
    THOMAS BETTS v. THE DISTRICT OF COLUMBIA.
    [No. 88.
    Decided June 1, 1885.]
    
      On the Proofs.
    
    The evidence shows that the claimant, a contractor, was overpaid hy the defendant’s auditor of the District and hy the Board of Audit.
    I. According to decisions heretofore made in other cases, the District of Columhia may recover judgment on counter-claim against a claimant who was overpaid as contractor.
    II. Where nothing is due from the District to a contractor, it is unnecessary to determine the validity of assignments set up hy his assignee in an intervening petition.
    
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant performed certain work in the District of Columbia, in the improvement of its streets, under the direction of the Commissioners of said District, for all of which work he has been paid in full, excepting the following retains: $356.27, $43.72, $6.86, $44.03, $7.30, $322.31, $51.20, $29.50, $101.76, aggregating $962.95, which sum became due January 1, 1876.
    II. Counter-claim. — On the 20th day of September, 1871, the claimant entered into a contract, No. 99, with the Board of Public Works of the District of Columbia, for the improvement of Ninth and Tenth streets northeast, between certain limits. The material parts thereof were as follows:
    “ Contract 99, Ninth, and Tenth streets.
    
    “This contract, made and concluded this twentieth day of September, in the year one thousand eight hundred and seventy- ^ one, by and between Henry D. Cooke, Alexander R. Shepherd, * James A. Magruder, A. B. Mullett, and S. P. Brown, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and Thomas Betts, of Washington, D. 0., 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 Ninth and Tenth streets east, between Maryland avenue and H street NE., in the city of Washington, D. C., said grading to be executed in all respects in conformity with the following specifications, to wit:
    * # # # * # #.
    “ 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, 20c. per cubic yard, 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.”
    III. On the 2d day of November, 1871, the claimant entered into another contract with the Board of Public Works of the District of Columbia, known as No. 167, for the improvement of G street northeast. The material parts thereof were as'follows :
    “ Contract 167, C street.
    
    “ This contract, made and concluded this the second day of November, in the year one thousand eight hundred and seventy-one, by and between Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, A. B. Mullett, and S. P. Brown, constituting and composing’the Board of Public Works of the District ot Columbia-, of the first part, and T. Betts, of Washington, D. 0., of the second part, witnesseth :
    
      u 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 G street north, between Maryland avenue and Sixth street east, in the city of Washington, D. C, said grading to be executed in all respects in conformity to the specifications * following, to wit:
    ###*###
    “ 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, twenty cents per cubic yard, 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.”
    IY. Under the provisions of contract 99 the claimant immediately commenced the grading of Ninth and Tenth streets between the limits set out in the contract, and from time to time received partial payments on account of the work that be had performed.
    Y. On the 15th day of December, 1873, the work having then been completed, a measurement of all the work performed by him was made by the engineer of the District, from which it appears that the claimant had excavated 15,297 cubic yards of earth on Ninth street and 11,377-J- cubic yards of earth on Tenth street, and that in the settlement of the vouchers for this work the auditor inserted and allowed the sum of 30 cents per cubic yard instead of 20 cents, which was the contract price, making an overpayment on account of the grading upon Ninth street $1,529.70 and upon Tenth street $1,137,75, and in excess of the contract rates for hauling the excavation away, upon Ninth street $458.91, and upon Tenth street $170.66.
    YI. On the 15th day of December, 1873, the engineer also made and reported a measurement of the work performed by the claimant upon G street, under the terms of contract No. 167, whereby it was found that the claimant had excavated 10,820 cubic yards of earth from said street, which, computed at contract rates, would yield the sum of $2,164, and that the sum of $3,500 had been paid on account, and that afterwards the said account passed into the hands of the Board of Audit, and the said board, in auditing the same, allowed to the claimant the sum of 30 cents per cubic yard for the excavation, being 10 cents in excess of the contract price, and further allowed, by mistake, the sum of $432.80 for the hauling away of the material excavated, making the aggregate of the account $3,678.80 in lieu of $2,164, and, after deducting the sum of $3,500 paid as above stated, paid to the claimant the further sum of $178.80, making the total overpayment on the grading $1,082 j on the haul, $432.80.
    
      Mr. Allen O. Ciarle, for the claimant.
    
      Mr. J. C. Fay (with whom was the Assistant Attorney-General) for the defendant.
    
      
       And see Sanders v. District of Columbia (ante).
      
    
   Richardson, Ch. J.,

delivered the opinion of the court:

The facts show that on the whole case the claimant has been overpaid by the District on contracts for work done to the extent of $3,848.87, and according to the decisions heretofore made in other cases the defendant is entitled to judgment against the claimant for that sum. (Neitzey's Case, 17 C. Cls. R., 127; Adams's Case, 17 C. Cls. R., 364; Brown's Case, 17 C. Cls. R., 420; Roche's Case, 18 C. Cls. R., 217; Loony's Case, 19 C. Cls. R., 230, affirmed on appeal, 112 U. S. R., 258.)

In paragraph xii of the petition of Samuel J. Ritchie v. The District of Columbia (Case No. 150) said Ritchie claims by assignment whatever money might be'found due the present claimant upon the contracts referred to. That paragraph was consolidated with this case by order of court February 2, 1885. But as we find nothing due from the District, it is unnecessary to determine the validity of the assignments set up by said Ritchie in his case. The judgment of the court is that the defendant recover of the claimant the sum of $3,848.87.  