
    TALMADGE E. BROWN v. THE DISTRICT OF COLUMBIA.
    (19 C. Cls. R., 445 ; 127 U. S. R., 579.)
    
      On the claimant's Appeal.
    
    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 aeeepted, 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 cause of action adverse to the claimant’s assignors.
    
      The court below decides:
    (1) 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 hold that an acceptance of the offer by its secretary, though purporting to be “by order of the board,” was unauthorized, and that no contract resulted therefrom. s
    (2) 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.
    (3) 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.
    (4) 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.
    
    (5) 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 breach in refusing to designate any of the work to be done, the other a partial breach in refusing to designate all, an estoppel arises.
    (6) If a judgment upon demurrer determines the merits of the case, the plaintiff can never again maintain against the same defendant or liis privies a similar or concurrent action upon the grounds disclosed by the declaration in the first.
    The judgment of the court below is affirmed on the same grounds.
   Mr. Justice Lamar

delivered the opinion of the Supreme Court May 14, 1888.  