
    JOB BARNARD, ADMINISTRATOR OF RYAN, v. THE DISTRICT OF COLUMBIA.
    [No. 127.
    Decided April 20, 1885.]
    
      On the Proofs.
    
    An express contract provides for grading and excavating a designated street at a specifted price per yard. An entry on the journal of the Board ofPublic Works designates a higher price for “ rook excavation." The contractor is paid the contract price ; his administrator seeks to recover the other.
    I.It is well settled that an entry on the journal of the Board of Public Works establishing prices could not control an express contract subsequently made.
    II.Where the District of Columbia seeks to recover back money paid for contract work, the burden is on it to show that a certain deduction ordered by its engineer should have been enforced by its auditor.
    III.An overpayment allowed by the Board of Audit may be recovered back.
    
      The Reporters’ statement of the case:
    The following are the facts found by the court:
    I. Robert H. Ryan entered into a contract with the Board of Public Works, July 23, 1872, for the improvement sey avenue southeast, in Washington; the parts material in this case are as follows:
    “First. That the said party of the second part has agreed, and by these presents doth agree, with the said party of the first part, for the consideration hereinafter mentioned and contained, and under the penalty expressed in a bond bearing even •date with these presents and hereunto annexed, to furnish, at his own proper cost and expense, all the necessary materials and labor, and, in a good, firm, and substantial manner, to grade, set the curbstone, and lay and put down the brick foot-pavements, to park, and construct the sewer laterals along blew Jersey avenue, from B street south to Potomac River, in the city of Washington, D. O.; also to construct 18-inch stone: walls (which shall be laid in cement) in the two openings at the east and west ends of the culvert under New Jersey avenue, between D and E streets southeast; * # * also to lay and put down the pavement known as and called the ‘Perry wooden-block pavement’ in the carriage-way of said New Jersey avenue, between B and E streets southeast. * * *
    “ Five cents per square foot will be retained by the board for eight months after tbe pavement is finished, to repair any settlement or other defect which may be shown within that time; such repairs to be made by the board as they may deem necessary. * * *
    “ Sixth. It is further agreed that all loss or damage arising out of the nature, of the work to be done under this agreement, or from any unforeseen obstruction or difficulties which may be encountered in tbe prosecution of the same, or from the action of the elements, or from incumbrances to individuals’ property, or otherwise, on the line of the work or adjacent thereto, shall be sustained by the said contractor. * * *
    “ Eighth. And it is further agreed that partial payment shall be made by the duly authorized financial agent of the said party of the first part on the monthly estimates of the chief engineer of the Board of Public Works aforesaid, and that whenever the said chief engineer aforesaid shall certify, in writing, that the party of the second part completely performed this contract on his part, and shall submit, with said certificate, his estimate of the amount due the party of the second part, then, within thirty days, as hereinafter provided, the said party of the second part shall be entitled to receive the full amount due under this contract, deducting therefrom all previous partial payments which may have been made as hereinafter mentioned.
    “And it is further expressly agreed that no money shall become due and payable under this contract except upon the certificate of said engineer as hereinbefore provided; and the said party of the second part further agrees that he shall not be entitled to demand or receive payment for any portion of the aforesaid work except in the manner set forth in this agreement; and when each and all of the stipulations hereinbefore mentioned are complied with, and the engineer shall have given his certificate to that effect, a final settlement shall be made in writing between the parties, and the whole amount found due the party of the seco nd part under this contract shall be paid to him, excepting such sum or sums as may be retained under any provision of this contract: Provided, That partial payments may be made, under direction of the said party of the first part, otherwise than upon the estimates of the said engineer, as provided above, if, in the opinion of the said party of the first part, the vigorous prosecution of the work will be promoted thereby. # * *
    “ Tenth. It is further agreed that the said party 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:
    “Grading, 30 cents per cubic yard, which shall include the first 200 feet of hauling.
    “For every additional 200 feet of hauling, per cubic yard, 1 cent.
    
      “ Setting curbstones, new, 8-inch, per linear foot, 40 cents.
    “ Setting curbstones, new, 6-inch, per linear foot, 30 cents.
    “ Setting curbstones, new, 5-inch, per linear foot, 25 cents.
    “ Besetting curbstones, old, 4-iuch, per linear foot, 15 cents.
    “ Laying brick pavement, new, per square yard, 80 cents.
    “Belaying brick pavement, old, per square yard, 25 cents.
    
      “Provided, That bricks shall be furnished by the board, at a price not exceeding $11.50 per 1,000.
    “ For furnishing material and putting up stone steps, including foundation, complete, per linear foot, $3.
    “ Six-inch sewer pipe, per linear foot, 60 cents.
    “ Excavation and refilling, 40 cents per cubic yard, to be measured in excavating only.
    “ Parking, furnishing, and laying sod and soil, as per specifications, per square yard, 50 cents.
    “ Stone masomy, per perch, $6.50.
    “Fifteen-inch pipe, per linear foot, $1.33.
    “ Twelve-inch pipe, per linear foot, 88 cents.
    “ Perry wood pavement, treated as aforesaid, per square yard, $3.50, to include 2 feet grading. Which said measurements or prices the said party of the first part shall pay to said party of the second part as herein provided.
    “Eleventh. Itisfurther agreed that themeasurementsshallbe made by the engineer of the said party of the first part or his assistants.
    “ Twelfth. And the said party constituting and composing tbe Board of Public Works in and for the District of Columbia aforesaid agree with the said party of the second part to perform all the stipulations of this contract obligatory in it, and to pay or cause to be paid to the said party of the second part, or his heirs, executors, or administrators, in lawful money of che United States, the amount which may be found from time to time due him according to the contract.”
    II. Previously to the making of said contract, to wit, June 22,1872, the Board of Public Works had made the following order, which appears of record in its journal:
    “ Chief engineer was * * * also notified that the following price was established for rock excavation, viz :
    “ In ditches for sewers, &c., $1.50 per cubic yard.
    “ Cutting down streets and the like, $1 per cubic yard.
    ‘‘Auditor and contract clerk notified.”
    #*#**##
    At some time after the making of said contract the board adopted a printed form of contracts, in which “ Grading, for each and every cubic yard of earth, sand', or gravel excavated,” and “Bock excavation in cutting down streets, when blasting is required,” were put down in separate items, to be paid for at different prices.
    In grading streets the board in some cases did allow, on the certificate of the engineer, $1 per square yard for rock excavation even where no blasting was required, without reference to the terms of the contracts. And taken by itself $1 a square yard was a fair and reasonable compensation for such kind of grading.
    III. In pursuance of his contract said By an performed a large amount of work on New Jersey avenue. Part of the grading done consisted of excavation of rocks and bowlders of different sizes, mingled with the earth, but none requiring blasting. Th e quantity of such excavation was reported by the board’s superintendent of the work at 5,800 yards, which estimate came from the engineers.
    IV. An account between the parties was stated and settled as follows: v
    “Washington, D. C., Sept. 25,1873.
    
      “Board of Public Works, D. C., to Robert S. Ryan, Dr.
    
    6,008i square yards new trick pavement laid, at $1 per yard. $6,008 25
    2,990 running feet 6-inch new b. s. curb aud setting, at $1.42 per foot. 4,154 32
    
      588 running- feet 6-inch old b. s. curb and setting, out to 5-in., 30 cents per foot. $176 40
    268J running feet 5-incli b. s. curb and setting, $1.20 per foot. 321 90
    1,368 running feet 4-inch b. s. curb and setting, 95 cents per foot. 1,299 60
    130 running feet 6-inch granite circular curb and set ring, $2.05 per foot. 266 50
    913J running feet brick gutter, laid flat, 1 ft. wide, 10c. 91 32
    8,889 cubic yards grading, at 40 cents per yard. 3,555 60
    16,428f0- cubic yards grading, at 30 cents per yard. 4,928 61
    25,317-$, cubic yards haul, 800 ft. over 200 ft., at 4 cents per yard. 1,012 70
    8,993 square yards wood pavement laid, at $3.50 per yard... 31,475 50
    8,300 square yards sodding, at 50 cents per yard. 4,150
    722 square yards resodded because of fall of sewer banks, 50. 361
    894f lin. ft. Seneca stone steps, $3 . 2,684 25
    395 “ “ check blocks for steps, $3. 1,185
    61,770 95
    Property. 4,932 25
    56,836 70
    Brick.. 461 58
    56,377 12
    Certif's. 50,000 56
    6,376 56
    Reserve [retain] on brick pav’t, 8 mos. 300 40
    6,076 16
    
      “ Note. — $2 to be deducted from reserve [retain],
    “ I hereby certify that I have measured and inspected the work done by Robert H. Ryan on the improvement of New Jersey ave. S. E., from B to E street, in sq’r’s-, embraced in his bill dated Sept. 25,1873, which work was done under the order of the Board of Public Works (contract No. 414,1872), and find it correct as to quantity and quality, and that the work has been done and material and labor furnished as per contract and specifications.
    “ Ohas. E. Barney,
    
      “Assistant Engineer.
    
    
      “ Dated Sept. 25, 1873.
    “ Approved Sept. 25, 1873.
    “Adole Cluss,
    
      “Engineer B. P. W., in Gh’ge.
    
    
      “ I certify that the foregoing bill is correct in form, and that the prices are according to contract, and is therefore audited in the sum of sixty hundred and seventy-six and dollars.
    “J. C. Lay,
    
      “Auditor B. P. W.
    
    
      “ Dated Oct. 13th, 1873.
    
      “ Received October 13, 1873, certificates 3392,3393, and 3394, for $6,078.16.
    “Robert H. Ryan.
    “ This ain’t should be $6,078.16. Retain 298.40.”
    Y. Subsequently, in January, 1876, after the abolition of the Board of Public Works, the Board of Audit stated the following account with said Ryan, and he was paid the balance thereof January 14,1876:
    “ Washington, D. C., Sept. 25,1873.
    
      “Board of Public Works, D. C., to Roberts. Ryan, Dr.
    
    6,008J square yards new brick pavement laid, at $1 per yard . $6, 008 25
    2,996 running- feet, 6-inch new b. s. curb and setting, at $1.42 per foot. 4,254 32
    588 running feet 6-incli old b. s. curb and setting, cut to 5-in., 30 cents per foot. 176 40
    268J running feet 5-inch b. s. curb and setting, $1.20 per foot- 321 90
    1,368 running feet 4-inch b. s. curb and setting, 95 cents per foot. 1,299 60
    130 running feet 6-inch granite circular curb and setting, $2.05 per foot. 266 50
    913J running feet brick gutter, laid flat, 1 ft. wide, 10c. 91 32
    8, 889 cubic yards grading, at 40 cents per yard.i. 3, 555 60
    16,428* cubic yards grading, at 30 cents per yard. 4,928 61
    25,317* cubic yards haul, 800 ft. over 200 ft., at 10 cents per yard. 2,531 77
    8,993 square yards wood pavement laid, at $3.50 per yard ... 31,475 50
    8,300 square yards sodding, at 50 cents per yard. 4,150
    722 square yards resodded because of fall of sewer banks, 50..’. 361
    894f lin. ft. Seneca stone steps, $3. 2,684 25
    305 “ “ cheek blocks for steps, $3. 1,185
    63,290 02
    Deduct property. 5, 393 83
    57,896 19
    Certificates. 56, 078 72
    Amount due. 1,817 47
    “ I hereby certify that I have measured aucl inspected the work done by Robert H. Ryan on the improvement of New Jersey ave. S. E., from B to E street, in sq’r’s-, embraced in his bill dated Sept. 25, 1873, which work was done under the order of the Board of Public Works (contract No.-, 187-), and find it correct as to quantity and quality, and that the work has been done and material and labor furnished as per contract and specifications.
    “Chas. E. Barney,
    
      “Assistant Engineer.
    
    “Dated Sept. 25, 1873.
    
      “ Approved Sept. 25, 1873.
    “Adolp Oluss,
    
      “Engineer JB. P. IF., in CVgeP
    
    VI. The following paper was made, signed by said Ryan, and placed on file among tfie papers of the District Commissioners, but was not signed by them :
    “ W. B. Nov. 18, 1875. But. File 8S59 B. O., 1875.
    
      “Extension of contract No. 414.
    “For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Robert H, Ryan that contract No. 414 in the series of contracts made by the Board of Public Works of the District of Columbia be, and the same is hereby, extended, with its various terms, conditions, and stipulations, -to embrace the following work, viz:
    “ Lay and put down the trap-rock pavement on the carriageway of New Jersey avenue, between D street and the canal, southeast, in accordance with specifications.
    “ It is further agreed that the work herein specified shall be completed by the 1st day of Dec., 1875, under penalty of forfeiture of all right and title to perform the same.
    “ It is further agreed that the said Robert H. Ryan shall receive the prices established and paid by the Board of Public Works for work of similar character, provided that payment be made in the bonds issued by the sinking-fund commissioners of the District of Columbia, under and by virtue of section 7 of the act of Congress approved June 20'th, 1874, which bonds shall be accepted and received at their par value.
    “ In witness whereof the Commissioners of the District of Columbia, successors to the Board of Public Works, appointed under the act of Congress entitled ‘ An act for the government of the District of Columbia, and for other purposes,’ approved June 20th, 1874, and the party of the second part to these presents have hereunto set their hands and seals this 18th day of November, 1875.
    “-, [L. S.’
    . “-, [L. S.'
    “-, [L. S.
    “ Commissioners of the District of Columbia.
    
    “Robert B. Ryan, [seal.]
    “ Contractor.
    
    “ Signed and sealed in the presence of—
    “Wat. A. Brown,
    “Arthur Shepherd.”
    
      VII. Thereafter said Ryan did work for the District, for which the following account was stated by the engineer, as thereon appears:
    “Washington, D. 0., January 21, 1876.
    
      “District of Colmibia to R. 3. Ryan, Dr.
    
    3.325.66 square yards new brick pavement laid, at 100 cents per yard.......... $3,325 66
    325 square yards old brick pavement relaid, at 25 cents per yard. 81 25
    57.90 square yards new cobble-stone pavement laid, 70 cents per yard.... 40 53
    2,290 running feet 5-inch now b. s. curb and setting, at 120 cents per foot. 2,748 00
    20.5running feet 6-inch b. s. curb and setting, at 142 cents per foot..... . 29 11
    96.4 running feet 5-inch b. s. curb reset, at 25 cents per foot- 24 10
    20.5 running feet 6-inch b. s. curb reset, at 30 cents per foot- 6 15
    33.5 running feet 6-inch granite circular curb and setting, 205 cents per foot. 68 67
    19 running feet 6-inch old granite circular curb reset, 30 cents per foot. 5 70
    173.7 running feet 16-inch new gutter flag laid, at 48 cents per foot,. 83 37
    6,518.84 cubic yards grading, at 30 cents per yard. 1,955 65
    2,769.82 cubic yards grading, at 40 “ “ “ . 1,107 93
    9.288.66 cubic yards haul, 529 ft. over 200 ft., at 06.6125 cents per
    7,519.35 square yards Belgian pavement laid, at $3.50 per yard.. 26,317
    72 To removing 20 trees and stumps, $5.00 . 100 00
    36,508 05
    Deduct for 2 feet grading required under contract, 5,012.9 yds.,
    35,004 18
    “ I hereby certify that I have carefully examined the field-notes and report of Stephen D. Charles, leveler, who measured and inspected this work, and find the quantities correct. The work is reported to be in good condition.
    “ New Jersey avenue southeast, bet. E street and canal. Contract 414.
    “ January 21st, 1876.
    “S. H. Bodrish,
    “ Assistant Engineer.
    
    “Approved, subject to future inspection of the work.
    “B. Oertley,
    
      “Ass’t Engineer for Lieut. Engineers, U. S. A., and Engineer for E. O.
    
    “ Jan’y 21, 1876. Final to date.”
    The foregoing account was audited, allowed, and paid, through the Board of Audit, as follows :
    
      “WASHINGTON, D. C., Jan. 24, 1876.
    “ Dislriet of Columbia to B. H. By an, Dr.
    
    For contract Ex. 414; surface N. J. ave. S. E., E to canal:
    Final measurement. $36,508 05
    Deduct property. $2,171 30
    “ cert. 19281 and ’2. 14,830 68
    “ “ 19463. 12,553 21
    - 29,555 19
    6,952 86
    Retain on pavement 166 28
    Balance. 6,786 58
    Contract 414; sewer N. J. ave. S. E., F to canal:
    Final measurement. 3,501 98
    Deduct property. 29 25
    “ cert. 19463 . 2,399 91
    - 2,429 16
    Balance..■. 1,072 82
    Total...... 7,859 50
    Charges:
    File 446, 60 loads sand. 15 00
    
      “ 564, sand and gravel 2’ st. 36 30
    , 51 30
    Balance. 7,808 20
    “ Received this 28th day of January, 1876, from the Board of Audit, their certificate No. 25002, for $7,808.20, in settlement of the above-stated claim.
    “ Robert H. Ryan.”
    YIII. Said Ryan died April 3, 1881, and said Barnard was duly appointed in the District of Columbia administrator of his estate April 23,1881.
    
      Mr. 1. S. Ford for the claimant.
    
      Mr. J. G. Fay (with whom was the Assistant Attorney-General) for the defendant.
   Richardson, Ch. J.,

delivered the opinion of the court:

Two claims are set out in the petition in this case :

First. The sum of $166.28 “ retained on pavement,” as appears by the final settlement set out in finding vii. This is uot-controverted by the defendant.

Second. The sum of $4,060 for “ certain grading of exeava-tiou of stone or rock” done by the claimant’s intestate, Ryan, over and above the amount paid to him. As to this claim the facts are these: Said Ryan and the Board of Public Works entered into a written contract July 23, 1872, by which he was to do certain work for the improvement of New Jersey avenue southeast, at the prices therein specified, among which were “ Grading, thirty (30) cents per cubic yard, which shall include the first two hundred (200) feet of hauling,” and “ Excavation and refilling, forty (40) cents per cubic yard, to be measured in excavating only.”

Just before the making of this contract the board had entered in its journal as follows: “ Chief engineer was notified that the following price was established for rock excavation, viz: In ditches for sewers, &c., $1.50 per cubic yard; cutting down streets and the like, $1. Auditor and contract clerk notified.”

It is urged on the part of the claimant that he is entitled to $1 per cubic yard for so much of the grading and excavating done by said Ryan.as was “rock excavation,” instead of the contract price of 30 cents for grading and 40 cents for excavation. In this demand we cannot concur.

The entry upon the journal of the board establishing prices did not control the written contract of the parties subsequently made. It was so held in Roche’s Case (18 C. Gis. R., 217), where the journal entry establishing prices by its terms related back to a time anterior to the contract. It would seem that entries of that kind in the journal of the Board of Public Works-were intended to apply to work where no written contract existed, and perhaps to the kinds of work described where done separately from other work.

The contractor in this case was to be paid 30 cents for grading and 40 cents for excavation, without any distinction as to the different character of the work which might occur in different places. The contract was evidently based upon the average character of the whole work to be done, which might prove either more favorable or more expensive to him than was anticipated. In the one event he would have the advantage, and in the other he would be obliged to sustain the loss.

It is easy to understand that when one was employed to do a piece of work which was all rock excavation he would have a larger price than when employed to do excavation which was of varied character in different parts, and the prices established by the board would therefore seem to apply only to work of the former kind.

It appears that in some cases like the present the Board of Public Works did allow and pay contractors the board rate for rock excavations. There might have been exceptional cases of hardship where the board undertook to favor meritorious contractors beyond their legal rights. But for whatever reason it was done, no obligation on the District was thereby established to do likewise to other contractors.

Subsequently to the date of Ryan's contract the board adopted a form of contracts which classified grading and excavating streets into two kinds — road and gravel excavation, and rock excavation when blasting is required. But'the claimant is not entitled to the benefit of this change in the form of contracts with subsequently contracting parties, and if he were he would gain nothing by it, for the findings show that none of his rock excavations required blasting.

In Davis’s Case, decided at the present term (ante, 157), the claimant had a contract in the more recent form above referred to, in which a price was put down for sand or gravel excavation, and although rock excavation when blasting is required was put down as one of the items of work, no price was carried out. The claimant did some rock excavation not requiring blasting, and the court held that it did not come within either of the items of his contract. It was not ■“ sand or gravel excavation,” and so was not to be paid for at the price named for such work. He therefore recovered for the reasonable value of the work as outside of the contract.

The claimant’s case is quite different. The prices fixed by his contract were for grading and excavation generally, and were not limited to sand or gravel excavation. The work he did came within the general language of the contract for which the prices were fixed. Those prices have been paid and nothing more is due on that account.

There are three items of counter-claims set up by the defendant:

First. In the account settled by the Board of Public Works, as set out in finding iv, the contractor was paid for 8,889 cubic ‘ yards of grading at 40 cents per yard, and it is claimed on the part of the defendant that the contract price was only 30 cents a cubic yard.

It is true that the contract does fix the price of grading at 30 cents a cubic yard, but it also fixes the price of excavation at 40 cents a cubic yard. Exactly what was the distinction does not appear, but it seems by the account tha.t the engineer certified to two kinds of grading, one at 30 and the other at 40 cents a yard, and it is to be presumed that the latter included excavation, especially as the findings show that considerable excavation was done. We do not think that the defendant has established any error in the matter.

Second. In the account set out in finding vii it appears that the engineer deducted $1,503.87 "for 2 feet grading under contract,” and that when the account was settled that deduction was omitted and the gross amount was paid. There is nothing in- the case by which to determine whether or not this deduction should have been made, and as the burden of proof is upon the defendant who alleges an error, and it has not been proved, this item of counter-claim cannot be allowed. If the work was done under the original written contract, nothing in that instrument required such a deduction on any work embraced in this account. The extension of the written contract signed by the claimant was not signed by the Board of Public Works, and if the work was therefore not done under the written contract we have nothing to show what were the prices agreed upon or what the work was reasonably worth. The defendant has not shown what prices should have been paid, and those actually paid must be presumed to be correct.

Third. In the account set out in finding iv the claimant’s intestate was allowed for "25,317.7 cubic yards haul, 800 feet over 200 feet, at 4 cents per yard,” which was the contract price, and he was paid accordingly.

Subsequently the same account was restated by the Board of Audit and this item was put down at 10 cents per yard, and the difference between 4 cents and 10 cents was paid thereon. This was wholly without justification and must have occurred by fraud or gross mistake. The claimant was thus overpaid by Board of Audit on that account the sum of $1,519.07. (Neitzey’s Case, 17 C. Cls. R., 101; Brown’s Case, 17 C. Cls. R., 420.)

As the original claimant has died, without assets, as it is understood, and the case is prosecuted by his administrator, the defendant asks tbat only so muck of said overpayment shall be set off against the $166.28 retained, as set out in finding vii, as will equal the latter sum, and that is allowed.

On the whole case the claimant’s petition will be dismissed.  