conclusive.
    II.Where the agreed price per yard for laying pavement is to include “ 2 feet of grading,” and the contractor was paid for grading which did not exceed 2 feet, the defendant may recover it back.
    III. Where a contract casts upon the contractor “all loss or damage arising out of the nature of the work, or from any unforeseen, obstructions or difficulties which may be encountered inthexn'osecntionofthesame,” the bad condition of a street necessitating additional material to keep the pavement up to grade is á “difficulty ” to be borne by the contractor.
    IV. Where an express contract exists, the officers of a municipal corporation cannot pay more than the contract price because of unexpected losses incurred by the contractor, and in an action under the District claims act, 1880, the District may recover back money so paid..
    
      The Reporters' statement of the case:
    The case was referred to Daniel Donovan, esq., as referee, who"was directed to ascertain the number of yards of paving for which the contractors were entitled to $3.20 a yard under the decision of this court in the leading case on that point, Cranford & Hoffman (20 O. Cls. E., 376). The referee reported the facts; both parties filed exceptions; and the case came to a hearing on a motion to confirm,- etc. The court, while adopting his findings upon all matters submitted to his determination, disregarded the report, and filed a finding of facts.
    The case embraces three subjects of litigation: (1) Upon contracts and facts substantially identical with those set forth in Cramford & Hoffman (id., pp. 377, etc.), the referee and the court found that there was due to the claimant 20 cents a yard for 51,830.84 yards of concrete pavement, amounting to $10,366.17; (2) That there was due to the claimants for over-payments on grading, where the same was less than 2 feet, the sum of $2,549.77. On these facts the referee struck and reported a balance of $7,816.40 due to the claimant. No point of law was involved in those subjects which had not been repeatedly considered and determined in previous cases. (3) But the defendant insisted upon a further reduction for an overpayment made in consequence of unforeseen difficulties in paving De Sales street, and in regard to this subject the court found the following facts:
    VI. On the day of its date there was addressed to the Commissioners of the District by the claimant the following communication :
    “ Washington, D. C., December 15,1875.
    
      11 Hon. Board of Commissioners of the District of Columbia:
    
    “ Gentlemen : I desire to call your attention to the fact that in working under contract No. 916, on De Sales street, I found it impossible, owing to the terrible condition of the street, to lay a 7 or 8 inch concrete pavement. I was therefore compelled to lay a pavement ranging in depth from 10 to 15 and 18 inches. Under such circumstances I respectfully ask that I may be allowed the same price as paid to me for a 10-inch pavement on Pennsylvania avenue. To confirm the truth of the above statement I respectfully refer you to the report of the special superintendent, Mr; Phillips, and also to Senator Sargent, who was on the street often during the progress of the work.
    “Tours, very respectfully,
    “ W. C. Murdock,
    “ ContractorP
    
    On said communication is the following indorsement:
    “Dec. 21,1875.
    “ Respectfully returned to Hon. Commissioners District of Columbia, inviting attention to the report of the overseer, and recommending that the contractor be paid for 10 inches of pavement'at the same rateas that allowed on Pennsylvania avenue, to wit, $3.70 per yard.
    “ R. L. Hoxie,
    “ Lieut. Engineer, U. 8. A.,
    
    “ Engineer of District of ColumbiaP
    
    On said communication is the following:
    “Respectfully returned to the engineer approved.
    “ By order of the Commissioners :
    “W. Tyndale, ■
    “ SecP
    
    Letter of overseer, referred to in foregoing:
    “ Engineer’s Orrice, District or Columbia,
    “ Washington, December 18,1875.
    “ To the Engineer, District of Columbia:
    
    “ Sir : In reference to communication No. 11638, Yol.-,
    E. Q., 1875,1 have the honor to report that Mr.W. C. Murdock’s statement is correct; as the pavement settled it necessitated the use of more material to keep it up to the grade. There are places over the filled-in portion of the street that the pavement is near 2 feet thick, over which he was obliged to lay an extra-heavy top coat that will average 3 inches when compacted — the heaviest top coat laid on any concrete pavement in this city. I therefore recommend that he be paid for a 10-inch pavement, which in my judgment will not compensate the contractor for the labor and material used on La Salle street. The pavement was laid in four courses: 1st layer, stone; 2d, ordinary base; 3d, binder; 4th, top coat. Twice the thickness of ordinary top coat was used, and layer after layer of base and binder, as the street settled, to keep the part to the grade.
    “ Yery respectfully,
    “ Wal. Phillips,
    “ Overseer Concrete DistrictP.
    
    
      VII. The Commissioners paid the claimant the sum of $3.70 for the work on De Sales street, which amounted in the aggregate to $1,745.31. The allowance was made after the date of said communications and after the completion of the work. The amount paid on said work because of the additional allowance of 50 cents per yard is $1,247.25. The said claimant was paid the sum of $1,529.47 for haul over 200 feet for the grading on the extensions of 916. The Board of Public Works allowed on contract 916 and similar contracts compensation for haul over 200. That had been the custom of the board at the time the extensions were made of 916, and it does not appear that the allowance was unreasonable in price.
    VIII. On the 28th day of July, 1875, a payment was made to claimant for work done to that time, based on allowance of $3 per square yard for extensions of contract No. 916, and upon that payment the claimant executed the following receipt:
    “Deceived this 28th day of July, 1875, from the Board of Audit, their certificate No. 14698 for $24,278.41, in full settlement- of the above-stated claim.”
    It does not appear that the parties at the time said receipt was given had any settlement of disputed claims or items, or that said receipt was founded on an agreement made at the time, or was the result of a settlement between the parties. Before said payment there was laid of the 51,830.84 the amount of 21,387.41. On said date a similar receipt was executed for $14,285.13 under the same state of facts as detailed above.
    IX. The provisions of these extensions of 916-230J, 44, and 384 are identical.
    The extension is'as follows:
    “ For and in consideration of the stipulations hereinafter contained it is agreed, by and between the Commissioners of the District of Columbia and William C. Murdock, that contract No. 916, in the series of contracts made by the Board of Public Works of the District of Columbia, be, and the same is hereby, extended with its various terms, conditions, and stipulations to embrace the following work, to wit:
    “ (Here follow names of streets on which Scharf concrete pavement is to be laid.)
    “It is further agreed that the said William C. Murdock shall receive the prices established and paid by the Board of Public Works for work of similar character, provided that payment be made in the bonds of the District of Columbia * * * at their par value.”
    
      Contract 916, “ the various terms, conditions, and stipulations” of which, are incorporated in this extension, provides:
    
      “ 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 good, firm, and substantial manner to lay and put down the pavement known as the Scharf concrete pavement on the carriage-way, etc.”
    
      *******
    
    
      u 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; and the said contractor hereby agrees, in the execution of the said work as aforesaid, to keep at all times the said work properly guarded or protected so as to prevent all injuries to persons, travelers, animals, or property; and in the event of any such injury or injuries occurring in consequence of the insufficient guarding or protection of said work as aforesaid, the said party of the first part shall retain out of any money or moneys due or to become due said contractor a sum sufficient to cover all damages arising out of said injury or injuries until the same may be settled at law or otherwise.
    
      *******
    
    “ 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 the Scharf concrete pavement, per square yard, $3.20, which shall include 2 feet of grading.”
    The ninth clause of the original contract 916 is as follows:
    “It is further agreed if, at anytime during the period of three years from the completion of the work to be done under this contract, any part or parts thereof shall become defective from imperfect or improper material or construction, and in the opinion of the said party of the first part require repair, the said party of the second part will, on being notified thereof,, immediately commence and complete the same to the satisfaction of the said party of the first part, and in case of a failure or neglect of the said party of the second part so to do, the same shall be done under the directions and orders of the said party of the first part at the cost and expense of the said party of the second part.”
    ***####
    “ 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 of the stipulations to 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 contract.”
    In 1872 and 1873 the Board of Public Works by order allowed 20 cents for grading in 1872, and 1873 the sum of 30 cents, and under the order of 1872 they allowed 1 cent per cubic yard for every 200 feet haul over 200 feet, and under the order of 1873 they allowed 1J cents per cubic yard for the same haul. The above allowances were being made at the time the contracts were extended. In 1873 the Board of Public Works made contracts for concrete and Scharf pavements, under which it paid contractors the sum of $3.20 per square yard for laying such pavement, which price included 2 feet of grading. After that time $3.20 was the usual price paid by the Board of Public Works.
    X. The concrete pavement laid by claimant on Pennsylvania avenue, to which he refers in the above communication, was laid under a contract that fixed the price, specifically, at at $3.70 per yard, and contained specifications for the pavement laid thereunder, not contained in the contract under which claimant laid the pavement on De Sales street.
    
      Mr. John O. Fay and Mr. O. G. Gole for the claimant.
    
      Mr. Fdward M. Watson (with whom was Mr. Assistant Attorney- General Howard) for the defendant.
   Weldon, J.,

delivered the opinion of the court:

The petition alleges that, in the year 1875, the claimant performed a large amount of Scharf paving on the streets of Washington, under extension of certain contracts entered into with the District of Columbia. This suit was brought to recover a balance due, as is alleged, of $10,066.

Under the extension of contract's, the claimant laid 51,830.84 square yards of Scharf pavement, for which he has been paid at the rate of $3 per yard. He was also paid the sum of $4,079.24 for grading and haul, and the sum of $1,247.25 as extra allowance for work on De Sales street, because of the peculiar character of the work, made necessary by the condition ot the street at the time the labor was performed.

He insists that under the contract he is entitled to the sum of $3.20 per square yard, the excavation, and haul, and that the Commissioners of the District had authority in law to make the allowance because of the peculiar hardship incident to work on De Sales street.

The defendant insists that claimant is only entitled in this-proceeding to $3 per yard, nothing for excavation and haul, and that the Commissioners exceeded their authority in the allowance of the $1,247.25 on said street.

On the 5th day of April, 1886, by consent of parties, this case was referred to Daniel Donovan, esq., who was directed to report the number of square yards of concrete pavement laid by the claimant for which he has only been allowed $3 per square yard, and for which he is entitled to an additional allowance of 20 cents per square yard, under the decision of the court in the case of Cranford & Hoffman v. The District of Columbia. On the 3d day of May, A. D. 1886, the said referee made a report, finding a balance in favor of the claimant of $7,816.40, the basis of which finding is an allowance to the claimant of 20 cents-per yard on the said 51,830.84, and a deduction from the same of $2,549.77 for the amount paid the claimant for grading, the same being less than 2 feet at every point on said work. Exceptions were filed to this report by both parties, the petitioner objecting to the deduction and the defendant finally to the report as a whole. Upon the trial of the cause the defendant, having obtained leave to do so, filed a counter claim charging the claimant with the amount allowed for the work on De Bales street.

In order to perfect the right of both sides to review the decision of this court by an appeal to the Supreme Court-, we have-found the facts as though no reference had been made; and although the case was tried on exceptions to the referee’s report without any request for findings, we have fully developed the-case by elaborate findings. The contracts extended, and upon wbich this suit is prosecuted, are similar in terms to the contracts in the Cranford Case, and the findings in this case, so far as they are applicable to the subject-matter, are similar to the findings in that case.

The extension of the contracts provides :

“ It is further agreed that the said William C. Murdock shall receive the prices established and paid by the Board of Public Works for work of a similar character. The court finds in this case, as it found in the Cranford Case, that the price established and paid for Scharf pavement was $3.20, and that such price included 2 feet of grading.”

The original of Contract No. 916 provides:

Laying and putting’ down the Scharf concrete pavement, $3.20 per square yard, which shall include 2 feet of grading.”

Not only did the contract provide for $3.20, but the action of the Board, by payment and publication of prices, established $3.20 as the price of that class of pavement. There can be no serious question, both from construction and custom, as to the price to which the claimant is entitled for the 51,830.84 yards laid by him under the various extensions; but the contention arises as to what is the obligation of the party as to the grading. In the Cranford Case, upon a similar contract and finding, it was held by this court:

“ The work to be performed is an entirety, for which the claimant is to receive an entire sum as compensation. By the terms of the contract the claimants are to do an entire amount of work which may include 2 feet of grading or may be less than that amount, and for which, with that contingency, they are to receive the sum of $3.20 per square yard. The entirety of the compensation is not dependent upon whether the grading is exactly 2 feet or falls below that amount. The indication of the intent of the parties is, that the claimants were to do the necessary grading to the extent of 2 feet, and lay the pavement for au entire sum of -$3.20 per square yard. It is not a contract of distinct and separate parts, but a contract of legal unity, embracing a variety of matter; but in contemplation of law an indivisible whole.” (Cranford and Hoffman v. The District of Columbia, 20 C. Cls. Ik, 376.)

So it may be said in this case. The parties were to put down a certain characterof pavement for a certain price, which price is to bo taken as a compensation, and such compensation is to include the necessary grading, not exceeding 2 feet. The grading allowed the claimant was for grading which at no point exceeded a depth of 2' feet. The amount of grading at the price allowed by the engineer amounted to the sum of $2,549.77, and the amount allowed to claimant for a haul over 200 feet is $1,529.47.

It will be seen by reference to the ninth finding, that at the time these extensions were made the Board of Public Works established and paid a compensation for haul over 200 feet, and the $1,529.47 was calculated upon that basis of compensation. It is insisted, upon the authority of the Cranford Case, that for all work'taken after the 28th of July, 1875, there can be a recovery for only $3 per yard. It is contended that on that day there was a settlement made as to the work embraced in the contract of May 20, 1875, on a basis of $3, and for all subsequent work the price is to be calculated on the basis of $3.

It is true, that on that day a receipt in full was given by the claimant on a payment made and calculated on the basis of $3; but it was not executed under the circumstances indicated by the facts of the Cranford Case, and can not be held as a compromise or settlement, or as indicative of the determination of the .Commissioners to change tbe rate for Scharf pavement. It was the act of the engineer or officer making out the account, with no power to change the rights of the parties. This court has had occasion to pass upon the force of a receipt in full in the case of Cape Ann Granite Company v. The United States (20 C. Cls. R., p. 1). It will be seen by reference to that case, and the authorities upon which itis based, that a receipt in full is not binding on the parties unless it is the result of a settlement involving the adjustment of differences by way of compromise and settlement. While the law encourages the adjustment of differences by the parties, a receipt in full is inoperative as an estoppel, unless it is based upon a state of facts indicating an adjustment of the claims of the parties.

The counter-claim, filed since the reference off the case, presents to the consideration of the court the question, how far had the Commissioners the right to bind the District by the payment of money in excess of; the contract price, after the completion of the contract, because of a condition of things not known or contemplated by the parties at the time the- contract was made ?

The payment of the $1,745.48 was made after the completion of the work, and when the rights of the parties became vested as the result of that condition. Whatever was to be done afterward, by way of increasing the compensation, must be founded upon a gratuity, from the representatives of the District to the claimant, because of his misfortunes in the construction of the work. It is insisted by the claimant that the Commissioners had a legal right to consider the hardship of the situation, and pay to the claimant 50 cents additional for every square yard laid by him on the street affected by the difficulties of construction.

We are cited by counsel to Dillon’s Municipal Corporations, volume 1, section 477, as an authority to sustain the right of the Commissioners to make the allowance in controversy. A hasty examination of that authority, might induce the impression, that the adjudged cases go to the extent of holding that the agent of a municipal corporation, has a right to deal with the trust to the extent of alleviating the hardship of unforeseen circumstances in allowing pay (after- the completion of the contract) beyond the compensation fixed by the contract.

The communication of the claimant, bearing date on the 15th of December, 1875, indicates clearly the- character of his claim. He asked for a gratuity pure and simple; so that the allowance was not the result of-the settlement of a doubtful claim, but an act of kindness towards a party who had suffered from a condition of things, not anticipated in the making of the contract. We have examined all the authorities cited by the learned author, and do not find that any of them go to the extent of clothing a trustee with a right to increase the compensation without the consent of his principal. The Commissioners were dealing with a public trust, and must confine themselves within the boundary of power and discretion indicated by the character and nature of their trust. A trustee must be faithful to the legal rights of his principal, before he is generous to -the demand of others. There was no inducement, to operate on the mind of the authorities, in the line of the necessity or interest of the District, to justify them in making the allowance. The contract was fully performed, and there was not pending between the parties a doubtful claim which might be, or was, adjusted by the payment. If, while the work was in progress and because of the difficulties, the contractor was about to fail, then, in consideration of the public necessity, the Commissioners might have increased the pay; but this case does not come to that standard, and can not be determined by tbe law applicable to that condition. The memorandum executed by the claimant and his sureties on the 17th of December, 1875, after the communication of the 15th and before the allowance of the additional compensation, does not increase the liability of the claimant, inasmuch as the legal essence of that agreement was already embraced in the ninth article of the original of contract 916.

There is no evidence that, as to the subject-matter of that memorandum, there ever had been any dispute between the parties, as to the intent and meaning of the agreement in relation to the obligation of the claimant to build an enduring and substantial pavement. He took upon himself by the letter of his obligation the responsibility of meeting just such difficulties as he had to encounter in the prosecution of the work, and having'agreed to construct a pavement upon a given street, he must bear the responsibility of the imperfect foundation. (Dermott v. Jones, 2 Wall., p. 1.) Such was evidently the construction of the contract as indicated by the acts of both parties.

Upon the whole case the court holds that the claimant is entitled to receive 20 cents per square yard for 51,830.84 yards, making $10,366.77; that he is to be charged with overpayment $2,549.77 for grading and $1,247.25 for extra allowance on De Sales street, leaving a balance in his favor of $6,569.75. [Roche v. The District of Columbia, 18 C. Cls. R., p. 217.) In justice to the referee we desire to say that, upon a full investigation of the case, we have adopted his findings upon all matters submitted to his determination.

The judgment of the court is that the claimant recover the sum of $6,569.75, due and payable as of the 1st day of November, 1875.

CASES DECIDED IK THE SUPREME COURT ON APPEAL. OCTOBER TERM, 1886.  