#### SAMUEL M. PLUMLEY v. THE UNITED STATES.

[No. 20781.

Decided February 28, 1910.]

*On the defendants’’ Motion.*

The court renders judgment in this case ior the claimant. The defendants move to amend the findings, after which the claimant files an appeal, which is not acted upon by this court. The case now comes to a hearing upon the defendants’ motion.

I.The court retains jurisdiction over its findings and can entertain motions from either side to amend the same until the granting of an appeal.

II.The court has always treated motions to amend the findings as motions for a new trial; and the defendants’ motion to amend may be considered as made under the Revised Statutes, section 10SS.

III.On- such motion the court may withdraw its findings and set aside its judgment and file new findings and enter a second judgment.

*The Reporters’*statement of the case:

This case was decided in 1908 and is reported in 43 C. Cls. P., 266. Subsequently to the entry of judgment the defendants' moved to amend the findings in numerous particulars, their motion extending to nearly all the findings. Subsequently to the filing of this motion, the claimant filed an appeal to the Supreme Court, although the judgment was nominally in his favor. The present motion of the defendants was made to secure more favorable findings when the case should be heard in the Supreme Court on the claimant’s appeal. No change in the amount for Avhich the court rendered judgment is asked. The following are the revised findings now filed by the court:

I. On the 2d day of October, 1888, P. H. McLaughlin & Co., of Washington, D. C., entered into a contract with the United States for the erection of the buildings of the Naval Observatory. The contract is the same which was before this court in the case of *P. H. McLaughlin c& Go.*v. *United States*(31 C. Cls. K., 150).

*186It contained, among other provisions, the following:

“ *Second.*The construction and erection of said buildings, and all other work herein contracted for, shall conform in all respects to and with the plans, specifications, drawings, proposal, and letter aforesaid, which plans, specifications, drawings, proposal, and letter aforesaid are hereto annexed and shall be deemed and taken as forming a part of this contract, with the like operation and effect as if the same were incorporated herein. No omission in the drawings, plans, or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the parties of the first part, and all claims for extra compensation by reason of, or for or on account of, such extra performance are hereby, and in consideration of the premises, expressly waived.

“ *Third.*If at any time during the prosecution of the work ■it shall be found advantageous or necessary to make any change or changes in the requirements of the drawings, plans, or specifications which may either increase or diminish the cost of the work, such change or changes must be agreed upon in writing by the parties of the first part and by the architect appointed by the Secretary of the Navy to superintend the work' — the agreement to set forth fully the reasons for such change or changes, to state clearly the quantities and prices of both material and labor thus substituted for those named in the plans and specifications, and, before taking effect, to be approved by the said Secretary: Provided, That the drawings, plans, or specifications shall not be changed in any respect when the cost of such change shall exceed five hundred dollars ($500), except upon the written order of the Secretary of the Navy, and that, if changes involving an expenditure in excess of said sum thus made, the actual cost thereof, and the damage caused thereby, shall be ascertained, estimated, and determined by a board of naval officers appointed by the Secretary of the Navy, and the parties of the first part shall be bound by the determination of said board or of a majority thereof, as to the amount of increased or diminished compensation which they shall be entitled to receive, if any, in consequence of such change or changes. '

“ *Fifth.*The materials and workmanship used and applied in the construction and erection of the buildings and their appurtenances and all other work required under this contract in details and finish shall be first class and of the very best quality, unless particularly set forth to the contrary in *187the drawings, plans, or specifications, and shall from the beginning to the end of the work be subject to inspection by such architects or inspectors as may for that purpose be designated'by the Secretary of the Navy, it being hereby expressly understood, covenanted, and agreed that the said Secretary may appoint suitable architects or inspectors to whom the parties of the first part shall furnish such samples and such information as to the quality thereof and the manner of using the same as may be required and also any assistance that may be required in determining the quality of the materials either used or intended for use in the construction of the buildings and their appurtenances; and that the architect may peremptorily reject any unfit material or forbid the use thereof, and that he shall at all times during the progress of the work have full access thereto, and that the parties of the first part shall furnish him with full facilities for the inspection and superintendence of the same; that only skilled, competent, and fit workmen shall be employed on the work and that the architect may, by written notice, require the parties of the first part to dismiss forthwith any employee he may deem incompetent, careless, or otherwise objectionable on the work; that the architect may also require the parties of the first part to remove such of their materials or work as in his opinion are not in accordance with the drawings, plans, or specifications and to substitute without delay satisfactory work and materials, and that the expense of doing so and of making good other work disturbed by the •change shall be borne by the parties of the first part, who shall promptly carry out all such requirements, and that the decision of the architect superintending the work upon all questions concerning materials and workmanship shall be final, and that in case of the absence of the architect his duties may be performed by an assistant appointed by the architect with the approval of the Secretary of the Navy.

“ *Tenth.** * * The delays which the Secretary of the Navy shall find to be properly attributable to the Navy Department or to its authorized officers or agents, or any or either of them, and to have been a delay operating upon the final completion of the work within the period herein specified therefor shall entitle the parties of the first part to a corresponding extension of the period within which the work is to be completed: Provided, however, That no delay attributed by the party of the first part to the Navy Department, its officers or agents, or the alleged cause or causes thereof, shall be considered by the Secretary of the Navy unless the parties of the first part shall at the time of the *188occurrence of such delay notify him in writing of the facts and circumstances in each case and of the extent to which they claim that the final completion of the work is thereby delayed.”

The total amount to be paid said P. H. McLaughlin & Co. was $307,811, and bjr authorized additions thereafter made under subsequent agreements with them an additional sum of $4,539.57.

The total cost of the work included in the 31 subcontracts amounted to $7,891.13, but the changes set out in the subcontracts made a reduction in the contract price to the extent of $2,537.78, leaving to be paid the contractors for the extra work the said $4,539.57.

In addition to the cost of the extra work, as set out in the paragraph last above, McLaughlin & Co. were paid under another contract the sum of $5,485.70 for excavating and concreting for instrument piers, and to other contractors for work done in connection with the construction of the Naval Observatory buildings there-was paid the sum of $32,888, including $8,580 paid to Warner and Swasey for the shutters of the prime vertical and of the three transit rooms.

On September 8, 1891, the Secretary of the Navy declared the McLaughlin contract forfeited for failure of the contractors to proceed with the work. The work was then re-advertised, the advertisement being accompanied by the printed copy of the specifications of the McLaughlin contract •with erasures showing the portions of the work completed.

The circular inviting proposals made the following statement in regard to such erasures, etc.:

“ In view of the advanced condition of the work of completion of the new Naval Observatory, and in order to furnish, as fully as practicable, such information as to the present condition of the work as may be necessary for persons desiring to submit bids therefor, numerous manuscript notes and erasures have been made in these detailed specifications. Such alterations do not, however, constitute the ‘ duly authorized changes in the plans and specifications’ that are referred to in the proposals for the completion of the new Naval Observatory, and the advertisement inviting the same, dated -January 7, 1892, but are made solely for the assistance *189of bidders in making tlreir estimates. They do not impair the requirements of the specifications as set forth in this circular and as amended prior to September 8, 1891.”

The circular thus marked indicates the following, viz:

Letter A is placed opposite requirements which apparently have not been fulfilled in the least particular.

Letter B is placed opposite requirements which have apparently been partially fulfilled, the varying percentage of fulfillment or completion being approximately indicated by subnumerals, as B25, B5Q, B75.

The black lines drawn through requirements indicate that the work has probably been completed or that the requirement is probably specified elsewhere.

The condition of the authorized additional work or amendments to the specifications prior to September 8, 1891, is as follows: Clock room and transit-circle rooms, B85; drain pipes and rain cesspools, A; cutting door for access to cellar, B50; extension of soil pipes to cesspools and east toilet room, B15.

The claimant became the accepted bidder and entered into the contract with the United States set forth as an exhibit to the petition, and carried out the contract.

II. The claimant promptly proceeded to perform the work required by his contract and would have completed the same by June 1, 1892. Tie was delayed, however, in so doing by the defendants in not having the architect on hand promptly for decisions pertaining to the same. The contract time for the completion of the work was extended by the Secretary of the Navy to February 8, 1893, giving as a reason therefor that failure to complete the work within contract time was on account of circumstances beyond claimant’s control. It is not shown that claimant suffered any loss by reason of said delay except the expenditure of $502.50, premiums paid upon insurance claimant was obligated to carry upon the work.

Neither is it shown that the claimant at the time of the occurrence of such delay notified the Secretary of the Navy in writing of the facts and circumstances thereof and the extent to which the final completion of the work would be thereby delayed.

*190III. Some time after the work had been in progress by P. PI. McLaughlin & Co. under the original contract, the architect employed by the Government to superintend the construction submitted the following paper to the department :

“MEMORANDUM No. 1 OE PROFOSED CHANGES IN PLANS OF New Naval Observatory.

“The distances between the clock room and the east and west transit-circle room, as shown on the original location plan, should be reduced. This is made necessary by the fact that on the original a large well comes directly under the east transit-circle room. This change involves no expense.

“ Since by the above change the distance from the clock room to the observer’s room is reduced to ten (10) feet, communication between them by covered passageway is made practicable at a comparatively small cost. By such communication the clock room will be entered through a passageway in which the temperature is practically the same as that of the clock room, which is a consideration of so much importance as to warrant even a greater expense than that entailed by the proposed change. The cellar of the clock room will be entered through cellar of passageway, which will add to the facilities for placing clock and mirror piers.

“The new position of doors with the suggested transoms will admit reflecting beams of light from the faces of the standard clocks to observers’ room, to positions of chronographs, and to transit-circle rooms.

“ It is the opinion of the authority of the Naval Observatory that these changes will be of very material benefit.

“Plans showing these changes are in the hands of the Superintendent of the Naval Observatory. They have been examined by the contractors (McLaughlin & Co.), who offer to make all changes according to plans and specifications prepared by me, at a total cost of nine hundred ($900) dollars.

“ They will, upon the approval of the changes by the department, enter into a formal contract to do the work for the above amount.’-’

Among the plans mentioned in the. fifth paragraph of memorandum No. 1 as showing the changes and as having been examined by the contractors, McLaughlin & Co., was plan No. 79, which shows the ventilation work in the transit buildings. The date of memorandum No. 1 is May 2, 1889, *191and plan No. 79 was received by the contractors February 18, 1889, and were examined by Plumley before bidding.

The offer of the contractors above referred to was made in writing, was approved by a board of officers, and received the approval of the Bureau of Navigation and Secretary of the Navy. The work therein named was performed and paid for.

In four of the buildings covered by the specifications annexed to the contract of P. H. McLaughlin & Co., to wit, the three transit-circle rooms and prime vertical building, the specifications provided as follows:

*“Main, east and west*transit-circle, *and adjoining main*building, *and prime vertical buildings.*Construct frame of the side and the roof of rolled iron beams, channels, and angle irons of the sizes shown on the ¿-inch scale plan, properly riveted together and braced in the most substantial manner.”

Extend the wall plate of 8-inch channel entirely around each building, anchor to masonry about every 4 feet with 1-inch stone or expansion bolts leaded into the coping.

Secure the beams and channel irons, uprights in the side, to wall plate with two 4 by 3 by -g-inch angle-iron knees with two, ¿-inch rivets in each.

Secure the horizontal girths of 3 by 3 by ¿-inch L irons, and 2 by 2 by ¿-inch L irons inside to the upright with ¿-inch rivets at each intersection.

Secure roof trusses and connections to framework of sides with -g-inch rivets.

Punch or drill all necessary holes to secure firmly sheet iron, sheet zinc, or carpenter work.

Cover all rafters to finish the roof with best corrugated galvanized sheet iron, No. 22 gauge.

Cover the exterior of upright wall studs with best corrugated galvanized sheet iron, No. 24, and the interior throughout with corrugated sheet zinc, No. 12.

Paint all wrought-iron work one heavy coat of metallic paint and pure linseed oil before erection and one coat after.

Nothing was shown in said specifications or in the drawings accompanying the original contract of McLaughlin & *192Co. in regard to any provision for ventilation, but said ventilation work was fully set out on the drawings and plans which were shown to the claimant when estimating before bidding, as stated in subfinding 1.

The drawings showing the system of ventilation were handed to McLaughlin & Co. with instructions by the architect to proceed in accordance therewith, and they had proceeded a short distance in the construction in accordance with said drawing's at the time their contract was forfeited, all of which was fully known to claimants at the time their bid for completion of the McLaughlin contract was accepted.

The claimant was required by the architect having charge of the construction of said observatory to put in a system of ventilation in accordance with the plan of Professor Paul. The claimant protested against being required to do the work on said ventilation system as a part of the “ authorized changes” referred to in paragraph 2 of the contract. But said architect ruled that the work constituted a part of that shown in memorandum No. 1 above, which the original contractors, McLaughlin & Co., had agreed to do for $900, and that it therefore constituted a part of the unfinished work of said McLaughlin & Co. which the claimant had assumed by his contract.

The changes mentioned in memorandum No. 1 (set out in subfinding 1), were made for the agreed consideration of $900.

Claimant appealed in writing to the Secretary of the Navy, claiming that the work was not included in that covered by memorandum No. 1 of the supplemental contract of McLaughlin & Co. to do the work named in said memorandum, and insisted that he was entitled to be paid for the same. His letter is as follows:

“ WASHINGTON, D. C., *May 12, 1892.*

“ Hon. B. F. Tkacy,

*“Secretary of Navy.*

“ SiR: Under the ninth clause of my contract for the completion of the new Naval Observatory I desire to submit to your consideration and decision the contemplated changes in transit-circle buildings. The original drawings do not show the ventilation in the base of the buildings; details have been *193furnished by the architect entirely at variance with the original drawings or authorized changes, the cost of which will be about fifteen hundred dollars. An early decision on this matter will greatly oblige

“ Yours, respectfully, S. M. Plumley.”

but the Secretary of the Navy overruled claimant’s contention and sustained the architect.

Some time after the work had been begun under the contract of P. H. McLaughlin & Co. a plan was submitted by Prof. Plenry M. Paul, U. S. Navy, for a system of ventilation designed to preserve the same temperature inside the buildings as outside, and with this in view he submitted a plan for the construction of a ventilation system in substance the same as was afterwards carried out, as follows:

1. Turn roofs round so that shutter openings will be along ridge of each.

2. Close up entirely the window and door in south end of each room.

3. In the east side of the east room and in the west side of the west room replace the two windows of each with double-walled shutters opening outward in halves.

4. In the west side of the east room and in the east side of the west room replace the south window with an 8-inch square transom, roofed and hooded (position specified in memorandum), and replace the north window with door transferred from south end.

5. In the north end of each room add wooden shutters on inside of the two windows.

6. On the outside of the north end of each room put thermometer shelter (position and details specified in memorandum).

7. Ventilate every panel of walls by open louvers at top and bottom in outside corrugated iron and every panel of roofs by wire-covered openings at eaves and ridge, the latter outside of shutter opening.

8. In all four walls of each room put two bottom panels of movable louvers in the inside zinc lining, these louvers to close dust-tight.

9. Cut out lower cross-tie of shutter openings, so that they will open down to next cross-tie.

*19410. Do away with the concrete and asphalt floors (specified on pp. 17 and 19 of the “ Circular ”) throughout basements of each room, and fill the corners unoccupied by pier foundations with loose sand at least 12-inches deep. * * *

12. Turn roof round so that shutter opening will be along the ridge.

13. Close up entirely the two windows in south end.

14. In the east and west sides replace the four symmetrically situated windows with double-wall shutters opening outward in halves.

15. On the west side close up the small center window entirely, and in the same panel, as high up as it will clear the eaves, put an 8-inch square transom, roofed and hooded.

16. In the north end add wooden shutters on inside of the two winuowrs.

17. On the outside of the north end put thermometer shelter (position and details specified in meniorandum).

18. All the walls and roof to be ventilated just as described above in items 7 and 8 for the east and west transit-circle rooms.

19. Cut out lower cross-ties, the same as specified in item 9. * * *

22. The two observers’ rooms (wooden) to be moved up within 10 feet of the clock room on each side, and to be connected with the latter by covered wooden passageways, with basements like basements of observers’ rooms.

23. These passageways to have windows in north and south sides of each, a steam radiator under north window of each, and two doors, with upper panel glass, swinging into each from clock and observers’ rooms, with transom (size and height specified in memorandum) over each of the four doors. These doors replace four windows on plans.

24. The door in south end of each observers’ room to be moved to the side next to transit-circle room in place of the window, and to have the upper panels of glass and to have transoms over the doors, these transoms to be roofed and hooded. The windows which these doors replace to be put in the center of south end of each room.

*19525. A trapdoor in the floor and steps to basement in one corner of each of the two observers’ rooms.

26. The steam radiator in each of the two observers’ rooms not to be in the center, but preferably under the north window.

27. In the floor of the clock room, opening to be left for 12 clock piers and 1 mirror post (according to plan submitted) .

28. In the north and south gable ends of clock room, a ventilating opening with fixed louvers outside and movable louvres inside, and in the ceiling 4 ventilating registers with movable louvers, and a trapdoor for access to space over ceiling.'

29. The south door of clock room to have upper panel of glass, and over it a transom roofed and ho'oded.

30. The north window of clock room to be double, with outside sash removable, and over the window a transom without roof or hood.

31. Do away with concrete floor in basement of clock room, and in the part of it not occupied bjr clock or mirror-post piers replace it with sand 12 inches deep.

IV. The plans for the ceilings of the cellar rooms in the main building show plastering, and the general provisions of the specifications under the head of “ Plastering and stucco work ” required the contractor to “ finish the plastering throughout in best three-coat work, done by skilled men,” excepting the three transit-circle rooms and the prime vertical building. The specifications also require that the great equatorial building and the clock rooms have the same construction as the main building. The drawings contain certain lines when plastering is required. Such plastering lines appear on drawing 16 of the main building under the main hallway and on plan 17 from the main front entrance to the main rear entrance.

The claimant was required to plaster the ceilings in the cellars of all the buildings, and did so, protesting against the requirement, but it was insisted by the local officers in charge that the contract required the ceilings to be plastered.

*196V. The specifications of the McLaughlin contract, also constituting a part of tbis contract, contain under the head of “ Concrete floors ” the following:

“ Concrete cellars throughout, without exception, also parts of areas flagged, with Portland-cement concrete, as above specified for foundations, not less than six (6) inches thick, and finish surface with a final layer of best imported Portland cement and fine-screened gravel. Trowel off smooth and mark with marking tool, and finish equal to granolithic pavement.” The last sentence is erased in the copy of the specifications annexed to Plumley’s contract.

Said specifications also contain the following:

“ *Asphalt.*— Pave entire area of the cellar of main building, clock room, prime vertical and transit buildings, also of the great equatorial building over the concrete, with one (1) heavy coat of Seyssel or Neuchatel asphalt, not less than three-quarters (f) inch thick, run clear to walls, and finished a good smooth finish.

The drawings annexed to the specifications, and thereby declared to constitute a part of the contract, showed only one layer of finish.

The claimant was required by the officers in charge under the direction of the Navy Department to put down over the concrete of these cellars a layer of Neuchatel asphalt in accordance with the specifications as above stated. The putting down of this asphalt on top of the concrete is of no advantage and is unusual in construction. Owing to the addition of the asphalt finish over the concrete, these cellar rooms when completed were and to-day are 2 inches less in height than as shown on the drawings.

The additional value and cost of this work was $1,389.40.

YI. The specifications contain the following:

“ *Water sup fly.*— From the main supply, at a point near the boiler house, carry a line of four (4) inch heavy cast-iron pipe in twelve (12) feet lengths to the main building near the library, then parallel to same to the great equatorial, then north to the rear of the clock room.”

In addition to the main as thus laid, the contractors were also required to lay 100 feet more of the same character of pipe to a point 100 feet south of the boiler house, against which the claimant protested, but was required to do the same.

The value of this work is $150.

*197VII. During the time that McLaughlin & Co. were at work under their contract they were requested by the Bureau of Equipment of the Navy Department to submit an estimate of labor and material for laying 655 feet of 4-inch vitrified drainpipe. They offered to furnish such drain-pipe at the rate of 48 cents a foot, making $314.40, and their offer was accepted by the department. This order was after-wards officially countermanded.

The claimant was, after the date of his contract, requested to submit an estimate, and he did so, proposing to do the work at the same price as had been named by McLaughlin & Co.

The claimant protested in writing to the Secretary of the Navy against being required to do this work as a part of his contract, but was nevertheless required to do it, and did it.

The reasonable value of the work was as proposed, amounting to $314.40.

“ÁPRiL 19, 1892.

“Hon. B. F. Teacy,

*“Secretary of the Navy.*

“ Sir : I desire to call your attention to the contracts for extra work entered into with P. IL- McLaughlin & Co. for changes in building for new Naval Observatory, and ask you to define my status in reference to the extra work. My understanding of this matter was that all authorized changes were to be completed by me, and that I was to receive the percentage on the work not completed as estimated by the board of appraisers, as follows, from the aid of builders attached to the specifications or circular from which I bid:

“First. Clock room and transit-circle rooms is marked B 85, showing that the board of appraisers had estimated that 85 per cent of this work had been completed, leaving 15 per cent of the entire contract for this extra work yet to be done, and which I have estimated to receive when this work is finished by me.

“ Second. Drainpipes and rain-water cesspools marked A, showing that McLaughlin & Co. have done nothing toward completing this extra work, and the entire work under this extra order will have to be completed by me; therefore I claim that on completion of the laying of these drainpipes and cesspools that I should receive the entire amount of this contract, less the value of the pipe left on hand by McLaugh*198lin & Co., which should be credited to them. In further support or my claim for this particular work, I have been informed by Mr. P. H. McLaughlin, of the firm of McLaughlin & Co., that the order for this work was countermanded prior to the time that their contract was declared forfeited, and, in fact, on page *7*of the report of the board of appraisers, under the head of extra work, the drainpipes and cesspools is marked countermanded, and on page 2 of the inventory of the board of' appraisers 655 feet of 4-inch pipe is marked extra order countermanded. I have1- also been requested by the architect, Mr. P. M. Hunt, through the assistant architect, Mr. Harry E. Donnell, to sign a proposal to do this work at the same price as allowed McLaughlin & Co. The request, however, since that time has been recalled. I simply mention these matters to strengthen my claim for extra compensation for this particular work.

“ Third. Cutting door for access to cellar is marked B 50, showing that one-half of this work has been done by McLaughlin & Co., who should be credited with one-half of the amount allowed for this work and the balance to be paid to me on its completion.

“Fourth. Extension of soil pipes to cesspools and east toilet rooms B 15, showing that 15 per cent of this work has been done by McLaughlin & Co., who should be credited with that amount, and the balance to be paid to me on completion. This has been my understanding of the matter all the way through, and I am satisfied that it was the understanding of every bidder for the completion of the work. I request that you give me a decision on these points as soon as possible, and, if I have not made my statement as clear as you would wish, that I be allowed to make a verbal statement.

“ Eespectfully, S. M. Plumley.”

VIII. The claimant was likewise required, against his protest, to put in additional work, consisting of mill work, carpenter’s work, plastering, and hardware in the lobby between the main building and the small equatorial nowhere described or called for in the specifications or the plans annexed thereto.

The value of this work was $250.

IX. The claimant was also required to do additional work of the same character described in the preceding finding in the corridor between the small equatorial and main transit buildings and, though protesting against the same, was required to do it, and did do it.

The value of such additional work was $50.

*199X. The original plans showed wooden steps to the two observers’ rooms, two transit rooms, and prime vertical building, showing simply a plain newel and a plain rail. The plans under which the claimant was compelled to put up those steps were shown to him in the shape of a modified plan, which he was required to follow. The difference in value was $30 for each of the five flights, making a total of $150.

XI. In the librarian’s room in the main building McLaughlin & Co. had laid a wooden floor, and it had been finished and accepted prior to the date of the claimant’s contract. This was in accordance with the specifications, which provided tiling for certain rooms but did not name among them the librarian’s room. After the claimant entered upon work under his contract he was required to remove the wooden floor already put in and put a tile floor on this room. The value of this work was $92.

XII. The original specifications and plans describe the observers’ rooms as “ each 18 by 20 feet interior measurement; one-story wood-frame building on foundation of masonry.” No cellar was shown under these rooms. The claimant was required under protest to,make cellars under these rooms and to concrete the floors thereof, and did so.

The reasonable value of the work is $180.

XIII. During the currency of the McLaughlin contract, McLaughlin & Co. were called upon to estimate for packing sand around the instrument piers in the three transit rooms and prime vertical building, the construction of said piers being one of the works expressly excluded from the proposal and contract. McLaughlin & Co. submitted an estimate, but it was not acted upon before the termination of their contract. The claimant in this case was afterwards required by the officers of the Government in charge to put in sand packing around these piers, and did so. The value of the work was $100.

XIY. The claimant was requested to submit an estimate for placing slate and iron saddles on the doors in the main building, and furnish an estimate for the same to the amount of $150. After he had submitted such estimate he was required to do the work, and did so. No saddles are specified *200in the specifications or shown in the plans. A saddle is a piece that goes across at the bottom of a door and over which the door shuts.

The value of this work was $150.

XY. The court finds that Augustus Davis, jr., formerly a member of the firm of McLaughlin & Co., was likewise a partner of the claimant herein. His interest in the undertaking was one-half of the profits to be realized.

This arrangement was afterwards made known to the architect, Mr. Hunt, and received his sanction and cooperation. Mr. Davis superintended the work and for several months spent a great portion of his time there; was present at a conference With the assistant architect with reference to the slate and iron saddles named in finding XIY, as well as at a conference with the superintendent of the observatory with reference to the finish of the floor, as set forth in finding V, and was present at and participated in a hearing before the Judge-Advocate-General of the Navy on the appeal to the Secretary of the Navy from the requirement to put in the ventilation system, as set forth in finding III, subfinding 4. The contract was executed in the name of Plumley and he was recognized by defendants as the sole contractor. The interest of Davis in the contract and the partnership between him and Plumley was entered into prior to the execution of the contract by Plumley with the defendants.

The sixth clause of the Plumley contract contains the following :

“It is mutually understood, covenanted, and agreed by and between the respective parties hereto that this contract shall not, nor shall any interest herein, be transferred by the party of the first part to any other person or persons, and that any such transfer shall cause the annulment of this contract so far as the United States are concerned.”

XYI. It is not shown that the claimant appealed to the Secretary as required by the ninth clause of his contract set out in Finding Y as to any- items, except those heretofore mentioned in Findings III and YII, or that any of the extra work for which claim is made herein, except as findings otherwise show, was ever before the Secretary of the Navy or a boaid of naval officers appointed by him in pursuance *201of section 3 of the original contract with McLaughlin & Co.

Neither is it shown that any of the alleged extra work charged for in claimant’s petition and set out in the findings of fact was contracted for in writing in accordance with the terms of section 3 of the original contract with McLaughlin & Co., which by the first clause of the Plumley contract was made a part of the contract involved in this case.

It is shown that the extra work charged for was performed by the claimant under protest and after various disputes with the officer in charge of the work as to constructions of plans and specifications; but it does not appear that claimant sought relief therefor in manner and form as provided in original contract with McLaughlin & Co. and the ninth clause of his contract, except as appears in Findings III and VII. Claimant performed the work under direction of the officer in charge and in accordance with his construction of the contract, plans, and specifications.

*Mr. George A. King*for the claimant. *Messrs. George A.*and *William B. King*were on the brief.

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

Booth, J.,

delivered the opinion of the court:

This case in some respects has had a checkered career. It has been under consideration by the court for some time, and because of its peculiar complications and close relation to the McLaughlin case has involved an extended and detailed examination into the records of both cases. This has been tedious. The case is now before us upon the defendants’ motion to amend the findings. No objection is raised as to the amount of the judgment of the court. This is the first motion of the defendants to amend findings, and extends to nearly all the findings previously filed.

Strenuous objection was interposed by claimant to consideration of the present motion, but the court is of the opinion that until the granting of an appeal the court retains jurisdiction over its findings and can entertain motions from either side to amend the same. In addition to this, section *2021088 of the Bevised Statutes is exceedingly broad in reference to rehearings, and grants a much wider latitude than is usually granted to litigants in the prosecution or defense of suits before a court. While the motion in this case recites upon its face that it is a motion to amend findings, the court has always treated such motions as motions for a new trial, and may come under section 1088, *sufra.*

The motion in this case was filed in apt time preceding the application for an appeal by claimant, and was argued in the usual course of procedure and submitted as other motions are submitted under the rules of this court. We do not mean to say that innumerable motions may be filed by any single side to the litigation, but if in the wisdom of the court a sufficient showing is made in a motion, so filed the court will entertain the same if a previous motion of the same character from the same side has not been heard. This is not in conflict with the rules of the Supreme Court, and has been the practice of this court for all time.

The principal controversy herein goes to Finding III, Memorandum No. 1. In the previous findings and opinion of this court it was then its judgment that Memorandum No. 1 did not include the ventilation system and was not an authorized change under the terms of the McLaughlin contract. After going over the records in both cases again, and after a most careful comparison and examination of the plans and specifications, especially plan No. *79,*construed in conjunction with the summary of changes, the .court modifies its findings and opinion heretofore filed. Plan No. *79*was in the hands of claimant previous to his bid, and when taken in connection with the summary of changes submitted to McLaughlin *&*Co. at the time of the submission of the plan of ventilation, it confirms defendants’ contention that the ventilation system was included in Memorandum No. 1. The court’s first impression was that Memorandum No. 1 was limited to the changes made in the distances between the clock room and the east-and-west transit circle room, overlooking the summary of changes wherein these identical changes are expressly provided for.

The additional modifications go to some minor details and are not numerous or important enough to warrant further *203discussion. The amendments made do not in anywise affect the conclusion of the court as formerly expressed, and with the exception of the ventilation system leave undisturbed the former opinion and judgment of the court.

The *Alvord case*(8 C. Cls., 364) was cited for the purpose of reference to a line of authorities sustaining the general doctrine that “ no one is permitted to keep silent- when he should speak, and thereby mislead another to his injury.” As to this well-established rule no extended comment is necessary. The case was not otherwise apropos and its citation not otherwise intended.

The court can not do otherwise than regret the necessity for this additional change in the findings and former opinion. It has involved much delay and labor. Justice is exacting, its attainment the paramount object, and in its interest courts must yield when convinced of error.

The defendants’ motion to amend findings is allowed in part and overruled in part.

The former findings are withdrawn, and judgment set aside and new findings filed, which, together with the former opinion as modified by this opinion, will constitute the conclusions of the court. Judgment awarded the claimant in the sum of $502.50.

In all other respects the petition is dismissed.