#### THE SNARE & TRIEST COMPANY v. THE UNITED STATES.

[No. 28034.

Decided May 24, 1915.]

*On the Proofs.*

The plaintiff entered into a contract with the Government for the construction and delivery of a steel caisson or boat gate for Dry Dock No. 2 at the United States Navy Yard, New York. Before the delivery and acceptance by the Government the said caisson sank, and the defendants contract to have it raised without delay and charged the cost thereof to the plaintiff, to recover which this suit is brought.

I. Where the contract imposes upon the contractor the duty of making the caisson in such a way as to meet a certain test, the caisson remained the property of the contractor until such requirement was met.

II. Where the defendants voluntarily contracted to raise the caisson, property of the plaintiff, thereby saving' to the plaintiff the benefits of its contract, the defendants can only charge against the plaintiff what it would have reasonably cost the plaintiff to do said work.

*The Reporter’s*statement of the case:

The facts found to be established are sufficiently stated in the opinion of the court.

*Mr. E. 0. Brandenburg*for the plaintiff. *Brandenburg & Brandenburg*and *Mr. G. W. De Knight*were on the brief.

*Mr. W. F.*Norris, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

Per Curiam:

The findings in this case exhibit a situation wherein it is impossible to fix responsibility for the sinking of the caisson upon either the claimant or defendants. The accident was the result of careless handling of the machinery of the caisson by agents of both parties to the contract acting entirely outside the scope of their authority and without the knowledge or consent of either the claimant or defendants. It was, in fact, an intermeddling with the machinery of the caisson which the parties doing it did not understand, all this taking place without waiting for the arrival of the au*371thoritative agents of the parties, and the doing of which has not been directed or authorized by the proper parties.

The contract imposed upon the contractor the duty of making the caisson in such a way as to meet a certain test. Until this requirement of the contract was met the caisson remained the property of the claimant. It was the property of the claimant at the time it sank, and no obligation rested upon the defendants to raise it to the surface. The defendants voluntarily assumed the duty; and without notifying the claimant until after they had contracted for raising the machine assumed a liability to pay a wrecking firm for doing the work $2,000. The claimant, it is true, made no protest against what was done, nor was it required so to do in view of the fact that responsibility for the accident was then unknown and the contract to raise it had been made. The defendants in this view of the case can not charge the claimant the full sum paid by them under the contract they made to raise the caisson if from the record the court ascertains said amount to have been unreasonable. The claimant did not object to raising the caisson, and it appears from the record it could have done so at a cost not in excess of $1,000. We believe under the contract and the circumstances of the case the claimant must have raised the caisson or lost the benefits of its contract, that the claimant could have raised it for $1,000, and that the sum paid by the defendants was unreasonable to this.extent. The defendants having voluntarily raised the caisson can recover no greater sum.

Judgment is accordingly entered in favor of the claimant in the sum of $1,000. It is so ordered.