#### JOHN GEORGE DAY ET AL. v. THE UNITED STATES.

[No. 21182.

Decided February 3, 1913.]

*On the Proofs.*

The contract contains most stringent provisions making contractors “ *responsible, without expense to the Government, for the preservation and good condition of all the toorh now in place,”*etc. Before their work is done a freshet in the Columbia Biver, unprecedented in height, makes it necessary to protect the work by constructing a new and higher bulkhead a distance of 2,000 yards at the cost of $37,485.

I.Where a contract binds the contractors, absolutely, to protect the work “ *without expense to the Government*” they must do so, though the necessity be caused by an unprecedented rise in the Columbia Biver at the Cascades above the 142-foot mark, and the extent and cost of the protective work could not have been reasonably anticipated.

II.The necessity of certain protective work may have been caused by the act of God, the unprecedented rise of a river, but if it did not render performance impossible it did not relieve the contractors from their obligation to perform.

III. The language of a contract can not be deemed ambiguous where its intent harmonizes with other provisions of the contract and disagrees with none.

IV. The fact that certain unforeseen protective work was done “ by *authority of the engineer in*charge,” and the additional facts that in his annual report of the following year he recommended that the project be changed so as to bring such protective bulkhead 6 feet hjgher, which recommendation was approved by the Chief of Engineers and the bulkhead was brought up to that height, do not constitute a construction of the contract by the officer in charge which would relieve the contractors from the obligation requiring “ *the entire completion of the loch,"*and cast upon them “ *every expense of whatever nature that may anise during the progress of the worh.”*

*The Reporters1*statement of the case:

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

I. The claimants are, and at the times hereinafter stated were, citizens of the United States and the State of Cali*129fornia, and at such times they were partners in business under the firm name of J. G. and I. N. Day.

II. By the act of Congress approved July 13, 1892, entitled “An act making appropriations for the construction, repair, and preservation of public works on rivers and harbors, and other purposes,” there was a provision for the continuation of work on dam and locks at the cascades of the Columbia Biver, and an appropriation therefor was made of $326,250.

III. The project, to complete which the contract hereinafter referred to was let, was begun in the latter part of the year 1818, and was carried on by the Government under the direct charge of the Chief of Engineers of the United States Army up to the time proposals were advertised for in 1892, upon which the Government had expended over $1,850,000.

In the early stages of this work a bulkhead was constructed at the upper end of the canal site for the purpose of protecting the work from inundation. At different times during the period from 1819 to 1893 this bulkhead was raised in height and increased in strength to meet the exigencies occasioned by floods in the Columbia Biver.

Becords of the high water at the cascades have been kept since 1857. At the time the proposals were advertised for in 1892 the highest level of high water recorded was in 1876, when it reached an elevation of 139.1 feet. During a flood in 1880 it reached an elevation of 137.9 feet, and in 1882 it reached an elevation of 136.8 feet.

The project on which said work was to be done had been prepared by the engineers of the United States Army after some 15 years’ experience on said improvement. It was revised and matured by said engineers in the year 1884 after full consideration of the records of all floods in said river and with the special object that the work, while in course of construction and when completed, should be secure from flooding by the river. The work had not since that time been flooded or damaged by the river, and the project remained in all respects unchanged when the contract hereinafter referred to was awarded.

*130At the time the plans for the completion of said project were prepared the protecting bulkhead had been constructed to an elevation of 142 feet, and the plans for the completed project provided for an elevation of 142 feet for the permanent work.

IV. Under and by virtue of said act of Congress referred to in Finding II the claimants, as partners, in their said firm name did on December 27, 1892, enter into a contract with the United States, through Maj. Thomas A. Hanbury, of the Corps of Engineers, United States Army, for the completion of the work of improving said canal at the cascades of the Columbia Eiver, for which an appropriation had been made. Said contract, made part of the petition herein, provided among other things that the claimants would proceed at once to complete said canal and locks in accordance with plans and specifications made part of said contract, which had been prepared and furnished by the War Department.

Immediately on the execution and approval of said contract the claimants entered on the Government reservation at said cascades, took control of the Government plant at said improvement, and began the work of completing the same, and were engaged thereon in the months of May and June, 1894.

From the time of the beginning of said work on said canal and locks under the contract aforesaid and up to May 28, 1894, the claimants had received from the United States for their work nearly $300,000, making in all expended by the Government on said project up to that date about $2,159,000.

Y. Prior to submitting said bid the claimants had personally visited the site of the work and spent several days going over all the conditions which existed there, examining the records of the weather and the records of the gauge showing the stages of water at different times, the reports of the Chief of Engineers, including the reports of the local engineers, etc.

The local engineer in charge, Lieut. Harry Taylor, who had prepared the plans and specifications, personally conducted the claimants over the work and explained to them to the best of his ability all the conditions and features connected therewith.

*131VI. During the months of May and June, 1894, a flood occurred in the Columbia River, the water rising from 4 to- 6 feet above the highest level, or more than 3 feet above the bulkhead which had been constructed by the Government engineers chiefly ,out of dry masonry, paving excavation and embankment constructed of silt and other light materials to protect the work.

On May 28,1894, the water was rising at the rate of 1 inch per hour, and it became evident that the work would be submerged and great damage done to it unless some protection should be provided. To afford such protection and to enable them to proceed with the work under their contract the claimants, by authority of the engineer in charge, furnished the necessary materials and constructed, over a line nearly 2,000 feet long, a new and higher bulkhead and two temporary dams. The water continued to rise for some days after said work was commenced, but the work prevented the inundation of the existing structures and saved them from injury.

The time consumed by the claimants and their employees in thus protecting the work was about 10 days, about one-half of which time the work was prosecuted by night as well as by day, the claimants devoting their exclusive time thereto.

Because of said flood the engineer in charge, in his annual report of June 30, 1894, recommended that the project be changed so as to bring such protecting work 6 feet higher, or to a height of 148 feet above said line, which recommendation was approved by the Chief of Engineers and the embankment was brought up to that height.

The cost to claimants for this emergency work, exclusive of their own time and services, was $37,465.35, and a reasonable profit on said work to the contractors would be 10 per cent, or $3,746.53, while the value of the services of the claimants therefor, if entitled to recover, was $500, or in all $41,711.88.

*Mr. Benjamin darter*and *Mr. F. darter Pope*for the claimants:

This is purely and simply a claim for money due from the United States under an implied contract. Some 16 years the Engineer Department of the Army had been at *132work on a dam, with locks, around the Cascades of the Columbia River, expending something over $1,850,000 on the project. The design called for walls 142 feet high, .measuring from a base line assumed to be the level of the sea. This figure had been fixed on because it was supposed to safeguard the structure from all danger of overflow, the river, so far as known, never having risen at any flood more than 139.7 feet above the same line. During this work of construction a bulkhead, for protection against floods of the river, had been built around the site of the work to this height of 142 feet. This claim had its origin in a flood of the river reaching the level of 145.7 feet from the same base line, and labors and expenditures of claimants, requested and directed by the responsible engineer officers of the Government, by which the structure was saved from inundation.

The liability of the United States to compensate claimants for this service would hardly be disputed but for the accident that they held a certain other relation to the same improvement. Under a change of policy of the War Department they had been awarded a contract for continuation of this work, and they had been engaged on the work until a few weeks before this unprecedented flood, what they had accomplished being estimated by the Government engineers at some $300,000. The engineer officers did not consider that claimants were liable for any consequences of the flood to the work the Government had done, but a different view has been taken in this case by counsel for the Government— the view, that is to say, that this protection from flood was ©ne of the things for which the Government contracted with claimants. A demurrer on this ground was interposed to the original petition.

We respectfully submit that the only obligation assumed by claimants in their contract, beyond the placing of materials at the prices named, was to see that the existing works, including the bulkheads, should not be damaged by incidents of their own operations, by trespasses of strangers, &r by rain, snow, or ice falling or forming on them. We assert, moreover, that, except for the facts that the Government had and was itself caring for, when the contract was *133let, an extensive and costly plant on this reservation, in addition to the structures that it had partially completed, and that the partly completed work was of such kinds as to be greatly damaged by rain or snow, the contract and the War Department records themselves furnish all the evidence necessary to exempt claimants from liability to repair flood damage.

The court, of course, for its interpretation of this contract between claimants and the United States, will merely inquire what the Government engineers and the claimants had in mind; and there is not one word in these three extracts from the contract to suggest that there was any thought whatever of the flooding of the site of the work. The words “ flood,” *“*freshet,” “ inundation,” or any equivalent of either of them, will be sought in vain in the contract. Where the word “ protection ” is used it relates solely to the slopes, which necessarily would be highly destructible until the retaining masonry was completed. We find that the contractors were held responsible for the “ preservation and good condition of all the work now in place,” as well as that which they should add, and the property of the United States on the ground. In view of the large investment of the United States, including locomotive engines, railroad track, and other appliances, and the soft and perishable condition of the structures and excavations that had been accomplished, the engineers would have been negligent of their duty if they had not taken this precaution. But this is all they did. Even though there was no proof before the court of the existing conditions, it would be recognized that. *“*preservation and good condition ” are not the words one would use with reference to an anticipated flood. “ Preservation ” is a term that men employ when they are thinking of some constant, or recurring, and certain cause of injury, such as the fall of rain or snow, the daily visits of irresponsible outsiders to an exposed site of an interesting improvement, and the little casualties necessarily incident to the continuation of the work. “ Protection of the work ” would have been an apter phrase with reference to a flood; but this itself could hardly be construed to include flood damage if *134the word “ flood ” or some synonym were not- also employed somewhere in the contract.

The word *“*weather,” in the third paragraph of the specifications, has no relevancy to this inquiry. This paragraph relates entirely to the probable expense of prosecuting the work, and that would not necessarily be $1 more in the case of a freshet, such as was to be expected in that country, than in the case of continued rainfall not heavy enough to cause a freshet.

It will be as reasonable to include an earthquake in the interpretation of this word “ weather ” as to include a breaking down or overflowing of the protecting bulkhead. An earthquake, moreover, was as well within the probabilities of the case as was that great flood which did occur in 1894.

There is no suggestion whatever that the bidders should calculate on an inundation of the project, no more than if the latter had been a lighthouse to be built on an island a hundred feet out of reach of the water, but remote from markets where the materials might be bought.

We see now that it is the Government’s acquittance from liability for the work in question, not claimant’s demand, which would require that *“*flood,” “ overflow,” or like words be written into the contract. But if the contract had contained such words, the court would be called on to determine what these signified in the circumstances of the case; and the court would find, we do not doubt, that the parties contemplated nothing more than backwater, and possible erosion of the upper bulkhead, from floods which should not transcend the record of some 139 feet. In this view of the case, the decisoin in Chicago, *Milwaukee & St. Paul Railway Company*v. *Hoyt*(149 U. S., 1), cited in the Government’s brief on the demurrer to the original petition, is pertinent, and also the cases below: *Reed*v. *Ins. Co.*(9 Wall., 23); *Rockefeller*v. *Merrill*(76 Fed. Bep., 913); *Kauffman*v. *Reeder ei al.*(108 Fed. Bep., 171); *Fox*v. *Tyler*(109 Fed. Bep., 258); *Western Hardware Co.*v. *Bancroft-Charnley Steel Co.*(116 Fed. Bep., 176).

Undoubtedly what Mr. Justice Jackson intended to say in Chicago, *Milwaukee & St. Paul*v. Hoyt, to define the con*135tingency which, does not excuse nonperformance of an undertaking is that “ the impossibility ” *was “*anticipated and ” might have been “ guarded against in the contract,” for the construction of a contract turns on what the parties did anticipate or contemplate, if that can be convincingly shown, rather than on what they might, through some gifts of imagination, have anticipated. In this case, however, no reasonable man could have anticipated any such flood as that which actually occurred in 1904, and that catastrophe would have been outside the scope of the word “ flood ” if the contract had contained the word.

It is an old and salutary rule, especially applicable to contracts drawn in the Government departments, on forms evolved for the best interest of the United States, that where a contract has been written by one party and merely subscribed by the other, all ambiguities will be resolved adversely to the author. *(Noonan*v. Bradley, 16 U. S., 394; *Garrison*v. *The United States,*7 Garrison, 688; *Gante,*v. *The District of Columbia,*18 C. Cls. Ih, 569; *Otis*v. *The United States,*20 C. Cls. B., 315; *Livingston*v. *Arrington,*28 Ala., 424; *HUI*v. *John P. King Mfg. Co.,*79 Ga., 105; *Barney*v. *Newcombe,*9 Cush., 46; *Schmol*v. *Fiddich,*34 Ill. App., 190; *Bandel*v. *Chesapeake & Del. Caned Co.,*1 Gar., 151.)

Under thes.e authorities the contract must be so interpreted as to acquit claimants of all responsibility to save the existing work from submergence or to repair the damage done by such submergence.

Another old and sound rule of law is that, if there be any ambiguity in a contract, the courts will defer to that construction which the parties themselves, in acting under the contract, have put on it. *(Topliff*v. *Topliff,*122 U. S.; *Gallagher*v. *The District of Columbia,*19 C. Cls. B., 564; *Hull C. <& C. Co.*v. *Empire C. <& C. Co.,*139 F. B., 632; *Fitzgerald*v. *First National Bank,*114 F. B., 474; *State Trust Co.*v. *Duluth,*104 F. B., 632; *Gronstadt*v. *Withoff, supra; Jackson*v. *Perine,*35 N. J. L., 137; *Ganser*v. *Fireman’s Fund Ins. Co.,*38 Minn., 74; *Stone*v. *Clark,*1 Met., 378; *Colemcm,*v. *Grubb,*23 Pa. St., 393 (p. 409); *St. Louis Gas Co.*v. *St. Louis,*46 Mo., 122; Lyles 1. Licher, 7 West. Bep. (Ind.), 51.)

*136*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney General J ohn Q. Thompson)*for the defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

The question for decision is whether under the contract and specifications made part thereof the claimants were thereby obligated to preserve in good condition without expense to the Government all work then in place; and in respect of the work to be done bidders were advised by paragraph 40 of the specifications that it was *imperatively*necessary for them to “ visit the locality of the proposed work and obtain, from personal investigation, the information necessary to enable them to make intelligent proposals,” of which personal investigation they were to advise the Government in their letter transmitting their proposals. This was done.

Paragraph 2 of the contract provides that “ the party of the second part shall furnish such labor and material in place, and do such work, and discharge such other obligations connected therewith prescribed in the forementioned specifications, as may be necessary to complete the work of ‘Improving canal at the cascades of the Columbia River, Oregon.’ ”

Paragraph 45 of the specifications provides that “the contract to be entered into will include all excavations and dredging, including the removal of the bulkheads, masonry, filling behind walls, grading and protection of slopes, the placing of irons, the construction of the gates and operating machinery, in short, the entire completion of the lock ready for use, as shown by the drawings and set forth in these specifications.”

Paragraph 149 of the specifications provides:

> “ 149. *Responsibility for property.*— The contractor will be held responsible, without expense to the Government, for the preservation and good condition of all the work now in place, and such as-he may from time to time under this contract put in place, until the termination of the contract, or until the whole work is turned over to the Government in a completed condition, as required. This to include all material of every description on which full or partial payments have been made and all property belonging to the United States in the possession or control of the contractor.”

*137Paragraph. 152 of the specifications provides:

> “152. The contractor’s prices for the various items shall cover all costs of preparation for work, all costs of the materials and appliances in place, all transportation, preservation until termination of contract, and every expense of whatever nature which the United States would otherwise have to pay that may arise during the progress of the work or continuance of this contract, except contingencies for engineering and superintendence by the agents of the United States.”

Such are the material and controlling provisions of the contract and specifications.

The substantial facts found are that in May and June, 1894, while the work was in progress, a heavy flood arose, the water rising'in the river at the rate of an inch per hour until it finally reached from 4 to 6 feet above the highest known level, by reason of which it became necessary to protect the work then in place, which was done by the claimants, as averred, under the authority of the engineer in charge, by constructing a new and higher bulkhead over a line nearly 2,000 feet long and two temporary dams, at a cost to them, exclusive of any profits or of any compensation to them for services, of $37,465.35. Hence this action.

The work on the project, to complete which the contract herein was let and upon which the Government had expended over $1,850,000, was begun in 1878, and was continued under the direct charge of the Chief of Engineers, United States Army, until the advertisement for proposals in 1892, from which resulted the contract with the claimants herein.

The original project, the work of the engineers of the United States Army, was revised by them in 1884 with reference to the records of floods to that date; and protecting bulkheads had been constructed by the Government to an elevation of 142 feet, that being the elevation provided by the plans for the completed work. The project so revised was unchanged at the time the contract herein was awarded.

The defendants’ contention is that by the terms of the contract and specifications the claimants were bound to protect the work then in place, though the flood should exceed *138the elevation of 142 feet; while the claimants’ contention is that as the project and plans contemplated an elevation of 142 feet at the time their contract was awarded, the work of protecting the bulkheads by increasing the elevation to 148 feet was outside the contract, for which the Government is liable upon an implied contract on *quantum meruit.*

The defendants base their contention on the paragraphs of the contract and specifications set forth, which obligated the contractor to furnish all the labor and materials necessary “ for the entire completion of the lock ready for use,” in the doing of which the contractor, without expense to the Government, was to “ be held responsible for the preservation and good condition of all the work now in place, and such as he may from time to time under this contract put in place, until the termination of the contract, or until the work is turned over to the Government in a completed condition, as required.”

The act authorizing the continuance of the improvement of the canal of the cascades, as its title indicates, was “ for the construction, repair, and preservation of certain public works on rivers and harbors,” of which the claimants were bound to take notice.

It is apparent from the findings that as the work embraced within the claimants’ contract was for the completion and preservation of the work under the project, they could not have completed the work under their contract without preserving as they did the bulkheads theretofore constructed by the Government for the protection of the work.

The question, therefore, is, Was the work performed within the contemplation of the parties when they entered into the contract? The project, which had long been.matured, coupled with the claimants’ knowledge of the flood levels prior to the date of the contract, would at first seem to exclude the work from the contract. On the other hand, the claimants were bound to take notice of the uncertainty of floods, and if they had desired protection against the same, provision therefor should have been made in the contract; and not having been so made, and the doing of the work necessary “ for the preservation and good condition of all *139the work now in place ” being authorized by the act and embraced within the terms of the contract, the ordinary rules applicable to voluntary undertakings without qualification must be held to apply. That is to say, as was early held in the case of *Dermott*v. *Jones*(2 Wall., 1, 7):

> “ It is a well-settled rule of law that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.”

In the later case of *Chicago, Milwaukee & St. Paul Railway Co.*v. *Hoyt*(149 U. S., 1, 14), the rule was stated thus:

> “ There can be no question that a party may by an absolute contract bind himself or itself to perform things which subsequently become impossible, or pay damages for the nonperformance, and such construction is to be put upon an unqualified undertaking, where the event which causes the impossibility might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor.”

In the case of *Jacksonville, etc., Railway Co.*v. *Hooper*(160 U. S., 514, 527), and again in the case of *United States*v. *Gleason*(175 U. S., 588, 602), the same doctrine was announced; and so this court, in the case of *Satterlee*v. *United States*(30 C. Cls., 31, 51), in considering the same subject, said:

> “ If the law casts a duty upon a party, the performance will be excused if by the act of God it becomes impossible; but if a party engages to do something and fails to provide against contingencies the nonperformance is not excused by a contingency not foreseen and which by its consequence increases the cost and difficulty of performance. (Chitty, Contr., 272; 7 Mass., 325; 13 Mass., 94; *Chicago R. R. Co.*v. *Sawyer,*69 Ill., 285; Am. Rep., 613).”

It is unnecesary to further cite authorities in suport of a rule so well settled.

The most that can be said in the present case is that by reason of the rise of the water in the river above the elevation of 142 feet the claimants were put to much greater expense in the performance of their contract than they would *140have been had the flood not occurred. This may be a hardship, but it is one against which the claimants might have guarded by a proper provision in the contract.

The work, though necessitated by the act of God, was not thereby rendered impossible of performance. Hence, the work having been done, it can not 'be held that the flood rendered performance impossible. That the event might have been anticipated and guarded against requires no argument. The project showing the construction of the protecting bulkheads to an elevation of 142 feet can not be construed as a guaranty on the part of the Government that flood waters would not exceed that elevation. The claimant had the same knowledge as to probable floods and their magnitude as the agents of the Government; and treating the flood of 1894 as an inevitable accident or contingency not foreseen would not excuse the claimants from performance if the work done was embraced within their contract. *(Beach on the Modern Law of Contracts, sec. 217.)*

The claimants, however, contend that the language of paragraph 149 of the specifications, holding them “ responsible, without expense to the Government, for the preservation and good condition of all the work now in place,” is ambiguous, and that as the contract was prepared by the agents of the Government the ambiguities therein should be resolved adversely to the Government; and that if so construed the claimants then would be held responsible for the preservation and good condition of such work only as against their own acts or other human agencies. This latter position is further sought to be maintained on the ground that because, as shown in Finding VI, the engineer in charge, immediately after the flood of 1894, recommended that the project be changed by increasing the elevation of the bulkheads to a height of 148 feet, which was done with the approval of the engineer in charge. This, it is asserted, was a construction by the officer of the Government favoi’able to the claimants’ contention.

With this contention we can not agree. The language standing alone is not susceptible of such limited construction, and certainly not when considered in the light of the act authorizing the continuance and preservation of the *141work with the other provisions of the contract requiring “ the entire completion of the lock ready for use,” the prices for which, under paragraph 152 of the specifications it was therein provided, were to cover “ every expense of whatever nature which the United States will otherwise have to pay that may arise during the progress of the work or the continuance of this contract, except contingencies for engineering and superintendence by the agents of the United States.” That is to say, the claimants were not to be held responsible for the expenses of engineering and superintendence.

It would be difficult to surmise stronger language for the purpose evidently intended by the act as well as the contract. That is to say, as the Government was discontinuing the work on its own account the purpose in respect of the preservation and good condition of the work in place, as well as the continuance of the work, was to put the claimants in the place of the Government; and to that end it was provided, as before stated, that the claimants’ prices for the work to be done, including the preservation and good condition of the work then in place, should cover “ every expense of whatever nature which the United States will otherwise have to pay * * * except contingencies for engineering and superintendence by the agents of the United States.”

If the work had been continued by the Government, it would have been compelled to increase the elevation of the protecting work, and as the claimants took its place the work fell upon them.

There is a suggestion' that the protecting work was not necessary to the performance of the work under the contract. We think otherwise, and have so found; but whether necessary to enable the claimants to proceed with their work they were certainly bound to protect the “ work now in place,” for which they had agreed to be responsible to the United States. Upon this theory we must presume that the claimants took this into account in making their bid.

The thirteenth paragraph of the contract in terms prohibited the claimants from making any claim whatever against the. United States on account of extra work “unless such extra work * * * shall have been expressly required in writing ” and the prices and quantities were first agreed upon. *142This was not done, nor did the claimants demand it or protest against doing the work, and hence the acts of the parties in this respect, if the language of the contract were ambiguous, may be considered in determining the force and effect to be given thereto.

The claimants, as before stated, seek recovery on the ground that the work done was not embraced within the contract, but the language “ held responsible without expense to the Government, for the preservation and good condition of the work now in place,” can only be satisfied by holding the claimants responsible for the work done; otherwise the Government, without authority of Congress therefor, would have been compelled to resume tire work of preservation at its own expense contrary to the language holding the claimants responsible therefor.

The exceptions stated in paragraph 152 exclude all others, and when that paragraph is considered with paragraph 149 of the specifications and other provisions of the contract there is no room for doubt; and thus believing, the claimants are not entitled to recover.

' As after the filing of the demurrer herein to the original petition the claimants elected to amend, they thereby confessed that the demurrer was well taken, and the demurrer is therefore overruled, none being filed to the amended petition.

For the reasons stated the petition is dismissed and judgment ordered to be entered in favor of the United States.

Howry, J., took no part in the decision of this case, but reserves his decision, doubting the correctness of the result for reasons set forth in memorandum to be filed hereafter *nunc fro tuno*as of this day.