Hemingway v. Stansell,
106 U.S. 399 (1883)

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U.S. Supreme Court

Hemingway v. Stansell, 106 U.S. 399 (1883)

Hemingway v. Stansell

Decided January 8, 1883

106 U.S. 399


1. A board of commissioners, one from each of five counties, having been incorporated by a state statute to construct and maintain levees, with authority to make contracts for the doing of the work and having made such a contract, and been sued in equity thereon in the district in which the domicile of the board was established by its act of incorporation, by persons residing out of the district, a subsequent statute of the state abolished the offices of the commissioners and constituted the treasurer and the auditor of accounts of the state ex officio the levee board, with the declared purpose "to substitute the treasurer and auditor in place of the board of levee commissioners now in office," and a bill of revivor was filed against them by leave of the court. Held that the suit might be prosecuted against the new board, although both the treasurer and the auditor resided out of the district, and that an appeal from a final decree for the complainant might be taken by the treasurer and auditor, describing themselves by their individual names, and as such officers, and as ex officio the levee board.

2. A board of commissioners, authorized by statute to make contracts for the building of levees, and to borrow money, issue bonds, and sell and negotiate them in any market, but not at a greater rate of discount than ten percent, may make a contract for the work at certain prices by the cubic yard, payable in such bonds, and may afterwards amend that contract by inserting "at the rate of ninety cents on the dollar" and issue bonds to the contractors accordingly, upon being satisfied that such was the agreement actually made between the parties, although the work is actually done by subcontractors for lower prices in cash.

3. A board of levee commissioners made a settlement with contractors employed to do the work on certain levees by which it paid them a certain sum and took a receipt in full of all demands. The parties afterwards executed an agreement under seal reciting the settlement and receipt in full of all demands, a complaint of the contractors that injustice had been done them in that settlement, and the desire of the board to do full justice, and stipulating that two engineers, one designated by each party, should measure the work done, and render to the parties an estimate of the amount due to the contractors for such work according to the original contract; that if this should differ from the amount already paid, the difference should be paid or refunded accordingly, and that these two engineers and a third, to be agreed on by them, should be arbitrators for the adjustment of all questions of difference; that, in the adjustment of questions pertaining to the measurement,

Page 106 U. S. 400

the contractors should have the privilege of introducing all proper evidence, and the board of rebutting that evidence, and that, before proceeding with the measurement, the contractors should give written notice to the board of the points to be proved and the character of the evidence to be offered. The contractors thereupon gave notice of their intention to introduce proof of several matters, some of which did not concern the measurements, to which the engineer of the board objected, and the arbitration fell through. Held that the settlement and receipt bound the contractors as an accord and satisfaction, and they could not maintain a suit upon the original contract to recover further compensation for the work.

The facts are stated in the opinion of the Court.

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