
    CRANFORD & HOFFMAN v. THE DISTRICT OF COLUMBIA.
    [No. 359.
    Decided June 1, 1885.]
    
      On the Proofs.
    
    The contractors agree to construct and lay vulcanite concrete pavement; the Commissioners of the District agree to pay the price previously paid hy the Board of Public Works for such work. A contract between the board and one of the claimants specifies the price at “ ¡$3.20, lohich shall include two feet of gradingThe Commissioners restrict the price to $3 when no grading is done. The claimants protest, but subsequently enter into three other contracts in the same terms as the first.
    I.The court reiterates the decision in Taylor’s Case (17 C. Cls. E., 367), that when the Commissioners of the District agreed to pay the price previously paid by the Board of Public Works the contractor is not limited to the price named in an order on the minutes of the board, but is entitled to the price actually paid.
    II.When a contract is for laying pavement at “ ¡$3.20per square yard, which shall include two feet of grading," the work to be performed is an entirety, for which an entire sum is the compensation. Therefore, the defendant could not make a reduction where no grading was done.
    III.When a contractor voluntarily enters into a number of agreements amid circumstances which must lead the other party to believe that he acquiesces in a certain construction theretofore given to prior contracts, which by reference fix the price for the new one, he will be estopxied from questioning that construction, although the court would otherwise hold it to be erroneous.
    
      The Reporter s’ statement of the case:
    The following are the facts of this case as found the by court:
    I. On the 9th day of June, 1875, the defendant entered into a contract with the claimants, which was known and designated as extension of contract No. 762, in which, amongst other things, it was stipulated and agreed:
    “ First. The said Henry L. Cranford and Lindley M. Hoffman, for and in consideration of the stipulations hereinafter contained, hereby agree to repair the pavement of the carriageway of K street between Ninth street and the intersection of K street and Pennsylvania avenue northwest under the direction of the engineer of the District of Columbia, and in the following manner, to wit: The wood pavement shall be taken up from Ninth to Eighteenth streets northwest, and be replaced by vulcanite concrete pavement, to' be at least six inches in thickness after being thoroughly compressed, and must be composed of the very best material.
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      “ All the sound blocks on the street will be used, as the work progresses, in repairing said K street between Eighteenth street and the circle aforesaid.
    
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    “ It is further agreed that the said parties of the second part hereto shall receive the price established and paid by the Board of Public Works for the vulcanite concrete pavement.”
    After making the above-mentioned contract the defendant entered into eight other contracts with the claimants, which were known and designated as extensions of contracts Nos. 44, 270, 323, 346, 571, 620, 626, and 627; said last-mentioned contracts, although some of the work provided for in some of them had been done prior to that time, were signed as shown in finding v. That the stipulations in each of the eight subsequent contracts above mentioned as to the work to be done and the price to be paid were the same as in extension No. 762, except as to the locality of the work, which was different in each contract, and except also the stipulations in relation to price in contracts 1 Nos. 44 and 346, the language in those in relation to the price to be paid being “paid” instead of “ established and paid,” and except also that there was no old wood pavement to be taken up on the street mentioned in contract No. 762.
    II. Subsequent to the 9th day of June, 1875, the claimants laid, in accordance with the requirements of said contracts, 73,741.09 square yards of concrete pavement, which was duly measured and inspected and accepted by the defendant, as follows:
    
      
    
    The claimants have received for the above work at the rate of $3 per square yard only.
    III. That the price established and paid by the Board of Public Works for eoncrete pavements was #3.20 per square yard, including 2 feet of grading; this was the customary price contracted for and paid by the Board of Public Works, and it never paid less. No deduction was made by the Board of Public Works from that price, because the quantity of grading was not 2 feet. The Board of Public Works also established and paid 20, 30, and 40 cents a yard for grading, depending on the character of the work, and also established as a price for hauling away the earth necessarily taken up one-half a cent per yard for every 100 feet over the first 200, which price continued up to the 1st of June, 1873, and then was established and paid after that' time at a cent and a quarter per cubic yard.
    IY. In the years 1872, ’73, and ’74, the firms of J. P. Cranford & Co. and J. Y. W. Yanderburg & Co., of each of which firms the claimant Henry L. Cranford was a member, laid a large quantity of the said concrete pavement on the streets of the city of Washington, under contracts with the said Board of Public Works, in which the price stipulated was $3.20 per square yard, and the same was in every instance paid, although in most of them much less than 2 feet of grading was necessary ; that one of the contracts made by the defendant with the firm of J. Y. W. Yanderburg & Co., being contract No. 922, provided for the taking up of an old wood pavement and the substitution therefor of the concrete pavement; that the claimant Henry L. Cranford was the managing partner of the two said last-mentioned firms, and had the personal supervision and control of said work, and was familiar with the work and the prices established and paid by the said Board of Public Works in the said years 1872, ’73, and ’74.
    V. On the 13th day of September, 1875, the defendant stated an account with Murdock for laying concrete pavement under contract dated August 5, 1875, which was for doing the same class of work, and contained the same stipulation in relation to price as appears in the contracts now sued upon, and said Murdock was allowed and paid at the rate of $3.20 per square yard for that work.
    VI.
    
      
    
    VII. In doing the work under the contracts sued upon the claimants had to take up an old, worn-out wooden pavement, and grade out a hard gravel substance that was under it. The depth of wooden pavement and gravel removed was 9 or 10 inches. The blocks sufficiently sound to be used in repairing-other wood pavement had to be separated from the rotten and worthless, and the wooden debris and gravel hauled away, the distances averaging about three-fourths of a mile. The removal of the blocks, sand, and gravel was equal to the ordinary grading under the Board of Public Works.
    VIII. That the claimants were not allowed or paid anything for the taking up and hauling away of the old wood pavement and the debris and gravel in which it was laid, and the necessary grading to be done to fit the street for the reception of the concrete pavement; that such labor was at least as great and as expensive, if not more so, than doing two feet ot ordinary grading, and as expensive as the grading actually done under the contracts with the Board of Public Works mentioned in claimant’s fourth request for finding of facts.
    IX. The claimants, in presenting bills for work after the 28th of September, stated the price to be $3, and received the same without protest.
    X. 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 either of the claimants had any knowledge — fixed the price 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 2 feet, but no deduction was in any case made from those prices because of that quantity not being necessary.
    XI. Said board, in July and October, 1873, and after the last-named date, made contracts for concrete pavement, under which it paid contractors $3.20 per square yard for laying down such pavement, which price includes 2 feet of grading, which was after that date the usual price paid by the board for such work.
    XII. The clause in the contract of the Board of Public Works in reference to the price to be paid is as follows:
    
      11 Also to take up and remove the wooden pavement on Pennsylvania avenue between Ninth and Tenth streets N. W., in the city of Washington, D. 0., and to lay and put down the pavement known as and called the vulcanite concrete pavement on the carriage way of said Pennsylvania avenue between said Ninth and Tenth streets N. W., in the city of Washington. \
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    “ Tenth. It is further agreed that the said parties 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 this agreement and in all respects completing the same, to wit:
    # * - * * # * *
    “ Laying and putting dowu the said vulcanite concrete pavement, per square yard, three dollars and twenty ($3.20) cents, which shall include two (2) feet of grading, which said sums or prices the said party of the first part shall pay to the said parties of the second part as herein provided.”
    # X * * * $ *
    
      XIII. It does not appear at what precise date tbe contracts Nos. 270, 323, 44, and 627 were let, but work was commenced on each of said contracts after the 28th of September, 1875, as is shown in finding iv, and the aggregate amount of work done under those contracts is 36,813 square yards. On the 28th of September, 1875, when the first estimate was made, the parties differed as to the construction of the contracts'in relation to the price, the claimants insisting that they were entitled to $3.20, without reference to the amount of the grading, and the defendant insisting that they were not. After that date the said last-mentioned contracts were let and bills were made out by the defendant at $3 per yard, to which claimants did not object. After the 28th of September the claimants did not object to the ■ defendant’s construction, and entered into new contracts. The amount of work done in contracts let before the 28th of September is 36,928 yards.
    XIV. At the time of the making of said contract it was the practice (under the Commissioners) of the engineer department (75), under whose direction the contract was prepared and executed, and by whom all measurements were made and certified, • to make a ratable deduction for the cost of grading if no grading was done, and that such was the construction of the “ board price.”
    XV. That on the completion of the work authorized under said contract the same was measured by the engineer, and the requisite grading not having been done, as claimed by the engineer, a deduction of 20 cents per square yard was made on said measurement, being the board price, as construed by the engineer, for grading, and such measurements were audited by the Board of Audit, and the amounts so certified were paid the claimants, who receipted for the same, “ in full,” on the 28th day of September, 1875, but signed the receipt under protest for all contracts let before that time, claiming that they were entitled to $3.20.
    XVI. After the said 28th of September the claimants, to wit, on the 14th day of October, 1875, signed other contracts, known as extensions of contracts 44, 270, 323, 346, 620, 626, and 627, for the same kind of work, and in which the price to be paid was expressed in the same language. The said extensions had been made before said 14th of October, and a portion of the work done, but it does not appear when the contract was made.
    
      
      Mr. 0. C. Cole for the claimants:
    1. There seems to be no doubt but that the proper construction of the contracts sued upon, in the light of the surrounding facts, is that the price intended was $3.20, and that no deduction was to be made from such price if less than 2 feet of grading was required in laying the pavement. This was the practical construction of the contracts by the Board of Public Works, without exception, and the claimant Cranford had become aware of that construction by doing work for the defendant under contracts with that board.
    2. It is claimed that these receipts given to the Board of Audit have the effect of barring the present suit, and cases are cited which are supposed to support that theory. But a glance at the cases relied upon will show that they were actual and well understood compromises of disputed claims. (Sweeny v. The United States, 17 Wallace, 75; United States v. Clyde, 12> Wallace, 35.) This court has had occasion to pass upon the effect of the action of the Board of Audit, in such matters, and has held that it was not a board of arbitration or a quasi-judicial body, and that it had no power to compromise or finally settle disputed claims against the District, but that its powers were confined to the duty “ to examine and audit for settlement.” (Neitzy’s Case, 17 O. Cls. R., 129, 130; Distriet of Columbia v. Cluss, 103 U. S. R., 705; O’Hare v. The District of Columbia, 18 O. Ols. R., 616; Campbell & Fslin’s Case, 18 0. Oís. R., 213; Boaehe’s Case, 18 O. Ols. R., 229; Mitchell et al. v. United States, 18 O. Ols. R., 281.)
    
      Mr. John C. Fay (with whom was the Assistant Attorney-General) for the defendant:
    The claimants are estopped by their settlements. (Sweeny’s Case, 17 Wallace, 75; Comstoelc’s Case, 9 O. Ols. R., 141; Martin’s Case, 10 O. Ols. R., 276; 12 Wallace, 232.)
    The deduction for the cost of the grading was certainly fair and equitable, and a fair construction of the contract. It cannot be true that grading to the depth of 2 feet cost nothing, and when this value went to make up the price of the work the absence of such grading ought to work a reduction in the price. (Shumm v. Seymour, 24 N. J. Equity Reports, 147.)
   Weldon, J.,

delivered tbe opinion of tbe court:

Tbe claimants brought suit to recover tbe sum of $14,748 due them, as they allege, for labor performed on tbe streets of Washington during the latter part of tbe year 1875.

They bad nine contracts with th'e defendant, under which they laid 73,741 square rods of concrete or vulcanite pavement, for which they have been paid at tbe rate of $3 per square yard, being twenty cents per yard less than the contract price, as they now insist. The agreements on which this suit is founded are numbered 762, 627, 270, 323, 620, 626, 346, 44, and 571.

No specific compensation is provided by the terms of the agreements, but reference is made to the amount “paid” and “established and paid” by the Board of Public Works for such work.

The contracts are similar in terms, except Nos. 44 and 346; in those two the word “ paid ” is used, while in all of the others the words “ established and paid ” are employed by the parties.

With that variation the contracts as to compensation are as follows:

“It is further agreed that the parties of the second part hereto shall receive the price established and paid by the Board of Public Works for the vulcanite concrete pavement.”

In order to develop fully the agreements it is necessary for us to incorporate into them so much of the contracts made by the Board of Public Works as indicate the price paid, “ or established and paid,” by that body for similar work during its administration.

In the contract ottered in evidence as establishing the price by the Board of Public Works, and which is set forth in finding xii, it is provided:

“ Also to take up and remove the wooden pavement on Pennsylvania avenue between Ninth and Tenth streets northwest, in the city of Washington, D. C. •, and to lay and put down the pavement known as and called the vulcanite concrete pavement on the carriage-way of said Pennsylvania avenue between said Ninth and Tenth streets northwest, in the city of Washington.
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“Tenth. It is further agreed that the said parties 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 clone under this agreement, and in all respects completing the same, to wit:
#*####*
“ Laying and putting down the said vulcanite concrete pavement, per square yard, three dollars and twenty ($3.20) cents, which shall include two (2) feet of grading, which said sums or prices the said party of the first part shall pay to the said parties of the second part as herein provided.”

The controversy grows out of that part of the contract which relates to the subject of grading, the claimants insisting that they are entitled to the $3.20 for having removed the wooden pavement, without reference to the fact whether any grading was done, and the defendant insisting that in order to entitle the claimants to the full measure of the agreement they must have done at least two feet of grading. The portion of the contract relating to the depth of grading was differently construed by the Board of Public Works and the Commissioners, the former, not regarding it as material that the contractor did not do two feet of grading, and the latter, by its engineer, determining the compensation as dependent upon the amount and depth of grading. Upon the latter theory accounts were made outfor the claimants from time to time by the engineer, and receipts given by them, upon the basis of such a construction; and the claimants themselves made out and presented to the Board of Audit two accounts based upon the Commissioners’ construction of the contract.

The claimants objected to that construction of the agreements, when the defendant first sought to establish it under the Commissioners, and presented the two accounts made out by them after their objections and protest against the action of the District engineer in construing the contracts as excluding the twenty cents where the two feet of grading was not done.

On the 28th of September, 1875, the parties had a controversy upon the subject of the construction of the contract as to the price, the claimants insisting that they were entitled to $3.20, and the engineer of the defendant insisting that, inasmuch as two full feet of grading was not done, the parties were only entitled to $3. They differed as to the construction of the agreements, the claimants making out their bill at the former price and the defendant estimating the work on the basis of the latter. The claimants on that date accepted the compensation resulting from the defendant’s construction of the agreement and gave a receipt in full of the account, but protested that it was not as much as they were entitled to, and that it was not in full satisfaction of their claim.

It will be seen by reference to finding vi that up to the 28th of September the claimants had commenced work on contracts Nos. 702, 571, 620, and 346, and although contracts Nos. 346 and 626 were not actually reduced to writing and signed until the 14th of October, they were in fact let before the controversy between the parties as to the price on the 28th of September. The amount of work done under the contracts completed and commenced before said last-mentioned date is 36,928 yards, leaving of the 73,741 yards completed under all the contracts 36,813 yards commenced and completed after the 28th of September, 1875.

It is also insisted that on the 14th day of September, 1871, the Board of Public Works, by an order entered on its minutes, fixed the price to be paid by it per square yard for concrete pavement at $3, and therefore that became the price under the contracts made by the Commissioners of the District.

That precise question, on a similar finding, was before this court in the case Jonathan Taylor v. District of Columbia (17 C. Cls. R., 367). In that action it was held:

u Where the District Commissioners agree to pay for work the price previously “paid by the Board of Public Works f the contractor is not limited to the price fixed by the order of the Board of Public Works appearing on its minutes, but is entitled to the price actually paid by the. board. * * * An order of the former Board of Public Works fixing the price to be paid for concrete pavement was simply a rule for its own government, and could not by the mere force of its adoption bind a contractor.”

In all the contracts embraced in this controversy except Nos. 44 and 346 the words are “ established and paid ” instead of “ paid.” A price usually is established by parties in dealing with a given subject-matter, and ordinarily is the best evidence of its value, and must be taken as the best evidence of such value even though it may be contradicted by a declaration or act of one of the parties not communicated to the other. The ^findings show that one of the claimants, before the making of Ibhe agreements declared on, had been a large contractor with ■he Board of Public Works; that he had received $3.20 for concrete pavement; and they do not show that he had any knowledge of the entry made on the books of the board on the 14th of September, 1871. Between the making of that order and the date of the agreements he had been paid $3.20 for work, without deduction on account of a deficiency of grading, and it was not the rule to deduct for such deficiency.

A rule or custom is established in law when it has become •tlie settled policy of conduct, and when by reasonable intendment it can be assumed that parties making a contract had it in contemplation. It then becomes a part of the contract, and may be invoked as defining the duties, and measuring the responsibilities of the parties.

“Previous and contemporary transactions and facts may be .very properly taken into consideration to ascertain the subject-matter of a contract and the sense in which the parties may hare used particular terms, but not to alter or modify the plain language they have used.” (Crawley v. United States, 96 U. S. R., 168; same case, C. Cls. R.)

As a result of such reasoning we must hold that in law there is no difference in the rights and obligation of the parties because of the difference in the words of the agreement.

But, aside from the act of the parties, the usage and custom of the Board of Public Works and the engineer of the Commissioners, what is the right of the claimants, as determined by the terms of the agreement, in relation to their compensation1? It is provided “ laying and putting down the said vulcanite concrete pavement, per square yard, $3.20, which shall include two feet of grading.”

The work to be performed is an entirety, for which the claimants are to receive an entire sum as compensation. By the terms of the contract the claimants are to do an-entire amount of work, which may include two feet of grading or may be less than that amount, and for which, with that contingency, they are to receive the sum of $3.20 per square yard. The entirety of the compensation is not dependent upon whether the grading is exactly two feet or falls below that amount.

The indication of the intent of the parties is that the claim-, ants were to do the necessary grading to the extent of two feetj and lay the pavement for an entire sum of $3.20 per square* yard. It is not a contract of distinct and separate parts, but® contract of legal unity, embracing a variety of matter, but in contemplation of law an indivisible whole. The parties were to put down on the streets of Washington a certain kind of pavement and to receive a certain price, which price was taken in compensation for grading whatever was necessary to the extent of two feet. The $3.20 was intended to pay them for two feet of grading, provided that was necessary to be done in order to lay the pavement prodded by the contract.

Having ascertained and determined the meaning of the contract as to compensation, it by no means follows that the measure of such compensation is continuous and commensurate with the time and scope of the agreements. It is true that the terms expressed in the contract were the same before, at, and after the disagreement and dispute of the parties on the 28th of September, but their acts, while they do not change the terms of their agreement, may in law affect their interests, increasing or diminishing the responsibility and liability of the parties.

The officers of the District said to the claimants at the first estimate under the contracts let before that time, We will only pay you $3 per yard”; and while the claimants disagreed to that construction, so as to save vested rights, they afterward made agreements, commenced and finished similar work under other contracts with the District, without objection or protest, thereby in effect acquiescing in the construction of the engineer as to the compensation to be paid after said date.

It does not appear that they objected after the 28th of September, and their silence might, and we have no doubt was, accepted by the officers of the defendant as an agreement on their part to do the work at $3 per yard.

We do not, by the distinction we make in the time antecedent and subsequent to the 28th of September, construe the contract as meaning one thing before said date and another after that time; but predicate the difference in the compensation upon the ground that the claimants, under the facts and circumstances, are estopped from claiming for contracts let after the disagreement more than $3.

The protest and disagreement expressed by the claimants had reference to the payments made under a contract let before the 28th of September, but do not apply to contracts made ,fter that date.

Indeed, it may be seriously questioned whether a protest was necessary to save their rights under agreements made before the 28th, as they had, by the terms of the agreements, a vested right to the full measure of their compensation; and if they received less than such compensation, without a new consideration for such concession, it would not bind them in law. (Baldwin v. United States, 15 C. Cls. R., 303; Bostwick v. United States, 94 U. S. R., 53; 12 C. Cls. R., 67; Child et al. v. United States, 12 Wall., 232; 7 C. Cls. R., 209; Comstock Case, 9 C. Cls. R., 114.)

It is elementary law, that an undertaking to do an act without any consideration, is a naked promise, and attaches no responsibility.

It does not appear distinctly from the finding when 626 and 346 were let, but by finding vi it will be seen that work was-commenced on them before the 28th of September, so that the date of the commencement of the work may be assumed as the day on which the parties agreed to the terms of the agreement,, which was on the 14th of October reduced to writing.

While the doctrine of estoppel is not favored as a defense, yet when the acts of parties have induced a certaiu result which cannot be disregarded without prejudice to the rights of others, it is a most wholesome rule of law, to hold, that a party cannot be heard, to deny what he has once asserted to be true,, and upon the truth of which others have been induced to act.

Whatever, therefore, may be the proper construction of contracts made before the 28th of September, after that date, by the act of the claimants, the compensation is as contended for by the defendant.

Adopting the theory of the law as announced by the opinion, it is the judgment of the court that the claimants recover the sum of [$7,385.60, and for that amount judgment will be entered, due and payable as of the 1st of January, 1876.

Davis, J., did not sit in this case and took no part in the decision.  