A proposition to pave streets in a municipality, made in writing
by a contractor to the head of a board consisting of several
members which by law was charged with the care and paving of the
streets, although considered and agreed to by the head of the board
and although by his directions the secretary of the board wrote
under it that it was "accepted by order of the board" and affixed
his signature as secretary thereto, is not a "contract in writing
signed by the parties making the same" if the action of the
secretary was made without official acceptance of the proposition
by the board and without authority from them to write it.
On the facts in this case, the Court holds: (1) that the alleged
contract with the Board of Public Works was not a valid contract;
(2) that it was never ratified by the board; (3) that it was never
ratified by Congress; (4) that the portion of the plaintiff's claim
which was for work performed was rejected by the Board of Audit,
and that the Court of Claims was therefore without jurisdiction to
entertain it.
The case is stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This is an appeal from a judgment of the Court of Claims
dismissing the petition of the appellant, Talmadge E. Brown, who
sued in that court to recover a judgment against the District of
Columbia, appellee, for $200,000, in satisfaction of his claim for
damages for breach of an alleged contract and for work and labor
performed and materials furnished in the paving of certain streets
in the Cities of Washington and Georgetown. The petition was filed
November 16, 1880, and contains four counts, the first of which is
in substance as follows: that
Page 127 U. S. 580
from 1869 to 1874, inclusive, petitioner, William W. Ballard,
and Edward L. Marsh, all of whom were citizens of the United
States, were in partnership under the name of the Ballard Pavement
Company, their business consisting in grading, paving, etc.,
streets, sidewalks, etc.; that on or about December 10, 1872, said
company made and completed a contract with the District of Columbia
whereby said company became bound to pave with wood pavement such
streets, or parts of streets, in the Cities of Washington and
Georgetown in the said District of Columbia, as the Board of Public
Works of said District should designate from time to time, to the
amount of 75,000 square yards, said work to be assigned and
completed during 1873, and at the price of $3.50 per square yard,
and also to do such grading, hauling, filling, and setting of
curbing on the streets paved by said company, and at the board
prices, as the said Board of Public Works should order or direct;
that by the terms of said contract, the said work was to be paid
for as the same progressed; that at the time the said Board of
Public Works of the said District of Columbia made and entered into
said contract with said pavement company, the said board had full
power and authority to make the same in the manner and form the
same was made, and that said contract was in the words and figures
following, to-wit:
"
The Ballard Pavement Company, Washington, D.C.:"
"Your proposition of this date, as follows:"
" The Ballard Pavement Company hereby make proposals for the
following work, with accompanying conditions:"
" We will put down preserved wood pavement as follows: the
Ballard block, the Perry block, or the wedge-shaped block, such as
laid by Filbert & Taylor, in this city, as the contractors may
elect either to stand five inches high for three dollars and fifty
cents per square yard, and we hereby ask for seventy-five thousand
square yards, contractors to have during the year 1873 within which
to complete this work, the board not to stop the work without a
gross violation of the contract on the part of the contractors, the
streets to be designated by the board at such times as the
company
Page 127 U. S. 581
shall be ready to commence work, said work to be paid for as the
same progresses."
" We also hereby apply for a separate and a further contract for
so much of the grading, hauling, and filling as is not embraced in
the contract for paving, and for setting the curbing on the
streets, to be paved by us at board prices, subject to the
conditions of the paving contract"
"is this day accepted."
"By Order of the Board:"
"CHARLES S. JOHNSON"
"
Ass't. Secretary"
The petition then alleges that in pursuance of said contract and
in part execution and performance thereof, said Board of Public
Works designated nine different pieces of work to be done by the
company, all of which was done by it, to an aggregate amount of
about 35,000 square yards, and that said company was prepared and
ready to do all the rest of the 75,000 square yards specified in
said contract, but that said Board of Public Works failed and
refused to designate any more work to be done by the company,
whereby said company was damaged in the sum of $100,000; that said
contract of December 10, 1872, was in effect ratified and
confirmed, and the right of action thereon recognized and approved,
by virtue of several acts and resolutions of Congress, among which
are the Act of June 20, 1874, resolution of December 21, 1874, Act
of March 3, 1875, joint resolution of March 14, 1876, Act of June
11, 1878, and the Act of June 16, 1880, and that the claims herein
made were never rejected by the Board of Audit. The petition then
alleges that on the 20th day of June, 1874, said W. W. Ballard and
E. L. Marsh, for a full and valuable consideration, sold and
assigned in writing all and singular their respective rights,
interests, and claims in and to the cause of action herein set
forth, whereby the plaintiff, Talmadge E. Brown, became the sole
owner of said claim and cause of action, and is now the owner
thereof, and has made no assignment or transfer of the same or any
part thereof to anyone, but still owns and holds the whole thereof
in his own right.
Page 127 U. S. 582
The matters set up in the second, third, and fourth counts of
the petition (which are, as claimant states, "only different forms
of statement for the same claim") have relation to the work done by
the pavement company under the alleged contract of December 10,
1872, amounting in value to $129,569.85, for which they received
certificates of the auditor of the board, that they afterwards sold
in the market for about 50 cents on the dollar, realizing therefrom
only $69,784.92. The second count relates to the work actually
done, and avers that only one-half thereof has been paid for. The
third count sets up the doing of the work and the issuance of
auditor's certificates therefor under such circumstances as are
claimed constituted the company an agent for the District to
dispose of the certificates at their value, which was 50 cents on
the dollar. And the fourth count sets up the doing of the work, the
issuance and delivery to the pavement company of auditor's
certificates, which are claimed to have been chattels, and a
commodity only, and which were worth 50 percent of their face
value. It is to recover from the District of Columbia the other
half of the value of these auditor's certificates that the claimant
brings this action on these three counts.
To this petition the District of Columbia interposed a general
denial and also a special plea to the first count thereof which set
up a former adjudication of the matters involved in said first
count in the Supreme Court of the District of Columbia. Replication
was filed, issue was joined, and, the case having been heard before
the Court of Claims, that court, upon the evidence, found in favor
of the District of Columbia and rendered judgment dismissing the
claimant's petition. The separate findings of fact of the court
below are seventeen in number and are too lengthy to be
incorporated in this opinion. The material facts will be referred
to as we proceed.
The decision of the Court of Claims was based upon three
grounds: (1) that the contract sued on was not a contract made with
the Board of Public Works of the District of Columbia, and was not
one in writing, as contemplated in § 37 of the Act of February 21,
1871, 16 Stat. 419, 427, (2) that the claim set up in the first
count of the petition was
res adjudicata, it
Page 127 U. S. 583
having been once adjudicated by the Supreme Court of the
District of Columbia adversely to the Ballard Pavement Company, of
which the plaintiff below is the successor, and (3) that under the
Act of June 16, 1880, § 8, 21 Stat. 284, 286, the Court of Claims
was prohibited from taking jurisdiction of the claim set up in said
first count because that claim had been once rejected by the Board
of Audit of the District of Columbia.
The decision of the court was clearly right, and the principles
on which the learned judge based his conclusions are clear and
undeniable.
The appellant contends that the alleged contract sued upon meets
the requirements of § 37 of the act of February 21, 1871, which
provides that
"All contracts made by the said Board of Public Works shall be
in writing, and shall be signed by the parties making the same, and
a copy thereof shall be filed in the office of the Secretary of the
District,"
and that the contract sued upon being a formal proposition in
writing, and an acceptance thereof in writing signed by the
secretary of the Board, whose authority to sign the same is not
denied and whose genuine signature thereto is admitted, was a valid
contract binding upon the parties.
Numerous authorities are cited to show that the written
acceptance by one party of a written proposal made to him by
another party creates a contract of the same force and effect as if
formal articles of agreement had been written out and signed by
said parties. The legal principle asserted is sound, but the
fallacy of the argument lies in the assumption that the proposition
of the pavement company was in fact submitted to the board, and
that the latter did in fact authorize the letter to be written by
Secrectary Johnson accepting the said proposition. Are these
assumptions borne out by the evidence adduced at the trial? Upon
this point, we quote from the second, third, fourth, fifth, and
sixth findings of facts:
"In the early part of that month (December 1872), the said
William W. Ballard and the claimant were in the City of Washington,
and they had verbal negotiations with Alexander R. Shepherd, then
and afterwards a member and Vice-President of the Board of Public
Works of the District of Columbia,
Page 127 U. S. 584
which negotiations led them to write and send to that board a
paper, a copy of which is given in the letter signed 'Charles S.
Johnson, Ass't Secretary.' [This letter is quoted in the early part
of this decision.] The said Charles S. Johnson was a clerk in the
employment of the Board of Public Works, and was styled 'assistant
secretary.'"
"The journal of said board does not show that said proposition
was ever before the board; nor does any acceptance thereof by the
board appear otherwise than by the statement of said letter; nor
does it appear that said Johnson was authorized by said board to
write said letter, unless it should be inferred from his being a
clerk of the board and styled assistant secretary; nor does it
appear that the board or any member of it except Alexander R.
Shepherd either saw or knew of said letter before or on the said
10th of December, 1872; nor can the original proposition, as drawn
up by the claimant and said Ballard, be anywhere found among the
papers or files of the board or of the District of Columbia, though
searched for there; nor can any copy of said Johnson's letter be
found in the books or files of the board or of the said District,
though searched for there, and though it was the practice of the
board to keep press copies of the letters that went out of its
office."
"In all the transactions hereinafter set forth connected with
the matter of paving streets by the said company, it does not
appear that any member of the company was before the said board at
any meeting thereof in relation to that work. Their intercourse in
regard to it was almost wholly with said Alexander R. Shepherd. It
took place sometimes at his store and sometimes at the office of
the board. When it took place at his store, it does not appear that
any other member of the board was present. When it took place at
the office of the board, if other members of the board were present
and any member of the company spoke to them about the matter of
that work, they would refer him to said Shepherd. When the company
desired work to be designated for them to do, they called on said
Shepherd, supposing that whenever he said anything about the work
in the District, he represented the Board
Page 127 U. S. 585
of Bublic Works -- was the mouthpiece of the board. The said
company, after receiving said Johnson's letter, proceeded to make
preparations for laying down wooden pavement on streets in the
District of Columbia, and made a contract for three million feet of
lumber, estimated by them to be sufficient to make 75,000 square
yards of pavement. In the spring of the year 1873, the company
notified the board through said Shepherd that they were ready to
proceed with the work of paving streets, and requested that such
work should be designated for them to do, but none was designated
until the latter part of June or beginning of July, when some parts
of streets were designated and the company entered on the work of
paving them. After doing so and before they were allowed to receive
any certificates of measurement showing work to have been done,
they were required to enter into a written contract embracing the
work and to give bond for its performance. They at first declined
to sign such a contract, claiming that the terms contained in it
were different from those of their proposition of December 10,
1872, but they afterwards signed the following contracts."
The findings set out in full the contracts, and further show
that the company entered into five of such contracts with the Board
of Public Works, the first bearing date July 5 and the last
December 19, 1873; that all the work done by the company and every
yard of pavement laid by it were done and laid under one of those
several contracts; that every engineer's certificate of measurement
gave on its face the number of one of those contracts as that under
which the work named in the certificate had been done; that the
company signed a receipt for every such certificate, and that upon
those certificates the company received the auditor's certificates,
which they voluntarily sold on the market for about 50 cents on the
dollar.
In the face of these facts, found almost wholly from the
evidence on the part of the claimant, we are of the opinion that we
would not be justified in finding that the alleged contract of
December 10, 1872 -- the one sued on here -- was such as the
statute prescribes, or that it was a valid contract in any
respect.
Page 127 U. S. 586
By the 37th section of the Act approved February 21, 1871, the
Board of Public Works is provided for, to consist of five persons,
whose duties and powers it is said shall embrace the regulation and
repair of the streets and highways of the District of Columbia. In
Barnes v. District of Columbia, 91 U. S.
540, this Court held that under that act, the Board of
Public Works was not an independent body acting for itself, but was
a part of the municipal corporation of the District of Columbia, to
which was given the exclusive control of the streets and alleys;
that in those matters, the board acts as the representative of the
corporation, or is "like an ordinary agent of the corporation." We
have seen from the findings in the trial below that the board had
made no contract with the company on the 10th of December, 1872. It
consisted of five members. Those members were the joint agents of
the District of Columbia in the management of its streets and
alleys, and a contract with the board, to be binding upon the
District, must have been ratified by a majority of the members of
the board.
The rule on this subject has been well stated by Dillon in his
work on Municipal Corporations, § 283, as follows:
"As a
general rule, it may be stated that not only
where the corporate power resides in a
select body, as a
city council, but where it has been delegated to a
committee or
agents, then, in the absence of
special provisions otherwise, a
minority of the select
body, or of the committee or agents, are powerless to bind the
majority or do any valid act. If all the members of the select body
or committee, or if all of the agents are assembled, or if
all have been duly notified, and the minority refuse or
neglect to meet with the others, a majority of those present may
act, provided those present constitute a majority of the whole
number. In other words, in such a case, a major part of the whole
is necessary to constitute a quorum, and a majority of the quorum
may act. If the major part withdraw so as to leave no quorum, the
power of the minority to act is in general considered to
cease."
It is said, however, by appellant's counsel that if the alleged
contract of December 10, 1872, was not originally
Page 127 U. S. 587
binding on the District of Columbia, it became valid and binding
by reason of the fact that it was afterwards recognized by the
parties, was performed in part by the District in designating the
streets whereon the work should be done, by approving and accepting
said work, and by the part performance of the contract on the part
of the pavement company. In our apprehension, no action of the
board gives the slightest ground for this position. The refusal of
the board to accept any of the work or to allow any certificate of
its amount to be given until after other contracts, entirely
different in terms, were duly entered into and bonds were given for
their faithful performance negatives any suggestion of recognition
or ratification by the District of Columbia of the alleged contract
of December 10, 1872, or of any acquiescence in its part
performance. This claim is utterly inconsistent with the conduct of
the company. The very fact that it entered into these other
contracts, different in terms from the alleged contract of December
10, 1872, and accepted the certificates of the board issued for the
work done under those contracts (and those alone) proves that it
did not regard the verbal negotiations with Shepherd and the
unauthorized letter of Johnson thus disavowed by the board as
binding upon the District of Columbia.
The counsel for appellant further urge that notwithstanding all
this, the alleged contract sued on has been rendered valid by
reason of the recognition of such contracts and the ratification
thereof by Congress, citing the several acts of June 20, 1874, June
11, 1878, June 16, 1880, and the joint resolution of December 21,
1874.
We have not been referred to any particular section of any one
of these acts that would work a confirmation or ratification of a
transaction such as forms the basis of this suit, nor does a close
study of them disclose any such provision. On the contrary, by the
Act of June 16, 1880, § 8, 21 Stat. 284, 286, the Court of Claims
is prohibited from taking jurisdiction of this claim as set up in
the first count. That section provides that "no claim shall be
presented to or considered by the Court of Claims under the
provisions of this act which was rejected by the Board of
Audit."
Page 127 U. S. 588
Now it is shown by the record in this case that this identical
claim (differing only in amount) was presented to the Board of
Audit, and was disallowed by that board. The substance and the
effect of the petition submitting such claim to the Board of Audit
is substantially the same as that in the first count of the
petition in this case. This is conclusively shown by the 15th
finding:
"Upon the jacket wherein this petition and exhibit were
enclosed, this endorsement was made:"
"
OFFICE BOARD OF AUDIT"
"
Washington, August 3, 1874"
"
Class 4, No. 239"
" Claims against the Board of Public Works for which no evidence
of indebtedness has been issued."
" Claims damages for breach of contract in the sum of
$75,000."
"And on the opposite side of said jacket was written:"
" The within claim against the Board of Public Works has been
examined and not allowed."
"The Board of Audit kept a record of claims allowed and
disallowed, in which appear the following:"
image:a
"And the members of the Board of Audit reported said claim to
Congress in a list of disallowed claims."
The interest of the claimant in this case is the same as that of
the Ballard Pavement Company, which presented the claim to the
Board of Audit. He is the successor of that company. True, in that
petition damages were claimed only to the extent of $75,000 for
breach of the alleged contract of December 10, 1872, while here the
claim for damages is laid at $100,000. That, however, is an
immaterial matter. The
Page 127 U. S. 589
cause of action in each instance is the
breach of
contract, and the mere fact that in one instance the damages
are laid at $75,000, while in the other at $100,000, does not
change its identity.
The suggestion that the claim was not
rejected by the
Board of Audit within the meaning of § 8 of the Act of June 16,
1880,
supra, but was only
disallowed, may be
dismissed with the remark that the two words, when used with
reference to the disposition of claims, are synonymous. We think,
therefore, that there was no jurisdiction in the Court of Claims to
entertain this branch of the case. We also concur with the court in
holding that the judgment of the Supreme Court of the District of
Columbia, in a suit brought on the 6th of January, 1875, by William
W. Ballard, Edward L. Marsh, and the claimant, Talmadge E. Brown,
against the District of Columbia to recover damages alledged to
have been sustained by them under the said proposition and said
Johnson's letter sued on in this case is a bar to the first count
of the petition.
Gould v. Evansville &c. Railroad Co.,
91 U. S. 526.
In no view that has been presented or that seems capable of
presentation can the alleged contract be considered binding upon
the District of Columbia.
The judgment of the Court of Claims is affirmed.