
    In Bank.
    Dec. Term, 1846.
    Lyon, Buck and Wolf vs. William McCadden.
    Sworn copies of estimates from the office of the Resident Engineer, are competent " evidence in an action against* ¿‘contractor, by a sub-contractor, to recover for'work . done* bn the .public works, for the-purpose of ascertaining the value of the work done:' " ‘ : • . • - . ’ ", * '
    This is a Writ or. Error to the Supreme Court; of Muskingum County, riiade returnable here. • '.
    ■ .The original action was assumpsit, for work and labor, &c. The declaration . contained only the common counts, to which wás/intérppsed .the plea of the'general 'issue, with notice ofsetoff.:' A’t the . October ‘ térm of the Supreme. Court, 1.844, in Muskingum county,, the: case was submitted to a jury, who found-a verdict for plaintiff below of $3,137.97, upon which the Court rendered'judgment.
    • During the progress of the trial the' following bill of excep.tions' was taken: • • . ' , . ' ■ ' •
    “Be it remembered that,, upon the trial of this cause, the ‘ plaintiff gave in evidence a.written agreement, signed by the ‘plaintiff and. defendants,- and ...’which was in "the'plaintiff’s • handwriting; and was as follows,-to wit: ‘McCadden agrees ‘ to perform fill'the.work on'Lyon’s (Taylorsville) section-of "e' public works, lying above the-locks, and also the excavátioñ of ‘ the lock-pits; above .low water, at his prices; and agrees, to . ‘ give Lyon fifteen hundred dollars, .as .premium; on the Same.- ‘ The payments to be made as. the'work progresses. Taylors- ‘ ville,-Ohio, Nov. 21, 1836. . ' .
    “William McCadden,.
    “Lyon, Buck & Wolf.’”
    • The plaintiff then- gave in. evidence the contract entered into, in October, 1836, between the defendants and the State of Ohio,' referred to . in the agreement between plaintiff, and defendants, which contained, among other things, the following: The contract prices were stipulated for all work enumerated; and it provided that the Board of Public Works should appoint some suitable engineer to inspect the works, with power to direct the mode and manner of doing the work; to direct changes in the work, and determine the compensation to be paid the defendants on account of a change, and to require work to be done not stipulated for in the contract, and fix the price to be paid therefor; and, to prevent all disputes, such engineer should determine when the work was completed according to the contract, and' certify the same in writing, under his hand, to the Board of Public Works, together with his estimate of the amount of the various kinds of work therein specified, which shall have been done under the contract, which estimate shall be final between the parties: ■ And thereupon the Board covenanted and agreed, within ten days after notice of such certificates and estimates, to pay the defendants the amount which should be due them, at the prices stipulated. The plaintiff then, for the purpose of showing the amount of work which had been done by him upon said section five, gave in evidence sworn copies of what he claimed to be the estimates of the engineers of the State having superintendence of the work. These sworn copies were objected to by the defendants’ counsel, but admitted by the Court. The evidence rejecting them was as follows: The assistant engineers, stationed at the different sections on the line of the Muskingum river improvement, made estimates of work done, from time to time, as they were directed, and transmitted these estimates, on detached pieces of paper, to the resident engineer, in McConnelsville. These estimates consisted of quantities and kinds of work, and the prices were annexed and carried out by the resident engineer after they reached his office. The resident engineer also examined these estimates, and corrected ■ them when he deemed them erroneous, sometimes increasing and sometimes reducing their estimated amount of work. The resident engineer then caused these estimates, thus corrected, to be registered in a book kept for that purpose. The original papers, transmitted by the assistant engineers to the office at McConnelsville, were sometimes filed, and sometimes thrown aside, as of no further use. There are no regular and complete files of them in the office. The estimates entered in the register, were entered, sometimes in the. handwriting of Messrs. Curtis and McAboy, the resident engineers at different periods, and sometimes in the handwriting of Mr. Straughn, and other persons employed in the office; and all the copies offered in evidence were copied from the register above described, excepting one called the final estimate; and with respect to that, the evidence was, that the witness asked Mr. McAboy, the resident engineer then in charge of the Muskingum Improvement, to furnish him with final estimates of the work done by defendants, who had contracts for other sections beside section five, and that, from a file of papers marked “Final Estimates,” the said McAboy handed the> witness certain papers, from one of which, purporting to be a final estimate of section five, a copy was made by witness, and given in evidence as above stated. This last mentioned estimate showed work done by plaintiff to the amount of seventy dollars more than that which preceded it, which was copied from the book, and increased the verdict of the jury in that sum. Neither the book nor paper were signed or certified, nor did the witness know in what handwriting they were.
    In the course of the further progress of the cause, it was proved by the defendants that the plaintiff, during the progress of the work, had said, that he did not expect to receive his pay faster than the defendants received it from the State; once, that in July, 1840, just before the completion of plaintiff’s work, the plaintiff admitted that, according to the scale of compensation prescribed by the State, (reserving per centum,) he had been paid more than was due to him, and that plaintiff said he had stopped or suspended his money in the hands of the acting member of the Board of Public Works; and the defendants further gave, in evidence, a letter of Leander Ransom^ Esq., the said acting member of the board, as follows :
    
      «0. Wolf,'Esq. . • * ’ “ Colubíbus, May 14, 1841.
    , . “Deav'Sir: — Tours of'the lltli 'instant, addressed' to Mr. Medbiiry, was this morning.' , At the time payments were made on the Muskingum, a few days since, Mr. McCadden presented a statement; the purport of which was that you. owed him some six or seven thousand dollars, for work . done under your contract,.ás a snb-conttactor, and. that, he found he should not-be paid for,a long time, at any rate, were' th'e money paid to you, Not lmowihg.any thing ábout the ¿matter,’ further than the. statement' above'referred to, I told Mr. Buck, who .was' present, that we must defer making-a payment on your section 'until s,ome arrangement should.he made with McCadden; or a -different aspect presented to this affair. Our estimate pan be made on-your work at any time, when .some .person is-present who is authorized-to receive 'it.an’d. receipt for it,-provided .the. McCadden- difficulty is'arranged,-if any .'-really exists. Asmo estimate has been made, the money remains in the State Treasury. l . • 1 , , ' . v' . ■
    “ Very respectfully, . • ' '• ,',-N‘LEANDÉR'RANSOM.”
    No-svidencé.' was. given,, oii';..either, ¿idé,- of any 'payment: By 'the-¡State to the defendants, after tHe/date of that letter, before the--commencement’of the s.uit,.- Defendants' asked' the Court to instruct the jury, that the plaintiff., could not. recover in this ac.tipn,,' if'the', jury believed' .-th'e evidence' as' jtb tlie, 'plaintiff’s saying that he - did not .expect to be paid fas.tér than the-'defendants' received it ..from the State, unless'.there, was- proof tbsatisfy the. jury’ that money had been received by'the. defendants,, bn account ofpláintiff’s work, from the -State, before 'suit brought'; .which-instructions the Court refused- to give.T.o which opinion' of the'Court, the'defendants, also except;-and they pray that this, their, bill of exception’s- to’.- said • several opinions of the Court,'may be .signed and; sealed'and made part of the récordin said cause.; which is accordingly done:
    The érrors assigned are, that the C.oui.t erred - in admitting copies of the estimates.,to 'go in evidence to the jury,-and in ¡refusing the instructions to the jury as requested by defendant’s counsel.' -
    Isaac Parrish, for Plaintiffs in Error.
    
      M. Stitivell, for Defendant in Error.
   Read, J.

We find no error in the ruling of the Supreme Court upon the circuit. In establishing the amount of plaintiffs’ claim, resort was had to the estimates of the engineers, as evidenced by sworn copies. It is made the duty of resident engineers, by the requisition of the Board of Public Works, and is necessary to the correct discharge of their official duties, to keep records of their proceedings. Estimates, mesne and final, those made during the progress of the work and after its completion, should be preserved. That the resident engineers, upon the several sections of the public works, have kept such record, is a fact well known. It is equally well known, that-all the hands, contractors, and persons employed upon any particular work, look to the records of the resident engineer for the requisite estimates, mesne and final, to enable them to ascertain their rights and make settlements. This is the universal practice and understanding. It never was supposed by any body that a person upon a particular section must go to Columbus, to the office of the Board of Public Works, to ascertain facts which could be procured from the office of the resident engineer. The very object of the office of resident engineer is to make estimates and furnish evidence of it; and precisely what the resident office furnishes, constitutes the records of the office of the Board of Public Works. Ingenuity is quite active, oftentimes, in suggesting reasons, why money should not be paid to hands and contractors for labor performed; and much distress is sometimes manifested lest the Court should compel a man to pay his honest debts. But in this case we can discover no violation of principle in the admission of evidence, as' it was nothing more than the admission of sworn copies of a record from a public office. And, beyond the estimates therein made and contained, were those referred to in the contracts, and by the understanding of all parties, as the evidence upon which to base payments and make final settlements, and determine what was due between the parties. There is nothing in the objection that these were copies of copies; they were the copies of the record. There is no doubt the record was made up of facts contained on paper, brought there for that and other purposes. This is the way all records must be made up. The thing to bé recorded must precede its being recorded.

As to the fact, that some of the money due from the State to the original contractors was retained, at the instance of Mc-Cadden, by the public officers and constituted a bar to a recovery, the Court were not called upon to charge respecting that matter. And the presumption is, if it did constitute a bar, that the fact was found in favor of McCadden, as he recovered a verdict and judgment. But I do not perceive any thing in the objection. McCadden could have but one satisfaction, and the fact that he attempted to secure the payment of his debt, can constitute no bar to a judgment on the original demand.

The fact that McCadden may have said, from timo to time, that he did not expect his pay any faster than the defendants received it from the State, amounts to no defence. It cannot be construed into a contract not to sue. If so, it is without consideration, and not binding. There is no error apparent upon the record.

Judgment Affirmed.  