
    Jonathan Taylor v. The District of Columbia.
    
      On the Proofs.
    
    
      In October, 1875, the Commissioners of the District contract for pavement, the contractor to be paid “the price paid by the hoard of public works for concrete pavement.” For other work the contractor to bepaid “twenty per cent, additional upon the actual cost,” in 3.65 bonds, “at their market value at the New York Exchange at the date of each settlement.”
    I.Where the District Commissioners agree to pay for work the price previously “paid by the board of public works,” the contractor is not limited to the price fixed by an order of the board of public works appearing upon its minutes, but is entitled to the price actually paid by the board.
    II. In the absence of proof it cannot be presumed that a contractor knew of an order of the board of public works entered upon its minutes fixing the rate to be paid for a certain kind of pavement; but it may be presumed that a contractor engaged in that kind of work at the time knew of the rates actually paid by the board.
    III. Where the District Commissioners agree to pay a contractor for his work “ the pi-ice paid by the board of public works,” the burden is on them to specify that the price referred to was the price fixed by an order of the board, and not the higher price actually paid.
    IV. An order of the former board of public works fixing the price to be Xiaidfor concrete pavement was simply a rule for its own government, and could not by the mere force of its adoption bind a contractor.
    V.Where the words of a contract were, “ The wood pavement shall be taken up and replaced by a good, durable, concrete pavement,” and the contract is silent as to hauling away the material of the old pavement, it must be held that both parties considered the hauling as embraced in the price agreed to be paid for taking up the old and putting down the new pavement.
    VI.The District Commissioners have not power to issue the bonds authorized by the Act 20th June, 1874 (1 Supplmt. R. S., p. 55, § 7, ch. 337). That authority is vested solely in the sinking-fund commissioners.
    VII.The District Commissioners have not power to agree that payment shall he made to a contractor in bonds of the District “ at their market value at the New York Stock Exchange at the date of each settlement.” Such bonds can only be exchanged for the indebtedness of the District at their par value.
    
      
      The Reporters statement of tbe case:
    Tbe following are tbe facts of this case as found by tbe court:
    I. On tbe 23d of October, .1875, tbe defendant entered into a contract with tbe claimant, which was known and designated as “Extension of Contract JSFo. 583,” in which it was stipulated and agreed by and between tbe claimant and the defendant, among other things, as follows:
    
      "First. Tbe said Jonathan Taylor, for and in consideration of tbe stipulations hereinafter contained, and under tbe penalty expressed in a bond bearing even date with these presents, and hereto annexed, hereby agrees to repair the pavement .of the carriageway of Pennsylvania avenue between Second and Eighth streets east, under the direction of the engineer of the District of Columbia, and in the following manner, to wit: The wood pavement lying on the north side of the railroad track shall be taken up and replaced by a good, durable, concrete pavement, which shall embrace all the conditions and specifications contained in the propositions of the party hereto of the second part made to the party hereto of the first part, under date of September 22d, 1875, to wit:”
    (There being no questions in the case in connection with the specifications in the contract, they are omitted.)
    * # # « # * #
    “ Third. It is further agreed that the * * * said party of the second part hereto shall receive the price paid by the board of public works for concrete pavement, provided that payment be made in the bonds issued by the sinking-fund commissioners of the District of Columbia, under and by virtue of sec-, tion 7 of the act of Congress approved June 20th, 1874, which bonds shall be accepted and received at their par value.
    “For other work done under this agreement he shall receive twenty per cent. (20) additional upon the actual cost, to be determined by the original bills, attested by affidavits, and verified by the overseers, provided that payment be made in the hereinbefore mentioned bonds at their market value at the New' York Stock Exchange at the date of each settlement.”
    II. Subsequent to the date of said contract the claimant laid, in accordance with its requirements, 14,755-/)/),- square yards of concrete pavement, which was duly measured and inspected by the defendant.
    III. On the 12th day of January, A. D. 1870, the defendant stated an account with the claimant for and on account of the Xjavement so laid, and in the said account the defendant computecl tbe amount due to the claimant for putting down the said pavement as follows:
    For 11,755.23 yards of concrete pavement, at $3
    per square yard. $44,265 69 The claimant lias been paid on the said account the sum of $41,855.95, leaving a balance due to the claimant on the said account, as stated by the defendant, of $2,409.74.
    IY. On the 14th of September, 1871, the said board of public works, by an order entered on its minutes — of which it does not appear that the claimant had knowledge — fixed the prices to be paid by it per square yard for concrete pavements, as follows: For concrete, $3; for Scharf, $3.20; for Parisién, $3.20; each of which prices included whatever grading was necessary up to two feet; but no. deduction was in any case made from those prices because of that quantity of grading not being necessary. ’ •
    Y. Notwithstanding the said order, the said board did, in July and October, 1873, and after the last-named date, make divers and sundry contracts for concrete pavement, under which it paid contractors $3.20 per square yard for laying down such pavement; which pirice included two feet of grading; which was, after that date, the usual price paid by the board for such work.
    YL' The whole work required by said contract to be done by the claimant was completed on the 12th of January, 1876. Upon the completion of the work on the south side of Pennsylvania aventie the same was measured by the engineer department of the District of Columbia and reported to the board of audit fop settlement, as follows:
    For the work on the south side of said Pennsylvania avenue, in the nature of repairs to the wooden pavement, a measurement was reported as follows:
    Nov. 20,1875, for work and materials. $4,568 50 Less property furnished by the D. C. (3,004 feet of lumber ® $10 per ht) . 30 04
    $4, 538 46
    And on November 29,1875, the claimant received bonds of the District of Columbia in the sum of $4,538.46 on said account, leaving no balance due ttereon.
    
      Said account of $4,508.50 so reported was arrived at as follows:
    The actual cost of the work', as appears by the sworn account of the claimant, verified by the overseer of
    the defendant, amounted to.•-.$2, 664 97
    To which was added 20 per cent. 532 99
    Making the sum of. $3,197 96
    And a sum in bonds which, calculated at 70 cents on the dollar, was delivered to the claimant as set forth above, i. e., $4,538.46 © 70, $3,197.95.
    For subsequent work of the last-mentioned character and for the completion of the work on the south side of Pennsylvania avenue, a further measurement or account was prepared by the engineer department of the District of Columbia, as follows:
    Work, etc. $459 00
    Less materials charged (4,000 ft. lumber, $10 M). 40 00
    Amounting to. $419 00
    This account has never been audited, and the sum of $459 was arrived at in the following manner:
    The actual cost of the work, as appears by the sworn account of the claimant, approved by the overseer of the defendant, amounts to.. $267 75
    To which was added 20 per cent. 53 55
    Making the sum. of. $321 30 Aud the reported sum of $459 is the amount of bonds calculated © 70c.‘ on the dollar that it would require to realize the sum of $321.30, i. e., $459 © 70 c.=$321.50.
    VII. At the time of the completion of the work, as stated in the next preceding finding, the market value of District of Columbia 3.65 bonds at the New York Stock Exchange was 70 cents on the dollar.
    VIII. In doing the work on the north side of Pennsylvania avenue, the claimant had to take up an old and worn-out wooden pavement, and a rolléd bed of gravel on which it rested. The depth of wooden pavement and gravel which he removed was about ten inches. The wooden pavement and the bed of gravel had to be picked up with a pick and removed, all by handwork. The expense to the claimant of picking and removing this pavement and gravel was about as great as it would have been to do two feet of ordinary grading in earth.
    
      IX. The claimant hauled away the wood blocks and the gravel and dumped the same at a point about 3,800 feet from where the same was taken up; but it does not appear what quantity of either was so hauled; nor does it appear that the claimant ever made any claim for compensation from the said board of public works for hauling the same. Prior to the 23d of October, 1875, the board was accustomed to pay at the rate of one cent and a quarter per cubic yard for hauling each 100 cubic feet in excess of 200 feet of haul.
    X. In connection with the doing of the work under said contract it was necessary for the claimant to have on the ground an office and a'shed*to cover machinery, sand, &c., and he constructed the same, using therein 9,000 feet of lumber. Of this he got 4,000 feet of old lumber from the Commissioners of the District of Columbia, for which he was to pay $10 per thousand feet; which price does not appear to have been paid. Besides this he bought 5,000 feet of new lumber at $23 per thousand. About 3,000 feet of the lumber were cut in building the office and shed ; but whether the portion that was cut belonged to the old or new lumber, does not appear. The office and shed were put up in November, 1875, and they stood there till August, 1876; when, the claimant having been notified to remove them, and failing to do so, the assistant engineer of the District caused the same to be removed and taken to the Sixth street property yard of the District. Two weeks afterward the claimant called there for the lumber, and was informed by an overseer at the property yard that they had used it all up. The value of said lumber when so taken away was $85.
    
      Mr. John J. Weed and Mr. Samxiel Shellabarger for the claimant.
    
      Mr. J. O. Fay (with whom was Mr. Assistant Attorney- Gen-. eral Simons) for the defendant:
    The contract was ultra, vires in so far as it undertook to provide for payment in 3.65 bonds receivable otherwise- than at par. Congress had prescribed the terms on which those bonds should be issued (18 Stat. L., 120), and had given no authority •to the Commissioners to so deal with them, nor, for that matter, to deal in any manner with them, and without express authority given there Avas no power in the Commissioners to exercise it. (1 Dillon on Mun. Oorp., § 503; 10 Cal., 278; 51 Mo., 205;; 4 Dillon, 209.) The claimant should only recover, therefore, the cash value of this item.
    
      On the same ground the counter claim for $1,340.50, which has been paid to the claimant under the second paragraph of the third article of the contract, by increasing his certificates from their cash amount of $3,197.96 to $4,538.46, ex-chaned for that amount in 3.65 bonds to allow for alleged depreciation of the bonds, should be recovered.
   Drake, Oh. J.,

delivered the opinion of the court:

The facts in this case appear at large in the findings, and they need not be repeated here to any great extent.

The claimant presents a fourfold demand, as follows:

1. For an alleged balance of $5,460.78, due him for laying-14,755.23 square yards of concrete pavement;

2. For hauling a distance of 3,800 feet 4,715 cubic yards of excavation done in connection with the work specified in the contract;

3. For a further amount of work, ascertained by a supplemental measurement, $459; and

4. For lumber belonging to him, which the defendant took possession of, and'appropriated to its own use, $73.

In regard to the first item there is no dispute as to the facts. The claimant laid the 14,755.23 square yards of pavement, the price of which the defendant contends was $3 per yard, or $44,265.69 in all. On the other hand, the claimant contends that the price was $3.20 per yard, or $47,316.73 in all. The difference between the parties as to the price grows out of these words of the contract:

" It is further agreed that the said party of the second part shall receive the price paid by the board of public works for concrete pavement.”

■ The question then is, what was the price paid by the board of public works for concrete pavement” ?

The defendant contends that the price was fixed by the board at $3, by an order to that effect, entered on its minutes on the 16th of September, 1871.

For the claimant it is urged that the question is, not what the board had ordered more than four years before this contract was entered into, but what it had actually paid, at a later day, for such work ; and that it actually paid $3.20.

In our opinion, the claimant’s position on this point is the correct one, for various reasons.

1. It does not appear that the claimant knew anything of the board’s order of September, 1871; and therefore it is not presumable that he had that order in his mind when he signed this contract.

2. From his being engaged in such work it may. without violence, be presumed that he did know what the board had been paying at the later period of the last quarter of 1873, and that, when he made this contract, that was in his mind.

3. It is not necessarily to be presumed that the District- Commissioners, when they made this contract, knew of that order of the board. But if they did know of it, they may fairly be supposed to have known also of the higher price paid in 1873; and if they knew both, it was their place to have specified in the contract that the price should be that fixed in the order, if they so meant. By not doing so they left room for the implication that they intended the claimant to receive the more recent “pricepaid” in 1873; for the paying of that piice then by the board might well induce the belief that the board, notwithstanding the order of 1871, had seen fit, in 1873, to disregard it — as it had a perfect right to do — and pay the higher price of the latter year.

4. The board’s order of 1871 was simply a rule for its own government, and could not, by the mere force of its adoption, bind any contractor. If it was intended to fix in the contract a price according to that order, it could only have been done by naming that price in the contract; or, if the contract was so uncertain in its terms as to authorize resort to extrinsic evidence to explain its meaning, then by showing that the price fixed in the order was, in fact, what both parties intended. There is nothing in the facts found tending to show that either of the parties even thought of the board’s order, much less intended that the price of this work should be fixed by it.

5. There is nothing in the findings to show that the board, after the adoption of that order, ever in a single instance made a contract for concrete pavement at $3 per yard. For aught that appears the order may have been a dead letter on the minutes of the board, from the day of its adoption till the board ceased to exist, on the 20th of June, 1874.

Upon these grounds we are quite clear in the conclusion that the claimant is entitled to the “price paid” by the board in 1873 for concrete pavement; that, is $3.20 per square yard. In regard that work his claim stands thus:

For 14,755 23 square yards, ® $3.20. $47, 316 73

Less amount paid him on %. 41, 855 95

Balance due claimant . $5,460 78

As to the second item of claimant’s demand, namely, for hauling excavation, we can see no ground for a recovery. The findings show that the quantity he hauled does not appear. But if it did appear, still he could not recover, for these reasons: 1. That the contract does not bind the defendant to pay him for hauling; nor, indeed, does it mention at all the matter of hauling; and therefore, as the work could not have been done without hauling away the excavation, that must have been considered by both parties as embraced in the price agreed- to be paid him; and 2. That, so far as appears, the claimant never until he brought this suit advanced a claim for the hauling.

As to the third item, namely, $459, for a further amount due him on account of the contract work, ascertained by a supplemental measurement, there is no dispute as to the defendant’s liability for the work, but only as to the amount legally and justly due therefor. The measurement was made, and an account thereof stated, by the defendant’s engineer department, at $459; but it is found that that amount was thus made up :

The actual cost of the work, as appears by the sworn account of the claimant, approved by the overseer

of the defendant, amounts to.$277 75

To which was added 20%. 53 55

Total... $321 30

The reported sum of $459 is the amount of 3.65 District bonds, ® 70 cents on the dollar, that it would require to realize the sum of $321.30, i. e., $459 ® 70 c.=$321.30.

The question is,' whether this is an admissible way of stating the account.

From its being stated with an addition of 20% on the actual cost of the work, we conclude that the work was of a kind contemplated in the following clause of the contract:

. “For other work done under this agreement he shall receive twenty per cent. (20) additional upon the actual cost, to be determined by the original bills, attested by affidavits and verified by the overseers, provided that payment be made in the hereinbefore mentioned bonds at their market value at the New York Stock Exchange at the date of each settlement.”

Now, the point is, whether the District Commissioners had lawful authority to make payment, in such a case, in 3.65 bonds “at their market value at the New York Stock Exchange,” when that value was below the par value of the bonds. If they had such authority, this clause of the contract might be sustained; if they had not, then it is clear that they could make no valid contract authorizing a contractor to be paid in those bonds at a rate below par. Let us see what their authority was.

Section 7 of the Act June 20,1874 (18 Stat. L., 116,120), provides as follows:

“The sinking-fund commissioners of said District are hereby continued; and it shall be the duty of said sinking-fund commissioners to cause bonds of the District of Columbia to be prepared, in sums of fifty and five hundred dollars, bearing date August first, eighteen hundred and Seventy-four, payable fifty years after date, bearing interest at the rate of three and sixty-five hundredths per centum per annum, payable semi-annually, to be signed by the secretary and the treasurer of said sinking-fund commissioners and countersigned by the comptroller of said District, and sealed as the board may direct.. * * * And the said'sinking-fund commissioners are hereby authorized to exchange said bonds at par for like sums of any class of indebtedness in the preceding section of this act named, including sewer taxes or assessments paid, evidenced by certificates of the auditing board provided for in this act.”

From this it appears that, the District Commissioners were not authorized to issue those bonds at all, but that the authority to issue them was vested solely in the sinking-fund commissioners. If so, what power had the District Commissioners to contract to pay in those bonds? But we pass that by, and treat the matter on the assumption that they had that power; and what do. we find? Why, that the sinking-fund commissioners had just one function in connection with the issue of those bonds, namely, to exchange them at par for like sums of any class of indebtedness named in the 6th section of that act. That was the limit and definition of their authority in this regard. They were merely to exchange bonds at par for like sums of other indebtedness. They had no legal right whatever to exchange them at any other rate. No contract, therefore, made by the District Commissioners could bind or authorize them to exchange the bonds on any other basis than dollar for dollar. Such being the case, the clause in the contract which called for payment in bonds at a rate 'below par was a mere nullity, upon which the engineer department of the District had no lawful right to make the estimate of $459. Hence it follows that the amount to be allowed on account of the work ascertained by the .supplemental measurement is the actual cost of the work with twenty per cent, added thereto; which, as before stated, is $321.30.

As to the fourth item, for lumber of the claimant taken by the District authorities, there is no question of law; nor was there any dispute as to the facts, except in regard to the value of the lumber when it was taken. We find that value to have been $85; from which we deduct $40 due from the claimant to the defendant, as the unpaid price of 4,000 feet of the lumber, and allow the claimant the balance.of $45.

The judgment of the court is that the claimant recover $5,782.08, due and payable to him on the 12th of January, 1876, and $45, due and payable to him on the 31st of August, 1876.

Nott, J., was not present at the hearing of this case, and took no part in its decision.  