#### JOHN PICKLEY v. THE UNITED STATES.

[No. 28890.

Decided January 16, 1911.]

*On the Proofs.*

The suit grows out of engineer’s contracts in the usual form for work on the Mississippi to be completed by a day named; there is unreasonable delay in approving the contract and definitely designating the places at which the work is to be done. The claimant is charged with the expenses of superintendence during extension periods, which extensions he maintains were rendered necessary by the inaction of the defendants’ officers.

I. The engineer’s delay of three months in designating the place where contract work shall be done does not excuse a contractor for taking nearly a year more than the contract period. A reasonable extension of time is all that he can be entitled to.

II. Where a contractor has four contracts and employs a force sufficient only to do the work under one of them at a time the fact that the engineer in charge moves the working force from one place to another does not excuse the contractor for delay if the contracts provide that work shall be done “ *at such points as may he selected by the engineer officer 'in*charge,”

*78III. It is a matter of common knowledge that high water on the Mississippi River occurs by periods as regularly as the seasons. A provision in a contract that when an extension is granted “ *’because of freshets, ice, or other force or violence of the elements there shall be no deduction for inspection and superintendence during additional time allowed*” does not extend to the ordinary periods of high water of the river.

IV. It is well settled that when a contractor is entitled to notice to begin and it is not given until shortly before the period for completion ends he will be entitled to reasonable time. This right can not be defeated by the suggestion that the contractor had only an insufficient force to complete it during the contract period.

V.A custom may be shown to explain a written contract when there is something to be explained. But where a contract does not require the contractor to give notice that he is ready to begin work it can not be imported into the contract by custom.

VI.Receipts in full given by the contractor for moneys actually due him do not constitute a settlement or accord and satisfaction where there is nothing to settle and no difference to accord. A contractor is not barred by the receipts from recovering a balance under the contract honestly his due.

*The Reporters’*statement of the case:

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

I. On July 21,1899, claimant entered into a contract with the United States through Capt. Charles McD. Townsend, Corps of Engineers, United States Army, for building dams and shore protection on the Mississippi River between Cass-ville, Wis., and Dubuque, Iowa, as set forth in the petition as amended.

This contract was approved by the Chief of Engineers on August 26, 1899.

II. On July 21, 1899, claimant entered into a contract for similar work between Dubuque, Iowa, and Le Claire, Iowa, on specifications the same as those given in the preceding finding. All of the stipulations and conditions of this contract were the same as those given in the preceding finding with the exception of the location of work, which was as above stated, and the price to be paid, which was 25 cents *79per cubic yard for brush and 94 cents per cubic yard for rock.

This contract was approved by the Chief of Engineers August 25, 1899.

III. At the time of entering into these two 1899 contracts set forth and shown in Findings I and II, above, the claimant had two uncompleted 1898 contracts with the Government for similar Mississippi Eiver improvement work, one of which contracts was for work between Dubuque, Iowa, and Le Claire, Iowa, and the other for work between Winona, Minn., and La Crosse, Wis., and each of which called for completion of the work thereunder by the 30th of September, 1899.

With the exception of the dates thereof, the difference in the location of some of the work called for, and the provisions as to dates for completion and rates of compensation, the terms and conditions of each of these 1898 contracts were the same as those of the said 1899 contracts.

IV. On the Cassville to Dubuque contract claimant was ordered to commence work on November 6, 1899. He reported at Spechts Ferry, Iowa, November 3, 1899, and commenced work November 6, 1899. Work was prosecuted continuously until February 28, 1900, when work was stopped on account of the following order:

“ Rock Island, III., *February %6,1900.*

“Mr. John Pickley, Dubuque, *Iowa.*

“ *Sir :*Owing to the fact that exceedingly poor headway is being made by you on your contract work at Spechts Ferry, Iowa, you are hereby notified to cease operations there until further orders from me.

“Very respectfully,

“ C. McD. Townsend, *“Major, Corps of*Engineers.”

Claimant resumed work April 12, 1900, but on account of the high water on April 20, 1900, was ordered by the Engineer officer in charge to cease work on this contract and proceed to Winona for work on the Winona to La Crosse contract. About August 11, 1900, claimant was ordered to return to the Cassville to Dubuque contract and resumed *80work on it August 16, 1900, and continued until October 15, 1900, when work was discontinued on account of the high water, and the fleet moved by order of the Engineer officer in charge to the Dubuque to Le Claire contract. June 27, 1901, the contractor was ordered by the Engineer officer in charge to take up this contract again, which order was obeyed June 29, 1901, and the contract was completed August 31, 1901; The actual working time was 7 months and 29 days.

V. The actual working time on the Winona to La Crosse contract was from about April 27, 1900, until about August 11,1900, a period of 3 months and 14 days.

VI. On September 19, 1900, the claimant was instructed in writing to commence operations on the Dubuque to Le Claire contract within 10 days from date. In accordance with this order the contractor commenced work September 28, 1900, with a part of his force and outfit, which was joined by the remainder of his force upon the discontinuance of his work on the Cassville to Dubuque contract October 16, 1900, and the whole force continued at work until November 12, when stopped by ice in the river, when the fleet went into winter quarters. He resumed work on this contract at Gordons Ferry, Iowa, April 18, 1901, and continued until June 6, when ordered by the Engineer officer in charge to Dubuque to do some emergency work under the same contract in putting in dams at the bridge. Work there was commenced June 27, 1901, when the contractor was ordered by the Engineer officer in charge to take up work on the Cassville to Dubuque contract. This he did June 29, 1901, and worked until August 31, 1901, when that contract was completed. On September 2, 1901, work was resumed on the Dubuque to Le Claire contract and the same was completed November 14, 1901. The actual working time under this contract was 6 months and 15 days.

VII. When, as set forth in Finding IV, claimant, then at work at Spechts Ferry, Iowa, was ordered to suspend work on the Cassville to Dubuque contract and to proceed to Winona, Minn., about 130 miles distant, work might have been done at Finleys Landing, only a few miles off. This *81work was done subsequently by claimant upon bis return from Winona. Claimant was delayed four days by this transfer.

When claimant was at work at Pomme de Terre he was ordered to cease work there and proceed to Dosiea Bottoms, 25 or 30 miles distant. After working there several days claimant was ordered to return to Pomme de Terre to finish work previously left uncompleted. Two days were lost in making this change.

In addition to the above, by order of the Engineer officer in charge, shifts were made upon the following dates from one part of the work to another on the same contract: No-A-ember 2, 1900; November 11,1900; April 26,1901; May 11, 1901; May 16, 1901; May 23, 1901; June 6, 1901; July 15, 1901; NoArember 11, 1901. Each shift caused on an average about one day’s delay.

VIII..On September 19, 1900, the Cassville to Dubuque contract was, with the approval of the Chief of Engineers, extended to November 15, 1900, and the Dubuque to Le Claire contract, Avith the same approval, to September 1, 1901, it being ordered, however, “that the contractor is to be charged with all expenses of superintendence and inspection and any loss or damage to the United States during the period of extension.”

October 26, 1900, the claimant in writing asked for an extension of time for the completion of the Cassville to Du-buque contract to September 30, 1901, “on account of the high water”; October 30 thereafter the Engineer officer in charge referred this request to the .Chief of Engineers with the recommendation that the same be granted, and said that the high water, unusual at that time of year, compelled the cessation of operations early in October. November 2 thereafter the Chief of Engineers replied authorizing the engineer in charge to extend the contract as requested, providing, however, that the “ contractor should be allowed such portion of the extension without deduction of expenses of superintendence and inspection as will equal the time lost by high water or other of the causes specified in paragraph 35 of the specifications.” And adding: “ For the period of *82time, if any, over and above such allowance he should be charged with all expenses and any loss or damage to tho United States.” The time for the completion of the Cass-ville to Dubuque contract was accordingly extended to September 30, 1901.

The following application for further extension on the Dubuque to Le Claire contract was made August 6, 1901:

“ Dubuque, Iowa, *Aug.*6th, *1901.*

“ Major C. McD. Townsend,

*“Rock*Island, *III.*

“DeaR SiR: Being unable to complete my contract between Dubuque and Le Claire on time on account of high water last fall and this spring, making it impossible for me to secure material, I continued work during this period with a small force of men. During the months of June and July it was impossible to get anyone to work on account of the extreme heat. I therefore ask you for an extension, on this contract to July 1st, 1902. Hoping you will grant this to me, I remain,

“ Yours, truly, John Pickley.”

This letter was forwarded by the Engineer officer in charge to the office of the Chief of Engineers with an in-dorsement that the extension requested be allowed, which letter was returned by the Chief of Engineers approving the recommendation for allowance. The time for the completion of the Dubuque to Le Claire contract was accordingly extended to December 1, 1901.

IX. The contractor did not wish and was not required by said Engineer officer to carry on all or any two of the three contracts hereinbefore mentioned simultaneously, but was instructed to commence work on the one appearing to the engineer most advantageous to navigation. This method of doing the work was to the advantage of the United States for the following reasons, stated by the engineer in charge: The number of inspectors needed at any one time was much smaller and a sufficient force of qualified men could be readily obtained. The contractor’s plant and men were on the river available for emergency work during the time of the extension of the contract, which would not have

*83been possible bad not the contracts been extended. It did not increase the cost of inspection and superintendence, as the work on each contract was carried on with sufficient vigor to complete it within the limit of time specified in the contract as extended. One set of inspectors only was employed, who remained with the contractor’s fleet as it was moved from one contract to another by order of the Engineer officer in charge.

The contractor in every instance obeyed promptly the orders of the Engineer officer in charge as to commencing the work, and did the work in exactly the manner required by the Engineer officer in charge.

Pursuant to directions, the Engineer officer in charge transmitted a voucher covering proposed payments during the period of extension of the contract of one Jacob Bicht-man, whose contract was similar, for the decision of the Comptroller of the Treasury as to whether, if the voucher was paid, the amount would be passed to the engineer’s credit, and saying the decision was to govern in that case and other similar cases. Accompanying this voucher was a letter from Maj. Townsend recommending that the contractors be not charged with the expense of inspection and superintendence on their contract extensions until it should appear that there was a loss to the United States by reason of the extensions, and saying that at that time there had been no such loss for reasons given in said letter, and given above. The claimant was notified of the transmission of this letter.

The comptroller decided that the costs of inspection and superintendence should be charged to the contractor, of which fact the claimant was at once notified.

X. There were charged against the claimant and deducted from the contract prices for the work performed the following aggregate amounts, the same being the actual cost to the Government on account of superintendent and inspectors’ salaries during the periods of extension of the contracts:

On the Oassville to Dubuque contract_ $455. 67

On the Dubuque to Le Claire contract_ 1, 202. 66

*84Of the total $1,658.33 of these deductions, $856 were for' superintendence and inspection expenses during the first extensions of the contracts, and the remaining $802.33 were for superintendence and inspection expenses during the second extensions of the contracts. The cost of inspection was charged at the rate of $185 per month.

These deductions were made by monthly deductions from the monthly estimates and payments made on the work, the amount and character of the deductions being clearly shown by the voucher for said payments. With the exception of differences as to contracts, time, quantities, and amounts, all of said vouchers and receipts, except the last on each contract, were similar in substance and form to those on which the first deduction was made, which were as follows:

[Appropriation for improving' Mississippi River from mouth of Ohio River to Minneapolis, Minn., between mouth of Missouri and Minneapolis.]

*The United States (for general improvement) to John Picldey, Dr.*

Address: Dubuque, Iowa.

For the following material placed in dams and shore protections on Mississippi River between Cassville, Wis., and Dubuque, Iowa, from October 1 to October 16, 1900, both dates inclusive:



I certify that the above account is correct and just. The articles have been expended and applied to the purpose for which purchased.

O. MoD. Townsend, *Major, Corps of Engineers.*

Received at Rock Island, Ill., this 27th day of October, 1900, from Major O. McD. Townsend, Corps of Engineers, the sum of two thousand five hundred and sixty-six (2,566) dollars and sixty-one (61) cents, in full payment of the above account, which I certify to be correct.

John Pickley.

*85The last voucher on each contract was in the following form:

*The United States (for general improvement) to Jolm Pielcley, Dr.*

Location: Dubuque, Iowa.

1901.

Sept. 1. For tbe percentage retained from estimates of rock and brush, placed in dams and shore protections in Mississippi River between Oassville, Wis., Dubuque, Iowa, as follows:

Amount retained as shown in following

1899. vouchers—

Nov. 25. Voucher 162, November, 1899- $309. 67

Dec. 30. Voucher 100, December, 1899_ 186.79 1900.

Jan. 27. Voucher 33, January, 1900_ 78.88

Feb. 24. Voucher 40, February, 1900_ 12.85

Apr. 20. Voucher 24, April, 1900_ 174.90

Aug. 25. Voucher 210, August, 1900_ .310.07

Sept. 29. Voucher 24, October, 1900_ 821.66

Oct. 16. Voucher 167, October, 1900_ 297.37 1901.

July 27. Voucher 45, July, 1901_■_ 504. 61

Aug. 15. Voucher 89, August, 1901_-_ 365. 75

Aug. 31. Voucher 162, August, 1901_ 365.58

3,428.13

“ Under formal contract dated July 21, 1899.

“ Extended to Nov. 15, 1900.

“ Extended to Sept. 30, 1901.

“ Contract sent to auditor Aug. 26, 1899.

“ I certify that the above amount is correct and just and that the work has been completed in accordance with the terms of the contract and accepted by the United States.

“(Except as to time.)

“ C. MoD. Townsend,

“ Major, *Corps of Engineers.*

“ Received at Rock Island, Ill., this 10th day of Sept., 1901, from Major C. McD. Townsend, Corps of Engineers, the sum of three thousand four hundred & twenty-eight (3,428) dollars and thirteen (13) cents, in full payment of the above account, which I certify to be correct.

“John Pickley.”

It does not appear that the parties at the time said receipts were given had any settlement of disputed claims or items as to the amount due upon said contracts.

There is no evidence to show that the claimant made any protest against any of the deductions made for the cost of inspection, including board, from his contract price, either *86at the time said extensions were given or when he signed the receipts herein mentioned.

XI. Under section 49 of the specifications the claimant furnished board for the Government inspectors; and for board so furnished at the rate of *50*cents per day during the periods of the contract extensions, amounting on the Cass-ville to Dubuque contract to $78, and on the Dubuque to Le Claire contract to $189, the claimant has received no payment, the same having been withheld as a part of the Government’s superintendence and inspection expenses during the contract extensions. Of the total amount of $267 so withheld, the sum of $139 was for board during the first extensions of the contracts, and the remaining $128 for board during the second extensions.

XII. The force actually employed by the claimant in the prosecution of the work upon the several contracts mentioned was inadequate to enable him to prosecute the work upon more than one contract at the same time, and he was not required to do so with the exception of the period from September 29, 1900, to October 16, 1900; and the several extensions of time for their completion, except the Dubuque to Le Claire contract, were given because of such inadequate force, with the exception of the extensions given on account of high water as herein found. The delay in giving notice to begin work under the Dubuque to Le Claire contract made it impossible for the claimant to complete the same within the period therein provided, and after such notice was given he completed it within a reasonable time.

On account of the claimant’s having his full force and outfit engaged upon said 1898 Dubuque to Le Claire contract, which it was desired to be completed at as early a date as possible, the claimant was not required to begin-work on either of his 1899 contracts until after the completion of his said 1898 Dubuque to Le Claire contract, October 31, 1899.

Mr. *Archibald King*and *Mr. George A. King*for the claimant.

*King (& King*and *Mr. William E. Harvey*were on the briefs.

*87
      *Mr. Charles F. Eineheloe*(with whom was *Mr. Assistant Attorney General John Q.*Thompson) for the defendants.

Baeney, J.,

delivered the opinion of the court:

This suit grows out of two contracts entered into by the claimant with the Government under date of July 21, 1899, for improvement work on the Mississippi River, one of them for work between Dubuque and Le Claire, Iowa, and approved by the Chief of Engineers August 25, 1899, and the other for work between Cassville, Wis., and Dubuque, Iowa, and approved August 26, 1899. Both to be completed by September SO, 1900.

Work -was to be commenced when directed in writing by the Government engineer in charge and was to be prosecuted at the points prescribed by him, there being no definite location specified for the work other than the terminal limits of the river sections named above. The contracts provided that if extensions of time for the completion of the work should be granted to the claimant he should be charged with all of the Government’s expenses of superintendence and inspection during the extension periods, and the same should be deducted from payments due, unless the Government engineer, in the exercise of his discretion, should in writing grant such extensions because of freshets, ice, or other force or violence of the elements, in which event such expenses should not be charged against the claimant.

At the time of entering into these two 1899 contracts, the claimant had two uncompleted contracts with the Government for similar Mississippi improvement work, one of which contracts was also for work between Dubuque and Le Claire, Iowa, and the other for work between Winona, Minn., and La Crosse, Wis., and each of which called for completion by the 30th of September, 1899. With the exception of dates, location, and rates of compensation, the terms and conditions of all these contracts were identical.

The force which was employed by the claimant was inadequate to prosecute these contracts simultaneously, for which reason he prosecuted them in detail at such places and *88times as directed by the Government engineer in charge. The findings set out these movements in detail, but from the view which the court takes of the case, further mention of them here is not necessary, except to state that this method of doing the work does not appear to have been injurious to the Government for the reasons given by the Government engineer officer in charge and as set out in Finding IX, and which are self-evident. With this preliminary statement we will now consider the claims under the two contracts separately.

CASSVILLE TO DUBUQUE CONTRACT.

This contract was approved August 26, 1899, and work ordered to be begun under it November 6, 1899, and it was completed August 31,1901. The claimant was charged upon this contract for about two and one-fourth months’ extra inspection and superintendence.charges and board, or $458.67. The claimant contends that these charges were improperly made because (1) there was unreasonable delay in approving and ordering work to be"begun under this contract, (2) the claimant was delayed at different times in the prosecution of his work under this contract by being moved about from place to place to work upon other contracts, and (3) because (as it is claimed) an extension of time under this contract was granted from October 26, 1900, to September 30, 1901, on account of “ high water.”

Notice to begin work was given November 6, 1899, and the claimant had time for completion till September 30,1900, or nearly 11 months. When we take into consideration the fact that only 7 months and 29 days were occupied in completing this contract, this delay in giving notice can hardly be said to have been unreasonable, and if it had been a few weeks late (and it would not have been more than that) it could not excuse the claimant in tailing nearly a year more than the contract period to complete his contract. It would have given him a reasonable extension of time for completion and no more.

Neither do we think there is any merit in the contention that the delays in moving the work from place to place under the different contracts by order of the engineer in charge is *89any excuse for the delay on the part of the claimant. During a large part of this time the claimant had four contracts in progress on the Mississippi Eiver, and was working with a force only sufficient to carry on one contract. The contracts all provided that work thereunder should be done “ at such points as may be selected by the Engineer officer in charge.” The exigencies of navigation on the Mississippi Eiver doubtless demanded these changes from place to place, and we think the claimant has no cause for complaint on that account.

In the fall of 1900 the claimant asked for 11 months’ extension of time on account of “high water,” and it was granted. It is now contended that this extension of time comes within section 35 of the specifications, which provides that when extensions are granted “ because of freshets, ice, or other force or violence of the elements, there shall be no deduction for inspection and superintendence for such additional time so allowed.” We do not think a period of “high water” on the Mississippi Eiver comes within this exception. They are not ordinarily occasioned by “ freshets.” It is a matter of common knowledge that on that river and on all rivers extending through a large extent of territory, periods of high water occur as regularly as the seasons. The claimant entered into his contracts with this knowledge, and knowing that during these periods work would be difficult, if not impossible. The time allowed and the time actually occupied in the completion of these contracts shows that such exigencies were taken into account. It might also be added that it is hardly possible that this period of high water would have continued the whole period of extensions, which was nearly one year.

For the reasons given we do not think the deduction of $455.67 from the contract price on the Cassville to Dubuque contract was improper, and this item of the claim is disallowed.

DUBUQUE TO LE CLAIRE CONTRACT.

This contract was approved. August 25, 1899, and work ordered to be begun under it September 19, 1900, which was *90but 11 days before the time for its completion under the contract expired. The work was completed November 14, 1901, which was a little less than 14 months after notice given, and which was about the time which would have been allowed under the contract if notice to begin work had been given within a reasonable time. The court feels fully justified in finding this to be a reasonable time. It is unnecessary to cite authorities to the proposition that when a contractor has more than a year after notice to begin to complete a job, and notice is not given until 11 days before the time for completion, he will have a reasonable time in which to do the work.

But it is contended by the Government that the claimant did not employ a force adequate to carry on all of his contracts simultaneously (and the findings show that to be the fact), and for that reason it was not incumbent on the engineer officer in charge of the work to give notice to begin on this contract before he did. Evidently the engineer thought not, certainly as a moral obligation, and did not give the notice before he saw the claimant could respond. It is more than likely that he withheld giving the notice as long as he did as a favor to the claimant, knowing as he did, and as the findings show he said, that this would involve no additional expense to the Government by way of ^additional superintendence or inspection. It was, however, incumbent on him as a legal obligation, if he wished to impose upon the claimant the obligation to complete the contract before September 30, 1900, or incur additional expenses for inspection and superintendence. It might also be asked, what right have we to assume that if the notice had been given in time to require completion within the terms of the contract the claimant would not have employed a sufficient force for that purpose?

The Government has also introduced evidence tending to show that it was the custom in contracts of this kind for the contractor first to notify the engineer officer when he was ready to begin work before an order to do so would be given, and has asked for a finding to that effect. A custom may be shown to explain a written contract when doubt arises as to *91tbe meaning of words or expressions of doubtful character and various senses; in other words, when there is something to explain. But when its provisions are plain and susceptible of but one meaning, no custom or usage can contradict them. *(Insurance Co.*v. *Wright,*1 Wall., 456, 470; *Barnard*v. *Kellogg,*10 Wall., 383, 390; 2 *Greenleaf on*Evidence, secs. 251, 292.)

Even if such were the custom, we can not see how it would help the Government in this case; on the contrary, if anything, it makes against it. It would only show that the time limit in the contract was of but little importance and that contractors were given time to complete existing contracts before the time limit was started under new contracts, and then by custom were given a reasonable time in which to complete new contracts if the giving of the notice was too long delayed.

It is further contended by the Government that the receipts given by the claimant are an acquittance of any further demand under these contracts, and numerous authorities from our own courts are cited in support of this contention, and an equal number from the same courts are cited in opposition. It would serve no good purpose to enter into a discussion and analysis of these numerous cases and we shall not do so. At the time these receipts were given -there was no dispute between the parties as to the amount due the claimant; the Comptroller of the Treasury had decided that the amount received was all that was due, and the paymaster could pay no more, and the claimant knew this. Quite likely he was led to believe that no greater sum was due him, but if so, as we decide, he was mistaken. There was no settlement or accord and satisfaction between the parties, because there was nothing to settle and no difference between them to accord, and hence there could have been no consideration for receipting for a sum less than was actually due.

Under the authorities as we understand them we do not believe that the claimant is barred from recovering the balance which we find was honestly his due under the' terms of the contract. *(Glavey*v. *United States,*182 U. S., 595, 607-608; *Fire Insurance Association*v. *Wickham,*141 U. S., 579; *92
      *Bostwick*v. *United*States, 94 U. S., 58; 12 C. Cls., 68; *Kiskadden*v. *United*States, 44 C. Cls., E. 205, 219; *Murdock*v. *United*States, 44 C. Cls., R. 464; *Cramp & Sons*v. *United*States, 216 U. S., 494.)

Judgment is ordered for the claimant in the sum of $1,391.66.