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

[48 C. Cls., 293; 237 U. S., 234.]

*On Plaintiffs' Appeal.*

. The subject matter of this 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.

The Court below decides:

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 United States, act 3d March, 1887, *H 8tat. L.,*505, all claimants in this court are made competent witnesses in their own behalf without qualifications. 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.

*407IV.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 right 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.

VIII.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 he 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 privilege 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 as designated by the cross-section sheets.

*408X.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.

XIII. Where cofferdams for the protection of lock work were built by direction of the engineers acoss 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, 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 decision of the court below is reversed and case remanded for further proceedings.

Mr. Justice McKenNa delivered the opinion of the Supreme Court April 12, 1915.