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A clause in the act above referred to provides a method by which a person desiring to be relieved from one-half of the expense of laying such a sidewalk may proceed. It provides for the entire work being done by the Commissioners of the District of Columbia under the laws relating to the manner in which public improvements shall be made.
As the sidewalk was not laid in this manner, and as the provisions of the act of August 7, 1894, have not been complied with, and as there is no law authorizing the repayment by the Commissioners of one-half the cost of any improvement made by an individual, the Commissioners are clearly without authority to pay Senator Call's claim. Respectfully, yours,
R. B. BOWLER,
Comptroller. The COMMISSIONERS OF THE DISTRICT OF COLUMBIA.
DUPLICATE COPY OF JUDGMENT WHEN ORIGINAL
LOST OR DESTROYED. When the copy of a judgment of the Court of Claims, required by section
1089, Revised Statutes, has been lost or destroyed, payment may be made upon-a properly authenticated duplicate thereof.
January 29, 1896. SIR: I am in receipt of your communication of January 28, 1896, in reference to the payment of the claims of Matthew Clark v.United States and the Osage Tribe or Nation of Indians, in which judgmeut has been rendered in favor of the claimant in the Court of Claims.
The question raised is whether under section 1089, Revised Statutes, a duplicate of a judgment certified by the clerk of the Court of Claims and signed by the Chief Justice, can be accepted by this Department in lieu of the copy specifically provided for in the section. You hold:
"I am of the opinion that under that section a duplicate would be entitled to the same credit as the original when it is shown that the origiual is destroyed or lost, and can not be produced.”
And, after reciting the peculiar facts in this case, that
“ It is the opinion of this office that the true intent and meaning of section 1089 has, under the circumstances of this case, been complied with by the filing of the duplicates."
As provided by section 8 of the act of July 31, 1894 (28 Stat., 208), you have referred this original construction of yours of said section 1089 to this office, and I have to advise you that I concur in the same.
All papers transmitted in connection with your letter are herewith returned. Respectfully, yours,
EDW. A. BOWERS,
Assistant Comptroller. The AUDITOR FOR THE INTERIOR DEPARTMENT.
PAYMENTS FOR WORK DONE UNDER CONTRACT UPON PUBLIC BUILDING DESTROYED BY FIRE.
Under a contract for work on a public building in process of erection pro
viding that the contractor shall be paid monthly for work actually executed and put in place, he is, upon the complete destruction of the building by fire without fault of the contractor or of the Government, entitled to payment from the United States for the labor done and for such materials as have been actually worked into the building.
January 29, 1896. SIR: I am in receipt of your letter of the 24th instant, inclosing a contract entered into between the United States and John W. Burrowes for labor, materials, and work required for the interior finish, plumbing, and approaches for the United States custom-house and post-office building in the city of St. Albans, Vt., which contract was entered into on December 17, 1894.
It appears that on December 22, 1893, a contract was entered into between the United States and George W. Corbett for the cut stone and brickwork, ironwork, roof construction, and covering for the superstructure of said building; that the work under said contract was accepted and paid for, and that the work to be done by Burrowes under his contract for the interior finish, etc., was to be done upon the superstructure erected under the contract with said Corbett.
It furthermore appears that on May 19, 1895, before Burrowes had completed the work under his contract, but after he had performed a large portion of the same, the said custom-house and post-office building was, without the fault of either the United States or Burrowes, completely destroyed by a fire, which consumed a large portion of the city of St. Albans. The amount of work done by Burrowes under the contract at the time the building was destroyed is stated by him to bave amounted to:
For completed work .......
........... $11, 100.00
He has been paid in accordance with the terms of his contract $6,390. He now asks payment for $6,060, the difference between the amount paid to him and the value of the work which he claims to have done under the contract. The value of the completed work as claimed by Burrowes is substantially corroborated by the Government superintendent in charge of the building.
You ask whether the United States are bound to pay said contractor for the work put in place under the contract prior to the fire; and if so, are they bound to pay in full for said work or only 90 per cent of the estimated value of the same under the contract.
From an examination of the contract it appears that Bur. rowes agreed “ to furnish all of the labor and materials and do and perform all of the work required for the interior finish, plumbing, and approaches” for said building in accordance with certain ailvertisements for proposals which are made a part of the contract, and that the United States agreed to pay said Burrowes“in consideration of the herein-recited covenants and agree. ments made by the party of the second part (Burrowes, the sum of $17,000. * * * Payments to be inade in the following manner, viz: Ninety (90) per cent (nine-tenths) of the value of the work executed and actually in place to the satisfaction of the party of the first part, will be paid from time to time as the work progresses, in monthly payments (the said value to be ascertained by the party of the first part), and ten (10) per cent (one-tenth) the reof will be retained until the completion of the entire work, and the approval and acceptance of the same by the party of the first part, which amount shall be forfeited by said party of the second part in the event of the nonfulfillment of this contract, subject, however, to the discretion of the Secretary of the Treasury.”
In the proposals which are attached to and form a part of the contract are found the following clauses:
“PAYMENTS: After the acceptance of a proposal, and execution and approval of a formal bond, or contract, monthly payments will be made on account of the work actually executed and in place in the building, and such payments will be made by the authorized agent of the Treasury Department, based upon the estimated value of the quantity of such work computed from the contract unit of value, less 10 per cent to be retained until the entire and satisfactory completion, final inspection, and acceptance of all the materials and work embraced in the contract, at which time final payment of the balance due will be made; but no payment will be made for any materials delivered but not actually put in place.”
" PROTECTION OF WORK AND MATERIALS: The successful bidder will be responsible for the proper care and protection of all materials delivered and work performed by him until the completion and acceptance of, and final payment for, all of the work embraced in his proposal; and part payments, on account of such materials and work, will not in any way relieve bim of such responsibility.”
The last installment of 90 per cent paid to Burrowes was for work done during the month of April, and the next installment would not have been due until the 1st of June, when, if the building had not been destroyed, there would have been due and payable an installment of 90 per cent of the value of the work done during the month of May.
The contract is clearly one to do the entire work for an entire consideration, and is not made apportionable simply because payment in installments is provided. (Anglo-Egyptian Navigation Co. v. Renie, L. R., 10 C. P., 271; School Trustees v. Bennett, 3 Dutch., 513; Lumber Co. v. Purdum, 41 Ohio St., 373; Clark v. Collier, 100 Cal., 256; Butterfield v. Byron, 153 Mass., 517-524.)
It is well-established law that “if a party by his contract charge himself with an obligation possible to be performed be must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.” (Dermott v. Jones, 2 Wall., 1.) And therefore it was held in that case that a party who had covenanted to furnish the material and execute the work in all its parts and details and for the complete finishing and fitting for use and occupation" of certain houses, could not relieve himself from the responsibility of executing that contract in its entirety because of a latent defect in the soil which prevented a portion of the house erected from being fit for use and occupancy, but which could be, and subsequently was, rendered fit for use by the owner. To the same effect are numerous decisions where a person under an entire contract has covenanted to build a house and to deliver it complete. In such case, if the house after partial erection is destroyed by fire or other unavoidable accident, the contractor must rebuild, and is uot entitled to payment for the work done, and if payment has been made and he refuses to rebuild, the amounts so paid may be recoverell back. (Adams v. Nichols, 19 Pick., 275; School Trustees v. Bennett, 3 Dutch., 513; Tompkins v. Dudley, 25 N. Y., 272.)
Where, however, part only of the work on a building under erection is to be done, or where repairs are to be made upon a building already in existence, and the building upon which the part of the work is to be done or the repairs made is destroyed without the fault of either party, neither can recover damages from the other, because the agreement is made upon the implied condition that the building shall continue in exist. ence. (Lori v. Wheeler, 1 Gray, 282; Gilbert, etc., Company v. Butler, 146 Mass., 82; Schwartz v. Saunders, 46 Ill., 18, and numerous other cases. See also Taylor v. Caldwell, 3 B. & S., 826; Appleby v. Myers, L. R., 2 C. P., 651; Anglo-Egyptian Navigation Co. v. Renie, L. R., 10 C. P., 271; Walker v. Tucker, 70 111., 527.)
This implied condition arises from the very necessities of the case, because there is nothing upon which the contract can operate, and therefore the contract is impossible of performance. If nothing has been done under the contract no difficulty arises, because both parties are as if the contract bad never been entered into. If, however, something has been done under the contract much difficulty arises in determining what the rights of the parties are and whether a recovery can be had for the work done; and if so, to what extent. .
In England the rule is that if the contract is for an entire sum payable when the work is completed no suit for the work already done under the contract can be maintained. (Appleby v. Myers, L. R., 2 C.P., 651.) But if under the contract install. ments have been paid, such installments can not be recovered back. (Anglo-Egyptian Navigation Co. v. Renie, L, R., 10 C.P., 271.) But apparently, if an installment were due and unpaid,