#### JACOB ZIMMERMAN ET AL. v. THE UNITED STATES.

[No. 21911.

Decided May 25, 1908.]

*On the Proofs.*

A contract for constructing locks and dams on the Great Kanawha provides that the contractor shall remove deposits as directed by the engineer, to be paid for at excavation rates. The resident engineer orders the removal of certain deposits. The *526defendants’ officers refuse to pay for a part of the work on the ground that the current would have washed the deposits away and hence that the work was unnecessary.

X. Where the defendants’ engineer in charge ordered the removal of certain deposits which had accumulated during the work of constructing and removing a cofferdam, the contractor was bound to remove and is entitled to recover for so doing. The engineer having decided that immediate removal was necessary for the further prosecution of the work, the court can not hold that it was not.

II.A provision in a" contract that certain cofferdams *“and their belongings”*shall be removed at the cost of the contractor does not extend to deposits banked against the face of the dam by freshets. Such accumulations are not a part of “ *the belongings ”*of a cofferdam.

III. A provision in a contract authorizing inspectors to throw out material, their action, however, being subject to the review of the engineer, is not the final inspection on which the contractor is to be paid. Hence the engineer may reject work or material which an inspector accepted.

IV. Where preliminary examinations were in some cases for the benefit of the contractor, and he did not complain of the others, he can not subsequently say that he was required to submit to two inspections when the contract prescribed but one.

V.Advances made by the defendants’ officers after stone had been inspected preliminary to its use, would not operate to prevent the inspections upon which the parties had agreed. The difference between this case and *Buffee's*(15 O. CIs. R., 295) and the *Electric Fire Proofing Company's*(39 O. CIs. . R., 307) pointed out.

*The Reporters’’*statement of the case:

On the trial of the case judgment was rendered against the claimants on certain items of the demand. The case now brought before the court is by motion for a new trial in the nature of an appeal, the claimants alleging errors of law and fact in various items of the findings. The court treats the hearing of the motion as a new trial and finds the following facts:

THE FIRST CONTRACT, LOCK NO. 9.

I. A contract was made between the United States and the claimants on May 23,1893, which, with the advertisement, *527the specifications as far as material, and the proposal, all forming a part of the contract, is as follows:

“Articles of agreement entered into this 23rd day of May, eighteen hundred and ninety-three (1893), between Col. Wm. P. Craighill, Corps of Engineers, U. S. Army, of the first part, and Jacob Zimmerman, Albert H. Truax, and Thomas A. Sheridan, partners, doing business under the firm name of Zimmerman, Truax & Sheridan, of Duluth, of the county of St. Louis, State of Minnesota, of the second part.

“ This agreement witnesseth that, in conformity with the advertisement and specifications hereunto attached, and which form a part of this contract, the said Col. Wm. P Craighill, for and in behalf of the United States of America, and the said Zimmerman, Truax & Sheridan, for themselves, their heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows:

“ That the said Zimmerman, Truax & Sheridan shall furnish all the materials, machinery, and appliances, and perform all the labor necessary for building Lock and Dam Number Nine of the Great Kanawha River improvement, in accordance with this contract and specifications; the said contractors to receive for the materials and work furnished and performed the prices contained in the copy of their proposal attached hereto and made a part of this contract.

“All materials furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the Government, and such as does not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.

“ The said contractors shall commence work under this contract and complete the same in accordance with paragraphs 122, 123, and 124 of the specifications.

“ If in any event the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party (or parties, or either of them) of the second part; and upon the giving of such notice *528all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of the materials be in his opinion required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States: Provided, however, That if the party (or parties) of the second part shall by freshets, ice, or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work, or delivering the materials at the time agreed upon in this contract, such additional time may, in writing, be allowed him or them for such commencement or completion as, in the judgment of the party of the first part cr his successor, shall be j ust and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect, and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.

“ If at any time during the prosecution of the work it be found advantageous or necessary to make any change or modification in the project, and this change or modification should involve such change in the specifications as to character and quantity, whether of labor or material, as would either increase or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices of both material and labor thus substituted for those named in the original contract, and before taking effect must be approved by the Secretary of War: *Provided,*That no payments shall be made unless such supplemental or modified agreement tv as signed and approved before the obligation arising from such modification was incurred.

“No claim whatever shall at any time be made upon the United States by the party or parties of the second part for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or materials shall have been expressly required in writing by the party of the first part or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief Engineers.

*529“ The party of the second part shall be responsible for and pay all liabilities incurred in the prosecution of the work for labor and material.

“ It is further understood and agreed that in case of failure on the party of the party of the second part to complete this contract as specified and agreed upon that all sums due and percentage retained shall thereby be forfeited to the United States, and that the said United States shall also have the right to recover any or all damages due to such failure in excess of the sums so forfeited, and also to recover from the party of the second part, as part of said damages, whatever sums may be expended by the party of the first part in completing the said contract in excess of the price herein stipulated to be paid to the party of the second part for completing the same.

“ Payments shall be made to the said contractor monthly when the work contracted for shall have been delivered and accepted, reserving ten per cent from each payment until the whole work shall have been so delivered and accepted.

“ Neither this contract nor any interest therein shall be transferred by the said Zimmerman, Truax & Sheridan to any other party, and any such transfer shall cause the annulment of the contract so far as the United States are concerned. All rights of action, however, to recover for any breach of this contract by the said Zimmerman, Truax & Sheridan are reserved to the United States. No Member of or Delegate to Congress, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or part of this contract or to any benefit which may arise herefrom.

“ This contract shall be subject to approval of the Chief of Engineers, U. S. A.

“ GEEAT KANAWHA BIVEB IMPROVEMENT.

“ *Proposals for building lock and dam No. 9.*

“ U. S. ENGINEER OfEICE,

“ Gharleston-Kanawha, *W. Va., December 30,1892.*

*“*Sealed proposals for building Lock No. 9, * * * of the Great Kanawha River improvement, and the movable dam connected with same, will be received at this office * * * until February 16, 1893, and then publicly opened; **** * the opening being at 3 p. m., standard Eastern time. * * * Specifications, blank forms, and all *530available information will be furnished on application to Addison M. Scott, resident engineer, at the above office.

“ Wm P. Ceaighill,

“ *Colonel, Corps of*Engineers, *U. 8. A.*

“ [The * * * are in the original, as printed above.]

“ *Specifications.*

“ [Genera] instructions for bidders are omitted in printing-]

“ *General conditions.*

“28. A copy of this advertisement, specifications, and instructions will be attached to the contract and form a part of it.

“29. The contractor should, within ten days from the award of the contract, furnish the office with the post-office address to which communications should be sent.

“ 80. Transfers of • contracts, or of interests in contracts, are prohibited by law.

“ 31. The contractor will not be allowed to take advantage of any error or omission in these specifications, as full instructions will always be given should such error or omission be discovered.

“ 32. The decision of the engineer officer in charge as to quality and quantity shall be final.

“ 33. 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 op 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.

“ 34. When funds are available under *the*law payments will be made monthly. A percentage of ten (10) per centum will be retained from each payment until the completion of the contract.

“ 35. Should the time for the completion of the' contract be extended, all expenses for inspection and superintendence during'the period of the extension, the same to be determined by the engineer officer in charge, shall be deducted from payments due or to become due to the contractor: Provided, however, That if the party of the first part shall, in the exercise of his discretion, because of freshets, ice, labor troubles, or other force or violence of the elements, or unavoidable delays, allow tlie contractor additional time *531in writing, as provided for in tbe form of contract, there shall be no deduction for the expenses for inspection and superintendence for such additional time so allowed: *Provided*further, That nothing in these specifications shall affect the power of the party of the first part to annul the contract as provided for in the form of contract adopted and in use by the Engineer Department of the army.

“ *Special description.*

“ 36. *General description.*— The site for Lock and Dam No. 9 is 25 miles from the mouth of the river and 33 miles, below Charleston. The lock will be 411 feet long from out to out of masonry, 342 feet between quoins, and 55 feet wide in chamber. The dam is to be a movable Chanoine dam, consisting of a navigation pass 248 feet long, a center pier, a weir about 300 feet long, and a shore abutment.

“ The works are to be built entirely on solid rock, which is here found from about 9 to 12 feet below extreme low-water mark. In places the bed rock is likely to be found soft or seamy, and necessitates foundations several feet below the depths named herein or shown on drawings.

“ 37. The work will conform generally to the drawings exhibited and to such others in explanation of details or showing modification of plans as may be furnished from time to time during construction.

“ *Contract to include.*— The contract will cover the entire completion of the lock ready for the gates and the foundar tions and masonry of the dam ready for the movable parts. It will include the preparation of the site, all cofferdams, pumping and baling, dredging and excavation, masonry, concrete, timber work, puddling, embankment, grading, and protection of the banks and the placing of the irons.

“ 39. *Contractor to furnish all material and work.*— With the exception of the irons entering in or attached to the permanent construction, and the lead, &c., to secure the same, it is understood and agreed that the contractor, under his contract prices for work in place, is to furnish and pay for all the materials — stone, cement, sand, earth, timber, material for cofferdams, and everything entering into or connected with either the permanent or temporary construction — and that he is also to supply and pay for all work, skilled and otherwise, required to prepare and place the material and complete the work according to the drawings and specifications.

“ 40. Tools, *machinery, buildings, dec.*— The contractor, without cost to the United States, shall furnish all appli-*532anees — dredges, pumps and pumping machinery, boats, tools, derricks, tramways, roads and landings, and all needful temporary buildings and shops.

“ 41. *Contractor to place irons.*— Such, irons as are furnished by the United States, or by a contractor, at the site will be built in or attached to the permanent construction of the lock and dam, all of which are to be handled and placed by the contractor for the masonry. The cost of handling and placing these irons, with the exception of those that require drilling for in masonry or bed rock, is to be borne by the contractor, and must be included in his prices for masonry, concrete, and timber in place. The cost of placing the irons that require drilling for in masonry or bed rock will be covered by the price for ‘ bolt holes in masonry.’

44 42. *Cofferdams*— hoto *built.*— The cofferdams will be built as shown generally by the drawings exhibited and as directed by the engineer. They will be formed of cribs sunk to rock, sheathed with plank, and filled with heavy dredged river-bed material not liable to wash. They will be thoroughly Banked on the outside with clay puddling, or like material, of quality and quantity to make them sufficiently Avater-tight to be pumped out. The crib filling and the banking outside will be protected to such an extent, as directed, by a top layer of loose stone.

“ As the work within the different sections of the cofferdam for the dam is finished the ends of the next section of coffer will, when required, be made of square sawed timber, rods, upright plank, and puddle, built across and near the end of the finished part. Similar timber and plank bulkheads will also, if ordered, be built by the contractor between the cofferdam for the lock and the lock wall, to form part of the first section of cofferdam for the navigation pass and elsewhere in making coffer connections, as the engineer may require.

“ 43. *Cofferdams*— how *paid*for, *repairs*of, *<&c.*— The United States will pay the contractor for the dredging and excavation for the site of the cofferdam his contract price for 4 excavation.’ For logs and sheathing used he will be paid his contract prices for 4 crib logs in cofferdam ’ and ‘ sheathing.’ For material used to fill the cofferdam cribs he will be paid his contract price for ‘ cofferdam filling.’ The plank and sawed timber used in the coffer ends or bulkheads will be paid for as 4 sheathing,’ and the puddle in same as 4 cofferdam filling.’ It is understood that all labor, all banking, puddling, and stone used on the outside of the cribs, the spikes and bolts, and all material not mentioned required in the construction of the cofferdams shall be furnished by the *533contractor without cost to the United States. The cofferdams must be promptly banked to full height. No payment will be made for logs or filling above the level of the top of the lowest part of unfinished banking. No payment will be made for any cofferdam materials carried off by the river or lost in any manner during construction. All repairs to the cofferdams or their adjuncts must be borne by the contractor.

“ 44. *Removal of cofferdams.*— -The contractor will be required to remove the cofferdams and their belongings at his own cost, the time and manner of the removal of the cofferdams, or any parts of them, and the place to deposit the materials to be prescribed by the engineer

“ 45. *Goferdams to belong to the United States.*— It is understood and agreed that the payments for excavation, logs, sheathing, and filling, as provided for above, shall cover the entire cost of the cofferdams to the United States, and that by virtue thereof they shall become the property of the United States in case of the failure or annulment of this contract.

“ 46. *Dredges and pumps.*— In building the cofferdams the contractor will be required to employ at the same time not less than two suitable steam dredges at excavating and filling; and for pumping the cofferdams he must keep at least two good and efficient pumping outfits, with pumps, engines, and boats complete, in or always ready for operation.

“ 47. Grubbing and clearing will cover the removal from the site of all trees, bushes, stumps, logs, roots, as well as logs, stumps, and roots under water or embedded in the bank.

“48. *Excavation.*— Excavation will include dredging and all material however removed for foundations and site of cofferdams and in grading the river bank.

“49. Excavation will be classed as excavation or rock excavation. Nock required to be removed which can not be loosened by pick or bar and all bowlders containing more than 9 cubic feet will be classified as 4 rock excavation. All other materials, of whatever nature, will be classified as excavation simply.

“ 50. All excavations shall conform to such lines, slopes, and grades as may be given by the engineer, and anything taken out beyond such given limits will not be paid for by the United States. The prices for excavation shall include the moving of the material to its place of deposit.

“ 51. Excavated material is to be deposited as and where directed by the engineer. It shall be deposited in such manner as not to interfere with present or proposed navigation. Material of any kind deposited by the contractor in absence of or in disregard of instructions shall, if required by the engineer, be removed by the contractor at his own cost.

*534“ 52. *Deposit within cofferdams.*— Material washed or left in the cofferdams by freshets shall be removed by the contractor, as directed, at his price for excavation, which price shall cover the cost of all necessary cleaning and scrubbing. No payment will be made, however, for removing material washed into the cofferdams from the coffer itself or from any deposit made by the contractor on or above the works.

“ 53. *Preparation of foundations.*— The whole space to be covered with masonry and concrete shall be excavated to the solid rock, and any loose or soft rock shall be removed, as the engineer may direct. The rock shall be scrubbed thoroughly clean before any masonry or concrete shall be placed upon it. This scrubbing is to be done by the contractor, and the cost thereof to the United States is to be covered by the contractor’s prices for masonry and concrete. The masonry shall be built directly upon the solid rock, which shall be first cut into good horizontal beds, so that each stone shall have a full bearing. The cost of this cutting shall be covered by the contractor’s price for masonry.

“ 54. The engineer shall have power to cause concrete to be used to fill or level up any unusual depressions that may be met with, or caused by excavation of soft or faulty places in the rock in any part of the foundation. This, if ordered, shall be done by the contractor at his contract price for concrete, the payment for which shall cover all loss or damage due to any decrease of masonry caused by such substitution.

“ 55. Masonry, *quality of stone for.*— All stone shall be perfectly sound, strong, hard, free from injurious seams, and in all respects satisfactory to the engineer. Stone for cut or face work to be such as can be truly wrought to such lines and surfaces, whether curved or plane, as may be required. No stone shall be used for cut or face work which weighs less than 150 pounds to the cubic foot. No stone suitable for cut or face work is likely to be found in the valley below Lock No. 7, near St. Albans, and the stone for quoins and chamber corners of the locks will probably have to come from quarries in the vicinity of or above Charleston. Stone suitable for backing masonry, crib filling, paving and riprap can be found, and probably obtained by the contractor nearer to the site than the points named. The contractor, when required to do so, shall furnish at his own cost 2-inch cubes for testing purposes from such parts of his quarries as the engineer may direct.

“ 56. *Face stone*— Glasses *of cutting.*— There will be three principal classes of stone cutting on face stone, viz, bush-hammered, pointed face, and rock face.

*535“ 57. *Bushhammered.*— £ Bushhammered ’ consists of a chisel draft line on the bounding lines of the face, one and one-fourth inches in width, the remainder of the face being finished with a bushhammer, or like tool, true and smooth.

“ 58. *Pointed face.*— ‘ Pointed face ’ consists in having the face pointed down to a fair, true surface, so that there shall be no projection above the plane of the face greater than one-half inch.

“ 59. *Boole face.*— In £ rock face ’ the face of the stone is left rough, but with no projection greater than four inches above the plane of the face. The plane of the face is accurately determined by a pitched line round the face *on the outer edges of the beds and joints.

“ 60. *Chisel -finish.*— The quoins, cushion bearings of sills, grooves and bearings for irons, recesses, corners, &c., will have, as further generally described herein, smooth, chisel-finished faces, entire or in part, as may be required.

“ 61. *Arrises, dec.*— All face stones shall have clean, sharp arrises, free from spalled places. All stones having bush-hammered or chisel finish on face shall have their arrises formed by draft lines on the beds and joints, as well as on the faces of the stones.

“ 62. *Classification of masonry.*— Masonry will be classified as £ sills,’ £ quoins,’ £ coping,’£ cut stone,’ ‘pointed face,’ £ rock face,’ and £ backing.’

“ 63. *Sills.*— In the lock under this classification will be included the miter sills, the pivot stones, the cross sills, and the sill paving between the miter and cross sills.

“ In the dam £ sills ’ will include the top course of the upstream walls of the navigation pass and weir and the stone in the weir to which the iron wicket sill is fastened.

“ 64. The sills are all to be carefully and truly cut and shaped to forms and dimensions given, from the best stone. They will be bushhammered on all outer faces and chiseled smooth as required to receive irons and timber. Beds and vertical joints to be pointed true and full throughout and be laid with three-eighths (f) inch joints. The miter sills, and other £ sills ’ in the lock, as may be directed, are to be set on 'edge.

“ 65. *Miter sills, anchorage of, éso.*— The miter sills are to be anchored to solid rock by wedge bolts, as shown generally by the drawings. The wedge bolts will be furnished by the United States and set by the contractor at his price for £ bolt holes in masonry.’ The stones under the miter sills through which the anchor bolts pass must be selected, cut, and set with a view to drilling for the bolts. The foundation stones under the sills and pivot stones will be classified as ‘rock *536face.’ The four cushion timbers are to be selected sticks of the best quality of white oak; they will be planed and worked to prescribed dimensions, nicely fitted to place, and paid for under the contract price for ‘ timber in permanent, construction.’

“ 66. The four pivot stones are to be selected stone, carefully cut and set according to directions given. The cast pivot plates will be furnished by the United States and placed by the contractor. The cost of cutting for and setting-these plates will be covered by the price for ‘sills.’

“ 67. *Quoins.*— The quoins consist of the stones forming the curved surfaces of the hollow quoins of the lock. They shall be well and truly shaped from selected stone. The gate bearings shall be chiseled smooth and the remainder of the exposed surface bushhammered. The beds and vertical joints shall be carefully and truly pointed, without slack or want, and the stones accurately plumbed and set. To be laid with three-eighths joints.

“ 68. *0oping.*— This classification will include the coping proper or the top course of the lock walls. In the dam, ‘ coping ’ will include the top course of the downstream walls of pass and weir, the coping proper of the pier and abutment, and all stone in upper surface of pass and weir, not described as sills, that have their upper faces bushhammered. Coping will be carefully and truly cut to form and dimensions given, from the best stone. It will be bushhammered on all outer faces. Beds and vertical joints to be pointed true and full throughout and to be laid with three-eighths (f) inch joints. The exposed edges of the coping to be rounded to a radius of two inches and chiseled smooth where required. The coping to be dowelled as required by the engineer with round iron. The dowels will be furnished by the United States and placed by the contractor. The drilling for and placing of the dowels will be covered by the price for ‘ bolt holes in masonry.’ The dowels will be set in Portland cement, which will be furnished by the United States.

“ 69. *Gut stone.*— Part of the vertical faces of the head and tail walls of the lock as shown, the rounded corners of the lock, pier, and abutment, and other stone as required having the vertical faces bushhammered, will be classified as ‘ cut stone.’ They will be bushhammered on all outer faces. The beds will be dressed with care entirely through. Vertical joints shall be full for fifteen (15) inches from the face, and as much farther as the stone will admit of. Special cut stone as required will have vertical joints full throughout. Cut stone to be set with three-eighths (§) joints.

“ 70. *Pointed face and rode face.*— Pointed face and rock face (except the paving on navigation pass and weir, classi*537fied as pointed face) shall have beds dressed entirely through. Vertical joints to be full for not less than 12 inches from the face and as much more as the stone will admit of. One-fifth of the face shall be headers, four feet long or longer. Where the wall is five feet or less in thickness, the headers must run entirely through. Stretchers to have at least one-fourth more bed than rise. Both beds and vertical joints will be pointed down to fair plain parallel surfaces, to lay with one-half (£) inch joints. Where pointed face or rock face adjoins bushhammered or chiseled work, it shall have chiseled draft lines and be set with three-eighths (-§) joints.

“ 71. The paving on the top surface of the navigation pass and weir will be classified as ‘ pointed face; ’ it will be long stone eighteen inches deep, set in mortar. Vertical sides to be dressed full and true and set with half-inch joints; tops to be pointed and set level with timbers and coping. This ‘ pointed face ’ to be set either on bed or edge as required by the engineer.

“ 72. *Backing.*— The backing of the masonry (except for part of the pass and weir walls as noted in the next paragraph) shall be good-sized, well-shaped stones. It shall be shaped up and bedded top and bottom before being brought on the wall, to correspond in height to the front stone. At least three-fourths of the area of each piece must correspond to the height of the course. No part of the backing to be higher than the front stone. The bottom beds to be full. The sides of the backing must be hammered or picked off so that the main vertical joints between backing stones will not exceed two and a half inches. The bed joints of backing not to exceed one inch in thickness.

“ 73. The backing in the navigation pass and weir walls, where the walls are five feet or less in thickness, must all be got out — picked or rough pointed — square and full both on beds and joints to suit the front stone, so as to make solid work with single backing, without the use of spalls or small stone. Horizontal and vertical joints in this backing not to exceed one inch.

“ 74. The back parts (ends and sides) of all face stone that are not dressed for vertical joints as before described must be prepared in the yard as the stone is cut, according to the requirements for backing.

“ 75. *Laying masonry.*— All stones to be well laid to proper lines in full beds of mortar and settled in place with a wooden maul. Backing shall be laid in full beds of mortar, so as to thoroughly bond and break joints. The spaces between backing stones, due to irregularities of form, not to exceed eight inches at widest point, and are all to be filled solid with selected hammer-shaped stones and spalls care*538fully settled in mortar. Spaces in the backing that are as much as six inches wide with an area of one and one-half feet or more must be filled with single stone fitted to them. Bed joints of backing not to exceed one inch. The general vertical joints in backing will not exceed two and one-half inches, and will be as much less than this, down to one inch, as the stone will allow; they will be thoroughly filled, and in doing this as many spalls as. practicable, all carefully laid and.settled in mortar, will be used. The use of grout is prohibited. No dressing, except in special cases and by permission of the inspector, will be allowed on backing after it is laid in the wall.

“ 76. When laying masonry, the site for the stone shall be thoroughly cleaned with a scrub broom and moistened, and the stones must always be clean and well moistened before being set. Face stone must be backed through before another face stone is placed thereon. The backing shall not be laid in advance of the face. Not more than three unfinished courses shall be permitted upon either wall at the same time without special permission from the engineer in each case. Proper machinery must be used in handling the stone. Face stone shall not be disfigured by use of plugs or grabs.

“ 77. The bond of stone shall in no case be less than eight (8) inches.

“ 78. *Face and bach walls.*— The faces of the walls shall be accurately laid to the lines indicated on the drawings or as directed by the engineer. The backs of the walls will be suitably dressed (before being set) with hammer, pick, or point, as required, and set to line, plumb or in offsets, as shown, and be classified and paid for as backing.

“ 79. *Dimension stone.*— ‘ Sills,’ ‘ quoins,’ *‘*coping,’ and *‘*cut stone ’ will all be dimension stone, and must conform in all respects in size, shape, and arrangement to detailed drawings; and wherever required by the engineer, ‘ pointed face,’ *1*rock face,’ and £ backing ’ must be got out to special dimensions and drawings, and, except as particularly provided for in these specifications, this is to be done without extra classification or cost.

“ 80. *Courses.*— Unless special permission is given to break the courses, the different walls will be laid in horizontal courses throughout. Each course to be of uniform height through wall. Heights and arrangementst of courses to be determined by the engineer.

“ 81. *Stone*injured, *dec.*— Any stone chipped or spalled after being set shall be rejected, or measured and paid for at a cheaper classification, as the engineer may elect. Stones *539having defects concealed by cement or otherwise will be rejected on that account alone.

“ 82. *Frost.*— Masonry will not be executed during freezing weather, nor when, in the judgment of the engineer, or his agent, is it likely to freeze before the mortar shall fully set to guard against injury from frost, all new and unfinished work shall be properly protected by the contractor at his own cost.

“ 83. *Cement.*— Cement will be of uniform quality, setting well both in air and water and free from anything that causes the mortar to swell, crack, or scale. In air, when mixed pure at a temperature of 75 degrees, it must be at least eighteen (18) minutes in setting to support the ‘heavy weight’ (l-24th-inch wire with one-pound load). To be ground so that at least 85 per cent will pass a sieve of 6,400 meshes to the inch. Cement when mixed pure with water about 33 per cent of dry cement in weight, and immersed in water 24 hours from time of setting, must have a tensile strength of at least 40 pounds per square inch, and with longer time, whether in or out of water, show a decided increase in strength. It must also test and act to the satisfaction of the engineer when mixed with sand. The cement must be furnished in good paper-lined barrels of 300 pounds each. It will be subject to constant inspection, and must be kept well housed.

“ 84. *Sand.*— Sand to be clean, sharp, and siliceous; to be screened, and washed if required by the engineer, and to be subject to his approval as to fineness.

“ 85. *Mortar.*— Mortar to be composed generally of two parts of sand to one of cepaent, but in foundations, when required and whenever thought necessary by the engineer, it will be made richer. It must be thoroughly mixed and used before it has begun to set. If required by the engineer, the mortar beds will be protected from the sun.

“ 86. *Pointing.*— All facework is to be pointed as fast as the work progresses, with stiff mortar, mixed one of sand to one of cement, thoroughly hammered in and finished with proper tools.

“ Before the final acceptance of the work all face masonry, which at that time does not appear properly pointed, shall be repointed by the contractor, to the satisfaction of the engineer, without extra cost.

“ 87. *Concrete.*— Concrete shall be composed of hard broken stone that will pass a 2^-inch ring, and mortar mixed two of sand and one of cement. Forty-eight per cent of the mass to be mortar. A little over one and a half barrels of dry cement are required for a yard of concrete in place. The *540concrete is to be thoroughly and rapidly mixed, deposited in eight-inch layers, and well rammed, by such process as the engineer may approve.”

[Paragraphs 88 to 90 are omitted as irrelevant to the claim.]

“ 91. *Guard and retaining cribs.*— Guard cribs will be built at the head and foot of the lock, as shown. A retaining crib will also be built below the abutment, as shown generally on drawings. These cribs will be built of sawed or hewed white oak and filled with stone. The timber for the cribs to be sound and straight and full to dimensions. It will be framed according to plans and directions furnished and well driftbolted together. The timber will be paid for as ‘ timber in permanent construction.’ The stone in the main part of the cribs will be carefully packed in by hand and paid for as ‘ stone filling.’ The tops will be covered with large, well-shaped stone, with sides and top rough, pointed and set level with top timbers, and paid for as ‘ paving.’

“ 92. *Timber in dam.*— The timber in navigation pass and weir shall be of best sawed white oak, sound, straight, free from wane, injurious shakes, loose knots, or other defects impairing its strength or fitness; it must be full to size, true and out of wind, and, where required, sawed large enough to dress down to prescribed dimensions. All of the pass and weir timber must be nicely framed, fitted and assembled according to detailed drawings and directions. As the timber for the pass and weir is framed, it will be painted about the ends and elsewhere, as required, to prevent checking; the paint for this will be furnished and applied by the contractor and covered in his price for,timber. The timbers for the pass wicket sill are to be of extra quality, counter hewn, planed and exactly fitted and placed. The timber in the pass and weir will be paid for as ‘ timber in permanent construction.’

“ 93. *Irons in dam.*— The ironwork to be built into or attached to the permanent construction of the dam consists of anchor bolts, disks, wedge' bolts, clamps, dowels, driftbolts, spikes, horse and trestle boxes, hurters, slides, sill straps and sills, and all required to complete the works, ready to receive the horses for the wickets and the trestles ox service bridges, as shown generally by the drawings. It is understood that the United States or a contractor is to furnish and deliver these irons in form ready to go into the work in the government storehouse, or at the landing, at the site, and that the contractor for the masonry is to take them from the storehouse or landing as needed, and is to handle and place them without extra cost. (See par. 42.)

*541“ 94. *Wickets, trestles, etc.*— The movable irons of the dam, consisting of the wickets, horses and props, and the trestles of the service bridges, will be furnished by the United States or by a contractor, as will be decided at the award, but it is understood that during the progress of the work contemplated herein, the Government is to have the privilege of putting in place any of the movable parts desired by the engineer, and that in so doing the United States is to have the use of the cofferdams and such machinery and tools on the work belonging to the contractor for the masonry as may be required for the purpose, free of cost.

“ 95. *Puddling.*— Will be placed at the end of and about the upper wings of the lock and abutment, as may be directed by the engineer. It will be heavy selected clay, put in on six-inch layers, wetted, thoroughly cut, worked, and rammed.

“ The filling material between the upper and lower walls of the weir will also be classified as puddling. It will be composed of heavy clay mixed with gravel put in in six-inch layers, thoroughly mixed, wet, and cut if required, and all well rammed.

“ 96. *Embankment.*— The earth filling back of the land wall of the lock, between the wings of the abutment, back of the guard and abutment cribs, and as required to grade the banks, will be paid for as ‘ Embankment.’

“ Material for embankment, if carted on, shall be deposited and leveled in ten-inch layers; if otherwise placed, it shall be, spread in eight-inch horizontal layers and well rammed. The material for embankment shall be satisfactory to the engineer. The contractor shall have the privilege of using for embankment such of the material excavated for the work as may, in the judgment of the engineer, be suitable for the purpose.

“ 97. *Blind drains.*— Loose stone will be placed against the back of the land wall of the lock and the back of the abutment, as indicated on drawings. The bottom part of this stone to form drains leading to openings in the lower wings. The stone for this will be of good size, mostly containing two-thirds of a cubic foot or more, carefuly placed by hand. It will be paid for as ‘ Stone filling.’ Any plank or boards placed between the stone and embankment will be paid for as ‘ Sheathing.’

“ 98. *Paving.*— The horizontal space back of the land wall of the lock and between the wings of the abutment and such parts of the bank slopes as may be directed will be covered with ‘ Paving.’ It will be of large, sound, well-shaped stones, set either on bed or edge as required by the engineer, with tops and joints rough pointed. Joints at top not to *542exceed one incb; projections on top not to exceed two inches. It will be fifteen inches in depth, set to proper lines and slopes on a bed of spalls twelve inches deep.

“ 99. Riprap, *hand placed.*— Riprap will be fair-sized stone, generally with one dimension of at least fifteen inches. Where directed it will be set on a bed of spalls six inches deep. It will be placed on the sloping banks back of and about the lock and abutment to such height as directed by the engineer. It will also be used for protection above and below the works, as required. Riprap will all be compactly placed by hand to lines and slopes, and have the large interstices filled by the hammer with smaller stones and spalls. The spalls under paving and riprap will be paid for as £ Stone filling.’

“ 100. *Steps.-*— Steps will be built in the slope back of the lock as required. They will be bush hammered on all outer faces, and well set between suitable curbing. The steps will be paid for as ‘ Cut stone ’ and the curbing as ‘ Pointed face.’

“ 101. *Temporary protection.*— If necessary, in the judgment of the engineer, at any time during construction, to temporarily protect the unfinished bank back of and about the shore ends of cofferdams, lock and abutment wings, or elsewhere back of the work, this shall be done by the contractor with rough stone at his own cost. The stone required for this will afterwards, as far as practicable, be used and paid for as ‘ Stone filling.’

“ 102. *Measurement of work.*— Crib logs in cofferdam, cofferdam filling and sheathing, concrete, timber, puddling, embankment, paving, stone filling, and riprap will be measured in place.

“ 103. Excavation will be measured in excavation by cross sections.

“ 104. Each stone of sills, quoins, and coping, after being cut, will be measured as equal to the least rectangular solid which will enclose it.

“ 105. Each cut stone will be measured, after being cut, by multiplying the face length and thickness by the average width of its dressed beds.

“ 106. Pointed face and rock face will be measured in place at an average thickness of face to be determined by the engineer.

“ 107. Backing will be measured as equal to the contents of the walls, decreased by the sum total of all classes of masonry measured as. above. In calculating the contents of the walls they will be figured as solid without deducting for grooves, rounded corners, recesses (except the lock gate recesses), or *543drain openings. The space' occupied by the lock gate recesses will be deducted.

“ 108. Bolt holes will be measured by the running foot as drilled.'

“ 109. *Inspection, rejected material, etc.*— The works will be conducted under the direction of the local or resident engineer, who shall have power to prescribe the order and manner of executing the same in all its parts; of inspecting and rejecting materials, work, and workmanship, which, in his judgment, do not conform to the drawings that may be furnished from time to time, or to these specifications. And any material, work, or workmanship so rejected by him shall be kept out of or removed from the finished work, and no estimate or payment shall be. made until such material, work,, or workmanship be so removed.

“110. When so required, rejected material shall be piled up in sight near the works and kept there until the engineer gives permission to have it removed.

“ 111. The United States will keep inspectors on the work, who will receive instructions from the resident engineer. They will have power to object to any materials, work, or workmanship. Any material, work, or workmanship objected to by the inspector shall be kept out of or removed from the finished work, unless in each particular case the objections of the inspector shall be overruled by the local or resident engineer, and unless the objection be so overruled no estimate or payment shall be made until such material, work, or workmanship be so removed.

“ 112. The local or resident engineer shall have power to overrule or rescind any or all objections or decisions of the inspector.

“ The decision of the United States engineer officer in charge of the works shall be final and conclusive upon all matters relating to the work and upon all questions arising out of these specifications, and from his decision there shall be no appeal.

“ 113. *Failure to prosecute or protect works.*— If at any time the contractor shall refuse or fail to prosecute the work or provide for carrying on the same, as directed by the engineer, or fail to properly protect any part of the work, permanent or temporary, the engineer shall have power to employ men, to purchase or otherwise provide materials, tools, machinery, etc., and put the work in proper advancement or condition, and the entire cost of so doing shall be deducted from payments to be made under this contract.

“ 114. *Loss Toy -floods, etc.*— Material of any kind carried away from unfinished work by the river, or damage caused *544to unfinished work by floods or otherwise, during construction, must be made good by the contractor without cost to the United States.

“ 115. *Payments.*— When funds are available under the law, payments will be made monthly. Ten (10) per cent of all estimates will be deducted and reserved from the payments until the completion of the whole work under this contract. No payments will be made for material until it is actually in place in the work and has been inspected and accepted. But if the contractor, in judicious prosecution of his work, should prepare nonperishable material in advance of the proper time to put it in the work, the engineer officer in charge may, at his discretion, pay him for any such material, after inspection and delivery to the United States, such portion of his contract price as the said engineer officer may elect.

“ 116. Stakes, templates, *etc.*— The lines and levels for the work having been given on the ground by the engineer or his agent, the contractor must conform and keep thereto, and all stakes and benches after being placed must be kept in position by the contractor without cost to the United States. The contractor shall furnish, at his own expense, the stakes required to lay off the work, as well as the labor required to set and place them. He will also be required to furnish, without cost to the United States, all templates, patterns, or platforms that may be required in cutting, setting, or laying out .any part of the work.

“ *117.*Rubbish, *etc., to be removed.*— Within thirty days after completion of the work, and before the final payment is made, the contractor shall remove from the site and grounds all rubbish, cofferdams, old and unused material, and leave the whole in good order and condition.”

[Paragraphs 118 to 125 omitted as irrelevant to the claim.]

“ 126. *Bidders to visit the*site, *etc.*— It is expected that each person bidding will visit the site of the lock and dam and the office of the resident engineer at Charleston and ascertain the nature and location of quarries, etc., the general character of the river as to floods and low water, and obtain the information necessary to enable him to make an intelligent proposal.

“ 127. The following approximate estimate of quantities is given for the information of bidders:

Crib logs in cofferdams, linear feet_ 140, 000 Sheathing, 1,000 feet b. m- 93,000 Cofferdam filling, cubic yards_ 21, 500 Excavation, “ “ - 44,000 “ rock, “ “ _ 800 Embankment, “ “ - 10,500 Puddling, “ “ _ 1,300

*545Concrete, cubic yards_ 2,500

Backing masonry, “ “ _ 5,950

Rock face “ “ “ _ 2,970

Pointed face “ “ “ _ 2,200

Cut-stone “ “ “ _ 450

Sills, “ “ 520

Quoins, “ “ 76

Coping, “ “ 870

Stone filling, “ “ __ 4,200

Riprap, band placed “ “ _ 3,000

Paving, “ “ - 1,100

Timber in permanent construction, 1,000 feet b. m_ 165, 000

Bolt boles in masonry, linear feet_ 6, 500

“ It is understood that these quantities are given as approximate only, and agreed that no claim shall be made against the United States on account of any excess or deficiency, absolutely or relatively, in the same. Bidders are expected to examine the drawings, and are invited to make the estimate of quantities for themselves.

*“*128. All necessary information will be given at the office of the resident engineer, Addison M. Scott, Charleston-Kanawha, West Virginia.

*“Proposal.*

“Dtjluti-i, Minn., *Feby. 9th, 1893.*

“ To Col. Wm. P. Ceaighill,

“ *Corps of Engineers, U. 8. A.,*

“ *Charleston-Kanawha, W. Va.*

“ SiR: In accordance with your advertisement of December 30, 1892, inviting proposals for building Lock and Dam No. 9, of the Great Kanawha River improvement, and subject to all the conditions and requirements thereto, and of your specifications of same date, copies of which are attached, and so far as they relate to this proposal are made a part of it, we (or I) propose to furnish all materials and all work required to construct and complete the masonry, earthwork, timber work, etc., etc., of said Lock and Dam No. 9, in conformity with the terms of said specifications and with the plans and drawings and such directions as may be given during construction, by the engineer, for the following prices for finished work, viz:

Grubbing and clearing, complete, five hundred dollars_$500. 00

Crib logs in cofferdam, per linear foot, seventeen cents_ .17

Sheathing, per 1,000 feet b. m., twenty-five cents_ 25. 00

Cofferdam filling, per cubic yard, sixty-five cents_ . 65

Excavation, per cubic yard, eighty cents_ . 80

Excavation — rock, per cubic yard, two dollars_ 2.00

Embankment, per cubic yard, fifty-five cents_ . 55

Puddling, per cubic yard, two dollars_ 2.00

*546Concrete, per cubic yard, sis dollars and seventy-five cents— $6. 75

Backing masonry, per cubic yard, nine dollars- 9. 00

Bock-face masonry, per cubic yard, eleven dollars- 11. 00

Pointed-face masonry, per cubic yard, thirteen dollars- 13.00

Cut-stone masonry, per cubic yard, eighteen dollars- 18. 00

Sills, per cubic yard, seventeen dollars- 17. 00

Quoins, per cubic yard, twenty-four dollars- 24. 00

Coping, per cubic yard, eighteen dollars- 18. 00

Stone filling, per cubic yard, two dollars- 2. 00

Kiprap, hand placed, per cubic yard, three dollars- 3.00

Paving, per cubic yard, five dollars- 5.00

Timber in permanent construction, per 1,00.0 feet b. m., forty dollars_ 40.00

Bolt holes in masonry, per linear foot, thirty cents- . 30

“We (or I) make this proposal with the full knowledge of the kind, quantity, and quality of articles and work required, and, if it is accepted, will, after receiving written notice of such acceptance, enter into contract within ten days of such notice of acceptance with good and sufficient sureties for the faithful performance thereof.

“ [Signature.] (Sgd) Jacob Zimmerman,

“ "Address.] *Duluth, Minnesota, St. Louis Oo.*

“ [Signature.] (Sgd) Thomas A. Sheridan, _

_ “ "Address.] *Duluth, St. Louis Oo., Minn.*

“ [Signed in triplicate.]

“ (Sgd) Albert H. Truax,

*“ Duluth, St. Louis Oo., Minn."*

THE SECOND CONTRACT, LOCK NO. 10.

II. A contract was made between the United States and the claimants on June 5,1893, which, with the advertisement, the specifications so far as material, and the proposal, all forming a part of the contract, is as follows:

“ Articles of agreement entered into this 5th day of June, eighteen hundred and ninety-three (1893), between Colonel Wm. P. Craighiil, Corps of Engineers, U. S. Army, of the first part, and Jacob Zimmerman, Albert H. Truax, and Thomas A. Sheridan, partners, doing business under the firm name of Zimmerman, Truax & Sheridan, of Duluth, of the county of St. Louis, State of Minnesota, of the second part.

“ This agreement witnesseth that, in conformity with the advertisement and specifications hereunto attached, and which form a part of this contract, the said Col. Wm. P. Craighiil, for and in behalf of the United States of America, and the said Zimmerman, Truax & Sheridan for themselves, their heirs, executors, and administrators, have mutually *547agreed, and by these presents do mutually covenant and agree, to and with each other, as follows:

“ That the said Zimmerman, Truax & Sheridan shall furnish all the materials, machinery, and appliances and perform all the labor necessary for building Lock and Dam Number Ten of the Great Kanawha River improvement in accordance with this contract and specifications, the said contractors to receive for the materials and work furnished and performed the prices contained in the copy of their proposal attached hereto and made a part of this contract.

“ All materials furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the Government, and such as does not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.

“ The said contractors shall commence work under this contract and complete the same in accordance with paragraphs 122, 123, and 124 of the specifications.

“ If in any event the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice, in writing, to that effect to the party (or parties, or either of them) of the second part; and, upon the giving of such notice, all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of the materials be in his opinion required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States: Provided, however, That if the party (or parties) of the second part shall by freshets, ice, or other force or violence of the elements, and by no faults of his or their own, be prevented either from commencing or completing the work or delivering the materials at the time agreed upon in this contract, such additional time may, in writing, be allowed him or them for such commencement or completion as, in the judgment of the party of the first part, *548or Ms successor, shall be just and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect, and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.

“ If at any time during the prosecution of the work it be found advantageous or necessary to make any change or modification in the project and this change or modification should involve such change in the specifications as to character and quantity, whether of labor or material, as would either increase or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices.of both material and labor thus substituted for those named in the original contract, and before taking effect must be approved by the Secretary of War: Provided, That no payments shall be made unless such supplemental or modified agreement was signed and approved before the obligation arising from such modification was incurred.

“ No claim whatever shall at any time be made upon the United States by the party or parties of the second part for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or material shall have been expressly required in writing by the party of the first part or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers.

“ The party of the second part shall be responsible for and Kail liabilities incurred in the prosecution of the work for >r and material.

“ It is further understood and agreed that in case of failure on the part of the party of the second part to complete this contract as specified and agreed upon that all sums due and percentage retained shall thereby be forfeited to the United States, and that the said United States shall also have the right to recover any or all damages due to such failure in excess of the sums so forfeited, and also to recover from the party of the second part, as part of said damages, whatever sums may be expended by the party of the first part in completing the said contract in excess of the price herein stipulated to be paid to the party of the second part for completing the same.

*549“ Payments shall be made to the said contractors monthly when the work contracted for shall have been delivered and accepted, reserving ten per cent from each payment until the whole work shall have been so delivered and accepted.

“ Neither this contract nor any interest therein shall be transferred by the said Zimmerman, Truax & Sheridan to any other party; and any such transfer shall cause the annulment of the contract so far as the United States are concerned. All rights of action, however, to recover for any breach of this contract by the said Zimmerman, Truax & Sheridan are reserved to the United States.

“No Member of or Delegate to Congress, nor any person belonging to, or employed in, the ■ military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit which may arise herefrom.

“ This contract shall be subject to approval of the Chief of Engineers, U. S. A.

“ Great Kanawha River Improvement.

*“ Proposals for building Loch and Dam No. 10.*

*“*U. S. ENGINEER Office,

“Charleston-Kanawha, *W. Va., March, 8,1893.*

“ Sealed proposals for building Lock No. * * * 10, * * * of the Great Kanawha Kiver improvement and the movable dam connected with same, will be received at this office * * * until April. 25, 1893, and then publicly opened; * * * the opening being at 3 p. m., standard Eastern time. * * * Specifications, blank forms, and all available information will be furnished on application to Addision M. Scott, resident engineer at the above office.

“ Wm. P. Craighili.,

“ Colonel, *Corps of*Engineers, *U. 8. A.*

“Specifications.”

[General instructions for bidders are omitted in printing.]

[General conditions are not printed because the same as for Lock 9.]

*li8pecial description.*

“ 36. *General description.*— The site for Lock and Dam No. 10 is 19 miles from the mouth of the river and 39 miles below Charleston. The lock will be 411 feet long from out to out of masonry, 342 feet between quoins, and 55 feet wide in chamber. The dam is to be a movable Chanoine dam. con*550sisting of a navigation pass 248 feet long, a center pier, a weir about 290 feet long, and a shore abutment.

“ The works are to be built entirely on solid rock, which is here found from about 5 to 7 feet below low-water mark. In places the bed rock is likely to be found soft or seamy and necessitate foundations several feet below the depths named herein or shown on drawings.”

[Paragraphs 37 to 48 are omitted in printing, because the same as in the contract for Lock 9.]

“48. *Excavation.*— Excavation will include dredging and all material, however removed, for foundations and site of cofferdams and in grading the river bank.

“ 49. Excavation will be classified as excavation or rock excavation. Rock which can not be loosened by pick or bar and all bowlders containing more than 9 cubic feet required to be removed for preparation of foundations or to deepen any part of the lock chamber or to deepen the approaches of the lock or navigation pass that are inside of the regular cofferdams will be classified as ‘ rock excavation.’ All other materials, of whatever nature, will be classified as excavation simply.

“ 50. All excavations shall conform to such lines, slopes, and grades as may be given by the engineer, and anything taken out beyond such given limits will not be paid for by the United States. The prices for excavation shall include the moving of the material to its place of deposit. In excavating for land wall and wings of lock and for the abutment and shore cribs, plank and timber curbing will be used as required by the engineer; the plank and timber so used will be paid for as ‘ sheathing.’

“ 51. Excavated material is to be deposited as and where directed by the engineer. It shall be deposited in such manner as not to interfere with present or proposed navigation. Material of any kind deposited by the contractor in absence of or in disregard of instructions shall, if required by the engineer, be removed by the contractor at his own cost.

“ 52. *Deposit within cofferdams.*— Material washed or left in the cofferdams by freshets shall be removed by the contractor, as directed, at his price for excavation, which price shall cover the cost of all necessary cleaning and scrubbing. No payment will be made, however, for removing material washed into the cofferdams from the coffer itself, or from any deposit made by the contractor on or above the works.

“ 53. *Preparation of foundations.-*— The whole space to be covered with masonry, and concrete shall be excavated to the solid rock, and any loose or soft rock shall be removed, as the engineer may direct. Whenever it is thought advisable *551to extend the foundations of the walls, sills, or any part of the work below the surface of the solid bed rock, the contractor will be required, under his price for 1 rock excavation,’ to excavate the solid rock to such depths as may be required by the engineer. The rock shall be scrubbed thoroughly clean before any masonry or concrete shall be placed upon it. This scrubbing is to be done by the contractor, and the cost thereof to the United States is to be covered by the contractor’s prices for masonry and concrete. The masonry shall be built directly upon the solid rock, which shall be first cut into good horizontal beds, so that each stone shall have a full bearing. The cost of this cutting shall be covered by the contractor’s price for masonry.”

[Paragraphs 54 to 67 are omitted in printing because the same as in the contract for Lock 9.]

“ 68. *Coping.*— This classification will include the coping-proper, or the top course of the lock walls. In the dam ‘ coping ’ will include the top course of the downstream walls of pass and weir, the coping proper of the pier and abutment, and all stone in upper surface of pass and weir not described as sills that have their upper faces bushham-mered. Coping will be carefully and truly cut to forms and dimensions given from the best stone; it will be bushham-mered on all outer faces. Beds and vertical joints to be pointed true and full throughout, and to be laid with three-eighths (f) inch joints. The exposed edges of the coping to be rounded to a radius of two inches where required. The coping to be doweled, as required by the engineer, with round iron. The dowels will be furnished by the United States and placed by the contractor. The drilling for and placing of the dowels will be covered by the price for ‘ bolt holes drilled.’ The dowels will be set in Portland cement, which will be furnished by the United States.”

[Paragraphs 69 to 87 are omitted in printing because the same as in the contract for Lock 9.

Paragraphs 88 to 90, also the same, are irrevelant to the claim.

Paragraphs 91 to 94 are omitted in printing because the same as in the contract for Lock 9.]

“ 95. *Puddling.*— Will be placed at the end of and about the upper wings of the lock and abutment as may be directed by the engineer. It will be heavy selected clay, put on in six-inch layers, wetted, thoroughly cut, worked, and rammed.

“ The filling material between the upper and lower walls of the weir will also be classified as puddling. It will bo composed either of heavy clay wetted, thoroughly cut and worked, or of heavy clay and gravel mixed, as required by *552the engineer; in either case it will be put in in six-inch layers and thoroughly rammed.”

[Paragraphs 96 to 104 are omitted in printing because the same as in the contract for Lock 9.J

“ 105. Each cut stone will be measured, after being cut, by multiplying the length and thickness by the average width or its dressed beds.”

[Paragraphs 106 to 111 are omitted in printing because the same as in the contract for Lock 9.

Paragraphs 112 and 113 are omitted in printing because the same as paragraph 112 of the contract on Lock 9.

Paragraphs 114 to 118 are omitted because the same as paragraphs 113 to 117 of the contract on Lock 9.

Paragraphs 119 to 126, substantially the same as paragraphs 118 to 125 of the contract on Lock 9, are omitted in printing because not relevant to the claim.]

“ 127. *Bidders to visit the*site, *dec.*— It is expected that each person bidding will visit the site of the lock and dam and the office of the resident engineer at Charleston and ascertain the nature and location of quarries, &c., the general character of the river as to floods in low water, and obtain the information necessary to enable him to make an intelligent proposal.

“ 128. The following approximate estimate of quantities is given for the information of bidders:

Crib logs in cofferdam, lineal feet_110, 000

Sheathing, 1,000 feet b. m_1_ 70, 000

Cofferdam filling, cubic yards_ 15, 500

Excavation, “ “ _ 28,000 “ rock, “ “ - 2,600

Embankment, “ “ _ 10,000

Puddling, “ “ 350

Concrete, “ “ - 1,400

Backing masonry “ “ _ 4,250

' Bock face “ “ “ _ 1,550

Pointed “ “ “ “ _ 2,050

Cut-stone “ “ “ 412

Sills, “ “ 525

Quoins, “ “ 72

Coping, “ “ 870

Stone filling, “ “ - 3,400

Riprap hand-placed “ “ _ 2,600

Paving, “ “ 900

Timber in permanent construction, 1,000 feet b. m_ 132, 000

Bolt holes in masonry, lineal feet_ 6,400

“ It is understood that these quantities are given as approximate only, and agreed that no claim shall be made against the United States on account of any excess or deficiency, absolutely or relatively, in the same. Bidders are expected to examine the drawings, and are invited to make the estimate of quantities for themselves.

*553“ 129. All necessary information will be given at the office of the resident engineer, Addison M. Scott, Charleston-Kanawha, West Virginia.

“ *Proposal.*

“April 21st, 1893.

*“*To Col. Wm. P. Ceaighill,

“ *Corps of*Engineers, *U. 8.*A.,

“ Charleston-Kanawha, *W. Va.*

*“ Sir*: In accordance with your advertisement of March 8, 1893, inviting proposals for building lock and dam No. 10 of the Great Kanawha River improvement, and subject to all the conditions and requirements thereto, and of your specifications of same date, copies of which are attached, and so far as they relate to this proposal are made a part of it, we (or I) propose to furnish all materials and all work required to construct and complete the masonry, earth work, timber work, &c., &c., of said lock and dam No. 10, in conformity with the terms of said specifications and with the plans and drawings and such directions as may be given during construction by the engineer, for the following prices for finished work, viz:

Grubbing and clearing complete, five hundred dollars.$500.00

Crib logs in cofferdam, per lineal foot, twenty cents. .20

Sheathing, per 1,000 feet B. M., twenty-five dollars. 25.00

Cofferdam filling, per cubic yard, one dollar. 1.00

Excavation, “ “ eighty cents..80

Excavation — rock, “ “ one dollar and fifty cents.. 1.50

Embankment, “ “ seventy cents. .70

Puddling, “ “ two dollars. 2.00

Concrete, “ “ seven dollars. 7.00

Backing masonry, “ *“*nine dollars. 9.00

Bock-face masonry, “ “ twelve dollars. 12.00

Pointed-face masonry, “ “ fourteen dollars. 14.00

Cut-stone masonry, “ “ nineteen dollars. 19.00

Sills, *“*‘‘ nineteen dollars. 19.00

Quoins, *“ “*twenty-four dollars. 24.00

Coping, “ “ ■ nineteen dollars. 19.00

Stone filling, “ *“*two dollars. 2.00

Biprap, hand-placed, “ “ three dollars. 3.00

Paving, “ “ five dollars. 5.00

Timber in permanent construction, per 1,000 feet B. M., forty-five dollars. 45.00

Bolt holes in masonry, per lineal foot, thirty-five cents. . 35

“ We (or I) make this proposal with a full knowledge of the kind, quantity, and quality of articles and work required, and, if it is accepted, will, after receiving written notice of such acceptance, enter into contract within ten days of such *554notice of acceptance, with good and sufficient sureties for the faithful performance thereof.

“[Signature.] (Sgd) Jacob ZimmeeMan,

“[Address.] *Duluth, St. Louis Go., Minnesota.*

“ ^Signature.] (Sgd) Albert H. Truax,

“ "Address.] *Duluth, St. Louis Go., Minnesota.*

“[Signed in triplicate.]

“ (Sgd) T. A. Sheridan,

*Duluth, St. Louis County,*Minn.”

CRIB LOGS AND COFFERDAM KILLING.

III. Previous to the letting of the contracts for Locks 9 and 10 plans and drawings were shown to prospective bidders, and upon these plans, showing the size of the cofferdams, the bids were made. About two years afterwards, when the locks lp.ad been completed in accordance with the said plans and drawings, and the construction of the cofferdams- for the dams was about to begin, the claimants were furnished with a new set of plans showing a diminished size of the cofferdams and were required to build according to these plans.

The claimants were paid under their two contracts for work and material in cofferdam construction at the following rates:

On Lock 9:

Orib logs in cofferdam, per linear foot_$0.17

Sheathing, per 1,000 feet b. m-25.00

Cofferdam filling, per cubic yard_ . 65

On Lock 10:

Crib logs in cofferdam, per linear foot_ . 20

Sheathing, per 1,000 feet b. m-25.00

Cofferdam filling, per cubic yard_ 1.00

The amount of cofferdam construction shown in the original plans on which the bids were made, above, that shown on the detailed plans on which the work was done, was as follows:

Lock 9. Lock 10.

10, 838 6, 885 Linear feet crib logs.

3, 050 2, 032. Cubic yards filling—

6, 700 5, 000 Feet b. m., sheathing.

*555The profit which the claimants would have made on the foregoing additional work had they been allowed to do it, is as follows:

Lock 9. Lock 10.

Crib logs, linear feet- 10, 838 $1,386.62 6,885 $1,130.83

Filling, cubic yards- 3,050 724.25 Sbeatbing, feet b. m- 6,700 53.50 2,032 1,259.84 5,000 40.00

Total profits lost__ 2,164.37 2,430.67

Making a total of profits lost of $4,595.04.

TIMBER IN PERMANENT CONSTRUCTION.

IV. The timbers used in permanent construction were measured in place after they had been framed in accordance with custom and the specifications, and paid for according to such measurements. Had the full size of the timbers used been measured before framing and paid for, the difference

would have been:

At Lock No. 9: 5,910 feet, at $40 per 1,000 feet b. m_$236.40

At Lock No. 10: 5,561 feet, at $45 per 1,000. feet b. m_ 250.24

Total_ 486.64

The claimants made no protest to the United States officer in charge of the work, as provided by paragraph 102 of the specifications, and performed the work without protest.

V. The contractors removed, under orders from the inspectors placed in charge of the work by the resident engineer, a quantity of material washed into the cofferdams by freshets, for which they have not been paid. The amount of this material removed by the dredge was l,213f cubic yards, and the sum due for removing it at the contractors’ price is $970.93.

STONE ONCE ACCEPTED AND AETERWARDS REJECTED.

VI. There were, by order of the resident engineer at Locks Nos. 9 and 10, three inspections made of the stone previous to its having been set in place in the walls. The first two were *556preliminary inspections and the last the final inspection. The first inspection was in the interest of the contractors, in order that they might be saved the expense of cutting stone which would afterwards have been rejected for the purposes for which cut; also to determine the average beds, as required by the specifications, and to ascertain that headers were being cut in proportion to stretchers. The second preliminary examination was for the purpose of ascertaining whether the stones had been properly cut and were square, and whether any latent defects had been developed by the cutting. The third and final inspection was made for the purpose of ascertaining the general fitness of the stone to go into the wall. The stone, before final examination, was thoroughly cleaned off, and where any cracks occasioned by blasting at the quarries were developed or slate pockets from exposure to the elements while lying at the yards were shown, or had any of its corners knocked off, it was rejected for the purposes for which it had been cut, and was either ordered to be cut for a smaller stone to fit a smaller place or reduced to a lower classification.

Some of the stones, after having been cut and having received a second preliminary inspection, were measured and their dimensions recorded in the inspector’s stone book and advanced upon. A certain quantity of this stone on final inspection at the wall, before being set in mortar, was rejected for the purposes for which cut and reduced to a lower classification. The quantities so reduced are as follows:

Lock No. 9: Cubic yards.

Coping — _ 32

Point face _ 4

Sills_ _ 6

Of which about 25 cubic /ards were used at point face and the remainder rock face.

Lock No. 10: Cubic yards.

Coping_ 15

Point face_ 45

Of which about 8 cubic yards were used and paid for at point face, and about 20 cubic yards at rock face and the remainder as backing.

*557The court further finds that the resident engineer prescribed the order and manner of inspecting and rejecting materials which include the stone, and in prescribing the order and manner of inspecting and rejecting materials which included the stone no objections were made on the part of the contractors and received their assent at the time. The payments that were made on account of stone were made not for any specific stone as delivered, but as advances generally on account of the deliveries. There was no final acceptance of the stone until its general fitness to go into the wall was developed by a third and final inspection. The item of stone was passed upon by the resident engineer, who sustained the inspectors, and upon the appeal the engineer officer in charge sustained the resident engineer as to the quality and fitness of the stone for final use.

VII. The court finds that a quarry known as the Sattes quarry was leased by one Frederick A. Sattes, who had no connection with the work of construction set forth in the petition, and Thomas A. Sheridan, one of the contractors, which was operated under the firm name of Sattes & Sheridan. The evidence does not establish to the satisfaction of the court that this Sattes quarry from which the contractors were supplying stone in limited quantities for certain purposes in the work of construction under their, contract was condemned as a quarry. The evidence does not establish to the satisfaction of the court that any quarry from which the contractors undertook to supply stone in the work of construction under their contract was condemned as a whole.

EXTRA COST OE OBTAINING RIPRAP AND PAVING.

VIII. At the beginning of the work of construction at Locks and Dams Nos. 9 and 10 the contractors were informed that stone suitable for riprap and paving could be obtained for Lock No. 9 at the Minotti quarry, located in the hills back of the site of the lock, and for Lock No. 10 at the Roberts quarry, in the bluffs on Eighteen-Mile Creek, a mile to a mile and a half from the site of the lock. No stone were ever furnished from the Minotti quarry or the Roberts quarry with a view to their use as riprap and paving. *558Neither the Minotti quarry nor the Brown quarry were ever condemned, nor were the contractors ever refused permission to obtain stones from those quarries. Stone for paving and riprap was obtained from the Sattes quarry, belonging to the claimants. After having obtained backing from the Minotti quarry to the extent of 2,000 yards, and from the Brown quarry to the extent of 1,500 yards, without objection as to any of it, they abandoned these quarries and procured stone for that purpose also from their own quarry at Sattes.

CURBING ON ROADWAYS.

IX. There were two roadways constructed by the Government from the landings at Locks Nos. 9 and 10. The roadbed was piked with hand-placed riprap, which was held in place on the outer edge by stone curbing. This curbing was cut from slabs of stone which could be used for no other purpose, and was set in place by the claimants. The stone was of an inferior quality to that required and used as curbing for the steps at the locks, and the labor of setting it in place was also less. This item was not embraced in the contract for the construction of the locks and dams at Nos. 9 and 10, but was extra work, and it was understood and agreed by and between Mr. Scott, the resident engineer, and Mr. Sheridan, one of the contractors, that the price paid for the road curbing should be the same as the price provided for the curbing to the steps by paragraph 100 of the specifications — that is, as “pointed face” masonry — at $13 per cubic yard, and they were paid in accordance with said agreement for 11.6 cubic yards at Lock 9, $150.80, and for 12.44 cubic yards at Lock 10, $174.66, making a total of $324.96.

claimants’ coal used by the united states.

X. While the defendants were using certain machinery of the claimants, in accordance with paragraph 94 of the specifications, they used, by permission, 150 bushels of coal belonging to the claimants, worth 8 cents per bushel, amounting to $12.

*559STONE DRAIN.

XI. There was a depression in the lower end of the government lot, where there was a drain through which nearly all of the water from the adjoining mountain, as well as the government lot, flowed into the river. Toward the close of construction at Lock No. 9 the contractors requested permission to fill the depression with spalls or broken stone from their stone yard. Permission was at first refused, but afterwards they were allowed to waste the refuse of their stone yard there on condition that they would put large pieces of stone in the center of the depression before throwing in the spalls in order to preserve a drain and prevent the water from damming up. Previous to that time they had been wasting their refuse by hauling it about a hundred feet farther down the river and dumping it over the bank. Permission was requested at this time because of a lack of work for some of the colored laborers, who were threatening to leave, and in order to give them employment they were put at work filling up this depression. The stones wasted farther down the river were hauled by teams and wagons; the stones wasted in the depression were hauled principally in wheelbarrows. The large stones were not *placed*in the drain by hand, but were simply dumped in.

RESETTING PART OE ROOTING COURSE.

XII. Owing to a cave-in of the river bank, 150 feet of the footing course for the riprap, beginning at a point 100 feet below the locks, and using that point for a pivot, was swung into the bank and the stones were removed and some dredging was done to allow the footing course to go farther into the bank and the stones were again laid in the course. The dredging was paid for. After the first resetting of the stones a part of them were taken up, not entirely out of the water, but swung around and relined to get a straight line on the outer face. This was done without taking them out of the water or off the hooks. Some of the stones were not removed at all, as they were already in line, and when the alignment commenced a few at the lower end, that had not been set, *560were set on the final line. There were 44 stones, averaging a yard to the stone, removed. By the resetting of the 150 feet of the footing course the contractors were put to the additional expense of $30.75.

RELATING PART OE THE EOTTNDATION OE THE LOWER MITER SILL.

XIII. There was a thin course of stone in the foundation for the lower miter sill, 12 inches thick and containing altogether 7.99 cubic yards. Owing to incorrect lines having been given to the contractors, it became necessary to take up and relay a part of this course. The whole course had not been laid when the mistake was discovered. The quantity taken up and relaid was 5 cubic yards, which at $2.50 per yard amounted to $12.50. To take up and relay the whole course, 7.99 cubic yards, at $2.50 per yard, would cost $19.97.

RECUTTING STONE TO EIT IRONS.

XIV. After the claimants had cut the stone into which the iron had to be set, according to the drawings furnished them, it was found that the irons furnished by the United States did not fit the stone so cut. The labor required in recutting the stone to fit the irons cost the claimants $151.

*Mr. Archibald King*for the claimants. *Messrs. George A. and William, B. King*were on the brief.

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

Howrt, Judge,

delivered the opinion of the court:

This is a claim upon two contracts for constructing locks and dams on the Great Kanawha River in West Virginia. The contracts were in the form usually made by the Government with private contractors for large river and harbor improvements, not providing a gross sum for the completion of the whole work, but a fixed sum for a given unit of each kind of work to be performed. There were numerous items, with much conflict of testimony respecting many of them. Judgment was rendered for the claimants on certain of these demands and against them on other items. The questions *561now presented arise on a motion of tlie claimants for a new trial in connection with three of the findings.

Error of fact is alleged in the fifth finding in not finding the amount of deposits removed by the claimants 5 and error of law is said to arise in not rendering judgment for the claimants on this finding.

The provision in the specifications covering the removal of deposits in cofferdams required material washed br left in the cofferdams by freshets to be removed by the contractors, as directed, at their price for excavation. But no payment was to be made for removing material washed into the cofferdams from the coffers themselves or for any deposit made by the contractors beyond or above the work. The provision for the removal of the cofferdams themselves provided that the contractors would be required to remove these *and their belongings*at their own cost, the time and manner of the removal of the coffers and the place to deposit the material to be prescribed by the engineer. The court accepted the defendants’ contention that the resident engineer ordered the removal of as much of the deposits within the cofferdams as was necessary for the prosecution of the work, and that this quantity was estimated and paid for, but that the portion of the deposits banked against the face of the upper cofferdams was not in the way of construction, and its removal was consequently unnecessary, inasmuch as it was composed of such material as was easily washed away when the cofferdams were removed and the current came into contact with the deposits.

But on this point the court finds upon a careful review of the evidence that directions were given for the removal of certain of the deposits for which the claimants have not been paid. It is true that the provision for the removal of material was left discretionary with the officers in charge, or to leave this material to be washed by the current. The contractors were bound by the directions when given, regardless of whether the deposits could be washed away by the current when the cofferdams were removed. Inasmuch as we find the real fact to be that the orders were given by the government agents and the contractors have not been paid for work *562done pursuant to these orders, we are constrained to reverse ourselves as to the consequences after reexamining the facts and finding that the orders were actually given. The engineer having decided that the deposits banked against the face of the upper cofferdams was in the way of the construction of the work, we are unable in the face of this decision of the officer to find as a fact that it was not in the way of construction, or that these deposits could have been washed out by the current in time to admit of proper progress in construction, if at all. The amended finding of the court leaves only the amount of the deposits to be calculated and the compensation to be awarded. As to the amount there is conflicting evidence. The court has gone over the testimony in detail and finds that 1,213§ cubic yards of deposits were ordered removed at government expense. The result is shown in the conclusion upon the substituted finding.

That provision for the removal of the cofferdams which provided that the coffers “ and their belongings ” should be removed at the cost of the contractors must be construed to exclude the deposits banked against the face of either cofferdam by freshets to such an extent as in the judgment of the engineer interfered with the construction of the work. These accumulations can not be said to be part of the belongings of a cofferdam within the meaning of the contract.

Error of fact and law is alleged in the sixth finding where three inspections of certain stone needed in the work were had, and in support of the motion it is alleged that the inspection referred to as the second preliminary examination was the inspection required by paragraph 111 of the contract and was final; and error of law is alleged in not rendering-judgment for the claimants for the amount of stone delivered and charged to have been accepted at higher classifications and subsequently reinspected and used at lower classifications.

It is contended that the court has adopted in this finding a different theory of inspection from that provided by the contract and has enforced upon the claimants a system of inspection by which they never agreed to be bound; that the contract provided for only one inspection and the results of that inspection are in general binding upon both parties.

*563Paragraph 111 of the contract provided that the Government should keep inspectors on the work, who would receive instructions from the resident engineer, with power to object to any material, work, or workmanship. Any material, work, or workmanship so objected to by the inspector was to be kept out of or removed from the finished work unless in each particular case the objections of the inspector should be overruled by the local or- resident engineer. By paragraph 81 any stone chipped or spalled after being set should be rejected, or measured and paid for at a cheaper classification, as the engineer might elect. Stones having defects concealed by cement or otherwise were required to be rejected on that account alone. By paragraph 115 payments were to be made monthly when funds were available. But no payments were to be made for material until actually in place in the work and after being inspected and accepted.

From the foregoing it will be seen that there were two exceptions to the geheral rule claimed under paragraph 111. These exceptions are set forth under paragraph 115, which were for the benefit of the contractors; the other, under paragraph 81, for the benefit of the Government. But specification 109 provided that the work should be conducted under the direction of the local or resident engineer, who should have power to prescribe the order and manner of executing the same in all its parts; of inspecting and rejecting materials, work, and workmanship which in his judgment did not conform to the drawings that might be furnished from time to time or to the specifications. This was the material, work, or workmanship which when rejected was to be kept out of or removed from the finished work. The finding shows that the resident engineer ordered three inspections made of the stone previous to its being set in place in the walls, and that the first inspection was in the interest of the contractors in order that they might be saved the expense of cutting stone which might afterwards be rejected for the purposes for which it was cut. The second preliminary examination was for the purpose of ascertaining whether the stones had been properly cut and were square and whether any latent defects had been developed *564by the cutting. The third and final inspection was made for the purpose of ascertaining the general fitness of the stone to go into the wall. The stone before final examination was to be thoroughly cleaned off and where any cracks occasioned by the blasting at the quarries were developed or slate pockets from the exposure were shown or corners knocked off, such stone was to be rejected and was either ordered to be cut for a smaller stone to fit a smaller place or reduced to a lower classification.

The contract and the specifications must be construed together. The resident engineer had the authority to reject stone entirely or to pay for it at a lower and cheaper classification, which latter alternative was obviously in the interest of the contractors if the stone as delivered was found upon final examination to be defective. We are of opinion that, inasmuch as the work was to be conducted under the direction of the resident engineer, who had power to prescribe the order and manner of executing the same in all its parts and of inspecting and rejecting material which did not conform to the drawings and specifications, and who also had power to keep imperfect stone at a lower classification, and that the engineer did prescribe the method of examining stone, there was no violation of the contract by the preliminary examinations. It is shown that the contractors assented to this course. The interpretation given the contract was beneficial to each party to the agreement and was not unreasonable. As it is shown that this interpretation was accepted without objection by the contractors and acted upon by them throughout they can not now be heard to complain.

By paragraph 112 the resident engineer was given power to overrule decisions of the inspectors and the decision of the engineer officer in charge was provided to be final and conclusive upon all matters relating to the work and upon all questions arising out of the specifications, and from his decision there was to be no appeal. The decision of the engineer officer in charge as to quality and quantity was made final. Now, this item of stone was passed upon by the resident engineer, who sustained the inspectors, and upon the *565appeal the engineer officer in charge sustained the resident engineer. No claim of fraud or malice on the part of anyone being made, but mistaken ideas regarding the value of the stone only being alleged, and the matter having been acted upon by the resident engineer and by the engineer officer, we think there is nothing in this finding which does injustice to the contractors under the terms of the agreements.

The fact that advances were made to the claimants after certain quantities of stone had been inspected preliminary to use did not operate to prevent such inspections as the parties agreed the stone should have. These advances were general on account of the work and not for specific deliveries. There was to be no final acceptance until the general fitness of all stone to go into the walls was developed by a final inspection. Moreover, removals of unfit stone were provided for; and in providing for removals of all material found unfit after being set the contractors became bound until the work was properly done. These considerations mark the difference between this case and that of *Ruffee*v. *United States*(15 C. Cls. R., 295), where a measurement operated as an acceptance of wood agreed to be delivered and paid for. It also marks the difference between this case and *Electric Fire Proofing Co.*v. *United States*(39 C. Cls. R., 307), where lumber was inspected and accepted on the one inspection and which became final as to quality and dimensions when once inspected.

The seventh finding relates to the condemnation of a quarry. This motion rests upon the primary matter of fact which we think was properly disposed of by the weight of evidence.

The judgment heretofore rendered will be set aside and the fifth finding is directed to be amended by which the claimants are entitled to judgment. The sixth finding as originally made is amended so as to show the full facts, but the motion as to this sixth finding so as to entitle claimants to recover is overruled. The motion is overruled as to the seventh finding. On the whole case the claimants are entitled to recover $5,722.22, for which judgment will be entered.