#### J. HAMPTON MOORE, RECEIVER, v. THE UNITED STATES.

[No. 27477.

Decided January 16, 1910.]

*On the Proofs.*

This suit grows out of tlie construction of a dry dock in the harbor of Boston. It is conceded by the defendants that the work was well done. The damages for which a recovery is sought arose out of delays caused by the engineers’ faulty directions during the period of construction, by changes in the plans, and by changes in the construction. The principal legal question in the case is: What is the responsibility of the Government where the engineer in charge directs work to be done in a manner which proves defective and causes great loss to the contractor and where the exercise of ordinary skill would have foreseen the defect?

I. Where contractors objected to a plan for a cofferdam, which had been ordered by the engineer in charge, and followed it only because they were required to do so, and the plan contained defects which caused breaks in the dam, defects which the exercise of ordinary care and skill might have foreseen, the damage caused by the breaks is chargeable to the defendants.

II. In construing a contract it can not be supposed that the contractors agreed to bear losses which might occur by reason of defects in a plan imposed on them against their objections, defects which might have been foreseen by the exercise of ordinary care and skill. The cases relating to the power and finality of the orders of an engineer or architect reviewed.,

*140III. Where the defendants’ officers, contrary to the intent of the contract, neglected to furnish the contractors with a place on which they could dump building stone for inspection, and neglected to inspect the stone within a reasonable time, the defendants are liable for whatever damages were thereby caused to the contractors.

IV. Where both parties contributed to delays and mishaps and the contractors did all in their power to retrieve the situation after each disaster a court may apportion the damages between them. Cases cited.

*The Reporters'*statement of the case:

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

PRELIMINARY.

On the 14th day of March, in the year 1899, John J. O’Brien and John 0. Sheehan, copartners in business under the firm name of O’Brien *&*Sheehan, of the city of New York, in the State of New York, entered into a contract with the United States for the construction of a dry dock at the navy yard at Boston, in the State of Massachusetts, a copy of which, with the specifications forming- a part thereof, are annexed to the amended petition as Exhibits A and B, respectively.

With the contract a bond was executed by said O’Brien & Sheehan as principals and the City Trust, Safe Deposit and Surety Company of Philadelphia, a corporation duly organized and existing under the laws of the State of Pennsylvania, as surety, conditioned for the faithful performance of said contract, a copy of which bond is annexed to the amended petition as Exhibit C.

At the beginning of the work under- the contract, Civil Engineer Frank O. Maxson, United States Navy, was designated as Engineer officer in charge for the United States. He so remained until the 10th day of August, 1901, when he ivas detached and was, on the 17th of August, 1901, succeeded by Civil Engineer Richard C. Hollyday, United States Navy, who remained as such until the 17th day of January, 1903, when he was detached and was succeeded on the 27th day of January, 1903, by Civil Engineer Charles W. Parks, United States Navy, who so remained until the 23d day of July, 1905, when he was succeeded by Civil Engi*141neer Fred Thompson, United States Navy, who was the Engineer officer in charge for the United States at the final acceptance of the work.

Said O’Brien & Sheehan proceeded in the performance of the work required by said contract. The particulars as to such performance, so far as material to the issues involved in this case, are set forth in subsequent paragraphs of these findings.

On the 10th day of July, in the year 1902, said O’Brien *6*Sheehan entered into an agreement with the City Trust, Safe Deposit and Surety Company of Philadelphia, a copy of which is annexed to the amended petition as Exhibit D. On the 30th day of August, in the year 1902, an agreement was entered into between the said O’Brien *&*Sheehan, the City Trust, Safe Deposit and Surety Company of Philadelphia, and the United States, represented by the Chief of the Bureau of Yards and Docks of the Navy Department, a copy of which agreement is annexed to the amended petition as Exhibit E. At the time of making this agreement the claims stated in paragraphs 1 to 9 of the amended petition as well as a claim arising from delay had been presented to the Navy Department, and the officers of the City Trust, Safe Deposit and Surety Company were aware of the existence and presentation of such claims.

Under the agreements of July 10 and August 30,1902, the City Trust, Safe Deposit and Surety Company of Philadelphia took charge as contractor of the work being done and to be done on account of the original contract for the construction of the dry dock and carried the same forward to completion, and was recognized by the authorities of the United States as the contractor for the same. Said company received from time to time payment of the monthly estimates accruing after it took charge of the work, less a reservation of 10 per cent therefrom.

The Bureau of Yards and Docks from time to time ordered various modifications of the work, for which supplemental agreements were made in the manner provided by paragraph 7 of the original contract. The supplemental agreements so made, with the amounts added to or. deducted from the total compensation to be paid, were as follows, said supplemental *142agreements being designated by letters of the alphabet, those marked *“A*” and *“B*” being with O’Brien *&*Sheehan, the original contractors; the one entitled “<7” being the agreement by which the City Trust, Safe Deposit and Surety Company of Philadelphia took charge of the work; and the remaining ones, being with “Z>,” being with the City Trust, Safe Deposit and Surety Company of Philadelphia:

*A.*October 31, 1901: Change in location of culverts, substituting concrete for earth, compensation increased-! $3,742. 66

*B.*November 18, 1901: Diverting old sewer, compensation increased_ 3,321. 34

*G.*August 30, 1902: Transfer of contract from O’Brien & Sheehan to the City Trust, Safe Deposit and Surety Company of Philadelphia.

*D.*July 13, 1903: Change in pump well, pump house, etc., compensation increased_15, 041. 83

*E.*March 10, 1904: change in metal work, bilge blocks, and keel blocks, compensation increased_ 6, 328.94

*E.*March 28, 1904: Change of plan for pump well, compensation increased_ 895.00

<?. April 11, 1904: Reducing length of wing walls, compensation reduced_ 2,302.96

*E.*October 11, 1904: Cutting grooves around coping of pump house, compensation increased_ 54. 34

*I.*January 5, 1905: Cutting grooves in floor of pump house and on platform, compensation increased_ 54.23

*J.*May 17, 1905: Changes in railing in pump house, compensation increased_ 93.50

All of the work required by said original contract and agreements supplemental thereto has been done and the amount fixed thereby has been paid, with the exception of the retained 10 per cent.

In the course of the prosecution of said work the City Trust, Safe Deposit and Surety Company of Philadelphia expended large amounts of money. Prior to August 30, 1902, they had advanced to O’Brien & Sheehan, the original contractors, for the purpose of enabling them to carry on the work, $29,854.53. ' After that date, upon which they took charge as contractors, they expended over and above the amounts received by them upon the monthly partial payments, $312,010.72, making a total expended upon the work of $341,865.25 over and above what they have received on the monthly partial payments.

*143On the 24th clay of June, in the year 1905, the Court of Common Pleas No. 5 for the county of Philadelphia, in the State of Pennsylvania, made a decree in a case in said court in which the Commonwealth of Pennsylvania was plaintiff and the City Trust, Safe Deposit and Surety Company of Philadelphia was defendant, whereby said court ordered and decreed a dissolution of the City Trust, Safe Deposit and Surety Company of Philadelphia and the distribution of its effects, and appointed J. Plampton Moore permanent receiver of said company for the purpose of carrying said decree into effect, and required of said receiver a bond, which was duly given, and said J. Hampton Moore has ever since been and still is receiver of said company and has, upon motion, been substituted as claimant in this case.

The term “contractors” is hereinafter used to apply either to the original contractors or to said City Trust, Safe Deposit and Surety Company, or to all of them, as the time of the transaction may indicate.

COFFERDAM.

I. The Government engineer in charge of the work was one Frank O. Maxson, who graduated from the Sheffield Scientific School of Yale College in the course of engineer in 1872 and received the degree of civil engineer from Yale University in 1882. He was commissioned civil engineer in the Navy October 26, 1881, and has been continuously in said service since and had immediate charge of the construction of a variety of structures, such as yard buildings, officers’ quarters, sea walls, wharves, bridges, landings, power stations, drains, and walks, but at the time of the construction of the dry dock in question had had but little experience in the construction of cofferdams.

On April 15, 1899, Seth Perkins, on behalf of the contractors, through his assistant, George P. Cowan, submitted to Civil Engineer Maxson a plan for a cofferdam. There were a number of conversations between Mr. Perkins and Mr. McHale on the one hand and Civil Engineer Maxson on the other, and Mr. Maxson objected to this design of cofferdam as lacking in strength, and the plan was returned to the contractors. The second plan of cofferdam was submitted by the contractors on or about May 12,1899, and was similar *144in construction to tbe first, but showed greater detail. This plan was objected to by Civil Engineer Maxson by letter dated May 26, 1899, and returned to the contractors. Such a cofferdam as was contemplated by the first two plans submitted as above would have been insufficient to withstand the pressure of the water from the outside unless a fill of earth was made on the inside very much greater than was ■possible in view of the location of the dam. The contractors afterwards submitted several other tentative plans for the construction of a cofferdam to Civil Engineer Maxson, but they were disapproved and rejected by him. Subsequently, said Maxson suggested a different plan of his own for said cofferdam, the details of which were worked out by the contractors under the advice and approval of said Maxson; and the cofferdam was finally constructed by the contractors substantially according to said plan proposed, under the direction and approval of the Government engineer in charge. The contractors objected to the plan as proposed by Mr. Maxson, but never made any formal protest as to its use. During its construction three breaks occurred, the first two of which occurred because of defects in the plan suggested and directed to be used by said Civil Engineer Maxson, and these defects were such as the exercise of ordinary care and skill in the construction of cofferdams would have foreseen ; the third break was owing to causes which could not have been foreseen by either the contractors or the Government inspector in charge. The repairing of these first two breaks cost the contractors the sum of $27,821.08.

II. The several breaks in the cofferdam compelled the contractors to keep up the pumping plant and perform pumping in the excavation of the dry dock longer than they otherwise would have done. The first two breaks mentioned compelled the continuance of the pumping plant for 34 days longer than would have been necessary had said breaks not occurred, and the cost of said pumping was $37.20 per day, making $1,264.80 for 34 days.

CHANGE IN WORKING PLAN. _

III. In the specifications accompanying the advertisement for proposals three alternative propositions for con*145struction of the dock, pump house, and pump well are stated, entitled, respectively, items 1, 2, and 8, in addition to item 4, machinery. In the “ addenda ” to specifications added before the bids were received three further alternative propositions were stated, entitled, respectively, items 1A, 2A, and 3A. Accompanying said specifications and as a part of the plans were certain drawings, known as- cross sections, showing the dimensions of the dock and illustrating the character of the proposed structure. Cross section A illustrated the proposed construction under items 1 and 1A; and was of smaller dimensions than cross section B; cross section B illustrated the proposed construction under items 2 and 2A, and cross section C illustrated the proposed construction under items 3 and 3A.

O’Brien & Sheehan submitted a proposal on January 3, 1899, stating a price for the construction of the dry dock under each of these items. The proposals were opened on that date, and said firm was found to be the lowest bidder. But the lowest bid, when added to the cost of the machinery, exceeded the appropriation available for the construction of the dock.

Between January 31 and February 6, 1899, an interview took place between the Chief of the Bureau of Yards and Docks and John J. O’Brien, a member of the firm of O’Brien & Sheehan, and Seth Perkins, a civil engineer financially interested with O’Brien & Sheehan in the performance of the contract, in which ways and means of reducing the cost of the dock, so that it would be within the appropriation, were discussed. In accordance with said request, and for the purpose of providing for a change in the construction of said dry dock for the purpose of bringing its cost within the appropriation, the following correspondence took place between said O’Brien & Sheehan and the Chief of the Bureau of Yards and Docks:

“ WASHINGTON, D. C., *February 6, 1899.*

“ Com. M. T. Endicott,

“ *Chief of Bureau of Docks and Yards.*

i! Deae Sie : We have considered the question of substituting rubble stone bedded in the concrete backing of sec. B *146(modified by cutting) of the proposed dry dock at Boston, and submit the following propositions, namely:

“ We will construct the dry dock complete for the sum of one million twenty-three thousand four hundred dollars ($1,023,400) under item *2a*(modified by using such an amount of granite rubble as can be well bedded in the concrete backing) and

“ The machinery item (item 4) to be substantially as proposed by the Southwark Foundry & Machine Co., of Philadelphia.

“ Or, we will construct the dry dock as above stated, but not including item 4, for the sum of eight hundred eighty-three thousand four hundred dollars ($883,400).

“ Respectfully submitted.

“ O’BeieN & Sheehan.”

[Address Bureau of Yards and Docks, Navy Department, and refer to No. 1667-99.]

“DEPARTMENT OP THE *NaVY,*

“ Bureau op Yards and Docks,

*“*Washington, *D. G., February %8,1899.*

“Gentlemen: .The bureau addressed you, under date of the 8th instant, in its letter No. 940, informing jmu that it had decided to award to you the contract for the construction of the dry dock for the Boston Navy Yard under one of the items named in your proposal of the 31st of January, *1899,*but that it had not determined definitely which one of them it would be.

“ 2. The award for the machinery for this dry dock, under item 4 of the specifications, has been given to Farrell, Hopper *&*Company, at their bid of $130,000. Some modifications may be made in the plant, increasing the cost to a few thousand dollars, but it is so far determined that the bureau is now able to decide which of the bids made in your proposal will be accepted.

“ 3. Under date of the 6th instant, you addressed the bureau, after a conversation and a request from it for a proposal looking to the substitution of rubble stone for a portion of the concrete in the backing of the stone work. You therein offered to construct the dry dock complete for the sum of $1,023,400 under item 2A of the specifications, modified by using such an amount of granite rubble as could be well bedded in the concrete backing, the machinery (item 4) to be substantially as proposed by the Southwark Foundry and Machine Company, of Philadelphia. You also offered to construct the dry dock as above stated, but not including item 4, for the sum of $883,400, which latter sum *147is a deduction of $59,300 in item 2A on account of the use of granite rubble instead of concrete.

“4. The bureau accepts your proposal of January 31, 1899, in response to its formal advertisement for offers, for item 2A, at the price of $942,700, modified by your letter of the 6th instant, above referred to, for the sum of $883,400.

“ 5. A formal contract will be prepared to carry this award into effect.

“6. This acceptance of your bid included the formal proposition at the price of $15,000 for the pile foundation for the dry dock, as called for on page 3 of the specifications under the head of foundations, by which the total contract price is to be decreased in case the dock shall be founded without recourse to piling.

“Very respectfully, *

“ Moedecai T. ENDicott,

*“Chief of Bureau.*

*“*Messrs. O’Beien & Sheehan,

*“853*Broadway, *New York, N.*F.”

[O’Brien & Sheehan, contractors, No. 253 Broadway.]

“ New Yoeic, *March 4,1899.*

*“*Moedecai T. Endicott, Esq.,

*“Chief of Bureau of Yards and*Bocks,

Washington, *D. C.*

*“*Deae Sie: Your favor of February 28, in which you say that our proposal of January 31 for item 2A at the price $942,700, modified by our letter of 6th instant reducing our bid $59,300 in item 2A for the sum of $883,400, on account of use of granite rubble instead of concrete, is at hand. We also note in paragraph 6 our proposition at the price of $15,000 for pile foundation for the dry dock, as called for on page 3 of the specifications under the head of foundations, by which the total contract price is to be decreased in case the dock shall be founded without recourse to piling. In reply, we desire to say that the same is satisfactory to us, and if you will send form of contract we will have the same executed at once.

“Very respectfully, O’Beien & Sheehan.”

Prior to the signing of the contract, but subsequent to the correspondence above indicated, there was inserted in the specifications the following:

“ In the construction of the dry dock according to section ‘B,’ as shown in the plan forming a part of the contract, modified by the proposition of the contractors dated Febru*148ary C, 1899, attached to and forming a part of this contract, *and as illustrated in sheet lD*’ *of*drawings, all providing for bedding in the mass of concrete a quantity of granite rubble, the stone shall be of the best quality of granite, hard, sound, and of good shape for the purpose, and so proportioned and so disposed that no two stones shall be nearer to each other than nine (9) inches, and, further, that no stone shall approach the exterior limit of the mass of concrete at any point nearer than twelve (12) inches.

“Every stone shall be thoroughly and compactly bedded in the mass of concrete in such manner that the concrete shall come in close union with every part of the stone, and a good and strong bond shall be effected. The size, amount, and distribution of the granite rubble shall be to the entire satisfaction of the inspecting officers of the Government, and shall not exceed two-thirds of the total bulk of rubble and concrete.”

The sheet “ D ” of drawings, referred to in said provision, was prepared by the Bureau of Yards and Docks, and in preparing said sheet the Bureau of Yards and Docks made its tracings therefor over the lines of cross section A, attached to items 1 and 1A, and attached said sheet “ D ” to the contract. A copy of plan “ D ” was also annexed to the Annual Beport of the Chief of the Bureau of Yards and Docks, dated October 1, 1899. Before beginning work under the contract the contractors were furnished with the working plan upon their request, and in preparing said working plan, which was known as plan 155-X, the Bureau of Yards and Docks followed the dimensions shown in cross section “A,” as it had done in the preparation of sheet “ D.”

The contractors tacked said plan 155-X up in their office in the navy yard, near the work, and followed the same in conducting the work until some time in the month of January, 1901, when they were about ready to begin preparations for the final excavation — that is, the trimming of the dry-dock prism. The Engineer in charge then discovered the discrepancy between plans 155-X, otherwise cross section sheet “ D,” and plans 155-M, otherwise cross section “ B.” Immediately the said engineer called the attention of the Chief of the Bureau of Yards and Docks to said discrepancy and requested instructions as to which plan he should require the contractors to follow in the further construction *149of the dock. The Bureau of Yards and Docks promptly decided that the contractors had agreed to construct a dock of the dimensions shown on plan 155-M, otherwise cross-section “ B ” and that therefore they would be held to the requirements indicated thereon. The contractors were duly advised of this decision and promptly protested against the same, representing to the Bureau of Yards and Docks that all of the work up to that time, February, 1901, had been carried on in accordance with the requirements of plan 155-X, otherwise cross section sheet “ D,” and that all arrangements for further work had been based thereon. The Chief of the Bureau of Yards and Docks, however, adhered to this ruling.

If plan 155 M, otherwise cross section “ B,” was the plan required by the contract, the fact that plan 155-X, otherwise cross section “ D,” had been followed by them up to January, 1901, did not increase the amount of excavation and the amount of concrete, but it did make necessary the excavation of 4,926 yards by hand, instead of by the dredge, at an additional cost of $1.20 per cubic yard, or $5,911.20.

If plan 155 X, otherwise cross section “ D,” was the plan required by the contract, the entire cost of the additional excavation and concrete, includihg the excavating of the banks which fell in, amounted to $38,713.62.

SUBSTITUTION OE PLAN 15 5 L EOR GENERAL PLAN 155 D.

IY. There were annexed to the contract for said dry dock as part of the proposition under items 3 and 3«, a plan numbered 155 D, called the general plan, showing limestone invert bedded in concrete, and another plan 155 L, as part of the alternative design showing a granite lining and floor with concrete backing as included in the proposition under items 2 and *2a*of the specifications. 'The difference between said two plans is that plan 155 D shows a sharper rise at the head of the dock than plan 155 L, and called for 515 cubic yards less of excavation and the same amount less of concrete.

In the early stages of the work the contractors were instructed by the engineer in charge to use plan 155 D in laying out their work, and they continued to use such plan *150until about September, 1901, when they were required instead to follow plan 155 L and did so.

The fact that plan 155 D was followed by the contractors with respect to certain parts of the work did not in any way affect the amount of excavation and the amount of concrete which they had contracted to excavate and to furnish, but the 515 cubic yards additional excavation made necessary by the change to plan 155 L was of a more expensive character than if the change had not been made at such a late period. The additional cost of the excavation caused by such change was $1.20 per cubic yard, or $618.

ADDITIONAL DEPTH BELOAV MEAN HIGI-I WATER.

Y. It was provided in the specifications forming a part of the contract that said dry dock should hai^e a “ depth from coping to floor in body ” of 39 feet 2 inches, and a “ draft oA^er sill at mean high water ” of 30 feet. It was also specifically provided therein that “ the mean high water referred to herein is assumed to be 5 feet 2 inches below the coping of the granite dry dock.”

The contractors proceeded in the early part of their work on the view that the expression “ mean high water,” as used in the above-quoted specification, referred to the well-known datum plane for mean high water at the Boston Navy Yard, which, if marked on dry dock No. 1, the only “ granite dry dock ” then at said yard, would be 4.54 feet below the coping thereof. Acting upon this assumption, said contractors proposed to construct the dry dock in question so that the coping would be 5 feet 2 inches above said datum plane, which would leave, of course, 30 feet of water OA-er the sill at mean high water, as defined by said datum plane.

The question of the meaning and application of the terms of the contract above quoted was a part of the general controversy between the contractors and the Bureau of Yards and Docks with reference to the dimensions and general shape of the excavation stated in Findings V and VI. About the 24th of January, 1901, the contractors were advised by the Engineer in charge that they must construct the dock on the view that “ mean high water,” as used in the contract, Avas actually 5 feet 2 inches below the coping of dry dock No. *1511. The effect of this was that the excavation had to be carried 7-2- inches lower than it would have been if the “ mean high water ” referred to was 4.54 feet below the coping of the said dry dock No. 1. The result was that the dry dock when completed had 30 feet *7\*inches of water over the sill, reckoning from the established datum plane at said Boston Navy Yard; but assuming that said datum plane was 5 feet 2 inches below the coping of dry dock No. 1, there was a draft of 30 feet only over the sill of the new dry dock.

The excavation of said *7:!¡*inches of material was carried on by the contractors at the same time as the additional excavation required on account of the adherence to cross section B and plan 155 L, and the cost to the contractors for excavating said *7\*inches of material at the same time was no greater than it would have been if the contractors had from the beginning planned for said excavation.

INSPECTION 03? STONE.

YI. Soon after entering into the contract the contractors contracted with various parties to furnish them with the necessary stone for the completion of the dock, and about February 10, 1900, some of such stone began to arrive at the navy yard at Boston, and the contractors applied to the civil engineer in charge to have it inspected and passed upon, but he refused to do so on the ground that it was piled too high, and also because there was no Government inspector of stone on the work qualified to make such inspection. When the stone began to arrive as aforesaid sufficient space had not been allotted to the contractors for its storage, which made it necessary to pile the stone high and in the manner it. was so piled as aforesaid. The contractors repeatedly complained to the Government authorities in charge of the work and at Washington of this want of space to store such stone for inspection, as well as the neglect and refusal to inspect the same and to include it in monthly estimates. It was not -until July, 1901, that the contractors obtained a suitable and sufficient space for the storage of their stone, but by that time they had made space for themselves by filling and leveling the ground around the dock basin. Stone continued to arrive, and on July 19, 1901, claimants had 60 carloads of *152stone standing on the railroad tracks in Boston for the navy yard, awaiting the action of the Engineer in charge, they in the meantime urging him to inspect the same, which he neglected to do.

On August 10, 1901, Civil Engineer Maxson was detached from the work, and on August 17, 1901, Civil Engineer Hollyday assumed charge of the work, and by the 11th of September following had inspected nearly the whole of said stone, amounting to 1,549 cubic yards, 1,516 cubic yards of which were accepted and included in the estimate and payment for that month and 33 cubic yards in the voucher for the next month.

All of this stone, including some which had lain there from February, 1900, went into and became a part of the dock, except a small fracton thereof.

Owing to the failure of the Government to provide a sufficient space for the storage of said stone as it arrived, as well as the neglect and refusal of the Government engineer in charge of the work to inspect the same as found, the contractors were financially embarrassed because such stone was not included in the monthly estimates, and were prevented from incurring a large expense and extensive obligations in purchasing a large amount of stone without some assurance that it would be accepted by the Government, and for these reasons were compelled to give up some of the contracts which they had previously made for the supply of stone for the erection of the dock.

After the year 1899, when the contract was made, there was a steady rise in the wages of laborers engaged in quarrying and cutting granite, so that when the contractors had secured space to store such stone and the Government began to inspect the same, and at which time the contractors could reasonably renew their contracts for the delivery of stone, the cost of the same had largely increased over what it would have been had the same been supplied and inspected according to the terms of the contract, such increased cost being the sum of $61,975.68.

ATTACHING BILGE AND TCEET, BLOCKS.

VII. The specifications and drawings attached thereto do not show any means of attaching the keel and bilge block *153slides to the floor of tlie dock. When the time came to furnish and attach the bilge and keel block slides the Bureau of Yards and Docks decided to change the character of the fittings used in connection therewith, and entered into a supplemental agreement dated March 10, 1904, being the supplemental agreement E referred to in “ Preliminary ” finding.

During the discussion between the Bureau of Yards and Docks relative to the changes to be made as aforesaid it developed that the contractors did not regard themselves as obligated under the contract to attach the bilge and keel block slides, while the Bureau of Yards and Docks held that they were so obligated. The contractors protested against being required to furnish the material and perform the work necessary in attaching said slides to the floor of the dock, and in the supplemental contract entered into as aforesaid provision was made for fastening the slides, and the following was inserted in and made a part of said supplemental agreement:

“And this agreement further witnesseth, that whereas the party of the first part has objected, demurred, and refused to sign an agreement prepared as above set forth unless the party of the second part shall assent to a provision declaring that the said agreement shall not be construed as a release to the Government on the part of the party of the first part of any rights of action or remedies in respect of its claim that under the original contract for the construction of the dry dock, under which this agreement is made, it is not required to secure the keel blocks and bilge block slides to the dry-dock floor.

“And whereas the party of the second part is desirous of having this agreement executed and carried into effect at the earliest possible day and bring the delay to a conclusion, now, therefore, this agreement further witnesseth that the United States agrees that nothing contained in this agreement shall debar the said party of the first part from any rights of action or remedies in respect to the claims stated, if it, the party of the first part, now has any such rights, which the United States hereby expressly denies.”

Said keel and bilge block slides were attached'and secured to the floor of the dock as directed by the officers of the Bureau of Yards and Docks in accordance with the provi*154sions of the supplemental agreement of March 10, 1904, above referred to.

The cost of so attaching and securing them was $3,380.80.

EXTRA PUMPING.

VIII. The original contractors, O’Brien & Sheehan, made the excavation for the pump house and pump well as provided by the original specifications and contract. This work was commenced in December, 1900, and was completed shortly after the excavation for the bed of the dock was finished, and they commenced concreting in said'pump house and well and proceeded as far therewith as they could under the design as it then existed.

On October 16, 1901, the contractors were notified by the civil engineer in charge to suspend further work until the changes contemplated in the machinery and the location and form of the pump house and pump well should be finally determined, and plans and specifications therefor prepared. During the suspension of said work the excavation for the pump house and pump well was left open and caved and slid in.

The work on said pump house and pump well remained suspended until July 13, 1903, when the supplemental agreement of that date between the City Trust, Safe Deposit and Surety Company of Philadelphia and the United States was entered into, whereby material alterations were made in the form of the pump house and pump well, and thereafter said company proceeded diligently to construct the same in accordance with said agreement.

On or about March 1, 1904, the company was notified by the civil engineer in charge that the contractors for the machinery would soon be ready to install the pipes and that the wellhole for the pump should be ready to receive the underdrains and large pipe at the earliest possible moment. The company proceeded to comply with this request, and by March 21,1904, the entire work of preparing the foundations had been completed, but the machinery contractors were not ready to begin and the earth that had been excavated constantly washed and fell in. The machinery contractors did not begin the work on the underdrains and large pipes until *155April 10,1904, and same was not completed until May 3,1904. During the period from March‘21 to May 3, 1904, the contractor surety company, under directions from the Chief of the Bureau of Yards and Docks, was compelled to keep the wellhole and foundations of said pump and pump machinery free of water and other material. This work they did under protest, claiming that they were not required by their contract to keep the wellhole free from water during the delay caused by the machinery contractors.

By due diligence on the part of the machinery contractors the work of installation could have been begun March 28 and could have been finished by April 15, 1904.

The expense to the contractors for pumping, as aforesaid, from March 21 to April 10, 1904, was $512.77, and from April 10 to May 3, 1904, the expense of pumping was $815.26, making a total of $1,328.03.

MORTAR TOR PUMP HOUSE.

IN. Under the provision of the original contract with reference to the construction of the pump house and well it was provided, among other things, that—

“The walls of the substructure are to be of best hard burnt red brick laid shoved in best Portland cement mortar, except the inner ring, which is to be white glazed brick similarly laid.

“ The outer surface of wall is to be protected from moisture by a coat of asphaltum 1 inch in thickness, applied hot; when completed the inner surface of the wall must be and remain dry.

“Mortar inside and out to be of color and quality approved by the officer in charge, and all joints to be troweled smooth. The mortar for the work above the water table must be composed of 1 part lime and Portland cement in equal proportions and 2 parts of sand; the lime must be of the best quality afforded by the market in the vicinity of the work, freshly burnt, lump, and must be slaked in a tight wooden box at least ten days before being used.”

In the supplementary agreement of July 13,1903, changing the form of the pump house and well, the following provisions occur:

“Fifth. That in place of the pump well and method of waterproofing originally specified the contractor shall build *156a pump well of 40 feet internal diameter, located and constructed substantially aá shown on plans F-123, sheet 5, and F-123, sheet 6, hereto attached and forming a part hereof. The material and workmanship shall be the same as originally specified, except as modified by the above-noted plans and the following specifications. The granolithic finish of the floors shall consist of 1 part Portland cement to 1| parts coarse sand, or small granite chips, as directed, troweled to a first-class finish. The enameled-brick lining shall be laid in a workmanlike manner and tied to the walls by blind headers every fifth course. The waterproofing shall be located as shown, and shall consist of a first coating of asphalt dissolved in gasoline, as directed, followed by alternate layers of tarred paper and hot asphalt, six of each. The paper shall be equal to the Beaver brand, weighing 15 pounds per square, and shall be-pressed closely to the asphalt till all-air bubbles are excluded. The asphalt shall be refined Ber-mudez or Alcatraz, containing not less than 96 per cent bitumen soluble in carbon disulphide or chloroform. The outside brick retaining ring shall be built up closely following the waterproofing, in order to prevent slipping down of the latter. The dock contractor shall build into the walls of the well and culverts all the suction and discharge terminals of the pumping system,- as shown, and shall furnish the concrete foundations and supports for the rest of the piping and machinery, substantially as shown on plan F-123, sheet 5. All this machinery and piping is to be furnished and connected up by the machinery contractor, and the two contractors shall cooperate to secure the best and promptest installation of the whole pump-well plant as shown.

“ Sixth. That in place of the pump h-ouse originally specified the contractor shall build a pump house over the pump well above noted, substantially as shown on the plans F-123, sheet 5, and F-123, sheet 6, above noted. The material and workmanship shall be the same as originally specified, except as modified by the above-noted plans and the following specifications: The cornice, pilasters, and other trimmings shall be 6-cut granite, as shown. The brick shall be hard-burned red, sand or water struck, and the face brick shall be straight- and of an even color. Samples of the brick shall be submitted to the civil engineer in charge and approved by him before the laying commences. *They shall be laid in lime*mortar, *gauged with Portland*cement, *one fart cement to four farts lime*mortar, *the mortar colored red.*A 5-ton Yale & Towne triplex-block crane and trolley hoist with circular track and center support shall be installed, as shown. The chain shall reach to the floor below, and the trolley and block designed to give the most head room possi*157ble. The remaining parts of the pump house shall be constructed as shown and specified on the plans above noted and all finished in a first-class workmanlike manner, to the satisfaction of the civil engineer in charge.”

Sheet 6 of plan F-123, referred to in these paragraphs, entitled “Details of Pump House for Dry Dock No. 2,”' shows the substructure, and has a drawing of the brick retaining ring, on each side of which, about the middle of height of said ring, is the word “ Brick.” Opposite this word, twice written, is a note, as follows:

“ The brick is to be laid in lime mortar gauged with Portland cement in the proportion of four parts of lime mortar to one of Portland cement.”

The contractors began the construction of the retaining ring with lime mortar and Portland cement in the proportion of four parts of lime mortar to one of Portland cement, and had got it 6 or 7 feet high when they were stopped by the civil engineer in charge, who stated that it ought to be built entirely of Portland cement. The contractors objected to building it in Portland cement, on the ground that the contract required only lime mortar gauged with Portland cement in the proportion of four parts of lime mortar to one of Portland cement, but the Bureau of Yards and Docks decided against the contractors’ contention, and they appealed to the Secretary of the NaATy, who affirmed the action of the bureau. Thereupon the contractors tore out the work already done and laid the Avhole brick retaining ring in Portland cement, at a cost of $1,398.38, still insisting, hoAvever, that it was not required by the contract.

BREAK IN DISCHARGE CULVERT.

X. The discharge culvert connecting the dry dock proper with the pump well was built on a pile foundation, as required by the Government officers in charge of the work. The pump well was built on natural foundations. After the culvert had been completed and covered up a break occurred at the junction of the pump well and the discharge culvert, due to the uneven settlement of the foundations of the pump well and the discharge culvert outside of same, causing a leak at that point. The Engineer in charge *158required the contractor to uncover the work and repair the leak by re-laying the bottom and walls of the discharge culvert with concrete. The cost to the contractors for making said repairs was $1,299.57.

When different parts of a structure are built as above on different foundations, there is apt to be a break at the point where the part built on a foundation of one character connects with that built on a foundation of a different character.

DAMAGE BY DELAY.

XI. By the terms of the tripartite agreement of August 30, 1902, in accordance with which the City Trust Company took charge of the work, the time for the completion of the dry dock was extended by the Government from December 1, 1901, to August 30, 1903. October 1, 1904, 99.6 per cent of the work thereon had been completed and said dock was formally tendered by the trust company for test, with the approval of the civil engineer of the Navy Department supervising the work, on February 24, 1905, and was actually tested under the direction of the Bureau of Yards and. Docks August 12, 1905.

When the City Trust Company took charge of the work’ under the supplemental agreement of August 30, 1902, it was not able to proceed with any of the work on the pump house and pump well on account of the order for suspension of work thereon as hereinbefore stated being still in force. Some of the facts in regard to the suspension of work thereon have been stated under the head of “ Extra Pumping.”

The company urged an early decision on this branch of the work, as well as on the other matters which were after-wards covered by the supplemental agreement of July 13, 1903. The board, considering these changes, made some recommendations in its report dated December 24, 1902, based upon the expectation that Congress would make additional appropriations for this work. Congress having failed at the session which adjourned March 3, 1903, to appropriate the sums recommended by the bureau and department, the board was, April 30, 1903, directed by the Chief of the *159Bureau of Yards and Docks to revise its report upon the basis of the funds then available. It was not until July 13, 1903, that these questions were decided by the supplemental agreement of that date whereby the following changes were made:

(1) Four hundred and eighty additional cubic yards of excavation and concrete were required.

(2) Granite stairs and slides were to be constructed in lieu of concrete stairs and slides specified in the original contract.

(3) Concrete was to be substituted for granite in the apron entrance of said dock.

(4) All granite work on said dock now specified to be rough pointed shall be fine pointed.

(5) An entire change was made from the pump house and pump well originally specified, both as to design, size, and character of material.

(6) A number ok other changes were made.

This delay of the Government in deciding on the changes embodied in the supplemental agreement of July 13, 1903, made completion of the entire work on the part of the trust company by August 30, 1903, impossible.

The City Trust Company executed the supplemental agreement of July 13, 1903, under protest, based upon the fact that the delay of the Government in determining upon the changes embodied therein would prevent completion by August 30,1903, as well as upon the fact that the machinery contractors could not, or would not, supply the castings to go into the bottom of the pump well for four months, thus throwing the work of the City Trust Company into midwinter, in freezing weather. The Chief of the Bureau of Yards and Docks informed the trust company, August 26, 1903, that the castings to be made by the machinery company for the purpose of embedding the same in the concrete laid by the trust company in the pump house would be completed within six weeks from that date. Instead of such castings being made and ready to be embedded within six weeks, as stated by the chief of the bureau, or in four months, as expected by the trust company, they were not, in fact, completed until more than six months afterwards.

*160Much of the stone, both for the dry dock proper and for the pump house, was cut ready for use for some time before the trust company was able to use it, owing to the delays of the Government and of the machinery contractors.

A complete change in all the machinery for the dock was made by a supplemental agreement with the machinery contractors, dated August 24, 1903. Ten months’ extension of time from that date was granted to said machinery contractors, and no deductions were made from the contract price paid to said machinery contractors on account of delay, although they were negligent in furnishing and installing the machinery, and did not complete it until long after the expiration of said 10 months’ extension.

The City Trust Company was just about to have the bilge blocks and slides made in accordance with the original specifications, when the Bureau of Yards and Docks informed said company, October 17, 1902, with reference to said bilge blocks and slides, as follows:

“ The bureau begs to state that it desires to make some change in this work, which will be determined upon fully within a day or two, and asks that the work be not proceeded with until you hear further regarding the matter.”

Thereafter, the company on a number of occasions urged an early decision on this question on the ground that it would take some months to have the work done. Instead of this change being “ determined upon fully Avithin a day or two,” it was not determined upon for about a year and a half, when, March 10, 1904, a supplemental agreement was entered into, making a complete change in the character of the fittings, the extent of which is shown by the fact that the compensation was increased $6,328.94.

After the City Trust Safe Deposit and Surety Company took charge under said contract the work thereon Avas prosecuted Avith due diligence and energy by said company, and, taking into consideration the delays aforesaid caused by the Government, the work Avas completed by said trust company Avithin a reasonable time after the time for completion provided by said extension, to wit, August 30,1903.

The delays on account of the fault and delinquencies of the GoArernment occasioned a loss and damage to the claim*161ants (over and above the increased cost of material as found in Finding VI) in the sum of $85,655.30.

RETAINED PERCENTAGES.

XII. Immediately upon the completion and acceptance of the dock, the receiver of the City Trust Company, J. Hampton Moore, made formal application for payment of the retained percentages, amounting to $90,164.07. Said receiver was advised by the Chief of the Bureau of Yards and Docks that before final payment could be made on account of the contract an adjustment and settlement of damages resulting from delay in the completion of the work would have to be made and a release executed for all claims on account of the contract. The receiver was at the same time invited to present any statement which he might desire concerning the subject of delay and with respect to the form of release.

Thereupon there occurred considerable correspondence between the parties, and a number of interviews took place in which the views of the respective parties were presented. The subject of the amount of reduction on account of the delay in the completion of the work was, along with other matters in dispute, referred by the Chief of the Bureau of Yards and Docks to the Navy Department for the decision of the Secretary of the Navy.

The Chief of the Bureau of Yards and Docks held, and so advised the receiver, that an extension of the time for the completion of the contract would be allowed covering all but 304 days of the period of delay.

The Secretary of the Navy held, in effect, that he would not review or pass upon the action of the Chief of the Bureau of Yards and Docks with reference to the amount of deduction to be made or the character and form of the release demanded. Thereupon the receiver filed an amended petition in this case, including in the amount claimed the retained percentage aforesaid.

*Mr. George A. King*for the claimant. *-Messrs. King*c& *King*and *Mr. Archibald King*were on the brief.

Surely the contractors can not with justice be penalized • for failing to proceed with work after being stopped thereon *162by written order based upon the fact that the Government had not decided upon the character of the materials and work desired. Certainly no decision ever made warrants thus penalizing a contractor for the default of the opposite party.

In *District of Columbia*v. *Camden Iron Works*(181 U. S., 453, 454) the Supreme Court said:

“Where strict performance by plaintiff is prevented or waived by defendant, a claim by defendant of fines and penalties for delay or failure can not be sustained.”

In the recent case of *Ittner*v. *United States*(43 C. Cls., 336)" this court decided that where the Government prevented the commencement of the work by delaying approval until 22 days after the time for beginning, it thereby lost all right or power to impose liquidated damages, though the delay of the contractors at the close of the work much exceeded that of the Government at the beginning, citing *District of Columbia*v. *Camden Iron Works*(181 U. S. *R.,*453); *Holme*v. *Guppy*(3 Meeson & Welsby, 386) ; *Bussell*v. *Da Bandeira*(13 Com. Bench (new series), 149); *Dodd*v. *Churton*(1897) (1 Q. B., 562; 1 Hudson Building and Engineering Contracts (3d edition), 524, 525).

This case was followed in the still more recent case of *The New Jersey Foundry and Machine Company*(44 C. Cls. 570).

In this case the Government did not wish its original plans and specifications carried out. For that reason it delayed the contractor nearly a whole year before saying what change it desired in the pump house and pump well and in the finish of the granite and for far more than a whole year before it decided on the bilge blocks and slides.

The decision of this court in the *Ittner case*has been followed by the Comptroller of the Treasury in a well-considered decision, dated December 5, 1908, in the case of *de la Cruz*(15 Comp. Dec., 362).

Again, see in a contract for sale and delivery of merchandise to be loaded on a vessel a decision dated June 22, 1909 (15 Comp. Dec., 874).

After a decision of this court has been acquiesced in by the Government by taking no appeal from the same and *163has then been followed by the comptroller’s office, it becomes a binding authority, as much so as a decision of the Supreme Court. *(Leigh*v. *United States,*43 C. Cls., 374, 386, 387.)

This decision was followed in *Blasek*v. *United States*(44 C. Cls. It., 188) in which it is said that the act of 1907 “ is but declaratory of the law as it was and is respecting the duties of the accounting officers in the adjustment and settlement of claims.”

It is certainly not permissible, we submit, to adjudge this case in disregard of the decision made by this court in the *Ittner ease*after that case has been followed by the accounting officers in two other cases and by this court itself in one. For a court whose decisions are by law binding upon the accounting officers thus to reverse itself after the accounting-officers have followed it would be to introduce confusion into the Government auditing system.

(See Gregory’s “The Engineer or Architect as the Arbitrator,” pp. 43, 44, 47, 48.)

As no default was ever alleged against the contractor for • failing to proceed with due diligence as soon as the supplemental agreement of July 13, 1903, and afterwards that of March 10, 1904, disclosed what the Government wanted, it necessarily follows that the whole work was performed within a reasonable time.

In *Wells*v. *Army and Navy Oooferative Society*(2 Hudson Building Contracts, 3d ed., p. 376), decided by the Court of Appeal of England in 1903, the court said (p. 384):

“ In the contract one finds the time limited within which the builder is to do this work. That means, not only that he is to do it within that time, but it means also that he is to have that time within which to do it.”

The conclusion reached was (p. 391):

“The penalties are intended to secure the performance of a contract according to its terms, and when a departure from the terms takes place by one of the contracting parties, in this case by the building owner, the claim by that building owner for penalties disappears as a matter of course, and as a matter of common sense.”

*164(See also *Lilly*v. Person, 168 Pa. State, 219, pp. 232, 233; *Weeks*v. Little, 89 N. Y., 566.)

We call special attention to the sentence in this case “ The contractor could gain nothing by haste and pressure in one direction so long as entire completion was delayed by his employers.”

The point is very clearly stated in *Oornell*v. *Standard Oil Co.*(91 N. Y. App. Div., 345, pp. 348, 349).

To the same effect is *Pittsburg Bridge Co.*v. *St. Louis Transit Co.*(135 Missouri Appeals, 579), and *Drew-Bear*v. *St. Paneras*Guardians, reported only in Emden’s Building Contracts, fourth edition, London, 1907, p. 681.

Gregory (“ The Engineer or Architect as Arbitrator,” etc., p. 186) thus states the rule:

“Where any portion of the delay in the prosecution or completion of the work is due to the default of the employer, a court can not divide or apportion the entire delay between the parties, since it would be possible that there would have been no delay beyond the contract time but for the employer’s default. The provision for penalties, being only for a computation based upon the entire delay, enables no apportionment of that delay, or of the penalties retainable in respect of it. The provision must be operative in strict accordance with its intention, or not at all.”

He cites in support of this proposition *Westwood*v. *Secretary of State for India*(7 Law Times Deports, new series, 736), a case referred to in our brief in this case (p. 1420).

The Circuit Court of Appeals for the Fourth Circuit, in a very recent well-considered opinion by Judge Dayton, concurred in by Judges Goff and Pritchard, decided a question identical in principle. *(Jefferson Hotel Co.*v. *Brum-*baugh, 168 Fed. Rep., 867, 874, 875.)

This decision was followed in the still later case of *Vilter Manufacturing Co.*v. *Tygarfs Valley Brewing Co.*(168 Fed. Rep., 1002), citing *Stewart*v. *Keteltas*(36 N. Y., 388), *Heck-man*v. *Pinkney*(81 N. Y., 211), and *Weeks*v. *Little*(89 N. Y., 566) ; the Circuit Court of Appeals for this Fourth Circuit, in the case of *Jefferson Hotel Co.*v. *Brumbaugh*(168 Fed., 867).

*165*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney General John Q.*Thompson) for the defendants.

It is true perhaps that no case can be found in the reports conforming squarely to the facts in this case. However, we think the principle decided by the courts in the cases cited is that the action of said engineer officer in exercising his power of approval is final and conclusive on the parties, and can only be attacked for fraud or such gross mistake as necessarily implies fraud. It is not necessary that the contract provide in terms that the decision or action of the engineer shall be final. The manifest purpose of the inclusion of such terms in contracts of this kind is to fix and determine the particular officer or agent whose decision shall control, so that there may not be vexatious appeals to a higher official or superior authority.

In the case of *McAvoy*v. *Long*(13 Ill., 147), where the contract allowed the plaintiff a certain price for digging a ditch and provided how the work should be measured, and contained this further provision “ the above measurement to be made by David L. Hodges,” there was no express stipulation that his measurement should be final, and yet it was held that it was conclusive upon the parties in the absence of fraud.

As the supreme court of the State of Missouri said in the case of *Chapman et al.*v. *Railroad Company*(114 Mo., 542):

“ It is not necessary that the contract say in express terms that the decision of the third person shall be final. It is enough that the condition, which is to be performed before payment, is stated. When stated, it must be performed if not waived, like any other condition precedent.” (Leake on Contracts, 639; 1 Wharton on Contracts, sec. 593.)

In the case at bar the cofferdam was to be built subject to the approval of the engineer. It certainly can not be disputed that it was essential to the exercise of this power of approval that plans be prepared for his approval or that he submit plans with his approval. The effect on the legal aspects of this case would not have been different if the contract had provided in terms that this work should be done “ subject *166to the approval of the civil engineer, whose decision shall be final.” Lut us assume, for the sake of argument, that the contract had so provided, and the contractors, under the circumstances and conditions surrounding this case, had appealed to the Chief of the Bureau of Yards and Docks, or to the Secretary of the Navy from the decision of the engineer approving or disapproving the plan. The court, then, would have said unequivocally, as it did in the civil engineer was what the parties contracted for and what they must abide by and not the decision of his superior ■officer, and that, therefore, appeal from his decision was futile. As we have already stated, the contractors in this case treated the decision of Mr. Maxson, the civil engineer, in approving or prescribing, if their contention as to the facts is upheld, the plan for the cofferdam as final. They made no protest or appeal to higher authority. We submit that there can be no difference in principle between his decision under authority, such as is here conferred upon him by the contract, and the decision of an engineer whose authority is made final.

There is no question in this case but that Mr. Maxson exercised his best judgment in good faith without caprice, malice, or fraud. None of these elements is alleged in the petition; none is urged in the claimants’ request for findings or in its brief, and none is supported by evidence. On the contrary, he is given credit by the contractors’ leading engineer, Mr. Perkins, with having exercised his best judgment in the most courteous and affable way with the earnest and anxious purpose of securing a stable and satisfactory structure.

We think this brings this case within the principle declared by the Supreme Court in the case of *Coulter*v. *Railroad Co.*(196 U. S., 599) that no court will venture to intervene or disturb the act of an officer for mere mistake of judgment. It has been frequently decided that where Congress commits the decision of facts to an officer his decision is conclusive, as in *Bates <$i Co.*v. *Payne*(194 U. S., 106). (See also *Moore ease,*17 C. Cls., 17; *Railroad Co.*v. Newton, 140 F. R., 225; 202 IT. S., 260; *Arkwight Mills*v. *Aultman Taylor Machinery Co.,*146 F. R., 788,789; and *North Ameri**167*can By. Construction Co.*v. *B. E. McMath Surveying Co.,*116 F. R., 169, 174.)

Hindsight is always better than foresight, and it is easy to say, after a thing has happened, that it ought to have been anticipated. This court has given Mr. Maxson credit for discerning the defects of the plan first submitted by the contractors, which gives, or ought to give, him character and standing as an engineer and endows him with the quality of judgment sufficient to show conclusively that he knew something about the construction of cofferdams — • “ something ” that the contractors’ very able engineer did not know.

If a recovery can be had, it must be because there was a breach of the contract on the part of the United States in furnishing an engineer who was so dishonest or indifferent to his work as to carelessly and indifferently do it, or who was so utterly ignorant and incompetent that he did not know how to do it properly.

We submit, therefore, that inasmuch as Mr. Maxson was honest there was no breach in this respect, and that inasmuch as the failure to discern the defect which caused this injury was not conclusive of his incapacity or incompetency, but a mere incident liable to occur to the best engineer or best qualified individual for such service to be found, there was no breach of the contract in this respect.

The twilight zone between ordinary skill and care and the lack of it is so narrow that if the Government is to be mulcted in damages every time a jury may conclude that a Government engineer or agent makes a mistake which, in the opinion of the jury, he ought to have foreseen, it will be forced to abandon the contract system of procuring public buildings and other works. To err is human, and it will be found impossible for the Government to procure the services of civil engineers or other agents possessing technical knowledge who, by the exercise of ordinary care and skill, will be able to avoid all mistakes.

We do not think that the Government is liable for the shortcomings of its employees, as in the case of contracting individuals. In many respects it is true that the .right of the Government is no greater under the contract, and the *168liability-is as great as if tbe Government were an individual contracting with an individual, but it is a well-settled principle that it is not liable for the torts of its agents. It is not liable for the acts of its agents acting outside of the scope of their authority. These two propositions are so well settled that it is unnecessary to cite authority in support of them. Going one step further, we believe that, as to contractual liability, the true rule is that the Government is not bound to answer in damages for injuries caused by mistakes of its agents acting within the scope of their authority, even though ordinary care and skill might have avoided the mistake. It is only answerable where its agent is dishonest in performing his duty or reaching a conclusion, or where his blunder is so egregious, if not ridiculous, as to leave the inference irresistible that he was actuated by caprice, malice, or fraud, oí wheie it has failed to furnish an agent generally competent and reasonably qualified for his duty.

Now, when the Government contracted with the claimant in this case, reserving the right to superintend the construction of the cofferdam — that is, to have it constructed to the approval and satisfaction of its agent — it impliedly covenanted that it would select for its agent a man competent and qualified to perform that duty — a civil engineer. If the Government had selected a hod Carrier or a blacksmith to act as its agent in determining whether the plans for the cofferdam were proper or not, it would be a breach of the contract, and the Government would be liable for resulting damages. If it had selected a man who, though a civil engineer, was notoriously incompetent or disqualified from habits or physical condition from exercising a fair judgment or an intelligent judgment on the subject, it would likewise be a breach, but if it employs or selects for that purpose a man generally competent and of average capacity, against whom no word of reproach as to his moral character can be brought by anybody, whose education is extensive, whose experience is covered by a period of 27 years, and who Was conscientious in all of his endeavors, it has done all that it can do. It can not be held to have undertaken to guarantee that such a man would prove infallible or that *169he might not make mistakes which ordinary skill and care would have avoided.

“ The Government, like any other employer, is responsible for the acts of its agents within the limits of the power given them, and it is as much bound as a private citizen to employ honest and competent men,” says Judge Davis in *Griffith*v. *United States*(22 C. Cls., 183, 185). But what was said by Judge Loring in *McElrath case*(12 C. Cls., 201, 216) is equally apropos here—

“ to subject the United States to liability for all the acts of commission or omission of all their agents would be ruinous to the public interests.”

The principle which we believe should be declared with reference to this matter is analogous to that declared by the Supreme Court of Texas in the case of the *American Surety Company*v. *San Antonio Loan and Trust Company*(98 S. W., 387).

(The court cited Clark and Skyles on Agency, p. 403; *Combs*v. Beed, 89 Maine, 187; *Shipman*v. Slate, 43 Wis., 381; *Lasher*v. Cotton, 80 Ill. App., 75; *Schreiner*v. *Miller,*67 Iowa, 91; *Chapel*v. *Clarh,*117 Mich., 638.)

In amplification of the authorities cited we beg to cite *Edwards*v. *Hartshorn*(72 Kans., 19); *Boston Store*v. *Schleuter*(114- S. W., 242); *Bottling Co.*v. *Ferguson*(122 Ill. App., 270) ; *Loftus*v. *Jorjorian*(80 N. E., 235); *Moore*v. *Kerr*(65 Cal., 519).

BaeNet, J.,

delivered the opinion of the court:

This suit grows out of the construction of a dry dock in Boston, Mass. On the 14th of March, 1899, the firm of O’Brien & Sheehan, composed of John J. O’Brien and John C. Sheehan, entered into a contract with the United States to construct this dry dock, the same to be completed December 1, 1901. The time for completion was afterwards extended by the Government to August 30, 1903, but the dry dock was not turned over to and accepted by the Government until August 12, 1905. The City Trust, Safe Deposit and Surety Company of Philadelphia was the surety of the contractors on a bond for the faithful performance of the *170contract, and by agreement with the original contractors took charge of the work July 10, 1902, and carried it-to completion, and during such time was recognized by the Government authorities as the contractor for said work. As stated in the findings, the term “ contractors ” is hereinafter used to apply either to the original contractors or said City Trust, Safe Deposit and Surety Company, or to all of them, as the time may indicate.

By the terms of the contract the dry dock was to have been completed December 1, 1901, but the time for completion was extended by the Government to August 30, 1903, and it was actually completed and turned over to and accepted by the Government August 12, 1905. It is conceded by the Government that the work was well done; therefore that question does not enter into a discussion of the case.

The damages sought to be recovered in this suit arise out of delays in the completion of the dry dock occasioned by the Government, faulty directions as to its construction given by the Government engineer in charge of the work, changes in the plans for the work, and the construction to be given to several provisions of the contract. These damages are made up of several items which will be considered separately.

COEEERDAM.

The first item is a claim for loss on account of breaks in the cofferdam occurring during its construction, occasioned by a defective plan for the same proposed and directed to be followed by the Government engineer in charge of the work. The first article of the. contract (omitting those terms which are manifestly inapplicable to the cofferdam) provided:

> “The contractors will * * * at their own risk and expense, furnish and provide * * * temporary structures of every description * * * necessary or requisite in and about the construction of said dry dock * * * subject to the approval of the civil engineer.”

The findings show that the cofferdam in question was a subject of considerable discussion between the claimants’ engineers and Mr. Maxson, the Government engineer in *171charge of the work, and properly so, as it was to be one of the largest cofferdams ever constructed. Finally, a general plan was suggested by Mr. Maxson and worked out in detail by the claimants’ engineers with his advice and approval, and this was the plan which was subsequently followed in its construction. Reasonable care was taken in such construction as well as in its filling, but, not unlike many human undertakings, mistakes seem to have been made in the plan as well as in the construction, and serious breaks occurred, involving the claimants in considerable loss of time and money; and the first question to be decided is whether this loss is to be charged to the Government.

The Government was largely interested in the performance of the details of this contract from the very beginning of the work. It had agreed that monthly estimates should be made by its engineer in charge as the work advanced, and that 90 per cent of such estimates should be paid to the contractors from month to month. A mere statement of this fact shows that ordinary prudence demanded that the Government should have general supervision of the work as it progressed, and the claimants had agreed to this as above quoted. The findings show that the Government engineer in charge of the work had considerable skill as a civil engineer, but had had but little experience in the construction of cofferdams.

The findings also show that these defects which caused the breaks in the cofferdam were such as the exercise of ordinary care and skill on the part of the Government engineer would have foreseen. In other words, the first two breaks in the cofferdam were chargeable to the fault of the defendants.

The contractors objected to the plan for the cofferdam, as directed to be made by the Government engineer, and followed it only because it was required of them by him to do so. The contractors, however, took no appeal from his decision and made no formal protest against following his directions.

No case arising under a Government contract has been cited to us on either side which is a precedent for the decision of this case. Numerous cases have been cited by *172the Government attorney where it has been held that the engineer in charge of the work was the appointee of the parties and that his decision was final unless influenced by malice or prejudice or was so grossly erroneous as to imply fraud or bad faith. But most if not all of these cases 'arose under contracts containing the provision that the decision of the Government officer in charge should be final, which is not true in the case before us; and in all of them the matter for decision was so essentially different as to involve a different principle.

In *Kihlberg*v. *United States*(97 U. S., 398) it was ascem taining and fixing a route for the transportation of stores; in *Gleason*v. *Unitéd States*(175 U. S., 588) it was the exercise of the judgment of the Government engineer as to the advisability of granting an extension of time to the contractors; in *Barlow*v. *United States*(184 U. S., 123) it was the decision of the Government engineer as to the quality of stone employed in the construction of a dry dock. In all of the cases so cited it was the exercise of the judgment of the Government engineer in charge as to the material being employed, the construction of the contract as to the manner of doing the work, or, in general, the way in which the work should be when completed, which was involved. In none of them was the question at issue, What is the responsibility of the Government where its engineer in charge actively directs work to be done in a certain manner which proves defective and causes great loss to the contractor and where the exercise of ordinary skill would have foreseen such defects?

In addition to the provision of the contract above quoted the specifications which were made a part of the contract also provided:

> “ The works included in the contract will be carried out by the contractor under the inspection and supervision of the civil engineer detailed for the purpose, who will inspect all the materials and workmanship and will have full authority to reject any which, in his opinion, are not in full, accordance with the true spirit, intention, and meaning of the contract, plans, and specifications.”

It is true that the contractors by these provisions of the contract agreed to construct the dry dock “ under the inspec*173tion and supervision” of tbe Government engineer, and “ subject to bis approval ”; but we do not think that they thereby agreed to suffer any and all losses which might occur to them by reason of his mistakes in directing the manner in which the work should be done. We certainly do not think that they agreed to bear losses which might occur by reason of defects in a plan proposed and directed by him to be used, which the exercise of ordinary care and skill should have foreseen.

It has been held by the Supreme Court in similar cases that the principles which govern inquiries as to the conduct of individuals in respect to their contracts are equally applicable when the Government is a party. *{Smith*v. *United States,*94 U. S., 214; *Clark*v. *United*States, 6 Wall., 546; *Amoskeag Co.*v. *United*States, 17 Wall., 592.)

In *Wyandotte Railway Co.*v. *King Bridge Co.*(100 Fed. Rep., 197, 203) the Circuit Court of Appeals for the Sixth Circuit (Judge Day, now of the Supreme Court, delivering the opinion) decided that, notwithstanding a provision in a contract for the building of a bridge that no extra labor or material should be charged for unless agreed to in writing, the contractor might recover for additional work or material made necessary by an error on the part of the representative of the other party in locating the bridge, for which the contractor was not responsible.

In *Chicago v. Duffy*(117 Ill. App., 261, 266) the court said:

> “ If through and by reason of the errors of the inspectors of defendant the plaintiff was required to do additional and unnecessary work we think the cost and expense of such additional and unnecessary work should fall upon the defendants and not upon the plaintiff, and this conclusion seems to be in accordance with the decisions.” *(C. & G. E. R. R. Co.*v. *Vosburgh,*45 Ill., 311; *Sexton*v. City, 107 Ill., 323; *Guerin*v. *Rodwell,*37 N. J. Law, 71; *Mulholland*v. *Mayor of New York,*113 N. Y., 631; *Wyandotte*v. *King Bridge Co.,*100 Fed. Rep., 203.)

In *McConnell*v. *Corona City Water Co.*(149 Cal., 60) the plaintiff had contracted to construct a tunnel acording to the specifications of the defendant’s engineers and did so, *174although complaining of the inferior quality of materials furnished by the defendant and of the inadequacy of the work which the engineer directed should be done, but without avail. Because of this inferior quality of material and inadequacy of work the tunnel caved in, thereby rendering extra repair work necessary, and the court held the defendant liable for the cost of such extra work.

Numerous cases to the same effect might be cited, and we believe the rule in cases of this character to be that where a contractor constructs a work under a contract which provides that it shall be done under the direction and supervision of an engineer appointed by and under the employ of the owner and loss occurs to such contractor by reason of defects in the plans directed to be followed by such engineer, of a character which ordinary skill would have foreseen, the owner should pay for such loss. Following this rule the loss occasioned by the first two breaks in the cofferdam is allowed to the claimants, including the extra pumping thereby required, as found in item 2.

The claimant has asked the court to find that the plans for a cofferdam proposed in the first instance by the contractors would have been sufficient and ample for the work and that the cost of their construction would have been considerably less than the one directed to be constructed by the Government engineer, and asks for an allowance for this difference.

The court has found that such a cofferdam as was contemplated by the first two plans submitted by the contractors would have been insufficient, for reasons given. Even if such had not been the finding of the court, we do not think we would have been justified in making an allowance upon such a problematical question.

CHANGES IN PLANS.

The next two items are claims for damages on account of changes made by the Government in the plans as specified in the contract. After the claimants had put in their bids in the alternative, based upon two different plans known as plan A and plan B, and it was found that these bids were above the appropriation for the dry dock, some modifications were made in these plans, the bids were reduced, and these modifications were formally stated in a supplemental *175clause inserted in the specifications before the contract was signed. According to these specifications sheet D was provided to illustrate some of the work, showing that the dock was to be of the dimensions of plan A, which was considerably smaller than plan B. This sheet D was used in the construction of the dock under the direction of Engineer Maxson for about two years, when it was ascertained that sheet D was a mistake, and the claimants were directed to complete the dock of the dimensions of plan B.

We think the findings clearly show that sheet D, showing the dimensions of the dry dock to be according to plan A was not the contract in that regard actually made. On the contrary, the correspondence regarding the change in plans made necessary in order to bring the contract price within the appropriation, as shown in the findings, clearly shows that plan B was the one which was agreed to be followed. We think this finding is clearly established by the evidence. This finding, however, shows that this misdirection by the Government engineer in charge of the work necessitated the excavation of considerable material by hand instead of with the dredge, which otherwise would have been employed, and that this handwork was more expensive. It follows from this conclusion that the plaintiffs are entitled to recover for this additional expense.

The substitution of plan 155 L for general plan 155 D, as found in Finding IV, depends upon the same principle, and needs no additional discussion.

DATUM PLANE.

This item depends upon the construction to be given to that part of the contract relating to the datum plane of the contract. One paragraph of the specifications is as follows :

> *“Mean high water.*— The mean high water referred to herein is assumed to be 5 feet 2 inches below the coping of the granite dry dock.”

Immediately following this in a table entitled “General dimensions ” occurs the following:

> “ Draft over sill at mean high water, 80 ft. 0 inch.

> “ Depth from coping to floor in body, 39 ft. 2 inches.

> “ Depth from coping to mean high water, 5 ft. 2 inches.”

*176The findings show that mean high water in Boston, as universally understood by engineers, is 4.54 feet below the coping of the dry dock in question; and that if the dock had been constructed according to this datum plane, a draft of 30 feet of water over the sill at mean high water would have been obtained.

The contractors began the excavation for the dock on this theory, but when they had such excavation nearly completed, the Government engineer in charge compelled them to take a point 5 feet 2 inches below the coping of an old dry dock at Boston as the datum plane, which required them to excavate 7-| inches deeper. He insisted and the Government now insists, that that was the proper construction of the provisions of the contract upon that subject above quoted.

Although it must be conceded that there is some indefiniteness in the terms of the contract in regard to this datum plane, we are inclined to think that the construction given to this contract in that regard by the Government engineer in charge is correct. Otherwise the definition of “mean high water” above quoted would have been meaningless. The specifications, in giving the dimensions of the dry dock, say that the depth from the coping to mean high water shall be 5 feet 2 inches; and’ when we turn to the definition of “ mean high water ” to determine the depth of the dock the claimants say that it means that “mean high water” is 5 feet 2 inches below the coping, which is no definition at all and but a senseless repetition of the statement of the dimensions. It is unnecessary to cite authorities to the effect that, if reasonably possible, some meaning must be given to all of the terms of a contract. There had been a granite dry dock at Boston for many years, and we think it reasonable to construe the contract as referring to that dry dock in its definition “ mean high water,” hence this item is disallowed.

DELAT IN INSPECTION OP STONE.

The next item arises out of the delay of the Government in the inspection of the stone being brought to the work by. the contractors. The specifications attached to and made a part of the contract provided:

> *177“ The- Government authorities at the navy yard are to allow the contractor proper space for landing and storing materials to be used in the construction of the dock.

> ‡ * * & *

> “Previous to the commencement of work under the contract the contractor shall submit a fair schedule of prices for materials delivered, materials worked and in place, and for excavation, etc., which shall, upon approval by the Bureau of Yards and Docks, govern during the construction of the dry dock. * * *

> “ Payments are to made monthly upon bills duly certified, from which 10 per cent will be reserved, to be paid on the full and final completion of the contract. No payments are to be made except upon materials delivered, materials worked and in place, and work performed, at the rates in the schedule of prices. The prices for materials delivered shall represent as nearly as possible the actual cost of the same to the contractor, delivered on the site.

> “ Monthly payments made on the work during its progress shall not be considered or understood to be a final acceptance of the work in question, but any work which is of an inferior quality, in respect of the material employed or the labor upon it, or is unsatisfactory, shall be rejected and replaced with proper material and workmanship by the contractor, notwithstanding payment’ may have been, made upon such work in monthly estimates * *

It is unnecessary to say that these provisions of the contract were of vital importance to the contractors. Aside from providing what was an absolute necessity, a place to store material to be used in the construction of the dock, they gave the contractors partial payments upon the contract as the work advanced; and, what was still more important, gave them timely notice as to whether the material as it arrived was acceptable to the Government. The duty on the part of the Government to make timely inspections of such materials was unquestionably implied, as otherwise the provision for partial payments would have been useless to the contractors.

It was nearly a year and a half after stone began to arrive at the dock before suitable space for its storage was provided, and then the contractors had made space for themselves by leveling and filling the ground about the dock basin. *178As tbe stone began to- arrive the contractors asked for its inspection, but this was refused on the ground that it was piled too high to allow a proper inspection t.o be made; but lack of space made it necessary to pile the stone in that manner. After proper space for storage was provided in the manner above stated, and in the month of *July, 1901,*stone began to arrive in large quantities, but more than a month elapsed before inspection began.

August 10, 1901, Civil Engineer Masson was detached from the work, and on August 17, *1901,*Civil Engineer Hollyday took his place, and by the 11th of September following had inspected and accepted nearly all of ‘the stone which had arrived.

Aside from the financial embarrassment which would necessarily follow from the failure to receive the partial payments provided in the contract, the chief injury sustained by the contractors was the want of knowledge as to whether the stone which they were supplying would be accepted by the Government. It would have been unwise and jeopardous to finish at the quarries large quantities of stone under such circumstances, and ordinary prudence forbade such a course. Their contract gave the contractors the right to receive timely knowledge upon this subject.

As a result of this violation of the contract on the part of the Government, the contractors were compelled to give up some of the contracts which they had made for the supply of stone for the dock. In the meantime, the price of labor steadily advanced, and by the time inspection of stone began, and the contractors could renew their contracts for stone, they were compelled to do so at much greater cost.

We think the claimants clearly entitled to recover for this increase in the cost of stone caused by the delay of the defendants.

*{Kelly*v. *United States,*31 C. Cls. R., 361; *Snare*& *Triest Co.*v. *United States,*43 C. Cls. R., 364, 367; *Owen*v. *United States,*44 C. Cls. R., 440.)

ATTACHING BILGE AND KEEL BLOCKS.

This item depends upon the construction to be given to the provision of the contract relating to bilge and keel blocks *179for the dry dock. The specifications in regard to keel and bilge blocks provided as follows:

> “ Keel blocks, bilge blocks, and bilge-block slides are to be of oak. They will be spaced as shown on plans, and properly fitted with racks, keys, pawls, slides, chains, etc., in the best manner. Details of the blocks, slides, and fittings must be submitted to the engineer in charge and receive his approval previous to construction. The metal work will be of composition of an alloy approved by the engineer.”

The specifications further provide:

> *“Intention.*— It is the declared intention and meaning of the contract to obtain a complete and substantial dry dock according to the general plans and specifications, to the entire satisfaction of the Bureau of Yards and Docks * *

Also:

> “ All work shown only in part on the drawings or not fully described in the specifications, and all details omitted, all of which are necessary to the complete and perfect construction, shall be considered as covered by the plans and this specification and the contract entered into for the construction of the dock.”

The contractors had agreed to construct a complete dry dock, and it can not be denied that it was necessary to fasten the keel and bilge blocks to its bottom before it would be ready for use or even ready to test. We think a fair construction of the contract required the contractors to do this work, and this item is not allowed.

EXTRA PUMPING.

It appears from the findings that this work ivas made necessary by the default of other contractors who were to supply the machinery for the pump house, and m-er whom the contractors had no control, and against whom they had no redress. The work was done upon the order of the Government officer in charge of the work, and its cost is allowed to the claimants.

MORTAR EOR PUMP HOUSE.

The allowance or disallowance of this item depends upon the construction of parts of the contract fully set forth in Finding IX. We think a fair construction of the contract *180upon that subject directed the contractors to lay the brick in question in mortar made in the proportion of four parts of lime and one of Portland cement. The contractors seem to have so understood the contract and began the work with lime mortar in the above proportion. They were stopped by the Government engineer in charge and directed today the brick entirely in Portland cement; they appealed to the Secretary of the Navy, but to no avail, and were compelled to tear out the work already done and relay the whole brickwork in question in Portland cement, at a cost of $1,898.38, and that sum is allowed the claimant.

BREAK IN DISCHARGE CTJLVERT.

The findings show that the discharge culvert connecting the dry dock with the pump wéll was required by-the Government officers in charge of the work to be built upon pile foundations, while, the pump well was built upon a natural foundation. After the culvert had been completed and covered up a break occurred, caused by the uneven settlement of the foundations of the pump well and culvert. This appears to have been due to a faulty method of construction directed by the Government, for which the contractors were not responsible. The contractors were required to repair this break at a cost of $1,299.57, and this item is allowed the claimant. - ....

DAMAGE BY DELAY.

This item grows out of the loss occasioned to the contractors by delays caused by the Government independent of the loss on account of the delay in the inspection of stone already considered. By the terms of the tripartite agreement of 'August 30, 1902, in accordance with which the City Trust Company took charge of the work, the time for its completion was extended to August 30, 1903. As the findings show, the work was substantially completed October 1, 1904, was tendered for test February 24, 1905, but was not tested and accepted by the Government till August 12, 1905. This long period of delay was caused by numerous changes in the plans made by the Government as well as some dilatory action on the part of its officers, the history of which is given in Finding XI. ■'

*181The law is well settled that when a contractor is delayed by the owner in the prosecution of his work he is relieved from the time limit in the contract; or, as it is sometimes expressed, the owner is thereby deemed to have waived it. This rule is so clearly reasonable as to hardly need citation of authority. *(Dannat*v. Fuller, 120 N. Y., 554; *Texas & St. L. Ry. Co.*v. Bust, 19 Fed. Rep., 239; *Manufacturing Co.*v. *United,*States, 17 Wall., 592; *Ittner*v. *United States,*43 C. Cls., 336.) It follows as a corollary of this rule that in case of such delay the contractor is entitled to a reasonable extension of the time limit named in the contract for performance.

The findings show that after the City Trust Company took charge of the work it was prosecuted with due diligence and, tailing into consideration these delays, was completed within a reasonable time. It follows from this that the claimant is not chargeable with anything on account of delay, as provided for in the contract, but is entitled to recover such damages as were sustained by reason of such delay on the part of the Government.

The last item, which is for retained percentages, depends upon the item of damage for delay just considered, and under the decision of the latter item is necessarily allowed.

Judgment is therefore ordered for the claimant in the sum of $227,436.11.