#### THE SNARE AND TRIEST COMPANY v. THE UNITED STATES.

[No. 28035.

Decided April 20, 1908.]

*On the Proofs.*

This suit is brought to recover damages caused by the defendants’ delay to prepare a site for the erection of a building which, by the terms of the contract, they were to prepare. The damages sought were caused by the advance in the price of labor and material during the period of delay.

I. Where it was necessary that the defendants should designate and prepare a suitable site for the erection of a coaling plant, the obligation of the contractor to begin work immediately after the execution of the contract was only reciprocal to the obligation of the defendants to designate and prepare the site. The defendants are liable for the damages caused by such delay.

IX. An estoppel does not arise from a contractor accepting payment for money due to him under his contract or prevent him from recovering damages caused by the defendants’ breach of contract.

*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 corporation duly organized and existing under the laws of the State of New Jersey.

II. September 14,1901, the plaintiff entered into a contract with the defendants to erect for them a coal-storage plant at the United States navy-yard at Portsmouth, N. H., for the agreed price of $100,000, in accordance with certain plans and specifications which were made a part of said contract. By the terms of said contract and specifications it was agreed that the claimant should enter upon the construction of the building immediately and should fully complete it within twelve calendar months from the date of the contract.

III. Before the plaintiff could begin the erection of said building it was necessary that the defendants should designate and prepare a suitable site upon which the same should be situated, and in order to do which it was necessary to con*365struct a sea wall on the water front, back of which considerable filling had to be done in order to make it suitable. The plaintiff took immediate steps to begin work upon said building by shipping the necessary material near the place where the same was to be constructed. But the defendants failed and neglected to prepare said site for the erection of said building until about the middle of July, 1903, or about twenty-two months after the execution of said contract. Because of this delay on the part of the defendants in the preparation of said site the plaintiff was prevented from beginning the construction of said building until about the middle of July, 1903. In the meantime the claimant was in constant correspondence with the officers of the Government in charge of the work, urging the early preparation of a site and expostulating as to the delay. In the course of this correspondence the claimant represented that the prices of material and labor were rising and that if it completed the work upon the building it would expect some extra compensation above the contract price, which was apparently acceded to by the officers of the Government. After beginning the same it prosecuted the work with the utmost diligence, so that it was completed by the 22d of March, 1904, and thereupon was duly accepted by the defendants, with the exception of a few minor details, the cost of which amounted to the sum of' $272.50, which was deducted from the said contract price, and the balance was paid to the claimant.

IV. After the expiration of the time agreed upon for the completion of said building, the average cost of labor and material largely advanced, so that the plaintiff was compelled to pay the sum of $1,440 more for the material which went into the construction of said building than it would have been compelled to pay if allowed to complete said building within the time agreed upon; and the further sum of $3,031 more for necessary labor in the construction of said building than it would have been compelled to pay had it been allowed to complete said building within the time agreed upon.

*366
      *Mr. Clarence W. De*Knight, *Mr. Edwin C.*Brandenburg, and *Mr. F. Walter Brandenburg*for the claimants.

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

Barney, J.,

delivered the opinion of the court:

September 14, 1901, the plaintiff entered into a contract with the defendants to erect for them a coaling plant at the navy-yard, Portsmouth, N. H., for the agreed price of $100,000. By the terms of the contract and the specifications, which were made a part of the same, it was agreed that the claimant should immediately enter upon the construction of the building, and should complete it within twelve calendar months from the date of the contract.

The claimant took immediate steps to begin work upon the building, but was prevented from doing so until about the middle of July, 1903, or nearly two years after the time provided for in the contract. This delay was caused by the failure of the Government to designate and prepare a site upon which the building should be constructed. In the meantime the claimant was in constant correspondence with the officers of the Government in charge of this work, urging the early preparation of a site and expostulating as to the delay. In the course of this correspondence the claimant represented that prices of labor and material were rising, and that if it completed the work upon the building it would expect some extra compensation above the contract price, which was apparently acceded to by the officers of the Government.

The claimant completed the work in time to be tested March 22, 1904. A duly authorized board of the Government made this test and approved of the work, with the exception of a few somewhat insignificant details amounting altogether to only $272.50. This sum was deducted from the contract price, and the balance was paid.

This suit is brought to recover the damages sustained by the claimant by reason of this delay, occasioned by the advance in the price of materials and cost of labor necessary in the construction of the building,

*367The obligation of the claimant to begin the work immediately after the execution of the contract was only reciprocal to the obligation of the defendants to designate and prepare a site upon which the building should be constructed. *(Kelly*v. *United*States, 31 C. Cls. R., 361; *United States*v. Speed, 8 Wall., 77, 84.)

That damages to a building contractor occasioned by such delay are the subject of recovery is too well settled to admit of discussion. The case of *Kelly*v. *United*States, supra, is strikingly similar to the case at bar, and there a recovery was allowed for damages exactly the same in kind as those sought in this case.

The question was raised by counsel for the defendants whether the claimant did not waive any claim for damages which it might have against the United States due to delay in the preparation of the site in question, and having elected to proceed with the work notwithstanding the delay, if it is not thereby estopped from claiming damages. This inquiry must be answered in the negative, as it does not seem to us that such a proposition can be sustained either on principle- or authority.

It would indeed be a strange doctrine that an innocent party to a contract is bound to rescind it upon any breach on the part of the other party, or otherwise be held to have waived the breach. The same reasoning would make the acceptance by the owner of work completed after the time limit, a waiver of damages on account of such delay.

As was said in *Ketcham*v. *Duncan*(96 U. S., 659, 666) :

> “An estoppel does not operate in favor of everybody. It operates only in favor of a person who has been misled to his injury, and he only can set it up.”

The defendants have neither been misled nor injured by the election of the plaintiff to proceed with the work notwithstanding the delay. We know of no doctrine of estoppel which would operate against the plaintiff in this case.

It follows from the foregoing that the plaintiff is entitled to a judgment for the sum of $4,471, and it is so ordered.