#### JAMES H. OWEN ET AL. v. THE UNITED STATES.

[No. 22957.

Decided March 29, 1909.]

*On the Proofs.*

The contract requires the claimants to erect a building on the Rosebud Reservation. The contractors are to do all the work and furnish all the material except the brick, which the defendants are to furnish. They neglect to have the brick upon the ground at the appointed time; and when brick are furnished by them they are irregular in color, size, and shape, requiring assortment by the contractors. The defendants also furnish brick of an unusual kind, which involves additional expense in laying. The failure of the defendants to furnish the proper kind of brick in due time throws the work over into the winter, which involves the contractors in additional expense.

I.Where the defendants notified the contractors that brick which they were to furnish for a building to be erected were on the ground and the contractors carried workmen with them to a remote place where there was no labor market the defendants are responsible for all loss resulting from the laborers remaining idle in consequence of the brick not being on the ground as represented.

II.Where the brick furnished for a building by the defendants were not of the usual kind and involved the contractors in additional expense the defendants are liable therefor.

III.Where the delay of the defendants throws the contractors’ work over into the winter, involving them in^ additional expense, they are entitled to recover for the reasonable cost of the increased work.

*The Reporters’*statement of the case:

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

I. The claimants, James H. Owen and Charles H. Hille, are citizens of the United States, and at the time of the occurrence of all the events hereinafter mentioned and the time of filing suit herein were citizens of 'the United States and copartners under the firm name of Owen & Hille, engaged in business as contractors and builders, and during the year 1896 they had their principal office and place of business in the city of Minneapolis, in the State of Minnesota.

*441II. On the 24th day of August, 1896, the claimants entered into a contract in writing, and under seal, with the United States of America, which was duly approved by the Acting Secretary of the Interior September 10, 1896, which is set out in full in the petition herein, also such part of the specifications as are necessary for the consideration of this suit.

After the approval of said .contract by the Secretary' of the Interior, on the 16th day of September, 1896, the Commissioner of Indian Affairs notified the claimants by telegraph that the Indian agent at Rosebud Reservation had been granted authority to purchase bricks for facing and foundation; whereupon'the claimants inquired of the said Indian agent by telegraph when the brick for the foundation would be on the ground, stating in the telegram they understood no brick Avere on the ground for the foundation, to Avhich inquiry said Indian agent replied by telegraph on the 18th day of September, 1896: “ Half a million brick on ground.” Whereupon the claimants left the city of Minneapolis, Minn., from Avhich point they had the said telegraphic communications Avith the Commissioner of Indian Affairs and the' Indian agent, and proceeded to the Rosebud Agency, with 41 workmen, reaching the agency September 23, 1896. After their arrival Avith their said workmen at the agency they were .notified' by the agent of the United States that the bricks on hand could not be used for the purpose of laying the foundations of. the buildings, being unsuitable therefor; and the claimants were compelled, with nearly all of their said workmen, to lie idle for a period of twenty days, awaiting the arrival of the bricks.

On or about the 15th day of October, 1896, the bricks for the foundation began to arrive, but in insufficient quantities, as the result of which claimants were unable to use the full time of all of their employees on the ground, and were unable to make the best use of their own time, and were compelled to use high-priced laborers, such as bricklayers and carpenters, to do cheap labor, such as excavation. Also, the bricks so furnished in insufficient quantities were not uniform in color, size, or shape, and it became necessary for the claimants to sort the brick in the construction of the build*442ings, for which purpose claimants necessarily employed laborers. On account of said delays in the arrival of the first foundation bricks and the insufficient quantities furnished after they began to arrive, and the irregularity of the color, size, and shape of the bricks, claimants lost in wages paid to idle workmen, excessive wages paid to workmen not employed on full time because of the insufficient supply of bricks, wages paid to men employed in sorting bricks, board for the workmen in lieu of wages, loss on account of being compelled to use high-priced labor in performing cheap labor, and loss of claimants’ own time, the sum of $1,280.

III. The delay on the part of the defendant in delivering the brick for the foundation of the said buildings postponed the larger part of the brickwork construction until the winter season, when, at the Rosebud Agency, there were fewer hours of daylight, fewer hours per day when it was possible to lay brick and do plastering and concreting, and when there was extreme cold and heavy falls of snow, whereas if such delay had not been caused in the manner aforesaid, the larger part of the brickwork of said buildings would have been completed before cold weather; and the claimants were thus prevented from proceeding with the work of construction with regularity and dispatch, and were only able to proceed at all under great difficulties. They were compelled, by reason of the conditions of cold, snow, and the shortness of working hours per day, in many instances, to tear down portions of the walls of the buildings and rebuild them, to thaw out the mortar, and to heat the bricks and mortar so that the work of plastering, concreting, and bricklaying could be done in a workmanlike manner. By reason of the conditions it was unusually difficult to handle the bricks, lumber, and other building materials, and they could not be handled at all until the snow was removed and paths made; and the claimants necessarily expended a considerable sum for the heating purposes mentioned over and above what would have been necessary if it had not been for such delay. By reason of all the matters specified in this paragraph the claimants were obliged to spend and did expend the sum of $3,500 in excess of the amount which they would have been obliged to expend in the ordinary course of construction of the said buildings *443if the defendants had not delayed them in furnishing the said foundation bricks.

IV. After the claimants had begun the work of construction of said buildings, the defendant, instead of furnishing-bricks of the kind customarily used in the construction of such buildings, as specified in the said contract, procured and furnished for the foundation and faces of walls pressed paying bricks, which were harder and smaller than the bricks customarily used for foundations and faces of walls, and were harder and smaller than the bricks the defendant furnished to be laid on the inside of the walls and were a kind of brick never designed for use in the construction of buildings. The said paving bricks, instead of having square edges, as building bricks usually have, had round edges, and were what are known as end-cut brick, made of a continuous line of clay, and cut by wire into proper lengths as the clay passes out of the machine, and by reason of this method of manufacture they had rough and uneven ends. The superintendent of construction, who was the authorized representative of the defendant on the ground, required the claimants, over their protest, to lay said paving bricks with “ blind headers,” so that the rough ends of the bricks in the bond courses would not show in the face of the wall, and with the bricks so furnished this was necessary. This would not have been necessary if brick of the quality designed for use and customarily used in the construction of such buildings (as those in question and prescribed in the contract) had been furnished by the defendant. By reason of the extreme hardness of the said paving bricks, their rough ends and the difference in size between them and the bricks furnished by the defendant for the inside of the walls, much additional and unusual labor and expense and loss of time was imposed upon the claimants in handling and laying the bricks of both kinds, the cost of which additional labor and expense to the claimants was $3,760.

V. After the claimants had made the excavations for and begun the work of construction of one of the said employees’ quarters in accordance with the plans and specifications, the said superintendent of construction required claimants' *444to change the location thereof, which they did, at an additional cost to them of $100.

VI. After the approval of the said contract the claimants were required by the said superintendent of construction to build one of the walls of one of the said buildings 13 inches thick, instead of, as provided in the specifications, 9 inches thick, the added thickness of the wall imposing upon the claimants an extra cost to them of $100.

*Mr. E. F. OoTladay*for the claimant. *Mr. R. V. Belt*and *'William H. Robeson*were on the brief.

*Mr. Clark McKercher*(with whom was *Mr. Assistant A Uorney-General John Q.*Thompson) for the defendants.

Barnet, J., delivered the opinion of the court :

This is a suit to recover for additional cost of construction incurred in the erection of several buildings at the Bosebud Indian Agency, S. Dak., under a contract between the plaintiffs and the Commissioner of Indian Affairs dated August 24, 1896, and approved September 10, 1896. The contract provided that the plaintiffs should furnish all labor and materials for the completion of the buildings, except the brick, and to have the buildings ready for occupancy within twTo hundred and forty days after the date of the approval of the contract or suffer a penalty of $50 per day for delay beyond that time. The buildings were completed satisfactorily to the Government May 5, 1897, and the contract price of $46,625 paid to the plaintiffs without any deductions for delay.

I. The findings show, and it is conceded by the Government, that there was considerable delay in the furnishing of the brick; and when furnished, they came in driblets and unsorted, being of all sizes, colors, and shapes. Shortly after the approval of the contract the plaintiffs were notified by the proper authorities that a large quantity of brick were on the ground ready for the work to begin, whereupon they proceeded to the location to begin the work, taking with them a large body of skilled workmen. This preparation was necessary because the place where the buildings were to be erected was a long distance from any labor market. *445When the plaintiffs arrived at the Rosebud Agency with their workmen they found no brick on hand which the government inspector would allow them to use; and none came for at least twenty days; in the meantime all of these skilled laborers were compelled to remain idle. After the expiration of twenty days brick of all sorts, sizes, and colors began to arrive, which the plaintiffs were compelled to sort out before they could be used, and even this motley supply of brick came in so slowly that for some time only a part of the plaintiffs’ workmen could be employed.

That the plaintiffs should recover in this suit for all the loss directly occasioned by this delay is not contested by the Government. *(Cotton*v. *United*States, 38 C. Cls. R., 536-547; *Snare & Triest Co.*v. *United States,*43 C. Cls. R., 36A-367.) It is contended, however, that the facts proven and found by the court are not sufficient in detail to warrant the court in rendering a.judgment in any definite sum for this item of loss. It is true that the facts as to this loss were not proven in the detail which the court would have liked, but they fully justify the finding as made, which we think authorizes the finding of a loss of at least $1,280.

II. This delay on the part of the Government in supplying the brick pushed the completion of the outside walls of the buildings far into the winter, necessarily entailing considerable unusual expense in laying the brick.

It is contended by the Government that even if there had been no delay, as found, the outside walls would not have been fully completed before the approach of severe weather, and that the contract premeditated this expense by stipulating that the plaintiffs should “ provide stoves and fuel in cold weather for heating the building, etc.” It may be true that without delay the outside walls would not have been fully completed before cold and freezing weather set in, although that is doubtful; but the findings show that if it had not been for the delay occasioned by the Government the larger part of the work would have been completed. The language of the contract above quoted indicates this expectation by the parties, providing, as it does, for the “ heating of the building.” It apparently was not expected *446that fires would be necessary to heat the bricks and mortar while the outside walls were being erected. It is also very properly argued by the attorney for the Government that it, is a difficult matter for the court to estimate the loss to the plaintiffs occasioned by this postponement of brickwork into severe weather. From the nature of the case it was impossible for the plaintiffs to give any exact figures as to this item, and it is necessarily somewhat speculative. But that considerable loss did occur because of this postponement is self-evident, and is shown by the findings, and the sum named in finding 3, thirty-five hundred dollars ($8,500), is believed to be well proven and reasonable in amount.

III. The next item is for loss on account of the kind of brick furnished by the Government to be used in the “ facing ” of the outside walls. The brick so furnished were hard paving brick, never designed for use in the construction of buildings, different in size and shape from ordinary building brick, and with rough ends. This fact necessitated their being laid in the walls with what is known as “ blind headers,” and it was so ordered by the government inspector in charge. They did not “ size up ” with the other brick used in the construction of the building, and were so hard that they could not be shaped in the ordinary manner to make the “ blind headers.”

The findings show, and it is conceded by the Government, that the difference in the expense of laying these paving brick and ordinary building brick in the buildings in question was $3,750. But the Government urges that this loss comes within the numerous class of cases where it is held that under a contract providing, as in this case, that the decision of the engineer or superintendent in charge shall be final, his decision can not be impeached, except for fraud, bad faith, or a failure on his part to exercise an honest judgment. *(Kennedy*v. *United States,*24 C. Cls. R., 139; *Kihlberg*v. *United*States, 97 U. S., 401.) But it is not attempted in this case to impeach the decision of the government inspector in charge of the work. On the contrary, the findings show that his decision as to the manner in which .these paving bricks should be laid was necessary and right.

*447The grievance of which the plaintiffs complain was the change-of material provided by. the contract and not the decision of the inspector as to the manner of using such material. The contract called for the use of “ sound, hard, well-burned brick,” and, instead, paving brick never designed for use in the construction of buildings were' furnished. That this was an unauthorized deviation from the terms of the contract is not susceptible of discussion, and when such change increases the cost of the work of the contractor he is entitled to recover for the reasonable cost of such increased work. *(Dermott*v. Jones, 2 Wallace, 1; *Henderson Bridge Co.*v. McGrath, 134 U. S., 260.) In *Dermott*v. Jones, supra, the court said: “ If, by the fault of the defendant, the cost of the work or materials has been increased, in so far the jury will be warranted in departing from the contract prices.” *(Id.,*9.)

IV. The next item ($100) claimed is for extra' work caused by the change of location of one of the buildings, after considerable work had been performed at the location first designated by the Government. This item needs no discussion and is allowed at the amount admitted to be reasonable for the change made, by the government inspector in charge.

The same observation can be made as to the last item of $100 for the increased cost of constructing one of the walls 13 inches thick instead of 9 inches, as provided in the contract, as this item is undisputed.

It is averred in the petition that loss occurred.to the plaintiffs by reason of extra expense incurred in the obtaining of laborers after the delay occasioned by the Government; a claim is also made for increased cost by way of interest on money borrowed to carry on the work. The evidence on these items is too indeterminate and problematical to warrant any finding or judgment,'even conceding that loss of the character indicated can be recovered. (1 Sutherland on Damages, 74; *Chouteau*v. *United*States, 95 U. S., 61, 68; *Hyde*v. *United States,*38 C. Cls. B., 649, 662.)

Judgment is ordered for the plaintiffs in the sum of $8,740.