#### THE NEW JERSEY FOUNDRY AND MACHINE COMPANY v. THE UNITED STATES.

[No. 24673.

Decided November 1, 1909.]

*On the Proofs.*

The contractor is prevented from completing his work within the agreed time and receives an extension of time from the engineer in charge, with the approval of the Chief of Engineers. On the final settlement of his accounts he is charged with’ the cost of superintendence and inspection during the extended period.

I. Where the specifications provide that if the time for the completion of the contract be extended *“all expenses for inspection and superintendence during the period of extension shall he deducted from payments due to- the contractor,”*and the contract provides that if additional time he allowed for the completion of the work, where the delay was caused “ *hy no fault of*” the contractor, such allowance “ *shall in no manner affect the rights or obligations of the parties hut the same shall subsist, talce effect, and be enforceable precisely as if the new date for such completion had been the date originally agreed upon,"*an extension of time is not a waiver of all expense to the defendants resulting therefrom if the delay was caused by defaults on the part of the claimant or his subcontractors and by strikes and difficulty in securing workmen.

*571II. Where' there is an inconsistency between the provisions of the specifications and the provisions of the contract the positive language of the contract should prevail; but all parts of a contract must be construed, if possible, in such a way as to give force and validity to all.

*The Reporters’*statement of the case:

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

I. The claimant company herein is a corporation organized under the laws of the State of New Jersey, having an office for 'the transaction of its business in the city and State of New York.

II. On February 14,1901, the United States, through Maj. John Millis, Corps of Engineers, entered into a contract with the claimant company in writing in conformity with the advertisement and specifications attached to and made a part of said contract, which contract is made a part of the petition herein, by which, among other things, it was agreed that the claimant should construct and erect four observation towers at Forts Flagler and Worden, State of Washington, for the consideration of $2,575 fpr each completed tower, payments for which were to be made as provided in paragraph 33 of the specifications, as follows:

“ First. Thirty per cent of contract price upon completion of foundations and arrival of all metal work upon the ground.

“ Second. Thirty per cent of contract price upon completion of all metal work.

“ Third. Remainder of contract price upon final completion of work and acceptance by the engineer officer in charge.”

III. The contract, among other things, contained the following provisions:

Paragraph 4 concludes with this language:

“ * * * Provided, however, That if the party (or parties) of the second part shall by epidemics, freshets, ice, local or state quarantine restrictions, force or violence of elements, or other unavoidable cause of delay, and by no fault of his or their own, be prevented either from commencing or completing the work, or delivering the materials at the time agreed upon in this contract, such additional time may, with *572the prior sanction of the Chief of Engineers, be allowed him or them, in writing, for such commencement or completion as, in the judgment of the party of the first part, or his successor, shall be just and reasonable; * ***

Paragraph 5:

“ It is further expressly understood and agreed that in case of failure on the part of the party of the second part to complete this contract as specified and agreed upon, the said United States shall have the right to recover from the party of the second part all cost of inspection and superintendence incurred by the said United States during the period of delay, and also whatever sums may be expended by the party of the first part in completing the said contract in excess of the price herein stipulated to be paid to the party of the second part for completing the same. * *

Specification 34, made a part of the contract, is as follows:

*“*34. 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 deducted 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 local or state quarantine restrictions, freshets, ice, or other force or violence of the elements, allow the contractor additional time in Avriting, 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: * *

IY. By the provisions of the contract the claimant was to commence Avork within ninety days after the date of notification of the approval of the contract by the Chief of Engineers, and should complete the same within seven months from the date of such notification. The claimant was so notified March 25, 1901, of the approval of said contract by the Chief of Engineers, U. S. Army, and by the terms of the contract the work was to have been completed on or before October 25,1901. The Avork Avas not completed, however, Avithin the time named because of defaults on the part of subcontractors to whom the claimant had sublet certain *573parts of the work and on account of strikes and difficulty in securing carpenters and by reason of defects in some of the ironwork, which had to be corrected, by reason of which delays so caused the claimant on October 19, 1901, asked for and obtained, with the consent of the Chief of Engineers, an extension for a reasonable time within which to complete said work, and said work was finally completed June 8,1902, and accepted by the United States.

The expense of inspection and superintendence during said period of extension ivas $500, but instead of making said deduction and paying the claimant the balance due, the defendants deducted the sum of $1,910.02, or $1,410.02 in excess of the actual expense of inspection, to which the claimant objected. -

‘Thereafter the defendants paid the claimant by Treasury check the sum of $80.47, the balance claimed by them to' be due, leaving $1,829.55 as the amount actually deducted for the expense of inspection. The claimant accepted said sum of $80.47 under protest, reserving all rights. The amount due the claimant, less the sum of $500, the actual cost of inspection, is $1,329.55.

' *Mr. L. P. Miehener*for the claimant. *Dudley di Miehener*were on the brief.

Having granted additional time, and for “ a reasonable time,” and the work having been completed to the satisfaction of the government officials, they, when the time came to make final payment, claimed a deduction in the amount of $1,910.02 for cost of inspection in the “ time for completion of contract from October 25, 1901, to June 8, 1902.”

Claimant objected to such deductions so far as they exceeded the sum of $350, and continued such objections down to and including the receipt of a check for $80.47, which the government officials held was the actual amount due claimant, after the corrected deduction of $1,829.55 had been made, on account of costs of inspection. The claimant wrote across the check for $80.47 these words: “Accepted under protest, reserving all rights.” Thereupon the claimant signed its name under that indorsement and, in due course of business, *574the money was received. In this way the claimant objected and protested from the beginning to the end of this controversy, and then brought its action in this court.

*Th&■ proviso*to paragraph 4 has given to the Government the power to grant additional time, and it preserved to the parties the terms of the agreement in case such additional time should be granted, as was held in the *Mundy*case, just “ as if the new date for such commencement or completion had been the date originally herein agreed upon.”

The contract, then, is to be interpreted and enforced as if it had been written therein that the work should be completed “ within a reasonable time from October 31, 1901,” and paragraph 5 of the contract is to be interpreted as if the above-quoted language were in paragraph 4. Being so interpreted, it follows conclusively that the cost of inspection could only be charged against the contractor in case the performance of the contract should be delayed beyond “ a reasonable time from October 31, 1901.”

There is no such pretense, in theory or in fact, in the case at bar. *There was no delay beyond a reasonable time after October 31,1901.*

Concerning specification 34, we say that it is plainly and unequivocally in conflict with paragraph 5 of the contract. They relate to the same subject-matter — the granting of additional time and the consequences thereof. They are in conflict, both in scope and in detail. So hopelessly are they in conflict that they can not be considered together, and in that way made to form parts of a harmonious whole. Being in conflict in that Avay, one must stand and the other must fall. Which shall stand ?

The specifications were sent out to the contracting public with the advertisement December 12, 1900. The contract was written and signed February 14, 1901. The contract must be held to be not only the latest exposition of the agreement of the parties, but the instrument of controlling influence in all matters about which there is a divergence or a conflict between it and the specifications. As was said by this court in *Harvey's case (8*C. Cls., 501, 506) : “ Outside of the statute, and of general principles, the written contract *575is the last and most deliberate act of the parties, and must be looked upon as the consummation of all previous negotiations, .and the exact expression of the parties’ final purpose.”

Of course this is but a statement of a rule often expressed in the opinions of this court and others. It is true that the contract makes the specifications parts of it, but that stipulation does not make the specifications control the contract where there is a divergence or conflict between the two instruments, or parts of them.

A building contract provided a mode of determining what should be extras, and the specifications, which were made parts of the contract, provided a different and inconsistent mode of determining extras, and it was held that the contract should prevail. *{Meyer'*v. Berlandi, 53 Minn., 59.)

The contract required the work to be completed “ without unnecessary delay as soon as ordered,” and the specifications which formed parts of the contract required the work to be completed “ within three months from the date of the contract.” The court held that the- date of the completion must •be determined by the contract. *{Boteler*v. *Hoy,*40 Mo. App., 234.)

The contract contained a guaranty as to the capacity or service of the works, and the court held that it could not be controlled by specifications containing statements as to distance, dimensions, etc. *{Eagle Iron Works*v. *Guthrie Center*(Iowa), 66 N. W. Rep., 81.)

These authorities, and many others that might be cited, establish the soundness of our view that the whole subject of the deduction of the cost of inspection is covered by paragraph 5 of the contract, and that as no delay has occurred within “ a reasonable time from October 31, 1901,” and as the work was completed within a reasonable time from that date, the Government had no legal right to make the deductions that the complainant is here complaining of.

But we are not obliged to stand on the propositions of law above advanced. There are other reasons in law for condemning the deduction made by the government officials.

The contract gives the Government the right to deduct “ all cost of inspection and superintendence-incurred by the *576United States during the period of delay.” As there is no pretense that there were any costs of superintendence, the Government in fact was limited to the deduction of “ cost of *inspection.'1'1*This language can only mean that the Government had the power to deduct the cost *actually incurred*of inspection, but did not have the right to deduct *any more than such actual cost.*It is plain that *“ all cost of inspection*” can only mean the costs actually incurred in the inspection. It would be monstrous to hold that to the cost actually incurred there could be added other costs, and yet that is the very thing which the Government did.

In idew of the most remarkable character of the items which make up the amount of the deduction, we are tempted to use severe language of the officers who made it. That their conduct was deliberate can not be denied. That it is defensible we do not believe will be asserted. It was so clearly and radically wrong that no officer of the United States has gone on the witness stand to palliate or defend it.

*Mr. Franklin W. Collins*(with whom ivas *Mr. Assistant Attorney-General John Q.*Thompson) for the defendants.

Has the claimant company brought itself, so far as the causes for delay are concerned, within the provisions of paragraph 4 of the contract ? This inquiry must be answered in the negative, for the delays are not shown to have been attributable either to “ epidemics, freshets, ice, local or state quarantine restrictions, force or violence of elements, or other unavoidable cause of delay, and of no fault of his or their own.”

It has been urged that the claimant company is without fault in the premises, for the reason that they sublet the contract for the getting out of the materials necessary for the completion of the work in question to various manufacturing establishments, Avhich failed to complete the work and furnish the materials Avithin the required time, owing to alleged labor disturbances and othenvise. It is submitted, hoAvever, that this shifting of responsibility should have no weight with the court. The Government had the right to assume when it entered into the contract with the claimant company

*577that it had a plant and was fully equipped to carry out the work in question without subletting the contract or any portion thereof. It was the business of the claimant company, in the event .they did sublet the contract, or any portion thereof, to other parties, to have indemnified themselves against loss or damage in connection with the failure of their subcontractors to complete the work called for within the contract time; and if they did not, the Government is not responsible in any way for such neglect, and the claimant-company should not be permitted to escape responsibility by pleading the laches of others. .

As was said by the court in the case of Satterlee, *adminis*tratrix, *et*al., v. *United States*(30 C. C. R., 51), “ If the law casts a duty upon a party, the performance will be excused if by the act of God it become impossible; but if a party engages to do something and fails to provide against contingencies, the nonperformance is not excused by a contingency not foreseen and which by its consequences increases the cost and difficulty of performance;” citing Chitty on Contracts, page 272; 7 Mass., 325; 13 Mass., 92; *Chicago R. R. Co.*v. Sawyer, 69 Ill., 285; Amer. Repts., 613.

There is nothing in that case to support the position taken by the claimant’s counsel that the extension of the contract as stated in the letter of extension, “ within a reasonable time from October 31, 1901,” in any way absolved the claimant company from its obligation thereunder to pay additional expense of inspection and superintendence during the period of delay.

Here a reasonable time was granted the contractor to complete the work after the expiration of the contract, but this was expressly granted subject to the provisions .of paragraph 34 of the specifications.

The terms of a contract are not meaningless, and they should not be so considered or construed by the courts. They should be enforced according to their obvious meaning.

There has been a marked tendency of late on the part of the highest court to hold the parties to the provisions of their *578contracts as solemnly entered into by them, and not to permit sympathy, however praiseworthy that sentiment may be, to sweep away the stipulations on which the parties agreed to stand and must stand. *(United States*v. *Bethlehem Steel Company,*205 U. S., 105; also *Wm. Gram/p & Sons Ship and Engine Building Company*ease, recently decided by the Supreme Court.)

If the contract is objectionable and unsatisfactory to the contractor, he should refuse to sign it. Having- signed it, in the absence of fraud or duress, he should not be permitted to escape or evade its provisions on the score of hardship and sympathy. In making his bid it is to be presumed that the contractor took into consideration all the provisions of the contract, including the one of which it now complains, and bid accordingly. If it did not, it is not the Government’s fault.

Barney, J.,

delivered the opinion of the court:

On the 14th day of February, 1901, the claimant entered into a contract with the defendants for the construction of four observation towers, three at Fort Flagler and one at Fort Worden, in the State of Washington. By the terms of the contract the claimant was to commence work within ninety days of notification of the approval of the contract by the Chief of Engineers of the United States Army and complete the towers within seven months from the date of such notification.

The contract, among other things, contains the following provisions:

Paragraph 4 concludes with this language:

> “Provided, however, That if the party (or j>arties) of the second part shall by epidemics, freshets, ice, local or state quarantine restrictions, force of violence of elements, or other unavoidable cause of delay, and by no default of his or their own, be prevented either from commencing- or completing the work, or delivering the materials at the time agreed upon in this contract, such additional time may, with the prior sanction of the Chief of Engineers, be allowed him or them, in *579writing, for such commencement or completion as, in the judgment of the party of the first part, or his successor, shall be just and reasonable; * *

Paragraph 5:

> “ It is further expressly understood and agreed that in case of failure on the part of the party of the second part to complete this contract as specified and agreed upon, the said United States shall have the right to recover from the party of the second part all cost of inspection and superintendence incurred by the said United States during the period of delay, and also whatever sums may be expended by the party of the first part in completing the said contract in excess of the price herein stipulated to be paid to the party of the second part for completing the same. * *

Specification 34, which is made a part of the contract, is as follows:

> “ 34. Should the time for the completion of the contract be extended, all expenses for inspection and superintendence during the period of extension, the same to be determined by the engineer officer in charge, shall be deducted from payments due or to' become due to the contractor: Provided, hotcever, That if the party of the first part shall, in the exercise of his discretion, because of local or state quarantine restrictions, freshets, ice, or other force or violence of the elements, allow the contractor additional time in writing, as provided for in the form of the contract, there shall be no deduction for the expenses for inspection and superintendence for such additional time so allowed: * *

The claimant was notified of the approval of the contract on the 25th day of March, 1901, thus becoming obligated to complete the work under the same on or before October 25, 1901. The work, however, was not completed within this time, owing to difficulty in obtaining material from subcontractors and defects in some of the ironwork which had to be corrected. For this reason the,claimant asked for and obtained, with the consent of the Chief of Engineers, an extension for a reasonable time within which to complete the work; and it was completed June 8, 1902, and accepted by the defendants.

*580It is contended by the claimant that no expenses for inspection and superintendence should be charged against it under the contract if the work was completed within a “ reasonable time ” after October 25,1901, the time for its completion having been thus extended as before stated. This contention is based upon the argument that paragraph 5 of the contract and paragraph 34 of the specifications, above quoted, are inconsistent, and for that reason the provision of the specifications should be disregarded. We 'are thus asked to consider the extension of time for the completion of the contract as a waiver of all expense to the- defendants resulting therefrom, and which would perhaps be true if no consideration was given to paragraph 34 of the specifications. It is doubtless true that where there is an inconsistency in the provisions of the contract and the provisions of the specification, the positive language of the contract should prevail *(Meyer*v. Berlandi, 53 Minn., 59); but it is equally well settled that all parts of a contract will be construed in such a way as to give force and validity to all of them, and to all the language used, when that is possible (2 *Parsons on*Contracts, 505). We see, however, no inconsistency whatever in the provisions of the contract quoted.

Paragraph 5 provides generally for the payment by the claimant of all additional costs and expenses of inspection and superintendence incurred by reason of delay on the part of the claimant in the completion of the contract; while the proviso of paragraph 4, taken in connection with specification 34, provides for cases where such extensions of time may be granted under circumstances relieving the claimant from the payment of such expenses. The findings do not show that the claimant has brought itself within this proviso, which enlarges but little, if any, the common law rule in that regard (2 *Parsons on*Contracts, 672; *Satterlee*v. *United*States, 30 C. Cls. R., 51) ; and we therefore hold that under the contract “ all expenses for inspection and superintendence ” during the period of extension mast be paid by the claimant.

*581The deductions made by the Government were about 19 per cent of the whole cost of the work and included many itenls which we do not think are properly chargeable as expenses for inspection and superintendence. Just what amount is properly chargeable is somewhat problematical, but we think the finding in that regard is fully justified by the evidence.

Judgment is therefore ordered for the claimant in the sum of $1,329.55.

Howry, J., was absent when this case was tried and took no part in its decision.