Plaintiff and the Board of Public Works of the defendant entered
into a contract by which plaintiff was to do certain work on a
street in the City of Washington and receive payment therefor at
the rate of 30 cents per cubic yard for grading, and 40 cents per
cubic yard for excavation and refilling, to be measured by
excavation only. The Board had before then entered in its record
and notified its engineer, auditor and contract clerk that for rock
excavation contractors should be paid $1.50 per cubic yard in
ditches and sewers, and $1.00 per cubic yard in street grading,
etc. Plaintiff did his work, was paid at the contract price, and
brought this action to recover for rock excavation, claiming that
it was outside of the contract.
(1) That it was not outside of the contract.
(2) That the Act of February 21, 1871, 16 Stat. 419, c. 62,
forbade the Board
Page 127 U. S. 410
to contract except in writing, and forbade the allowance of
extra compensation for work done under a written contract.
(3) That the entry in the journal of the Board could not affect
plaintiff a contract.
The case is stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
On the 23d day of July, 1872, Robert H. Ryan, since deceased,
entered into a contract with the board of public works of the
District of Columbia to do certain work for the improvement of New
Jersey Avenue, in the City of Washington, from B Street south to
the Potomac River. The different kinds of work required were
stated, and the prices for each specified, among which were
"grading, 30 cents per cubic yard," and "excavations and refilling,
40 cents per cubic yard, to be measured in excavating only." It is
conceded that Ryan performed the work pursuant to the contract, and
has been paid the amount agreed upon. The present claim is for
extra work on the avenue "in grading or excavating stone or rock,"
for which it is contended there is no provision in the contract.
The board had entered in its journal, before the contract was made,
"Chief engineer was notified that the following price was
established for rock excavation, viz.,
in ditches for
sewers, etc., $1.50 per cubic yard; cutting down streets and the
like, $1.00 per cubic yard. Auditor and contract clerk
And Ryan contended that he was therefore entitled, for all rock
excavations, to one dollar a yard, instead of the price specified
in the contract for grading and excavating, the difference being
To this contention there are two answers. In the first place,
the "grading" and "excavation" specified in the contract are not
limited to work done in sand or gravel or earth free from stone or
rock. It might reasonably be expected
Page 127 U. S. 411
that more or less stone or rock would be found in the progress
of the work, and the price was evidently fixed upon its supposed
average character. In the second place, the Act of Congress of
February 21, 1871, "to provide a government for the District of
Columbia," in force at the time, required that all contracts by the
board should be in writing, be signed by the parties making the
same, and a copy thereof filed in the office of the secretary of
the District, and it forbade the allowance of any extra
compensation for work done under a contract. 16 Stat. 423, c. 62,
§§ 15, 37.
The entry in the journal of the board was no part of the
contract with the claimant, nor could it in any respect control the
construction or limit the effect of such contract. The board could
not in that way either make a new contract or alter the one
previously made, so as to bind the District. Barnes v. District
22 Ct.Cl. 366.