#### CHARLES ROSSER ET AL. v. THE UNITED STATES.

[No. 28067.

Decided February 13, 1911.]

*On the Proofs.*

A contractor is permitted to finish his work after the time stipulated in the contract. He does so, and the work is accepted. A part of the contract price is withheld. The defendants now allege damages caused by the contractor’s delay but fail in their proof of damages. They also charge the' contractor with the pay of an engineer during the period of delay. But it appears that the services of tiie engineer were necessary for the defendants, and continued after the work was done.

I. Where the defendants permitted contractors to complete the work after the stipulated time liniit had expired, and accepted the *193work, they can not charge the contractor with the wages of an engineer during the period of delay if his employment was a convenience to themselves and not a necessity attributable' to the contractor.

II.Where contractors are allowed to finish work after the time limit in the contract has expired, and they do so within a reasonable time, it is a waiver of the defendants’ right to complete the work at the cost of the contractor.

III. The waiver of a time limit fixed by a contract is a waiver of the right of forfeiture. But defendants may grant or refuse to grant an extension of time irrespective of damages resulting therefrom.

IV. In an action upon a contract, damages caused the defendants must be sustained by positive proof showing them to have been directly and approximately chargeable to some default of the contractor.

*The Reporters’*statement of the case:

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

I. The claimants, March 7, 1902, entered into the contract set forth in the petition. The contract called for the construction and erection of a steel tank and trestle and heater room at Fort H. G. Wright, Fishers Island, N. Y., the consideration therefor being $5,950. Sections II and IV of the contract provided as follows:

“Article II. That work on this contract shall commence on or before the fifteenth day of March, nineteen hundred and two, shall be carried forward with reasonable dispatch, and to be completed on or before the first day of August, nineteen hundred and two.

“Article IV. That in case of failure of said parties of the second part to comply with the stipulations of this contract according to the true intent and meaning thereof, then the party of the first part shall have the power to complete the work at the expense of the parties of the second part in such manner as the party of the first part shall deem best for the interests of the public service, either by day’s labor and open market purchase of the necessary material, or by contract, or both, and any excess of cost resulting from such failure shall be charged to the parties of the second part.”

II. The time of performance by claimants was properly extended by the Quartermaster General to January 1, 1903, *194and again extended by supplemental contract to April 1, 1903. The work was finally completed and accepted on July 25, 1903, by permission of the Quartermaster General’s Office, a formal extension covering the last period being refused because of the failure of the claimants to apply therefor before the expiration of the time limit fixed in the supplemental contract.

III. The amount stipulated by article 3 of the contract, $5,950, was paid the claimants, less the sum of $885 deducted on account of the salary of an engineer employed by the defendants from August 2,1902, to July 25,1903, at the rate of $75 per month. At the time of said deduction it appeared that the employment of said engineer was made necessary by claimants’ delay in finishing the work. Subsequent to the final completion of the work it was found that the services of said engineer were necessary despite claimants’ delay, and that the delays of claimants resulted in no damage to the defendants. The employment of said engineer was necessary and caused the United States no damage.

IV. The steel tank and trestle were accessories to a system of water mains being installed at the fort by an independent contractor for protection against fire and for other purposes. The laying of the mains had been completed before the tank and trestle and required pumping to keep them filled with water. It likewise required pumping to keep the tank filled subsequent to its completion. It appears that there were no quarters at the post or in the immediate vicinity for the post engineer, and because of the necessity for the constant presence of an engineer in case of fire the assistant charged to the claimants was employed.

CONCLUSION OE LAW.

Upon the foregoing findings of fact the court decides as a conclusion of law that the claimants are entitled to a judgment against the United States in the sum of eight hundred and eighty-five dollars ($885).

*Mr. George*A. *King*for the claimants. *Messrs'. George A.*and *William, B. King*were on the brief.

*Mr. P. M. Oox*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

*195Booth, J.,

delivered the opinion of the court:

The claimants, Bosser & Castoe, a partnership, entered into a written agreement with the defendants to construct a steel tank and trestle at Fort H. G. Wright, Fishers Island, N. Y. The sections of the contract involved in this suit relate to the stipulations as to time of completion. The claimants were unable to comply with these stipulations; asked for and received extensions, embodied in a supplemental contract which carried them forward from August 1, 1902, until April 1, 1903. The contract was dated March 7, 1902, and called for completion of the work on August 1, 1902, which, notwithstanding the extensions authorized, was not completed until July 25, 1903. The defendants permitted contractors to proceed to the completion of the work subsequent to the time limit expressed in the supplemental contract, accepted the same, and paid the contract price, less a reduction of $885 charged against the contractors on account of the employment of an extra engineer. The circumstances attending the employment of the extra engineer clearly indicate that the same was, if not a necessity, at least a convenience for the defendants. We think it a necessity in nowise attributable to the claimants. The tank and trestle constructed by claimants were part of a new waterworks system being installed at the post. The Avork other than tank and trestle was being done by another contractor. This work was completed in advance of the tank, and it became necessary to keep the mains so laid fully supplied with water for fire and other protection. It was just as necessary after the completion of the tank to keep it full of water by pumping, as the water from the tank, elevated as it was, supplied the water to the mains. No doubt some additional pumping ivas required, but the services of the engineer were just as indispensable in one case as the other. The extra assistance rendered the engineer was due to the necessities of the case and the fact that the post engineer was unable to get quarters at or near the station of his employment. The relief obtained by the employment of the assistant engineer inured to the benefit of the post engineer, as Avell as for proper fire *196protection to defendants’ property. In fact, his employment is still continued. The record fails to disclose any damage to the defendants.

The contract contained no provisions for penalties or liquidated damages in event-of failure to complete the work within the contract period. There was a provision authorizing the defendants to complete the work at the expense of the contractors in case of failure upon their part to fully execute the contract. This provision was, however, waived, and the claimants within a reasonable time completed the work with the full knowledge and permission of the defendants, and their work was accepted by proper authority. Claimants do not contend that defendants could not under the law recoup in this action any damages occasioned the defendants. The waiver of the time limit fixed in the contract was a waiver of the right of forfeiture. Defendants had a right to grant or to refuse to grant an extension of time, irrespective of damages resulting therefrom. *(Page on*Contracts, vol. 3, p. 2317 et seq.; *Phillips*v. Seymour, 91 U. S., 646.)

Defendants’ contention respecting this issue is entirely sound. If the proof in the record disclosed resulting damages to the defendants because of the failure to strictly perform the contract the petition would be dismissed. Defendants’ case fails not upon the proper construction of the law but upon the facts. Having permitted the contractor to proceed to completion the work in hand, and having accepted the completed work under the contract, whatever deductions by way of damages made from the consideration expressly agreed to be paid must be sustained by positive proof showing the same to have been directly and proximately chargeable to some default upon claimants’ part. *(Page on*Contracts, *supra.)*

The evidence in the record consists entirely of official letters, communications, orders, and reports, competent as held in *United States*v. *McCoy*(193 U. *S.,*593). The findings of the court are predicated thereon.

Judgment is awarded the claimants in the sum of $885. It is so ordered.