
    George Neitzey v. The District of Columbia.
    
      On the Proofs.
    
    
      The contraéis of the hoard of public works make the measurements of the engineer of the District final. After payment upon his certificates, the District claims Act, 1880, is passed, referring claims against the District to this court. A contractor brings suit on one contract; the defendant sets up a counter-claim founded upon another, and shows a mistake in the engineer’s measurement, and consequent overpayment. The claimant objects that the engineer’s determination was final. The defendant also seeks to recover back an overpayment made by authority of the board of audit. The claimant insists that the awards of the board were final and have been ratified by Congress.
    
    I.By the District claims Act, 1880 (1 Snpplmt. R. S., 562), Congress, speaking in the stead of the defendant, consented to waive the conditions precedent of certain contracts, and provided for an adjudication upon the merits.
    II.The act authorizing the Attorney-General to defend the District in like manner as he is required to defend the United States, and “ with the same power to interpose counter-claims” (§ 3), is to he administered as if it reiterated in express terms the provisions concerning connler-claims of Rev. Stats., §§ 1059, 1061.
    III.The District claims Act is in effect a stipulation between the parties, whereby the defendant waives technical defenses, but upon condition that any matter of indebtedness may be set up in defense, and judgment be rendered upon the whole case for the amount justly and legally due from either party to the other.
    IY. In suits brought under the District claims Act, the provisions in certain contracts requiring measurements to be made and amounts determined exclusively by the engineers of the District no longer bind either party. The measurements and amounts may be established by evidence, as if no such provision existed in the contracts.
    
      V. In actions to recover Rack money paid in mistake, a mistake of fact must Re established, and ordinarily the mistake itself, as such, must Re shown, and it must Re a mistake of fact, and not'an error of judgment; Rut if the mistake relates to the measurement of a certain and fixed area, it may be established by showing that the area does not now contain the number of square yards for which payment was made.
    YI. Where different processes will give different results, or where the same process under different manipulations will give varying results, or where the result is at best approximate and its exactitude more or less dependent upon the judgment or skill of him who makes the measurement, the mistake actually committed, unless a gross one, must Re positively shown.
    YII. By the Act 20th June, 1874 (18 Stat. L., 110, ( 6), constituting the Comptrollers of the Treasury a board of audit “to examine and audit jor settlement all the unfunded or floating debt. of the District, of Columbia,” the board was not made a board of arbitration. The element of finality does not attach to its reports, and the results of its raparte labors are merely the statements or settlements of accounting officers. The distinction between this case and that of The Dank of Greencastle (15 C. Cls. R., 225) stated.
    VIII. The legislation of Congress providing for the payment of claims allowed by the board of audit, and excluding from the jurisdiction of this court claims rejected by the board, does not operate as a general ratification of the acts of the board.
    IX. Where the board of audit allowed §3.10 per yard, instead of $3 (the contract price), the allowance unexplained must be regarded as a mistake of fact, and the overpayment as money paid in mistake of iact.
    
      The Reporters'’ statement of the ease:
    The following are the facts of this case as found by the ■court:
    I. The amount of $269.34 was retained from the claimant by the defendant in the settlement of his account for work done under the extension of contract with the board of public works, •dated July 17, 1873, known as contract number 765, and has not been paid. All the said work was done by claimant prior to November 1, 1875.
    II. In the progress of the work under this contract, the defendant from time to time furnished to the claimant granite curbing of the value of $1.12 per foot, which amounted in the aggregate to 1,653-}4 feet. On the 13th January, 1874, a final account was stated between the parties, it being made out by the engineers and officers of the board of public works. In this account the claimant was debited with the following item, “1,554 feet, 6 by 12, at $1.12= $1,740.48.” This was intended to represent tbe granite curbing aforesaid, tbe quantity by a clerical error being stated at 1,554 feet instead of at 1,654 feet or 1,653}1 feet, as really appeared by receipts given by tbe claimant and by tbe books of tbe defendant. Tbe said sum of $1,740.48 was then deducted from moneys due to tbe claimant ui)on his contract, before mentioned, and tbe balance remaining was paid to him on tbe 20th of January, 1874, by a certificate of indebtedness, which be accepted and which was subsequently paid by tbe defendant. The-amount that should have been deducted from such payment was $1,852.35, and tbe amount of tbe error and overpayment so made was $111.87.
    III. Tbe claimant on September 18,1871, entered into a contract known as No. 28 with tbe board of public works aforesaid, and thereafter into certain extensions thereof, under which contract and extensions the claimant agreed among other things to lay Belgian blue-rock pavement at prices therein named, namely, on Twelfth street from D street northwest to the Washington Canal (now B street northwest), at $3 per square yard, and from B street southwest to the Potomac Eiver at $3.10 per square yard; which contract, with the extensions thereto, is hereinafter set forth. The work was done by the claimant, and measured and computed by the defendant’s engineers. On the 1st August, 1872, the following account was made out by the defendant’s officers:
    “Washing-ton, D. 0., August 1, 1872.
    “ Board of public worlcs, D. 0., to George Neitzy, Dr.
    
    * m * * # * *
    “12,6191: square yards Belgian pavement laid, at $3.00 per yard, $37,858.50. ^
    ^ * # * * * * #
    “ I do hereby certify that I have measured and inspected the work done by Ceorge Neitzy on the improvement of 12th street west from Penn. ave. to Water st., in sqrs-, embraced in his bill dated Aug. 1, 1872, which work was done under the order of the board of public works (contract No. 28,1871), and find it correct as to quantity and quality, and that the work has been done in conformity with the contract and specifications relating thereto, and that the material and labor has been furnished as specified.
    “ War. Forsyte,
    
      “Assistant ¡Engineer*
    
    “Dated Aug’t 1,1872.”
    
      And on tbe 20th November, 1872, tbe following account was in like manner made out by tbe defendant’s officers, and was in like manner certified by tbe same assistant engiueer:
    
      " Washing-ton, I). C., November 20th\ 1872.
    “ Board of public worlcs, D. G., to George Neitzy, Dr.
    
    * ***** * 1,181 square yards of Belgian pavement laid, at $3.10
    per yard. -.$3, 661 10
    338 square yards blue-rock pavement laid, at $3.10
    per yard. 1,047 80
    # * # # # * #
    Tbe above items in the foregoing two accounts referred to work done under tbe said contract, No. 28, and its extensions; and tbe claimant was subsequently paid for tbe total of snob items, viz, 14,138£ square yards, at the.rate of $3.10 per yard, amounting in the aggregate to $43,829.35.
    By subsequent measurements of tbe area paved by tbe claimant, tbe pavement laid by him having been in the mean time removed, it appears, after allowing to him all crossings and intersections which be might possibly have laid, that the quantity of pavement laid by him under tbe contract and extensions aforesaid could not have exceeded 13,254 square yards; and the court finds that by a mistake of fact committed by the defendant’s engineers, theclaimant was overpaid for 884 square yards of pavement tbe sum of $2,740.40. But it does not appear by what officer or in what manner the said mistake was made; nor whether it was a mistake of measurement or of computation; and the subsequent measurement and computation, which give 13,254 square yards, were not made by tbe assistant engineer who certified tbe accounts on which the claimant was overpaid, nor by the engineer commissioner of the District of Columbia.
    IY. After the organization of the board of audit for the District of Columbia, created and established by the Act 20th June, 1874 (18 Stat. L., 116, § 6), it was found by the board that many claims were pending and unsettled, at the time of abrogation of the District government, of the fourth, fifth, and sixth classes designated by the statute, the evidences of which were mostly, and in many cases wholly, in the District offices and in the records and files which had come to the custody of the board. The number of claims in the classes named was so large that it appeared probable to the board that a large number of them must remain unpresented if a formal and new presentation should be required. For these reasons it was adopted as a rule that claims pending and unsettled at the passage of the Act 20th June, 1874, should be deemed and held to be pending before the board of audit the same as if the form of newly pre-. senting what was already among the files and records of the board of audit had been insisted upon and complied with.
    It does not appear whether a formal presentation to the board of audit of the claim hereinafter set forth was made within the time specified by the Act 20th June, 1874, or subsequent statutes extending the time, but on the 20th August, 1875, the claimant presented to the board of audit the following communication :
    “ Washington, August 20th, 1875.
    “To the Hon. Board oe Audit :
    “Gentlemen: A th’rough examination of my account discloses the fact that errors were made in their adjustment, viz: No hauling was allowed me for gradiug'down on 12th st. west, between Pa. ave. and Water street. Material to the amount of $127.12 was deducted from the settlement of work done on D st. north, between 11th & 12’ west. My bill for hauling curb, in 1872, amounting to $81.60, has never been paid. Property to the amount of $644.36 was erroneously deducted from the settlement for work done at intersection of La. and Pa. ave., 9 and C sts. This property I bought and paid for; I did not draw it from the District. I also make application for amount retained on contract 362, the work having been done nearly three years; hauling of old property, & etc. Whatever other errers may be found to exist, I would be glad to have the same adjusted, w’eather in my name or in my name & Co. You will greatly oblige,
    “Yours, respectfully,
    “ George Neitzey.”
    And on the 1st September, 1875, the board of audit, by one of its accountants, stated an account concerning the claim, which contained among others the following item :
    “12,6191; square yards Belgian pavement, $3.10... $39,120 45 “Less amount paid... 37,858 50
    1,261 95
    “ 3.10 is the price specified in the contract, and was the regular board price, instead of $3, the amount allowed in the measurement.”
    
      The above item of 12,6194 square yards of Belgian pavement, upon which $37,868.60 is said to have been paid, is the same item set forth in Finding III, and that amount was paid by the board of public works. The 12,6194 yards of pavement referred to in the item was pavement laid down under contract No. 28 and its extensions, as set forth in Finding III. The item in fact embraced '3,426 square yards of pavement laid under the contract, and first extension thereof, as to which the price specified in the contract was $3 per yard, and 9,1934-square yards laid under the second extension, as to which the price specified in the second extension was $3.10 per yard. Hence, in the statement or account of the board of public works, set forth in Finding III, there was an error of fact against the claimant, inasmuch as the total number of 12,6194-yards is stated at $3 per yard, whereas 9,1934 yards should have been stated at $3.10 per yard; and on the other hand, in the statement or account of the board of audit, set forth in this finding, the total number of 12,6 L9J yards is stated at $3.10 per yard, whereas the contract price for 3,426 yards thereof was $3 per yard.
    The amount above allowed by the board of audit as a rectification of the mistake in the previous account, to wit, $1,261.95, was subsequently paid to the claimant by the defendant. Whether the board of audit in allowing the claimant 10 cents per yard upon 3,426 yards, in excess of the price prescribed, acted in mistake of fact as to what the contract rate really was, or under a misapprehension as to higher rates having been allowed to claimants generally by the board of public works, does not appear further than by the note of explanation appended to the item and before set forth in this finding.
    It appears that the board of public works in some instances advanced contract rates by the adoption of a tariff or scale of prices; but it does not appear that any such tariff' or scale of prices was applicable to the work designated in the claimant’s contract No. 28 as work to be done at $3 per yard.
    Y. The following is contract No. 28 and the extensions thereof referred to in Findings III, IY:
    “CONTRACT NO. 28.
    “This contract, made and concluded this 18th day of September, A. D. 1871, between Henry D. Cooke, Alexander K-Shepherd, James A. Magrnder, A. B. Mullett, and S. P. Brown, constituting and composing the board of public works of the District of Columbia, of the first part, and George Neitzey, of Washington, D. O., of the second part, witnessetli :
    “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 of a bond bearing even date with these presents and hereunto annexed, to furnish at his own propei' cost and expense all the necessary materials and labor, in a good, firm, and substantial manner to lay and put down the so-called “Belgian” Seneca stone pavement on J2th street west from Penn. ave. to D st. N. W., and Belgian blue-rock pavement, similar to that laid in New York, from D to 0 streets, in the city of Washington, D. 0., &c., &c.
    *******
    “Eighth. And it is further agreed that partial payments shall be made by the duly authorized fin acial agent of the said party of the first part on the monthly estimates of the chief engineer of the board of public works aforesaid, and that whenever the said chief engineer aforesaid shall certify, in writing, that the party of the second part completely performed this contract on his part, and shall submit with said certificate his estimate of the amount due the party of the second part, then within thirty days, as hereinafter provided, the said party of the second part shall be entitled to receive the full amount due under this contract, deducting therefrom all previous partial payments which may have been made as hereinafter mentioned. And it is farther expressly agreed that no money shall become due and payable under this contract, except upon the certificate of said engineer, as hereinbefore provided; and the said party of the second part further agrees that he shall not be entitled to demand, or receive payment for any portion of the aforesaid work except in the manner set forth in this agreement; and when each and all of the stipulations hereinbefore mentioned are complied with, and- the engineer shall have given his certificate to that effect, a final settlement shall be made in writing between the parties, and the whole amount found due the party of the second part under this contract shall bp paid to him, excepting such sum or sums as may be retained under any provision of this contract: Provided, That partial payments may be made, by- direction of the board, otherwise than upon the estimates of the engineer, if in their opinion the prompt execution of the work will be promoted thereby.
    *******
    “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: Belgian Seneca stone pavement at $2.50 per square yard; Belgian blue-rock pavement at $3 per square yard.
    # # * * * #
    “Eleventh. It is further agreed that the measurements shall be made by the engineer of the board or his assistant. *******
    
    (Signed by the board of public works and the contractor.)
    
      “Extension of contract.
    
    “ 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 paving of carriage-way of 12th st. N. W., and other work mentioned in the foregoing contract, from 0 street to Washington Canal, between the points.
    “ Witness our hand and seals the 23d day of November, A. D. 1871.
    (Signed by the board of public works and the contractor.)
    
      “Extension of contract.
    
    “ 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 the brick foot-pavements, the setting of the curbstones, and the construction of twelve (12) inch sewer with the necessary manholes, traps, laterals, and water services (at board rates), on Twelfth street west from the canal to the Potomac Biver, in the city of Washington, D. C.; also to lay and put down the pavement known as and called the New York granite Belgian block pavement, on said Twelfth street west from B street south to the Potomac Biver, in the city of Washington, D. C., at $3.10 per square yard; said work to be executed in every respect in conformity with the accompanying specifications.
    “Witness our hands and seals the 25 th day of July, A. D. 1872.”
    (Signed by the board of public works and the contractor.)
    
      Mr. George L. Douglas for the claimant:
    All items claimed by Neitzey which this board rejected are now rigorously excluded by statute from the consideration of this court; and neither the doctrines of law other principles of equity will permit the opening of one side only. “He who seeks equity must do equity.” “Equality is equity;” and a court of equity will not open a door to a defendant which is closed to the plaintiff. The absolute finality of the board of audit decisions, as against the claimant, is indicated by section 8 of the act above referred to; and that Congress recognized their equal finality as against the defendant is as clearly shown by section 9 of the same act, and by section 7 of the Act of June 20* 1874, (18 Stat. L., 116). But even without such evidence of the legislative will, the proposition contended for by the defense cannot on general principles be sustained.
    In McKee's Case (12 C. Cls. R., 534) the court held that such a rule as is here contended for by the defendant would be one-sided, void of all mutuality, and wholly inadmissible. This case was afterward (13 C. Cls. R., 534) overruled by the Supreme Court on other grounds; but this particular position, if affected at all by the opinion above, seems to have been inferentially sustained.
    In ¿Spencer’s Case (10 O. Cls. R., 256) it was held that where the Treasury Department had allowed a claimant more on certain items than he was entitled to, and disallowed other items which in themselves were valid, the court could not ignore the allowances erroneously made, and render judgment for the items erroneously disallowed. This is merely the converse of the proposition which we are here seeking to emphasize: If one side of an account be opened, the other cannot remain closed; if one side is closed, the other cannot remain open. Where the plaintiff opens a stated account and falsifies certain charges in it, the defendant may open it also and correct a mistake. It should be opened so as to correct errors on both sides. (3 Desau (S. 0.), 93; 8 Rich (S. C.), 248.) If this cannot be done it should remain closed as to both.
    It is true that the Supreme Court has decided (District of Columbia v. Cluss, 103 U. S., 705) that the board of audit was not a judicial body and its action not final; but that decision has no reference to this court or to the effect of the act of June 16, 1880. So far as this court is concerned, that statute has invested the actions of the board with the attribute of finality and its decisions with the character of adjudications. If this be true, it is difficult to see why, in addition to the other objections to the counter-claim, the doctrine of res judicata and the principles laid down in 1 O. Ols. R., 138 may not also be invoked.
    All the objections to the first item apply with equal force to the second item of the counter-claim. It is alleged that, in the settlement with Neitzey for work done under a certain contract made in 1871, the defendant’s engineers made an error in some measurements whereby the claimant was paid for 884 more yards of Belgian-bloclc pavement than he actually laid. This claim for paving was also passed upon by the board of audit, and is thus excluded from the consideration of this court.
    But another equally cogent reason leads to the same conclusion: In these contracts it was expressly stipulated that all measurements should be “ made by the engineer of the board or his assistant”; and the parties, having thus agreed in advance whose measurement they would accept, are on general principles bound by it when made. (Kihlberg's Case, 13 C. Ols. It., 148; 97 U. S.,' 398.)
    Even were the countei’-claim not excluded from consideration by the former adjudication, it is difficult to see how the testimony relied on to sustain it can have any standing in this court.
    “ Where parties have made a full and final adjustment of their accounts, and there is no pretense of fraud or imposition, there must be conclusive evidence of error or mistake to induce the court to open the account.” (4 Paige (N. Y.), 481; 11N. Y. (1 Kern.), 170; 2 Edw. (N. Y.), 1; 7 How., 819; 45N.H.,456.)
    Doubtful or even pirobable testimony is not sufficient to open a long-settled account, in the absence of any proof of fraud or undue influence; and the whole burden of proof is on the party seeking to open such an account. (3 Abb. App. Dec., 99; 4 Cranch, 300.)
    “It would be most mischievous to allow settled accounts between parties, especially where vouchers have been delivered up or destroyed, to be unravelled, unless for urgent reasons and under circumstances of plain error, &e. (Story Eq. Jur., 527.)
    “ In matters of account, although not barred by the statute of limitations, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy, from the difficulty of doing exact justice, where the original transactions have become obscured by time and the evidence may be lost.” (Id., 529.)
    This is the doctrine which, in a case like the present (where it is necessary to protect one party from a gross and unconscionable advantage claimed by the other), should be invoked by the court to its fullest extent and applied with the utmost rigor.
    
      The last item of the counter-claim is based upon a third alleged error of the board of audit in allowing a certain claim of Neitzey’s for ten cents additional per sguare yard on 3,426 yards of Belgian-block pavement laid by the claimant. It is a sufficient answer to this also that the claim was fully considered and allowed by that board. If the certificate therefor is outstanding to-day, it is redeemable at the Treasury Department under the law, without defalcation or the possibility of dispute or refusal on the grounds of the merits or demerits of the original claim. As above intimated, this of itself is conclusive evidence that Congress not only regarded the adjudications of the board as final, but ratified them as such. The issuing of the certificate cured all antecedent defects in the claim. Res-judicata facit ex albo nigrum, ex nigro album, ex mtrvo recttim, ex reeto currnwn.
    
    But in the present case, if the allowance of this item were open to review, the court would find it to have been a just and equitable allowance. The board merely allowed to the claimant the uniform rate for this class of work prescribed for all contractors. The court would not reserve that decision.if it could ,• and it could not if it would.
    
      Mr. Assistant Attorney-General Simons (with whom was Mr. J. G. Fay) for the defendant:
    There is but a single point of law involved, apparently. If the facts as requested are found, three manifest errors were committed to the claimant’s advantage on the accounting between him and the defendant, which he now seeks to close by claiming an alleged balance in his favor.
    That an overpayment by mistake under such circumstances is recoverable is well settled (1 Story on Cont., § 541; Kelly v. Solari, 9 M. & W., 53; Boyer v. Pack, 2 Denio, 107; Waite v. Leggett, 8 Cowen, 195), and a fortiori when the account is not closed, or when the other party seeks to open it (McElrath v. United States, 12 C. Ols. B.., 201).
   Nott, J.,

delivered the opinion of the court:

The claimant has brought his action against the District of Columbia to recover $269.34, and the defendant has set up matters by way of counter-claim to the amount of $3,194.87. As to the claimant’s demand, it is conceded that he should recover. The real controversy grows out of the counter-claim.

As to the first item of that counter-claim, $111.87, it arose in settlement of the same contract upon which the claimant sues, and it is a clear case of overpayment in mistake of fact, the mistake, moreover,' being clerical; i. e., the writing of 1,554 instead of 1,654. illhe court has not the slightest doubt of the defendant’s right to have it deducted from the claimant’s recovery. Graver and more doubtful questions spring out of the second and third items of the counter-claim, which are to recover back $2,740.40 and $342.60 for overpayments made in mistake of fact upon another and distinct contract. The essential facts relating to the former of these two counter-claims are these:

The board of public works of the former government of this District entered into a great number of contracts with many different contractors for grading, paving, and otherwise improving the streets of Washington. These contracts were prepared by the board and were upon printed blanks, and often were substantially in the same language. They provided that payments should be made upon the estimates and certificates of the chief engineer of the .board, and each contractor expressly agreed that no money should become due and payable under his contract “ exceptupon the certificate of said engineer,” and that he should not be entitled to demand or receive payment for any portion of his work “except in the manner set forth in this agreement.” The agreements also contained an article expressly declaring that the measurements should be made “by the engineer of the board or his assistant.”

In a word, these contracts belong to the class where the parties agree that a third person, ordinarily an architect or engineer, shall act as arbitrator between them in determining the quantity and quality of the work, and the contractor agrees to produce the engineer’s certificate of approval as a condition precedent to demanding payment. If the cases came into court to be determined according to the letter of each'contract, there could not be a doubt as to the effect of these provisions. But now we must take judicial cognizance of the fact that the contractors with the board of public works went to Congress for relief; that they asserted that the other contracting party had been delinquent in making payments; that they represented that in consequence of the haste in which measurements and estimates were made by the engineers and officers of the District grave mistakes bad been made; and that they conceded that they had no legal remedy against the District, and appealed to the conscience of Congress as their only hope of redress. We also know that these appeals and these representations went on for years, and that the contracts, the proceedings and acts of the board of public works, the proceedings and acts of the board of audit, the accounts between- the parties, the estimates of the engineers, and every conceivable thing relating to the controversies were reported and made known to Congress. With this knowledge brought home in every conceivable way to every member of the two houses of Congress, the District-claims Act, 16th June, 1880 (1 Supplmt. B. S., 562), was passed. We cannot suppose that Congress passed that act in ignorance of the law of contracts or with the intent that this class of claimants should be turned out of court without legal redress. On the contrary, we believe that the statute is to be interpreted by the principle reiterated by this court in the Caldera Gases (15 C. Cls. B., 546), the Dahlgren Case (16 id., 30), and the case of Braden & Angus (td., 389,411), and that Congress as the supreme legislative power of the District, speaking for and in the stead of the defendant, agreed to waive the condition precedent prescribed by the contracts and to consent to an adjudication upon the merits.

In the present case, the defendant has established the fact that the claimant was paid in 1872 for laying 14,138]) square yards of Belgian pavement on Twelfth street. The fact is also established, to the satisfaction of the court, that the measurement then certified to by the defendant’s engineers was erroneous; that but 13,254 square yards were laid, and that there was consequently an error of 884 yards for which the claimant was overpaid. But his counsel strenuously contended on the hearing that this branch of the counter-claim must fail because the remeasurement had not been made by either of the engineers designated by the contract as the person who should make all measurements under it.

It may be conceded that that would be the result if the par-* ties had come into court in their original plight, with nothing between them but the contract as they originally made it; but they now come into court with what is substantially a subsequent agreement, that is to say, under the Act 1880, to the ■ terms, and conditions of which they have both consented, the one by bringing Ms action, tbe other by the enactment of its supreme legislature; and the real question is, whether the benefit conferred by the act on the claimant in striking out, in effect, this clause of the contract is reciprocal, and whether, when the claimant has brought into court one contract, the defendant may bring into court another.

It must be conceded by all parties, it cannot be doubted by an3 rational mind, that the general purpose of Congress was to do justice between these parties. It cannot be supposed that Congress intended to throw down technicalities which stood in the way of the claimant and leave them standing in the wajr of the defendant. The legislative intent could not have been that a contractor might pick out one of a dozen distinct transactions ami bring it into court and recover a judgment upon it if he were really indebted to the District in the other eleven. Still, the practical question which follows is, whether Congress have effected this purpose of doing absolute justice between the parties by appropriate legislation, or whether it has been left a casus omissus.

The claimant brings his action to recover a balance due to him upon one contract, and the defendant seeks to recover back an alleged overpayment made upon another contract. This is not a defense in any manner growing out of the transaction which the claimant has brought into court, but is a distinct cause of action and must be sustained, if it can be sustained at all, as a cross-action seeking affirmative relief, under that provision of the Act 1880 (§3) which says that the Attorney-General shall have authority to defend the District of Columbia against all such claims in like manner as he is now by law required to defend the United States in said court, ioith the same power to interpose counter-claims and offsets.”

This term counter-claim is a term unknown to the common law, and indeed was first introduced into modern statutory practice by the New York Code of Procedure of 1848. It was then criticised as being a. term unknown to any system of law, but was soon interepreted in accordance with the comprehensive signification of its words as meaning something more than set-off and embracing every cause of action of like nature which might have been the subject of a separate action.

Furthermore, the District claims Act, by this reference to the previously existing statutory right of the United States as defendants in this court “to interpose counter-claims and offsets,” in legal effect confers the right upon the District of Columbia as defendant here. The statutory provisions which define the right are to be found in the Revised Statutes, sections 1059,10G1. They provide for affirmative relief in favor of the government, and for the rendition and enforcement of judgments against claimants, as follows:

“ Sec. 1059. The Court of Claims shall have jurisdiction to hear and determine the following matters:
“ First. All claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, expressed or implied, witli the Government of the United States, and all claims which may be referred to it by either house of Congress.
“ Second. All set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the Government of the United States against any person making claim against the government in said court.
“Sec. 1061. Upon the trial of any cause in which any set-off, counter-claim, claim for damages, or other demand is set up on the part of the government against any person makiug claim against the government in said court, the court shall hear and determine such claim or demand both for and against the government and claimant; and if upon the whole case it finds that the claimant is indebted to the government, it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk’s office of any district or circuit court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court, and be enforced as other judgments m such courts are enforced.”

The District claims Act 1880 therefore must be administered as if it’said in express terms: “The jurisdiction of the Court of Claims is hereby extended to and shall have original, legal, and equitable jurisdiction, of all claims now existing against-the District of Columbia arising out of contracts made by the late board of public works,” &c., and of all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the District of Columbia against any person making claim against the District in said court. Upon the trial of any cause in which any set-off, counter-claim, claim for damages, or other demand is set up on the part of the District against any person making claim against the District in said court, the court shall hear and de-: termine such claim or demand both for and against the Disrict and claimant; and if upon the whole case it finds that the claimant is indebted to the District, it shall render judgment to that effect.

These provisions of the.act, coupled with the claimant’s voluntary bringing of his suit under and by virtue of the statute, are to all intents a stipulation between the parties. The one, the claimants, went to the other and said, “You ar.e indebted to us, though there are legal and technical defenses which stand in the way of a recovery, and we appeal to you to do us justice in paying that which is really due to us.” The other, Congress, replied, “We consent to waive all technical defenses, and agree that the Court of Claims may ascertain what amount, if any, is actually due to you upon the merits of each case; but upon condition that we may set up in the same suits “all claims for damages” which we may have against you, “ whether liquidated or unliquidated,” and all “other demands whatsoever”; and upon the further condition that “ the court shall hear and determine” these claims of yours against us, and our “ claims for damages” against you, “ and if upon the whole case it finds” that we are indebted to you it shall render judgment for the amount justly and legally due to you, but “if upon the whole case it finds” that you are really indebted to us “it sliall render judgment to that effect.”

With this stipulation graven on the threshold of every case, and with no claimant having a standing in court except by virtue of the stipulation, the power of the court to go to the root of every matter, legal or equitable, must be pronounced ample and complete. We are of the opinion that Congress intended that every claim of these claimants against the District, and every demand of the District against the claimants, should be determined upon the merits, and we conclude that the provisions in these contracts requiring measurements to be made and amounts to be determined by the engineers of the District no longer bind either party, and that the amount in which either party is indebted to the other may be established by legal and competent evidence as if no such provisions had ever existed in the contracts.

Passing no w to the merits of this branch of the counter-claim, we observe that it is to recover back money paid by the defendant to the claimant in alleged mistake of fact; that the mistake, whatever it was, whether of measurement or computation, is not expressly and directly shown, and that all which appears is that the defendant paid for 14,138 square yards of pavement upon a certain street and between fixed boundaries, when, as now appears, the same area could not have contained more than 13,204 square yards.

Always in such actions a mistake of fact must be established; ordinarily the mistake itself, as such, must be shown. The action, moreover, must rest upon a mistake of fact, and not upon an error of judgment. There are cases where different processes will give different results, as in determining the distance of the earth from the sun; and cases where the same process under different manipulations will give varying results, as in chemical analysis; and there are also cases where the result is at best approximate and its exactitude more or less dependent upon the judgment or skill of him who makes the measurement; and in all such instances, we apprehend, the mistake actually committed must be positively shown, unless, perhaps, it were a very gross one. But a superficial measuerment of a certain and fixed area is not one of them. As to it, different processes will not give different results, nor will the same process vary under different manipulations; nor will the result depend upon the judgment of the engineer who makes the measurement and calculates the area in square yards. Fifty engineers making the same measurement would give the same answer to within the fraction of a yard. It is indeed incontrovertible that if the area paved now contains only 13,254 square yards of superficial space, the former estimate of 14,138 square yards of pavement necessarily was either a mistake or a fraud.

The third item of the counter-claim is likewise for an overpayment, but the mistake alleged is not that there ivas an error in the measurement of the work, but in the rate of payment allowed. The claimant had a contract for laying the same kind of pavement in different joortions of the same street. For pavement laid on one portion he was to be paid $3 a yard; for pavement laid on the other, $3.10. In August, 1872, he had laid 3,426 yards of the former and 9,193J yards of the latter. In an account dated August 1, 1872, the defendant’s officers put these two together and stated them in one item of 12,619J yards at $3 per yard. This was an error against the claimant. On the 1st September, 1875, the board of audit of the District of Columbia took tip the matter for correction, again stated it in one item of 12,619£ yards, but gave $3.10 per yard as the rate to be allowed for the whole. This was an error against the defendant; $3.10 should have been allowed as the contract rate on 9,193£ yards, and not upon 12,619£ yards. But the amount allowed by the board of audit was paid to the claimant, and the defendant seeks to recover back ten cents per yard on 3,426 yards, amounting to $342.60.

The counsel for the claimant says in reply to this demand that the item was an award made by the board of audit, and that this court cannot overturn a settlement made by the board, inasmuch as the District claims Act 1880 (1 Supplmt. R.S., 563 § 8) precludes this court from considering any claim “ which was rejected by the board of audit;” hence, it is argued, if the awards of the board of audit are not regarded as final generally, there will be this anomaly: that if there were two mistakes committed by it, the one for and the other against a claimant, the court could correct the one and not the other.

The Assistant Attorney-G-eneral replies to this that the settlements of the board of audit were not final awards; and that • as to this settlement or allowance in favor of this claimant, the board was without jurisdiction; for the Act 20th June, 1874 (18 Stat. L., 116, § 6), which created the board, expressly provided that no claim should be “audited or allowed unless presented within ninety days” after the first publication of a notice prescribed by the statute; and the first presentation of this claim, so far as appears by the record, was not till the 20th August, 1875.

To this the counsel for the claimant rejoins:

1. That the communication which the claimant sent to the board of audit on the 20th August, 1875, shows on its face that the claim was already pending and under consideration; that the board, as they reported to a committee of Congress (H. Mis. Doc. 103, Part 2, Forty-fourth Congress, seventh answer), did not require a formal presentation of claims in cases like this, and that the determination of what facts constituted a presentation was a question for the board to determine within the decision of this court in the case of Greencastle Bank (15 O. Ols. B., 225).

2 That Congress have ratified all cases acted upon favorably by the board of audit, inasmuch as they have directed the Treasurer “ to redeem the outstanding certificates of .the late board of audit.” (District claims Act■ 1880, (1 Supplint. E. S., 562, § 9.)

Upon these facts and arguments the court has reached the following conclusions:

1. The Bank of Oreencastle Case (15 C. Ols. E., 225) is not authority for holding that the board of audit could have audited or allowed claims which had not actually beeu presented by the claimant within the times designated by the Act 20th June, 1874; Joint Resolution 21st December, 1874; Act 3d March, 1875 (18 Stat. L., 116, § 6; ibid., 523; 509). What that case decided was that if the Commissioner of Internal Eevenue had deduced from evidence before him a jurisdictional fact, which it was his duty to determine, this court would not retry the case, as to the existence of that fact, upon the same or other evidence, aud iiossibly determine it the other way; but the decision did not intimate that the Commissioner could dispense with jurisdictional conditions imposed by statute, or modify them, or substitute a nominal for an actual compliance with them.

2. The court is also of the opinion that the board of audit was not a board, of arbitration, and that the element of finality, which is an attribute of judicial and quasi judicial, bodies, does not attach to its decisions. The financial affairs of the District of Columbia being in great confusion, and the District government which had incurred the debts having been abolished, Congress selected the two chief accounting officers of the general government and directed them to examine and audit the unsettled claims and demands against the District. The language of the statute is:

“That it shall be the duty of the First Comptroller of the Treasury and the Second Comptroller of the Treasury of the United States, who are hereby constituted a board of audit, to examine and audit for settlement all the unfunded or floating debt of the District of Columbia and of the board of public works hereinafter specified.”

The duties assigned to these officers by the act differed not essentially from those which they performed for the national government. Moreover, they were expressly authorized by the act to employ “accountants” “and such other assistants as they may deem necessary to make examination of said books, vouchers, and papers, and discharge their other duties under this act.” No hearing was secured by the statute for the claimants, nor is .there anything in it which indicates that the First and Second Comptrollers were to adjudge the rights of any person. The term “board of audit” seems to have been employed to secure the joint or concurrent action of the two officers, and the “ power to subpoena witnesses, administer oaths, and examine witnesses under oath,” which looks much like the machinery of a judicial body, is expressly limited to “ the purposes hereinbefore specified,” and those purposes are expressly defined by the words “ to examine and audit for settlement,” “to ascertain the amount of sewer tax or assessment paid by any person,” “to ascertain and report to Congress the amount equitably chargeable to the street railroad companies on account of paving.” In a word, Congress set accounting officers to do the work of accounting officers; and the results of their exparte labors come within the characterization of the Supreme Court in Ghorpemving’s Case (94 U. S. B., 397).

3. The courtis also of the opinion that the subsequent legislation of Congress does not operate as an absolute or general ratification of the settlements made by the board of audit, nor place them above such judicial review as might be applicable to like conclusions of other accounting officers. It is true that Congress have made provision for the payment of those claims which were audited and allowed by the board, and have excluded the rejected claims from the jurisdiction of this court. [Act 20th June, 1874, 18 Stat, L., 116, § 7; District claims Act 1880. Supplmt. B. S., 562, §§ 8, 9). But this legislation does not take such cases out of the operation of ordinary rules of law nor change the character of the settlements or allowances or decisions which the board of audit made. The case is as if a merchant should order his bookkeeper to examine, audit, and report upon a number of accounts against his ship, and the bookkeeper should audit some and reject others, and the merchant should pay those which were audited and should refuse to pay those which were rejected. Assuredly it 'could not be maintained that the merchant by paying such claims had ratified the report as against himself, and had attached the character of an arbitrator to his own bookkeeper and had closed his own mouth against ever saying that he had overpaid one of those claims in mistake of fact.

Finally it is to be observed tliat the board of audit, or rather their accountant, when lie stated the item of “ 12,619J square yards Belgian pavement, 310, $39,120.45,” appended thereto the following explanatory note:

“$3 10 is the price specified in the contract, and wa sttie regular board price, instead of $3, the amount allowed in the measurement.”

At the trial, the counsel for the claimant strenuously insisted that this note referred to a scale of rates which the former board of public works established during the performance of .the contracts, and that these increased rates were allowed to contractors irrespective of the rates specified in their contracts. It is manifest that if such an advance of payment was in fact allowed by the board of public works it might be sustained as a subsequent parol contract, or, if not sustainable, that it would at least characterize the payment as one made in mistake of law.

But while there is evidence to show that the board did establish rates in the manner above indicated, no tariff or scale rates has been discovered which can be applicable to the pavement of this street, or which can affect this contractor’s agreement. The mistake therefore remains a mistake of fact. Whether the board of audit supposed that the contract rate for all of the work was $3.10 per yard, or whether the board supposed that the former board of public works had increased the original contract price to that rate, is immaterial, for both suppositional facts were unfounded.

The conclusion of the court is that the defendant should recover :

Upon the first item of the counter-claim. $111 87

Upon the second item of the counter-claim. 2, 740 40

Upon the third item of the counter-claim. 342 00

Amounting to. 3,194 87

And that the claimant should recover. 269 34

Leaving a balance of. 2, 925 53

And that upon the whole case judgment be rendered against the claimant and in favor of the defendant for the sum of $2,925.53.  