#### JOSEPH VERNON GEARING v. THE UNITED STATES.

[No. 22550.

Decided December 2, 1912.]

*On the Proofs.*

The claimant enters into a contract for the building of a power house, lock, etc., on the St. Marys’ Falls Canal. The present case relates to the adverse rulings of the engineer in charge as the work went on; and to a number of charges for extra work.

I.It is for the interest of both parties that matters which can not be left until a building shall be completed shall be settled as the work proceeds. Hence agreements which provide for the arbitrament of such matters must be upheld.

II.The requirements of a contract may be rigid; but if there is nothing to show that the architect or engineer in charge acted in bad faith, it must be presumed that he acted with due regard to his duties between the Government and the contractor.

III.Where a contractor appeals from a decision of a local engineer to the engineer in charge (having a right so to do under the contract) the latter can not refer it back for the decision of the local engineer, whose decision will not bind the contractor or preclude the court from considering the item.

IY. Where a foundation provided by the Government is deficient and the contractor is required to supply the deficiency by a greater depth of concrete than the contract required, it is extra work, for which he may recover, although no written agreement was. entered into and the original contract was required by law to be in writing.

V. Where the local engineer laid down incorrect lines, and the contractor was obliged to correct the error by materially increasing the thickness of the plastering, it was extra work, for which he may recover, though he made no protest at the time. A number of other items of alleged extra work are examined and passed upon by the court.

VI. Where a pier belonging to the Government was assigned to a contractor as the place on which he could store material to be used in the construction of a public work; and subsequently, in the removal of the pier, the officers in charge dumped the building material in the river without having given the contractor sufficient notice to enable him to remove it, their doing so was a tortious act; and the defendants having received no benefit no contract can be implied.

*13*The Reporters’*statement of the case:

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

I. The claimant is a citizen of the United States and a resident of the State of Michigan, and is the sole owner of the claim sued on, never having sold or assigned the same or any part thereof to any person or persons.

II. Pursuant to acts of Congress approved February 26, 1885 (23 Stats., 332), and February 23, 1887 (24 Stats., 414), and under appropriation made by act of August 11, 1888, and subsequent appropriations, including that of March 2, 1895, the construction of a power house and office building for the 800-foot lock, St. Mary’s Falls Canal, was provided for, and on August 11, 1894, claimant entered into a contract with the United States for the construction of said building, which was approved by the Acting Chief of Engineers, U. S. Army, August 21, 1894. A copy of said contract and the advertisement and specifications thereto belonging and made a part thereof are attached to the petition herein and made a part of the same.

III. By the terms of the contract the claimant agreed to furnish all materials, appliances, and labor for and to construct the power house and office building for the 800-foot lock, St. Mary’s Falls Canal, Mich., as therein specified, and to complete the same in all respects by December 31, 1895, for which he was to be paid in full the lump sum of one hundred seventeen thousand five hundred and twenty-seven dollars ($117,527) at the prices as itemized below, viz:

Mason work, for lump sum of seventy-nine thousand three hundred ninety-one dollars_ ($19,391)

Iron and steel work, for lump sum of seventeen thousand dollars_ ($17,000)

Metal roofing, for lump sum of thirteen hundred dollars— ($ 1,300)

Carpenter work, for lump sum of seventy-one hundred sixteen dollars_ ($7,116)

Plastering, for lump sum of forty-three hundred seventy dollars-_ ($ 4,370)

Plumbing, for lump sum of twenty-six hundred dollars-($ 2,600)

Steam heating, for lump sum of twenty-four hundred dollars_ ($ 2,400)

*14Elevator, for lump sum of fourteen hundred dollars_($ 1,400)

Electric lighting, for lump sum of fourteen hundred fifty dollars- ($ 1,450)

Painting, for lump sum of five hundred dollars_ ($ 500)

IY. At the time of entering into said contract claimant was a competent and experienced architect and builder, having been employed in New York City and in Detroit for a number of years as a builder of the better class of buildings in conjunction with his father.

V. The excavation and foundation walls were not completed by the Government as expected by August 1, 1894, as per specification 40, the foundation of the main building being completed September 21, 1894, and of the coal sheds June 5, 1895, but they were sufficiently advanced by the time claimant was ready for work to permit him. to commence work, which he did toward the end of August, 1894.

The time set for the completion of the contract was extended an amount equal to or more than any delay caused by the Government in the completion of the foundations as provided for in paragraph 41 of the specifications, and it does not appear that there was any delay on the part of the Government engineers in laying out the building.

YI. After claimant had laid about 5,000 brick he was ordered by the engineer in charge on September 9, 1894, to stop until tests of the brick were made to see if they met the requirements of paragraph 60 of the specifications. Said tests were not completed until March 8, 1895, on which date claimant was notified that the brick tendered were not acceptable-. This caused a delay of about six weeks in the fall of 1894 and rendered it necessary to shut down for the season.

The balance of the brick which claimant had on hand for work under the contract, namely, 270,000, was condemned by the Government engineer as unsuitable for the specified work on account of being too soft and of irregular sizes. After said bricks were rejected 220,000 were sold by claimant at a loss of $5 a thousand, or $1,100, and 50,000 were lost in transit from the work to the mainland on which claimant’s loss was $500.

*15Samples of brick had been submitted by claimant to Colonel Poe before any were shipped to the site of the work,, and one of the samples appears to have been approved by him verbally. Whether the sample so approved was the kind the contractor furnished is not shown. A large number of the brick claimant conceded were soft and untfit for the work specified.

VII. At the request of claimant, who gave as a reason therefor, the failure of the Government to complete the foundation at the time expected, and the failure of the iron mills to furnish structural steel as needed, the time for the completion of the walls and ceiling of the basement was extended to October 1,1895, and for the completion of the entire building to July 1, 1897, and in accordance with paragraph 43 of the specifications, all costs of inspection after December 31, 1896, were to be deducted from payments to be made to the contractor.

VIII. After claimant had expended all his available money in the performance of the contract, about $16,000, his bondsmen, beginning some time in August or September, 1895, furnished the funds for the remainder of the contract work, amounting to $101,000, and about the same time all of claimant’s books and accounts were turned over to said bondsmen, and they were not afterwards in his possession up to the time his testimony was taken in this case. Claimant continued to have charge of the work and turned over the compensation as he received it to his bondsmen. On May 29, 1897, claimant left the work and thereafter his bondsmen assumed charge of the work, and completed it on September 17, 1897.

On November 3,1897, a final settlement was made between the engineer officer in charge and the claimant in the presence of the two bondsmen, at which time claimant presented for the first time a claim in bulk to said officer, dated November 2, 1897, for $47,644.25 for extra work and damages in excess of his contract.

No claim therefor appears to have been filed in the department or was any itemized account thereof stated until the filing of the petition in this case in June, 1901, when the claim was increased to $69,481.95.

*16IN. In accordance with the terms of the contract and the requirements of the engineer in charge, claimant at first, and afterwards his bondsmen, furnished all materials, appliances, and labor and constructed said power house and office building, and the same was, on September 17, 1897, duly accepted by the United States, and has been and now is used by the United States for the purpose for which it was built. With the exception of the sum of $579.55, deducted from the amount of final estimate as expenses of inspection and superintendence after December 31,1896, as shown in finding VII, claimant has received the sum of $117,527, the contract price of said work.

X. During the progress of the work the contractor was required to and did furnish materials and work itemized by him as additional or extras, as follows:

IteM 1. *Additional cost of fainting.*— After claimant had finished painting the metal work at the time and as called for by paragraph 228 and interior woodwork called for by paragraph 433 of the specifications, parts of it became soiled and injured by careless work in construction, and in order to leave the building in a good and finished condition the engineer in local charge required claimant to put on another coat of paint, which additional coat cost claimant the sum of $375, which is a reasonable price if claimant is entitled to recover therefor.

Claimant protested against doing this work, but made no appeal to the engineer officer in charge.

Item 2. *Additional work on tof of elevator.*— After the elevator was finished and the timber work completed as specified in the plans, the engineer in charge ordered and required claimant to do additional work on the top of the elevator, putting in partitions, closing the top of the elevator from the third floor to the roof and plastering it. This extra work cost the claimant $205, which is reasonable if he is entitled to recover therefor. No agreement therefor in writing approved by the Chief of Engineers was made.

Item 3. *Additional finish of lockers and hooks.*— Claimant offered a sample of certain locks for the lockers for approval which the engineer in charge considered inferior to that re*17quired by the specifications, and he refused to accept same, and required claimant to furnish Yale locks, which would meet the requirements of the best material called for by paragraph 439 of the specifications, which he did without protest at the additional cost of $40. The amount claimed is reasonable if the, claimant is entitled to recover therefor.

Item: 4. *Additional*cornices, *side halls.*— The drawings which were a part of the specifications showed appropriate cornices for the main hall, but did not show cornices for the side halls which crossed the main hall. The rooms off the side halls were shown in the drawings with cornices not so elaborate as those in the main hall. Claimant wanted to furnish cornices similar to those in the rooms, but the engineer officer in local charge decided that the cornices for the side halls were a part of the system of decorations and ordered claimant to furnish cornices similar to those in the main hall at an expense of $64 more than the cost of cornices similar to those in the rooms off the side halls, which amount is reasonable if the claimant is entitled to recover therefor.

Claimant protested against doing this work except as an extra and appealed to Col. Lydecker, the engineer officer in charge, who decided to leave the decision of the matter to the local engineer as to whether these cornices should correspond to those in the main corridor or to those in the rooms into which the side halls enter.

Item 5. *Additional concreting.*— -By paragraph 71 of the specifications the contractor was to cover the entire floor of the basement and vaults with six inches of concrete. The foundation for the building was provided by the Government and was no part of the work under claimant’s' contract. In the construction of said foundation the floor was not brought up to the line prescribed and claimant was required by the inspector in charge to lay one and three-quarters inches of concrete over the entire floor of the basement in addition tó the six inches provided for by the specifications in order to bring the floor up to the specified height. This work entailed an additional expense on the claimant of $500, which is rea-r sonable if he is entitled to recover therefor.

*18Item 6. *Additional stone over doorways.*— This item is for cutting the extra stone put in over the doorways at the north and south entrances by order of the assistant engineer in charge. The actual cost of cutting this stone and putting same in was $120, which is reasonable if the claimant is entitled to recover therefor. The same was not provided for in the specifications or drawings.

Item *7. Additional transom in tower.*— Claimant furnished a transom in the tower which was badly checked and puttied and the carving of inferior workmanship. This was rejected by the engineer in charge and claimant was required to take it out and replace it with another, which he did without protest at a cost to him of $29.70, which is reasonable if the claimant is entitled to recover therefor.

Item 8. *Extra plastering.*— The lines- for the partitions were given to the contractor by the Government engineers, and when the walls were carried up some of them were found to be out of plumb. In order to have the w'alls plumb the inspector in charge required claimant to put on an extra thickness of plastering on an average 2^ inches above that which would otherwise have been required; and on account of the thickness of the plastering and to make it more secure required the claimant to mix the mortar with Portland cement instead of plaster of Paris, as Called- for by the contract, at an extra expense to him of $1,325, which is reasonable if the claimant is entitled to recover therefor. No protest was made by claimant at the time with respect to this extra plastering.

Item 9. *Extra cost of*cleaning, dressing, *and preparing floors.*— The claimant was required by the local engineers in charge to lay the floors before the plastering and other dirty work had been completed, and upon completion of the work he was required to clean and dress the floors, which he did at a cost of $600, which is reasonable if the claimant is entitled to recover therefor.

' XI. The electric brass fixtures offered by claimant for ap: proval under paragraph 428 of the specifications were rejected by the engineer in local charge because, in his opinion, they did not conform to the requirements of the specification. The fixtures afterwards furnished under the direction of the *19engineer in charge were made of solid bronze metal with a little cast-bronze work on them. They were more expensive than those submitted by claimant or those required by paragraph 428 of the specifications. The difference between the cost of the fixtures offered and those furnished by claimant was $425, which is reasonable if the claimant is entitled to recover therefor.

XII. Claimant had some brick stored on a pier adjacent to the work on space assigned to him by the Government for the storage of material for use in the building, which he was removing as fast as they were required in the work. . He was ordered by the engineer in local charge to remove said brick, but no time was fixed therefor. Before claimant could comply with said order and remove the brick, estiniated at 20,000, they were dumped into the river and' lost in the operation of a Government dredge under the direction of the local engineer in charge in the removal of said pier, which work of removing said pier was in no way connected with* the execution of the contract herein. The value of the brick so lost was $200, which is reasonable if the claimant is entitled to recover therefor.

XIII. Item; 1. *Appeal as to manner of tooling face of-stone.*— The engineer in local charge required claimant to have the face of the stone for use in the building tooled ten bats to the inch. Claimant objected to this, claiming that six bats to the inch would meet the requirements of the contract, and appealed to Colonel Poe, the Engineer officer in charge of the work at Detroit. The appeal was forwarded to Colonel Poe on September 29,1894-, and that officer answered in a letter dated October 1, 1894, sustaining claimant’s contention as to the tooling of the stone. The delay of one or two days while waiting for said decision did not delay the work, as other work could be done. No complaint was made at the time by claimant that he was put to extra expense therefor.

Item 2. *Appeal as to whether heels of stone should he hush-hammered.*— The inspectors and engineer in local charge required that the stone should have a bushhammered bed. Claimant objected to this requirement and appealed to Col. *20Poe on October 5, 1894, and that officer answered by letter dated October 6, 1894, deciding in favor of claimant. No delay in the work was necessarily caused while waiting for the decision of Col. Poe. Claimant could have gone ahead getting out stone without bushhammered beds pending Col. Poe’s decision on the question, and he made no claim for expense on account of the day’s delay at the time, nor is it shown that any was incurred.

XIY. In some parts of the building the stones were required to be cut to dimensions very closely in order to get a one-eighth inch joint as required by paragraph 18 of the specifications. No stones were rejected because they were less than one-sixteenth of an inch beyond the dimensions shown by the plans, or that were scant of dimensions. Claimant was required to cut the backs of the stone to within one inch of dimensions, except where the backs came through the walls.

Claimant protested verbally to. the inspector in charge in regard to the cutting of the backs of stone, but no formal or written protest was made by him or appeal taken to the engineer in charge during the progress of the work about the requirements of the inspectors in regard to the cutting of the backs of stone. The inspection of the stone was not more rigid than required by the contract.

XY. The items hereinbefore set forth were not included by claimant-in any monthly or final estimate of work done by him, nor did he make any formal or written protest at the time against the doing of the work for which said items are claimed except as to item 4 in finding X and as to items of tooling face and beds of stone wherein appeals were taken as set forth in finding XIII. He made other complaints to the local inspectors from time to time that their inspection was too rigid, but no appeal was taken therefrom.

XVI. The local engineers and inspectors in immediate charge of the work for the United States under said contract were graduates in their profession of civil engineering from reputable schools and were honest and capable officials who performed their duties with care and impartiality. In their inspection of the workmanship and materials they appear to have been actuated according to their best judgment as to *21what the specifications and contract required. Other than as' set forth in findings V, VI, and VII respecting delays and the granting of the extension under paragraph 41 of the1 specifications, they were in no way responsible for any delays.

Said local engineers and inspectors had had no experience prior to that time in the construction of a building similar to the one involved in this suit, though they were experienced in masonry and brickwork on said canal and elsewhere, said masonry and brickwork being about two-thirds of the entire work under the contract.

XVII. If the claimant is entitled to recover therefor, the reasonable compensation for his services as superintendent of the work was $7,500.

Whatever profits there were on the contract were included in the contract price which was paid to claimant for the work performed. It is not shown that the claimant was deprived of any gains or profits through the acts or fault of the officers in charge.

Mr. *Samuel M. Stoehslager*for the claimant. *Messrs Stoehslager <& Heard*and *F. O. Harvey^*Esq., were on the brief.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney Generad John Q. Thompson)*for the defendants.

Peelee, Ch. J.,

delivered the opinion of the court:

The claimant on August 11,1894, entered into the contract made part of the petition, wherein for the consideration of $117,527 he agreed to furnish the materials, labor, and appliances and to do all the work therein specified in the construction of the power house ,and office building for the 800-foot lock, St. Marys Falls Canal, Mich., and to complete the same' in all respects by December 31, 1895.

The claimant entered upon the performance of the contract, and after expending all his available money — about $16,000 — he was unable to proceed further with the work, and his bondsmen thereafter furnished the residue of the money, and the work was completed and in the main under the claimant’s supervision; was accepted by the Government, and the' *22full contract price therefor w,as paid less $579.55, deducted as expenses of inspection and supervision during the period of extension after December 31, 1896, as shown in finding VII.

The claim herein is for extra and additional labor and materials and for expenses during periods of delay caused by the Government and for deductions for inspection, for profits and for superintendence by the claimant, as set forth in the findings.

The .contract is a rigid one, but it was of the claimant’s making, with full knowledge and information of all the facts, and the duty of the court is simply to construe the contract as thus entered into and to determine what work and materials were or were not within the terms of the contract.

• Eespecting generally the claims for extra work and materials, paragraph 46 of the specifications, as well as the eighth paragraph of the contract, provide in substance that no claim whatever shall at any time be made by the contractor on account of any extra work or materials performed or furnished unless the same shall first be expressly required and an agreement therefor entered into in writing, wherein the prices and quantities shall be agreed upon by the parties and approved by the Chief of Engineers. The paragraph of the specifications referred to also includes claims arising from delays of any kind.

No extra or additional work was required in writing, nor was any agreement therefor entered into in writing or otherwise. On the contrary, the officer in charge insisted at the time that the work performed was only such as that required by the terms of the contract, and no bad faith is shown. A like contention was upheld in the case of *United States*v. *Gleason*(175 U. S., 588, 607), the court saying: “We are permitted, and indeed required, in the absence of evidence of bad faith on his part, to presume that he acted with due regard to his duties as between the Government and the contractors.”

By paragraph 439 of the specifications it was provided that “ The object of the foregoing specifications is to secure the complete construction of the building, using the best mate*23rials and workmanship of the several kinds specified, and the contractor will be held to this object, although some minor matters may have been overlooked ”; while paragraph 32 of the specifications provides that “ Should any doubt arise as to the quality of the work required by the plans and specifications, it shall be decided by using the best class of work that any interpretation will admit of.”

Here again the contractor was bound to know that he would be held to “the best materials and workmanship ** * **although some minor matters may have been overlooked,” and in case of doubt as to the quality of the work the officer in charge was therein authorized to decide the matter “ by using the best class of work that any interpretation will admit of.”

The claimant contends that he was put to extra expense by reason of the delays of the Government in the completion of the excavation and wall foundations. But conceding this to be true, paragraph 41 of the specifications provides that *“*Should there be any delay in the completion of the excavation and wall foundations, the time set for the completion of the contract shall be extended an amount equal to such delay.”

Such extension was granted for all the delays of the Government, as set forth in Finding VII, and this court in the case of *Merchants’ Loan & Trust Co.*(40 C. Cls., 117, 132) held a like provision as valid and binding as any other part of the contract.

The contract further provides that “All materials furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the Government, and such as do not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.”

Referring to the authority of the engineer in charge to determine the quantity and quality of materials to be- furnished, the court in the case of *Barlow*v. *United States*(35 C. Cls., 514, 546) said: “ Some one must pass upon the fitness of the material, the sufficiency of the workmanship, the *24amount of work performed, etc. These are matters which can not be left until a building is completed; it is for the interest of both parties that they be settled as the work proceeds. The architect or engineer in charge being the person most familiar with the work, and professionally fitted to pass upon such questions, is ordinarily designated as the referee or arbitrator to determine them. Such agreements for such arbitraments must be upheld.”

This being true it was incumbent upon' the Government to provide some person competent to make such inspection, and this it appears to have done. Finding XVI recites in substance that the engineers and inspectors in charge of the work were honest and capable officials, being graduates in their profession of civil engineering from reputable schools and, though lackingi in experience in the construction of a like building, had practical experience in masonry and brickwork, which constituted two-thirds of the work under the contract; and though they erred in requiring certain work to be done outside of the contract they appear to have performed their duties in good faith; and other than as shown in Finding VII as to delays and extensions of time under paragraph 41 of the specifications they were not responsible for any delays in the performance of the work. Therefore, in the absence of any evidence of bad faith, or such gross error as to imply bad faith, on the part of the officers their acts must be upheld. *United States*v. Gleason, *supra,*and many other cases which need not be cited.

Whenever the contractor was aggrieved at the rulings or requirements of the .local engineer or inspector he was at liberty to formally protest and appeal therefrom to the enginéer in charge. This he appears to have done in three instances. First, as set forth in *item*4 of Finding X respecting the additional claim for cornices in the side halls. The claimant protested against doing the work and appealed to the engineer officer in charge who decided to leave the matter to the local engineer, who required the claimant.to perform the work, which he did, and for which we have allowed. Two other appeals were taken as set forth in Finding XIII, wherein, as shown by-his. petition, he claimed $1,100 expense *25incurred during the delay pending the appeals, but as there was no appreciable delay, and other work could be done in the meantime, the court has found that no expense was incurred. In respect of the claim of $13,000 made by the petition for extra work in cutting stone, as set forth in Finding XIV, no formal protest was made or appeal taken to the engineer in charge from the decision of the local engineer requiring the work to be done. The court has found that the inspectors were not more rigid than they were required to be by the contract. Hence, no allowance is made therefor.

The claimant’s silence in presenting this claim is not without significance. At the time of final settlement in 1897 a claim in bulk for $47,000, equal to two-fifths of the contract price, was presented; but not until the filing of the petition in this case in June, 1901, four years thereafter, did he file an itemized, claim, and then it was increased to over $68,000, or three-fifths of the contract price, of which less than $5,000 is claimed for 'extra, or additional work growing out of the inspection of work and materials on the building proper.

We have found that while the inspection of the work and materials under the contract were rigid they were in conformity therewith. Hence the remaining question is, Was any work for which claim is made herein extra or outside of the contract? As to this let us examine the items of the claim in the order presented in the findings, and first as to the items set forth in Finding X:

. 1. The claim for the additional coat of paint arose in this wise: After the claimant had finished the painting called for by the specifications parts of it became soiled and injured through careless work in construction, and in order to leave the building in a good and finished condition, as the con-, tract required, the engineer in local charge required the claimant to put on the additional coat of paint, which he did. But the claim having arisen through his own fault, for which the Government was in nowise responsible, no allowance is made therefor.

2. The additional work on top of the elevator was clearly outside the terms of the contract; and while the claimant carried out the verbal order of the local engineer in doing the work no agreement therefor in writing was entered into be*26tween the parties as required by the terms of the contract. The work, however, having been done by the claimant and the Government having accepted same and received the benefit thereof we think he is entitled to recover on *quantum meruit*the reasonable value of the work done, which we have found was $205.

3. The claim for the difference in price of certain locks offered by the claimant and those he was required to furnish can not be sustained for the reason that those he offered were inferior, while the Yale locks required by the officer were in conformity with paragraphs 289 and 439 of the specifications requiring the best quality of hardware, and hence no allowance can be made therefor.

4. The claim for additional cornices in the side halls can only be held within the contract by construction. That is to say, while the specifications show appropriate cornices for the main hall they do not for the side halls which cross the main hall. The claimant wanted to furnish cornices similar to those in the rooms off the side halls, which were not so elaborate as those in the main hall, but the engineer in. local charge decided that the cornices for the side halls were a part of the system of decorations and ordered the claimant to furnish cornices to correspond to those in the main hall, which he did under protest at an extra expense of $64. An appeal was taken to Colonel Lydecker, the Engineer officer in charge, who, instead of passing upon the question, as he should have done under the terms of the contract, left it to the decision of the local engineer, and he required the work to be done as a part of the contract. For the reasons stated we think the work was outside the contract, and as the Government received the benefit thereof the claimant is entitled to recover on *quantum meruit*the amount stated.

5. Respecting the claim for additional concrete, paragraph 71 of the specifications required the contractor to cover the entire floor, of the basement and walls with 6 inches of concrete. The foundation of the building, however, was provided by the Government and should have been so constructed as to leave about 6 inches of concrete to be done by the claimant as his contract required. But in the construe*27tion of the foundation, the floor was not brought up to the line prescribed, and the claimant in order to execute his part of the contract was required to lay If inches of concrete over the entire floor of the basement in addition to the 6 inches provided by the contract to bring the floor up to the specified height. This work was outside the contract and entailed an additional expense on the claimant of $500, which is reasonable; and while no written agreement was entered into for the work the Government received the benefit thereof and we think the claimant is entitled to recover on *quantum meruit*therefor.

6. The cutting of stone for use over the doorways at the north and south entrances by order of the assistant engineer in charge was not provided for in the specifications or drawings, and though no contract was entered into in writing, the claimant performed the work at the reasonable cost of $120 and the Government received the benefit thereof. We therefore think he is entitled to recover the amount on *quantum meruit.*

7. The claim for the additional transom in the tower can not be allowed, for the reason that the transom which the claimant first furnished was badly checked and puttied and of inferior workmanship, and was consequently rejected by the engineer in charge, and the claimant -was required to take it out and replace it with one in conformity with the contract, which he did without protest.

8. The claim for extra plastering, we think, is allowable for the reason that the lines for the partitions were given to the contractor by the local engineers, and when the walls ■were carried up they were found to be out of plumb, to remedy which the inspector in charge required the claimant to put on an extra thickness of plastering averaging *2%*inches above that which would otherwise have been required; and on account of the thickness of the plastering, and to make it more secure, the claimant was required to mix the mortar with Portland cement instead of plaster of Paris, as called for by paragraphs 317, 318, and 320 of the specifications, which he did at an extra cost to him of $1,325. Though it appears that no protest was made by the claimant at the time with *28respect to this extra plastering, we think it clearly falls within the definition of extra work, as, but for the error of the local engineers in giving incorrect lines, the walls, when carried up, would have been plumb; and, inasmuch as the Government has received the benefit of the work, we think the claimant is entitled to recover on *quantum meruit*therefor.

9. The claim for extra cost of cleaning and dressing the floors can not be allowed, for, while the claimant was required by the local engineers to lay the floors before the plastering and other dirty work was done, specification 250 required that upon completion of the floors they “ shall be planed off.” We therefore construe this to mean that any accumulation of dirt was to be removed; that is to say, the floors were to be cleaned and dressed, and certainly if planed off that would meet the requirement.

• Extra cost of electric fixtures, as set forth in Finding XI: The claimant offered electric brass fixtures, ,as provided under paragraph 428 of the specifications, but the same were rejected by the engineer in local charge as not conforming to the requirements of the specifications, and he required the claimant to furnish solid bronze metal fixtures with a little cast bronze work on .them, which were more expensive than those offered by the claimant, the difference in cost being $425; and being outside of the contract, and the Government having received the benefit thereof, the claimant is entitled to recover therefore on *quantwm meruit.*

The claim- for the loss of brick stored on the pier can not be sustained, for, while the brick were dumped into the river and lost in the operation of a dredge in removing the pier under the direction of the officer who was also the local engineer in charge, the claim is one in no way connected with the work under the contract, nor can the loss of the brick be considered as extra or additional to the work thereunder. The Government received no benefit therefrom; and while the loss imposes a hardship upon the contractor, the claim in its nature, arising out of the wrong of the officer, is rather in the nature of a tort than a claim arising out of the contract, and therefore the court is without jurisdiction to render judgment therefor.

*29Respecting the claim for delays pending appeals to the engineer in charge as to the manner of tooling face and beds of stone, as set forth in Finding XIII, the court has found that there was no appreciable delay, and no expense shown to have been incurred.

The claim for the cost of extra work in cutting backs of stone, as set forth in Finding XIV, can not be sustained, for the reason that paragraph 78 of the specifications requires that the joints of all cut stones shall be uniform and shall not exceed -J inch in thickness. This necessitated the cutting of the stone to dimensions very closely in order to get *3g*inch in thickness, as therein required.

As to the backs of the stone, the claimant was required to cut the same within 1 inch of dimensions, except where the backs came through the walls. For the doing of this work the claimant protested verbally to the inspector, but no formal protest in writing was made by him to the engineer in charge, nor does it appear that any ajppeal was taken from the decision of the inspector to the engineer in charge. We do not think the inspection of the stone was more rigid than required by the contract, and therefore no amount therefor is found.

None of the items herein were included by the claimant in any monthly or final estimate of work'-done, nor did he make any formal or written protest at the time against the doing of the work except as set forth in item 4 of Finding X, and as to the item of tooling face and bed of stone, wherein appeals were taken as set forth in Finding XIII, though frequent complaints were made to the local inspectors from time to time that their inspections were too rigid.

The claimant, having completed the contract work and been paid the consideration therefor, can not be allowed additional compensation for his services in superintending the work under his contract; and as it is not shown that the Government in any way interfered with or delayed the claimant in the performance of his contract other than for which extensions of time were granted, as provided therein, no gains were prevented nor profits lost through the fault of the Government; and hence he is not entitled to recover therefor.

*30Upon the whole case the court awards judgment in the claimant’s favor on Finding XI and on *items*2, *4, 5,*6, and 8 of Finding X in the sum of $2,639.

Howry, J., was not present when this case was tried and took no part in the decision.