
    ANDREW A. LIPSCOMB, ADMINISTRATOR OF ESLIN, v. THE DISTRICT OF COLUMBIA.
    [No. 180.
    Decided February 9, 1885.]
    
      On the Proofs.
    
    On a final account a contractor is charged with 12,414 yards of blue rock at 75 cents per yard. His attorney receives the balance due, and receipts in full therefor. His administrator sets up that the deduction should have been for 5,933 loads, at 75 cents per load.
    Where a contractor, by his attorney, agreed that certain rock furnished him by the defendant should be charged at 75 cents i>er yard, and accepted payment of the balance without protest, his administrator is bound thereby.
    
      The Reporters' statement of the case:
    The following are the facts of the case so far as they are involved in the decision:
    
      III.The voucher issued upon final measurement in payment of work under said contract is as follows :
    “ WASHING-TON, D. 0., Sept. 27th, 1873.
    
      “Board of Public Worhs D. C. to G. W. G. Eslin, Dr.
    
    1,562 square yards new trick pavement laid, at 100 cents per yard. . $1,562 00
    1,588 square feet of flagging for crossings laid, at 60 cents per foot. 952 80
    2,177 running feet 6-inch new gran, curl), and setting, at $1.42 per foot. 3,091 34
    11 running feet C-incTi old h. s. curt reset, at 30 cents per foot 3 30
    2,200 lin. feet 16-inch new gutter-flag laid, at 50 cents per foot.. 1,100 00
    4,733 cubic yards grading, at 30 cents per yard. 1,419 90
    4,733 cubic yards haul, 600 ft. over 200 ft., at 7-J ceuts per yard. 354 97
    12,414 square yards blue-rock pavement laid, at $1.50 per yard.. 18,621 00
    27,105 31
    Deduct proiierty as above. 13,340 26
    13,765 05
    Retain 5c. per yd. on 1,562 yds. pavement. 78 10
    13,686 95
    “ Deceived, Dec. 2d, 1873, certificates Nos. 4195, 4196, 4197, 4198, 4199, 4200, 4201, 4202, and 4203, for $13,686.95.
    “James Eslin, Attorney.”
    
    IV.The following are the items composing the deduction-made in the voucher dated September 27, 1873, which items in the following form were written on the voucher; the receipt in finding iii is on back of the voucher :
    
      Extract from, file paper JVb. 5. — Final measurement of September 27th, 1873.
    Deduct 2,171 ft. of 6-in. curb, at $1.12 . *. 2,431 52
    1,588 sq. ft. flaggiug, at 48 . 762 24
    2,200 ft. of gutter-stone, at 38 . 836 00
    12,414 sq. yds. blue rock, at 75. 9,310 50
    13,340 26
    V.It does not appear that the party executing the receipt dated December 2, 1873, objected to the deductions, but gave the receipt for the amount after the said' deductions were made from the $27,105.31 mentioned in finding iii, or that any mistake was made in the charges of the deductions.
    
      Mr. William B. King for the claimant.
    
      Mr. John G. Fay (with whom was the Assistant Attorney-General) for the defendant.
   Weldon, J.,

delivered the opinion of tbe court:

On the trial of this case all claims were abandoned by the petitioner except $4,860.75 erroneously charged to decedent in voucher dated September 27,1873, set forth in finding iii, and the retain alleged in the petition. It is insisted that 12,414 yards of blue rock, at 75 cents per yard, in finding iv, should have been charged as 5,933 loads of rock, at 75 cents per load. The court having found that no mistake in fact was made in the charge, that the decedent, by his attorney, agreed to such charge, and accepted payment, without objection or protest, upon the basis of 75 cents per yard, his administrator is bound thereby.

This brings us to the counter-claim ; and as the court has found that the decedent was not indebted to the defendant for materials furnished, the counter-claim must be disallowed.

Upon this state of facts the claimant is entitled to recover the sum of $149.47, due and payable as set forth in the conclusion of law, and for that amount judgment will be entered.  