#### SAMUEL M. PLUMLEY v. THE UNITED STATES.

[No. 20781.

Decided March 9, 1908.]

*On the Proofs.*

McLaughlin & Co. contract to build the Naval Observatory (37 C. Cls. B., 150). They also contract to do certain additional work for $900. The first contract is abandoned by the contractors and declared forfeited by the defendants. The second contract is performed and the work paid for. The present claimant then contracts to carry forward the unfinished construction as required by the McLaughlin contract, and “ *ail authorized changes therein."*The defendants’ architect insists that a new system of ventilation not specified in McLaughlin’s first contract constitutes a part of the work covered by the $900 contract and is unfinished work which the claimant has agreed to do. This work is of unusual character, which has never before been done by any person. It is not in any manner described in the McLaughlin specifications or contracts; and such specifications would not be understood to cover such work by a competent architect or builder. Nevertheless the Secretary of the Navy sustains the architect and requires the claimant to do the work without compensation as being unfinished • work under the $900 contract. The value of this additional work is $1,500. The claimant is also required by the architect to do other additional work not required by the McLaughlin contracts, but he does not appeal to the Secretary of the Navy. It was known to the claimant when he bid for the work that McLaughlin & Co. had been ordered by the architect to install the new system of ventilation and that they had begun the work when their contract was forfeited. No supplemental contract, however, had been made by McLaughlin & Co.; neither had the Secretary nor any officer ruled that such work was included in any contract.

I. Where a contractor agrees to carry forward the unfinished work of a previous contractor *“and all authorized changes therein;"*and his agreement provides that all disputes between the architect and the contractor shall be submitted to the Secretary of the Navy, the Secretary’s decision that a new system of ventilation was unfinished work of the previous contractor and that the present contractor can not be paid therefor, will be conclusive, though the court now finds that the new system was not embraced in the previous contract and was not an authorized change thereunder.

*267II. Where a contract provides that all disputes between the contractor and the architect shall be submitted to the Secretary of the Navy whose decision thereon shall be final, the contractor can not recover for additional work which the architect compelled him to do, if he did not submit the matter to the Secretary.

III. Where a contract requires the contractor to carry forward the unfinished construction of previous contractors as provided by the terms'of their contract, and he knows that drawings for a new system of ventilation had been handed to the first contractors with instructions by the architect to proceed in accordance therewith, and that they had begun work in accordance with the instructions when their contract was forfeited, he will be estopped from saying that the new system was not required by the first contract or described in the specifications, unless he give notice at the time of executing the contract that he does not consider the additional work as embraced therein.

*The Reporters'*statement of the case:

The following are the facts of the case as found, by the court:

I. On the 2d day of October, 1888, P. H. McLaughlin & Co., of Washington, D. C., entered into a contract with the United States for the erection of the buildings of the Naval Observatory. The contract is the same which was before this court in the case of *P. H. McLaughlin <&*Go., v. *United States*(37 C. Cls., 150).

It contained, among other provisions, the following:

“ *Second.*The construction and erection of said buildings, and all other work herein contracted for, shall conform in all respects to and with the plans, specifications, drawings, proposal, and letter aforesaid, which plans, specifications, drawings, proposal, and letter are hereto annexed and shall be deemed and taken as forming a part of this contract, with the like operation and effect as if the same were incorporated herein. No omission in the drawings, plans, or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the parties of the first part, and all claims for extra compensation by reason of, or for or on account of, such extra performance are hereby, and in consideration of the premises, expressly waived.

*268“ *Third.*If at any time during the prosecution of the .work it shall be found advantageous or necessary to make any change or changes in the requirements of the drawings, plans, or specifications which may either increase or diminish the cost of the work, such change or changes must be agreed upon in writing by the parties of the first part and by the architect appointed by the Secretary of the Navy to superintend the work — the agreement to set forth fully the reasons for such change or changes, to state clearly the quantities and prices of both material and labor thus substituted for those named in the plans and specifications, and, before taking effect, to be approved by the said Secretary: *Provided^*That the drawings, plans, or specifications shall not be changed in any respect when the cost of such change shall exceed five hundred dollars ($500) except upon the written order of the Secretary of the Navy, and that, if changes involving an expenditure in excess of said sum thus made, the actual cost thereof, and the damage caused thereby, shall be ascertained, estimated, and determined by a board of naval officers appointed by the Secretary of the Navy, and the parties of the first part shall be bound by the determination of said board or of a majority thereof, as to the amount of increased or diminished compensation which they shall be entitled to receive, if any, in consequence of such change or changes.

*“Fifth.*The materials and workmanship used and applied in the construction and erection of the buildings and their appurtenances and all other work required under this contract in details and finish shall be first-class and of the very best quality, unless particularly set forth to the contrary in the drawings, plans, or specifications, and shall from the beginning to the end of the work be subject to inspection by such architects or inspectors as may for that purpose be designated by the Secretary of the Navy, it being hereby expressly understood, covenanted, and agreed that the said Secretary may appoint suitable architects or inspectors to whom the parties of the first part shall furnish such samples and such information as to the quality thereof and the manner of using the same as may be required and also any assistance that may be required in determining the quality of the materials either used or intended for use in the construction of the buildings and their appurtenances; and that the architect may peremptorily reject any unfit material or forbid the use thereof and that he shall at all times during the progress of the work have full access thereto and that the parties of the first part shall furnish him with full facilities for the inspection and superintendence of the same; that only *269skilled, competent, and fit workmen shall be employed on the work and that the architect may, by written notice, require the parties of the first part to dismiss forthwith any employee he may deem incompetent, careless, or otherwise objectionable on the work; that the architect may also require the parties of the first part to remove such of their materials or work as in his opinion are not in accordance with the drawings, plans, or specifications and to substitute without delay satisfactory work and materials, and that the expense of doing so and of making good other work disturbed by the change shall be borne by the parties of the first part, who shall promptly carry out all such requirements, and that the decision of the architect superintending the work upon all questions concerning materials and workmanship shall be final, and that in case of the absence of the architect his duties may be performed by an assistant appointed by the architect with the approval of the Secretary of the Navy.

“ *Tenth.** * * The delays which the Secretary of the Navy shall find to be properly attributable to the Navy Department or to its authorized officers or agents, or any or either of them, and to have been a delay operating upon the final completion of the work within the period herein specified therefor shall entitle the parties of the first part to a corresponding extension of the period within which the work is to be completed: *Providedl,*however, That no delay attributed by the party of the first part to the Navy Department, its officers or agents, or the alleged cause or causes thereof, shall be considered by the Secretary of the Navy unless the parties of the first part shall at the time of the occurrence of such delay notify him in writing of the facts and circumstances in each case and of the extent to which they claim that the final completion of the work is thereby delayed.”

The total amount to be paid said P. H. McLaughlin & Co. was three hundred and seven thousand eight hundred and eleven dollars ($307,811), and by authorized additions thereafter made under subsequent agreements with them an additional sum of four thousand five hundred and thirty-nine dollars and fifty-seven cents ($4,539.57).

On September 8, 1891, the Secretary of the Navy declared the McLaughlin contract forfeited for failure of the contractors to proceed with the work. The work was then read-vertised, the advertisement being accompanied by the printed copy of the specifications of the McLaughlin contract with erasures showing the portions of the work completed.

*270The circular inviting proposals made the following statement in regard to such erasures, etc.:

“ In view of the advanced condition of the work of completion of the new Naval Observatory, and in order to furnish, as fully as practicable, such information as to the present condition of the work as may be necessary for persons desiring to submit bids therefor, numerous manuscript notes and erasures have been made in these detailed specifications. Such alterations do not, however, constitute the ‘ duly authorized changes in the plans and specifications ’ that are referred to in the proposals for the completion of the new Naval Observatory, and the advertisement inviting the same dated January 7, 1892, but are made solely for the assistance of bidders in making their estimates. They do not impair the requirements of the specifications as set forth in this circular and as amended prior to September 8, 1891.”

The circular thus marked indicates the following, viz:

Letter A is placed opposite requirements which apparently have not been fulfilled in the least particular.

Letter B is placed opposite requirements which have apparently been partially fulfilled, the varying percentage of fulfillment or completion being approximately indicated by subnumerals, as B25, B50, B75.

The black lines drawn through requirements indicate that the work has probably been completed or that the requirement is probably specified elsewhere.

The condition of the authorized additional work or amendments to the specifications prior to September 8, 1891, is as follows: Clock room and transit-circle rooms, B85; drainpipes and rain cesspools, A; cutting door for access to cellar, B50; extension of soil pipes to cesspools and east toilet room, B15.

The claimant became the accepted bidder and entered into the contract with the United States set forth as an exhibit to the petition and carried out the contract.

II. The claimant promptly proceeded to perform the work required by his contract and would have completed the same by June 1, 1892. He was delayed, however, in so doing by the defendants in not having the architect on hand promptly for decisions pertaining to the same. The contract time for the completion of the work was extended by the Secretary of *271the Navy to February 8, 1893, giving as a reason therefor that failure to complete the work within contract time was on account of circumstances beyond claimant’s control. It is not shown that claimant suffered any loss by reason of said delay, except the expenditure of $502.50, premiums paid upon insurance claimant was obligated to carry upon the work.

III. Some time after the work had been in progress by P. H. McLaughlin & Co. under the original contract, the architect employed by the Government to superintend the construction submitted the following paper to the department:

“ The distances between the clock room and the east and west transit-circle room, as shown on the original location plan, should be reduced; This is made necessary by the fact that on the original a large well comes directly under the east transit-circle room. This change involves no expense.

“ Since by the above change the distance from the clock room to the observer’s room is reduced to ten (10) feet, communication between them by covered passageway is made practicable at a comparatively small cost. By such communication the clock room will be entered through a passageway in which the temperature is practically the same as that of the clock room, which is a consideration of so much importance as to warrant even a greater expense than that entailed by the proposed change. The cellar of the clock room will be entered through cellar of passageway, which will add to the facilities for placing clock and mirror piers.

“ The new position of doors with the suggested transoms will admit reflecting beams of light from the faces of the standard clocks to observers’ room, to positions of chronographs, and to transit-circle rooms.

“ It is the opinion of the authority of the Naval Observatory that these changes will be of very material benefit.

“ Plans showing these changes are in the hands of the Superintendent of the Naval Observatory. They have been examined by the contractors (McLaughlin & Co.), who offer to make all changes according to plans and specifications prepared by me at a total cost of nine hundred ($900) dollars.

“ They will, upon the approval of the changes by the department, enter into a formal contract to do the work for the above amount,” *

*272The offer of the contractors above referred to was made in writing, was approved by a board of officers, and received the approval of the Bureau of Navigation and Secretary of the Navy. The work therein named was performed and paid for.

In four of the buildings covered by the specifications annexed to the contract of P. H. McLaughlin & Co., to wit, the three transit-circle rooms and prime vertical buildings, the specifications provided as follows:

“ Main, *east and west transit*circle, *and adjoining main*building, *and prime vertical buildings.*Construct frame of the side and the roof of rolled iron beams, channels, and angle irons of the sizes shown on the one-quarter inch scale plan, properly riveted together and braced in the most substantial manner.”

Nothing was shown in said specifications or in the drawings accompanying either the original contract of McLaughlin & Co. or the contract of Plumley involved in this case in regard to any provision for ventilation.

Some time after the work had begun under the contract of P. H. McLaughlin & Co., a plan was submitted by Professor Henry M. Paul, United States Navy, for a system of ventilation designed to preserve the same temperature inside of the buildings as outside, and with this view he submitted a plan for the construction of a ventilating system in substance the same as was afterwards carried out, as hereinafter more fully set out.

The drawings showing the system of ventilation were handed to McLaughlin *&*Co. with instructions by the architect to proceed in accordance therewith, and they had proceeded a short distance in the construction in accordance with said drawings at the time their contract was forfeited, all of which was fully known to claimants at the time their bid for completion of the McLaughlin contract was accepted. No supplemental contract, however, had been made, nor had there been any ruling by the Secretary of the Navy or other officer that such work was included in the contract; nor does it appear that any drawings were brought to the notice of the claimant when bidding on the work or that he was informed except as findings otherwise shoAv that such a venti*273lation system would be required of him if he obtained the contract.

The claimant was required by the architect having charge of the construction of said observatory to put in a system of ventilation in accordance with the plan of Professor Paul. The claimant protested against being required to do the work on said ventilation system as a part of the “authorized changes” referred to in paragraph 2 of the contract. But said architect ruled that the work constituted a part of that shown in Memorandum No. 1 above, which the original contractors, McLaughlin & Co., had agreed to do for $900, and that it therefore constituted a part of the unfinished work of said McLaughlin & Co. which the claimant had assumed by his contract.

Claimant appealed in writing to the Secretary of the Navy, claiming that the work was not included in that covered by Memorandum No. 1 of the supplemental contract of McLaughlin & Co. to do the work named in said memorandum, and insisted that he was entitled to be paid for the same. His letter is as follows:

“ Washington, D. C., *May 1%. 189%.*

“Hon. B. F. TRacy,

“ *Secretary of the Navy.*

“ Sir : Under the ninth clause of my contract for the completion of the new Naval Observatory I desire to submit to your consideration and decision the contemplated changes in transit-circle buildings. The original drawings do not show the ventilation in the base of the building; details have been furnished by the architect entirely at variance with the original drawings or authorized changes, the cost of which will be about fifteen hundred dollars. An early decision on this matter will greatly oblige

“ Yours, respectfully, S. M. Plumley.”

The Secretary of the Navy, however, affirmed the requirement of the architect and would not make any allowance for the work as an extra, and it has never been paid for.

The work required of and done by the claimant was to put on the inside of the buildings wooden doors hung from the top and covered with plain zinc lining inside and outside *274around the edges, enabling the degree of temperature in the room to be regulated by raising the shutters. There are also outside shutters made of wood an inch and three-quarters thick, covered with zinc on the inside and corrugated iron on the outside, with galvanized-iron slats perforated for the admission of air. There was also a chronometer shelter bos built for each building. There were in all thirty-two inside blinds, sixteen outside shutters, and four chronometer shelter boxes.

The work was of an unusual character, which had never before been done until it was invented by Professor Paul. It was not in any manner described in the specifications, and said specifications would not have been understood as covering such ventilation when read by a competent architect or builder familiar with specifications.

The value of the work was one thousand five hundred dollars ($1,500).

IV. The plans for the ceilings of the cellar rooms in the main building and great equatorial and clock rooms did not show any plastering. Drawings of that character contain certain lines when intended to indicate plastering. No such lines appear in the drawings of this work. The specifications except the cellar rooms. The claimant was required, however, to plaster the ceilings in the cellars of all these buildings and did so, protesting against the requirement, but it was insisted by the local officers in charge, acting by the authority of the Secretary of the Navy, that the contract required these ceilings to be plastered.

The value of this work was nine hundred dollars ($900).

V. The specifications of the McLaughlin contract, also constituting a part of this contract, contain under the head of “ Concrete floors ” the following:

“ Concrete cellars throughout, without exception, also parts of areas flagged, with Portland-cement concrete, as above specified for foundations, not less than six (6) inches thick, and finish surface with a final layer of best imported Portland cement and fine-screened gravel. Trowel off smooth and mark with marking tool, and finish equal to granolithic pavement.”

*275The last sentence is erased in the copy of the specifications annexed to Plumiey’s contract.

Said specifications also contain the following:

*“Asphalt.*— Pave entire area of the cellar of main building, clock room, prime vertical and transit buildings, also of the great equatorial building over the concrete, with one (1) heavy coat of Seyssel or Neuchatel asphalt, not less than three-quarters (f) inch thick, run clear to walls, and finished a good smooth finish.”

The drawings annexed to the specifications, and thereby declared to constitute a part of the contract, showed only one layer of finish.

The claimant was required by the officers in charge under the-direction of the Navy Department to put down over the concrete of these cellars a layer of Neuchatel asphalt. The putting down of this asphalt on top of the concrete is of no advantage and is unusual in construction. Owing to the addition of the asphalt finish over the concrete, these cellar rooms when completed were and to-day are two inches less in height than as shown on the drawings.

The additional value and cost of this work was one thousand three hundred and eighty-nine dollars and forty cents ($1,389.40).

YI. The specifications contain the following:

“ *Waier supply.*— From the main supply, at a point near the boiler house, carry a line of four (4) inch heavy cast-iron pipe in twelve (12) feet lengths to the main building near the library, then parallel to same to the great equatorial, then north to the rear of the clock room.”

In addition to the main as thus laid, the contractors were also required to lay one hundred (100) feet more of the same character of pipe to a point one hundred feet south of the boiler house, against which the claimant protested, but was required to do the same.

The value of this work is one hundred and fifty dollars ($150).

VII. During the time that McLaughlin & Co. were at work under their contract they were requested by the Bureau of Equipment of the Navy Department to submit an estimate *276of labor and material for laying (655) feet of 4-inch vitrified drainpipe. They offered to furnish such drainpipe at the rate of forty-eight (48) cents a foot, making three hundred and fourteen dollars and forty cents ($814.40), and their offer was accepted by the department. This order was afterwards officially countermanded.

The claimant was, after the date of his contract, requested to submit an estimate, and he did so, proposing to do the work at the same price as had been named by McLaughlin & Co.

The claimant protested in writing to the Secretary of the Navy against being required to do this work as a part of his contract, but was nevertheless required to do it and did it.

' The reasonable value of the work was as proposed, amounting to three hundred and fourteen dollars and forty cents ($814.40).

“April 19, 1892.

“ Hon. B. F. Tracy,

*“Secretary of the Navy.*

“ SiR: I desire to call your attention to the contracts for extra work entered into with P. H. McLaughlin & Co. for changes in buildings for new Naval Observatory, and ask you to define my status in reference to the extra work. My understanding of this matter was that all authorized changes were to be completed by me, and that I was to receive the percentage on the work not completed as estimated by the board of appraisers, as follows, from the aid of builders attached to the specifications or circular from which I bid:

“ *First.*Clock room and transit-circle rooms is marked B 85, showing that the board or appraisers had estimated that 85 per cent of this work had been completed, leaving 15 per cent of the entire contract for this extra work yet to be done, and which I have estimated to receive when this work is finished by me.

“ *Second.*Drainpipes and rain-water cesspools marked A, showing that McLaughlin & Co. have done nothing toward completing this extra work, and the entire work under this extra order will have to be completed by me; therefore 1 claim that on completion of the laying of these drainpipes and cesspools that I should receive the entire amount of this contract, less the value of the pipe left on hand by McLaughlin & Co., which should be credited to them. In further support of my claim for this particular work, I have been informed by Mr. P. H. McLaughlin, of the firm of McLaugh-*277Tin & Co., that the order for this work was countermanded prior to the time that their contract was declared forfeited, and, in fact, on page 7 of the report of the board of appraisers, under the head of extra work, the drainpipes and cess-pools is marked countermanded, and on page 2 of the inventory of the board of appraisers 655 feet of 4-inch pipe is marked extra order countermanded. I have also been requested by the architect, Mr. It. M. Hunt, through the assistant architect, Mr. Harry E. Donnell, to sign a proposal to do this work at the same price as allowed McLaughlin & Co. The request, however, since that time has been recalled. I simply mention these matters to strengthen my claim for extra compensation for this particular work.

“ *Third.*Cutting door for access to cellar is marked B 50, showing that one-half of this work has been done by McLaughlin & Co., who should be credited with one-half of the amount allowed for this work and the balance to be paid to me on its completion.

“ Fourth. Extension of soil pipes to cesspools and east toilet rooms B 15, showing that 15 per cent of this work has been done by McLaughlin & Co., who should be credited with that amount, and the balance to be paid to me on completion. This has been my understanding of the matter all the way through, and I am satisfied that it was the understanding of every bidder for the completion of the work. I request that you give me a decision on these points as soon as possible, and if I have not made my statement as clear as you would wish, that I be allowed to make a verbal statement.

“ Respectfully,

“ S. M. Plumley.”

VIII. The claimant was likewise required, against his protest, to put in additional work, consisting of mill work, carpenter’s work, plastering, and hardware, in the lobby between the main building and the small equatorial, nowhere described or called for in the specifications or the plans annexed thereto.

The value of this work was two hundred and fifty dollars ($250).

TX. The claimant was also required to do additional work of the same character described in the preceding finding in the corridor between the small equatorial and main transit buildings and, though protesting against the same, was required to do it and did do it.

The value of such additional work was fifty dollars ($50).

*278X. The original plans showed wooden steps to the two observers’ rooms, two transit rooms, and prime vertical building, showing simply a plain newel and a plain rail. The plans under which the claimant was compelled to put up those steps were shown to him in the shape of a modified plan, which he was required to follow. The difference in value was thirty dollars ($30) for each of the five flights, making a total of one hundred and fifty dollars ($150).

XI. In the librarian’s room in the main building, McLaughlin & Co. had laid a wooden floor, and it had been finished and accepted prior to the date of the claimant’s contract. This was in accordance with the specifications, which provided tiling for certain rooms but did not name among them the librarian’s room. After the claimant entered upon work under his contract he was required to remove the wooden floor already put in and put a tile floor on this room. The value of this work was ninety-two dollars ($92).

XII. The original specifications and plans describe the observers’ rooms as “ each 18 x 20 feet interior measurement; one-story wood-frame building on foundation of masonry.” No cellar was shown under these rooms. The claimant was required under protest to make cellars under these rooms and to concrete the floors thereof and did so.

The reasonable value of the work is one hundred and' eighty dollars ($180).

XIII. During the currency of the McLaughlin contract, McLaughlin & Co. were called upon to estimate for packing sand around the instrument piers in the three transit rooms and prime vertical building, the construction of said piers being one of the works expressly excluded from the proposal and contract. McLaughlin & Co. submitted an estimate, but it was not acted upon before the termination of their contract. The claimant in this case was afterwards required by the officers of the Government in charge to put in sand packing around these piers and did so. The value of the work was one hundred dollars ($100).

XIV. The claimant was requested to submit an. estimate for placing slate and iron saddles on the doors in the main building, and furnished an estimate for the same to the *279amount of one hundred and fifty dollars ($150). After he had submitted such estimate he was required to do the work and did so. No saddles are specified in the specifications or shown in the plans. A saddle is a piece that goes across at the bottom of a door and over which the door shuts.

The value of this work was one hundred and fifty dollars ($150).

XV. The court finds that Augustus Davis, jr., formerly a member of the firm of McLaughlin & Co., was likewise a partner of the claimant herein. His interest in the undertaking was one-half of the profits to be realized.

This arrangement was afterwards made known to the architect, Mr. Hunt, and received his sanction and cooperation. Mr. Davis superintended the work and for several months spent a great portion of his time there; was present at a conference with the assistant architect with reference to the slate and iron saddles named in finding 14, as well as at a conference with the superintendent of the observatory with reference to the finish of the floor, as set forth in finding 5, and was present at and participated in a hearing before the Judge-Advocate-General of the Navy on the appeal to the Secretary of the Navy from the requirement to put in the ventilation system, as set forth in finding 3, subfinding 4. The contract was executed in the name of Plumley and he was recognized by defendants as the sole contractor. The interest of Davis in the contract and the partnership between him and Plumley was entered into prior to the execution of the contract by Plumley with the defendants.

XVI. It is not shown that the claimant appealed to the Secretary as to any items, except those heretofore mentioned in Findings III and VII, or that any of the extra work for which claim is made herein, except as findings otherwise show, was ever before the Secretary of the Navy or a board of naval officers appointed by him in pursuance of section 3 of the original contract with McLaughlin & Co. or were duly ordered as the contract provided. It is shown that the extra work charged for was performed by the claimant under protest and .after various disputes with the officer in charge of the work as to constructions of plans and specifications; but it does not appear that claimant sought relief therefor in man*280ner and form as provided in original contract with McLaughlin & Co. except as appears in Findings III and VII. Claimant performed the work under direction of the officer in charge and in accordance with his construction of the contract, plans, and specifications.

*Mr. George A. King*for the claimant. *Messrs. George A.*and *William B. King*were on the brief.

*Mr. W. W. Scott*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Booth, J.,

delivered the opinion of the court:

Samuel M. Plumley, the claimant herein, entered into an agreement to complete the new Naval Observatory on Georgetown Heights. The contract for the erection of the buildings had originally been let to P. H. McLaughlin & Co., in October, 1888. On September 8, 1891, the Secretary of the Navy declared the McLaughlin contract forfeited and immediately issued a public invitation for proposals for the completion of the McLaughlin contract. Claimant was the successful bidder and executed the contract in suit accordingly. Claimant’s contract was coextensive with the McLaughlin agreement and obligated him to carry forward the unfinished construction as provided by the terms of the McLaughlin contract and “all authorized changes therein.”

The claim now presented is for delay and extra work, alleging that the items set forth in the petition were not authorized changes within the meaning of the McLaughlin contract. The present controversy in most respects is fully determined by the case of *McLaughlin & Co.*v. *United States*(37 C. Cls., 150). The court in that case discussed at length the various provisions of the McLaughlin contract and its judgment therein forestalls recovery for all the items herein claimed for except Finding II. Clause 3 of the McLaughlin contract (Finding I) provided a mode for making changes in the drawings, plans, and specifications which might either increase or diminish the cost of the work to the contractor. If the change involved a cost in excess of $500 it could not be made except upon the written order of the Secretary of the Navy and required the appointment of *281a board of naval officers by the Secretary to determine the actual cost of such a change to the contractor. If the cost of the contemplated change was less than this amount an agreement in writing between the contractor and the architect appointed by the Secretary of the Navy was indispensable.

Prior to the forfeiture of the McLaughlin contract a change was made therein as set forth in memorandum No. 1 (Finding III), and McLaughlin & Co. had completed the work required thereunder and received the compensation provided therein. The architect in charge of the work required the claimant to install in some of said buildings a new and quite elaborate system of ventilation, insisting that the requirements therefor were fully covered by the terms of memorandum No. 1; that the same was a duly authorized change under the McLaughlin contract and hence denied him pay therefor.

Claimant appealed to the Secretary of the Navy, protesting against the requirements of the architect and requesting his decision thereon. The Secretary of the Navy affirmed the decision of the architect and required the contractor to perform the work. The findings disclose that the ventilation system was not embraced in memorandum No. 1 and was not an Authorized change in the McLaughlin contract.

The ninth clause of the Plumley contract, however, precludes recovery for this item. By this clause provision is made for the determination of any discrepancy between the plans, specifications, contract of October 2, 1888, and this contract. The parties obligated themselves to submit any such disputes to the Secretary of the Navy, and his decision thereon was final. In addition to the conclusiveness of the ninth clause, it appears that the claimant herein was fully aware of the construction placed upon memorandum No. 1, both by the Secretary of the Navy and McLaughlin & Co. prior to the execution of the contract in suit. Claimant well knew that said ventilation system was being installed by McLaughlin & Co. as a part of memorandum No. 1, and made no protest or exception to carrying.forward said work at the time he executed the contract. He can not after the execution of his contract for the first time be heard to com*282plain of the imposition of work and labor under the terms thereof, which he must have known and did know at the time were intended as a part of his undertaking. His silence when it was his duty to speak effectually estops him from speaking when it is to his interest to speak. *(Alvord*v. *United*States, 8 C. Cls. R., 364, and authorities there cited.) In contracts of this nature the parties may. contract to submit certain disputes to the Secretary of the Navy in authority over the whole undertaking and provide therein as to the finality of his decision. (See P. H. McLaughlin & Co., supra, and authorities cited therein.)

The expenses incident to delay, as set forth in Finding II, come within the McLaughlin case and will be allowed. All other items claimed for in the petition will be disallowed.

The circumstances under which said work was performed are fully set forth in Finding XVI and come within the dis-allowances made in the McLaughlin case, *supra.*

Judgment will be awarded claimant for $502,50, and in all other respects the petition is dismissed.