#### MADISON J. BRAY, TRUSTEE, v. THE UNITED STATES.

[No. 22954.

Decided February 13, 1911.]

*On the Proofs.*

The Evansville Contract Company contracts to do certain work in laying concrete masonry in the construction of a dam on the Ohio River. There are two methods. The one known as the layer, the other as the monolithic. The latter is the cheaper and the more expeditious. The former involves an interval of time between the different layers for hardening. The engineer in charge requires the contractor to lay the concrete by the layer method and to allow each layer to harden from two to five hours. The additional cost is $37,731.12. The contractor protests to the inspector and to the local engineer, but neglects to protest to the engineer officer in charge who was made by the contract the final arbiter “ *upon all matters relating to the worlc and upon all questions arising out of the specifications.”*

I.Where a contract itt'ovides that concrete shall be deposited in layers of a prescribed thickness, and is silent as to any other method, the clear intent of the contract is that the concrete shall be laid according to the layer method and not according to the monolithic.

II.The terms of a contract can not be varied by showing that it was the common usage to place one layer of masonry upon another without an interval for hardening.

III. It may be shown in an action on a contract that a previous contract existed between the parties in precisely the same terms as the one in suit, and the manner in which it was executed.

IV. Where the contract made the inspector in immediate charge the judge of the time required for the *cement to*harden, his decision was final and conclusive in the absence of fraud or gross error.

V.Where the contract made the engineer officer in charge the final arbiter *“upon all matters relating to the worh and upon all questions arising out of the specifications,"*and the contractor neglected to appeal to him, he can not appeal to the court.

*The Reporters’1*statement of the case:

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

I. The Evansville Contract Company is a corporation organized under the laws of the State of Indiana and is a *133resident of that State. After the making of the contract hereinafter mentioned said company was thrown into bankruptcy and the abo re-named Madison J. Bray is now its sole trustee in bankruptcy; he has duly qualified and is now acting and suing in that capacity and has been substituted as petitioner in this case as such trustee. The said Bray as such trustee is the sole owner of the claim sued on. No other person or corporation is interested therein and no other assignment or transfer of the claim or any part thereof or ány interest therein has been made.

II. On the 10th day of May, 1899, said contract company entered into a contract with the United States through William H. Bixby, Corps of Engineers, United States Army, which contract was approved by John M. Wilson, brigadier general, Chief of Engineers, United States Army, which said contract and such part of the specifications thereunto belonging and made a part thereof as are necessary for the consideration of this case, are annexed to and made a part of the amended petition herein. On August 19, 1901, a contract supplemental to said original contract was made and concluded between said parties, a copy of which is also annexed to said petition and made a part thereof.

III. Maj. William IT. Bixby was the engineer in charge of the work for the defendants, as contemplated by paragraph 170 of the specifications. William Martin was in charge of the work as local engineer for the defendants, as contemplated by paragraphs 166 and 169 of the specifications. B. E. Fulton was in charge of the work for defendants as chief inspector, as contemplated by paragraph 168 of the specifications.

IV. Before and during the life of the contract two methods of laying concrete masonry were recognized and used by the trade — one called the layer and the other the monolithic method. By the layer method the concrete is placed in layers from 7 to 9 inches in thicknes and then rammed and permitted to stand until sufficiently hard to carry the ramming of the next succeeding layer without injury. By the monolithic method the cement is formed into blocks of monolithic shape by being placed in boxes varying in depth according to-the height which the work is desired *134to be constructed, and wlien hardened the boxes are removed. According to the monolithic method no time is required for the hardening of the cement, and the work can progress continuously.

The concrete masonry contemplated by the contract was laid under the supervision of R. E. Fulton, the chief inspector in charge of the work for the defendants. He directed that the same be laid in layers 9 inches thick and be rammed or tamped until the same be reduced to 8 inches in thickness. As each layer was completed it was to stand a sufficient length of time to harden or finish before placing another layer. The time required by him for that purpose varied .from two to five hours, depending upon the manner in which the concrete had been mixed, the season of the year, and the condition of the weather. Said contract company insisted that said cement should be laid according to the monolithic system before mentioned; that is, that it should be allowed to place it continuously without interrup'tion and not wait for it to harden, as was directed by said chief inspector. The manner of proceeding with and the completion of said concrete work by said inspector was more expensive than it would have been if the monolithic system had been pursued, as was insisted was proper by said company. Said increased expense consisted in considerable delay that was caused by compelling said company to wait for said cement to harden, thereby at times throwing many of its men out of employment for a time and making it necessary for said company to employ high-priced labor engaged in said work upon other work of a cheaper kind. The completion of said contract by said company in accordance with the directions of said inspector cost said company $37,731.12 more than it would if it had been allowed to complete it according to the monolithic system before mentioned.

V. Said company immediately prior to and at the time of the beginning of this contract had other contracts with the Government for the same kind of work on the same river and under the same specifications, and had been required to and did lay the concrete called for in those contracts in the same manner as under the contract here in question, the only difference being that the length of the *135courses of the other contracts were greater and the concrete at the beginning of each course had set sufficiently by the time the contractor had reached the end of that course, and therefore no wait was necessary before beginning a new course.

VI. Said company persistently objected as to the requirements of the inspector in regard to laying the concrete and insisted that it should be allowed to lay it according to the monolithic system, and protested to said inspector and to Mr. Martin, the local engineer, against being compelled to lay said concrete in the manner required, but the local engineer decided that the method required by the inspector was the method called for by the specifications. From this decision of the local engineer no appeal was ever taken by said company to the engineer in charge. At the beginning of said work the president of said contract company, and who had charge of the same for said company, had a conversation with Maj. Bixby, the engineer in charge, as to the work upon said contract, and was then informed by said Maj. Bixby that all the orders given to said company would come through the local engineer, Mr. Martin.

VII. At the termination of said contract said company accepted payment therefor at the contract price stated without any protest or mention of this claim.

*Mr. L. T. Michener*for the claimant.

*Mr. J. H. Graves*(with whom was *Mr. Assistant Attorney General John Q.*Thompson) for the defendants.

Baenet, J.,

delivered the opinion of the court:

This suit grows out of a contract for work upon Dam No. 6, in the Ohio River, about 30 miles below Pittsburgh. This contract was entered into on May 10, 1899, between Maj. William H. Bixby, of the Engineer Department, on behalf of the United States, and the Evansville Contract Company, now an insolvent corporation and whose affairs are now being administered and wound up by the claimant, Madison J. Bray, as trustee. The contract provided that work should be begun “ as soon as practicable,” the foundations to be *136completed “ within nine months thereafter and the superstructure within a further twelve months.” Included within the work provided for in the contract was a large amount of concrete masonry, and it is this item which is the foundation of the controversy in this suit.

August 19,1901, for reasons therein stated, a supplemental agreement was entered into between the same parties relating to that part of the work contemplated by the original contract which had not then been completed. This supplemental agreement provided, among other things, that “ work under the said [original] contract should be terminated as soon as existing funds be used up, and that all payments due thereunder shall be made to the said contractors without delay.”

Paragraph 166 of the specifications, among other things, provided that the work “be conducted under the direction of the local engineer” of the defendant, “who shall have power to prescribe the order and manner of executing the same in all its parts; of inspecting and rejecting materials, work, and workmanship which, in his judgment, do not conform to the drawings that may be furnished from time to time or to those specifications.”

Paragraph 168 provided that the defendants should keep inspectors on the work, who should receive their instructions from the local engineer, and who should have power to object to any materials, work, or workmanship.

Paragraphs 130, 131, 132, 169, and 170 of the specifications are as follows:

> “ 130. *Mixing and placing.*— The concrete is to be well and rapidly mixed by machinery, as may be required by the engineer, unless otherwise specified. It will be deposited in layers not more than 8 inches thick; wherever and whenever required the layers will be thinner than 8 inches, and all thoroughly rammed by such process as the engineer may approve.

> “ 131. *Courses.*— In the piers and abutment the concrete shall be laid in courses of a thickness corresponding to the adjoining courses of ashlar masonry. It shall be filled in flush with the top of each course before the next course of ashlar above shall be laid.

> “ 132. *Dry surface.-*— Before putting in the concrete of any course the bed and adjoining course of ashlar shall be thor*137oughly wetted so that no dry surface may come in contact with the fresh concrete, destroying its power of adhesion by absorbing its moisture.

> “ 169. *Local engineer.-*— The local engineer shall have power to overrule or rescind any or all objections or deci-cions of the inspector.

> “ 170. *Engineer officer's decision.*— The decision of the United States Engineer officer in charge of the work shall be final and conclusive upon all matters relating to the work and upon all questions arising out of these specifications, and from his decision there shall be no appeal.”

Ii. E. Fulton was chief inspector in charge of the work for the defendants as contemplated by paragraph 168; William Martin was the local engineer in charge of the work as contemplated by paragraph 166; and Maj. William H. Bixby was the engineer in charge of the work as contemplated by paragraph 170.

The claim involved herein is for damages in the sum of $59,713.12, alleged to have been sustained on account of the manner in which said contract company was required by the chief inspector to lay the concrete masonry. It appears by the findings that- there are two well-recognized methods of laying concrete masonry, one known as the layer and the other known as the monolithic system. By the layer method the concrete is placed in layers varying from 7 to 9 inches in thickness, which are “rammed” and then allowed to stand for a time to “ set ” sufficiently hard to carry the “ ramming” of the next layer without injury. By the monolithic method the cement is placed in boxes, which are removed when the cement has sufficiently hardened, and it is filled in continuously until the monolith is completed. It will thus be seen that when the layer method is pursued and the courses of cement work are short, and a large force is employed, a considerable time to wait between courses will be required in order to allow the cement to *“*set.”

The contract company was required to follow the layer system in doing the cement work under this contract, and the claimant now contends that this was contrary to the terms of the contract as well as the usages and accepted methods of doing such work; and that this method of doing the work caused the contract company great delay, which *138resulted in the damages named. It is not questioned that the layer method in a work of this size and land is more expensive than the monolithic method, and the findings show that" the cost to the contract company in completing the contract was $37,731.12 more than it would have been had it been allowed to follow the monolithic method.

It seems to us too clear for argument that the paragraphs of the specifications relating to the cement work required it to be done according to the layer method, and to allow each layer to harden or “ set,” as it is called by the witnesses, before another layer was placed.

The claimant introduced evidence tending to show that it was the common usage in laying cement masonry to place one layer upon another without delay, and we have been asked to find to that effect. A custom may be shown to explain a written contract where its terms are doubtful, but where its terms are susceptible of but one meaning no custom or usage can vary them. *(Pickley*v. *United*States, ante, and cases cited.)

The findings show that the contract company had had other contracts with the Government for cement work before entering into the contract in question containing exactly the same specifications as to the manner of laying it, and that it had been required to lay it the same is in this case, the only difference being that in the former cases the courses of cement were longer and for that reason so long a wait between courses was not necessary. The consideration of this fact is permissible for the purpose of throwing light, if that were needed, on the contract involved in this case. *(Ceballos*v. *United*States, 214 U. S., 47.)

As to the question whether the inspector in immediate charge of the work required an unreasonable time for the cement work to harden, under the terms of the contract the decision of this officer was made final and conclusive; and in the absence of fraud or gross error as would imply bad faith, his decision can not be reviewed in this court. (Kihl*burg*v. *United*States, 97 U. S., 97; *Driscoll*v. *United*States, 34 C. Cls., 523; *Bowe*v. *United*States, 42 Fed R., 761.)

The findings show that while the contract company protested both to the inspector and the local engineer against *139being compelled to lay the cement masonry as it was required to do, it never lodged any such protest with Maj. Bixby, the Engineer officer in charge of the work. The specifications made the latter officer the final arbiter “upon all matters relating to the work and upon all questions arising out of the specifications.” It will thus be seen that the contract provided a forum where the contract company could have gone and presented its grievances, but it failed to do so. We do not think it can now be heard for the first time to present these grievances in this court. *(Bowe*v. *United*States, 42 Fed. B., 761; *Bigelow on Estoppel,*633.)

The petition is dismissed.