#### JOHN J. SHIPMAN v. THE DISTRICT OF COLUMBIA.

No. 122

April 2, 1883.

I. In October, 1872, the secretary of the Board of Public Works wrote to the claimant that the Board had awarded him a contract at Board rates. The Board had in fact awarded a contract, but had not fixed rates.

The claimant, after seeing the engineer of sthe District, went to work in 1872, and rendered bills from time to time, and was paid at less rates than Board rates.

In 1873 he resumed work, and rendered bills from time to time, and was paid at the same rates as in 1872.

The claimant having done a quantity of Macadam pavement on the work which was not called for by the agreement, the District recognized it and paid him for it.

The Board of Public Works in 1872 ordered the claimant’s contract to be reduced to writing, but it was not reduced to writing and signed until December, 1873, when it was signed by Cooke, Shepherd, and Magru-der on behalf of the Board. Cooke was a member in 1873, but had ceased to be one before December, 1873.

The contract as signed corresponded in rates with the bills as rendered and paid, and were not Board rates. The claimant contends that the contract, by reason of mutual mistake, varied from the intent of the parties, and that the rates of payment should have been Board rates, and asked the court, as a court of equity, to reform it.

Held:

The practical construction given by both parties shows that there was no mistake; that the 'contract as signed expressed the’will of the i parties; and that when signed it related back to the work done previous to signature; and that it is immaterial whether it is valid as a contract, as, if invalid, it is evidence of the intention of the parties.

II. In 1874 the contract was renewed and extended so as to take in a much larger work. The claimant constructed a wall which contained more cubic yards of masonry than the plans of the engineer of the District. It appeared that this was done with the knowledge of the Commissioners and of the assistant engineer, and that there was no concealment, and it might have been known to the chief engineer.

*292Held :

Money paid for this, amounting to $20,459.19, could not be recovered back on a counter-claim alleging it to have been paid by mistake of fact.

III. The contract called for the construction of the -wall at $5 per cubic yard, and said nothing about excavations for it.

Held:

The claimant was bound to make the excavations necessary for .the wail without extra pay for it.

IV. The contract called for a lining of coarse gravel in the rear of the retaining-wall, and made no provision for payment. There was no gravel near the work.

Held :

The claimant was entitled to compensation for this work.

V.¿,The contract called for a coping of ordinary stone on the wall. By agreement of parties, North River blue-stone was substituted, at an extra compensation of 40 cents per foot. The claimant contended that this was per square foot; the defendant that it was per running foot. The claimant contended that he was also entitled to be paid for the coping as masonry. The defendant did not deny it. The defendant paid an arbitrary rate of 74-J cents per running foot, which the claimant'accepted.

Held :

This was a settlement of.that part of the dispute, and the claimant cannot recover for the coping as masonry in addition.

VI.The claimant, under an extension of the contract, did work on another road. His work was measured, and a bill aggregating about $15,000 was rendered. The Commissioners made out a new bill fixing the rates so as to produce an .aggregate of about $22,000, in order to make a payment in bonds equivalent to a .payment in cash, and paid the bill so made in bonds.

Held :

A payment in boncls at less than par was illegal. This was an attempt to do indirectly what could not be done directly, and that in stating an accountit must be treated as a case payment of the face value of the bonds. '

The following are the facts found by the court:

1. The following letters were addressed by the claimant to officers of the defendant at the time of their respective dates, and action was taken upon them by the Board of Public Works of ,the District of Columbia, as shown by. the respective in-dorsements upon them:

Georgetown, D. C., *Oot. 3d,*1871.

Col. James A. Magruder:

Sir : I propose to grade, macadamize, eul&ert, and gutter the road from Georgetown to Little Palls or Chain Bridge at the following prices, viz:

*293Grading, 18 cts. per sq. yd.; macadamizing, fl.35 per sq. y.; building three (3) large cuiterts, which is necessary to be laid in best cement, with dressed stone faces at $5.00 per sq. yd. and nine (9) small culierts, dry wall, •at |25.00 apiece; laying and paving side gutter, wherever necessary, at 65 cts. per sq. yd.; $3.50 per perch for building up side wall near the canal wherever necessary.

In my opinion, it would be necessary to mate the road eighteen (18) feet in width. If you award me the work, I have thirty men which I have been working on Chain Bridge for the last two months which I will move on the road forthwith.

Hoping that this my application will meet your favorable consideration, I am, with much respect, your obed’t serv’t,

John J. Shipman.

[Indorsement.]

Board op Public Works,

*Washington, D. 0., Oct. 13th,*1871.

Respectfully referred to the executive officer.

Chas. S. Johnson,

*Asst. Secretary.*

Washington, D. C., *Deo. 7th,*1871.

Mr. A. R. Shepherd,

*V. P. B’d of Puh. Worlcs :*

Sir: Understanding that you considered the prices named in my proposal for macadamizing the Geo’town and Little Falls road, I wish to make some corrections.

The grading was -intended to be by the cubic y’d instead of the sq. yd., as is the bid, and the macadamizing was bid for on the basis of being 12 inches deep, and the paving and guttering I will do for 50 cts. per sq. yd. if allowed to use blue-stone, or at the Board prices if I am to use cobblestone.

I will further agree to do the work satisfactorily at a scale of prices agreed upon by the Board.

John J. Shipman.

IT. On the -5th of October, 1872, -the said Board directed the chief engineer of the District to prepare with the claimant (who had then been a contractor engaged in Government and State contracts for many years) a contract for repairing the Chain Bridge road from Aqueduct to Chain Bridge, so as to put the same in good temporary repair for the winter, and caused an entry thereof to be made on their journal, and a further order that the claimant was to be notified of its action.

III. On the same 5th day of October the assistant secretary of said Board addressed the following letter to the claimant:

*294Board of Public Works, District of Columbia,

*Washington, Oct. 5th,*1872.

Jno. J. Shipman, Esq.,

*Washington, D. C.:*

Sir: You Raye this day been awarded contract for repairing the Canal road from the Aqueduct Bridge to the Chain Bridge at Board rates.

The repairs will be made under the direction of B. D. Carpenter, supt. of roads, who has been notified to give you such instructions as you may require, so that the road may be put in good traveling condition before winter sets in.

By order of the Board.

Chas. S. Johnson,

*Asst. Secretary.*

IY. The claimant made no answer to the letter set forth in finding III. He called upon the District engineer in charge of county roads, and after an interview with him began work on the 8th October, 1872.

Y. On the 28th of the same October, the following letter was addressed to the claimant. It is disputed whether he received it. The court finds that he did receive it.

Oct. 28, 2.

John J. Shipman, Esq.,

*Washington:*

Sir : You are informed that the chief engineer has been directed to amend your contract No. 561, dated Oct. 8, 1872, so as to include the construction of a culvert on Canal road (culvert No. *6),*at the following price, viz, according to plan on file in this office:

83 cub. yds. culvert .masonry, at $5.00... 415 00

142 *“ “*retaining walls, at 5.00... 710 00

6,000 arch brick, *“*22.00. 132 00

1,533 cub. yds. grading, *“*30.,. 459 90

$1,716 90

By order of the Board.

Chas. S. Johnson,

*Asst. Sec'y.*

YI. The claimant continued work until about December 1, 1872. On his request an estimate was made in January, 1873, of the amount of work done to that time. It was computed to be $4,740.77, and he received a certificate of $3,000 in part payment.

YIT. The following correspondence took place in April and *295May, 1873, with reference to resumption of the suspended work:

Washington, D. C., *April 10th,*1873.

Hon. A. E. Shepherd,

*Vice-Pres. P. B. W. :*

Sir : The work under my contract on Canal road was suspended in Dec. last. I am now desirous of commencing said work and finishing up the same. If it is the pleasure of the Board to have it don’, I have some 800 or 900 yds. of broken stone which was not included in my origenal contract. The use Of this stone upon the hed of the road would add greatly to the durability of the same, being less likely to wash than clay or gravel, and altogether make a more permanent road. ' Should you determine to let mo proceed with the work, I would like a permit to commence at once, as I have my men and teams ready. Therefore, should it be determined to use the broken stone, I would request that my contract be amended so as to include the same at such prices as the Board has heretofore been paying for such work.

Very respectfully,

John J. Shipman.

Indorsed in pencil as follows :

Mr. Carpenter: I do not think there is any need of this. Is there f

A. E. S.

Inclosed in a wrapper on which are the following indorsements:

1.

(In pencil:) Mr. Carpenter: I do not think there is any need of this. Is there? C. L. B.

2.

Board op Public Works, District op Columbia,

*Washington, April 20th,*1873.

Eespectfully referred to the supt. of roads. Mr. Shepherd thinks there is no need of this. Is there ?

By order of the Board.

Edward Johnson,

*Chief Clerk.*

3.

May 6, 1873.

Eespectfully returned with the report that an examifiation of this road has been made, and find it in a bad condition by reason fof doing the work so late in the season. The stone work is not finished, which ought to be, especially as Shipman does the work for $5.00 per cub. yd. He commenced to finish the wall with very fine coping at the same rate as the other wall, and when .completed will be an excellent job. The construction of two 18-in. pipe culverts is also necessary; they were included in his contract. The trimming of the road was not completed, and recommend it to be finished, especially between Chain Bridge and old guard lock in canal. In view of the large amount of travel over this road to

*296Facts of the case.

Georgetown and Washington, I respectfully recommend the road he put in easy and comfortable condition. In regard to the McAdamizing, if the Board do not wish to incur the extra cost of it that can he deferred until a more favorable opportunity.

Yery respectfully,

B. D. CARPENTER,

*Supt. Hoads,*

4.

(In pencil:) Do the other. We won’t do any macadamizing now.

Board of Public Works, District oe Columbia,

*Washington, May*7, 1873.

B. D. Carpenter, Esq.,

*Sup’t of Hoads:*

Sir : I am directed by the Board to say that your report upon the application of John J. Shipman to resume the work on the Canal road is approved, and you will have the work you suggest commenced. As for macadamizing, the Board will not do any of that at present.

Yery respectfully,

Edward Johnson,

*Chief Clerk.*

May 7, 3.

John ,J. Shipman, Esq.:

Sir : In reply to your communication of the 10th ultimo, asking permission to resume work on the Canal road, I am directed by the Board to notify you that the supt. of roads has been instructed in the matter, and from him you will receive the necessary orders.

Yery respectfully,

Edward Johnson,

*Chief Clerk.*

YIIL. In pursuance of this correspondence, the claimant called upon Carpenter and resumed the work under his instructions,. and continued it until it was completed somewhere about the 24th October, 1873. Claimant then addressed the following letter to the defendant:

Board of Public Works, District of Columbia,

*Washington, D. C., Oct.*24, 1873.

Hon. Board Public Works :

Gentlemen : Having completed the work on Canal road so far as the same has been ordered, I respectfully request a final measurement thereof. Youts, &c.,

Jno. J. Shipman.

Enclosed in a wrapper, upon which is the following endorsement:

*297BoaRd or Public Works, District op Columbia,

*Washington, Oct.*25, 1873.

Respectfully referred to B. D. Carpenter, supt. of roads.

By order of tlie Board:

Frank T. Howe,

*Chief Cleric.*

IX. The defendant thereupon caused to be made the final measurement of the said work, which the claimant had requested $ on the said measurement a voucher was made up,, which was in the following form, and the amount found due thereon was paid to the claimant:

Washington, D. C., *Dee. 18th,*1873.

Final measurement and estimate of work done on Canal road by J. J. Ship-man to date.

30,258.8 cub. yds. grading on road, , at 30c. |9,077 64

1,312 “ “ “ “ *a*30c. 393 60

1,661.53 “ *“*rock excavation, *“*$1.00. 1,661 53

913.39 *“ “*stone masonry, “ $5.00. 4,566 95

5,'700 bricks for arch culvert, “ $22.00. 125 40

162feet 18-inchpipefurnished & laid, “ 1.62 262 44

129 “ 15 “ “ “ “ “ “ 1.33.■ 171 57

9 cub. yds. stone pavement for culvert, . $5.00. 45 00

Deduct from meas, dated M’ch 2, ’75: 746.29 cub. yds. macadam stone furnished & laid, at $3.14. 2,343 35

555.55 “ “ “ “ “ “ “ “ 1.50. 833 32

Total... 19,480 80

10%... 1..948 08

17,532 72

Property.•. 836 55

16,696 17

13,771 43

$2,924 74

Very respectfully,

B. D. Carpenter,

*Supt. Roads.*

J. C. Lay, Esq.. *Auditor.*

Endorsed as follows:

Received certificates Nos. 168 & 169, dated Jan’y 9th, 1874, for $2,924.74,

John J. Shipman.

X. Claim for haul. — The material for the grading and the rock excavation paid for in accordance with the measurements

*298•contained in. the final measurement and estimate set forth in Voucher IX, amounting in the aggregate to 33,232 yards, was hauled an average distance of 1,850 feet.

On the 22d January, 1872, the Board rates for hauling were one cent per cubic yard for each 200 feet over the first 200 feet. On the 15th July, 1873, the rate was changed to 1¿ cents per ■cubic yard for every 100 feet of haul over the first 200 feet after June 1,1873.

When the measurement was made, as set forth in finding IX, and when the payments were made thereunder, the claimant laid no claim to be paid for such hauling, nor did he lay claim to be paid therefor until after, the performance of all the work hereinafter set forth and the final measurement and. the final payment set forth in finding XXVI.

The claimant then demanded payment for the haul. The defendant refusing, the demand for it forms the first and second items in the bill of particulars in his petition. The 1,661.53 cubic yards of haul of stone excavation in said second item are included in and go to make a part of the 33,232 cubic yards of haul which form the said first item, and the separate claim therefor was abandoned by the claimant at the trial.

XI. Boabd bates bob masonev. — On the 29th March, 1872, the Board of Public Works adopted as Board rates for rubble masonry laid in cement mortar $6.50 per perch.

The claimant rendered his accounts for the 913.39 cubic yards ■of stone masonry described in the final measurement, set forth in finding IX, at $5 per cubic yard. The accounts were audited and he was paid therefor at that rate, and laid no claim to any other or further compensation therefor until after the final settlement set forth in finding XXVI. Then the claimant demanded payment for said masonry at Board rates, and, the demand being refused, such claim forms the third item in .said bill of particulars.

XII. The claimant being dissatisfied with the allowance of the charge for Macadam in the measurement set forth in finding IX, the following correspondence took place:

Board of Public Works, District of Columbia,

*Washington, Nov.*26, 1873.

Col. Jas. A. Magrudf.r :

Sir: My contract for the improvement of Canal road has heen completed; the macadam for the same is not included in the contract, that having *299been ordered by you personally. I respectfully request that you officially indorse upon this paper that said macadam was put on said road by your order, so as to enable me to have my account for the same closed up.

Very respectfully,

Jno. J. Shipman.

Endorsed as'follows:

I did order the stone put on the road.

Jambs A. Magrtjdek,

*Tr. B’d P. W’lcs.*

Nov. 29, ’73.

Amend the contract to include what was ordered by Col. Magruder, as above. _

H. A. W. •

(Stamped:) Board of Public Works, D. C., Nov. 29,1873.

Board of Public Works, District of Columbia,

*Washington, Nov. 29th,*1873.

Hon. Adolf Cluss,

*Mng’r in charge:*

Sir : You will please cause contract No. 561, with J. J Shipman, to be amended so as to include the McAdamizing of the Canal road, the work having already been done. *

By order of the Board.

Chas. S. Johnson,

*Secretary.*

Board of Public Works, District of Columbia,

*Washington, Nov. 29th,*1873.

J. J. Shipman, Esq., *City :*

Sir : The engineer in charge has been directed to amend your contract, No. 561, so as to include the McAdamizing of the Canal road, the work having already been done.

By order of the Board. •

Chas. S. Johnson,

*Secretary.*

XIII. In pursuance of tbe order of tie Board, referred to in finding II, the deputy engineer of the Board directed the contract clerk of the Board to prepare a contract with the claimant. No such contract was actually signed until about December, 1873, when an instrument was signed by the persons whose names it bears, of which the following are the parts material to this case:

No. 561.

This contract, made and concluded this eighth day of October, in the year one thousand eight hundred and seventy-two, by and between Henry D. Cooke, Alexander K. Shepherd, James A. Magruder, A. B. Mullett, and *300¡S. P. Brown, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and John J. Shipman, of Lewinsville, Va., of the second part, witnesseth:

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 clean the gutters and do the grading necessary in trimming Canal road, between the bridge known as and called the Aqueduct Bridge, over the Potomac River at Georgetown, D. C., and the so-called Chain Bridge, over said Potomac River, in the county of Washington, D. C.

• Also to construct and complete four (4) sewer-pipe culverts, of fifteen (15") inch tile pipe, thirty (30') feet long, with head walls of stone masonry, and one (1) sewer-pipe culvert of fifteen (15") inch tile pipe, thirty-three (33') feet long, with head walls of stone masonry, on said Canal road, between the points aforesaid.

Also to construct and complete one sewer-pipe culvert, of eighteen (18") inch tile pipe, thirty-six (36') feet long, with head walls of stone masonry, and two (2) eighteen (18") inch pipe culverts, thirty-three (33') feet long, with head walls of stone masonry, on said Canal road, between the points aforesaid.

Also to build and complete one (1) stone culvert, twenty-seiten (27') feet long, with brick arch ten (10') feet span, on said Canal road, over branch or water-course near Lock Mills.

Also to build and complete one (1) small stone culvert, of about twenty (20") inches inside diameter, on said Canal road, near Little Falls chapel, in county of Washington, D. C.

Also to construct and complete four (4) eighteen (18") inch pipe culverts, thirty (30') feet long, with head walls of stone masonry, on said Canal road, between the points *aforesaid;*also to build and complete two (2) stone culverts, twenty (20") inches span and thirty (30') feet long, with head walls of stone masonry, on said Canal road, between the poifits aforesaid.

Also to do the necessary grading at and near the stone culvert, with brick arch ten (10) feet span on said Canal road over branch or water-course near Lock Mills, and to build and complete the stone retaining walls near said stone culvert aforesaid.

Also to lay and put down on said Canal road, between said Aqueduct Bridge, over the Potomac River at Georgetown, D. C., and said bridge known as and called the Chain Bridge, over said Potomac River, in the county of Washington, D. C., so much of macadam road as may be directed by the said party of the first part or its duly authorized officer or agent.

Also to make the necessary repairs of culvert (numbered five (5) on profile in office of superintendent of roads) on said Canal road, and to build and complete the necessary stone retaining walls at said culvert.

All of the work aforesaid to be done under the plans and to the entire satisfaction of the superintendent of roads of the said party of the first part, and the work of said grading, pipe culverts, and macadam paving to be done and completed in accordance with the specifications following, to wit:

*301BOARD OF PUBLIC WORKS, DISTRICT OF COLUMBIA.

*Specifications for constructing roadway of MoAdam metal.*

(1.) The road will be dressed to the proper grade and oross-seotion to (12) twelve inches below the surface of the street when finished.

(2.) The surface will be well compacted by rolling and ramming. Any mud or soft or compressible material in the road-bed will be removed and the space filled with clean earth or gravel.

(3.) On this bed the metal will be spread in a uniform layer of (8) eight inches. The whole will then be compacted by rolling and ramming in such places as the roller cannot reach.

(4.) This base course of metal will be of broken stone, of any hard and firm stone which may be approved by the engineer. This stone will be broken to pass through a ring (3) three inches in diameter by its longest dimensions, and screened from all dirt and particles less than one-quarter of an inch wide.

(5.) On this base course will be spread the top course of metal (4) four inches thick, made from hard and compact stone. Granite, trap, or equally hard stone will be required for this top course. No sand-stone, mica, slate, or any stone which contains mica will be used.

(6.) The stone for this course will be screened and entirely freed from dust and the finer particles of stone. Thistop course will be well compacted by rolling. On this course will be spread the top dressing obtained from the screening of the top course in sufficient quantity to be half (-J) an'inch thick after filling the surface void spaces of the top course.

(7.) Draining pipe-drains will be laid wherever required, and connected with the manholes of the sewers. They will be paid for by the linear foot, at a price to be determined by the Board.

* ' * * # *. *K a*

Tenth. It is further agreed that the said party of the second part shall receive the following prices as fall compensation for furnishing all the materials ahd 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, thirty (30) cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding-(-) feet, and-(-)-(-) feet.

* * * * # * #

Laying fifteen-inch (15") tile pipe, per lineal foot, one dollar and thirty-three ($1.33) cents.

Laying eighteen-inch (18") tile pipe, per lineal foot, one dollar and sixty-two ($1.62) cents.

* * s # * *■

Excavations and refilling, forty (40) cents per cubic yard, to be measured in excavation only.

Rock excavation, where blasting is required, per cubic yard, one hundred (100) cents.

For the cleaning of gutters and the grading in trimming road, and for *302tlie grading and filling near stone culverts, per cubic yard, thirty (30) cents.

*******

Brick masonry, per thousand, tvrenty-two, $22.00.

*******

Rubble masonry, laid in cement mortar, per cubic yard, five, $5.00.

*******

Laying MacAdam pavement, per square yard, twelve (12") inch deep, one dollar and fifty ($1.50) cents.

*******

Which said sums or prices the said party of the first part shall pay to the said party of the second part as herein provided.

In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.

H. D. Cooke, [l. s.]

Alex. R. Shepherd, [l. s.]

James. A. Magruder, [l. s.]

*Board of Public Works of the District of Columbia.*

John J. Shipman, *Contractor.*

XIY. At the time when the claimant’s said work was begun, and when said contract was ordered by the Board to be prepared, H. D. Cooke, Alexander B,. Shepherd, and James A. Ma-gruder were members of the Board of Public Works. Before December, 1873, Cooke had ceased to be a member. Both the claimant and the Board of Public Works treated this instrument as a valid contract, and intended to embody in it all the agreements of the parties under which the work had been done, including the agreement about the macadam, and antedated it for the purpose of giving it force and validity from the day of its alleged date.

XV. After the change in the form of government in the District, the claimant, on the 9th day of July, 1874, addressed a letter to the Commissioners of the District. The said letter and the several indorsements upon it were as follows:

Washington, D. C., *July*9, 1874.

To the Hon. Commissioners op the District op Columbia:

Gentlemen: Contract No. 561 was awarded me by tlie late Board of Public Works of the District of Columbia, for grading, cnl verting, and macadamizing of the Canal road, beginning at the Aqueduct Bridge, in Georgetown, and running along said canal to the Chain Bridge.

About two-thirds of the grading, culvert, and walls, according to the specifications in said contract, have been completed, but only about 1,300 feet of the macadamizing had been done when said work, on account of the lateness of the season (fall of 1873), -was suspended by order of the late *303Board of Public Works until such time as the weather would permit of its-completion.

Under the new law of Congress creating the new government for this District, it is there stated that contracts which were awarded by the late Board of Public Works, but not completed, shall be finished up.

In pursuance of said law, I respectfully request that the executive officer of the District government be authorized to make an immediate inspection of said road and of the work so far completed under said contract, and that he be empowered to issue to me an official order for the immediate completion of said contract.

This road being of great importance to the cities of Washington, Georgetown, and the country — it being the only free artery leading into said cities from Virginia — its early completion is a great necessity, being an United States road.

Very respectfully, your most ob’d’t serv’t.

John J. Shipman,

822 19f7i *St., N. W.*

[Indorsements.]

Office of Eng. of Commission,

Disteict of Columbia,

*Washington, July*13,-1874..

Respectfully referred to auditing commission of Dist. of Col.

By order of eng.

Prank T. Howe,

*Chief Clerk.*

*July*29, 1874.

Respectfully referred to the engineer.

By order of Comm’rs.

Wm. Tindall,

*Secretary.*

Office of the Board of Audit,

*July*28, 1874.

Respectfully returned to the Commissioners! Prom the statement of Mr. Shipman it would appear that for the work done under his contract the accounts were audited, and certificates issued by the auditor of the B. P. W. for the amount due, less the percentage reserved under the contract, and that the material request is for authority to go on and complete his contract.

E. G. Church,

Por *Board of Audit.'*

XVI. On the 17th. day of July, 1874, the claimant addressed the following letter to the chief engineer of the District:

Washington, D. C., *July VHh,*1874.

Lieut. R. L. Hoxie,

*Chief Eng’r D. C.:*

Dear Sir: Having noticed in the Baltimore Sun of this morning that “such work as is necessary will be continued,” I have the honor to state *304that it is urgent that my work on Canal road from Aqueduct to Chain Bridge should he completed as soon as possible, in order to preserve what has already been done; being newly graded it is liable to wash and be cut up, so as to render it impassable during the winter months. There are a number of large bowlders to be removed and repairs to be made where the Gov't laid a water-main. As the completion of this work is of the greatest necessity in order to accommodate the heavy travel over it, I desire you will give the subject your earliest consideration, and to communicate to me your determination.

Very respectfully,

John J. Shipman,

*No.*822 19ift *Street, N. W.*

[Endorsement.]

Referred in engineer’s office to Mr. Oertley for preliminary survey and measurement.

XVII. The following replies, dated respectively October 1, 1874; October 5, 1874; and March 12, 1875, were made to the letters set forth in findings XIV and XV:

ENGINEER’S OFFICE, DISTRICT OR COLUMBIA,

*Washington, Oet. 1st,*1874.

J. J. Shipman, Esq.,

*19th si., het. I Pa. ave., N. W.;*

Sir: The order suspending work upon your contract No. 561 having been revoked, you are hereby authorized to proceed with the work as soon as the grade is given. You will apply for grade at once.

Very respectfully,

R. L. Hoxie,

*Lt. Engineers, V. S. A., Engineer of D. 0.*

Engineer’s Office, District of Columbia,

*Washington, Oct. 5th,*1874.

John J. Shipman, Esq.,

*Arlington Hotel:*

Sir : You are hereby authorized to proceed at once with the work under your contract No. 561, the grades of which will be furnished in a few days.

By order of the engineer.

Prank J. S. Howe,

*Chief Cleric.*

Engineer’s Office, District of Columbia,

*Washington, March 12th,*1875.

John J. Shipman, Esq.:

Sir : You are requested to take measures at once for the vigorous prosecution of the work under your contract, No. 561, of the late Board of Public Works. All. instructions which may have been given you restraining work on account of the weather are hereby revoked, and you are notified *305•that a strict construction will be given to the terms of your contract, respecting the time within which the work should be completed.

Your attention is invited to the conditions of the 5th section of your contract, which will be enforced.

Very respectfully,

K. L. Hoxie,

*Lieut. Engrs., V. S. A., Engr. of D. G.*

XYIII. Under this extension of tbe claimant’s contract, which had now become known to both parties as contract 561, a large amount of work was done which has been paid for, and is not in controversy. ^

The last item in the claimant’s bill of particulars in his original petition, to wit, the claim of $1,328.47 for an alleged difference between the amount awarded him by the Board of Audit and the amount paid him by the defendant, is claimed for work done during this period. The court finds that there is no proof to support such a claim during this period or at any other time.

XIX. On the 5th of January, 1875, many citizens petitioned the District government to have work resumed on the Canal road. The claimant on the 11th of the same January addressed the following letter to the Board of Commissioners:

WASHINGTON, D. C., *January 11th,*1875.

Hon. Board or Commissioners :

Gentlemen : I propose to furnish material and build the wall on the Little Falls road between the Aqueduct and Chain Bridge, as contemplated in my contract, No. 561, to be laid with lime and cement properly mixed, at the following price, to the satisfaction of the engineer in charge:

For the wall, p’r cubic yard.--■_.f5 00

For stone gutters, if necessary, p’r sq. yd. 60

Very respectfully,

John J. Shipman.

Endorsed: “Eespectfully referred to the engineer D. C. By order, Wm. Tindall, sec’y. Jan’y 11th, 1875. Eeferred in engineer’s office to Mr. Bod-fish for plan & estimate in 3.65 bonds. Mr. Brown draw contract.” Memorandum in pencil, as follows: “Brown make up expense.”

XX. The Commissioners referred this letter to the engineer of the District, who on the 2d of April, 1875, made the following report thereon:

Engineer’s Office, District ok Columbia,

*Washington, April 2nd,*1875.

*To the honorable the Commissioners of the District of Col.:*

Gentlemen : I have the honor to return herewith the proposition of John J. Shipman to build retaining walls on Little Falls road under the pro-*306visionsof hiscoutract, No. 561, of the iate Board of Public Works. I have carefully examined the line of this -work, with a view to the erection of a retaining and parapet wall on the side of the canal, and am strongly impressed with the necessity for the work. As it will be difficult to arrive at a correct estimate of the cost until the work has progressed somewhat, I recommend that the contract be extended so as to include the building of this wall at such points as maybe indicated hereafter, and the construction of the gutters. I propose, then, ro construct, say, five hundred (500) feet of the wall, and the Commissioners can be governed by the relation of cost to advantage derived in deciding whether the work shall be continued. It is work that must be done at sometime or other, and the present is as favorable as any. I have arranged terms with the contractors which are highly advantageous to the District. The extension should embrace also the grading and macadamizing of a, short connection with Aqueduct roads which will connect the latter (a macadamized road) with the city and oj>en a fine drive to the reservoir. This connection crosses a private lot which the owner has consented to relinquish without charge. I think it best to take advantage of the offer at once.

Very respectfully,

E. L. Hoxie,

*Lieut. Engineers, U. S. A., Engineer of D. C.*

Endorsed in pencil, as follows: “Notify Shipman. Brown draw cont.”

Office of the COMMISSIONERS of the District of Columbia,

*Washington, April*3rd, 1875.

Kesi>eetfully returned, approved.

By order.

Wm. Tindall, *See’y.*

XXI. In accordance with the pencil memorandum, on said report of April 2, the following letter was, on the 8th April, addressed by the said engineer to the claimant:

Engineer’s Office, District of Columbia,

*Washington, April 8tk,*1875.

John J. Shipman, Esq., *City:*

Sir: Yon are requested to call at this office and execute the necessary papers for an extension to your contract, No. 561, with the late Board of Public Works, embracing the following-named work, viz: To construct a •stone retaining and parapet wall on the south side of the Little Falls road, between Aqueduct and Chain Bridges, or at such points along said road as may be authorized by the Commissioners, at $5.00 per cubic yard; to lay ■cobble-stone gutters along said road, between points above mentioned, at fiOc. per square yard, and the grading and macadamizing a connecting road, which crosses a private lot, between the Little Falls road and the Aqueduct road, at Board rates, provided the owner of said private lot conveys to the District government the land required for said road, without compensation therefor; provided further that payment for the work herein mentioned be accepted in 3.65 bonds at par.

Very respectfully, E. L. Hoxie,

*LAeut. Engineers, ü. S. A., Engineer of D. C.*

*307XXII. On the 17th April, 1875, the Commissioners of the District and the claimant entered into the following coDtraet to -extend the provisions of .contract No. 561 to the proposed new work:

*Extension of contract No.*561.

April 17, 1875.

-It is agreed by and between the Commissioners of the District of Columbia and John J. Shipman that contract No. 561, 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 (except as respects the time of execution), to embrace the following work, to wit:

Construct a stone retaining andparapet wall on the south side of the Little Palls road between the Aqueduct and Chain Bridges, or at such points along ¡said road as may be authorized by the Commissioners, at five dollars ($5.00) per cubic yard; lay cobble-stone gutters, or gutters of stone blocks of such size and quality as may be accepted by the engineer in writing in lieu of cobblestone, on each side of the carriageway along said road, between the points mentioned, at sixty cents (60c.) per square yard.

Also grading and macadamizing a connecting road which shall cross a private lot between the Little Palls road and the Aqueduct road at the rates established and paid by the Board of Public Works for work of similar ■character, provided the owner of said private lot shall convey to the District of Columbia the land required for said road without compensation therefor; and provided further, that payment for the work herein mentioned ■shall be made in the bonds issued by the sinking-fund commissioners of the District of Columbia under and by virtue of section 7 of tho act of Congress approved June 20,1874, which bonds shall be received and accepted at their par value.

It is further agreed that all of the work contemplated by this agreement •shall be performed in strict accordance with the specifications hereunto annexed.

*Specifications for retaining and parapet walls on Canal road.*

First. The present retaining walls to be removed to such depth from the top as may be directed, and the foundation inspected and approved by the •engineer of the District of Columbia before relaying the wall, which is to be done in cement mortar.

Second. Only so much of the stone obtained from the old wall to be reused, or will be declared fit for reuse by the engineer; the balance must be furnished by the contractor.

Third. The stock furnished must be sound, of good beds, and at least one-fourth (J-) of all the stones must not contain less than five (5) cubic feet nor be of less thickness that six (6) inches. All discolored stones, and all .stones showing disintegrations of any kind, or from wear, the outside faces ■ of the quarry, will be rejected.

*308Fourth. The wall-will he laid with a hatter on the fronjt fall of one (1) to twelve (121, and the lower beds will he prepared by leveling the top of' that part of the old wall which is left, the interstices being flushed with mortar and spawls, the thickness of the walls to be of its height.

Fifth. The cement mortar to be composed of two parts of sharp, clean sand, and one part of fresh cement, the cement to be Bosendale, or of the best, grade of Shepherdstown, or Bound Top Cement, and must be to the satisfaction of the engineer.

Sixth. The stones must be laid in a good, workmanlike manner, well-bonded, the interstices well and fully flushed with mortar and spawls, and, a lining of coarse gravel twelve (12") inches in thickness, carried up in rear of the retaining wall.

parapet wAM-

Seventh. On the above retaining wall a parapet wall, with a coping, is to. be built two (2') feet thick at base, two (2') feet three (3") inches high to bed of coping, and one (!') foot six (6") inches thick at top ; the coping to-consist of selected stones six(ti') to ten (10") inches thick, *jointed; in*length, of not less than two (2') feet, and must project over the parapet wall not-less than two (2") nor more than four (4") inches on each side, and must, be so disposed along the line of the wall that no two (2) in juxtaposition shall vary in thickness nor in width more than three-quarters (f) of an inch. The stock mustbe as required underthe head three (3), except that one-fourth (J) of the stones shall not contain less than four (4) cubic feet nor be of less, thickness than six (6) inches; the mortar to be the same as described under head five (5), except that half and half lime and cement may be used. The jointing of the coping, however, must be done in pure cement mortar. The-reference of the top of the retaining wall will be the same as the edge of the gutter. ■

GUTTERS

to be laid of selected cobble-stones of suitable size, or stone blocks of such size and quality as inay be accepted by the engineer, in writing, in lieu of cobble-stone, on each side of the carriage-way, as indicated on the cross-section herewith attached. The outer gutterto be three (3') feet wide, and the inner, which shall follow as nearly as may be the inner edge of the available space for a roadway, to be four (4') feet wide, and arranged with drops and grates as shown on the plan herewith attached, and the reference of the inner edge thereof to be fixed one-fifteenth (¶^) of its distance from the axis of the macadamized roadway below the crown of the same.

No additional allowance will be made for grading of this portion of the roadway; the refuse material from the quarries maybe used for the purpose.

In witness whereof the said District of Columbia has caused this instrument to be signed by the Commissioners of said District, appointed under the act of Congress entitled “An act for the government of the District *of"*Columbia, and for other purposes,” approved June 20,1874, and the common seal of said District tobe hereunto affixed, and theparty of the second part *309to these presents has hereunto set his hand and seal, this seventeenth day • of April, 1875,

W. Dennison, [l. s.]

J. H. Ketcham, [l. s.]

S. L. Phelps, [l. s.]

*Commissioners of the District of Columbia.*

JOHN ,T. SHIPMAN, [SEAL.]

*Contractor.*

XXIII. On the 20th. April and the 22d May, respectively, the ■engineer of the District addressed the following letters to the ■claimant:

Engineee’s Office, District of Columbia,

*Washington, April 20th,*1875.

•J. J. Shipman, Esq., *City:*

Sir: Yon are hereby authorized to construct 500 feet of retaining andpara-pet wall on the south side of the Little Ealls road, in accordance with the terms of the extension of your contract, No. 561, with the late Board of Public Works, and in strict conformity with the accompanying plan.

Very respectfully,

K. L. Hoxie,

*Lieut. Engineers, U. S. A., Engineer of D. C.*

Engineer’s Office, District of Columbia,

*Washington', May*22d, 1875.

-Jno. J. Shipman, Esq., *City :*

Sir : You will continue the retaining and parapet wall throughout the line of your work, and will conform to thp following instructions:

The old wall will be removed down to the level of the water in the canal. If at this reference the old wall continues to offer a substantial foundation the new wall will be built upon it.

Wherever the old wall does not extend below this depth, or is not of a suitable character for a foundation, the building of the new wall must be omitted until the drawing off of the water in the canal will permit the .necessary excavation for a foundation.

Very respectfully.

K. L. Hoxie,

*Lt. Eng’rs, V. S. A., and Eng’r D. C.*

XXIV. On the 4th June, 1875, the claimant addressed a let--fcer to the Commissioners respecting the parapet on the canal wall to be built under the extension of the contract; to which letter the engineer of the District replied on the 19th June, 1875. The following are copies of those letters:

Washington, *June*4,1875.

To the Commissioners of the District of Columbia :

Gentlemen: I would respectfully state that after repeated trials! find .1 will not be able to make as complete á job of the coping of the canal wall *310which I am now constructing as I and the engineer of the District desire. To dress and fit the river-stone is an expensive, arduous, and very unsatisfactory work; therefore I desire to mate to you the following propositions That I he allowed to use for the coping North River or other suitable, coping stone, for which I will be allowed an extra compensation of forty (40) cents per foot. This stone will cost me delivered on the ground nearly . one (l)dollar per foot, but I am willing to bear more than one-half the expense) only asking the District government to assume the proportion I have named. Inmaking this proposition I do it with the desire to benefit the District government and secure for it a complete, finished, andhandsome work,, and believe that itwillbe for theinterest oftheDistrictforits authorities to-accept my proposition. In the hope that my proposition may be promptly and favorably considered,

I am, gentlemen, very respectfully,

John J. Shipman..

Engineer's Office, District of Columbia,

*Wahsington, June*19i/i, 1875.

J. J. Shipman, Esq., *City :*

Sir: You are requested to call at this office to execute the necessary papers for an extension to your contract No. 561, with the late Board of Public Works, to include the finishing of the parapet wall along the Little Fall road with North River coping at 40 cents per lineal foot, payable in 3.65 bonds, at par..

Very respectfully,

R. L. Hoxie,

*JAewt. Engineer, V. S. A., Engineer of D. C.*

XXV. Under the direction and constant supervision of the-defendant’s engineers, the claimant performed the work provided for in this extension of contract 561 during the year 1875. During the progress of the work reports were made by the engineer in charge to the chief engineer of the District,, and partial payments were made thereon.

XXVI. When the work was completed the claimant applied-for a final measurement and settlement. The following is a-copy of the measurement then made:

Engineer's Office, District of Columbia,

Washington, *Janhj*25, 1876.

To the honorable the Board of Audit:

Gentlemen: I transmit herewith measurement final, so far as it relates to Canal road bet. Aqueduct and Chain Bridges, of contract No. 581 of the late Board of Public Works, with J. J. Shipman, amounting to $210,633.91.

Total amount of advances since last report, $141.00.

I reeommed the usual reservation upon work of this character.

Very respectfully,

B. Oertly,

*Ass’t Engineer in*charge-

*311Washington, D. C., *Jan’y*25, 1876.

*District of Columbia to J. J. Shipman, Dr.*

6,928.13 square yards new cobble-stone gutters laid *<a)*60 c. per yd. 4,156 88

105 running feet 15-ineb pipe, at 138 cents per foot. 144 90

205 running feet 18-inch, pipe, at 162- *“ “ “*.. 332 10

96 running feet 6-inch pipe, at 36 *“ “ “*. 34 56

9 running feet 10-inch pipe, at 69 “ “ “ . 6 21

13,289 running feet coping, at 74.4 “ *“ “*. 9,887 01

32,218 cubic yards grading, at 30 cents per yard. 9,665 40

32,218 cubic yards haul 1,960 ft. oyer 200 ft., at 24-J cents per yard. 7,893 41

45,557.47 square yards McAdam pavement laid, at 150 cents per yard..... 68,336 20

21,739.2 cubic yards retaining wall, at 5.00 . 108,696 00

14 drops, at 71.25 .. 997 50

224 cubic yards excavation, at .40. . 89 60

1 cesspool. 857 14

$211,096 91

Less masonry of cesspool included in the balance measurement 92.6 cu. yards, at $5.00 ... 463 00

210,633 91

4,528 cu. yards of broken stone filling, <S $1.25 = $5,660.00, if allowed.

Total for assessment.

Oottce Board or Audit,

Washington,-, 187 .

Property acc’t. J. J. Shipman. -

36 ft. 12-in. pipe. $23 40

864 *“*loads cobble, 25. 216 00

100 cu. yds. gravel, 25. 25 00

118 ft. 6-in. pipe, 17 . 20 06

300 “ 6-in. “ 17. 51 00

1,374* ft. coping, 1.25 . 1, 718 24

255 “ 15-in. pipe, 1.10. 280 50

141 cu. yds. cobble, 1.00. 141 00

2,475 20

Certs, issued: 14105, 38,090.17; 14695, 47,199.63; pay-roll, 000.00, never paid; 14815 & 16, =13,485.60; 19002 & 3, =24,882.08; 19458, 58,502.45 = 182,159.93.

There has not been audited anything for payment of J. J. Shipman’s laborers by me.

John T. Vinson,

*Aud’r D.*O-

*312I hereby certify that I have carefully examined the field notes and report of Tbos. Franklin, leveller, who measured and inspected this -work, and find tbe quantities correct.

The work is reported to be -, Canal road bet. Aqueduct and Chain. Bridges. Contract No. 561.

January 85, 1876.

L. H. Bodfish.

*Assistami Engineer.*

Material furnished upon this or other contracts, brought forward from voucher No.-; value-, to-.

Materials furnished since last report upon contract No. see voucher No. 1032, 141 cubic yards cobble-stones, 1.00, $141.00.

I certify that the foregoing is a correct account of material furnished, and that the prices charged are the net value of the material at the point where delivered, or in accordance with contract.

January 25, 1876.

E. B. Townsend,

*Superintendent of Property.*

Per Beckett.

I have carefully examined the account, and find the prices according to contract and the computations correct.

The amount due the contractor is to be ascertained by deducting from the above cost of the work the total advances unsettled, and also for-not previously charged, the sum of-.

-, 187 — ,

*Assistant Engineer.*

Approved, subject to future inspection of the work.

January 25, 1876.

B. Oertly,

*Assistant Engineer.*

*Per Lieut. Engineer, V. S. A., and Engineer for D. O.*

XXVII. The claimant was thereupon paid the balance due according to said measurements, as shown by the following papers and voucher:

Washington, D. C., *January*26, 1876.

*District of Columbia to J. J. Shipman, Dr.*

For contract 561, surface Canal road:

Final measurement. 210,633 91

Deduct property. 2,475 20

. *“*certificates. 182,159 93

“ amount paid on Carpenter’s meas. 2,343 35

- 186,978 48

Balance. $23,655 43

*313Office Board of Audit,

*Washington, January*26, 1876.

The -within claim against the Board of Public Works has been examined, .-and amount due $23,655.43.

Chas. A. Appel,

*Asst. Acot.*

deceived this 27th day of January, 1876, from the Board of Audit, their •certificate, No. 25013, for $23,655.43, in full settlement of the above-stated ■claim. 1

JOHN J. Shipman.

XXY1II. The application of the claimant for a measurement ■. was received in the engineer’s office during the absence of the •engineer-in-chief. By the personal direction of Mr. Ketchum, •one of the Commissioners of the District, Mr. Oertly then acted •as engineer, in the absence of Mr. Hoxie, and caused the measurements set forth in finding XXYI to be made and certified to them. Subsequently Mr. Hoxie expressed dissatisfaction with this measurement, and caused a new measurement to be made, which he called a final measurement, to which he certified. The following is a copy of this last measurement and of the letter transmitting the same:

Engineer's Office, District of Columbia,

*Washington, April 15ih,*1878.

'To the honorable the Commissioners of tiie District of Columbia:

Gentlemen : In compliance with your instructions contained in your endorsement of Sept. 13th, 1876, upon letter of audtior of D. C. of Sept. 1st, 1876 (No 6025, E..O., 1876), I transmit herewith final measurement of work •done on the Little Palls road under contract No. 561 of the late Board •of Public Works with J. J Shipman, amounting to $168,832.50.

Referring to my letter to the Board of Audit, dated Peb'y 5th, 1877 [6],in which notice is given of my disapproval of certain measurements of contract work transmitted to the Board of Audit during my absence from the city, which letter is now-in the possession of the auditor of D. C., with the records and accounts of the Board of Audit, as also to No. 1589, E. O., 1876, enclosed herewith, upon which you direct a report to be made to the Commissioners, ’ I invite your attention to the following statement:

The accompanying final measurement (voucher 1382) takes the place of final measurement No. 1134, heretofore transmitted Jan’y 25,1876, of which it corrects certain errors as follows:-

l8i. *Masonry.*— This is now measured in accordance with the specifications, of the contract, and the actual work necessary for the obervanee in good faith of these specifications. In the former account the contractor was allowed for a useless excess of masonry over the specifications of his contract and the instructions given him. The excessis wholly unnecessary, and the •contractor was repeatedly warned by myself that he would not be paid for it. He persisted, however, in constructing the wall to suit himself, giving *314at one time as a reason for the increased, dimensions of the parapet waif that it was cheaper for him to increase these dimensions in order to work in the stone as it came from the quarry. If he has been mistaken in this-assumption, the loss should fail upon himself and not upon the District, which derives no advantage from the result of the contractor’s obstinacy in> increasing the amount of his work in violation of the specifications of his-contract and of positive orders to the contrary.

*'2d. Grading.*— The grading required upon this road was simply the filling-up of the ditches on either side of the macadam carriage-way for the purpose-of constructing the gutters. Knowing that it would be an accommodation-to the contractor to allow him to dispose of the refuse material from hi® quarries by depositing it in these depressions, and that the large profit upon the work of macadamizing the roadway could not be justified unless additional work were required for ib, I purposely drew up the contract with the proviso that nothing should be paid for this filling. The attention of the contractor was-called to this proviso by myself, and I am informed that a quantity of the refuse materal of the quarries had to be boated over the canal for want of a dump. Any allowance upon this account is therefore in violation of the contract, and not even justified, if any departure from the contract can be justified, by any consideration of equity. An. exception is made in the case of raising the grade of the roadway between certain points for protection of the large water-main under it. For this a written and specific order was given, and the cost is allowed in the accompanying measurement. The remainder of the allowance for grading-in former measurement is erroneous, and the overmeasurement upon this, amounts to 799.3 cubic yards.

Erroneous computations in former measurement are corrected in this,, which has been prepared after careful consideration of all communications-from the contractor up to this date (herewith transmitted), and is a correct statement of account in accordance with contract, as well as a full and fair-allowance for all w ork which has been done to the advantage of the District..

Very respectfully,

R. L. Hoxie,

*TAeut. Engineers, XT. S. A., Engineer D. C.*

Office of the Commissioners of the District of Columbia,

*Washington, D. 0., April*20, 1878.

Respectfully referred to the auditor D. C. to file the enclosed amended statement of Shipman’s final measurement with the unadjusted contractors accounts. Board of Audit file.

By order:

Geo. R. Caswell,

*Aet’g Sec’y.*

For work done on Canal road, between Aqueduct and Chain Bridges.

Washington, D. C., *Eel’y*28, 1877.,

*District of Columbia to J. J. Shipman, Dr.*

6,928.13 yds. of new cobble-stone pav’t, *<a>*60c. 4,156 88

105 1. f. of 15" pipe, @ $1.38. 144 90-

*315205 1. f. of 18 pipe ® $1.62. $332 10"

96 “ “ “ 6" “ ® 36o. 34 56-

9 “ “ “ 10" *“*® 69o. 6 21

2,609.6 ou. yards of grading, ® 30o. 782 88

45,557.47 sq. yds of McAdam, ® 1.50 . 68,336 20-

17,236.83 c. yds. of masonry, in retaining walls, and blue-stone

coping, ® $5.00 . 86,184 15

410.54 cu. yds. of masonry, in North River coping, ® $5.00. 2,052 70-

13,301.71. f. of North River coping, ® 40c. 5,320 68

14 drops, ® $71.25.997 50"

224 cub. yards of excavation, ® 40c_^.-. 39 66'

1 cess-pool.;. 857 14

$169,295 50-

Less masonry of cess-pool included in the balance of measurement ... 463 Ob-

les, 832 50»

926 cu. yds. ® $5.00.

This measurement includes all former vouchers.

Proper credits to be applied for assessments. See letters of July 3 and). July'21, 1876, from this office, addressed to the auditor of D. C.

Total for assessment.

1382.

I hereby certify that I have carefully examined the field-notes and report. of David E. McComb and Thos. Franklin, levelers, who measured and inspected this work, and find the quantities correct.

The work is reported to be well and properly done.

Contract No. 561.

March 8, 1878.

David E. McComb.

I certify that the foregoing is a correct account of material furnished, and that the prices charged are the net value of the material at the point where-delivered, or in accordance with contract.

March 13th, 1878.

E. B. Townsend, *Superintendent of Property.*

I have carefully examined the account, and find the prices according to-contract, and the computations correct.

The amount due the contractor is to be ascertained by deducting from the-above cost of the work the total advances unsettled, and also for-not previously charged, the sum of--.

April 13, 1878.

B. Oeut.lt, *Assistant Engineer.*

Approved, subject to future inspection of the work.

See letter of transmittal, dated Ap’l 15, 1878.

R. L. Hoxie,

*lAeut, Engineer, TJ. S. A., and Engineer for I). C..*

*316XXIX. From these two conflicting measurements spring the •controversies in regard to the fourth item in the claimant’s'bill of particulars, respecting the coping of the wall; in regard to •the seventh item therein, respecting earth excavation for foundation of wall; in regard to the eighth item therein, respecting broken stone back of the retaining walls; and in regard to the item in the amended petition, respecting the excavations for the lining in the rear of the retaining walls. From the same causes -spring the items in defendant’s bill of particulars for counterclaim respecting overpayment on account of stone masonry, respecting overpayment on account of coping, and respecting •overpayment by mistake of fact for grading. The facts proved by the evidence with respect to these several subjects of controversy, so far as the same have not been already found, are .as follows:

A. — The masoney.

The wall is not constructed in accordance with the specifications. It varies therefrom by reason of being thicker, and contains 4,091.83 cubic yards of masonry more than it would have -contained if it had been constructed according to the specifications. This variation was made with the knowledge and con.sent of the Commissioners and of the engineer in charge of the work, who approved of the reasons given for doing it, and it might at any time have been known to the chief engineer had be made inquiry or a personal examination. The measurements which were from time to time returned to the chief engineer were accurate returns of the amount of masonry done at each return; and the wall was constructed as to the amount of ma.sonry in the manner as shown in the measurement set forth in finding XXYI.

B. — The coping.

There was a controversy whether the claimant should be paid for the North Biver stone coping by the lineal foot or by the ¡square foot. The claimant also demanded payment for it as masonry under the contract, in addition to payment by the foot. The claimant, the Commissioners, and Mr. Oertly, who was acting as chief engineer in the absence of Mr. Hoxie, met together and agreed upon ttie rate in the estimate set forth in finding XXVI. The claimant has not been paid for the coping .as masonry. There were 410.54 cubic yards of masonry in the ..coping.

*317C. — EXCAVATION.

The claimant has been paid nothing for excavating the foundation of the walls or of the place for the lining in their rear,, except so far as general payments under the contract cover that work; the defendant contending that the prices for the wall; cover the excavation for it and the whole cost of the lining. The-amount of such excavation is not satisfactorily shown.

D. — Lining op the walls.

The specifications called for gravel as a lining at the back of the retaining wall. There being no gravel near the line of the road, at the claimant’s request broken stone was substituted, with the defendant’s consent. The'claimant has not been paid, for this lining otherwise than as the same may be held to be included in the contract price for the wall.

E — Overpayment por grading.

In the measurement set forth in finding XXVI will be found the following items: “32,218 cubic yards grading;” “32,218'-cubic yards haul.” These items relate to the same material.

In the same measurement will be found the following item: “ 45,557.47 square yards macadam pavement;” 15,185.82 yards-of material, which-was estimated in that estimate as part of the 32,218 cubic yards of grading and of haul, was also included in-, the measurement and estimate of the 45,557.47 square yards-macadam. It was correctly measured as macadam; but incorrectly and by mistake of fact estimated and measured as-grade and as haul.

It is not shown that any other overpayment was made to the-claimant on account of grading and by mistake of fact.

XXX.

CONDUIT ROAD.

It does not appear that the claimant furnished any material' or did any work on the Conduit road for which he has not beem paid in full.

XXXI.

NEW OUT ROAD.

In August, 1875, some storms did great damage to the New Cut road near where the claimant was then at work with a* *318large force. The engineer of the District addressed the following letter to the claimant:

Estgineer’s Office, District of Columbia,

*Washington, T). C., August*31st, 1875.

■John J. Shipman, *City:*

Sir: You are authorized to repair tlie roads and culverts in the vicinity of the work now being performed hy you alongthe Little Falls road, which have been damaged by the late storms, as extra work under your contract No. 561, with the late Board of Public Works. You will present this order with your bill for the work, which will be done under the direction of Mr. ■ Cunningham and Mr. Carrol], overseers.

Very respectfully,

E. L. Hoxie,

*Lieut. Engineers, U. S. A., Engineer of D. 0.*

XXXII. The claimant at once began to do the work called for by the said letter of August 31. On the 29th December, 1875, he rendered a bill of the, work and materials furnished up to that time. The following is a copy of the letter inclosing . said bill and of said bill:

Dec. 29th, 1875.

Lieut. E. L. Hoxie, U. S. A.,

*Eng’rofD. 0.:*

Sir : I have the honor to enclose herewith a bill for work done on New Cut road, bet. Georgetown and the Chain Bridge road, amounting to 15,084.39. "This work was done under an order of the engineer as extra work under contract 561, herewith enclosed, and represents the actual cost, with 20% .added for profits. I have in my possession, to be produced if required, payrolls and vouchers aggregating the amount above named. Your attention is invited to the fact that I have charged but 2.25 per day for carts, while the usual price is 2.50, and other prices in proportion. An early settlement will oblige,

Yours, very respectfully,

John J. Shipman.

I, the undersigned, acknowledge to have received from the District of ■Columbia the sums set opposite my name in full payment of materialused .■and for services rendered from August 25th, 1875, to December 24th, 1875, in the District of Columbia, on the New Cut road, leading from Georgetown to

Canal road.

Seventy-eight thousand arch-brick, 78,000, $8.50. 663

Six hundred and forty-one bbls. cement, 641 (see bill). 929 95

Two hundred and forty-nine cart loads of sand 249, .40. 99 60

One hundred and ten cubic yds. of concrete, 110, 3. 330

Fourteen hundred and fifty-two cubic yds. of building stone, 1452,1.50. 2,178

Laying seventy-eight thousand brick, 78,000, 4. 312

*319Eumber for centers (see bill). 132 77

Sawing portion of “at mill”. 3 50

'Three kegs nails, 3, 3.75. 11 25

‘Thirty-three feet of 15-in. tile pipe, 33, 1.33 . 43 89

One trap and grate, 1, 71.25. 71 25

Three hundred & fifty-eight loads of paving stone, 358, .75 _ 268 50

'Twenty-two hundred & one cubic yards of gutter, 2,201, .15... 330 15

Seven hundred & sixty-five & one-half days’labour, 765J, 1.50. 1,148 25

Fourteen hundred & fourteen & one-quarter days’ labour, 1,414J, ■ 1.25 . 1,767 81

Eleven hundred & twenty-three & three-quarters days’ labour of carts, 1,1231, 2.25.. 2,528 43

Eighty-two days’ labor of water-boys', 82, 50. 41 00

.'Seventeen and one-quarter clays of forbman, 171,1.75 . 30 18

Fifty-seven days of foreman, 57,2. 1X4

Sixty-eight & one-half days of foreman, 68J, 2.25. 154 12

■One hundred & eighty-six & three-quarters days of masons, ■ 186f, 2.50.. 466 88

■Sixty-seven days “ “67,3 .... 201

Forty-eight & three-quarters days of masons, 48f, 3.50. 170 63

Forty-two and one-half days of bead mason, 42J, 4. 170

$12,166 16

Add twenty per cent. 2,433 23

Ninety-seven days of sup’endant, 97,5 . 485

$15,084 39

John J. Shipman.

XXXIII. The Commissioners were unable to pay the bill in ■cash. Subsequently a new account was rendered on the basis •of a payment in bonds, which was agreed to by the three Commissioners and by Mr. Oertly, acting as assistant engineer in the absence of Mr. Hoxie, and was paid in full by a certificate of the Board of Audit. The said last-named bill and the claimant’s acknowledgment of payment are in the following forms:

■ Washington, D. C., *Jan’y 6th,*1876.

*District of Columbia to John J. Shipman, Dr.*

To labor and material furnished in repairs on New Cut road, between Georgetown and tbe Chain Bridge, as per subvoucher. ,$22,182 92

I certify that the foregoing is a correct account of material furnished, ■and that the prices charged are the net v a e of the material at the point where delivered, or in accordance with contract.

6th, 1876.

E. B. Townsend,

*Superintendent of Property.*

Per Beckett.

*320I have carefully examined, the account, and find the prices according to contract and the computations correct.

The amount due the contractor is to be ascertained by deducting from, the above cost of the work the total advances unsettled, and also *for-¡,*not previously charged, the sum of-.

Jan’y 6th, 1876.

B. Oebtly, *Assistant*Engineer.

Approved, subject to future inspection of the work.

$22,182.92.

Jan’y 6, 1876.

B. Oertly, *Ass’t*Engineer,

*For Lieut. Engineer, U. S. A., and Engineer for D. C.*

Washington, D. C., *Jan.*8, 1876.

*District of Columbia, J. J. Shipman, Dr.*

For contract 561, New Cut road:

Extra work, as per statement of the engineer. $22,182 92

Received this 10th day of January, 1876, from the Board of Audit, their certificate No. 19,539, for $22,182.92, in full settlement of the above stated claim.

John J. Shipman.

XXXIV. The claimant continued to do work on the said New Cut road, and on the 27th March, 1876, rendered a further account of the same to the amount of $6,682.20, as follows:.

Washington, D. C., *March*27, 1876.

*District of Columbia to J. J. Shipman, Dr.*

To work performed on the New Cut road leading from Georgetown to Canal road, as per accompanying pay-roll. $6,682 2(1

Work done under order of engineer D. C., August 31,1875, acopy of which is enclosed.

Endorsed as follows:

Washington, D. C., *Marca*27, 1876.

Respectfully referred to the engineer D. C. for early report.

By order.

Wm. Tindall, *Secr’y.*

Mch. 29, ’76.

Referred in engineer’s office to Mr. Cunningham for early report. Mr. McComb make measurement with 11,845, E. O., 1875, enclo. 1.

*Copy of enclosure.*

I, the undersigned, acknowledge to have received from the District of Columbia the sums set opposite my name, in full payment of salaries, mate*321rial used, and for services rendered from January 1st, 1876, to February 23d, 1876,in tire District of Columbia, on the New Cut road leading from Georgetown to the Canal road:

Head masons, stone work, 27-J days, $4 .per diem. 109

1st class “ “ “ 59£ “ 3.50 “ “ 207 37

2nd “ “ “ “ 39J “ 3 “ “ . • 117 75

Foreman of laborers, 83f *“*2.50 “ “ 216 88

“ “ “ 46£ *“*2 “ “ 93 50

Laborers, 1st class, 493£ “ 1.50 “ “ 739 87

“ 2nd “ ' 409J “ 1.25 *“ “*512 63

“ 3d “ ‘ 189 “ 1 “ “ . 189 00

*“*water-boy 20 “ 50 *“ “*. 10

Horses, 969-J- *“*2.25 “ ...._. 2,181 37

Concrete, 46 yards, $3 per yard. 138

Cement and cartage, as per bill. 395 50

Sand, cart loads, 92, .40 . 36 80

Building stone, 300 yards, §1.50. 450

5,397 67

Add 20 per cent... 1,079 53

Superintendence, 41 days, $5. 205

$6,682 20

XXXY. The chief engineer of the District having objected to the settlement made by the Commissioners with the claimant, as set forth in finding XXXIII, the following remeasure-ments of the work done by the claimant on the New Out road then took place and were transmitted by the engineer to the Commissioners. The two measurements combined embrace the work included in the voucher in finding XXXIII and that in the bill in finding XXXIY.

Engineer’s Oreice, District or Columbia,

*Washington, D. C., Sec. 14th,*1876.

To tbe honorable the Commissioners or the District oe Columbia :

Gentlemen : In compliance with your instructions contained in your endorsement of September 13, 1876, upon letter of auditor of D. C., dated September 1st, 1876 (6025 E. O., 1876), I transmit herewith final measurement of work done on Now Cut road by J. J. Shipman, under contract No. 561 of the late Board of Public Works, amounting to $24,352.29.

Very respectfully,

R. L. Hoxie,

*Lieut. Engineers, XI. S. A., and Engineer of S. G.*

Respectfully referred to the auditor D. C.

By order.

Wm. Tindall, *See’y.*

Dec. 16, ’76.

*322Pavements for sidewalks and carriage-ways.

Washington, D. C., *May*10, 1876.

*District of Columbia to J. J. Shipman, Dr.*

# * * * *p*# ■>

Pinal.

299 cub. yds. of-concrete, @ $4.00 per yard. 1,196 00

1,513 *“ “ “*masonry in cement, @6.50 *“ “*. 9,834 50

76,709 brick in wall, @ $23.00 per M. 1,764 30

6,306.04 cub. yds. excavation, @ 30 per yd. 1,891 81

4,520.45 *“ “*embankment, @ 30 *“ “*. 1,356 13

•4,520.45 “ “ hauled 1,800 ft. over 200, @ 22J. 1,017 10

$17,059 84

Vonclier f 1132, prior measurement, amounts to $22,182.92; 1232 showing an excess of former overmeasurement of $5,123.08.

Proper credits to be applied for assessment. See letters of July 3 and July 21, 1876, from this office, addressed to the auditor D. C.

Total for assessment,-.

I hereby certify that I have carefully examined the field-notes and report of S. D. Charles, leveler, who measured and inspected this work, and find the quantities correct"

The work is reported to be well done.

New Cut road. Contract 561.

May 10th, 1876.

S. H. Bodfish,

*Assistant Engineer.*

I certify that the foregoing is a correct account of materials furnished, iand that the prices charged are the net value of the material at the point where delivered, or in accordance with contract.

.June 14th, 1876.

*E. B.*Townsend,

*Superintendent of Property.*

T have carefully examined the account, and find the prices according to contract and the computations correct.

The amount due the contractor is to be by deducting above cost of the work the total advances unsettled, and also for-not previously charged the sum of-.

Nov. 29, 1876.

B. Oeetdey,

*Assistant Engineer.*

Approved, subject to future inspection of the work. See letter of transmittal, dated Feb'y 28, 1877.

*Lieut. Engineer, TJ. S. A., and Engineer for D. C.*

*323Washington, D. C., *June '30th,*1876.

*District of Columbia to J. J. Shipman, Dr.*

*********

3,162.25 square yards newcobble-stofiepavement laid, at 70 cents per yard.. SI, 513 57

* * *****

-38 running feet 18-inoli pipe, at §1.62 per foot. 61 56

********

.5,659.95 cubic yards grading, at 30 cents per yard. 1,697 99

***** * *

•5,659.95 cubic yards haul, 834 ft. over 200 ft., at 10.425 per yard. 590 05

130.2 cubic yards rock excavation made to obtain stone for "wall @ §1.00 per yard. 130 20

* * * * — * * *

1 alley drop.. 9125

108.86 perches of masonry — 100.160 cu. yards, *®*§5.00. 500 83

"1,090.8 “ “ dry wall ® 2.50. 2,727 00

Add measurement of May 10th, 1876, voucher 1197. 17,059 84

24,352 29

This measurement includes all former vouchers.

Proper credits to be applied for assessment. (See letters of July 3 and •July 23, 1876, from this office, addressed to the auditor D. C.

Total for assessment,-.

I hereby certify that I have carefully, examined the field-notes of D. E. McComb, leveler, who measured this work, and find the quantities correct]

The work is reported to be New Cut road.

Contract 561.

Nov. 4, 1876.

S. H. Bodfish, *Assistant Engineer.*

Material furnished upon this or other contracts brought forward from voucher No. — value, -to-.

Materials furnished since last report upon contract, see voucher No. 1263.

None furnished.

I certify that the foregoing is a correct account of material furnished, .and that the prices charged are the net value of the material at the point where delivered, or in accordance with contract.

August 25th, 1876.

E. B. Townsend, *Superintendent of Property.*

I have carefully examined the account, and find the prices according to •contract, and the computations correct.

amount due the contractor is to be.ascertained by deducting from the above cost of the work the total advances unsettled, and also for-not previously charged, the sum of-.

Nov’r 29, 1876.

B. Oektny, *Assistant Engineer.*

*324Approved, subject to future inspection of the -work. (See dated Dee. 14th, 1876.) -, 187-. E. L. Hoxie, *Limt. Engineer, U. S. A., and Engineer for D. 0.*

XXXVX. The claimant has never received any payment on ' account of the work done and materials furnished on said New Cut road, except the said certificate of the Board of Audit for* $22,182.92. The reasonable worth of the construction of a dry wall, such as was constructed by the claimant, was at that time $3.50 per cubic yard.

XXXVII. A large part as aforesaid was paid in certificates or in 3.65 bonds. It appears that the claimant disposed of some of these at less than their face value. But it does not appear how many he so disposed of, nor what loss, if any, he suffered thereby.

*Mr. W. W. Willoughby*for the claimant:

1. The claimant was entitled to Board rates for work done-in pursuance of the letter to him of October 5, 1872, which, as-he claimed, would give him for haul $6,854.10, and for masonry,., not paid, $,1309.08. Contract No. 561 was not signed until December, 1873, after the completion of'this work. The omission of the figures for haul iu the spaces provided in the printed blank was a clerical error, and did not express the real intention of the parties. A release of the haul actually earned would have been without consideration, and for such purpose the writ-' ing was invalid, because not signed by but two members of the-Board. The parties had no knowledge of such omission, and asked, if necessary, that such writing be reformed.

2. The excavation for the wall and the lining in rear of it should not be regarded as incident to the wall, but be paid for as such in addition to the price paid for the wall itself. *(Noonan*v. Bradley, 9 Wall., 494; *Nash*v. Towne, 5 Wall., 689; *Savvey*v. *United States,*105 U. S. II, 671.)

3. The coping should be paid for as wall, besides the extra price paid for superior quality.

4. The claimant should be paid for work on New Cut road during January and February, 1876, $6,682.20, regarding this as ■separate from the work previously performed, amounting to-$15,084.39 and settled in .certificates at $22,182.92, and claims. *325that such settlement was a full account and satisfaction óf a ■stated and settled account binding upon both parties. As to this there was no mistake of fact. (10 Pet., 137; 3 How., 236.)

' 5. The evidence did not sustain the alleged overpayments to Shipman. According to the contract, the District was bound by the measurements of the engineers. *KihTbergv. United States,*97 TJ. S. B., 398.)

6. • Shipman was paid January 27,1876, and if there had been any error as to non-deduction of macadam it must have been corrected before the final measurement account was made up. No claim of such error was ever afterwards made by the engineer office or any one until by present counsel, although there have been extensive dealings with the claimant since, work done and paid for, and judgment obtained in suit brought. The District should now be estopped from setting up such claim.

*Mr. John G. Fay*(with whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendant:

1. Part of the claim is for compensation at “Board rates” in excess of the contract price, on the ground that said rates were agreed upon in certain anterior correspondence; that the formal contract is invalid for want of the signatures of a majority of the Board.

2. The letter of the secretary, ih which “Board rates” are mentioned, was not authorized in that respect, as is shown by the official minutes. The fact that the contract was not signed by the majority is disputed, and.if it were not, the claimant has recognized the contract repeatedly as valid in terms as well as by acting under it, and is estopped from now questioning .it. His acts throughout have been such as not only to •show that there was no mutual mistake as to the prices expressed, which he now seeks to set aside, but also to prove that .there was no misunderstanding even on his part, and hence no .ground for the reformation sought.

3. A claim is made for broken-stone lining to the retaining-•wali. Stone was substituted for the gravel mentioned in the contract at claimant’s request, and it is plain that the gravel lining, was included in the price per cubic yard of masonry. As ■to.coping, the correspondence shows that a price per lineal foot *326was agreed on, and that disproves the claim and establishes-the counter-claim on that item.

4. In settlement for work on the New Cut road, an allowance was made for depreciation of the bonds in which the payments were to be made. This was illegal, and the amount should be treated as so much cash on account. On masonry and haul there were clear overpayments also, as the contract-price should have governed the settlement. The claim for dry wall is not sustained.

5. On the counter-claim an overpayment on grading is thoroughly established; also a payment by erroneous measurement for more than 600 cubic yards of retaining wall in excess of the? quantity actually built.

6. The defendant is entitled to recover also for the masonry put into the wall in excess of the requirements of the contract,, and as to which it clearly appears th at he was warned by the engineer that it was not required and should not be paid for» That he managed in the absence of the engineer to get it allowed should not relieve him.

OPINION.

Davis, J.,

delivered the opinion of the court:

It is but simple justice to the counsel on both sides to say at the outset that the court has derived the greatest assistance from their able and full discussion of the complicated issues-involved in this case, both in their briefs and in their oral arguments.

The items in the claimant’s bill of particulars depend, in some-measure, upon the force to be given to a contract known as-contract No. 561.

In the autumn of 1871 the claimant offered to put the Canal road between Aqueduct and Chain Bridge in order. Apparently his terms were not acceptable, for no -notice was taken of them.

A year later the Board ordered that a contract should be awarded him for this work, and directed that he be notified of its action.

An attempt was made to connect this act with the claimant’s-acts of the previous year; but the findings show no such connection, and in our opinion there was none.

*327The secretary of the Board at once wrote to the claimant, but instead of notifying him of the real doings of the Board, he notified him that a contract had been awarded him “ at Board rates,” which had not been: alluded 'to by the Board in their action.

~~ The claimant before commencing work saw the defendant’s officers in relation to the work and the contract, but what took place can only be inferred from subsequent acts of both parties.

The claimant did work to the-amount of a few thousand dollars in the autumn of 1872, for which he was paid in part. In the spring of 1873 he resumed work and continued at it until the autumn, when a final measurement was had of the work done to that time. For all this work he was paid at Board rates with two exceptions. 1st. He was paid for stone masonry at $5 per cubic yard, while the Board rate was $6.50 per perch. 2d. He was paid nothing for haul. So far as we can gather from the findings, his bills were rendered at the rates at which they were paid, and the payments were received without any intimation that the amounts allowed were too small.'

During the progress of the work the claimant had put macadam on the road by direction of one of the Board of Public Works. This was formally recognized as a part of his contract in November, 1873, and in December, 1873, the contract, No. 561, under which all the work was supposed to have been done, was formally executed.

The findings show that both parties intended to embody in this formal instrument, and supposed-they had embodied in it, all the agreements under which the one had been doing work and the other had been paying money. The instrument was antedated for the purpose, as the findings further show, of making it operative during the whole period of the work.

The claimant now, however, makes two objections to this instrument:

In the first place it was signed on behalf of the Board of Public Works by Henry D. Cooke, Alexander R. Shepherd, and James A. Magruder. Cooke was a member of the Board in October, 1872, when the contract with the claimant was actually. made, but he had ceased to bé a member in December, 1873, when the formal evidence of it was actually signed. Shepherd and Magruder were members throughout. The total num*328ber of the Board was five. The claimant maintains that the instrument, not having been signed by a majority of the Board, is invalid.

It is unnecessary for us to decide whether he is correct in this contention, for the findings show that the claimant signed that paper for the purpose of showing what his own understanding of the contract was. If, notwithstanding the written instrument, the contract still rested in parol, the court could have no stronger evidence to show what the claimant intended it to be. If, on the other hand, the -written contract is valid, the practical result on the issues in this suit is the same.

In the second place, the claimant maintains that he engaged to do the work at Board rates; that when the written contract varied from Board rates by excluding haul, and paying masonry at only $5 a cubic yard, it was a variation made without his knowledge, and against the intent of both parties, and that these provisions of the contract having been inserted by mistake, the court should reform the contract by restoring Board rates as th§ measure of compensation.

This theory rests for its support upon — 1st. The letter of the secretary informing the claimant that a contract had been awarded him at Board rates; 2d. The testimony of the claimant that he supposed the rates stated in the written instrument were Board rates.

We have already seen that the letter of the secretary was not justified or authorized by the action of the Board. The claimant’s contention therefore rests mainly upon his own unsupported testimony. On the other hand, it is contradicted by his own consistent conduct, from October, 1872, when he began work under the original contract, to January, 1876, when he finished under the last extension of the contract. During all this time he rendered accounts and received pay for masonry at $5, and for grading without claiming haul. We cannot shut our eyes to these practical acts of construction. We think that before he began work he must have known that the secretary had made a mistake. We are also of opinion that when he signed the contract, in December, 1873, he knew what its purport was, and that it expresses the agreement as he understood it.

Having disposed of this general question, we will take up ■the items of the claim and counter-claim in detail.

*329Tbe claimant’s bill of. particulars consists of fourteen items, thirteen of which are in the original petition and one in the amended petition.

Four of these were abandoned at the trial, namely:

> •Stone excavation, 1,661.53 cubic yards of haul, as above, at 20.621 cents per cubic yard. $342 CO

> 114 cubic yards of masonry, at $5 per cubic yard. (See Exhibits No. 7,8, and 9).. 570 00

> ^Repairing road at above point. 41 00

> 120 cubic yards of cobble-stone used by overseer of ropairs, at 75 cents per cubic yard. 90 00

The item “Balance due on Conduit road, $325.67,” was amended at the trial so as to make it a claim for a receiving basin, $71.25. We do not find this claim to be sustained. •(Finding XXX.) '

There was also a claim made in the original petition for $33,679.54 for difference between the face value of certificates ■and the cash price for the work. In view of previous decisions, this claim was not pressed, and it is unsupported by proof. (Finding XXXVII.)

There was also a claim set up in the original petition for $1,328.47 for difference between the amount audited to the •claimant and the amount paid to him. We have disposed of .this by finding XVÍII, which states in substance that it is not sustained by proof.

We will take up the remaining items in classified chronological order, and consider them when pertinent to do so in connection with the counter-claims.

The following items stand by themselves and have no relation to the counter-claims:

> 33,232 cubic yards of haul 1,650 feet over 200 feet, at .011 cents per hundred feet, =.20.621 cents per cubic yard. |6,854 10

> 913.39 cubic yards of stone masonry, audited at $5 per cubic yard, which should have been at $6.50, the Board rates, making a difference of (see certificate of B. D. Carpenter, engineer iu charge of date February 4, 1876, marked Exhibit No. 4). 1,370 08

These claims are for work done before December, 1873, and are founded upon the alleged mistake as to the rates. For the reasons already given they cannot be allowed. The claimant received his contract price both for haul and masonry, and has no just claim to any further compensation for either.

The next of the series of claims grows out of an extension of *330contract No. 561 so as to cover the construction of an expensive wall on the south side of the Canal road and the completion of' that road as a first-class road. It was made by the Commissioners after the abolition of the Board of Public Works, and was a much more extensive contract than the original.

Under this extension the claimant now makes the following-claims, which are set forth in his original petition:

> 492 cubic yards coping, which should have been measured as stone masonry, at $5 per cubic yard (see letter of petitioner of June 4, 1875, and answer of engineer thereto, of June 9, 1875, marked, respectively, Exhibits Nos. 5 and 6, and extension of contract before described). $2, 480 00

> 4,624 cubic yards of earth excavation necessary for foundation of retaining wall on Canal road, at 40 cents per cubic yard (see engineer’s measurement, Exhibit No. 10). 1,849 60

> 4,528 cubic yards of broken stone necessary for drainage back of' retaining-walls, at $4.50 per cubic yard (see voucher of engineer’s estimate, dated January 26,1876, voucher No. 1134, Exhibit No. 11).:.. 20,376 60>

And the following in his amended petition:

> 5,000 yards excavation for the purpose of constructing the lining in the rear of the retaining-walls, at 40 cents per cubic yard- if2,000 00'

In this connection the defendant sets up the following items-of counter-claim:

> To overpayment by mistake of fact, on account of stone masonry in canal wall in excess of amount required by contract, 4,091.83 cubic yards, at $5. $20,459 15-

> To overpayment on account of coping, amount paid in mistake of fact... $9,887 01

> Correct amount due. 5, 320 68

> Excess overpaid. 4,566 33". To overpayment by mistake of fact for grading:

> Amount paid—

> For excavation. 9,665 40

> For haul. 7,893 41

> 17,558 81

> Amount properly due 782 88

> Excess overpaid 16,775 SJ

■ It will be observed that these claims and counter-claims relate to: 1st. The retaining-wall; 2d. The foundation for it; 3d. The lining back of it for drainage) 4th. The coping on it) and., *3315tb. The grading of tbe road itseli. We will consider them in-that order.

*1st. The wall.*— The claimant makes no demand on this account. The defendant asks judgment for a large sum for alleged over-payment. The facts are briefly these (finding-XXIX):

The wall was some 3 miles iii length, and in some places as-much as 10 feet high. In the very outset the claimant varied from the plans and specifications by constructing it wider than-they called for. He gave his reasons for these changes to the-assistant engineers of the District and to the Commissioners,, and they assented to the change. - From time to time, during the work, measurements were taken and returned to the chief' engineer, and passed upon by him and payments made in accordance with them; 'and all these measurements included the variations thus made. The Commissioners knew of it and the reasons for it, and consented to it; the assistant engineers knew of it, and the engineer-in-chief might have known of it if he had paid personal attention to it. There was no attempt at concealment or fraud. When the final payment was made,, which is now sought to be recovered back, it was done with the knowledge of the Commissioners, and by personal direction of one of them, and with the knowledge and consent of Assistant Engineer Oertly, who was acting as chief in the absence of Mr. Hoxie. The ground of the defendant’s claim for repayment. is that the engineer-in-chief did 'not assent to the changes-which involved the construction of 4,091.83 yards of masonry beyond his plans. We think this claim cannot be maintained.

The defendant further maintains that in any event there is-an overmeasurement of 661 feet in this wall. In support of this contention it refers to a measurement made by McComb,. on behalf of the defendant, which is found to be less by that amount than Franklin’s measurement, on which the payment was made.

McComb’s testimony was given January 24,1882. On the-21stOtcober, 1882, the defendant called Franklin as a witness., and made no inquiry of him on this point, although he did inquire as to other mistakes. Under these circumstances we cannot set aside Franklin’s measurement and find a payment-made under it to have been made in mistake of fact.

*332*2d. The foundation for the wall.*— The terms of the contract ¡must govern our decision. It required the claimant to—

> Construct a stone retaining or parapet wall on tlio south side of the Little Falls road, between the Aqueduct and Chain Bridges, or at such points .along said road as may bo authorized by the Commissioners, at $5 per cubic yard. * * * The present retaining-walls to be removed to such depth from the top as may be directed, and the foundation inspected and approved by the engineer of theDistriet of Columbia before relaying the wall, whioh is to be done in cement mortar.

A portion of the new wall was constructed in places where -there was no old wall. It is admitted that the contract gives the claimant no claim for the labor in getting ready for the foundations in places where there was a previous wall. The ■claim is confined to excavation in places where there was no previous wall. The instrument extending the contract makes no other provision for payment except that already quoted. We are of opinion that it requires the claimant to do all the work neccessary for the finished masonry at the agreed price ■of $5, unless there is something in the old instrument which .gives him further pay for excavation.

Turning to that we find these provisions only: “Excavations ■and refilling, forty (40) cents per cubic yard, to be measured in •excavation only,’’ and “ grading (30) cents for each and every •cubic yard of earth, sand, or gravel excavated and hauled.”

It is plain that the provision in regard to grading does not apply to this case. We think it equally clear that the other •does not. This is not a case of excavation and refilling, like a sewer trench; and the rate of payment agreed upou for such double work is not applicable to this.

There being nothing in the old contract to control the plain ■language of the extension, we must decide against the claimant ■on this item.

3d. *The lining hack of the icallfor drainage.*— The specifications called for “a lining of coarse gravel twelve *(12")*inches in thickness carried up in rear of the retaining-wall,” and the ¡plans showed this in detail. There was no gravel along the .line of the road, and it was mutually agreed, during the construction of the work, that macadam material should be substituted for the gravel.

The contract is silent as to the rate of pay for this work, 'which has been satisfactorily performed.

*333The defendant maintains that it was intended to be paid for-by the price allowed for the masonry in the wall.

The claimant contends that he is entitled to compensation. 1st. For the labor in excavating the place for the reception of" the lining at the rate allowed by the old contract for excavations and refilling; 2d. For the lining to be measured as masonry.

It is plain that this work of graveling in the rear of the wall,, as contemplated by the contract, was a work of considerable-labor and expense. We cannot think that either party intended it to be paid for in computing thb masonry. In our opinion it is a *casus omissus.*The parties have accidentally-neglected to fix a price for this work.

The claimant has done the work; the District has received', the benefit of it; and it only remains for the court to examine-the findings and ascertain whether they furnished the means-for fixing its value.

In finding XXYI will be found the final measurement of the work done under this contract certified to by Mr. Bodfish, assistant engineer, and Mr. O'ertly, assistant engineer for the lieutenant engineer. This measurement contains the following item: “4,528 cubic yards,of broken-stone filling, at $1.25,. $5,660, if allowed.”

The item was not allowed at that time. The court allows it now. as the measure of the amount of such filling, and of its, value, and in. full for the demands in the claimant’s petition and amended petition, on account of such filling, and of the-excavation for it.

*4th. The coping on the wall.*— The contract called for a—

> Coping to consist of selected stones six to ten inches thick, jointed; iru length of not less than two feet, and must project over the parapet wall not less than two nor more than four inches on each side, and must he so. disposed along the line of the wall that no two in juxtaposition shall vary in thickness nor in width more than three-quarters of an inch.

After laying about a thousand feet of this coping, the claimant wrote to the Commissioners that it was expensive, arduous,, and unsatisfactory work to make such coping, and made a proposition in the following language:

> That I he allowed to use for the coping North River or other suitable coping stone, for which I will he allowed an extra compensation of forty-*334'(40) cents per foot. This stone will cost me, delivered on the ground, nearly one (1) dollar per foot, but I am willing to bear more than one-half the expense, only asking the District government, to assume the proportion I have named.

To this proposition Mr. Hoxie, on behalf of the District, made the following reply:

> You are requested to call at this office to execufco the necessary papers for .an extension to your contract, No. 561, with the late Board ofPublic Works, to include the finishing of the parapet wall along tho Little Falls road with North River coping, at forty cents per lineal foot, payable in 3.65 bonds at par.

» The claimant dicl not call and execute the proposed extension, but instead thereof went on with the proposed change, .and the courtis now called upon from this correspondence and the acts of the parties to decide what their agreements really were.

Assuming the average thickness of the coping called for by the contract to be 8 inches and its average width to be 30 inches, the contract price for it, viz, $5 per cubic yard, would amount to 30.8 cents per running foot.

The diminution in the size caused by using North Eiver blue-stone, taking Hoxie’s measurements in finding XXVIII, reduced the contract price for it, measured as masonry, to about 15.4 cents per running foot.

As some compensation for this reduction, as well as the in■creased cost of the proposed change (estimated by the claimant .at nearly $1 per foot), the claimant proposed that he should be allowed an *extra*compensation of 40 cents per foot.

He did not indicate whether he meant 40 cents per square foot or 40 cents per lineal foot. He now says that he intended square feet, and argues that the engineer must have so understood him, because any other construction would be inconsistent •with the prices of blue-stone.

Lieutenant Hoxie’s answer may be construed in two ways: 1st, either as an acceptance of the claimant’s proposition, defining the undefined term in it to be a lineal and not a square foot; or, 2d, as a counter proposal of 40 cents a running foot as the entire compensation. We think the first construction the one most consistent with the facts in the case, and the one which gives force to the whole correspondence. It is also the •only one consistent with the action of Lieutenant Hoxie at a ..subsequent stage, when he sanctioned a measurement of the *335work which contemplated an allowance to the claimant for the coping as masonry and an additional payment by the foot. (Finding XXVIII.)

When the parties came to settle after the work was done "both agreed that the claimant was entitled to be paid for the •coping'as masonry (which we have seen to be about 15.4 cents per running foot), and at as high a rate as 40 cents extra per lineal foot, or an aggregate of about 55.4 cents per running foot. The claimant contended that he was entitled to a gross allowance of 40 cents per square foot, which, allowing the coping to be 2 feet wide, would be 40 cents a running foot additional, or about 95.4 cents per running foot. The parties comprised by fixing upon a rate of 74J cents a running foot. We •cannot say that this payment was made in mistake of fact. We think that it was made and received as a settlement of a disputed item, Regarding it in this light, we can neither on the «one hand set aside the payments already made to enable the defendant to recover on its counter-claim, nor can we on the •other hand award to the claimant-the contract price for the coping as masonry, since the claim for it, however well founded it may have been originally, entered into the settlement by which both parties accepted a rate of compensation which neither contemplated when the work was done.

*5th. The grading of the road.*— The claimant demands nothing-further for grading this road. The defendant asks to recover back $16,775.93, which it says was overpaid by mistake of fact for excavation and for haul in grading.

In the final- measurement of the work by Mr. Oertly in January, 1876, which is set fortli in finding XXVI, the' claimant was allowed for 32,218 cubic yards-of grading and for a similar amount of haul. The material in these two items was the same.

The defendants first contend that 15,185.82 cubic yards of this material was wrongfully allowed by mistake as grading and haul, because, they say, it was allowed and paid for as macadam, and constituted a part of the 45,557.47 square yards of macadam measured and allowed in the same measurement. The court has in finding XXIX found this to be so.

The defendant further contends that 14,422 cubic yards of the grading aud haul allowed in said measurement was in fact filling under the gutters, which by the extension of the contract *336was to be done without charge. As to this the court has found: that it does not appear that there was any mistake of fact in. that measurement.

The result is that the court allows the defendant for one payment by mistake of fact.

> For 15,185.82 cubic yards grading, at 30 cents. $4,555 75

> For 15,185.82 cubic yards haul, at 24£ cents. 3,720 53

> 8,276 28

The next items in consecutive order relate to what is known as the New Out road, a road near to and connected with the Oanal (or Little Falls) road, on which the claimant was at work, in August, 1875.

It appears that this New Out road was badly damaged by storms in that month. The three years’ experience which the District authorities had had at that time with the claimant as-a contractor appears to have inspired confidence, and in the emergency Mr. Hoxie addressed the following letter, on the 31st August, to the claimant:

> You are authorized to repair the roads and culverts in the vicinity of the-work now being performed by you along the Little Falls road, which have been damaged by the late storms, as extra work under your contract No. 561 with the late Board of Public Works. You will present this order with-your bill for the work, which will he done under the direction of Mr. Cunningham and Mr. Carroll, overseers.

No answer was made to this communication, but as the claimant at once went on with the work he must be presumed to have accepted the proposal.

In December he rendered an itemized bill, amounting in the-aggregate to over $15,000, and asking for measurement and payment under his contract. This contract called for payment-in cash. The defendant had no cash.' Under direction of the Commissioners a bill was made out and certified to at rates, which produced an aggregate that would make a payment in certificates equivalent to a payment of the bill rendered in cash, and the claimant was so paid in certificates.

We do not apprehend that there was anything immoral or-intrinsically dishonest in this transactiou. The parties assumed what was a manifest fact, that work to be paid fer in-depreciated securities was nominally worth higher rates than work to be paid for in cash. But the act was clearly illegal». The defendant, having agreed to pay cash, was legally bound. *337to pay cash; but wbeu it found itself unable to do so, tbe law forbade it from parting with its securities to a creditor at less than par. It is too clear for argument that what it did was an attempt to do indirectly what the law forbade it to do directly, which a familar rule of law makes an impossibility.

This payment in certificates to the amount of $22,182.92 must therefore be taken to be a cash payment to that amount on ■account of the work done on the New Out road. It is the only payment that has been made on that account. Our labors in this respect are, therefore, now reduced to ascertaining the amount of the work done by the claimant on that road.

On the 14th December, 1876, Lieutenant Hoxie addressed to the Commissioners a letter in which he said:

> -I transmit herewith final measurement of-'work done on New Cut road hy J. J. Shipman, under contract No. 561 of the late Board of Public Works, amounting to $34,352.29.

The measurements inclosed in this letter show the following apparent variations from contract rates: An allowance of $6.50 for masonry, and an allowance for haul. The counsel for the defendant ask us to strike these items from the measurement.

These measurements were made after the present controversy arose, and undoubtedly express Lieutenant Hoxie’s well-considered judgment as to the claimant’s rights. There may have been good reason for allowing the haul, and the masonry may have been of a different quality from' the rubble cement, for which the contract fixes the price at $5. We are not disposed to assume the responsibility of changing these items.

Among the items included in'this measurement were 1,090.8 perches of dry wall. The contract fixes no price for such labor and material. Lieutenant Hoxie estimates it to be worth $2.50 per perch, and allows that rate. The claimant contends that it is worth more than that, and introduced considerable proof to sustain his contention. We have reached the conclusion that the rate allowed by Lieutenant Hoxie is below the prices paid for such wall at the time of its construction, and have found that it was worth $3.50 per perch, instead of $2.50, as allowed.

As the result of this we disallow the counter-claim on account *338of tbe work on the New Cut road, and allow the claimant as follows:

> Work done as by Iloxie’s estimate. $24,352 50

> 1,068.8 perches dry wall, $1 per perch additional. 1,098 80

> 25,451 30

> Less payments in certificates at par. 22,182 92

> 3,268 38

The judgment of the courtis as follows:

The court orders, adjudges, and decrees that the contract between the claimant and the defendant referred to in claimant’s petition as contract No. 561 correctly and truly sets forth the understanding and intention of the parties, and has not by accident, inadvertence, mistake, or clerical error failed to set forth the same, and ought not to be reformed.

And the court further orders, adjudges, and decrees that the claimant has established the following items of claim against the defendant set forth in his petition or the several amendments thereto, to wit:

> A claim on account of 4,528 cubic yards of broken stone for drainage back of retaining-walls, at $1.25 per cubic yard. $5,660 00

> A claim on account of balance due for work on tie New Cut road. 3,268 38

> Making a total of. 8,928 38

And has failed to establish the residue of the claims set forth in said petition and amendments.

And the court further orders, adjudges, and decrees that the defendant has established the following items of counter-claim against the claimant, to wit:

> Overpayment by mistake of fact for 15,185.82 cubic yards of grading on the Canal road, at 30 cents per cubic yard.$4,555 75

> Overpayment by mistake of fact for 35,185.82 cubic yards of haul on said Canal road at 244 cents per cubic yard... 3,720 52

> Making a total of. 8,276 27

And has failed to establish the residue of the counter-claims set forth in its bill of particulars. ,

And the court further orders, adjudges, and decrees that the claimant shall have and recover of the defendant the sum of $652.11, as due and payable on the 1st of January, 1876, being the difference between the said amount of claim allowed to the *339claimant and the said amount of counter-claim allowed to the defendant.

And the court further orders, adjudges, and decrees that except as to the said amount of claims So allowed to the claimant all the claims demanded in the ^claimant’s petition and the amendments thereto be disallowed, and the petition with reference to all the. disallowed claims be "dismissed.

And, further, that except as to the said amount of counterclaims so allowed to the defendant the defendant’s counterclaims be dismissed.