Record and brief — Robert G. Campbell, Plaintiff in Error, vs. The District Of Columbia

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TRAN SORIPT “OF RECORD.

SUPREME COURT OF THE UNITED STATES. | | |

OCTOBER TERM, LSE. |

‘ — No. 207.

ROBLRT G. CAMPBELL, PLAINTIFF IN ERROR,

US.

THE DISTRICT OF COLUMBIA. |

a - IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF

: COLUMBIA.

FILED MARCH 20, 1883.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TER™, 1885.

No. 207.

artes Aeshna Wee ti g

ROB RT G. CAMPBELL, PLAINTIFF IN ERROR,

Bet se hetareirnivins

; THE DISTRICT OF COLUMBIA. |

IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF

1 ote

COLUMBIA.

IN DEA:

NS OORT ipa Rin. see ta sgpeoncn

‘

Original. Print.

is ee NE PoReE Dae PETE OOP Pen eIRC A ce SIGH or cL NR ------ ---~-- oe ak hacia aie“ sipueciele ncaa i I l

Notice to plead a ae ds ca ede tS ea da 4 2

Bill of particulars ss caine Ae tn ee icin ma apne hacen ss elaine aunt ag uae Wi wk » 2

; PE I oon iv seckes cat seas hs ects rleistin wk eenae Soe mine wietieeaeeans Smeal Mein 11 4

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PAE ION on, 5 nd coon ca Sk ee Se ee ee 15 fi

I ir Pe i 16 6

: Mm RICs AOE TUCO Cos es a as aie ee 6 co eee eee 17 4

; ee ot oa ca ode eee sale i” 7

ae al Contract between Owen O'Hare ef a/. and The District of Colum-

OO, TO Bh SOCE can wks we coer - 0 eee ee eens 20) 7

Letter of D. E. Davenport to Gen'] O. E. Babeock, Superinten-

dant Washington Acquecact, April 16, 1672 2. Sc eens 67 2]

| Act of Assembly of D.C. to provide for a deficiency of appropria-

; tion for laying water mains directed by act of Congress July 14,

Sree. POS i A ok ks ae ce Se a a 13 23

POUR DE CCT WIE ET POORER, in ee ee ob ks ee ce nee res) 24

Order setting uside report Oe a

ee ii

se INDEX.

Original.

Order setting aside report of auditor, &e. ----- Sige wana ae ai =|

Judgement in General Term Sa ee ; Sv

Motion far Hew UWA oc ee, as leu tan a e an lg acna ieee ; : ae 4

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Clerk’s and judge's certificate... dae selene : ia iW)

‘

ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA. 1

1 Declaration, Notice to Plead, and Ace’'t. Filed June 12, 1874.

In thea Supreme Court of the District of Columbia.

Ropert G. CAMPBELL

vs. At Law. No. 12598.

District OF COLUMBIA.

Declaration.

The plaintiff sues the defendant for money paid by the plaintiff

for the defendant at its request; for money received by the defend-

ant for use of the plaintiff; for money found to be due from the de-

fendant to the plaintiff on accounts stated between them, and for

work done by the plaintiff for the defendant at its request, and for

materials furnished to the defendant by the plaintiff at the defend-

ant’s request.

And the plaintiff further sues the said defendant for that, whereas,

the said defendant heretofore, to wit, on the Ist day of August, 1872,

at the city of Washington, in the District of Columbia, was indebted

to the said plaintiff for the sum of $10,084.00 lawful money,

2 for work done and materials furnished by the plaintiff to the

defendant at its request, in and about the construction of a

thirty-six inch water main in the city of Georgetown, in the District

of Columbia, and being so indebted, the said defendant in considera-

tion theréof, afterwards, to wit, on the day and year aforesaid, un-

dertook, and then and there faithfully promised the said plaintiff to

pay him the said Jast-mentioned sum of money, when the said de-

fendant should be thereunto requested.

And whereas, also afterwards, to wit, on the day and year afore-

said, at the said city of W ashington, in consideration that the said

plaintiff at the like special instance and request of the said defendant

had before that time performed labor and furnished materials for

the said defendant, in and about the construction of a water main in

the city of Georgetown, in the said district, the said defendant un-

dertook and then and there faithfully promised the said plain-

3 tiff to pay him so much money as he therefor reasonably de-

served to have of the said defendant, and when the said de-

fendant should be thereunto afterwards requested.

And the said plaintiff avers that he therefor reasonably deserves

to have the further sum of $10,084.00, of the like lawful money,

whereof the said defendant afterwards, to wit, on the day and year

last aforesaid had notice.

Nevertheless, the said defendant, not regarding his several promises

and unde takings, did not pay the several sums of money or either

of them, or any part thereof, to. the said plaintiff, although often re-

quested so to do, and has wholly neglected and refused and still

neglects and refuses so to do, to the damage of the plaintiff of

$12,000.00.

1—207

eRe siihiinee lithabietsg OVERLIES OEY, BEIT Oe

SOC LLM IF NIE ANI GE HE Ht ER GEE Ut enter’ eh ae

| The defendant is to plead hereto, on or before the next

special term of this court, occurring twenty days after service

hereof, -

ENOCH TOTTEN,

Att'y for PUES.

hy Particulars of LD neand,

District of Columbia (36-in. water main) to R. G.

To 23 days’ time, taking up plank read, @ $2... AG

* S02 " ‘Dy RB. RR. ik, @ Se... 754

5o “ horses and carts, (a eS . a ae ae 177

500 . relaying D. KR. Rh. tk, @ 2... GOO

278 : excavating ditch for Dr. R. R. track,

a 5oa6

150 days’ time, mechanics laying R. b. t+ Be... 450

[3-4 days’ time, horses and earts, (@) $8 __.__- ree 40?

7 . mason’s work, cutting wall at bridge,

fy (<a Ui ie ok Cae ee a ae oe)

25 days’ time, Wi ralere arrier, @ Be ee aes 20)

30) ee a: superintendant, @ 0...00505 4652554 150

To handling and setting 56-inelr stop-cock -2------ ---- SO

“ difference in cost of l-inch air-cock and pipe, drilling

ONG Wee he 2... os ee a D

“ one 4- inch cast-iron bend . ...- alee Sa ae a 5

“3 : . SONS |... 2

os hauling same eas een ee a I

To cutting one 12-inch pipe-. Lae Sn (5

(5 extra lead run solid on two. 48-inch joints__—- 20)

hauling one 36-inch sleeve..---------- aba |

To © feet sewer pine, Mr. Birch, (@ o0c.. -. 2. ..-....- ?

3 { bends, ee Ss

B cartage on same - us a a ee ee ee oe l

i 2 days’ ese. diabar and eavclant, @ SG cus sees 12

“ 1] 4-inch stop-cock at vault — Rae GM AES gee aS oie Ad

“6 hose nozzle, coupling, and cap at v% ault .--~- eae. Sean 10

it 2 44k as OS nc a. >

“3 day’s time, plumber and assistant - alien beeen ke |

“manhole and cover for cock at v: ault and hauling__- 70

“ 39 clamps and anchors for stop-coc i hoeee 40

“ repairing cock in cock. vault opposite livery stable —_ 2

“103 feet pipe and 18 fittings near bridge _-.....---- od

2 stop-cocks ¢ and wooden boxes i a a 10

2 lead connections, i Go soa a a one 10

2 tape, Cl BO oi eo a 10

And the plaintiff claims judgment for said sum of

cording to the particulars of demand hereto annexed, with interest.

ae corer my ages PO OEM Lt OOO ELE SALLE LCS IER SE LET ey I AEN ALE ALOE EET AB dE Dr reper

na OPE PRY Ro ee 8 Si a : _ ri : ; ; ei , “

CAMPBELL VS. THE DISTRICT OF COLUMBIA.

ROBERT G.

ENOCH TOTTEN,

$12,000.00, ac-

Att'y for PUUT.

Campbell, Dr.

(i)

D0)

()()

=...

ROBERT G. CAMPBELL

To J Ib. nie nied Gi ie wil caleba sede Cals

7 “ 33 days’ time, plumber and assistant --_- ----

7 “ raising and making connection at Union Hotel

; Wh OE nn Gi he se

“extra lead and labor on 200 36-inch joints, (a4 $3.50__

‘“ 1 large centre at vault Kkdewdie knw amex Ghana ee

“1 small ev bud owes oe ake ek

“ repairing leak near market, Davenport's division —~-

“y... “ 1 gum joint for manhole at stop-cock .....---------

“ 48 Ibs. nuts and bolts for manhole, (@ 15e. --.2-----

“ 1 extra 36-inch joint, made inside sleeve, near 36-

men steb-enek.....—.....~-. cck a ulasueaaee dp ee

9 c¢ast-lron stop- -cock boxes, (@ $30 _..... 2. case

“ 108 feet 12-inch pipe, lowered, (@ $2.25 .....-.-----

raising and altering pipe and putting in 4-inch stop-

epen ot Vault... ooo ck oa

hauling from line of works to pipe \ vard, 12 reducers,

$10.00: 1 S6-inhen aieeve, S100 ...... 5 eecc ck

“ 1 50-inch sleeve, 1.25; 2 12-ineh pipe, BUG... ,

To 2 56-inch pipe, 24. 00; 148 x 30 redueer, 15.00_

Ss “ 4 30-inch pipe, om Te. kc kaa

“ 1,400 yards of excavation, below S feet in depth

at bridge, at (@ $1.75 -.__-_- oe aie weed Oe :

To losses sustained and delays occasioned by the engineer

“im, not providing the necessary castings for m: aking

the curve between Green and Montgome ry streets:

6 caulkers, 4 days each, 24 days, @ $4__-.-. --...--

37 laborers, 4 days each, 148 d: 00, (OBE nein se

Foreman of the derricks, 4 days, @ $4-__--- nas

General superintendent, 4 days, (@ $5 -------------

lor delays oceasioned by engineer not providing nec-

essary pipe at Washington :

6 caulkers, 3 days each, 18 days, (@ $4.00 22222...

7 laborers, 3 days each, 111 days, (@ $2.00 .-----_-

i oreman of derricks, 3 di ays, at 4.00 i ah eit is ead

General superinte nde nt, 3 days, (a 500... st saci

y lor delays occasioned at bridge by the failure of

the outlet not being large enough to admit of

the 48-inch pipe:

6 caulkers, 7 days each, 42 days, (@ 4.00._..-. ------

37 laborers, 7 days each, 259 ds nye, @ 7.00 ....... -..5%

Foreman of derrick, 7 di avs, (a S4 OS

For delays occasioned by engineer failing to provide

the branch 12-inch at High street:

if 6 caulkers, 4 days each, 24 davs, @ 4.00___-._------

37 laborers, 4 days each, 148 days, (@@ 2.00____----—-

VS. THE DISTRICT OF COLUMBIA.

General superintendent, 7 | Gays, @ MH 225k .

2,450

222

O00

4 ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

Foreman, 4 days, @ $420.6 one oc cee 16 00

General superintendent, * days, (@ GO . 5. cn nwns< 20 OO

lor 2,000 feet of lumber, shoreing up the cut at the

bridge, at $55 per * ae FEE ORE ORR RE A 70 O00

To cutting out and renewing 15 lead joints between Rock

Creek bridge and market- house, (a) $21 each ~-~-- 315 VO

To tearing down and rebuilding a stop-cock vault

10 near the bridge, done under the order of the

superintendent of the work, and ordered to be

torn down and rebuilt by the engineer :

S barrels coment @ $2.50... co a ces 20 O00

6 londte aa, & 825 .....- a cn oe 10 00

1,000 bric ‘as ie soe wise (adie cous ou gu ane na uate 15 OO

2 bricklayers, 5 days each, 15 » days, @ $0....4.4-4 4. 75 OO

3 laborers, 5 days cach, 15 days, ane... 30 OO

l supe rintendent, 5 days, OS 55 ck eee 25 OO

$10,084 00

Add inte ‘rest from July 1, 1872.

Filed June 12, 1874. ee

R. J. MEIGS, Clerk.

11 — Spa. to Ans. Issued June 12, 1874.

In the Supreme Court of the District of Columbia, the 12th day of

June, 1874. ,

Robert G. CamppBenn, Plaintiff, )

US. | r At Law. No. 12595.

Tur Disrricr of CotumBra, Defendant. J

& Original Summons.

The President of the United States to the defendant, Greeting :

You are hereby commanded to appear in this court on the first

day of its special term, occurring twenty days after service of this

writ on you, to answer the plaintiff’s suit, and show why he should

not have judgment against you for the cause of action stated in his

declaration, 2

W itness—

bD. K. CARTTER,.

iG Chief Justice.

[SEAL | } R. J. MEIGS,

Clerk.

By JOB BARNARD,

Asst. Clerk.

12 ~ Notre.—The special terms of the court commence on the

first Tuesday of every month except August, in which month

there is no term of the court.

DO OO ee tlm i

e*- -

" ™

Sr eeueneieataiie aelidiemanei aieionmem enna ameemeeeetatanttcninead -

ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA. oD

Endorsements on the above writ appear as. follows:

Return of Marshal.

Ropert G. CAMPBELL, )

Us, No. 12593. At Law.

District OF COLUMBIA.

Issued June 12th, 13874. Pd. $1.00.

Served copies of the declaration, notice to plead, and this summons,

on the defendant ‘by W. A. Cook, ait’y, the 12th day of June, 1874.

A. SHARP,

ae Marshal.

June 12, 1874. Sharp.

Service acknowledged June 12th, 1874.

Bat WILLIAM A. COOK,

Atty, D. C.

13 Pleas and Appearance of Wm. A. Cook for defendant.

In the Supreme Court of the District of Columbia, the — day of

June, 1874.

RosertT G. CAMPBELL, Plaintiff,

Us. At Law. No. 12598.

THe District or CoLtumBra, Defendant. J

| Pleas.

The defendant says that it never was indebted as alleged. And

for a further plea the defendant says that before action Tt satisfied

and discharged the plaintift’ s claim by payment.

WILLIAM A. COOK,

Atty, D.C

Endorsed: Plea of non-debit and payment. ‘The clerk will please

file. William A. Cook for def’t. Filed June 25,1874. R. J. Meigs,

clerk.

14 Joinder and Note of Issue, June 25, 1874.

In the Supreme Court of the District of Columbia, the 25th day of

June, 1874.

Ropert G. CAMPBELL, Plaintiff, )

vs. } At Law. No. 12593.

Tue District or Cotumpia, Defendant. }

The plaintiff takes issue upon the defendant's plea.

ENOCH TOTTEN,

; Att'y for Plaintiff.

Filed June 2 », IST4.

Rk. J. MEIGS, Clerk.

6 ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. '

15 Plea “ Puis Darrien” Continuance. Filed June 15, 1875.

In the Supre me Court of the District of Columbia, the 15th day of.

June, 1875.

Roperr G. CamPppBenn, Paintiff, |

VS. At Law. No. 125953.

THE Disrric ror CoLumbia, Defend © |

Additional Plea. (Puts Darrien.)

And for a further plea defendant says that after the last pleading

in this action, and before this day, it satisfied and discharged the

plamtif?s claim by payment.

: : By WILLIAM BIRNEY,

Its Attorney.

Endorsed: Clerk will please file... W. Birney, att’y for deft. Filed

June 15, S75. Kt. J. Meigs, clerk.

160 Joinder in issue on Pleas Fedoces Darrien” Continuance. Filed

June 22, 1875. |

Supreme Court of the District of Columbia.

CAMEELL )

vs. 7 .At Law. No. 12593

District oF COLUMBIA,

The plaintiff joins issue on the defendant’s plea puis darrien con-

tinuanee, and denies the sanre..

| TOTTEN, For PUT.

liled June 22, 1875.

: R. J. MEIGS, Clerh,

17 Verdict and Judgment for Def?t. Jaw y 30, 1883.

Supreme Court District of Columbia holding a Circuit Court.

Ropert Gy, CAMPBELL |

is, “s At Law. No. 12593.

Tue Disrroer or COLUMBIA.

Judgement of Cireuit Court.

Now comes here as well the plaintiff, by lis attorney, Mr. Totten,

as the defendant by its attorney, Mr. Riddle, and a jury of vood and

lawful men of this District, to wit, William P. Young, Henry Ise-

man, James McDermott, George H. Trunnell, George H. Baxton,

Casper Kneessi, Benjatain Charlton, William C. Duvall, Melville

Shuster, Charles Crunimell, James M. Foster, and R. Carter Ballan-

tyne, who being duly sworn to try the issues above joined, after hear-

ine the evidence in the ease, on their oath say, that they find said

issues in favor of the defendant. Therefore it is considered that the

plaintiff take nothing by his suit, and that the defendant go thereof

AO al ll elena

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 7

without day, and recover against the plaintiff the costs of its

18 defense, taxed at $ and have execution thereof.

And thereupon the plaintiff tenders to the court here his

bill of exceptions to the rulings of the court on the trial of this case,

and prays that they may be duly signed, sealed, and made part of

the record, which is done accordingly.

And now comes the said plaintiff and moves the court for a new

trial on the bill of exceptions. M. 18, p. 284, January 30th, 1883.

19 Bill of ‘Exceptions. Filed Jan’y 30, 1883.

In the Supreme Court of the District of Columbia.

Roperer G. CAMPBELL

vs. »>At Law. No. 12593.

THe Disrricr oF COLUMBIA. j

Bill of Exceptions.

This cause having come on for trial, and a jury having been duly

sworn, the plaintiff, to maintain the issues on his part, gave evidence

to the j jury tending to show:

That on the 2ist day of September, 1871, after due sbvetineisaa

and proposals, a contract was made between the District of Columbia

and a certain copartnership firm known as O'Hare, Heimber & Co.,

for laying a 36-inch water main in what was designated as the “ George-

town Division,” for the prices and upon the. stipulations i in said con-

tract mentioned ; and that the said contract is in the words and fig-

ures following, to wit:

20 Contract and Specifications for Laying Cast-iron Water Pipes,

Stop-Cocks, and Special Castings, under an act of Congress ap-

proved by the Preside nt July 14, 1870, and an act of the Legislative

Assembly of the District of Columbia, approved by the Governor July

20, 1871.

This agreement, made and concluded this 21st day of September,

in the year one thousand eight hundred and seventy-one, between

Owen O'Hare, Henry Heimber, Daniel E. Davenport, & Edward

Martindale, doing business under the style of O’Hare, Heimber «&

Co., of Washington, in the District of Columbia, of the first part, and

George H. Elliott, major of engineers, U.S. A., chief engineer of the

Washington aqueduct, and E. L. Stanton, acting Governor of the Dis-

rict of Columbi: i, acting for and in behalf of the District of Columbia,

of the second part :

Witnesseth, That the said parties of the first part have

21 agreed, and by these presents do agree, with the said party

of the second part; for the considerations hereinafter men-

tioned and contained, and under the penalty expressed in a bond,

bearing even date with these presents, and hereunto annexed, at

their own proper cost and expense, to furnish all the materials and

do all the labor called for by this agreement, in the manner and

COLUMBIA.

VS. THE DISTRICT OF

~ ROBERT G. CAMPBELL

under. the conditions hereinafter specified; and have further agreed

that the chief engineer of the Washington aqueduct shall be, and

is hereby, authorized to appoint from time to time such civil engi-

neers and assistants and inspectors under him, as he may deem

proper, to inspect the materials to be furnished; and the work to

be done under this agreement, and to see that the same conforms

strictly to the specifications hereinafter set forth.

The work to be done consists In excavating and refilling trenches,

whether in earth or rock; in taking up and replacing street pave-

ments and other surfaces; in hauling and laying or setting pipes,

special castings, stop-cocks, air-cocks, and other appurtenances, to a

complete system of distribution; in cutting pipes, making Joints,

preparing foundations; in repairing damages caused to gas or water

pipes, sewers, drains, cisterns, &e.; in cleaning the streets and

grounds of all rubbish or refuse caused by the above work; in far-

nishing lead and gaskets for joints; fuel for melting lead; clay and

rope for bands; supports for pipe; wrought-iron straps and bolts

2) : Specifications. — |

’

(

for securing caps, reducers, and other parts lable to draw; in fur- -

nishing air-cocks; in furnishing and setting wooden or other

25 boxes for stop-cocks and air-cocks, and furnishing and fitting |

cast-Iron covers thereto; in furnishing all materials for any |

masonry required, and all other materials, tools, and labor necessary :

for the complete fulfillment of this. contract (except pipes, spect "oe 7 i

castings appertaining thereto, and stop-cocks).

The main will commence in the effluent pipe vault of the distrib-

uting reservoir of the Washington aqueduct, at the easterly end of

the ds-inch mouthpiece, with which it will be connected by a pipe,

reducing from 48 inches to 36 inches in diameter. In the vault it

will also be connected by a stand pipe with the Washington: aque-

duct 30-inch main leading from the auxiliary gate-house.

Tt will be laid through and outside of the v: aut, parallel with the

P2and 30-inch mains, across the fields to foundry branch

24 pipe vault, where it will be cross-connected with the 90-inch

main by a pipe 30 Inches in diameter,

Leaving the foundry branch, it will follow the road along the

‘Chesapeake and Obio canal to ¢ aces pond, which it will cross on

an embankment of stone. From there it will be continued along

the canal road and Bridge street, in Georgetown, into Aqueduct

street, and along Aqueduct street Into the west abutme ‘nt of Roc k

Creek bridge.

In this abutment it will be enk: ened from 36 to 48 inches in diam-

eter, and will be connected with the 48-ineh pipe that forms the

north arch of the bridge.

— In the east abutment.it will be conneeted with the. 48-inch pipe

by a pipe reducing from 48 to 36 inches in diameter, and will be

continued through the abutment and into Pennsylvania avenue.

It will be laid along Pennsylvania avenue to L street, and along L

street to New Jersey avenue, where it will terminate in a 36-inch

braneh, with a 30-inch outlet.

a nittintiiatines

——

a ae ee RRR OT I Oy Me A gt EE Nie SORT, i oo

t—

i ee ee

OBERT. G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 9

25 The “ reservoir division” extends from the distributing res”

ervoir of the Washington aqueduct to the west side of foundry

branch.

The “ Georgetown divi ision ” extends from the west side of foundry

branch to Rock Creek bridge. , |

‘The “ West Washington division” extends from Rock Creek bridge

to the west side of Fifteenth street.

The “ East Washington division” extends from the west side of

Fifteenth street to the centre of New Jersey avenue.

In Bridge and Aqueduct streets, Georgetown, and in Pennsylvania

avenue and [i streets, Washington, branches with 12-inch outlets will

be set and connected with the main, and with the corporation 6-inch

distribution pipes, wherever directed by the engineer.

26 The pipes are to be laid in such locations and upon such

lines and grades as the engineer may designate.

All the pipes, stop-cocks, and special castings appertaining thereto,

except the air-cocks, will be furnished to the contractor at the rail-

road depot, or on such wharf or wharves in the cities of Georgetown

and Washington, as the engineer may elect.

The cost of handling after delivery, and all other expenses of labor,

materials, tools, &c., incurred in the faadfions distributing, and laying

of said pipes, stop-cocks and other appurtenances, shall be paid by

the contractor.

27 The contractor shall be responsible for any loss incurred or

damage done to any pipes or apperten: inces from the time

of delivery until laid and covered.

Proper implements and tools necessary for the safe and convenient

handling and laying of the pipes and appurtenances shall be fur-

nished by the contractor. Great care shall be taken in handling. to

prevent the pitch coating being rubbed off. Any damage done shall

be made good at the expense of “the contractor; ; and such precautions

shall be used for this purpose as the engineer may direct.

No pipes or appurtenances shall be laid or used which are known

or may be found to. be in any way defective. Notice shall always

be given to the engineer or inspector of any such defective or im-

perfect m: terial, and it shall be set aside and conspicuously

28 marked with the letter “D” in white paint. If any defective

pipe or other casting shall be found to have been laid, it shall

be removed and replaced by a sound pipe or casting, without charge.

Trenching.

The trenches for the pipes shall be opened in accordance with the

lines = grades given for the work, and as far in advance of the

Pipe- laying as may be required by the engineer, but no further.

The paving, graveling, macadamizing, or other surface material

shall be carefully taken off and put upon one side of the trench.

The remaining excavation shall be put upon the other side of the

trench, so that there shall be no waste or loss of material, and in

such manner as to leave a space of two feet between the edge of the

trench and the material so deposited.

—207

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BAS hy aid WT, HE Pee 4 * weey om Staal Santen Mediate: ES EN, LOE LN PORTAL AINE REA ES ts

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pathsiaduie <geee eee

10 ° ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

The width, depth, and form of the trench will be determined

29 in all cases by the engineer or his assistant, and defined upon

the ground by appropriate stakes, and demarcations, and

the dimensions so given are to be carefully and accurately comformed

to by the contractor.

In earth and rock excavation, all necessary joint holes shall be

dug. They shall beat least one foot deep by four feet long, and have

a width at least four fect greater than the diameter of the pipe.

The contractor shall make additional excavations wherever re-

quired, for the purpose of securing a good foundation, and shall re-

fill with suitable material in the manner required.

The cost of refilling the trench is to be included m the price for

earth excavation, and no allowance will be made for earth removed

beyond the lines and grades required by the engineer.

Rock excavation.

OU) Where rock is encountered it shall be uncovered and taken

out to any width required by the engineer, and to a depth of

one foot below the grade line of the bottom of the pipe. The exea-

vation so made shall be refilled in 1: avers six inches deep, and prop-

erly tamped with earth not required for filling the other trenches,

or borrowed for the purpose. No rock is to be taken out until it has

been measured by the engineer. The cost of refilling is to be in-

cluded in the price for rook excavation, and no allowance will be

made for rock removed beyond the lines and grades required by the

enygmeer.

Only such material as requires blasting will be estimated as rock.

In excavating the trench, either in earth or rock excavation, great

care must be taken not to injure the twelve and thirty-inch mains

of the Washington aqueduct, and they shall be protecte “| as the

engineer may direct. Any damage done will be made good at the

expense of the contractor.

31 Masonry:

Piers of rubble hiasonry shall be built by the contractor wherever

required by the engineer. The masonry will be composed of sound,

well-shaped stones, with level beds and vertical joints, laid) in-

hydr aulie eemMent mortar.

Vaults of brick masonry will be built by the contractor wherever

required by the engineer.

The brick m: isonry Will be composed of: hi od burned red bricks,

laid’in hydraulic cement mortar.

The mortar used in stone and brick masonry will be composed of

one part of such American cement as may be directed by the engi-

neer, and two parts of clean, sharp sand.

| Blocking.

ach pipe and easting shall be laid upon two blocks, disposed as

may be directed, and firmly bedded in the ground, true to

82. grade, and shall be finally adjusted by means of wedges, two

to each bloek, which shall be left in place, the bloeks to be

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 11

“made of sound Georgia pine lumbe1 r, six inches square and three

feet long. The wedges shall be made of white oak lumber, four

inches square at the butt and twelve inches long. :

Laying.

‘Fhe pipes (which are 12 feet 64 inches and 9 feet 63 inches in

length) and castings, when laid, shall conform accurately to the lines

and grades required, and castings designed for particular places shall

be used therein.

All fixtures pertinent to the supply or distribution shall be set or

laid at the en points, In such manner as the engineer may

direct.

The reducers, bends, and other parts as are liable todraw shall be

firmly secured by wrought-iron straps and bolts. The straps and

bo’ts shall be made from the best American iron, and the

33 size and workmanship, as well as the material, shall be in all

respects satisfactory to the engineer. All wrought-iron work

shall be thoroughly coated with coal-tar before being covered with

earth ; the caps of such branches as require to be capped shall be

bolted and well secured. The manhole pipes shall be carefully

capped, and all other appliances necessary to the perfect working of

the distribution when the water is let on shall be made and com-

pleted.

Any omission of branches, stop-valves, or other appurtenances

intended to be laid, shall be corrected when required, by reopening

the trench, if it lias been filled up, and introducing what may have

been omitted. | |

When.the pipes are laid the spigots shall be so adjusted in the

sockets as to give a uniform space all around; and if any pipe does

not allow sufficient space, it shall be replaced by one of

od proper dimensions, and the pipes shall be separated such a

distance between the end of the spigot and the shoulder of

the socket as may be required by the engitieer. No claim shall be

made nor allowed for extra quantities of lead or gasket.

The gasket packing shall be of clean, sound hemp varn, braided

or twisted, applied in one piece, and tightly driven, so as to leave

the required width for the lead, which shall not be poured until

the inspector has pronounced the packing and the depth to be sat-

isfactory.

The width of lead required for the various sizes is as follows: 36-

Inch pipe, 25 inches; 50-inch pipe, 2} inches; 12-inch pipe, 13-

inches; 6-inch pipe, 1) inches. The thickness of lead will be

about as follows: For the. 50 and 56-inch pipes, from one-half to

nine-sixteenths of an inch; for pipes 12 inches in ‘diameter and

under, from six-sixteenths to seven-sixteenths of an inch.

oo The lead shall be of the best quality of pure and soft lead,

and in every respect suitable for packing water pipes. Before

running the lead -the joints shall be carefully wiped out, to make

them clean and drv; the joint’shall be run full at one pouring, and

the melted pot shall always be kept within twenty feet of the joint

about to be poured. The joints shall be faithfully caulked by com-

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12. =ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

petent mechanics in such manner as to secure a tight joint without

overstraining the iron of the socket. The caulking shall be done

toward the place of the gates and other points where the lead may

be porous, so as to drive it together at those points. The lead, after

being driven, shall be flush with the face-of the soeket.

Thre pipes and all other castings shall, as they are laid, be care-

fully swept and cleaned of any earth or rubbish which may have

found place inside during or before the operation of laying.

OO Every open end of .a pipe shall be plugged or otherwise

closed before leaving the work for the night.

Rubber gaskets, one- -fourth of an inch thick and of the width of

the face of the sockets, are to be furnished by the contractor, and set

with manhole covers and with the caps or plugs on sockets and on

all flange-joints, wherever required, without charge.

Air-cocks, three-fourths of an inch in diameter, connected with

one foot of three-quarter-inch lead pipe, will be furnished and set by

the contractor, whenever directed by the engineer. The air-cocks

will be made of composition metal, and of such form as the engineer

may require. The price of each air-cock will include the cost of the

lead pipe required for it.

Wooden boxes, with cast-iron frames and covers of the Washing-

ton Aqueduct pi atte rn, Will be furnished and set wherever required by

the engineer. The boxes will be one foot seven inches by two feet

at the top, two fect four inches by two feet eight inches at the

Od bottom, and four feet deep. They will be composed of sound

Georgia pine planks and scantlings, securely spiked together.

The frames and covers for the top of the box. will be of ¢ ist iron,

and the covers will have the intials P. W. east in raised letters, three

inches long. Mach box will contain about 50 feet (broad measure)

of pine, and each frame and cover will weigh about 170 pounds.

In cutting through the wall of the distributing reservoir pipe vault,

great care must be exereised so as not to injure the masonry. Any

damage done will be at the expense of the contractor, and will be

made good by him. The excavations through the wall, and also

through any other masonry encountered in the streets of George-

town and Washington, will be estimated and paid for as rock ex-

cavation,

At College Pond, on the Georgetown division, the bottom of the

pond is to. be excavated to such depth and width as the engineer may

direct. On the bottom thus prepared is to be built an embank-

ST) ment of sound, durable stones, satisfactory to the engineer,

none of which shall be larger than six inches in any dimen-

SION. :

The slopes and top of the embankment are to be protected by dry

rabble masoury, 1S mehes in thickness, the joints of which shall

extend entirely through the wall. The 86-inch main is to be laid

in the embankment, six inches below the bottom of the paving, and

the top of the paving is to be six inches below the flow line of the

pond. ‘Phe length of the embankment will be about 90 feet, and its

height will vary from 6 to 10 feet. It will be 12 feet wide on top,

with side slopes of 2 feet base to 1 foot rise.

ee ee

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 13

At the crossings of all “sewers, gas or water pipes the 36-inch main *

is to be laid over or under them, as the engineer may direct. Any

damage done to them will be at once made good by the contractor,

without expense to the District of Columbia.

In L street, Washington, between 20th and 22nd _ streets,

3Y the pipe will be laid on piers of rubble-stone masonry, laid

in cement. These piers will be built two and one-half feet

wide and five feet long on top. Their sides and ends will batter one

inch in a foot, and the foundations will be of such depth as the engi-

neer may direct. Their height will vary from nine to fourteen feet.

Publie travel.

The contractor shall keep the streets and highways in which he

may be at work open for carriages to pass, so far as practicable, i and

shall bridge the trenches at all street crossings, roads, or private

Ways, and ‘shall conduct his work for this object in such manner as

the engineer may from time to time direct. No sidewalk shall be

obstructed where it is possible to avoid it. ,

The contractor shall, during the night time, put up and maintain

such barriers and red So ge as will effectually prevent the

40) happening of any accident, in consequence of his work, for

which the District of ( olism might be liable, and the con-

tractor shall be liable forall damages occasioned in any way by his

act or neglect, or that of lis agents, emplovés, or workmen.

Back filling.

No pipe shall be covered until special orders have been given to

that effect. In covering the pipes no stones shall be laid in contaet

with them. | :

The earth shall be filled into the bottom of the treneh, under,

around, and to the top of the pipes and other castings, in such man-

ner as may be required, and shall be carefully packed and well

rammed with proper tools for the purpose. The earth shall be prop-

erly moistened, when deemed necessary by the engineer. No large

lumps nor frozen earth will be allowed to be filled in. Care shall

be taken to give the pipe a solid bearing throughout. its entire

length. The earth filling above the pipes shall be spread in

41 in lave ‘rs not exceeding half a foot in thickness, and shall be

sufliciently compacted by ramming to prevent after settle-

ment.

The trenches shall be refilled with the material furnished by their

excavation, provided it be of proper quality, of which the engineer

shall be the judge; but in case insufficient suitable material is ob-

tained in this way, that which ‘is suitable shall be furnished by the

contractor without charge, and he shall remove from the ground, or

uniformly spread over the surface, all material not used in filling,

as may be required by the engineer.

In all cases where required the class of surface before existing

shall be replaced, so as to be in every way equal to that surface in

materials and workmanship, and satisfactory to the engineer.

14. —- ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA.

if more paving, gravel, or other material is réquired to restore

the surfacing of ie seas highways, or private ways to as

42 eood condition as before bei ing disturbed by the contractor, it

shall be furnished at his own expense.

: General seetions. |

Any unfaithful or imperfect work that may be discovered before

the final acceptance of the work shall be corrected immediately on

the requirement of the cngineer, notwithstanding that it may have

been overlooked by the proper inspector and estimated. The inspec-

tion of the work shall not. relieve the contractor of any of his obli-

gations to perform sound and reliable work, as herein described.

The contractor shall keep the work in good repair for six months

after the water is let on, and shall correct and repair promptly

during that time ail leaks and failures of whatever description, and

all settlements and irregularities of paving or other surfacing, and

shall deliver the work in all respects In good condition at the end

of that time. :

43° And the said parties of the first part further agree that the

sald chief engineer shall be, and is hereby, authorized to

retain out of any money pavable to the said parties of the first part

under this agreement the sum of ten per cent. on the amount of the

contract, and to expend the same in the manner hereinafter pro-

vided in making such repairs of the said work as the engineer may

deem) necessary,

And it is further agreed that if at any time before a period of six

months after the water is let on any portion of the works, or the

surfacing of any street or highway on the line of the works, shall,

In the. opinion of the engineer, require any repairs 1n conseg uence

of the want of thoroughness or faithfulness on the part of the con-

tractor in the execution of the work, and the engineer shall notify

said parties of the first part to make the repairs so required,

Af andaif the said parties of the first part shall neglect to make

such repairs to the satisfaction of the engineer within ten days

from the date of the service of such notice, then the engineer shall

have the right to émploy such other person or persons as may be

deemed proper to make the same; and the said engineer shall pay:

the expense thereof out of the sum retained by the : ‘said party of the

second part, as herein mentioned.

And the said chiet engineer, as the agent of the party of the see-

ond part, hereby agrees that, upon the expiration of the said period

of six months, provided all the works and surfacing shall at that

time be in good order, the said party of the first part shall be enti-

tled to reeeive the whole or such part of the sum last aforesaid as

may remain after the expense of making the said repairs, in the

manner aforesaid, and any other charges as may be provided

(5 herein, shall have been deducted therefrom.

The parties of the first part have deposited at the First

National Bank of Washington the sum of one thousand dollars to

the credit of the Governor of the District of Columbia as a curantee

that they will enter into, carry on, and complete the work.

ee ee

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 15

And it is further agreed that in case the said parties of the first

part shall well and truly enter into, carry on, and complete the work,

according to the specifications, and to the satisfaction of the party

of the second part, the said amount of one thousand dollars shall be

refunded to the said parties of the first part by the Governor afore-

said; otherwise, the said sum is to be forfeited to the District of Co-

lumbia as liquidated damages.

The quantities of work to be done, as given in the accompanying

notice to contractors, are approximate only, and the chief

46 engineer therefore speciaily reserves the right to increase. or

diminish them, as may be deemed necessary by him. The

price contracted for, for each item, is to include the cost of all work

and materials incidental thereto, such as damming, bailing, pump-

ing, and draining away water, furnishing all necessary tools and ma-

chinery, furnishing, erecting, and removing, shoring, and bracing,

whenever required, furnishing water for all uses, and shutting off

and letting on the water, when forming connections with other pipes.

In ” operations connected with the work herein specified, all

city or District of Columbia ordinances, and all laws controlling

or lieaitbe | in any way the actions of those engaged on the works,

or affecting the materials applied to them, must be respected and

strictly attended to.

All directions and instructions not spoken of in this contract will

be given by the chief engineer of the Washington. aqueduct

47 for the time being, or his authorized assistants ; and he shall

have it in his power to make such changes in the forms, di-

mensions, grades, and alignments of the work as the interest of the

District of Columbia shall seem to require. If any such changes

are made after the. commencement of any particular piece of work,

and the changes thereby should increase the cost, the engineer s chal

allow such an amount as in his judgment he considers to be fair

and equitable as between the parties.

All grades, dimensions, locations, and heights of the different

kinds of work will be given by proper stakes and bench marks; such

stakes and bench marks must be preserved by the contractor until

the prosecution of the work requires their removal. If the con-

tractor, in a willful or careless manner, removes or causes the re-

moval of any of said stakes or bench marks before the prosecution

of the work requires it, the expense of replacing them will be

48 charged to the contractor, and the amount deducted from the

amount due on his final settlement.

The engineer is to make all measurements, and to decide as to the

amount or quantity:of the several kinds of work, and as to the

quality of all materials. All work and all materials shall be satis-

factory to him and subject to his rejection.

The chief engineer shall also decide as to the meaning and intent

of any portions ‘ot these specifications, where the same may be found

obscure, and he shall have the right to correct any errors or omis-

‘sions in them, when such correction is necessary for the proper

fulfillment of their intention, the action of such correction to date

from the time that the engineer gives due notice thereof. In case

16 ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

bidders suspect any possible difference of opinion between them-

selves and the engineer as to the meaning of any part of the specifi-

cations, they must ascerta’ and bid upon the engineer’s

49 understanding of it, expressed in writing, at the solicitation

of the bidde 1, also expressed in writing.

The engineer's decision as to any of the foregoing matters shall

be final and binding upon the parties hereto.

It is intended that the contract and specifications shall cover the

completion ot the work fit for Lse, ana the contractor shall clo all

work and furnish all materials to that end.

No claims for extra work shall be made unless the same shall be

done in pursuance of a written order from the engineer. All claims

for extra work so ordered must be made to the engineer, in writing,

before the payment of the next succeeding estimate after. the work

was performed ; and, failing to make such claim, the same shall be

considered as abandoned by the contractor.

The value of any extra work is to be determined by the engineer,

and his decision thereon shall be final and binding upon the

50 parties hereto.

| Any omission to disapprove of any work by the engineer

at the time of a monthly or other estimate shall not be construed to

be an acceptance of any defective work.

The contractor shall not let, assign, or transfer, by attorney or

otherwise, this contract or any part thereof, or sublet any part of the

work to any other person or persons, and shall give his pérsonal

attention to its fulfillment.

The contractor shall employ competent foremen, experienced

mechanics, and others skilled in the several parts which are given

them to do; and shall immediately discharge, whenever required to

do so by the engineer, any men considered by suid engineer incom-

petent or disorderly; and such persons shall not again “be employed

upon the works. |

Approximate estimates will be made as soon after the first of

each month as practicable by the engineer during the pro-

Oo] eress of the work, and an order fer ninety per cent., In cur-

rent funds, of the value of the work done, will thereupon be

given by the chief engineer to the contractor, for payment at the

office of the proper financial agent of the Distriet of Columbia.

It is expressly understood that such estimates shall only be made

when the work progresses as rapidly as may be required by said

engineer, and in accordance with the provisions of this contract,

and no. payments will be made except for such portions of the work

as are refilled, repaved, and completely finished.

It is hereby understood that the prices and amounts aid under

this contract, refer simply to the quantities of work which shall be

done, as the future or final measurements of the work may prove

them to be, the estimates exhibited at this date being. but approxi-

and no claims growing out of misconception of the quanti-

ties, or kinds of. work, or of any errors in the ss. em

52s statements of them, at this date, are to be allowed or con-

9 4

sidered valid.

mate:

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 17

And the said parties of the first part hereby agree to pay to the

said party of the second part all losses incurred or damages done

to any of the said pipes or appzutenances from the time of the de-

livery of the same to the contractor, or any agent of said contractor,

until the same are laid and covered.

} And the said parties of the first part hereby further agree that if,

in the opinion of the engineer, the several works, or any portion

thereof, are not being done in accordance with the terms, all and

-_> several of this contract, or are not proceeding at a rate which will

| insure the completion of the several parts thereof, and of the whole

of the same, in the manner and with such materials, in such quanti-

ties and at such dates as are expressed in this contract t and specifi-

cations, then it shall be lawful for the said engineer to pro-

53 ceed forthwith, and cause to be executed, all said works so

improperly performed, and to supply new materials for those

which are of improper quality, or use such materials as may be

found on the works, and to employ such additional men as he may

deem expedient, by “day’s work” or otherwise, to properly forw ard

and complete the work, or to expel the said parties of the first part

and to proceed to comple te the said work at the sole charge and ex-

pense of the said parties of the first part, without prejudice to the

rights of said District of Columbia to recover damages of the said

parties of the first part for breach of contract, after having given

notice thereof, in writing, three days before employing such ad <é

‘ae tional men, or procuring such additional and proper materials, o

J expelling the said parties of the-first part; and the entire panty

incurred in executing the whole of said works shall be allowed and

paid by the said parties of the first part to the said District

o-t of Columbia, entirely in accordance with the decision of the

chief engineer, and from which decision there shall be no ap-

peal.

It is further mutually agreed that whenever this contract, in the

opinion of the engmeer, shall be completely performed on the part

of the contractor, the engineer shall proceed with all reasonable

diligence to measure up the work, and shall make out the final esti-

mates for the same, and shall certify the same to the proper finan-

cial agent of the District of ¢ ‘olumbia, who shall, exce pt for cause

herein specified, pay m current funds to the contractor, within thirty

days after receiving said certificate, the balance which shall be found

to be due, except as herein specified.

3 Wherever the word “ engineer” is used herein it shall be under-

.. - stood to refer to the chief engineer of the Washington aqueduct, or

to his properly authorized agents, limited by the “particular duties

intrusted to them.

D9 Wherever the word “ contractor ” is used herein it shall be

understood to refer to the party or parties contracting to per-

form the work to be done under these specifications, or the legal rep-

resentatives of such party or parties.

And the said parties of the first part further agree that they will

execute a bond in the sum of one-fifth of the value of the work to

be done, and with such securities as shall be approved by the chief

o— 207

18 ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

engineer, for the faithful performance of this contract, conditioned -

to indemnify and save harmless the said District of Columbia from

all suits and actions of every name or description brought against

it, or any officer or agent of the said District of Columbia, for or on

account of any injuries or damages received or sustained by any

person, structure, or property by or from the said parties of the first

part, their servants oragents, in the construction of said work,

96 or by or in consequence of any neghigence in guarding the

same, or any improper materials used in its construction, or

by oron account of any act or omission of the said parties of the

first part, or their agents, and for the faithful) performance of this

contract by the parties of the first part; and the said parties of the

first part hereby further agree that so much of the money due to

them: under and by virtue ‘of this agreement as shall be considered

necessary by the engineer may be retained by the said party of the

second part until all such suits for claims or damages, as aforesaid,

shall have been settled, and evidence to that effeet furnished to the

satisfaction of the said engineer.

And the said parties of the first part further agree that said engi-

neer may make alterations in the lines, grades, formes, or dimensions -

of the work herein contemplated, either before or after the com-

: mencement of construction. If such alterations diminish the

ay quantity of work to be done, they shall not constitute a claim

for damages or anticipated profits on the work that may be

dispensed with. [f they increase the amount of work, such increase

shall be paid for according to the quantity actually done, and at the

price established tor such work under this contract. |

And it is further agreed that the work shall be commenced and

carried on at such points, in such order of precedence, and at such

times and seasons, as may, from time to time, be directed by the

engineer. — :

The rate of progress in pipe-laying shall be made to conform to

the rate of delivery of the pipes by the founders; and the contractor

for laying shall have no claim for damage on account of any delay

in their delivery by the contractor for casting the pipes.

| And the said parties of the first part hereby agree to re-

5S verve the following prices in full for furnishing all materials

not excepted in these specifications, ahd all labor required in

the aforesaid work ; also, all loss or damage arising out of the nature

of the work aforesaid, or from the aetion of the elements, or from

any unforeseen obstructions or difficulties which may be encountered

in the prosecution of the same; also, all expenses incurred by.or in

consequence of the suspension or discontinuance of said work, and

for well and faithfully completing the same and the whole thereof,

in the manner and according to the plans and specifications, and

the requirements of the engineer under them, to wit:

Georgetown Division.

lor all earth exeavation, per cubic yard, forty (40) cents.

For all rock excavation, per cubic yard, one dollar and seventy-tive

($1.75) cents. |

aie

ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA. 19

For stone embankment, per cubic yard, two dollars and twenty-

five ($2.25) cents. |

For rubble-stone masonry, laid in cement, per cubie yard five

(85.00) dollars.

bY For rubble-stone masonry, laid dry, per cubie yard, three

(83) dollars. y 7

lor brick masonry, laid in cement, per cubic yard, nine dollars

and fifty ($0.50) cents.

lor taking up cobble-stone and blue-stone pavement, per square

yard, seven (7) cents. | ,

For relaying cobble-stone and blue-stone pavement, per square

vard, twenty-five (25) cents.

lor melting and removing 48-inch joints, each, thirty-five ($35)

dollars. : 3 :

lor melting and removing 30-inch joints, each, thirty ($30) dollars.

For melting and removing 12-inch joints, each, ten dollars and

fifty cents. Pee

For cutting cast-iron 56-inch pipes, each, twelve dollars.

lor cutting cast-iron 12-inch pipes, each, six ($6) dollars.

For cutting cast-iron 6-inch pipes, each, two ($2) dollars.

lor gasketing, leading, and making 48-inch joints, each, twenty

(S20) dollars. :

For gasketing, leading, and making 56-inch joints, each, twelve

dollars and fifty ($12.50) cents.

GO lor gasketing, leading, and making 12-inch joints, each,

five ($5) dollars. : 7

For gasketing, leading, and making 6-inch joints, each, three ($3)

dollars. oi

lor furnishing and setting ?-inch air-cocks, each, two dollas and

tiftv ($2.50) cents. -

lor furnishing and setting wooden stop-cock boxes, with iron frames

and covers, each, twelve dollars and ‘fifty ($12.50) cents.

For furnishing and setting wrought-iron bolts and bands, per

pound, fifteen (15) cents.

For hauling and distributing castings, per ton of 2,000 pounds,

one dollar and thirty-seven ($1.57) cents.

For hauling and distributing 56-inch stop-cocks, each, three ($3)

dollars. ; 3

For hauling and distributing 12-inch stop-cocks, each, seventy-five

(75) cents. :

For hauling’ and distributing 6-inch stop-cocks, each, fifty (50)

— eents.

Ana it is further expressly agreed, that no money shall become

due and payable under this contract, except upon the certificate of

the said chief engineer, as hereinbefore provided ; and the

G1 said partiés of the first part further agree that they shall not

be entitled to demand or receive payment for any portion of

the aforesaid work, except in the manner set forth irthis agreement;

and when each and every of the stipulations hereinbefore mentiond

are complied with, and the chief engineer shall have given his certifi-

cate to that effect; thereupon the said duly authorized financial

20- | ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA.

agent of the District of Columbia, will, at the expiration of thirty

days after such completion and de livery of said certificate, pay to the

said parties of the first parties of the first part the whole amount of

money accruing to the said parties of the first part under this con-

tract, excepting such sum or sums as may be lawfully retained un-

der any of the provisions of this contract herein set forth.

And tlie said parties-of the first part further agree to commence

the work herein contracted for, as soon as directed by the chief

G2 engineer, and to continue it regularly as fast as pipes and

—. appurtenances are furnished, and that they all shall be fully

laid and completed for the introduction of water within thirty (30)

days after the receipt of the whole number thereof required by this

contract to be laid by the parties of the first part.

And it is further agreed that the parties of the first part shall

forfeit one ($1.00) dollar a day for each and every day’s delay in

the laying of each and every pipe, special casting, and stop-cock

not laid at the expiration of said thirty days, and the amount ac-

cruing to the District of Columbia under this provision shall be

deducted from any moneys that may be due to said parties of the

first part, and shall be forfeited to said District of Columbia as

liquidated damages.

It is also expressly agreed that this contract is subject to the fol-

lowing extracts from laws of Congress:

3 “Sree. 6. And be it further enacted, That whenever it shall

63 become necessary to lay main pipes for the supply to the

cities of Georgetown and Washington, the cost of the same

shall be paid by the said cities, and the engineer aforesaid is hereby

prohibited from making any contracts for the same unless approved

by the corporations aforesaid, and expressly stipulated with the

contractor or contractors that the payment for the same is to be

made by the said corporations.” Approved by the President March

LSov. -

“Spo. dt. And be it further enacted, That the said engineer officer

shall cause to be furnished and laid, from the distributing reservoir

of the Washington aqueduct to Capitol Hill, in the city of Wash-

ington, along such route as he shall determine, an iron main of

thirty-six inches in diameter, connected with the present mains, at

such points as he shall direct, and that the entire cost thereof shall

~be borne apportionately by the corporations of Washington

64 © and Georgetown; and in order to provide for such cost, the

said corporations are hereby empowered and authorized to

increase the present water rates and water taxes to such an amount

as may by them be deemed necessary.

“Seco. 5. And be it further enacted, That for the purpose of eni nabling

the sce ations aforesaid to carry out the provisions of this act, it

shall be competent for them to borrow, in such proportions as they

may deem necessary, a sum of money not exceeding two hundred

and sixty thowsand dollars for the city of W ashington, and forty

thousand dollars for the eity of Georgetown, redeemable within a

period of ten Vears out of any revenue to be derived from water

rents.” Approved by the President July 14, 1870.

~~ wee ee

——— ~~ wee Oe

ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA. 21

It is also expressly understood that this contract is subject to a

law of the District of Columbia entitled “An act to provide for an

additional supply of Potomae water, by means of the Wash-

69 ington. aqueduct, to the cities of Washington and George-

town, and authorizing a loan for said purpose,’ approved by

the Governor July 20, 1871.

In witness whereof the parties to these presents have hereunto set

their hands and seals the day and year first above written. .

(Signed) : OWEN OHARE. LL. 8.

. ae HENRY HIMBER. LL. 8. |

. D. Ek. DAVENPORT. L. S.

‘ ee EDWARD MARTINDALE. [1. s.

‘ GEORGE H. ELLIOTT, i 63

Major of Engineers and

Chief Engineer of Washington Aqueduct.

34 : EDWIN L. STANTON, [L. s.]

Acting Governor District of Columbia.

Approved Sept. 30, 1871.

(Signed) Hl. D. COOKE, Governor.

Signed and sealed in presence of—

Witnesses : |

(Signed) ALS. WORTHINGTON,

As to signature of Edwin L. Stanton.

(Signed) oR. DUNWOODY,

As to Major Elliott’s signature.

(Signed) | A. B. JOHNSON,

! Witness for all but Major Elliott.

[Seal of the District of Columbia. ] ‘LIS 5-cent revenue stamps. ]

66 That said firm of O’Ilare, Himber & Co., soon after the

commencement of the work on their said division of the

water main, abandoned their contract and refused to complete the

work in full; and that thereupon, and on or about the loth day of

April, 1872, the engineer in charge of the work for the District of

Columbia employed and agreed ‘with the plaintiff to perform the

labor and furnish the materials which O’Hare, Himber & Co. had _

agreed to perform and furnish, on that portion of the main from Rock

creek to the market: house, in the city of Georgetown ; and that for said

work and materials the plaintiff was to be paid the same price which

the said defendant had agreed to pay to O’Hare, Himber & Co.

That one Davenport, who was a member of the firm of O’Hare,

Himber & Co., who was duly empowered by said firm thereto,

authorized the employment of the plaintiff by the District of

67 Colurnbia, and for that purpose wrote a letter in the words

and figures following, to wit:

“WASHINGTON, D. C., April 15, 1872.

“General O. E. Babcock, Supt Washington Aqueduct.

“Sir: I he ‘reby authorize R. G. ¢ ‘ampbell to lay the 56-inch water

main from the west side of Rock Creek bridge to the public alley

PERE IIE I NT ROE BORE OR CIE 4S One RR LEME IAT REALL LE LILI LE GL LEI EDING Ley AOR ee, SE a ARE RA PIL EP ON OE MS A a NE

“~ ~ . m se alg tr" ap “ os

RET: SLI a NEN

+ ANAT: centatacoti

2 AO Se OO. Le RRO AB ELAM NRE IRE AGG ie OE MBN POR LLRIT APO Cay

AES OM i Ra a CE A oO RN aoe Te

22 ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA.

east of the market- hoon on bridge street, and all work pertaining

i the same under the contract of O'Hare, Himber & Co., and I will

sign all vouchers and hereby authorize the money for the same to

be. paid to said I. G. Campbell.

(Signed) “Dp. bk. DAVENPORT.

Witness: | |

(Signed) - “TTEODORE B. SAMO.”

Which said letter was delivered at the time to General Babcock,

who was in charge of said work for said defendant.

GS That the work of putting in the water main was under the

general direction of General O. I. Babcock, and under the

immediate direction of T. B. Samo; and on the reception by said

Babcock of the foregoing letter, he, by a written communication

(which cannot now be found) directed the plaintiff to perform the

work aforesaid, and to comme ice the same Immediately.

That about the 16th day of April, 1872, the plaintiff began the

work, and that he was not provided with specifications by the said

engineer, but in licu thereof engineers and inspectors employed by

the defendant were placed over him to direet: his work, and who

directed him what to do and how to do it. That the contract signed

by O'llare, Himber & Co. was not shown to the plaintiff, and he

did not see it until after he had completed Iis work, and that no at-

tention was paid to it by the engineers in their directions relat-

69 ing to the work; that the work was completed by the plain-

tiffin the latter part of July, 1872, and was approved and ae-

cepted ; and that the work was well done by the plaintiff, was ac-

cepted, and is still in use by the District of Colunibia.

That in the execution of said work the plaintiff was directed, by

the engineers In charge, to take up and relay the tracks of the

Washington and Georgetown Railroad Co. for a considerable dis-

tance, and that the defendant's agent agreed that the plaintiff should

be paid therefor whatever sum the same might cost the plaintiff,

and directed the plamtif to keep account of such cost; and that

the plaintiff took up and relaid the track, and kept an account of

the cost thereof, and the amount of the eost of sueh work was

$5,225.00; that the engincer Immediately in charge of the said work —

was Theodore B. Samo, and he personally direeted the plaintiff to

take up.the track of the Washington and Georgetown Railroad

©.

70 © That after the making of the said contract with O'Hare,

[limber & Co., and before the agreement with the plaintiff,

the erade of the street in and along Which the water main was to

be laid was changed very materially and filled to a greit depth

with fresh earth, and in consequence of such change the quantity

and expense of the excavation on this work was greatly increased,

and thereby inercased the expense of such work to the amount of

$2.4150,and that said sum was. the value claimed by plaintiff for

excavation of earth below the depth of cight feet, and that the

depth of eight feet was the maximum depth of the excavation

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 23

upon which the contract with O'Hare, Himber & Co. was based,

and that this would have been the greatest depth had said street

not been filled up as aforesaid.

That the officers of the District failed to furnish at the proper

time ‘castings, pipes, and other materials which they were

71 bound to furnish, thus putting the plaintiff to great expense

by reason of his workmen, tools, and capital being ke pt idle;

and by reason thereof the plaintiff suffered damages amounting to

the sum of $1,926.00.

That after a portion of the work had ‘been completed by the plain-

tiffin accordance with the directions, and to the satisfaction of the

subordinate engineers or inspectors of the defendant, the same was

condemned by other officers higher in authority, and that the plain-

tiff was required to take up the work and do the same over again, at

great and extra cost to himself, to wit, to the amount of $490.00,

That the plaintiff, at the request and by the direction of the pro-

per officers of the defendant, performed other work and furnished

other materials extra, and in addition to the work ealled for and re-

quired by the contract with O'Hare, Himber & Co., amounting in

value in the aggregate to the sum of $1,923.95; and that for all

(p- of such extra work and extra materi: ils, and fortaking up and

relaying said railroad tracks, and for said additional excava-

tions, and for said delays and hindrances, and for taking up and re-

laying work properly done, an account was made and by the plain-

tiff presented to the engineer in charge, a copy of which is attached as

the “ Particulars of De emand.” to the declaration in the cause, save

and except that in the item—‘“ 1,400 yards of excavation below eight

(S) feet in depth at bridge (@ $1.75,°—$2,450.00— the sum. or total

of the charge, to wit, the figures $2,450.00 were not inserted or filled

In; that the said work was so done and the materials so furnished

by the plaintiff at the request of the defendant; and that the engineer ;

the agent of the defendant, passed upon the said bill, and allowed

some of the items, and disallowed others in whole or in part, and

that the sum total of his allowances on the said account was only

$1,807.90; and that after such allowances had been made by

7 the said engineer, the Legislative Assembly of the District of

Columbia, passed an act, approved January 26, 1875, provid-

ing for the payment, among other things, of the amount of the said

allowances, and that the said act of the Assembly, so far as it relates

to the work, &e., of the plaintiff, is in the words and figures follow-

ing, to wit:

‘An act to provide fora deficiency ol appropriation for laying the

36-inch and other water mains directed by act of Congress of ‘July

14, 1870.” The second section of which is as follows, to wit:

“Sec. 2. And be it further enacted, That in order to pay the said

deficiency as reported by General Babcock, United Statés Engineer

in charge, there be, and is hereby, appropriated out of the proceeds

of said water bonds the sum of thirty-five thousand dollars, or so

much thereof as may be necessary, payable as per report of General

sabcock, as follows: :

94 ~~ ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

74 © To Messrs. Emmart, Dunbar & Co., cighteen thousand

nine hundred and fiftv-seven dollars and seventeen cents.

“Po Messrs. Emmart & Smith, sixteen hundred and fifty-three

dollars and ninety-five cents.

“To R. G. Campbell, eighteen handres and seven dollars and

ninety cents. :

“Messrs. Jesse W. Star & Sons, nine thousand and four dollars and

forty-five cents. | 3

“Messrs. Robert Strong & Co., four thousand one hundred and

sixty-two dollars and seven cents: Provided, That the said amounts

shall be received in full of all claims on account of the said: work :

And provided further, That when Robert Strong & Co. shall have

given a receipt in full, the penalty for non-fulfillment of their

contract shall be and is hereby remitted: Provided further, That

this reccipt shall not debar the above named persons from any rights

they may have in any court.’

7 That the amount of such allowance was afterwards paid

by the defendant to the plaintiff, and receipts were signed

and delivered by him to the defendant, as appears by the following

ee of counsel made and filed in the cause, to wit:

In ‘the Supreme Court of the District of Columbia, this the 20th

day of September, A. D. 1875.

Roperr G. CAMPBELL

us. > At Law. No. 12593.

THe. DISTRICT OF COLUMBIA.

The attorneys for the respective parties stipulate and agree as

follows: :

The plaintiff herein is the R. G. Campbell mentioned in’ the act

of the Legislative Assembly of said District, approved June 26,

IS73, ch. 51. That after the passage of the said act the said plain-

tiff filed, or caused to be tiled, with the board of audit of said dis-

trict, the original of a paper hereto attached, purporting to

76 be a bill by R.G. Campbell against the District of Columbia,

| on account of a 36-inch water main, for $1,807.90, approved

by O. KE. Babeock, colonel of engineers, United States Army, and

contaming three receipts for different: amounts in part payment of

suid claim, and each of them signed by the said plaintiff.

That said claim so filed was duly acted upon by the said board

of audit, and that an award for the balance, $269.40, was made to

said Campbell by said board of audit, and that on the 7th day of

December, 1874, the said plaintiff signed a receipt to the said board

of audit for their certificate for said balance, and that the paper

hereto attached, headed “Washington, D. C., Nov. 24, 1874,” is a

correct copy of the original of said receipt, and that the two papers

above described and attached to this stipulation shall be received

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 25

without further proof as correct copies of the originals and as evi-

dence in said cause. .

77 3 ENOCH TOTTEN,

Attorney for Plainti ff.

WILLIAM BIRNEY,

Attorney for Defendant.

District of Columbia, on account of 36-inch water-main, to R. G.

Campbell, Dr.

1873.

For extra work done and materials furnished for the District of

Columbia, 56-inch water-main, being amount allowed by the chief

engineer as per his report to the Governor of the District of Colum-

bia, dated May 3, 1873, and as per act of the Legislature of the Dis-.

trict of Columbia, approved June 26, 1875, $1,807.90.

The above is correct.

O. E. BABCOCK,

Chief of Engineers, U.S. A.

Received, at Washington, D. C., this 29th day of September, 1873)

from Colonel O. E. Babcock, corps of engineers, the sum of

78 one thousand dollars and cents in water bonds in part

payment of the above account.

(Signed in duplicate) R. G. CAMPBELL.

Received, at Washington, D. C., this 5rd day of June, 1874, from

Colonel O. E. Babcock, corps of engineers, U.S. A., the sum of three

hundred and eighty-eight dollars and eighty-eight cents ($5838.88),

in part payment of the within account, in water bonds.

R. G. CAMPBELL.

Received, at W ashington, D. C., this 29th di ay of July, 1874, from

Colonel O. E. Babcock, corps of engineers, U.S. A., the sum of one

hundred and forty-nine dollars and. sixty-two cents ($1. 49.62) in eash,

in part payment of the within account.

ads R. G. CAMPBELL.

| Wasuineton, D. C., Nov. 24, 1874.

District of Columbia to R. G. Campbell, Dr.

For balance due for extra work on the 56-inch water-main,

79 as allowed by the engineer and the act of the Legislative As-

sembly, being the amount of his claim left unpaid on account

of = eee having been exhausted, $269.40.

$1,807 90

: Paid Sent. 29, 1873... 8 Oe Mie nT E $1,000 O00

Paid June 3, 1874_-_------ ----------------- 388 88

Fase JOy Dy, 161 Gis + ss enn suns 149 62 :

| 1,538 50

Balance due... -~ ~—~~~~-~- = --- nies nen eee $269 40

4—207

96 ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

Zeceived this 7th day of Dece m ber, 1874, from the Board of

‘Audit their certificate No. 9184 for $299. 40, in full settlement of the .

above-stated claim.

R. G. CA MPBELL.

And that no other or further payments have been ‘made to the

plaintiff by the defendant on account of such labor, materials, and

damages; and then the plaintiff rested.

There upon the defendant, to maintain the issues on its part, offered

— In evidence certain entrit ‘'s and records of this court to show

SO that on the 22nd day of June, 1875, this cause came for trial,

and that a jury was duly sworn, and that after the trial had

proceeded a juror was withdrawn by the court, and an order was

made referring the cause to the orditor of the court to state the ac-

counts between the parties; and that afterwards, and in December,

1875, the said auditor filed his report, in and by which he declared

a balance due to the plaintiff from the defendant of $10,101.00, with

interest; to which report the defendant in due time filed its excep-

tions, and that on the hearing said exceptions in the general term of

this ~~ the first instance) said report of said auditor was set

‘aside by the following 6rder, to wit:

“The motion of the plaintiff for judgment on the auditor’s report,

and the defendant’s exceptions to said report, ordered for hearing

here in the first instanee, argued by Mr. Birney for the District of

Columbia, whereupon the court remands the case to the cir-

. $i cuit court for’ further proceedings there, in accordance with

the opinion filed by. Justice Wylie.”

And that said cause having again come on for trial, on the 18th

day of December, 1877, it was again by consent of counsel, referred

to a special referee, who, on the 17th day of October, 1878, filed his

report awarding to the plaintiff the sum of $3.068.50, with interest,

te which report exceptions were filed, going to the whole sum so

found due by said report and that afterwards the circuit court, after

hearing, sustained all of said exceptions, set aside said last named

report Dy an order bearing date Deeember 28, 1878, in the words

and figures following, to wit:

“Now comes here as well the plaintiff as the defend: ant, by their

respectiv e attorneys, and thereupon this case comes on to be heard

upon the defendant's exceptions to the award of the referee

8? filed in this case, and the same having been heard, argued,

, and fully considered, it 1s considered that said exceptions be

and the same are hereby sustained, and said award set aside.”

And that from said judgment the plaintiff appealed to the general

term, wherein the said judgment, on the 19th day of April, 1880,

was affirmed by an order in the following words and figures, to wit:

“Now again come here as well the plaintiff as the defendant, by

their respective attorneys ; whereupon, because it seems to the court

here, that the ‘re Was no error In the judgment of the special term of

December 27, 1878, allowing the e xceptions of the defendant to the

referee’s award, and in setting aside said award; therefore it 1s con-

sidered that the satd judgment of the special term be and is hereby

shee NNN ia es. «

ROBERT G. CAMPBELL Vs. THE DISTRICT OF COLUMBIA. 27

affirmed with costs. And the court thereupon orders that the case

be and hereby is remanded to the special term for further proceed-

ings according to law.”

83 The defendant also gave evidence to show, and which

tended to prove, that all the work done by the plaintiff was

performed under the [in pencil :] (said) contraet with O’ Hare, Himber

Himber & Co., to whose rights and liabilities he was to that extent

subrogated. |

And, the testimony being closed on both sides, the defendant moved

the court to direct the jury to render a verdict for the defendant ;

which motion was granted, and the jury thereupon, in pursuance of

directions by the court, rendered a verdict -for the defendant; to all

of which the plaintiff, by his counsel, then and there and before the

giving of said verdict, duly excepted, and the exception was duly

noted upon the minutes of the court at-the time.

And the said plaintiff now tenders this his bill of exceptions, and

the same is by the court allowed. -

And in testimony whereof the said bill of exceptions is now, this

thirtieth day of January, 1883, signed and sealed.

ARTHUR MacARTHUR, Justice. [seat]

S4 Endorsed: M. 18, p. 284. Filed January 350, 1885. R. J.

Meigs, clerk. .

Motion for New Trial on Exceptions. Filed Jaw y 30, 1885.

Supreme Court D.C.

Rosert G. CAMPBELL vs. District OF CoLupta.

And now comes the said plaintiff and moves the court for a new

trial on the bill of exceptions.

ENOCH TOTTEN,

| For Plaintiff. .

Endorsed: M..18, p. 254. Filed January 30, 1883. R. J. Meigs,

clerk. yee : :

85 Judgment below Affirmed in Gen. Term, Feh,. o, 1883.

In the Supreme Court of the District of Columbia.

Proceedings in General Term. | February 9th, 1889.

Ropert G. CampsBett, Plaintiff,

| No. 12598.

: v. 7 At Law.

Tue Districr of CoLuMBIA, Delendent |

And now comes here as well the plaintiff as the defendant, by their

‘counsel, Mr. Totten for plantiff and Mr. Riddle for defendant.

Whereupon, because it appears to the court here that there 1s not

in the record and proceedings, or in the judgment. of the special

term, any error, therefore it is considered by the court here that

REE OE eI AOR AE 2S 20 Pcl Se ge

28 ROnKET G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

the said judgment be, and the same is hereby, affirmed,

86 the plaintiff’s motion for a new trial upon exceptions not-

withst nding; and that the defendant recover against the

plaintiff the costs of the case in this court, to be taxed by the clerk,

and have execution therefor.

S7 . Writ of Krror to S. C1. ULS.

UNITED STATES OF AMERICA, 88:

The President of the United States to the chief justice and Justices

of the supreme court of the District of Columbia, Greeting:

Because in the record and proc eedings, as also in the rendition of

‘ reuene ina plea which is in the said court before you, between

Robert G. Campbell, plaintiff} and District of Columbia, defendant,

No. 12593, at law, a manifest error hath happened, to the oreat

damage of the said) plaintiff, as by his complaint appears; and it

being fit that the error, if any hath happened, should be duly cor-

rected, and full and speedy justice done to the parties aforesaid in

this behalf: Therefore vou are hereby commanded, if judgment be

therein given, under your seal, distinetly and openly, to send the

record and proceedings aforesaid, with all things concerning the

same, to the Supreme Court of the United States, “together with this

writ, so that you have the same at Washington on the second Mon-

day of October next, in the said Supreme Court to be then and

there held, that the record and proceedings aforesaid being inspected,

the said Supreme Court may cause further to be done therein to

correct that error, what of right and according to the law and cus-

tom of the United States should be done. |

Witness the honorable Morrison R. Waite, Clief Justice of the

United States, this 27th day of February, in the vear of our Lord

AS8S3, and of the Independence of the United States the one hundred

and seventh. |

[Seal Supreme Court of the Distriet of Columbia. ]

| | : R. J. MEIGS, Clerk.

Disrricr or CoLuMBIA, to wit.

To the District of Columbia:

You are hereby cited and admonished to be and appear at a

Supreme Court of the United States to be holden at Washington

on the second Monday of October next, pursuant to a writ of error

filed in the elerk’s office of the supreme court of the District of

oo wherein Robert G. Campbell is plaintiff and you are de-

fendant, to show cause, if any there be, why the judgment in the

said writ a error mentioned should not be correcte ‘d, so that speedy

justice be done the parties in that behalf. i

Witness D. Kk. Cartter, chief justice of the said supreme court of

the Distriet of Columbia.

Service acknowledged.

a) 2 A. G. RIDDLE,

Keb’y 27, 83. ee | Att'y for Def't.

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA. 29

88 Bond of Appeal to 8. C. U.S.

In the Supreme Court of the District of Columbia, the 15th day of

February, 1885.

Rospert G. CAMPBELL )

vs. >No. 12593. In Error.

THe District oF Conumsta. J

Know all men by these presents that we, Robert G. Campbell, as

principal, and Ehas E. White, as surety, are bound unto the above-

named District of Columbia in the sum of one thousand dollars, to

be paid to the said District of Columbia; to which payment, well

and truly to be made, we bind ourselves and each of us, jointly and

severally, and our and each of our heirs, executors, and admuinis-

trators, firmly by these presents. :

Sealed with our seals and dated this - » day of February, 1883.

Whereas the above-named Robert G. Campbell hath prosecuted a

writ of error to the Supreme Court of the United States to

SY reverse the judgment rendered in the above suit by the said

supreme court of the District of Columbia:

Now, therefore, the condition of this obligation is that if the

above-named Robert G. Campbell shall prosecute his said writ to

effect, and answer all damages and eosts if he shall fail to make

good his plea, then this obligation shall be void; otherwise, the

same shall be and remain. in full force and virtue.

| R. G. CAMPBELL. SEAL.

ELIAS FE. WHITE. bescre,

Sealed and delivered in presence of—

W. B. HOLTZCLAW.

I think this good. | RIDDLE,

or Dist.

Approved February 27th, 1583.

| | D. K. CARTTER,

Ch’f Just.

90 | AUTHENTICATION OF RECORD.

Clerk's Certificate.

: CLERK'S OFFICE,

SuPREME CouRT OF THE Districr OF COLUMBIA.

I, R. J. Meigs, clerk of the said court, do hereby certify that the

writings annexed to this certificate are true copies of originals

on file and of record in said office, and that said originals together

constitute the record of the proceedings of said court in this cause.

Witness my hand and the seal of said court, this 9th day of

March, 1885. 3

[Seal Supreme Court of the District of Columbia. ]

R. J. MEIGS, Clerk.

FP SATS 24:

ee eee Oe nig Spies

re ar: ne nt (ae ae i

N Paged OTM Par ONS EM toe Nigh Pee

pipner eponts

; St OR PEST er ome

po Se ap pe

1 ath

ROBERT G. CAMPBELL VS. THE DISTRICT OF COLUMBIA.

Justice's Certificate.

I, David K. Cartter, chief justice of said court, do certify the fore-

going attestation by R. J. Meigs, clerk of the said court, to be in due

form.

Witness my hand and seal, this 9th day of March, 15883.

| D. kK. CARTTER, [seat]

Chief Justice.

Clerk’s Certificate to Justice’s Official Character.

I, kh. J. Meigs, clerk of said court, hereby certify that David K.

Cartter, whose genuine signature Is subscribed to the foregoing cer-

tificate, was, at the time of signing and attesting the same, chief

justice of: said court, duly commissioned and qualified.

Witness my hand and the seal of said court, this 9th day of

March, 18835.

[Seal Supreme Court of the District of Columbia. ]

R. J. MEIGS, Clerk.

re ore pt: on cover: Dist. of Columbia supreme court. No. 207.

Robert G. Campbell, plaintiff in error, vs. The District of Columbia.

Filed.20th March, 1888.

{

. +

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1885.

ROBERT G. CAMPBELL. )

Plaintiff in Error, |

No. 207.

Vs.

THE DISTRICT OF COLUMBIA. | '

Brief for Plaintiff in Error.

_ STATEMENT OF THE CASE,

This is an action of assumpit for work done and materi-

als furnished for the defendant by the plaintiff,in error, in

the construction of a portion of the water main, authorized —

by the act of Congress, approved July 14, 1870. (16 Stat.,

276.) |

This statute directed that this main should be laid “from

the distributing reservoir of the Washington acqueduct to

Capitol Hill in the City of Washington,” the expenses of

which were to be paid by the cities of Washington and

Georgetown. Provision is made by the fifth section of the

statute, for borrowing money to defray such expenses. By

the act of Congress, approved February 21, 1871, (16 Stats.,

419), the corporations of the cities of Washington and

Georgetown were abolished and the entire District was

ercated a municipal corporation, which succeeded to all the

rights and liabilities of the corporations so abolished by that

law. | : 3

~Bya contract in writing, and under seal, bearing date

September 21. 1871, the proper representatives’of the Dis-

trict of Columbia agreed with a certain firm doing business

under the name of O’Hare, Himber & Co., for te construc-

tion of that portion of the main called the “Georgetown

Division” (7, 9, 18), being that part extending from the

west side of “foundry branch to Rock Creek Bridge.”

The contracting firm of O’Hare; Himber, & Ce., soon

after ‘hey commenced the work on their division, aban-

doned their contract, and refused to complete the work in

full (21). At this juncture of affairs the representatives of

the defendant employed the plaintiff to construct that part

of the main included in the contract, which extends from

Rock Creek to the market-house in Georgetown, for which

the plaintiff was to be paid the same price which the de-

fendant agreed to pay to O'Hare, Himber & Co. One of

the members of that firm assented to this employment of the

plaintiff. In addition to this.the contract itself authorized

the engineer officer in charge of the work, upon failure of

the contractors, to employ other persons to complete the

work (17). ? oo |

On the 16th day of April, 1872, the plaintiff began the

work. THe was not provided with specifications by the en-

gineer, but in lieu. thereof engineers and inspectors em-

ployed by the defendant, were placed over him to direct

his work and to tell him what to do and how to do it. The

contract signed by O’Hare, Himber & Co. was not shown

to the plaintiff, and he never saw it until after he had com-

pleted his work, and no attention was paid to it by the en-

gineers in their directions ts the defendant relating to the

work. The work was completed by the plaintiff in the

Jatter part of July, 1872, and was approved and accepted

by the defendant; it was well done, and is in use by the de-

fendant for the benefit of the public.

The matter in ‘dispute in this case relates to work done

and materials furnished which were not included in the

written agreement between the defendant and O'Hare, Him-

ber & Co., but were extra and in addition to it.

The plaintifls demand consisted of many items particularly

set out in the paper attached to the declaration in the case,

and called the “ Particulars of Demand.” These items

consisted of a charge for taking up and relaying a rail-

road track ; for excessive excavations made necessary by

the act of the defendant in filling up the street between the

time of making the contract with O’Hare, Himber & Co.,

and the agreement with the plaintiff; for unreasonable de

lays caused by the defendant in failing to furnish the cast-

ings, pipes, &c., which it was bound to furnish, whereby the

plaintiff and bis workmen, tools, &e., were kept idle; for the

cost of tearing up and doing again certain work which had

been done by the plaintiff under and according to the direc-

tions of the officers of the defendant put over him and by

them approved, and for a great deal of extra work, &c., par-

ticularly mentioned in the particulars of demand filed with

the declaration. (4 and 23.) Evidence was given by the

plaintiff to the jury on the trial to show that these several

items amounted to about $9,000.00.

The plaintiff, after the work was completed, presented

to the engineer in charge of the work a claim for such

extra work, &c., substantially like the bill of items at-

tached to the declaration, and the engineer allowed some

of the items and disallowed others. The amount of the

items allowed was $1,807.90. (23.) For this sum the

Legislative Assembly of the District made an appropria-

tion in favor of the plaintiff, and the plaintiff gave a

receipt therefor, which on its face declares that it is “in

full settlement of the above-stated claim.” (26.)

The act of the Assembly referred to, appropriated money

to pay the claims growing out of this public work of

several firms, and it concluded with a proviso to the effect

that the receipts given for the funds so appropriated should

not debar those. persons from any rights they might have :

in the courts (24.) , :

The defendant gave evidence to the jury on the trial, to ,

show that the work done by the plaintiff was performed

under the contract with O’Hare, Himber & Co., to whose

rights and liabilities he was subrogated.

The evidence of both parties being closed, the defendant

asked the Court to instruct the jury that on the whole evi-

dence the plaintiff could not recover, and that the defend-

ant was entitled to their verdict; this was done, and the

plaintiff excepted. 3

The General Term of the Court affirmed this judgment,

and the case was brought here on writ of error,

Assignment of Error.

The Court erred in instructing the jury that the defend-

ant was entitled to a verdict.

ee Argument.

It appears by the record (26), that this case was twice

referred to an auditor or referee. The first reference re.

sulted in an award in favor of the plaintiff for $10,101.00

with interest; the second resulted in an award for $3,068.50

with interest. Both of these awards were set aside by the

Court; the first in the General Term, and the second in the ~~

Circuit Court. The reasons for the action of the General —

Term on the first hearing, as assigned by that Court, will

be found reported in 2d MacArthur, 533. On the two

hearings which were subsequently had, opinions were not

preserved, |

2 Neg ce RI

The work of taking up and relaying the tracks of the

Washington and Georgetown railroad was work which was

not included by the terms of the contract with O’Hare,

Himber, & Co. The only provision of the contract upon

which the opposite theory can be asserted is that in the be-

gining of the specifications, where the different kinds of work

to be done are enumerated, one of them is “taking up and

replacing street pavements and other surfaces.” <A street

railroad cannot be called a “surface” by any fair construction.

It was not so understood by the parties who were en-

gazed in the work in behalf of the defendant. Mr. Samo

who was in charge of the work for the defendant, personally

directed this work to be done by the plaintiff and agreed

that heshould be paid the cost of doing it; he also directed

the plaintiff to keep an account of such cost, which was

done. | |

The plaintiff is entitled to recover in this action the dam-

ages for delays caused by the defendant. He is entitled to

to recover a reasonable price for the work which he com-

pleted ; of course the price of work is increased by nnlooked

for delays, and the proof shows damages to the extent of

$1,926. The court below, when the case was first before the

general term, held that such damagescould not be recovered

in this form of action, and for that reason held that the

auditor should have rejected this item. But, it is submitted,

this was error. The opinion also dwells upon the stipulation

of the contract. (2 MacArthur, 536.) But the special cove-

nants and stipulations in the agreement were not binding

upon the plaintiff; he was not a party to it, and did not

even see it. :

The item for $490.00, the cost of tearing up and doing

over again, part of the work which had been done accord-

ing to and under the immediate direction of an agent se-

lected and employed by the defendant for that purpose,

should be recovered by the plaintiff. It would be ex-

tremely unjust to shift the risk of the incompetency of the

defendant’s engineers upon the plaintiff. He performed the

work as he was directed by the special agents of the de-

fendants. ‘Enyineers and inspectors employed by the de-

fendant were placed over him to direct his work, and who

directed him what to do and how to do it.” (22!) These

officers approved the work, and that act was binding upon

the principal. ) :

The other items of the claim for extra work, amounting

to $1,922.95, ought to be allowed, unless the plaintiff has

estopped himself by his receipts (25, 26).

~The Court below, as I understand the final decisions,

rested its judgments upon the ground that the plaintiffs’

right of action, however justit might have been, was barred

by this-final settlkement. The determination of this ques-

tion will depend upon the Janguage of the statute, which

provides for the settlement. That statute is entitled “An

Act to provide for the deficiency of appropriation for

laying the 56-inch and other water mains directed by the

Act of Congress of July.14, 1870” (238). The act, then,

appropriated $35,000 to be paid, according to the report

of General Babeock, to four different firms, in addition to -

the plaintiff. The last item of the appropriation is 1n favor

of Robert Sirong & Co., which is immediately followed

by three successive provisos, in this language :

“ Provided, That the said amounts shall be received

in fall ef all claims on account of said work; and pro-

vided turther, that when Robert Strong & Co. shall

have given a receipt in full, the penalty for non-fulfill-

ment of their contract shall be and is hereby re-

mitted ; Provided further, that this receipt shall not

debar the above-named persons from any rights they

may have in any Court.”

It seems plain that the intention here was to pay to the

several persons mentioned, the amounts allowed by the en-

einecr officer to them, respectively, and to Icave all other

claims ( except in the case of Strong & Co)., unaffected by

the payments. The first proviso was probably inserted in

the original draft of the bill, but it was found necessary to

change and add to the bill. The proviso relieving Strong

~& Co. from the forfeiture was probably added: by way of

amendment, and the first proviso which requires the amount

to be “received in full” being unsatisfactory to some of the -

parties interested was rendered inoperative by the last pro-

viso, It certainly has some office to perform, being the last

expression of the legislative mind. It can hardly be said

to apply to Strong & Co., because they, instead of holding

claims against the District were suppliants for relief from a

forfeiture due to the District, and the proviso which applies

solely to them and grants relief from the penalty for the

non-fulfilment of their contract, expressly requires that the

penalty shall stand remitted only when Strong & Co. “shall

have viven a receipt in full.” It seems reasonable, there-

fore, that the last or third proviso was intended to apply to

all the other persons and not to Strong & Co.; after the

special provision for the benefit of that firm the statute pro-

vides that the receipt of the money so appropriated, “ shall

not debar the above-named persons from any rights they

may have in any court.”

In view of these statutory directions as to the terms of

the settlement with Campbell, it is difficult to see how it

could have been the intention of the parties who made the

settlement under this appropriation act, that Campbell

should be estopped. The whole account as stated (25-26),

is based upon the act of the Legislative Assembly, and the

last receipt (26), is stated to be “in full settlement of the

above stated claim,” 7. e., the allowances made by that

statute. It is submitted that the judgment of the Court

below should be reversed and that a new trial should be

ordered. :

ENOCH TOTTEN,

Att'y for Plaintiff in Error.

Supreme Court of the Cuited States.

OCTOBER TERM, 1885. ao

No. 2 OF. %

R. G. CAMPBELL, PLatstirr,

THE DISTRICT OF COLUMBIA, Derenpant. as

In Error to the Supreme Court of the District of Columbia.

BRIEF FOR THE DISTRICT.

A. G. RIDDLE,

For the District of Columbia.

JUDD & DETWEILER, PRINTERS.

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pasate.

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Supreme Court of the Enited States.

OCTOBER TERM, 1885.

No. 207.

R. G. CAMPBELL, Prarntirr,

| vs.

THE DISTRICT OF COLUMBIA, Derenpant.

In Error to the Supreme Court of the District of Columbia:

BRIEF FOR THE DISTRICT.

This case is somewhat peculiar in its origin and structure

and curious in its history. Commenced June 12, 1874, its

course was active and troublesome till its rest in this Court

of three years. It arises out of the water supply of the two

cities by the District resting primarily on the act of Con-

gress of March 5d, 1859, (11 Stats., 435,) the general act relat-

ing to the water supply, the 6th section of which charges

the costs upon the cities, also the act of July 14, 1870, which

required the engineer in charge of the water works to lay

a 36-inch water main from the reservoir in Georgetown to

Capitol Hill. (16 Stats.) : |

This matter, the 36-inch main, was provided for by act of

the District Legislature of July 20, 1871, chapter 17, acts

‘first session, p. 17.

September 27, 1871, the engineer entered into a contract

with O’Hare, Heimber & Co. for a certain portion of the

work. (Rec., pp. 7 to 21, inclusive.)

<P oh Sa It

It seems the firm never actively undertook the work, but

authorized Davenport, one of the firm, to enter into an ar-

‘angement with the plaintiff to do certain of the work, to

which Babcock, then chief of the water works, assented, (pp.

21,92) |

The plaintiff went forward under the contract and the

engineer, and was paid from time to time until comlpeted,

when he claimed $10,084 for extra work, the whole of which

was at no time submitted to the engineer as the contract

required, (p. 16.) Upon what was submitted the sum of

$1,807.90 was allowed, (pp. 23 and 24.) This was conclusive

under the contract by the provision cited from p. 16.

Thissum was paid in full. (See statement of account and

receipts of plaintiff, p. 25.) The first, September 29, 1873 ;

the second, June 3, 1874; the third, July 29, 1874; the fourth,

November 24, 1874. Meantime, the suit was commenced

June 12, 1874, as stated. |

~The plaintiff was permitted, in his own name, to enforce

the O'Hare contract. His suit was for quantum meruit. To

his claim the defendant plead the general issue, and later, a

plea puis darrein continuance, (pp. 5, 6). Ordinarily the sole

issue that could be tried would be on this plea. Not so in

this case, however; no attention was paid to that quality of

it. lor the history of the case itself recourse must be had

to the bill of exceptions on which the case passed from the

trials of the courts below to the 1epose of this, beginning at

page 7. It seems the case came up for trial in the circuit

court in June, 1875, when a juror was withdrawn and the case

referred to the Auditor to state an account. He found a

balance due the plaintiff of $10,101, with interest. To this

the plaintiff filed exceptions, and the case was heard in the

general term, the exceptions sustained, and the case re-

manded. (Ree., p. 26.) See case, (2d MacArthur, 553,) a curl

ous study in jurisprudence of half seeing.

The case came up again in the cireuit court in December.

1877, when it was referred to a special referee. His report

found due the plaintiff $3,068.50, with interest.

To this the defendant excepted, the exceptions going to

every item the whole sum allowed. The circuit court sus-

tained all the exceptions. On appeal and full argument the

general term affirmed this judgment. (Ree., pp. 26 and 27.)

There is no report of this decision, nor written opinion. As

it went to the merits of the case it would seem as if, on re-

manding, final judgment might have followed..

It may be observed that the record now before the Court

does not contain any of these proceedings, and only the

journal entries and minutes given in evidence by the de-

fendant at the final trial (p. 26), showing that such proceed-

ings were had, neither awards, findings, evidence, nor excep-

tions are set forth;. nothing but a statement of them and

copies of the orders of the court setting aside the awards.

In this condition of things the plaintiff called up his case

January 30, 1883 (Ree., p. 6), and had a jury sworn. Clearly

with the knowledge then that all the judges were advised on

all the points of law and fact, the trial, any trial, would be

merely perfunctory. Instead of actually offering his ev?-

dence item by item, and so really raising all the questions

he wished, the plaintiff has it that all his testimony was

admitted; the defendant put in so much as reminded the

court of the rulings in the case, when, as shown, the court

_ Instructed the jury to return a verdict for the defendant, to

which he excepted. Was this error?

What other question can now arise in this C ‘ourt?

Obviously the plaintiff does not care to get rid of this ver-

dict and judgment to find himself before another jury in

precisely the same conditions as before.

What else can he secure, even if it is now found that the

court erred in its instruction to the jury?

The necessities of his case require that the two adverse

decisions of the general term be reversed; that it be decided

that he was not bound by the O’Hare contract. How can

any of these matters be passed upon here? What is there

in this record to show what questions were made on either

hearing below ? :

It is largely matter of inference that some questions were

‘raised and passed upon, but it does not certainly appear that

he ever contended that he was not bound by the O'Hare

contract. If he was, under the law, as now abundantly ruled,

he can have no case. H[e was bound to submit everything

to the engineer, whose decision is conclusive. (See Rec., p. 16.)

~ What is there now here for submission to this Court, save

the one question—Did the court err in directing the jury to

return a verdict for the defendant? Does the record contain

any means by which the Court can pass on that question ?

I submit there is none, unless it is claimed that it is error

for the court—both parties having given evidence—to direct:

such action by the jury. This will hardly now be contended

for. — ye

See Schofield vs. C. M. & St. P. R. R. Co., 114 U.S.,

615, and eases cited by Justice Blatchford.

Clearly there is no error in this record.

A. G. RIppie,

hor District of Columbia.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.