Opinion of the Court. BROWN v. DISTRICT OF COLUMBIA. APPEAL FROM THE COURT OF CLAIMS. No. 224. Submitted April 13, 1888.- Decided May 14, 1888. 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. C. C. Cole and Mr. Fillmore Beall for appellant. Mr. Attorney General and Mr. Assistant Attorney General Howard for appellee. 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 George town. The petition was filed November 16, 1880, and contains four counts, the first of which is in substance as follows: That Opinion of the Court. 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 Opinion of the Court. 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, 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 any one, but still owns and holds the whole thereof in his own right. Opinion of the Court. 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 afterward 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 per cent 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 hav Opinion of the Court. ing 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 conclusion 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 secretary Johnson accepting the said proposition. Are these assumptions borne out by the evidence adduced at the trial? Upon this point we quote from the 2d, 3d, 4th, 5th, and 6th 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, |