#### DAVID ROCHE v. THE DISTRICT OF COLUMBIA.

No. 151

March 5, 1883.

The claimant did grading for the defendant under a written contract with the Board of Public Works, fixing the prices therefor, without distinction as to kinds of work, at 30 cents a yard. The Board had, by a general order made two years previously, established the price to be paid for grading old graveled streets at 40 cents a yard. He claims the latter rate for such grading.

He also did work in hauling certain gravel under a contract of June 16,1813, which fixed an agreed price therefor. Subsequently, on the 18th of .July following, the Board of Public Works passed a general resolution establishing the price to be allowed for hauling gravel at a rate higher than was agreed upon in this contract, *to date from the first of June preceding.*,

He also made another written contract with the Board of Public Works, on August 12,1872, to do certain grading at 30 cents a yard. A previous order of the Board, of September 29, 1871, had established the price for such work at 20 cents a yard.

The Board of Audit, in stating the account between the parties, allowed claimant “Board rates” for hauling and grading, in excess of contract rates. The Boafd also allowed him for work which it appears he did not do. He was paid accordingly. The defendant filed a , counter-claim to recover back the overpayment.

After the claimant had commenced work under one of his contracts, he and the District authorities were temporarily enjoined from proceeding with the work, by order of the supreme court of the District, upon complaint of a third party. He claims damages for the interruption until the injunction was removed.

Held:

I. A contractor doing work under a written contract which specifies a fixed price therefor cannot have the benefit of a general order of the Board of Public Works, adopted two years previously, establishing the price for such kind of work at a higher rate.

*218II.An order made by the Board of Public Works, establishing prices tobe paid for certain kinds of work, did not apply to suck kind of work under written contracts previonsly entered into, although, by the tenor of the order it was to relate back to a time previous to the date of such contracts.

III. The Board of Public Works, if it so intended, had no right gratuitously to raise the rate of pay under pre-existing contracts and thus to give away public money without consideration.

IV. When a contractor with the District is interrupted in his work by a temporary injunction from the supreme court of the District served both upon him and the District authorities, and issued upon proceedings instituted by third parties, such contractor cannot recover damages therefor from the District.

V.Payments made upon accounts stated by the Board of Audit in excess of the amount due, either on account of work not done oron account of the allowance of rates of pay not authorized by the contracts therefor, may be recovered back on a plea of counter-claim. The doctrine of previous decisions reaffirmed.

The claimant sues for work clone for tbe District of Columbia, under contracts with the Board of Public Works. The defendant flies a plea of counter-claim for overpayments made through the Board of Audit.

The following are the facts found by the court:

GRADING, ETC., Q STREET AND ALLEY IN SQUARE 140; CONTRACT 723.

I. The claimant and the Board of Public Works of the District of Columbia entered into a written contract, of which the parts material in this case and the extensions thereof are as follows:

This contract, made and concluded this sixteenth day of June, in the year one thousand eight hundred and seventy-three, by and between Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, Adolph Cluss, and Henry A. Willard, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and Daniel Roche, of Washington, D. C., 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 grade Q street N. W. between Sixteenth and boundary streets N. W., in the city of Washington, D. C. Also to grade and lay and put down cobble-stone pave*219ment in alley in square numbered one hundred and forty (No. 140), in the city of Washington, D. C., and the said grading and cobble-stone paving to be done and completed in accordance with the specifications following, to wit: **** ***

Fourth. It is further agreed that the said party of the first part may, on notice to the party of the second part,' suspend work under this contract; but if not suspended it shall be completed as rapidly as possible from the date fixed for its commencement, and that the said work shall not be sublet without the consent in writing of the said party of the first part, and that any sub-letting, or assignment, without such consent, work a forfeiture of this contract.

Tenth. It is further agreed that the said party of the second part shall receive the following prices as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to be done under this agreement, and in all respects completing the same, to wit: Grading, thirty (30) cents for each and every cubic yard of earth, sand, or gravel excavated and hauled a distance not exceeding two hundred (200) feet, and one (1) cent per cubic yard for every additional two' hundred feet of haul beyond the first two hundred (200) feet.

Laying cobble-stone pavement (new), per square yard, fifty-five (55) cents. Relaying cobble-stone pavement (old), per square yard, thirty-five (35) cents; which said sums or prices the said party of the first part shall pay to the said party of the second part. * * *

Twelfth. It is further agreed that the measurements shall be made by the engineer of the party of the first part or his assistant.

Thirteenth. And the said party, constituting and composing the Board of Public Works in and for the District of Columbia aforesaid, agree with the said party of the second part to perform all the stipulations of this contract obligatory in it, and to pay, or cause to be paid, to the said party of the second part, or to his heirs, executors, or administrators, in lawful money of the United States, the amount which may be found, from time to time, due him according to the contract.

In witness whereof, the parties to these presents have hereunto sot 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. ]

Adolph Cluss, [l. s.]

H. A. Willard, [l. s.]

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

EIRST EXTENSION.

For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and David Roche that contract No. 723, in the series of contracts made by the Board of Public Works of the District of Columbia, be, and the same is hereby, extended, with its various terms, conditions, and stipulations, to embrace the following work, to wit:

Grade and pave with cobble-stone, and lay and put down a 12-inch pipe *220sower in the alley in square No. 159, according to specifications- hereto attached.

It is further agreed that the said David Eoche shall receive the prices established and paid by the Board of Public Works for work of similar character, provided that all payments for work done under this agreement 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 the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value. * * *

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 to be hereto affixed; and the party of the second part to these presents has hereunto set his hand and seal this 27th day of April, 1875.

W. Dennison, [l. s.]

J. I-I. Ketcham, [l. s.]

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

*Commissioners of the District of Columbia.*

David Eooiie. [l. s.]

SECOND EXTENSION.

For and in consideration of the stipulations hereinafter contained, it is agreed by and between ihe Commissioners of the District of Columbia and David Eoche that contract No. 723, in the series of contracts made by the Board of Public Works of the District of Columbia, be, and the same is hereby, extended, with its various terms, conditions, and stipulations, to embrace the following work, to wit:

Grade Twenty-third street west, between M and N streets north, and lay and put down a 12” inch pipe sewer in the alley in square jf 140.

It is further agreed that the said David Eoche shall receive the prices established and paid by the Board of Public Works for work of similar character, provided that payments be made in the bonds issued by the sinking-fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value. * * *

In witness whereof this instrument is signed and sealed 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 party of the second part to these presents has hereunto set his hand and seal this 15 day of July, 1875.

W. Dennison, [l. s.]

J. II. ICETCnAM, [l. s.]

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

*Commissioners of ihe District of Columbia.*

David Eoche. [seal.]

*221II. The records of the Board of Public Works show the following action: .

Sept. 29, 1871. *Resolved,*That in fixing the price of grading at the rate of twenty cents a cubic yard, the Board did not intend it should apply to old graveled streets ordered to be cut down; but will allow forty cents for all such grading for the depth of two feet below the surface, and that the chief of the Bureau of Contracts be notified of this action.

July 15, 1873. Auditor was notified that the price for hauling earth has been established at 1J- cents per cubic yard for every 100 feet of haul over first 200 feet, since June 1, 1873. Contract clerk so notified.

III. The claimant, between the 15th of June, 1873, and the 3d of November, 1874, did work under said contract on Q street as follows:

3,485 cubic yards of grading graveled roadway, which, at 30 cents

per yard, comes to..-.I.$1, 045 50

8,839 cubic yards of other grading, which, at 30 cents per'yard,

comes to. 2,651 70

12,324 cubic yards of haul a distance of 1,843 feet over 200 feet, which, atthe rate specified in the contract, would amount to.. 1,133 80

4,831 00

At the rates specified in the order of the Board of July 15, 1873, the last above item would amount to $2,834.52.

Partial measurements and payments were made from time to time, and on the 3d of November, 1874, a final measurement was made by the engineer of the District and transmitted to the Board of Audit for settlement, in which the claimant was allowed “Board rates,” so called, under the resolution of September 29, 1871, set out in finding. II, for grading graveled road and for the haul, as follows:

WASHINGTON, D. C., *Nov. 3d,*1874.

*District of Columbia to David Roche, Dr.*

3,485 cubic yards grading, at 40 cts. pr. yd... $1,394 00

12,172 cubic yards grading, at 30 “ “ 3,65160

15,657 .cubic yards haul, 1,843 ft. over 200 ft., at 23 “ *“*3,60111

$8,646 71

Upon these measurements the Board of Audit stated an account, and after deducting for previous partial payments. $4,716 64

Allowed the balance. 3,930 07

*222This balance was paid to the claimant through Board of Audit certificates in part November 11,1874, and the remainder November 27, 1874.

IY. The claimant did work in the alley in .square No. 140, as follows:

Grading 3,231 cubic yards, at 30 cents per yard.■. $969 30

Cobble-stone pavement. *568 88*

480 feet gutter-stone. 230 40

1,768 58

Towards this be bas been paid. 1,414 87

Balance due and unpaid January 31,1876 _,. 353 71

Y. In pursuance of the order hereinafter set forth, founded upon a temporary injunction from the supreme court of the District of Columbia, as well as in compliance with the process of the court served on him, the claimant suspended part of the work on the alley in square No. 140, May 13,1875.

Engineer’s Office, District op Columbia.,

*Washington, 'May*13,1875.

David Rooms, Esq., *City:*

Sir: An order bas been issued by tbe supreme court of D. C. restraining tbe engineer, Commissioners, and yourself from filling up or depositing either upon lots 15 or 16, in sqr. 140, or alleys bounding tbe same. You will tberefore suspend work until further advice from this office.

By order of tbe engineer.

Frank’n T. Howe,

*Chief Cleric.*

The temporary injunction of the supreme court of the District having been dissolved, the following notice was given to the claimant, and he thereupon renewed work: *>*

Engineer’s Office, District of Columbia, ,

*Washington, June*25, 1875.

David Roci-íe, Esq., *City:*

Sir: You are hereby authorized to resume work upon alley in square 140. Very respectfully,

R. L. Hoxie,

■ *Lieut. Engineers, U. S. A., Eng’n’r D. C.*

YI. Under the first extension of contract 723 the claimant, in addition to work done for which he was paid

in full, did also other work to the amount of. $940 51

Towards which he was paid. 891 45

Balance retained, due and payable January 19, 1876. 49 06

*223VII. Under the second extension of contract 723 tbe claimant, in addition to work done for which he was paid in full, did also other work to the amount of.. $656 29

Towards which he was paid.. 633 93

Balance retained, due and payable January 31,1876. 22 36

VIII. It does not appear that the claimant did any work for* the District under the contracts set forth in his petition or otherwise claimed therein which, is not specified in these findings, except such as he has been paid for in full.

.RELATING TO THE COUNTER-CLAIMS.

IN. The claimant and the Board of Public Works of the District of Columbia entered into a written contract, of which the parts material in this case are as follows:

Tliis contract, made and concluded this twelfth day of August, jn the year one thousand eight hundred and seventy-two, by and between Henry D. Cooke, Alexander E. Shepherd, James A. Magruder, A. B. Mullett, andS. P. Brown, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and David Eoche, of Washington, D. C., 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 amd contained, and under the penalty expressed in a bond, bearing even date with these presents, and hereunto annexed, to furnish at his own proper cost and expense all the necessary materials and labor, and in a good, firm, and substantial manner to grade and gravel First street east, between I and 0 streets south, in the city of Washington, D. C., tho work of said grading and graveling to be executed in every respect in accordance with the specifications following, to wit: *

* *a*ff ff 07 ff

Tenth. It is further agreed that the said party of the second part shall receive the following prices as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to he done under this agreement, and in all respects completing the same, to wit: Grading per cubic yard, thirty (3(1) cents, which shall include the first two hundred (200) feet of hauling, and one (1) cent per cubic yard for every additional two hundred (200) feet of hauling; graveling per square yard, fifteen (15) cents; hauling gravel used in graveling street, per square pard, four (4) cents.

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

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

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

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

A. B. Mullett, [l. s.]

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

David Eoche, *Contractor.*

*224X. Under said contract tbe claimant, in addition to other work for which he was paid in full, also excavated 4,901 cubic yards of earth (not gravel),

which at contract price came to. $1,470 30

The Board of Public Works in stating the account, by mistake of fact, allowed him for said grading = as “hard gravel” grading, at 40 cents per yard,

amounting to. 1,960 40

The claimant, in mistake of fact, was paid the *fall*

amount, being an overpayment of .... 490 10

XT. The claimant was allowed and paid through the Board of Audit, as more fully set forth in finding III, for—

3,333 cubic yards of excavation, at 30 cents per yard, more than

•was done by him. $999 90

Hauling on the same...-. 766 49

Difference between the “Board rate,” so called, and the contract rate for excavating, 3,485 cubic yards, under the resolution of

September 29, 1881, at ten cents per yard. 348 50

Difference between the “Board rate,” so called, under the order of July 15, 1873, for hauling 12,324 cubic yards (not including the 3,333 yards above mentioned) and the contract rates, at lSi5,,- cents per yard. 1,700 72

3,815 61

*Mr. Eppa FLunton*and *Mr. V. B. Edwards*for the claimant:

1. The claimant is entitled to recover for all his work done under contract and extensions thereof within the plain meaning of the first paragraph of section 1 of the *Act of Congress approved June*16, 18S0 (Suppl. to Rev. Stat., 562).

2. The claimant is entitled to recover for the work done outside of the contract by order of a member of the Board of Public Works what the work is fairly worth, because the District of Columbia received the work and since its completion has been enjoying the benefits derived from this work. In other words, the District of Columbia is bound to pay for all work done for it, accepted by it, and from which it has derived a benefit. *(Union Water Co.*v. *Murphfs Flat Filming Go.,*22 Cal., 620; *Whitney Arms Co.*v. *Barlow et. al.,*63 N. Y., 63; *George Neitzey*v. *District of Columbia,*17 O. Cls. R., 111.)

3. The fair value of the work thus done is the price paid for similar work done under contract.

*225*Mr. John 0. Fay*(with, whom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendant:

The claims for work done are not sustained.

1. The claim for damages has no legal foundation. The District had no part in the procuring the injunction; it was not issued at its instigation or by its agency, and cannot be held for any damages if any occurred.

2. The counter claim is based on overpayments by mistake and in excess of contract prices. The payments on First street are clear overpayments in mistake of fact.

3. The payments for grading and haul on L street are in excess of contract rates, and can be recovered back, although they do not exceed the Board of Public Works schedule rates. The contract and not the schedule is the measure of the claimant’s rights. The defense most emphatically deny the doctrine that “Board rates” in the least affect the prices in a written contract, or that they are to be at all considered where there is a contract with fixed prices. When a contract is entered into, the i>roperty-holders are entitled to have it enforced in its terms; and the Board of Public Works, if it had so intended, had no lawful power to increase prices after a contract made and bonded.

4. A second error is made in this work by failing to deduct the amount of grading done , by one Kenny under the old corporation of Washington.

OPINION.

Richardson, J.,

delivered the opinion of the court:

Several questions of law arise upon the findings of fact in this case.

1. In the year 1871, the Board of Public Works, by a general resolution, passed September 29 of that year, fixed the price of grading of old graveled streets to the depth of 2 feet below the surface at 40 cents per cubic yard, ánd other grading at 20 cents a cubic yard, as set forth in finding II. Subsequently, on the 16th of June, 1873, the claimant made with the defendants the contract set forth in Finding I, by which he agreed to do the grading therein specified, and for which he was to be paid at the rate of 30 cents per cubic yard. No mention was *226made of any different kinds of grading, and a uniform price of 30 cents a cubic yard was fixed for all that was agreed to be done.

Tbe claimant insists that, as part of the grading done by him was that of an old graveled street, he is entitled to be paid for it at 40 cents a cubic yard, the rate specified in the Board’s resolution of 1871, establishing what are commonly called ‘‘Board rates.” We cannot accede to his demand. That resolution of the Board of Public Works upon which he relies was passed nearly two years before his contract was made, and although it would continue to apply, until abrogated, to all future work for which the rate of compensation was not otherwise fixed by agreement of the parties, it certainly could not control a subsequent written contract expressly establishing different rates of compensation. '

We hardly think the claimant himself would be willing to submit to the full application of the doctrine, which he presses upon us only as to part of his work, that the Board rates fixed-by resolution of 1871 should govern the compensation for this work under his subsequent contract, since the rate for grading, therein established, except of graveled streets, was 20 cents a cubic yard, or 10 cents a yard less than his contract rate. The claimant did more than three times as much ordinary grading as he did of graveled street grading, and would therefore lose largely by the adoption and application of his rule of compensation to all the grading of the two different kinds which was done by him. The principle is an untenable one, audit makes no difference whether it would work to the advantage or disadvantage of either of the parties. The claimant was entitled to 30 cents a cubic yard, the contract price, for all his work of grading.

2. The contract between the parties of June 16, 1873, set forth in finding I, provided that the claimant should be paid for hauling excavated sand or gravel 1 cent per cubic yard for every 200 feet beyond the first 200 feet. Subsequently, on the 15th of July, 1873, the Board of Public Works entered of record on their minutes that the auditor and contract clerk werq notified that the price for hauling earth had been established at l-£ cents per cubic yard for every hundred feet of haul over the first 200 feet since June 1, 1873, as appears by an extract from the records set forth in’finding II.

*227We can conceive, of some cases to wbicb that orcier, if it can be called an order, might rightfully be made to apply, as where a contract had been made and the price had not been agreed upon, or where there had been a change in the terms of contract, or the defendants had not performed their part of it, and so the contractor had been released from his obligations, or there was a renewal or extension of a contract after it had expired by its own limitation, or had been abandoned by agreement, if the parties understood that the work was to be continued under the Board rates, or there were other legal considerations for an agreement on the part of the Board of Public Works to raise the prices. But there were no such considerations in the present case. On the contrary, this order was entered of record in about a month, after the contract was entered into, and no change of circumstances are shown to exist why the claimant’s compensation should be governed by it.

The Board of Public Works, if they so intended, had no right thus gratuitously to raise the rate of compensation agreed upon and to give away the public money without a legal consideration. Public officers, who are but agents, have not such control -> over public contracts and public money that they can authorize payments to be made beyond the strict liability to which their principals are legally subjected. It has been so decided in many adjudicated case.s. *(Bond et al.*v. Newark, 19 N. J., 376; *State et al.*v. *Hoboken,*36 N. J. Law R., 378; *Schman*v. Seymour, 24 N. J. Equity R., 143; *Hodges*v. *Buffalo,*2 Denio, 110.)

The very act by which the Board of Public Works was created contained tlie following provision aimed at practices such as the claimant now invokes in his behalf:

> Sec. 16. The legislative assembly shall never grant or authorize extra compensation, fee, or allowance to any public officer, agent, servant, *or contractor,*after such service has been rendered *or a contract made,*nor authorize, the payment of any claim or part thereof hereafter created against the District under any contract or agreement made without express authority of law; and all such unauthorized agreements or contracts shall be null and void. *(Act of February*21, 1871, ch.132, § 15, 16 Stat. *L,*423.)

We hold that the claimant is not entitled to the benefit of the Board’s order of July 15, 1873, to raise the rates of compensation agreed upon by the parties in their contract of August 16,1873, although the order in terms relates back to June 1, 1873.

*2283. After the claimant had commenced work on the alley in square 140, under his contract set out in finding' I, a temporary injunction by the supreme court of the District of Columbia was served on him and on the engineer and the Commissioners of the District as shown in finding Y, and his work was suspended on that account for little more than a month. For this suspension he claims damages from the District. We have not undertaken to estimate the damages to which he was thereby subjected, if there were any, because we are not aware of any principle of law by which a contractor can recover of the other party to his contract damages caused by a third party’s having wrongfully obtained a temporary injunction against both of them, as defendants in the same proceedings, from going on with the work agreed upon between them. If he is entitled to damages from anybody, he must recover them from the one who instituted the proceedings, and not from a co-defendant who, like himself, suffered by the interruption and delay of the work.

4. As to the counter-claim for the recovery of an overpayment made by the Board of Public Works.

The contract of August 12, 1872, set out in finding IX, provided that the claimant should be paid for grading at the rate of 30 cents per cubic yard. In settling with him the Board allowed 40 cents a yard for 4,901 cubic yards. This was the rate prescribed by the Board, September 29, 1871, and, as we have already shown in relation to the other contract, could not be applied to work done under a contract subsequently made, in which a different price was fixed and agreed upon. But in addition to that objection, it appears by finding X that this work was not grading old graveled street, and so did not come within the 40-cent • rate provided for in the Board’s order, even if it could have been applied to such work had it been done. This overpayment was clearly made in mistake of fact, and may be recovered back.

5. As to the counter-claim for the recovery of overpayments made through the Board of Audit.

It is shown by findings III and XI that the claimant was paid for 3,333 cubic yards of excavation at 30 cents per yard which he never did, amounting to . $999 90

*229That he was paid for hauiing the same. $766 49

That he was paid “Board rates” under the resolution of September 29, 1871, as set out in findings III and XI, for work done' under his contract in excess of contract rate.:... 348 50

That he was paid “Board rates” under the order of July 15,1873, for work done under his contract as set out in findings III and XI in excess of contract rate . 1,700 72

3,815 61

We have had occasion in several cases heretofore to review the power and functions of the Board of Audit and have considered, as did the Supreme Court in the case of *The District of Columbia*v. *Cluss*(103 U. S. R., 706), that the Board “was not a judicial body whose action was final; it exercised little more than the functions of an accountant. A claim allowed by it was not necessarily a valid one; a claim disallowed was not, therefore, illegal. Its action either way left the matter open to contestation in the courts.” *,*

We have uniformly held that money erroneously paid through the action of the Board of Audit might be recovered back upon a plea of counter-claim, and we adhere to our previous rulings. *(Neitzey’s Case,*17 C. Cls. R., 127; *Adams's Case,*ibid., 364; *Brown’s Case,*ibid., 420.)

The result of the whole case is that the defendants have sustained their counter claim to the amount of:.J. $4,305 71

And the claimant has proved retainers of his money on accounts to the amount of. 425 13

$3,980 58

The judgment of the court is that the defendant recover of the claimant the balance of difference between their respective claims, amounting to $3,980.58, and judgment will be entered accordingly.