# Record and brief — Robert G. Campbell, Plaintiff in Error, vs. The District Of Columbia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1885_207%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1885 ## Text 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 nS a ; 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 eral 6 PRR, ns es os no a oa oe ee le 12 eee Ne gale pes ae 13 J weanner of eee. es a 14 5 wow 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 Proceedines in General term... oo co a ae aa “5 Jndaom ni He ral ce hs cata, Sa ak sa cud ald bwcaee cx aus uaa Sa i a a aa uae ce aan aes ms.) W ett of GFrG? BAG GOTVW6 8 ee a a eee i ee x7 OR a ter si cae: > sale by “ca ahs aurea caches a unease inning sooo hata) 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 ( “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. OO OU OO OO OO OO OO OO OO OO OO OO OO AO Hd O0 0) H0 0) OO (i) O0 0) 50 OO D0) ()() ()() OO 45 OO OO OO =... 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 : ~ o~ ~ ~~ 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 . 11 4 39 40 2,450 72 222 12 15 00 OO OO OO 00 OO O00 OO OO 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 nwnsAt 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 —— v 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 ws ee aticnuaanbae : CRE tye tehe eo of ome Penne - = pe pet ee ee ero BAS hy aid WT, HE Pee 4 * weey om Staal Santen Mediate: ES EN, LOE LN PORTAL AINE REA ES ts deter - " a a i a puenansaedyemdined “ pathsiaduie 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 v, 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. 3 { | . + 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 o 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.) t 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 5 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.” : bids _ a cia iggy " - . y Ry hs + Ane ayn sans ean engi —es, we . A . Deel Fain * oi bile his Be Sa oe - ee eA ae © ene --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1885_207%3A0. Public record. Not legal advice.