
    DAVID M. DAVIS v. THE DISTRICT OF COLUMBIA.
    [No. 209.
    Decided February 9, 1885.]
    
      On the Proofs.
    
    A contractor does work not contemplated by the contract — rock excavation without blasting. The engineer in charge certifies it as worth $1 per yard. By an oversight it is paid for as earth excavation, at 30 cents per yard. The court finds its value to be $1. The same contractor also fills in the canal, there being no express contract relating to it. He presents a bill at 15 cents per yard. After controversy as to quantity, he is paid a gross sum, lor which he receipts in full.
    I. Where a contractor does a kind of work not contemplated by his contract, reasonably worth $1 per yard, and so certified at the time by the • defendant’s engineer, but which is paid for, in mutual mistake, at 30 cents per yard, as another kind of work, he may recover the difference.
    II. Where a contractor fills in earth under an implied oontract, and presents a bill at 15 cents per yard and is paid, after controversy as to the quantity, a sum in gross, for which he receipts in full, he cannot recover for it at the rate of 30 cents per yard under an express contract relating to a distinct thing, which contract, moreover, was mutually abandoned before performance under it.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. Prior to July 24, 1873, the Board of Public Works had awarded to Alfred Hill a contract for the improvement of W street between Fourteenth and Fifteenth streets. E street between Nineteenth and Twentieth, and N street between Seventeenth and Twenty-first. This award, with the consent of the Board of Public Works, was assigned to Davis & Brainard, and a contract prepared upon the usual printed form of the Board of Public Works, and on the 13th day of August, 1873, was signed in duplicate by Davis & Brainard, who, on the same day, executed a bond with sureties as required. Brainard soon after withdrew from his connection with the work under the said contract, leaving the claimant Davis as sole party in interest. By accident or otherwise, not explained, the signatures of the members of the Board of Public Works were never affixed to the contract, although a considerable amount of work was done and payments made under it; and the correspondence of the Board of Public Works uniformly treated it as an existing contract, it being known as “ No. 777.”
    II. This contract provided that the contractors (Davis & Brainard) should—
    “ Grade, gravel, and lay down the brick foot pavements on W street northwest, between Fourteenth and Fifteenth streets northwest, in the city of Washington, D. 0.
    “Also to excavate for, construct, and complete, with the necessary manholes and traps, 12-inch pipe sewers on both sides of W street northwest, between said Fourteenth and Fifteenth streets northwest.
    “Also to grade, set the curb-stones, and lay and put down the brick foot-pavements on N street northwest, between Seventeenth and Twenty-first street northwest.
    “Also to grade E street northwest, between Nineteenth and Twentieth streets northwest, the work of said grading, graveling, curbing, brick-paving, and sewering to be done and completed in accordance with the specifications following [omitted as immaterial except as follows]: Grading, 30 cents tor each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding 200 feet, and 1J cents per cubic yard for every additional 100 feet of haul beyond the first 200 feet. * * *
    “ Graveling, per square yard, 15 cents. * * *
    
    “Laying brick foot-pavement (new), per square yard, 100 cents. * * *
    “ Eóck excavation in cutting down streets, when blasting is required, per cubic yard [no price carried out]. * * *
    III. The claimant [commenced [work on “N street between Seventeenth and Eighteenth streets, when he received the following letter and thereupon stopped work:
    “August 23,1873.
    “ D. M. Davis : * * * Sir : The engineer has been directed to cancel so much of contract No. 777, lately assigned to you, as relates to the improvement of N street between Sev-enteeth and Connecticut avenue, and the same will be completed by the Evans Concrete Company. Iam directed to say that you will be awarded work elsewhere equal to the above,.
    “ By order of the board.
    “ Chas. S. Johnson.”
    His claim for work done before the receipt of said letter was presented to the late Board of Audit and was rejected by said board. It does not appear that the claimant suffered any damages by reason of the work having been thus stopped, nor by reason of the Board of Public Works not awarding to him work elsewhere' equal to that which he was prevented from doing.
    IY. The claimant graded N street from Eighteenth to New Hampshire avenue. A partial estimate was first made by the engineer, in which part of the grading, 900 yards, was put down as rock excavation, at $1 a yard, and the claimant received a partial payment thereon. The claimant did that quantity of rock excavation worth $1 a yard, though it did not require blasting. Subsequently a final measurement was made and a final settlement, as follows:
    “ Final measurement W street.
    
    “PAVEMENTS POR SIDEWALKS AND CARRIAGE-WAYS.
    “ WASHINGTON, D. C., Nov. 8, 1875.
    
      “District of Oolwnibia to D. M. Davis, Dr.
    
    4,922.40 square yards new brick pavement laid, at 100 cents per yard. $4,922 40
    1,396.2 running feet 6-inch granite curb and setting, 142 cents perfoot. 1,982 60
    8,660.8 cubic yards grading, at 30 cents per yard. 2,598 24
    7,982 cubic yards haul, 2,187 ft. over 200 ft., at 27.34 cents per yard.„. 2,182 27
    678.8 c. yds. haul, 3,440 ft. over 200 ft., 43 cents per yard... 291 88
    Total for assessment. $11,977 39
    
      “ Final settlement work on N street and B street.
    
    “ WASHINGTON, D. O., Nov. 27, 1875.
    
      “ District of Columbia to D. M. Davis, Dr.
    
    For contract 777, surface R st., 19 to 20, N. W.:
    Final measurement. $2,541 46
    Deduct property. 55 86
    “ cert. 4264 & 5 of 1873. 1,280 20
    - 1,336 06
    1,205 40
    Retain on pavement...-. 27 60
    Balance. 1,177 80
    Contract 777, surface N st. N. W., 16 to 21:
    Final measurement.. 11,977 39
    Deduct 1,407.2 ft., curb 6 in., 112. 1,576 02
    10,401 37
    “ cert. 3382 of'73 . 4,800 00
    “ “ 4266 to ’69 of’73 . 1,398 72
    - 6,198 72
    
       5,202 65
    Retain on pavement.. 246 12
    Balance. 4,956 53-
    Total . 6,134 33
    “ Received tlds- 29tli day of November, 1875, from the Board of Audit, their certificate No. 19330, for $6,134.33, in full settlement of the above-stated claim.
    “D. M. Dayis.”
    In the above settlement the fact was overlooked by both parties that 900 yards charged with the item for grading, at 30 cents a yard, were rock excavation, worth $1 a yard. The “total” paid as above is made up by adding together the two items oí “ balance,” $1,177.80 and $4,956.53.
    Y. The claimant presented to the Board of Audit a claim for other work on N street, and a claim for work done and materials furnished in front of lots numbered 17 and 20 on Nineteenth street, between Q and R streets, in 1874, both of which were rejected by the Board of Audit.
    YI. After the claimant had commenced work on W street the following letter was sent to the engineer, who notified him thereof, and he. ceased work, accordingly:
    
      “Board op Public Works,
    “District op Columbia,
    “ Washington, September 16, 1873.
    “Hon/Adolp Oluss,
    “ Engineer in Charge :
    
    '“ Sir : You will cause contract No. 229, with William Schooler, and contract No. 773, with D. M. Davis and Brainard, for the improvement of W street N. W., to be canceled.
    “ By order of the board.
    “Chas. S. JohnsoN,
    
      “Assistant Secretary.”
    
    It does not appear that the claimant suffered any damage by thus stopping work.
    VII. On the 25th of January, 1872, the claimant received the following letter:
    “Board op Public Works,
    “ District op Columbia,
    “ Washington, Janhj 25, 1872.
    “D. M. Dayis, Esq.,
    
      "Washington, D. C.:
    
    “ Sir : Your proposition of the 25th instant, to fill the canal wharf, from the center of 15th street, for the distance of three hundred (300) feet west, for thirty (30) cents per cubic yard, and to pay twenty-five (25) dollars per month for use of said wharf, when filled as stated, provided you are given 30 days’ notice to vacate, is accepted until otherwise ordered by the board.
    “ By order of the board.
    “Chas. S. John.soh,
    
      “Ass’t Secretary.”
    
    On the 29th of the same month he received the following letter:
    “Board op Public Works,
    “District op Columbia,
    “ Washington, January 29, 1872.
    “D. M. Dayis, Esq.,
    “ Washington, D. C.:
    
    “ Sir : The permission given you from this office on the 25th instant to occupy the canal wharf at Fifteenth street until otherwise ordered by the board is hereby rescinded, as it appears, upon investigation, that the existing laws require such sites to be advertised.
    “ Very respectfully,
    “Alex. B.. Shepherd,
    “ Vice-President.”
    
    
      The caual wharf as such was-not filled, but the claimant did some workin filling the canal, ami for that he submitted to the Board of Audit the following bill:
    “ Washington, D. C., September, 1874.
    "‘ The late Board of Public Worlcs to D. M. Davis, Dr.
    
    “ To filling a space 300 ft. long, 75 ft. wide, and 10 ft. deep of the canal between 14 and 15 sts. N. W., 8,333£ yards, <a> 15 cents per yard, $1,250.
    “ Work done during the year 1872.
    “D. M. Davis.”
    Thereupon the following proceedings were had :
    “Oppice op the Board op Audit,
    “Washington, November 19, 1874.
    “ Bespectfully referred to the Commissioners of the District of Columbia, with the request that the proper examination and measurements may be made and reported, to enable the Board of Audit to ascertain what amount, if any, is due the claimant under this contract.
    “S. M. Wilcox,
    “ For the Board of Audit.
    
    “Bespectfully referred to the engineer D. C.
    “By order.
    “ Wm. Tindall, .
    “ Secretary.
    
    
      “ November 21,1874.
    “ Beferred in engineer’s office to Mr. Oertly, and reports. Bd. of Audit give points of Oertly’s report. Action.
    “Engineer’s Oppice,
    “District op Columbia,
    
      u Washington, Jan'y 14#A, 1875.
    “ To the honorable the Board op Audit :
    “Gentlemen: I return herewith claim ofD. M. Davis for filling canal between 14th and 15th streets N. W., amounting $1,250.00.
    “ The records of this office show that on 18th of January, 1872, D. M. Davis proposed to fill a wharf on the canal from center of 15th st. 300 lineal feet westward, at 30 cents per cubic yard, and when completed to occupy the wharf at a rental of $300.00 per annum. The proposal was repeated Jan’y 25,1872. The proposal ivas accepted, Mr. Davis to pay a rental of $25.00 per month, and to vacate at 30 days’ notice.
    “ To render the proposal intelligible at this date, it must be remembered that at that time tbe Washington Canal was still used as a canal; that its width had been narrowed about 75 feet on the north side and a new canal wall on pile foundation had been constructed, and the remaining southern portion of the canal dredged to its standard depth. The space gained on the north side was filled with the material dredged from the remaining portion of the canal, and when completely filled was to be used for wharfage. In the spring of 1872 the late Board of Public Works decided to abandon the old canal altogether, to remove its walls, and fill it up entirely.
    “ How much filling was done by Mr. Davis under his accepted proposal is unknown to this office, and could not be measured, as no record was kept of the materials dredged and used as filling, and many other parties were filling the canal then and afterwards. The filling of the canal, when not obtained from the excavation of street, was paid for by the load, and the loads were counted by the canal inspectors who were on the ground; therefore the settlement of this account must depend upon a consideration of the evidence submitted.
    “By order of the engineer.
    “FRANK T. Howe, “Chief Clerk.
    
    “Oppice Board op Audit,
    “ Washington, January 19th, 1875.
    “ The within claim against the Board of Public Works has been examined, and attention is called to the within report of engineer. No evidence of the claim in measurements in this office, and no authority for the work, if any, was done outside of that set forth by engineer.
    “C. W. Watson,
    
      “Accountant.
    
    “ I see no reason why this claim should be allowed without some positive information from the engineer’s office. The whole thing is mere guess-work.
    “Chas. A. Appel,
    
      “Ass’t Aec’t.
    
    
      “ [Endorsements.]
    “ Washing-ton, D. C., April 22,1875.
    “ District of Columbia to D. il'Z. Davis, Dr.
    
    “ For-.
    “We, the undersigned, recommend the payment of $750.00 in settlement of this claim, which is, on the basis of 6 ft. fill, the correct amount, as near as can be ascertained.
    “ Chas. A. Appel.
    “ B. Oertly.
    
      “ Remarks. — April 22, 1875. Ain’t due, $750.00.
    “ Chas. A. Appel,
    “Ass’f. Ac<H.
    
    "Received this 27th day of April, 1875, from the Board of Audit, their certificate No. 14289, for $750.00, in full settlement of the above-stated claim.
    “D. M. Davis.”
    
      Mr. J. W. Douglass for the claimant.
    
      Mr. John O. Fay (with whom was the Assistant Attorney-General) for the defendants.
    
      
       Correctly subtracted this would be $4,202.65.
    
   Richardson, Ch. J.,

delivered the opinion of the court:

There are but two questions of law arising upon these findings :

1. The written contract for part of the work done by the claimant, although signed by the contractors, was never signed by the Board of Public Works. It was, however, treated by both parties throughout as an existing contract, and settlements were made under it. The claims for damages set up in the petition are not proved, and the only claims upon which we are to pass are for work actually done, so that it is not necessary to determine whether or not the defendant, is in all respects bound by the terms of the written, unsigned contract.

In grading N street, both parties concurred in the contract price of 30 cents per yard for earth, sand, and gravel excavation. But the claimant did another kind of grading, called rock excavation without blasting, which was not mentioned in the contract and the price of which was not agreed upon. The engineer in his first partial measurement set the price of this work at one dollar a yard, and the court has found it to be worth that rate.

In the final measurement the whole gradiug was set down as ordinary grading of earth, sand, and gravel, and both parties overlooked the fact that 900 yards of the same were rock excavation worth one dollar a yard, as first stated by the engineer in his partial measurement. This was an error which the claimant is entitled to have corrected, and when corrected it appears that he ought to have been allowed $630 more in that settlement.

2. On the 25th of January, 1872, the claimant was notified that his proposition to fill the canal wharf from the center of Fifteenth street for the distance of 300 feet west, for 30 cents per cubic yard, and to pay $25 per month for the use of said wharf when filled, was accepted until otherwise ordered by the board.

Four days later the claimant was notified by the vice-president of the board that the permission given him to occupy the canal wharf was rescinded.

The parties thereafter treated the accepted proposition to fill the canal wharf as having been abandoned. That filling was never done, but the canal itself was filled. On this latter work the claimant was employed. He presented his bill for the work he did at 15 cents per yard, amounting to $1,250. The quantity of work was a matter of dispute between the parties, but the price was not. The bill was referred to different officers of the defendant, and reported upon. Finally, on the 22d of April, 1875, two of the District officers recommended in writing that $750 be paid to the claimant in settlement of his claim ; this sum he accepted, and on the 27th of April, 1875, he gave a receipt for the amount, “in full settlement of the above-stated claim.”

He now claims the difference between 15 cents a yard and 30 cents a yard (the price fixed for filling the canal wharf). His claim has no foundation to rest upon. In the first place, lie did not fill the canal wharf; in the second place, for the filling of the canal which he did do he fixed his own price at 15 cents a yard, and so presented his bill to the Board of Audit; and, third, the claim was disputed as to the quantity of work, and the whole was compromised at a stated sum, which the claimant received in full satisfaction. On each of these grounds the cause of action fails.

As to the counter-claim: It appears by finding iv that in stating the account between the parties in 1875 there was an error of subtraction, by which it was made to appear that there was due to the claimant $1,000 more than was the correct sum. The whole apparent balance was paid to him, making an overpayment of $1,000. But the same account shows two items of retainer by the defendant amounting to $273.72, and an error of $630 against the claimant in the matter of rock excavating. Deducting these three items from the overpayment leaves a balance of $96.28 due from the claimant to the defendant, and for this sum on the whole case judgment will be entered against him in favor of the District of Columbia.  