#### HARRY C. KILMER v. THE UNITED STATES.

[No. 30776.

Decided February 10, 1913.]

*On the Proofs.*

Tills ease presents a great number of petty items for extra work and material required of a contractor in construction work at tbe War College in Washington. Nearly all of these items are decided adversely to the contractor on the issue of fact. The claimant also fails to show that any benefit accrued to the United States from extra work. The questions of law involved relate to the authority of the officer ordering the work and the manner in which it was ordered.

I. This case in which the contract provided that “ *no allowance shall he made for extra worlo ” “ unless provided for beforehand by written agreement specifying the cost ”*is governed by the decision of the Supreme Court in *Plumley*v. *United States*(226 U. S. K.., 545), where the court held that the contractor could not recover for the reason that the work “ *was not ordered by the officer ” “ and in the manner required by the contract,"*viz, by an order or agreement reduced to writing.

*181IT. In *Plwmley*v. *U-rnted States*the Supreme Court ,cites Revised Statutes, section 3744, thereby holding the section applicable to such cases as this.

III. If in such cases the officer directing the work refuses to enter into a written agreement and insists that it is embraced in the contract, the contractor’s remedy is by appeal to the superior officer, if the contract so provides; and if the decision of the superior officer is against the contractor he will be, under the decisions of the Supreme Court, remediless.

IV. In this ease, where the contract contained no provision authorizing or requiring an appeal to a superior officer, the contractor was not bound to so appeal. But he having done the work without demanding that the order for it be reduced to writing, there can be no recovery for extras.

V.In engineering contracts where the contractor agrees that the decision of the engineer in charge shall be final, it must be regarded as final wherever it is properly applicable unless fraud, gross negligence, or mistake be shown, and the burden of establishing that is upon the contractor.

VI.In the present case the court holds that the work done for which claim is made was embraced within the contract, except as to certain items for extra work for which payments were made set forth in the findings.

*The Reporters'*statement of the case:

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

I. On June 27, 1908, Harry C. Kilmer, the claimant, entered into a written contract with the United States, through Capt. H. L. Pettus, quartermaster, United States Army, whereby the claimant agreed to furnish all material and labor necessary for the construction and completion of concrete, curbing, sewer pipe, drains, catch basins, macadam roads, brick gutters, and brick road crossing on the Army War College section of the reservation of Washington Barracks, D. C., in accordance with certain plans, specifications, and general instructions to bidders, which were attached to and formed part of the contract.

A copy of said contract and of the general instructions to bidders and the specifications are attached to the petition herein and made a part of same.

*182This contract was subject to the approval of, and was duly approved by, the Quartermaster General of the United States. Thereafter claimant performed the work required by the contract, as modified by two supplemental agreements, both of which were approved by the Quartermaster General, United States Army; the work was accepted by the proper officers of the United States and claimant was paid the amount stipulated in the contract, with the exception of a sum deducted as the cost of inspection.

Said supplemental agreements are in words and figures as follows:

“ Whereas on June 27, 1908, a contract was entered into between the United States, represented by Capt. H. L. Pettus, quartermaster, Ü. S. Army, and Harry O. Kilmer (hereinafter designated as contractor), for constructing macadam roads, curbs, gutters, etc., at Washington Barracks, D. C.;

“And whereas it is found advantageous and in the best interests of the service to modify the work as specified below;

“ Now, therefore, it is hereby agreed that the work provided for by said contract shalí be changed in the following particulars:

“ARTICLE 1. That the contractor shall be permitted to use the road roller, the property of the United States, pertaining to the post of Washington Barracks, D. C., in connection with the prosecution of the work under his contract, provided that all expenses incurred in connection with the operating of the road roller, including the hire of the engineer, cost of fuel, oil, waste, etc., and the cost of any repairs required to maintain the road roller at all times in good and serviceable condition, shall be paid by the contractor; that the contractor shall relinquish his right to the use of the road roller at any time it is required by the post authorities, and shall return the same to the Government when no longer required by him in the same serviceable condition as when received.

“Ajrticle 2. That for the use of said road roller there shall be deducted from any moneys due the contractor under the above-mentioned contract the sum of five dollars ($5.00) for each and every day the roller is used by him, from and including September 19th, 1908, and that the contractor shall receive- dollars ($- — ) -than stipulated in said contract.

*183“ This supplemental agreement shall be subject to the approval of the Quartermaster General, U. S. Army.

“ Witness our hands this thirty-first day of October, 1908.

“ The United States,

“ By H. L. Pettus,

*uCapt. ds*Quartermaster, *U. 8. A.*

“ Harry C. KilmeR.”

“ Whereas, on June 27, 1908, a contract was entered into between the United States, represented by Capt. H. L. Pettus, quartermaster, U. S. Army, and Harry C. Kilmer (hereinafter designated as contractor) for construction of concrete curbing, sewer-pipe drains, catch basins, macadam roads, etc., on the Army War College section of the reservation at Washington Barracks, D. C.

“And whereas, it is found advantageous and in the best interests of the service to modify the work, as specified below:

“ Now, therefore, it is hereby agreed that the work provided for by said contract shali be changed in the following particulars:

“Article 1. That the contractor shall furnish all materials, labor, and other services necessary for the construction ,and completion of a macadam road, including concrete curbing and brick gutters, in front of the U. S. Army War College Building, Washington Barracks, T>. C., in accordance with the requirements of the specifications of the original contract, so far as they relate to quality of materials, workmanship, and finish, at the unit prices stipulated in original contract and in accordance with plan hereto attached and forming part of this supplementary agreement.

“Article 2. That there shall be omitted from the work called for by original contract ,and deductions made therefor at the unit prices stipulated in said contract, the sections of roads indicated on attached plan B to D and C to A, including concrete curbing, catch basins, and brick gutters.

“This supplemental agreement shall be subject to the approval of the Quartermaster General, U. S. Army. Lines 33 and 34 erased before signing hereof.

“ Witness our hands this 29th day of March, 1909.

“ The United States,

“ By H. L. Pettus,

“ *Capt. da*Quartermaster, *U. 8. A.*

“ Harry C. Kilmer.

“ Witnesses:

“ Philipp Hook,

“ Olive M. Masters.

*184“ The undersigned surety to the bond pertaining to the above-described contract dated June 27, 1908, assents to the foregoing modification and hereby stipulates that said bond shall be construed to apply accordingly.

“ Witness our hands and seals this 30th day of March, 1909.

“ CHARLES I. Bkooks, [corp. seal.]

*“Secretary.*

“ DaNiel N. Gage, [corp. seal.] *“Asst.*Secretary.”

II. The contract provided that the general instructions to bidders and the plans and specifications, which accompanied them should be considered attached thereto and form a part thereof. A new plan, differing in essential particulars from the original, was substituted for it by the supplemental contract of March 29, 1909.

The specifications, paragraph 24, provided that —

“Around corners the curbing shall be curved, with such length of radius as the officer in charge may direct.”

In the original plans the curbing was drawn with square comers. This error was remedied in the new plans substituted for the old by the supplemental agreement of March 29, 1909, and in accordance therewith the work was done.

III. On June 29, 1908, work was commenced, but on June 30, 1908, was suspended, as provided under article 2 of the specifications, to allow further solidification of the hydraulic fill. On August 17, 1908, work was resumed. On December 1, 1908, it was again suspended, partly because of a controversy with the Miner Engineering Co., the contractor who put in the hydraulic fill, and who was alleged not to have raised the land to the required grade, and partly to allow as much time as possible for the settlement of the hydraulic fill. Subsequently the proper officers of the United States decided that the Miner Engineering Co. had properly performed its grading contract, but that the earth had since subsided and said company was paid additional compensation for adding to the fill to bring it up to the grade desired. They completed the additional fill the latter part of May, 1909, and on June 9, 1909, the constructing quartermaster determined officially that the fill was in *185proper condition and requested claimant to resume work on June 15, 1909. About five weeks thereafter claimant resumed work on the fill without making any formal protest against doing so, and he completed the contract December 22, 1909.

It is not shown how much time was required for settlement of the fill alone.

The stipulated date for completion of the work under the contract was October 31, 1908. After deducting from the overrun the time during which operations were suspended, the contractor was still 174 days in default. This default required the Government to employ an inspector (rodman) 174 days longer than would have been necessary had the work been completed on time, and accordingly, $161.11, one-third of the inspector’s pay, was deducted from the final payment to the contractor to recompense the Government for this additional expense. Claimant protested verbally against this deduction.

IY. During the progress of the work under said contract the claimant was required by the officer of the United States in charge thereof to from time to time perform work and supply materials, which he now claims as extras as follows:

(1) 196 feet radius work, curbing at $1.50-$294.00

In the original plans the corners were shown as square, while the specifications required that “ around comers the curbing shall be curved.” The error in the plan was corrected in new plans submitted with the supplemental agreement of March 29, 1909. Claimant was paid the contract price for concrete curbing for this item.

(2) 130 linear feet of sewer drain, at $1.50-$195.00

This sewer was necessary to connect up the catch basins shown in the plans but was omitted from the plans themselves. At the time the work was done it was treated as a part of the original contract and no claim was made by the contractor at the time for extra compensation. The Government has already paid claimant for this work at the regular contract price.

(3) 1 catch basin-$75. 00

*186This catch basin was omitted from the plans and was not called for by the specifications. It was ordered to be put in by the constructing quartermaster, and claimant was paid for same at the unit price, $45, which is as much as it was reasonably worth.

(4) Services of one man for *5}*days, at $1.60_$8. 80

Claimant furnished this man at the request of the inspector on the work to assist him in running lines and fixing grades for portions of the work. The amount charged is reasonable and is what claimant actually paid for the services.

(5) 3 wagons, 10 hours each, removing top soil, at 65 cents per hour_$19. 50

(6) 11 men, 10 hours each, removing top soil, at 20 cents per hour- 22. 00

These two items relate to the same work, and were required by Specifications 5, 18j 19, 20, and 22. This soil had been taken out so as to bring the roadbed to grade and had been hauled to one side under direction of the inspector, the maximum haul being 50 feet. The soil was afterwards hauled back to fill in behind the curbing for the reason that it would grow grass.

Paragraph 22 of the specifications required claimant to do any work necessary to finish in a workmanlike manner the surface and slopes of the ground adjacent to the outside lines of the sidewalks and curbing, and to neatly finish the space between the sidewalks and curbing, and it does not appear that it caused claimant any longer haul or any additional work to put this soil there than it would to put other soil there.

The charge for doing this work is reasonable.

(7) Raising brick crossing 3 inches-$12.00

This crossing was put down at the right devel under the direction of the inspector in charge. It afterwards settled in the center, and the constructing quartermaster required claimant to replace it, which he did at a cost of $12.

(8) Replacing 16 feet of concrete curbing-$32.00

This curbing had become broken and damaged during the time the work was suspended from December 1,1908, to June *18715, 1909, from unknown causes. The constructing quartermaster required that it be replaced, and directed his engineer that an allowance be made for same, but it is not shown that claimant was paid for said work. The cost to claimant for replacing this curbing was $12, which is a reasonable price.

No provision was made in writing beforehand for any of the foregoing items as extras, and no formal protest was made, nor was any claim made for payment for said items as extras at the time of final settlement.

Y. Under the terms of the contract and paragraph 79 of the specifications, claimant used approximately 1,000 cubic yards of crushed stone and brick belonging to the United States, for which he paid $2.25 per cubic yard. A large amount of dirt was mixed with this crushed stone, and claimant was obliged to use a greater quantity than he would otherwise have used.

The constructing quartermaster made an allowance to the claimant of 20 per cent for dirt in the stone and brick so crushed, which was the same allowance that had been made to the Government upon its purchase. The claimant made no examination as to the character of the crushed stone and brick before submitting his bid, although he was theretofore informed that it contained dirt.

VI. By reason of the suspension of work by the Government from December 1, 1908, to June 15, 1909, as shown in Finding III, the claimant incurred extra expense on account of premium on his bond amounting to $95.50 and for the wages of his foreman during said period amounting to $405.

Claimant also claims additional expenses incurred on account of increased cost of certain materials used in 1909 over what the same materials would have cost him in 1908. The evidence does not satisfactorily show that there was an actual increase in the market prices of said materials in 1909, nor does it show how much of the delay was due to the controversy referred to in Finding III, except as therein appears.

When the work was stopped in December, 1908, claimant returned some sewer pipe which he had on the ground for use under the contract to the firm from which he purchased it at an expense of $45 for freight and hauling. He was not *188ordered by the constructing quartermaster to return this pipe, and did it voluntarily in order that it might not be damaged or stolen.

VII. This item is based on the allegation of claimant that the hydraulic fill was not in a proper condition for the performance of the work at the time he was ordered to resume, that the ground had not sufficiently hardened, and that in consequence he used a greater amount of material and performed a greater amount of work than would have been otherwise necessary. Paragraph 2 of the specifications provides that the work should be carried on from túne to time as in the judgment of the officer in charge the solidity of the hydraulic fill would justify, and that the contractor should commence and cease delivering material and furnishing labor at such times as the officer in charge might direct. The officer in charge exercised his judgment as to when the fill was in a proper condition and ordered claimant to resume work, and it does not appear that he was in error in so doing.

VIII. At the time of submitting his proposal claimant had had no knowledge of or experience in this class of work, and in making up his bid he relied upon an engineer in whom he had confidence at the time. It appears that said engineer furnished him with figures which were inadequate to cover the cost of the material necessary for the work without making any allowance for labor. When claimant discovered that he had been misled by his engineer, and that the performance of the contract would occasion him loss, he discharged his engineer and sought to be relieved from the contract, but the officers of the United States required him to continue work under the contract, and by doing so he sustained a loss of $5,084.44 on said contract, for which loss the Government was in no way responsible.

*Mr. William R. Andrews*for the claimant. *Mr. John G. Gapers*was on the brief:

In determining the true meaning of the contract under consideration the details of the work as shown upon the carefully prepared plans should control rather than the general provisions of the printed specifications.

*189In the case of *Merriam*v. *The United, States*(14 C. Cls. K., 289) this court held that where a contract is partly written and partly printed the written part will be given more weight.

In the case at bar the plans purport to show the work in detail, and it is to be presumed that the exact details of the work were more carefully considered in the preparation of the plans than in the lengthy printed specifications, which in some instances refer to the drawings themselves for the details of the work.

This contract, as is shown upon its face, was prepared in the War Department and the claimant had no choice as to its form or phraseology. The discrepancy between the plans and specifications must, therefore, be construed most strongly against the defendants. *(Otis*v. *The United*States, 20 C. Cls. K., 815.)

It has also been uniformly held by this court that doubtful expressions in a contract must be construed against the party that framed the paper. *(Chambers*v. *U. S.,*24 C. Cls, R., 387; *Edgar*cf? *Thompson Wdries*v. *U. S.,*34 C. Cls. R., 205; *Moore*v. *U. S.,*38 C. Cls. R., 591.)

The specifications provide generally for curved corners, while the plans show in detail square corners. The specific provision controls the general one. (17 Am. & Eng. Ency. of Law, 2d ed., p. 6.)

The fact that claimant was allowed one day in addition to the nominal time limit set forth in article 5 of the contract does not militate against his claim for damages for the delays, because the delays contemplated and provided for in the contract are of a different character from those involved in this suit.

It is clear under the above provisions of the contract that the only delays contemplated and provided for were delays due to the lack of solidity of the recent hydraulic fill — not delays due to complications arising with the hydraulic fill contractors, nor delays due to new and additional work on the fill, nor delays due to a desire to give the ground more time to settle. Such delays were not even contemplated; in fact, the subsidence of the surface of the ground which caused the controversy with the Miner Engineering Co. and *190the additional filling by said company were matters which, according to Maj. Pettus’s own testimony, could not have been foreseen.

The provision of the specifications as to the officer in charge deciding when work should be carried on is expressly limited to the solidity of the original fill and can not be extended so as to include the addition to the fill, which was not even contemplated when the contract was made.

But admitting, *pro argumento,*that under this provision the question of the condition of the additional fill was left to the judgment of the officer in charge, such judgment could not be exercised in an arbitrary manner and to the prejudice of the claimant.

In the case of *Collins*v. *The United States*(85 C. Cls. R., 122) it appeared that in a contract for excavating a lock pit it was provided that the engineer should locate the position and determine the dimensions of such wells, reservoirs, and draining ditches as he might deem necessarju The engineer located but one well, and this at an inaccessible point, thereby imposing great and unnecessary burdens on the contractor. On behalf of the defendants its was urged that, under the terms of the contract, the action of the engineer was final; but in answer to this contention the court said :

“ On the trial we held that, under the terms of the contract, the engineer officer could not exercise an arbitrary discretion, to the prejudice of the contractors, as to what was ‘ necessary,’ and that his action in locating but one well, at a point substantially inaccessible and at a place which imposed great and unnecessary burdens upon the contractors, was a practical annulment of that provision of the contract which required him to locate the necessary number of wells to keep the pits dry and thereby enable the work to proceed to completion.”

It has been uniformly held by this court that a stipulation in a contract that extras must be agreed to in writing may be waived. *(Grant's ease,*5 C. Cls. R., 71; *Ford's case,. 17*C. Cls. R., 60; *Barlow's case,*35 C. Cls. R., 514.)

In the case at bar the contract itself was subject to the approval of the Quartermaster General, but the stipulation that extras must be provided for in writing does not contain the further requirement that such extras must be approved *191by the Quartermaster General. The only limitation upon the authority of Capt. Pettus was that the contract itself should be approved by the Quartermaster General. An examination of the cases cited by counsel for the defendants will disclose that the stipulations of the contracts requiring that extras must be provided for in writing also required that such extras be approved by some designated officer.

In *Hyde's case*(38 C. Cls. B., 649) the contract expressly required that extras be agreed upon and authorized by the supervising architect, under the approval of the Secretary of the Treasury. In *McLcmghlin's case*(37 C. Cls. B., 184) the contract provided that changes in excess of a certain amount could only be authorized by written order of the Secretary of the Navy. In *Kennedy's case*(24 C. Cls. B.., 122) the contract provided that extra work should be approved by the Chief of Engineers. In *Ferris' case*(28 C. Cls. B., 332) the contract distinctly provided that changes or modifications must be in writing and approved by the Secretary of War.

So that, the matter actually decided in all of these cases was that where the right to order or approve extras is expressly reserved to a designated officer, only the officer designated has authority to render the Government liable for such extras. But in the case at bar no such limitation upon the authority of Capt. Pettus is found in the contract. The stipulation simply provides that the extras must be provided for in writing, and this requirement Capt. Pettus had power to waive, under the uniform rulings of this court.

*Mr. Thurlow M. Gordon*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.'

Peelle, Ch. J.,

delivered the opinion of the court:

This action is to recover for extra expense, labor, and material alleged to have been incurred, performed, and furnished in the execution of a contract entered into with the United States June 27, 1908, whereby the claimant agreed, for the consideration of $18,732.71, to “ furnish all materials and labor necessary for the construction and completion of concrete curbing, sewer-pipe drains, catch basins, macadam *192roads, brick gutters, and brick road crossings on the Army War College section of the reservation of Washington Barracks, D. C.,” in accordance with plans and specifications and general instructions to bidders attached to and made part of said contract.

It is averred that in accordance with said contract the claimant entered upon the performance thereof and completed the work to the satisfaction of the United States and was paid therefor the contract price except as to the sum of $161.11, which he avers was illegally deducted for the cost of inspection during the period of delay, and as to this item we may here say that article 5 of the contract provides “ that work on this contract shall commence on or before the twenty-ninth day of June, nineteen hundred and eight, shall be carried forward with reasonable dispatch, and be completed on or before the thirty-first day of October, nineteen hundred and eight.”

The work was not completed within the time specified, and although by article 3 of the contract provision is made for one additional day for each day’s delay the work is suspended by the Government under paragraph 2 of the specifications, the work was thereafter delayed by the claimant 174 additional days, thereby necessitating the employment by the Government of an inspector for that time, one-third of the expense of which, or $161.11, was charged to the claimant and deducted from the contract price.

While the contract makes no. provision for the payment of an inspector by the claimant during the period of delay, the delay being the fault of the claimant, as found, the additional expense was properly incurred and the claimant is not entitled to recover therefor.

Respecting the claims for extras, there is no averment in the petition nor in the proof submitted that the officer charged with the direction of the work on behalf of the Government acted in bad faith or committed gross error in requiring the work to be done; and except as to the items paid for as extras the officer required the work to be done as a part of the contract and no benefit is shown to have accrued to the United States other than that arising from *193the performance of the contract, for which the claimant has been paid.

Paragraph 4 of the specifications provides that “ No allowance shall be made for extra work claimed to have been done, unless provided for beforehand by written agreement, specifying the cost of same.”

It is not shown that any of the expense, work, or material claimed for as extra was “ provided for beforehand by written agreement, specifying the cost of same.” If, therefore, we were to assume that the extras claimed for were in fact extras, the decision of the Supreme Court in the case of *Plumley*v. *United States,*decided January 6, 1913, would have to be held controlling. There the contract provided that changes increasing or diminishing the cost must be reduced to writing, with a statement of the price of the substituted material and work, and, too, with the approval of the Secretary of War; and in respect to which extra work the court said:

> “ There was a total failure to comply with these provisions, and though it may be a hard case, since the court found that the work was in fact extra and of considerable value, yet Plumley can not recover for that which, though extra, was not ordered by the officer and in the manner required by the contract. (Rev. Stat., sec. 3744; *Hawkins*v. *United*States, 96 U. S., 689; *Ripley*v. *United*States, 223 U. S., 695; *McMullen*v. *United*States, 222 U. S., 460.)”

As will be noted, the court in effect holds that section 3744 applies in such cases. The court recognized the hardship in that case, “ since the court found that the work was in fact extra and of considerable value.”

If in such case the officer of the Government directing the work refuses to enter into a written agreement or to order the work in writing as the contract may require, on the ground that the work is embraced within the contract, then the contractor’s remedy is by appeal to a higher officer, if the contract so provides, in which case, under the ruling in the cases cited, if the decision is against the contractor he would, in the absence of fraud or gross error, be remediless.

In the present case, however, though, the contractor was aggrieved at the decision of the officer requiring the work to *194be done as embraced within the contract, no appeal was taken therefrom, nor is there any provision therefor in the contract. Therefore, in the absence of fraud or such gross error as to imply bad faith — no!; charged — can the contractor, in the absence of a written agreement beforehand, under said paragraph 4 of the specifications, recover for the work so done ?

The case of *Hawkins*v. *United States*(96 U. S., 689) rests upon different grounds from the other cases cited. Here the Secretary of the Treasury was authorized to contract for the construction, ,at Kaleigh, N. C., of a building for court and post-office purposes, for which an appropriation was made, to be “ expended under the direction of the Secretary of the Treasury,” and he was therein directed to “ cause proper plans and estimates to be made, so that the whole expenditure for the erection and completion of the building shall not exceed the sum appropriated for the purpose.”

The contract entered into therefor provided that the same “ shall be valid and binding when approved by the Secretary of the Treasury and not otherwise, and that no departure from its conditions shall be made without his written consent.”

Under the act the whole matter of the contract and its execution devolved upon the Secretary. That is to say, he was charged with the expenditure of the money for the erection of the building and was not to exceed the amount appropriated for the purpose. Manifestly this was necessary to enable him to keep within the appropriation. Under the act and the contract the Secretary of the Treasury was not only the principal agent with whom the contractor was dealing, but the contractor was bound to know that the authority so conferred upon the Secretary could not be exceeded or delegated.

In the case of *Ripley*v. *United*States, *supra,*the court held that in the absence of some provision in the contract therefor a contractor was not required to appeal. That ruling applies to the present case, and the final question therefore is, Was the decision of the officer requiring the work to be done without a written agreement final ? The contract does not in terms so provide. But it does provide that “ no *195allowance shall be made for extra work claimed to have been done unless provided for beforehand, by a written agreement specifying the cost of the same.” Force and effect must be given to this provision, especially since there is no other provision of the contract or specification modifying the same or in conflict therewith.

We have thus far proceeded as though the work done was in fact extra, though clearly nearly all, if not all, of the items claimed for ,as set forth in the findings were embraced within the contract and were necessary to be performed in the execution thereof.

Let us notice the items embraced in finding iv:

(1) One hundred and ninety-six feet radius work curbing.

In the original plans the comers were shown as square, while the specification (24) required the curbing to be curved around the comers, “ with such length of radius as the officer in charge may direct.” But whether the specifications or the plans should control is not necessary here to decide, since the error, if such it be, was corrected by the new plans submitted with the supplemental agreement of March 29, 1909, as shown in finding II, and the work was done in accordance therewith.

(2) One hundred and thirty linear feet of sewer drain.

Though this work was not shown on the plans, the sewer was necessary to connect up the catch basins shown on the plan and was in fact treated as work under the contract and paid for accordingly.

(3) Catch basins.

This work was likewise omitted from the plans and was not required by the specifications, but was done by the claimant by direction of the quartermaster, and the claimant was paid therefor at the unit price, which was reasonable.

(4) The services of one man for 5-J days.

The service of this man was furnished by the claimant at the request of the inspector to assist him in running lines and fixing grades for a portion of the work, and the amount charged therefor is reasonable, but the inspector had no authority under the contract to bind the Government by such employment, and if the same be treated as an extra there was *196no agreement beforehand in writing for it, and hence no recovery can be had therefor.

(5 and 6) For use of men'and wagons in removing top soil.

This was for the removal of soil which had been taken out to bring the road bed to grade and was hauled by direction of the inspector first to one side about 50 feet and afterwards was hauled back and used as fill behind the curbing upon which to grow grass. Furthermore, paragraph 22 of the specifications required the claimant to do any work necessary to finish in a workmanlike manner the surface and slopes of the ground adjacent to the sidewalks and curbing and to finish the space between the sidewalks and curbing, and for that purpose it does not appear that the use of the top soil instead of other soil which the claimant would have been compelled to use imposed upon him any extra expense.

(7) Raising brick crossing 3 inches.

This crossing was put down at the right level under the direction of the inspector in charge, but it afterwards settled, and the quartermaster required the claimant to replace it, which he did at a cost of $12. The work was necessary to a finished job and would appear to be required under paragraphs 5 and 12 of the specifications; but if treated as an extra there was no agreement in writing for doing the work. Nor is it shown whether the settling was caused by defective work or otherwise.

(8) Replacing 16 feet of concrete curbing.

While the work was suspended to await the settlement or solidification of the ground the concrete curbing became broken from some unknown cause and the quartermaster required the work to be replaced and directed that an allowance be made therefor, but no payment appears to have been made. The work would seem to be required under paragraphs 5 and 12 of the specification, but treating the same as an extra there was no agreement therefor in writing and no allowance can be made therefor.

It is not shown that any formal protest was made against the doing of the work claimed for and embraced within the foregoing items.

Respecting the loss claimed in the use of the crushed stone and brick furnished by the Government under paragraph 79 *197of the specifications, as set forth in finding V, the claimant was allowed 20 per cent on account of the dirt therein, that being the allowance made to the Government when the material was purchased.

The claimant made no examination as to the character of the material before mailing his bid, as he might have done. The allowance made appears reasonable and no additional allowance is made therefor.

As to the claim for damage during the period of suspension of the work by the Government under paragraph 2 of the specifications from December 1,1908, to January 15,1909, set forth in findings III and Y, to await the solidification or settlement of the hydraulic fill, it is not shown how much of the time was required therefor, nor is it shown how much of the time was consumed by the controversy between the Government and the Miner Engineering Co., respecting the additional hydraulic fill. But under said paragraph 2 of the specifications the work was to “be carried on from time to time as, in the judgment of the officer in charge, the solidity of the recent hydraulic fill will justify.” Further, it was therein provided that “the contractor will be required to commence delivering material and furnish labor, and to cease both at such times as the officer in charge may direct.”

The claimant having thus contracted to commence, carry on, and suspend the work as the officer in charge may, in his judgment, from time to time direct, the court is not at liberty in the absence of fraud or gross error to change the contract; so, whether the wobk and expense claimed for be treated as coming within the contract or be treated as extra, the claimant is not entitled to recover therefor.

Again, as shown in finding III, after the completion and settlement of the additional hydraulic fill by the Miner Engineering Co., the claimant was requested June 15, 1909, to resume work but did not do so until five weeks later, from which the court, we think, may reasonably infer that the controversy between the Government and the Miner Engineering Co. did not cause the claimant any extra expense or work.

As to the claim for increase in the market price of material during the period of suspension and the return of certain sewer pipe by the claimant on his own motion, as shown in *198said finding IV, the findings are against the claimant’s right of recovery; and in so far as the claims are based on the suspension of the work-there can be no recovery, as that matter rested within the judgment of the officer in charge and no bad faith is shown.

The further claim for extra labor and materials, on the ground that at the time claimant was requested to resume work the hydraulic fill had not sufficiently hardened, thereby necessitating additional labor and material, as set forth in finding VII, can not be sustained, as under said paragraph 2 of the specifications the matter in the absence of bad faith had been committed by the contract to the officer in charge.

The last claim is a novel one and grows out of the claimant’s want of experience in the class of work he proposed to do; that is to say, having no experience in this line of work he relied upon an engineer of his own selection to advise him as to the basis of making his proposal and the engineer misled him both as to the cost of the materials and of labor, by reason of which he made his bid so low that he suffered a loss. When the claimant discovered that he had been misled he sought to be relieved from the performance of the contract, but the officers of the Government required him to proceed, which he did, and thereby sustained a loss of $5,084.44. We are aware of no rule of law which would render the Government liable under such circumstances, and we may add that the matter is not discussed by the claimant in his brief. It results that the petition must be dismissed, which is accordingly ordered.