
    JOHN LYONS v. THE DISTRICT OF COLUMBIA.
    [No. 232.
    Decided June 2, 1884.]
    
      On the Facts.
    
    The Board of Audit misunderstands a deduction made by an engineer when certifying to a contractor’s work and allows more than the contract price. The defendant now seeks to recover back the overpayment by way of counter-claim.
    I. It is well settled that an allowance made by the Board of Audit does not conclude the rights of the parties.
    II. An overpayment allowed by the Board of Audit in consequence of misunderstanding a certificate of an engineer is a payment made in mistake of fact which may be recovered back.
    
      The Reporters’ statement of the case:
    The controversy here was entirely upon the counter-claim, in regard to which the following facts were found by the court:
    I. In 1871 the Board of Public Works established the price of Belgian pavement a.t $2.80 a square yard. They subsequently increased the price, but to what amount does not appear, except by the following statement: After the Commissioners came into power they made many extension contracts in which they agreed to pay the “ prices established and paid by the Board of Public Works.” Thereupon the engineer made a schedule of “prices established and paid by the Board of Public Works,” as he claimed them to have been. The schedule was prepared in the summer of 1874. This schedule was kept in the contract office and shown to contractors and others interested in the matter. It was published in the engineer’s first report in 1875. All settlements were made according to this schedule, if made under the direction of the Commissioners or engineer. According to this schedule, “ the price established and paid by the Board of Public Works” for granite Belgian pavement, including two feet of grading, was $3.50 a square yard. When the grading was not required 30 cents a cubic yard was deducted from the price. This deduction was equal to a deduction of 20 cents a square yard in the price of the pavement.
    
      II. Under this extension contract No. 838, the claimant furnished the material and laid down 6,640 square yards of granite Belgian pavement, but did no grading. That had been previously done by other parties.
    III. January 11,1876, the engineer of the District transmitted to the Board of Audit a measurement of the pavement. He reckoned the price at $3.50 a square yard, and deducted 20 cents a square yard on account of grading done by other parties. The whole deduction amounted to $1,328. The Board of Audit, in mistake of fact, struck off this deduction and gave a certificate for the whole amount at the rate of $3.50 a square yard. The certificate was afterwards paid.
    
      Mr. M. F. Morris for the claimant.
    
      Mr. John O. Fay (with whom was the Assistant Attorney General) for the defendant.
   Scorield, J.,

delivered the opinion of the court:

In 1875 and 1876 the claimant entered into divers contracts with the defendant, in which he agreed to furnish materials and perform the work in the improvement of streets and the construction of sewers in the District of Columbia. The contract requirements were all executed and claimant was paid in full therefor, except certain sums retained as guaranty for the character of the work. These sums amount to $1,797.53. The terms of the guaranty are fulfilled, and the claimant is entitled now to claim this balance, and it is so admitted by the defendant.

The only contest in the case is over the counter-claim. It grows out of the following facts:

One of these contracts required the claimant to pave Bridge street, in Georgetown, with “granite Belgian blocks.” He paved the street according to contract. The contract provided that he should be paid according to the “ prices established and paid by the Board of Public Works for work of a similar character.”

From the facts stated in finding III the court concludes that the price established and paid by the Board of Public Works for this kind of pavement, including two feet of grading, was $3.50 a square yard. The grading was reckoned at 30 cents a cubic yard, which was equivalent to 20 cents a square yard. When the grading was not required the cost of it at this rate was deducted. In this case the claimant did not do the grading. After the payment was completed the engineer measured it and computed the amount due. In this computation he deducted 20 cents a square yard on account of grading. It amounted to $1,323. In this form the amount certified by the District engineer to be due was laid before the Board of Audit, as required by the act of June 20,1874. That board, in mistake of fact, struck off the deduction and audited the bill for the full amount, as if the two feet of grading had been done by the claimant. The defendant seeks to recover on the counterclaim the amount thus overpaid to the claimant.

This court has repeatedly held that an allowance made by the Board of Audit did not conclude the rights of the parties, and that ruling has been sustained by the Supreme Court. (District of Columbia v. Cluss, 103 U. S. R., 705; Neitzey’s Case, 17 C. Cls. R., 111; Adams’s Case, id., 351; Brown’s Case, id., 402; Campbell & Eslin’s Case, 18 C. Cls. R., 193.)

This $1,328 having been paid through the Board of Audit in mistake of fact, should be allowed to the defendant. Deducting the amount of it from the claimant’s demand leaves due to him the sum of $469.53, for which‘judgment will be entered in his favor, due and payable January 1, 1876.  