#### TACOMA DREDGING COMPANY v. THE UNITED STATES.

[No. 33107.

Decided June 11, 1917.]

*On the Proofs.*

*Contract; dredging.*— Plaintiff enters into a contract with the United States to do certain dredging work in Los Angeles Harbor. Before the completion of the work a flood caused quantities of silt and other material to be washed into the area in which plaintiff was at work, which he was required to dredge in order to fully complete the contract The specifications provide a method by which the material removed should be ascertained. Upon the final settlement plaintiff was not paid for the material deposited by the flood which was required to be removed.

*Contract provisions; final settlement; tvaiver.*— 'Wiieve a contract specifies the method of survey to determine the amount of material removed upon which basis final settlement is to be made, and the defendants fail to observe this provision or ignore it, it is too late for them to invoke it now in this court.

*Intention of parties; basis of payment.*— It being impossible for the court to ascertain now what the differences were between the soundings required to be made by the contract, a basis of payment for the work done will be fixed by the court, consonant with the intention of the parties that payment was to be made upon a yardage basis.

*448
      *The Reporter's*statement of the case:

*Mr. Walter C. Glephane*for the plaintiff. *Mr. Clarence W. De Knight*was on the briefs.

*Mr. John E.*Hoover, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants. *Mr. Charles H. Bradley*was on the briefs.

The amount of material dredged was to be determined by its being “ measured in place ” — that is, within the prescribed lines fixed by the engineer officer — the method of measurement being to make a survey before beginning work and another after the work was completed, and the final payment therefor was to be based entirely upon the difference between the survey made before beginning work and the final survey. Any material washed into the area indicated by the designatea lines from the outside after the dredging began could not have been measured in place by the surveys to be made as indicated in the contract.

In the case of *Bowers Hydraulic Dredging Company*v. *United*States, 41C. Cls., 214, which is very similar to the case at bar, the Bowers Company had a contract with the United States for dredging in the Delaware Biver. In the course of the dredging operations, material from the outside fell within the designated lines and was dredged by the contractor, who contended that he should be paid for the material thus dredged. The contract contained provisions practically identical with those of the contract in this case; for example:

“The amount of material removed will be paid for by the cubic yard measured in place, and shall be determined by surveys made before dredging is commenced and after its completion. * * * Payments will be allowed for actual dredging to twenty-one feet below mean low-water level. Work done outside of the designated lines of excavation or below the prescribed depths will not be paid for * *

In its opinion this court said:

“ Keeping in mind that the amount of material to be paid for was to be determined within the designated lines by means of surveys made before dredging commences and ver*449ified within those lines after the dredging was completed, makes it clear that the measurements made were not to include any material outside of the designated lines. It necessarily follows that the material falling within the designated lines during the progress of the work could not have been measured in place by the surveys so authorized by the contract to be made.”

The contract in the case at bar contains the provision above referred to that “ final payment will be based entirely upon the differences between the soundings in the survey made before beginning work and the final survey.” This language is clear and unambiguous, and, coupled with the provision that the material dredged must be “ measured in place,” indicated that it was the intention of the parties that the contractor should dredge out down to a certain depth the material then in place within the designated area, and should be paid only for the number of cubic yards shown to have been dredged by the differences between the survey made before beginning work and one made after the work was completed. The Government ran the risk of having to pay the contractor for material eroded from the area, and the contractor of having to excavate without extra compensation material coming into the area by accretion or otherwise.

The contract was not rendered impossible of performance by the deposit of the silt by the flood, and it is, of course, a well-recognized rule of law that if a person 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.

If the depositing of this silt in the area to be dredged was caused by an act of God, the contractor would not be relieved from its obligation to remove the silt so deposited unless it had in its contract provided against such an occurrence, and there is no such provision in the contract. *Phoenix Bridge Company*v. *United*States, 38 C. Cls., 510.

Hay, Judge,

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

This is a suit brought by the plaintiff to recover from the defendant the sum of $8,011.58, alleged to be due the plain*450tiff for dredging 67,000 cubic yards of material in Los An-geles Harbor. The plaintiff entered into a contract with the defendant by which it agreed, in conformity with the advertisement and specifications attached to and made part of the contract, to do the work of dredging in division C at Los Angeles Harbor; and the defendants agreed, in consideration of that service, that “ the contracting officer shall pay to the said contractor the sum of eight and nine thousand seven hundred and twenty-five ten-thousandths ($0.089725) cents per cubic yard of material thus dredged.”

The specific work to be done under the contract was to deepen to 20 feet two channels “ extending from the turning basin, one to the easterly end of the east basin, and the other to the northerly end of the west basin,” and these channels were to be dredged to such widths, not exceeding 200 feet, as the funds would permit.

The work was begun on or about January 10, 1911, and continued without interruption to March 10, 1911, at which time a flood of great and unusual proportions took place in the rivers which were tributary to Los Angeles Harbor. The result of this flood was that large quantities of silt and other material was washed into the area in which the plaintiff was at work. The claim of the plaintiff is that this extra amount of material which is dredged must be paid for at contract rates by the defendants.

The case turns in part upon the specification attached to and made a part of the contract which provides for the measurement of the material dredged, and payment therefor in accordance with the measurement. The specification under consideration,- or that part of it with which we are concerned, reads as follows:

> “As soon as practicable after the completion of the entire work, a final survey will be completed over the area dredged and final payment will be based entirely upon the differences between the soundings in the survey made before beginning work and the final survey. Final payment will include any necessary corrections of deductions made in the monthly payments. Should any shoals, lumps, or ridges be disclosed by the final survey, the contractor may be required to remove them at the regular contract rates.”

*451. The Government engineer made a survey of the area to be dredged by the claimant before the work began, and informed the contractor that there were 1,041,579 cubic yards of material to be dredged. After the flood above referred to, to wit, on March 10 and 11, 1911, the Government engineer made another survey of the aforesaid area, and informed the plaintiff that in addition to the 1,041,579 cubic yards of material which were in the area to be dredged the flood had washed into the said area an additional amount of 67,000 cubic yards of material. The claimant continued on the work and completed the same on June 5,1912, by dredging the 1,041,579 cubic yards of material, as well as the 67,000 cubic yards of material which had been washed into the said area by the flood aforesaid. The defendants without making the final survey, which the specifications required.them to do, paid the plaintiff for the 1,041,579 cubic yards, but refused to pay it for the 67,000 cubic yards of material which it had dredged, and which it was compelled to dredge in order to perform its contract. It will be seen from the facts above cited that the defendants did not make the final survey which the specifications required, and therefore in making final payment to the contractor that payment was not “based entirely upon the differences between the soundings in the survey made before the beginning of the work and the final survey.” The differences between the soundings in the survey made before the beginning of the work and the final survey not having been ascertained, as required by the specifications, the basis for payment provided for in the specifications has not been observed; in effect this clause of the specifications has been ignored; it is too late to invoke it now in this court, when it is impossible for the court to ascertain what the differences between the soundings in the survey made before the beginning of the work and the final survey might have been.

Therefore the court will proceed to fix a basis of payment for the work done. It is agreed that the plaintiff dredged (he 67,000 cubic yards of material washed into the area to be dredged by the flood, as well as the 1,041,579 cubic yards of material which were in the area when the work began. *452Undoubtedly it was the intention of the parties to this contract that payment was to be made on a yardage basis, and the contract must be construed, wherever there is room for such construction, to carry out the intention of the parties. The spirit of the contract was that payment should be made for each unit of material removed. The contract, while it provided for payment on a yardage basis, also provided how the number of yards removed should be ascertained. The method provided for this was not resorted to, and hence the court must ascertain the number of units removed. About the number of units removed there is no dispute; the court is therefore of opinion that the plaintiff is entitled to be paid for the number of units which it removed from the area to be dredged.

It follows from the foregoing that the plaintiff should have judgment for $6,011.58, and it is so ordered.