#### THE UNITED STATES v. THE WILLIAM CRAMP & SONS SHIP AND ENGINE BUILDING COMPANY. THE WILLIAM CRAMP *&*SONS SHIP AND ENGINE BUILDING COMPANY v. THE UNITED STATES.

[41 C. Cls. R., 164; 206 U. S. R., 118.]

*On both parties’’ Appeals.*

The contract is for building the *Indiana*within three years, with provisions that the Secretary of the Navy shall decide whether delays are attributable to the defendants’ officers, and if so, that they “ *shall entitle the parly of the first part to a corresponding extension of the period herein prescribed for the completion of the vessel.”*The Secretary so decides, and the time is accordingly extended. But the contractor suffers damages by the delays. The contract also imovides that before the final payment the contractor shall give “ *a final release” “of all claims of any hind or description under or by virtue of this contract; ”*and the release so given is “ *on account of the construction of said vessel under the contract*
      *533
      *aforesaid.”*During the period of construction the parties-agree to a modification of the contract, the purpose being to enable the contractor to receive certain money which, by the. terms of the contract, was to be' withheld from him until the completion of the vessel. By the terms of the modification a release is to be given “ *from'all and every claim for loss or damage hitherto sustained by reason of any failure upon the part of the party of the second part to comply with its contract on accoiont of any dielay hitherto occasioned by the action of said party of the second part."*There are numerous items of damage caused by the delay, which the court rules upon specifically.

The court below decides:

1. A provision in the contract that an extension of the period for the completion of a vessel shall be given, equivalent to any delay caused by the defendants, does not preclude the contractor from recovering damages caused by the defendants’- delay.

' 2. Neither can the granting and acceptance of such additional time operate as an estoppel. The c’ontractor’s consent to waive damages caused by the other party can not be inferred from the mere granting of additional time where there was no fault on his part.

S. The doctrine of *expressio unius est exclusio alterius*is not of universal application and is always subject to the intention of the parties, as evidenced by the contract.

4. A provision that before final payment a release shall be given by the contractor “ *of all claims of any hind or description under or by virtue of this contract,”*followed by such release, is not equivalent to a release for a new and valuable consideration • and will not preclude the contractor from seeking redress for a breach by the defendants.

5. But where the contractor before the completion of' the work entered into a modification of the contract whereby he was to receive certain reserved money not yet due, “ *and in consideration of such advance payment the party of*the. *first part hereby releases the party of the second part from all and any claim for loss or damage hitherto sustained by reason of any failure on the part of the party of the second part to comply with its contract or on account of any delay hitherto occasioned by the action of said party of-the second part,”*the release must be deemed to extend to all manner of claims relating to the work up to that time, and will preclude the contractor from seeking redress for the defendants' breach of the contract. *'*

6. One who accepts, the terms of a contract -in part must accept the contract as a whole.

*5347. Where the contractor without reservation entered into a new agreement to waive all damages in' consideration of certain moneys to he advanced, his acceptance of the benefits- of the agreement will estop him from questioning the authority of the Secretary of the Navy to enter into such an agreement; and he can not for that reason attack a release given by him on the faith of which the other party parted with money not then due.

8. The court passes upon various items making up the total of the claimant’s damages, such as wharfage, the use of the yard, the possession of the vessel during, the increased period of construction, etc., etc.

The court below decided that .the claimant is entitled to recover for the loss it sustained by reason of the delay of the Government to furnish the armor for the period subsequent . to May 10, 1894, being for one year, six months, and nine days, amounting-to the sum of $135,560.

The decision of the court below is reversed on the grounds ' that the parties by a release dated May 18, 1896, which ivas executed in performance of the requirements of the original contract, settled all disputes between the parties as to the claims sued upon, and the case was remanded with instructions to enter judgment on the findings for the defendants.

May 13, 1907.

Mr. Justice Brewer

delivered the opinion of the Supreme Court