#### MADISON J. BRAY ET AL., TRUSTEES, v. THE UNITED STATES.

[No. 24886.

Decided March 23, 1908.]

*On the Proofs.*

The claimants’ assignor, the Evansville Contract Company, contract to furnish ashlar stone for a lock on the Ohio River at $10 per cubic yard. By a supplemental contract it is agreed that the contractor shall furnish some additional special stone at $20 per cubic yard. Payment is refused because the supplemental contract does not comply with certain instructions of the Chief of Engineers. (But these instructions were not issued until after the supplemental contract was made.) The contract provides that *“stiffleient tests”*of material *"will*be *made at the expense of the contractor.”*The defendants’ officers employ experts to make the tests, and deduct the cost from money due the contractor..

I. Instructions issued by the Chief of Engineers as to the requirements of supplemental contracts can not affect a supplemental contract previously made.

II. Where a contract provides that *“sufficient tests”*of material “ *will*be *made at the expense of the contractor to satisfy the engineer that all material used is up to the requirements,”*the engineer may employ an expert to make the tests and charge the cost of such service to the contractor.

*The Reporters'*statement of the case:

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

I. The petitioners are all residents and citizens of the United States and have been duly appointed trustees in bankruptcy of the Evansville Contract Company, and have duly qualified as such and are acting and suing in this case in that capacity.

II. Heretofore and in the year 1898, John G. Eigenmann, Archibald Hollerbach, William Eichel, and Jacob Arnold, as partners doing business under the firm name of Eigen-mann & Hollerbach, and William Eichel and Jacob Arnold, as partners under the firm name of Eichel & Arnold, entered into a contract in writing with the United States for the doing of certain work and furnishing certain materials in *316the construction of Locks Nos. 2, 3, 4, and 5 in the Ohio River between Pittsburg and Rochester, Pa.; subsequently thereto the said partnerships and their business, including said contract and the supplemental contract hereinafter mentioned, were duly assigned to and taken over by the Evansville Contract Company with the consent and approval of the United States. Pursuant to said contract and the supplemental contract hereinafter mentioned said Evansville Contract Company completed the construction of said locks.

III. Said contract provided for the sums which should be paid for various kinds of stone to be used in the construction of said locks. As the work in such construction progressed the officers of the United States in charge of the same required said company to furnish a certain quality of stone called “ special,” not provided for in said contract, whereupon, August 24,1900, a contract, supplemental to the first contract, was entered into between the parties first mentioned and the United States, by the terms of which it was agreed that the United States should pay $10 per cubic yard in addition to the price of $10 per cubic yard provided for in said contract to be paid for stone under the classification of ashlar masonry, for so much of said “ special ” stone as would be required in the construction of said locks. In such construction said Evansville Contract Company was required to use 1,740 cubic yards of said “ special ” stone and only received additional pay for 1,582.45 cubic yards, leaving 157.55 cubic yards of said “ special ” stone for which said Evansville Contract Company has never received such additional pay of $10 per cubic yard from the defendants, amounting to $1,575.50.

IY. By the terms of said contract the said Evansville Contract Company was entitled to receive the sum of $10 per cubic yard for all of the ashlar stone required in the construction of said locks, and said Evansville Contract Company in such construction was required to furnish 198 cubic yards of such ashlar stone for which it has never been paid, amounting to $1,980.

V. The evidence in this case does not satisfy the court that the United States engineer officers in charge of the work ever *317made any measurements or decision contrary to the facts as herein found.

VI. The said contract contained the following provisions relating to tests to be made and the materials used in the construction of said locks:

“ 116. *Tests of all material.*— Sufficient tests will be made at the expense of the contractor to satisfy the engineer that all material used is up to the requirements.

“ 117. *Inspection.*— Inspection of the work will be made as it progresses, and at as early a period as the nature of the work permits.

“ 122. *Tensile strength.*— It must have a tensile strength of not less than 20,000 pounds per square inch. The contractor will furnish tensile bars for testing the iron used in the cast-iron work. These bars, not to exceed four (4) for each charge, will be attached to parts made from this charge, and will be removed only by the engineer. These bars will be tested by the engineer and all expenses of turning, fitting, and otherwise preparing them, and making the tests will be at the charge of the contractor.

“ 127. *Samples for testing.*— In the larger members one sample for testing may be taken at random from one of twenty bars. This piece will be turned down to a uniform sectional area of not less than *\*square inch and a length of not less than 8 inches; samples from smaller members must show an ultimate strength of 50,000 pounds to the square inch, and a minimum elongation of 15 per cent in 8 inches; unless specimens shall give the required strength and elasticity the entire lot may be rejected.

“ 137. *Test specimens.*— Specimens from finished material for tests, cut to sizes specified above, shall have an ultimate strength of from 56,000 to 64,000 pounds per square inch; elastic limit one-half the ultimate; minimum elongation of 24 per cent in 8 inches; minimum reduction of area at fracture 45 per cent. This grade of steel to bend cold 180 degrees flat on itself without sign of fracture on the outside of the bent portion.

“ 139. *Phosphorus.*— All steel shall be made from uniform stock low in phosphorus, and the manufacturer shall furnish reports of the analysis of every melt certified by a chemist satisfactory to the engineer.

“ 140. *Facilities for inspection.*— All facilities for inspection of the materials and workmanship shall be furnished by the contractor. He shall furnish without charge such specimens of iron or steel to be used as may be required to determine their character.

*318“ 141. *Testing machine.*— The contractor must furnish the use of a testing machine capable of testing the above specimens at the mills where the iron or steel may be manufactured free of cost.”

The contractor in due time furnished the defendants facilities for the inspection of the materials and workmanship employed in the construction of said locks, and also furnished without charge specimens of iron and steel to be used in such inspection. For the purpose of making tests of such materials the defendants employed some experts known as the Pittsburg Testing Laboratory at an expense of $505.73, which expense the said Evansville Contract Company was required to pay and did pay under protest.

*Mr. L. T. Michener*for the claimant. *Dudley cía Michener*were on the brief.

*Mr. A. O.*Campbell, with whom was *Mr. Assistant Attorney-General John Q.*Thompson, for the defendants.

Barney, J.,

delivered the opinion of the court:

This suit arises out of contracts for the construction of locks in the Ohio River, between Pittsburg and Rochester, in the State of Pennsylvania, entered into between the defendants and parties who afterwards assigned the same to the Evansville Contract Company, which is now in bankruptcy, and of which the claimants are trustees.

The aggregate amount claimed is $4,581.23, and is made up of the following items, viz: $2,095.50 for 209.55 cubic yards of “ special ” stone alleged to have been used in the construction of said locks, $1,980 for 198 cubic yards of “ashlar” stone used for that purpose, and $505.73 which was paid by the contractors under protest to a party employed by the defendants to make certain tests of the quality of the materials entering into the construction of the locks.

The original contract provided for the payment of $10 per cubic yard for ashlar stone used in the construction of the locks, and a supplemental contract entered into between the parties provided for the payment of $10 per cubic yard in addition to this sum for such “special” stone so used; and the first item of the claim is based upon this supplemental *319contract. The second item is for 198 cubic yards of ashlar furnished under the original contract, and for which it is claimed no payment has ever been made. As to these items it is sufficient to say that the uncontradicted evidence shows that the contractors never were paid this additional sum for 157.55 cubic yards of special stone furnished by them, and never received any payment whatever for 198 cubic yards of ashlar stone which was used in this work.

It appears that payment for a large part of the special stone above mentioned was refused for the following reason: The supplemental contract provided for the furnishing of 480 cubic yards “ more or less ” for each of the locks, and was executed December 7,1897. Instructions were issued by the Engineering Department under date of September 24, 1898, requiring supplemental contracts in all cases where the increase or decrease of materials furnished should exceed 10 per cent of the amount provided for in the original contract. Notwithstanding the fact that the Comptroller of the Treasury had decided that these instructions were not applicable to the contract in question, for the reason that the contractual rights of the parties were fixed by the contract before these instructions were effective (7 Comp. Dec., 350, 355), payment appears to have been refused for more than 10 per cent in excess of the 480 cubic yards “ more or less ” of special stone provided for in the supplemental contract for each one of the locks mentioned. We think the ruling of the Comptroller of the Treasury was right and that the contractors were entitled to receive payment for all of the special stone which they were required to use in the construction of the locks.

The contracts in question contained the usual provision that “the decision of the United States engineer officer in charge of the work shall be final and conclusive upon all matters relating to the work, and upon all questions arising out of these specifications, and from his decision there shall be no appeal.” Upon this subject it is sufficient to say that we have searched in vain to find in the record any finding or decision of the engineer officer in charge which can be said to contradict the evidence, both direct and circumstan*320tial, of the contractors that the stone, for which no payment has been made, as stated, was furnished.

It is the contention of the claimants that they should recover the sum of $505.73 paid under protest by the contractors for inspection of materials furnished. This question involves a construction of that part of the contract relating to the subject of inspection of materials which is quoted in full in the findings, as well as the provision therein contained as to the decision of the engineer in charge and its finality, which has already been quoted in this opinion.

The contract provided that “ Sufficient tests [of materials] will be made at the expense of the contractor to satisfy the engineer that all material is up to the requirements.” This provision fairly implies that some expense may be incurred in making these tests, and, taken in connection with the other provisions mentioned, that the engineer in charge of the work is to decide as to the kind of tests to be made and the manner of making them. It is unnecessary to cite authorities to the point that, when properly exercised, such decision is final. We agree with the Comptroller that this cost of inspection was properly chargeable to the contractors.

Judgment will be entered for the claimants in the sum of $3,555.50.