the fund out of which it is to be paid. If there is money in the treasury belonging to the fund against which it is to be drawn, not otherwise appropriated, it is the duty of the treasurer to pay the warrant; but if there be none he must indorse upon it the fact of its presentation, and non-payment for want of funds, and the holder must wait for his money until such time as it can be raised through the means which the legislature provides for the collection of revenue. Nor can any action rightfully be brought on such warrant until the fund is raised, or at least sufficient time has elapsed to enable the county to levy and collect it in the mode provided in the revenue laws." Then, after referring to certain statutes, which it was thought showed that the limitation act did not apply to such warrants, the opinion proceeds: "From these, as well as numerous other enactments of the legislature that might be cited, I have reached the conclusion that the plea of the statute of limitations cannot be successfully made against these warrants, and that whenever it can be shown that the funds have been collected out of which it can be paid, or sufficient time has been given to do so in the mode pointed out in the statutes, their payment may be demanded, and, if refused, legally coerced. Whoever deals with a county, and takes in payment of his demand a warrant in the character of these, no time of payment being fixed, does so under the implied agreement that, if there be no funds in the treasury out of which it can be satisfied, he will wait until the money can be raised in the ordinary mode of collecting such revenues. He is presumed to act with reference to the actual condition of the laws regulating and controlling the business of the county. He cannot be permitted, immediately upon the receipt of such warrant, to resort to the courts to enforce payment by judgment and execution, without regard to the condition of the treasury at the time, or the laws by which the revenues are raised and disbursed." Brewer v. Otoe Co., 1 Neb. 373, 382, 384. We have not been referred to any case in Nebraska which qualifies this decision, and it stands to-day, so far as we have been advised, as the settled law of that state. It was recognized and followed by this court in Chapman v. County of Douglas, 107 Ū. S. 348, 354, 359, 2 Sup. Ct. Rep. 62. The petition in this case appears to have been drawn with express reference to its rulings, and with a view of showing that the action could be rightfully brought, as the county had neglected for so long a time to. levy and collect the necessary taxes to provide a fund for the payment of the warrant. The purpose of the suit was to coerce payment, as a sufficient time had already been given to enable the county to do so voluntarily in the mode pointed out in the statutes. The record as printed does not show when the suit was begun, but it is stated in the brief of the counsel for the county to have been November 10, 1885. This was about seven years after the warrants were indorsed, "Not paid for want of funds." According to the rule established in Brewer v. Otoe Co., the cause of action did not accrue when the payment was refused, "but only when the money for its payment is collected, or time sufficient for the collection of the money has elapsed." We cannot say, as matter of law, that this was more than five years before the commencement of the action. It follows that the court erred in overruling the demurrer to the answer, and for that reason the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. DISTRICT OF COLUMBIA v. GALLAHER et al. MUNICIPAL CORPORATIONS-CONTRACTS WITH-PUBLIC IMPROVEMENTS-CONSTRUCTION. agreed to by both parties, and defendant's engineer furnished plaintiffs with a working drawing of the sewer, representing a structure similar to that of the completed section at the point of connection. Plaintiff proceeded with the work according to this plan, constructing the work under the direction of the defendant's engineers, until the board of public works was legislated out of office. Until that time nothing had been said as to any variance between the contract and the plan, nor that the work was not progressing satisfactorily, and in accordance with the former sample work. The engineer detailed under the new form of government reported several departures from the contract in the work as done, and recommended a deduction from the contract price, which defendant claimed to make in its settlement with the plaintiffs. Held, that the parties practically construed the contract as one for work in accordance with the plan and sample, and that such construction must prevail over the literal meaning of the contract. Appeal from the Court of Claims. Atty. Gen. Garland and Asst. Atty. Gen. Howard, for appellant. Th. Hughes and Woodbury Blair, for appellees. MATTHEWS, J. This suit was brought against the District of Columbia for the recovery of the sum of $138,459.55; of this $35,436.49 were alleged to be payable as the balance due upon a contract for building and completing the brick arch upon stone abutments of Tiber creek sewer, as set out and described in the contract and specifications attached to the petition, at the price of $113 per lineal foot. The additional sum of $98,130.44 was alleged to be due on account of extra work and materials furnished by the contractors beyond the requirements of the contract in and about the same work. This indebtedness was denied, and the defendant also filed a plea of set-off in the sum of $82,176; of this, $7,176 was for the value of stone alleged to have been sold by the defendant to the claimants, $35,000 on account of deficiencies in the construction of the sewer, and $40,000 as the reasonable cost and expense of filling the canal for the whole length of the sewer, which the defendant claimed the petitioners were bound by their contract to do. Upon the facts found by the court, it was held that the claimants were entitled to recover upon their claims the sum of $43,935.74; that the defendant was entitled to recover upon the set-off and counter-claim the sum of $1,479; and judgment was rendered in favor of the petitioners for the difference, being the sum of $42,456.74. The facts as found by the court, so far as material, are as follows: The Tiber creek, prior to the year 1871, was a natural stream of water flowing through the city of Washington, and discharging into what was then known as the "Washington Canal," on Third street west, between Maine and Missouri avenues, and by that in the Eastern branch. Among the improvements projected by the board of public works was that of utilizing this stream in connection with the sewerage system of the city, and the general plan adopted was that of constructing a main sewer of masonry and brick-work along its course, through which the stream should flow, receiving and conducting the sewage from lateral connections on either side. It was constructed for the most part in sections, by contract with different parties, and the part here in controversy was the final or outlet section. It was commonly styled the "Tiber creek sewer or arch." On and before July 14, 1873, a portion of this sewer had been completed, which (so far as is here material) extended from the north side of Pennsylvania avenue, across the botanical garden, into Third street, and along and under Third street to a point three feet north of the south building line of Maryland avenue, at which terminus the sewer was (so far as here material) of the following construction and size, namely: The side walls were of masonry, about 3 feet high and 5 feet 6 inches thick, supporting an approximate semi-elliptic arch of 30 feet span and 7 feet 10 inches rise. The extrados of the arch, including the skew-back course, was backed up with rubble masonry to the level of its crown. The timber sleepers for the foundations were 41 feet in length. Proposing to continue the sewer to its outlet with the same construction and size, the board of public works, on July 14, 1873, sent to H. L. Gallaher & Co., consisting of Hugh L. Gallaher and Edwin H. Smith, a written proposal for continuing the Tiber creek sewer from its existing terminus at Maryland avenue and Third street southwest, along the line of the Washington canal to its junction with the James creek canal, the size and manner of construction of the sewer to be the same as that of the portion of the same sewer constructed on Third street south-west, and to be paid for at the rate of $113 per lineal foot; and they were requested by return mail to notify the board of their acceptance or rejection of the proposal. On the same day H. L. Gallaher & Co., by writing, accepted it. A written contract bearing date July 19, 1873, was executed between the parties in the same terms as that set forth in the petition. Before work was commenced under it the District engineer was instructed to give the grade of the sewer, to be laid out with the same dimensions as of the existing sewer, which he did in the summer of 1873. It was proposed, however, and consented to by both parties, to deviate from the contract, by which the continuation of the sewer was to follow and be laid in the bed of the canal, so as to take it by a curve from the point of connection on the westerly bank and then proceed parallel with and along said bank to the terminus. About the time of giving the grade Gallaher applied for a plan of the sewer, when by direction of the engineer a plat or working drawing of the structure in transverse section, exhibiting its form and dimensions according to a fixed scale, and representing a structure similar to that of the completed section at the point of connection, was furnished. Gallaher and Smith then proceeded with the work in accordance with that plan, and completed some part of the excavation, and procured and brought on the ground material, but had not constructed any portion of the arch, when Joseph G. and Henry E. Loane, two of the petitioners, bought out the interest of Smith in the contract, and thereupon the original contract was cancelled and one in similar terms executed on December 22, 1873, by the board of public works with the claimants, composing the firm of Gallaher, Loane & Company, a copy of which is set out with the petition. The claimants on entering into said contract received from Gallaher & Smith the working plan furnished to them by the district engineer. It represented the plan and dimensions of the several parts of the structure of the sewer to be built under their contract, and was similar to the completed section with which it was to connect, as provided by the contract, and was the plan under which the work had been cominenced and carried on. They proceeded with the work in accordance with the plan, and without calling the attention of the board to any alleged or apparent variation of the same from the contract, and constructing the flooring, masonry, and arch according to the dimensions appearing thereon, and had finished about 680 lineal feet thereof when the board of public works was abolished by act of congress of June 20, 1874. The work as thus far done was constructed under the direction of the district engineers, but neither they nor the board of public works intimated to the claimants that the work was not progressing to their satisfaction, and in accordance with the former sample work, in which the skew-back was constructed of rubble masonry. Under the new form of government, established by that act for the District, Richard L. Hoxie was detailed as engineer on July 6, 1874, and forthwith made a careful examination of the work being done by claimants, as to its character and conformity with the specification of the contract, in the presence of one of the claimants. He found that, generally, it was being built in conformity with the specifications, but there were several departures. The flooring and sleepers were, as he thought, inferior to the quality required; the masonry was not strictly in conformity with the specifications; there were too few bond stone used; the inside walls were not dressed, and the stones generally were small. But what attracted his attention, and was of the most importance, was the manner of constructing the skew-back. It was made of small stones, spalls, and mortar, while it should have been made, as he thought, of large dimension stone. He called the attention of the party present to these alleged variations, and particularly to the skew-back, which he wished constructed of dimension stone. He was informed that to procure the stone would cause considerable delay in the prosecution of the work. Thereupon he directed that the skew-back might be made of brick, and added that he should make a deduction in price, but named no sum. Thereafter claimants proceeded with their work, making the skew-back of brick, under the direction of defendant's engineers, without further complaint. In August, 1874, the claimants applied for measurement of the work so far as completed and a partial payment. The engineer thereupon transmitted to the board of audit, which, by the act of June 20, 1874, was charged with the settlement of such accounts, a statement with the measurement requested. In that statement the engineer represented that the contract required the inside sewer face of the stone wall rough-dressed, and a skew-back stone not less than a three-foot six-inch bed, and in length of not less than four feet; and that these requirements of the contract had not been complied with. He, therefore, on this account, recommended a deduction of $8.94 per lineal foot of the sewer. The board of audit audited the account with that deduction from the contract price, in accordance with the statement of the engineer. The claimants received the partial payment under protest. The amount of this deduction upon the entire work performed by the claimants constitutes the sum of $35,436.49, for which they sue. The whole controversy between the parties as to this item, and also for a portion of the claimant's demand on account of extra work and material, arises out of the fact that the letter of the contract and specifications does not correspond with the plan of the work as furnished by the district engineer and the sample of the work which had been done previously by other contractors, and with which that of the present claimants was to connect. The work as actually done was done under the direction and supervision of the District engineer, and was performed in accordance with the plan and sample which was supposed and understood to be what was required by the contract, and to be paid for at the contract price. We think that the practical construction which the parties put upon the terms of their own contract, and according to which the work was done, must prevail over the literal meaning of the contract, according to which the defendant seeks to obtain a deduction in the contract price. The other items allowed by the court of claims, both to the claimants and the defendant, we think well established upon the facts as ascertained by it. The reasons for its judgment, as set forth in the opinion of the court, we think entirely satisfactory. 19 Ct. Cl. 564. The judgment is affirmed. APPEAL FAYOLLE et al. v. TEXAS PAC. RY. Co. DISMISSAL-FAILURE TO DOCKET IN TIME. Where an appeal was returnable at the term ending May 4, 1885, but was not docketed until January 17, 1886, and the transcript was not lodged in the office of the clerk until after the return-term, the appeal will be dismissed. The failure to docket it in time is not excused by the fact that the clerk below agreed to file the record with the clerk of the supreme court, and the same was left with him for that purpose. Appeal from the Supreme Court of the District of Columbia. Motion to dismiss appeal. The affidavit of the attorney who perfected the appeal stated that, after he procured the appeal to be perfected, the deputy clerk of the district court agreed to take the record and file the same with the clerk of the supreme court, and that deponent, relying thereon, left the same with him for that purpose, as he was then expecting to leave the city for Wisconsin, where he resided. Deponent also stated that he was informed that his law partner was retained in the cause; that after the latter's death, in 1881, deponent was requested to take the appeal, but was not retained further; and he understood that it was the intention of complainants to retain other counsel. W. D. Davidge and William H. Trescott, for motion. W. D. Shipman, opposed. WAITE, C. J. This motion is granted. The decree was rendered November 12, 1883. An appeal was taken at the same time in open court, returnable to our October term, 1884, which ended May 4, 1885, but it was not docketed here until January 17, 1886. That was too late, as the appeal had become inoperative through the failure of the appellants to docket the case here at the return-term. Grigsby v. Purcell, 99 Ü. S. 505, and cases there cited; U. Killian v. Clark, 111 U. S. 784, 4 Sup. Ct. Rep. 700; Caillot v. Deetken, 113 U. S; 215, 5 Sup. Ct. Rep. 432. The excuse presented for the failure to docket in time is not sufficient to give the appellants the benefit of any exception to this rule, which was recognized in Grigsby v. Purcell, 507. Neither does the case come within that of Edwards v. U. S., 102 U. S. 575, because the transcript of the record was not lodged in the office of the clerk of this court until after the return-term of the appeal, and no attempt was made to get it upon the docket until another term had passed and still another had begun. Dismissed. FRENCH v. HOPKINS et al. 1. COURTS JURISDICTION OF UNITED STATES SUPREME COURT-FEDERAL QUESTION. A writ of error to the highest court of a state will be dismissed where the record shows that the only decision was that it was within the jurisdiction of the trial court, by a decree of foreclosure, to direct that the property should be sold in one or several parcels, and that there was nothing in the statutes of the state to the contrary of this, the decision involving no federal question. 2. SAME. Under Rev. St. U. S. § 709, providing for a review of the decisions of the highest courts of the states, the jurisdiction of this court depends upon the questions involved, and not upon the citizenship of the parties. In Error to the Supreme Court of the State of California. Motion to dismiss. William M. Stewart, for motion. J. W. Douglass, opposed. WAITE, C. J. This motion is granted. The record fails to show, either expressly or by implication, that any "right, title, privilege, or immunity,' under the constitution or laws of the United States, was "specially set up or claimed" in either of the courts below. This is fatal to our jurisdiction. Spies v. Illinois, 123 U. S. 131, 181, 8 Sup. Ct. Rep. 21, 22. The only question below was whether a sale of mortgaged property, under a decree of foreclosure, should be set aside because the property had been sold "as a whole and in one parcel," when it was capable of division into parts. The court of original jurisdiction set aside the sale, but the supreme court, on appeal, confirmed it, and gave judgment accordingly. In doing this, it was held to be "within the jurisdiction of the court by its judgment to direct that the property should be sold in one or several parcels," and that there was nothing in the statutes of the state to the contrary of this. That was the only decision in the case, and it certainly involved no question of federal law. Counsel are in error in supposing that our jurisdiction, under section 709 of the Revised Statutes, for the review of a decision of the highest court of a state, is dependent at all on the citizenship of the parties. In such cases we look only to the questions involved. Dismissed. |