#### OWEN O’HARE v. THE DISTRICT OF COLUMBIA.

No. 24

May 28, 1883.

The claimant mads a written contract with the Board of Public Works (on • ( behalf of the District of Columbia), to do certain work at prices fixed therein. Subsequently a written agreement was signed by the parties, wherein it was provided that an increase of 20 per cent, upon those prices should be-paid by the defendant.

Thereafter, several extensions of the contract to other work were made, with a proviso in each that the claimant should receive therefor “the prices established and paid by the Board of Public Works for work of similar character.”

The Board had, by general orders, established prices, to which the terms of the original contract, without the twenty pier cent, increase, conformed.

For the excavation of sewers the contract specified a fixed price per cubic ■ yard. It had been the practice of the District engineers, up to that time and afterwards, to measure such excavation by an arbi--trary “ constant,” without regard to the exact quantity of earth excavation.

*647The claimant famished materials and lowered a water-main according to grade furnished him by the District engineers. After that the grade was changed by them. He was required to take up and relay the water-main, which he did, and claims extra compensation therefor.

He did certain other work, for which he was paid the established rates, and for which he claimed higher prices in accordance with the alleged terms of an oral agreement between him and Governor Shepherd.

He furnished and set certain curb-stones, for which he was paid the established prices, while he claimed additional pay for the hauling.

In a settlement through the Board of Audit the claimant was paid for certain shoring claimed by him to have been left in the trenches, but which the defendant attempts to prove was not the fact and seeks to recover hack the money paid for the same.

The claimant was paid for some excavations caused by the caving in of trenches, and for some excavations in made ground at higher than contract rates, upon the certificate of the District engineers and the Board of Public Works, but for what reasou these higher rates were paid does not appear.

The claimant did other work, for which lie was paid at established rates, and received the same without objection. Subsequently the Board of Audit allowed and paid him a higher rate. They also paid him for some work for which he had previously been paid in full.

It was ftund by the court that there was a mistake in writing out the con tract of 20 per cent, increase of prices, and that the writing did not truly express the agreement of the parties, which was that the increase should apply only to work in certain alleys. Payments were made to him through the Board of Audit according to the increased rates on other work than alley work.

Held :

L The extensions of contracts, agreeing to pay rates established by the Board of Public Works, did not give'the claimant the benefit of the previous special agreement attached to his original contract increasing the rates of that contract 20 per cent, above the rates therein agreed upon, and which wore the established rates.

II. The contract to pay for excavation for sewers at a rate per cubic foot, made while it was the uniform practice- of the defendant's officers to measure the quantity of such work by an arbitrary “ constant” which would give the claimant credit for more feet than an accurate measurement would show, eutitles the claimant to the benefit of'a measurement by the customary constant.

III. Where the claimant laid a sewer according to grade furnished him by the defendant’s officers and afterwards took it up and set it at a different grade by their direction, he is entitled to pay for the additional work.

IY. For work done by the claimaut, claimed by him to have been done at prices agreed upon between him and Governor Shepherd, higher *648than the established rates, and for without objection at the established rates, he can recover nothing more. The Governor had no authority to make oral contracts.

,V. The claimant is not entitled to pay for hauling curb-stones, where he was paid for materials and setting the same at established rates. The pay for hauling was included in the pay for furnishing.

VI.In the controversy whether or not the claimant left shoring' in the sewer trenches for which he was paid through the Board of Audit, the defendant having filed a counter-claim to recover back the money so paid, the burden of proof was upon the defendant, and, not being sustained by the evidence, the claim is disallowed, although if the burden of proof had been on the claimant the judgment of the court might have been difierenr.

*VII.For*payments made on account of excavations caused by the caving in of the trenches and in excess of contract prices for certain excavations on made ground, the defendant cannot recover on the counterclaim, because it does not appear that the caving in of the trenches was by reason of the claimant’s fault, and because it does not appear but that special circumstances existed for the extra payments, the burden of proof being on the defendant. *(N’enohatel Faring Company's Case,*17 C. Cls. R., 386.)

VIII.The claimant, having been paid for certain work at established rates, and having received payment therefor without objection, and subsequently having been paid extra through the Board of Audit for • the same work, the amount of such extra payment may be recovered back, and payments made through the Board of Audit for other work for which he had been fullypaid may also be recovered back.

IX.The court having found that the terms of the written agreement modifying the original contract were not according to the understanding of the parties, ordered the same to be reformed so as to express the true intent, and treated the contract as having existed as' so reformed, and money paid through the Board of Audit in mistake of the true contract between the parties may be recovered back.

The following are the facts found by the court:

1. The claimant and the defendant, through the Board of Public Works, entered into a contract as follows:

CONTRACT No, 835.

This contract, made and concluded this twelfth day of August, in the year one thousand eight hundred and seventy-three, by and between Henry D. Cooke, Alexander R. Shepherd, James A. Magruder, Adolf Cluss, and Henry A. Willard, constituting and composing the Board of Public Works of the District of Columbia, of the first part, and Owen O’Hare, of Washington, D. C., of the second part, witnesseth:

First. That the said party of the second part has agreed, and by these *649presents cloth, agree, with the said party of the first part, for the consideration hereinafter mentioned and contained, and under the penalty expressed *in*a hond hearing 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 excavate for, construct, and complete pipe-sewers, with the necessary manholes and traps, in the following alleys and streets in the city of Washington, D. C., to wit:

An eighteen (18) inch pipe-sewer on the east side of Ninth street, NW., from‘Rhode Island avenue to Q street, NW.; thence a fifteen (15) inch pipe-sewer along the north side of said Q street, NW., to a point opposite alley on square numbered three hundrefl and ninety-seven (No. 397), and thence across said Q street and alongside alley to a point ten (10) feet inside of the building line; thence a twelve (12) inch pipe-sewer along said alley in said square, numbered three hundred and ninety-seven (No. 397), to P street, NW., and across said P street, NW., to alley in square numbered three hundred and ninety-eight (No. 398), and also said alley, in said square numbered three hundred and ninety-eight (No. 393), and along said alley, in said square numbered three hundred and ninety-eight (No. 398), to Q •street NW. (as per accompanying diagram).

Also a fifteen (15) inch pipe-sewer, beginning at the opening of alley in square numbered four hundred and twenty (No. 420) and running along said alley to the south side of Q street, NW.; thence a twelve (12) inch pipe-sewer along alley in square numbered four hundred and twenty-one (No. 421) to P street, NW., and across P street, NW., to alley in square numbered four hundred and twenty-two (No. 422), and running along said alley in square numbered four hundred and twenty-two (No. 422) to O street, NW. (as per accompanying diagram).

Also a twelve (12) inch pipe-sewer in square numbered four hundred and forty-six (No. 446), beginning at opening of west alley in said square numbered four hundred and forty-six (No. 446), and along said west alley in said square numbered four hundred and forty-six (No. 446), to O street, NW. (as per acconrpanying diagram).

Also a fifteen (15) inch pipe-sewer, beginning on R street, NWt, at a point ■opposite the ea#t alley, in square numbered four hundred and forty-four (No. 444), arid running across said R street, NW., to the opening of said •east alley in said square numbered four hundred and forty-four (No. 444), and along said east alley in said square, with twelve (12") inch laterals along the two (2) cross-alley connecting with said east alley in said square to Q street, NW.; and across said Q street, NW., to opening of east alley in square numbered four hundred and forty-five (No. 445), to first cross-alley in said square, and thence a twelve (12") inch pipe-sewer along said east alley in said square, with twelve (12) inch laterals in the two (2) cross-alleys connecting with said east alley in said square numbered four hundred and forty-five (No. 445), to P street, NW., and across said P street, NW., to ■opening of east alley in square numbered four hundred and forty-six (No. 446), with twelve (12) inch laterals in''the thirty (30) foot alley, running west from said east alley and connecting with said east alley in said square numbered four hundred and forty-six (No. 446), to O street, NW. (as per accomxjanying diagram).

*650Also twelve (12) inch pipe-sewers on tlie south side of P street, NW., from the west building line of Sixth street, NW., to the east building line of Seventh street, NW.; and from tlie west building line of Seventh street, NW., to the east building line of Eighth street, NW.; and from the west building line of said Eighth street, NW., to the east building line of Ninth street, NW.; and from the west building- line of said Ninth street, NW., to the east building line of Columbia street, NW.; and from the west building line of said Columbia street, NW., to the east building line of Tenth, street, NW. (as per accompanying diagram).

Also twelve (12) inch pipe-sewers on the south side of Q street, N. W., from the west building line of Sixth street, N. W., to the east line of thirty (30) foot alley, in square numbered four hundred and forty-five (No. 445), and from the west line of said thirty (30) foot alley in said square to the east building line of Seventh street, NW., and from the west building line of said Seventh street, NW., to sewer in alley' in square numbered four hundred and twenty-one (No. 421) (as per accompanying diagram).

Also, a twelve (12) inch pipe-sewer iu alley' in square numbered three hundred and t-welve (312), the said sewer to connect with the sewer in P street, NW.

The said sewers as aforesaid to be constructed and completed in accordance with the specifications following, to wit:

Boabd 03? Public Wobks Distbict oi? Columbia.

*Specifications for brick masonry and sewers.*

(1.) All the materials furnished and all the work done, which, in the opinion of said Board of Public Works, shall not be in accordance’with this specification, shall be immediately removéd, and other materials furnished and work done that will be in accordance therewith.

(2.) In the construction of the brick masonry none but the very best quality of whole bricks, burnt hard entirely through, free from cracks, and with true, smooth faces, shall be used, and which are to>be thoroughly wet immediately before being laid. Every brick is required to have full cement joints under bottom, sides, and ends, which for each brick is to be formed at one (1) operation, and in no case is to be made by working in the cement after the brick is laid; every other course of brick to be laid with a line. The bricks to be culled as they are brought upon the ground, and all brick of an improper quality and all bats immediately removed from the same. The cement mortar is to be composed of the best quality of fresh hydraulic cement, mixed in the proportion of one barrel of cement (of 300 pounds) to two (2) barrels, not packed, of clean, sharp, silicions sand, free from loam.

(3.) The work under this agreement is to be prosecuted at and from’as many different points in such part or parts of the streets and avenues on the line of the work as the said Board may, from time to time, during the progress of the work, determine, at each of which points an inspector will be placed to supervise the same, whether such work be connected with the sewer, with the receiving-basins, or with the culverts.

(4.) The sewers and culverts to be of circular vitrified Scotch stoneware sewer-pipe, or pipe equal thereto, of the dimensions shown on the plan of *651tlie work, which will be furnished to the contractor by the said Board at their yards. There will be: lineal feet inch straight pipe; lineal feet inch curved pipe; lineal feet . inch straight pipe with six inch spurs; lineal feet inch straight pipe; lineal feet pipe; lineal feet. inch straight pipe with six inch spurs; inch,straight pipe; lineal feet inch curved pipe; lineal feet, inches by lineal feet, branches inches by inches; inch curved lineal feet lineal feet branches inches; inch-straight pipe with six inch spin’s; inches by - inches; lineal feet, branches lineal feet, branches inches by inches; inches by inches; lineal feet, branches lineal feet, branches inches by inches.

The joints to be properly fitted with bands or sleeves, and wiped or pointed, inside and outside, with cement mortar as the pipes are laid. If necessary (which the engineer in charge of the work will determine), the sewer-pipes and culverts will be firmly supported at each side of the joints by a foundation-plank two (2) inches thick, six (6) inches wide, and two (2) feet long, laid under and transversely with the line of the pipes, for which plank, as well as for the plank used in the foundation for the brick sewer, there will be allowed and paid a sum per thousand feet, b. m., to be determined by the Board. The refilling of ihe trench under and on each side of the pipes when laid, and to a height of at least one (1) foot above the outer surface of the same, will be of earth or sand, entirely free from stones or rubbish, thoroughly compacted by ramming with tools made for this purpose, in layers of not more than four (4) inches, as the filling progresses. The remainder of the trench is to be refilled and rammed as provided in specification 15. Lateral spurs, for six (G) inch house-connections, are to be laid in front of each building on the line of the work at such points as said Board may designate; and where buildings are not erected they will lie laid at such points as the Board may direct. Thespnrs are to be securely closed with approved vitrified-ware covers.

(5.) The sewers are to be built of the dimensions, with the connections on the lines, and at the depths shown on plans or furnished by the engineer. The connections with present sewers to be made in a workmanlike manner.All curves to have each a radius of not les's than thirty (30) feet. The ends of all sewers (except at their discharge) to be securely closed with brick masonry or approved stone-ware covers.

(6.) Brick manholes to be worked at such places in the line of the sewer as the engineer may direct, according to the plans furnished by the engineer. A cast-iron manhole head and cover, free from imperfections and thoroughly cleaned, and in dimensions, weight, and quality of iron, and in all respects similar to the pattern to be furnished by the engineer, similar to those now in use in Washington, is to be fitted ^o each of the above described manholes.

(7.) Receiving basins are to be built where shown on the plan of the work, or at such other place or places, and at such time as the Board, may, during the progress of the work, from time to time determine.. The basins to he on the circular corners or side of the street, as the said engineer shali direct, and to he constructed in accordance with the drawings to be seen at the office of said engineer; each portion of the basins to be of the size *652and material designated on drawings. The weight., size, and shape of the covers of the receiving hasins to he similar to the pjattern now in the office of the said Engineer. The whole to he laid in cement, and the joints to be struck on the whole of the inner sides. In case the nature of the ground he such that, in the opinion of the said engineer, timber ought to be substituted for the' stone foundation, as shown on the said model, the timber shall he furnished, and the foundation built of the proper thickness and size, without additional charge, by the said contractor.

(8.) The culverts for the connection of the receiving basins are to be constructed of the same material as the pipe-sewers and laid in-like manner.

(9.) *New sewers and house-connections.*— The said Board shall have the right to connect any sewer or sewers with the sewer herein described, or to grant permits to any person or persons to make house-connections therewith at any time before it is Anally completed; and said contractor shallnotinter-fere with or place obstructions in the way of such persons as may be employed in building such new sewer or sewers, or in making such connections, no extra allowance will be made to the aforesaid contractor on account thereof.

(10.) *Rebuilding of culverts and house-connections.*— In case the line of this sewer shall intersect with any culverts now built, so much of said culverts as in the opinion of said Board may be necessary shall be taken up and rebuilt to and connected on a proper curve with said sewer. In case the lines of the proposed work shall intersect with any sewer connections for which permits may have been previously granted by said Board, the same shall be extended to and reconnected with new work as it progresses in the manner and of the materials allowed by said Board under their rules and regulations relative to sewer connections.

(11.) *Of ¡passage-ways and rail 'racks.*— All the paving and macadamization stones necessary to be removed, together with all rock, earth, or sand taken from the trenches, shall be placed in such parts of the carriage-way, or the ' vicinity thereof, as the inspector in charge of the work shall direct, and in all cases a passage-way on the side-walks of not less than three (3) feet in width shall be preserved free from all obstructions. In the progress of the work tho contractor will be required to preserve from needless obstruction the carriage-way on one side of the line of the proposed work, and also to afford the necessary facilities to the company or companies owning rail tracks on the line of the work, or to their agents, in their preservation of the same from injury, either by removal or otherwise, without extra charge therefor. In case it be necessary to remove the said tracks, or any portion thereof, the said company or companies will be notified by the Board to remove the same within a specified time, and the contractor shall not interfere with the said tracks or any portion thereof, until the expiration of the time specified in said notice.

(12.) The trenches, except where fast rock may be encountered, to be at least ten (10.) inches on each side wider than the outer width of the masonry ; in rock excavation the trenches to be excavated to the width allowed in the measurement of rock excavation. In no case shall the trench be opened more than one hundred (100) feet in advance of the complete building of the sewer unless permission in writing so to do shall have been given by *653sai c|, engineer. In. all cases of rock-blasting the ordinance laws or regulations relative to rock-blasting to be strictly observed, and the material so excavated to be immediately removed from the street. Wliere aline of main water-pipes intersects the line of the trench the rock necessary to be excavated for a width of five (5) feet in the clear on each side of the main pipe is in all cases to be removed without blasting.

(13.) Sheet-piling-to be used where the same may be necessary, bnt no allowance will be made therefor. In all cases the sheet-piling is to be drawn as the work progresses, unless ordered otherwise by the said Board, in which case the sheet-piling so ordered to be left in the trench will be measured and allowed for at the same rate as the foundation plank.

(14.) The refilling in all cases shall be either earth, gravel, or sand, of wholesome quality, and in cas ■ of deficiency in the earth or sand taken from the trenches the contractor shall furnish a sufficient quantity of sand or gravei to properly fill the trenches without extra charge. In refilling, the earth or sand to be well and faithfully rammed, in layers of not more than nine (9) inches as the work progresses.

(15.) *Regrading and repaving,*— The carriage-way on the line of the work to be regraded and repaved or remacadamized, as the case may be, to the extent to which the aforesaid work may render necessary. The said contractor will be required to reset all curb, gutter-bridge, and flag stones, which may have been displaced during' the prosecution of the work under this agreement; and in case auy of said stone shall have been broken, in consequence of any act or omission on the part of the said contractor or his his agents, new stones, to be approved by said Board, shall be furnished and set in place thereof by said contractor at his own expense prior to the acceptance by said Board of the work aforesaid as completed.

(16.) In repaving the paving stones for a width of not less than sixteen (16) feet over and adjoining the line of the sewer, shall be taken up and bedded endwise in good, clean, gravel twelve (12) inches in depth, in a good and workmanlike manner. The repavement, after it has been examined and approved of by the engineer, to be covered with pure sand one (1) inch in thickness, and no more. Twelve (12) days after the completion of the whole work the covering sand shallbe swept into heaps and removed from the street; and until this be done, and the certificate of the engineer to the effect that the stipulations relative to the removal of all surplus materials, earth, sand, and rubbish from the line of the work have been complied with shall have been obtained and filed in the office of said Board, the work will not be considered as completed according to this agreement. In remacadamizing or repaving the same will be done in accordance with 'the work of the street before the sewer was commenced.

(17.) All the cross-gutters which may become unnecessary in consequence of the construction of any receiving bases under this agreement are to be taken up, and the whole of the intersections between the cross-walks regraded in conformity with the grade of the street, and repaved in the manner before described.

(18.) *Engineer’s certificóte.*— The whole of the regrading and repaving or remacadamizingis to be done to the satifaction of the engineer (which shall be determined by a certificate to that effect, signed by him and filed in the *654office of tlie Board) and tlie same kej>t in good repair for a period of six (6) months from the date of the last said certificate.

(19.) *Cleaning up,*cj-c. — The basins and culverts to be thoroughly cleaned out and left clean. Upon the completion of the work embraced in this agreement, a certificate, signed by the engineer, to the effect that the stipulations, relative to the removal of all surplus materials, earth, sand, rock, and rubbish, from the line of the work have been faithfully complied with, will be filed in the office of the Board.

(20.) All iron, water, and gas pipes which it becomes necessary to remove shall bo considered as the property of the Board, and left in such part of the street as the inspector may direct, unless notice to the contrary is given by the Board in writing to the said contractor, in which case the same shall-be removed or otherwise disposed of at the expense of said contractor.

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

(22.) In measuring rock excavations a width of four (4) feet at a point six ((5) inches below the outer bottom of the brick and pipe sewers and culverts will be allowed; from this pioint a slope of three (3) inches to one (1) foot on each side of the excavation will be allowed until the surface of the rock is reached,’ and no more.'

(23.) *Suspension of masonry during winter.*— All work in masonry to cease, postively, on the first day of December, in each year, and not to be resumed until such time next thereafter as shall be designated by the Board. Upon the suspension of mason-work, as before mentioned, the trenches to be refilled and repaved, or remacadamized, as the case may be; and all materials, surplus earth, sand, rock, and rubbish removed from the street immediately thereafter. The inspectors will be retained on the work until the same shall be so done, and receive pay in the same manner as if the work was in progress, which shall be charged to the contractor for the time the work may be unnecessarily delayed.

(24.) *Connections not to be made without permission.*— The work aforesaid will not be considered as completed in accordance with this agreement, and therefore will not be received, in case any connections or drains are made and joined therewith without permission in writing being obtained from the Board prior to the commencement of the construction of such connections or drains.

(25.) Wherever the word “Board” or “Board of Public Works,” and pronouns in place thereof, are used in this contract they are to be considered as referring to the party of the first part of this contract.

(26.) Wherever the word “engineer” or “engineers,” or the pronouns referring thereto, are used in this contract they are.intended to designate the chief engineer of said Board and the assistant acting under him.

(27.) Wherever the word “contractor” and the words “party of the second part,” and the pronouns in place thereof, are used in this contract they are to be considered as referring to and moaning the party or parties (as the case may be) of the second part to this agreement.

(28.) And the said party of the second part hereby further agrees that *655the said parties of the first part shall he, and they are hereby, authorized to retain, out of the moneys payable to the said party of the second part under this agreement, the certain sum of ten (10) cents for each lineal foot of sewer constructed under this agreement, find to expend the same in the manner hereinafter provided for in making such repairs to the carriageway on the line of said sewer as the said Board may deem necessary.

(29.) And it is further agreed that if, at anytime during the period of six (6) months from the date of the final completion of the sewer aforesaid, the carriage-way on the line of the same shall, in the opinion of the said Board, require regrading and repaving or remacadamizing, and the said Board shall notify the said party of the second part to make the repairs so required; and if the said party of the second part shall neglect to make/ such repairs to the satisfaction of the said Board within twenty-four (24) hours from the date of the service of such notice, that then the said Board shall have the'right to employ such other person or j)ersons as they may deem proper to make the same, and to pay the expenses thereof out of the said certain sum retained for that purpose by the said parties of the first part, as before mentioned.

(30.) And the said party of the second part further agrees that he will purchase and receive from the said Board the whole of the sewer and culvert pipes required for the construction of the work herein described, and that he will not sell or otherwise dispose of the said pipes, or any of them so purchased by Mm, but will use the same exclusively in the construction of the work last aforesaid. He further agrees that he will pay for the said pipes, at the price established by the Board for the same, in current funds, at the time or times they may he ordered by him; and he further agrees that he will he at all charges for loading said pipes at the yards of the said Board, and of hauling the same to the line of the proposed work]*

(31.) And the parties of the first part hereby agree, upon the expiration of the said period of six (6) months, provided that the said carriage-way shall at that time be in good order, which fact shall he determined by a certificate to that effect, signed by the superintendent of the appropriate bureau, to pay to the said party of the second part the whole or such part of the sum last aforesaid as may remain after the expenses of making the said repairs in the manner aforesaid shall have been paid therefrom.

(32.) And the said party of the second part hereby covenants and agrees that he will not sell, or permit to he removed from the line of the work before the trench shall have been refilled, any building sand or earth thrown up, except upon the written permission,of-said Board, and then only so much as shall remain after reserving a sufficient quantity to refill the trench •and complete the paving; hut that he will in all cases refill the trench with the same materials thrown out, provided it he good sand, gravel, or •earth. But if it be unsuitable, consisting of rook, blasting-stones, or mud, that then the same shall he removed from the ground, and good, clean earth procured, and used for refilling the trench, and sand ofproper quality and depth spread on the surface to receive the repavement.

*656Board op Public Works, District op Colujibia.

*Specifications for laying sewer-pipe connections, and water and gas service-pipes.*

(1.) Sewer-pipe for house connections, and water and gas service-pipes siiall be laid from the main sewers, and from the water and gas mains, to such points beyond the curb-stones as the Board of Public Works may from time to time determine.

(2.) The trenches will be excavated two (2) feet wider than the pipes, and to such depth andón such slope as the Board of Public Works may from time to time direct.

(3.) Where the average dopth of the excavation for any one (1) trench does not exceed six (6) feet, no allowance beyond the price paid for laying the pipes will be paid, but the cost of such excavations shall be included in and paid for in the price paid per foot for laying the pipes.

(4.) Where the depth of excavation for any one (1) trench exceeds six (6) feet, the excavation below the average depth of six (6) feet will be paid for the length of pipe laid, and for a width of two and a half (2-J) feet.

(5.) The water-pipes null be of lead or *composite,*and the gas-pipes of iron, and of such strength and quality as may be required by any ordinances of the city of Washington, or any law, or regulation, or direction of the Board of Public Works relating thereto.

(6.) All stop-cocks, covers, street-washers, and gas stop-cocks, washers, and fixtures, will be *of*such form and dimensions as may be determined by the Board of Public Works.

(7.) All sewer-pipe connections will be of 6-inch Scotch vitrified stone pipe, or such other pipe as may be approved by the Board of Public Works.

(8.) All filling in of the trenches will be made in the manner specified in the specifications of the Board of Public Works for laying sewer-pipes; all trenches will be made to receive all the earth taken from them in addition to the pipes laid, and any deficiency of material will be made with gravel.

(9.) All sewer-pipes will be closed with earthen covers, close fitting, not cemented.

(10.) The tapxiing of gas and water mains will be done only by the authorized tappers.

(11.) There will be a street-washer at the curb end of each water-pipe, with iron box stop-cock, and covers complete, and a stop-cock and box at the cprb end of each gas-pipe.

(12.) The price paid for laying water and gas service-pipe and stop-cock and sewer-pipe connections, per foot of pipe laid, will include the pipe and stop-cocks, and all excavating and filling the trench (not exceeding the average of six (6) feet in depth), and for all labor and materials for the same. The price paid for each street-washer will include the street-washer, and stop-cock, and boxes, all fixtures connected therewith, and all excavation, material, and labor required therefor.

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 he by said party deemed proper, to inspect the material to be furnished, and the work to be done under this eontraot, and that such persons or person shall have any *657and all opportunity and privileges winch may he necessary to enable them to faithfully make the inspection aforesaid.

Third. It is further agreed that the work under this contract shall he commenced immediately.

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

Fifth. It is further agreed that if, at any time, the party of the first part shall be of opinion that the said work, or any part thereof, is unneoessarily 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 of 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 aud 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 said party of the-seoond part, and the expense so charged shall be deducted and paid by the said 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 said party of the second part shall be entitled to receive the difference; and in case such expense shall exceed the last said sum the amount of such excess Bhall be paid to the said, party of the first part by the said party of the second part.

Sixth. It is further agreed that all loss or damage arising out of the-nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances, or injuries to individuals, property, or otherwise, on the line of the work,, or adjacent thereto, shall be sustained by tlie said contractor; and the said contractor hereby agrees, in the execution of the said work as aforesaid, to-keep at all times the said work properly guarded or protected, so as to prevent all injuries to persons, travelers, animals, or property; and in the-event of any such injury or injuries occurring in consequence of the insufficient guarding or protection of said work as aforesaid, the said party of1 the first part shall retain, out of any money or moneys due or to become-due said contractor, a sum sufficient to cover all damages arising out of said' injury or injuries until the same may be settled at law or otherwise.

Seventh. It is further agreed that the said party of the second part shall punctually pay the workmen who shall 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 re*658quired by said party of tlie 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 be necessary for 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 jiarty of the first part on the monthly estimates of the chief engineer of the Board of Public Works aforesaid, and that whenever the said chief engineer aforesaid shall certify, in writing, that the party of the second part has 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 agrees that he shall not be entitled to demand or receive payment for any portion 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 partial payments may .be made under direction of the said party of the first part, otherwise than upon the estimates of the said engineer, as provided above, if, in the opinion of the said party of the first part, the vigorous prosecution of the work •will be promoted thereby.

Ninth. It is further agreed that if at any time during the period of from the completion of the work to be done under this contract any part mr 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 said party of the first part; and, in case of a failure or neglect of .the said party of the second part so to do, the same shall be done under the directions and orders of the said party of the first part at the cost and .expense of the said 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 miaterials and labor which may be required in the prosecution of the whole .of the work to be done under this agreement, and in all respects completing •the same, to wit:

Laying eighteen (18) tile pipe, per lineal foot, one dollar and sixty-two ($1.62) cents. *659Laying fifteen (15) ,tile pipe, per lineal foot, one dollar and thirty-three ' ($1.33) cents.

Laying twelve (12) tile pipe, per lineal foot, eighty-eight ( ) cents. Street-washer and hox (iron), $6.12. Stop-cock and hox, $4.00.

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

Manholes:

6 feet deep or under.. $31 68

Over 6 “ “ and not more than (8) ft. 42 24

“ 8 “ “ “ “ “ “ (10)ft. 52 80

“ 10 “ “ “ “ “ “ (12) ft.■. 63 36

“ 12 “ “ “ “ “ “ (14) ft. 73 92

*“*14 “ *“ “ “*“ *“*(16) ft. 84 48

*“*i6 “ *“*“ *“ “*“ (18) ft.:. 95 04

Manholes with trap-hottom an additional allowance of $4.64.

Eeceiving-hasins and traps, old corporation pattern, $145.38.

Eeceiving-hasins and traps, Chase’s pattern, $114.58.

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.

Eleventh. And it is further agreed that should any litigation arise in any way connected with the work embraced, as aforesaid, in this contract, from or by reason of any demand or demands, claim or claims, by any person or persons, to use within the said District of Columbia the improvement, or pavement or pavements, contracted for herein to be laid and put downby the said party of the second part, under or by reason of any patent, or assignment of patent, either in the form of royalty or damages, or in any otherwise, the said party of the second part will indemnify and save harmless the said party of the first part from all said demand or-demands, claim or claims, whether arising out of suits or otherwise; and the said party of the first part may, at its option, retain from the amount or amounts due or to become due under this contract, to the said party of the second part, a sum or sums necessary or sufficient to satisfy or liquidate all of said demands or claims, as aforesaid, until they shall be amicably adjusted or finally determined at law. *1*

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

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

Fourteenth. It is further agreed that this contract shall be subject to any and all provisions of an act entitled “An act fto 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 *660law 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.

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

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

James A. Magruder, [l. s.]

Adolph Cluss, [l. s.]

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

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

Owen O’Hare, *Contractor.*

II. The following correspondence took place at the respective dates thereof:

Washington, *Oct. 13th,*1873.

Hon. Board or Public Works:

Gentlemen : I respectfully request that the prices be increased on my contracts for sewering in alleys in squares 397, 398, 420, 421, 422, 444, 445, 446. It is impossible for me to do the work at Board prices, as the alleys-are so narrow and not sufficient room to pile the earth. I am obliged to remove it away, and when the trenches are dug to remove it back to fill in. There is also much danger in working so close to the buildings in said alleys, requiring bracing and much extra expense. It requires more than double the time to do this work that it would take on the streets for similar work. I hope yon will give this your kind consideration.

Respectfully,

O. O’Hare, *Contractor.*

Board op Public Works, District op Columbia,

*Washington, Oct.*14, 1873..

Respectfully referred to the engr. in charge for report.

By order of the Board.

Edward Johnson,

*Asst. Secty.*

I recommend that in those narrow alleys where the dirt can hardly be-piled the regular price be increased 20 per centum.

Adolph Cluss.

16, 10, ’73.

Board op Public Works, District op Cqlumbia,

*Washington, Oct. 17th,*1873.

Adolp Cluss, Esq.,

*Engineer in Charge:*

Sir : The Board rate for sewering in alleys in squares 397, 398, 420, 421,. 422, 444, 445, and 446 is increased twenty per cent., in accordance with your recommendation of the 16th instant, and you-will so amend the contract of Mr. O. O’Hare.

By order of the Board.

Chas. Johnson,

*Secretary.*

*661Oct. 17th.

O. O’Hare, Esq., 410 9tft sí., *N. W. ¡*

Sir : In your contract for sewering the alleys in squares 397,398, 420, 421, ■422, 444, 445, and 446, the Board rate has béen increased twenty per centum.

By order of the Board.

Chas. S. Johnson,

*Secretary.*

*Am. Con.-No.*835.

Board of Public Works, District of Columbia,

Office of Chief of Engineers,

Washington, *D. C., Oot.*18, 1873.

Wm. E. Nott, Esq.,

*Contract Cleric :*

Sir: By order of the Board; the rate for sewering in alleys in squares 397,, , •398, 420, 421, 422, 444, 445, and 446 is increased twenty per cent., and you will so amend the contract of Mr. O. O’Hare.

Very resp’f'y, Adolf Cluss,

*Mngr. in Ch’ge.*

Between the time when the Board agreed to increase the irate in certain alleys, and gave notice to that effect to the claimant, and the time of signing the modification on the next day, there had been no consultation of the members of the Board among themselves nor with the claimant upon the subject.

This order was given to the contract clerk on the day of its date, from whom on the same’ day came back the following modification of contract No. 835, which was then signed by the Board, under the impression that it had been drawn up as directed, to include only the work on sewers in the alleys named.

*Extension of contract.*

C. No. 835.

It is hereby agreed that this, contract, with its various terms, conditions, and stipulations (except as respects the time of execution), shall be modified and extendéd so as to embrace an increase of twenty per centum upon the prices in the foregoing contract.

Witness our hands and seals the eighteenth day of October, A. D. 1873.

Alex. R. Shepherd, [seal.]

H. A. Willard, [seal.]

James A. Magruder, [seal.]

Adolf Cluss, [seal.]

Jno. B. Blake, [seal.]

*Board, of Public Worlcs of the District of Columbia.*

Owen O’Hare, *Contractor.*

*662In drawing tbis modification the clerk used a printed blank. It occupies four lines at the top of a half sheet foolscap paper, and is all in print except the words “an increase of twenty per centum upon the prices in the foregoing contract,” and except also the words “modified and,” which are interlined. Below these four lines the whole blank page is scored and the signatures made on the back of the half sheet, where blanks were left for that purpose. It appears to have been signed by both parties in mistake of its contents.

For the sewer work done in the alleys above named under contract 835, the 20 per centum was allowed and paid by the Board of Public Works.

For the sewer work done under this contract upon the streets, certificates of the measurement and amount due, calculated at the prices in the original contract, were made by the engineers. These certificates were laid before the Board-of Audit. They examined the modification of the contract, and without any knowledge of what was behind it, and in mistake of fact, added the 20 per cent, which was paid. The addition amounted to $1,007.82.

III. On June 2, 1874, the said parties entered into an extension, so called, of said contract 835, which (except the specifications, which are likewise those of said contract 835) is as follows:

*Extension of contract No.*835.

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 excavation for construction and completion of a twelve (12") inch pipe sewer, writh the necessary manholes and traps, in the alley in square numbered four hundred and twenty-two (No. 422), from the mouth of entrance of said alley to the south side of O street NW.; thence along the south side O street NW. eastwardly to the west side of Seventh street NW., and thence along the west side of said Seventh street NW. in front of square numbered four hundred and twenty-three (No. 423), to a point near N street NW. in the city of Washington, D. C., said work to be executed in every respect in conformity with the accompanying specifications, and at a cost of one thousand two hundred and twenty dollars and seventy-five ($1,220.75) cents.

Witness our hands and seals the second day of June, A. D. 1874.

H. A. Willard, [seal.]

James A. Magruder, [seal.]

Jon. B. Blake, [seal.]

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

O. O’Hare, *Contractor.*

*663On June 17, July 12, August 9, August 20, September 20, and December 27,1875, tbe claimant entered into the six several agreements, in writing, with the Commissioners of the said District hereinafter set forth, .purporting severally to be extensions of, and having like specifications with, the said contract 835, namely:

June 17, 1875.

For and in consideration of the stipulations hereinafter contained, it is agreed, by and between the Commissioners of the District of Columbia and: Owen O’Hare, that contract No. 835 in the series of contracts made hy the Board of Public Worts of the District of Columbia be, and the same is hereby, extended with its various terms, conditions, and stipulations, to embrace the following work, viz: Lay and put down a 12-inch pipe sewer in. the alley in the square No. 278.

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

July 12, 1875.

For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Owen O’Hare, that contract No. 835 in the series of contracts made by the Board of Public Works of the District of Columbia be, and the same is hereby, extended with its various terms, conditions, and stipulations to embrace the following work, to wit: Lay and put down the necessary pipe-sewers in alley in square No. 900, according to specifications hereunto, annexed; also grade and pave the alleys in square No. 245.

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

* ******

In witness whereof, this instrument is signed and sealed by the Commissioners of said District, appointed under the act of Congress entitled “An act for the government of the District of Columbia, and for other purposes,” approved June 20,1874; and the party of.the second part to these presents has hereunto set his hand and seal this -12th day of July, 1875.

W. Dennison, [l. s.]

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

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

*Commissioners of the District of*Columbia.

Owen O’Haee, [seal. 3

*Contractor.*

*664Aug. 9,1875.

For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Owen O’Hare, that contract No. 835 in the series of contracts made by the Board of Public Works of the District of Columbia, be, and the same is hereby, extended with its various terms, conditions, and stipulations, to embrace the following work, according to specifications thereunto annexed, to wit: Lay and put down the necessary 12-inch pipe-sewers in alleys in squares *No.*245, 416, and 441. Also the necessary 12-inch pipe-sewer on H street, south, between 4J street and 6th street, west.

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

In witness whereof this instrument is signed and sealed by the Commis■sioners of said District, appointed under the act of Congress entitled “An act for the government of the District of Columbia, and for other purposes,” •approved June 20, 1874; and the party of the second part to the these presents has hereunto set his hand and seal this 9th day of August, 1875.

W. Dennison, [l. s.]

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

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

*Commissioners of the District of Columbia.*

*O.*O’Hare, [seal.]

*Contractor.*

Aug. 30 1875.

For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Owen O’Hare, that contract No. 835, in the series contracts made by the Board of Public Works of the District of Columbia, be, and the same is hereby, extended, with its various terms, conditions, and stipulations, to embrace the following work, to wit: Lay and put down a 12"-inch pipe-■sewer on F street, between 6th and 7th streets, N. W., where directed by the ■engineer of the District of Columbia. Also, grade, set curbs} lay brick pavements, pave the carriage-way, and construct 12''-inch sewers on Beall •street, between High and Washington streets, Georgetown, the surplus •earth to be deposited on Monroe street.

Also, lay brick foot-pavement on the north side of Stoddart street, between Congress and Washington streets, Georgetown.

It is further agreed that the work herein described shall be completed by ■the first day of November, 1875, under the penalty of forfeiture of all right and title to perform said work.

It is further agreed that the said Owen O’Hare shall receive tbe prices established and paid by the Board of Public Works for works of similar *665■character: Provided, That payments shall he made in the bonds issued by the sinking-fund commissioners of the District of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value.

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

W. Dennison, [l. s.].

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

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

Commissioners *of the District of Columbia.*

Owen O’Hake, [seal.]

*Contractor.*

[Memoranda in red ink, on the margin:]

Note: Jan’y 26, 1876, by order of Commissioners D. C., cancelled so far as relates to paving the carriage-way of Beall street Geo’town.

Cancelled by order of Commissioners D. C., so far as relates to Stoddart street, between Congress and Washington streets, Georgetown.

September 20, 1875.

Por and in consideration of - the stipulations hereinafter contained it is agreed by and between the Commissio'ners of the District of Columbia aud ■Owen O’Hare that contract No. 835, in the series of contracts made by the Board of Public Works of the District of Columbia, be, and the same is hereby, extended, with its various terms, conditions, and stipulations, to embrace-the following work, to wit:

Make spell repairs on Fayette street, between 1st and 7th streets, and Second street, between Fayette and Warren streets, Georgetown, as may be directed by the engineer of the District of Columbia.

It is further agreed that the work herein specified shall be completed by the first day of November, 1875, uuder penalty of forfeiture of all right and title to perform the same.

It is further agreed that the said Owen 0’IIare shall receive'the prices -established and paid by the Board of Public Works for work of similar character, provided that payment be made in the bonds issued by the sinking fund commissioners under aud by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds',shall be accepted and received at their par value. And provided further, that the total payment for work done on Fayette street, Georgetown, shall not exceed.thirty-two hundred and eighty-eight ($3,288.00) dollars in 3.65‘bonds.

In witness whereof the Commissioners of the District of Columbia, successors to the Board of Public Works, appointed under the act of Congress entitled “An act for the government of the District of .Columbia, and for -other purposes,” approved June 20, 1874, and the party of the second part *666to these presents have hereunto set their hands and seals this 20th day of Sept., 1875.

W. Dennison, [l. s. J

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

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

*Commissioners of the District of Columbia.*

Owen O’Hare, [seal.]

*Contractor.*

[Memorandum in red ink on margin:]

Note: Jan’y 26, 1876, hy order Commissioners D. C. cancelled so far as relates to paying the carriage-way of Beall st., Geo’town.

Dec. 27,1875.

For and in consideration of the stipulations hereinafter contained, it is agreed hy and between the Commissioners of the District of Columbia and Owen O’Hare, that contract No. 835, in the series of contracts made hy the Board of Public Works of the District of Columbia, he, and the same is hereby, extended, with its various terms, conditions, and stipulations, to embracb the following work, to wit: Grade, set curbs, lay brick pavements, construct the necessary sewers, and pave the carriage-way of Beall street, between Washington and Greene streets, Georgetown; also grade, set curb, and lay brick pavements on Beall street, between Greene and Monroe streets, the carriage-way and trees between Greene and Monroe streets not to be disturbed.

It is further agreed that the work herein specified shall be completed by the first day of November, 1875, under the penalty of forfeiture of all right and title to perform the same.

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

On August 13,1873, September 1, 1873, and December 1, 1873, tbe said parties entered into three other contracts, numbered, respectively, 849,881, and 990, each for the construction of certain other sewers and appurtenances, with the same prices and other stipulations as in the contract above set forth, and differing therefrom in no material respect, except in the location of the work to be done thereunder.

On May 19 and July 9,1875, the claimant and said Commissioners entered into the two several agreements, in writing, hereinafter set forth, purporting, severally, to be extensions of and having like specifications with the said contract 849, namely:

*667May 19, -1875.

For and in consideration of the stipulations hereinafter contained, it is-agreed hy and between the Commissioners of the District of Columbia and Owen O’Hare, that contract No. 849 in the series of contracts made by the-Board of Public Works of the District of Columbia be, and the same is-hereby, extended, with its various terms, conditions, and stipulations, to embrace the following work, to wit: Lay a'12-inch pipe sewer on W street, between 14th and 15th streets, NW. A 15-inch sewer on New Hampshire avenue from W to V street, NW., and an 18-inch pipe-sewer on V streets,, between New Hampshire avenue and 17th street, NW., with the necessary man-holes and traps, according to specifications hereunto annexed.

And it is understood that the work herein described is in lieu of similar work which was to have been done by the said Owen O’Hare on 19th street, NW. And it is understood that the work herein described is in lieu of similar work which was to have been done by the said Owen O’Hare on 19th street, NW. , .,

It is further agree#that the said Owen O’Hare shall receive the prices-established and paid by the Board of Public Works for work of similar-character : Provided, That payment shall be made in the bonds issued by the sinking-fund commissioners of the Tiistriet of Columbia under and by virtue of section 7 of the act of Congress approved June 20, 1874, which bonds shall be accepted and received at their par value.

* *#**• # ' # *n**

In witness whereof the said District of Columbia has caused this instrument to be signed by the Commissioners of said District, appointed under the act of Congress entitled "An act for the government of the District of Columbia, and for other purposes,” approved June 20, 1874, and the common seal of said District to be hereto affixed; and the party of the second part to these present’ has hereunto set his hand and seal this 19th day of May, A. D. 1875.

W. Dennison, [l. s.]

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

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

*Commissioners of the District of Columbia.*

Owen O’Hahe, [seal.]

*Contractor.*

There is attached to this extension the same specifications as to extension of No. 835, dated June 17th, 1875.

Cook & Cole, *Atl’ysfor Claimant.*

Aug. 9, 1875.

For and in consideration of the stipulations hereinafter contained, it is agreed by and between the Commissioners of the District of Columbia and Owen O’Hare, that contract No. 849 in the series of contracts made by the-Board of Public Works of the District of Columbia be, and the same is. *668hereby, extended, -with its various terms, conditions, and stipulations, to ■embrace the following work, to wit: Lay and put down a 12-inch pipe-sewer on each side of 16th street, between V street and Boundary, with necessary man-holes and traps, according to speci6cations.

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

In witness whereof this instrument is signed and sealed by the Commissioners of said District, appointed under the act of Congress entitled “An act for the government of the District of Columbia, and for other purposes,” approved June 20, 1874, and the party of the second part to these presents has hereunto set his hand and seal this 9th day of July, 1875.

W. Dennison, [l. s.]

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

S. *tí*Phelps, [l. s. ]

*Commissioners of the District of Columbia.*

Owen O’IIare, [seal.]

*Contractor.*

MEASUREMENT OP EXCAVATION POR SEWER TRENCHES.

IY. Neither under the administration of the Board of Public Works nor of the Commissioners were the excavations for sewer trenches actually measured. The amount was approximately ascertained by an arbitrary rule, technically called a constant, prescribed by the engineers. Under the Board of Public Works, during the performance of contract 835, such excavations were calculated and paid for according to a constant then adopted and followed by the engineers and apparently sanctioned by the Board. But some of the excavations made by claimant during the lifetime of the Board were not calculated until after the Commissioners, with Lieutenant Hoxie as engineer, came into power. *A*new constant was then prescribed by which the amount hitherto allowed was reduced nearly one-third. Thereupon the following correspondence and action took place relative thereto:

Washington, D. C., *December*4, 1874.

Hon. COMMISSIONERS:

' Gentlemen: Under the late Board of Public Works I was awarded, amongst other things, contracts Nos. *835*and 881, for pipe-sewering, with the prices then adopted by the late Board; with this understanding I executed said contracts with the full knowledge and understanding of the *669prices paid for such work — which prices covered certain width of trenches,, according to the different sizes and quality of pipe, namely:

12 inch pipe, 3 feet 10 inches in width — 1

íí *a 4 11 x Ul 11 “*

qg *u 11*4 *u*5 íí íí it

24 “ *“*5 *“*1 “ *“ “*&c., according to the size of pipe, based on the depth given hy the engineer.

With this understanding, I have complied with the above requirements andjfinishedthe above-named contracts, jvliich now appears, hy calculations returned hy the engineer on vouchers for said work, to have been made by a new scale adopted hy himself, which would reduce my accounts nearly one-fifth of the amount actually due me — this I claim as unjust, contrary to the stipulations, and in violation of the late act of Congress authorizing the execution of all unfinished contracts. If I am compelled to take the amount based on the calculation of the engineer,‘it would not actually pay for the cost of the work.

Hoping, gentlemen, that you will give this your early attention, I remain, very respectfully, your obedient servant,

Owen O’Hare.

This letter was referred to the engineer for report, to which he made the following reply:

Dec. 2,1874.

Respectfully returned to the hon. Commissioners of D. C., whose attention is invited to the enclosed report of the asst, engineer.

R. L. Hoxie,

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

Engineer's Office, *Washington, I>. C., Leo.*7, 1874.

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

*Engineer List, of Col’a:*

Sir : The statement of Mr. O’Hare, relative to the computation of sewer excavation, is in so far correct that the practice had obtained under the late Boaid of Public Works to estimate the trenches 20 inches wider at the bottom than the outside of the pipes or brick masonry. Under this practice the trench for a 12-inch pipe was computed 3 feet wide at the bottom, increasing in width at the top according to the depth of the sewer.

The practice was based on paragraph 12 of the specifications for brick masonry and sewers, and on paragraph 2 of specifications for sewer-pipe connections, and there was some reason for it as long as no rate had been established for shoring or for excavation in made ground.

In ordinary circumstances the amount of excavation thus computed was-largely in excess of the amount actually excavated.

Inasmuch as rates were established for shoring the excavation where the same was required by the nature of the ground, it was thought that no more should be allowed than the amount actually excavated; and all the computations have recently been made in accordance with this view.

B. Oertiy,

*Asst. Engineer.'*

*670December 16,1874, a copy of this report was sent to claimant, to which he made reply as follows:

WASHINGTON, Dec. 19, 1874.

Hon. Commissioners District of Columbia :

Gentlemen : In reply to your communication of the 16th. inst. in reference to contracts Nos. 835 and 881,1 have the honor to state that I have actually made the amount of excavation claimed in my letter. It therefore •did not require shoring, and I did not claim in my letter of the 4th inst. anything for such work, as I made the trenches at the old width at the bottom, with a corresponding increase to the top to avoid shoring, with the full understanding I was to he paid for the amount of excavation actually made.

If I am not allowed forjthe amount of excavation actually made I respectfully ask to he allowed for shoring at the rate of $1.08 per lineal foot.

Some of this work was done over one year ago, and as I have al ways endeavored to perform my work in a satisfactory manner, I respectfully ask the •earliest consideration of this matter.

I am, gentlemen, very respectfully, your obedient servant,

Owen O’Hare.

This letter was referred to the engineer, from whom was returned the following:

Dec. 19, 1874.

Respectfully returned to hon. Commissioners of D. C. After a reconsideration of this matter I am of the opinion that the account should stand as it now is.

R. L. Hoxie,

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

Respectfully referred to the engineer D. C., whose recommendation is approved.

By order.

Wm. TindalL, *Sev’y.*

Jany. 23, 1875.

The following notice was given to the claimant:

Jan. 27, 1875.

Mr. Owen O’Hare,

*Washington, D. C.:*

Sir : In reply to your communication o'f Dec. 19, snhmitting statements relative to your contracts No. 835 and 881 for pipe-sewering, you are respectfully informed that after a careful reconsideration of the subject the opinion is held that the account should stand as it now is.

By order of the engineer.

Rrank’n T. Howe,

*Chief Cleric.*

February 26,1875, the claimant was paid for this excavation through the Board of Audit, the amount being calculated ac*671cording to the Hoxie constant, and gave a receipt “ in full settlement of the above-stated claim.” By this new rule of measurement the claimant lost, on work done before its adoption $309.55. Some eight months after this change of rule claimant entered into the contracts called extensions of No. 835, set out in finding III, under which he performed a large amount of sewer excavation. He was paid on a measurement under the new rule without objection.

The rule of measurement first adopted was based on the supposition, regardless of the real fact, that trenches would be twenty inches wider at the bottom than the pipe, and sloping upward and outward, one foot in ten. What the new rule was does not appear, nor does it appear whether the old rule was adopted before or after the making of contract No. 835.

Prior to the adoption of the Hoxie constant the claimant was paid for sewer excavation by the Board of Public Works $2,639.13 more than he would have been entitled to if measured according to the Hoxie rule. The actual measurement was never made, but if made would not have exceeded the amount calculated by the Hoxie rule.

V. There is due the claimant for retains or admitted and unsettled account not elsewhere stated, $3,472.03. Also for retain of $287.79, on account of imperfect work on Beall street, which was afterwards made good. Also $242.20, for work on Stoddart, Beall, and Green streets. Making in all in this finding $4,002.02.

VI. Claimant was authorized by defendant in September, 1875, to furnish materials and lower the water main on Beall street. The engineers gave him the grade. After the job was partly completed the grade was lowered. The main was taken up and, after the trench was deepened, relaid. He was paid for the first lowering, but not the second. For this second lowering he charged $148. The bill for that amount was approved by the water registrar and was reasonably worth the amount charged. Some other small charges connected with this work, amounting in all to $98.20-, were properly disallowed by the water registrar. The account, except the said $148, was settled and paid to the claimant.

Claimant also furnished a trap and basin (Chase pattern) which in mistake was credited to him December 23,1875, at $71.75 instead of $114.58, the contract price. Also another *672trap and basin (old corporation pattern) credited in mistake at $96.04 instead of $146.38, the contract price; the two make an error of $93.67.

VII. In the summer of 1873 the claimant laid down water mains on Eighth, Ninth, Tenth, and H streets, northeast, furnished materials in part therefor, and did much other work connected therewith. ' Claimant did this work by the direction of Governor Shepherd, and claimed to have an oral agreement with him for special rates. The Board settled with and paid him at the rates established and paid by them for similar work. The prices paid were fair and reasonable. At the prices alleged to have been agreed upon the work and material would have made $1,089.35 more than the Board allowed and paid.

VIII. Claimant presents a bill of $210.70 for hauling curbstone from 6th street wharf to Georgetown. The hauling was done, but under the extension contract dated August 20, 1875, by which the claimant undertook to set the curb at a fixed price per linear foot, but in fact furnished it as well, and was allowed the full price established for furnishing and setting curbs, which included the expense of getting the curb to the place of setting.'

It does not appear that 177 square yards of cobble-stone were furnished to the District by claimant.

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

COUNTER-CLAIMS.

IX. For all sewer work done by the claimant under said contract 835, in alleys in the squares designated in said contract, and in his request aforesaid for increased compensation, he has been paid the prices specified in the contract, with 20 per centum in addition as agreed as aforesaid, and no claim therefor is now made. By mistake he was paid also at the same rate for the other sewer work described in said contract as set forth in finding II, amounting to $1,007.82, which sum defendant claims to recover back.

For all sewer work done under the several so-called extensions aforesaid of said contract 835, by the Board of Public *673Works and Commissioners of the District, he has been paid the prices specified in the extension, less such retains therefrom and balances as shall hereinafter appear.

That is to say, at the rates prescribed in the original contract No. 835 without the 20 per cent, increase. At the time he demanded no more. The prices prescribed in said original contract 835 corresponded with the prices established and paid by the Board of Public Works for work of a similar character.

X. The defendant claims to recover back $2,639 paid by the Board of Public Works for excavation in sewer trenches, measured by the engineers according to an arbitrary rule in excess of the actual excavation.

The facts are more fully stated in finding IY in connection with claimant’s case.

XI. Claimant was allowed by the Board of Public Works upon the report and certificate of the engineers $681.75 for damage and excavation of cavings in the progress of his work, which the defendant claims to'recover back. It does not appear whether the caving was caused by “the action of the elements” or by some fault or neglect of the defendant.

The claimant was also paid for excavations in certain made ground at the rate of 50 cents per cubic yard instead of 40 cents. These items and prices were certified to by the proper engineers and payment authorized by the Board of Public Works. For what reason these sums were allowed by the Board does not appear. The whole allowance amounted to $838 in excess, which the defendant seeks to recover back.

XII. In 1875, upon the report and certificate of defendant’s engineers, the claimant was allowed and paid for shoring in various places the aggregate sum of $5,929.89. Whether the shoring was left in the trenches or not does not clearly appear.

XIII. In the summer of 1873 the claimant, by oral direction of Governor Shepherd, laid water mains on Eighth, Ninth, Teuth, and H streets, northeast, and furnished some material. He made out and presented an itemized bill therefor at prices alleged to have been agreed upon by Governor Shepherd himself. The bill was considered too high, and by the advice of the inspector of water mains, under whose supervision the work was done, it was reduced by the Board of Public Works to conform to the prices established and paid by them for similar work. The bill, thus reduced, was paid to and accepted by the *674claimant without objection. The amount thus paid was a fair and reasonable compensation for the work and material. In June, 1874, the claimant again presented the portions of this bill which had been disallowed. It was approved in part by the registrar of water mains to the amount of $703.35 and sent to the Board of Public Works. By the Board it was referred to their auditor, but never acted upon either by the Board or auditor. February 13, 1875, it was paid in mistake of fact by the Board of Audit.

December 27, 1873, claimant presented another bill for alleged extra work on the same job, for taking up pavement through which the trenches were dug, amounting to $301.20. The bill was never allowed by the Board nor approved by the auditor or engineers, and appears to have been included in the work already settled for. It was paid by the Board of Audit in mistake of fact.

XIV. Under contract 835 the claimant was required to clean up the alley in square 398, but wholly neglected to do so, and the defendant was compelled to have the work done by other parties, wnich was done at a cost of $49.06.

XV. The counter-claim of $80 for error on voucher 19507 is admitted.

*Mr. C. O. Gole*and *Mr. W. A. Ooolc*for the claimant:

1. The claimant asks judgment for $3,327.15 on account of ^extra excavation; for $10,943.48 on account of the increase of :20 per centum on the prices of contract No. 835; for $3,472.03 «on account of the amounts retained by the defendant at various ■ times as a guarantee for good work and material; for $252.84, with interest thereon from January 17, 1876, for hauling curb; :.for $287.79, with interest thereon from January 17, 1876, for . amount deducted from sum then due him on account of alleged «defect in work which was afterwards remedied; for $177, with ■.interest thereon from the 24th day of January, 1876, for cobble¡stone belonging to him and used by said District and not accounted for; for $290.64, with interest thereon from the 28th day of January, 1876, for work done on Stodart, Beall, and Green streets, Georgetown; for $306.64, with interest from the 12th day of January, 1876, amount of deductions erroneously .madefrom price of work done on Beall street, between Monroe *675and High streets, Georgetown; for $1,089.35, with interest thereon from the 4th day of September, 1873, for other work and material. •

2. Because no opportunity was afforded claimant to examine the accounts mentioned in this cause, before receipting for the sums paid him thereon, the said .vouchers or accounts are not to have in law the force or effect of accounts stated or settled, but are open to investigation and .settlement as if no statement or settlement of the accounts had ever been attempted. (1 Sto. Eq. Jur., §§ 526, 527, *527a,*and authorities there cited.)

Even if the general rule applying to settled or stated accounts is applicable to the accounts mentioned in this suit, the evidence shows clear errors and mistakes therein, in the amounts and particulars hereinbefore specified, which ought to be corrected under the ordinary rule in equity. (1 Sto. Eq., §§ 523, -524, 525, and authorities there cited.)

3. The evidence offered by the defendant in support of the plea asking for a reformation of the contract No. 835 is incompetent and inadmissible, and if -admissible is insufficient to sustain the plea. *(Harvey*v.- *United States,*13 O. Gis. JR., 322; *Brawley*v. *United States,*96 TT. S. E., 168; *Snell*v. *United States,*98 ibid., 85; Adams’s Equity, top page 339, and note; *Qrym.es*v. *Sanders,*93 IT. S. E., 55; *Beaumont v. Brawley,*1 Turn. *&*Russ., 41 *West*v. *Érrissey,*2 P. *Wms.,*349; *Gillespie*v. *Moon, 2*Johns., ch. 593; Bisp. Eq., 244, 247; *Glass*v. *Sulburt,*102 Mass., 24.)

4. The defendant’s plea of set-off is not sustained by the evidence.

5. Contract 835 with all its extensions, as each subsequent •extension refers to the original contract, should all be read together, the same as if they were all embraced in one paper and were different parts of the same contract. (2 Pars, on Cont., 502 510, and authorities there cited.)

The whole should be considered in determining any of its facts. (2 Pars, on Cont., 501, 513, and authorities there cited.) Effect should be given to every part of the contract, if this be possible. But if the clauses be found repugnant, then the earlier clause is to prevail. (1 Chitty on Cont., 127, 128, and authorities there cited.)

If the meaning of the contract be doubtful, that construe*676tion should be adopted most favorable to claimant. (2 Pars, on Cont., 505; *Noonan*v. Bradley, 9 Wall., 394, 407.)

The court may consider surrounding circumstances in aid of construction. *(Reed*v. *Ins. Go.,*95 IT. S. B., 30; *Olarhson*v. *Stevens,*106 ibid., 505.)

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

1. The extensions of contracts provide their own prices, and they are paramount. At these rates settlements have been made without objection by the claimant, which action amounts to a contemporaneous construction by the parties and must control.

2. The contract does not justify the payment for sewer-trench excavation beyond the amount actually excavated, and the practice of the engineers’ office cannot add to the terms of the contract. The question of this allowance having been the subject of dispute between the parties, and having been adjusted,, its settlement amounts to an accord and satisfaction and cannot be disturbed.

3. The contract should be reformed as claimed by the defendants to conform to the clear intent of the parties.

4. The payments for sewer-trench excavation upon an exorbitant theory of measurement not being sanctioned by the contract, and being in excess of the work done, can be recovered back.

5. The allowances for shoring in violation of the terms of the specifications can be recovered back as money had and received without consideration.

6. The other items of counter-claim having been paid in clear mistake of fact, and without consideration, can be recovered back.

OPINION.

Scofield, J.,

delivered the opinion of the court:

In this case the parties are wide apart. The demands of the claimant, according to his amended brief, amount to $15,017.78. The defendant, while contesting them all except $4,002.02, sets up counter-claims amounting to $13,049.30. In disposing of the disputed items we are required to revise and rejudge the *677decisions, settlements, and allowances made by the Board of Public Works, or by the Commissioners, engineers,, and auditor of the District, or by the Board of Audit. The accounts are numerous and stale,, and the evidence scanty, confused, and contradictory.

In matters of counter-claim the burden of proof is upon the defendant. Evidence that would not justify a finding for the claimant were he in the affirmative of the issue may still be too weak to justify a finding against him where the defendant is in the affirmative. Under this rule we have been constrained to leave undisturbed payments- of a questionable character which have been authorized by some of those officers.

The three items of claim set out in finding Y are not in controversy. They amount to $4,002.02.

The first item in dispute is dependent upon the construction to be given to claimant’s agreement to “receive the prices established and paid by the Board of Public Works” in the several extensions of contract No. 835, taken in connection with the modification presented in finding II. Contract No. 835 is in finding I, and its many extensions in finding III. The claimant contends that all these extensions are brought under the 20 per cent, modification, and for all sewer work done under them he is entitled to 20 per cent, upon the prices allowed in the original contract No. 835. The defendant has already paid all but the 20 per cent. The 20 per cent, additional on the work done amounts to $5,530.69. The following is the modification :

> *Extension of contract.*

> No. 835.

> It is hereby agreed that this contract, .with its various terms, conditions, and stipulations (except as respects the time of execution), shall he modified and extended so as to embrace an increase of twenty per centum upon the prices in the foregoing contract.

> Witness our hands and seals the eighteenth day of October, A. D. 1873.

Here is one of the extensions. So far as this question is concerned, they are all alike:

> *Extension of contract Eo.*835.

> June 17, 1875.

> For and in consideration of the stipulations hereinafter contained, it is agreed, by and between the Commissioners of the District of Columbia and *678Owen O’Hare, that contract *No. 835*in tlie series of contracts made by the Board of Public Works of the District of Columbia be,' and the same is hereby, extended, with its various terms, conditions,' and stipulations, to embrace the following works viz: Lay and put down a 12-inch pipe-sewer in the alley in the square *No.*278.

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

We do not understand that tbe “prices established and paid by the Board of Public Works” refer simply to the prices agreed upon in contract No. 835, either by itself or with its modification. Independent of that particular contract, the Board had established a scale of prices, as shown in finding IX, to which that contract itself conformed. If it had been the intention to pay the prices of No. 835, with the 20 per cent, modification, it was not only unnecessary, but confusing, to insert the words “prices established and paid.” They seem to have been inserted to avoid such a conclusion. If the parties had so agreed, they would most certainly have added “ with 20 per cent, additional.”

At that time claimant had two other contracts, as appears in finding IY, dated August 13, 1873, and September 1, 1873. They were for sewer work at the prices named in the original of No. 835. He did not even request to have the prices increased. He made another contract for similar work December 1, 1873, at the same prices. These contracts also had extensions in which it was stipulated that claimant should “receive the prices established and paid by the Board of Public Works,” not the prices agreed to in No. 835. That contract conformed to the standard prices, but it did not establish them. At that time the claimant himself must have understood the extensions as the defendant now understands them, for he settled all this work at the established prices, not only without complaint but without any suggestion that he was entitled to 20 per cent. more. This item of the claim must therefore be rejected. In arriving at this conclusion, we consider the modification as it stands in the findings. The question as to its reformation is discussed in another place.

The second item of claim consists of an alleged undermeasure*679ment of tbe excavation in sewer trenchés. The facts appear in-finding IY. For pipe sewers, the width of the trenches was not. definitely fixed by contract, nor by the subsequent direction of the engineers; nor was it the practice of the engineers to measure the amount of excavation by the size of the trench. They measured or calculated according to an arbitrary rule, called in engineering parlance a constant. The constant adopted and followed by the engineers, under the Board of Public Works assumed the trench to be 20 inches wider at the bottom than the pipe, with a slope upward and outward of one foot in ten. To the contractor a narrow trench had some advantages and some disadvantages. He had to move less earth, but the danger of caving was increased and the safety and comfort of the workmen diminished. He might have his choice, but, whether wide or narrow, by this constant the trench yielded the same amount of measured excavation. Under contract No. 835 the claimant made narrow trenches, but' during the administration of the Board of Public Works the excavations were measured by this constant and he was paid accordingly. At the time the Board was abolished there was some of this excavation not yet measured. The Commissioners, under the advice of Lieutenant Hoxie, adopted a different constant, arbitrary like the other, but approximating more nearly the actual excavation. By this constant claimant’s allowance for excavation was greatly diminished. He remonstrated earnestly, but finally accepted the amount offered.

By the terms of the contract the parties were to abide the measurement of the engineers, but this, as we held in the *Neitzey Case*(17 C. Cls. R., 111), is not conclusive. The claimant having incurred the danger and inconvenience of narrow trenches while the former constant was in practice, was entitled to be paid by it for all work done prior to the change. The amount to be allowed is $309.55.

The sewer excavations subsequent to the change of constant were under extensions made long after. In these he contracted with a full knowledge that excavations were to be measured by the Hoxie constant, and has no right to complain.

The claim of $148 for lowering the water main on Beall street a second time, and the claim of $93.67 for the difference between the amount paid and the contract price for two traps and basins, as shown in finding YI, are proper charges.

*680The claim for hauling curb-stone from Sixth street wharf to Georgetown and the claim for 177 yards of cobble-stone, on the facts presented in finding YIII, and other claims, amounting in all to $1,089.35, on the facts presented in finding VII, should not be allowed.

counter-claims.

In the first item of the counter-claims the defendant seeks to recover back $2,639 paid to the claimant for alleged excess in measurement of sewer excavation. Until the Commissioners came into power the claimant was allowed for narrow trenches, by a constant adopted by the engineers for the measurements of his work, more than the actual amount of excavation as shown in finding IV. In.this there was no fraud on the part of the claimant and no mistake of fact on the part of the engineers. After the Commissioners came in the constant was changed, but this work was done, the amount understandingly calculated by the engineers, and allowed by the Board of Public Works before the change. The question is more fully discussed in another place. As there stated we think the claimant is entitled to this measurement for all work done before the change. This item of the counter-claim is not allowed. .

By the second item of the counter-claim the defendant seeks to recover back $5,929.89 paid the claimant for shoring claimed to have been left in the trenches. This sum was paid at different times on the report and certificate of the engineers,'approved by the Commissionei s. The defendant alleges that the certificates were false and the payments were made in mistake of fact. As the amounts have been paid, and, if the certificates are true, properly paid, it devolves upon the defendant to prove them false. If the shoring was left in the trenches the payments were properly made; if not, they should be refunded. In the conflict of evidence the court has not been able to find as a fact, as appears in finding XII, that the engineers made false certificates, nor that the shoring was not left in the trenches. This item of counter-claim is therefore not allowed.

Third. The claimant was paid by the Board of Public Works $681.75 for excavation caused by caving of the trenches;, also, $838 in excess of 40 cents a cubic yard for excavation in made *681ground, and calculated at 60 cents a cubic yard. The defendant contends that these two sums were paid in violation of article 6 of the specifications and the agreement for 40 cents a cubic yard for excavations, and should be refunded. The facts are stated in finding XE. It does not appear whether the caving was caused by “the action óf the elements” or by some fault of the defendant. By the terms of the contract claimant was to be paid only 40 cents a cubic yard for excavation, but the Board rate for made ground was 60 cents a cubic yard. The engineers certified to both bills, and the Board of Public Works approved them, for what reasons does not appear. It might have been for some action, fault, or néglect of the defendant. It does not appear to have been paid in any mistake of fact, and cannot be recovered back.

The fourth item of counter-claim is based upon the facts set out in finding XIII. \

In the summer of 1873 the claimant, by the oral direction of Governor Shepherd, furnished materials and laid water mains on Eighth, Ninth, Tenth, and H streets. He made out and presented au itemized bill at prices alleged to have been agreed upon between Governor Shepherd and himself. The bill was considered too high by the Board of Public Works, and was reduced to conform to prices established and paid by them for work and materials of a similar character. The bill thus reduced' was paid to and accepted'by the claimant without objection. The amount thus paid was a fair and reasonable compensation for the work and materials. The agreement of Governor Shepherd for higher rates, if any such were made, was entirely void. *(Neuchatel Paving Company*v. *the District of Columbia,*17 C. Cls. R., 386.) Subsequently the claimant presented two bills, one of $301.20, and the other of $703.35, growing out of the same transaction, the most of which had been disallowed and rejected from his original bill, and all of which had been included in the settlement and paid for at fair and reasonable rates established by the Board. These two bills, amounting together to $1,004.55, not having been again acted upon by the Board, were presented by the claimant to the Board of Audit and paid in mistake of fact. In the opinion of the court the defendant is entitled to recover back this amount.

The fifth item of counter-claim grows out of an alleged mistake in the modification of contract No. 835. No work was *682embraced in that contract except the laying of sewers. Part of the sewers were to be laid in streets and part in alleys. The contract is dated August 12,1873. The modification, which is dated October 18,1873, originated, as appears in finding II, in the following manner: October 13,1873, the claimant addressed to the Board a letter in the nature of a petition, requesting that he be allowed an additional “price for sewering in alleys in squares 397, 398, 420, 421, 422, 444, 445, and 446.” He gave as the reason of this request, that the alleys were so narrow that there was no room to pile the earth; that it had to be carried off and afterwards brought back to fill the trenches. On the next day the Board referred it to the engineer, who reported on the 16th and recommended “that in those narrow alleys where dirt can hardly be piled, the regular price be increased 20 per centum.” On the 17th the Board resolved to increase the price 20 per centum in these alleys. They notified the claimant on the same day, in which notice they repeated the numbers of the squares-in which the alleys were. They also directed the engineer to have the modification prepared. On the 18th the engineer informed the contract clerk in writing that the “Board had increased the rate for sewering in alleys in squares 397, 398, 420, 421, 422, 444, 445, and 446 20 per cent.,” and directed him to have the amendment prepared. On the same day the modification was sent in to the Board from the contract clerk. It was on a printed blank on the top of a half sheet of foolscap paper, and the blanks for the signatures were upon the back. Without careful examination, the parties signed it in mistake, supposing that it was written according to order. After the order to amend the contract was given, there had been no consultation among themselves and no communication with the claimant before signing. The claimant’s signature was scarcely necessary. Stripped of unnecessary verbiage, it is a simple concession to the claimant. It gave him 20 per cent, additional for work he was already bound to do without it. It was without consideration appearing on the paper, and his signature was only necessary to bind him not to refuse the 20 per cent. But no objection is now made to it on that account.

We are therefore of the opinion that the contract should be reformed by inserting after the word “prices” the words and figures following: “For sewering in alleys in squares 397, 398, *683420, 421, 422, 444, 445, and 446.” The Board of Public Works paid for all sewer work done in these alleys, with the 20 per cent, addition. Certificates of measurement and amounts due, according to the prices in the original contract for sewer work done on the streets, were also Blade out by the engineers'. These certificates were laid before the Board of Audit. This Board, after examining the modification, and, unaware of what was behind it, added the 20 per cent., and it was thus paid. This was done in mistake of fact, and by the terms of tbe reformed contract the defendant is entitled to recover it back. The amount is $1,007.82.

The court, upon due consideration of the premises, order, adjudge, and decree that the contract between the parties, known as the extension of contract No. 835, and dated October 18,1873, be reformed by inserting after the word “prices” the words and figures following, to-wit: “For sewering in alleys in squares 397, 398, 420, 421, 422, 444, 445, and 446.”

And it is further ordered, adjudged, and decreed that the claimant be allowed upon his several claims the sum of $4,553.24, and that the defendant be allowed upon the several counterclaims the sum óf $2,141.43; and that upon the whole case the claimant have and recover from the defendant the balance of his claims over and above the counter-claims in the sum of $2,411.81. . -