#### EDWARD F. FONDER COMPANY v. THE UNITED STATES.

[No. 29989.

Decided. February 17, 1913.]

*On the Proofs.*

A contractor agrees to erect at the powder depot near Dover 12 buildings one story in height with no cellars, the only excavation being for the foundations, the site to be “ *cleared by the contractor for the reception of the structure md the*
      *199surface to be graded “ *for the distance of fifteen feet from each building.”*

*198This was the last opinion delivered by Oh. Justice Peelle previous to his retirement.

*199I.Where tbe contractor agrees to clear the site for the reception of the structure, and to grade the surface for a distance of 15 feet from the building, a reasonable construction requires that he must remove any high ground within the foundation walls, and that he can not allow a mound to remain in the center of the site higher than the floor of the structure, or throw the cost of removing it on the defendants.

II.It has been definitely settled by the decisions of this court, affirmed by the Supreme Court, that strict performance can not be exacted by the party claiming damages if he was himself responsible for the delay which prevented the completion of the work within the prescribed time.

III.Where the contractor asks for an extension of time, and the defendants’ officers reply that it will be granted under certain conditions, one of which is the introduction of a time limit in the agreement, and the contractor replies that the proposed supplemental articles of agreement are agreeable to him, and he duly executes them, duress can not be imputed to the defendants.

*The Reporters’*statement of the case:

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

I. A contract was entered into on the 12th day of April, 1905, between the Edward F. Fonder Co., of Philadelphia, the claimant, and Maj. O. M. Mitcham, Ordnance Department, United States Army, for the construction of 12 buildings at the United States powder depot near Dover, N. J., as follows, to wit:

1 wheel and dynamo house-$4,500

1 storehouse for nitrate of soda- 9, 000

5 storehouses for reserve supply- 59, 550

3 storehouses for reserve supply_ 36,000

1 power house_ 27, 500

1 magazine for high explosives---17, 500

The storehouses were to be completed within 90 and 180 working days after the date of the contract. The power house was to be completed within 150 working days and the magazine within 90 days after the date of the contract.

Full plans, specifications, and drawings were submitted in accordance with the advertisement, which had been prepared by the commanding officer and the engineer in charge, *200specifically requiring all bidders to carefully investigate for themselves the probable amount of excavations which would be necessary in the construction of the buildings.

Plaintiff visited the sites of the buildings in company with the Government engineer in charge. The approximate sites of the buildings were pointed out by said engineer, who suggested that to determine the character of the material necessary to be excavated they visit an adjacent railroad cut. This they did and the plaintiff saw the general character of the ground in said cut.

On August 31, 1905, a supplemental contract hereinafter referred to was entered into which was approved by the Ordnance Department on September 18, 1905, granting an extension of time for the completion of certain ones of the buildings above described. A full statement of the dates of the contract and the dates for the completion of the buildings and of the dates when the buildings were finally completed and accepted is as follows:



II. Prior to the execution of the supplemental contract plaintiff company, under date of July 21, 1905, addressed a letter to the Chief of Ordnance, War Department, which is in substance as follows: An extension of time was asked on nine nitrate of soda storehouses, one wheel and dynamo house, one magazine, and one power house, because it appeared to be impossible to complete other buildings required *201under the contract within the 90 days specified therein, which contract will expire the 28th of July. Said letter goes on to state that at the time claimant’s representative investigated the proposed sites for the buildings the ground was covered with snow and it was impossible to accurately determine the character of the digging that has since been encountered in making the necessary excavations. Labor dissensions and difficulties have interfered with the progress of the work. Delay has been caused in securing the necessary material and receiving prompt deliveries of the same; but the structural-iron work in large part is now on the ground. Kegret is expressed at the conditions that exist, and yet it is impossible to complete the three soda storehouses, the wheel and dynamo house, and magazine B in the required 90 days’ time. The Government officer in charge of the work censures us to a degree for the slowness of the same, and while we are willing to admit it has not moved as satisfactorily as we have desired, we assure you that we have conscientiously endeavored to do our full duty. We are competent and willing to push the work along as rapidly as possible and trust we will be allowed to do so. But we are compelled to ask an extension of 60 days’ time on the buildings above mentioned. We trust that you will grant this extension.

To this letter the Chief of Ordnance, under date of August 15,1905, replied in substance as follows: After referring .to the delays and failure to comply with article 5 of the contract, said officer stated that the department proposed to annul the contract and stated that, to safeguard and be for the best intei’est of the public service, two courses were open to the department, viz, that the claimant company may proceed to complete the work, charging .any excess to cost that may result to the Government to the company; or it may, without further advertisement, enter into a new contract with claimant company under the following conditions: That the one wheel arid dynamo house, the one storehouse for nitrate of soda, and two of the five storehouses for reserve supply of war material shall be completed within 180 (instead of 90) •working days from April 12, 1905, the date of the original contract, and that the remaining three of the five storehouses shall be completed within 180 working days from that *202date (as in the original contract); that the other three storehouses shall be completed within 180 working days from April 12, 1905 (as in the original contract) ; the power house to be completed within 150 working days from April 12,1905 (as in the original contract); and the one magazine for high explosives to be completed within 130 (instead of 90) working days from said date. The prices for these buildings to be those stated in the original contract. Partial payments for material furnished and work done shall be made from time to time upon estimates by the inspecting officer of the work, but for such payments 20 per cent would be retained until final completion. Provided that in case the buildings are not completed upon the dates above named, there will be deducted from any payments one-thirtieth of 1 per cent of the contract price of the buildings not completed, as liquidated damages and not as a penalty, for each and every calendar day after and exclusive of the day within which completion was required, up to and including the date of completion and acceptance of the work; said sum being specifically agreed upon in advance as to the measure of damage to the United States by reason of further delay in the completion of the buildings; and the claimant must consent that the contract price reduced by the aggregate of damages so deducted shall be accepted in full satisfaction for all work done under the contract. In addition to the liquidated damages there will also be deducted from ,any payments to be made all extra costs of superintendence and inspection of delayed buildings during the period of delay.

To the above letter the claimant company responded as follows:

“ Edwaed F. Fonder Co.,

“ General Contractors,

*“ 1116 Land Title*Building, *“Philadelphia, August 18,1905.*

*“*Brig. Gen. William Crozier,

“ *Chief of Ordnance, U. S. A.,*

*“ Washington, D. C.*

*“*Dear General : We beg to acknowledge receipt of your communication dated August 15, received by us this a. m., the 18th instant, and in reply thereto would say that it will be entirely agreeable to us to enter into a new contract for *203tlie completion of these buildings on the terms and' conditions as outlined in your communication, namely:

“That the one wheel and dynamo .house, the one storehouse for nitrate of soda, and two of the five storehouses for reserve supply of war material shall be completed within 180 (instead of 90) working days from April 12, 1905, the date of the original contract; and that the remaining three of the five storehouses for reserve supply of war material shall be completed within 180 working days from that date (as in the original contract), and the one power house, to contain also carpenter, machine, blacksmith, and tin shops, to be completed within 150 working days from April 12, 1905. (as in the original contract); and the one magazine for high explosives to be completed within 130 (instead of 90) working days from April 12, 1905. Provided, that in case the buildings are not completed upon the dates and by the time specified there will be a deduction from any payments to be made us of one-thirtieth (^) of 1 per cent of the contract price of the buildings not completed, as liquidated damages and not as a penalty, for each and every calendar day after and exclusive of the date within which completion was required up to and including the date of completion and acceptance of the work, said sum being specifically agreed upon in advance as the measure of damage to the United States by reason of delay in the completion of the buildings; and we further agree and consent that the contract price reduced by the aggregate of damages so deducted will be accepted in full satisfaction for all work done under our contract; and we further agree that in addition to the liquidated damages referred to, there shall be deducted from the payments to be made to us the cost of superintendence and inspection of the delayed buildings during the period of delay.

“We further agree that all of the articles of the original contract, except as modified herein, are to be incorporated, in a new contract.

“ Very respectfully, yours,

“(Signed) Edwaed,F. FoNdee Co.

“ Edwaed F. FoNdee,

“ Theo. B. Sttjlb,

*“Partners."*

III. As indicated by the correspondence contained in finding n, a supplemental contract (referred to in finding i) was provided by agreement of the parties that in the event of the failure of the contractor to complete the various buildings by the time stipulated in this supplemental contract there should *204be deducted from any payments as liquidated damages (and not penalty) one-thirtieth of 1 per cent per day of the contract price for each of the buildings stated for each and every day of delay in the completion of the said buildings, which deduction was liquidated damages and not by way of penalty, but was to cover as nearly as practicable the value of the buildings to the United States as public utilities; for the wheel and dynamo house $1.50' per day, for each storehouse $4 per day, for the power house $9 per day, for the magazine $6 per day.

IY. Certain items of extra expense were demanded by the department and furnished by the contractor and certain items of delay caused by the department were all submitted to Gen. Crozier, Chief of the Ordnance Department, and were allowed and paid by him in accordance with section 6 of the supplemental contract, which provides that his decision shall be final.

V. The amounts heretofore paid under these contracts are as follows: $137,809.19, $7,687.62, and $1,756.25, making in all $147,253.06.

The item of $7,687.62 was paid to claimant company September 2,1905, as shown by the following receipt:

“ Received at Philadelphia, Pa., this 2nd day of September, 1905, from Major O. B. Mitcham, Qrd. Dept., U. S. A., the sum of seven thousand six hundred eighty-seven 62/100 dollars, in full of the above account, which I certify to be correct.”

Said receipt was duly signed, “ Edward F. Fonder Company, by Theo. B. Stulb, a member of the firm.”

The item of $1,756.25 allowed by the Government for extras was paid by the Government October 5, 1906, as shown by the following receipt:

“Received at Philadelphia, Pa., this 5th day of October, 1906, from Lieut. Col. O. B. Mitcham, Ord. Dept., U. S. A., the sum of one thousand seven hundred and fifty-six 25/100 dollars, in full of the above account, which I certify to be correct.”

Signed, “ Edward F. Fonder Company, by Theo. B. Stulb, a member of the firm.”

*205"VT. The claim for grading wherein the claimant asks pay for 5,900 cubic yards for the sites of the respective buildings, at $1.25 a yard, aggregating $1,375, is controlled by the specifications, which are made a part of the contract. Nowhere is it shown that the sites of the buildings were to be on level ground. The paragraphs of the specifications referring to the grading are as follows:

“ 3. The location and grade of the building shall be indicated by the commanding officer; the site shall be cleared by the contractor for the reception of the structure, and for that purpose should be examined by him before bidding. The contractor must lay out his own work correctly and will be responsible for all lines, levels, and measurements.

“ 25. GRADE niNE. — The finished grade shall be as shown on plans. The surface, for a distance of 15 feet from the building, shall be graded on a fall of not less than one-half inch to the foot.

“ 26. Excavation. — Excavate, as required by the site and drawings, for all the footings, piers, platforms, steps, downspout drains, etc., to the depth figured or shown, or to such depth as will provide absolute security against danger from frost or insecure foundations. This must be done irrespective of depth shown by drawings or figures and without extra charge. In no case is the depth to be less than 4 feet below finished grade. Make the excavation 8 inches wider all round than the outside foundation, leaving same open till walls are well set and dry. The earth from excavations to be deposited where directed by the commanding officer within a distance of 100 feet from the site, and it shall be evenly spread, if required for grading. The contractor is to shore the sides of excavations for penstock in a substantial manner and elsewhere if found necessary. When the condition of the work will permit, all foundation trenches must be carefully back filled and rammed till the earth is firmly packed. Water encountered in making the excavation is to be kept out of the way, and contractor is to furnish all means, provide all grades, gutters, etc., to keep all water away from the building during the progress of the work. For removing rock found in ledge or bowlders in the excavations an extra sum per cubic yard will be paid, but no extra payment will be made excepting for rock exceeding 1 cubic yard in volume.”

VII. The difference between the contract price of $154,050 and $147,253.06, which has been paid to and received by the claimant under the contract and for extra work and for *206delays caused by the Government is the amount charged for liquidated damages caused by the claimant, said amount being $6,796.94 for the several delays set forth in the table given in finding I.

Article 2 of the supplemental contract dated April 12, 1905, is in the following language:

“ It is stipulated that in making final settlement based upon the dates of completion for the various buildings, the parties of the first part shall receive credit for such delays as the Chief of Ordnance may determine to have been due to unavoidable causes, such as fires, storms, labor strikes, action of the United States, etc., and the dates of completion shall be considered for the purpose of final settlement as the dates of actual completion, less the delays due to the said unavoidable causes.”

VIII. It appears that the work was not pushed as rapidly by the contractor as was demanded under the contract, nor was there a sufficient number of competent men employed, and that during part of the time no competent superintendence was supplied; that inferior material was used and inferior workmanship furnished, particularly by subcontractors of the plaintiff company.

*Mr. John, C. Fay*for the claimant:

A loss must accrue for which the law awards compensation — a loss which must be capable of liquidation — it must be apparent and real, not chimerical and imaginary. Under these conditions the amount of such damages may be agreed upon, but if no such condition exist, if no damages arise for which the law awards compensation, then no matter whether they be called liquidated damages or other innocent appellation, they are simply and purely a penalty; they do not recompensate any loss, they simply penalize the contractor; in other words, they reduce his compensation and diminish the price the United States has to pay for the work performed. Whenever delay will not cause damage, time is not the essence of the contract, and the cancellation of part of the contract price is penalty pure and simple. The correspondence shows that these figures were arrived at by calculating interest at the rate of about 12-J* per cent per annum on the contract price, one-thirtieth of 1 per cent a day. Would *207any court permit a recovery of such, a rate of interest on money that had not been expended as damages? When Government bonds bearing 2 per cent interest are above par, to hold that the Government may reserve 37 per cent on its investment, if not penalty, is certanly high finance. It has been uniformly held that the reservation of a higher rate of interest as liquidated damages than the legal rate is not liquidated damages but penalty, even though expressed as liquidated damage. *{Walter*v. Long, 6 Munf. (Va.), 71; *Watts*v. *Waits,*11 Mo., 547; *Robinson*v. Kenny, 2 Kans., 184; *Downey*v. BugK, 78 Ill., 53; *Brewster*v. Wcilsefield, 22 ¡How., 118.)

The court is not confined to the words of the contract in determining whether this was penalty or liquidated damage. Eesort may be had to the surrounding circumstances, the subject matter, and prior correspondence and negotiations. This is specifically held in the *Bethlehem* Steel Go. ease*(205 U. S., 105), and is sanctioned by an almost unanimous current of authorities. *(Henry*v. Dams, 123 Mass., 345; *Puree*v. Jung, 30 Wis., 30 ; *Pennypaelser*v. *Jones,*160 Pa. St., 237; *Struper*v. *Claris,*12 Wright (Pa.), 454.)

When damage is not obvious, no damage is to be provided for; if it is, then it is to be reasonable and as near as possible to cover the real loss.

This does not tolerate imposing onerous penalties or reserving extortionate interest. These regulations were part of the advertisement under which the work was to be performed and could not be lawfully altered without consideration.

The supplemental contract recites as a consideration the extension of time to complete, but as what purported to be the extended time expired on the 13th of September, five days before the supplemental contract was in force, this recital of what the consideration was shows that it was none at all. No attempt was made to extend the time on the other seven buildings, and the so-called extended time on the five had expired before the taking effect of the supplemental contract.

In this condition, long after he had the right to annul the contract, he wrote the claimants that they must submit to this penalty or the United States would take possession of his work and finish it at his cost. There was no alternative; *208the claimants were on a military reservation, their money invested in materials on the ground, they knew what finishing at their- cost by the Government meant; they had to submit, not voluntarily, but under the coercion of the threat of the military authorities of the United States. *(Hackley*v. McGordon, 45 Mich., 569; *Vgne*v. *Glenn,*41 Mich., 112; *Maxwell*v. *Griswold,*10 How., 242; *Swift*v. *U. S.,*Ill U. S., 82.)

The work which the Chief of Ordnance conceded to be extra he also conceded took 160- days to execute. When that took place we insist the penalty clause ended, and it was out of the power of one party to the contract to reinstate it. *(Palmer*v. *SlachweTl,*9 Gray (Mass.), 237; *Green*v. Raines, 1 Hilt (N. Y.), 254; *King Iron Bldg.*v. *St. Louis,*43 Fed., 768.)

There is no such thing as apportioning liquidated damages. *(D. O.*v. *Camden Iron Worlcs,*118 U. S., 453; *Holland Boat*v. Nixon, 155 N. Y., Sup., 573; *I timer*v. *U. S.,*43 C. Cls. R., 336; *Wyomt*v. *U. S.,*46 C. Cls, R., 205; *Darmat*v. *Fuller,*120 N. Y., 558; 115 App. Div., N. Y., 694.)

The most that can possibly be said is that it may be that the “ agreed damage ” may be admissible in evidence as an admission tending to show what real damages were, but not controlling or conclusive, but merely as evidence tending to show.

The claimants may or may not have been -ready to commence work before the grades were established or the sites definitely fixed. That is something that can not excuse the United States. When penalties are demanded and imaginary damages are sought to be collected, the United States must see to it that their skirts are clear. The claimant was entitled to all the time between the approval of the contract and the 28th of July. The United States absorbed a material part of it, and they likewise absorbed a very considerable time after the expiration of the limit fixed by the supplementary contract, both by requiring admittedly extra work, but by requiring a vast amount of filling that they dispute was extra work, but which we think the court ivill have no difficulty in finding to be extra.

*209
      *Mr. S. S. Ashbaugh*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

AteiNSON, J.,

delivered the opinion of the court:

Plaintiff sues to recover the sum of $18,138.11, based upon various allegations in the petition that the defendants caused delays, extra woi*k not embraced in the contract, and that the liquidated damages set out in the supplemental contract were accepted by the plaintiff because of threats and coercion on the part of the agents of the Government.

The findings show that, on the 12th day of April, 1905, plaintiff entered into a contract with the War Department, agreeing to construct at the United States powder depot, near Dover, N. J., the following buildings and within the following periods of time:

One wheel and dynamo house, to be completed within 90 working days from the 12th day of April, 1905, for the sum of $4,500.

One storehouse for nitrate of soda, for the sum of $9,000.

Five storehouses for reserve supply of war materials, for the sum of $59,550.

Three storehouses for reserve supply of war materials, for the sum of $36,000.

These several buildings were to be constructed in accordance with the plans and specifications which had been duly published. One of the buildings was to be completed within 90 working days, two of the five within 90 working days, three within 180 working days, and the remaining three within 180 working days after the date of the contract. Also one powder house was to be completed within 150 working days, for which $27,500 was to be paid, and one magazine for high explosives, for the sum of $17,500. to be completed within 90 working days.

The contract and supplemental contract are filed as exhibits to plaintiff’s petition.

The original contract was entered into between the plaintiff company and the United States on the 12th day of April, 1905, as before stated, which provided for the erection of these 12 buildings for governmental purposes on the Pic*210catinny Reservation, 5 miles from Dover, N. J. These structures were to be one story in height with no cellars, and the only excavations necessary were for proper foundations, for preparing sites for the buildings, and for grading a given area around each building.

Five of the buildings were to be completed on July 28, 1905, one on October 9, 1905, and six on November 13, 1905.

The plans of the buildings did not show the exact amount of excavation necessary. The ground, however, was comparatively level, and the buildings were to be widely separated.

It appears that in the preparation of the specifications the subject of excavation was discussed by the commanding officer, Col. O. B. Mitcham, and George E. Jenkins, the Government engineer in charge, and it was agreed by them to require the respective bidders to estimate the cost of this work, and the following requirements were accordingly incorporated in the specifications:

> “ 3. The location and grade of the building shall be indicated by the commanding officer; the site shall be cleared by the contractor for the reception of the structure and for that purpose *should be examined by Mm before bidding.*The contractor must lay out his own work correctly and will be responsible for all lines, levels, and measurements.”

> “ 25. *Grade line.*— The finished grade shall be as shown on plan. The surface, for a distance of 15 feet from the building, shall be graded on a fall of not less than one-half inch to the foot.”

> “ 26. *Excavation.*— Excavate, as required by the site and drawings, for all the footings, piers, platforms, steps, downspout drains, etc., to the depths figured or shown, or to such depth as will provide absolute security against danger from frost or insecure foundations. This must be done irrespective of depth shown by drawings or figures and without extra charge. In no case is the depth to be less than 4 feet below the finished grade. Make the excavations 8 inches wider all round than the outside foundation, leaving same open till walls are well set and dry. * * * For removing rock found in ledges or bowlders in the excavations an extra sum per cubic yard will be paid, but no extra payment will be made excepting for rock exceeding 1 cubic yard in volume.”

*211Plaintiff visited the sites of the buildings and went over the ground with the Government engineer in charge. The approximate sites of each building were pointed out to plaintiff, who necessarily observed the rolling or undulating character of the land. It is, however, not claimed by plaintiff that the ground at the sites shown him was flat and required no other excavation than the digging of trenches for foundations. The findings show that the ground upon which the buildings were to be constructed was rolling or undulating in character, but it does not appear that plaintiff was led to believe, as he avers, that he understood the grading, other than for trenches, would be done by the Government. It appears that he went to a near-by railroad cut to observe the character of material likely to be encountered in cutting down the hillocks to a general level in arranging the sites for the locations of the buildings. It further appears that plaintiff asked no questions about grading. He necessarily knew from the plans that a slight slope of not less than one-half inch to the foot was required for the distance of 15 feet from the wall of each of the buildings to be constructed. It seems unreasonable, therefore, that a skilled and experienced contracting firm would not have inquired who was to remove and pay for any high ground inside this level space of 15 feet around the buildings, if there was at the time any doubt in plaintiff company’s mind as to the matter of the expense of the gradings for* the sites of the different buildings embraced in the contract. Plaintiff would, of necessity, by the specifications, be required to clear the sites for the location of these several buildings, and it therefore seems reasonable to contend that a site would “ be cleared by the contractor for the reception of the structures ” if after he had excavated for a. practically flat space of 15 feet in width all around a building there should remain a mound in the center of the building site higher even than the floor of the structure he was required to build. Clearly plaintiff was required by the contract to prepare the sites of the buildings for their reception, and for 15 feet on all sides of all of them. If plaintiff failed to provide for this outlay in its estimates, it alone must bear the burden *212of such, negligence. It does not appear that deception was practiced by the Government, nor is fraud shown by the testimony; consequently it was the duty of the contractor under the provisions of its contract to make all excavations necessary for the reception of the buildings on the sites designated by the Government’s engineer, and also to make such excavations and fills as were necessary to secure a grade approximating, as nearly as possible, the determined slope of not less than one-half inch per foot for 15 feet on all sides of each of the buildings.

Plaintiff’s counsel raises the question of the Government’s right to assess liquidated damages against it, and also alleges duress by the Government to compel it to accept the terms of a supplemental contract which was entered into between it and the United States.

In respect of the matter of the liquidated damages, it has been so definitely settled by this court and the Supreme Court, We do not deem it necessary to cite authorities, that where liquidated damages are provided in a contract, strict performance nan not be enforced, if it is shown that the party to the contract claiming such damages was himself responsible for the delay which prevented the completion of the work within the time limit required by the contract. In such a case the contractor must be allowed a reasonable time in which to complete his work, and the duration of such period must be determined by the surrounding circumstances and conditions. That is to say,' if a party to a contract who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispenses with, or by any act of his own prevents performance, the opposite party is excused from requiring a strict compliance with the condition. Thus, if a specific time for performance is fixed and compliance therewith is prevented by the party who has a right to claim it, the law will not permit him to set up the nonperformance of the condition as a bar to the responsibility which his part of the contract has imposed upon him. (See *United Engineering and Contracting Co.*v. *United*States, 48 C. Cls. R., and the numerous cases thei’e cited.)

*213In the original contract in the case at bar no provision was made for-damages of any kind, bnt the supplemental contract contains the following provisions:

> “Akt. 2. That in consideration of the extensions of the times for the completion of the buildings enumerated in the preceding article, it is provided that in the event of the failure of the party of the first part to complete the various buildings by the times stipulated in the preceding article there shall be deducted from any payments, as liquidated damages, the following amounts for each of the buildings stated for each and every day of delay in the completion of these said buildings, and which deduction is not by way of penalty but to cover as nearly as practicable the value of the buildings to the United States as public utilities: For the wheel and dynamo house, one dollar and fifty cents ($1.50) per day; for each storehouse for nitrate of soda,, or for each storehouse for reserve supply of war material, four dollars ($4) per day; for the power house, to contain also carpenter, machine, blacksmith, and tin shops, nine dollars ($9) per day; for the magazine for high explosives, six dollars ($6) per day.

> “ In addition all extra expenses of inspection of any building which has been delayed in its completion beyond the date determined by the preceding article, shall be charged against the party of the first part.

> “Aet. 3. That all the provisions of the [original] contract of April 12, 1905, shall remain in full force except as modified by the terms of this supplemental contract.”

Section 8 of the original contract of April 12, 1905, which is made a part of the supplemental contract of August 31 of said year provides: “ It is further agreed that the commanding officer, United States Powder Depot, may make changes in the specifications forming part of this contract, and that if such changes involve extra labor or material a fair price will be paid therefor; but if such changes involve less labor or material a fair deduction will be made from the contract price * * and it further provides that if a controversy arises the matter shall be referred to the Secretary of War, whose decision shall be final.

It is shown by finding Y that no controversy arose between the contractor and the Government officers in charge of the work as to extras, etc.; that the sum of $1,756.25 was paid to the contractor for the alterations made and the delays caused *214thereby, and the receipt for the same given by the contractor reads:

> “Received at Philádelphia, Pa., this 5th day of October, 1906, from Lieut. Col. O. B. Mitcham, Ord. Dept., IT. S. A., the sum of $1,756.25, in full of the above account, which I certify to be correct.”

It appears that about 127 days’ delay, *on the basis of the labor of one*man, was caused by the Government in making the changes in the required extra work, but it is not shown how many men were employed by the contractor, in the execution of his contract, nor is it shown that in making such changes the general work on the contract as a whole was thereby obstructed or delayed.

It further appears that’ delays were caused by the failure to secure competent men to carry on the work, but it was not impeded by a general strike of the employees. Occasionally some of the men demanded higher wages and quit because their demands were not granted. Delays were caused by the failure of subcontractors to furnish materials and promptly comply with their agreements with the plaintiff company, but it is not established that the Government was the material cause of any of them, except those to which we have referred, and it is not shown by competent proof that they delayed the general plan of carrying on the work of the contract as a whole. Consequently the contention of plaintiff that the amount of $6,796.94 was wrongfully and illegally withheld as liquidated damages can not be sustained.

From the beginning of the work on these buildings contentions arose between the contractor and the representatives of the Government. The commanding officer (Col. O. B. Mitcham) called attention to the slowness of the work that foretold the probable failure of the contractor to finish its contract within the allotted time provided by its terms. The inspectors for the Government were constantly on their guard against faulty work, caused by the discovery of the substitution of mineral paints for the higher-grade paints required by the specifications, by the misfits of parts of the construction sublet by the plaintiff, by the finding of cork rivets inserted where iron rivets were to have been placed, by *215attempts to use brummagem or patched stone after the stone had been condemned, and other unskilled and dishonest actions by plaintiff’s subcontractors.

As was anticipated by the Government’s agents, when the time drew near for the delivery of the buildings that were to have been completed in 90 working days, plaintiff admitted its inability to consummate the work within the time set out in the contract. On July 28,1905, the 90-day buildings were due to be finished. On July 21, 1905, the plaintiff asked an extension of time on this construction. According to a provision in the contract, the Government set out in a letter addressed to plaintiff, dated August 4, 1905, the conditions under which an extension of time would be granted. All of these terms were accepted by plaintiff without protest or reservation in a letter dated August 18, 1905. Accordingly a supplemental contract was prepared by the Ordnance Department of the United States and forwarded to plaintiff, who, upon receipt of it, wrote, under date of August 24,1905, that “ the articles of agreement which as amended are entirely agreeable to us, and which we will be pleased to.execute as soon as the contract reaches us.” On September 5, 1905, plaintiff executed the supplemental contract. The extension of time granted for completion of the five buildings under the supplemental contract aggregated 235 days.

It is claimed by plaintiff that threats and duress were used by the agents of the United States to compel it to accept the supplemental contract. *We*find it, on July 14, 1905, in a position where, according to its letter of that date, it admits its inability to finish the building, due July 28, 1905, before the latter part of September, 1905. Plaintiff then had 14 days to do a work that it admits it could not finish before the “ latter part of September,” or in about 60 days. Plaintiff thus saw its contract about to be voided and necessarily to be finished at its expense by other parties under the provisions of the same. It thereupon solicited an extension of time in which to complete the work. The terms upon which these extensions would be allowed by the Government were presented to plaintiff by the Ordnance Department. It readily accepted them. It offered no objections; made no complaint; *216but in a spirit of appreciation wrote several letters to the Ordnance Department expressing its thanks for what it appreciated as a valuable consideration. At no time was there any protest by the plaintiff company; nowhere is a complaint shown. Nor does it appear that at any time duress or threats of any sort were shown, offered, or exerted by the officers of the United States. It is plainly apparent that the plaintiff company was unable to comply with the terms of its contract and, as shown by its own admissions, it was thankful for any opportunity to get the time extended to enable it to complete the work it had contracted to do. (See Finding II.)

In respect of the claim of plaintiff for excavating, grading, etc., of 5,900 cubic yards, amounting to $7,375, we can only say that the same was clearly required by the specifications hereinbefore set out.

Considering the whole case, we are of the opinion that the allegations of the petition are not sustained, and the same is accordingly dismissed.

Howet, J., took no part in the decision of this case.