MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The first section of the act "to provide a government for the District of Columbia," approved February 21, 1871, 16 Stat.
A governor and legislature were created; also a board of public works, to which was given the control and repair of the streets, avenues, alleys and sewers of the city of Washington, and all other works which might be intrusted to their charge by either the legislative assembly or Congress. They were empowered to disburse the moneys received for the improvement of streets, avenues, alleys, sewers, roads and bridges, and to assess upon adjoining property specially benefited thereby a reasonable proportion of the cost, not exceeding one third.
June 20, 1874, an act was passed entitled "An act for the government of the District of Columbia, and for other purposes." 18 Stat. 116, c. 337. By this act the government established by the act of 1871 was abolished, and the President by and with the advice and consent of the Senate was authorized to appoint a commission, consisting of three persons, to exercise the power and authority vested in the governor and the board of public works, except as afterwards limited by the act.
By a subsequent act approved June 11, 1878, 20 Stat. 102, c. 180, it was enacted that the District of Columbia should "remain and continue a municipal corporation," as provided in section two of the Revised Statutes relating to said District, (brought forward from the act of 1871,) and the appointment of Commissioners was provided for, to have and to exercise similar powers given to the Commissioners appointed under the act of 1874.
This legislation is considered and set forth in Metropolitan Railroad v. District of Columbia, 132 U.S. 1, 6.
By section thirty-seven of the act of February 21, 1871, which is applicable to the present Commissioners, District of Columbia
Section five of the act of June 11, 1878, provided: "All contracts for the construction, improvement, alteration, or repair of the streets, avenues, highways, alleys, gutters, sewers, and all work of like nature, shall be made and entered into only by and with the official unanimous consent of the Commissioners of the District, and all contracts shall be copied in a book kept for that purpose and be signed by the said Commissioners, and no contract involving an expenditure of more than one hundred dollars shall be valid until recorded and signed as aforesaid."
On March 3, 1887, an act of Congress was approved, by which the sum of $100,000 was appropriated for "repairing and laying new mains," and "lowering mains," and for engineers and others under the water department of the district government. 24 Stat. 580, c. 389.
The contract in this case was signed by all of the Commissioners and recorded in a book kept for that purpose as required by the act of Congress. Unquestionably the Commissioners when they executed the contract were authorized to purchase iron pipe for the extension of the water service, and as the municipal corporation had the right to have a seal, which could be changed from time to time, it had the right to execute contracts under seal. The principal objection here is, however, that this was not the sealed obligation of the District. It is conceded that the Commissioners, who signed the contract officially, were not personally liable thereon, and that the contract bound the District, but it is insisted that the contract was not a specialty. The opinion of the Court of Appeals by Chief Justice Alvey satisfactorily disposes of this objection, and we concur with the views therein expressed.
The general rule is "that when a deed is executed, or a contract is made on behalf of a State by a public officer duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the State, notwithstanding that the officer may be described as one of the parties, and may have affixed his individual name and seal. In such cases the State alone is bound by the deed or contract, and can alone claim its benefits." Sheets v. Selden's Lessee, 2 Wall. 177, 187; Hodgson v. Dexter, 1 Cranch, 345.
As to private corporations, where authority is shown to execute a contract under seal, the fact that a seal is attached with intent to seal on behalf of the corporation, is enough though some other seal than the ordinary common seal of the company should be used. Jacksonville Railroad Co. v. Hooper, 160 U.S. 514; Stebbins v. Merritt, 10 Cushing, 27, 34; Bank v. Railroad Company, 30 Vt. 159; Tenney v. East Warren Lumber Company, 43 N.H. 343; Porter v. Railroad Company, 47 Maine, 349; Phillips v. Coffee, 17 Illinois, 154. Many of these cases are cited by Judge Dillon in his work on Municipal Corporations, (4th ed.) § 190, where he says: "Respecting seals, the same general principles apply to private and to municipal corporations. Thus, a corporation of the latter class would doubtless be bound equally with a private corporation by any seal which has been authoritatively affixed to an instrument requiring it, though it be not the seal regularly adopted."
We agree with the Court of Appeals that this contract was not only the contract of the District, as is conceded, but that it was its deed, upon which an action of covenant could be maintained. It was therefore properly admitted in evidence, and recovery could be had thereon, if otherwise justified. As such an action is not barred in three years the demurrer to the plea of the three years' statute of limitations was necessarily sustained.
The next proposition of the District, that it was not competent for plaintiff below to show by parol that the contract was finally executed and delivered by the District at a date subsequent to the date of the contract, is without merit. The contract did not provide that the work was to be completed within one hundred and thirty-six days from its date, but "after the date of the execution of the contract." It is well settled that, in such circumstances, it may be averred and shown that a deed, bond or other instrument was in fact made, executed and delivered at a date subsequent to that stated on its face.
In United States v. Le Baron, 19 How. 73, it was ruled that a deed speaks from the time of its delivery, not from its date; and Mr. Justice Curtis, who gave the opinion, cited Clayton's case, 5 Coke, 1; Oshey v. Hicks, Cro. Jac. 263, and Steele v. Mart, 4 B. & C. 272. To which the Court of Appeals added Hall v. Cazenove, 4 East, 477. These cases fully sustain the doctrine that parties, situated as here, are not precluded from proving by parol evidence when a deed or contract is actually made and executed, from which time it takes effect.
In Williams v. Bank, 2 Pet. 96, 102, it was laid down as a general principle of law that "If a party to a contract who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispense with, or by any act
In this case the further performance of the contract was determined by the consent of the parties, but the contract was not rescinded except as to the future manufacture of pipe for delivery.
The third objection of the District is that an action of covenant on the contract would not lie to recover the price of the pipe that was delivered, because there had not been full performance; yet the pipe, to recover the price for which this action was brought, was, as the Court of Appeals said, manufactured, delivered, and accepted under the contract, in part performance thereof, and with reference to the specifications and price agreed upon as set forth in the contract. The dispensation of complete performance did not make a new contract, nor alter the terms of the existing agreement. It was a mere waiver of further performance.
It is said that the demurrer to the plea of limitations, the ninth plea, ought to have been carried back to the declaration. The hearing of that demurrer was reserved by stipulation to the trial of the cause, no suggestion of this kind was then made, and the declaration was good as against a general demurrer. The company averred full performance, "except in so far as it was prevented or discharged from so doing by the defendant." That was not setting up a modified or substituted contract, but a waiver of a condition precedent to be performed by plaintiff.
In McCombs v. McKennan, 2 W. & S. 216, it was held that covenant may be sustained upon a contract under seal, notwithstanding by subsequent consent of the parties the place at which the articles called for were to be delivered was changed.
In Construction Company v. Seymour, 91 U.S. 646, it was held that defendant was liable on his covenant for the contract
Assuming that full performance was dispensed with the court did not err in ruling that the right to sue upon the contract remained.
The court gave to the jury, on behalf of plaintiff, the following instructions:
"If the jury believe from the evidence that the plaintiff corporation was prevented from completing the delivery of pipe by it stipulated to be manufactured and delivered under the contract offered in evidence within the time or times therein limited by any act or omission on the part of the defendant, then the defendant is not entitled to charge against the plaintiff any fines or penalties for such delay in delivering pipes as was occasioned by such act or omission.
"If the jury believe from the evidence that the defendant, by its silence or conduct, caused the plaintiff corporation to believe, on or about the 1st day of December, A.D. 1887, that all pipe thereafter delivered would be taken and paid for at contract rates, without any deduction, and thereby induced the plaintiff to act on that belief and thereafter deliver pipe to the defendant, which the plaintiff would not have otherwise done, and the defendant accepted such pipe, the defendant is estopped from charging against the plaintiff any fines or penalties for not delivering such pipe within the time or times specified by the contract."
Defendant asked the following instruction, which the court refused to give:
"If the jury believe from the evidence that the failure of plaintiff to deliver the iron pipes mentioned in the contract given in evidence at the times and in the quantities specified, hindered and delayed the defendant in extending the water service in 1887, then the defendant had a right to charge against the price it agreed to pay the plaintiff for the pipe it undertook to deliver as liquidated damages the penalties provided in the contract."
The court left the matter of interest to the jury, and refused to give at defendant's request an instruction that no interest should be allowed except from the time of the institution of the suit. Exception was taken to this refusal, but, in view of the evidence, the trial court committed no error in that regard, Rev. Stat. D.C. § 829; Washington & Georgetown Railroad v. Harmon's Admr., 147 U.S. 571, 585. To the general charge of the court in respect of interest no exceptions were preserved.
MR. JUSTICE BROWN and MR. JUSTICE McKENNA dissented.