#### CHARLES H. SANBORN v. THE UNITED STATES.

[No. 30374.

Decided February 27, 1911.]

*On the Proofs.*

Before a written contract for beating and ventilating laboratory buildings in Washington is executed by the parties the Assistant Secretary of Agriculture writes a letter to the contractors stating that the department is not satisfied as to the apparatus of a certain manufacturer and that it must not be used in the building. The letter is attached to the contract before execution.

I. A letter written by one of the parties to the other and attached to the written contract before it is executed must be regarded as a modification of the formal terms of the contract or as indicating how they shall be construed.

II. The rule in *Stone’s case*(29 O. Cls. B., 112) was based upon peculiar circumstances of a particular class of cases where lapse of time made it practically impossible for the Government to procure evidence in defense. It was not intended to be applicable to ordinary cases. Where damages naturally result from delay, and proof in defense, if any, is readily within reach of the defendants, the testimony of the claimant alone may be sufficient.

*255III. A letter written by the claimant which, is but a simple acknowledgment of the amount received does not estop him from seeking damages for delay. The distinction between this case and *Cramp*v. *The United States*(200 U. S. B.., IIS) stated.

IV. Where a contract provides that when the Secretary of Agriculture is satisfied that delay has been caused by the Government the contractor shall be given an extension of time equal to such delay; the extension is not compensation for damages caused by the delay. The distinction between this case and *The Merchants Loan and Trust Company*v. *The United States*(40 C. Cls., 171) stated.

*The*Reporters’ statement of the case :

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

I. The claimant is a citizen of the United States and a resident of the city of Boston, in the State of Massachusetts.

II. On the 1st day of February, 1906, the claimant entered into a contract with the United States to furnish all the labor and material to complete the entire heating, ventilation, and piping systems for the two laboratory buildings in the city of Washington, which said contract and a letter made a part thereof, and so much of the specifications thereunto belonging as are necessary for the consideration of this case, are attached to the amended complaint herein and made a part thereof.

III. On February 6, 1906, the Acting Secretary of the Department of Agriculture addressed a letter to the claimant as follows:

“DEPARTMENT OE AGRICULTURE,

“ Office op the Secretary,

“ Washington, *D. G., February 6,1906.*

“ Mr. Chas. H. Sanborn,

*“16-18 Post Office Square,*Boston, *Mass.*

“ Dear Sir : Deferring to the question of temperature control to be furnished in connection with your contract for the heating and ventilation and special piping systems of the department new buildings, I have to advise you that because of the unsatisfactory results of tests made of the apparatus of the Standard Temperature Regulation Company same will not be approved for the work, and in lieu thereof the

*256apparatus of the Johnson Service Company or the Powers Regulator Company is approved, this action being in conformity with paragraph 41 of the specification.

“ Please designate as soon as possible which one of the two approved systems you desire to install under your contract.

“ Yery respectfully, “ W. M. Hays,

*“Acting Secretary.”*

The claimant, on the 9th of February, 1908, made answer to the above letter, as follows:

“ February 9,1908.

“ W. M. Hays,

“ *Acting Secretary Defartment of*Agriculture,

“ Washington, *D. 0.*

“Dear Sir: In reply to your communication of the 6th instant, stating that the department will not accept the Standard Temperature Regulation Company, whom I named and whose figure I used in making up my estimate, would say the next lowest bid was that of the Powers Regulator Company, $12,500, the Johnson Service Company’s being $13,400. I therefore designate the Powers Regulator Company as the one whom I select to install the' temperature-regulating system, provided my selection is satisfactory to the department.

“ I note under article 41 that the department reserves the right to name articles or materials. Am I to understand that the difference in price is to fall upon the contractor? If such is the correct interpretation, I certainly shall consider it a great hardship under the circumstances, as I used their figure in good faith, not thinking for a moment but that they would be acceptable to the department, as they have installed their system in many prominent buildings, among them being the United States naval buildings, academic group, Annapolis; Naval Hospital buildings, Washington, D. C., and many others.

“ They were willing to give a bond for the amount named in the letter received from the department, dated January 16. I trust that the difference in cost will be allowed me by the department.

“ Respectfully, “ Charles H. SaNborh.”

On the 14th of February the mechanical engineer of the Department of v^griculture by letter advised the claimant *257of the approval of the temperature-control apparatus made by the Powers Regulator Company, as follows:

“U. S. Department op Agriculture,

“New Buildings,

“ *Washington, D. 0., February 11¡, 1906.*

“Mr. Chas. H. Sanborn,

*“16-18 Post Office Square, Boston, Mass.*

“Dear Sir: You are hereby advised that the Powers Regulator Company’s appliance is approved for the temperature-control apparatus to be installed in connection with your contract for the heating and ventilation and special piping systems of the department new buildings, this approval being in conformity with your selection, as expressed in your letter of the 9th instant, addressed to the Acting Secretary of Agriculture, of the two systems approved for this work by the department’s letter of the 6th instant.

you to additional cost of the Powers Regulator Company’s system over the Standard Temperature Regulation Company’s system, you are advised that to make any allowance for any difference in cost of these appliances would be in violation of the requirements of your contract and entirely unfair to other contractors who figured on this work.

“ Yery respectfully,

“ S. Franklin Gardner,

“ *Mechanical Engineer.*

“Approved.

“John Stephen Sewell,

*Supervising Engineer*

IV. The final payment of $10,618.09 due under the terms of the contract was made on the 30th of June, 1908, and accepted by the claimant by the following letter:

“ Boston, Mass., *April 18, 1909.*

“ Hon. James Wilson,

“ *Secretary of Agriculture, Washington, D. O.*

Dear Sir : In the matter of the settlement under my contract with the department, the balance as stated by the department in the sum of $10,618.09 is received by me with the express reservation of my right to sue in the Court of Claims for the amount expended by me in substituting the Powers control for the control specified in my bid, in accordance with the understanding as expressed in department letter of March 1, 1906. Your check is accepted under this protest.

“ Respectfully, “ C. H. Sanborn.”

*258V; The Government failed to have the buildings advanced to such a stage of completion as would permit the installation of the heating plant (luring the contract period, and still further delayed their erection, by reason of which claimant could not complete his work until March, 1908. This delay on the part of the Government caused the claimant additional expense in the completion of the said plant as follows: Four hundred dollars additional premium on his bond during the extended period, and $300 for expenses on account of additional trips from Boston to Washington during that period made necessary by said delay.

*Mr. John G. Fay*for the claimant.

*Mr. W. W. Soott*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

BarNet, J.,

delivered the opinion of the court:

This suit arises out of a contract to install a heating and ventilating plant in the two laboratory buildings for the Department of Agriculture. So much of the contract and specifications as are necessary to be examined for the consideration of this case are made a part of the amended petition herein.

Paragraphs 40 and 41 of the specifications are as follows:

> “ 40. The bidders are required to fill out on the proposal sheet the clauses relating to materials and appliances which they propose to use; also to give the name and address of manufacturers of special appliances required under this contract.

> *“*41. Should bidder fail to submit such a list of materials and appliances, or in the event the materials and appliances named on the proposal sheet in any case are considered unsatisfactory, the department reserves the right to name articles and materials which will conform to the specification, and the selection by the department shall be final and binding* upon the contractor.”

The claimant’s proposal was made in accordance with the advertisement and as provided by said paragraph 40. Among other materials and appliances designated, “the apparatus of the Standard Temperature Regulation Com*259pany ” was named as one of the appliances to be furnished in the competition of the work. January 16, 1906, this proposal was accepted by a letter signed by the Secretary of Agriculture, with the following reservations therein contained :

> “As the merits of the apparatus of the Standard Temperature Regulation Company have not as yet been thoroughly proven to the department as being satisfactory for use with heating and ventilation apparatus of the character and magnitude of that required for the department’s new buildings, the approval of same is withheld. In the event that these further investigations satisfy the department’s-requirements as to said system, it will then be approved. * * * In the event the system is not approved, then another system will be selected by the department in accordance with the rights given in paragraph 41 of the specification.”

The contract was executed February 1,1906, and the above letter of the Secretary of Agriculture was made a part of the same.

February 6,1906, the Acting Secretary of Agriculture sent a letter to the claimant in which he disapproved of the “ apparatus of the Standard Temperature Regulation Company,” and in lieu thereof, in the alternative, selected the “ apparatus of the Johnson Service Company or the Powers Regulator Company,” in accordance with said paragraph 41. February 9, 1906, the claimant addressed a letter to the Acting Secretary of Agriculture acknowledging receipt of said letter of February 6 and designating the apparatus of the Powers Regulator Company as the one to be furnished in the installation of the plant. In this letter he asks if the difference in price between the apparatus of the Standard Temperature Regulation Company and the Powers Regulator Company (which was $2,500) was to fall upon him. February 14, 1906, the mechanical engineer of the Department of,Agriculture wrote a letter to the claimant advising him of the acceptance of the apparatus of the Powers Regulator Company, and stating that no allowance would be made to him on account of the difference in price of the two systems.

By the terms of the contract the work was to be completed June 14, 1907, but on account of the failure of the Government to have the buildings ready during the contract *260period for the installation of the heating system the time for completion wás extended, and the work was actually completed in March, 1908. April 18, 1909, the claimant, in a letter to the Secretary of Agriculture, acknowledged receipt of the final payment of $10,618.09, expressly reserving the right to sue in this court for the excess in price of the apparatus of the Powers Regulator Company over that of the Standard Temperature Regulation Company, but with no other reservation expressed.

The claimant brings this suit for $2,500, this excess of price, and also for damages caused by the delay of the Government in not having the buildings completed in time for the installation of the plant during the contract period.

As to the first item the claimant contends that the changes contemplated by paragraph 41 of the specifications do not include temperature-control systems, that such systems do not fall under the head of “materials and appliances,” and that the language of paragraph 171 shows this to be the proper construction. There might be some force in this contention were it not for the fact that the contract itself tells us how paragraph 41 is to be construed. The letter of January 1C, 1906, from the Secretary of Agriculture to the claimant informed him in unmistakable terms that “ in accordance with paragraph 41 of the specifications *”*he might be required to make a change in the temperature-control system which he had proposed, and two weeks thereafter he executed the contract by the terms of which this letter was made a part. Thus the parties themselves have agreed upon the construction of this paragraph, and the Government was clearly within its rights in making the change it did, and this selection was made with reasonable and rather unusual promptness. This item is therefore disallowed.

The findings show that the failure of the Government to have the buildings completed' in time to allow the' claimant to complete his work within the contract period caused a loss to the claimant of $700, made up of two items — $400 for additional premium on bond during the extended period and $800 expenses in making extra trips from Boston (his place of business) to Washington, made necessary by this delay. The Government has objected to this finding because

*261it depended upon the testimony of the claimant alone, and cites the case of *Stone*v. *United States*(29 C. Cls., 111) in support of this objection. The rule in that case was based upon the peculiar circumstances of that particular class of cases (Indian depredations), the lapse of time and the practical impossibility of the Government being able to procure evidence in rebuttal, and has no application in the case under consideration. Here the damages proven are such as would naturally result from the delay, and hardly need proof except as to amount, and proof in rebuttal, if there was any in existence, was readily within reach of the Government.

It is also contended by the Government that the ■ letter written by the claimant, as shown in Finding IV, releases it from all liability for damages on account of delay, and the case of *Cramp*v. *United States*(206 U. S., 118) is cited in support of that contention. In the Cramp case there was a final receipt expressly releasing the Government “of and from all maimer of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or in equity, for or by reason of or on account of the construction of the vessel under the contract.” In the case under consideration the letter is but a simple acknowledgment of the amount received, and the only feature of it unfavorable to the claimant is that it protests upon another subject and is silent as to the claim in question. But in a simple acknowledgment of the receipt of the final sum no protest whatever was necessary, and we see no reason why, because the claimant “ doth protest too much,” he should be estopped because he did not protest enough.

It is also contended that under the contract the extension of time granted the claimant was a compensation for any damages caused by the delay. This contention is based upon a paragraph in the contract which provides, in substance, that when the Secretary of Agriculture is satisfied that any delay has been caused by the Government the contractor shall be given an extension of time equal to such delay, and the case of *The Merchants Loan & Trust Co.*v. *United States*(40 C. Cls., 117) is cited to sustain this contention.

The contract in that case contained an express provision that in case of such extension of time no “claim shall be *262made or allowed for damages which may arise out of any delay caused by the other party.” There is no such provision in the contract in this case; hence the case cited has no application.

Judgment is ordered for the claimant in the sum of $700.