#### MacARTHUR BROTHERS COMPANY v. THE UNITED STATES.

[No. 32506.

Decided November 20, 1916.]

*On the Proofs.*

Contract.—This is a suit upon a contract for the construction of concrete walls for a ship lock in Black Bock Harbor, Buffalo, N. Y.

*Specifications; extra*work.—The specifications, paragraph 52, provide that *“if any leaks develop through the bed rode or through the cofferdam below the clay filling, when the inclosure is being pumped out, the contractor shall stop them under plans and agreements for payment therefor, to be made with the engineer, based upon the actual cost of labor and materials at current wages and prices, plus not exceeding 15 per cent for profit.”*It was intended by this specification to provide for all labor in connection with the stoppage of leaks, including the pumping process. As the engineer agreed to and acquiesced in the work done as being necessary to accomplish the designed purpose, this is a sufficient compliance with the specification to allow plaintiff to recover the additional sums specified.

*Specifications; additional*compensation,—Although another paragraph of the specifications requires pumping to be done in the ordinary course of the work to keep the inclosure drained to bed rock, without additional compensation, the extra pumping was the method adopted by consent of the parties for stopping the leaks in accordance with the provisions of paragraph 52.

*471*The Reporter’s*statement of the case:

*Messrs. George A. King*and *Henry W. Magee*for the plaintiff. *Mr. A. J. Hopkins*and *King <& King*were on the briefs.

*Mr. Charles H.*Bradley, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

The construction given to the contract by the defendants’ officers was that the contractor was not entitled thereunder to the amounts claimed.

The courts have held:

It is a well-settled rule of law that if a party charge himself with an obligation possible to be performed he must make it good * * *. Unforeseen difficulties, however great, will not excuse.him. *Dermott*v. Jones, 2 Wall. 1.,

It (the court) can not inquire whether the parties have acted wisely or rashly in respect to any stipulation they may have thought proper to introduce into their agreement. If they are competent to contract within the prudential rule the law is fixed as to parties. * * * The court is bound to enforce the agreement. *Sun Printing Company*v. *Moore*183 U. S. 659.

In the case of *Kilmer*v. *United*States, 48 C. C. 181, 193, the specifications forming part of the contract between the parties contained a provision that “no allowance shall be made for extra work claimed to have been done, unless provided for beforehand by written agreement, specifying the cost of same.” Mr. ex-Ohief Justice Peelle, in delivering the opinion of the court, said:

“ It is not shown that any of the expense, work, or material claimed for as extra was £ provided for beforehand by written agreement, specifying the cost of same.’ If, therefore, we were to assume that the extras claimed for were, in fact, extras, the decision of the Supreme Court in the case of *Plumley*v. *United*States, decided January 6, 1913, would have been controlling. There the contract provided that changes increasing or diminishing the cost must be reduced to writing, with a statement of the price of the substituted material and work, and, too, with the approval of the Secretary of War; and in respect to which extra work the court said: ‘There was a total failure to comply with *472these provisions; and though it may be a hard case, since the court found that the work was in fact extra and of considerable value, yet Plumley can not recover for that which, though extra, was not ordered by the officer and in the manner required by the contract. Rev. Stat., sec. 3744; *Hawkins*v. U. *S.,*96 U. S. 689; *Ripley*v. U. *S.,*223 U. S. 695; *McMullen*v. U. *S.,*222 U. S. 460.”’

If the contract provides that no claim for extra material or work shall be made or allowed unless it be “ authorized in writing by the Supervising Architect, under the approval of the Secretary of the Treasury,” the contractor can not recover for it without the approval of the Secretary, though the work was ordered by the Government superintendent in charge, with the knowledge of the Supervising Architect, and was a benefit to the defendant. *Hyde*v. *United*States, 38 C. Cls., 649.

When a contract provides that no charge shall be made for extra work unless approved by the Chief of Engineers, the approval is necessary to bind the defendants. *Kennedy*v. *United*States, 24 C. Cls., 122.

Hat, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This is a suit upon a contract for the construction of concrete walls for a ship lock in Black Rock Harbor and Channel at Buffalo, in the State of Few York. The contract was entered into on the 15th day of April, 1908, and the specifications therein referred to are made a part of the petition.

The plaintiff constructed a cofferdam, as required by the specifications, and upon completion it was found to be tight and efficient and served throughout the progress of the work to exclude the water down to bedrock. On March 22, 1909, the plaintiff started to pump out the cofferdam, and on April 15, 1909, the water was lowered to the bottom of the clay filling in the cofferdam.

As soon as the water had been lowered to the bottom of the clay filling large leaks developed in the bedrock. The water came up in large quantities at many places throughout the entire bedrock forming the floor of the inclosure. Paragraph 52 of the specifications is as follows:

> *473“52. If any leaks develop through the bedrock or through the cofferdam below the clay filling, when the inclosure is being pumped out, the contractor shall stop them under plans and agreements for payment therefor, to be made with the engineer, based upon the actual cost of labor and materials at current wages and prices, plus not exceeding 15 per cent for profit.”

The plaintiff, when these large leaks developed in the cofferdam inclosure, notified the engineer in charge of the work in writing of their existence, and certain plans and agreements for stopping the leaks were considered and adopted. These plans were approved by the engineer officer as methods of stopping the leaks under paragraph 52 above cited, and the plaintiff was paid the sum of $8,327.39 for the labor and material used in these methods of stopping the leaks. These methods, however, were only partially successful.

The plaintiff on July 31, 1909, wrote a letter to the engineer officer in charge of the work, setting forth that the only method of dealing with these leaks was to increase the existing pumping capacity. While the engineer officer did not accept this proposition of the plaintiff, yet he permitted the additional pumping to go on without protest and without suggesting any other method of stopping the leaks, and indeed acquiesced in this method of stopping the leaks as being the only one which would permit the continuance and completion of the work; and the plaintiff claimed payment for all work so done as a part of the cost of “stopping leaks” under paragraph 52 of the specifications. It is contended by the defendants that the pumping operations were not recognized as being a part of the work of stopping leaks and that the payment of the amount claimed by the petition is prohibited by paragraph 7 of the specifications, which is as follows:

> “7. It is understood and agreed that the quantities given in these specifications are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. No allowance will be made for the failure of a bidder or of the contractor to estimate correctly the difficulties attending the execution of the work.”

*474But the court is of the opinion that paragraph 7 does not control the labor and material used by the plaintiff in stopping leaks, for it clearly appears that the pumping process was necessary for controlling the leaks and to complete the work which the plaintiff had undertaken to perform. Therefore paragraph 52, which dealt with the stoppage of leaks, is the part of the contract which must be looked to in the disposal of this claim. That paragraph does not provide that the plans and agreements for stopping leaks shall be in writing. It only requires that the plans shall be agreed upon, and if they were agreed upon orally, or if all other plans agreed upon had been tried and the pumping process had been resorted to by the plaintiff after he had notified the engineer in charge of the work that that was the only method which was feasible for the purpose, and the engineer acquiesced by permitting the pumping to continue without protest, this would be a sufficient compliance with the provisions of paragraph 52 to entitle the plaintiff to a recovery.

Paragraph 51 of the specifications is as follows:

> “ 51. The contractor shall furnish and maintain at least two good and sufficient pumping outfits, with pumps, engines, and supplies complete, for pumping out the inclosure and for keeping it drained to bedrock, as may be required, while his contract is in force.”

It is contended by the defendants that under this paragraph it was the duty of the plaintiff to completely unwater the cofferdam, and that no claim could be made for extra pumping until this was done. This contention can not be allowed for the reasons above stated, that the extra pumping was the method adopted by consent of the parties for stopping the leaks.

The plaintiff submitted bills for this additional pumping amounting to $54,748.79. These bills embrace the additional pumping from April 6, 1909, to October 8, 1910. Upon examination of these bills by the United States asistant engineers they were reduced to $42,895.74, which included 15 per cent profit, the claim itself being $36,719.81. It appears that the claimant did not have in operation sufficient pumping outfits until May 17, 1909; therefore the sum of $36,-*475719,81 should be reduced by $5,079.89, that being the amount for material and labor from April 6, 1909, to May 17, 1909, so that the plaintiff is entitled to recover on this item $81,-639.92 plus 15 per cent profit.

The plaintiff is also demanding $1,865.38 for an extra amount of cement furnished, but paragraph 7 of the contract especially provides that no extra material shall be paid for unless the same is asked for in writing by the claimant. The plaintiff did not do this and is therefore not entitled to recover for this item.

It follows from the foregoing that the plaintiff should have judgment in the sum of $36,385.90, and it is so ordered.

All the judges concur.