rally dealt with as other contractors on the line. It is recollected that the payment which was made to the petitioners in the month of October or November, 1834, included an advance of $1,000 which was not deducted from any subsequent estimate, until the last payment, which was made on 2d May, 1835. It is believed that the monthy estimates which were made for the petitioners, were made on the same principle, and with as much liberality, as on other portions of the line.

The estimate made by Mr. Root, the resident engineer, on the first of May, 1835, at the time the petitioners discontinued the work, was made with a knowledge that the petitioners were embarrassed. This fact was stated by Mr. Root to the acting Commissioner, and the chief engineer, and the necessity of making as large an estimate as the situation of the work would admit was apparent. The estimate and classification of the work were submitted to the Commissioner and chief engineer; the condition of the work and the comparative prices were examined and approved by them.

The petitioners allege that having given security for the performance of the contract, they were entitled to be paid their contract prices on full estimates.

The sureties were bound to see that the contract was executed, but it is presumed they would not have been liable to refund moneys advanced on the contract. Being bound to finish the work in the contract in case of an abandonment, it is presumed they had a right to expect that estimates and payments would be made from time to time according to common usage, and in reference to the condition of the work, so that what remained to be paid on the contract would give them as good an indemnity for performing such work as might remain to be done as the contractors had received for the work performed by them.

It is obvious that work in an unfinished state might be in such a condition that the value of that part of it which has been done might not exceed one-half or two-thirds of the contract price. The contractor might commence on the most favorable part of his contract, and if full estimates at contract prices should be paid on work thus situated, it would impose a heavy and unreasonable burthen on the sureties, in case of a failure; and it might justly be

the subject of complaint. Such a rule would very much enhance to hazard of sureties in a contract.

If a relative value is paid on work as it progresses, it passes into the hands of sureties under circumstances imposing no extensive hazards, if the contract prices are sufficient.

This rule can impose no hardships on a contractor who has secured to himself adequate prices; but to the contractor who has engaged to perform work for prices below its value, embarrassments could only be avoided by a resort to private means.

It is proper to advert to another important consideration in favor of the rule of paying relative prices, as the work progresses, although security may have been taken for the performance of a

contract.

It is this; if in conducting the execution of a public work with a limited appropriation, not exceeding the aggregate amount of the contracts, full estimates at contract prices should be paid; and the contractors and sureties should fail in finishing the work at their prices, it would be impracticable to secure the completion of the work by engagements for higher prices until after an additional appropriation was made, or the penalty in the bond was collected, and thus the completion of a public work might be prolonged to an injurious extent.

It has been stated that the estimate made about the first of May, 1835, at the time when the petitioners abandoned their work, was at relative prices in reference to the value and condition of the work. The deepest excavation on the job then remained to be done, the banks were not trimmed, the spoil banks were not levelled, scarcely any part of the work was in a finished state, and provisions and labor were advancing in price.

The relative prices which were fixed to the work which had been done left about three cents per cubic yard to be added to the remainder of the common excavation, as an equivalent for the dif ference in the expense, and amounted, in the aggregate, to about $6,500.

The petitioners, or some of them, were shewn the estimate of the engineer, and it is not now recollected that they complained of the classification of the different kinds of work.

The contract of the petitioners involved an expenditure of about $70,000. To conduct so large a work successfully rendered a large private investment necessary.

The embarrassments of the petitioners were understood to be a matter of public notoriety in the vicinity of the work; a crisis was evidently forming in their affairs, and it became indispensably necessary to a further successful prosecution of the work, that the petitioners should secure to their control ready means equal to the large expenditures required in 1835, and to restore their credit.

Under these circumstances the Commissioner deemed it unsafe and improper to make advances of the public money beyond the estimate which had been made by the resident and chief engineer, without being well assured that the work would be completed.

With this view of the subject, Crossett, one of the contractors, was advised to make an effort to procure a loan for nine months or one year; and he was distinctly told that if he succeeded in doing this and making other necessary arrangements to enable him to prosecute his contract, an advance would be made to him over the estimate as had been done before; and that every proper measure would be taken to sustain him on the work; he was farther advised that if he failed to procure a loan, he should make an effort to get his sureties to take a contract for the work at the petitioners' prices. He was told that a reasonable time would be given to make these arrangements.

After the lapse of a few days, Crossett again called on the Commissioner, unprepared with any evidence that the means had been obtained to prosecute the work, or that the sureties to his contract would execute the work as had been proposed.

Thomas I. Gilbert, one of the witnesses called by the petitioners, and examined before the select committec, states that he called on the acting Commissioner, at the request of two of the sureties, to obtain farther advances to the petitioners, "on the personal security of the bail," which he says was refused. It has not been customary, nor is it supposed proper, for a Commissioner to advance money to contractors on personal security. This would virtually be loaning out the public money; and if done in one instance, would be claimed in others. In the opinion of the Commissioners, such a

use of the public money would be unauthorized, and in every point of view objectionable.

Mr. Gilbert was told by the acting Commissioner that a contract for the work would be given to the sureties, at prices similar to those in the then existing contract.

No confidence was entertained in the ability of the petitioners to execute the work, and the painful necessity of declaring the contract abandoned appeared inevitable. It was accordingly done.

As a matter of favor to the petitioners and their sureties, contracts were filled out with prices similar to those of the petitioners, and the resident engineer, Mr. Root, was directed to proceed to the residence of the sureties, to offer them the contract, and attend to its execution. This engineer was farther directed, that in case the sureties failed to enter into a contract, he should cause a notice for proposals to re-let the work (which was prepared and handed him by the Commissioner,) to be published.

The proceedings of Mr. Root in regard to his visit to the residence of the suretics, and his intercourse with them, are detailed in his answer to interrogatories propounded to him by the Commissioners. See the document in the appendix, marked B. It was found on examining the testimony of Mr. Root before the committee, that the information sought for by the interrogatories above referred to, was not given.

It appears from the testimony of Darlin Thompson, one of the sureties, that after notices had been published for receiving proposals for the work, he called on the acting Commissioner, and offered to take the contract. This he states was refused, because notices for proposals had been published; but that he was advised that they could make proposals for the work.

It is not perceived how this decision could operate injuriously to the sureties. If they desired the work, they were at liberty to offer prices similar to those in the contract of the petitioners, or even at lower rates. The tenor of the testimony of Mr. Thompson in detailing the conversation between him and the acting Commissioner, is calculated to produce the impression, that the Commissioner endeavored to dissuade him from taking the contract. This witness also alleges, as a principal reason why they did not take the contract, that the number of cubic yards required to be exca.

vated monthly was too great. He also states, that the acting Commissioner objected to the employment of Crossett and Story, or their foreman.

It is recollected by the acting Commissioner, that after the propositions had been opened and examined, by himself and Messrs. Jervis, Allen and Root, the engineers then present, and it had been decided that the proposition of Darlin Thompson and John Yelverton was entitled to the work, these gentlemen were called into the room for the purpose of consultation in reference to the execution of a contract and the progress of the work. They were advised that their proposition would be accepted and a contract executed if they desired it. In the course of the conversation, it was mentioned to them, that Mr. Hitchcock had made a proposition which in the aggregate on the assumed quantities was about $100 higher than the proposition of Thompson and Yelverton. A statement was shewn them of the number of yards of excavation per month which probably would be necesssary, to ensure a suitable progress of the work. They thought this estimate too large for some of the months. It was then stated to them by the Commissioner, that if this point was material to them in deciding whether they would take the contract, he would take the matter into consideration. They did not ask this, but elected not to take the contract.

The conversation which was held with Thompson and Yelverton was reduced to writing the same day on which it occurred, by Messrs. Jervis, Root and Allen, signed by them, and will be found in the appendix, as document C.

. According to the recollection of the acting Commissioner, Mr. Thompson is mistaken in relating the conversation in such a manner as to leave the impression that the Commissioner intended to discourage him from taking the contract, and also in stating that objections were made to the employment of Crossett and Story, and their foreman.

It was understood that Thompson and Yelverton were inexperienced in canal contracts, and no more was intended in the conversation than to apprize them of the magnitude of the work, and the progress which would be necessary to insure the completion of the contract at the time specified.