#### SIMON NORMILE ET AL. v. THE UNITED STATES.

[No. 28041.

Decided February 28, 1910.]

*On the Proofs.*

The suit is brought for the defendants’ breach of a contract for the construction of a lock and dam in the Yamhill River. The issues are chiefly of fact and the questions of law involved are elementary.

I. Though celerity of performance be an essential part of an agreement, still a specification warning contractors that operations must await the purchase of certain building sites is sufficient to notify them that within the intent of the contract they must anticipate delay.

*204II. Where tlie defendants after a deed was given and perfected did not record it and *took no*further proceedings for a month their delay would be chargeable as their neglect if it was the proximate cause of the builders’ loss; but where it appears that the contractors had taken the risk and proceeded with the work as if the title had been acquired by the defendants, the delay in recording the deed was not the proximate cause of loss.

III. Prior negotiations, expectations, and conversations are merged in the written agreement; and the rights and liabilities of the parties must be determined thereby.

IY. Where the engineer officer in charge was in command and, his authority under the contract being plenary, he required the contractors to erect the dam at a point where it had been three times carried away, it must be inferred that they were obliged to erect the dam at the point indicated; and it must also bo inferred that the engineer in charge did not use the ordinary care and skill which would have enabled him, after ■ the first disaster, to foresee those which followed.

*The Reporters'’*statement of the case:

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

I. Claimants are citizens of the United States, residing in the State of Oregon. In the *years*1898, 1899, and 1900 they were partners in the business hereinafter described under the firm name of Normile, Fastabend & McGregor.

II. On the 11th day of March, 1898, claimants entered into the written contract set forth in and made a part of the petition herein. Said contract provided for the construction of a lock and dam in the Yamhill River in the State of Oregon, a keeper’s dwelling house and other accessory buildings, and for doing certain dredging in the channel of said river near the site of said lock and dam. Specification 41 of said contract provided :

“The sites for the lock, dam, and keeper’s dwelling have not as yet been purchased by the United States, and no work will be commenced under this contract until the same are secured. Within ten days after the date of notification to the successful bidder that the above sites have been secured and the contract covered by these specifications has been approved, he must proceed with the work in a vigorous man*205ner; lie must complete the keeper’s dwelling, woodshed, walks, fences, etc., within sixty days from date of notification, and the whole contract on or before December 31, 1898.

“ Because of the spring rise of the Willamette and consequent overflow of the Yamhill it is probable that actual work on the lock and dam can not be begun by the contractor before June at the earliest.

“The above date of completion has been set, as it is desired that all work shall be finished during one low-water season, and the contractor should make his calculations accordingly.”

Said contract was approved by the Chief of Engineers of the United States Army on March 24, 1898.

III. April 6, 1898, claimants addressed a communication to W. L. Fisk, the engineer officer at Portland, Dreg., asking when they might proceed with the work. April 7, 1898, the said Fisk , advised claimants that he had received the deed and title papers for the lock site on April 5 and had immediately forwarded the same to the Chief of Engineers at Washington, with a personal request that he be notified concerning them by wire. April 29 the Attorney-General of the United States rendered an opinion holding that the title to said lands was encumbered by a mortgage and unpaid taxes and advising that the deed should not be accepted until said incumbrances were removed. May 13, 1898, said Captain Fisk was notified by the United States attorney at Portland, Oreg., that the incumbrances had been removed and the deed approved. On June 14, 1898, the aforesaid deed Avas recorded and the claimants officially notified by Captain Fisk that they might proceed with the Avork.

IV. On May 12, 1898, the claimants began active operations toward the fulfillment of their contract. Between the above date and June 14, 1898, they had proceeded toward completion the following Avork:

(1) The dredging at Martins Shoals; (2) a well dug for the lock keeper’s house; (3) the lock keeper’s house so far completed that the workmen were building the chimneys; (4) the grading for the lock site almost completed; (5) the framework of the cofferdam around the lock site completed; (6) material for temporary sheds on the ground; (7) contract for placing concrete in lock Avails sublet to subcontrac*206tors and the subcontractors on the ground preparing to perform said work. All of which required the assembling of considerable material and the employment of labor.

Y. The war with Spain having begun on April 21, 1898, material of all kinds used in the construction of locks and dams, and labor as well, advanced in price, and claimants were unable to obtain the same at the same prices prevailing prior to said date. The increased cost to claimants of materials used in the construction work under said contract caused by said war was $5,389.08 and the increased cost of labor employed in the completion of said work was $4,142.80. It is not shown that the increases so set forth were due to any breach of the contract on the part of the United States. Claimants did not have sufficient storage room and other facilities for storing large consignments of materials.

VI. The contract, among other things, provided as follows :

“(Specifications) 137. *Description.*— The work consists in cutting a channel 60 feet wide and to a depth of 4 feet at low water through the shoal.

“The shoal is about 150 feet in length and has from 6 inches to 2 feet of water over the same at time of low water, and is believed to be composed largely of soft sandstone.

“ 138. *Debris.*— The debris from the shoal must be place on shore above low-water mark, at such points that it will not again find its way into the river; the points of deposit being subject to the approval of the engineer.

“ 139. *Estimate and measurement.*— It is estimated that the amount of rock to be removed is 700 cubic yards, and this quantity will be used in canvassing the bids; it is, however, to be considered approximate only; the actual amount will be determined by surveys made before the work is begun and after its completion. Payments will be made per cubic yard of rock in place, and nothing will be paid for beyond the specified limits of excavation.”

. Claimants completed the work of widening and deepening the channel at said Martins Shoal before the 1st of June, 1898, and in due time were paid the full contract price therefor. About the 1st of August, 1898, it was discovered by the claimants that certain other parts of the channel of said river between Martins Shoal and the lock site were so shallow that at times during low water it was impossible for freighting craft, such as barges loaded to their full capacity, to pass up the *207river to said dam site. Thereupon said claimants asked the engineer officer of the United States at Portland, Oreg., to consider the question of deepening the channel at said point or points. Said engineer officer informed the claimants that nothing could be done by him because there were no funds available for the purpose of doing the work suggested. Claimants thereupon proceeded to widen and deepen the channel at such points as they deemed necessary for the purpose of making said stream navigable for loaded barges intended for use in connection with the construction of said lock and dam. Said work was done by them voluntarily and gratuitously. No estimates or measurements were made by the United States Engineer Office in connection therewith nor-by the claimants. The evidence does not disclose with any certainty the amount of money expended in doing said work.

VII. In the year 1899 after the completion of the walls of the lock of the canal it was necessary to construct a temporary cofferdam in the bed of the river so as to erect a wing dam which extended from the wall of said lock to the opposite bank of the river. The local engineer officer of the United States in change of the work designated the location of said temporary cofferdam near the head of said lock at a point where the river was narrow and deep. The claimants made three attempts in that year to construct said temporary dam at said point, each of which attempts was a failure, for the reason that the bottom of said river at said point was of disintegrated blue clay and refused to hold the piles driven into it when the pressure of the water against them approached the maximum. In the year 1900 said local engineer permitted the claimants to construct said temporary cofferdam at a site selected by themselves, and the same was constructed without difficulty. The cost of the two last temporary cofferdams was $1,600 each. The claimants did not. at any time during the progress of the work maintain or have in their employ a civil engineer.

VIII. Said contract further provided as follows:

“(Specifications) 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 *208deducted 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, or other force or violence of the elements, allow the contractor additional time, in writing, as provided for in the 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.”

It was further provided or suggested by paragraph 41 of the specifications, quoted in Finding II, that in consequence of the annual spring rise of the Willamette River and the resulting overflow into the Yamhill River it was probable that the contractors would not be able to begin work on said lock and dam before June at the earliest. The limit for the time of completing the lock and dam was fixed at December 31, 1898, because it was desired that the work contracted to be done should be completed during the “ *one low-water season"*and the bidders were advised to make their calculations accordingly. The low-water season thus defined was well known to the claimants.

Near the end of the period fixed for the completion of the work claimants requested the United States engineer officer to extend the time for completion so as to include the working season of the year 1899. No suggestion was made by them in their request that they were unable to complete the work because of any freshets, or ice, or other violence of the elements which had occurred during the working season of 1898 or because of delay caused by the United States. The United States engineer officer granted the extension of time requested, but took occasion to expressly advise and inform the claimants that such extension would not absolve them from their obligation to stand the expenses for inspection and superintendence during the period of extension.

The work not having been completed at the end of the working season of 1899, a further request was made for an extension of time so as to include the working season of 1900, which request was granted upon the same conditions as *209before. The failure to complete the work during the working season of 1899 was not due to freshets, ice, or other violence of the elements.

The United States engineer officer at Portland, Oreg., in settling with the claimants for the work done deducted from the amount due them the sum of $2,196.27, the amount of expense the United States incurred for inspection and superintendence during the two periods of extension granted.

*Mr. Benjamin Garter*for the claimant. *Mr. F. Garter Pope*was on the brief.

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

Booth, J.,

delivered the opinion of the court.

This is a suit to recover damages for an alleged breach of contract. The claimants, Normile, Fastabend & McGregor, copartners, entered into a written agreement to construct a lock and dam in the Yamhill River in the State of Oregon, a keeper’s dwelling house and necessary buildings appurtenant thereto, and do a certain amount of dredging in the channel of said river near the lock site. The contract was dated March 11, 1898, approved March 24, 1898, and called for the completion of the work by December 31, 1898.

The controversy is largely one of fact, the legal propositions involved being in a large measure elementary and established.

The first items for which claim is made grow out of the delay in procuring title to the sites for the lock, dam, and keeper’s dwelling house by the defendants. Finding II recites the undisputed history of this proceeding. Specification 41 expressly warned the contractors that operations under the contract must await the purchase of sites for the commencement of the work. While celerity of performance was an essential part of the agreement, as evidenced by the dates therein, still there is sufficient in this express condition to anticipate delay. The gravamen of claimants’ petition respecting this item is the unexplained delay between May 13,1898, and June 14, 1898, during which period the where*210abouts of the deed seems to be a mystery. Oñ May 13, 1898, the district attorney at Portland advised Captain Fisk of the clearance of title and the perfection of the conveyance, but the deed was not recorded and no further proceedings respecting the same had until June 14,1898, one month and one day later. The whole period of time consumed in the consummation of said transaction, from the date of the approval of the contract until the recording of the deed, was two months and twenty days. The last month of this period, under this record, is clearly chargeable to the defendants’ neglect, and if shown to have been the proximate cause of the subsequent loss would entitle claimants to a judgment therefor. Finding IV, however, discloses the fact that claimants disregarded the express conditions of the contract and began active operations under it on May 12, 1898, and proceeded toward its completion with commendable alacrity. It is asserted in their behalf that they “ took a chancethat their efforts minimized the damage, and hence they should not be penalized for so doing. The proposition is apparently sound, but if in assuming a risk in the performance of an agreement the contractor performs without authority that which he is subsequently authorized and empowered to do and the whole work tends to advance and discharge his positive agreement, it must of necessity come within the authorized written contract. In other words, if the record discloses that the delay in securing title to the property did not unduly and unreasonably retard the contractor in the performance of the same, he can not recover. *(Little Falls Knitting Co.*v. *United*States, 44 C. Cls., 1.) The contractors herein were obligated to proceed as provided in specification 41, which defined, limited, and explained the conditions surrounding the undertaking. Prior negotiations, expectations, and conversations were all merged into the written agreement and the rights and liabilities of the parties must be determined' thereby. *(Brawley*v. *United*States, 96 U. S., 168-173.)

It is true that subsequent to the Spanish war prices of both labor and material used in this kind of construction began to advance, and have continued to advance. War was declared on April 25, 1898. There was no delay for which *211defendants are chargeable prior to May 13, 1898, and this condition would have obtained to a more or less extent despite the delay of one month prior to June 14, 1898.

Claimants were at work under the contract. The findings show that in addition to their inexperience in this particular class of work they were, in fact, assembling material in the orderly prosecution of the work. They were in no position to receive or care for large consignments of cement or other materials. The delay in the approval of the deed and the notification to proceed with the work was too remote to attribute these losses to that event.

The remaining items resting upon the alleged delay in procuring title to the site necessarily follow the disposition made of the one mentioned in Finding V, and will be dismissed.

The item claimed for under Finding VI is not recoverable under the facts. The work charged for was performed for the express benefit of claimants, and under a distinct understanding that the defendants had no funds available to pay for same. There was no contract, express or implied, for this particular portion of the work, and no proof as to the expense attendant thereon. The same was voluntary.

The claim under Finding YII has to do with the erection of a temporary cofferdam. It was indispensable to the successful completion of the work that a temporary structure of this sort be erected to enable the completion of the permanent wing dam, which extended from the lock wall to the opposite bank of the river. There were no plans or specifications concerning the character of cofferdam or going into detail of construction; in fact there was nothing said about it in the contract or specifications. It is conceded, however, that it was a necessary adjunct to the carrying on of the work. Without it the wing dam could not have been constructed. The enginer officer in charge of the work designated the location of said cofferdam. The claimants proceeded to erect the dam at said location, and were thrice unsuccessful in the attempt. It is manifest from the findings that said location was impossible. Subsequently said cofferdam was relocated and successfully built. The evidence *212in the record upon which Finding VII has been predicated is quite conflicting. It has not been free from doubt and difficulty. The engineer officer in charge of the work admits suggestions and limited supervision over the site and construction of the cofferdam. The claimants unquestionably acted upon these suggestions as commands. The plans and specifications expressly directed the erection of the cofferdam at a sufficient distance away from the lock as not to endanger the same. The engineer officer in charge was charged with seeing that the location of said cofferdam did not overreach the completed structure, tie was in command; his authority under the contract was plenary; he undoubtedly could have prevented the erection of the cofferdam at any point which might interfere with the advancement of the work or at all endanger that already completed. As was said by the court in Moore, *Receiver*(45 C. Cls., -), No. 21477, decided January 10, 1910: “The Government was largely interested in the performance of the details of this contract from the very beginning of the work. It had agreed that monthly estimates should be made by its engineer in charge as the work advanced, and that 90 per cent of such estimates should be paid to the contractors from month to month. A mere statement of this fact shows that ordinary prudence demanded that the Government should have general supervision of the work as it progressed, and the claimants had agreed to this as above quoted.”

Under all the circumstances in this case it seems hardly possible that the claimants would have three times attempted the erection of a temporary cofferdam in one place unless obligated so to do. The engineer officer in charge was required to use ordinary care and skill in giving directions, and the defendants’ liability is limited to such acts as by the use of ordinary care and skill could have been foreseen and prevented. (See *Moore*case, *supra,*and authorities cited.)

The loss occasioned by the failure of the first cofferdam does not come within the rule. There is nothing in the record which would sustain a finding of want of ordinary care and diligence in making the location in the first instance. *213The two subsequent losses are recoverable. The break in the first dam was sufficient notice to the engineer officer in charge that the location was precarious, and the second destruction augmented the necessity for the exercise of greater ckre and foresight. The claimants should have been relieved from this unnecessary and burdensome labor and saved their loss of time and money.

The final claim for the retained percentages as shown in Finding VIII is devoid of merit. The contract work was not completed until 1900. The engineer officer was exceedingly liberal in granting extensions. The contractors neglected to employ a competent civil engineer, which, together with their lack of experience in work of this character, unduly retarded the completion of the same. There is nothing in the record which brings this item of the claim within specification 35 governing the subject of extension.

Judgment is awarded the claimants for $3,200. As to all other items the petition is dismissed.