#### HENRY GANTZ, TO THE USE OF JAMES A. BOYD, v. THE DISTRICT OF COLUMBIA.

No. 158

May 14, 1883.

The Commissioners of the District of Columbia made a contract with the claimant by which they were to pay him for the work agreed to be done *“ the prices established, and paid"*by the Board of Public Works.

It appeared that the prices early established by orders of record had not been adhered to in practice, and that larger prices had been paid to contractors by the Board of Public Works than the established “Board rates.”

The engineers of the District at the completion of -the contract made out and certified to a voucher, which allowed the larger prices, and the saipe was paid through the Board of Andit.

The defendant files a counter-claim to recover back the excess over the rates established by formal orders of record.

Held:

Under an agreement by the District to pay to a contractor the “prices es<-tablished and paid” by the Board of Public Works, where it appears that the prices uniformly paid were higher than those formerly *established*by record evidence, the contractor is entitled to the higher rates, whether-such be regarded as established by actual payments or the claimant be considered as entitled to the construction most favorable to himself on the ground that when a contract is ambiguous it may be taken most strongly against the promisor. . «

The following are the facts found by the court:

I. A contract was made June-24, 1872, between the Board of Public Works of the District of Columbia, and one George Follansbee, of which the parts material in this case are as follows : -

This contract, made and concluded this twenty-fourth day of June, in the year one thousand eight hundred and seventy-two, by and between Henry D. Cooke, Alexander E. Shepherd, James A. Magruder, S. P. Brown, and A. B. Mullett, constituting and composing the-Board of Public Works of -the District of Columbia, of the first part, and George Follansbee, 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 *570labor, and in a good, ñrm, and substantial manner to excavate for, build, and complete a brick barrel-sewer, two (2) rings, with the necessary manholes and traps, the said sewer to be a brick barrel-sewer ñve (5) feet six (6") inches in diameter in the clear, on Eighteenth street, NW., from the south side of M street, NW., to N street north; thence along said N street, NW., to Seventeenth street, NW., thence along said Seventeenth street, NW., to Boundary street; also to construct a twelve (12") inch pipe sewer, with the necessary manholes and traps, from the lower end of said brick sewer on said M street, NW., to connect with the pipe sewer on the west side of said Eighteenth street, NW., in the city of Washington, D. C., and the said sewers (brick and pipe) as aforesaid to be built, constructed, and completed in every respect in conformity with the specifications following, to wit: * * *

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:

Brick masonry, per M, twenty-three ($23.00) dolls.

Twelve (12") inch pipe, per lin. ft., eighty-eight (88) ots.

Six (6") “ “ “ “ *“*thirty-six (36) *“*

f-inch A A lead *“*“ “ *“*fifty (50) *“*

Street washer and box, iron, $6.12.

Stop lock and box, $4.00.

*Manholes.*

6 ft. deep or under, $31.68.

Over 6 “ *“*and not more than 8 ft., $42.24.

“ 8 “ “ “ “ “ “ 10 “ 52.80.

“ 10 *“ “ “ “ “ “*12 *“*63.36.

*“*12 “ $73.92.

Traps, old corporation pattern, each, $145.38.

“ Chase’s pattern, each, $114.58.

Excavation (earth) and refilling, seventy-seven (77) cents per cubic yard, to be measured in excavation only.

Excavation (rock), per cubic yard, $2.00; provided, however, that the measurements for grading shall embrace all the excavation actually done.

Shoring, one dollar and eight ($1.08) cents per lineal foot.

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.

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

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

James A. Magruder, [l. s.]

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

*Boar A of Public Works of the District of Columbia.*

Geo. FollaNsbee,

*Contractor.*

*571Subsequently, on the 8th of September, 1875, said Follansbee haying assig'ned his contract to the claimant, an agreement was made between the latter and the Commissioners of the-District, of which the parts material in this case are as follows:

Whereas the Commissioners of the District of Columbia did, on. the 8th day of September, 1875, enter into an extension of contract No. 355 (in the series of contracts made by the Board -of Public. Works of the District of Columbia) with George Follansbee, with its various terms, conditions, and stipulations; and

Where'as the said George Follansbee did, on the 8th day of .September, 1875, transfer and assign said extension of contract No. 355 unto Henry Gantz, which assignment has been accepted and approved by the said Commissioners in accordance with the terms of said contract: Now, therefore,

The Commissioners of the District of Columbia, of the first part, and Henry Gantz, of the second part, have, on this eighth day of September, 1875, made and entered into the following agreement, which witnesseth:

First. For and in consideration of the stipulations hereinafter contained the said Henry Gantz hereby agrees to do and perform the following-described work, according to specifications hereunto annexed, to wit:

Construct and complete an inlet and gravel pit at the beginning of the present sewer in or near Champlain avenue, north of Boundary st., in accordance with the plan prepared and furnished by the engineer of the District of Columbia.

Also construct a two (2) ring brick sewer, four (4) feet inside diameter, from said inlet to Boundary street, thence west along Boundary street to 18th street; thence along 18th street to the north curb-line of T street, NW.; thence a four (4) foot 'six (6) inch two (2) ring brick sewer along 18th street to Q street; thence along Q street'to 21st street, with the necessary manholes, traps, and connections, in accordance with plan.

Second. It is further agreed that the said Henry Gantz hereby becomes, and shall be held, fully responsible according to the terms of said contract No. 355, so far as they may or can apply to the work herein specified, the same'as if he was the party of the second partto said contract, and that he will strictly adhere to, carry out, and fulfill each and every article and stipulation of the same not inconsistent with this present agreement.

Third. It is further agreed that the work herein described shall be completed within forty working days from the date hereof under penalty of forfeiture of all right and title to perform the same. It is further agreed that the said Henry Gantz shall receive the prices established and paid by the Board of Public Works for main sewers, provided that payment be made in the bonds issued by the sinking-fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value. * * * .

. Sixth. It is further agreed that all loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same or from the action of the elements, or from incumbrances or in*572juries to individuals, property, or otherwise, on the lines of the work or adjacent thereto, shall he sustained hy the contractor. * * *

SPECIFICATIONS FOR BRICK MASONRY AND SEWERS.

13. Sheet-piling to he used where the same may he necessary, hut no allowance will he made therefor *¡*in all cases the sheet-piling is to he drawn as the work progresses unless ordered otherwise hy the said Board, in which case the sheet-piling so ordered to he left in the trench will he measured and allowed for at the same rates as the foundation plank. * * *

21. All loss or damage arising out of the nature of the work to he done under this agreement, or from any unforeseen or unusual obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, will he sustained hy the contractor. ** **

In witness whereof the Commissioners of the District of Columbia, successors to the late Board of Public Works, appointed under the act of Congress entitled “An act for the government of the District of Columbia, and for other purposes,” approved June 20, 1874, and the party of the second part to these present’, have hereunto set their hands and seals this 8th day of September, 1875.

W. Dennison, [l. s.]

S. H. ICetcham, [l. s.]

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

*Commissioners of the District of Columbia.*

Henry Gantz, Tl. s.]

*Contractor.*

II. The claimant did certain work on a gravel pit, under the first clause of the first article in said agreement with him, for which, by the measurements and statement of the engineer, there was due and payable to him March 1, 1876, a balance on settlement of $4,274.15, which remains unpaid and is not controverted.'

III. The claimant did certain other work, in the construction of a sewer, under the second clause of the first article of said agreement. For this work the following voucher was transmitted to the Board of Audit:

Washington, D. C., *Nov. 8th,*1875.

*District of Columbia to Henry Gantz, Dr.*

45 lineal feet 18-inch Scotch tile and laying, at 1.62 per foot ... $72 90

296 lineal feet 15-inch Scotch tile and laying, at 1.33 cents per foot. 393 68

354 lineal feet 6-inch Scotch tile and laying, at 38 cents per foot. 127 44

21 lineal feet 6 x 15 connections, at 1.80. 37 80

5 manholes, 19-J- feet deep, 105.60 each.. 528 00

1 manhole, 17-J-feet deep, 95.04 .. 95 04

*5732 manholes, 14 feet deep, 73.92... $147 84

4 receiving basins and traps, new pattern, 157.58. 630 32

A. 920 o. feet 4-ft. briol!; sewer, cont’g 192,363 bricks; 3,116 lineal feet 4-J-foot brick sewer, cont’g 732,260 bricks; 8 c. feet 1-J-brick sewer and 2 Annies, 2,548 bricks — at 23.00 per thousand .. 21,324 93

B. 14,444 cubic yards excavation, 77 cents per yard. 11,121 88

695 cubic yards excavation, 40 cents per yard. 278 00

6 manholes, 12 ft. deep, 63.36 . 380 16

6 manholes, lOJ ft. deep, 63.36 .'. 380 16

7 manholes, 81 ft. deep, 52.80 .:. 369 60

C. 261 perches stone backing, 6.50 . 172 25

D. 2,636 c. f. shoretug, 1.08 .. 2,846 88

Main sewer rates on items A, B, C, & D. 11,437 76

Total 50,344 64

I hereby certify that I have carefully examined th'e field notes and report of Thos. Franklin, leveler, who measured and inspected this work, and find the quantities correct.

The work is reported to be well done.

L. S. Bodfish,

, *Assistant Engineer.*

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-, nor previously charged, the sum of-.

Nov. 11, 1875.

B. Oertly,

*Assistant Engineer.*

Approved, subject to future inspection of the work.

Nov. 12th, 1875.

B. L. Hoxie,

*IAmt. Engineer U. S. A., and Engineer for D. C.*

The amount of this voucher, after deducting for previous payments, was paid to the claimant through the Board of Audit in bonds issued by the sinking-fund' commissioners as provided in the *Act of June*20, 1874, ch. 337 (18 Stat. L., 116).

IY. The last item in said voucher, $11,437.76, was made up by adding 15 per cent, called for *“*contingencies,” and 15 per cent, called for “discount” under these circumstances.

The records of the Board showed that in 1871,1872, and 1874 rates of payment for such sewer work as is described under items A, B, O, and D, in said voucher, were established as therein set out.

*574On account of the low credit of the District at that time, the fact that payments were not made in cash, and other causes, the Board of Public Works, after the prices were thus established, and up to the time of its abolition, June 20, 1874, actually paidTdgher prices. Contracts were entered into and payments were made to other parties for such work as was done by the claimants, at prices substantially the same as those allowed to the claimant in said voucher including the percentages added by the last item therein. Those percentages or that item was, therefore, added in order to give to the claimant the same prices for his work as had been paid by the Board of Public Works to other parties for like work, and such was the practical effect thereof.

*Mr. John W. Boss*for the claimant:

The claimant is entitled by the contract to the rates usually paid by the Board of Public Works. The engineer of the District so understood the contract and gave a voucher accordingly, which is relied upon as a correct statement of the claimant’s demand.

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

1. The Board of Audit paid the allowances for discount and contingencies, which are the subject of this counter-claim, under a mistake of fact. The journal of the Board of Public Works affords no record of their establishment as “main sewer rates,” and the mere fact that they were paid in certain instances, if proven, is incompetent, since the stipulation is for prices *“established and*paid.”

In the instances referred to, the price was a fixed sum per lineal foot, and it is only from an alleged memorandum of the engineer’s office indicating the process of computation by which the fixed sum was arrived at that the fact to be proved is sought to be deduced. It'is an illegitimate and dangerous assumption that the Board knew and adopted such details of computation as its rules of action. Congress at least repudiated that doctrine Avhen it investigated the matter.

*2.*The Board of Public Works had no power *to*deal with *575contractors on any but a cash basis. If the latter chose to take District securities at par they might do so. The Board could not issue them at lower rates (1 Dillon on Mun. Corp., § 503), and could not indirectly do the same thing by an allowance for discount. As to sewer work it would have been in direct conflict with the law. (Acts Leg. Ass. D. C., 1873, p. 112.)

The Commissioners who made this agreement had no higher or other power than the Board. (Act *June*20,1874, § 2,16 Stat. L., 116.)

OPINION..

Richardson, J.,

delivered the opinion of the court:

The claimant had a contract with the ConTmissioners of the District of Columbia, made by an extension in September, 1875, of a contract entered into in 1872. between the Board of Public Works and one Follansbee, who had assigned it to the claimant.

Two separate pieces of work were by the contract to be done by the claimant and were done by him. *First,*to construct an inlet and gravel pit; and, *second,*to construct a brick sewer.

For the gravel-pit work there was found to be due him on settlement a balance of $4,274.15, payable March 1, 1876, and that amount, it is conceded by the counsel for the defendant, is still due and unpaid, as shown in finding II.

The only controversy in the case arises upon the counterclaim or' set-off filed by the defendant to recover $11,437.76, alleged to have been overpaid to the claimant through the Board of Audit for sewer work. The facts in relation to this item appear to be these:

The claimant received partial payments as the work progressed, and at its completion a detailed voucher was made out in November, 1875, by the assistant engineers of the District, which allowed to claimant for the whole work $50,344.64. This voucher was certified to as follows:

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

> Nov. 11,1875. B. ObRtusy,

> *Assistant Engineer.*

> Approved, subject to future inspection of the work.

> Nov. 12, 1875. K. L. Hoxib,

> *Lieut. Eng. U. S. A., Engineer for*JD. *C.*

*576Thus certified to, the voucher was transmitted to the Board of Audit, and the balance due, after deducting previous partial payments, was paid in the bonds issued by the sinking-fund commissioners, under the *Act of Congress Jtme*20,1874 (18 Stat. L., 116).

This voucher first sets out the prices established by the early order of the Board of Public Works, and then closes with an item for “main sewer rates on items A, B, C, & D,” $11,437.76.

This last item, now the subject of controversy between the parties, was added by the engineers to bring the prices of the work up to contract rates, as they construed the contract, and the question is whether or not they were correct in their construction.

The Board of Public Works, in 1871, 1872, and 1874, by entries in their records, had established what were called “ Board rates ” for work such as that done by the claimant, and those were the prices first stated in the voucher; but after those prices were thus established, the credit of the District becoming impaired on account of the magnitude of the work undertaken. by the Board of Public Works, and the indebtedness which was rapidly increasing, and other causes, the Board entered into contracts with other parties for similar work at higher' prices, and actually paid higher rates up to the time of its abolition, June 20, 1874.

The engineers of the District construed the claimant’s contract with the Commissioners to mean that he was to have the benefit of the prices actually paid to other parties, where they differed from those previously established by orders which were not followed in practice. The following is the provisions of the contract on the subject:

> It is further agreed that the said Henry Gantz shall receive the prices established and paid by the Board of Public Works for main sewers, provided that payment be made in the bonds issued by the sinking-fund commissioners of the District of Columbia, under *&■*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.

As the prices established by the early orders and' the prices actually paid to subsequent contractors were not identical, it was to be determined which one of the two rates was intended by the parties and was to lie allowed to the claimant.

The engineers gave the claimant the benefit of the later *577and larger prices and made out the‘voucher on that basis. Whether this was done because they regarded those iirices as practically established by actual' payments, or because they adopted the construction most for the advantage of the claimant, on the general ground that when' the terms of a written contract are ambiguous and cannot be made clear by the context they may be taken most strongly against the promissor, especially when such contract waá prepared by the latter, we are of opinion that they were notin error, and that the voucher they gave was correct. *(Noonan*v. Bradley, 9 Wall., 407.)

was reached by first taking the “ established ” prices and then adding thereto percentages to bring up the compensation to prices subsequently paid by the Board, or that such percentages were called for “contingencies” and “discount,” is immaterial. Whatever arithmetical processes were employed, and whatever designations, whether right or wrong, were used in the voucher, the result was substantially according to contract.

The claimant having been paid nothing more thsln he was entitled to, the defendant cannot recover on its counter-claim.

The judgment of the court is that the claimant recover to the use of James A. Boyd the sum of $4,274.15, as due and payable March 1, 1876, and that the the defendant’s counter-claim and set-off be dismissed.