
    TALMADGE E. BROWN v. THE DISTRICT OF COLUMBIA.
    [No. 145.
    Decided April 14, 1884.]
    
      On the Facts.
    
    The B. company, by letter to the Board of Public Works, offer to put down 75,000 yards of pavement at $3.50 per yard. A clerk acting as secretary replies that the offer “ is accepted by order of the board.” It does not otherwise appear that the board so ordered. No formal contract for 75,000 yards is entered into; but from time to time a portion of a street is designated, and the company is required to execute a formal contract for it. The sum of these is less than 75,000 yards. Payments for the work purport to be for work done under the formal contracts. A judgment is rendered upon demurrer in another court upon the same causq of action adverse to the claimant’s assignors.
    I. If it must be inferred from the records and files of the Board of Public Works, that the offer of a contractor to do certain work was in fact never acted-upon by the board, it must be held that an acceptance of the offer by its secretary, though purporting to be “ by order of the board,” was unauthorized, and that do contract resulted therefrom. ’
    ■ II. The-vice president of the Board of Public Works had no authority to-bind the District of Columbia by contract, and no power to order the secretary of the board to accept-the offer of a contractor.
    III. Where a contractor received certificates of indebtedness as evidence of what was due to him, and (they not being paid) went into the market and sold them at current rates less than the face value, he cannot hold the defendant liable for the difference.
    IV. If three parties bring an action in one court and judgment goes against them, and two subsequently assign their interest in the chose to the third, who brings a second action in another court, it is res judicata.
    
    V.Where the contract in the former action is identical with that in the present, and the breach alleged is the same in kind though not in degree, the one being a total breadhin refusing to designate any of the work to be done, the other a partial breach in refusing to designate all, an estoppel arises.
    VI.If a judgment upon demurrer determines the merits of the case the plaintiff can never again maintain against the same defendant or his privies asimilar or concurrent action upon the grounds disclosed by the declaration in the first. .
    
      
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. In December, 1872, and afterwards, there existed a co-partnership called the Ballard Pavement Company, which was composed of William W. Ballard, Edward L. Marsh, and Tal-madge E. Brown, the claimant; and said company had a business office in the city of New York.
    II. In the early part of that month, the said William W. Ballard and the claimant were in the city of Washington; and they had verbal negotiations with Alexander R. Shepherd, then and afterwards a member and vice-president of the Board of Public Works of the District of Columbia; which negotiations led them to write and send to that board a paper, a copy of which is given in the letter signed “ Cha’s S. Johnson, Assistant Secretary,” set forth in the opinion of the court.
    Ill and IY. [Substantially all of these findings will be found ■quoted in the opinion of the court.]
    Y. The said company, after receiving said Johnson’s letter, proceeded to make preparations for laying down wooden pavement on streets in the District of Columbia, and made a contract for three million feet of lumber, estimated by them to be sufficient to make 75,000 square yards of pavement.
    YI. In the spring of the year 1873 the company notified the board, through said Shepherd, that they were ready to proceed with the work of paving streets, and requested that such work would be designated for them to do; but none was designated until the latter part of June or beginning of July, when some parts of streets were designated, and the company entered on the work of paving them. After doing so, and before they were allowed to receive any certificates of measurement showing work to have been done, they were required to enter into a written contract embracing the work, and to give bond for its performance. They at first declined to sign such a contract, claiming that the terms contained in it were different from those of their proposition of December 10,1872; but they afterwards signed the contract numbered 736. [This is in the usual form and its substance is stated in the opinion of the court. |
    YII. After said contract was entered into, other streets or parts of streets were, from time- to time, designated for said company to pave; and four other contracts were entered into between the company and the board, each in the same form as that set out in finding VI, for'the paving of such other streets or parts of streets; and in each case bond, with surety, was given by the company for the due performance of the contract. The said four other contracts were numbered and bore date as follows: No. 838, dated August 12, 1873; No. 900, dated September 15,1873; No. 935, dated October 13,1873; and No. 997, -dated December 9, 1873. All of the five contracts mentioned in this finding and finding VI were entered into by the company, because, unless the same were entered into, the officers of the board refused to furnish the company with official measurements of the work done; and without such measurements the company could neither get payment for the work nor any official written evidence of what was due them on account thereof.
    VIII. From time to time, as the company completed work, they obtained measurements thereof, made and certified in writing by the engineer of the board. Bach certificate of the engineer stated the location, character, quantity, and price of the work done, and the number of the contract under which it was done; and the following is the form used in making such certificates :
    “I hereby certify that I have measured and inspected the work done by Ballard Paving Co. on the improvement of ---street, embraced in his bill dated -, 1873, which work was done under the order of the Board of Public Works (contract No.-, 187 — ), and find it correct as to quantity and quality, and that the work has been done and material and labor furnished, as per contract and specifications.”
    IX. It does not appear that any engineer’s certificate of measurement of any of said work made any reference to the paper of December 10, 1872, set forth in finding III; but each and every one stated the work to have been done under one or the other of the contracts referred to in findings VI and VII; nor does it appear that the company laid any wooden pavement for the board except that which was specified in the said five contracts.
    X. From time to time, as the work under said contracts progressed, and the company received from the engineer of the board certificates of measurement, as stated in finding VIII, they, on presenting any such certificate to the auditor of the board, received from that officer, and signed a receipt at the bottom of the engineer’s certificate for, the auditor’s certificate-of audit and allowance in favor of the company for the amount shown by the engineer’s certificate to be due them; and the auditor’s certificate in every such case was in a form of which the following is an instance:
    “No. 3236J.] “Oppice op Auditor
    “Board op Public Works,
    “ Washington, D. 0., October 6th, 1873.
    “I hereby certify that I have this day audited’and allowed the account of Ballard Pavement Co. for work on 7th st. west, bet. D and E and <3- and M sts. north, amounting to five thousand dollars.
    “$5,000.
    “J. C. Lay,
    
      u Auditor P
    
    XI. The aggregate amount of work done by the company-under said contracts and extension was $163,069.56. The aggregate amount of auditor’s certificates issued to the company was $146,008.55. In- addition to that the board furnished the company materials for the work, to the amount of $13,991.97 and the company also received certificates of the Board of Audit to the amount of $3,669.04. The said auditor’s certificates were voluntarily received by the company, merely as evidence of what was due them from the board, at the times the certificates were respectively given; and it does not appear that there was any agreement or understanding between the company and the board in regard to what disposition the company should make of them.
    XII. When the^ company were doing the work under said contracts, and receiving therefor auditor’s certificates as aforesaid, there were great numbers of like certificates issued to many other contractors for other work; and such certificates were, in the city of Washington and elsewhere, a recognized commodity for sale, with a value changing from time to time. From the beginning of their receiving certificates of that description for work done as aforesaid, the company went into the market with them, and sold them for such prices as they could obtain for them, and delivered them to the purchasers. What the prices were does not appear, but only that the general average was probably from- 50 to 55 cents on the dollar of their face value. It does not appear that the board had any knowledge of the company’s making any such disposition of any of said certificates.
    XIII. The whole number of square yards of wood pavement laid by the company under said five contracts was 37,128; and the last auditor’s certificates received by the company on account of that work were dated January 24,1874; after which date no further streets or parts of streets were designated by the board for them to pave before the board ceased to exist on -the 20th of June, 1874; though the company repeatedly called on said Shepherd to designate more; and the Commissioners of the District of Columbia refused to allow any more wood pavement to be put down.
    XIY. On the 6th of January, 1875, the said Ballard Pavement Company instituted in the supreme court of the District of Columbia, a suit against said District, wherein, on the 22d of April, 1875, there was filed the following amended declaration [the substance of which will be found in the opinion of the court].
    The exhibit A, referred to in, and made part of, said declaration, was the same letter signed “Oha’s S. Johnson, Ass’t Secretary,” which is above set forth in finding III.
    To the said amended declaration the defendant filed a general demurrer, saying that the declaration was bad in substance; and on said demurrer, the said court, sitting in general term, on the 1st of March, 1877, rendered the following judgment, and entered the same of record [which is set forth in the opinion of the court].
    XY. Before the Board of Audit constituted by section 6 of the act of June 20, 1874, “for the government of the District of Columbia and for other purposes” (18 Stat. L., 116), the Ballard Pavement Company, on the 1st of September, 1874, presented the following petition:
    
      “ To the Hon. Board of Audit for the District of Columbia ;
    “ Comes now the Ballard Pavement Co. and file this their claim for audit under class 4 of the act of Congress of date June —, 1874, fixing the amount due them under said class 4 in the bonds provided for by said act at $75,000.00, and for cause of such claim set up and allege the following: That on the 10th day-of Dec., 1872, they entered into a written contract with the Board of Public Works for putting down 75,000 square yards of wood pavement within the said District, a copy of which is attached hereto as Exhibit A and made a part hereof. That said company entered upon the performance of the work, and as early as the 8th day of January, 1873, purchased and procured all of the lumber, and in the spring and summer following purchased the other materials necessary for the fulfillment of this entire work. That as early as March, 1873, said company asked the Board of Public Works to designate the streets to be paved; that after long delays, and very great damages had been sustained by your petitioners, under circumstances of peculiar hardships to your petitioners, they were finally able to have designated under said contract 35,000 square yards, which was completed to the satisfaction of the Board, during the year 1873. This is all of the work the said company have been able to procure from the making of the contract to the present time, though at all times ready and prepared to do the same, and though no claim or pretense has ever been made that your petitioners had in any respect violated the contract on their part. Said company allege that they have been damaged by reason of all of said failures on the part of the Board .of Public Works to comply with the terms of said agreement in the said sum of $75,000.00, ail of which they are ready and prepared to establish by such evidence & proofs, and at such time and place as this honorable Board of Audit shall require.
    “And your petitioners will ever pray.
    “Ballard Pavement Co.,
    “117 Broadway, New Yorlc.
    
    “ Sept. 1,1874.”
    Exhibit A referred to .in this petition was the same letter signed “Cha’s S. Johnson, assistant secretary,” which is above set forth in finding III. The claim advanced in said petition was examined by said Board of Audit and disallowed.
    XYI. June 20, 1874, the said William W. Ballard and Edward L. Marsh executed and delivered to the claimant the following instrument of transfer and assignment [which, not being a matter of contention in this court, is omitted].
    
      Mr. O. O., Cole and Mr. Fillmore Beall for the claimant :
    1. The contract as set up in this case, being a formal proposition in writing, and an acceptance thereof in writing, constitutes a valid contract, binding upon the parties thereto. (Moore <6 Boice v. United States, 1 O. Ols. It., 90; Adams v. United States, 1 O. Ols. B>., 192; Driscoll v. United States, 13 C. Ols. B., 15-37; Garfielde v. United States, 11 O. Ols. B., 332-592; 
      Cobb v. United States, 7 C. Cls. R., 473; Neale et al. v. United States, 14 O. Cls. R., 280; Garfielde v. United States, 93 TJ. S. Rep., 242; Taylor v. The M. F: Fire Insurance Oo., 9 How., 390; Hamilton v. Lycoming Ins. Go.,,5 Penn’a St., 339, and cases cited; Maetiers v. Frith, 6 Wend., 103; Pratt v. Hudson Fiver F. F. Go., 21 N. Y., 305; Bronson v. Chappell, 12 Wall., 681.)
    2. But if such contract, by reason of its form, was not originally binding upon the parties, it became valid and binding by reason of the fact that it was recognized by the parties, was performed in part by the claimant by doing the work thereunder, and was also in part performed by the defendant by designating the streets, accepting the work, issuing certificates therefor, and making payments thereon. (Brown on Statute of Frauds, §§ 447,448 and notes; Fremont on Statute of Frauds, 2, § 461-476; Lindsle.y on Statute of Frauds, 4, § 359-365; Danolds on Statute of Frauds, 5, § 65; Gibbons on Statute of Fraud, 5, § 416-423; Neale et al. v. United States, 14 C. Cls. R., 280.)
    3. The appropriations were sufficient to authorize the making of the contract when it was made. Even if they were insufficient, yet the contract sued upon would not, for that reason,' be invalid, because it has been recognized and ratified by the following acts and resolutions of Congress: Act of June 20, 1874, 18 Stat., 116; Act of June 11, 1878, 20 Stat., 102; Act of June 16, 1880, 21 Stat., 284; Joint Resolution of December 21,1874,18 Stats., 223; Neitzy v. Histiet of Columbia, MSS. op. by Nott, J., in H. S. -Court Claims, 1882.
    4. As a matter of law the receipt by the Ballard Pavement Company of auditor’s certificates of indebtedness, under the circumstances they were received, as shown by the findings of facts, were not payment, but only to be accounted for at their reasonable market value or in the sum the Ballard Pavement Company received therefor in the use of reasonable diligence and discretion. (Ballard v. Mandell, 2 Me A., 351; Oity of Mem-plis v. Brown, 20 Wall., 289; Gallanan v. Brown, 31 Iowa, 333.)
    5. The payment of said certificates, and each of them, by the issuance of three-sixty-five bonds in exchange therefor, was a payment by the District of Columbia in its own wrong, and cannot constitute any defense to the claim of the Ballard Pavement Company or this claimant for the amount justly due thereon over and above what was received by the Ballard Pavement Company. (Coiodreyv. Vandenburg, 101U. S., 572.)
    The payment by the District of Columbia of the said auditor’s certificates of indebtedness upon the blank indorsement of the Ballard Pavement Company, which was not in any way filled up at the time of payment, constitutes no payment as against this claimant. (Cowdrey v. Vcmdenburg, 101 TI. S., 572; Ballard v. Mandel, 2 McA., 351.)
    As respects the auditor’s certificates which were not indorsed by the Ballard Pavement Company nor by any person authorized thereto, the payment thereof by the District of Columbia to such holder without a valid indorsement or assignment constitutes no payment as against this claimant. (Ibid.)
    
      Mr. Assistant Attorney-General Simons and Mr. J. G. Fay for the defendant:
    1. The pleadings present a special plea of res judicata, and the proofs develop a still further defense, that of a rejection of the claim by the board of audit in addition to the absolute nullity of the alleged contract. In 1875 the claimant instituted a suit in the supreme court of the District of Columbia against the District to recover the identical damages upon the identical alleged contract sued for in this case, in which suit judgment was rendered for defendant. The case is reported 3 MacArthur, 49. This judgment, although on demurrer, is conclusive of the claim and supports fully the plea. (Banh v. Walden, 1 La. Ann., 46; Wilson v. Bay, 24 Indiana, 156; Aurora City v. West, 7 Wallace, 82; Estep v. Laisch, 21 Indiana, 190; Bobinson v. Howard, 5 Cal., 32; Perldns v. Moore, 16 Ala., 17.)
    2. The organic act required all contracts to be in writing and signed by the board of public works. It further required that before even such a contract could bind the District an antecedent appropriation should exist. Every payment or measurement made by the Board of Public Works done by the Ballard Pavement Company was made by virtue of and recited a specific contract under which the work was done. These several contracts, signed, sealed, and bonded, executed according to the forms of law governing them, the claimant calls designations, while the unauthorized letter of a clerk in the employ of the board is dignified with the title of contract.
    
      The absence of an appropriation would alone be sufficient to defeat the claim had the contract been properly executed. The claimant cites a number of laws. All of them except the act of the legislative assembly of July 10, 1871 (the four million loan act), are inapplicable upon their face. The act July 10, 1871, might authorize the contract but for the fact that it had lapsed, if it had not been expended prior to the date of the letter.
    The rejection of the claim by the Board of Audit, which is fully shown, is a jurisdictional bar, and the proof relied on to show this is of the same character as in Looney’s Case, 18 O. Cls. R., 8, and National Metropolitan BanVs Case, 18 O. C., 356.
   Drake, Ch. J.,

delivered the opinion of the court:

A rule of this court requires the petition in any suit brought here to set forth “a plain, concise statement of the facts and circumstances, free from argumentative and impertinent matter.”

The petition in this case contains four counts; the first of which is complete itself; but the other three, the claimant says, are only different forms of statement of the same claim, and under either or all of them he only claims the one sum named in them.

The first count proceeds upon a written contract, alleged to have been entered into, December 10,1872, between the Board of Public Works of the District of Columbia and the Ballard Pavement Company, for laying down wooden pavements; the only evidence of which contract, disclosed by the findings, is the following letter, written to that company by one Charles S. Johnson, a clerk of the board, who was styled assistant secretary :

“Board of Public Works,
“District of Columbia,
Washington, Lec’r 10th, 1872.
“The Ballard Pavement Co., Washington, D. C.:.
“Tour proposition of this date, as follows: ‘The Ballard Pavement Co. hereby make proposals for the following work with accompanying conditions: We will put down preserved wood pavement as follows': The Ballard block, the Perry block, or the wedge-shape block, such as laid by Filbert & Taylor in this city, as the contractors may elect, either to stand five inches high, for three dollars and fifty cents per square yard; and we hereby ask for seventy five thousand square yards— contractors to have during the year 1873 within which to complete this work. The Board not to stop the work without a gross violation of the contract on the part of the contractors; the streets to be designated by the Board at such times as the company shall be ready to commence work; said work to be paid for as the same progresses. We also hereby apply for a separate and a further contract, for so much of the grading, hauling, and filling as is not embraced in the contract for paving and for setting the curbing on the streets to be paved by us at Board prices, subject to conditions of the paving contract,’ is this day accepted.
“By order of the Board.
“Chas. S. Johnson,
“Asst. Secretary.”

This count alleges that “in pursuance of said contract, and in part execution and performance thereof” the board designated nine different pieces of work to be done by the company, all of which the company did, to an aggregate amount of about 35,000 square yards; and were prepared and ready to do all the rest of the 75,000 square jards Specified in their proposition, but the board failed and refused to designate any more to be done by the company; whereby they were damaged in the sum of $100,000.

The second, third, and fourth counts all refer to the work actually done by the company, for which they received certificates of the auditor of the board, stating amounts due the company ; which certificates the company sold at about 50 cents on the dollar, realizing therefrom only $69,784.92^; and the claimant demands from the defendant the other half of the amount of the certificates, on the following grounds: 1. That work was, by the terms of the supposed contract to be.paid for in cash as it progressed, and the board failed so to pay: 2. That by failing so to pay them, and giving them auditor’s certificates, the company became authorized to act as agent of the board, and on its behalf to sell the certificates at their market value;. and the company did sell them on behalf of the board at 50 cents on the dollar of their face value; and 3. That the company accepted the certificates as chattels and commodities, at their market value, which was then 50 cents on the dollar, after realizing which from their sale there remained due to the company the other half of the aggregate sum, viz: $69,784.92£.

For this sum the claimant sues alone, his copartners having transferred to him all their interest in the claim.

Having thus preliminarily stated the case as presented in the petition, we proceed to examine the case made by the facts. In regard to those facts we deem it proper to say, that they have been found almost wholly on the evidence of the claimant and his former partners in the Ballard Pavement Company. If, therefore, their case has not been satisfactorily established, the presumption is that they had not a very establishable case.

The great point in the case is, whether the proposition made' by the company to the Board of Public Works, and which the letter of Johnson said had been “accepted by order of the board,” constituted a contract between the company and the board.

Under some circumstances we can see that it might be plausibly, if not forcibly, contended, that a written proposition signed by a party and made to the board, and by the board accepted in writing, would meet the statutory requirement (16 Stat. L., 427, §37), that “all contracts made by the Board of Public Works shall be in writing, and shall be signed by the parties making the same ” ; bnt that is by no means this case.

The question here is, whether the board did, in fact, accept the company’s proposition. If it did not, then there is no foundation, in whole or in part, for the claimant’s case as stated in the petition.

The only fact found tending to prove such an acceptance, is the letter of Johnson. Wliat that document, standing by itself, might be held to establish, is not a question before us; but what it proves in connection with other facts found, and with still others which might be expected to appear in the case, but are found not to appear; in reference to which points we transcribe here this portion of finding III:

“The journal of said board does not show that said proposition was ever before the board; nor does any acceptance thereof by the board appear, otherwise than by the statement of said letter; nor does it appear that said Johnson was author, ized by said board to write said letter; nor does it appear that the board or any member of it, except Alexander R. Shepherd, either saw or knew of said letter before or on the said 10th of December, 1872; nor can the original proposition, as drawn up by the claimant and said Ballard, be anywhere found among the papers or files of the board or of the District of Columbia, though searched for there; nor can any copy of said Johnson’s letter be found in tbe books or files of the board, or of the said District, though searched for there, and though it was the practice of the board to keep press copies of all letters that went out of its office.” .

Upon these facts we have no hesitation in concluding that the letter of Johnson was not authorized by the board, and therefore could have no effect in law'to bind the board.

Does this necessarily imply a charge against Johnson of having, without authority from any official quarter, written a letter stating a falsehood % It might have that effect, but for the facts set out in finding IV, as follows :

“ In all the transactions hereinafter set forth, connected with the matter of paving streets by the said company, no member of the company had any personal intercourse with the said board, at any meeting thereof, in relation to that work. Their intercourse in regard to it was almost wholly with said Alexander R. Shepherd. It took place sometimes at his store, and sometimes at the office of the board. When it took place at his store, it does not appear that any other member of the board was present; when it took place at the office of the board, if other members of the board were present, and any member of the company spoke to them about the matter of that work, they would refer him to said Shepherd. It was always difficult and generally impossible for the claimant, as the representative of the company, to have any interview on that subject with any member of the board except said Shepherd, and nobody else would ordinarily talk to the claimant or his partners on the subject; or if they did, it would be when Shepherd was present, and then merely to take part in the conversation; and when the company desired work to be designated for them to do, they called on said Shepherd, supposing that whenever he said anything about the work in the District, he represented the board o"f public works, — was the mouth-piece of the board.”

The facts thus stated are found almost in the words of the claimant and the other members of the Ballard Pavement Company, and they have historical value, as well as an important bearing upon this case. They lead us irresistibly to the conclusion, that this was one of the cases, in which Alexander R. Shepherd was dealt with by outside parties on the supposition, if not conviction, that he was, for all practical purposes, the Board of Public Works, as he probably was, to a great extent, toward them, but more especially toward the employés in the office of the board.

It is only just to Johnson to hold that he would not have written that letter without some official authorization which seemed to him sufficient. It does not explicitly appear who gave him authority or direction to write it; but it is certain that the Board of Public Works did not give it. It is also certain that the findings ■ do not disclose any other person than Shepherd, to whom was conceded such authority in the business of the board as led it to be supposed that he was, in effect, the board itself. Such being the case, we have only to recur to the fact stated in finding II, that the claimant and Ballard had been in negotiation with Shepherd before they wrote the company’s proposition, to be satisfied that it was lie who authorized Johnson to write the letter.

If he did, then the point is, whether the letter was legally binding on the board. This is very much like the matter we parsed on in the Neuchatel Paving Co.’s Case (17 C. Cls. R., 386). There the question was whether Shepherd’s agreements, uttered in conversations, bound that body; and we held that they did not. Here it is whether his verbal direction — for none in writing is shown — to Johnson to write the letter, had the effect of making the letter the act of the board; and we are clear in holding that it did not.

In no view that has seemed to us worthy of acceptance is the letter of Johnson of the least value to the claimant’s case, and we therefore put it wholly aside, along with the proposition which it purported to answer. With them out of the case the whole claim of the first count for $100,000 damages falls to the ground.

And yet it is one of the remarkable features of this case that 'the claimant rests his whole demand on that proposition, in the face of its being proved and found — that no officer of the board ever recognized that proposition as a contract; that the engineer of the board refused to give the company any measurements of work unless there was a regular written contract signed by the board; that five of such contracts were entered into and signed by the board and the company; that every yard of pavement laid by the company was laid under one or the other of those five contracts; that every engineer’s certificate of measurement gave on its face the number of one of those contracts as that under which the work named in the certificate had been done; that the company signed a receipt for every such certificate, and that upon those certificates the company received the auditor’s certificates, which they voluntarily sold in the market for fifty cents on the dollar.

Notwithstanding those indisputable facts, the petition takes up the transactions under those five contracts and treats them as if they had occurred under the proposition of December 10, 1872. There is not the least justification for this attempt to shift the case from its true basis to a false one. If the company suffered the losses averred in the petition, it was under the said five contracts, and not at all in connection with that proposition, and therefore they could not possibly be recovered for under a petition which relies wholly on that proposition, and entirely ignores those contracts.

Another and more remarkable feature of the case is, that while the petition avers that the company sold the auditor’s certificates, at a loss of about one-half of their face value, the argument of claimant’s counsel, at the trial, proceeded wholly upon the assumption that the company had hypothecated the certificates; and because the board did not pay the company in cash, as the work progressed, they could not redeem the certificates ; which thereby were lost to them. The facts as found furnish no ground for such a claim. We find that the company received the certificates merely as evidence of what was due them, and went into the market and sold them; and that there was no agreement between the company and the board as to what the company should do with the certificates; and that it does not appear that the board had any knowledge of what the company did with them. This disposes of the whole claim resting on the supposed hypothecation. It had nothing to do with the case stated in the petition; and now that the facts have been judicially found, it is plain that it has nothing to do with the real case presented by those‘facts.

The next matter to be disposed of is the plea of res judicata, based on the action of the Supreme Court of the District of Columbia, in a suit brought by William W. Ballard, Edward L. Marsh, and the claimant, as the Ballard Pavement Company, against the District, to recover damages, alleged to have been sustained by them under the said proposition and said Johnson’s letter, by reason that the proper authorities of the District had neglected and refused to designate the work, or any part thereof, under the contract alleged to have been made by that letter, though often requested by the company so to do; whereby the company had sustained damage in the sum of $100,000.

The defendant demurred to the declaration, in the Supreme Court of the District, on the ground that it was bad in substance; which, we are advised, is the form of general demurrer in use in' that court.

This demurrer the court sustained, and rendered a judgment, of which the following is the record entry:

“And now again come here as well the plaintiff as the defendant by their respective attorneys; and thereupon, after argument of the cause by Mr. Grow on behalf of the plaintiff, and the submission of said cause to the court, because it appears to the court that the declaration is bad in substance, it is considered by the court that the demurrer thereto be and the same is hereby sustained, and that the plaintiff take nothing by his suit, and that the defendant go thereof without day and recover against the plaintiff the costs of its defense to be taxed by the clerk, and have execution thereof.’’

Is this judgment a bar to the present suit so far as the cause of action in the first count is concerned?

The parties are not identical in person, but they are in interest. The only difference is that all the partners sued there, while here only one sues, he having become the assignee of the interest of his copartners.

The supposed contract is identical with that set up in the petition ip this case, and the breach alleged is the same in kind, but not in degree, as that alleged in the first count of the petition. In the other court they sued for a total breach of the contract, by the refusal to designate any work to be done under it; while here the refusal is averred to have extended to only 40,000 out of the 75,000 cubic yards specified in the contract. If the judgment on the demurrer would be a bar to a new suit for withholding the whole work, it is a bar to a suit for withholding a. part of the work. The question then is, whether a judgment on demurrer is a bar to a subsequent action between the same parties for the same cause of action.

On this point we. need only refer to the language of the Supreme Court of the United States in Gould v. Evansville & C. R. R. Co. (91 U. S. R., 526), where it was held, (1.) That a judgment rendered upon demurrer to the declaration or to a material pleading, setting forth the facts, is equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be, since the matters in controversy are established in the former case, as well as in the latter, by matter of record; and the rule is, that facts thus established can never after be contested between the same parties or those in privity with them. (2.) That if judgment is rendered for the defendant on demurrer to the declaration, or to a material pleading in chief, the plaintiff can never after maintain against the same defendant, or his privies, any similar or concurrent action for the same cause upon the same grounds as were disclosed in the first declaration; for the reason that the judgment upon such a demurrer determines the merits of the cause, and a final judgment deciding the right must put an end to the dispute, else the litigation would be endless.

Guided by these views we hold that the judgment of the Supreme Court of the District is a bar of the first count of the petition in this case.

Finally: the very claim set up in that count was, as stated in finding XV, presented to the Board of Audit, and was by that board examined and disallowed. The act giving us jurisdiction of claims against the District of Columbia expressly declares “ that no claim shall be presented to or be considered by the Court of Claims under the provisions' of this act which was rejected by the Board of Audit.” (21 Stat. L., 284, ch. 243, § 8; 1 Suppl. Bev. Stat., 564.) In our opinion the defense might have thrown this case out of this court under that provision alone; but it was doubtless better that the whole facts should be judicially found, and the law upon them declared, so as to make a recorded finality of the matter.

The judgment of the court is that the claimant’s petition be dismissed.  