Smoot v. United States 50 Ct. Cl. 404

LEWIS E. SMOOT v. THE UNITED STATES.

[48 C. Cls., 427 ; 237 U. S., 38.]

On plaintiffs appeal.

The claimant has a contract to furnish “ 11$,200 cutio yards, more or less," of filter sand for a filtration plant in the city of Washington. During the progress of the work he receives an order from the engineer in charge, giving various directions as to places where sand is to be delivered and the quantities. The total amounts supplied amounted to 157,725 cubic yards. In the same letter he is admonished that he is behindhand in his deliveries and that the penalties of the contract will be enforced in future. He erects an additional plant, which is never used. Subsequently the officer in charge so modifies the directions of the letter that no additional sand is required. The claimant alleges that he is entitled to recover for the additional expenses caused by the letter and for the profits which he would have made if he had been permitted to deliver the additional quantity of sand, amounting to 21,506 cubic yards.

The court below decides:

I.Where an additional plant had apparently become necessary because of the contractor’s tardy deliveries of building sand and as a means for carrying out the contract with greater certainty, the cost was a proper and necessary expense to be borne by the contractor.

II.A letter from an engineer, in charge to a contractor, which is merely a designation of quantity and shows only the quantity which the officer thinks may be necessary for the completion of the work, and which at the same time directs the method of delivery, is not a contract and may be modified at any time before delivery; and the contractor can not recover profits if the quantity actually required was less than the quantity indicated in the letter.

III. Where a contract expressly provides “ If the amount of worlc in any class is increased, such increase shall te paid for according to the quantity actually done and at the price specified for such worlc under the contract,” the provision must govern and the engineer officer in charge can not create another and additional liability not governed by this clause.

IV. Where an engineer officer in charge is authorized by the contract to designate a plan of operations for the convenience of all the contractors engaged upon a certain work, a letter directing such operations is not to be taken as a contract contemplating a modification of the original contract.

*405Syllabus.