#### WILLIAM L. KILLEBREW, SURVIVING PARTNER OF J. B. & W. L. KILLEBREW, v. THE UNITED STATES.

[No. 22436.

Decided June 4, 1917.]

*On the Proofs.*

*Contract; furnishing of stone.*— The contract in this case calls for the delivery of *about*300,000 cubic yards of stone and provides that the quantities “ are approximate only ” and that no claim shall be made against the United States on account of any excess or deficiency in the same. A contention that the defendants were thereby obligated to receive and pay for the full amount of stone stated can not be sustained. *(Brawley*v. *United States,*11 O. Cls., 522; 168 U. S., 172, followed.)

*Same.*— The contract was also made dependent upon appropriations for this work and the deliveries dependent upon the state of the water in the river. These stipulations are determinative of the contract and whatever was done by the contractors after the contract was made was with the full knowledge by them that they could have no claim against the United States for the whole amount of stone designated in the contract which was not called for. The contract having also been made dependent upon appropriations by Congress and deliveries dependent upon the accessibility to towboats of the river, the rights and obligations of the parties are determined thereby.

*441
      *Same.*— Barges having been loaded as directed by the defendants’ agent and in the manner customary in that vicinity, of which custom the contractor had notice, no recovery can be had for the cost of building stone walls on the barges, the contract stipulating that the contractor will load as directed by the engineer in charge.

*Same.*— There having been an extra quantity of loose stone used in the construction of the walls on the barges, not measured or paid for by the Government, which was delivered at the same time and place as the other stone, plaintiff is entitled to be paid therefor.

*The Reporter’s*statement of the case:

*Mr. George R. Shields*for the plaintiff. *King da King*were on the briefs.

*Mr. Seth*Shepard, *jr.,*with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

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

I. On March 21, 1893, a contract was made between J. B. *&*W. L. Killebrew, a copartnership, and the United States, subject to the approval of the Chief of Engineers, United States Army, whereby the said firm agreed to furnish and deliver for use in public improvements on the Mississippi Biver about 300,000 cubic yards of stone upon the conditions stated therein. The contract was approved by the Chief of Engineers on April 3, 1893. A copy of said contract is annexed to claimant’s petition. Advertisements for bids and specifications, attached to and forming a part of the contract, are also annexed to claimant’s petition. William L. Killebrew is the surviving partner of the firm of J. B. *&*W. L. Killebrew.

II. When the contract was entered into on April 3, 1893, more than half of the high-water season had elapsed. Demand was made for the immediate and rapid delivery of stone during the remainder of that high-water season.

Contractors met all requirements of the United States with respect to the quantity of stone to be delivered that season. Delivery was commenced in April, 1893, and continued until June, 1893, when the water in Little Bed Biver became too low for further towing operations. The contractors deliv*442ered, as measured and paid for, 24,279.2 cubic yards of stone during that period, which was all that water conditions would permit to be towed during that part of the high-water season.

III. The contractors made no delivery of stone at Green-ville during the low-water season of 1893, as no funds were allotted for use in the third district, improving the Mississippi River. Through arrangements made for the contractors by the engineer officers of the United States, the contractors delivered stone at West Memphis for improvements in the second district. This stone they delivered by rail from quarries specially opened for that purpose near Imboden, Ark.; and it amounted to, as measured, 20,100.25 cubic yards, for which the contractors were paid $34,210.38.

IY. The engineer ordered 30,000 cubic yards of stone for delivery during the high-water season of 1894, and as measured by the Government, the contractors delivered 50,783.8 cubic yards during that season. The contractors were advised that no more than 50,000 cubic yards would be required during- that season.

V. On May 25,1894, the officer in charge stated to the contractors that he estimated that he would require at Green-ville 10,000 cubic yards of stone during low water; “what further amount will depend on the action of the commission at its nest meeting.” On August 31, 1894, the officer notified the contractors that they would be required to furnish 40,000 yards of stone for this season.

The contractors on the basis of measurements made by the Government, delivered 30,162.13 cubic yards of stone at Greenville during the low-water season of 1894.

VI. On January 28, 1895, the officer in charge notified the contractors that the amount of stone to be taken during the high-water season of 1895 would not exceed 50,000 cubic yards.

Owing to an unusually low stage of water in Little Red River the Government did not send barges to Little Red River for the receipt of stone until about April 1, 1895, and from that time until the end of the normally high-water period only 6,447.6 cubic yards of stone could be loaded and *443towed during the high-water season of 1895; and as measured by the Government that quantity of stone was delivered during that season.

The Government furnished barges to the contractors for the loading and delivery of the stone during the high-water season of 1895 just as soon as the state of the water would permit.

VII. On July 9, 1895, the officer in charge notified the contractors that he estimated 30,000 cubic yards of stone as the quantity which would be required at Greenville during the low-water season of 1895, and further stated that it would be dependent on the stage of the water. The contractor delivered at Greenville a total of 36,637.92 cubic yards of stone, Government measurement. Delivery was commenced in September, 1895, and extended over into January, 1896.

. VIII. During the high-water season of 1896 the Government required the contractors to deliver such quantities of stone in Little Sed Eiver as it found it convenient to receive. Delivery was begun late in March, 1896, and continued to May, 1896; a total of 19,356.2 cubic yards, Government measurement, being delivered during that period.

IX. The contract provided that barges should be loaded in such manner as the engineer in charge or his authorized agent might direct, and prior to March 8, 1894, contractors were required to build walls of stone about 4 feet high by 2 feet thick around the outer edges and around the pump and hatch openings of all barges loaded by them. This was the customary manner of loading barges. After March 8, 1894, contractors were permitted to put plank inclosures around the pump and hatch holes and across the ends of barges loaded by them, but were required to build walls of stone around the sides of barges.

The time of three laborers or more was constantly employed, when deliveries were being made, in building stone walls around barges, as above set forth. The amount of money paid to these laborers for this work can not be definitely stated from the evidence.

The quantity of stone on each barge was ascertained by Government inspectors, after the barge was fully loaded by *444tbe building of stone walls around the sides of the barge, and filling the interior thereof with loose stone, by a measurement of the space actually occupied by the stone thus loaded, without allowance for the extra quantity of loose stone required to build the walls; 8,268.85 cubic yards of stone were thus delivered by the contractors at quarries in Little Red River, for which they were not paid, and which at contract rates was of the value of $1,631.15. They also delivered at West Memphis and Greenville 2,786.2 cubic yards of stone, for which they were not paid, the value of which at contract rates was $4,445.41.

Hat, Judge,

delivered the opinion of the court:

On the 21st day of March, 1893, the firm of J. B. & W. L. Killebrew, of which W. L. Killebrew is the surviving partner, entered into a contract with the United States, by which they agreed to deliver to the defendants about 300,000 cubic yards of stone for use in public improvements on the Mis-sisippi River, third district. The delivery of the stone was to commence on April 1, 1893, and was to have been completed on June 30, 1896. The advertisement and specifications attached to the contract were made a part of the contract.

Among other things the contract and specifications contained the following provisions, which are material to the determination of this suit:

> “ The decision of the engineer officer in charge as to quality and quantity shall be final.”

> “ The party of the second part shall Be responsible for and pay all liabilities incurred in the prosecution of the work for labor and material.”

> “ It is understood and agreed that the quantitites given are approximate only, and it must be understood that no claim shall be made against the United States, on account of any excess or deficiency, absolute or relative, in the same.”

> “ The stone will be delivered under the following provisions of the river and harbor act of July 13, 1892: That on and after the passage of this act additional contracts may be entered into by the Secretary of War for such materials and work as may be necessary to carry on continuously the plan of the Mississippi River Commission as aforesaid, or said materials may be purchased and work may be done other*445wise than by contract, to be paid for as appropriations may from time to time be made by law, not exceeding in the aggregate two million six hundred and sixty-five thousand dollars per annum for three years, commencing July first, eighteen hundred and ninety-three. There is now available for the purpose from existing appropriations and allotments, about $60,000.”

> “ During high water the stone and spawls will be received on Government barges at any point accessible to the towboats of the third district on the Yfhite Biver and its tributaries and on the Mississippi Biver between Memphis and Greenville, and bidders will specify the place at which delivery is to be made.”

> “ Delivery will begin ten days from the date of notice from the engineer in charge to commence loading stone. Notice to commence delivery will not be given until funds have been duly appropriated and allotted for the purpose, and if for any cause the funds should not be available for the purchase of stone, notice will be given the contractor to stop work for that season, and no stone will be received ten days after such notice is given.”

> “The contractor will be responsible for the proper care of barges while in his possession, and they will be loaded in such a manner and to such depths as may be directed by the engineer in charge or his authorized agent.”

The contractors under their contract delivered 187,767.1 cubic yards of stone, as ascertained by the measurement of Government inspectors, and were paid for that number of cubic yards.

The plaintiff is now bringing this suit to recover from the United States damages which he alleges the contractors suffered by reason of the failure of the Government to receive the full amount of stone mentioned in the contract; also the cost of work done by the contractors in loading barges in accordance with the requirements of the Government, and for the value of stone delivered by the contractors and not paid for, the Government, as they contend, failing to measure and receipt for all the stone loaded on the barges.

As to the first claim, that the Government was obliged to receive and pay for the full amount of stone mentioned in the contract, we do not think that the contract binds the Government to receive the full amount of stone mentioned therein. The principle laid down in *Brawley*v. *United*
      *446
      *States,*168 U. S., 172, governs this ease. In that case the meaning of the words “ about ” and “ more or less ” is discussed, and it is there stated:

> “ If, however, the qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extensive significancy, then the contract is to be governed by such added stipulations or conditions.”

In this case the added stipulations and conditions are obvious and must control the contract. They are as follows :

> “It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same.”

> “ The decision of the engineer officer in charge as to quality and quantity shall be final.”

In addition to these stipulations was one which made the contract depend upon appropriations and allotments of appropriations for this particular work, and another which made deliveries dependent upon the state of the water in the White River and its tributaries. These stipulations are determinative of the contract. Whatever was done by the contractors after the contract was made must have been done with the full knowledge by them that the whole amount of stone might not be called for, and, if it was not called for, that they could have no claim against the United States for their failure to receive the full amount designated in the contract.

The claim for cost of building stone walls on the barges when they were being loaded can not be allowed in the face of the stipulation that “ the contractor will be responsible for the proper care of barges while in his possession, and they will be loaded in such a manner and to such depths as may be directed by the engineer in charge or his authorized agent.” The barges were loaded in the manner customary in that vicinity, and of this custom the contractors had notice.

The only other claim is for a quantity of stone which it is alleged the contractors delivered and were never paid for. We think this claim is valid. It appears from the evidence that the Government inspectors in measuring the stone *447loaded on the barges failed to measure and allow for tlie extra quantity of loose stone so used to build the stone walls on the barges. The contract does not provide for the method of measuring this stone. It is difficult to understand why the stone loaded on the barges and used for the building of the walls should not be measured and paid for. It was delivered to the Government at the same time that the loose stone was delivered, and should have been measured and paid for.

It follows from the foregoing that the plaintiff should have judgment for $6,076.56, and it is so ordered.

Downey, Judge, Baeney, Judge, and Campbell, *Chief*Justice, concur.

Booth, Judge, took no part in the decision of this case.