#### LEWIS B. SMOOT v. THE UNITED STATES.

[No. 29903.

Decided June 2, 1913.

*On the Proofs.*

The claimant has a contract to furnish *‘‘140,200 cubic yards, more or less,"*of filter sand for a filtration plant in the city of Washington. During the progress of the work he receives an order from the engineer in charge, giving various directions as to places where sand is to be delivered and the quantities. The total amounts supplied amounted to 157,'725 cubic yards. In the same letter he is admonished that he is behindhand in his deliveries and that the penalties of the contract will be enforced in future. He erects an additional plant, which is never used. Subsequently the officer in charge so modifies the directions of the letter that no additional sand is 'required. The claimant alleges that he is entitled to recover for the additional expenses caused by the letter and for the profits which he would have made if he had been permitted to deliver the additional quantity of sand, amounting to 21,506 cubic yards.

I.Where an additional plant had apparently become necessary because of the contractor’s tardy deliveries of building sand and as a means for carrying out the contract with greater certainty, the cost was a proper and necessary expense to be borne by the contractor.

II.A letter from an engineer in charge to a contractor, which is merely a designation of quantity and shows only the quantity which the officer thinks may be necessary for the completion of the work, and which at the same time directs the method of delivery, is not a contract and may be modified at any time before delivery; and the contractor can not recover profits if the quantity actually required was less than the quantity indicated in the letter.

III. Where a contract expressly provides *“If the amount of work in (my*class *is increased, such increase shall be paid for according to the quantity actually done and at the price specified for such work under the contract,”*the provision must govern and the engineer officer in charge can not create another and additional liability not governed by this clause.

IV. Where an engineer officer in charge is authorized by the contract to designate a plan of operations for the convenience of all the contractors engaged upon a certain work, a letter directing such operations is not to be taken as a contract contemplating a modification of the original contract.

*428
      *The Reporters’*statement of the case:

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

I. Heretofore, to wit, on the 4th of April, 1903, Lieut. Col. A. M. Miller, Corps of Engineers, United States Army, for and on behalf of the United States, entered into a written contract with the claimant, Lewis E. Smoot, which contract was by its terms subject to the approval of the Chief of Engineers, by which claimant was to furnish and deliver in place in beds at the Washington filtration plant 140,200 cubic yards, more or less, of filter sand, at $2.65 per cubic yard, which said contract in its entirety is made a part hereof, and a copy of which is annexed to the petition herein and marked “ Exhibit A.” Said contract as provided therein was duly approved in writing on April 20. 1903, by G. S. Gillespie, Chief of Engineers, United States Army.

II. Said filter sand was to be deposited in 29 beds, and the defendants agreed to cause to be done all necessary work to construct said beds in condition ready to receive said filter sand.

III. On July 15, 1904, claimant was notified in writing by Lieut. Col. Miller that he would be prepared to receive gravel and sand in place on August 1, 1904, and requested him to make arrangements to begin delivery by that date.

Claimant proceeded with the execution of said contract and delivered in place during the month of August, 1904, 1,260 cubic yards of filter sand, in the month of September, 1904, 1,540 cubic yards, in the month of October, 1904, 4,920 cubic yards, in the month of November, 1904, 10,520 cubic jrards, in the month of December, 1904, 2,420 cubic yards, and in the month of January, 1905, up to and including the 3d day, 276 cubic yards, making in all up to said last-mentioned date 20,936 cubic yards of filtered sand delivered in place.

IY. Prior to making of the contract herein the Government had employed Allen Ha sen as a consulting engineer to prepare the specifications for the work on the filtration plant and to advise the Government officer in charge of said work from time to time during its progress.

*429In the original specifications prepared by said Hazen the quantity of filter sand to be put in the 29 beds was required to aggregate 140,200 cubic yards, more or less, after settlement with water upon it for one week, and said specifications were used in the first advertisement for bids for the work; but all bids thereon were rejected.

In the second advertisement for bids, under which this contract was made, the same specifications were used, requiring the same aggregate quantity of 140,200 cubic yards, more or less,, for the 29 -beds, but the words “ after settlement one week with water and with the filter in operation ” were stricken out without the knowledge of the said Hazen, and as so modified said specifications were attached to and made a part of said contract.

The physical effect of this change in the specifications was to reduce the aggregate quantity of sand from that required by the original specifications prepared by said Hazen to the extent of the compacting or shrinkage that would ensue from settlement with water.

V. In October, 1904, a discussion took place between the consulting engineer, Allen Hazen, and Edward D. Hardy, a civil engineer who was assistant to Oapt. William P. Wooten, then temporarily in charge of the.work, at which claimant was present, concerning the change in the specifications as originally prepared by said Hazen and the necessity for an increase in the quantity of sand to be furnished over and .above that specified in the contract sufficient to cover the amount of shrinkage which would ensue after settlement with water, so as to bring the total quantity up to the requirements of said original specifications, which provided for measuring the quantity after settlement. At that time Mr. Hazen suggested 1 inch per foot and 1 inch additional for each bed as an approximation of the increase necessary, and a computation was made on that basis,«but no definite decision or determination was then arrived at as to the quantity and no agreement was reached nor contract of any kind made. Capt. Wooten, while.still in charge of the work, was informed by said Hardy of said conversation of said Hazen in regard to the increase in the quantity of sand.

*430At the time of the suggestion made by Mr. Hazen and at the time that Capt. Wooten was informed of the conversation between Hazen and Hardy in the presence of the claimant, the supply of sand furnished by the claimant was very small. The conversation between the parties was general and related to the possibilities and probabilities of a change respecting any increase at all over the 140,000 cubic yards, more or less, mentioned in the contract, and had reference to the element of shrinkage, for which provision was not made in the new specifications. The increase actually recommended by Hazen when the exact amount was fixed after April 18, and upon which the Government acted, amounted to 1 inch per foot and 1 inch additional to cover all emergencies. The increase provided for 17,000 cubic yards on the basis mentioned. No definite increase was decided or fixed upon until Mr. Hazen, the consulting engineer to whom the matter was referred,'had made his report.

YI. On November 30, 1904, Lieut. Col. Smith S. Leach. Corps of Engineers, United States Army, the engineer officer in charge of the work under said contract, wrote to claimant that the time limit upon the contract would be waived, on behalf of the United States, for a reasonable time.

VII. By the 3d of January, 1905, 15 of the 29 beds were completed ready to receive sand. Some time prior thereto, said Hazen not having made any more definite or precise statement of the exact amount of sand to be required, said Hardy made computations upon the basis of said Hazen’s recommendation, and he and Lieut. Col. Leach, the engineer officer in charge, estimated the approximate aggregate quantity of sand to be required. On said date Lieut. Col. Leach wrote to claimant directing him to complete the deliveries of sand in said 15 beds by May 15, by placing in the same 70,000 cubic 3>ards of sand in addition to the 20,936 cubic yards then in place in said beds, making the total requirement for said 15 beds 90,936 cubic yards. To this letter claimant replied on January 5, to the effect that his plant had a capacity amply sufficient to maintain the delivery inquired except under very unfavorable weather conditions when the freezing water prevented him from getting the sand as clean as required, and that he had already taken *431steps to build another plant of the same capacity, which he said would not be very expensive.

VIII. The total deliveries of sand in place by claimant up to and including January 31, 1905, aggregated 25,270 cubic yards, and from February 1 to 17, 1905, both inclusive, claimant delivered 2,961 cubic yards, making a total of 28,231 cubic yards of sand delivered and in place on February 17, 1905, on which date Lieut. Col. Leach, the engineer officer in charge of the work for the United States, wrote to claimant the following letter:

“ Subject: Filtration plant, February 18, 1905.

“ Ukited States Engineer Office, ,

“ 1000 22nd St. NW.,

“Washington, *D. G., February 17,1905.*

“ Mr. L. E. Smoot,

“ *Foot of 3rd St. SE., Washington, D. O.*

“ DeaR Sik : Having in view the systematic and orderly sequence of work on the Washington Aqueduct filtration plant from the present time until its completion, and for the purpose of so regulating its progress as to enable each of the contractors engaged on the work to prosecute his particular part to the best advantage and with the greatest energy, with a minimum of interference by the presence or operations on his ground of other contractors, I have laid down a general program of work to be done during each of the months from now on, of which program the portion relating to your particular contract is as follows:

*February and March.*

Filter stone, complete beds 15, 16, 17_about 1,000 cubic yards.

Filter sand, complete beds 17, 18, 21, 22_about 19,000 cubic yards.

*April.*

Filter stone, complete 3, 4, 5_about 2,000 cubic yards.

Filter sand, complete 15, 16, 20_about 18,000 cubic yards.

*May.*

Filter stone, complete 1, 2_ 2,920 cubic yards.

Filter sand, complete 3, 4, 5, begin 1_ 21,000 cubic yards.

*June.*

Filter stone, complete 8, 9, 13, 14- 5,840 cubic yards.

Filter sand, complete 1, 2, 9, 14- 21,000 cubic yards.

*432
      *July.*

Filter stone, complete 6, 7, 11, 12_ 5,840 cubic yards.

Filter sand, complete 7, 8, 13, begin 12_ 21,000 cubic yards.

*August.*

Filter stone, complete 10, 25, 26, 27_ 5,840 cubic yards.

Filter sand, complete 10, 11, 12, 6_ 21,000 cubic yards.

*September.*

Filter stone, complete 28, 29_ 2,920 cubic yards.

Filter sand, complete 25, 26, 27_ 18,000 cubic yards.

*October.*

Filter sand, complete 28, 29_ 12,000 cubic yards.

“ In the program outlined above the quantity of sand going into each bed has been assumed as 6,000 cubic yards. The depth of sand varies for the different beds, but 6,000 yards is about the average. Three and one-half beds has been indicated as a month’s work. In some cases 3-J beds will require more than 21,000 cubic yards of sand while in others they will require less. In any case the yardage is the item to which especial attention must be paid, and this should in all cases be equal to that indicated in the program.

“The order in which the beds are to be filled may, with the consent, or by direction of the engineer officer in charge, be varied as may later be found necessary or desirable.

“ Where particular localities are named for work, as, for example, in beds of specified numbers, the right is reserved to require an equal quantity of work during the same month in a different locality, but this right will be exercised with great reserve, and only when'it is manifest to the engineer officer that no hardship will result to the contractor from the change.

“ You are required to take notice that the quantities of work, and, unless otherwise ordered, the locations of the same above scheduled for the several months, will be rigorously exacted as a minimum, and any failure on your part to perform in any month the quantity of work stipulated for that month will be considered by me as sufficient cause for the exercise of the right reserved to the United States in paragraph 37 of the specifications to the contract to purchase needed materials in the open market; of the discretion given me in paragraph 39 of the specifications to suspend monthly estimates and payments; and the right conferred upon me in paragraph 41 of the specifications, after five days’ notice, to annul the contract and take possession of your plant, and so forth, at a rental valuation to be determined by myself.

*433“ A program for the work to be done by the United States has been arranged in harmony with those laid down for the several contractors, and all the programs are so arranged that any of the contractors can do more than the amounts laid down for them without interfering with the others, but they can not do less.

“ Very respectfully, “ Smith S. Leach,

*“Lieut. Colonel^ Corps of*Engineers.”

The amount of sand specified by this letter was 151,000 cubic yards in addition to that already in place, which would have made a total of 179,231 cubic yards. There was actually furnished by the claimant and used on the work 157,725 cubic yards, or 21,506 cubic yards of sand less than what was specified in the letter. Deliveries were commenced in August, 1904, and were completed the latter part of October, 1905.

The total profit of claimant on the contract, exclusive of the new plant, was $215,858.39.

IX. In the fall of 1904 the claimant contemplated and thereafter began to make preparation and plans for the construction of an additional plant at Laurel, Md., for screening and washing the sand. The erection of this additional plant was commenced on February 24, 1905, and finished May 30, 1905. The additional plant was not used for furnishing the sand specified in the contract, nor for any part of that which was in fact furnished by claimant.

On or about March 7, 1905, the Government engineers in charge of the work devised a system of night inspection, whereby claimant’s plant was enabled to run at night as well as during the day. This was done in compliance with the request of claimant that he be permitted to run his plant at night. The plant was run night and day during the months of March and April, 1905. The output of the plant was more than doubled during those months. At the end of the two months it was not found necessary to run the plant night and day, as the claimant had caught up with the other contractors on his deliveries and there were not sufficient beds in readiness to receive the sand. Thereafter the plant was run only during the day,

*434This system of night inspection devised by tbe Government engineers in charge of the work did not fall within their regular duties and was instituted by them solely for the claimant’s benefit to enable him to secure more prompt and efficient deliveries and to insure the completion of the filtration plant in the requisite time. It was owing to the system of inspection, which enabled the plant to run at night, and the increased efficiency of the workmen in the spring and summer of 1905 which enabled the claimant to catch up with his deliveries and keep up with the same.

At the time of the erection of the duplicate plant it was necessary that deliveries per month should be increased. The claimant had been far behind in his work, and as early as the fall of 1904 the Government engineers had been complaining of his insufficient deliveries. At that time and on numerous occasions thereafter, the claimant suggested that he expected to erect a duplicate plant, and he frequently promised the Government engineers to build this additional plant so as to increase his output. The construction of this duplicate plant was begun and completed in accordance with these promises to the Government engineers and to provide the means of securing increased deliveries.

This duplicate plant was not erected solely for the purpose of furnishing the 21,506 cubic yards of additional sand. The duplicate plant was erected to provide for such increased deliveries per month as were necessary under claimant’s contract. After the erection of the new plant it was found that claimant’s old plant was sufficient to make proper deliveries under the system of night inspection and the increased efficiency of claimant’s organization on the work. It was not found necessary to have recourse to this duplicate plant to complete the proper deliveries and the duplicate plant was not used.

N. The actual and reasonable gross cost of the labor and material employed in the construction of said new plant was $12,501.71, and after deducting the value of all materials' sold or on hand and fit for use the net cost of the plant to the claimant amounts to $9,888.04, which amount became a loss to claimant.

*435XI. No action appears to have been taken by Mr. Hazen from October, 1904, until April 18, 1905, with reference to fixing definitely the precise amount of the increased quantity of sand to be supplied by claimant. On the last-named date he made his report to Lieut. Col. Leach fixing the aggregate amount of sand to be supplied at about 157,000 cubic yards. This report was approved and adopted by Lieut. Col. Leach and his subordinates were instructed to carry out the terms of same. Claimant was not notified of the terms of said report as to the aggregate quantity of sand to be supplied until May 29, 1905, when he was orally informed by Col. Leach. He immediately entered a protest to the engineer officer in charge against what he claimed was a reduction in the quantity of sand and insisted upon his right to supply the whole quantity ordered in said letter of February 17, 1905, and he tendered himself ready and willing to furnish same. Said protest was disregarded by the engineer officer in charge and claimant was only permitted to supply 157,725 cubic yards. Claimant had an abundant supply of sand of the kind required and ample facilities for delivering in place within the time prescribed by the order of February 17,1905, the entire quantity required by said order.

XII. The claimant’s total profit per cubic yard on sand delivered in place under this contract, including the cost of the duplicate plant, was $1,305.

The total profit per cubic yard on sand delivered in place under this contract, exclusive of the cost of the duplicate plant, was $1,368.

The net profit which claimant would have made had he been permitted to furnish an additional 21,506 cubic yards of sand under the contract would have been, in the one case $28,065.33 and in the other case $29,420.20.

*Mr. William G. Johnson*for the claimant:

In the consideration of this case a very important fact must always be kept in mind, namely, that at the time this contract was entered into there were necessary elements of uncertainty about its physical execution. This uncertainty was not in the plan, for that had been finally adopted and the whole scheme was shown in a set of twenty-three *436plans, as set forth in the forty-fifth paragraph of the specifications. The uncertainty was as to the quantity of labor and materials entering into its completion. Even the number of beds was not absolute — whether there should be twenty-four or twenty-nine. This is shown by the forty-sixth paragraph of the specifications, which states that—

“ The complete plant as shown by the plans includes 29 filters, with net areas of about one acre each. Of these filters 1 to 24, inclusive, shall be built first.”

It then provides that initial preparation for filters 25 to 29 shall be made, but that these five additional filters shall not be built unless—

“ the same shall be ordered in writing by the engineer officer in charge, at least two months before the completion of the masonry in filters 1 to 24, inclusive.

It also states that—

*“*in case the contractor is ordered to build the remaining filters under these specifications, an additional nine months shall be allowed for their completion after the time provided for the completion of the rest of the work.”

So that here was work of all classes covering 5 acres that might or might not be executed, whether it would or not depending on the decision of the “ engineer officer in charge.”

Many other features rendered exact estimates of quantity impracticable; so the twentieth paragraph warned bidders that the estimates were only approximate and that they must be prepared for variations, either absolute or relative. The defendant’s agents evidently considered it necessary, at that stage, to reserve this right. But it was essential that this indefiniteness must at some time be reduced to certainty, and the “ engineer officer in charge ” was the one authorized to give that definiteness to the contract, and in the general conditions it is provided, in paragraphs 28 and 29,'that the contractor shall not be allowed to take advantage of errors or omissions in the specifications, as “ full instructions will always be given,” and “ the decision of the engineer officer in charge as to quality and quantity shall be final.”

*437On February 17, 1905, Col. Leach, the “engineer officer in charge,” gave “full instructions” and fixed the quantity of sand to be supplied and notified claimant, in the most emphatic terms, that the “ quantities ” specified would “ be rigorously exacted as a minimum.” This order removed all elements of uncertainty and the claimant had no recourse than to proceed as ordered.

It is respectfully submitted that the defendant has committed a plain violation of its contract to the damage of claimant, and that claimant is entitled to recover.

*Mr. Franklin W. Collins*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Howry, J.,

delivered the opinion of the court:

Plaintiff entered into the contract with defendants, set forth as an exhibit to the petition, whereby he was to furnish to the defendants 140,200 cubic yards, more or less, of filter sand deliverable and put in place in the beds constructed for a filtration plant established by the United States for the purpose of filtering the water supplied by an aqueduct for the city of Washington and District of Columbia. Two demands are set forth in the petition. The first item to be considered is for an alleged outlay and the amount of expenditures, shown by the findings to be $9,888.04, arising out of the construction of an additional plant including expenses incurred in the purchase of machinery and tools to carry out certain alleged requirements for an excess quantity of sand under an order appearing in the record.

The second item of the claim is for the net profits, amounting to $29,420.20, which plaintiff says he would have realized had he been permitted to supply an additional 21,506 cubic yards of sand. The contract was approved April 20, 1903.

The total profits of plaintiff on the contract, exclusive of the additional plant and profits claimed on sand not delivered, were $215,858.39. It took plaintiff about 14 months to complete the work and realize from time to time the profits made by him. That he was fortunate in securing a contract almost under the dome of the Capitol upon which he realized so handsomely affords no reason why he should not be reim*438bursed for the cost of the additional plant and for profits on the sand not delivered (but which he claims he should have been permitted to deliver), if by any fair interpretation of the whole agreement he is entitled to be paid more than he actually received. But these are questions now to be considered in the light of the findings.

As to the first item, the original plant was completed and deliveries under the contract commenced in August, 1904. The construction of the additional plant was commenced on February 24, 1905, and finished May 30, 1905. The last delivery of sand under the contract was in October, 1905, one day previous to the time in which the sand was required to be supplied. The contention of the plaintiff is that this additional plant was made necessary by an order in the form of a letter of the engineer officer in charge and was not necessary to the furnishing of sand under the contract. This order of the engineer officer was' subsequently verbally modified, and the additional plant was not used because not necessary. This letter, dated February IT, 1905, was transmitted to the plaintiff and contained a specified program for the deliveries of sand under the contract. Plaintiff’s further contention is that this letter was binding upon the defendants and constituted such part of the contract that the subsequent modification could not relieve the defendants from its terms. In other words, the contention appears to be that the additional plant was erected to fulfill the requirements outside the contract set forth in the letter as something independent, and that he was damaged by the subsequent modification of the terms of the letter.

The evidence does not establish the fact that this additional plant was built solely for the purpose of taking care of the deliveries of the additional quantity of sand set out in the letter. The findings do disclose that up to the month of February, 1905, plaintiff’s monthly deliveries of sand had been very inadequate. Frequent complaint had been made to plaintiff by the defendants’ officers, and he had been urged from time to time to increase his deliveries, lest the Government would be damaged by the failure of the plaintiff to comply with the contract. By way of meeting the require*439ments of the defendants’ officers, plaintiff promised to increase his deliveries of sand per month, and as an evidence of his intention to carry out his undertaking according to contract he began the erection of the additional plant. The findings show that as early as the autumn of 1904 plaintiff actually contemplated the erection of the additional plant by telling the defendants’ engineers of his intention. It seems to the court that the erection of the additional plant was the means taken by the plaintiff to insure proper deliveries under his contract. But by a fortunate chain of circumstances plaintiff was enabled to complete his agreement with the output of his first plant, thereby rendering unnecessary the use of the additional plant. The contributing causes of this increased output from the old plant grew out of the better organization of the working force and the operating of the old plant at night for the months of March and April, 1905. It is apparent that at the dime the additional plant was erected the situation relating to deliveries of sand was so uncertain that the engineer officer in charge gave formal notice to the contractor by the letter of February IT, 1905, that the contract would be forfeited or penalities imposed if deliveries were not made more promptly.

The court is of the further opinion that the erection of the additional plant was made necessary by the slow deliveries of sand, and that in providing the means for carrying out the contract with a greater degree of certainty the construction of the additional plant was one of the proper and necessary expenses of the contract. We are therefore of opinion that plaintiff is not entitled to recover on this item.

The second item, relating to the net profits which plaintiff would have made had he been permitted to furnish an additional 21,506 cubic yards, is based likewise upon the letter of February 17, 1905, from the engineer officer. Plaintiff contends that under this letter he was entitled to deliver the full amount of sand set out in the communication, because he says it was a part of the contract. The amount of sand actually delivered in place on the work amounted to 157,725 cubic yards.

*440The letter appears to be merely a designation of quantity. It sets out the amount of sand which the engineer officer in charge thought might be necessary under the contract for the completion of the work and it also provided for the method of delivery.

Paragraph 296 of the specifications deals with alterations in the agreement. It appears that if the engineer officer in charge deemed it desirable he was authorized to increase or diminish the quantity of work to be done. The last paragraph of this section provides:

> * * * “ If the amount of work in any class is increased, such increase shall be paid for according to the quantity actually done and at the price specified for such work under the contract.”

Thus under this section, even though the engineer officer in charge designated a large quantity of work, it appears that the defendants would be resnonsible only for the amount of work actually performed.

In *Mitchell's*case, 19 C. Cls. R., 39, a contract was in issue which provided that it should be subject to the approval of both of the commanding generals of the division and of the Department of Missouri. The contract was approved by both of these parties. The court held that—

> “ It was clearly the purpose of that provision to secure to the high commanding officers a supervision over the matter and to control or prevent the making of such a contract on the part of an inferior officer if they, or either of them, saw fit to do so. When thus made the contract could not be thereafter altered by any officer inferior to those whose approval was necessary in the first place to give validity. They were officers acting for the United States in giving the consent of the defendants to the terms of the contract, and none below them in authority had a right to change the terms of their agreement.”

The court does not deem it essential to the determination of the issue on the item respecting the claim for profits on account of the increase of sand to enter into the question of the necessity of an approval by the higher officers of the Government of the alleged order. In the view we take of *441the case the matter of quantity was governed by the terms of the original agreement.

If there was any increase outside of the original contract, and a new tentative arrangement was made between plaintiff and subordinate officers who were not authorized to change the agreement, the approval of higher and superior officers became necessary before any arrangement for an increase outside of the original contract became valid.

If we take the contract and specifications together, as we must, it is clear that there was no intention of setting out specifically the exact quantity of sand to be delivered. By paragraph 20 of the specifications it was provided that the quantities given were approximate only and that no claim should be made against the United States on account of any excess or deficiency. The terms of the agreement left it uncertain whether 25 filters or 30 filters should be built by the Government; and the designation of the number of filters was left by the terms of the agreement to the discretion of the engineer officer in charge.

Plaintiff entered into the contract with full knowledge that the quantities of sand were likely to be increased or diminished to a considerable extent. *In Bulkey's*case, 7 C. Cls. R., 543; 19 Wall., 37, it was held that a certain notice did not amount to an agreement to furnish the amount of supplies specified and that a contractor could not recover the profits which he would have made had the freights withheld been furnished to him.

. In the present case we think the effect of the letter was to signify a purpose on the part of the Government that the additional quantity of sand might be needed, but that the purpose was liable to be changed at any time. “ Pluman affairs are largely conducted upon the principle of implications.” A consideration of the character of the work required to be done in the construction of this filtration plant shows the purpose. The contract provided for the completion of the work in a specified time and its several parts had been let to different contractors. As one of these contractors finished a specified portion of the work that particular piece of it was turned over to the succeeding contractor.

*442From this it will be seen that it became necessary for the engineer officer in charge from time to time to map out some tentative arrangement by which the various contractors would know what work they were expected to do and in what time.

We are of opinion that the engineer officer in charge had authority to designate a plan of operations for the convenience of all the contractors, and was the authority in writing for them to proceed with the work as directed. In itself this letter did not contemplate a change or modification of the original contract. The circumstances under which the letter was written show the reason for its delivery, because the contractor at that time was not only behind in his deliveries, but was in danger of forfeiting the terms of the agreement whereby the Government would have been justified in the imposition of penalties by further failure on the part of the contractor to make the deliveries more satisfactory. On this item, as well as on the first, we are of opinion that the claimant is not entitled to recover.

In concluding the discussion of the claim of the contractor that there was such an increased quantity of sand called for outside of the contract as to entitle him to compensation by way of profits based upon the letter, the court does not deem it of sufficient importance to the merits to do more than briefly advert to the fifth finding. That finding shows that a conversation took place in October, 1904, between the consulting engineer and the civil engineer, who was the assistant to the chief officer temporarily in charge of the work, at which claimant was present, concerning the change in the specifications as originally prepared and the necessity for an increase in the quantity of sand to be furnished over and above that specified in the contract sufficient to cover the amount of shrinkage of the sand to be supplied under the contract which would ensue after settlement with water. Plaintiff’s, counsel thinks that this finding is material as an essential part of the *res gestes*to explain subsequent acts and declarations of the contractor, because he says that if a computation was made at all there is necessarily established the further fact that some amount in figures was reached. *443As a matter of fact, no conclusion was reached with respect to the matter of any increase, for the obvious reason that the work had not, on account of the small amount of sand delivered at the time of this conference between the parties, progressed far enough for an understanding to be had on the subject. The-finding shows that no understanding was had until April 18, 1905, as to any excess amount and for which amount plaintiff was paid. Accordingly, the court excludes the attempt to prove plaintiff’s suppositions and thoughts about the matter as incompetent testimony.

Petition dismissed.