plaintiff Bopst insisted to the contrary by protesting the disallowance of the value of the rejected pumps and the deduction for liquidated damages.
When the plaintiff filed the instant suit, asserting the claims last mentioned, the District of Columbia not only in its original answer denied the right of the plaintiff to recover, but by its counterclaim filed in its amended answer raised for the first time its right to recover from the plaintiff the excess of the Worthington contract over plaintiff's contract under article 6 of the contract, which provides in so far as material here as follows:
'Article 6. Inspection.- (a) All material and workmanship (if not otherwise designated by the specifications) shall be subject to inspection, examination, and test by District inspectors at any and all times during manufacture and/or construction and at any and all places where such manufacture and/or construction are carried on. The District shall have the right to reject defective material and workmanship or require its correction. Rejected workmanship shall be satisfactorily corrected and rejected material shall be satisfactorily replaced with proper material without charge therefor, and the contractor shall promptly segregate and remove the same from the premises.
'If the contractor fails to proceed at once with the replacement of rejected material and/or the correction of defective workmanship, the District may, by contract or otherwise, replace such material and/or correct such workmanship and charge the cost thereof to the contractor, or may terminate the right of the contractor to proceed as provided in Article 9 of this contract.'
That the District of Columbia asserted its counterclaim in these circumstances is understandable only if considered as a weapon of defense to prevent a recovery by the plaintiff. If the plaintiff was to be permitted successfully to assert claims against the District upon matters which the District had considered settled, then, of course, the District should have the right to assert any claims which it might have under the contract notwithstanding the settlement. But this is no longer the situation. The plaintiff's claims have been dismissed, and he may no longer assert that the settlement made by the District of Columbia was not a final and complete one. There is, therefore, no justification for the District now to seek to disregard the finality of its settlement. That the District of Columbia did intend to avail itself of the provisions of section V of the specifications, and not to seek recovery for excess costs of the Worthington contract under article 6, which is not mandatory, is evident from its claim and deduction for liquidated damages, under article 9,
accruing from December 31, 1936, to April 30, 1937, when the plaintiff's pumps were rejected. That this is so has become even more evident from the order of the Commissioners, sitting as a Board, on September 3, 1937:
'That work under Contract No. 12337 with the Industrial Piping and Engineering Company, for furnishing and installing sewage pumps and equipment, Unit #3 of the Sewage Treatment Plant, having been satisfactorily completed on April 30, 1937, is hereby accepted as of that date.
'The four main sewage pumps (Items 1a, 1b and 1c) having been rejected by a Commissioners' Order dated April 30, 1937, are not accepted and no credit will be allowed to the contractor for these rejected items.' The payment by the Commissioners to the plaintiff of all monies due to the plaintiff, as reflected by the final settlement, leaves open to no question the determination of the District Commissioners not to charge the plaintiff with any excess cost arising out of their rejection of the plaintiff's pumps.
While the Commissioners of the District of Columbia might well have taken several alternate courses under the terms of the contract, the course which they did take to deal with a difficult situation is one clearly permitted by the terms of the contract. Even a municipal corporation may not accomplish a final settlement of a contract under one interpretation and then subsequently repudiate such settlement and secure further advantages by a different interpretation.
The motion of the counterclaim defendants for summary judgment will be granted.