#### MICHAEL O’SULLIVAN v. THE UNITED STATES.

[No. 23664.

Decided January 17, 1910.]

*On the Proofs.*

The suit is brought on a contract for heating, plumbing, and piping the hospital at Fort Hancock, N. J. The questions involved are nearly all questions of fact.

I.Where the contractor by frequent absences rendered it impossible for the defendants’ officers to give instructions about the work he must be regarded as having delayed the work.

II.Where a contract obligated the contractor to give his personal superintendence to the work or to provide a eompetéat foreman in his place, and he provided a foreman only for a portion of the time he was absent, he is not entitled to reimbursement therefor.

III.After the settlement of disputed claims for extra work and receipting therefor in full without 'protest or objection, the matter must be considered closed.

*The*Reporters’ statement of the case:

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

I. The claimant, Michael O’Sullivan, is a citizen of the United States, and was such citizen on the 12th day of August, 1903, when suit was filed herein.

*144II. In response to the advertisement made part of the contract and petition herein for the construction, heating, plumbing, and gas piping of additions and improvements to the hospital at the post of Fort Hancock, N. J., as per the plans and specifications and general instructions to bidders also made part of the contract and petition, the claimant made a bid therefor on September 28, 1901, for $14,061, which bid, being the lowest, and the claimant thereafter, to wit, on October 10, 1901, agreeing that if the contract for the entire work was awarded to him he would complete the saíne within 85 days, was, after notice of the award, accepted October 17, 1901, on which day a written contract was entered into between the claimant and the United States through the Quartermaster’s Department of the Army and signed by the parties, subject to the approval of the Quartermaster-General.

III. On October 27, 1901, before the approval of said contract by the Quartermaster-General, the claimant entered upon the performance of the same. There was some delay in the apjDroval of the contract, but such delay did not hinder the claimant in his work or cause him to suffer any loss therefor. He completed the work on or about June 22, 1902, for which he was paid in full the contract price and for certain extra work set forth in Findings VII, XIX, and XX.

IV. "When the claimant submitted his proposal for the contract work and executed the contract, and throughout the performance of the work, there were at Fort Hancock two good and substantial roads leading to the site of the work, one being in the rear of the officers’ quarters and the other in tire rear of the barracks. The road in the rear of the officers’ quarters was somewhat shorter than the road in the rear of the barracks and was sometimes used for hauling, but the latter road was the road more generally used for hauling, and especially for heavy hauling. There was no understanding between the parties to the contract as to what road was to be used by the claimant in hauling materials to the site of the contract work. The claimant was at firgt given permission to haul his materials over the road in the rear of the officers’ quarters provided he would use broad-tired wagons, as was generally done in the post, which he *145agreed to do; but instead of doing- so be used narrow-tired wagons and hauled heavy loads upon them, by which said road was being badly damaged, and in consequence of which he was directed to discontinue hauling on said road and was restricted to the road in the rear of the barracks, from which road he occasionally had to remove drifted sand to permit of its use. Whatever increased cost there was to the claimant by reason of the longer road or the removal of sand was caused by his own act in not using the broad-tired wagon, as directed when permission was given to use the shorter road.

V. At the time of the making of the contract and throughout the period of time consumed in the performance of the work thereunder there was a dock at Fort Hancock, which had been used for the unloading of materials and supplies such as were used by the claimant, of which he knew. "When the claimant made his bid for the work he believed he would be entitled to use said dock, and when he began the performance of his contract he arranged to have such materials and supplies transported by water and delivered at said dock. Under the regulations governing the unloading at said dock military necessity was to take precedence, and the claimant was not to leave a loaded scow at the dock at night. On several occasions the claimant’s materials would be landed at the dock at night, and for that reason he was compelled to unload them in compliance with the regulation. Whatever delay was caused thereby was through the fault of the claimant in not delivering his materials at the dock in the daytime. It is not shown that the claimant suffered any appreciable loss on account of such delay.

VI. The Government maintained and operated two boats between Brooklyn, N. Y., and Fort Hancock prior to and during the time covered by the work in question, upon which boats it was the custom, as the claimant knew at the time of entering into the contract, to allow contractors on government work and their employees to ride between these points, and the use of these boats by the claimant and his workmen in traveling to and from Fort Hancock was contemplated by the claimant when he entered into the contract. Passage on these boats was controlled by government regulations, the *146principal of which was the requirement of a valid pass, issued by the proper authorities, in case the officers of the boat were-not otherwise satisfied that the party applying for passage was entitled to passage by reason of his having legitimate business with government officers or being connected with government or contract work.

The claimant and his employees and subcontractors were regularly transported on said boats free of charge throughout the performance of the contract work, with the exception that on one or two occasions passage was refused one or two men, which refusal, however, appears to have been due to their not presenting valid passes or not otherwise satisfying the officers of the boat of their right to passage. The claimant suffered no appreciable damage therefor.

VII. The specifications as originally prepared provided for the construction also of a three-story addition in the rear of the main hospital building, and provided that the rear for the heating plant should have not less than 5,600 square feet radiating surface. The special note attached to the general instructions to bidders providing for the opaission of the rear, or back, addition said nothing about the heating plant.

The complainant, on the ground of the omission of the rear addition reducing the amount of room space to be heated, and without consulting the government officers in the matter, started to install a very much smaller boiler than the one designated in the specifications. After several days’ investigation the government officers found that this boiler was smaller than the one designated, and required the claimant to put in a boiler of the size designated in the specifications. It does not appear from the evidence that there was any material delay or damage to the claimant by reason of the facts above stated.

VIII. When the “roughing in” work of the plumbing had been partially completed the quartermaster’s superintendent discovered that the plumber had in four instances used sanitary tees contrary to the specifications in connecting certain fixtures with soil and waste pipes; and he therefore ordered the plumber to remove them and put in wyes and proper bends in accordance with the specifications, which *147the plumber clid without referring the matter either to the contractor or to the quartermaster.

There was but one plumber engaged in working on the building and the making of these changes occupied him only about a half day. No other part of the'contract work was retarded or delayed.on account of the making of said changes. The claimant suffered no appreciable loss therefor.

IX. The plans and specifications do not indicate the point at which the vent or soil pipe should pass through the roof of the building; and the claimant extended it through the roof by the side of a dormer window. This location of the pipe being objectionable on account of the noxious 'gases escaping from it, the claimant was ordered a day or two later to change the location of it to another point in the roof, which he did, and for which work he was paid extra the sum of $45. It does not appear that any other part of the contract work was materially delayed by this change, or that the claimant was damaged thereby to any greater extent than the sum of $45 received by him therefor.

X. The contract called for the use of “ Yosburg adjustable cast-iron floor sleeves, or equal,” for the pipes or risers of the heating plant where they passed through the floors, which sleeves cost about $1 each. The claimant was given the option of using a floor sleeve of about the same quality and price manufactured by J. B. Clow & Co., of Chicago, instead of the Yosburg sleeve; but instead of using either of these sleeves he started to use a cheap galvanized-iron slip tube or sleeve of greatly inferior quality and reduced price.

This inferior tube was objected to by the government superintendent of construction and the attention of the quartermaster called to it by him before any of them were put in place; but the claimant’s workmen proceeded to use them and had some of them in place before the quartermaster was able to inspect them; and when the quartermaster inspected them he ordered their removal and the use of the Yosburg sieve instead. The Yosburg sleeve was manufactured in St. Louis, Mo., and there was a delay on the part of the claimant of about five weeks, from about March 24 to April 28, 1902, in securing these sleeves, which delayed the comple*148tion of the heating plant, and also to some extent delayed the completion of the whole contract work. This delay and the cost of the extra work resulting; from the putting in place and removal of the rejected galvanized-iron tubes increased the cost of the whole contract work to the claimant, by the sum of $200. The delay and loss was through the fault of the claimant in not following the directions of the engineer officers in charge.

XI. The plans showed a 5-inch main leading from the boiler of the heating plant, and the government officers insisted on a 5-inch tapping in the boiler for the connection of this main therewith. The boiler, however, would not stand a 5-inch tapping, and after a delay of about ten days, beginning about March 4, 1902, the contractor was permitted to connect this main to the boiler by means of a 5-inch header having two 4-inch connections with the boiler. The cost to the contractor by reason of said delay was $75, and the delay was through no fault of his.

XII. The contract provided for flange unions “ at suitable places ” on all main flow and return pipes of the heating plant in excess of 2 inches in diameter, to be so arranged “ that any part of the apparatus can be disconnected without injury to the balance.” The claimant, without consulting the government officers as to the requisite number of such flange unions, proceeded and erected the mains with but one such union for each main, which was not a sufficient number for the purpose desired and specified; whereupon the quartermaster, as soon as he learned of such fact, directed that additional flanges be put in, which the claimant did, at an additional expense to him of $50. Said additional expense was' caused through no fault of the claimant.

XIII. The government officers, with a view to aiding in the expedition of the contract work, offered to the contractor or to his plumbing subcontractor, for use in laying certain terra-cotta drainpipe, the services of two or three workmen who had been in the employ of the quartermaster. These men made their own bargain with the subcontractor for the laying of this pipe, first agreeing to do the work for $6 and then, after beginning, demanding $12 for the work, which *149was acceded to and paid by the plumbing subcontractor. The reasonable cost of the performance of this work was not more than $6.

XIY. On March 24, 1902, the quartermaster’s superintendent required the claimant to stop work on the boiler, saying the “ header ” was not as it should be. After a delajr of four days the superintendent was satisfied and allowed the work to be resumed on the boiler. There was no delay on other parts of the work. The delay so caused by the officers of the Government, without any fault of the claimant cost him about $30.

XV. The claimant’s workmen began joining the new floor in the addition to the old floor in the hallways of the main building by making a straight cross joint instead of breaking joints with the old work, as was proper and required by the specifications. The government officers stopped the workmen in this method of joining the floor and directed the work to be done properly, each board breaking joint with the next. The contractor, the claimant, was not at the post that day, and the workmen did not start on this floor work again until he returned and ordered them to do so, until which time they were engaged on other parts of the contract work. The delay Avas caused by the claimant in not properly doing the work in the first instance.

XVI. The contract provided for the hardware “to be selected by the officer in charge,” the contractor to allow in his estimate at the rate of $2.25 each, on the average, for doors, 75 cents each for windows, and $1 for transoms, exclusive of putting in place. The claimant requested Quartermaster Craig either to go himself or send Superintendent Dingle to New York to select the hardware for the building, which Lieutenant Craig refused to do, but gave to the claimant a list and sample of the hardware used on the main hospital building and directed him to secure hardware to match with it. The claimant thereupon procured certain hardware, and without submitting it to the government officers proceeded at once to put it in place. Superintendent Dingle, upon seeing this hardware, noticed that it did not match the hardware on the main building and reported this *150fact to the quartermaster, who inspected and rejected it. The contractor then procured and put in place hardware to match that of the main hospital building, as he had been originally directed to do. The delay in thus procuring the hardware, which should have been procured in the first instance by the quartermaster, as the contract required, cost the claimant $110.

XVII. Claimant was required by written instructions of April 28, 1902, to change the heating system at the end of the old hospital; and on May 19, 1902, when he began the changes under said instructions of April 28, 1902, he was instructed to make other changes, causing delay to the cost of the claimant in the sum of $40, which delay was caused by the act of the officers of the Government.

XVIII. Beginning on May 3, 1902, there was a delay of two days in waiting for instructions regarding the expansion pipe for the boiler, to the cost of the claimant in the sum of $20, which delay was without any fault on the part of the claimant.

XIX. The contract called for wall hydrants to be placed “where directed,” and in May, 1902, the claimant was directed to place a wall hydrant in one of the porch piers. He protested against placing it there and appealed to the Quartermaster-General in the matter, and was afterwards permitted to place the hydrant elsewhere. The work of installing this hydrant was in consequence delayed about nine days; but it does not appear that any other part of the contract work was materially delayed thereby. The loss to the claimant by reason of the delay in placing the wall hydrant was $100, which delay was without his fault.

XX. The contract required the claimant either to give his personal superintendence to the work or to have a competent foreman, satisfactory to the government officer in charge, on the job at all times. The claimant had no foreman, but took personal charge of the work himself, from the beginning of the work up to May 5, 1902, when in consequence of his being absent from the work a large part of the time, and the work being greatly delayed by there being no foreman in general charge of all branches of the work to whom instructions could be given by the government officers, the claimant *151was directed to place a foreman on tlie work in his place during and on account of his absence, which he did at once at a cost to him during the remainder of said work of $175.

XXI. Shortly before and after the completion of the contract work the claimant at different times presented claims for extra work over and above the work called for by the contract, these different claims aggregating the sum of $2,912.12. Upon consideration of these claims the claimant was finally allowed and paid thereon the sum of $1,287, for which sum he receipted, without protest, as in full of the accounts rendered for such extra work. There was charged against the claimant, under the penalty clause of the contract, $25 per day for 138 days, or $3,450, which was at first deducted from the contract price, against which the claimant protested, and the amount was finally paid to him, damage to the Government to that extent not being shown.

XXII. During the months of March and April, 1902, the claimant contracted with the proper government engineer officers for the construction of a frame dwelling house, or engineer cottage, at Fort Hancock, Sandy Hook, N. J., for the sum of $1,530. The building was constructed by the claimant, without any protest or claim that extra work was being required of him, and he was paid therefor the said contract price of $1,530, for which he, without objection or protest, receipted as being in full for the construction of said building. Shortly thereafter, however, he at different times presented claims aggregating tlje sum of $675.07 for alleged extra work in the construction of the building, upon which claims there was finally allowed and paid to him the aggregate sum of $106.50, which payment was accompanied by a statement to him by the government officers making the payment to the effect that it was to be in full and final settlement of all his said claims, and was accepted by him without objection or protest against its being in full payment of such claims.

*Mr. Edward F. Golladay*for the claimant. *Messrs. GrostJvwaite*and *Golladay*were on the brief.

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

*152Peelle, *Oh. J.,*

delivered the opinion of the court:

The claimant by his bid and contract obligated himself to furnish all necessary labor and material therefor and to construct within eighty-five days from the date of notice of the award of the contract (October 17, 1901) the heating, plumbing, and gas piping of additions and improvements to the hospital at Fort Hancock, N. J., for the aggregate consideration of $14,061; and on failure to complete the same in all respects within the time specified he was to pay $25 per day as liquidated damages therefor.

The work was to be done according to the plans and specifications therefor and under “ the directions and to the satisfaction of the United States officer in charge and in conformity with his instructions.”

The work was not completed until June 22, 1902, long after the time specified in the contract, but the penalty or liquidated damage clause of the contract was not enforced because it did not appear that the Government had been damaged to that extent; and, further, the claimant had been somewhat deU^ed by the officers of the Government in the prosecution of the work, as we have set forth in the findings.

As the questions involved are nearly or quite all questions of fact, little comment is necessary. We have found the facts which we believe to be supported by the evidence, and in so far as recovery is allowed thereon they will speak for themselves. It only remains to state the court’s reasons for not allowing certain items disclosed therein.

During the earlier prosecution of the work, on account of the claimant’s frequent absence, there was no one to whom the officers of the Government could give instructions or direction about the work, and that continued, with more or less embarrassment to the officers of the Government, until the claimant was required to secure a foreman to whom instructions could be given respecting the work; and even then some delays occurred without any fault on the part of the officers of the Government.

Time was the essence of the contract, and instead of delaying the work the officers of the Government were not *153only anxious to have the work completed, but, with few and slight exceptions, they urged the claimant from time to time to hasten the work.

The claimant was given to understand that the liquidated damage clause of his contract was likely to be enforced by reason of his delays, and there was charged to him 138 days’ delay, at $25 per day, or $3,450, which was at first deducted from the contract price. But the claimant protested, and finally, as it did not appear that the Government had been damaged to that extent, the amount was paid to him.

There is some indication in the claimant’s testimony to the effect that prior thereto, under the belief that said amount would be deducted from his contract price and that no payment would be made for extra work, he made out the bill of items he now claims.

The court has made no findings respecting certain of the items claimed in the petition because they are not supported by the evidence. Indeed, the evidence in the case on behalf of the claimant is of the most indefinite character both as to the extent of the delays and the losses occasioned thereby. The claimant is the principal witness as to both, but as he was absent a good portion of the time he could have no personal knowledge of the matters which occurred during such absence. His testimony respecting the amount of his losses is not only indefinite, but greatly exaggerated.

The court has had some difficulty in reaching the conclusion that the claimant is entitled to recover even on the findings indicated in the conclusion of law, but as the officers of the Government in charge of the work concede some slight delays due to their acts we have reached the conclusion we have respecting the judgment in the claimant’s favor. But in regard to the other losses growing out of alleged delays on the part of the officers of the Government the findings show that the delays were not due to their acts, but were due to the failure of the claimant to either follow the specifications, consult the officers in charge before proceeding with certain of the work, or in not following directions when he did consult them.

The contract obligated the claimant to. give his personal superintendence to the work or to provide a competent fore*154man in his place; and as he only provided a foreman during his absence, and then only for a portion of the time, he is not entitled to reimbursement therefor. Nor is he, after the settlement of his disputed claims for extra work, as set forth in Findings SIX and XX, and receipting therefor in full without protest or objection, entitled to recover any remaining balance.

We have macie no finding respecting the claim for profits, as it appears that the claimant was permitted to carry out the contract, notwithstanding his delays, for which he was paid the full contract price, .so that whatever profits there were in the contract he got the benefit of.

For the reasons we have given the claimant is entitled to recover on the findings indicated in the conclusion of law in the sum of $431, for which judgment is ordered to be entered.