DANIEL A. DRISCOLL v. THE UNITED STATES.
[No. 20930.
Decided October 23, 1899.]
On the Proofs.
Claimant contracts to build an extension to tbe custom-bouse at New Haven, in accordance witb drawings and specifications on fiie in tbe Supervising Arcbitect’s Office. He is furnished drawings showing tbe iron and masonry plans and tbe specifications. In ordering an iron beam for tbe stairway be follows tbe measurements on tbe iron plan only, and tbe beam proves to be too short. Tbe advertisement for proposals provides that tbe contractor must make all measurements necessary for the prosecution of tbe work and all remeasurements to prevent misfitting, and that be will be responsible therefor.
I. Where a contract provides that tbe contractor must make all measurements, and be procures an iron beam which is too short for its place, tbe loss is due to bis own negligence and be can not recover.
*509II. Where a contract provides that an officer named in the contract may-on inspection accept or reject any part of the work done under it if not in his opinion “strictly in accordance ivith the drawings and specifications,” his decision, in the absence of fraud or such gross error as would imply had faith, is final. .
III. The Supervising Architect of the Treasury is an authorized contracting agent of the Government, and a contractor with him can not without his sanction do additional work and is hound to know that the Architect’s subordinates are without authority.
IY. The acceptance of a building by the Government with notice from the contractor that he demands compensation for extra work done does not change the relations of the parties.
Y. Where a contractor is entitled to compensation for delay caused by the Government in the execution of his contract, only those items will be allowed which are the proximate results of the acts of the Government.
Tbe Reporters’ statement of tbe case:
Tbe following are tbe facts of tbe case as found by tbe court: I. November 16,1893, tbe defendants advertised for sealed proposals, to be received until 2 o’clock p. m. on tbe 8tb day of December, 1893, “for all tbe labor and materials required for the erection and completion (except beating apparatus) of an extension to tbe United States custom-house and post-office building at New Haven, Conn., in accordance with tbe drawings and specifications on file in tbe office of tbe Supervising Architect of tbe Treasury, and also on file in tbe office of tbe superintendent at New Haven, Conn. •'
So much of tbe “general instructions” to bidders and tbe “conditions” under which they were instructed to bid as material herein are as follows:
“Treasury Department,
“Oeeice op the Supervising Architect.
“ General instructions and conditions for proposal for the erection and completion of the extension to the U. 8. custom-h. and post-office building, New Haven, Conn., invited by public advertisement dated November 16,1893.
* * * * * * *
Measurements. — Tbe successful bidder, at tbe proper time, to be determined by him, must make all measurements necessary for tbe proper prosecution of tbe work called for by the drawings and specifications; and, during the prosecution of tbe work, be must make all necessary remeasurements to prevent misfitting in said work; and be will bo responsible therefor. •
Building regulations. — The successful bidder must fully comply with all municipal building ordinances and regulations, *510and obtain all required licenses and permits, and pay all charges and expenses connected therewith, and be responsible for all damage to person or property which may occur in connection with the prosecution of the work.
Alterations and additions. — The successful bidder must understand that it is a reserved right and privilege of the Supervising Architect to make any additions to, omissions from, changes or alterations in, the materials and work called for by the drawings and specification, and contemplated by and embraced in his proposal; and that any addition to, or omission from, said materials and work are to be made on the basis of the contract unit of value of the materials and work referred to; and that any change in the quality of materials or alterations in work are to be made on the basis of market rates prevailing at the time that such changes of alterations may be desired, and that no claim for compensation for any extra materials or work is to be made, or allowed, without the same being first agreed upon and specifically authorized in writing by the Supervising Architect, under the approval of the Secretary of the Treasury.
* * # * * * #
Inspection and acceptance ofworlc. — Each bidder must understand that, should his proposal be accepted, the materials delivered, and the work performed by him, at any and all times during the progress of the work, and prior to the final acceptance "of, and payment for, the same shall be subject to the inspection of the Supervising Architect, or his authorized agent, with the full right to accept or reject any part thereof that, in the opinion of the Supervising Architect, or his authorized agent, is not strictly in accordance with the drawings and specifications; and that he must, at his expense, within a reasonable time, to be specified by the Supervising Architect, remedy any defective or' unsatisfactory material or work; and that in the event of his failure to do so, after notice, the Supervising Architect will have the full right to have the same done, and to charge the cost thereof to his account.
Each bidder should understand that, should his proposal be accepted, inspection of, or payment for, any portion of the work embraced therein by the Supervising Architect, or his authorized agent, will not relieve him of responsibility to remedy any defective materials or workmanship, at his expense, at any time before final inspection and acceptance of, and final payment for, all of the material and work contemplated by, and embraced in, his proposal.”
**#### #
II. The claimant was the successful bidder under the advertisement and instructions and conditions as aforesaid, and on the 11th day of December, 1893, entered into a contract with the United States, through their Supervising Architect, as follows:
“Whereas, in accordance with law, by duly published notice, *511a copy whereof is hereto annexed, proposals were invited as therein set forth: Now, this contract, made and entered into by and between Jeremiah O’Bourke, Supervising Architect of the United States Treasury Department, for and in behalf of the United States of America, of the first part, and Daniel A. Dris-coll, of the city of Washington and District of Columbia, of the second part, to whom was awarded the contract to furnish all of the labor and materials required to complete the work herein provided for, on his bid for the same received under said notice, witnesseth: That the party of the second part covenants and agrees to and with the party of the first part to furnish all of the labor and all of the materials to do and perform all of the work required for the erection and completion (except heating apparatus) of the extension to-the United States customhouse and post-office building in the city of New Haven, county of New Haven, and State of Connecticut, including changes in the present building, in strict and full accordance with the requirements of the advertisements for proposals, dated November 16,1893, “general instructions and conditions,” and the specification for the work, signed by the said party of the first part; miscellaneous drawings numbered 200,275,294,677,678, 679,680,681, 682, 683, 684, and 685, and such other details as may be furnished to the said party of the second part; proposal dated December 8,1893,- addressed to the said party of the first part by the said party of the second part, and letter dated December 11,1893, addressed to the said party of the second part by the said party of tbefirst part, accepting said proposal, a true and correct copy of each of which said papers is attached hereto and forms a part of this contract, and which said numbered miscellaneous drawings, bearing the signature of the said party of the first part and the signature of the said party of the second part, are on file in the office of the said party of the first part, and are hereby made a part of this contract. And the said party of the second part further covenants and agrees that all of the materials used shall be of the very best quality, equal in every respect to samples of all materials to be submitted by the said party of the second part to, and approved by, the said party of the first part; that all of the work performed shall be executed in the most skillful and workmanlike manner, and that both the materials used and the work performed shall be to the entire and complete satisfaction of the said party of the first part. The party of the second part further covenants and agrees to execute the work at such times and in such quantities as may be required by the party of the first part, and that the said party of the first part shall have the right to give directions to the said party of the second part to complete any particular portion of the work herein provided for within such time as may be hereafter definitely specified by the said party of the first part in •written notice to the said party of the second part; and that should the said party of the second part fail to complete such *512particular portion of the work within the time so specified, then the said party of the second part shall be subject to theforfeit-ure clause for delay hereinafter to be provided, and that the entire work shall be completed to the full satisfaction of the said party of the first part within (7) months from December 11,1893, it being understood and agreed by and between the parties hereto that if, through any fault of the party of the first part, the party of the second part is delayed in the execution of the work provided i'or in this contract, and is thereby prevented from completing the same within the time above stated, the party of the second part shall be allowed one additional day to the time above stated for each and every day of such delay, as ascertained by the party of the first part. And it is understood and agreed by and between the parties hereto that if the party of the second part shall fail to comply with the terms of this contract which relate to the time within which the said work or parts thereof are to be completed, the said party of the second part shall forfeit the sum of twenty dollars ($20.00) per diem, as liquidated damages for each and every day thereafter until the completion of the contract by the party of the second part, subject, however, to the discretion of the Secretary of the Treasury, which sum shall be deducted from any money which maybe due him, and if that amount be not due, then thepartyof the second part agrees to pay the same. It is further covenanted and agreed by and between the parties hereto that if the said party of the second part shall fail to prosecute the work herein contracted for with such diligence as in the judgment of the party of the first part will insure the completion of the said work within the time hereinbefore provided, or shall fail to comply with any of the terms of this contract, and thereby, in the judgment of the party of the first part, hazard the satisfactory completion of the work as hereinbefore stipulated, the said party of the first part is authorized and empowered, after eight days’ due notice therefor in writing, served personally upon or left at the shop, office, or usual place of abode of the said party of the second part or with his agent, and the said party of the second part having failed to take such action within the said eight days as will, in the judgment of the party of the first part, remedy the default for which said notice was given, to take possession of the said work, in whole or in part, and of whatever machinery, tools, or materials belonging to the said party of the second part, and employed thereon, and to complete the said work, and to supply the labor, materials, and tools of whatever character necessary to be purchased or supplied by reason of the default of the said party of the second part, and the actual cost thereof shall be deducted from any moneys due or owing to the said party of the second part on account of this contract, and if that amount be not due, then the actual cost thereof shall *513be repaid to tbe party of tbe first part on demand. And tbe said party of tbe first part, acting for and in bebalf of tbe United States, doth covenant, promise, and agree to pay, or cause to be paid, unto tbe said party of tbe second part, or to bis beirs, executors, administrators, or assigns, in lawful money of tbe United States, in consideration of tbe herein-recited covenants and agreements made by tbe party of tbe second part, tbe sum of twenty-nine thousand four hundred and ninety dollars ($29,490.00), payments to be made in tbe following manner, viz: Ninety (90) per cent (nine (9) tenths) of tbe value of the work executed and actually in place, to tbe satisfaction of tbe party of tbe first part, will be paid from time to time as the work progresses in monthly payments (tbe said value to be ascertained by the party of the first parti, and ten (10) per cent (one (1) tenth) thereof will be retained until tbe completion of tbe entire work and tbe approval and tbe acceptance of tbe same by tbe party of the first part, which amount shall be forfeited by said party of. tbe second part in tbe event of tbe nonfulfillment of this contract, subject, however, to the discretion of the Secretary of tbe Treasury; it being expressly stipulated and agreed that said forfeiture shall not relieve tbe party of tbe second part from liability to tbe party of tbe first part for any and all damages sustained by reason of any breach of this contract. It is further covenanted and agreed between tbe parties to this contract that tbe party of the second part shall execute, with two or more good and suffi-rient sureties, a bond to tbe United States in tbe sum of twelve thousand dollars ($12,000.00), conditioned for tbe faithful performance of this contract and tbe agreements and covenants herein made by the said party of tbe second part. It is an express condition of this contract that no member of Congress, or other person whose name is not at this time disclosed, shall be admitted to any share in this contract, or to any benefit to arise therefrom; and it is further covenanted and agreed that this contract shall not be assigned, and that any assignment thereof shall be a forfeiture of the same. It is further covenanted and agreed by and between tbe parties hereto that this contract shall be valid and binding when approved by tbe Secretary of tbe Treasury, and not otherwise. - “In witness whereof tbe parties have hereunto subscribed their names this eleventh day of December, A. D. 1893.
“Jeremiah O’Rourke,
“ Supervising Architect.
“Daniel A. Driscoll,
“ Contractor.
“Approved, December 9,1893.
“W. E. Curtis,
“Acting Secretary.”
*514The specifications therein referred to, so far as material to this case and as requested by counsel.on both sides, are as follows:
Permits and fees. — The contractor must comply with the municipal regulations governing this work, obtain all necessary permits for the erection of the building, obstruction of the streets, connections to water, sewer, and gas mains, paying all fees and charges therefor, protect the excavations, and take proper precautions to prevent damage to persons or property.
Concrete foundations. — The concrete foundations for all walls, piers, manholes, basement floors, etc., to be of the dimensions shown on the drawings. The concrete to be composed of five parts hard clean stone, broken to a size to pass through a 2" diameter ring; two parts clean, sharp, coarse sand, free from vegetable and foreign matter, and one part cement. The cement and sand to be mixed dry, water added to make a mortar of proper consistency, and, after the stones have been wetted and drained, to be mixed with the mortar until each piece is thoroughly coated; concrete to be mixed in batches and immediately laid in place in one layer, gently rammed until free mortar appears on the surface, and finished with a skim coat of cement mortar ready to receive the brick and stone masonry. A sufficient amount of mortar to be used to fill all the voids in the broken stone.
The basement floor not to be laid until after the heating, drain, and soil pipes, clean-outs, &c., are in place.
Bubble masonry. — The exterior walls where so shown up to under side of base course at grade line and the' backing of the stone facing up to under side of first floor beams to be uncoursed rubble masonry, bonded with one through stone header in every superficial yard of wall; the wall in no place to exceed two stones in thickness; all to be bedded and jointed in cement mortar, the joints flushed with mortar well worked in with the trowel, the stones to be so worked that joints will not exceed f " in thickness.
The faces of the stone walls to be plumb and out of wind, in reasonably true lines, with even joints and all outside face joints, and the inside face joints, in portions of basement not to be plastered, to be neatly trowel pointed flush. ’
The jambs of the basement openings into covered areas to be pointed fair; at least every other jamb stone to be a *515through stone; the stones carrying ends of lintels must also be through stones.
The sill of the area opening in basement toilet room back of closets to be in one piece, bedded at ends, the top surface about f" below the level of the brick floor of the area.
Chases for down and soil pipes, and for the area, coal chute, outside step walls, and interior basement walls, where shown, to be properly formed as shown and required. The contractor will also be required to cut all the chases in the old walls for housing of new walls and for new down or soil pipes. Pipe chases to start from the top of the concrete footings.
Brick floors. — The unplastered portions of the basement, five areas connected therewith on the G-reyson street side, and the floor of the area back of the water-closets, to be paved with sound, square-edged brick, laid on edge, bedded in cement mortar at the exact level required, ánd the surface covered with fine sand, swept into the joints of the brickwork. *******
Joints. — The exposed mortar joints of brickwork which are to be plastered to be cut off rough, and all exposed joints of brickwork not to be plastered to be neatly trowel pointed. Old basement walls exposed by new excavations, &c., to be cleaned and-pointed.
The entire first floor, basement stairway, the basement rooms so noted on plan, and the areas opening into these rooms to be plastered.
*******
Building. — The walls of the building to be built uniformly not more than one scaffold high before the other portions of the building are brought to the same level, except where specially authorized by the superintendent, and the brick backing must follow closely the setting of the stonework and the brick facing.
Purlins. — The wood purlins to be .2" x 6", spaced 2' 0" on centres, ends cut to fit profile of rafters, blocked up from lower flange of beam so that the top of purlin will be above the top of rafters, and 2" x 4" filling pieces, cut close and securely toe-nailed in between the ends of purlins. All rafters of the gabled roof over southeast corridor tp have the 3" x 3" nailing strips secured as shown in detail. Purlins of roof over large light well to be 2" x 5".
Tin work. — All roof covering and flashing to be tin.
*516Tbe roof sheathing and gutters to have a layer of best quality fibre paper, weighing not less than 12 oz. to the square yard, well lapped and tacked, then covered with IXX tin plates 14" x 20", no wasters, the brand and maker’s name stamped on each sheet. Either N. & G-. Taylor’s Old Style,” Gilbertson’s Old Method, or Phelps, Dodge & Oo.’s terne plates will be acceptable. Each sheet to have five tags, three on the longer and two on the shorter side, fastened to sheathing with tinned wire nails; tin to be laid with single-locked joints beaten flat and soldered. The tin to be turned up 6" against all walls, curbs, &e., cap flashing to be 6" wide, in continuous strips, let 1" into joints of masonry or into raglets cut for the purpose, wedged with lead and pointed with elastic cement; the cap flashing to be carried over the skylight curbs, turned down 1" inside and beaten flat; tin to be turned up against the large light well behind the galvanized iron cornice, the tin on roof of same to be turned down at eves with locked joint to the galvanized iron, beaten flat and not soldered; the covering of low roof to be jointed to cast-iron gutter same as old work, the covering of gable over corridor to be fastened to the terra cotta in an approved manner, moulded cornice of profile indicated supplied and fastened to tin on roof with locked soldered joints.
New and old roofs to be properly joined and new tin supplied as directed.
* * * # * # *
Lathing and plastering. — All rooms, halls, &c., on first floor, including new work in old extension, the basement stairway, and the rooms in basement so noted, to be plastered. The areas in plastered parts.of basement, the jambs and soffits of openings thereto, and sill of high opening back of closets to be plastered.
The exposed cut stone and pressed-brick faces of exterior walls of old building will not be plastered, but the stone and brick facing exposed in working room and corridors must be cleaned down and repointed as directed.
The first story will have plaster cornices where indicated by single lines drawn near the walls, girders, and post-office screen. The cornices in new corridors to be returned along the outside walls of old building.
All new plastering, repairing, and jobbing to be done in old extension as directed. Chimney breasts and returns of same *517to walls in postmaster’s room and basement room below same will not be plastered; back of chimney in 1st story toilet room and chimney in basement toilet room are to be plastered; basement ceilings to be plastered on the soffits of the brick floor arches.
* $ # ' * # # *
III. In addition to the work provided for by said contract the claimant was, by sundry supplemental contracts, authorized to perform and did perform certain extra work on said building, for which it was agreed he should receive additional sums, amounting in all to $1,950, making an aggregate contract price for said work of $31,445, which work was all performed by said claimant in accordance with said contract and the specifications, except that said work, without any fault on the part of the claimant, was not completed within the time prescribed in said contract for the reasons set forth in Finding VIII.
The claimant has been paid the sum of $31,287.75 for said work, leaving due him on said contracts the sum of $157.25, which sum was withheld from him by the Secretary of the Treasury under the forfeiture or penalty clause of said contract as the amount of damages sustained by the defendants on the theory that a part of the delay hereinafter found was due to the fault of the claimant, but the claimant, as found, was not in fault.
IV. Soon after the contract was entered into the claimant was furnished by the defendants with drawings showing the iron and masonry plans and the specifications for use in the construction of said building. In ordering the iron beam for the stairway the claimant followed the measurement indicated by the scale on the iron plan alone and purchased a beam 16 feet long, which was 10 inches too short, as indicated by the scale on the masonry plan. The claimant was required by the defendants to procure and put in a new beam 16 feet and 10 inches long, which he did at an additional cost of $25.'
V. In the prosecution of the work the claimant was required by the defendants to perform the following work, as in conformity with the drawings and specifications, viz:
Items 5. Plastering and furring stairway.$15
6. Plastering ceiling arches in basement. 122
14. Labor and materials in roof. Patting in purlins 2 feet instead of 4 feet. 300
*518Items 15. 344 yards brick paving (abandoned by the claimant).471
16. 344 yards concrete (abandoned by the claimant). 430
18. Washing stone for concrete. 25
20. Tearing down and replacing wainscoting. 25
21. Tearing down and replacing fireplace. 40
22. Extra cost cut-stone masonry.378
23. Making frames for cornice. 96
All of which work was done by the claimant under protest, as not being called for by the drawings and specifications, for which work he claimed compensation before the final acceptance of said work and now claims compensation therefor, except as to items 15 a.nd 16, which he has since abandoned. The work so performed by the claimant was in conformity with the drawings and specifications and the requirement therefor was reasonable.
VI. In addition to the extra work described in finding iy, for which the claimant was paid, he was required by the local or subordinate agent of the defendants, without the knowledge of the supervising architect, to perform and did perform the following additional work on said building not provided for by said contract and specifications, which work, when done, was accepted by the defendants with notice that the claimant demanded compensation therefor, but payment has not been made. The items of charge for said work, with the reasonable value therefor, are as follows:
Items 2. Changing 5 brick arches, first floor... $30
3. Changing position 5 windows. 50
4. Changing position new screens, first floor. 25
7. 1,000 pressed brick, extra height. 75
8. 7,000 hard brick, extra height. 175
9. 4,000 brick, interior wall. 100
10. 6 feet fluo lining. 1
11. 2 yarde concreto, extra width foundation__ 16
12. 2 yards excavation, extra width foundation. 1
13. 350 feet extra tin flashing. 90
Total... 563
The work mentioned in the petition as “By difference in cost of extra depth,” being numbered item 17 in the claimant’s request for findings for $455, and the item “Tearing out one arch and putting in two,” being numbered item 19 in the claimant’s said request for findings for $25, was included in special contracts for work done by the claimant for which he was paid. No extra or other compensation was promised to the claimant *519by said local or subordinate agent at any time for any of said work.
VII. Had.tbe claimant been allowed to work continuously without interruption by the officers of the United States he could have completed the work provided for in said original contract within the time prescribed therein; but the plans and specifications for said building were not promptly furnished him, and when furnished were so drawn that it became necessary for the defendants to make frequent changes and to enter into sundry supplemental contracts, thereby causing frequent interruptions in the prosecution of said work; and, without any fault of the claimant, other than that of the time required as hereinafter stated to perform the work under said supplemental contracts, he was delayed in the completion of said work until June 29,1895, a period of eleven months and eighteen days subsequent to the time when, by the terms of said original contract, said work was to have been finished, of which time about one month and eighteen days were necessarily required in the performance of the work under said supplemental contracts for which' he was paid as aforesaid.
By reason of the delay aforesaid, and without any fault on the part of the claimant, he was damaged in the following-sums:
Extra time of the claimant as superintendent...$1,500
Extra time of foreman, for which the claimant paid. 800
Total damage recoverable.,_2,300
Upon the foregoing findings of fact the court decided as conclusions of law that the claimant recover:
On finding 4, being balance due on contract.. $157.25
On finding 8, damages for delay. 2,300.00
Total judgment. 2,457.25
Mr. John G. Fay for the claimant.
Fay & Putnam were on the brief.
Mr. William E. Button, with whom was Mr. Assistant Attorney-General Pradt, for the defendants.
Peelle, J.,
delivered the opinion of the court:
December 11,1893, the claimant entered into, the contract set out in the findings, whereby he agreed that for the consid*520eration of $29,490 be would furnish all the labor and materials and perform all tbe work required for the erection and completion of the extension to the custom-house and post-office building at New Haven, Conn., including changes in the present building as in said contract provided, which work was to be completed within seven months from said date.
During the progress of the work sundry supplemental contracts were entered into for certain extra work aggregating $1,950, which work was performed by the claimant and for which, together with all other work required by the terms of said contracts, he has been paid except as to the sum of $157.25, which was withheld from him as damages sustained on the theory that part of the time of the delay in completing said work was due to the fault of the claimant.
In addition to the extra work for which the claimant has been paid, he was required by the local agent, as set forth in the findings, to perform certain additional work, not provided for by the terms of the contract, for the payment of which he seeks a recovery on quantum meruit.
The claimant, without any fault on his part, was delayed by the acts of the defendants in the completion of said work until June 29, 1895, or eleven months and eighteen days beyond the time of the contract period, of which one month and eighteen days were necessarily required in the performance of the extra work aforesaid. For this delay he seeks to recover damages.
The defense in respect of the $157.25, which was withheld under the forfeiture clause of the contract as the amount of damages sustained, on the theory that a part of the delay was the fault of the claimant, is met by the findings of fact in the claimant’s favor and need not be further considered.
In the advertisement for proposals general instructions were given to bidders, among which, under the head of “measurements,” was the following:
“ The successful bidder, at the proper time, to be determined by him, must make all measurements necessary for the proper-prosecution of the work called for by the drawings and specifications; and, during the prosecution of the work, he must make all necessary remeasurements to prevent misfittings in said work; and he will be responsible therefor.”
That paragraph enjoined upon the successful bidder the duty *521and responsibility not only of making “ all measurements necessary for the proper prosecution of the work called for by the drawings and specifications,” but also to make, during the progress of the work, “ all necessary remeasurements to prevent inisfittings in said work.”
The advertisement and general instructions forming a part thereof were incorporated into the contract, and it was therefore clearly the claimant’s duty, dictated by common prudence as well, to make or cause to be made for his own guidance, in the proper prosecution of the work, the necessary measurements and remeasurements “ called for by the drawings and specifications;” and if the duty and responsibility thus devolved upon him were neglected, by reason .of which he suffered loss, the defendants can not, either in law or in equity, be held liable therefor.
In other words, if in the prosecution of the work the claimant, in making measurements, relied upon one set of drawings alone and was thereby misled, to his injury, the fault was his own, as by the terms of his contract the necessary measurements were based on drawings and specifications; and there is no controversy but that by comparing the drawings or. the drawings with the specifications the proper basis for making the necessary measurements could have been readily ascertained ; but, if not, it was clearly the duty of the claimant, before proceeding further in that respect, to so inform the defendants, to the end that the proper basis might be furnished him.
In the Simpson Case (310. Cls. ft., 217) a contract was entered into to build a dry dock upon an available site to be provided by the Government'. Before entering into the contract the Government had caused soundings or borings to be made by its engineer officers which disclosed no special difficulty. The contractors entered into the contract without making any examination as to the character of the underlying soil. During the progress of excavation a stratum of quicksand was struck, which greatly increased the cost of the work, and the claimants sought to recover damages therefor on the ground that the Government, by agreeing to provide an available site, had thereby guaranteed the character of the underlying soil as indicated by the borings so made, and that in making.their bid and contract they had relied thereon, but the ruling of the *522court was adverse to their contention, and on appeal (172 U. S., 372) the decision was affirmed, the court, among other things, saying:
“ The fact that the bidders knew that a test of the soil in the yard had been made and drew the contract providing that the dock should be located on a site to be designated by the United States without any express stipulation that there was a warranty in their favor that the ground selected should be of a defined character, precludes the conception that the terms of the contract imposed such obligation on the Government in the absence of a full and clear expression to that effect, or at least an unavoidable implication.”
A similar question to the one under consideration was recently passed upon in the case of Burgywn (ante, p. 348). Iu that case the specifications under the head of “ General instruction for bidders” provided:
“ It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders are expected to examine the drawings and are invited to make the estimate of quantities for themselves.”
Still another specification under the head of “Details of the work ” correctly gave the basis or area within which the dredging was to be done, but in making computation therefrom the engineer officer stated the quantities of material to be excavated largely in excess of the true amount. The claimant sought a recovery on the theory that in making his bid he had relied upon the specifications, and that in respect of the numerical quantities of material stated they were erroneous, “ by reason of which to entitle the claimant to the compensation provided for in the contract, it became necessary for him to move his dredging machines over more extensive areas than those stated in the specifications, thereby increasing the cost of the work to his damage.”
But the ruling was adverse to the claimant, the court saying:
“All the factors for the computation were c'orrectly given and were open to. bidders, and they were expected and invited to make computations for themselves.
“ They were by the terms of the specifications cautioned to satisfy themselves of the character of the material and of the conditions of the work.’
“To uphold the claimant in his contention in the face of the *523specifications inviting bidders ‘to make tbe estimate of quantities for themselves,’ some of whom did so and framed their bids accordingly, would be giving the claimant an undue advantage over his competitors in securing the contract, with a right of action over against the Government for any loss he might have sustained by reason of his own neglect in not discovering the errors of which he complains. To so hold would, in our opinion, tend to defeat the purpose of the law requiring public works to be let by advertisement to the lowest responsible bidder.”
And so in the present case the loss sustained by the claimant in having to procure a second iron beam, as set forth in finding iv, was through his own negligence, and he is not therefore entitled to recover therefor.
Another provision of the general instructions to bidders, under the head of “ Inspection and acceptance of work,” relied upon by the defendants, is that—
“Each bidder must understand that, should his proposal be accepted, the materials delivered and the work performed by him, at any and ali times during the progress of the work and prior to the final acceptance of and payment for the same, shall be subject to the inspection of the Supervising Architect or his authorized agent, with the full right to accept or reject any part thereof that, in the opinion of the Supervising Architect or his authorized agent, is not strictly in accordance with the drawings and specification; and that he must, at his expense, within a reasonable time, to be specified by the Supervising Architect, remedy any defective or unsatisfactory material or work; and that in the event of his failure to do so, after notice, the Supervising Architect will have the full right to have the same done and to charge the cost thereof to his account.”
We think it may now be regarded as settled law that where one contracts, as in the case at bar, with the Government to furnish materials and perform work subject to inspection, with the right to accept or reject any part thereof which in the opinion of the officer named in the contract is “not strictly in accordance with the drawings and specification,” that the decision of said officer, in the absence of fraud or such gross error as would imply bad faith, is final and conclusive; and being final and conclusive it becomes the duty of the contractor, at his own expense, to “remedy any defect or unsatisfactory material or work” so rejected by conforming the same to the drawings and specification. (Kihlberg v. The United
*524
States, 97 U. S., 97; 109 U. S., 618; Kimball Case, 24 C. Cls. B., 35; Kennedy Case, 24 C. Cls. B., 122; Gleason & Gosnell, 33 C. Ols. B., 65.)
The requirement of the claimant to perform the work set forth in finding v was reasonable and in conformity with the drawings and specifications, and hence there can be no recovery therefor.
In respect of the extra of additional work which the findings show was done by direction of the local agent, without the knowledge of the Supervising Architect, the defendants contend that no implied contract can arise therefrom to pay for said work; and in this they are correct under the decisions in the Dole Case (14 C. Cls. E., 514); Ford’s Case (17 C. Cls. B., 60); Kennedy Case (24 O. Ols. B., 122); Ferris Case (28 C. Cls. B., 332); ffawláns Case (96 U. S., 689) and many other authorities which might be cited in support of the proposition stated.
In respect of alterations and additions in the materials or work called for by the drawings and specifications, the contract provides “that no claim for compensation for any extra materials or work is to be made or allowed, without the same being first agreed upon and specifically authorized in writing by the Supervising Architect, under the approval of the Secretary of the Treasury.”
The Supervising Architect, therefore, was the authorized contracting agent for the Government, and without his sanction therefor the claimant had no right of authority to perform, at the expense of the defendants, the additional work set forth in finding vii, and of this he was bound to take notice and govern himself accordingly.
The local or subordinate agent made no promise to the claimant or to his authorized agent that the Government would compensate him for the additional work so performed, and if he had done so such promise would have been void, as he was without authority to contract in respect thereto.
In the Dale Case (supra) it was .said, “It was the claimant’s duty to see to it that the agent who ordered this change (or addition) had authority from Washington to do it.”
In the Ford Case (supra) it was said, “If the contract in this case, had been made by the Chief of Engineers, the extra work ordered by the engineer in charge would- have been without authority.”
*525In tbe Ferris Case (supra), wherein tbe engineer in charge of tbe work bad ordered more onerous work to be done than that required by tbe terms of tbe contract, and verbally promised that tbe contractor should be paid therefor, tbe court, in speaking of a provision in the contract similar to tbe one in tbe case at bar, said:
“It keeps within tbe power of tbe Department, or tbe office making tbe agreement, tbe control of the contract, and prevents persons in charge of tbe mere execution of tbe work from changing tbe rights and increasing tbe liability of tbe Government. * * *
“To now bold that tbe officer in charge of tbe work bad a right, by any act done or omitted to be done, to change tbe terms of tbe agreement, or to so change tbe rights of tbe parties from which an implied agreement might arise, is to relegate to tbe discretion of such officer the powers which, by tbe terms of tbe contract, are reserved to bis superior officers. Such a construction of tbe law might lead to the most dangerous consequences to tbe Government by changing its rights from tbe jurisdiction of officers intrusted with tbe original making of tbe contract, and from tbe certainty of written agreements to the uncertain terms of oral contracts.”
Before a contract can be implied in this case it is incumbent upon tbe claimant to show that tbe additional work for which be claims compensation was performed by him by authority of tbe contracting officer, and, too, under circumstances indicating a purpose on tbe part of such officer to make compensation therefor. This the claimant has not done, and for that reason we bold that be is not entitled to recover for tbe additional work set forth in finding vi.
Nor are tbe relations of tbe parties changed by reason of tbe defendants having accepted tbe building with notice that tbe claimant demanded compensation for tbe work so performed. Tbe building was, and of necessity bad to be, accepted as an entirety; and since tbe additional work for which tbe claimant seeks compensation was done by him without the authority or knowledge of tbe defendants’ authorized agent, be is not in position to take advantage thereof, and hence no implied contract can arise from tbe mere acceptance of the building.
Tbe claimant, without any fault on bis part, was delayed in tbe prosecution of tbe work by the acts of tbe defendants for eleven months and eighteen days, but in view of tbe sundry *526supplemental contracts entered into between tbe parties for certain extra work, for which the claimant was paid as set forth in the findings, we have deducted from the period of delay one month and eighteen days as being about the time reasonably required to perform said extra work, leaving ten months as the time of delay caused by the acts of the defendants.
For this delay the claimant seeks to recover the items of damages set forth in the petition, aggregating $2,574, but we have only set forth in the findings the two items of extra time of foreman and extra time of the claimant, fixing for the first the amount actually paid out by the claimant during the time of delay, which was reasonable, and allowing the claimant, as superintendent for the extra time during the period of delay, $1,500, as reasonable compensation therefor. These are the only items of damage which were the proximate result of the acts of the defendants, the other items not being such as were within the contemplation of the parties when the contract was entered into, and are not, therefore, allowable. The damages recoverable are limited in law to the proximate consequences of the breach complained of; and, applying that well-known rule, the defendants could not when they entered into the contract have contemplated the other items of expense mentioned in the petition, and for that reason the claimant will only be allowed for the money actually paid out to his foreman and reasonable compensation for his own time as superintendent during the ten months’ delay.
From what has been said it follows that the claimant is entitled to recover on finding hi the balance due on the contract, and on finding vn the damages for the delay aforesaid, aggregating $2,457.25, for which judgment will be entered.
Nott, Oh. J., was absent when this case was heard, and took no part in the decision.