
    ELIAS E. BARNES v. THE DISTRICT OF COLUMBIA.
    [D. C. No. 47.
    Decided March 31, 1902.]
    
      On the Proofs.
    
    This case has been twice tried before. The different result now reached by the court rests on facts developed for the first time at the last hearing. On the former trials the case proceeded on the theory that all of the work sued for was done under contracts made before the establishing of “Board rates." It now appears that some of the work was done after the completion of the contract work, and subsequent to the establishing of Board rates.
    I.Where work for the defendant was done under a written contract the Commissioners of the District of Columbia were without authority to increase the compensation by allowing Board rates; but where the contract work had been completed by a contractor before new and additional work was begun, and the new work was begun after Board rates had been established he should recover at those rates.
    II. The power of the District Commissioners to enter into contracts was restricted by the Act SOth June, 1874 (18 Stat. L., 116), to the limitations previously imposed by law on the Board of Public Works; but the Act 16th June, 1880 (21 id., 284), authorized for equitable adjustment in this court, claims arising out of the contracts and extension of contracts, and orders for work by the Commissioners. The history of the legislation and of the previous decisions of the court stated.
    III. Where a contract for the excavation of sand and gravel was fully performed and subsequently the contractor continued the excavation under a verbal agreement with the Commissioners, he was entitled to be compensated for excavating a different material, viz, stiff clay at the rate then established and paid to other contractors for like work.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. Prior to April 29, 1872, the Board of Public Works of the District of Columbia had, by order entered on their records, fixed the price of certain work to be done in the improvement of streets in the city of Washington, among which were the following:
    “For grading from and after January 22, 1872, 30 cents per cubic yard, including the hauling of the earth excavated, not to exceed 200 feet; and for each 200 feet hauled beyond the first 200 feet 1 cent additional per cubic yard.
    “For grading old graveled streets to a depth of 2 feet, 40 cents per cubic yard.”
    And on said April 29, 1872, the said board, as shown by their records, awarded to the claimant herein at the rate, so fixed, among others, a contract of which the claimant was notified in writing about which there is no controversy, and the contract clerk of said-board was directed to prepare the contract accordingly.
    The said clerk prepared a contract designated as Contract No. 264, which wras executed by the parties in these words:
    “This contract, made and concluded this twenty-ninth day of April, in the year one thousand eight hundred and seventy-two, by the Board of Public Worles of the District of Columbia of the first part and Elias E. Barnes, of Washington, D. C., of the second part, witnessoth:
    “First. That the said party of the second part has agreed, and bjr 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 a good, firm, and substantial manner to grade D street south, from Fourth street east to New Jersey avenue, in the city of Washington, D. C.; also to grade North Carolina avenue from Fourth street east to New Jersey avenue, in the city of Washington, D. C.
    “Also to construct, with the necessary manholes, an eighteen (18) inch pipe sewer from Providence Hospital, at the corner of said D and Second streets SE., through the Government reservation at the intersection of D street SE. and North Carolina avenue, to the main sewer on said D street SE.; also, so soon as the connections of said sewer, as above, are made and completed, to take up and remove the old brick sewer now down and through said Government reservation, the work of said grading and sewering to be executed, in every respect, in conformity with the specifications following, to wit:
    •Jr -a■ -ft •ft *ft -ft -ft
    “Second. It is further agreed that said partir of the first part shall appoint, from time to time, such person or persons as may be by said party deemed proper, to inspect the material to be furnished and the work to be done under this contract, and that such person or persons shall have anjT and all opportunity and privileges which majr be necessary to enable them to faithfully make the inspection aforesaid.
    “Third. It is further agreed that the work under this contract shall bo commenced on or before the fourth day of May, one thousand eight hundred and sevent3'--two.
    “Fourth. It is further agreed that the said party of the first part may, on notice to the party of the second part, suspend work under this contract; but if not suspended it shall be completed within ninety daj^s from the date fixed for its commencement, and that the said work shall not be sublet without the consent in writing of the said party of the first part. And any subletting or assignment without such consent shall work a forfeiture of this contract.
    * * * * * «• -X-
    “ 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 to individuals, property, or otherwise, on the line of the work or adjacent thereto shall be sustained by the said contractor.
    •X- ' -X- -X- -X- * -X- -X-
    “ Eighth. And it is further agreed that partial payments shall be made bjr the duly authorized financial agent of the said party of the first part on the monthly estimates of the chief engineer of the Board of Public W orks 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 further expressly agreed that no money shall become due and pajrable 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 herein-before 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 be 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, under direction of the board, otherwise than upon the estimates of the engineer, as provided above, if, in the opinion of the board, the vigorous prosecution of the work will be promoted thereby.
    * * * * * -x- *
    “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:
    “ Grading, thirty (30) cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding two hundred (200) feet, and one cent additional per cubic yard for every two hundred (200) feet beyond the above.
    “ Eighteen (18) inch pipe, per lin. f’t, $1.62.
    IJanlioles:
    6 ft deep or under... S31 68
    Over 6 ft deep and not more than 8 ft deep. 42 24
    “ 8 “ 11 “ “ “ “ 10 “ “ 52 80
    “ 10 “ “ “ “ “ “ 12 “ “ 63 36
    “ 12 “ “ . 73 92
    “ Excavation and refilling, forty (40) cents per cubic yard, to be measured in excavation only.
    “Taking up and removing old brick sewer.
    “Which said sums or prices the said party of the first part shall pay to the said party of the second part as herein provided.
    “Eleventh. It is further agreed that the measurements shall be made by the engineer of the board or his assistants. * * *
    II. That by mistake in the drafting of said contract the rate of 40 cents for grading old gravel streets to a depth of 2 feet ivas omitted therefrom; that said Board of Public Works and said claimant, by mutual mistake, executed said contract without observing said omission.
    III. That under and pursuant to said contract the claimant' excavated on North Carolina avenue, to bring said street to the then established grade, 32,739 cubic yards, and on D street — both in said city — about 4,267 cubic yards of excavation, which work was completed about August 22, 1872.
    IV. In September, 1873, the Board of Public Works increased the price for hauling earth from 1 cent per cubic yard for 200 feet to li cents per cubic .yard for 100 feet of hauling beyond the first 200 feet, and made said rate applicable to all work done after Januai’y 1, 1873.
    V. Thereafter, in 1874, the Commissioners of the District of Columbia established a new grade for North Carolina avenue and directed the claimant to further excavate said street, in order to conform the same to the newly established grade, with the understanding and agreement, verbally made, that the claimant should be paid therefor the then existing board rates in certificates, convertible into bonds of the District of Columbia bearing interest at the rate of 3.65 per cent.
    YI. That subsequent to the execution of said contract No. 264, set forth in the first finding herein, said claimant entered into other contracts with the Board of Public Works and the Commissioners of said District, the first of which was effected bjr said board and the residue by the Commissioners, designated as extensions of said contract No. 264, in these words:
    
      iiFwst extension. — 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 setting of curbstones and the laying and putting down of brick foot pavements on North Carolina avenue, between New Jersey avenue and Fourth street SE., in the city of Washington, D. C.
    “Also the setting the curbstones and the laying and putting down of the brick foot pavements on D street SE., between New Jersey avenue and Fourth street SE., in the city of Washington, D. C.
    “Also the gravelling of said D street SE., between Sixth and Seventh streets SE., in the city of Washington, D. C.
    “Also the gravelling of the carriageway of North Carolina avenue from Pennsylvania avenue to New Jersey avenue, in the city of Washington, D. C.
    “Also the grading, the setting of curbstones, and the laying and putting down of the brick foot pavements on D street SE. from Fourth to Sixth street SE., and the terracing of said D street SE. from Second to Fourth street SE., in the. city of Washington, D. C.
    ‘ ‘Also the grading of E street SE. from Second to Sixth streets SE., in the city of Washington, D. C.
    “The said work to be paid for at board rates for said work, and to be begun and completed immediately, and said work to be executed in every respect in conformity with the accompanying specifications.
    
      “ Witness our hands and seals the twenty-first day of May, A. D. 1873.”
    “ Second extension. — For and in consideration of the stipulations hereinafter contained it is agreed by and between the Commissioners of the District of Columbia and Elias E. Barnes that contract No. 264 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, viz:
    “Grade M street south, between 3d street east and James Creek Canal.
    “ It is further agreed that the said Elias E. Barnes 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 issued by the sinking fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20,1874, which bonds shall be accepted and received at their par value.
    “ It is further agreed that the work herein specified shall be completed by the first day of November, 1875, under penalty of forfeiture of all right and title to perform the same.
    “In witness whereof the Commissioners of the District of Columbia, successors to the Board of Public Works, appointed under the act of Congress entitled ‘An act for the government of the District of Columbia, and for other purposes,’ approved June 20, 1874, and the party of the second part to these presents have hereunto set their hands and seals this 19th day of June, 1875.”
    
      “ Tim'd extension. — For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Elias E. Barnes that contract No. 264 in a 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:
    “ Beplace all suitable old material on E street south, between 2nd and 6th streets east.
    “ It is further agreed that the work herein specified shall be completed by the 30 dai^ of Dec., 1875, under penalty of forfeiture of all right and title to perform the same.
    “ It is further agreed that the said Elias E. Barnes 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 issued by the sinking fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value.
    
      “In witness whereof the Commissioners of the District of Columbia, successors of the late Board of Public Works, appointed under the act of Congress entitled ‘An act for the government of the District of Columbia, and for other purposes,’ approved June 20, 1874, and the party of the second part to these presents has hereunto set' his hands and seal this 21st day of December, 1875.”
    VII. That after the chang’e of grade of North Carolina avenue as aforesaid, the claimant excavated 64,573.6 cubic yards, measured by the engineer officers of said District, March and December, 1875, and January, 1876, for which excavation, according to the verbal agreement with the Commissioners aforesaid, the claimant was to receive the rate so established and paid by the Board of Public Works, including 1£ cents per cubic yard for every 100 feet of excavation hauled beyond the first 200 feet, which was to be paid in bonds of the District of Columbia as aforesaid.
    VIII. That subsequent to the execution of said contract No. 264, and before the Commissioners of said District had directed the claimant to proceed to a further excavation of North Carolina avenue to bring it to the new grade so established by said Commissioners, the Board of Public Works had established by payment to several contractors — i. e., four or five — for like work, the rate of 60 cents per cubic yard for stiff-clay excavation, which the court finds was a reasonable price therefor.
    IX. That under said contract No. 264 and the extensions thereof, and as re-formed by the insertion of the omitted rate for old gravel streets and the additional for clay excavation, and the extra work performed under the verbal agreement of the Commissioners of said District as aforesaid, which work was - accepted by said Commissioners and the District received the benefit thereof, the claimant performed the following work: * * * Amounting to $62,706.49 for work on North Carolina avenue; and to $31,620.44 for work on D street SE.; and to $19,038.62 for work on E street SE.
    X. On July 23, 1872, the Board of Public Works awarded to the claimant another contract, designated as contract No. 413, in these words:
    “This contract, made and concluded this twenty-third day of July, in the year one thousand eight hundred and seventv-two, by and between * * * the Board of Public Works of the District of Columbia, of the first part, and Elias E. Barnes, of Washington, D. C., of the second part, witnesseth:
    “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 a good, firm, and substantial manner to grade, set the curbstones, and lay and put down the brick foot pavements on Second street east, between Maryland and Virginia avenues; on Third street east, between Maryland and Virginia avenues, and on Fourth street east, between Maryland and Virginia avenues, and on Fourth street east between Maryland and Pennsylvania avenues, in the city of Washington, D. C. Also to construct a fifteen (15') inch pipe sewer on the west side of said Second street east between East Capitol street and Pennsylvania avenue, with the necessary manholes and traps; the work of said grading, curbing, brick paving, and sewering to be done and completed in accordance with the specifications following, to wit:
    * * -X- -X- -X- -X- -X-
    “ Sixth and eighth. [Same as sixth and eighth in contract No. 264.]
    * -X- -X- -X -X- -» -X-
    “ 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:
    “Grading, thirty (30) cents per cubic yard, including the first two hundred (200) feet of hauling.
    “For every additional two hundred (200) feet of hauling per cubic yard, one (1) cent.
    ‘ ‘ Setting curbstones (new 8") per lin. ft., forty (40) cents.
    “ “ ( “ 6") “ “ “ thirty (30) “
    “ “ ( “ 5") “ “ “ twenty-five (25) cts.
    “Resetting “ (old 4") “ “ “ fifteen (15) cents.
    “Laying brick pavement, new, per sq. y’d, eighty (80) cents.
    “Relaying brick pavement, old, per sq. y’d, twenty-five (25) cents.
    “Provided, that bricks shall be furnished by the board at a price not exceeding eleven dollars and fifty ($11.50) cents per thousand.
    “Fifteen (15"'' inch pipe per lin. ft., $1.33.
    
      “Six (6") inch pipe “ “ “ thirty-six (36) cents.
    Manholes—
    6 feet deep or under. 831 68
    Over 6 feet deep and more than 8 feet. 42 24
    “ 8 “ “ “ “ “ 10 “ . 52 80
    “ 10 “ “ “ “ “ 12 “ . 63 36
    “ 12 “ “ . 73 92
    Traps—
    Old corporation patterns. 145 38
    Chase's pattern. 114 68
    “Which said sums or prices the said party of the first part shall pay to the said party of the second part, as herein provided.
    “Eleventh. It is further agreed that the measurements shall be made by the engineer of the said party of the first part or his assistants.”
    At the time said contract was awarded the contract clerk of said board notified the claimant in writing, about which there is no controversy, that said contract had boon awarded to him at board rates, but the court finds that the evidence fails to show that the board awarded said contract at said rates, or at any other rates than those set forth in the contract aforesaid, or that any mistake was made in the omission therefrom of the rate for old gravel streets.
    XI. That subsequent to the execution of said contract No. 413 the claimant entered into other contracts with the Commissioners of said District, known as extensions thereof, in these words:
    
      “First extension. — For and in consideration of the stipulations hereinafter contained it is agreed by and between the Commissioners of the District of Columbia and Elias E. Barnes that contract No. 413 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:
    “Grade 3d street east, between Virginia avenue and Eastern Branch; N street south, between 2nd and 4th streets east; M street south, between 2nd and 4th streets east, and reset the curbs and relay the brick foot-pavements on said streets where ordered by the engineer of the D. C.
    “It is further agreed that the said Elias E. Barnes shall receive the price established and paid by the board of public works for work of similar character, provided payment shall be made In the bonds issued by the sinking fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved Juno 20,1874, which bonds shall be accepted and received at their par value. * * *
    
      ‘! Second extension.- — (Memorandum in red ink:) Cancelled so far as relates to cobblestone pavement on M st. south, bet. S. Cap. st. and 4£ street west, and bet. New Jersey ave. and 4th street east. (See extension same No. 413.)
    “ For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Elias E. Barnes that contract No. 413, 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:
    “Set the curbs and lay the brick sidewalks on M street south, between 2nd street west and 4th street east, according to specifications.
    “Also grade, set the curbs, lay the brick pavements, and lay and put down the 12-inch pipe sewers where ordered on C street south, from 2nd street east to South Capitol street, according to specifications. All suitable old material to be replaced.
    “ Also laj' cobblestone pavement on M street south, between 4i street west and 4th street east.
    “ It is further agreed that the work specified to be done under this agreement shall bo completed by the first day of November, 1875; and if- not so completed by said date the party of the second part hereto shall forfeit all right and title to perform the work herein described.
    “It is further agreed that the said Elias E. Barnes shall receive the prices established and paid by the board of public works of the District of Columbia for work of similar character; provided that payment be made in the bonds issued by the sinking fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value. * * *
    “In witness whereof the Commissioners of the District of Columbia, successors to the board of public works, appointed under the act of Congress entitled ‘An act for the government of the District of Columbia, and for other purposes,’ approved June 20, 1874, and the party of the second part to these presents have hereunto set their hands and seals this 19th day of August, 1875.”
    
      “T/di'd extension. — Eor and in consideration of the stipulations hereinafter contained, it is agreed by and between the. Commissioners of the District of Columbia and Elias E. Barnes that contract No. 413, 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 according to specifications hereunto annexed, to wit:
    ‘ ‘ Lay and put down Belgian granite-block pavement on the carriageway of 3d street east, between D street south and Virginia avenue, and the blue-rock pavement on 3d street east, between Virginia avenue and N street south, and gravel the roadway of D street south, between New Jersey avenue and 6th street east; grade and relay the old material on C street south, between 2d and 3d streets east. Also grade, set the curbs, and lay brick pavements on D street south, between New Jersey avenue and South Capitol street.
    “It is further agreed that the work specified herein shall be completed by the 30th day of November, 1875, under pen-alt_y of forfeiture of all right and title to perform the same.
    “It is further agreed that the said Elias E. Barnes 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 issued by the sinking fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value. ”
    
      “Fourth extension. — Eor and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Elias E. Barnes that contract No. 413, 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 terms, to wit:
    “Lay and put down blue-stone pavement on the carriageway of M street south, between South Capitol street and 4i street west, and between New Jersey avenue and Fourth street east (this work is in lieu of cobblestone pavement on said street between the points named).
    “ It is further agreed that the work herein specified shall be completed by the 30th day of December, 1875, under penalty of forfeiture of all right and title to perform the same.
    “It is further agreed that the said Elias E. Barnes 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 issued by the sinking fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value.”
    XII. Under said contract 413 and the several extensions thereof set forth in the preceding finding, the claimant performed the following work on C street southeast and M street southwest at the prices hereinafter named — that is to say: C street southeast — contract 413. * * * Amounting- to §11,894.37; M street southwest — contract 413. * * * Amounting- to §50,084.65.
    XIII. At the time of the award of said contract 413 the established grade of Third street, between Pennsylvania avenue and Virginia avenue, required the excavation of 7,078 cubic yards of earth, which was completed in 1873.
    That by reason of the change of grade of North Carolina avenue by the Commissioners in 1874, as hereinbefore set forth, it became necessary to further grade said Third street to conform to the new grade so established; and under the terms of said contract 413 and the extensions thereof, and by the direction of said Commissioners, and with the agreement and understanding- that said Commissioners would pay him the board rates for the extra excavation and for the haul in 3.65 per 'cent bonds of said District, as set forth in finding 5, the claimant performed the following work on Third street, to wit: Third street — contract 413, §56,658.95.
    The excavation and haul mentioned in items 21 and 24 were for work done in 1874 and thereafter under the direction and verbal agreement of the Commissioners of said District as aforesaid, which "work was accepted by said Commissioners, and the District received the benefit thereof.
    XIV. The claimant also did the following work by order of the board of public works, but not under written contract, admitted by defendant to be correct and of which defendant received the full benefit, amounting to §4,134.94.
    XV. Said Barnes also, in pursuance of his several contracts with the defendants and the several extensions thereof, dressed and joined old curb to amount in value, at regular prices, of §2,643.48, as stated m the first paragraph of his amended petition filed and allowed April 14, 1887. Conceded by defendant.
    XVI.
    The claimant has received payments on account of the wort herein elsewhere mentioned aggregating.$178, 949.57
    And materials of the value of. 22,748.11
    Also sand of the value conceded.■. 350.00
    202, 047. 68
    
      XVII. Counterclaim. — 1. Under said contract 413, for work done after January 1,1873, but prior to the extra work performed under the verbal agreement between the claimant and the Commissioners of said District as set forth in finding-13, on that part of Second street between 'Pennsylvania and Maryland avenues included in the original written contract, but not in any extensions thereof, partial measurements were made by the engineer and certified to the auditor, and in the certificate were the following quoted items among others:
    “5,539 cubic yds. grading, 30 cts. per yard;
    “9,886 cubic yds. excavation hauled 2,300 feet over 200 ft., at 1 ct. per yard per 200 feet over 200 feet,”
    which was the written contract rate.
    Partial payment was made by the board of public works in accordance therewith September, 1873.
    On final measurement the board of audit restated the whole account March 19,1875; allowed 40 cents a 3Tard for said grading, which exceeded the amount at written contract rates by $553, and allowed li- cents per yard for said haul per 100 feet over 200 feet, which exceeded the amount at written contract rates by $1,705.33, and payment was made accordingly.
    2. Under said contract 413, said Barnes, after January 1, 1873, but before the verbal agreement between him and the Commissioners for the extra work set forth in said finding-13, did other work on Second street between Pennsylvania and Virginia avenues, included in said original contract and not in any extension thereof. In the certificate of final measurement, made January 9,1874, the following, among others, appeared:
    ‘ ‘ 8,400 cubic yds. grading, 40 cts., which in amount exceeded that at written contract rates in the sum of $840;
    “19,566 cubic yds. excavation hauled 2,400 feet over 200 ft., li cts. per yard per 100 ft. over 200 ft.,”
    which in amount exceeded that at written contract rates by the sum of $3,521.88, and partial payments were made by the board of public works.
    Subsequently, March 19, 1875, the board of audit, after deducting- the partial payments referred to, made final payment of the balance, in accordance with said statement.
    
      3. Under said contract 413, said Barnes, after January 1, 1873, and prior to the verbal agreement between him and the Commissioners, set forth in said finding 13, did other work on Third street between Pennsylvania and Maryland avenues, included in the original contract, but not in any extension thereof. Final measurement and certificates were made and paid October 8, 1873, by the board of public works, in which the following quoted items appear, among others:
    “7,010 cubic yds. grading, 40 cts. per yard,” which in amount exceeded that at written contract rates b3r the sum of §701;
    “15,141 cubic yds. excavation, hauled 2,400 cubic yards, 1¿ cts. per yard per 100 ft. over 200 ft.,”
    which in amount exceeded that at original written contract rates by the sum of §2,725.38.-
    4. Under said original contract 413, said Barnes, after January 1, 1873, and before the verbal agreement for the extra work between him and the Commissioners as set forth in said finding 13, did other work on Fourth street east between Pennsylvania and Maryland avenues, included in the original written contract and not in any extension thereof. Final remeasurement was’made and certified October 10, 1873, and the full amount paid in accordance therewith by the board of public works November 12,1873, in which the following items appear:
    “ 7,000 cubic yds. grading, 40 cts. per yard,” which in amount exceeded that at written contract rates by the sum of §700;
    “10,192 cubic yds. hauled 3,000 feet over 200 feet, li cents per yard per 100 ft. over 200 ft,”
    which in amount exceeded that at written contract rates by the sum of §2,293.20.
    XVIII. November 17,1877, said Barnes assigned to Samuel J. Ritchie §6,000 of what might be duo from the District to said Barnes, and June 28, 1878, he assigned the further sum of §5,000, and Januarjr 16, 1879, the further sum of §1,000, aggregating §12,000, as conceded by the parties without controversy.
    
      Upon the foregoing findings of fact the court decided as conclusions of law:
    1. That contract 264 be, and the same is hereby, re-formed so as to incorporate therein the rate of 40 cents per cubic yard for old gravel streets to a depth of 2 feet to conform to the intention of the parties as set forth in finding 2.
    2. That by reason of the facts set forth in finding 10 the claimant is not entitled to a reformation of contract 413 in respect to said rate for old gravel streets.
    3. That the claimant is entitled to be allowed on findings 9, 12, 13, 14, and 15 the sum of $238,781.94, less the sum of $202,047.68 heretofore paid said claimant, leaving a balance in his favor of $36,734.26.
    4. The defendants must be allowed for the overpayments above those agreed upon in the written contracts as stated in finding 17 the sum of $13,039.79.
    5. On the whole case, after deducting the one from the other sum, the claimant is entitled to judgment against the defendants for the difference, being $23,694.47, due and payable March 1, 1876, of which sum there shall be paid to said Samuel J. Ritchie, assignee as aforesaid, as agreed by said claimant, and which is hereby ordered, the sum of $12,000.
    
      Mr. John O, Fay for the claimant. Mr. J. W. Po^iglass and Mr. Samuel A. Putrnam were on the brief.
    
      Mr. Robert A. Howard (with whom was Mr. Assistant Attorney- General Pradt) for the defendant.
   Peelle J.,

delivered the opinion of the court:

This action is founded upon the act June 22, 1880 (1 Supp. Rev. Stat., 562), known as the District of Columbia claims act, and grows out of two written contracts, Nos. 264 and 413, entered into by the claimant with the board of public works of said District, April 29 and July 23, 1872, as authorized bjr the act of February 21, 1871 (16 Stat. L., 427), and also upon verbal agreements entered into in 1874 and thereafter with the Commissioners of said District.

Prior to the execution of the contracts, to wit, September 26, 1871, the board of public works, by entry or memoranda on their records, had fixed the price of grading for old gravel streets to a depth of 2 feet below the surface at iO cents per cubic yard; January 22, 1872, 30 cents per cubic yard for grading, including the hauling of the excavated material, not to exceed 200 feet, and for each additional 200 feet 1 cent additional per cubic yard beyond the first 200 feet.

And after the execution of said contracts, to wit, July 15, 1873, said board of public works, by like entiy, fixed the price of hauling excavated material at 1J cents per cubic yard for every 100 feet hauled over the first 200 feet since June 1, 1873; and thereafter, by like entry September 27, 1873, the board made said rate applicable to “all work done since Jan-' nary 1, 1873.”

Contract 264 was awarded to claimant by the board, as set forth in their records, at the rates so established, of which the claimant was notified; but by mistake in drafting the contract the rate of 40 cents for grading old graveled streets to a depth of 2 feet below the surface was omitted therefrom, and the board of public works and the claimant, by mutual mistake, executed the contract without observing said omission.

Though the rate of 40 cents for old graveled streets was fixed prior to the date of the execution of contract 413, and though the clerk'of the board notified claimant that said contract had been awarded to him at board rates, no entry was made by the board on their records to that effect, and as no mutual mistake is otherwise shown in that respect the claimant is not entitled to a re-formation of contract 413.

But as to contract 264, wherein the records of the board show that the same was awarded at board rates, and by mutual mistake the rate of 40 cents for old graveled streets was omitted therefrom, the claimant is entitled in that respect to a re-formation of his contract, and the same is decreed accordingly.

By the terms of the contracts aforesaid the claimant agreed to furnish at his own cost and expense all the necessary materials and labor, and among other things to grade the streets therein named, including North Carolina avenue, as stated in contract 264, at the price of 30 cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding 200 feet, and 1 cent additional per cubic yard for every 200 feet hauled beyond that distance, and 40 cents per cubic yard for old graveled streets to a depth of 2 feet, as provided by said contract 264 so re-formed.

Although the rates thus fixed by the board, at 40 cents per cubic yard for old graveled streets and li cents per cubic yard for every 100 feet hauled over 200 feet, were not made a part of contract 413, the claimant was paid said rates for the work done thereunder as set forth in the counterclaim, and for the difference between the rates so paid and those specified in the original written contract the defendants interposed their counterclaim.

In the former trial of the case the controversy was as to the quantity and classification of the excavated material on North Carolina avenue, and as to whether the prices specified in the written contract should control. On the issues thus joined the.case was tried and findings of fact and conclusions of law thereon were filed, together with an opinion by the late Chief Justice Richardson, which resulted in a judgment on the counterclaim in favor of the District of Columbia for $11,264.58. (22 C. Cls. R., 366.)

On the question as to whether the court can “enforce claims founded upon these memoranda of the board of public works,” and whether the board can legally pay the rate so fixed, the court said: “In the numerous cases which have been before us under the District claims act we have uniformly and unanimously held otherwise.” The numerous authorities in support of that statement are cited.

It was further said in the opinion, “ when a statute provides how contracts by public officers shall be made, an entire or material departure from such requirements, though sufficient at common law to bind the parties, renders the proceedings void and of no effect as obligations on either side. It has been so decided by the Supreme Court in the South Boston Iron Company case (118 U. S., 37), affirming the judgment of this court (18 C. Cls. R., 165). In that case the statute passed upon by the court is in language much less mandatoiy than the one we are now considering, and there were offers and. acceptances in writing, signed separately bjr the parties, but the court held that they did not constitute a contract within the terms of the statute.”

In the findings filed at that time only 63,816 cubic yards of grading was found to have been done on North Carolina avenue, although the four separate measurements made by the engineer officers of the District of the excavation therein as set forth in items 13, 15, 18, and 20 show that the claimant excavated 97,366 cubic yards, of which 61,573 cubic yards, as shown in finding vii, were excavated under the verbal agreement with the Commissioners of the District that the claimant should be paid the board rates therefor; and the agreement thus made was after the claimant had performed his original contract, 261, in excavating about 32,793 cubic yards to bring North Carolina avenue to its then established grade.

At the former hearing the claimant was denied the rate of 60 cents per cubic yard for the excavation of stiff clay on North Carolina avenue on the ground, as stated in the opinion of the court, that “the stiff clay, which is one kind of earth, rendered the grading in some places, no doubt, more difficult than it would have been had the earth been of a lighter material, but by the sixth article'of contract 261 it was agreed, among other things, that all loss arising out of the nature of the work to be done, or from any unforeseen obstructions or difficulties encountered in the prosecution of the same, should be sustained by the contractor.'1

That ruling was baseid on the finding then made that the stiff-clay excavation was done at the written contract rate of 30 cents per cubic yard, the contractor agreeing to sustain any unforeseen obstructions or difficulties encountered in the prosecution of the work; but as the excavation of the stiff clay was done under the verbal agreement with the Commissioners in 1871, long after the claimant had performed his original contract 261, he is entitled to the rate therefor then established and paid to other contractors for like work, as set forth in finding vm, which rate we find was reasonable and allow, as set forth in item 26, finding ix.

We have also added to the former finding of work done on North Carolina avenue the excavation under the sidewalks and carriageway, including the haul of the excavated material at li cents for every 100 feet hauled, as set forth in item 27, finding ix.

In respect to work done on D street, the original contract 261 required the excavation of about 1,267 cubic yards to bring that street to the then established grade, which work was completed in August, 1872, as set forth in finding in.

Nearly two jmars later, and after the Commissioners had established the new grade for North Carolina avenue, as aforesaid, it became necessary to further grade D street to bring it to the new grade, and the claimant, with like verbal agreement with the Commissioners, performed said additional work, for which he was only allowed the rate of 1 cent per cubic yard for every 200 feet of haul, and he now claims under said verbal agreement ivith the Commissioners the board rate of li cents per cubic yard for every 100 feet of haul, which we allow, as set forth in item 5, finding ix.

And in addition thereto the claimant is entitled under the re-formation of his contract to the rate of 10 cents per cubic yard for the old gravel excavated in said street, as set forth in item 2, finding ix.

In regard to the work performed on Third street, the original contract 113 required, to bring said street to its then established grade, the excavation of about 7,078 cubic yards, as set forth in finding xiii, though some additional grading was done thereon under the written extensions of said contract at board rates, as therein provided for, which were allowed.

The change of the grade of North Carolina avenue also necessitated additional excavation in Third street to bring it to the new grade so established by the Commissioners in 1871, and under the direction of said Commissioners, and with the like verbal agreement as set forth in finding xiii, the claimant further excavated Third street, taking therefrom 22,218.83 cubic yards, for which he was, in the former findings, allowed but 1 cent per cubic yard for the haul of 200 feet, instead of the board rate of 1-]- cents per cubic yard agreed to be paid, and which he is now allowed, as, stated in item 21 of said finding xiii.

As we have denied the claimant’s prayer to re-form contract 413 in respect to the rate of 10 cents' for old graveled streets, for the reason set forth above, the claimant is allowed only the written-contract rate of 30 cents therefor, except where the written extension of said contract provided for board rates, in which case they are allowed, as indicated in the several findings.

We have thus stated tbe differences between tbe findings heretofore filed and the findings now filed.

On the former trial the court proceeded upon the theory that all the work done was under the written contracts and the written extensions thereof, and upon that theory the law of the case is correctly stated in the opinion of the court, for the reason that both contracts were entered into by the claimant with the board of public works under the act of February 21, 1871, section 37 (16 Stat. L., 427), providing, among other things, that “ all contracts made by the said board of public works shall be in writing, and shall be signed bj7 the parties making the same, and a copy thereof shall be filed in the office of the secretary of the District; and said board of public works shall have no power to make contracts to bind said District for the payment of any sums of money except in pursuance of appropriations made by law, and not until such appropriations shall have been made.”

As that act required all contracts made b3r the board to be in writing, “signed by the parties making the same,” it follows that the board had no power to authorize'work to be done at prices fixed b}r them which were merely entered on the records of their office.

Where such prices were agreed to be paid, the act required that the contract embodying the same be reduced to writing and signed by the parties, and in several extensions of the contracts that course was pursued, as shown in findings vi and xi.

Under that act, as rightly construed by the court, “the board of public works was a body of limited jurisdiction, with their method of making contracts expressly defined and the contracts themselves limited to appropriations made by law.”

Hence the entry in the journal or other record of the board fixing rates could not affect the rates fixed in a written contract.

Such was the ruling by the Supreme Court in the case of Barnard v. District of Columbia (127 U. S., 409, 411), wherein it was said, “the entry in the journal of the board was no part of the contract with the claimant, nor could it in any respect control the construction or limit the effect of such contract. The board could not in-that way either make a new contract or alter the one previously made so as to bind the District.”

And in the case of Eslin (29 C. Cls. R., 370, 393), in respect to the same question the court said:

“This question has been so fulty discussed in the recent opinion of the chief justice, in the case of Barnes v. District of Columbia (22 C. Cls. R., p. 366), that it is unnecessary to go over the ground again. We hold in these cases, as we held there, that these orders of the board of public works do not change the written contracts between the parties made before the orders were issued, and much less contracts made thereafter.
“The plaintiff coming into court for a final settlement with the District,- and having received public money to which he had no legal claim, must be held liable to refund it.”-

And so in that case it was held that the District could recover back the overpayment, as was held in the present case, to which ruling the court adheres in respect of the counterclaim, for the reason that the overpayments upon which the counterclaim is based were payments in excess of the rates fixed by the written contract under which the work was done.

But, as we now find that the additional work of excavation and consequent hauling were done by the claimant under the verbal agreement with the Commissioners of the District and the work accepted as set forth in the findings, the question is, Had the Commissioners the authority so to contract in respect thereto ?

By the provisions of the act of June 20, 1874, section 1 (Stat. L., 116), it was provided “that all provisions of law providing for an executive, for a secretary for the District, for a legislative assembly, for a board of public works, and for a Delegate in Congress in the District of Columbia are hereby repealed,” except as to the term of office of the Delegate then in Congress.

By section 2 of said act it was provided—

“That the President of the United States, by and with the advice and cons.ent of the Senate, is hereby authorized to appoint a commission, consisting of three persons, who shall, until otherwise provided by law, exercise all the power and authority now lawfully vested in the governor or board of public works of said District, except as hereinafter limited, wbo shall be subject to all restrictions and limitations now imposed by law on said governor or board, * * * but said commission, in the exercise of such power or authority, shall make no contract, nor incur any obligation other than such contracts and obligations as may be necessary to the faithful administration of the valid laws enacted for the government of said District, to the execution of existing legal obligations and contracts, and to the protection or preservation of improvements existing or commenced and not completed at the time of the passage of this act.” * * *

Under the provisions of that act it would seem that the Commissioners of the District were limited in the exercise of their authority to the restrictions and limitations imposed by law on the governor and the board of public works, and they were thereby prohibited in the exercise of their power from making contracts or incurring any obligation otherwise than as there stated.

However, by the act of June 16, 1880 (21 Stat. L., 284), being the act providing for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear and determine the same, and for other purposes, it was, among other things, provided by section 1, “That the jurisdiction of the Court of Claims is hereby extended to, and it 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, and extension thereof made by the Commissioners of the District of Columbia;
“And such claims as have arisen out of contracts made by the District Commissioners since the passage of the act of June twentieth, eighteen hundred and seventy-four;
“ And of all claims for work done by the order or direction of the said Commissioners, and accepted by them for the use, purposes, or benefit of the said District of Columbia, and prior to the fourteenth day of March, eighteen hundred and seventjr-six;”

It will thus be observed that three classes of claims are recognized by the act conferring jurisdiction upon the court.

(1) All claims against the District arising out of contracts made by the board of public works, and extensions thereof made by the Commissioners of the District;

(2) All claims arising out of contracts made by tbe Commissioners since the passage of the act of June 20, 1874, and

(3) All claims for work done by the order or direction of the said Commissioners, and accepted by them for the use, purposes, or benefit of the District prior to March 14,1876.

It will thus be seen that the Congress recognized claims for work done “by the order'or direction Of the said Commissioners,” where the work had been accepted by them for the use and benefit of said District prior to March 14, 1876.

And this view of the law is in harmony with the decision in the case of Campbell and Eslin v. The District of Columbia (18 C. Cls. R., 193), wherein it was held, in substance, that where contracts were made and work completed under them a subsequent order of the board of public works, establishing for such work higher prices, would not apply to work done under such preexisting contracts.

But where there was a revival of the contracts after the work under them had substantially been completed and such revived contracts appty to distinct work, subsequent to the raising of the rates for like work, a contractor was held to be entitled to the benefit of the increased rate for such subsequent work. (See authorities there cited.)

In the present case there does not appear to have been, in terms, a revival of the written contracts, but the verbal agreements on the part of the Commissioners of the District were that for the new or additional work done by the claimant he should be paid the rates therefor established and paid by the board of public works; so that whether the work be regarded as having been done under the contracts as revived or under the verbal agreement of the Commissioners, as set forth in findings, the claimant, in either event, is entitled, under the provisions of the act of 1880, to the benefit of the rates so established and promised to be paid for the new or additional work performed by him.

Therefore the claimant is entitled to recover on the whole case, after deducting the amount heretofore paid him from the amount shown by the findings to be due, less the counterclaim in favor of the defendants for §13,039.79, the sum of §23,694.47, for which latter amount judgment will be entered, and of which judgment there shall be paid to Samuel J. Ritchie, assignee, as agreed by s&id claimant and which is hereby ordered, the sum of twelve thousand dollars (<5>12,000).

The judgment heroin rendered against the District of Columbia is due and payable March 1, 1876, within the meaning of the provisions of section 6 of the act of June 16,1880, chapter 243.  