
    COLUMBUS J. ESLIN, ADMINISTRATOR, v. THE DISTRICT OF COLUMBIA. OSCEOLA C. GREEN v. THE SAME. WILLIAM M. GALT v. THE SAME. SAMUEL J. RITCHIE v. THE SAME.
    [Nos. 375, 280, 162, and 150.
    Decided October 31, 1887.]
    
      On the Proofs.
    
    The claimant was paid at Board rates in excess of his contract rates; and ■ the questions presented are for the most part identical with those decided in the preceding case of Barnes, and in a number of cases reported in 17, 18, 19, and 20 C. Cls. R.
    I. Thb orders of the Board of Public Works, increasing rates, did not affect written contracts made before the orders were issued, much less contracts made thereafter.
    II. In a final settlement the District must be credited with all money actually paid; and where work was never fully settled, all payments were in effect partial payments.
    HI. Where a contract prescribed 30 cents a cubic yard for all grading, a contractor can not recover 40 cents for a particular kind of grading, though allowed by previous regulations of tho Board.
    IV.The words in a printed blank, on which a contract was drawn, “grading of all old graveled streets-per cubieyard,” left unerased, can have no effect given to them.
    V.Where no express contract existed for a portion of the work, a payment in excess of contract rates will not be disturbed.
    VI.An assignor is not chargeable with overpayments to his assignee which he neither authorized nor received.
    VII.A contractor of the District could not assign balances due to him on some contracts so as to escape the set-off of balances then existing on other contracts in favor of the District.
    
      The Reporters’ statement of the case:
    These cases were referred • to Daniel Donovan, esq., referee, and were heard together on exceptions to his report. The court, however, disregarded the report and filed findings of fact.
    Regulations and extracts from the minutes of the Board of Public Works and certain official letters are set forth in the findings in these cases, but are identical with those set forth in extenso in Finding II in the preceding case of Barnes. The principal contract in this case, No. 243, was on the same printed blank, and in the same words as the contract set forth in Finding I in the Barnes case. The multiplicity of contracts, parties, and payments in these cases threw an immense amount of work upon the judge who delivered the opinion and prepared the findings 5 but the statements of conflicting claims and accounts do not present any legal question, and those facts which do present legal questions are clearly and fully set forth in the opinion of the court. The only new questions of law presented by the case are involved in the following findings of the court:
    IX. Contract No. 690. — May 20, 1873, the contract clerk was ordered by the Board of Public Works to prepare a contract with Daniel A. Connolly, for grading, setting curb, and laying the sidewalks on B street north, from Delaware avenue to First street east, and on First street east, from B street north to B street south, work to be completed in thirty working days, and the dirt to be deposited in the reservation at foot of Capitol. A contract was prepared and, although bearing-date as of May 20, 1873, appears not to have been executed until November, 1873, as the records of the Board of Public Works show that several amendments and modifications of said contract were ordered to be made between May and November, 1873, the last amendment ordered being November 1, 1873, all of which appear in the body of the contract as of May 20,1873. By this contract Connolly agreed to grade, set the curb-stones, and lay and put down the brick foot-jmvements on B street north from Delaware avenue to Second street east; also to grade the carriage-way, set the curb-stones, and lay and put down the brick foot-pavements on First street east between East Capitol street and B street north; also to grade the sidewalks on the east side of First street east between A and B streets north. The prices to be paid for doing the work embraced in this contract (Article 10) are as follows: Grading, 30 cents per cubic yard, to include the first 200 feet of haul, and 1 cent additional per cubic yard for every additional 200 feet of haul beyond the first 200 feet for B street and 40 cents per cubic yard for First street, conditions as to haul the same as on B street. For laying brick foot-pavements and setting curb-stones the rates are the same as those specified in other contracts in this cause. •
    It will be observed that the order to draw the contract embraced work on First street east, from B street north to B street south, but, as drawn, only embraced work on First street east, from East Capitol street to B street north, covering two blocks only. The work was, in fact, done from C street north to B street south, covering five blocks. Under what arrangements this additional work was done does not appear. A final measurement of all this work was made December 27,1873, by Assistant Engineer Charles E. Barney. According to this measurement, which is undisputed, 11,100 cubic yards of grading was done on the two blocks named in the contract and hauled 2,800 feet over the first 200 feet. The price of the extra haul was reckoned and paid at the rate of 1¿ cents a cubic yard for each 100 feet, making an excess over the .contract rate of $2,331. On the three blocks, not named in the contract, but measured and paid on the same vouchers, the amount of grading done was 32,193 cubic yards and the extra haul 2,800 feet. The price of extra haul was reckoned at 1J cents for each 100 feet, which was the Board rate, making an excess over the rate prescribed in the contract for the other two blocks of $6,760.53. If the District should be credited with both these alleged overpayments, Connolly has been overpaid in the sum of $9,091.53 less $30.49=$9,061.04. If credited with the smaller sum only, Connolly has been overpaid $2,331 less $30.49= $2,300.51. If credited with neither, there is due the claimant $30.49. These alleged overpayments were made December 31, 1873. The last payment on the contract was made June 1, 1875. ,
    XI. Contract No. 1028. — By this contract, made January 30,1874, the claimant agreed to do certain grading on G street north and Second street east. Belative to payment, the contract contains the following provision :
    
      “ 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 (1) cent per cubic yard for every additional two hundred (200) feet of hauling beyond the first two hundred feet.
    
      u Grading of old graveled streets, for first--feet, per cubic yard,--cents.”
    
      June 2,1874, there was a partial measurement of the work made by the District engineer, and upon it the price of grading isealculated at 40 instead of 30 cents a cubic yard on 3,000 cubic yards, making a difference of $300. If this alleged overpayment is credited to the defendant, there will still be due to the claimant $1,645.09. If not so credited there is due him $1,945.09. This $300 was paid through the Board of Audi t. Last payment made January 1,1876.
    XII. Contract No. 447. — This contract is dated July 12, 1872, and provides for certain grading to be done on Third street east, between Maryland avenue and H street north. The contract provides the following prices :
    Grading, 30 cents per cubic yard, to include the first 200 feet of hauling, and 1 cent per cubic yard for every additional 200 feet of hauling.
    September 20,1872, Connolly applied for a measurement of the grading done by him on Third street northeast, from Maryland avenue to F street, and thereupon a measurement of the same was made by Win. Forsyth, assistant engineer, showing the amount of grading done to October 5, 1872, to have been 17,325 cubic yards, which amount was audited by the auditor of the Board of Public Works at the contract rate, 30 cents per yard, making $5,197.50, for which certificates were issued to Connolly and the account closed on the 7 th day of April, 1873. This account was afterwards opened by the Board of Audit, upon a sworn statement made by Connolly, on the 2d day of November, 1875, that the 17,325 cubic yards had been hauled a distance of 1,700 feet. Assuming this statement to be correct, he was entitled, according to the terms of the contract, to claim $1,299.38 additional compensation. The Board of Audit, however, reckoned the haul at 1^ cents for every 100 feet, making the amount $3,681.56, making an excess over contract rates of $2,382.18.
    This sum of $3,681.56 was paid to Albert Gleason, assignee of Connolly.
    XIII. It does not appear that said Gleason has ever claimed, under his assignment, any of the balances sued upon in this case, nor has the defendant set up the assignment as a defense. It does not appear that Daniel A. Connolly, or his administrator, ever ratified the act of Albert Gleason in receiving over-payments on claims presented to the Board of Audit, or ever received any benefit therefrom.
    
      
      Mr. W. B. King for Eslin.
    
      Messrs. Shellabarger & Wilson for Green and Bitchie.
    
      Mr. George A. King for Galt.
    
      Mr. Edward M. Watson (with whom was Mr. Assistant Attorney-General Howard) for the defendant.
   Scofield, J.,

delivered the opinion of the court:

■ ’..Daniel A. Connolly, in his life-time, had a large number of written contracts with the District of Columbiafor the improvement of the streets-of Washington. His administrator brings this.snit.to .recoyer-alleged balances due on eleven of these . contracts, with their so-called extensions.

In the three other suits, consolidated and tried with this one, the claims are based upon assignments from Connolly of portions of such balances.

The claims of Eslin, administrator of Connolly, as set forth 'in his petition, may be tabulated as follows :

- The balances.claimed upon contracts Nos.'209, 231; and 1035 are admitted to be due, and amount to $244.18. The balance claimed on contract No. 828 is found to have be,en paid. These four contracts, therefore, are taken out of controversy.

The original contract, No. 243, stipulates that the price of grading shall ’be30 cents a cubic yard, including 200 feet- of haul,” and all hauling beyond that, 1 cent for every 200 feet. As the work progressed, partial measurements and payments were made from time to time at these rates. Subsequently, beginning with December 5, 1873, are four partial measurements, on which the extra haul was reckoned at l-J cents for every 100 feet. This change in reckoning makes a difference in favor of the claimant of $8,413.55. The computation was made by the District auditor or engineer, and the three last payments made through the Board of Audit.

The change in the rate of payment was, doubtless, made in pursuance of two orders by the Board of Public Works, as follows :

“July 15, 1873.— Auditor was notified that the price for hauling earth has been established at cents per cubic yard for every 100 feet of haul over first 200 feet, since June 1,1873. Contract clerk so notified.-
“ September 27,1873. — J. C. Lay, auditor, was notified that in settlements of accounts for extra haul, that one and one-quarter cents per cubic yard for each additional 100 feet beyond the first 200 feet for ali work done since January 1, 1873, will be allowed.”

These orders came to be called Board rates.

Did these orders to the auditor authorize, the claimant legally to demand or bind the District to pay more than the written contract provided for?

This question has been so fully discussed in the recent opinion of the Chief Justice in the case of Barnes v. The District of Columbia (ante) that it is unnecessary to go over the ground again.

We held in these cases, as we held there, that these orders do not change the written contracts between the parties made before the orders were issued, and much less contracts made thereafter.

These higher rates having been allowed and paid by the Board of Audit, can the District recover back the excess? That question is also decided in the Barnes case in favor of the District. The question, however, does not properly arise under this particular contract. The work has never been fully settled. All payments made were only partial payments. In any event, there is still a balance due the claimant. The question rather is, whether in a final settlement the District shall be credited with all money actually paid. That it should be so credited we have no doubt.

The same questions arise under contracts Nos. 349, 595,1057-J, 665, and 1028, and must be ruled in the same way.

Additional questions are presented in some of these cases.

On the same voucher some grading is computed at 30 cents and some at 40 cents; some of the extra haul at the contract rate and some at Board rates. This fact, coupled with the fact that the District was not able to cash the auditor’s certificate, is enough, the claimant argues, to support a legal presumption that part of the grading was on old graveled streets, and part of the haul was outside the contract. All the other surrounding facts seem to be adverse to such a presumption. No mention or reference is made of grading on old graveled streets or of work done outside the contract, either in the measurements, computations, or receipts. All are stated as if done under the contract. Even if it could be assumed that part of the grading was done on old graveled streets, it is not at all certain that the claimant would be entitled to recover 40 cents a cubic yard.

It is true that in September, 1871, the Board prescribed the rate of grading old graveled streets to the depth of 2 feet to be 40 cents a cubic yard, but at the same time they prescribed the rate of other grading at 20 cents. In January following they revised the price list and established the average rate of grading at 30 cents, without exception or mention of graveled streets. This contract was made in the following June.

In contract No. 1028 below the clause which fixes the price of grading and haul are these words: “Grading of old graveled streets for first — per cubic yard — cents.” The contract is drawn on a printed blank. No effect can be given to the words quoted. If any inference were to be drawn from them, it would be that no grading on graveled streets was. in contemplation. There is no evidence, unless presumed from the amount paid, that any was done.

Contract No. 690 provided for certain work to be done across two blocks on First street east. The work was done, and a similar kind of work was done at the same time across three additional and adjoining blocks. (Finding IX.) The haul on the whole five blocks was reckoned at Board rates. So far as the extra work was concerned, that was right, but the work on the two blocks named in the contract, according to the foregoing ruling, we have reckoned according to the terms therein prescribed.

Applying these rulings to the facts as found, the following results appear:

On contracts No. 209, 231, and 1035 there is due Connolly....... $244.18

On contract No. 243 and extensions, with the Hussey assignment ....................................................... 936.40

On contract No. 349........................................ 2.51

On contract No. 1028.......................................... 1,645.09

Total........................................r_.......... 2,828.18

Overpayments to Connolly on—

Contracts Nos. 595 and 1057, made January 27, 1875........ $173.35

Contract No. 665, made February 9, 1875 .................. 1,012.37

Contract No. 690, made December 31, 1873 ................. 2,300.51

Total................................................... 3,486.23

Leaving a balance in favor of the District of $658.05.

The additional counter-claim consists of overpayments on contracts No. 447, 527, and 693 made, not to the claimant, but to Albert Gleason, assignee. The assignment does not specify any particular amounts assigned, but only all claims that may be allowed by the Board of Audit. It does not appear that Connolly ever received the money or derived any benefit therefrom. We do not see upon what principle an assignor is chargeable with overpayments which he neither authorized nor received. (United States v. Jones, 8 Pet., 387.)

The counter-claim must be dismissed.

By a careful comparison of the dates of the papers under which the rights of the claimants in cases Nos. 150,162, and '280 originated, with the dates of the overpayments, it appears that Connolly during all that time was indebted to the District. It is true that upon a settlement of some of the assigned contracts balances are now found to have been due to Connolly, but these balances could not be assigned so as to escape the set-off of balances then existing on other contracts in favor of the District.

In the cases Nos. 150, 162, and 280 the petitions are dismissed, and in No. 375 judgment will be entered in favor of the defendant in the sum of $658.05.  