#### PATRICK CULLINANE v. THE DISTRICT OF COLUMBIA.

No. 12

May 14, 1883.

The claimant did -work for the District of Columbia under several contracts with the Board of Public Works, and there was due him therefor an unsettled balance, the amount of which was in controversy on account of a claim against him for damages by reason - of the alleged bad condition of some of the work.

The parties entered into a written agreement reciting the differences between them and agreeing that there should be deducted J>15,000 from the claimant’s account, and that he should be paid the balance in bonds of the District.

was thereupon paid $113,950 in said bonds.

*578He brings this suit in equity to reform said agreement, averring that it should have contained, according to the understanding of both parties, a provision that “said bonds should be at par or equivalent in cash, and if not the Board would pay in cash the difference between the actual value and the face value.”

He alleges a loss of $68,000 by the depreciation of the bonds which he claims to be due him from the District under the agreement so reformed.

Held:

I.The court, under its equity jurisdiction conferred by the *District Claims Act*(Suppl. Rev. Stat., 563,, and 21 Stat. L., 284), will reform a contract of the Board of Public Works so as to make it conform to the precise intent of the parties, when a mistake is clearly proved.

II.But if the evidence leaves the matter in doubt so that the mistake is not made entirely plain, equity will withhold relief, on the ground that the written paper must bo treated as a full and correct expression of the intent of the parties until the contrary is established beyond reasonable controversy.

III.The contract not being reformed, the claimant cannot recover on account of the depreciation of the bonds which he accepted in payment of his demand.

The following are tbe fact, found by tbe court:

I. On tbe 18th of September, 1871, tbe following contract was entered into between tbe claimant and tbe Board of Public Works of tbe District of Columbia:

This contract, made and concluded this eighteenth 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 Patrick Cullinane, 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 and put down a brick foot-pavement along Four-and-a-half street, west, from Maine avenue to the Arsenal in the City of Washington, D. C., and set the curbstones along said Four-and-a-half street, west, and between said points, the said paving to be executed in all respects in conformity with the specifications following, to wit: * * *

(Specifications for setting curb-stones and brick foot-pavements left out.)

Second. It is further agreed that the said party of the first part shall appoint, from time to time, such persons or person as may be by said party deemed proper, to inspect the material to be furnished and the work to be *579done under this contract, and that such person or persons shall have any and all opportunity and privileges which may be necessary to enable them to faithfully make the inspection aforesaid. '

Third. It is further agreed that th,e work under this contract shall be commenced on or before the twenty-third day of September, one thousand eight hundred and seventy-one.

EourthvIt 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 srrspended it shall be pompleted within ninety days 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.

Fifth. It is further agreed that if, at any time, the party of the first part shall be of the opinion that the said work, or any part thereof, is unnecessarily delayed, or that the said contractor is wilfully violating any of the conditions or covenants of this contract, or is executing the same in bad faith, all the work may be discontinued under this contract, or any part thereof; and the said party of the first part shall thereupon have the power to place such and so many persons as may be deemed advisable, by contract or otherwise, to work at and complete the work herein described, or any part thereof, and to use such materials as may be found upon the line of said work, or‘to procure other materials for the completion of the same, and to charge the expense of said labor and materials to the party of the second part, and the expense so charged shall be deducted and paid by the party of the first part, out of such moneys as may be then due, or may at any time thereafter grow due to the said party of the second part under and by virtue of this agreement, or any part thereof; and in case such expense is less than the sum which would have been payable under this contract if the same had been completed, the party of the second part shall be entitled to receive the difference; and incase such expense shall exceed the last said sum, the amount of such excess shall be paid to the party of the first part by .the party of the second part.

Sixth. It is further agreed that all loss or damage rising 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 to individuals, property, or otherwise, on the line of the work, or adjacent thereto, shall be sustained by the said contractor.

Seventh. It is further agreed that the said party of the second part shall punctually pay the workmen who shali be employed by him on work under this contract in cash current, and not in what is denominated store pay or orders; and that he will from time to time, and as often as may be required by said party of the first part, furnish to said party satisfactory evidence that all persons who have done work or furnished materials have been paid as herein required. And if such evidence is not furnished, such sum or sums as may bo necessary fos such payment or claims shall be retained by said party of the first part until the said claims shall be fully satisfied.

Eighth. And it is further agreed that partial payments shall be made by the duly authorized financial agent of the said party of the first part on *580the monthly estimates of the chief engineer of the Board of Public Works aforesaid, and that whenever the chief engineer aforesaid shall certify, in writing, that the party of the second part completely performed this contract on his part, and shall submit, with said certificate, his estimate of the amount due the party of the second part, then within thirty (30) days, as hereinafter provided, the said party of the second part shall be entitled to receive the full amount due under this contract, deducting therefrom all previous partial payments which may have been made, as hereinafter mentioned.

And it is further expressly agreed that no money shall become due and payable under this contract, except upon the certificate of said engineer, as hereinbefore provided; and the said party of the second part further agree that he shall not be entitled to demand or receive payment for anypiortion of the aforesaid work except in the manner set forth in this agreement; and when each and all of the stipulations hereinbefore mentioned are complied with, and the engineer shall have given his certificate to that effect, a final settlement shall be made in writing between the parties, and the whole amount found due the party of the second part under this contract shall be paid to him, excepting such sum or sums as may be retained under any provision of this contract: Provided, that payments on account may be made by direction of the Board otherwise than upon the estimates of the engineer as provided above, if in their opinion the prompt execution of 1his work will be promoted thereby.

Ninth. It is further agreed that if at any time during the period of one year, from the completion of the work to be done under this contract, any part or parts thereof shall become defective, from imperfect or improper material, or construction, and in the opinion of the said party of the first part require repair, the said party of the second part will, on being notified thereof, immediately commence and complete the same to the satisfaction of the party of the first part; and in case of failure or neglect.of the said parties of the second part so to do, the same shall be done under the directions and orders of the party of the' first part at the cost and expense of the party of the second part.

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 maybe 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, footway, per cubic yard, twenty cents.

Paving with new brick per square yard, eighty cents.

Relaying old brick pavement per square yard, twenty-five cents.

Setting new curb-stones (6"), per lineal foot, thirty cents.

Resetting old curb-stones (4"), per lineal foot, fifteen cents.

Provided that bricks-shall be furnished by the Board at a price not exceeding eleven dollars and fifty cents per thousand, curb-stones to he delivered on the line of work by'the Board free of cost to the contractor, 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.

*581Eleventh. It is further agreed that the measurements shall he made hy the engineer of the Board, or his assistants.

Twelfth. And the ^aid party constituting and composing the Board of Public W orks 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. - *t*

Thirteenth. It is further agreed that this contract shall be subject to any and all provisions of an act entitled “An act to provide a government for the District of Columbia,” approved February 21, 1871, so far as the same shall or may be in any respect applicable to said contract, and also to any law of the District of Columbia pertinent thereto, or to any part thereof, as fully as if the same were particularly set forth herein.

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

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

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

James A. Magruder, [l. s.]

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

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

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

. Patrick Cullinane,

*Contractor.*

II. On the 1st of July, 1872, an extension of the said contract was agreed upon and reduced to writing by the claimant and said Board, in the terms and form following:

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 and macadamizing, at the Board rates, of Four-and-a-half street, west, from Missouri ave. to Arsenal gate, in the city of Washington, D. C., said work to be executed in every respect in conformity with the accompanying specifications.

Witness our hand and seal the first day of July, A. D. 1872.

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

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

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

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

Patrick Cullinane,

*Contractor.*

*582*Board of Public Works, District of Columbia. Specifications for constructing roadxoay of McAdam metal.*

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

Second. The surface will be well compacted by rolling and ramming; any mud or soft or compressible material in the road bed will be removed and the space filled with clean earth or gravel.

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

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

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

Sixth. The stone for this course will be screened and entirely free from dust and the finer particles of stone; this top course willbe well compacted by rolling; on this course willbe spread the top dressing obtained from the screening of the top course in sufficient quantity to be (-|) half an inch thick after filling the surface void spaces of the top course.

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

Bond in the sum of $20,000, with Thomas Kirby, Morris Murphey, and Geo. W. Gooddall, sureties, dated July 1, 1872.

III. Between the 18th of September, 1871, and the 14th of July, 1872, three other written contracts were entered into between the claimant and said Board for improvement of streets in Washington, which contracts were drawn, except as to dates, description of work, and prices, in the same form' as that set forth in finding I.

IV. For work done by the claimant under the contract set forth in finding I, and the extension thereof set forth in finding II, and the other three contracts mentioned in finding III, the defendant became indebted to claimant in the gross sum of $191,065.44) from which the defendant was entitled to deduct, 1 for material furnished him, and for certificates issued by it to material men, $24,002.62 ; leaving a gross balance of $167,062.82 due him. On account of this the defendant paid him $38,112.82 in money; after deducting which there was a balance due him of $128,950; for which he held divers and sundry certificates *583issued to him by the auditor of said Board, commonly called auditor’s certificates, given by authority of said Board, as evidence of its indebtedness, in the form following:

No. — . Office of Auditor of Board of Public Works,

*Washington, D.*C.,-, 18 — .

I hereby certify that I have this day audited and allowed the acoount of -for work on-, amounting to *$*— '■-.

*Auditor.*

Y. The claimant held for some time the auditor’s certificates amounting to the said sum of $128,950, and finding that he. could not raise any money on them, he exchanged them, April 8,1873, for an equal amount of other certificates, known as improvement certificates, of which the following is a sample:

No. 2207. Board of Public Works, $200.

*Washington, D. C., April*8, 1873.

This is to certify, that for work done under the direction of the Board of Public Works of the District of Columbia, agreeably to acts of the Congress of the United States aud of the Legislative Assembly of said District, there is due P. Cullinane the sum of two hundred dollars. This certificate will be received in payment of special assessments, prior to issuing certificates of indebtedness against individual property, for improvements made in the District of Columbia, under contracts with the Board of Public Works, when the assessments are equal to, or exceed the amount of, the certificate.

By order of the Board of Public Works.

J. C. LaIt, *Auditor.*

S. P. Brown, *Secretary.*

James A. Magruder,

*Treasurer Board of Bublie Works.*

The said sum of $128,950 embraced th'e auditor’s certificates which had been issued to the claimant for all the work done by him on Four-and-a-half street under the extension of con- • tract set forth in finding II.

TI. Under the said extension of contract the claimant proceeded to do the work on Four-and-a-half street called for in that extension, and received therefor, auditor’s certificates as aforesaid.

On the 26th of November, 1872, B.. A; Bacon and others addressed to the Board-of Public Works a complaint against the character and quality of that- work; which complaint was referred by the Board to B. C. Phillips, chief engineer, with directions to inspect and finally report-upon the work; who, *584on the 6th. of December following, made to the Board the following report:

Board or Public Works, District of Columbia,

Office of Chief of Engineers,

Washington, *D. C., Dec.*6, 1872.

Board of P. Works:

Gentlemen: Referring to your endorsement on letter of R. A. Bacon, esq., Nov. 26, 1872, compl’g of work on 4-J st. from 6th st. to Arsenal gate, I have the honor to report that having notified Dr. Wallace, both the special sup’rs, and Mr. Cullinane, contractor, that I should make a thorough examination of 4-J street from 6th to Arsenal gate yesterday, at 2 p. m., all the parties were present except Dr. Wallace (the death of whose father prevented), I caused some twenty openings to toe made in the McAdamizing and the foot-pavements at points selected toy me. I found the McAdam to toe composed mainly of a rather hard quality of micaceous stone, not so hard as could toe desired, and sand and gravel, a few small bowlders or .cobble-stone occasionally occurring. Some of the top dressing contains too much loam, but generally it is good clean sand or gravel. The whole (except near the Arsenal gate, where the street has not yet been rolled) is firm and compact, and will toe found a good road of its kind. The actual depth of the metal varied from 10 to 14 inches, the average toeing above a foot.

The foot-walks are good brick, and pretty well laid. The sand and gravel beneath them is of good quality, and at the shallowest place found 4 inches in depth (this only in one case); generally the depth was about 8 inches. There are a few places where the pavement is not yet completed (foot-walks),and a few others where, from setting of trenches, &e., it is slightly out of order, tout Mr. C. promised to repair the whole line in the spring.

There are two objections to the street as improved:

1st. It has too little crown; and,

2d. It should haveflagging gutters throughout its whole lengtfi. Neither of these objections are the fault of the contractor.

I respectfully recommend that flagging gutters toe laid, and that as soon as the portion not yet fully completed toe finished, and the repairs promised made, that the work toe accepted.

Respectfully, &c.,

R. C. Phillips,

*Ch’f JEng’r.*

December 9,1872, this report was by the Board “referred to the auditor, approved.”

VII. After said report was made and approved, and after the claimant’s accounts for the work done on Four-and-a-half street were credited by the auditor of the Board and the auditor’s certificates therefor were delivered to the claimant, the roadway of said street was dug up 19 feet wide and 15 inches deep, in the middle of the road, by a street-railroad company, *585for the whole length of the work done by the 'claimant, before the examination of the street made by H. A. Willard, a member of the Board, as shown in the next succeeding finding.

YIII. On the 8th of July, 1873] the vice-president of the Board requested H. A. Willard, a member of the Board, to make a thorough investigation of Four-and-a-half street, macadamized by the claimant, and said Willard made the investigation, and reported the result as *follows:*

Board or Public Works, District, or Columbia,

*Washington, July*15, 1873.

Hon. A. E. Shepherd,

*Vice-President,*efe. ••

Sir: In reply to your communication of the 8th inst., requesting me to make a thorough investigation of 4J st., S. W., macadamized by Patrick Cullinane, and about which so much.complaint has been made, I have the honor to 'report as follows:

I have very carefully and thorohgly examined this work by going over the entire street, by digging holes at various points, and by comparing it with other macadamized roads, viz, New York ave. and the Seventh-st. road. 1 have also called to my aid the experience of Col. T. .B. Samo, the able ass’t eng. in charge of the Washington Aqueduct, whose report is herewith transmitted.

I find that the terms of the contract have not been carried out in the following respects:

First. .The specifications call for twelve (12) inches of stone, broken so as to pass through a ring three inches in diameter by its longest dimensions. On digging eight holes in different parts of the street, I found many of the stones of large size, and extending only to a depth of from seven (7) to nine (9) inches. I also found that the stone was very generally mixed with gravel and earth, while the specifications expressly state that the stone shall bé screened from all dirt and particles less than one-quarter of an inch wide. The top course is covered with loam and sand.

By reference to the report of Col. Samo it will be seen that he finds the following violations of the contract:

1st. The depth of stone averages from 7 to 10 inches instead of 12 inches.

2d. The stones are not broken.sufficiently small.

3d. They have not, apparently, been screened.

4th. The top dressing is not composed of the material specified.

These violations are in complete accordance with my own views as expressed above. " - 1

.From information derived from intelligent residents along the line of the street, and from other reliable sources, I find that the rolling was insufficiently done, and that the two courses of stone were very generally put down at the same time. This may account, in some degree, for the very uneven surface of the road. Some allowance should be made to the contractor on account of the digging up of the centre of the street for the purpose of laying the street railroad, which I find has been done since the work on the *586street was commenced, and consequently that portion is in a worse condition than the other part.

To pnt this street in such a condition as to conform to the terms of the contract, so far as it is possible to do in its present state, it would be necessary to remove all the earth, dirt, and loose stone by careful sweeqjing, and then to cover the street with fine broken stone two inches in depth, to be well rolled with a steam roller, then to cover this with good gravel, which must again be rolled.

I have obtained estimates from two parties for making the repairs above suggested, without, however, permitting the parties to be aware of the exact street for which they were estimating. The number of square yards upon' the street covering Cirllinane’s contract is 46,933.

Wm. Holmead’s estimate is 55 cents per sq. yd. (including graveling), which will amount to $25,813.15. J. T. Hall’s estimate (including graveling) is 52£ cents per sq. yd., which will amount to $24,639.82, which is $1,173.32 less than the former bid. In answer to your interrogatory as to which is the most advantageous offer submitted for covering the street with two coats of asphaltum, warranting the same for three years as in other cases where asphalt pavements have been laid by the Board, I have to say that the following propositions have been received: L. S. Filbert, $2.30 pr. sq. yd., which will amount to $107,945.90; C. E. Evans, $2.18 pr. sq. yd., =102,313.94; Geo. Follansbee, $2, = $93,866.

In view of the expense that will necessarily be incurred in putting down the asphalt pavement, and the present financial condition of the Board, it will be for them to decide whether it would be advisable at this time to adopt this mode of repairing the street. •

* Since the above was written, the following propositions have been received from Mr. Wm. B. Parisen:

To remove the surface accumulation, turn up the stone and cement the same, put on 2 inches of wedging and 3 inches of asphalt mastic, at $2 pr. sq. yd., warrant it for 5 years, the work to be completed in 75 days.

If the Board decide to use the asphalt pavero. ent,thisis by far the most advantageous bid.

Very respectfully,

H. A. Willard.

IX. On the minutes of the Board of July 23, 1873, appears the following entry:

P. Cullinane was furnished with a copy of report in case of 44 street, by which it appears that to complete his contract in accordance with its specifications it will cost $24,639.82; that he will be required to put this street in full accordance with specifications within ten days, or it will be done at his expense under directions of the Board. No payments will be made on his certificates or of any amount which may be retained by the Board until this is done; that his bondsmen, Morris Murphy, Thomas Kirby, and George W. Goodall, have been furnished with copy of this letter and report, and were notified that they will be held responsible with him in the above amount. Auditor notified.

*587On tbe same date tbe following letter was addressed by tbe vice-president of tbe Board to tbe' claimant, accompanied witb a copy of tbe aforesaid report of H. A. Willard:

BoaRb or Public Works, District or Columbia,

*Washington, July*23, 1873.

P. Cullinane, Esq.:

Sir : I enclose a copy of tie report made in the case of your contract for the improvement of Eour-and-a-half street, by which it appears that to complete your contract in accordance with its specifications it will cost $24,639.82.

You will be required to put the street in full accordance with the specifications within ten days, or it will be done at your expense under the direction of the Board. No payments will be made you on certificates, or of any amounts which may be retained by the Board, until this is done. Your bondsmen have”had a copy of this report and letter served upon them, and have been notified that they will be held responsible with you in the above , amount.

Very respectfully,

A. R. Shepherd,

*Vice-President.*

To this letter tbe claimant sent tbe following answer:

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

Hon. A. R. Shepherd, •

*Vice-Presidemt-of the Board of Public Worlcs :*

Dear Sir : I have the honor respectfully to acknowledge the receipt of your communication of the 23d inst., transmitting the report of Hon. H. Á. Willard to you of his.inspection of my work in McAdamizing 4-J street. .

Notwithstanding I am surprised at the conclusion reached by Mr. Willard, yet I do not desire and cannot afford to be placed in a position of apparent antagonism to the District Government, or to the rest, under the imputation of having imperfectly executed my work.

I feel certain of having substantially complied with the terms of my contract for McAdamizing 4J street.

The Board had two inspectors constantly supervising the manner of executing my work, and I am quite sure they made regular reports to you as the work progressed. In addition to their vigilant watchfulness, I beg to call your attention to the report of your then chief engineer, R. C. Phillips, of date Dec. 6th, 1872, to your Board. In reference to the McAdamizing, he says, the whole (except near the Arsenal gate, where the street has not been'rolled) is firm and compact, and will be found a good road of the kind. The actual depth of the metal varied from 10 to 14 inches, the average being above a foot. Mr. Phillips further says in his report that the objections he finds to the work are not the fault of the contractor.

Since I completed my work, the Met. R. R. Co. have torn up the center of the street, and made it look ragged and incomplete. You will not, I am quite sure, require me to incur the expense of repairing their work.

*588The District Government are now indebted to me over one hundred and thirty thousand dollars for work done. I am largely indebted, and you will readily perceive that it is impossible for me to eugage in a work of any considerable magnitude so long as the present order continues against me. You certainly do not' intend to require me to do a work Mr. Willard estimates to cost nearly twenty-five thousand dollars, and at the same time render it impossible for me to do anything by withholding over one hundred thousand dollars that should have been paid me some months ago. I am perfectly willing to do everything I ought to do, and you know I have heretofore willing complied with every order of the Board. You will not fail, I am certain, to take my case under careful consideration, and not charge upon me what the R. R. Co. are manifestly responsible for. At any rate you will not continue me in my present unpleasant and undeserved position. (

Very respectfully, your ob’t ser’t,

Patrick Cullinane.

X. After the foregoing correspondence took place, the claimant, through bis attorney, made efforts to obtain a settlement of matters with the Board, and after an interview with said Willard, he addressed to him the following letter:

Washington, D. C., *Aug. 11th,*1873.

Hon. H. A. Willard,

*B’d Pub. Worles:*

Sir: In considering my proposition of last night, to compromise my claims with the Board, I beg to state that $110,696 in certificates I hold were dated last Feb’y, and balance last April.

The interest, you will observe, if I go to court and succeed, will amount to about. $4,000 00

Add discount on D. C. bonds: Say 10% off. 12, 000 00

Add 7,000, as proposed yesterday. 7,000- 00

Total. 23,000 00

So that my proposal is virtually discounting the amount allowed me at least $23,000.

Respectfully,

Patrick Cullinane,

By L. G. Hiñe, *Sis Alt’y.*

XI. September 9, 1873, the claimant sent the following letter:

Hon. A. R. Shepherd,

*V.-Pres’t B’d Pul). Works:*

Sir : There is now due me for work done the Board, besides macadamize ing the carriage-way on street, sixty thousand seven hundred and six *589dollars and sixty cents ($60,706.60). Please submit to the Board this fact ■with a view to ordering its payment. The fault found with my work seems to be confined to the carriage-way on 4J st„ and I am quite sure the Board will not withhold my entire pay. The total amount allowed me, besides payments received, is $131,914.52. There is also $1,175.00 due me for delivering 1,175 loads of dirt at the canal, which has not been audited.

Respectfully,

PATRICK CpLLINANE.

Washington, D. C., *Sept. 9th,*1873.

In reference to this letter the following appears on the minutes of the Board, September 10, 1873:

Patrick Cullinane was notified in reply to his proposition óf 9th instant that the Board declined to accede to it; that they will pay in bonds the amount of his certificates, less $24,639.83, the amount required to put the work in good order.

This action of the Board was communicated to the claimant in the following letter:

Board of Public Works, District of Columbia,

*Washington, Sept. 10th,*1873.

Patrick Cullinane, Esq.:

Sir:- In answer to your proposition of the 9th inst., addressed to the vice-president of this Board, I am instructed to say that the Board decline acceding to it.

I am also instructed to state that they will pay in bonds the amount of your certificates, less $24,639.83, the amount required to put your work in order in accordance with the specifications.

Very respectfully,

Chas. S. Johnson,

*Ass’t Se&y.*

.September 10, the following letter was sent by the claimant to said H. A. Willard:

Washington, *Sept. 10th,*1873.

Hon. H. A. Willard :

Sir: For the purpose of settling all matters of dispute between the B’d of Public Works and Patrick Cullinane, he proposes as follows:

1st. To take D. C. bonds to the amount of the estimate (or approved bills) made for him, less seven thousand dollars; or,

2d. To take in money the amount of his work approved by the Board excepting the macadamizing' of carriage-ways on 4£ st., and ÍSave that work to be referred to arbitrators in the usual way, and amount found by them to be paid in cash.

This proposition made only for the purpose of obtaining an early settlement.

Patrick Cullinane,

By L. G-. Hiñe, *Sis Att’y.*

*590XII. After tbe correspondence hereinbefore set forth, there were verbal negotiations between the claimant and his attorney and individual members of the Board, resulting finally in the signing and sealing by the claimant and the Board of the following paper:

Whereas differences have existed between the Board of Public Works of the District of Columbia and Patrick Cullinane, in reference to the contract of said Cullinane for improving Four-and-a-lialf street in the city of Washington, it is agreed to adjust the same by deducting from the total amount due said Cullinane the sum of fifteen thousand dollars, in consequence” of the character of the work, in the judgment of the Board, and the amount equitably chargeable against the Metropolitan Railroad Company, which said amounts is to be hereafter fixed between said Board and said Company ; bonds to be issued to said Cullinane for the balance due him.

Witness our hands and seals this thirteenth day of September, A. D. eighteen hundred and seventy-three.

Patrick

H. D. Cooke. [seal.]

Alex. R. Shepherd, [seal.]

James A. Magruder. [seal.]

Adole Cluss. [seal.]

I-I. A. Willard. [seal.]

It does not appear that there- was, before or at the time of the signing of this paper, any other agreement than this between the claimant and the Board, as to the settlement of the matters of difference between them 5 nor does it appear that there was any stipulation connected with said settlement which after having been agreed upon between the parties was omitted, by mistake or otherwise, from said paper.

XIII. In pursuance of the agreement set forth in the next preceding finding, the Treasurer of the Board issued and delivered to the claimant bonds of the District of Columbia, of the description known as “permanent improvement bonds,” to the amount, on their face, of $113,950, for that amount found to be due him for the work done by him under the contract referred to in the first three of the foregoing findings, after deducting $15,000 for defective work; of which bonds the following is a sample:

PERMANENT IMPROVEMENT BONDS.

United States oe America,

District *of Columbia:*

100 C.] Number 5212. . [C 100.

This certifies that the District of Columbia, the capital of the United States, is indebted unto J. & W. Siligman & Co., or bearer, in the sum of *591one hundred dollars, payable on the first day of July, A. D. eighteen hundred and ninety-one, with seven per cent, interest, payable semi-annually on the first days of January and July in each year, at the First National Bank in the city of New York, on the presentation of the proper coupon hereunto annexed. This bond is issued in pursuance of the act of Congress of the United States entitled “An act to provide a government for the District of Columbia, *”*approved twenty-first of February, 1871, and of an act of the legislative assembly of the District of Columbia, entitled “An act making appropriation for reimburseing the Board of Public Works of the District of Columbia for money expended by them for the erection and repair of pumps, cleaning and repair of streets, and raising and underpinning of houses and market-houses, ” approved June 25th, 1873. In testimony' whereof the governor of said District has executed these presents, duly attested by the seal of the District, and countersigned'by the secretary and comptroller. Dated at the city of Washington, in the District of Columbia,' this first day of July, A. D. eighteen hundred and seventy-three.

[SEAL DISTRICT Of COLUMBIA.] H. D. COOKE,

*Governor.*

Attest:

Edward L. Staitton, *Secretary.*

Geo. E. Baker, *Comptroller.*

XIV. At the time of the delivery of said bonds to the claimant they were, in the money market, below par, and he knew that fact.

XV. After receiving said bonds the claimant hypothecated $45,000 of them with one Blumenburg, as security for money borrowed of him. The remainder of them he sold, but when, or for what prices, does not satisfactorily appear.

*Mr. Bppa Hunton*and *Mr. V. B. JUdwards*for the claimant:

Í. The written contract entered into between the parties stipulating that the claimant should be paid in the lawful money of the United States for all work done by him, and he having protested against being paid in any other medium than cash, unless that medium was guaranteed to be equal to cash, and the defendant having guaranteed that the bonds delivered to claimant should be equivalent to cash, the delivery to claimant of a depreciated bond is payment only to the extent of the sum that the claimant realized therefrom. *(Gity of Memphis*v. Brown, 20 Wall., 289; *Oallanan*v. Brown, 31 Iowa, 333.)

2. The whole amount due claimant for his work having been found due as provided by his contracts, audited and admitted to be due by the defendant, his contract completed, and claim*592ant having protested against tbe deduction of the $15,000, the defendant cannot legally withhold said sum, but the claimant is entitled to recover said sum with interest. *(United States*v. *Bostick,,*94 U. S. R., 66; *Baldwin*v. *United*States, 15 C. Cls. R., 297; *Ramsdell*v. *United States,*2 ibid., 508.)

3. Parol evidence is admissible to reform a contract so as to make it conform to the *real*agreement. *(Irvinson*v. Hutton, 98 U. S. R., 83; *Bride*v. *Brielc,*ibid., 514; *Hg/ney*v. *United*States,-13 O. Cls. R., 336.)

And is admissible to show the subject-matter of a contract. *(Reed*v. *Insurance Go.,*95 IT. S. R., 31; *Jones*v. *Guaranty Go.,*101 ibid.,- 623; *United States*v. *Peck,*102 ibid., 64.)

And parol evidence is admissible to explain written instruments. (1 G-reenl. Ev., § 288, p. 380; *Thornington*v. *Smith, 8*Wall., 12.)

4. Where the material .parts of an agreement are not read to claimant at or before the time it was signed by the parties, and it is proved that the claimant could neither read nor write, the burden of proof is upon defendant. *(Francis Selden*v. *Laiorence Myers,*20 How., 506.)

5. The certificate of the engineers approving the work is conclusive, and the defendant is bound thereby. *(Omaha*v. *Hammond,*94 IT. S. R., 98; *Eihlburg*v. *United States,*97 ibid., 398.)

6. A contract under seal may be varied by a subsequent parol agreement. *(Canal Go.*v. *Ray,*101 IT. S. R., 522.)

7. Payment must be the act of the creditor, and not forced by necessity, when nothing else could be obtained. (2 Hill. Contr., 158, note A; 2 Greenl. Ev., 523.)

8. The acceptance of the work under the contract will be inferred where it is done'under the eye of the engineer who measures it and certifies it for payment.. *(Bale*v. *United*States, 14 C. Cls. R., 530.)

9. Upon a contract payable in lawful money, judgment should be for an amount equal to the value of gold. *(Bronson*v. *Bodes,*7 Wall., 229; 2 Hilli. on Contr,. 154.)

10. Where there is a doubt as to the construction that should be given to an agreement, the party who takes the agreement prepared by another, and upon its faith incurs obligations or *parts with his property,*should have a construction given the instrument favorable to him. *(Nooncm*v. *Bradley,*9 Wall., 407; *Ucuyer*v. Isaac, 6 Mess. & Weis., 612.)

*59311. The act of the legislative assembly did not authorize the proceeds of the bonds received by Cullinane to be applied to any other purpose than to reimburse the Board of Public Works for the repairs of pumps, &c., and the payment was therefore illegal. *(Bichareis*v. *Stoc/sdell,*21 Ind., 74.)

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

The claimant has been paid in accordance with the terms of the written agreement made in compromise of the controversy between them, and the record shows that the writing correctly states the agreement and should not be réformed as claimed.

If the agreement in fact was as is represented, it would have been invalid for want of power in the Board of Public Works to make it. The statutes under which. it acted conferred no such power directly or incidentally as that of paying contractors their losses on securities of the District issued and received in payment for contract service. Such an undertaking would not only be in violation of general principles, but of the statute requiring the contracts of the Board to be in pursuance of lawful appropriation. *(Neuchatel Oomycmy’s Case,*17 C. Gls. R., 398.)

OPINION.

Drake, Ch. J.,

delivered the opinion of the court:

The claimant had four contracts with the Board of Public Works of the District of Columbia, for the improvement of streets, under which he did a large amount of work. In regard to one piece of that work, the macadamizing on Four-and-a-half street southwest, a controversy arose between him and the Board, which delayed the settlment between them of a final balance due him on account of all the work done under the four contracts. After considerable negotiation the following-agreement was arrived at, and signed and sealed by the claimant and all the members of the Board:

> Wheroas differences have existed between the Board of Public Works of the District of Columbia and Patrick Cullinane in reference to the contract of said Cullinane for improving Pour-and-a-lialf street, in the city of Washington, it is' agreed to adjust the same by deducting from the total amount due said Cullinane the sum of fifteen thousand dollars in consequence of the character of the work, in the judgment of the Board, and the amount *594equitably chargeable against the Metropolitan Railroad Company, which said amount is to be hereafter fixed between said Board and said company; bonds to be issued to said Cullinane for the balance due him.

> Witness our hands and seals this thirteenth day of September, A. D. eighteen hundred and seyenty-three.

> Patrick Cullinaxe. [seal.]

> H. D. Cooke. [seal.]

> Alex. R. Shepherd, [seal.]

> James A. Magruder. [seal.]

> Adole Cluss. [seal.]

> H. A. Willard. [seal.]

In pursuance of this agreement, bonds of the District of Columbia to the amount of $113,950 were delivered to and accepted by the claimant, which he hypothecated in part, and sold in part, at much below their par value.

He now sues to recover $68,000, which he alleges he lost by the depreciation of the bonds; and in order to lay a foundation for a recovery he avers that the above writing did not fully express the actual agreement arrived at between him and the Board; and he invokes the equitable jurisdiction vested in this court in cases against the District to reform that writing, so as to make it express that actual agreement. His averment is that there was omitted by mistake therefrom a stipulation which was agreed upon, that the bonds given to him in pursuance of that agreement “ *should he at par or equivalent to cash, and if*not, *they [the Board of Public Works] would pay in cash the difference between the actual valué and their face value.”*

If the agreement be not reformed by the addition thereto of this stipulation, the claimant has no case; for it is found as a fact that when he received the bonds he knew that their actual value was below par, and knowing this he received them at their face value in settlement of his entire claim.

It is a well-settled rule of equity jurisprudence that if, in such a case, the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract, so as to make it comformable to the precise intent of the parties.

It is an equally well-settled rule that if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief, upon the ground that the written paper ought to be treated as a full and correct expression of the intent until the contrary is esablished beyond reasonable controversy.

After careful consideration of the evidence in this case, we *595have felfc constrained to find that it does not appear that there was, before or at the time of the signing of the agreement in question, any other agreement than that between the claimant and the Board of Public Works as to the settlement of the matters of difference between them; nor was there any stipulation connected with the settlement which, after having been agreed upon between the parties, was omitted by mistake or otherwise from said agreement.

This finding, of course, leaves no grounds whatever for equitable interposition to reform the agreement which, therefore, must stand in its precise terms as the expression of the minds of the parties. The settlement having been carried out on both sides in accordance with those terms, the matter is finally closed. The claimant has no cause of action, and his petition must be dismissed.