#### AUGUSTUS SMITH v. THE UNITED STATES.

[No. 29849.

Decided March 24, 1913.]

*On the Proofs.*

Congress appropriate $60,000 for the erection of a coaling plant at the New York Navy Yard. The Bureau of Yards and Docks contracts with the claimant for the work. The contract calls for four pockets or panels and provides that the Government may order an extension of the work, if Congress shall appropriate more money. Congress subsequently appropriate a much larger amount and the Bureau orders thirteen additional panels. The question in the case is whether a time limit for a work of four panels is to be applied to a work of thirteen panels.

I.Where Congress appropriate $60,000 for a public work the amount appropriated limits the liability of the Government; but the contract may provide for an extension or continuation of the work if Congress shall subsequently appropriate therefor.

II.It is well settled that where the owner delays the contractor, he can not enforce a time limit for the completion of the work, and by his conduct waives the same, giving to the contractor a reasonable time in which to complete the work.

III.Where a contract for a specific work, which will exhaust an existing appropriation, also contains a provision contemplating future work, if an additional appropriation shall be made, it will not be construed to mean that a contractor shall construct a greater work in the same time. The alternative obligation will be applied, that the contractor must complete the work within reasonable time. The distinction be*236tween this and the *United, Engineering case*(47 C. Cls. R., 489) and the *Laidlaw-Dunn-Gordon Co.*(ibid., 271) is that in those cases there was no change in character or quantity of the work, and the contract remained capable of execution within the period fixed, although not within the same dates; here it would have been a physical impossibility to have performed the work within the time fixed for the original undertaking.

*The*Reporters5 statement of the case:

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

I. On August 15, 1901, the United States, by Mordecai T. Endicott, Chief of the Bureau of Yards and Docks, in the Navy Department, published an advertisement calling for bids for the construction of a coaling plant at the New York Navy Yard, a true copy of which appears at the head of Specification 1182, in Exhibit 1, attached to the amended petition herein.

The specification referred to in said advertisement, which is the same as that marked “ Specification No. 1182 ” and attached to the contract annexed to the petition as Exhibit 1, described in general terms the requirements of the department for the proposed coaling plant, and stated that bidders were invited to submit supplementary or alternative plans and specifications.

In response to said advertisement and specifications, claimant, on October 8, 1901, submitted an offer and a specification, items 1 and 3 of which offer were accepted, which specifications and acceptances are attached to and form a part of Exhibit 1.

A contract by and between claimant and defendants was, on November 8, 1901, executed in accordance with the advertisement, offer, and specifications hereinbefore referred to, which contract is annexed to the amended petition as Exhibit 1.

Subsequently, to wit, on July 11, 1901, a supplemental agreement was made by and between the same parties, a true copy of which is annexed to the petition as Exhibit 2-

II. The contract between the parties required the erection *237of a storage building for coal containing four panels or pockets, but further provided that defendants might order additional panels at $7,500 per panel.

On January 28, 1902, and again on March 17, 1902, claimant inquired of defendants how many additional panels would be ordered if Congress should appropriate the $100,000 additional requested by the Bureau of Yards and Docks for enlarging the plant. On March 22; 1902, defendants informed claimant that in such event 12 additional panels would be ordered. On July 1, 1902, an act of Congress was passed appropriating $640,000 for depots for coal. On August 12,1902, defendants notified claimant to construct-13 additional panels.

Claimant had previous to this time anticipated congressional action and at his own risk ordered all the steel necessary for the enlarged structure, which enabled him to be ready when the United' States was ready for him to commence work.

III. Upon the execution of the contract claimant proceeded diligently to carry it out. The first thing necessary to' be done by him was to prepare shop drawings which were required to be approved by the civil engineer in charge on behalf of the' United States. It was necessary first to prepare and secure approval of general working drawings before more detailed drawings could be made. These general drawings were sent by claimant to the civil engineer for approval January 28, 1902, but a, difference of opinion between the civil engineer and claimant as to the design and strength of certain parts of the structure prevented their approval until August 5, 1902, when the Bureau of Yards and Docks sustained claimant’s position in the matter and overruled that of the civil engineer, and the general drawings were approved. Detailed drawings were thereupon made by claimant and his subcontractors, submitted to the civil engineer for approval, and approved. It was impossible for claimant’s subcontractors to fabricate the steel previously ordered until the detail drawings were approved. Against the length of time taken for approval of drawings claimant wrote requesting the bureau to hasten the work.

*238Tbe making of these drawings was a task of considerable magnitude, requiring the work of five men in claimant’s office. There were nearly a hundred drawings made by claimant, about 30 by one subcontractor and about 20 by another. The cost of the drawings was about $3,000 and the time necessary to make them about two months.

IY. The pier upon which the coaling plant was required to be built consisted of a timber deck below high water, resting upon piles, upon which deck an earth filling was designed to be placed. The pier was not sufficiently completed to enable claimant to begin erection until June 1, 1903. At this time the filling had not been fully completed, and was lying in some parts of the pier in irregular piles where it had been dumped. These piles remained in this condition until August 25, 1904. At no time during the continuance of the contract or work thereunder did the Government pave or finish off otherwise in a suitable manner the surface of the pier, nor did it furnish or lay ties or rails for the standard-gauge railroad track under the shed. Besides preventing him from beginning the erection of steel until June 1,1903, as hitherto stated, the incomplete and irregular condition of the filling, and the fact that the surface of the pier was not paved or finished off otherwise in a suitable manner prevented claimant in two other respects from working to the best advantage, either with respect to economy or time. In the first place, these circumstances prevented him from depositing the steel for the structure on the pier, each piece at or near the place where it was to be used, which is the usual and most advantageous method for the erection of such structures, and made it necessary to deliver the steel on the bulkhead adjacent to the pier, and rehandle each piece later when it w,as needed so as to get it to the place where it was to be used. This method of work caused delay and increased expense to claimant.

Because of the limited area for storage on the bulkhead within reach of the lighters’ booms, it was necessary to pile the steel up as delivered, without reference to the order in which the different pieces would be needed, so that some of the pieces which were needed first were at the bottom of the pile and some of those needed last were at the top. In the *239second place, claimant had designed and built, expressly for the erection of the steel work of this job, a traveling derrick planned to run on wheels on rails laid on the surface of this pier; but the circumstances hereinbefore set out prevented claimant from using this method of erection and forced him to dismember and alter the derrick and send it to Boston, where he had another contract, and through a subcontractor to erect the lower portion of the structure by means of floating derricks on lighters alongside the pier, and the upper portion by means of a traveling derrick resting on the lower portion. This was a more expensive and slower method of work. The principal reason for subletting the structural work was labor trouble, the subcontractor being in accord with union labor and the claimant identified with the then prevailing contest against union labor.

Claimant duly protested against the failure of defendants to complete the filling and level off the surface of the pier.

V. Some steel was delivered between January and May, 1908, inclusive, by the time the pier was sufficiently filled to permit erection. Neither the claimant nor defendant was prepared to commence the erection of steel until June 1, 1908; he had made no special effort to hurry the delivery of steel before this time; in fact, had, by inference at least, given the steel manufacturers to understand that his other work should have preference in delivery, because he saw it would be impossible for the Government to be ready for the commencement of work before June 1, 1908. The erection of steel began June 1, 1903. At this time the erecting trade was hampered because of strikes, lockouts, and quarrels between the Master Builders’ Association and the Housesmiths and Bridgemen’s Union, led by Sam Parks. Owing to the foregoing difficulties, nearly all steel erection work in or near New York was at a standstill. At one time none was being done in New York or vicinity except on this job and for one other contractor. In order that he might continue this work claimant refrained from joining the Master Builders’ Association and kept the work continuously under way.

VI. On November 27, 1903, claimant wrote the civil engineer, suggesting that, in view of the cold weather, concreting *240be postponed till spring. The Chief of the Bureau of Yards and Docks answered that the bureau approved such suspension, “ but upon the express condition that the bureau does not thereby extend the time for the completion of this work or relieve the contractor in any way of his obligations under the contract.” Claimant duly protested against the foregoing. Claimant thereupon refrained from placing concrete during the winter of 1908-4. Concrete can not be satisfactorily mixed and placed in frosty weather.

VII. June 27,1904, claimant notified the engineer that the plant would be ready for test June 30. July 6 the engineer inclosed claimant a list of 32 unfinished and unsatisfactory parts of the work and requested him to finish them before the test should be made, and the plant was not ready for a test until July 25, 1904. An order for a cargo of coal to make the test could not be made until the Bureau of Yards and Docks should know the date the plant would be ready, and it was July 23 when it was determined the plant would be ready for test July 25, and this Was too late to have a cargo of coal at the plant July 25.

August 2 the Bureau of Yards and Docks requested the Bureau of Equipment to furnish a cargo of coal in a véssél with suitable hatches for ■ discharge.- Augtist 3, 1904, the Bureau of Equipment opened negotiations for the purchase of a cargo of coal and prices and for barges with suitable hatches to carry coal from Lamberts Point, Va., to Brooklyn Navy Yard for testing the plant, and procured an offer of one barge with 300 tons discharge; and on August 11 accepted the barge Conner, with 400 tons per day discharge, and she in turn accepted the Government’s offer August 13. At the same time, August 9, the Government was negotiating with the two barges it Was also making inquiry as to securing a naval collier, and as to the latter class of vessel the engineer on July 23, 1904, had suggested that the hatches were not of sufficient size for unloading of coal at this plant.

That for purposes of making the first test of the plant, upon notice from the claimant July -23, 1904, that the plant would be ready for test July 25, the Bureau of Yards and Docks notified the Bureau of Equipment to furnish a cargo *241of coal. Thereupon negotiations for coal and a barge occurred by correspondence, telegraphic communication, and by telephone, with result that the barge Conner was secured August 11, 1904, which loaded coal at Lamberts Point and sailed August 14, arriving Brooklyn Navy Yard August 17, 1904, and on the same date a board of naval officers met and proceeded with the test of the plant. Up to August 27, 1904, the plant was not in condition for a test by the board. The test was finished September 16, 1904, and on September 19 the board made a report of said test, in which report numerous defects are pointed out, only one of which was serious, requiring about six weeks to- remedy, completing the same October 15, 1904.

During said test the barge Conner discharged coal at the rate of 52.6, 68.4, and 55.3 tons per hour, and after deducting necessary delays the average discharge was 75.8 tons per hour.

Thereupon the claimant set about remedying the numerous defects in the plant developed by the test and was again ready for a test December 13,1904.

As early as November 26, 1904, the Chief of Bureau of Yards and Docks requested the Bureau of Equipment to provide a cargo of coal for the second test on being informed as to when the cargo would be needed for the test. December 8 the Bureau of Equipment, five days before the plant was ready for the test, opened negotiation with five different concerns for prices of coal, time in which they could furnish it, and for barges with large hatches of 400 tons daily discharge, with capacity of not less than 2,000 tons. December 10 the bureau closed charter for the San Joaquin, of 2,550 tons capacity and large hatches, with the understanding that “ the barge was ready for immediate loading,” to carry coal from Lamberts Point, Va., to the New York Navy Yard for use in the second test. The Bureau of Equipment was urgent as to the time the San Joaquin should report for cargo. She arrived at Lamberts Point Sunday, December 18, and was ready to load December 19. The coal with which this vessel was to load for the test was to be furnished by Castner, Cur-ran & Bullitt, of Philadelphia, and was to be dry coal. On account of holidays, receipts of coal were light. When the *242San Joaquin reported for loading the coal was wet, and the coal inspector refused to pass it on December 19. It rained daily from December 15 to 18, inclusive, and was cloudy the 19th. It rained from the 24th to 28th, inclusive, and the coal was wet during all this time the inspector refused to pass it. The Government inspectors whose duty it was to inspect coal on its being tendered to the Government for purchase were under orders not to accept wet coal unless waived by the department. On December 29 the Bureau of Equipment waived dry coal for the San Joaquin, and directed the coal when unloaded in the plant at the Brooklyn Navy Yard to be scattered and no coal placed on it. The barge docked December 30, loaded 2,523-3,- tons, and on January 2, 1905, sailed for Brooklyn Navy Yard, where she arrived January 9. On said date the board of naval officers reassembled and began a second test of the plant, which was continued until January 25, 1905, and on January 31 said board made a report of the second test, with the deficiencies of the plant and with recommendations which, with “ Progress of unloading,” is made a part of these findings.

The barge San Joaquin had unloaded from 500 to 600 tons of coal per day at Providence and Boston, and at the latter place she had made a daily average discharge of 362 tons.

During the test from January 9 to 23 there was discharged from the San Joaquin through its small middle hatch at rates of 56 tons, 60.4 tons, and 81 tons of coal per hour. A portion of the delay in the test was due to some of the defects in the plant and some to the barges.

The board recommended that when all defects specified had been completed by claimant the plant be accepted. • The plant was completed April 18, 1905, and formerly accepted April 21, 1905.

Claimant on January 10, 1905, during the second test, ordered the test discontinued so far as he was concerned and withdrew from the test, for the following reasons:

On January 10 claimant quit the test because his subcontractors for the coal-digging machinery had formerly notified him that on account of the unsuitable construction of the coal barge it would be impossible to attain a rate of 60 *243tons per hour except for short periods of time, and because it seemed to him that “ there was no chance of the tower developing the guaranteed capacity of unloading.”

The board continued the test under instructions of the commandant. January 12, 1905, claimant informed the chief engineer that he regarded the continuance of the test as an acceptance of the plant by the Government, and made out his account and requested payment.

The contract provided that:

“ The unloading capacity of the plant from barges or schooners having hatches that allow convenient access to the hold shall be not less than 60 tons per hour for the fixed elevator furnished.”

For the test the contract provided:

“ Upon completion of the plant, and before final acceptance, the contractor shall superintend a working test of the plant. The Government shall furnish all the necessary labor, except the superintendent, and shall furnish material for making the test, but the contractor may, if he so desires, furnish any labor. All employees on the plant engaged in making the test shall be subject to the contractor’s orders. The test will be observed by a board of officers appointed by the Chief of the Bureau of Yards and Docks, and will be continued for as many days as may be considered sufficient by the board, who will cause any defects to be remedied that appear in the meantime'. Upon the completion of the test the board will report to the Chief of the Bureau of Yards and Docks whether or not the work has been completed in accordance with the contract. The rated capacity of the plant per hour shall be taken to be the average for one working day, unless the board shall consider a shorter time to be sufficient, and during that time the operation of the plant shall have been entirely satisfactory.”

Under the terms of the contract and from the numerous defects brought out and discovered by the tests, the two barges were reasonably convenient of access and suitable for these tests and the tests were conducted with reasonable diligence and dispatch.

From November 1, 1904, to April 21, 1905, claimant necessarily and reasonably expended in and about the care and preservation of the plant and general charges for the job the sum of $360.T6.

*244VIIL. Upon final completion of the work, defendants withheld and deducted from the moneys otherwise due claimant, as damages for delay, $1,375, against which claimant duly protested to the Secretary of the Navy. The sum deducted was calculated by the bureau, after the completion and acceptance of the work, in the following manner: The bureau fixed July 1, 1902, as the date from which the time should run, and allowed 22 months for the work. The bureau also fixed July 25, 1904, the date when the plant was ready for test, as the date of practical completion. This left 85 days, May 1 to. July 25,1904,.of delay; but the bureau then allowed the contractor 30 days more, and charged 55 days against the contractor at $25 per day, making $1,375, the sum deducted. It is. impossible to determine what, if any, actual damage was suffered by the United States because of' delay in the completion of the plant. The engineer in charge of the work filed a report exonerating the claimant from any delay in. the prosecution of the work.

IX. Defendants demanded that claimant furnish the following articles in addition to those specified by him in his bid and specifications:

For the hoisting engines:

1 spare set of friction leathers with pegs.

1 spare set of hoisting and dumping cables.

1 spare bucket chain.

1 spare shackle for bucket chain.

For the trolley engine:

1 spare set of friction leathers.

1 spare trolley cable.

Claimant refused to furnish said articles, and in consequence of said refusal defendants withheld and deducted from moneys otherwise due under the contract the sum of $237, against which claimant duly protested to the Secretary of the Navy. With the exception of a new hoisting rope and an. extra set of friction leathers, said spare parts were not thereafter purchased by defendants.

. The two- grab buckets mentioned by claimant in his bid and furnished by him could not both have been used at the same time, and one was a spare bucket.

*245*Mr. Archibald King*for claimant. *Messrs. King*c& *King*were on the brief:

The first item of claim is for time penalties deducted by defendants from the contract price. Defendants delayed claimant in the progress of the work in five different ways. It is well settled that where the building owner delays the work the contractor is entitled to an extension of a reasonable time within which to finish the work. *(Van Burén*v. *Digges,*11 Howard, 461; *District of Columbia,*v. *Camden Iron Worhs,*181 U. S., 453, affirming 15 App. D. C., 198; *Crocher*v. *United States,*21 C. Cls., 255; *Ittner*v. *United States,*43 C. Cls., 336; *New Jersey Foundry <& Machine Company*v. *United*States, 44 C. Cls., 178; *Pichley*v. *United*States, 46 C. Cls., 77; *King Bridge Company*v. *St.*Louis, 43 Fed. Rep., 74; 15 Comp. Dec., 362; *Dannat*v. *Fuller,*120 N. Y., 554; *Holme*v. *Guppy,*3 Meeson & Welsby, 386.)

Defendants ordered an increase in the amount of work to be done. This alone eliminates the time limit and gives claimant a reasonable time within which to finish. *(Lilly*v. *Person,*168 Pa. St., 219; *Dodd*v. *G hurt on,*1897,1 Queen’s Bench, 562; *Amoslceag Mfg. Co.*v. *United States,*9 C. Cls., 50; 17 Wall., 592; *International Supply Co.*v. *United States,*13 C. Cls., 209; *Crocher*v. *United States,*21 C. Cls., 255; *Wells*v. *Army <& Navy Society,*2 Hudson, Building Contracts, 3d ed., 376; *Westwood*v. *Secretary of State,*7 Law" Times, 736; 11 Weekly Rep., 261; *Roberts*v. *Bury Improvement Commissioners,*5 Common Pleas, 310; *Thornhill*v. *Neats,*8 Common Bench, new ser., 830.)

The contemporaneous construction of both parties that the original time limit was eliminated should be followed. *{Chicago*v. *Sheldon,*9 Wallace, 50; *Topliff*v. *Topliff,*122 TJ. S., 121; *District of Columbia*v. *Gallaher,*124 U. S., 505; *Roettinger*v. *United States,*26 C. Cls., 391.)

Even if the contractor was dilatory himself, if the building owner delayed him or ordered additional work, time penalties may not be deducted. *{District of Columbia*v. *Camden Iron Worhs,*15 App. D. C., 198; 181 U. S., 453; *United Engineering <& Contracting Company*v. *United States,*47 C. Cls., 489; *Wells*v. *Army éa Navy Cooperative Society,*2 *246Hudson Building Contracts, 376; *Joffers on Hotel Company*v. Brumbaugh, 168 Fed. Rep., 867, 874; *Vilter Manufacturing Company*v. *.Tygart's Valley Brewing*Company, 168 Fed. Rep., 1002, 1004; *Weelcs*v. Little, 89 N. Y., 566; *Holme r.*Guppy, 3 Meeson & Welsby, 386.)

The second item is a claim for damages for defendant’s delay in conducting a test of the plant. Such a test must ¡be arranged and carried on with reasonable celerity. *(Moore*t. *United*States, 46 C. Cls., 139; *United Engineering <Ss Contracting Compcmy*v. *United*States, 47 C. Cls., 489.)

The third item of claim is for a deduction made by defendants on account of claimant’s refusal to furnish certain spare parts. Under the contract these are not required. Previous contracts between the parties were so construed and that construction must govern. *(Cebadlos*v. *United*States, 214 U. S., 47.)

*Mr. George E. Boren*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants:

It is submitted that there was no breach of contract on file part of defendants in approval of drawings; that it did ¿ot fail to fill the pier or level it off; that it was not required, under the contract, to pave the pier before the erection of steel; that it was the duty of claimant to suspend concreting in cold, weather under the contract, and he was not entitled to an extension of time therefor.

However, if there was any delay caused by the Government in respect to any of those, matters claimant waived it, under the provisions' of specification 13, by virtue of his f ailure to give requisite notice, require a decision thereon by the engineer, and appealing to the chief of bureau.

• It is therefore insisted there was no waiver of the liquidated-damage clause. When the contract expressly provides that, if the respective work of the respective parties provided for under the contract is not completed within the 12 months’ time-limit clause, and the Government waives its option to declare the contract void, the work shall be continued and completed under the contract and liquidated damages deducted, no delay on the part of either party can *247waive the liquidated-damage clause and the court can not waive it for them.

July 11, 1904, claimant and defendant entered into a contract supplemental to the contract of November 18, 1901. If default occurred waiving specification 12, providing for liquidated damages, the supplemental contract expressly reinstated it.

There is no provision in the contract that claimant was to have additional time if the additional panels were added. He is bound by the express terms of the contract, and the addition of the 13 panels did not waive the 12 months’ time limit. He agreed to do the whole work in 12 months. ■ It is argued that because 13 additional panels were ordered, therefore 12 months was not a reasonable time to do the work, and therefore a waiver results. Defendant insists that this argument is overthrown by the fact that claimant contracted to do the 17 panels in 12 months, thereby agreeing that 12 months was a reasonable time to do the whole work.

Claimant’s second erroneous assumption is that the liquidated-damage clause was waived. Claimant agreed to complete the whole work in 12 months. But for the mutual benefit of both parties specification 11 provided that in the event the whole work should not be completed within the 12 months’ time limit period provided for in the first section of the contract and specification 9, said work should continue and be carried on according to all the provisions of the contract, plans, and specifications, and that an extension of time beyond the 12 months’ time limit should not be deemed a waiver by the Government *“*to impose and deduct damages as hereinafter provided,” which damages were liquidated damages as provided for in specification 12. Claimant’s assumption that the liquidated-damage clause was waived and that he had a reasonable time to complete the contract, failure in which would render him liable only for special damages, a damage which had been agreed by virtue of the liquidated-damage clause was not susceptible of proof, is untenable.

Defendant therefore insists that the 12 calendar months’ time limit clause in the first section of the contract and *248specification 9 was not waived, and that said clauses, together with specifications 11 and 12, providing for self-extension and liquidated damages, were all in full force and effect and must all stand and be construed together.

Defendant insists that the 12 calendar months’ time limit clauses and specifications 11 and 12 refer to each other and interlock with each other and all must stand and be construed together.

The facts show that at the date of the contract, November 18, 1901, the foundation pier was in course of construction, but no date was fixed in the contract when the foundation should be completed.

The Government was damaged by claimant’s delay and “ it being impossible to determine the actual damages suffered by this delay of 55 days, although it is certain that there was considerable damage, the rate of liquidated damages provided for in the contract was applied and damages fixed at $1,375 ” by the bureau on settlement, that being $25' per day, the rate of liquidated damages provided for in specifications 11 and 12 for 55 days beyond the 12 months’ time limit from the date the pier foundation was ready and the date when claimant for the first time had sufficient steel on the site to enable him to proceed with the erection.

This court, in the case of Rosser, speaking by Mr. Justice Booth, said:

“ The waiver of the time limit fixed in the contract was a waiver of the right of forfeiture. Defendants had a right to grant or to refuse to grant an extension of time, irrespective of damages resulting therefrom.” (Rosser, 46 C. Cls., 196.)

If defendant could grant an extension of time and not waive damages in the *Rosser*ease, there is much more reason in the case at bar why extension of time does not waive liquidated damages, because by the terms- of the contract it is expressly provided the contract shall be self-continuing after 12 months have expired, and that the liquidated damages provided for shall not be thereby waived.

The self-continuing provisions of specification 11 interlock with the 12 months’ time-limit clause in the first section *249of the contract and specification 12 providing for liquidated damages in case of a continuance of the work beyond the 12 months’ time limit, and all of said clauses must stand and be construed together. Said clause taken with the fact that the foundation pier was completed before June 1, 1903, the date claimant admits to be the earliest time sufficient steel had arrived to enable him to commence erection, brings this case clearly within the rule prescribed by the Supreme Court in the *McGowan case.*(121 U. S., p. 575.)

In the *McGowan*case, as in the case at bar, “ the parties treated the contract as in full force, except as to the time in which it was to be performed, and the work was done and the payments were made under the contract as thus extended in time.”

In the *Moms Dry Doch c& Repair Company case*the principle announced in the *McGowan case*was applied to a contract containing a clause providing for liquidated damages and upheld the deduction of liquidated damages. *{Morris Dry Doch da Repair Company*v. *Seaboard Transp.*Co., 161 Fed. Rep., p. 99.)

In the case of the *United States*v. *The BetKlehem Steel Company*the United States delayed the company in the performance of their work by changes in the plans of construction and in other ways, and notwithstanding the Supreme Court held the company liable for the liquidated damages as provided for in the contract in proportion to the company’s delay after deducting the delay caused by the United States. *{United States*v. *Bethleh'em Steel*Company, 205 U. S., 105, 113, 121.)

Under the principles announced in the foregoing cases, defendant insists that it was incumbent upon the claimant to complete the construction of said building within the 12 calendar months from June 1, 1903, and that he was responsible under the contract for liquidated damages at the rate of $25 per day for every day of delay in the completion of the contract after June 1, 1904.

The numerous cases cited and relied on by claimant in his brief are not authority in the case at bar, for the reason that the contracts under consideration in those cases did not con*250tain a self-continuing clause expressly providing for liquidated damages in case the work was not completed within the time-limit clause, as is provided in the contract in this case and which distinguishes it from the line of cases cited by claimant.

Booth, J.,

delivered the opinion of the court:

The claimant, Augustus Smith, entered into a written agreement on November 18,1901, to furnish all materials and labor necessary to construct a coal-storage plant at the New York Navy Yard. The work was to be completed within 12 calendar months from the date of the contract. The coal-storage plant contemplated by the contract was to be a steel structure containing four panels or pockets so arranged that movable machinery above the same could be used in hoisting and depositing coal inside these pockets, the purpose being to coal vessels from said pockets expeditiously. At the timé of the proposals for and the letting of the contract the defendants had $60,000 available for the purpose. It was contemplated, however, and well known to both parties to the contract, that the defendants had requested an additional appropriation of $100,000 for the expressed purpose of enlarging the plant, and the claimant included within his bid, which was also included within the contract, an expressed agreement to construct additional coal pockets or panels for the sum of $7,500 each. The consideration for the construction of the four panels and other portions of the plant, as authorized by the available money on hand, was $60,000. Immediately after the claimant received notice of the acceptance of his bid he made his plans for the materials necessary to be used and took the necessary steps to execute the contract; in fact, he anticipated a $100,000 appropriation, and ordered necessary materials for, the same before the amount was appropriated by Congress.

On July 1, 1902, Congress made the necessary appropriation, and on August 12, 1902, defendants notified the claimant that he would be required to construct 13 additional coal pockets or panels. By the terms of the agreement the defendants were to construct the pier upon which the struc*251ture was to rest. This pier was to be properly filled, leveled off, and the foundation for the superstructure fully completed before the claimant could commence his work. The pier was sufficiently advanced to permit the claimant to commence work on June 1, 1903, on which date he did commence work, completing the structure on July 25,1904, which, after proper tests, was finally accepted and paid for, except the sum of $1,375, which was deducted by the defendants because of delays chargeable to the claimants under the liquidated-damage clause of the contract. This suit is to recover said sum, together with two other small items for expense in maintaining the plant during a period of delay and for certain spare parts which the defendants claim the claimant failed to supply.

It is not difficult to glean from the findings the indisputable circumstances surrounding the making and execution of this contract. The contractor knew at the time he executed the specific writing that he might be called upon to do additional work; in fact, he so certainly anticipated this event that he' acted upon it at a time previous to the granting of any authority so to act. The Government, on the other hand, while acting in the execution of the contract strictly within its then authority, provided by express terms for a contingency which it was then urging and which, when it did happen, would be covered by the consideration stated in this single written instrument. The Government, fully aware of the uncertainties of legislation respecting appropriations of public funds, contracted for a coal-storage plant to be erected at a cost of $60,000 to be completed within a year from the date of the contract. That was the subject matter of the contract at the time of its execution, it was the limit of the Government’s authority in the premises, and exhausted the public funds available for the purposes of the contract. Until Congress appropriated an additional sum no other stipulations respecting the price or extent of the work to be done were in effect. Subsequent to the additional appropriation and after the defendants had decided to enlarge the plant, the claimant’s obligations under the contract expanded accordingly. The contingency anticipated by both parties had hap*252pened, the time limit in the contract had no reference to the enlarged work, and the defendants never so construed it. At the time of the execution of the contract they had no authority to do more than contemplate its possibility and provide for its happening. It would be utterly absurd to impute such an intention, for the work itself was increased more than threefold and the consideration for it more than doubled.

It was a conceded physical impossibility for the defendants themselves to execute their preliminary obligations upon which the claimant’s commencing of the work absolutely depended, within or even approximately within any date mentioned in the contract. With manifest fairness the defendants admit that the pier upon which the whole structure to be erected was to rest was not ready for the commencement of work until June 1,1903. With an apparent spirit of fairness and conciliation the defendants compute the period of claimant’s delay upon a basis of compromise. Making the most of it, the computation manifests decided uncertainty, adopts arbitrary dates, and finally' concedes an allowance to the claimant of 30 days, which, under the contract they claim the right to deduct for but which deduction they remit to make certain they have in no way exceeded their rights under the contract. No better compromise could have been proposed, perhaps, nor is bad faith in anywise imputed, but it is quite difficulty to understand just why July 1, 1902, was taken as the date for the commencement of the enlarged work, when the same was not ordered to be done until August 12, 1902. It is quite true the legislation making the increased appropriation became effective on that date, but it is equally true that the claimant had no knowledge of the extent of the additional work he was to perform or the obligations he must incur. The defendants’ counsel does not insist upon this date, but commences the work on June 1, 1903, gives the claimant one year from that date for performance, and by a strange coincidence reaches the same result, i. e., if you deduct the 30 days deducted by the Bureau of Yards and Docks. (See Finding vm.) Thus the claimant is charged with 55 days’ delay and liquidated damages assessed at $25 per diem, *253amounting in all to $1,375. Viewed then in all its aspects the undertaking involved primarily the erection of a coal-storage plant costing $60,000 to be completed within one year from the date of the contract with a distinct provision therein that any enlargement of the plant *thereafter*authorized should be constructed at the additional expense of $7,500 for each panel. The very words of the contract conclusively show that the work intended by the $7,500 proposition was to be work in *addition,*to the $60,000 plant. A fixed unit price was stated without in any way signifying the number of units to be ordered. Neither party having any knowledge at the time as to the final extent of the whole work. Each contracting party so understood the agreement and each construed the contract as giving additional time in the event of additional work.

The defendants obligated themselves to erect and prepare the site, a precedent condition upon which the commencement of the erection of the plant depended. To do this under the enlarged work required an increase in the volume of work in proportion to that required of the claimant, and in performing it they consumed nine months and nineteen days from the time it was decided to do it, viz, from August 12, 1902, to-June 1, 1903. When the defendants were ready for the claimant he was ready to begin the work, and did begin it.

It has been repeatedly held both by the Supreme Court and this court that where the building owner delays the contractor the former can not enforce a time-limit stipulation for the completion of the work, .but by his conduct waives the same, giving to the contractor a reasonable tim'e in which to complete the contract work. *(District of Columbia*v. *Camden Iron*Works, 181 U. S., 453; *Ittner*v. *United*States, 43 C. Cls., 366.)

In the case of the *United Engineering Co.*v. *United States*(47 Ib., 489), this court, in an exhaustive opinion by former Chief Justice Peelle, collated the authorities respecting the subject and treated it fully. In the case just cited the delay occasioned the contractor occurred after the contract work began, and for that reason it is insisted that case comes more nearly within *McGowan*v. *American Tan Bark Co.*(121 *254U. S., 575), and *Laidlaw-Dunn-Gordon Co.*v. *United States*(47 C. Cls., 271). There is a vital difference in the facts of the above two cases as applied to this: In each of them there was no change in character or amount of the contract work to be performed; the subject-matter of the contract remained the same; the article to be delivered and the work incident thereto was neither increased nor diminished because of the defendants’ dilatoriness; the contract still remained capable of execution within the period of time fixed in the contract, although not within the dates. Here it is conceded by the defendants that it would have been a physical impossibility to have executed the contract work within the time fixed therefor in the original undertaking.

It is, however, contended that Specification XI was intended to cover this very contingency; that by its express terms it was to become operative *in futuro,*and when the extra work was ordered it served as a.self-continuing clause,keeping the contract as applied to the decreased work in full force and effect in all its various clauses and stipulations, including the one-year time limit as to the increased work.

Specification XI reads as follows:

> *“Continuance of work after time.*— It is mutually understood and agreed that in the event of the work not being completed within the time allowed by this contract, said work shall continue and be earned on according to all the provisions of said contract, plans, and specification, unless otherwise at any time directed by the party of the second part, in writing, and said contract shall be and remain in full force and effect during the continuance and until the completion of said work, unless sooner revoked or annulled according to its terms: Provided, That neither an extension of the time beyond the date fixed for the completion of said work nor the permitting or accepting of any part of the work after said date shall be deemed to be a waiver by the party of the second part of its right to annul or terminate said contract for abandonment or failure to complete within the time specified in paragraph 9, or to impose and deduct damages as hereinafter provided.”

The specification is an unusual one. Its meaning and intent are not quite clear. Supposing, for the instant, de*255fendants’ contention is sound, we have then a contract containing a dormant specification in nowise affecting the rights of the parties to the contract when applied to the $60,000 clause, and hence incapable of preserving the liquidated-damage clause if the extra work had never been ordered. To make it plainer, if the defendants had delayed the contractor in the construction of the $60,000 plant, as they did thereafter, and forced him to begin his work at a time when it would have been impossible to complete it within the time limit specified, no recourse could have been had under Specification XI to deduct liquidated damages, and the claimant would have been entitled to a reasonable time to complete the work, thereby leaving open and without any provision whatever, except Specification XII, for the imposition of liquidated damages in case the work provided for was not completed in time. It serves to give the contract an unusual twofold meaning by extending to the contractor 12 months for the completion of the $60,000 plant and at the same time limiting him to exactly the same period to complete a work more than three times as great and involving more than twice the consideration. It would seem more in accord with reasonableness to say that the contract meant that the contractor would erect and complete the $60,000 structure within a year; if you order 1, 2, 12, or 13 additional panels I will construct them at $7,500 each, with no mention of the time in which to do it. You have authority only to contract for the $60,000 plant; you have expressly so stated in the following language:

> “ Item 2. The bureau intends to recommend an additional appropriation being made by Congress of $100,000 for an extension to the plant bid on under item 1, which, if granted, will become available not later than July 1,1902, and invites proposals upon this extension to cost not more than $100,000. Contract can now be entered into only to the amount of $60,000, and bidders should make their supplemental proposals contingent upon the additional appropriation of $100,000 being made. While the award will be made for not exceeding $60,000, the decision will be influenced by the design of the $160,000 plant. The $60,000 plant shall be complete in itself so far as this limited amount will permit, *256and the supplemental proposal under this item shall be for' an extension to be undertaken and carried out in such way as to make the entire plant one compact, complete whole. A decision will be made upon the contingent acceptance of item 2, or its rejection, at the time of the award for the plant to be constructed under the appropriation available.”

The supplemental proposal invited by the above memorandum referring to the possible extension of the plant depended for validity upon subsequent events; the claimant, by the terms of the agreement, offered to construct the extension at so much per each panel. To that offer he was bound, but the defendants were not obligated to accept it; the mutual obligations of the contracting parties extended until August, 1902, to the $60,000 plant only, with reference to it as an authorized undertaking, and to it alone did the contract then apply. To make it applicable to'the extension, required- subsequent legislation and subsequent action upon the part of the United States, and while nothing was said as to additional time for completion of the work, both parties understood and both parties so construed the contract to intend its allowance. There could be no provision respecting it, for the defendants had not then determined its extent. They didn’t know whether they would order 12, 13, or more panels, and had no possible way of fixing a time limit for the construction of a panel. Government contracts of this character are not at all unusual; necessary governmental work is not infrequently inaugurated with a view to its enlargement and extension by subsequent appropriations not at the time available to carry forward the contemplated project. In .all such instances the same precautions are given, and the same limitations inserted in both contract and memorandum advising the contractors as to the limit of the Government’s present authority to contract. Provision is sometimes expressly made for future contingencies, wherein the parties are made to understand by plain and unambiguous language that the defendants reserve the privilege to change, enlarge, or revise the whole work, providing in detail for all such changes, including proper extensions of time.

*257Specification XI was limited to tbe contract for tbe $60,000 plant. If it bad been intended to embrace tbe enlarged work it would bave been a very simple matter to have so stated. Apt language would bave been employed, giving to tbe defendants an express right to fix another date for tbe commencement of tbe work and another period of time for its completion. Nothing could be more persuasive if not conclusive than the action of the defendants themselves, where, as shown in finding vm, they conceded 22 months’ time to the contractor, a period nowhere mentioned in the written instrument itself. Taking the findings as a whole, considering the action of the parties to the contract, it is fully justifiable to state that the time limit mentioned in the contract was not only impliedly waived by the delayed action of the defendants, but was expressly set aside by their own written reports. The engineer in charge of the work for the United States advised that it be done and commended the claimant for his celerity of performance.

Was the work completed within a reasonable time? From the record before us there can be no doubt of this fact. The claimant was diligent; work was prosecuted at times under the stress of labor disturbances when practically all other work in that locality was suspended. Labor and material were procured with reasonable dispatch. In fairness to both parties, it may be properly observed that, subsequent to June 1, 1903, the work progressed with mutual .advantage and was completed as soon as it could reasonably' have been done. There is no room for complaint for either party after the work started until its completion. The undertaking as finally consummated was a work of great magnitude, requiring large quantities of material and much machinery. Taking the conceded date of completion as the proper one, we find the claimant meeting all the requirements of the enlarged contract in 1 year and 54 days from the time the Government was ready for him to commence work.

The other items of the claim are without merit.

Judgment is .awarded the claimant for $1,375. It is so ordered.