#### P. J. CARLIN & CO. v. THE UNITED STATES.

[No. 24757.

Decided April 22, 1918.]

*On the Proofs.*

*Contracts, abrogation or annulment, when wrongful; improper interference and direction of worlc.*— In 1899 plaintiffs entered into a contract with the United States for the construction of certain sections of a sea wall near the Naval Academy and agreed to deliver the same complete in all respects as required by the drawings, plans, and specifications to the superintendent of the Naval Academy, or to such person as he might direct to receive the same. By the specifications it was provided that the contractors should guarantee and maintain the stability of all work and material and keep same in perfect repair and condition for a period of one year after the issuance of the final certificate and would make good any defects appearing during that period when called upon to do so. During the time of the prosecution of the work *377plaintiffs were also prosecuting other work at the Naval Academy under contracts involving much greater sums than was involved under this contract. The work under the several contracts was carried along simultaneously. Difficulties were encountered which had not been anticipated by the contractors and which were unexpected by the Government’s agents, and the contractors were not left entirely free and at times were not left reasonably free to cope with the situation as it developed. During the work of construction the wall sunk in places and went somewhat out of alignment from causes not shown. Thereafter the Secretary of the Navy appointed a board to examine the work, which board reported a method whereby the wall might be' made stable, though the fundamental object of the construction would be defeated. The plaintiffs were subsequently directed by the Secretary to carry out the plan proposed by the board, which they declined to do, whereupon the Secretary abrogated or annulled the contract.

*Held,*That under the circumstances, the abrogation was wrongful and plaintiffs are entitled to be paid for the value of the work done, less payments theretofore made, plus the value of materials taken by the defendants’ officers at the time of annulment, and in ascertaining the former the court will inquire into unreasonable exactions or experiments forced upon the contractors by the defendants’ officers in charge; as well as for extra work.

*Contracts, specifications, interpretations of.*— Where specifications call for certain kinds of wood to be used for piling, and the person designated by the contract rules that Georgia yellow pine may be used, it was wrongful for one of his subordinates to reject the short-leaf variety and insist upon the long-leaf variety, where it further appears that the short-leaf variety was as good as other varieties of wood mentioned in the specifications. *A fortiori,*this is true, where plaintiffs were permitted later to use a different kind of pine piling in the same character of work and the contracting parties by a subsequent supplemental agreement relative to a change in the wall specified the long-leaf variety. Plaintiffs are entitled to recover the difference between what it could have furnished the short leaf for and what it reasonably expended for the long-leaf variety.

*Contracts, specifications.*— A specification requiring the heads of piles to be cut off horizontally at the levels shown in the drawings and plans, with no greater variation than 1 inch, when reasonably construed, means that the variation should be with reference to the datum line and not with reference to *378the highest and lowest pile heads in different parts of the work.

*Damages.*— The Government is liable in damages for unreasonable delays to the work due to investigations during which the work is retarded or wholly stopped.

*The Reporter’s*statement of the case:

*Mr. John 0. Wait*for the plaintiff. *Mr. George A. King*was on the briefs.

*Mr. George H.*Thome, with whom was *Mr. Assistant Attorney General Huston Vhwvpson,*for the defendants.

All matters in controversy were settled by the arbiters selected in accordance with express covenants; of the contract, and their decision is conclusive.

The contract further provides that if a h.ibmce shall appear in favor of the contractors the same shall be. paid to and accepted by them in full discharge of all claims under the contract.

Further provisions were, in part, as follows:

No payment for alteration or addition unless agreed upon in writing.

Time for alteration, to be extended or reduced by board.

No acceptance until final completion.

No supervision justification for errors unless architect so directs in writing.

No extra work unless authorized by architect in writing, approved by the superintendent.

There was a board review and finding, a tender and refusal, as hereinbefore noted, all of which is admitted.

The claimants are concluded thereby. *Ripley*v. *United*States, 223 U. S., 695; *United States*v. Gleason, 175 TJ. S., 588.

After the contractors had made a failure in part in getting a good wall, they began to suggest a disclaimer of liability for the stability of the wall. The Government, however, never receded from its rights under the contract to hold the contractors therefor.

*379It seems that the contractors endeavored to disclaim their responsibility upon the theory that if the requirements of the work varied more than 10 per cent from their estimates of the requirements, the responsibility shifted to the Government.

We think the following authorities show that under the foregoing circumstances the risk in building this sea wall was the contractors’: *Laheview*v. *MacRitchie,*134 Ill. 208; 25 N. E. 663; *Simpson*v. *United States,*172 U. S. 372; *Northern Pao. By. Go.*v. *Goss,*203 Fed. 904; 122 C. C. A. 198; *Giles*v. *San Antonio Foundry*Go., 24 S. W. 546; *Sat-terlee*v. *United States,*30 C. Cls. 31; *American Surety Go.*v. *San Antonio L. & T. Go.,*98 S. W. 387; *Sloughter*v. *Guerson,*13 Wall. 379, 383; *Farnsworth*v. Dufner, 142 U. S. 47; *Shapiro*v. Goldberg, 192 U. S. 232; *Hudson on Buildimg and Engineering*Contracts, pp. 83, 261; *Gibbons v. United. States,*8 Wall. 269; *Bigsby*v. *United States,*188 U. S. 400; *Lewman et al.*v. *United States,*41 C. Cls. 470; *Toomey Bros.*v. *United States,*49 C. Cls. 172; *Carnegie Steel Go.*v. *United States,*240 U. S., 156; *Zimmerman*v. *United States,*43 C. Cls. 526.

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

I. On or about January 25, 1904, the then Acting Secretary of the Navy, at plaintiffs’ request, and pursuant to the provisions of section 1063, Eevised Statutes (sec. 148, Judicial Code), transmitted to this court for adjudication the written claim of the plaintiffs herein for increased compensation on account of work done under their contract of February 8, 1899, for building a sea wall at the United States Naval Academy, and on February 20, 1904, the plaintiffs, by their attorney, filed their petition herein in accordance with the rules and statute in such case made and provided.

II. The naval appropriation act, approved May 4, 1898, provided for certain improvements at the Naval Academy involving the construction of an armory, á boathouse, a power house, sea wall, and numerous other structures. A general plan of the work had been formulated by Ernest Flagg, an eminent architect and civil engineer, and on or *380about May 28, 1898, the Chief of the Bureau of Navigation, acting under the direction of the Secretary of the Navy, entered into a contract with said Flagg, whereby the latter was employed as architect for the said armory and boathouse, at a compensation of 5 per cent of the cost thereof for his services in preparing the plans and specifications and superintending the construction of the same.

Thereafter, and on or about June 23, 1898, the superintendent of the academy, acting under proper authority, made a contract with the said Flagg whereby the latter was employed as architect to prepare and furnish drawings and specifications for the construction of a sea wall, to be built around a part of the grounds of the academy. Said Flagg was a suitable and competent person to perform the duties required by the contract made with him. In his contract with reference to plans and specifications for the sea wall his compensation was stated, and it was provided that the architect was to act as the agent of the owner (the Government) in all transactions between the owner and the contractors, and should audit all accounts for said construction work.

III. Between the dates of the two contracts with said architect, and on or about June 2, 1898, the architect wrote a letter to the superintendent of the academy stating “it is necessary that borings should be made at various places which I will indicate on a diagram in order to determine the nature of the soil and the various depths to which footings must be carried.” He also suggested the employment of F. W. Miller, whom he recommended to be, and who was, a suitable and competent person to employ to make the borings. The said architect was authorized to make a contract with said Miller to make 100 test borings, 50 on land and 50 in the water, at the unit price of $13 per day per outfit, or a total of $750 for the 100 borings, the work to be finished in 30 days. The contract with Miller having been executed, he got together his outfit and men and brought them to the Naval Academy and placed them under the direction of the authorities there.

*381George E. Merrill, who had theretofore been an employee of Architect Flagg, and who had written the specifications for the sea wall, was, by direction of the Secretary of the Navy, appointed clerk of the works on or about June 2, 1898, and sworn to the discharge of his duties by the Superintendent of the Naval Academy. Said Merrill was designated to and did superintend the work incident to said borings. These borings were to be made upon the proposed site of the armory and boathouse, as well as in and about the area included in the proposed sea wall.

By his order, dated April 8, '1899, the Secretary of the Navy detached Omenzo G. Dodge from duty in the yards and docks, effective April 14, and directed him to report to the Superintendent of the Naval Academy for such duty as might be assigned, and on April 15,1899, the Superintendent of the Naval Academy assigned said Dodge to duty as assistant to tile superintendent in the prosecution of the work of constructing new buildings and a sea wall at the academy. Said Dodge and Merrill were competent and conscientious inspectors. The work was always required by them to be done in strict and minute accord with the specifications and the directions of Superintendent of the Naval Academy. On numerous occasions work done by plaintiffs, sometimes under protest, at other times without objection, was at the express request and direction of the clerk of the works and the assistant to the superintendent. The Superintendent of the Naval Academy, and not Architect Flagg, was always regarded by the inspectors, and in fact was the person who finally determined all disputed questions between them and the plaintiffs.

IV. The borings were made by the “ wash-boring ” method, which is a well knoivn and approved manner of doing work of that kind. This work was accomplished in about six weeks’ time, and was done in the usual and in a proper manner. Samples of the material coming up during the process of boring by said method were correctly taken and kept, and they were so arranged in boxes designed for that purpose as to show a record of the material taken from the *382several borings and the depths at which the kind of material shown by the samples would bo found at the several points where the borings occurred. These borings, so far as the area in the vicinity of the sea wall was concerned, showed much variableness in the character of the soil adjacent to and underlying places of the proposed work. Correct samples of the material taken from the borings were kept in duplicate, one set being at the architect’s office at the academy and the other at his office in New York City. These were accessible to bidders for the contract work.

Y. The detail drawings for the sea wall were completed by or under the direction of said architect after the result of the borings was ascertained as aforesaid, a part of the work of completion being done by said Merrill. After the completion of the borings and their examination by said Merrill, he concluded that on account of the uncertainties in the soil to be encountered, as indicated by said borings, he would place on the drawings before their submission to bidders, and accordingly, before any proposals were requested, he wrote in ink on drawing number 2206 a note reading as follows:

“ This drawing is made to assist the bidder in estimating upon the work, to give him a graphic illustration of the condition it is believed will be found in doing the work. It is based upon the hydrographic survey drawing number 2570, and upon the borings made during June and July, 1898. The borings were made about a hundred feet apart. The conditions existing between and around the borings can not therefore be definitely known, and the architect or owner is not to be held responsible for the accuracy of the profile lines and levels of the materials hereon shown. The bidder is referred to the samples of the borings at the architect’s New York City office, or at the United States Naval Academy. If the bidder wishes, he may make such further borings as he may desire.”

A copy of said drawing number 2206 is attached to these findings.

VI. Advertisement, called circular “ A,” was made, calling for proposals for the construction of said sea wall, and there were six or more bids for the work. Circular “ A ” indicated that the amount appropriated for the sea wall was limited *383to $150,000. At or about the time proposals were asked for the work on the sea wall, proposals were invited for other structures at the Naval Academy, and plaintiffs bid upon, and were the successful bidders for, the construction and erection of an armory and boathouse, for which work they were to be paid approximately $800,000, and also for the construction of a, power house and coal-hoisting tower, the contract price of which is not shown by the evidence.

On February 8, 1899, P. J. Carlin & Co., a copartnership, the plaintiffs herein, submitted their proposal for the seawall work. The right to designate sections of the sea-wall work that could be excluded by the naval authorities was reserved in the specifications or circular “ A.” The proposals were for sectional parts of the work. A copy of said circular “ A,” proposal and contract, together with the specifications, is made a part of the petition herein, to which reference is hereby made. The plaintiffs were the lowest bidders for the sea-wall work. The next lowest bidder to plaintiffs for that work bid 5 per cent more per linear foot; the second lowest bidder bid 35 per cent more per linear foot than the plaintiffs, and the highest bid for the work was 120 per cent more per linear foot than plaintiffs’ bid.

By changes and alterations in the contract for the sea wall, as hereinafter stated, the amount to be paid the plaintiffs for that work was reduced. The three contracts were made about the same time, piling and driving of piles was required under all of the contracts, and'the work under the three contracts was carried along by the plaintiffs simultaneously. The contract for the power house was abrogated after the plaintiffs had driven approximately 1,537 piles, and they were paid for the work done thereunder.

After the execution of the original contract, the same was modified by supplemental contracts, marked “ Exhibits A, B, C, D, E, and F,” respectively made a part of these findings. As so modified, the completed work was to be done for the sum of $115,357.12.

VII. Prior to submitting their said proposal, the plaintiffs examined the said plans, drawings, and specifications, and had access to the samples of the borings made, as herein-*384before stated. Plaintiffs, by tbeir agent, saw the borings and examined some of them. An examination of the record of the borings and the borings themselves would have shown a competent contractor that there was great uncertainty as to what depth would be required to reach bearing sand or other material sufficient to sustain piles driven and the weight thereon as required by the plans and specifications for the sea wall.

VIII. The plaintiffs having entered upon said work under their contracts, caused in April, 1899, to be brought to Annapolis several rafts containing 1,200 or 1,500 Maryland and Virginia and loblolly pine piles, for use in the armory and boathouse foundations. That work was included in the plaintiffs’ second contract above mentioned. These piles were condemned by the clerk of the works as not being one of the kinds of timber mentioned in the specifications, and some correspondence took place between the clerk of the works and the architect, and between the plaintiffs and the clerk of the works relative to a proper interpretation of the specifications. The architect on May 22, 1899, informed plaintiffs and the superintendent of the Naval Academy that such Virginia and Maryland yellow pine piles as would pass inspection would prove superior to hemlock or spruce, which might under the specifications be used in their stead, and that therefore he had authorized plaintiffs to use sound Virginia and Maryland yellow pine piles for the buildings, and required plaintiffs to use 'Georgia yellow pine piles only for use in the sea wall work.

The specifications called for white oak, Georgia yellow pine, spruce, hemlock, or Norway pine for piling. The superintendent of the academy, through the clerk of the works later instructed plaintiffs that they could only use Georgia *“*long-leaf ” yellow-pine piles in the work of the sea wall, and over plaintiffs’ objection they were required to and did furnish George long-leaf yellow-pine piles. Plaintiffs had made an agreement with a responsible party to procure the necessary piles, but that agreement did not contemplate the furnishing of Georgia long-leaf yellow pine. “ Georgia *385yellow pine” does not mean pine grown in Georgia alone. That term as applied to piling was understood by the trade as calling for the short leaf variety of Georgia yellow pine.

In order to get the Georgia “ long-leaf ” yellow-pine piles, it was necessary for plaintiffs to go farther south into South Carolina, Georgia, or Alabama to get them. The short leaf variety of Georgia yellow pine could be procured nearer to Annapolis, and was suitable for piling as some of the other varieties of wood mentioned in the specification. The long-leaf variety was more expensive to procure, and the transportation of the piles, by reason of their length, and the distance they were to be carried, and the means of transporting them to Annapolis was difficult and expensive. “Long-leaf ” Georgia yellow pine was superior to any of the varieties specified. They cost more than short-leaf Georgia yellow-pine piles would have cost. In July, 1900, the plaintiffs were authorized to use in the sea-wall work Virginia or Maryland black-pine piles not less than 75 feet long, driving alternate piles front and back rows of black pine Sind yellow pine.

In doing the work under their contract, plaintiff drove 1,934 piles, aggregating 116,776 linear feet of piling. Of this number 291, aggregating 20,538 linear feet, were needed and used for the following purposes: 144 were for replacing piles that failed to “ bring up ”; 37 were for reinforcement work on the F-G section of the sea wall hereinafter mentioned; 12 were driven under the projecting end of caisson floors; 15 were used in carrying out a plan suggested by plaintiffs whereby a change was made in the method of spacing the piles under the F-G section of the sea wall; 11 were driven to fill in where spacing was too wide, owing to plaintiffs’ error; and 72 were for additional deadmen on the F-G section of the sea wall made necessary by plaintiffs’ request to drive three 50-foot piles in lieu of the two 75-foot piles required by the specification.

The number of Georgia long-leaf yellow-pine piles that were driven aggregated 88,452 linear feet, and the number of Virginia or Maryland pine piles actually driven aggre*386gated 28,324 linear feet. The difference between what would have been the reasonable cost to plaintiffs for furnishing Georgia yellow-pine piles and the Georgia long-leaf yellow-pine piles which they were required to and did furnish was $7,783.78.

IX. The plaintiffs estimated when they made their bid that they would require a total of 104,965 linear feet of piling to do the work called for in their contract. Included in their estimate they calculated to need 271 piles, each 65 feet in length, which number included 77 piles each over-90 feet in length. In the performance of their work they actually drove 59 piles each over 90 feet in length, 53 of which were spliced and 6 were in one-stick lengths. As stated in the last preceding finding, plaintiffs actually drove 116,776 linear feet of piling. If plaintiffs are entitled to recover on account of the extra length of piling which was furnished over and above their estimate, the amount would be $944.88.

X. The specifications for driving piles required that “ the piles shall be driven to hard bottom, or until they do not move more than one-half inch when struck with a force equal to 50,000 foot-pounds or its equivalent, or to the satisfaction of the architect’s representative, who will take into consideration all the conditions.”

Pile foundations were adopted for all structures under construction at this time at the Naval Academy. The work of driving piles was conducted by plaintiffs under all of its said three contracts at or about the same time, that under the armory, boathouse, and power house preceding somewhat the pile work under the sea wall. Each pile was driven in the presence of an inspector and a full record was kept of the length, size, material, final penetration, bearing power, and other desirable data of each pile.

In the course of their work on the sea wall plaintiffs experienced little, if any, difficulty in placing the piles along the section of the wall nearer the land when driven to a permitted penetration of 2 inches. As they proceeded outward from the land they encountered much difficulty because of the character of the soil, which failed to furnish suitable bearing for the piles. In the performance of pile driving *387work, the clerk of the works exacted a maximum penetration, of 2 inches under each of the last three blows of a hammer having 50,000 foot-pounds energy, and wherever possible, without injury to the pile, the driving was continued until a one-half inch penetration was obtained, and where a pile gave more than a maximum penetration of 2 inches, additional piles were required to be driven to replace them. Many of the piles of the length estimated for by the plaintiffs would not “ bring up ” when driven to a penetration of 2 inches. Early in February, 1900, all pile driving work was suspended, and the safety of the foundations of the structure was the subject of an extensive and careful investigation by a civil engineer of the Navy Department, theretofore appointed by the Secretary. Plaintiffs submitted to said civil engineer a request that the requirements of the specifications concerning the penetration to which piles should be driven be waived. On March 9, 1900, pursuant to directions of the Secretary, assistant to the superintendent Dodge, by written communication directed plaintiffs that thereafter all piles on the sea wall work must be driven until the penetration under a blow of 50,000 foot-pounds energy did not exceed one-half inch. The following day the clerk of the works directed plaintiffs’ attention to the following excerpt from the specifications :

“ All piles not less than 60 feet long, after they have been driven to their final bearing and cut off at the proper level, are to be in one piece unspliced; if a greater depth than sixty' (60) feet is required to reach final bearing, the contractor may splice the pile in an approved manner and continue driving until a solid bearing is reached. In any event, the pile must go down to solid bearing.”

Plaintiffs did not then use spliced piles and discontinued the driving of piles on the sea wall from March 10 to May 1, 1900. During this period several carrying capacity test piles were driven. Thereafter, at plaintiff’s request, they were permitted to resume driving of piles on the sea wall provided they used piles not less than 75 feet long, driven and followed to point of cut-off. When- such piles failed to “ bring up ” to the penetration of 2 inches under a blow of 50,000 foot-pounds energy, an extra pile was to be, and was, driven *388in the same manner. Jtluch time was consumed by plaintiffs in looking for piles of sufficient length in one stick. This could not be done. Thereafter plaintiffs used spliced piles, many of which, when driven to a penetration of 2 inches, failed at the point of splicing.

XI. A change in the method of construction of the concrete sea wall was suggested by plaintiffs in May, 1899, whereby it was proposed to substitute an open-caisson method of construction so that the monolithic blocks of concrete would be cast in a bos form. With this suggested change plaintiffs tendered drawings therefor. The suggested change was approved by Architect Flagg and by him promptly submitted to the Superintendent of the Naval Academy for his approval. Thereafter, and.on September 8,1899, the Secretary of the Navy appointed a board of naval officers to consider the merits of the proposed change, which board promptly reported to the Secretary that the open-caisson construction was superior to the method provided by the original contract, and that with certain changes recommended by the board, the substitution or change so proposed be approved. The method of construction called for by the original plans provided that a spur pile, of the same length as the bearing pile, be driven at an angle into the soil, composed of riprap and sand, where the bearing piles were driven, the foot of the spur pile to rest near the bearing pile, and the head of the spur pile to be wedged against the deadman pile, thus increasing the resistance of the deadman piles to lateral movement of the wall. The wall itself was to be connected to the upper part of the deadman pile by a tie pile. Said board recommended that said spur pile be omitted and a shorter pile to answer the same purpose be placed so that' its foot should rest at an angle against the bottom of the wall on a platform that formed the grillage of the caisson and its head wedged against the deadman pile; and that, in lieu of the tie pile, a lf-inch round steel tie rod with cast-iron washer be used, imbedding it in the monolithic concrete mass and extended to the deadman pile and through a 12 by 12 inch timber fastened to the back of the deadman pile with wrought-iron washers. This change was necessary because *389of the difficulty of securing good construction in the open-caisson method and was accepted by plaintiffs as better construction. The suggested change in the location of the spur pile materially lessened the resistance to lateral movement of the wall given by the deadman piles. Thereafter, on October 9, 1899, a supplemental contract between the parties was executed, providing for such changed construction.

XII. The open-caisson method of construction of said wall consisted of a box form, partly filled with concrete, to be floated out to the pile foundation and there sunk and filled in place. A short space was left between the ends of the box forms. This space was boarded on the sides and later filled with concrete, and constitutes what is called the “ caisson connections.” Said change to the open caisson method was suggested by plaintiffs, wTho recommended that the caisson forms be made water-tight. When plaintiffs came to make said connection, the superintendent of the academy, acting through the clerk of the works, required, over the plaintiffs’ protest, a change of the mixture for the concrete so as to largely increase the amount of cement called for by the specifications. The proportion of cement was practically doubled. The method which was being used by plaintiffs was to drop the concrete into the water, which had a depth of 10 or more feet, and the superintendent insisted that the effect of that was to wash out the cement and make a weaker concrete. Plaintiffs then proposed to use a funnel with which to shoot the concrete into place and insisted it was unnecessary to make the concrete so rich in cement. They wére required to use the richer concrete as above stated. The concrete could have been satisfactorily laid in place under the method proposed by plaintiffs. However, they placed it by hand through divers under water, a method of their own selection. The increased cost to him in using the additional quantity of cement required by the superintendent for making the caisson connections was $300.

XIII. During February, 1901, while the work of placing riprap and sand inside the wall was in progress, it was observed by defendants’ representatives, from measurements *390taken, that said sea wall on the northwest side of the powerhouse pier had settled about 2J inches at one point and at another point had raised about of an inch, and this fact was communicated to plaintiffs. The following month, by further measurements taken, it was discovered that said sea wall in the vicinity above mentioned had settled about 6 inches and had moved outward about 3 inches, and on April 4, 1901, the Superintendent of the Naval Academy, in a written communication to plaintiffs, called upon them to take such steps as would put the wall in a satisfactory condition, and notified them that unless such requested action were taken immediately, he would recommend that plaintiffs’ contract be forfeited. Said superintendent’s representative directed what method plaintiffs should adopt, and after considerable correspondence, and after personally consulting said architect, plaintiffs informed defendants’ said superintendent that whether the responsibility for the condition of the sea wall was theirs or not, and wholly from a desire to successfully complete their contract, they were willing, in order to prevent further settlement, to drive a row of piles on the outer edge of the wall to the best bearing obtainable, but would not thereby waive their right to extra compensation for such work. In order to arrest the downward and outward movement of said wall, plaintiffs drove 37 piles, 22 of which were spliced, on the outer edge of the wall, cutting them off below the grillage, and blocking out from these piles so cut off to the underside of the grillage. This piling-work for the reinforcement of said wall reasonably cost plaintiffs the sum of $6,338.59, and bills therefor were rendered daily to defendants.

The settlement in various parts of the wall and its outward movement still continuing in March, 1902, the plaintiffs, in addition to said piling work to remedy the same, were directed by the defendants’ representatives to, and they did, after protesting that all contract work had been done, load the wall with granite, with a view to ascertaining what settlement would occur under all weight intended to be carried. The material and labor involved in this work rea*391sonably cost plaintiffs $500. The settlement and movement of other parts of the wall continued, and on or about July 9, 1902, pursuant to the written direction of the Superintendent of the Naval Academy who acted upon the express authorization and direction of the Assistant Secretary of the Navy, plaintiffs also dumped 34,836 cubic yards of sand on the outside of said wall, after first informing said superintendent that additional compensation would be demanded for said work. The sand so dumped on the outside of said wall was worth $10,450.80.

No part of the foregoing three items mentioned in this finding has been paid by defendants, though a written demand for the reinforcement work done in and prior to April, 1902, was made by plaintiffs on or about August 9, 1902.

XIY. The specifications provided that—

“ When the piles have been driven to their final bearing, their heads shall be cut off horizontal at the levels shown on the drawings or plans. No greater variation than one (1) inch will be allowed, either under water or on land.”

In the inspection of the work of cutting said piles defendants’ clerk of the works ruled that no variation greater than 1 inch between the heads of the highest and lowest piles would be permitted. On inspection after being driven and cut a variation greater than 1 inch was found to exist between the highest and lowest pile heads. No pile heads as cut were more than 1 inch above or below the datum line shown on the drawings. Plaintiffs were required to recut the piles to within a variation of 1 inch of the highest and lowest pile heads. In recutting said piles it became necessary for plaintiffs to cut them after they were under water and by the work of a diver. The expense incident to re-cutting said piles was $1,012.50.

XY. With regard to filling, the specifications provided:

“The contractor shall fill directly against all new single walls with gravel or oyster shells and broken stone, so as to allow any water that may have collected above to pass down back of the walls. This filling is to be put in and in. a manner as may be directed, and is to begin on a level with bottom of wall and extend to bottom line of granite curb.

*392“ Entire area included between new sea wall and present sea wall, west of ‘ center line,’ mainly comprising the ‘ powerhouse pier,’ is to be filled in with coarse and sharp-grained sand well packed into place. This sand is to be deposited in layers, each of which is to be thoroughly settled before depositing the next. The greatest care is to be exercised in doing this work, as this pier will have to sustain very heavy loads, resulting from machinery in the power house.

“ This filling is not to be put in place immediately after the completion of the wall, but the latter, together with broken stone filling directly back of it, reinforced by sufficient sand to hold the stone filling in place, is to be allowed to stand for some time, so as to set and bind together properly, before placing the additional strain upon it.”

The claimants were required to make fills within the inclosures of the sea wall with shell, riprap, and sand. On account of the softness of the mud bottom, a great deal of the material used in filling sank and pressed the soft mud out of the area and through the spaces between the piles. At the time of making their said proposal, plaintiffs had estimated the amount of filling necessary by reference to said profile drawing and general elevation diagram. The following amounts of filling in excess of what they had estimated were required as a result of such settlement: 1,471 cubic yards of shell at $2 per yard; 4,527 cubic yards of sand at 30 cents per yard; 414 cubic yards of riprap at $2 per yard. The evidence does not otherwise show how much filling was required as a result of settlement.

XYI. The claimant was required to drive three carrying capacity test piles. This was done in order to determine whether the piles being driven in construction work would be sufficient to sustain the wall. The reasonable cost to the claimant for driving said test piles was $900.

XVII. The contract provided for the completion of the work in 270 days, or- on January 29, 1900. This time was three times extended on the request of the plaintiffs, each extension being for a period of six months. No further work was done or permitted subsequent to September 17, 1902, as stated in Finding XVIII. The defendant caused a suspension of and delay to the work for divers periods of time in, approving the change from the monolithic to the caisson *393method; in rejecting Georgia yellow-pine piles of the short-leaf variety and requiring plaintiffs to furnish Georgia long-leaf yellow pine for piling; in requiring plaintiffs to drive carrying capacity test piles and in observing the same; in requiring plaintiffs to leave caissons standing while under observation; calling of boards to investigate conditions and recommend action; pending orders to fill in back of wall with sand; and pending investigation of board appointed in December, 1902. The delays caused by defendants beyond a reasonable time for the purposes for which work was suspended, as above stated, aggregated 17 months and 15 days. For this period, during the greater part of which work was stopped, portions of the plaintiffs’ plant and some of their employees were idle, and they were thereby put to expense aggregating the sum of $3,602.50.

XVIII. On or about September 17, 1902, pursuant to direction by the Assistant Secretary of the Navy, plaintiffs discontinued all work on the sea-wall and power-house contracts. At that time there remained the following unfinished work under said sea-wall contract: 2,492 cubic feet of granite, unset; 20,413 cubic yards of inside fill; 265 cubic feet of concrete; 81 anchor rods, unset; 69 cubic yards of oyster shell; 367 feet b. m. platform; and 5 mooring rings.

October 31, 1902, the superintendent of the Naval Academy reported to the Chief of the Bureau of Navigation that work under said sea-wall contract was suspended by the department September 17, 1902, and that no work could be done by the Government until said contract was closed, and recommended that said contract be forfeited. At the same time he also recommended that said power house and coal-hoisting tower contract be also forfeited, and that a board be appointed to determine the value of work done under each of said contracts pursuant to their respective terms.

December 11, 1902, the Assistant Secretary of the Navy appointed a board, with Bear Admiral Wells L. Field as president thereof, to examine into the status of the plaintiffs’ work under its said sea-wall and power-house and coal-hoisting tower contracts, and report “in detail what additional compensation, if any, the contractors are entitled to *394by reason of extra work done, for changes made in requirements of the contracts, drawings, plans, or specifications for said structures.”

After hearing the testimony of numerous witnesses on behalf of the plaintiffs and defendants said board reported to said Assistant Secretary of the Navy on March 19, 1903, that the most feasible method of making this wall stable under the existing conditions appeared to be by filling on the outside with sand, and removing the mud .from the inside of the wall and replacing it with sand. That sand on the outside of the wall would entirely fill the space alongside, and, while it would accomplish the object of allowing the inside to be filled with sand and the mud to be pumped out, the fundamental object of such a structure — a place for vessels to lie alongside — would be defeated. The board recommended that the contractors be called upon to immediately complete their work on said sea wall.

Thereafter, on November 25, 1903, said Assistant Secretary of the Navy addressed a written communication to plaintiffs requesting them to proceed without further delay under their said contract with the removing of mud and the filling with sand, both inside and outside of the said sea wall, in order to insure the stability thereof. Plaintiffs promptly responded to that communication by writing said Assistant Secretary of the Navy that they did not, “ at this late day and after so long a suspension, feel obligated to continue or do the work on the sea wall under our contract of February 8, 1899, especially that part of the work described in your communication as ‘ removing of mud and the filling of sand, both inside and outside of the sea wall,’ ” and declined to continue the work.

Thereupon, by direction of said Assistant Secretary of the Navy, the Chief of the Bureau of Navigation, on December 14, 1903, addressed a joint written communication to plaintiffs and the American Bonding & Trust Co. of Baltimore, Md., informing them that, under the tenth, eleventh, and twelfth clauses of plaintiffs’ said contract of February 8, 1899, for plaintiffs’ failure to complete said sea wall in ac*395cordance with said contract and the plans and specifications therefor, and for plaintiffs’ refusal to proceed, as above stated, said contract was forfeited, and that as soon as practicable a board of five members would be appointed to take a full and complete statement and inventory of all work done or commenced in, on, or about said wall and its appurtenances, and of all materials on hand applicable thereto the property of the contractors, and to examine such work and materials and ascertain and declare the fair market value thereof, including a reasonable and customary margin of profit upon so much work as has been satisfactorily performed, the contract price, plus extras, if any, being taken as the fair market value of the completed work, before which board the contractors were privileged to make representations, as provided in said contract. Thereupon said bureau instructed its representatives on the site to take possession of the work and all materials on hand and to keep the same under their charge until further orders. Defendants thereafter took possession of said wall and plaintiffs' said materials on hand, Avhich were of the reasonable value of $4,286.25. Defendants never completed the construction of said sea wall.

On the same date, the Assistant Secretary of the Navy appointed a board of five members, with Near Admiral Wells L. Field as president thereof, to take a full and complete statement and inventory of all work done in and about said sea wall, as above stated, and report the result of its labors to the Bureau of Navigation.

Plaintiffs’ representatives appeared before and made oral and written representations to said board concerning the cost to plaintiffs of the work upon said sea wall. ' December 28, 1903, said board reported that out of a total length of about 1,225 feet, approximately 300 feet of the wall adjacent to the basin had as yet shown no signs of failure, but that such portion could not be pronounced stable, as a large amount of filling had yet to be placed back of it, which might cause some movement; and also reported upon the fair market value of all work done or commenced in, upon, or about said sea wall and appurtenances.

*396According to said report there was shown a balance due plaintiffs of $6,888.93, and the said Assistant Secretary of the Navy thereupon tendered to the plaintiffs the said sum of $6,888.93. On January 21, 1904, plaintiffs declined to accept said sum and requested that the entire controversy be referred to the Court of Claims for determination and adjudication.

The reasonable value of the work done by plaintiffs was $96,713.75. During the progress of the work they were paid from time to time on account of the contract price amounts aggregating $94,111.07, leaving a balance on said contract price of $21,246.05. The evidence fails to- show that plaintiffs would have made any profits upon the completion of their contract.

Campbell, *Chief*Justice,

delivered the opinion of the court.

The matters involved herein were referred to this court by the Secretary of the Navy under the provisions of section 148 of the Judicial Code, the reference having been made upon the application of plaintiffs. Under the provisions of the contract involved in the case it is probable that all of the questions could have been decided by the Secretary. He appointed a board, which took a large amount of testimony and made an investigation required by his order, consuming more that a year’s time, and reported their recommendations. Without taking further action than to tender to the plaintiffs the difference between the amount found by the board to be the value of the work done, with the value of certain materials added, and the amount which had already been paid the plaintiffs, the entire controversy was referred to this court.

Thereafter the plaintiffs appeared and filed their petition in this court.

The rules of the Supereme Court provide that this court shall find the ultimate facts, and also provide that the parties may make requests for findings of fact deemed by them to be material for the due presentation of the case. The rules of this court, established to carry into effect the rules of the *397Supreme Court, require a statement, in the form of distinct number propositions, of the facts which the party desires to have found, so arranged as to present a concise statement in orderly and logical sequence of the whole case as the party desires it to appear in the findings of fact, and that subjoined to each proposition so requested there shall be references to the pages of the record or to the unprinted evidence relied on in its support. The rule also requires that where a party objects to requested findings of fact by the other party the objection shall be pointed out specifically, with appropriate references to the record relied upon to support them. Either party is allowed to make requests for findings of fact. The rule does not contemplate or authorize in the requested findings of fact arguments or conclusions of fact or of law. We call attention to these rules because in the instant case they have not been ful-ly observed.

In 1899 the plaintiffs entered into a contract with the United States for the construction of certain sections of a sea wall near the Naval Academy and agreed to deliver the same complete in all respects as required by the drawings, plans, and specifications to the Superintendent of the Naval Academy, or to such person as he might direct to receive the same. A copy of the contract and specifications is attached to the petition. By the specifications, made a part of the contract, it was provided that the contractors should guarantee and maintain the stability of all work and material and keep same in perfect repair and condition for a period of one year after the issuance of the final certificate and would make good any defects appearing during that period when called upon to do so. The obligation of the plaintiffs therefore extended not only to the building of the sea wall but to its maintenance for the period stated, and having entered into that obligation, strict as it was, it became their duty to perform it.

It was said by the Supreme Court in *Dermott*v. *Jones,*2 Wall., 1:

> “ It is a well-settled rule of law that if a party by his contract charge himself with an obligation possible to be per*398formed he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforseen difficulties, however great, will not excuse him.”

Under the rules laid down in that case the plaintiffs would have no standing in this court, because they did not perform their contract, were it not for the fact that their contract was annulled and the controversy subsequently transferred to this court.

During the time of the prosecution of the work under this contract the plaintiffs were also prosecuting other work at the Naval Academy under contracts involving much larger sums than was involved under this contract. The work under the several contracts was carried along simultaneously. The original contract with which we have to do was made in February, 1899, and provided for the completion of the work upon the sea wall in 270 days. Several extensions of time were granted at the request of the plaintiffs, and considerable delays,, shown in the findings, were occasioned by the agents of the defendants.

A large part of the contention of plaintiffs is devoted to an attack upon the architect and upon the plans and specifications, and, strangely enough, it is alleged in the petition that the plaintiffs performed all that was required by their contract. It must be presumed that the contractors, who were experienced in their line of work, understood something of the nature of the work they undertook to perform. It is too ■late, after a contract is made and its obligations have been assumed, to complain of features that should have been considered before the contractors agreed to do the work. *Dermott*v. Jones, *supra.*They not only charge incompetency upon the architect but also bad faith on the part of the officers having supervision of the work, and they in substance charge that fraud was perpetrated upon them in the matter of certain borings which were made prior to the time of the contract. These charges are not sustained. The said borings were made to ascertain the character of the soil into which the piles were to be driven, and were by what is called the wash-boring method. The charge that these borings *399were improperly made is not sustained by the evidence. A correct record of the borings was kept, and it was accessible to all contractors when they made their bids. In addition thereto notations were made upon some of the plans calling attention to the location of the wall asnd the result of the borings. A prudent contractor was thus sufficiently put upon notice of the uncertainties of the soil into which piles were to be driven and the uncertainties of the foundation upon which they were to rest to sustain the sea wall. That difficulties were encountered which had not been anticipated by the contractors and which were unexpected by the Government’s agents, appears certain, and it also appears that the contractors were not left entirely free and at times were not left reasonably free to cope with the situation as it developed. On the contrary, the defendants’ superintendent in many instances took what may be characterized as a practical direction of the work. It was the right and duty of the contractors to build the sea wall according to their contract and without undue interference on the part of the Goverment’s agents.

As shown by the findings of fact, the wall sank in places and went somewhat out of alinement. The producing cause of these conditions is not definitely shown. If it was the duty of the contractors to prevent or remedy such conditions it was their right to be allowed to do so within the terms of their contract without undue interference or delays caused by the agents of the defendants.

The contractors were engaged on the work in September, 1902, more than three years after it had begun. On or about September *17,*1902, pursuant to direction by the Assistant Secretary of the Navy work was discontinued. In December thereafter a board was appointed by the Assistant Secretary of the Navy to examine into the status of the work and report thereon, as shown in Finding XVIII. That board reported in March, 1903, that the most feasible method of making the wall stable appeared to be by filling on the outside with sand, removing the mud from the inside of the wall, and replacing it with sand. They further reported that sand on the outside of the wall, as suggested, would *400entirely fill the space alongside, and while it would accomplish the object of allowing the inside to be filled with sand and the mud to be pumped out, it would defeat the fundamental object of the structure as a place for vessels to lie’ alongside. In other words, the suggestion of the board, if carried out, would not have produced a sea wall such as the contract contemplated. Thereafter, from March, 1903, to November 25, 1903, no action was taken, but on the latter date the Assistant Secretary of the Navy addressed a communication to the contractors requesting them to proceed without further delay with the removal of the mud and the filling with sand, both inside and outside of the sea wall, in order to insure its stability. 'We think it is manifest that the defendants had no right to impose the condition indicated by that notice. They eeuld have insisted upon the plaintiffs complying with their contract unless the long-delays by the Government and the various interferences of its officers had furnished excuse for not doing so, but the defendants certainly had no right to require something done which would have defeated the very purpose of the sea wall and made it in effect no sea wall at all. We think the plaintiffs had a right to refuse to do that work, and that the defendants had no right to annul the contract upon such refusal.

The evidence satisfies the court that the plaintiffs, if allowed to proceed, would not have made any profit upon their contract. They are entitled to be paid for the value of the work to defendants, which they did, less what has been paid them, and to be paid the value of certain material which was taken over by the defendants at the time of the alleged annulment of the contract. It does not appear that the defendants did any further work upon the wall or expended any other sums on account thereof. There are, however, some items claimed herein for which the plaintiffs are entitled to recover.

1. The specifications call for certain kinds of wood to be used in the piling. The plaintiffs bought some Virginia and Maryland pine piles, and a controversy arose as to whether they could be used in the work they had undertaken. A *401large part of this work under some of the contracts was upon the land, and, after some correspondence, the architect authorized the use of Mainland pine for piles on the land work, but ruled that in the sea wall they must use Georgia yellow-pine piles. The question then arose as to whether the plaintiffs could use Georgia short-leaf yellow pine, but the clerk of the works required them to use Georgia long-leaf yellow pine. As shown in the findings of fact, the latter variety is much more expensive, and during the progress of the work some Maryland and Virginia pine piles were allowed in the work on the sea wall. The question therefore is whether the contractors should be compensated for the additional expense to which they were necessarily subjected in having to procure Georgia long-leaf yellow-pine piles. The specification does not distinguish between the long-leaf and the short-leaf yellow pine, but it does show that piles of other kinds of wood were within its terms, and the short-leaf yellow pine was as good as these other varieties of wood. It appears that the trade understood that Georgia yellow-pine piles referred to the short-leaf variety.

In a supplemental contract made with the contractors relative to a change in the sea wall it is provided that certain grillage should be constructed of Georgia long-leaf yellow-pine lumber. We thus have the contract of the parties speaking in one instance of Georgia yellow-pine piles and in another instance it specifically refers to Georgia long-leaf yellow pine. We see no good reason for imposing upon the contractor a duty of getting the more expensive variety of yellow-pine piles, which were superior to other grades of wood mentioned in the specification, especially when he was allowed later to use a different kind of pine piles in the same character of work, and when the distinction between the two grades of yellow pine is made in the contract of the parties. We are of opinion that the contractors should be paid the difference between what they could have furnished Georgia yellow-pine piles for and what they reasonably expended for the long-leaf Georgia yellow-pine piles. That difference is shown in Finding VIII.

*4022. By agreement between the parties, a change in the method of construction of the concrete sea wall was made. This change was suggested by the contractors, who proposed to substitute what was called the open-caisson method of construction. By that method a bos form, partly filled with concrete, would be floated out to the pile foundation and there sunk, and then filled with concrete. A short space would thus be left between the bos forms which had to be later filled. When the contractors came to filling that connection the superintendent of the academy, acting through the clerk of the works, required them, over their protest, to change the concrete misture so as largely to increase the amount of cement called for by the specification. The superintendent’s objection was based upon the idea that dropping the mixture through the water would eliminate a large part of the cement and make a weaker mixture. The contractors then offered to deposit the concrete through a funnel, and it could have been satisfactorily laid in place by that method. They, however, finalty placed it by hand through divers, a method of their own selection! They could have used the funnel method. We think they should not have been required to use the additional cement and that they should be paid for it. Having selected a more expensive way to place it than they were called upon to do, we think they should not recover that expense. The additional cost of the cement is shown in Finding XII.

8. In the early part of 1901 it was discovered that the sea wall near the northwest side of the power-house pier had settled several inches and had moved outward. The superintendent of the academy called upon the contractors to take such steps as would put the wall in satisfactory condition, and notified them that unless such action were taken immediately he would recommend that their contract be forfeited. The contractors, after considerable correspondence, stated to the superintendent that whether the responsibility for the condition of the sea wall was theirs or not, and wholly from a desire to successfully complete their contract, they were willing, in order to prevent further settlement, to drive a row of piles on the outer edge of the wall to the best bearing *403obtainable, but that they would not thereby waive their right for extra compensation for such work. They thereupon drove a number of piles on the outer edge of the wall, and as the reinforcement of the wall was done under water by divers, the reasonable cost to the contractors was $6,838.59. This work was done upon the demand of the Superintendent of the Naval Academy, who, in a written communication, notified plaintiffs that unless the suggested action was taken immediately he would recommend that their contract be forfeited. The method of doing the work was likewise suggested by the defendants’ agent. The contractors claimed that it would be extra work and rendered bills daily under the provision of the contract calling for such bills in case the value of the work had not been agreed upon. Charged as they were by their contract with the duty of completing the wall, it was not a right of the superintendent to dictate what additional work should be done. In other words, the conractors should have been left free to carry out their own contract. If they chose to experiment, it was at their own risk, but the defendants’ superintendent could not impose an experiment, and, having done so, we think the defendants should pay for the additional work.

4. Thereafter, the contractors, in addition to said piling work, were directed by the defendants’ representatives to load the wall with granite, with a view to ascertaining what settlement would occur under all weight intended to be carried. The material and labor involved in this work is shown in Finding XIII. As it was manifestly an experiment on the part of the defendants we think the contractors should be paid for what it reasonably cost them to do the Work.

5. The settlement and movement of the parts of the wall continued, and, on or about July, 1902, the superintendent of the Naval Academy, under the direction of the Secretary of the Navy, directed the contractors to place a large amount of sand on the outside of said wall, and they accordingly dumped there something over 84,000 cubic yards of sand, for which they were not paid anything. The purpose of this sand was to add to the stability of the wall and the *404work was done under the direction of the Secretary of the Navy, the contractors protesting that they should be compensated for it. No part of this work was contemplated by the contract between the parties, and we think the contractors should be paid for that extra work, the amount of which is shown in Finding XIII.

6. After the piles were driven and cut off, it was found that there was a greater variation than 1 inch between the highest and lowest pile heads. No pile head as cut was more than 1 inch above or below the datum line shown on the drawings. The contractors were required to recut the piles to within a variation of 1 inch of the highcr l and lowest pile heads, and this work had to be done under water and by a diver, the expense of which is shown in Finding XIV. The specification required that the heads of the piles should be cut off horizontal at the levels shown on the drawings and plans, with no greater variation than 1 inch. We think the reasonable construction of the specification was that the variation should be with reference to the datum line and not with reference to the piles in the different parts of the work, and for this work of cutting the contractors should be compensated. The expense of this is shown in Finding XIV.

7. As above stated, the work was long delayed in its prosecution and was never completed. Several extensions of time were given at the request of the contractors, but the defendant took much time, and unreasonable time, in making investigations and delayed the contractors for different periods, in the meantime stopping the work, leaving portions of the plaintiffs’ plant and some of their employees idle, and thereby entailing an expense upon the contractors as shown in Finding XVII. For this expense the contractors should be compensated.

Judgment will accordingly be granted under Findings VIII, XII, XIII, XIV, XVII, and XVIII in the sum of $36,877.10. And it is so ordered.

Hat, *Judge;*Downey, *Judge;*Barney, *Judge;*and Boom, Judge, concur.