#### GEORGE B. CHRISTIE ET AL. v. THE UNITED STATES.

[No. 24693.

Decided April 7, 1913.]

*On the Proofs.*

iPhe subject matter of tliis action is a contract for building locks and dams on the Warrior River in Alabama. Nine distinct causes of action are set up in the case: Delay caused by the engineer officers; delay caused by the Government not having acquired title to a site; expenses incurred in obtaining and repairing roadways to the sites of the lock; concealing the existence of obstructions at the time when the contractors bid for the work; designating too steep slopes for embankments; excavation made necessary by defendants’ engineers but not allowed and paid for; extraordinary expenses caused by the engineers in pile work; excessive cost unreasonably thrown on the contractors in the building of cofferdams; requiring stone filling where the engineers’ drawings led the contractors to believe that only gravel filling would be required.

I. By the law of Alabama (where the cause of action arose), the testimony of a party in interest is not admissible as to the alleged statements of a deceased person. By the law of the *294United States, *Act Set March, 188V*(24 Stat. L., p. 505), all claimants in tliis court are made competent witnesses in tlieir own behalf without qualification. The law of the United States is paramount, and parties in this court may testify though inhibited from so doing by State law.

II.Where the engineer in charge, in a season of extraordinary freshets, refused to allow the work of excavation to begin because in his judgment the abutment walls could not be built sufficiently high during that season to prevent the banks from caving, and there was no such mistake in this decision as to imply bad faith, it must be regarded as conclusive under a contract which provided that the decision of the engineer in prescribing the order and manner of executing the work should be final, even though the contractor objected and protested at the time and made repeated requests at successive times.

III. Where the contractors were prohibited from beginning work by the defendants’ engineers because the Government had not acquired title to the site, the contractor was entitled' to a corresponding extension of time and to whatever damages may have been directly caused by the delay.

IV. Where there is no right of way, the contractor may purchase one and charge the Government with the cost thereof.

V. Where a public roadway exists, the contractor can not charge the Government with the cost of keeping it in repair. But where the road is a private l’ight of way, and the contractor, if he uses it, is charged for its use by the owner, or owners, the amount paid to such owner or owners for the use of the road is a proper charge against the Government.

VI. Borings made by the defendants’ engineer officers for their own use and information do not relieve the contractor from his contractual obligation to examine the site and ascertain the difficulties of the situation for himself. The fact that borings referred to in the defendants’ specifications showed no obstructions, where obstructions in fact had been found, does not shift the responsibility if the engineers acted in good faith and with no intent to mislead the contractor when he made his bid.

VII.Where the records of the engineer’s office were open to the contractor, an engineer was not bound to inform a bidder of difficulties appearing in the files of the office; and where there was no intent to deceive, a contractor can not be relieved from the obligation of his contract because he encounters substances more difficult to excavate than he was led to expect from an examination of the plans and reports which he examined. The authorities examined.

*295VIII.Where there is no specific agreement as to the angle at which the sides or slopes of excavation shall be made, and the engineers direct that they be *“ 1 on 1,” i. e.,*45 degrees, which proves to be sufficient for a dry season but too steep for times of freshet and overflow, the defendants can not be held liable for the mistake if the contractor acquiesced; and where the contractor proposed to sheath the slopes with boards against expected freshets and the local engineer refused to order it because it was not so provided in the contract, and the contractor acquiesced, the defendants can not be made liable for resulting injury.

IX.Where the letting plans did not show the slopes of the banks but the original cross-section sheets from which the quantities of excavation had been calculated showed the angles for both temporary and permanent work, and these sheets were open to examination by bidders prior to submitting proposals, it was the duty of the contractor to examine them. And if he made no estimate of the approximate quantities of excavation necessary nor made inquiry concerning the method by which the angles of repose were fixed by the engineers, the defendants can not be held liable for the amount of excavation necessary according to the angles designated by the cross-section sheets,

X.The defendants can not be held liable for excavation voluntarily made, the purpose being to recover timber forms buried by a freshet to be reused in the contract work.

XI.Where the planting of piles is difficult and uncertain work, and the contractor follows the directions of the local engineer without objection and without appeal to the engineer in charge, the defendants can not be held liable for expenses which might have been avoided; and where the piles which the contractor was obliged to furnish were of such a length as to involve him in needless expense, he can not recover if he neglected to request the engineer officers to change the length specified.

XII.Where the specifications of a contract are explicit in requiring that the contractor shall furnish all cofferdams needed, and he is required to build cofferdams costing more than $11,000 when he had computed that the cost would be only about $6,000, he can not recover for the excessive cost, unless there appears in the requirements of the engineer officer fraud or mistake so gross as to imply bad faith; neither can he recover in *quantum meruit*for cofferdams which he was required to build to protect permanent work from floods during construction; nor can the engineer order the building of such , dams as extra work where the specifications require the contractor to furnish all cofferdams required.

*296XIII. Where cofferdams for the protection of lock work were built by direction of the engineers across the area where a permanent dam was to be built, so that the earth of which the cofferdams were composed would have to be subsequently excavated and removed, it can not be paid for as excavation, and the removal must be at the cost of the contractor, where the cofferdams in any way formed an obstruction to navigation.

XIV. Though descriptive words, *"filled with sand and gravel,"*on cross sections of plans exhibited to bidders when they made their bids, led the contractor to believe that the filling of the dam would be sand and gravel, yet if the contract provided *“for gravel filling, per cubic yard, 1¡% cents,"*and “ *for stone filling per cubic yard,*it gave the defendants an option; and their engineers could compel the contractor-to do the work with stone filling, notwithstanding the fact that expensive preparations had been made to do the work with gravel, and that the change would involve the contractor in delay and loss.

*The*Reporters’ statement of the case:

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

I. On December 20, 1899, Maj. William T. Bussell, Corps of Engineers, United States Army, by authority of the Secretary of War, advertised for sealed proposals for building Locks and Dams Nos. 4, 5, and 6, Warrior River, Ala. A copy of said advertisement, with the accompanying specifications, is annexed to the petition herein, marked “ Exhibit A.”

On or about January 1, 1900, George B. Christie and James O. Hey worth, two members of the claimant firm, visited Tuscaloosa, Ala., and applied to Asst. Engineer B. C. McCalla, the official named in the advertisement, for information upon which to prepare a bid for the proposed work. Said McCalla showed them a set of plans and specifications and went with them by railroad to Powers Station, from which point they drove to the site of Lock and Dam No. 6 and offered to take them to the sites of Locks 4 and 5, but they did not go. After remaining five days at Tuscaloosa securing information upon which to prepare their bid, Mr. Heyworth returned to Chicago and Mr. Christie proceeded elsewhere on other business. A bid for the proposed work was subsequently prepared at Chicago by Mr. Hey-*297worth and Jesse Lowe, another member of the claimant firm, whose knowledge of the facilities and difficulties attending the construction of the work was derived from the results of the investigations made by Christie and Heyworth and a general knowledge he had of the Warrior River.

Claimants submitted a proposal in writing within the time limited by said advertisement, which proposal was accepted. In said proposal claimants stated that it was made in accordance with the advertisement of December 20, 1899, and subject to all the conditions and requirements of the specifications and with a full knowledge of the kind, quantity, and quality of the articles required. Thereafter, to wit, on February 19, 1900, claimants entered into a contract with the United States, acting by said Maj. William T. Rossell, Corps of Enginers, United States Army, for the construction of said Locks and Dams Nos. 4, 5, and 6, Warrior River, Ala., which was approved by the Chief of Engineers, United States Army, on March 10, 1900. A copy of said contract is annexed to the petition, marked “ Exhibit B.”

On April 29,1902, a supplemental contract was made with the United States which was duly approved by the Chief of Engineers and by the Secretary of War. A copy of said supplemental contract is annexed to the petition, marked “ Exhibit C.”

At the beginning of the work under said contract Maj. William T. Rossell, Corps of Engineers, United States Army, was the United States engineer officer in charge named in paragraph 78 of the specifications and so remained until September 9, 1901, when he was succeeded by Capt. Spencer Cosby, who remained until March 14, 1903, when he was succeeded by Capt. William E. Craighill, Corps of Engineers, United States Army, who'remained thereafter until the close of work under the contract, the United States engineer officer in charge. The office of said engineer officer was throughout the work under the contract in the city of Mobile, Ala.

At the beginning of and throughout the work under the contract R. C. McCalla, a civilian engineer employed by the United States, having his office at Tuscaloosa, Ala., was the *298local engineer, called in paragraph 78 of the specifications the resident engineer.

Upon application of claimants in writing under date of February 9, 1901, on account of freshets, floods, and epidemics of fever and malaria among the employees and those whom but for said epidemics might have been employed during the working season of 19.00, the time for the completion of the contract was extended for one year to December 31, 1902, without the deductions provided in paragraph 35 of the specifications.

On March 12,1902, claimants again made written application for a further extension of time to December 31,1903, on account of freshets and floods, which was granted and embodied in said supplemental contract of April 29, 1902, and the prescribed deductions remitted. Locks and Dams Nos. *5*and 6 were completed by claimants and accepted by the United States in December, 1902, and Lock and Dam No. 4 was completed and accepted in like manner in November, 1903.

Other causes which made an extension of the time for the completion of the contract necessary were scarcity and difficulty of procuring labor b,y claimants during the second, third, and fourth years of the contract; delay in notifying the contractors that stone would be required in place of sand and gravel; changes in the quantities of stone required as hereinafter set forth, which changes did not finally increase the quantity above that called for by the contract; increased quantity of excavation at Lock No. 5 as per supplemental contract, and delay in securing title to the land.

Besides the cost of superintendence and inspection during the periods covered by said extensions of the contract, the United States paid for the removal of material that sloughed or was deposited in the pits during said extension, which it would not have had to pay for had the work been completed as originally required by the contract. The amount so paid is not shown.

II. *Delays in permitting commencement of work.*— On March 12, 1900, the engineer officer in charge notified the claimants in writing that their contract had been approved *299by the Chief of Engineers, and called their attention, to the requirements of paragraph 38 of the specifications. Claimants received said letter March 14,1900, at Chicago, Ill., and thereupon proceeded to purchase machinery and plant, and made contracts for cement. Jesse Lowe, a member of claimants’ firm, arrived at Tuscaloosa on March 25, 1900, to commence work, and established headquarters there.

Upon arrival at Tuscaloosa he began assembling the plant and the construction of pile drivers, as well as dredges, for the purpose of getting out sand and gravel, and barges to be used in the transportation of such sand and gravel. Claimants constructed storehouses at the railway stations nearest the sites of the respective locks, started to build houses at the locks to house their men, made all preliminary arrangements, employed superintendents for the locks and the clerical force, bought commissary supplies, and in other respects made all preparations necessary for the vigorous prosecution of the work under the contract, and for practical progress were ready to begin actual work within a month from the date of Lowe’s arrival at Tuscaloosa.

The heights of the banks of the Warrior Biver in their natural state above low water at the three respective sites of the work were: Lock 6, 36 feet, abutment, 41 feet; Lock 5, 30 feet, abutment, 48 feet; Lock 4, 39.1 feet, abutment, 49.1 feet.

When Mr. Lowe arrived at Tuscaloosa the Warrior Eiver was in a state of flood, the gauge at that point registering 37 feet above low water. On April 10 the water had fallen 10 feet on the same gauge, but rose again in nine days to a height of 66 feet, thereafter gradually receding until 21 feet was registered on May 1 and 7 feet on May 10.

On April 24,1900, at which time the river was at a 40-foot stage, claimants applied orally and in writing to the resident engineer to have stakes set for clearing and excavating the sites of the locks and abutments at the three locks, as well as to have the mounds located at said locks, and supplemented this request by lettter of April 30, 1900, to neither of which was any written reply received by claimants. The resident engineer informed claimants orally that the Government did not have the right of way.

*300Thereafter stakes were set and excavation begun as follows:

Lock No. 6, for clearing, May 9; for excavation, May 14; excavation begun May 20, 1900.

■ Lock No. 5, for clearing, May 10; for excavation, May 16; excavation begun, May 22, 1900.

Owing to a defect in the title to the tract on which Lock No. 4 was located, claimants were not permitted to begin work at that lock until June 14,1900, upon which date stakes for clearing were set, and stakes for excavation on July 24, and the work of excavation was begun August 14, 1900.

On June 1, 1900, another flood occurred on the Warrior Eiver, the gauge at Tuscaloosa showing 4 feet above low water on June 1, 38 feet above on June 9, 15 feet on June 15, 58 feet on June 25, and 12 feet above low water July 14. The result of this rise was to flood the lock pits at Locks 5 and 6 from June 6 to July 14, 1900.

Between May 16 and 31, 1900, claimants moved 726 cubic yards at Lock 5, and between June 1 and 10, 220 yards, and excavation thereon was then suspended until July 14. From July 14 to 20, after the river receded, claimants excavated 1,060 cubic yards at Lock 5.

At Lock 6, 1,265 yards of sand were moved in May, and 1,900 yards up to June 20, when all excavation was suspended until July 11, 1900. After the river fell below the 12-foot stage claimants moved from July 11 to 20 1,904 yards and double that quantity during the following 10 days.

On July 3,1900, claimants made written application'to the resident engineer for excavation stakes for the abutments at the three locks. Said resident engineer and the engineer officer in charge refused to authorize claimants to begin the excavation for the abutments during the season of 1900, because in their judgment the abutment walls could not be built sufficiently high during that season to protect the banks from caving by the action of the winter and spring floods. Claimants protested in writing against this decision to the resident engineer. Said stakes were set and the excavation for the abutments at Locks 4 and 6 was authorized May 16, 1901,

*301Owing to lack of title authority to commence work on the abutment of Lock 5 was not granted until October 28. 1901, after several written requests by claimants for such authority to the resident engineer and the engineer officer.

The delays which occurred in the commencement of the work after April 24, 1900, when claimants first asked that stakes be set, were caused partly by the refusal of the Government officers to set the stakes as requested in said letters of April 24 and July 3, 1900, and partly by floods and freshets in the Warrior River. The delay in setting the stakes for clearing and excavation at Lock 4 at the same time stakes were set at the other locks was due to a defect in the title to the land for said lock, for which the claimants were in no way responsible.

The delay in permitting the commencement of the excavation on the abutment at Lock 5 from May 6, 1901, when excavation was permitted on the abutments at Locks 4 and 6, to October 28, 1901, was due solely to the United States not having procured title to the land.

By reason of the delays for which the Government was exclusively responsible claimants suffered damage to the amount of $9,391.57.

III. *Construction of wagon roads.*— The road over which claimants Christie and Heyworth drove to Lock 6 as stated in Finding I was a fair country dirt road. This road and the roads referred to in paragraph 40 of the specifications were not public roads, but plantation roads over private property and no right of way existed over same for the United States or the contractors. The said roads had been previously used by the Government surveying parties in traveling between the lock sites and the railroad stations named in paragraph 40, without objection from the owners. Said resident engineer stated to claimants Christie and Hey-worth that the roads to all three of the locks were open to the public and could be used by the contractors for this work. It does not appear that said officer knew said roads were not public roads.

After claimants entered into the contract they discovered that said wagon roads were unimproved wagon or plantation *302roads and not public roads, and they found it necessary to obtain and did obtain from private owners the right of way over lands from Akron and Powers Stations named in paragraph 40 to the sites of Locks 5 and 6.

The owner of some of the land between Lock 4 and Eutaw Station refused to grant a right of way on any terms and the right of way was obtained from Mays Station on a railroad on the opposite side of the river from Eutaw Station.

The roads to said lock sites were constructed through heavy timber and swamps, many bridges were built over ravines, and the roads graded and corduroyed and repaired generally. Said roads were necessary for the work.

The cost to the contractors for the repair and building of roads and bridges which the contractors used — that is, the plantation roads — necessary to carry on the work was $2,283.80 for the roads, and $2,662.78 'for the bridges, making a total of $4,946.58. How much of this amount was for repairs only does not appear. The amount which claimants had to pay for right of way on account of the refusal of one of the owners to permit the use of his private road was $100. The evidence does not establish the amount paid for the repair and construction of the road they had to buy.

The letting plans exhibited to all bidders showed on which side of the river each lock was located and did not show any public roads leading to the lock sites.

IV. *Erroneous and deceptive borings.*— The borings, the drawings whereof are referred to in paragraph 48 of the specifications, were made by a field party sent out from Tuscaloosa by the United States, and were made for the primary purpose of ascertaining the availability of sites for said locks and dams and to determine what kind of a foundation, whether rock or pile, would be necessary; that is to say, the borings were made to ascertain whether the sites selected for the' locks were underlaid with rock or other suitable strata upon which all structures could be directly built or whether it would fee necessary to drive piles in order to secure suitable and stable foundations. The party was divided into two sections, each in charge of a foreman under the immediate supervision of an engineer employed by the United States, *303acting under the directions of the resident engineer and the Engineer officer in charge. The work occupied said boring party from July 12 to November 8, 1899. The ground was staked out for such borings at distances from 50 to 68 feet apart, about halfway between the' lines where the plans required the outer walls of the structure and the sheet walls to be driven. The borings were made with a water jet forced down through 1-inch pipe, joined together on the outside by a sleeve or coupling, and coming up between the 1-inch pipe and the outer casing of 2-inch pipe, and constantly bringing up samples of the materials penetrated.

■ The record of the different material or strata, as well as the thickness and depth at which it was found in making such boring, was kept in separate books by each foreman under instructions at the beginning of the work from the engineer in local charge to make full and complete notes, giving the minutest detail of everything encountered, which instructions were not modified in any respect throughout the progress of the work. At the end of each day’s work, or soon thereafter, the engineer in local charge calculated from the foremen’s notes the correct elevations of the various strata with reference to Mobile datum, which is the datum upon which all surveys and the whole1 work of improvement of the river, including drawings and plans for this contract, were based, and the figures were copied into two other books from which the drawings named in paragraph 48 were after-wards plotted.

The drill when being driven down into the ground would sometimes meet obstructions which from the particles broken off and floating to the surface would indicate that they might be logs. These obstructions, though in some instances noted in the original notebooks of the' foremen, were not transferred to the drawings and do not appear thereon. When such obstructions were met the apparatus was moved elsewhere until a place was found where the drill would penetrate, and the result was recorded as if taken at the place staked out. The’ boring sheets referred to in paragraph 48 of the specifications contained only the record of completed borings and do not show any record of sunken logs, or of *304cemented sand and gravel, or conglomerate impenetrable by the drill. In the foremen’s notebooks there were 16 entries recorded which relate to borings for foundations under structures, no record of which or the material encountered was copied by the engineer in local charge into the permanent field books from which said boring sheets were plotted. The foremen’s record of said uncompleted borings contains no positive information that a sunken log was struck, and in only three of the borings at each of Locks 5 and 6 is there probable indication that logs may have been encountered.

These notes were omitted from the permanent records in some cases because they were made for the convenience and information of the officer in charge to let him know' what had been done, and because the information had no bearing on the data of the borings themselves; in other cases they were omitted, because they related to the manner and time required to bore through the material, and could not be shown on the boring sheets; again they were omitted, because on another page was an entry of what appeared to be the same notes, showing a complete boring at the same station, which was transferred to the permanent records; other notes indicate that the men were unable to complete the boring on account of the loss of the bit, or on account of some mishap to the boring apparatus, or some foreign substance being encountered.

The existence of any indication of such buried logs at the time the borings were being made was called to the attention of the resident engineer by the engineer in local charge of the boring parties, and when asked if logs were to be noted in the record of borings, the resident engineer said that he did not consider the logs, as the boring sheets then indicated, of enough importance to be noted, and same wore not noted.

When the boring sheets were inspected by Messrs. Christie and Heyworth on their first visit to the engineer’s office at Tuscaloosa they found no record thereon of sunken logs, and although they admitted they had reason to and did expect to encounter some logs, they made no inquiry or independent investigation as to the probable existence of embeded logs or drift in the material to be excavated, nor did *305they inquire or attempt to ascertain by what method said borings had been made or the time expended in making them. Many partially submerged and embedded logs and stumps were in plain sight on the banks and the bars of this river where the locks were located, and the fact was well known that logs were there.

Borings such as these are generally made by the owner of the works to be constructed, and show truly and fully the existence of all material met, including objects embedded in the soil, such as logs or stumps, and the definite location of the boring actually made.

When the work under this contract came to be done claimants found the materials were more difficult and expensive to penetrate and excavate than ordinary sand, gravel, or clay, such as described or named in said drawings. The buried logs, found beneath the surfaace of the earth as aforesaid, were not described or named in the drawings.

The evidence does not establish to the satisfaction of the court that said statement by the resident engineer was other than an honest expression of his opinion as to the necessity for noting of logs in the record, nor that it was made for the purpose of inducing said engineer in local charge, or any other employee of the United States to omit from the records of the borings any logs actually encountered, nor for the purpose of concealing the existence of logs from or of misleading subsequent bidders.

The engineer officer of the United States had no knowledge of the expressed opinion of the resident engineer regarding the noting of anything indicating the presence of logs, nor did said engineer officer or resident engineer have any knowledge that any uncompleted borings had been, taken, or that any borings had been taken at a point other than that indicated on the drawings.

The Warrior Biver is an alluvial stream, the banks of which below Tuscaloosa are largely covered with heavy timber and undergrowth. Above and below the sites selected for these locks and between the cities of Tuscaloosa and Demopolis the river is unusually tortuous and flows in a series of sharp bends. Its fluctuations between low Water *306in summer and high water in winter and early spring range from less than 1 foot to more than 70 feet. In its flood stages the river overflows its banks and spreads out over the adjacent country from 2 to 5 miles. At high water large quantities of drift are carried by the stream, and in some cases large trees.

For upward of 20 years prior to December 20. 1899, the United States had operated snag boats between Tuscaloosa and Demopolis, on this river, for the removal of stumps and sunken logs from the channel, and trees and other material known as “ slip ins ” which had caved in from the banks, full descriptions of which, with tables of numbers and statements of cost, were published annually in the reports of the Chief of Engineers.

The additional expense and value of said excavation, over and above what it would have been if the boring sheets had represented the character of the ground with respect to logs, was $6,150.

*V. Angles of ref ose.*— At the outset of the work, by direction of Col. Rossell, engineer officer, the slopes of all temporary excavation at the lock sites were staked out on an angle of 1 on 1, or 45° from horizontal. This angle was adopted and prescribed by the engineer officer as the result of experience derived from work previously done by him on this river, and because it was the angle in general use on the Mississippi River for the slopes of temporary excavation. It was the expectation of said engineer officer when the slopes were staked out that the excavation could be completed, the foundations put in, and the masonry bank walls of the lock structures erected to such heights before the arrival of the winter floods that the stability of the banks would not be important.

Col. Rossell and Col. Cosby, his successor, construed the terms “ angle of repose,” as used in the specifications, to mean the angle or slope at which the material would stand the ordinary wear and tear of the weather under normal conditions for sufficient time to allow the work to be done for which the excavation was made.

The letting plans did not show the slopes of the excavation. The original cross-section sheets, from which the quan*307titles of excavation had been calculated, showed in pencil the different angles of all slopes substantially at 1 on 1 behind structures for temporary work and a flatter slope of 1 on l-£ to 1 on 2, which was carried out during- the work, for all permanent work, and were on file in the Tuscaloosa office; and although not made part of the letting plans, said sheets were open to examination of bidders prior to submitting proposals, and were, in fact, examined by at least one of the prospective bidders.

Claimants made no attempt to verify or estimate for themselves prior to submitting their bid the approximate quantities of excavation submitted by the Government, nor did they make any inquiry concerning the method by which said approximation had been reached.

During every working season, with few exceptions, at least one rise in the river occurs which affects the stability of the slope of the bank and causes it to slough, and during every year there are liable to be more frequent rises.

The conditions actually encountered during the working-seasons of 1900 and 1901 were abnormal. During each of said seasons the work under the contract was hindered by a series of floods, freshets, and unlooked-for rises of the Warrior River, more numerous and of greater height and longer duration than theretofore disclosed by the official records of the engineer’s office relating to said river.

The angle of 1 on 1 prescribed by the engineer officer was an angle at which the banks would stand for the time necessary to complete the work when not submerged from rises in the river or when in a dry condition.

There was no angle or slope which could have been adopted by which the banks would remain stable when subjected to such rises of the river1 as were liable to happen in times of flood.

To have sloped the banks to a flatter angle would have reduced the sloughing, but the evidence does not show to what extent.

When the river rose the material in the banks became saturated and heavy with water, and as the river receded such material, being deprived of the support afforded by the *308water while up, sloughed or caved off into the lock pits below, where it had to be and was removed by claimants in a wet and slimy condition at a higher cost than if excavated from its natural position in the bank.

The slopes of the excavation were not flattened by the engineer officers because, in their opinion, there was no practical angle at which the banks could have been sloped which would have caused them to remain stable under the abnormal conditions to which they were subjected, or have prevented the banks from sloughing and caving as the floods and rises in the river receded.

In July, 1900, prior to a time when any sloughing had occurred, claimants in a letter to the resident engineer suggested the use of sheathing to protect the slopes. On March 24, 1902, when the work of excavation of the bank walls had been completed, claimants wrote to the engineer officer complaining that the Government had not adopted sheathing for the protection of the slopes, as provided in paragraph 51 of the specifications. This use of sheathing under paragraph 51 of the specifications for the protection of the slopes was not permitted by the engineer officer for the reason that the sheathing provided for in said paragraph was not intended to protect the slopes but to reduce excavation.

Claimants made verbal protests and complaints to the resident engineer in regard to the adoption of flatter slopes. It does not appear that any written protest or objection was made by claimants throughout the progress of the work concerning the angle prescribed for the excavation and no appeal was taken from the decision of the engineer officers respecting same; neither did they request or demand any additional compensation for the removal of the material sloughed or caved in from the banks, except as hereinafter stated.

A portion of the material found in the excavated lock pits after the river subsided consisted of deposits of sediment or silt, which was carried in suspension by the river in large quantities while in flood and deposited wherever the velocity of the current was checked by any cause, as was the case at the lock pits.

The amount of material which sloughed from the banks at the several locks as the result of rises in the river, together *309with, the deposits of sediment or silt carried in suspension by the river while in flood and deposited in the lock pits as aforesaid, all of which was excavated by claimants from the place where it lay in the lock pits, and paid for at contract rates, was found by engineers appointed by stipulation of the parties for that purpose to be 55,978 cubic yards. Of this amount, 45,000 cubic yards was material which sloughed from the banks at said, locks as the result of rises in the river. The reasonable cost of the removal of said 45,000 cubic yards over and above the contract price which was paid to claimants is $1 per cubic yard, or $45,000.

In addition to the foregoing, claimants excavated 879 cubic yards of material at Locks 5 and 6 under which were buried certain timber frames erected and used by them as concrete forms, the reasonable cost of which was $1.50 per cubic yard for 168 yards at Lock 5 and $1.31 per cubic yard for 711 yards at Lock 6, or $1,183.41. The engineer officer refused to allow payment for such additional excavation under paragraph 84 of the specification, against which decision claimants protested. Said excavation was done voluntarily by claimants for the purpose of recovering the forms to be reused by them.

VI. *Increased difficulty in, pile driving and the item of sheet piling.*— In addition to a sandy soil underlaid by thick and heavy beds of gravel, the following material, which indicated in some places easy driving and in others hard driving, was shown on the drawings: Hard sand, very hard sand (white, red,' and blue in color), sand and gravel, hard sand and gravel, very hard sand and gravel, sand and blue clay, closely packed sand and coarse gravel, sandstone, and rock.

Many of the sheet piles could not be driven to the desired penetration on account of buried logs and other obstructions, and in the effort to do this the time of driving said piles was greatly increased.

Other causes which fended to increase the time and difficulty of the pile driving were: (1) Much sickness amongst the pile-driving crews; (2) during the first season claimants drove both classes of piles through heavy beds of gravel without the use of a water jet; (3) afterwards when jets were used there were times when the pressure of the jets was *310not strong enough to properly carry on the work; (4) the dimensions and materials of the sheet piles were such that they could not be given as long and as hard a blow as the foundation piles, and a number of shorter blows were found to be necessary; and (5) the most serious delay and difficulty was caused by the nature of the material found in the abutment of Lock 5, extending over two-thirds of the area of the abutment and out for upward of 50 feet under the dam, which material was classified on the boring sheet as hard clay and shown to be underlaid by hard white sand, very hard white sand, soft sandstone, white and blue clay, and clay. It was found impossible to penetrate this material, and it was necessary to build that part of the abutment structure directly on said clay.

It appears that none of the pile-driving force of the contractors had ever before had any experience in driving continuous lines of water-tight sheet piles.

The pile driving was in charge of competent and experienced United States engineers, and at all times during the construction there were at least two competent and experienced junior engineers or inspectors qualified for local charge of the work, and the inspection of the pile driving appears to have been fair and in accordance with the specifications. Said engineers and inspectors were assisted at each lock by, 3 or 4 inspectors or recorders with practical experience who had been selected through civil-service rules or were student engineers or graduates of engineering schools. Inexperienced recorders were sometimes used to assist in the work, but were not placed in responsible positions until they had acquired some experience, and then only under the close supervision and direction of competent superiors.

Claimants protested verbally, but made no written protest that the requirements of the Government inspectors were unreasonable or that they exceeded the specifications in any particular.

Nor does it appear that the engineer officer was ever called upon or refused to modify the requirements of the inspectors in charge of the pile driving. It is shown that said engineer officer witnessed the driving of pile which was being driven *311too bard and was badly bruised and split, and that be immediately gave orders to tbe inspectors not to allow such bard driving at any of tbe locks. This was done as a matter of precaution to tbe work.

The contractors were notified from time to time that if they were not satisfied with tbe manner in which the work was being carried on or with tbe decisions of the inspectors they should immediately bring the matter to tbe attention of tbe engineer officer in writing and that their complaints would receive prompt attention. Claimants did not comply with this request, and on several occasions the engineer officer remonstrated with them for not doing so when they referred to some old matter of complaint which had not before been brought to his attention.

In making the closures in the dam at Lock 4 in the fall of 1902 the current scoured out the bed of the river to a depth of 20 feet. The penetration of the sheet piles at that point was 22 feet in what appeared to be tough clay. The head of water when the closure was made was only 2 feet and after the completion of the dam the material below scoured out in places to a depth of 27 feet, considerably below the bottom of the sheet piles in the adjacent structures, to save which considerable rock and stone was dumped along the face of the lock wall and the abutment face below the dam. The same thing occurred under an 18-inch head of water when the closing piles for the upper row in the dam at Lock 6 were being driven and the round piles supporting the pile driver gave away, dropping the driver to the bottom of the river.

The total cost of driving the foundation piles was $18,-209.65 and of driving the sheet piles $26,911.23. How much of this cost was due to the presence of buried logs encountered in making the original borings but not shown on the permanent records is not definitely shown by the evidence.

VII. *Piles hilled, too long.*— On June 27, 1900, before the excavation had been completed and before the contractors were prepared to drive test piles, as required by paragraph 52 of the specifications, claimants were authorized to deliver certain foundation piles of specified lengths, to wit, 25 feet *312ai ; ock 4, 30 feet at Lock 5, and 34 feet at Lock 6, and on January 26, 1901, a complete bill of piles of shorter lengths was furnished the claimants. The lengths shown in said complete bill were necessary for the work and no written protest or complaint as to lengths was thereafter made by the contractors, nor were the engineer officers ever requested to alter the lengths therein specified.

Long piles were used for the abutments because they had to be driven from the top of the abutment pits, which were too small to admit the pile drivers, instead of using a follower, and the piles delivered before the test piles were driven were used for that purpose.

The material found at other places than where the test piles were driven was much harder to penetrate. Under paragraph 76 of the specifications the pile heads of the foundation piles cut off above' grade were paid for at one-third of the contract price. An average of about 30 per cent of the round foundation piles had to be cut off.

The cost to claimants of all the foundation piles for the work was $14,358.17. Two-thirds of 30 per cent of this amount would be $2,871.63.

VIII. *Cofferdams.*— At the time of the visit of George B. Christie and James O. Hey worth, of claimants’ firm, to Tuscaloosa, as set forth in finding i, certain hydrographs, showing the gauge readings of the Warrior River, taken at Tuscaloosa, were shown to them by the resident engineer. The slope of the river in the vicinity of Tuscaloosa is such that floods pass off rapidly at that place, while on the flatter reaches of the river, such as at the locations of Locks 4, 5, and 6, during the heavy winter and spring floods the duration of the floods is several days longer than at Tuscaloosa. During the working months, from May to December, the duration of the floods was substantially the same at both places.

For about three years prior to the entering into this contract the Engineer Department of the Army maintained gauges at three points in close proximity to the side of each of the locks, to wit, Grays Landing, Alabama Great Southern Railway bridge, and Millwood, distant 43, 73, and 101 miles, *313respectively, below Tuscaloosa, on the Warrior Kiyer, and daily reports of the readings of the gauge at these points had been made to the United States engineer’s office at Tuscaloosa by persons employed by the Government for that purpose. Said readings had not been platted on a hydro-graph, but had been copied by the resident engineer into two small memorandum books which were kept in the office at Tuscaloosa, and were there at the time of said visit of Christie and Heyworth.

These readings were not shown to either of said claimants at the time of said visit, and they made no attempt, by inquiry or otherwise, except by inspecting the hydrograph of the Tuscaloosa gauge, to investigate or ascertain for themselves the fluctuations of the river below Tuscaloosa in closer proximity to the sites of the proposed work.

The readings of said three lower gauges covering the period prior to the advertisement of proposals for this work followed closely the readings of the Tuscaloosa gauge, except that the fluctuations of the river at Tuscaloosa during the season of high water is from 10 to 25 per cent higher, than at either of the lower gauges, and during the working season the duration of all rises, as shown by the Tuscaloosa and lower gauges, is substantially the same. It does not appear that said readings at the three lower gauges, if examined by claimants at the time' of their said visit, would have influenced their bid.

In order that the work might be continued during the ydnter the engineer officer, through the resident engineer, on November 17,1900, directed claimants to build cofferdams at Locks 4, 5, and 6, in accordance with plans furnished them, and informed claimants that they would be paid for same at their contract price for sheet piles, and $3 per thousand feet board measure for such parts of these cofferdams as they might be required to remove when no longer needed. This order was accepted by claimants in writing November 18,1900, and they thereupon ordered the materials for same. Three days after the receipt of said order to build the cofferdams and before the work of construction thereunder had commenced the Warrior River rose to and re*314mained at sucli a height that it was not possible to build the cofferdams during that winter.

At the beginning of the next working season said engineer officer notified claimants by letter, dated May 4,1901, that he was in doubt as to his authority to pay for the cofferdams ordered November 17, 1900, as the emergency for which they were intended to provide, namely, the prosecution of construction during the winter, had passed by. Claimants protested in wilting against this course of the engineer officer, who thereupon referred the whole question to the Chief of Engineers for decision, and he referred same to the Secretary of War. The Secretary of War referred the matter to the Judge Advocate General of the Army for an opinion, and that officer decided that the Secretary of War had no legal authority to modify the contract so as to provide that the contractors should be paid for this work, which idew was approved by the Secretary of War, and the claimants were notified accordingly.

Claimants after examining said hydrographs showing the gauge readings at Tuscaloosa allowed $2,000 for cofferdams for each of the three locks, or in all $6,000, in figuring on their bid.

The cofferdams were afterivards constructed by the claimants to the heights necessary to protect the work against floods. The total cost of the cofferdams for the locks was $11,456.91, of which amount the portion necessary to protect the work against a rise of more than 8 feet was $8,520.24, no part of which has been paid by the United States, and if claimants are entitled to recover therefor on quantum meruit or otherwise, there would be due $8,520.24.

IX. *Excavation through cofferdams.*— The cofferdams for the lock work referred to in finding vm were built across the area where the dam was to be built. They had to be removed before the dams could be built, and in that respect they vrould haA^e been an interference with navigation had they not been removed. The earth used in said cofferdams had been paid for as excavation at the full contract price. Ip the construction of the dams said earth had to be again excavated and removed, payment for which was refused by *315the engineer officer, on the ground that the decision in regard to cofferdams, referred to in finding viii, covered this item.

The amount of said excavation and the value thereof at contract piices is as follows: Lock 4, 533 cubic yards at 28 cents per cubic yard, $149.24; Lock 5, 1,091 cubic yards at 50 cents per cubic yard, $545.50; Lock 6, 705 cubic yards at 31 cents per cubic yard, $218.55; a total of nine hundred and thirteen dollars and twenty-nine cents ($913.29).

X. *8'tone filing for dams and riprap for Toanhs.*— The drawings of the work referred to in the specifications, paragraphs 40, 46, 49, and 50, which were prepared under the direction of the engineer officer and exhibited to prospective bidders at the Tuscaloosa office, contained the words on the cross-section of each dam “ filled with sand and gravel,” and showed fascine mattresses as described and shown in paragraphs 74, 75, and 77 of the specifications.

Claimants in making up their proposal did not consider the possibility of the substitution of stone by the engineer officer as an alternative material, either for filling the dams or for protecting the bank slopes, as provided by paragraphs 46, 50, and 75 of the specifications, and their bid to furnish the stone at the figures named in the contract was made without expectation upon their part that stone would be used in the work.

Soon after the arrival of Mr. Jesse Lowe at Tuscaloosa and his commencement of the work under the contract the officers of the United States in charge of the work delivered to him, as the representative of the contractors, as the working plans upon which they were to proceed with the construction, a copy of the same drawings which were shown to his associates when they were preparing to bid on the work. Claimants thereupon prepared a plant for raising gravel from the bed of the river, where it could be obtained in immediate proximity to the works, said plant consisting of a suction dredge complete and barges on which to transport the sand and gravel from the points at which it was obtained to the site of the dam, and arranged to obtain brush from the country in the vicinity of the works.

In a written communication from the resident engineer, dated October 22, 1900, claimants were authorized to deliver *316a total of 7,290 cubic yards of riprap and 11,590 cubic yards of stone filling for the three locks in quantities therein specified, which was the first official written notice received by claimants after the contract was signed, that stone would be used for dam filling and for the protection of the banks. They had made no preparation up to that time for the use of stone filling or riprap.

The use of stone filling necessitated a change in the form of the dams, which change was agreed to by claimants.

December 20, 1900, claimants replied by letter, addressed to the resident engineer, calling attention to the fact that the total quantities of stone thus called for were in excess of the quantity originally scheduled for the work, which was 14,900 cubic yards, and stated that they did not find it practical to get that amount of stone to the work during one season of navigation, the high-water stage. They also directed attention to the fact that the quantities of stone therein specified contained an item of “ riprap back of lock,” 150 cubic yards back of each lock, which was not in the original plans, and stated:

“ We do not, in view of the experience of the past season, where we have contended against epidemics and conditions other than those your specifications represented to exist, take kindly to the idea of having changes from original plans made that will prolong the work. We think that, under the circumstances, with a view of possibly completing the work the coming year, you will be justified in making a decrease of the stone quantities, returning in whole or in part to the original materials, and we respectfully request a reconsideration of the matter.”

After further efforts on the part of claimants to have the quantity of stone reduced, on December 31, 1900, the engineer officer decided that 12,000 cubic yards was the minimum amount of stone that could be accepted under the contract; that it was to be understood that the contractors should use all diligence to deliver a larger quantity at the locks, and that if they did not succeed in finishing the locks the following year he would then expect them to bring down the full amount needed during the high water of 1901-2.

Claimants thereupon strengthened their barges for hauling stone, and brought a steamer called the Daisy from *317New Orleans for the work, and began towing stone from a quarry situated above Tuscaloosa. On February 3, 1901, they had delivered 923 cubic yards at Lock 8. On said date the Daisy and her tow were swept over Dam No. 2 in the Black Warrior River and wrecked.

Claimants found it impossible to secure another steamer, and it was too late to build one that season, and all further attempts to deliver stone were thereupon suspended.

Claimants, on January 23, 1902, resumed bringing stone down the river and continued to bring it down until the close of high water, about May 1, 1902, at which time they had brought down from their quarry above Tuscaloosa all the stone required for the dam and riprap at Lock 6 and all but 900 cubic yards required at Lock 5. No stone had been brought down for Lock 4 up to this time.

Revised plans for the dams were prepared by direction of the engineer officer and submitted to claimants January 30, 1902. Claimants informed said engineer officer that in their opinion the proposed changes of plans for the dams and dam filling could not be made without an agreement approved by the Secretary of War and asked additional prices for the rock filling and the dam timber required by said revised plans.

Subsequently, on February 29, 1902, after consideration of all the questions involved, the engineer officer modified the requirements for the substitution of stone in whole for gravel filling in the dams and submitted an outline of the proposed changes as modified in a letter to claimants of that date. Claimants notified said officer that the changes indicated were acceptable to them, and on April 1, 1902, they were furnished revised plans for the dams and bank protection, which they also informed said officer were satisfactory to them. Thereafter the supplemental agreement of April 29, 1902, referred to in Finding I, was executed.

The plant prepared by claimants at the beginning of the work for procuring sand and gravel would have been necessary in any event to supply materials for making the concrete of which all structures were built whether the contractors had been specifically informed when the contract *318was signed or not that stone would be required in accordance with their proposal and agreement.

At no time throughout the progress of the work did the claimants protest in writing against or appeal from the decision of the engineer officer authorizing the use of stone for filling the dams or protecting the banks.

Owing to the lock gates not having been completed by the Government before the end of the working season of 1902, claimants were compelled to abandon their quarry at Tuscaloosa and to obtain the balance of the stone for Lock 5 and all the stone for Lock 4 at another quarry near Birmingham, Ala., at an increased expense. The stone for Lock 4 had to be brought by rail to the crossing of the Alabama Great Southern Eailway with the Warrior Eiver, placed on barges, and towed from that point down the river to the site of Lock 4, and the stone for Lock 5 was hauled by rail to Akron, and thence through the swamps to Lock 5.

The total quantity of stone placed by claimants at the three locks was: For dam filling, 8,107- cubic yards, and for riprap, 6,856.99 cubic yards, aggregating 14,963.99 cubic yards.

The actual cost to claimants of furnishing all the stone filling for the dams as aforesaid amounted to $17,856.53. They received from the United States for such filling $8,101.98, making a loss on this account of $9,754.55. The gravel filling would have been put in by them without loss.

The riprap so furnished cost the claimants $23,324.04, and they received from the United States for same $8,829.59, making a loss of $14,494.45. By the use of brush fascine mattresses instead of stone riprap claimants would have made a profit of $1,645.68.

*Mr. George A. King*for the claimants. *Messrs. George A. de William B.*King, *Mr. Archibald*King, *Mr. Duame E. Fox,*and *Mr. Frank Boughton Fox*were on the brief:

The Government desired these three locks and dams for the improvement of navigation in the Warrior Eiver. The claimants, a firm of engineering contractors of the highest professional standing and ample financial ability, were induced by the representations of conditions made by the let*319ting plans to make a proposal and. enter into contract for the work. These representations of the plans are now shown to be not only erroneous but deceptive. In one of the most important respects, that of the borings, they were intentionally made so by the officers of the United States who prepared them to be shown to those who were contemplating bidding on the work. Obstructions met in boring by the engineer and workmen employed by the United States for that purpose were designedly omitted from the boring sheets and was concealed from intending bidders.

The deception was even continued after the case came into this court. The “Answer to petition ” repeats under paragraph 4 the false statements contained in the boring-sheets. Nearly every sentence of that paragraph contains an untruth.

The claimants were also led to believe, and had a right to believe, from the specifications that the slopes adopted would be such as to enable the earth to stand when excavated. In the language of the specifications the slopes were to “ depend upon the ascertained angles of repose.” Not the slightest regard was paid to this provision of the specifications from the start. The contractors were compelled to slope the banks at an angle at which they did not and could not remain in repose. The material which sloughed from them had to be excavated from the lock pits in a manner many times more expensive than if it had been removed, as it should under the specifications have been removed, from its natural situation in the banks.

The hydrographs of the river showing the stages at which work could naturally be expected to be done were nearly as deceptive as the boring sheets. Coupled with the representations contained in the specifications, they displayed conditions so favorable as to warrant the claimants in supposing that the work could be done either entirely without the use of cofferdams, or with only the slightest protection against trifling rises.

The claimants had the right also to expect reasonable and intelligent inspection of their work. Instead, their pile driving was supervised by inexperienced and incompetent per*320sons, and in such an unreasonable and vexatious manner as greatly to enhance the expense of pile driving and delay the completion of the entire Avork.

Claimants agreed to complete the work in two Avorking seasons, and brought a large force of men and ample plant and materials on the ground, expecting, as they had a right to expect and as was expressly required by the specifications, to begin the work promptly and prosecute it simultaneously so as to secure completion Avithin the required time.' Instead of ready and hearty cooperation on the part of the officers of the United States there was delay from the start in allowing them to begin even on the lock sites. And there was a Avhole year of Avillful and vexatious refusal to allow them to work at all on the abutment sites. The contract time was nearly over before they were allowed to begin on the abutment site of one of the locks.

They were led to believe not only from the letting plans, but from the instructions and Avorking plans given them at the outset of the Avork that sand and gravel Avould be used for the filling of the dams and brush mattresses for the covering of the banks. They had nearly finished the first working season Avhen the GoArernment made a belated attempt to exercise the option which it claimed under the specifications of substituting stone as filling for the dams and riprap as a protection to the banks. This was too late upon any reasonable theory of an election on the part of one party to a contract. That election had long before been exercised in favor of the use of the original materials specified in the contract. So damaging Avere these acts of the officers of the United States that the claimants, instead of the profit which they rightfully expected to make, now appear, upon a most elaborate analysis of their books and accounts, to have lost in actual cash (not counting services of the firm or interest on capital invested) the enormous sum of one hundred fifteen thousand two hundred and forty-six dollars and forty-seven cents ($115,246.41) in carrying out a contract the payments on which by the United States amount to an aggregate or unit prices of four hundred sixty-nine thousand one hundred and forty-four dollars and thirty-seven cents ($469,144.31).

*321*Mr. F. De O. Faust*(with whom- was *Mr. Assistant Attorney General Joh/n Q.*Thompson) for the defendants.

Howry, J.,

delivered the opinion of the court:

Plaintiffs are contractors residing and doing business in Chicago, but carrying on extensive contracting work throughout the country.

For the consideration of $440,000 they, on March 10, 1900, entered into a contract in writing with the United States for continuing the improvement of the Warrior Eiver, in the State of Alabama, for the purpose of securing a navigable, depth of 6 feet of water from Mobile to Birmingham. The improvements called for by this contract were in addition to $220,000 theretofore appropriated and expended for the same purpose.

Advertisements for sealed proposals 'for building Locks and Dams Nos. 4, 5, and 6 on this river were published stating the requirements of the Government in the specifications. Plaintiffs made a proposal in writing on the specifications which described that the dam should be built of timber cribwork, tightly sheathed, and filled with gravel *or stone,*and to rest on pile foundations. The work was to conform generally to drawings exhibited and to such others in explanation of details or showing modifications of plans as might be furnished from time to time during construction. (Par. 40, Spec.)

The specifications provided that maps of the localities might be seen at the office of the United States engineer at Tuscaloosa, Ala., until January 20, 1900. Bidders were notified that they were expected to visit the premises and to make their own estimates of the facilities and difficulties attending the execution of the work, including the uncertainty of weather and other contingencies. (Par. 3, Spec.)

By paragraph 38 it was provided that the quantities of material called for and necessary for the work were approximate only, and that no claim should be made against the United States on account of any excess or deficiency, absolute or relative. Bidders were told that they were expected to examine the drawings and invited to make the estimates *322of quantities for themselves, though they were informed .that it was not expected that the actual quantities would vary more than 10 per cent from the estimates.

The work was to begin 30 days from date of notification of 'approval of the contract and completed not later than December 31, 1901.

Two members of the contracting firm visited Tuscaloosa to secure information upon which to prepare their bid. They drove to the site of one of the locks and dams and, being satisfied, declined to visit the site of the other two locks and returned to Tuscaloosa, which was on the river. and not greatly distant from the site of the. locks.

The contract provided that—

> “The engineer officer shall have the power to prescribe the order and manner of executing the work in all its parts; of inspecting and rejecting materials, work, and workmanship which in his judgment do not conform to the drawings that may be furnished from time to time, or to these specifications. Any material, work, or workmanship so rejected by him shall be kept out of or removed from the finished work, and no estimate or payment shall be made until such material, work, or workmanship be so removed. * * * In all cases of dispute the decision of the engineer officer in charge will be accepted as final and without appeal.” (Par. 18.)

The right was reserved to make minor changes in the specifications and letting plans, but no modifications were to- be made the basis of claims for extras unless so provided by written supplementary agreement.

The specifications were stated to be intended to be “ full, clear, and complete ”; any doubt as to their meaning or obscurity in the wording was to be explained by the engineer officer, who reserved the right to correct any errors or omissions as such became apparent.

. Plaintiff encountered difficulties. Warrior River is an alluvial stream, and its fluctuations between low water in summer and high water in winter and early spring ranges from less than 1 foot to more than 70 feet. In flood stages the river overflows its banks and spreads out over the adjacent. country from 2 to 5 miles. On account of freshets, floods, and epidemics of fever and malaria during the work*323ing season of the year that the contract was let, and the scarcity and difficulty of procuring labor during the second, third, and fourth years of the contract, the time for the completion of the work was extended on application of the contractors on March 18, 1901, to December 31, 1902, without the deductions provided for by the specifications.

Again, on March 12,1902, there was a further extension of time upon written application from the contractors to December 31, 1903. The causes were embodied in a supplemental contract dated April 29, 1902, and the prescribed deductions for expected failure to complete were remitted.

Locks and Dams Nos. 5 and 6 were completed by plaintiffs and accepted by the United States in December, 1902, and Lock and Dam No. 4 was completed and accepted in like manner in November, 1903. Embraced in the settlement for all work done by the contractors were sums amounting to $469,144.37, which included extras, in addition to the contract price originally named.

But plaintiffs allege that there were other causes which made an extension of the time for the completion of the contract necessary, such as delay in notifying the contractors that stone would be required in place of sand and gravel; changes in the quantities of stone required; increased quantity of excavation at one of the locks under the supplemental contract; and delay in securing title to the land where an abutment was to be erected at one of the locks. The breaches alleged to have arisen may be summarized, viz: (1) From delays and causes just stated; (2) from untrue and misleading statements of fact contained in the specifications charged to have been known by certain subordinate officers; (3) from unauthorized changes in the plans and specifications; and (4) from the appointment of incompetent inspectors whose supervision of the work was alleged to have been unintelligent and unreasonable.

The record is voluminous with pleading, testimony and exhibit, statement and argument. Supplemental to three large volumes of printed matter there are photographs and maps, account books and tables relating to excavations and embankments, and much matter in manuscript. The court *324discovers important testimony not in the printed record and does not understand why, under the order to print, any testimony of importance should have been omitted from the printed volumes. But after careful investigation the court has made the findings which must determine whether they support the conclusions.

The second finding disposes of the contentions respecting delays in permitting commencement of the work. By the finding it is shown that between the conditions caused by floods in the river and the delays caused by the Government the delay did not rest wholly upon one side to the controversy. Thus, when one of the contractors arrived to begin the work the river was in such a state of flood that the gauge registered 37 feet above low water at Tuscaloosa; on April 10 the water had fallen 10 feet, but rose again in 9 days to a height of 66 feet, gradually receding until 21 feet was registered the 1st of May. On April 24, 1900, the river was at a 40-foot stage, and, though the contractors wanted the stakes set for clearing and excavating the sites of the locks and abutments, it is manifest that the Government could not immediately comply.

But there was a defect in the title to the tract on which one of the locks was located. Plaintiffs were not permitted to begin work there until June 14, 1900, at which time the stakes for clearing were set and stakes for excavation were so fixed as to permit excavation work to begin August 14, 1900. But after the subsidence of the waters on May 10, 1900, to 7 feet, another flood occurred. . On June 1, 1900, the gauge at Tuscaloosa showed 4 feet above low water, but 38 feet above low water on June 9, while on June 15 the gauge read 15 feet. On June 25 the gauge disclosed 58 feet above low water. The result of this rise was to flood two of the lock pits from June 6 to July 14,1900, about which time the exhibit of the gauge showed 12 feet above low water. July 3, 1900, both resident engineer and the chief engineer officer refused on the application of the plaintiffs to authorize excavation work for the abutments during the season of 1900, assigning as a reason that the abutment walls could not be built sufficiently high during that season to protect the banks from *325caving by the action of the winter and spring floods. Though plaintiffs protested against this decision the stakes were not set and excavation work for the abutments was not authorized until May 16, 1901, at two of the locks.

There was no such mistake in this decision of the engineer officers as to imply bad faith. By the contract the parties had agreed that the decision of the engineer officer in prescribing the order and manner of executing the work including excavations should be final.

But there was a lack of title where Lock 5 was situate so that authority to commence work on the abutment provided to be placed there was not granted until October 28, 1901, after several written requests on the part of plaintiffs to be permitted to begin work there had been refused.

Under the most liberal view the court has been able to take of the dispute between the parties respecting the beginning of the work we have not been able to find that the damage to plaintiff exceeded the sum of $9,891.57.

The third finding raises a question as to the right of plaintiffs to recover from the United States $4,946.58 for moneys expended for the repair and construction of roads and bridges.

On the first hearing judgment was rendered for the above amount with the announcement from the bench by this writer that he doubted the liability of the Government but would consider the item on the rehearing.

The roads referred to in paragraph 40 of the specifications were not public roads but plantation wagon roads over private property. But these roads had been previously used by surveying parties without objection from the owners. After plaintiffs had entered into the contract they found it necessary to purchase the right of way over the lands from the stations to the sites of the locks. One of .the owners of some of the land, where there was refusal to grant a right of way on any terms, refused the use of his road, thereby creating the necessity on the part of plaintiffs to obtain the right of way from another station on the railroad so as to give access to one of the locks. All the roads to the lock sites were constructed through heavy timber and swamps.

*326The allegation in the petition “ that no wagon roads whatever existed ” can not be accepted as true.

The specifications described the sites as distant a certain number of “miles by wagon road.” Then there was a requirement that the contractors were to haul certain articles from railroad stations to the sites. (Pars. 40 and 41.)

Government officers knew nothing relating to the matter of private ownership of these plantation roads except as it is alleged and proven that the resident engineer stated to two of the plaintiffs that the roads to all three of the locks were open to the public and could be used by contractors. Defendants object to this statement of the resident engineer as incompetent because of the death of this engineer before he could be called as a witness and the interest of the parties in undertaking to testify to what this deceased agent of the Government had in his lifetime said to them about the roads.

By the law of Alabama (where this cause of action arose) the testimony of a party in interest is not admissible as to alleged statements of a deceased person. Defendants submit that this is peculiarly so while the deceased was acting as the agent of the United States (sec. 4007, Ala. Code). But we think the testimony is admissible for what it is worth, because by the act of March 3, 1887, 24 Stat. L., 505, commonly known as the Tucker Act, all claimants in this court were made competent witnesses in their own behalf without qualification. In *Holds*v. McLean,, 177 U. S., 579, it was held that where Congress had made no exception in qualifying parties as witnesses the court could make none.

While the letting plans exhibited to these contractors set forth clearly on which side of the river each lock was located' and did not show any public roads leading to the lock sites, the court is of opinion that in view of all the testimony, including that statment in the specifications describing the sites as distant a certain number of miles by “ wagon road,” that the contractors should be reimbursed for the amount they had to pay to private owners for the use of these roads. The amount which plaintiffs had to pay for obtaining a road on account of the refusal of one of the owners to permit the use of the owner’s private road was $100.

*327. But manifestly the Government can not be made to bear any part of the expense incurred by plaintiffs incident to the repair of these wagon roads (or, for that matter, any roads, afterwards used), except as to that road which they had to obtain elsewhere after the refusal of one of the owners of a plantation road to permit the use of the particular. road so owned by him. The evidence does not establish that for this road any sum ivas paid. One of the roads leading down to the lock sites was traveled over by two of these contractors while preparing their bid on the work and the resident engineer offered to take them over the roads to the other locks. They had knowledge of the condition of these roads and the means of access to those points where they were to do the work. Independent of that they' were told by the advertisement that they were expected to visit the premises and to make their own estimates of the facilities and difficulties attending the execution of the work, including the uncertainty of weather “ and other contingencies.”

Around the fourth finding', which involves an alleged expense for additional excavation, there is controversy. Plaintiffs say that the boring sheets shown to bidders contained no record of any impenetrable material and that when the boring sheets came to be inspected by the contractors in preparation for bidding for the work they found no record of sunken logs or of cemented sand'and gravel or conglomerate impenetrable by the drill such as would have altered materially the prospective difficulty and cost of doing the work.

Paragraph 48 of the specifications provided that—

> *“*The material to be excavated, as far as known, is shown by borings, drawings of which may be seen at this office, but ■ bidders must inform and satisfy themselves as to the nature of the material.”

The borings and drawings referred to in the specifications were made by a field party the year before the contract was let for the distinct and primary purpose of ascertaining the availability of sites for the locks and dams proposed to be constructed and to determine what kind of a foundation would be necessary. These borings were made with reference to whether the sites to be selected were underlaid with' *328rock or other suitable strata upon which the structures could be built or whether it would be necessary to drive piles in order to secure solid foundations. The borings were made with a water jet forced down through 1-inch pipe so joined together as to constantly bring up samples of the materials penetrated.

The record of the different material and the thickness and depth at which this material was found was kept in different books by each foreman with instructions to make full and complete notes. The engineer in local charge calculated very soon after each day’s work from the notes so taken the correct elevations of the various strata with reference to datum upon which all surveys of the whole work of improvement, including drawings and plans for the contract, were based, End the figures were copied into two other books from which the drawings named in paragraph 48 were afterwards plotted. Sometimes obstructions would be met when the drill was driven down into the ground. These obstructions, though in some instances noted in the original notebooks of the foremen, were not transferred to the drawings and do not. appear thereon. As obstructions were met the apparatus was moved elsewhere until a place was found where the drill would penetrate. The boring sheets referred to in the specification contained only the record of completed borings and did not show any record of sunken logs or of cemented sand and gravel or conglomerate impenetrable by the drill. There were 16 entries recorded in the notebooks relating to borings for foundations under structures. The borings were never completed. The foremen’s records contained no positive infomation that a sunken log was struck and at only three of the borings at two of the locks is there probable indication that logs may have been encountered.

As the entire purpose was to determine whether it would be necessary to drive piles to secure stable foundations, the resident engineer did not consider the indication of logs of enough importance to be noted and the same were not noted. The contract specifications provided for piles to be driven.

Neither the engineer officer nor resident engineer had any knowledge that any uncompleted borings had been taken *329or that any borings bad been taken at a point other than that indicated on the drawings. The engineer officer who, on the part of the United States, made the contract with the plaintiffs had no knowledge of the opinion of the resident engineer regarding the' unimportance of noting anything indicating the presence of logs.

The finding also shows that for 20 years prior to the making of the contract the Government had operated snag boats on this river for the removal of stumps and sunken logs, trees, and other material from the channel and that the numbers of logs, trees, and stumps were noted and statements of cost of this work were published annually by authority of law.

If on the finding there is liability on the part of the defendants to the contractors the judgment should be $6,150.

In considering liability on this item we must eliminate' fraud such as would form the basis of an action for deceit. In *Farrar*v. *Churchill,*135 U. S., 165, it was said that where a purchaser investigates for himself and nothing is done to prevent his investigation from being as full as he chooses he can not say that he relied on the vendor’s representations.

Expressions of opinion, judgment, or belief, if honestly entertained, are not representations of fact, and although subsequently shown to be erroneous or even false, do not amount to fraud and can not be treated as such either for the purpose of maintaining actions for deceit or actions growing out of contracts at law or in equity.

The primary object of the borings not being to explore for the benefit of future unknown bidders, and the exact character of the material thereafter to be excavated from the bed of the river having been made solely for the purpose of enabling the engineer officers to determine the character of foundations advisable to adopt, the court is unable to award judgment for plaintiffs for any amount on this item for more particular reasons now to be stated.

There were 16 entries in the foremen’s notes relating to borings for foundations not copied in the permanent field books. There is not one entry which contains positive in*330formation that a single log was struck in making the borings. Of the whole number of the foremen’s uncopied entries only three afford probable indication that logs might be encountered.

Embedded logs in a river like that which the contractors undertook to improve are of frequent occurrence. That they should be looked for even though the boring sheets might fail to disclose them goes without saying. Especially is this true in view of the statement that bidders were required to “inform and satisfy themselves as to the nature of the material” in the bed of the river. Official reports duly published *by*authority of law disclosed that preceding June 30, 1897, there had been removed from the bed of the stream below Tuscaloosa over 20,000 snags and stumps; 500 sunken logs; logs on banks cut up, 1,339; trees trimmed, deadened, felled, and cut up, 18,168; and “slip-ins ” removed, 908.

Paragraph 47 of the specifications provided that the contractors should remove all logs, stumps, and roots under water dr embedded in the bank. Paragraph 48 provided for the excavation of all dredged or excavated materials of whatever nature, and there appears a provision that the material to be excavated, *as far as*hnown, was shown by borings, drawings of *which might he seen at the office of the engineer.*The evidence does not establish, to the satisfaction of the court, that the statement made by the resident engineer to the local engineer in charge with respect to the unimportance of noting the presence of the few logs discovered the year preceding was other than an honest expression of the resident engineer’s opinion as to the necessity for it, nor that said statement was made for the purpose of inducing the engineer in local charge or any other employee of the Government to omit from the record of the borings the notes indicating the presence of logs at the two locks, nor for the purpose of concealing the existence of hard substances beneath the surface of the river, or in any way misleading subsequent bidders. This part of the fourth finding is objected to by the contractors for the apparent purpose of having the court draw a conclusion of fraud with an intent to *331deceive future bidders, or for the appellate court itself (on the single statement) to reach a conclusion that there was an intention to deceive and that such statement actually did deceive.

Considering the circumstances and time of this statement of the resident engineer, the court is of opinion that the Government is entitled to the finding as made, just as much as the contractors themselves would be entitled to a finding of mistake so great as to imply bad faith on the isolated testimony of any other agent of the Government where bad faith could more clearly be implied.

But we must look to the circumstances and all the evidence to determine whether this direction as to the unimportance of noting anything to indicate the presence of logs was the result of “ fraud or of such gross mistake as would imply a fraud ” under the rule declared in *Martinsburg*v. March, 114 U. S., 549; *United States*v. Mueller, 133 ib., 153; *Ripley's*case, 223 ib., 701.

Bidding on the work at the time the statement was made was not under consideration. The boring parties had in view when they made their soundings nothing but the ascertainment of suitable foundations for determining whether the locks could be built at that point.

This part of the finding arises out of the evidence from the whole record, and it is doubtful in the minds of some members of the court whether, as to the single fact, it is necessary to state this opinion of the subordinate agent of the Government under the terms set forth in the case of *Southern Development Co.*v. Silva, 125 U. S., 247. It can not be said that this opinion was made in order to have it acted on by future bidders. Nor can if be said that it was so acted upon by these contractors to their damage and in ignorance of its falsity. As against the matter of any design to mislead bidders, all of them had access to everything in the office of the resident engineer, including the notes relating to the borings pertaining to the character of the material in the river. There is no pretense whatsoever that any information which the records of the office of the resident engineer contained was withheld from anybody. The contract contained an *332express stipulation warning these contractors not to rely upon the boring sheets.

The circumstances show three things: (1) that the resident engineer had no intention to deceive anybody; (2) even if he had, the specifications put the contractors upon their guard; and (3) in view of their admission the contractors were not deceived at all, inasmuch as they say they had expected to find obstacles and obstructions beneath the surface of the river not noted in the record.

In plain view were snags, stumps, and indications of embedded logs at the very point where these locks were to be constructed.

Nothing whatever appears to have been done to prevent the investigation of the contractors from being as full as they chose to make it. Under such circumstances contractors can not afterwards allege that the Government’s resident engineer made representations respecting the subject investigated which were false.

The case of *Lehigh Zinc & Iron*Co., 150 U. S., 673, is without application because of the two notices to the contractors (1) that the office of the resident engineer was ready to supply all information which the office possessed and upon which the plans were drawn, and (2) because the notice to them to satisfy themselves of the material to be excavated qualified the obligation of the defendants to be literally bound by what the boring sheets did show. Notices like these mean something and especially do notices to contractors to satisfy themselves become conclusive unless we deny to defendants the right to make such a contract.

The inducement disclosed by the finding is insufficient to relieve plaintiffs from investigating for themselves. Nor do the findings show that plaintiffs did not have adequate time to investigate or that the engineer officers knew that plaintiffs did not investigate.

In the case of *Clapham*v. Shillito, 7 Bevan’s Rep., 149, Lord Langdale stated the English rule that has generally been followed in this country as follows:

> “ If the means of investigation and verification be at hand, and the attention of the party receiving the representation *333be drawn to them, the circumstances of the case may be such as to make it incumbent on a court of justice to impute to him a knowledge of the result, which, upon due inquiry, he ought to have obtained, and thus the notion of reliance on the representations made to him may be excluded.”

This finding must be taken from another point of view. If the contractors can now hold the Government liable we must also decide that the contractors would have had the right to rescind the contract as the work progressed. All the authorities sustain this view. “ It must be established by clear and decisive proof that the alleged representation was made in regard to a material fact; that it was false; that the maker knew it was not true; that he made it in order to have it acted on by the other party; and that it was so acted upon by the other party to his damage and in ignorance of its falsity and with a reasonable belief that it was true.” *Southern Development Co.*v. Silva, *supra.*

The right to rescind was never claimed. The right to be reimbursed for damages was never preferred. The contractors made no such protest as under the contract they had a right to make if they were misled. They never said that there was imposition such as would sustain an action for deceit after the work had begun. At a time when they could have complained and when the testimony of the resident engineer could have been taken these contractors were silent. This subordinate agent in the meantime died, and we deem it but just to the defendants that the finding should be made not merely for the right of the Government, but likewise because it is the due of the deceased resident engineer.

The purpose of the specifications warning bidders to inform and satisfy themselves as to the nature of the material was to protect defendants against the mistakes or errors of subordinate agents' which the Government is compelled to employ in the execution of works of this kind.

As to the cemented sand and gravel and conglomerate, plaintiffs necessarily knew that the improvements they were to construct were to rest either upon such solid foundation as would make the improvements stable or upon piles to be driven into the bed of the river for the same purpose. They *334knew that all material beneath the surface of the stream had to be excavated until a solid foundation was attained to be judged of by the chief engineer.

Defendants, as in *Simpson*v. *United,*States, 172 U. S., 372, made the contract without any stipulation that the ground selected should be of defined character. When we admit that there was anything equivalent to a warranty of any kind as to what was or was not in the bed of the river upon which plaintiffs had a right to rely this court in effect reverses the proposition announced in *Simpson's case*(supra), which, of course, this court can not do.

The contract contained no statement or agreement or even intimation that any warranty, express or implied, in favor of the contractors was entered into by the United States concerning the character of the soil in the bed of the river by the warning *ubi/t bidders must inform themselves as to the nature of the material*” without relying on the drawings. In stipulating for sheet piling and the methods to be adopted for making the driving of sheet piles necessary to serve the object in view the contractors could not have relied upon anything in the nature 'of a warranty respecting the material to be encountered in the progress of that part of the work.

The case of *Pearson*v. *Dublin*Corporation, 1907 App. Cases, 351, is inapplicable because the questions presented in the case arose out of an action of deceit for damages for alleged fraudulent representations. The House of Lords remanded that case for a new trial entirely ripon the question of law arising from the construction of the specifications by the trial judge. It seems that by the terms of a paragraph of the contract in that case the question arose whether the corporation could relieve itself from the consequences of *a false and fraudulent representation intentionally inserted*by the agents of the corporation in the plans and specifications. The evidence in the present case is entirely different. There was no intention to deceive; and, as a matter of fact, it is impossible for us to believe that these contractors were deceived, because of the' admission made by them that they expected to encounter obstructions below the surface of the water.

*335In the case of *Sanitary District of Chicago*v. Richer, 91 Fed. Rep., 833) the circuit court of appeals in reversing the court below declared that a contractor for the excavation of a section of a drainage canal was not entitled to a rescission of his contract because he encountered a substance more difficult and expensive to excavate than anything he was led to expect from examination of the profile and data in the office of the chief engineer — no intentional fraud being charged— nor because some of the trustees knew, or should have known, of the existence of further information on the subject of which they did not inform the contractor. The court further held that the chief engineer whose duty it was to let contracts for work could not by representations made to an intending bidder as to the nature of materials to be excavated bind the Sanitary District, much less by expressions of opinion thereon. Our conclusion relating to the fourth finding is that the contractors took chances in making their bid as to the extent of the obstructions encountered, and that the increased expenditure was the result either of miscalculation at the outset on their part; or, an afterthought arising during the progress of the work from the floods which naturally, precipitated around the locks and dams more material for excavation than they would have encountered but for the extraordinary rises in the river.

The fifth finding relates to a matter of engineering by way of preparation for the work' of the contractors. Plaintiffs claim an excess of excavation work, due to en erroneous angle of repose, and the amount demanded is $57,162.41.

Paragraph 48 of the specifications provides that—

> “All dredged or excavated materials of whatever nature will be classified as ‘ excavation.’ All excavations shall conform to such lines, slopes, and grades as may be given by the engineer officer, and anything taken out beyond such limits will not be paid for by the United States. The price for excavation shall include the moving of the material to its place of deposit.

> $ * * * *

> “ The limits of the excavation and quantities to be exea- ***vated will depend upon the ascertained angles of repose.”

*336Plaintiffs contend that this clause constituted an agreement that all banks should be sloped to those angles of repose which they say in engineering practice means an angle at which the material in an excavated bank will stand firm under any and all conditions of freshets or floods, whether under abnormal conditions or otherwise, until the work is completed. Defendants, on the other hand, insist (and the engineer officers so decided) that the term as used in the specifications, and also in engineering practice, did not mean permanent stability under extreme conditions for the slopes of temporary excavations, but merely such angles as to afford stability for sufficient time to enable the work to be done under normal conditions. Much testimony, expert and otherwise, was taken to show the meaning of the term “ angle of repose ” for excavated banks.

The angle prescribed by the engineer for the slope of all work of a temporary character was an angle of 1 on 1, or 45°. It was such an angle as the banks would stand for the time necessary to complete the work when not submerged from rises in the river or when in a dry condition. During every working season, however, with few exceptions, at least-one rise in the river occurs which so affects the stability of the slope as to cause the bank to slough, and during every year there are liable to be more frequent rises than one.

The angle adopted by the engineer officer was the result of his previous experience on this river and because it was the angle in general use on the Mississippi River for the slopes of temporary excavations.

But the conditions actually encountered during the working seasons of 1900 and 1901 were abnormal. During each of these seasons the work under this contract was hindered by a series of floods, freshets, and unexpected rises of the river “ more numerous and of greater height and of longer duration than theretofore disclosed by the published official records of the engineer’s office relating to the river.”

Had the banks been sloped to a flatter angle the sloughing would have been reduced, but the finding does not show to what extent. To attempt to do so would be a matter of conjecture, as the floods caused deposits from above of silt, sand, *337and sediment around the locks and brought leaves, trash, and earth from the lands and fields adjacent to the lock sites and into the river.

The slopes of the excavation were not better flattened by the engineer officers, because in their judgment there was no practical angle at which the banks could have been sloped which would have caused them to remain stable under the conditions to which they were liable to be subjected. The finding shows that nothing could have prevented the banks from caving as the floods subsided and water (from the rises in the river) receded.

There was no angle of slope which could have been adopted by which the banks would remain stable when subjected to such rises in the river as were liable to happen in times of flood. If the slope for the temporary work had been flattened to 1 on 3 the quantity of excavation would have been increased beyond the quantity estimated in the specifications.

But plaintiffs contend that a single fixed angle of 1 on 1 was arbitrary. They insist that as a term of civil engineering the court should be governed by the dictionary definition, as follows: “ The maximum angle with the horizontal at which a mass of material, as in a cut or embankment, will lie without sliding.” Numerous authorities have been presented to show that none of the definitions expressly or impliedly qualify the definition stated by any reference to conditions characterized as normal.

On the other hand, the contention of the defendant is that frequent rises in a river are to be regarded as weather conditions, which in all cases go to determine the angle of repose for the slope of the bank.

The only authority of any bearing for plaintiffs, outside of the dictionaiy definitions, is that of *Gleason*v. *Virginia Midland Railroad Co.,*140 U. S., 435, where it was held that a railroad was responsible for an accident to a train caused by a landslide produced by the giving way of the banks of a cut. The cut was at an angle so steep the earth would slide. There it appeared that a landslide in a railway cut caused by an *ordinary*fall of rain was not an act *338of God sufficient to exempt the railway from liability to passengers for injuries caused thereby while passengers were being carried on the road; that it was the duty of the company so to construct the banks of its cuts that earth will not slide by reason of the action of *ordinary natural causes*and by inspection and care to see that they are kept in such condition. . Failure so to do presented a case of negligence.

' The court held that to all intents and purposes a railroad track which runs through a cut where the banks are *so near and so steep*that the usual laws of gravity would bring upon the track débris created by the *common*processes of nature was negligence if ordinary skill would enable engineers to foresee the result and allow the company to guard against it.

•The case here is entirely different. The letting plans did not show the slopes of the excavation. But the original cross-section sheets, from which the estimated quantities of excavation in the specifications had been calculated, show in pencil the different angles of all slopes at 1 on 1 behind structures for temporary work and a flatter slope of 1 on 14 to 1 on 2 during the period of the contract for all permanent work. Both angles of repose were constructed accordingly. These cross-section sheets, although not made part of the letting plans, were on file in the office of the resident engineer and were open to examination by bidders prior to submitting proposals and were, in fact, examined by at least one of the prospective bidders. There was no concealment and plaintiffs do not say there was.

Plaintiffs made no attempt to verify or estimate for themselves prior to the acceptance of their bid the approximate quantities of excavation submitted, nor did they make any inquiry concerning the method by which said approximation had been reached.

The right to recover is based entirely upon the conflict between the parties as to the general meaning of the phrase “ascertained angles of repose.”

The specifications provided:

> . “ 89. These specifications are intended to be full, clear, and complete; any doubt as to their meaning or any obscurity in wording of them will be explained by the engi*339neer officer, who shall also have the right to correct any errors or omissions in them whenever such errors or omissions become apparent.”

Paragaph 78 declares:

> “ In all cases of dispute the decision of the United States engineer officer in charge will be accepted as final without appeal.”

. Can plaintiffs now claim anything unless there be fraud or errors so gross as to imply bad faith ? We think not, and as neither fraud, actual or constructive, nor error so gross as to imply bad faith is charged or proven against either Col. Kossell or Col. Spencer Cosby, who at different times had charge of the work and the right to decide differences relat-' ing to the meaning of the contract subject to appeal, there is no right to recover on this item.

And here it should be stated, in view of the charge of incompetence and unreasonableness, that there is nothing in the conduct of either one of the chief engineer officers or of the resident engineer or other agent of the Government to reflect upon their capacity, reasonableness, or good faith from the beginning to the end.

There is presented by the sixth finding an item of $1,183.41 for the alleged increased time taken in driving the round piles called for by the contract by reason of the greater difficulty of penetrating occasional obstructions encountered.

The finding shows a sandy soil underlain by thick and heavy beds of gravel; very hard sand, white, red, and blue' in color; gravel, sand, and blue clay; and closely packed sand and coarse gravel, sandstone, and rock. Some of the' sheet piles could not be driven to the desired penetration on account of buried logs. But there was much sickness among the pile-driving crews, and during the first season plaintiffs drove both classes of piles without .the use of a water jet, but afterwards when jets were used there were times when the pressure of the jets was not strong enough to properly carry on the work. The most serious difficulty was caused by material classified on the boring sheet as hard clay and shown to be underlaid by hard white sand, soft sandstone, and white, and blue clay, and it was found impos*340sible to penetrate this material. The pile driving was directed by experienced Government engineers and the inspection was made in- accordance with the specifications. Plaintiffs made no written protest that the requirements of the inspectors were unreasonable or that they exceeded the specifications in any particular.

The findings do not show cemented sand and gravel or conglomerate sandstone. There was sand and gravel, otherwise known as conglomerate material, but defendants did not warrant the nature of the material to be excavated, but having warned intending bidders to investigate and satisfy themselves and it being established that no agent of the Government had any knowledge as to the existence of conglomerate in the foundation material under any of the structures, the court is unable to make an allowance on this item.

The failure of the foremen’s notes to show conglomerate and its consequent omission from the boring sheets resulted from the fact, in all probability, that the borings were not in continuous lines, as were the sheet piles, but said borings were at intervals of from 50 to 68 feet apart and nearly in the center or halfway between the continuous water-tight lines of the sheet piles subsequently driven. The borings were made by a water jet forced down through a 1-inch pipe inside an outer casing of a 2-inch pipe. The 1-inch pipe was raised and lowered by hand inside the casing and the samples were washed up through the two pipes and out through a spout above ground where they were examined. Thus all specimens of material necessarily had to be first so crushed or reduced as to permit them to be washed up in the annular space between the two pipes, and when the drill pipe was in the center of the casing the space was reduced to one-quarter of an inch, less the projection of the sleeve or coupling by which the lengths of the drill pipes were joined together. It seems reasonable to say that the specimens raised by the jet did not indicate its true character to the foremen, whose omission to enter it as conglomei’afce in the field notes was an honest mistake of judgment.

The finding shows that the specimens raised by the jet would not have given any different indication from hard and *341closely packed sand and gravel; that it was impossible to determine by certain borings whether the material was gravel or hardpan.

Paragraph 52 provided that bills and lengths for all piles were to be furnished by the engineer officer, but the contractors were required to furnish and drive, at their own expense, test piles wherever required. Sheet piling was to be jetted into place between temporary walling pieces and settled after jetting with a suitable hammer. The Government stipulated for penetration of at least 10 feet below the bottom of walls and for care as to how the foundation and heart piles should be protected in driving with a 3,000-pound hammer operated by friction or with a 3,500-pound steam hammer.

The court finds that there were at all times during construction at each lock site at least two competent and experienced junior engineers or inspectors well qualified for local charge of the work. These men were usually assisted at each lock site by three or four inspectors and recorders, who generally were men of considerable practical experience or were graduates of engineering schools. Some inexperienced recorders were used to assist in the work, but were not placed in responsible positions until they had acquired some experience and then only under close supervision of competent and experienced superiors.

By the specifications it appears that the sheet piles were to be driven in continuous rows to a depth of at least 10 feet below the bottom of the walls of all structures, but in all cases to the satisfaction of the engineer officer. They were intended to form a screen completely surrounding and protecting all foundations from injury or impairment by undermining or seepage from the river. The stability and integrity of all the structures directly depended upon the officer whom plaintiff had agreed to have the right to be satisfied with their work.

The three different alternative methods by either or all of which the piles were provided to be driven were apparently provided, for the reason that the material shown on the boring sheets was of such varied character as to make it doubtful whether piles could be jetted into that material at *342all. The boring sheets indicated that in some places the driving would be easy, but that it would not be easy in the gravel and hard gravel shown in the borings.

The findings also show that: (1) None of the pile-driving force of the contractors had ever before attempted to drive continuous lines of water-tight sheet piles; (2) that there was a good deal of sickness among the pile-driving crews and consequent- difficulties; (3) both classes of piles during the first season were driven through the heavy beds of gravel without the use of a water jet; (4).there were times when the pressure of the jets in actual use was not as strong as it should have been to properly carry on the work; (5) the dimensions and material of the sheet piles were such that they could not be given as long,, and consequently as hard, a blow as the foundation piles; (6) there was, however, some difficulty occasioned by sunken logs, but these were sometimes partially above and at other times wholly below the level of the excavation and along with other obstructions made the driving somewhat more expensive and difficult enough to result in delays; *(7)*the greatest difficulty in the .matter of pile driving was occasioned by the material found to extend over and above two-thirds of the area of the abutment of Lock 5 and running out for about 40 or 50 feet from the bank under the dam. This material appears on the boring sheet as “hard clay,” and is shown to be underlaid by “ hard white sand,” “ very hard white sand,” “ soft sandstone,” “ white and blue clay,” and “ clay.”

There is no finding that any of this material was really soapstone, and the effort to connect the failure to- classify soapstone on the boring sheet as a part of willful and deliberate misrepresentation seems to have been abandoned, since the requests for findings contain no reference to soapstone.

It is shown that the engineer officer never refused to modify the requirements of the inspectors in charge of pile driving on any part of the work; that the engineer officer witnessed the driving of a pile which was driven ■ too hard, badly bruised and split, and that orders were given to the inspectors not to allow such hard driving. This was done as a matter of protection to the work.

*343It is also shown that the contractors were notified frequently that if they were not perfectly satisfied with the way in which pile-driving work was being carried on or with the decisions of the inspectors they could immediately bring the matter to the attention of the engineer officer in charge, with the statement that any complaints would have immediate attention. It is also shown that the engineer officer had occasion to remonstrate with the contractors again and again because they did not comply with that request or would constantly refer to some subject of complaint never before brought to the attention of the engineer officer.

In making the closures in the dam at one of the locks the current had scoured the bed of the river out to a depth of 20 feet. The penetration of the sheet piling at that point was 22 feet in what appeared to be tough clay. The head of water when the closure was made was only 2 feet; and after that dam was completed the material below had scoured out in places to a depth of 27 feet, or considerably below in places, the bottom of the sheet piles in the adjacent structures. Such structures have only been saved by the use of considerable rock and stone dumped along the face of the lock wall and the abutment face below the dam. The same thing occurred under an 18-inch head of water when the closing piles for the upper row in the dam at another lock were being driven. The round piles there supporting the pile driver gave way.

While plaintiffs complained of the difficulty of their work* they never at any time made written protest that the requirements of the inspectors were unreasonable or that the specifications under which they were working were exceeded in any particular.

Under the seventh finding there is a demand for an item of $2,871.63 on account of piles billed too long. Plaintiffs say that the engineer officer ordered them of excessive length.

But on January 26, 1901, a complete bill of piles was furnished to contractors.

The lengths shown on this bill were satisfactory to the contractors and were necessary for the work, in the judgment of the engineer officer. No protest or complaint as to the *344lengths was thereafter made by the contractors, nor were the engineer officers or any of them requested to alter the lengths as specified.

The jigbtlH§ndi»g relates to a claim for $8,520.22 on account of the construction of cofferdams to protect the work against a rise of more than 8 feet. Plaintiffs do not claim that this part of their demand is within the contract, but that they are entitled to recover therefor on quantum meruit.

Paragraphs 45 and 46 provide:

> “45. *Oo-fferdams.*— All pumping, bailing, and temporary works needed to. protect the permanent work from water during construction shall be done by the contractor at his own expense, the cost of same to be included in his prices for concrete, timber, etc. It is probable that the sheet piling entering into permanent construction can, with proper banking and shoring, be made to serve the purpose of cofferdams, but the contractor must rely upon his own judgment in regard to this. Should additional cofferdams be needed they shall be built on plans approved by the engineer officer, and. where liable to interfere, directly or indirectly, with navigation, shall be removed when no longer needed, the building, maintaining, and removal of same to loe without cost to the United States-.

> “46. *Dams.*— It is probable that the dams can be built without cofferdamming, but the contractor must rely upon his own judgment in regard to this, and should cofferdams prove necessary, it is understood and agreed that they shall be furnished by the contractor without cost to the United States. The method of construction suggested is first to dredge the site of dam to a level about 6 inches below the pile heads, then drive the three rows of sheet piling continuously from one end, cutting them off a sufficient distance below low water to permit the low-water flow of the river to pass over them without much head; then drive the foundation piles and cut them off at grade; then build the cribwork, one course at a time, filled and sheathed, protecting the work where necessary by temporary flashboards from the water, which will continuously flow over the work in a thick sheet. The dam shall be filled with gravel or stone, or both, at the option of the engineer officer.”

The specifications are explicit in the requirement that the contractors should furnish all cofferdams needed for the protection of the permanent work without cost. This part of the claim must fail unless in the requirements of the engi*345neer officer in this regard there appears fraud or mistake so gross as to imply bad faith.

The resident engineer who is charged with intentional misrepresentation was dead before his proof could ever be taken. The charge against him is that he exhibited to two of plaintiffs upon the occasion of their preliminary visit to his office in Tuscaloosa hydrographs of gauge readings of the river taken at Tuscaloosa, and represented to them that these hydrographs showed the exact conditions of the river at the lock sites 46, 63, and 79 miles, respectively, below, whereas, in fact, there were in existence at that time readings from other gauges located at points in closer proximity to the lock sites which showed higher readings and longer duration of floods — conditions less favorable' to the construction of the work than those indicated by the Tuscaloosa gauge. It is charged that this fact was well known by the resident engineer but concealed from the contractors, which caused them to omit from their estimates the cost of expensive cofferdams which otherwise would have been included.

The two contractors mentioned who were present and took part in the same conversation with the resident engineer contradict each other. We find no fraud, actual or constructive, and no such gross mistake in his conduct or by anything he is alleged to have said as to imply bad faith.

That the work might be continued at the end of the first season the engineer officer decided to direct the contractors to finish the cofferdams consisting of mounds of earth then standing at approximately 9 feet above low water to a height of 10 feet at their expense and to cap the same with a cofferdam built of sheet piling to a height of 20 feet above low water, the last to be paid for under paragraph 88 of the specifications at three-fourths of the contract price for sheet piling, to which the contractors agreed. The contractors had notice, on November 17, 1900, that the only reason for building the cofferdams at the time was to have the permanent work continued during the winter. The contractors were directed to complete them at the earliest day possible, so to increase their force as to build them without retarding the permanent work, and for the same reason the excavations *346from the lock pits were required to be diverted from the mounds to cofferdams. They were told that before beginning work on the cofferdams-to give a written statement as to- building the cofferdams without in any way retarding the permanent work with a proposal to press the permanent work through the coming winter as the stage of river permitted. Three days after receipt of the order, and before the-work of constructing the cofferdams could be commenced, the river rose to and remained at such a height it was not possible to build cofferdams during that winter.

- On May 4, 1901, the resident engineer informed contractors that there was an unwillingness to pay for any cofferr dam structures in addition to those authorized November 17, 1900; and also that there was doubt as to authority on the ¡part of the writer of the notice (the resident engineer) to pay for putting in the structures previously authorized as the emergency for which they were intended to provide had passed. That is to say, that there could be no prosecution of construction during the winter. Plaintiffs protested, and on May 9, 1901, the engineer officer referred the whole question direct to the Chief of Engineers for decision, who, after se.curing the views of Col. Haines, the division engineer officer, submitted the matter to the Secretary of War. The question in turn was decided by the Judge Advocate General of the Army as to whether the proposed sheet-pile topping could be paid for under a modification of the original project by a supplemental agreement or whether the work should be performed by the contractors at their own expense under paragraph 45 of the specifications. The opinion was given that .there was no legal authority to modify the contract so as to provide that the contractors should be paid for this work; and that when the principal engineer officer in charge on the spot, designed the work and prepared the specifications or what he gave the bidders to understand in the matter of the preparations of foundations being done at low water could not be .admitted to vary the plain terms of the written contract.

The Secretary of War approved the views of the Judge Advocate General and the contractors were notified.

*347By paragraph 45 all temporary works needed to protect the permanent work from water, during work, was provided to be done by the contractors at their expense, the cost of which was to be included in prices for concrete and timber. The same paragraph provided for additional cofferdams, if needed, to be built on plans approved by the engineer officer — subject, of course, to the terms of the contract.

Plaintiffs have undertaken to give the engineer officer’s idea as to what prospective bidders were given to understand. But the finding shows that the. information obtained by prospective bidders was given, not by him, but from information received in the Tuscaloosa office of the resident engineer.

The fraud charge against the resident engineer is that he did not furnish any other or additional information to the two plaintiffs who went to his office, as to river stages at the lock sites other than that shown by the gauge at Tuscaloosa.

The court is of opinion that the alleged oral representation is inadmissible, not only because it is in direct contradiction to those provisions of paragraphs 45 and 46, but also because the testimony on this point as to what the resident engineer is alleged to have said is not sufficiently proven to be made a part of the findings of the court.

It is specifically stated in paragraph 46 that while it was probable that the dams could be built without cofferdams and that the contractors must rely upon their own judgment in regard to this, nevertheless, “ should cofferdams prove necessary, it is understood and agreed that they shall be furnished by the contractor without cost to the United States.”

The hydrograph establishes the finding that the readings at Tuscaloosa are higher in'each instance than at either of the interpolated gauges located at the lock sites.

The Tuscaloosa gauge was located 9 miles below Lock 4, Black Warrior Biver. There is scarcely any fall or drop in the Warrior for 24 miles below Tuscaloosa and about 60-foot fall in the next 106 miles to Dejnopolis. Inasmuch as the complete surveys of the river had been made from Demopolis up to Tuscaloosa, the contractors could easily have ascertained before bidding just what the gauge was between the two points. . . ..

*348It is contended that paragraph 88 of the specifications conferred full power on the engineer officer to pay for the cost of the cofferdams. That paragraph relates to purchases made or work done not specified, and reads as follows:

“ If at any time it should become necessary, in the opinion of the engineer officer in charge, to do any work or to make any purchases not herein specified, for the proper completion of this work, the contractor will be required to'furnish the same at the current rates existing at the time of said purchase or work. The current rates to be determined by the engineer officer in charge.”

This paragraph can not be invoked to sustain’the item in dispute, because paragraph 88 is limited to work or purchases not specified in the contract. But cofferdams were expressly specified to be furnished by the contractor without cost should their construction prove necessary. When the engineer officer determined that these were necessary for the protection of the work the terms of the contract were fully met.

The total cost of all cofferdams (excluding those constructed for the purpose of building the dams) was $11,456.91. An allowance of $2,000 apiece was made in the proposal for cofferdams for each lock, making $6,000' in all. This part of the finding being an admission of one of the plaintiffs, the claim for more money under this item is inconsistent with the admission.

It is possible that the dispute about this item grew out of a mistake on the part of the plaintiffs in their estimate as to the cost of the cofferdams.

While the court has found that there was no fraud or deception practiced upon plaintiffs with respect to the necessity of cofferdams in the prosecution of the work, and while the court is of opinion that the amount claimed should not be allowed, because of the terms of the contract, the sum claimed should be reduced to $5,456.91 (if considered as a liability at all) because of a necessary deduction of $6,000 from $11,456.91.

In the case of *Plumley*v. *United*States, recently decided on appeal from this court to the Supreme Court, 226 U. S. R.., it was held that Plumiey could not recover for that which, *349though extra, was not ordered by the engineer officer in the manner required by the contract. Here is a distinct affirmation of the meaning of section 3744, Bevised Statutes. *Ripley*v. *United*States, 223 U. S., 695; *McMullan*v. *United States,*226 U. S.

By the ninth finding compensation is claimed for excavation through earth levees erected by the contractors for the protection of the lockwork which it was necessary to remove in order to construct foundations for the dams. Paragraph 45 required the contractors to remove the cofferdams when no longer needed and where liable to interfere, directly or indirectly, with navigation; their removal was to be without cost to the United States. The dams could not be constructed until the cofferdams were removed and the earth used therein excavated, and this excavation was to some extent an interference with navigation. Payment for this work, the cost of which was $913.29, was properly refused.

The tenth finding presents a claim of $9,754.55 growing out of tETsubstitution of stone filling for the dams in place of gravel filling and of riprap for the banks furnished at a loss, which the court finds amounted to $14,494.45.

In two of the paragraphs of the specifications we find a provision for a filling of “gravel or stone.” The direction for gravel filling seems to be final; but bids were called for to cover both, and the contract provided for gravel filling, per cubic yard, for Nos. 4, 5, and 6, 42 cents; following “ and for alternative matters, when used, as follows: Stone filling, per cubic yard, for Nos. 4, 5, and 6, $1.14.”

This gave the defendants the option of ordering stone in place of gravel, in whole or in part, for the filling for the dams.

After the contract was signed there were delivered to plaintiffs their working drawing plans, identical with those shown them when preparing to bid and were identical with those annexed to the contract. They arranged for procuring sand and gravel close to the scene of the work.

In October, 1900, plaintiffs were given notice to deliver stone for filling the dams to the quantity of 11,590 cubic yards. Some protests not to the substitution but to the *350quantity called for followed, but there'was finally a decision by the engineer officer that the minimum amount of stone that could be accepted for the three locks was 12,000 cubic yards. The final estimate showed a total of 7,110 cubic yards. For all three locks there was a total of both stone filling and riprap of 13,967.99 cubic yards.

Plaintiffs gave notice that they did not “ take kindly to the idea of having changes from the original plans,” and asked for a decrease of the stone quantities. The engineer officer decided that 12,000 cubic yards was the minimum amount of stone that could be accepted under the contract. Revised plans for the dams were prepared by direction of the engineer officer, and on February 29,’ 1902, the engineer officer modified the requirements for the substitution of stone in whole for gravel filling in the dams and submitted an outline of the proposed changes. Plaintiffs notified the officer that the changes indicated were acceptable to them, and accordingly they were furnished revised plans for the dams and bank protection, which they also informed the officer were satisfactory to them. Thereafter a supplemental agreement was executed.

' Bock 5 was not navigable during the high water of the winter and spring of 1902-3. Had plaintiffs earlier completed the dam at Lock 6' which made necessary the turning of the river through the lock for the convenience of the contractors and to facilitate the construction of the dam there would have been no delay. Plaintiffs caused the delay of two weeks in the erection of the -gates at the upper lock. ' The court can not find that there was any fault on the part of the Government to provide gates, but, on the contrary, plaintiffs were directly responsible for the delay-. ■

If there was an increased expense to the contractors in procuring stone at a different quarry from that from which they first expected to obtain stone, the fault was with them. ■ The plan prepared at the outset for procuring sand and gravel would have been necessary in any event to supply materials for making the concrete of which the structures were built, whether the contractors had been specifically in1 •formed when the contract was signed or not that stone would *351be required in accordance with their proposal and agree-*; ment.

PlaintiiEs made no protest in writing against or appeal _ from the engineer officer’s decision directing the use of stone for filling the dams or protecting the banks. '

■ Oh the whole case we find that plaintiffs are entitled to' judgment on the second finding amounting to $9,391.57; on the third finding, plaintiffs are entitled to judgment in the sum of $100. .

; As to the items setting forth demands in all of the other findings of the court, judgment will be entered for defends ants, and as to the amounts therein claimed the petition, is. dismissed. .¡i,

Judgment under the two findings above mentioned will-be entered for the sum of $9,491.57 in favor of plaintiffs against the United States.

Barney, J.,

dissenting:

I can not agree with the majority of the court as to the effect of the facts as determined by the ^fourth finding. Paragraph 48 of the specifications provides that “ the material as far as known is shown by borings, drawings of which may be seen at this office, but bidders-must inform themselves as to the nature of the material.” It appears by the above finding that the drawings above mentioned did- not contain a correct statement of the conditions or materials found in making said borings; that obstructions were mqt which prevented penetration, sunken logs were encountered, and that no record thereof was ever made or exhibited- on said drawings. When the work under the contract came-to be done the plaintiffs found the materials were- more difficult and expensive to penetrate and excavate than ordinary sand and gravel and clay, such as described or named in thé exhibited drawings. The damage caused thereby to the plaintiffs is found in said finding to be $6,150.

The theory upon which relief to the plaintiffs has been denied for the damage resulting from this discrepancy beT tween the materials as shown by the drawings exhibited and as actually encountered is based, as I think, upon a wrong conception of the law applicable to such cases. This is not *352an action in tort to recover damages for deceit; neither is it an action in equity to rescind a contract for the same reason. But so far as this branch of the case is concerned it is a suit upon a contract to recover damages on account of a misrepresentation therein contained amounting to a warranty. While this may be said to have been assumed in the majority opinion of the court, the decision upon this branch of the case appears to have turned upon the question of deceit as that term is usually understood in the law. Warranty is the gist of the suit in this item of the case, and as I understand the law the question of *scienter*does not enter into its consideration. It makes no difference what the object of taking the borings was, whether the obstructions encountered were innocently omitted from the drawings or not, or whether the Government officers were honest or dishonest in making the representations they did or not. It is simply a question as to whether representations as to the materials to be encountered were made which were not true, whether these representations were material, and whether the plaintiffs had a right to rely upon them and did rely upon them to their damage; in other words, whether the representations were a valid part of the contract.

I think the rule is universal that when a party sues in contract for a breach of warranty the motive' of the warrantor, or his knowledge or ignorance of the representations made, have nothing to do with the case whatever. In technical language it is not necessary in such an action either to allege or prove the *scienter. (Bishop on*Frauds, 29; *Schuchardt*v. Allen, 1 Wall., 359, 368; *Shippen*v. Brown, 122 U. S., 595.)

Even if this were an action in equity between private parties to rescind the contract on the ground of fraud, I think the findings would sustain such an action. An extensive discussion of this proposition is perhaps unnecessary, but its correctness reenforces the proposition that the findings will certainly sustain a recovery under finding iv of this case. The whole doctrine upon this subject is well stated in Story’s Equity Jurisprudence, where it is said (sec. 193) :

> “ Whether the party thus misrepresenting a material fact, knew it to be false' or made the assertion without knowing *353whether it were true or false is wholly immaterial, for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive, for it operates as a surprise and imposition upon the other party.”

The law is equally well settled by the Supreme Court in *Smith*v. *Richards*(13 Pet., 30), which was an action to set aside a contract for fraud, where it was said:

> “The principles of these cases we consider founded in sound morals and law. They rest upon the ground that the party selling property must be presumed to know whether the’ representation which he makes of it is true or false. If he knows it to be false, that is fraud of the most positive kind; but if he does not know it, then it can only be from gross negligence; and in contemplation of a court of equity representations founded on mistakes, resulting from such negligence, is fraud. 6 Ves., 180, 189; Jeremy, 385, 386.) The purchaser confides in it, upon the assumption that the owner knows his own property and truly represents it; and, as was well argued in the case in Cranch, it is immaterial to the purchaser whether the misrepresentation proceeded from mistake or fraud. The injury to him is the same, whatever may have been the motives of the seller.” (75., 38.)

This question, however, as already said, it is not necessary to discuss here, because this is an action *ex*contractu, and the ordinary jurisdiction of this court extends to no other.

It is said in Parsons on Contracts:

> “ It is certain that misrepresentation may not imply fraud in fact, because it may spring wholly from mistake, and nothing would be gained by calling a misrepresentation, which is innocent in fact, fraudulent in law. It is enough to say that material misrepresentations which go to the substance of a contract avoid that contract whether they are caused by mistake and occur wholly without fault or are designed and fraudulent.” (2 Parsons on Contracts, 786.)

Or, as was said by the late Justice Harlan:

> “ Where the representations are material and are made by the vendor or lessor for the purpose of their being acted upon, and they relate to matters which he is bound to know or is presumed to know, his actual knowledge of them being *354untrue is not essential.” *(Lehigh Zinc & Iron Co.*v. *Barnford,*150 U. S., 665, 673.)

The case of *Barndt*v. *Frederick*(78 Wis., 1) was a suit brought to recover damages on account of misrepresentations made as to the value of silver mining stocks, and one of the questions involved in the decision of the case was, whether the pleadings showed it to be an action *ex delicto*or an action *ex contractu.*In the discussion of that question the court said:

> “ Before the plaintiff can recover on the implied *assumpsit*he must show that the defendant made representations of fact materially affecting the value of the stock; that the plaintiff relied upon such representations and purchased the stock on the faith of them, believing them to be true; that they were false; and that, within a reasonable time after discovering they were false, the plaintiff rescinded the contract of purchase by returning or offering to return the stock to the defendant. It need not be averred or proved that the defendant knew his representations were false. His legal liability remains although he believed and had good reason to believe his representations true.”

Fraud or deceit, as those terms are usually understood, have nothing to do in the decision of this case. I say as “ usually understood,” because their use usually implies conscious dishonesty, which, as I understand it, cuts no figure in this case. It is doubtless true and may be assumed that the officers of the Government who made the representations which preceded the making of this contract were honestly mistaken as to the incorrectness of the drawings exhibited with the specifications; and it may be assumed that the omission from these drawings of the record of the sunken logs encountered and of the borings which were abandoned because of obstructions encountered, was made innocently and with no intent to deceive the plaintiffs or anyone.

What are the facts in this case relating to this item as disclosed by the record and the findings ? The advertisement for bidders was dated December 20,1899, and the time for receiving proposals was limited to 12 o’clock noon on the 20th of January, 1900, 31 days, including Sundays and holidays. It is not disclosed when this advertisement came to the notice *355of the plaintiffs or when their bid was made, but it does appear that their place of business was Chicago, Ill., and it may well be assumed that it was after January 1, 1900', before their representative got to the site of the work. The record from Government reports further shows that the Government had previously made borings on this site to the extent of 6,520 linear feet and to a depth of from 20 to 35 feet below the river bed; and it was drawings of these borings which were shown to the plaintiffs before making their bid and which the specifications say show the materials to> be excavated “ as far as known.” It is undisputed and found by the court that these drawings did *not*show the materials to be excavated “ as far as known ” to the defendants. On the contrary, 16 borings where obstructions had been encountered and at least three borings were sunken logs had been encountered had been made which were not shown on the drawings at all. In fact, the only information which the Government had obtained through these borings which it was important the plaintiffs should know before making their bid was omitted from the drawings.

Of course it is elementary that either in actions for deceit or upon warranty mere expressions of opinion are not actionable and the misrepresentation must be as to some fact; but in the case at bar the misstatement made did not involve a question of opinion but was a misstatement as to a material fact upon which the plaintiffs had a right to rely. From all the circumstances surrounding the case we must assume that it was known that the plaintiffs must rely in a large measure upon this statement as to the character of material to be encountered in making up their bid, for it is hardly necessary to say that the Government agents knew that the plaintiffs had no time before making their bid to make their own investigation, at least to anywhere near the. extent of the investigations made by the Government as shown by the drawings exhibited. It was but little more than idle mockery to say to the plaintiffs to look for themselves. Here was a fact stated to them upon which they had a right to rely. I can not agree to the principle that a positive misstatement of a fact can be made under such circumstances to prospective bidders and then be relieved from responsibility by a warn*356ing to look out to ascertain that such statements are not true. True, it may be and doubtless is that the Government officers who made these statements were innocent of any wrong intent and that all concerned in the mistaken drawings are equally innocent, yet the fact remains that the drawings did not disclose all the Government had discovered in making its investigation, and the plaintiffs were equally deceived whether this was done innocently or otherwise.

I do not contend that there was any warranty on the part of the Government as to the character of the material to be excavated, but I do contend that there was a representation amounting to a warranty that the drawings exhibited to the contractors showed all that the Government knew upon that subject, hence the *Simpson case*(172 U. S., 372) has no application here. There was no claim in that case that the drawings exhibited to the contractors did not show all the information in the possession of the Government.

It has repeatedly been held that it is of no avail for a party charged with making misrepresentation to say that the party deceived was wanting in caution and vigilance, where the parties to the contract do not stand upon an equal footing and the facts were within the peculiar knowledge of the one making the misrepresentation. (Bishop on Frauds, 71 ; *Wannell*v. *Kem,*57 Mo., 478; *Wylder*v. *DeCon,*18 Minn., 470; *Webster*v. Bailey, 31 Mich., 36; *Roseman*v. Howland, 43 Cal., 111.)

In *Rawlins*v. *Wickham*(Law Jour. 28, N. S., Equity, 188) the vice chancellor said:

> “ It has been urged that the means of verifying the representations which were unquestionably made to the plaintiff were open to the plaintiff. But that is no defense against a charge of misrepresentation. It frequently happens in cases of this nature that the means of ascertaining the truth are within the power of the complainant, but it has never been held that in order to entitle him to rescind his contract he is bound to show that he resorted to all the means of information in his power. The very motive of misrepresentation is to check inquiries of this nature.”

The case of *Webster*v. *Bailey (supra)*is particularly applicable in the decision of this case. That was an action to *357rescind a sale of real estate on the ground of misrepresentation as to its value, and there as in the case at bar, the injured party was told to go and look at the land himself (it being some distance from the place where the bargain was concluded) and was promised that he would have his expenses paid if he did not trade, but was to pay them himself if he did trade. He did not go and examine the lands himself, but relied upon the representations made to him. In affirming a decree rescinding the sale, while discussing the question of intent, Campbell, J., said: “ The effect of the false impression so created is in equity equivalent to that of fraud whether designedly fraudulent or honestly mistaken.”

The warranty in this case was not that there were no sunken logs or different materials from those actually encountered below the site where the lock was to be built, but it was a warranty that the drawings disclosed all that the Government knew and thereby the plaintiffs were induced to make no investigations for themselves upon this subject and hence to make a lower bid to perform the work than they otherwise would.

In conclusion, from the foregoing it is hardly necessary for me to say that from the facts as determined in Finding IV, I am of the opinion that the claimants are entitled to recover the sum of $6,150 in addition to the judgment as alloAved.