#### WILLIAM WEEKS v. THE UNITED STATES.

[No. 29010.

Decided May 2, 1910.]

*On the Proofs.*

A contractor agrees to furnisli the labor and machinery required to sink a “ *six-inch, guaranteed artesian well*” at Fort Caswell, N. C. No compensation is to be allowed unless the well furnishes a specified amount of water. In case of failure to complete the work at a designated time, the defendants are to have the power to complete it at the expense of the contractor.

I. Where the defendants’ officers waive the time limit in a contract, the contractor is entitled to a reasonable time within which to perform the work.

*410II. Where the contractor fails to complete the work within the reasonable time which the law gives him, the annulment of his contract by the defendants is not an interference with or stoppage of. his work. The case distinguished from *United States*v. *Speed*(8 Wall., 77) and *United States*v. *Behan*(110 U. S. R., 338).

III. Where a contract provides that the defendants, in case of failure of the contractor to comply with his contract, shall “ *have the poioer to complete the work at his expense ”*in such a way as may be deemed “ *best for the interests of the public service,”*the provision does not obligate the defendants to complete the work; it merely gives them the power to do so if deemed best.

*The Reporters'1*statement of the case :

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

I. The claimant is a citizen of the United States residing at Southport, N. C., and engaged in the business of contracting, and was so engaged in ‘said town on July 28, 1902.

II. On' July 28, 1902, the United States, through the Quartermaster-General of the War Department, entered into a contract with the claimant whereby the claimant, for the sum of $3,979, agreed to furnish “ all material, labor, machinery, and appliances required in sinking a six-inch, guaranteed artesian well at the post of Fort Caswell, North Carolina, all in accordance with specifications therefor ” made a part of the contract, which is set forth in the petition herein.

III. Soon after the execution of said contract the claimant, under the terms thereof, began the sinking of a well and proceeded therewith until December 15, 1902, when, on his application, an extension of time was given for the completion of the contract and the time limit therein was waived by the United States through the Quartermaster-General.

From September, 1902, to April, 1903, the claimant sank wells, as shown in the quartermaster’s official report of progress, as follows:

“ One 6-inch well driven and cased to a depth of 82 feet. Tools were lost in the well, and casing was withdrawn and *411shoe found battered. This well was recased, but owing to the lost tools the drilling could not continue. The casing was again withdrawn, the shoe remaining in the well and part of casing bent and broken. This well was then abandoned, having obtained nothing but salt water.

“ The contractor then drove a second well about 2 feet from the first. This well was driven and cased to a depth of 92 feet. The 6-inch hole was continued but not cased to a depth of 141-J- feet, and a 2-inch hole continued from this depth to a depth of 171 feet from the surface. As nothing but salt water had been found, this well was abandoned.”

IV. A 2-inch test well was driven to the depth of 30 feet at a location not selected or authorized by the commandant or quartermaster. A flow of water was encountered which the contractor contended was a continuous flow of wholesome potable water in full satisfaction of the terms of his contract, and he asked permission to locate the 6-inch well at the place where he had sunk his 2-inch 30-foot test pipe. Before any permission was granted him the post quartermaster, under authority of the Quartermaster-General, procured and sent to the Surgeon-General, in June, 1903, a sample of the water from this 2-inch test well. This sample was secured, sealed, transmitted, examined, and analyzed under the rules and direction of the Surgeon-General at Washington, D. C., and in accordance with the terms of the specifications forming a part of the contract. The chemical analysis of said water was made in the office of the Surgeon-General, United States Army, by Edwin R. Hodge, a competent chemist of that office appointed and employed for that purpose. The result of that test is shown in the report of the chemist, as follows:

“ WAR DEPARTMENT,

“ Surgeon-General’s OeeiCe,

“ Chemical Laboratory, *“Washington, July 3,1903.*

“ To the Surgeon-General, U. S. Army,

“ Washington, *D. O.*

*“*Sir : I have the honor to report that, in compliance with your instructions of May 26 and the request of Lieut. Philip Yost, U. S. Army, quartermaster, Fort Caswell, N. C., I have completed the examination of two samples of water received *412at this office on the 26th ultimo for that purpose, and beg to present the results below:

“[Analysis stated in parts per million.)

“ Sample No. 1 was taken from a 2-incli driven test well, 30 feet down from the ground surface. It was an odorless, almost clear water, of alkaline reaction, and possessed a faintly yellowish color and a just perceptibie sediment.

“ There was a very considerable amount of blackening and charring of the residue on its incineration. This and the above figures show it to be highly charged with organic matter, although it proved to be in a comparatively fresh state. As a potable water, however, it is quite as objectionable on account of the enormous amount of mineral solids it contains. There are of these 1,617 parts per million, which is equivalent to about one-fourth of an ounce per gallon. This includes a very excessive amount of chlorine — 615 parts per million; this expressed in terms of common salt equals 984 parts per million, or 68.88 grains per gallon. The large amount of that element present must indicate its marine origin, and a deleterious effect on boilers and pipes exposed to its action is to be expected. This is evident when it can be stated that for every ton of water used for such purposes 2.57 pounds of common salt are introduced into them at the same time.

“ A water of this degree of salinity will be very uneconomical for laundry purposes.

“ The remainder of the residue was composed of the sulphates and carbonates of magnesia and lime, with heavy traces of iron.”

This report was received by the authorities at Fort Caswell in July, 1903, and the claimant was at once furnished a copy of the same, and at the same time the claimant was told of the result of said test and of the decision of the authorities that the water was not good, wholesome, and potable, as called for by the contract. The claimant contended that the water would improve upon pumping and requested authority to sink a 6-inch pipe at that point. Such permission was *413at first refused, in February, 1904, but was renewed and submitted to the Quartermaster-General on March 2, 1904, with a recommendation from Lieutenant Yost that such permission be granted, and the same was granted by the Quartermaster-General on March 22, 1904, after Lieutenant Yost had been relieved as post quartermaster. Between March 22 and June 1, 1904, the claimant put in a 6-inch well 31 feet deep, and by permission of Quartermaster Williams he was allowed to connect his well with a pump for the purpose of a test at his own expense, as provided by the contract and specifications. After pumping two weeks in June and one week in July, 1904, and again in November, 1904, the. post quartermaster, Capt. B. H. Williams, IT. S. Army, decided and so informed the claimant that the water was not wholesome and potable and was unfit for use for drinking purposes and was not acceptable. The quartermaster then, on October 11, 1904, notified the claimant in writing to commence a well to produce good, wholesome, potable water in accordance with his contract, but claimant did not comply with this, but informed Quartermaster Williams that he could not afford to spend any more money on the well and that he had already complied with his contract. The claimant had been notified by Quartermaster Yost prior to March, 1904, to proceed with his contract, but refused to do anything more than to develop the 31-foot well.

During the period of these tests in June and July, 1904, the water from this 31-foot well was pumped into the reservoir at the post, from which it was used, with other surface water, for bathing and flushing purposes until discontinued by order of Captain Williams. Said water was never used for any purpose except for a chemical test while Lieutenant Yost was quartermaster, and was never used at the fort for drinking or cooking. The well was never tested for volume of ivater at claimant’s expense, as required by the contract and specifications, or by the quartermaster, the reason assigned by the quartermater being that the water could not conform to the requirements of the contract on the chemical test.

V. On November 16, 1904, the post quartermaster recommended that the Weeks well could furnish a needed supply *414of water for flushing and bathing, although not potable or acceptable under the contract, and recommended the purchase of the well, stating that no water had been pumped from the well since the test in July, 1904. After negotiating with claimant, the latter was paid upon authority of the Quartermaster-General the sum of $132 upon the following-voucher and receipt signed by claimant:

“ THE UNITED STATES TO WM. WEEKS, DR.

“ Southport, N. O.

“(Army transportation, fiscal year 1905.)

“January 31st, 1905. To furnishing labor and material in sinking 31-foot well at. Fort Caswell, N. C_,_$132

“ This payment in no wise to be considered as pertaining to contract of September 19-20 (109724), payment being as a matter of equity.

“Authority filed herewith.

“Approved:

“H. A. Reed,

“ Major, *Artillery*Corps, *Commanding.*

“ I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and are borne on my report of persons, etc., for the month of January, 1905.

“ R. H. Williams,

*“1st Lieut. c& Quartermaster.*

“ Received at Fort Caswell,'N. C;, the 31st day of January, 1905, of R. H. Williams, 1st Lieut. & Quartermaster, United States Army, the sum of one hundred thirty-two (132) dollars, in full of the above account, which I certify to be correct.

“ Wm. Weeks.”

At the same time the claimant wrote the quartermaster as follows:

“ R. H. Williams,

*“First Lieut. Artillery Corps,*

“Quartermaster, *Fort Caswell.*

“SiR: You will find inclosed voucher signed for the $132.00 for pipe and strainer. I don’t accept this as pay*415ment for the water, as I claim that I have furnished potable and wholesome water. You will please send me one of the vouchers that I have already signed, as you have stated that you would tear them up. It is impossible for me to come at present.

“ Wm. Weeks.

“Southpoet, *Jan.*31, 1905.”

VI. Thereafter the water from said well was used for flushing and bathing at various times when needed to supplement the supply from the surface wells and when pumped out for tests in 1907, but the same has never at any time been used at the fort for drinking or cooking purposes, such water being procured entirely from rain-water cisterns.

In the month of July, 1907, Lieut. Lanier Cravens, U. S. Army, post quartermaster at Fort Caswell, acting in the line of his duty as such quartermaster, subjected the water from this 31-foot well to the chemical test prescribed by the Quartermaster-General’s Office and the Geological Survey, and said water showed “ alkalinity and ammonia basis too strong for potability.” Prior to this time the action of the pump connected with the well showed that the water supply was limited in quantity. The capacity developed on a test in 1907 was 1,200 gallons per hour. The contract called for 3,000 gallons per hour.

VII. On December 16, 1904, the said contract was annulled by the Secretary of War upon the recommendation of the military authorities at.Fort Caswell and the Quartermaster-General, on the ground that the contractor had failed to complete his contract within a reasonable time, and the claimant was so informed by Quartermaster Williams.

VIII. The claimant in his effort to comply with his contract expended a large sum of money in addition to his own time. He has received no compensation for any of the labor performed or material furnished or expenses incurred in sinking said wells, except the $132 mentioned in Finding V.

*Mr. Robert H. McNeill*for the claimant. *McNeill <& Mc-Neill*were on the brief.

*416*Mr. William W.*Scott, with whom was *Mr. Assistant Attorney-General John Q.*Thomyson, for the defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

This is a claim arising under a contract entered into by the claimant with the Government September 19, 1902, whereby he agreed to “ furnish all material, labor, machinery, and appliances required in sinking,” on or before December 24, 1902, in accordance with the specifications therefor and to the “ entire satisfaction ” of the defendants’ contracting quartermaster, a 6-inch guaranteed artesian well at the post of Fort Caswell, N. C., at a price of $3,979. No compensation was to be allowed unless said well furnished “ a continuous supply of three thousand gallons per hour of potable and wholesome water,” the capacity thereof “ to be tested by pumping the water therefrom for two consecutive days of 24 hours each.” And in case of failure to comply with said contract the Government was to “ have the power to complete the work at the expense ” of the claimant in such way as it deemed “ best for the interests of the public service.”

The officers of the Government having waived the time limit of the contract, the claimant was entitled to a reasonable time within which to perform the work. B.ut as the time limit was waived December 22, 1902, and the contract was not annulled until December 16, 1904, nearly two years, there would seem to be no question but that the claimant was given a reasonable time within which to perform, especially when considered in connection with the contract providing for the completion of the work within about ninety days.

The claimant’s contention, measured by his petition, is that having performed his contract he is entitled to the contract price agreed upon; but in his brief and argument he goes further and says that as the Government annulled the contract, and thereby prevented him from performance, he is entitled to recover on *quantum meruit*for the work performed.

The findings show that the claimant, though given a reasonable time within which to perform his contract, failed; *417and, having so failed, the annulment- of his contract can not be assigned as an interference with or stoppage of work, entitling the claimant to recover under either the case of *United States*v. *Speed*(8 Wall., 77, 84) or *United States*v. *Behan*(110 U. S., 338, 354).

The first of the cases cited, upon which the claimant relies, is where a contractor had spent a large sum of money in preparation to perform, but was prevented from so doing by the other contracting party, and he was allowed to recover the difference between the cost of doing the work and the price agreed to be paid therefor, making deductions for the less time required to perform; but clearly that does not apply in the present case, as the claimant was not only given the contract time within which to perform, but was, after the waiver thereof, given a reasonable time, so that the claimant was not prevented from performance at any time within which he should have performed.

Nor does the case of *Behan*apply, as there the work was stopped by the defendants without fault on the part of the contractor, and he elected to rescind, .and was allowed to recover for the value of his outlay and for services actually performed. But here, as before stated, there was no interference with the claimant in the performance of his contract, the same having been annulled after the time of performance and, therefore, no breach. The claimant obligated himself to furnish the labor and material to do the work under the specifications to the entire satisfaction of the defendants’ officer. No compensation was to be allowed unless a well of potable and wholesome water, proven by “ analysis.made by the medical department or chemist authorized by the officer in charge ” and of the required capacity, was secured within a given time, or, as waived, within a reasonable time; and in case of failure to comply “ according to the true intent and meaning ” of the contract, the Government was given “ the power to complete the work at the expense of the ” claimant. This provision of the contract, however, did not obligate the Government, in case of such failure, to complete the work, even at the expense of the claimant, but gave it the power to do so if deemed best for the public service. That the Gov-*418eminent did not exercise the power to complete the work at the expense of the claimant was, judged by his failure, manifestly in his interest.

The other authorities cited by the claimant go to the questions of interference after part performance or stoppage of work under a contract without fault on the part of the contractor, but in our view of the present case need not be further considered.

There is no contention that any but the last or 31-foot well complied with the contract, and as to that the claimant by accepting $132 in full payment for the labor and material so used, as set forth in Finding V, thereby construed the contract against his contention. True, as set forth in the finding, the payment was “ in no wise to be considered as pertaining to the contract,” but, as therein stated, was paid by the officers “ as a matter of equity.” Nevertheless it was payment in full for the labor and material furnished in sinking the only well which the claimant then and now contends complied, both as to quality and quantity of water, with the contract. However, under the findings we must hold that the claimant failed to perform his contract and, too, without any fault on the part of the defendants, and his petition must be dismissed, which is accordingly done.

Howex, J., was not present when this case was tried and took no part in its decision.