
    THE OLD DOMINION GRANITE COMPANY, ASSIGNEE, v. THE DISTRICT OF COLUMBIA. JOHN A. HURLEY v. THE SAME.
    [Nos. 214, 370.
    Decided February 2, 1885.]
    
      On the Proofs.
    
    A contract contains the usual clause authorizing the District to withhold payments until the contractor produce satisfactory evidence that his workmen have been paid. .An engineer of the District notes on a statement of account that money is to be withheld in favor of one G.; but the contractor is paid iu full and the claim is rejected by the Board of Audit.
    I.This court has no jurisdiction of claims rejected by the Board of Audit. (.District Claims Aet 1880, 21 Stat. L., p. 284.)
    II.A provision authorizing the District to retain money until the contractor produce satisfactory evidence that he has paid his workmen, is an option which may be waived. The workmen acquire no right by virtue of it.
    III.The fact that an engineer noted on a statement of a contractor’s account that money was due to one of his workmen, created no contract between the District and the workman.
    
      
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. That on the 26th day of October, 1872, John Bardsley entered into a contract, duly signed, with the Board- of Public Works of the District of Columbia, for the improvement of Eleventh street southwest, the parts of which material in these cases are as follows :
    “This contract, made and concluded this twenty-sixth day of October, in the year one thousand eight hundred and seventy-two, by and between Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, S. P. Brown, and Adolph Cluss, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and John Bardsley, of Philadelphia, Pa., 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 and set the curbstones on Eleventh street west, between Water and B streets south, in the city of Washington, D. O.; also to lay and put down the pavement known as and called the granite Belgian block pavement ’ on said Eleventh street, between the points aforesaid, the shid grading, curbing, and Belgian pavement to be completed in every respect in accordance with the specifications following, to wit:
    * * # # * * #
    “ Seventh. It is further agreed that the said party of the second part shall punctually pay the workmen who shall be employed by him on work under this contract, in cash current, and not in what is denominated store pay or orders; and that he will from time to time, and as often as may be required by said party of the first part, furnish to said party satisfactory evidence that all persons who have done work or furnished materials have been paid as herein required. And if such evidence is not furnished, such sum or sums as may be necessary for such payment or claims shall be retained by said party of the first part until the said claims shall be fully satisfied.
    “ 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 tbis agreement, and in all respects completing the same, to wit:
    “ Grading, thirty (30) cents per cubic yard, to include the first two hundred (200) feet of hauling, and one (1) cent per cubic yard for every additional two hundred (200) feet of hauling. Setting curbstones new, 8" per lin. ft., forty (40) cents. “ “ “ 6" “ '-<■ “ thirty (30) “ “ u
    “ u “ 5" “ li u twenty-five (25)“ u
    
    “Besetting u old 4" “ “ “ fifteen (15) u “
    “ Granite Belgian block pavement, per square yard, (3.45) three dollars and forty-live cents.
    
      11 Grading of old gravelled streets, for first two feet, per cubic yard, 40 cents; 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.
    
      * * ^ # # # #
    “ In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.”
    ' II. It appears on the book of charges of the Board of Public Works that the following claims were filed against John Bards-ley with the Board of Public Works or Board of Audit, at the times and for the amounts as follows:
    1873.
    Feb. 12. Bill of Peter McNamara. 775 00
    July 21. Bill of W. H. Baum. 200 00
    Bill of Andrew Gleason. 590 00
    1874.
    June 17. Bill of J. W. Wholly. 400 00 3. Bill
    00 Sept. 3. Bill of Chas. Nice. 53 90 Dec. 5. Bill
    Dec. 5. Bill of Chas. B. Fanning. 12 50
    5. Bill of Peter Matthews. 7 50
    5. Bill of Micli’l Touhy. 12 00
    $2,050 90
    III. Upon the completion of the work, the same was measured by the engineers of the District, and certified to and paid as follows:
    
      u PAVEMENTS POR SIDEWALKS AND OAR KIAGHE-WAYS.
    “ Washington, D. C., Nov. 29,1873.
    
      “ Board, of Public Worlcs D. O. to Jno. Bardsley, Dr.
    
    4,421 running feet 6-inch new granite curb, and setting, at 142
    cents per foot. 6,277 82
    82 84 running- feet 6-inch new b. s. curb, at 142 cents per foot.. 119 28 116 running feet 6-inch granite circular curb, and setting, 205
    cents per foot.Í. 237 80
    10,800 cubic yards grading, at 40c. per yard... 4,320 692 cubic
    692 cubic yards grading, at 30c. “ “ . 207 60 cubic
    . 11,492 cubic yards haul, 4,000 ft. over 200 ft., at 50c. per yard... 5,746
    10,541 square yards Belgian pavement laid, at 345 cents per yard. 36,262 95
    
      55 square yards Belgian pavement relaid, at 50 cents per
    yard —.- .,. 27 50
    153,198 95
    Property...- - ■ 5,109 79
    48,089 16
    Deduct certs. 135 of ’73. $15,000
    807 “ . 7,160 92
    1141 “ . 5,000
    796 ’74. 22 75
    27,183 67 Certs.
    20,905 49 7 00 27,183 67
    Deduct for repairs, as per file charge 376.
    20,898 49
    Hold amount involved in charges of McNamara, Baum, Gleason, and Wholly, as per charges hook. 1,965 00
    18,933 49
    “I hereby certify that I have measured and inspected the work done by Jno. Bardsley on the improvement of 11th street S.W., between B and Water sts., in sq’r’s embraced in the foregoing bill, which work was done under the order of the Board of Public Works (contract No. 588), 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.
    “Chas. E. Barnet,
    “ Assistant Engineer.
    
    “Dated Nov. 29, 1873.
    “ Approved Nov. 29, 1873.
    “Ad ole Oluss,
    
      “ Engineer B. P. W., in Chcvrge. \
    
    “1 certify that the foregoing bill is correct in form, and that the prices are according to contract, and is therefore audited in the sum of eighteen thousand nine hundred and twenty- , three and AfW dollars.
    “J. C. Lay, ,
    “ Dated June 17, 1874. 11 Auditor B. P. W. \
    
    “(Indorsed:) Account B. P. W., 11830, vol. 4, 1873. Final i measurement. Received certificate No. 1800, dated June 17, / 1874, for $18,933.49. John Bardsley. ” 1
    Subsequently an additional payment was made as follows: [
    
    “Washington, D. C., Sept. 11,1875.
    “ District’of Columbia, to John Bardsley, Dr.
    
    For contract No. 588. Surface 11th S. W., B to Water.
    Balance due....f1,965 00
    Deduct cert. 10609 . 775 00
    Balance. 1,190 00
    Schedule of charges filed herewith.
    
      “(Indorsed:)
    “Office Board of Audit,
    “ Washington, Sept. 11,1875.
    “The within claim against the Board of Public Works has been examined, and ain’t due $1,190.00.
    “Chas. A. Appel,
    “Ass’i Aec’t.
    
    “Dec. 4, 1874. Received certificate No. 10609, for $775.00, issued to J. Bardsley for use of P. McNamara.
    “Peter McNamara,
    “Per Theodor Sheckels.”
    IY. In auditing the measurement set forth in finding ii, the said Bardsley was, by mistake, allowed for the hauling of 11,492 cubic yards of grading, 4,000 feet over 200 feet, the sum of 50 cents per cubic yard, $5,746, when, by the terms of his contract, he was entitled only to the sum of 20 cents per cubic yard, $2,298.40, making an overallowance of $3,447.60.
    Y. On the 21st and 27th of June, 1872, respectively, the following letters were written to said Bardsley:
    “Board of Public Works
    “District of Columbia,
    “ Washington, D. O., June 21, 1872.
    “ Sir : Your bid, dated the 18th of this month, for laying stone pavement, has been received, and the board has agreed to give you a contract for laying fifty thousand yards. The street or streets will be designated by the board and a contract prepared in a few days.
    “ By order of the board.
    “ Yery respectfully,
    “Chas. S. Johnson,
    “Ass’i Secretary.
    
    “To John Barsdley, Esq.,
    “ Philadelphia;, Pa.”
    
    “Board of Public Works
    “District of Columbia,
    
      “ Washington, June 27, ’872.
    “ John Bardsley,' Esq.,
    “ 1625 Pine Street, Philadelphia, Pa.:
    
    forwarded you from this office, dated June 21,1872, awarding contract for furnishing and laying fifty thousand yards of stone, I am instructed to inform you that a large portion will be laid on East Capitol street, and this will make Third or Fourth street the best place to land the stone. If you will come to Washington the board will contract with you for the whole of the work.
    “ By order of the board.
    “Chas. S. Johnson,
    “ AssH Secretary.”
    
    YI. Said Bardsley made preparation and commenced the work of paving East Capitol street, but it does not appear how much work he did. Afterwards he was awarded a contract to pave Eleventh street southwest, set forth in finding i, and removed his materials to and paved said Eleventh street therewith. During the existence of the Board of Public W orks he never presented or preferred any claim for any work on East Capitol street.
    After the abolition of the Board of Public Works said Bards-ley presented the following claim for work claimed to have been done on East- Capitol street aggregating $3,121, and said claim was examined and rejected by the Board of Audit:
    “Philadelphia, Pa., Sept. 5, IS74.
    
      “ Board of Public Works, city of Washington, I). G., to John Bardsley.
    
    1872.
    Sept. 30. To work done and material furnislied on East Capitol st., between 2nd and 4 th sts.:
    To time of pavers and laborers in preparing and laying 1,000 yds. of granite pavement between points named, including time in removing material from said street:
    To 0 pavers, 23 davs, at $4.50 each i>cr day. $621 00
    “ 3 rammers, 26 “ 3.00 “ . 234 00
    “ 6 laborers, 28 “ “ 2.00 “ “ “ . 336 00
    To wharfage paid T. E. Clark Co. (on granite blocks),
    foot of 4th st. east.. 250 00
    To bill of Peter McNamara for hauling blocks from foot of 4th st. to E. Capitol st., thence to 11 st., as per
    claim filed against me in the department. 775 00
    
    Actual cost of hauling granite from East Capitol st. to
    11 st. S. W., exclusive of P. McNamara’s bill.315 00
    Claim of Andrew Gleason for gravel furnished on East Capitol street, between points named, as filed against me in the department.-•. 590 00
    3 121 00
    VII. Said Bardsley, at the date thereof, made the following assignment:
    “ These presents witnesseth that I, John Bardsley, of the city of Philadelphia, State of Pennsylvania, having a large sum of money due to me from the District'of Columbia, on account of labor performed and for materials furnished to said District of Columbia, under contracts with and orders from the duly authorized agents of said District, and that, in consideration of materials furnished to me by the Old Dominion Granite Company of Virginia, I do hereby assign all my rights, title, and interest in the aforesaid indebtedness of the District of Columbia to me, and all claims which 1 may have against the said District of Columbia, to the Old Dominion Granite Company of Virginia; and this instrument further witnesseth that I have made no previous assignment or transfer of my claims against the District of Columbia.
    
      “ In testimony whereof I have hereunto set my hand and, seal this 10th day of August, A. D. 1880.
    “John Bardsley.”
    Andrew Gleason, named in findings i, ii, and vi. made the following assignment at the date thereof:
    “ Washing-ton, D. 0., March 20, 1883.
    “For value received, I hereby transfer, assign, and set over to John A. Hurley all my right, title, and interest in and to a certain claim against the District of Columbia arising under contract No. 588, made by JohnBardsley with the said District on the 26th day of October, A. D. 1872, the same being for work and labor; the amount of said claim is $590, with interest, which was deducted from the amount due said Bardsley under said contract and retained by said District.
    “Andrew Gleason.”
    
      Mr. Woodbury Blair for the Old Dominion Granite Company.
    
      Mr. B. IT. Webb for the claimant Hurley.
    
      Mr. John O. .Fay (with whom was the Assistant Attorney - General) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant in each of these consolidated cases claims under John Bardsley, who did work for the District under contract with the Board of Public Works.

The Old Dominion Granite Company of Virginia claims by virtue of an assignment made by said Bardsley August 10, 1880. The findings show that previous to that date the defendant had paid to said Bardsley not only all that was due him for work and materials, but had actually, by mistake, overpaid him to a considerable amount. Nothing, therefore, passed by the assignment, and that company has no cause of action.

The claim of Hurley is quite different, and involves a question of law. Andrew Gleason had a demand of $590 against said Bardsley for work done for him in performing his contract with the District, and he filed that claim' with the District authorities.

By the terms of the contract between said Bardsley and the board of Public Works it was provided (in the usual form of the Board’s contracts) that he, said Bardsley, “ will from time to time, and as often as may be required by said party of the first part, furnish to said party satisfactory evidence that all persons who have done work or furnished materials have been paid as herein required. And if such evidence is not furnished, such sum or sums as may be necessary for such payment or claims shall be retained by said party of the first part until the said claim shall be fully satisfied.”-

In stating the account between Bardsley and the District, November 29, 1874 (finding iii) the assistant engineer noted, "Hold amount involved in charges of McNamara, Baum, Gleason, and Woolly, as per charges book, $1,965,” and he was paid the balance after making that deduction.

Subsequently it appeared that there was an overpayment of much more than the amount of this deduction, so that in point of fact nothing was held back, and nothing remains due on Bardsley’s contract.

In 1872 Bardsley presented to the Board of Audit a bill of items in which was included tbe claim of Andrew Gleason, and the same was rejected by the board.

This court has no jurisdiction of claims rejected by the Board of Audit. (Act of June 13,1880, ch. 243, § 8 ; 1 Supplement to Bev. Stat., 562.)

March 20,1883, Andrew Gleason assigned his claim to the present claimant, Hurley.

The question is whether Gleason ever had a claim which he could enforce against the District. We think not. The provision in the contract with Bardsley that if he did not furnish evidence that all persons who had done work or furnished materials had been paid, then such sums as might be necessary for such payment should be retained by the defendant until said claims should be fully satisfied, was a contract only between him and the District, to which neither Gleason nor any other workman was a party. The defendant might waive it and pay the contractor in full, or might retain the money until the contractor paid his workmen. It was optional with the District to take either course. The workmen acquired no rights by virtue of tbe provision to compel the District to pay them out of money due the contractor.

It would be an unreasonable construction to give to the contract that the defendant intended to make itself liable to suits by all the contractor’s workmen whom he neglected to pay. There is no express agreement to that effect, and none can be implied from its language.

That Gleason filed his claim with the District authorities, and the engineer noted it on Bardsley’s account, did not create a contract with Gleason on the part of the defendant. The latter might have held and retained that amount from the money due Bardsley until he furnished evidence of the payment of the claim, but it did not subject itself to suit with Bard-sley’s creditors, and thus take upon itself-any controversies between those parties or any defenses which might be raised against the validity of the claim. (Dayton’s Case, 18 C. Cls. R., 13.)

It was not until March, 1883, more than seven years after Bardsley had been fully paid, and more than eight years after the Board of Audit had rejected tbe claim of Gleason presented by Bardsley, that Gleason assigned the same to the present claimant, Hurley.

The judgment of the court is that the petition in each case be dismissed.  