#### HENRY C. RIPLEY v. THE UNITED STATES.

[No. 28555.

Decided May 25, 1908.]

*On the Proofs.*

Congress appropriate for and authorize the continuance of harbor improvement wort “ *in accordance with the design and, specifications of the Aransas Pass Harbor Company.”*The engineer officers in charge advertise for proposals, the wort to be done according tp their specifications, which vary somewhat from the specifications named in the statute. The claimant bids *¡*for the wort and enters into a contract to do it, the engineer’s specifications being made a part thereof. The claimant is required by the engineer in charge to do the wort according to the contract and specifications and not according to the specifications referred to in the statute.

I. Where a contractor enters into a formal agreement to do the wort described in published specifications, which are made a part of the contract, and does the wort and is paid therefor, it is too late for him to raise the objection that the specifications required more than the specifications referred to in the appropriation act which authorized the wort.

II. Where no fraud or gross error is charged against public officers in obtaining a contract a contractor is bound by the terms thereof.

*The*Reporters’ statement of the case:

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

I. The claimant herein is a citizen of the United States, of the State of Michigan.

II. In the act approved June 18, 1902, entitled “An act making appropriations for the construction, repair, and preservation of public works on rivers and harbors, and for *491other purposes,” the Congress of the United States made provision for certain improvements in the harbors of Galveston and Aransas Pass, in the State of Texas. (32 Stat. L., 340.) As regards Aransas Pass, the act provided:

“ Improvement Aransas Pass, Texas: Continuing improvement $250,000: Provided, That the work at this harbor shall be confined to the completion of the north jetty in accordance with the design and specifications of the Aransas Pass Harbor Company and in continuation of the work heretofore carried out on said jetty by said company and to such additional work as may be necessary for strengthening such jetty, and for the removal of such part of the old government jetty and any other hard material which may interfere with the formation of a channel by the natural action of the current.”

III. On October 10, 1902, Capt. C. S. Riche, Corps of Engineers, U. S. Army, who had charge of the improvements at Galveston and Aransas Pass, published an invitation for proposals for those continued improvements, together with specifications applicable in part to both of said improvements severally, which specifications are numbered 35, 36, 38, 40, 41, 42, 60, and 61, made a part of the petition herein under paragraph 4 thereof.

IY. Said specifications were sent to claimant, who had assisted in the preparation of same, and to Prof. Louis M. Haupt, consulting engineer of Aransas Pass Harbor Company, both of whom objected to some of the features of same for the reason that they varied substantially from the plan and specifications under which prior work on same had been done. Thereupon said specifications were modified in an amendment which was published November 9, 1902, and notice thereof was given to the prospective bidders.

The amendment to said specifications is set forth in the petition in paragraph 5.

Y. On March 11, 1903, claimant submitted to said Captain Riche a proposal to perform the Aransas Pass jetty work, with a letter as set forth in the petition and made a part thereof as paragraph 6. Said bid of claimant was accepted by Captain Riche, and on the 6th day of April, 1903, he and claimant entered into the contract set forth in paragraph T of the petition.

*492VI. Claimant entered into the performance of said contract on the 18th day of August, 1908. In the course of the work claimant furnished, up to August 25, 1904, 120 stones purporting to be crest blocks, which were rejected by the engineer officer as not conforming to the specifications. The claimant contended that said specifications provided for mean measurement, while the inspector adopted the method of measurement used in the case of the’ Galveston jetty. Afterwards one-half of said 120 stones was accepted and used as crest blocks, the remainder being accepted and paid for as large riprap. The difference in price paid by the claimant for said stones rejected as crest blocks and the price he would have been paid for them had they been accepted as such was $400.

On August 11, 1904, the engineer officer consented to a modification of the contract, so as to permit stones to be furnished which were slightly larger in dimensions, and thereupon entered into a supplemental agreement with claimant, which agreement is set forth in the petition as paragraph 8.

Through the rejection of the cap blocks, as aforesaid, claimant was compelled to furnish others to take their place, at an increased cost to him, and was delayed in the completion of the contract thereby a few days. Such increased cost and delay was caused through no fault of the United States.

VII. In the performance of said work it was advantageous to claimant to have his employees operate on the lea side of the structure, where they would be protected from the action of the rough seas, and for this purpose it was desirable that he be allowed to impose the crest blocks on the top of the core at such times as he should see fit, so that the waves could not pass over it and interfere with the workmen, and thus prevent delay in the completion of the contract. The engineer officer in charge did not permit the contractor to commence the laying of said cap blocks until such time as it was deemed advisable that the core had become sufficiently consolidated to receive the same.

It does not appear that the claimant was unreasonably delayed by the action of the United States agent in this respect.

*493VIII. During the progress of the construction of the jetty certain slight delays occurred in the unloading of claimant’s barges, the placing of stone, the breaking of an engine of one of the barges, and by the system of the checking of the barges employed by the Government to prevent loss at an early stage of the work. It does not appear that any of said delays or any increased cost to claimant thereby was through any fault or negligence on the part of the United States.

IX. Paragraph 61 of the specifications provides that the large pieces of riprap selected to be placed in open spaces in the jetty should be stored on the work at the expense of the contractor until such time as in the judgment of the United States officer they could be advantageously and properly placed. Said officer in charge informed the claimant that the United States would not assume any responsibility for their safety. Thereupon claimant returned a barge laden with said blocks to Rockport, from whence they had come, unloaded the same, and allowed them to remain there until such time as he was called upon to place them in the work.

In returning said blocks of stone to Rockport and storing them at that place claimant was put to an extra expense without any fault on the part of the United States.

X. In the construction of the core of the jetty it appeared that at different places pieces of riprap projected too far above the designated elevation to permit the laying of the crest blocks thereon, and claimant was required to remove the same so as to lower the jetty in order that said crest blocks might be properly placed.

The removal of said riprap was necessary t'o the execution of the contract.

XI. As provided in the notice to bidders under the paragraph headed “ Inspection,” claimant furnished board to one of the government’s employees during the entire time the contract was under performance and to two others during a portion of the time.

For the board so furnished claimant was paid by the United States the sum of $15 per month for each of said employees, which at the time and place was a fair and reasonable price and which was the usual and customary price *494paid by the United States for the board and lodging of its employees at said locality at said time.

XII. Paragraph 42 of the specifications of the contract provided that claimant should furnish, among other things, labor when required by the United States officer, for work not specified therein, for which the claimant was to be reimbursed by the United States at the cost thereof, to be determined by the engineer in charge.

From time to time claimant did furnish labor called for by the United States officer, which claimant was under contract to pay at the rate of $2 per day.

The United States engineer officer in charge, in determining the cost price of said labor for the purpose of reimbursing the claimant, allowed and paid the claimant $2 per day for labor actually performed.

XIII. During the progress of the work there 'occurred further delay by reason of the local quarantine on account of an epidemic of yellow fever breaking out at San Antonio, Tex., preventing the transportation of stone, which delayed the contractor about two weeks, and for which an extension of time of fifteen days was granted, during which time the charges for superintendence and inspection were remitted.

A further delay was caused by the grounding of a tugboat in the employ of claimant, through which the general progress of the work was delayed, without any fault on the part of the United States. What amount was charged by the United States for the expense of superintendence and inspection during such delay does not appear.

XIV. In addition to an inspector of the stone at Eockport there were at different times three others employed by the United States, part of whose time was charged to the claimant under paragraph 38 of the specifications, and whose services were necessary for the proper performance of the work under the terms of the contract.

XV. In the settlements made with claimant for work done under said contract from month to month, a deduction was made for expenses of inspection and superintendence of the work during the months of February to September, both inclusive, 1904. Part of said expenses so charged to him, to *495wit, $131.33, was for and on account of the visit of the assistant engineer, Mr. Ilartrick, to the quarry from which claimant was getting the granite and for one or more visits made by him to the site of the work for the purpose of inspection, all of which expenses were necessarily, properly, and legitimately incurred in connection with the superintendence and inspection of the work being done under the contract.

XVI. The work which claimant contracted to do, and which he did do, was not completed until seven months and sixteen days after the time in which he contracted to complete it. The Chief of Engineers, in accordance with the provisions of the contract, waived the time for completion and granted claimant an extension covering said period of seven months and sixteen days. The charges of inspection and superintendence during said period, except for fifteen days thereof, as stated in Finding XIII, were deducted from the sums due the claimant in the monthly settlements under said contract.

XVII. Claimant furnished the materials and performed the work under said contract and has received the compensation due him from the United States for the same.

*Mr. Benjamin Carter*for the claimant. *Mr. W. H. Robeson*was on the brief.

*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants..

Atkinson, J.,

delivered the opinion of the court:

This action is based on alleged breaches of contract on the part of the United States in the construction of the north jetty at Aransas Pass, Texas.

The contract was authorized by the act of June 13, 1902 (32 Stat. L., 340), making appropriations for the construction, repair, and preservation of public works on rivers and harbors, which, among other things, provided:

> “ Improvement Aransas Pass, Texas: Continuing improvement, $250,000: Provided, That the work at this harbor shall be confined to the completion of the north jetty in accordance with the design and specifications of the Aransas Pass *496Harbor Company and in continuance of the work heretofore carried out on said jetty by said company and to such additional work as may be necessary for strengthening such jetty, and for the removal of such part of the old government jetty and any other hard material which may interfere with the formation of a channel by the natural action of the current.”

Under that act proposals were invited for continuing the improvements there mentioned, together with specifications applicable thereto, which specifications so far as material to this case are set forth in the petition and referred to in the findings. The claimant made a proposal to do the work contemplated; his bid was accepted, and on the 6th day of April, 1903, a contract was entered into between Capt. C. S. Biche, Corps of Engineers, U. S. Army, of the first part, and Henry Clay Bipley of the second part, which contract, together with the specifications made part thereof, are set forth in the petition.

The claimant contends that the specifications under which the work was done and to which he agreed were not the specifications provided for by said act — that is to say, that the specifications should have been “ according to the design and specifications of the Aransas Pass Harbor Company; ” but we deem it immaterial to consider this question, since the claimant consented to the contract made, and performed the work thereunder, and has been paid. No fraud or gross error is charged, and it is therefore too late for him to raise the objection as to the specifications being contrary to the specifications of the Aransas Pass Company, which he now raises.

The claimant sets forth sundry items of damage growing out of delays which, it is averred, were caused by the engineer officer of the defendants during the progress of the work. But upon a careful examination of the contract and the evidence thereunder, together with the method of doing the work, we fail to find any negligence on the part of the officers of the Government in what they did, either in rejecting stone or in requiring certain stone to be relaid, or otherwise. The specifications under which the work was done were substantially like the specifications of the Aransas Pass Harbor Company; though if not strictly so in detail, it is, as before stated, too late for the claimant to take advantage thereof, *497be having agreed to perforin the work thereunder, which he did. We deem it unnecessary, therefore, to consider the items of damage in detail further than to say that none of them arose through the fault of the defendants, and for that reason no recovery can be had on any one of them; and the petition must therefore be dismissed.

Petition is dismissed. Judgment for the defendants.