#### WILLIAM FRYE WHITE, Receiver, v. THE UNITED STATES.

[No. 29618.

Decided February 10, 1913.]

*On the Proofs.*

Tbe contract in this case relates to a filtration plant in the District of Columbia. The claimant contracts to build certain embankments and to fill in earth “ *and all other fills and emhamJcments shoxon hy the plan or directed to he made hy the engineer officer m charge.”*The contractor is not ordered to build a roadway, but the engineers from time to time furnish him with lines showing the direction of the road and stakes showing the grade. The work is done under their inspection. Vouchers for it are given and he is paid about $12,000 on account of work done on said roadway and on estimates made by the Government engineers. It is then held that the Government was not liable under the contract for building the road, and in the final settlement the $12,000 previously paid is deducted and withheld.

I.Where the provision' in a contract for filling in earth is specific in character, it excludes every other kind of filling unless there be some clearly shown by specifications.

II.It is a well-settled rule that when there is a conflict between the the contract and the specifications, the contract must govern; but if the deduction from the contract is only by inference and the specifications are clear and beyond question a different rule will prevail.

III. In this ease the court compares the contract and the specifications and holds that though different in form they have a common object, and that no conflict exists between them.

IV. Where a contractor was not required or authorized by the contract to construct a roadway, but did so with his waste material, which he had to dispose of; and he would have been compelled to pay for a place to deposit it on if he had not been allowed to construct the roadway with it, his doing so must be regarded as enjoyment of a privilege and not *170as work done under an implied contract. The officers of the Government who permitted it were justified in overseeing and directing the work to the end that it should not interfere with the general plan of the project.

Y. The allowance for a time by the engineers in charge of this work as work to be paid for is not a practical construction of the contract, if it was, during the progress of the work, reversed. The rule prevails only where the contract is susceptible of more than one interpretation.

VI. Where work was voluntarily done by a party without authority, he can not recover upon *quantum meruit*if the work involved no extra expense to himself.

*The Reporters'1*statement of the case:

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

I. William Frye White, the claimant herein, is a citizen of the United States and a resident at the time of the filing of the amended petition herein of the District of Columbia, and is now a resident of Boston, Mass. He is the duly qualified receiver of the firm of Cowardin, Bradley, Clay & Co. by appointment of the Supreme Court of the District of Columbia, made June 27, 1907, in substitution for the original claimant, John D. McClennan, deceased, who had been appointed receiver of said firm in August, 1903.

By order of said supreme court claimant was empowered to prosecute this suit, then pending and entered as *John D. MeClenncm, Receiver, etc.,*v. *The United States,*and subsequently, by leave of this court, White filed herein an amended petition as receiver of the said firm of Cowardin, Bradley, Clay & Co.

II. On the 6th day of April, 1903, said firm entered into a written contract with Lieut. Col. A. M. Miller, acting on behalf of the United States, to furnish labor and material for the construction of a filtration plant in the city of Washington, D. C., in accordance with the plans and specifications attached thereto and made a part thereof. A copy of said contract and the advertisement and specifications, instructions, and conditions thereto belonging and forming a part thereof are attached to the amended petition herein and made a part of the same.

*171III. The site of the filtration plant which the contractor constructed and of the reservoir adjacent thereto is in the city of Washington, beginning on the west side of North Capitol Street, immediately south of the south entrance to the Soldiers’ Home grounds, and extends thence south and west for some distance, the works being bounded by the following streets: North Capitol Street, Channing Street to First Street west, Bryant Street, the blocks abutting on Fourth Street west, Hobart Street, the Soldiers’ Home grounds, and Michigan Avenue.

There is a driveway running at a varying grade completely about the reservoir, which is an irregularly shaped body of water, comprising the western and southern part of the filtration plant. That part of the driveway about the Washington City reservoir for building which this claim is brought (and called throughout this record “ the roadway ”) starts from the north side of the Washington City reservoir at a hill on which is situated the superintendent’s house and runs easterly and then south along the west side of the Soldiers’ Home property line to W. A. E. stone 69, then west of filter 6, Court No. 2, filter 2, filter 1, to the pumping station, around the south side of the pumping station as well as by the north side of the pumping station, around the end of the outlet gatehouse; and southwest again along the east side of the reservoir to a point where it reaches the approximate grade of the south dam of the Washington City reservoir.

IV. The set of plans attached to the written contract and by its terms made a part of the agreement between the parties included certain plans showing the roadway bordering the reservoir west of the filter beds. One of these plans was a plan known *as sheet No.-2, which was a drawing showing the work in general sections and indicating said roadway thereon. Another plan among those attached to the contract was known as sheet No. 4, which was a general plan showing finished surfaces on which was indicated the roadway. Another plan was sheet No. 16, indicating the roadway. Another plan was one general plan of the works, known as general plan No. 1, showing the entire projected filtration plant and indicating said roadway thereon. The four plans hereinbe*172fore mentioned and marked “ Claimant’s Exhibits Nos. 2, 3, 4, and 5,” respectively, are made a part of this finding.

Y. Afterwards two supplemental plans relating to the roadway and giving details as to grades were furnished contractor. One of said plans was marked “ No. 1,” in lead pencil, and dated June 14,1904, and the other was marked “ No. 2,” in lead pencil, dated June 14,1904, corrected November 2, 1904. Said plans marked “ Claimant’s Exhibits 6 and 7,” respectively, are made a part of this finding.

VI. In January or February, 1904, claimant’s predecessor, McClennan, began work on said roadway. The initial work was confined to the part of the road north of Michigan Avenue extended, and this part was substantially completed before the work was begun generally on the southern section of the road. The portion of the road north of Michigan Avenue extended was afterwards sodded by the contractor and he was paid for said sodding by the Government at the contract price.

It does not appear that the contractor was ordered in terms by the Government engineers to build this roadway. The evidence shows that when he commenced work on it the engineers gave him the line of the toe of the slope and that said engineers from time to time furnished him with the lines showing the direction of the road and the stakes showing the grade, and that the work was done under their inspection as to the lines, slopes, and the character of the material allowed to be deposited thereon.

The contractor began to build said road by filling in with earth excavated from other parts of the work, and he continued to fill in and build said roadway in accordance with the plans and under the inspection of the Government engineers until February 14, 1905. Up to that time he had been paid at various times about $12,000 on account of work done on said roadway on estimates made by the Government engineers. The first of said payments was on voucher, month of March, 1904, covering all work done by the contractor on the road up to the end of February, 1904, for “ embankment (A, item No. 2), 13,000 cubic yards, at 30 cents, less 10 per *173cent retained, amounting to $3,510.” Except for said voucher, no separate estimates were made of the amount of fill placed in the roadway, the work done thereon being included in the regular monthly estimates with the work done on other portions of the filtration plant.

Shortly after McClennan was appointed receiver, in August, 1908, he made arrangements with the Soldiers’ Home authorities, at a considerable cost, to dispose of waste material on the Soldiers’ Home grounds under certain conditions, the terms of which, so far as the amount of material to be placed thereon, were never fully carried out. The roadway in question was just as convenient a place as any to dispose of waste material and the cost to the contractor of placing the material excavated on the roadway was no more than it would have been to place it in the Soldiers’ Home grounds.

VII. On February 14, 1905, the contractor, through Mc-Clennan, receiver at that time, was informed by the engineer officer in charge on behalf of the United States that he would refuse to allow further payments for work on the roadway. For a short time thereafter, pending negotiations regarding the matter with the engineer officer, claimant continued dumping material that he wanted to dispose of on the roadway. He finally discontinued work thereon, at which time about 6,000 cubic yards of fill was necessary to complete the roadway. Said roadway was subsequently finished by the United States without further cost.

VIII. In final settlement there was deducted from the balance due claimant a sum equal to such of the fill in the roadway has been paid for at the rate of 30 cents per cubic yard, amounting to about $12,000.

IX. On or about February 15, 1904, the Government engineer in charge had cross sections taken over the line of the roadway in question, which cross sections were used in computing the amount of work done by the contractor thereon outside of the lines allowed and paid for in the final estimate, and the amount of fill so made and not paid for was found to be 67,578 cubic yards, which, at 80 cents per cubic yard, amounts to $20,273.40.

*174*Mr. Ghaamcey Hackett*for the claimant. *Mr. William Frye White*was on the brief:

The provisions of the contract defining the work distinctly take in the roadway:

“ The general extent, location, and character of the work are shown by a set of 23 plans, which * * * are made part of the contract.”

“ *Embankment.*— The work under this heading includes the filling of low places under filters and other structures, the filling of central courts, the embankments about the filters, and *all other fils and embankments shown by the plañís or directed to be made by the engineer offeer in*charge.”

By the terms of the contract a set of plans showing the work to be done were incorporated by reference and made part of the contract itself. Of these plans, one shows the roadway in section, another shows it in plan, and others show it as an integral part of the work to be done by the contrac- • tor. The work on the road progressed under the direction of the United States engineer officers in charge, and all of it was approved by them and accepted. A considerable part of the work on this roadway was paid for, and the amount thus paid was afterward deducted in the final settlement. These facts, established as they are beyond contradiction, render further argument superfluous.

The evidence shows, moreover, that the road was regarded as a part of the work as much as the filter beds were, and that it was never treated as a waste fill.

An examination of the plans will show that the roadway which is the subject of this claim is above the dam and not below it, and consequently no question can arise under the third paragraph of the section of the contract defining embankment.

It is hardly necessary to repeat that the roadway was not a fill for the disposal of waste and was never so regarded by the contractor or the United States.

*Mr. Louis A. Bissell*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

*175BarNet, J.,

delivered the opinion of the court:

This suit arises out of a contract for the performance of certain work in connection with construction of a filtration plant situated in the District of Columbia. The contract was made between the Government and the firm of Cowardin, Bradley, Clay & Co., but shortly after the beginning of the work John D. McClennan was appointed receiver of said firm of contractors, and, as such receiver, completed it. This suit was begun by McClennan, who is now deceased. After his decease the present claimant was appointed receiver in his stead for the purpose of completing its prosecution. For the purpose of avoiding confusion, both the original contracting firm and Mr. McClennan will be referred to as “the contractors.”

The claim in this case is but for one item only, and that is pay for earth deposited upon a certain roadway, it being contended by the plaintiff .that the contractors should be paid for earth thus deposited as “ other fills and embankments shown by the plans or directed to be made by the engineer officer in charge,” mentioned in the contract, and for which pay at a certain rate per cubic yard is provided in the contract. On the other hand, it is contended by the defendants that under the terms of the contract the earth thus deposited is not the “ fills and embankments ” therein provided for, but is mere “ waste ” arising from the excavation work, for payment of which the contract contains no provision.

The first paragraph of the contract provides in general terms for the work to be done under it and the prices therefor to be paid, and makes the following provisions as to payment for fills and embankments, viz: “ for sixty-five thousand four hundred (65,400) cubic yards embankment under filters, for forty-six thousand seven hundred (46,700) cubic yards other embankment, and for one hundred and twenty-three thousand four hundred (123,400) cubic yards filling over filters; ” and this is the only mention or provision in the contract (aside from the specification thereto attached) as to fills and embankments. It will thus be seen that the contract standing alone provides for two kinds of embankment and one kind of filling. The provision for filling is specific in *176character, and under the well-recognized rule *unius expressio est alterius exclussio*excludes every other kind of filling unless otherwise clearly shown by the specifications. We say *clearly*shown because of the well-known rule that when there is a conflict between the contract and the specifications the contract must govern. If, however, the deduction from the contract is only by inference and the specifications upon that point are clear and beyond question, a different rule might prevail. Particular attention is called to this feature of the contract for the reason that the plaintiff seeks to recover in this suit for the earth deposited upon the roadway in question as a “ fill,” and it doubtless comes within the definition of that term, though, as we understand, it is contended that, taking the contract and specifications together, it comes within both terms.

One of the kinds of embankment provided for is also specific in character, and under the rule above mentioned this also excludes all other kinds of embankment unless unmistakably provided for in the specifications; but as the plaintiff makes no claim under this item, it need not be further considered. The other item of “ other embankment ” will be considered further on in this opinion.

The plaintiff’s claim, however, rests upon certain provisions of the specifications, and more particularly upon paragraphs 57 and 58, which are as follows:

> “ 57. *Worh.*— The work under this heading includes the filling of low places under filters and other structures, the filling of central courts, the embankments about the filters, and all other fills and embankments shown by the plans or directed to be made by the engineer officer in charge.

> “ 58. *Classification.*— Embankments shall be divided into three classes:

> “ 1. Embankment under filters.

> “ 2. Embankments about the walls of filters and in courts.

> “ 3. Filling over filters.

> “ Material placed below the dam, in the roadway and at other low places for the purpose of disposing of it, and material disposed of off the ground shall not be paid for as embankment. When waste embankments come against the walls of the filters or the pure-water reservoir the usual section shall be built and paid for as embankment, and all material outside shall be treated as waste.”

*177It is contended by the plaintiff that the phrase “ and all other fills and embankments shown by the plans ” in the above paragraph applies to the filling up of the roadway in question, because the same was shown upon the plans submitted with the proposals. An examination of the plans submitted with the proposals for the work shows that the roadway was indicated thereon, but contained no detail whatsoever as to exact location or dimensions. They merely mark where a roadway is to be placed. The findings show that when the contractors first began to deposit material upon the roadway the engineer officer in charge gave them the toe lines and slope of the same, and some months after the work was begun and after the contractor had placed considerable material upon this roadway the engineer officer in charge of the work furnished the contractor with a plan showing in detail the location and dimensions of this roadway, and thereafter the contractors deposited earth thereon under the inspection of this engineer officer as to the character of the earth thus placed, its dimensions, etc. This was continued and payments for the same made in the first voucher as “ other fills and embankment,” and thereafter without any separate designation, to the extent of $12,000, when its was concluded by the engineer officer in charge of the work that this filling of the roadway was not to be paid for under the contract, and payment for the same was then stopped and the $12,000 already paid deducted for subsequent sums earned under the contract. It should also here be stated that the findings do not show that the engineer officer in charge of the work ever directed in terms any deposit of waste material to be made upon the roadway.

It will be seen that paragraph 58 above quoted specifically provides for three classes of embankments: (1) Embankment under filters; (2) embankments about the walls of filters and in courts; (3) filling over filters; thus putting “fills” and “ embankments ” in the same class. No mention is made here of any filling to be placed upon roadways. This is a very significant fact militating against the contention of the plaintiff, because he now claims that the filling required for the roadway was nearly as much in amount as that estimated in *178the contract for “ filling over filters,” which was specifically mentioned above.

It should also be noted that the classification of embankments made in paragraph 58 of the specifications is in perfect harmony with the first paragraph of the contract before quoted, for there we find practically the same classification with estimated amounts contained in the same, viz: “ 65,400 cubic yards embankment under filters, 46,700 cubic yards other embankment, and 123,400 cubic yards filling over filters.” By thus comparing the first paragraph of the contract and paragraphs 57 and 58 of the specifications, we are forced to the conclusion that the “ other embankment ” provided for in the contract is the “embankments about the walls of filters and in courts ” provided for in the specifications. We also here call attention to the fact that the estimated amount of “ other embankment ” provided for in the contract is 46,700 cubic yards, while the amount claimed for filling the roadway alone is more than double that amount. If the whole contract, including the specifications, had contemplated paying for the filling deposited in the roadway, it is hardly possible that there should have been such a discrepancy in the estimates.

Again, paragraph 58 provides that “ material placed below the dam, in the roadways, and at other low places for the purpose of disposing of it, and material disposed of off the ground shall not be paid for an embankment.” Here again filling is confounded with embankment, and while it is argued that the roadway in question was not a “ low place,” is it not unbelievable that the contract contemplated paying for the filling of this roadway which was not mentioned in either contract or specifications and which involved so large a part of the work, while it did specifically provide that no payment should be made for material placed “ in the roadways and other low places ” *%*And, for that matter, it certainly was a “low place” in the sense in which that term was used, otherwise 100,000 cubic yards of material would not have been required to fill it. Taking the contract as a whole it is inconceivable that a work of such a distinctive character and magnitude as the filling of this roadway could have been intended to have been included in the phrase “ all *179other fills and embankments shown by the plans or directed to be made by the engineer officer in charge.”

As before stated, the findings show that during the time material was being placed upon the roadway the Government officers inspected the work as to lines, slopes, etc., and the plaintiff argues that this fact goes very far to show that it was filling provided to be paid for in the contract. There would be much force to this argument were it not for other circumstances connected with this work which explain this conduct of the Government officers. Paragraph 293 of the specifications shows that the Government contemplated the construction by itself of roadways in connection with this filtering plant, and it is as follows:

> *“*293. *Work done by United States.*— The United States will construct the gatehouses, sand washers, pumping station, macadam roadways, and other structures not included in these specifications and necessary for the completeness of the plant, and the work to be done under these specifications shall be carried on so as to facilitate and not to discommode the prosecution of that and other adjoining and contiguous work, whether done by the United States or by another contractor.”

The findings show that this roadway was as convenient a place as any for the disposal of material taken from the filter beds, and they also show that the contractor was in some instances compelled to pay for the privilege of depositing waste outside of the filter-plant reservation. It thus appears to have been a privilege rather than otherwise for the •contractors to have been allowed the right to deposit material excavated from the filter beds upon this roadway. While he was doing this, of course it was the duty of the Government officers in charge to oversee and direct the work to the end that it should not interfere with the Government project for the whole plant, including the roadway.

The plaintiff contends that the allowance for a time by the engineer in charge for the fill on the roadway as coming within the provision for fill or embankment for which the contractors were to be paid, was a practical construction of the contract which must now prevail. The answer to fhG contention is that such construction was afterwards and during the progress of the work reversed; also that the rule *180invoked prevails only where the contract is susceptible of more than one interpretation. *(Gibbons*v. *United*States, 109, U. S., 200; *District of Columbia*v. Gallagher, 124 U. S., 505.)

It is also contended that even if the work of filling the roadway was not within the contract, as it was of advantage to the Government, the plaintiff should recover upon *quantum meruit.*But, as the findings show, it involved no extra expense to the contractors, hence does not come within that rule; and, if our view of the contract is right, it was work performed outside of the contract for which the plaintiff is not entitled to recover upon *quantum*meruit, under the decision in *Plumley*v. *United*States, handed down January 6, 1913, by the Supreme Court.

It is ordered that a judgment be entered in this case dismissing the petition.