#### CAMPBELL AND ESLIN v. THE DISTRICT OF COLUMBIA.

No. 45

February 26, 1883.

In 1871 claimants entered into a 'written contract with, the Board of Public Works for the District of Columbia to do certain work and furnish materials therefor, at prices stated in the contracts. At some period after this work was done, the Board of Public Works passed general orders raising the price to be paid for such kind of work.

The Board of Public Works and the old District government were abolished, the affairs of the District transferred to Commissioners, and a Board of Audit created to “examine and audit for settlement” all outstanding claims. *

This latter Board stated an account with the claimants, allowed them “Board rates” for work previously done under contracts wherein the rates were lower, and the balance found due was paid to them, being a sum larger than the contracts themselves called for.

Thereafter the Commissioners revived the old contracts and applied them to work somewhat different from that specified therein, but nothing was stated in the renewals as to prices.

There was in evidence a measurement of the work by the defendant engineers, the correctness of which was in controversy.

■The claimants sue for work under the renewals, claiming “ Board rates,” and the defendants file a plea of set-off to recover the excess above contract rates paid through the Board of Audit.

Hei,t> :

I. Where contracts were made and the work under them was done, a subsequent general order of the Board of Public Works, establishing for' such kind of work prices higher than those previously agreed upon, did not apj>ly to the pre-existing contracts nor to the work done thereunder.

II. Money paid through allowances by the Board of Audit at “Board rates” thus established, for work previously done under contracts at lower rates, may be recovered back on plea of counter-claim to the amount of the difference b etween contract rates and Board rates.

*194III. Tlie revival of contracts after the work was substantially completed and the application of them to different work after the rates for such kind of work had been raised by general order of the Board of Public Works above the contract prices, under the circumstances of this case, gave the contractor the benefits of the increased rates for subsequent work. The “ Board rates *”*held to have entered into the terms of renewal as understood by the parties.

IV. The measurements of the engineers of the District are by the terms of the District'Claims Act made *prima fade*evidence, but are not conclusive.

The claimants sue' for work done for the District under two contracts set forth in the findings. The defendants file a plea of set-off and counter-claim for overpayments made through the Board of Audit.

The facts sufficiently appear in the following findings made by the court:

TENTH-STREET WORK; CONTRACT NO. 152.

I. On the 29th of September, 1871, the claimants entered into a contract with the Board of Public Works for the improvement of Tenth street, between Bast Capitol street and Maryland avenue, known as contract No. 152, which was subsequently extended, July 23,1872, and July 29,1872, to include additional work; the material parts of which are as follows:

This contract, made and concluded this twenty-ninth day of September, in the year one thousand eight hundred and seventy-one, by and between Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, A. B. Mullett, and S. P. Brown, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and Albert Campbell and Chas. 'H. Eslin, 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 lay sidewalk on *Tenth*street east, between East Capitol street and Maryland avenue, in'the city of Washington, D. C. Said sidewalk to be executed in all respects in conformity to the specifications following, to wit:

(1.) The bricks for brick pavements will be hard-burnt weather bricks, straight on the top surface, and with perfect corners and angles. No bats or broken bricks will be used, excepting to finish out a course, or to finish around any post or other fixtures on the sidewalk. * * *

*195*Excavation.*

(5.) The space over which the pavement is to he laid will he excavated to a depth of (10) ten inches below the top of the curb, with the slope which is to he given to the pavement. On this bed will he spread a layer of gravel to he 4 inches deep. When well compacted by ramming, the surface must he parallel .with the surface of the bricks when laid. On this layer of gravel a layer of sand will he spread and compacted by ramming; the sand to he moistened if *necessary;*the top surface of the sand to he dressed to the proper height and slope to receive the brick pavement. The gravel and sand will he rammed to such extent as may be required by the engineer and to prevent any settling of the pavement. ** * **

Tenth. It is further agreed that the said parties 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: i

Furnishing & laying new brick pavement, eighty cents per square yard. Relaying old brick pavement, twenty-five cents per square yard. Grading, per cubic yard, twenty (20) cents.

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

Eleventh. It is further agreed that the measurements shall be made by the engineer or his assistants. ** * **

(13.) Wherever the words “engineer” or “engineers,” or the pronouns thereof, are used herein, they are intended to designate the chief engineer of said Board and the assistants acting under him. * * *

In witness whereof the parties to tljese 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.]

S. P. Brown, . [l. s.]

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

James *k.*Magruder, [l. s.]

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

A. Campbell,

Citas. H. Eslin,

*Contractors.*

Signed and sealed in presence of—

Wm. E. Nott.

Sims H. Hall.

*Extension of contract.*

It is hereby agreed that this contract, with its various terms, conditions, and stipulations (except as respects the time of execution) shall be extended, so as to embrace the grading of the roadway (at Board rates); that is, for grading, thirty (30) cents per cubic yard, including the first two hundred (200) feet of hauling, and one (1) cent per cubic yard for every additional two hundred (200) feet of hauling, of Tenth street east from D street *196to Maryland avenue, in tlie city of Washington, D. C.; said work to he executed in every respect in conformity with the accompanying specifications.

Witness our hands and seals the twenty-third day of July, A. D. 1872.

H. D. Cooke, [.seal.]

Alex. R. Shepheed, [seal.] James A. Mageudek, [seal.] *Board of Bublio Works of the District of Columbia.*

A. Campbell,

Chas. H. Eslin,

*Contractors.*

Signed and sealed in presence of—

Wm. E. Nott.

John W. Cueley.

*Further extension of contract.*

It is hereby agreed that this contract, with its various terms, conditions, and stipulations (except as respects the time of execution), shall be extended so as to embrace the grading of the sidewalks of Tenth street east, between East Capitol street and Maryland avenue, in the city of Washington, D. C., and of the roadway of said Tenth street east, between Maryland avenue and D street north, at Board rates; that is, for grading, thirty (30) cts., per cubic yard, including the first two hundred *(200) feet*of hauling and (1) cent per cubic yard for every additional two hundred (200) feet of hauling; said work to be executed in every respect in conformity with the accompanying specifications.

Witness onr hands and seals the twenty-ninth day of July, A. D. 1872.

H. D. Cooke, [seal.]

Alex. R. Shepheed, [seal.]

James A. Mageudek, [seal.]

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

*'*A. Campbell,

Chas. H. Eslin,

*Contractors.*

Signed and sealed in presence of—

John W. Cueley.

II. The Board of Public Works adopted the following, as appears by their records:

Sept. 14, 1871. — The following scale of prices for work and material was adopted * * * : * *

New brick pavements, 80 cents per yard. ■ * * *

Blnestone curb, furnishing and setting, 92 cents per lineal foot.

Grading *per*cubic yard, earth to be deposited where directed without extra charge, 20 cents.

September 26, *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 *197to old gravelled streets ordered to be out 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 he notified of this action.

Jan’y 22,1872.

*Ordered,*That the prices of grading he fixed from and after this date at thirty (30) cents'per cubic yard, including the hauling, not to exceed two hundred (200) feet; for each additional two hundred (200) feet one cent additional per cubic yard will he allowed.

B. C. Phillips, Esq.,

*Oh’f Eny’r:*Washington, *July*17, 1872.

Sm: You are hereby informed that inasmuch as frequent applications are being made to the Board for the allowance of the advanced rates for work done previous to such increase, it is their desire and intention to adhere strictly to the old rates applicable to contracts made prior to the increase of prices, and allow the latter only on contracts since awarded.

By order of the Board.

Ciias. S. Johnson,

*Asst. Secretary.*

July 11, 1873, Auditor was notified that the Board had fixed the following prices, viz: Cobble-stone pavement, 70 cents per square yard; brick foot pavement, $1 per square yard; both to include furnishing and laying. Contract clerk notified. '

July 15, 1873, Auditor was notified that the price for hauling earth had 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.

Washington, D. C., *September*23, 1873.

Gentlemen : In making our assessments on certain streets where final measurements are made, but no settlement had with the contractor, I find that the item of “ Haul, somany feet over two hundred feet,” gives.constant rise to questions with the contractor as to the amount allowed therefor. At present it stands at 1J cents per yard for every yard hauled one hundred feet over two hundred feet for all work done since June 1, 1873. Yet the Board, ih a few instances, have granted the lj- cents for work done prior to that date, and all contractors claim the same amount, “in view,” as they say, “of the fact that they have to stand a discount of 20 per cent.” on their paper. I think all this could be satisfactorily arranged by allowing the *li*cents for all open accounts, that is, where final and absolute settlements have not been made. I respectfully suggest this, in order that assessments may be complete, and agree with the final bill as settled with the contractor. ,

Yery respectfully,

s J. C. Lay,

*Auditor Board of Public Worlcs.*

The Boaud oe Public Works.

*198September 27, 1873. — J. C. Lay, auditor, was notified that in settlements of accounts for extra-haul, that one and one-quarter cents per cubic yard for each additional 100 feet beyond the first 200 feet for all work done since January 1,1873, will be allowed.

Board oe Public Works, District oe.Columbia,

*Washington, September*27, 1873.

Sir: I am directed by the Board to notify you that in the settlement of acQOunts for extra haul, that one and one-quarter cents 'per cubic yard for each additional 100 feet beyond the first 200 feet for all work done since January 1, 1873, will be allowed.

Very respectfully,

Edw'ard Johnson,

*Assistant Secretary.*

J. C. Lay, Esq.,

*Auditor, 4'C.*

The claimants addressed a letter to the Board, the material parts of which are as follows, with the action, thereon:

Washington, D. C., *Dec.*1, 1873. To the Hon. Board oe Public Works,

*District of Columbia:*

Gentlemen:

«• tt -Jr * # #

We also request, that as the brick used were bought at the high' price demanded in the spring of 1872, and as the haul of earth was long, that in the settlement of the account w'e may be allowed the maximum prices for brick pavement and hauling earth over two hundred feet.

In making this request we have no desire to have the contract canceled, but ask that it m.ay remain in our names until better ’times better enable us to oomplete it, or until the Board insists on its completion.

Asking early and favorable consideration, we are,

Very respectfully, your ob’t servants,

Campbell & Eslin,

908 *East Capitol st.*

Board of Public Works, D. C., June 13,1874.

Bespectfully referred to B. Oertly, ass’t eng’r, to make up account as not final, and haul -Jo. i>’r 100 feet.

By order of the Board.

Frank T. Howe,

- *Chief Cleric.*

Under this contract work was began in October, 1871, and carried on from time to time in 1871-72, and some labor done and material furnished not provided for in the contract. All such work was inspected and measured by the defendant’s officers, and partial settlements were made with the contractors *199from time to time. The work for which these partial séttle-ments were made was completed prior to January 1,1873.

III. In April, 1875, a material change of the grade was determined upon by the defendant’s officers. To carry into effect this alteration in grade involved the tearing up of pavements, sidewalks, crossings, curbing, and flagging which had been laid by claimants in the previous years. Claimants made application for this work, and B. L. Hoxie, engineer of the District, whose duty it was to transmit such orders for the Commissioners, addressed to them the following letters, and They thereupon gave the bond which follows the letters below. Thereafter the claimants proceeded with the work, tearing up the old materials and regrading, and Anally completed the work late in the year 1875.

ENGINEER'S OFFICE, DISTRICT OB’ COLUMBIA,

*Washington, April ZOlli,*1875.

Mess. Campbell and Eslin, *City:*

Gentlemen: You are hereby notified that orders of suspension of your contracts, Nos. 152 and 157, -with the late Board of Public Works, have been revoked, and you will be allowed to proceed with the same provided you call at this office and execute new bonds.

Very respectfully,

K. L. Hoxie,

*Lieut. Engineers, XT. S. A., Engineer of D. G. ■*

L. B. No. 12.] Engineer’s Office, District of Columbia,

Washington, *November 23d,*1875.

Mess. Campbell & Eslin, *City:*

Gentlemen: Yon are requested to call at this office to execute the necessary papers for an extension of your contract, No. 157, with the late Board of Public Works, to include the gravelling of the carriage-way on 6th street, between East Capitol sfc. and Maryland avenue, provided the work is done at Board rates, and you except 3.65 bonds at par in payment therefor.

Very respectfully,

K. L. Hoxie,

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

Know all men by these presents, that we, Alberto Campbell, Charles H. Eslin, and William'Holmead, of the District of Columbia, are held and firmly bound unto William Dennison, John H. Ketcham, and S. Ledyard Phelps, Commissioners of the District of Columbia, in the sum of thirty-eight hundred dollars ($3,800), lawful money of the United States of America, to be paidto said William Dennison, JohnH. Ketcham, and S. Led-yard Phelps, Commissioners of the District of Columbia, or to their certain attorney, successor or successors, or assigns, for which payment, well and truly made, we, and each of us, do bind ourselves, and each of our heirs, *200executors, and administrators, jointly and Severally, firmly by these presents, sealed -with our seals, and dated this twenty-sixth day of April, 1875. Whereas the above bounden Alberto Campbell and Charles H. Eslin, by an instrument in writing under their hand and seal, bearing date on the 99th day of September, 1871, contracted with Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, A.B. Mullett, and S. P. Brown, then constituting and composing the Board of Public Works of said District, to lay a sijewalk on Tenth street east, between East Capitol street and Maryland avenue, in the city of Washington, as fully described in said contract, which said contract was, by agreement between said Alberto Campbell and Charles H. Eslin, of the one part, and said Board of Public Works of the other part, afterwards, to wit, by instrument bearing date the 23d day of July, A. D. 1872, extended so as to embrace the grading of the roadway of Tenth street east, from D street to Maryland avenue, in said city, and afterwards, by another instrument bearing date the 29th day of July, 1872, was extended so as to embrace the grading of the sidewalks of Tenth street, between East Capitol street and Maryland avenue, and of the roadway of said Tenth street, between Maryland avenue and D street north. And whereas, under said contract and said extensions thereof, the above bounden Alberto Campbell and Charles H. Eslin are about to resume work under said contract, and to carry the same to completion on the conditions and for the considerations in the aforesaid contract as extended and contained or referred to therein, subject to the provisions of existing laws as to such contracts:

Now, therefore, the condition of the above obligation is such that if the said Alberto Canrpbsil and Charles H. Eslin shall well and truly, and in a good and sufficient and workmanlike manner, execute the work mentioned in said contract as extended as aforesaid, and complete the same in accordance with the stipulations thereof, and in each and every respect fully comply with the provisions and agreements therein contained, then this obligation to be void; otherwise to remain in full force and virtue.

C. H. Eslin. . [seal.]

A. Campbell. [seal.]

Richard Rothwell. [seal.] William Holmead.

IV. During tbe progress of tbe work in 1875, after tbe renewal of tbe contract in order to make tbe contractors a partial payment for tbe work then going on, tbe defendant’s officers made out and stated an account, in wbieh tbe claimants were allowed tbe amount of $9,221.82 upon work done after said renewal, and tbe same was so paid to them.

After tbe completion of tbe work a final statement was made by tbe defendant’s officers under tbe Commissioners, to be laid before tbe Board of Audit, but tbe Board was abolished before acting thereon.

In both tbe [lartial and final accounts the rates of compensa*201tion were stated at tbe “Board rates” adopted by the orders and letters set forth in finding II.

Y. The work actually done and the materials furnished by the claimants on Tenth street subsequently to April 26, 1875, were as follows:

3,005.69 square yards new brick pavement laid, at $1.00 per yard. $3,005 69

2,843.16 square yards old brick pavement relaid, at 25 cents per

yard..'. 710 79

721.94 square yards new cobble-stone pavement laid, at 70 cents

per yard. 505 40

1,656.6square yards old cobble-stone pavement relaid, at 37 cents per yard. 612 90

1.810.5 running feet 5-incb new curb and setting, at $1.20 per

foot. 2,172 60

.2,780.5 running feet 5-incb curb reset, at 25 cents per foot. 695 00

2.780.5 running feet 5-incb curb redressed,.at 20 cents per foot.. 556 10 1,424 running feet 12-incb new gutter flag laid, at 35 cents per

foot. 498 40

3,159 running feet 12-incb gutter flag relaid, at 12 cents-per foot. 379 08

1,064.95. running feet 16-incb new gutter flag laid... 511 18

20,637 cubic yards grading, at 30 cents per yard. 6,191 10

14,312.04 cubic yards baul 2,056 feet over 200 feet, at 25.7 cents per yard..... 3,678 28

6.324.6 cubic yards baul 2,791 feet over 200 feet, at 34.64 cents

per yard.... 2,190 84

6,070 square yards gravelling, at 15 cents per yard. 910 50

122.2 lineal feet new corners, at 2.05 per foot. 250 51

*Work done wider special order, as follows:*

146 square yards new brick pavement laid, at $1.00 per yard_ 146 00

438.6 square yards brick pavement relaid, at 25 cents per yard.. 109 65 192 square yards cobble-stone pavement relaid, at 37 cents per

yard. 71 04

465\5 lineal feet 12-incb gutter flag relaid, at 12 cents per foot.. 55 86

445.5lineal feét 5-incb curb reset, at 25 cents per foot. Ill 38

108 square feet 16-incb cross flag relaid, at 12 cents per foot. 12 96

23,375 26

$215 25 75 00 9,221 82 465 04 30 36 Credit 123 feet corner, at $1.75. 308 cubic yards of sand, at 25 cents.. by partial payment (see Finding IV) by sand and gravel. Less roadway hauling omitted.

- 10,007 47

Balance due and payable January 1, 1876.$13,367 79

*202YI. RELATING- TO COUNTER-CLAIM FOR OVERPAYMENT FOR WORK ON TENTH STREET.

1. In the account and settlement referred to in finding IY, there was allowed by the Board of Audit and paid to the claimants, in addition to the sum of $9,221.82 therein specified, also for additional Board rates for work done on said street before the orders setforth in finding II raising the rates as therein specified were made, the sum of .. $3, 077 61

2. In accounts made by the Board of Audit for work done on said street before the establishment of “Board rates,” as stated in finding II, the claimants were allowed and paidin excess of the work done and prices specified in the contract, as follows:

4,206 square yards of grading, at 20 cents. 841 00

3,781 square yards of grading, at 30 cents... 1,134 30

-excess of haul on same. 189 05

3,159 feet curb and setting, at 28 cents per foot above contract price.. 884 52

$6,126 48

WORK ON EIGHTH STREET; CONTRACT NO. 157.

YII. On the 29th of September, 1871, the claimant entered into a contract with the Board of Public Works for the improvement of Eighth street, beteen B street south and Maryland avenue, known as contract No. 157, as follows:

This contract, made and concluded this twenty-ninth day of September, in the year one thousand eight hundred and seventy-one, by and between Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, A. B.Mullett, and S. P. Brown, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and Alberto Campbell and Charles H. Eslin, 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 lay a brick foot-pavement and curbing on the west side of Eighth street east from B street south *203to Maryland avenue in the city of Washington, D. C. Carriage-way to he • reduced to forty feet. Said work to he executed in every respect in conformity with the following specifications, to wit: * * ***

*Specifications for setting curbstones.*

The curbstones will he of such quality as may he ordered by the Board.

The trench will be dug to such depth as may be required for the curb, ‘ and sufficiently wide to allow the earth to be rammed under and adjacent to the stone. The curbs will be laid on the level and grade given by the engineer, the joints to be close, and the outer and inner surfaces to be set even and in a continuous plane surface. * * *

*Bricks.*

(I.) The bricks for brick pavements will be hard-burnt weather bricks, straight on the top surface, and with perfect corners and angles. No bats or broken bricks will be used, excepting to finish out a course, or to finish around any post or other fixtures on the sidewalk. * * *

(13.) Wherever the words “engineer” or “engineers,” or the pronoun thereof, are used herein, they are intended to designate the chief engineer of said Board and the assistants acting under him. * * *

Tenth. It is further agreed that the said parties of the second part shall receive the following prices as full compensation for furnishing all the materials and labor which may he 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:

New brick pavement, eighty cents per square yard.

Belaying old brick pavement, twenty-five cents per sq. yard.

Setting 6-in. curb, new, thirty cents per lineal foot.

Resetting old curb 4-in., fifteen cents per lineal foot.

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

Eleventh. It is further agreed that the measurements shall be made by the engineer or his ass’t. '* ****

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.]

S. P. Brown, [l. s.]

A. B. Mdllett, [i. s.]

James A. Magrtjder, [l. s.]

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

A. Campbell,

Chas. H. Eslin,

*Contractors.*

The orders and letters of the Board of Public Works increasing rates, set forth in finding II, are hereby referred to so far as they may be applicable to work on Eighth street. .

*204YIH. Under this contract work was carried on front time to time in 1871-72, and some labor done and materials furnished not provided for in the contract. All such work was inspected and measured by the. defendant’s officers, and a settlement made by the Board of Audit March 19, 1875, and the amount found due was paid March 25,1875.

IX. In April, 1875, a material change of grade was determined upon by the defendant’s officers. To carry into effect this alteration in grade involved the tearing up of pavements, sidewalks, crossings, curbing, and flagging, which had been laid by claimants in previous years. Claimants made application for this work, and B. L. Hoxie, engineer of the District, whose duty it was to transmit such orders for the Commissioners, addressed to them the letters set forth in finding III; and therafter they gave the following bond:

Know all men "by these presents, that we, Alberto Campbell, Charles H. Eslin, and William Holmead, of the District of Columbia, are held and firmly bound unto William Dennison, Jolm H. Ketoham, and S. Ledyard Phelps, Commissioners of the District of Columbia, in the sum of thirty-eight hundred dollars ($3,800) lawful money of the United States of America, to be paid to said William Dennison, John H. Ketoham, and S. Led-yard Phelps, Commissioners of the District of Columbia, or to their certain attorneys, successor or successors, or assigns, for which payment, well and truly made, we, and each of us, do bind ourselves and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this twenty-sixth day of April, 1875.

Wljereas the above bounden Alberto Campbell and Charles H. Eslin, by an instrument in writing, under their hand and seal, bearing date on the 29th day of September, 1871, contracted with Henry D. Cooke, Alexander K. Shepherd, James A. Magruder, A. B. Mullett, and S. P. Brown,'then constituting and composing the Board of Public Works of said District, to lay a brick foot-pavement and curbing on the west side of Eighth street east, from B street south to Maryland avenue, in the city of Washington, as fully described in said contract;

And whereas the above bounden Alberto Campbell and Charles H. Es-lin are about to resume work under said contract, and' to carry the same to completion on the conditions and for the considerations in the aforesaid contract contained or referred to therein, subject to the iirovisions of existing laws as to such contracts:

Now, therefore, the condition of the above^obligation is such that if the said Alberto Campbell and Charles H. Eslin shall well and truly, and in a good and sufficient and workmanlike manner, execute the work mentioned in said contract, and complete the same in accordance with the stipulations thereof, and in each and every respect fully comply with the provisions and *205agreements therein contained, then this obligation to be void; otherwise to remain in full force and virtue.

G. H. EsliN. ■ [seal.!

A. Campbell. [seal.]

Bichard Eothwell. [seal.] William Holmicad.

X. The work actually done and the materials furnished by the claimants on Eighth street/subsequently to April 26,1875, -

were as follows:

3,817.13 square yards new brick pavement laid, at 100 cents per

yard, “Board rates”. $3,817 13

' 819 square yards old brick pavement relaid, at 25 cents per yard. 204 75

611.23 square yards new cobble-stone pavement, &c., laid, at 70 cents per yard. 427 86

1.557.2 square yards old cobble-stone pavement relaid, at 37 cents

per yard. 575 16

552.1 square feet of flagging for crossings laid, at 60 cents per foot..... 331 32

2.360.6 square feet of flagging for crossings relaid, at 12 cents per

foot ......... 286 78

1,296 running feet 5-inch new curb and setting, at 120 cents per

fool,.1. 1,522 80

2,520 running feet 5-inch old curb and setting, at 25 cents per

foot. 630 00

‘ 2,520 running feet 5-inch old curb redressed, at 20 cents per

foot. 504 00

126.9 running feet — inch granite circular curb and setting, at 205 cqnts per foot. 260 14

1.214.3 running feet 12-inch new gutter flag laid, at 35 cents per

foot...„. 425 00

2,511.2 running feet 12-inch gutter flag relaid, at 12 cents per

foot. 301 44

67 running feet 16-inch new gutter flag laid, at 12 cents per foot. 8 04

8,908 cubic yards grading, at 30 cents per yard. 2,672 40

8,908 cubic yards haul 2,480 feet over 200 feet, at 31 cents per yard. 2,761 48

6.330.7 square yards graveling, at 15 cents per yard. 949 61

$15,677 91

Credits — Partial payment...$7,934 00

^ Omission of rolling 6,330.7 yards, at *i*cent per

yard.. 31 65

Sand and gravel.,. 560 36

1,114.15 feet 12-inch gutter stone, at 23 cents. 256 25

-$8,782 26

Balance due and payable January 1, 1876

6,895 65

*206*RELATING-*TO COUNTER-CLAIM POR OVERPAYMENT POR WORK ON EIGHTH STREET.

XI. In the account and settlement made by the Board of Audit for work done before the orders of the Board of Public Works establishing “ Board rates” as set forth in finding II, the claimants were allowed and paid as follows:

Par furnishing and setting curbstones at $1.20 per foot, “Board rates,” which bad been previously paid by Board of Public Works at 92 cents per foot, according to Board rates when this work was done, making a difference of. $450 24

WORK ON SIXTH AND SEVENTH STREETS.

XII. The claimants did the following work by order of the Commissioners of the District:

1,876.8 square yards of graveling on Seventh street, at 15 cents per

yard. $281 52

3,229 square yards of graveling, at 15 cents per yard. 484 35

Due and payable January 1, 1876. $765 87

XIII.At the time the contracts were revived,” April 26,1875, it was the understanding of both parties that future payments were to be calculated at “ Board rates.”

The prices at which the work and materials were done and furnished after April 26, 1875, as calculated in findings *V*and X, are fair and reasonable.

*Mr. George L. Douglass*for the claimants:

Aside from the multitude of issues of fact, two questions of law arise in this case.

1. An effort is made to recover back certain payments made by the Board of Audit to the claimants, in excess of the prices named in the original contracts for work done in 1871-’72. After these contracts w'ere made, the Board of Public Works established a schedule of rates, “ as it had a perfect right to do”

*(Taylor's Case,*17 O. Gis. R., 367), and the Board of Audit merely settled with these claimants upon the same basis as it settled with scores of others. There is not the slightest pretext that there was any “mistake of fact” in the present instance, which alone would furnish basis for a counter-claim.

“It is manifest that if such an advance of payment was in *207fact allowed by the Board of Public Works it might be sustained as a subsequent parol contract, or if not sustainable, that it would at least characterize the payment as one made’in mistake of law.” *(Neitzetfs Case,*17 C. Cls. R., 111.)

But such a subsequent parol contract *is*sustainable at law *(Grandinv. United States,*10 C. Cls. R., 163; G-reenl. Ev., 303; Chitty on Oont., 105); and even if it were otherwise, a settlement with full knowledge oí all the facts is as binding upon the defendant as upon the contractor. (91TJ. S. R., 321; 12 C. Cls'. R., 534.)

2. A like effort is made to show that claimants should not even receive the Board rates for the work and materials *now sued*for. Yet all the oral and documentary evidence shows, that it was clearly intended, and it was the mutual understanding between the parties, that the claimants should receive these rates. They had been, long prior to 1875, established by general orders of the Board of Public Works, and, in legal effect,, had been engrafted upon all existing contracts; and it was with such rates annexed as an undoubted incident to the preexisting contracts in this case that the work now sued for was. undertaken. That such was the understanding of the Commissioners is conclusively shown by their sworn reply to certain interrogatories, transmitted to Congress in 1876 and printed in House Mis. Doc. No. 103, part 2, Forty-fourth Congress, first session, pp. 159, 160; and the same understanding and intention is also conclusively shown by the construction given to this portion of the contract, both during the progress of the work and subsequent thereto, in the partial settlements made with the. claimants. Such a construction will be followed by this court. (2 C. Cls. R., 353.) As to the effect of contemporary construction in a case very similar in principle to this, see also *Garrison*v. *United States*(7 C. Cls. R., 78; 7 Wall., 688). And it is Well settled that the court may at times look to the subsequent acts of the parties in order to .ascertain their intention. (Chitty Contr., 89.) These acts, in the present pase, all show that the “ Board rates” were regarded as, in effect, a subsequent parol contract engrafted upon and permanently annexed to the original contracts.

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

1.' The claim is based oh alleged errors in the engineer’s statement of the final accounts between the parties.

The eighth and eleventh articles of the contract make the engineer’s statement of quantities conclusive, but this court decided in *Neitzey’s Case*(17 C. Cls. It., Ill), on the same form of contract, that the *District Claims Act*of June 16, 1880, has so modified the relation of the parties as virtually to annul that stipulation. The argument must piroeeed on that basis, therefore, as respects the trial here.

The question of quantity was referred to the engineer Commissioner by claimants’ request, and his report sustains the measurements in controversy. To escape this result a claim of extra grading was brought forward which we contend is not proven, and a further claim to recover for excavation for foundation of sidewalks and carriage-way as grading, but the specifications show clearly that. this excavation was no part of the-grading, but was included in the contract price of the pavement and gravel roadway.

The certificate of the engineer must be taken at all events as *grima, faeie*correct and not to be set aside by mere estimates in opposition. There should be substantive proof that the quantities were greater, as by showing that the claimants actually purchased and put on the street more material than is credited to them.

2. As to the counter-claim the record shows conclusively that the claimants have been paid for a very large quantity, of grading which they never did. It shows also that considerable sums have been paid, and credited in the final account, for work done in excess of the rates specified therefor in the written agreements.

3. As to the credits, which arenotof coursepart of the counterclaim, it may be said the defendant has to impeach the engineer’s statement. Under Neitzey’s Case that is open to the defendant as well as claimants, and in any event want of power to give such allowances can be set up.

4. As to the overpayments reclaimed which were made by the Board of Audit, the claimants’ contention is that the Commissioners entered into a new parol agreement with them by *209which they were to receive the increased rates established by the Board of Public Works after their written agreements with said Board were executed.

The evidence of that is neither competent nor sufficient, but if it were the Commissioners had no power to so agree. Their authority is limited by the second section of the *Act of June*20, 1874 (18 Stat. L., 116), and they could do no mo re in the way of giving compensation to a contractor in excess of the written agreement as to price than could the Board which they succeeded, and that Board could not certainly do more in that direction than could the legislative assembly of the District, ivhich was expressly prohibited from so doing by the organic law. (Bev. Stat. D. C., secs. 51, 52, 80, 81.)

They might no doubt have made a new agreement with the contractors for new work, but then they would have been required by the act to pay therefor in cash out of the current revenue of the District, and the course they took shows conclusively that they intended to act under the existing agreements and were therefore bound by their limitations. This would render immaterial any consideration of the reasonableness of the increased rates, as to which there is really no evidence in the record, unless the fact that payments were made in these accounts is to be so taken.

OPINION.

Scofield, J.,

delivered the opinion of the court:

September 29, 1871, the claimants entered into a contract, No. 152, with the Board of Public Works for the improvement of Tenth street east. July 29, 1872, the contract was so extended as to include much additional work.

September 29, 1871, another contract, known as No. 157, was made by claiipants with the Board of Public Works for the improvement of Eighth street east.

Under these two contracts work was begun in 1871 and continued until about the beginning of 1873. About that time, in consequence of financial embarrassment, both of the claimants and the defendant, work was suspended.

Upon this work partial settlements and payments were made, but the accounts remained open and unadjusted until the final *210settlement in March, 1875, before the Board of Audit, as hereinafter more fully stated.

Ey Act of Congress approved June 20, 1874, the Board of Public Works was abolished and the affairs of the District placed under the control of Commissioners. A Board of Audit was created, and clothed with authority “to examine and audit for settlement” all outstanding claims against the District. *(Adams’s Case,*17 C. Cls. R.., 351.) A statement of all the work done was made out and finally audited by this Board, March 19, 1875.

The amount so found due the claimants was paid March 25, 1875.

After this settlement the Commissioners concluded to resume work upon these streets. But in the meanwhile a material change in the grade of the streets had been determined upon. In consequence of this change the work already done had to be torn up and done over and much new work undertaken. Under these changed conditions the contracts of the claimants were revived.

After the work under the old contracts, to wit, in 1871 — ’72, was done, but before the settlement by the Board of Audit as above stated, a new and increased scale of prices had been established by the Board of Public Works, which had become known as “Board rates.”

The claimants allege that for work done and materials furnished under the contract so revived they were to be paid at these “Board rates,” as presented in finding II.

The claimants immediately entered upon their work under the revived contracts, and completed it before the close of the year. Some considerable extra work was done on Eighth and Tenth streets, and a small amount on Sixth and Seventh streets, by order of the Commissioners, but not included in their contracts. Some partial payments were made as the work progressed, but before a final settlement was had the Board of Audit was abolished. As nobody was then authorized to audit the accounts, they have ever since' remained unsettled. The claimants state that the balance due them under the revived contracts, and for which they bring suit, amounts to $22,973.23. The defendant, not feeling bound by the action of the Board of Audit, taking up the case from the beginning in 1S71, following it through the administrations both *of*the Board of *211Public Works and the Commissioners, correcting alleged mistakes and taking credit for overpayments, arrive at the conclusion that the claimants, so far from having an unsettled balance in their favor, are actually indebted to the defendant in the sum of $4,874.59.

In the consideration of these accounts some questions have been raised the settlement of Which materially affects the result.

First, whether the prices for work and materials shall be governed by Board rates as they existed in April, 1875, or by rates provided in the original contracts in 1871-’72.

The revived contracts were substantially new contracts en-grafted on the old. Owing to financial embarrassment, both of the claimants and the defendant, work had been suspended long before the new government came into operation, but the Commissioners issued an order for continued suspension. In the new arrangement, owing to the change of grade, the kind of work was considerably changed and the amount enlarged. The pay, in part, was changed from cash to District bonds, and new sureties were required and given.

It appears from findings II, III, and XIII that both parties understood at the time the contracts were renewed that Board rates were to be allowed.

It is said .that the recital in the new bonds, to 'wit, that the new undertaking was “ on the conditions and for the considerations ” of the old contracts., “ subject to the provisions of existing laws as to such *contracts,V*cannot be changed by parol understandings. It is true that parol evidence cannot be given to contradict written contracts, and that the legal construction of the recital in the bonds is apparently in conflict with the alleged parol understanding of the parties; but it should be noted that the bonds are not themselves the contracts. They are not signed by the defendant, and are signed by other parties besides the claiman ts. They are, however, acknowledgments by the claimants of what the contracts contained. But even if the recital in the bonds had been signed by both parties, so as to make complete contracts, it may well be doubted whether there is not sufficient ambiguity in the phraseology employed to admit of explanatory parol evidence.

The claimants now insist that the recital in the bonds adopting the old considerations, “ subject to the provisions of exist*212ing laws as to sucli contracts,” was intended to mean subject to the orders of the Board of Public Works as well as laws proper. That appears by finding XIII to have been the understanding of both parties at the time, and compensation was afterwards so reckoned by defendant’s officers in making out the accounts.

It does not appear that all of this new arrangement was reduced to writing, as required by law, but the work was done and materials furnished at prices fair and reasonable, as shown in finding XIII. And it is well settled that in such cases a fair and reasonable compensation may be recovered. *(Clark*v. *United States,*95 U. S. R., 539.) Therefore, in determining the amount of compensation for work done and materials furnished since April 26, 1875, the court has not been controlled by the rates named in the original contracts.

In arriving at this conclusion we have not found it necessary to pass upon the power, either of the Board of Public Works or of the Commissioners, to raise the compensation of contractors, by general orders or otherwise, above the rates provided in their several contracts. i As to that subject we here give, no opinion. This case is ruled by its own facts. “ Board rates” are referred to, not now by virtue of such orders, to enforce them against the defendant, but because, by understanding of the parties, they entered into the new agreement.

Second, whether the amount oí work and materials is to be determined solely by the measurement of defendant’s engineers.

By provision of the act of Congress under which this court takes jurisdiction of the case, such measurements are required to be received as *prima facie*evidence, but we hold in this case as we did in the *Neitzey Case*(17 C. Cls. R., 111), that they are not conclusive. Other evidence can be considered.

Following these rules, we find the amount due claimants for work done and materials furnished after. April 26, 1875, over and above all payments :

> On Tenth street, as appears in finding V. $13,367 79

> On Eighth street, as appears in finding X. 6,895 65

> On Seventh street, as appears in finding XII. 281 52

> And on Sixth street, as appears in finding XII. 484 35

> Amounting in all to.$21,029 31

*213The defendant’s counter-claims grow out of the settlement by the Board of Audit. That settlement took place in March, 1875, but the work settled for was done in 1871-’72. Between these two dates the Board of Public Works raised the scale of prices. Prior to this increase the old Board rates and the contract rates were alike. It appears by finding II that this increase in price was not intended to apply to claimants’ work already done. But the Board of Audit gave to this new scale of prices a retroactive effect, and settled claimants’ old accounts at the new rates. In this we think the Board made a mistake and exceeded their authority. They were not authorized to alter the contracts of the parties, but to *11*examine and audit for settlement ” accounts in accordance with them. Presuming, from the decision of the Supreme Court in *District of Columbia v. Cluss*(103 U. S. R., 705), as well as from our decisions in the *Neitzey Case*(17 C. Cls. R., 111), *Adams’s Case*(17 C. Cls. R., 351), and *Brown’s Case*(17 C. Cls. R., 420), that we are authorized to correct the mistakes of the Board of Audit, we have allowed, by way of counter-claim, the payments made in mistake by the defendant through the Board of Audit in excess of contract rates:

> On Tenth street, as appears in finding VI.$6,126 48

> And on Eighth street, as appears in finding XI.. 450 24

> Amounting in all to.. 6,576 72

*■‡*Deducting this sum from the whole amount of the claim allowed leaves due to the claimants the sum of $14,452.59.

♦ The judgment of the court is that the claimants recover from the defendant $14,452.59, due and payable to them Jan-tikry 1, 1876.