#### L. P. AND J. A. SMITH v. THE UNITED STATES.1

[No. 23013.

Decided April 14, 1919.]

*On the Proofs.*

*Contracts; extra work.*— The plaintiffs contract to dredge a channel in the Detroit River, the material to he removed according to the contract consisting of clay, sand, gravel, and boulders of unknown proportions. During performance a natural bed of limestone rock is discovered. Defendants’ engineer in charge ordered plaintiffs to remove the limestone rock. Plaintiffs protested and asked for extra price for this work, which request was refused, the engineer holding the material to be clay, sand, gravel, and boulders and 'threatening to have the work done at plaintiffs’ expense if it did not perform the same. *Held,*under the circumstances plaintiffs are entitled to recover.

*The Reporter's*statement of the case:

*Messrs. Rufus S. Day*and *Roscoe M. Ewing*for the plaintiffs. *Mr. Frank 8. Masten*was on the briefs.

*Mr. Harvey D. Jacob,*with whom was *Mr. Assistant Attorney General William L. Frierson,*for the defendants.

Plaintiffs, having agreed to do a thing possible to be done, they are not excused or entitled to additional compensation because unforeseen difficulties arose.

Inasmuch, therefore, as plaintiffs’ undertaking was *to dredge a channel W and %1 feet deep;*inasmuch as the very *120nature of the work rendered it impossible to determine in advance the exact character of the material to be dredged; inasmuch as defendant did not warrant the material, but only gave such information as it possessed, expressly stating that it was not guaranteed to be correct; inasmuch as the information given at least put plaintiffs upon notice that other material might be expected; inasmuch as plaintiffs had ample time to investigate for themselves; and inasmuch as plaintiffs were in as good if not better (because of their long experience in the neighborhood) position to know the true character of material, it is insisted that if unforeseen conditions were encountered, they must be held to be simply a part of the risk assumed by plaintiffs when they agreed to dredge a ship channel 20 and 21 feet deep and to remove therefrom all obstructions.

See also *Dermott*v. Jones, 2 Wall., 1; *Simpson*v. *United*States, 172 TJ. S., 872.

“The general rules of law applicable to these facts are well settled. Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation because unforeseen difficulties are encountered.” (Citing *Day*v. *United*States, 245 U. S., 159; *Phoenix Bridge Oo.*v. *United States,*211 U. S., 188.)

See also *Dermott*v. Jones, 2 Wall., 1; *Simpson*v. *United*States, 172 U. S., 372.

When the plaintiffs thought that they were being called upon to do work outside the contract terms and upon the refusal of the Government to make a new contract, they then had a choice of abandoning the work and suing for damages sustained or to proceed under the contract and at the contract price. They elected to proceed with the work under the contract, and at the termination thereof they accepted their final payment without any protest until the filing of this suit some five years later. It is now too late to insist that they are entitled to any further or additional compensation than that provided by the contract terms. *Ferris*v. *United*States, 28 C. Cls., 332; *Simpson*v. *United States,*31 C. Cls., 217; 172 U. S., 372.

*121In *Monad Engineering Company*v. *United*States, 53 C. Cls., 179, and *Lewman*v. *United*States, 41 C. Cls., 470, 474, the authorities are collected and discussed.

It is insisted that when all the facts with reference to the removal of bedrock are considered, it is perfectly clear that whatever bedrock was removed was not only below the 21-foot plane, but also was removed in utter disregard of the positive desire and instructions of the Government that it should not be removed by plaintiffs. In this situation their work must be held to have been entirely voluntary, for which they can now claim no additional compensation.

In *SicheVs*case, 1 C. Cls., 214, 217, this court said:

“ It is the duty of a claimant to show all the facts which will entitle him to a judgment and which will enable us to determine the amount of it. We must be convinced without a resort to our guessing faculties, and what is not clearly shown to be due should be rejected. We shall be governed by facts established in conformity with known rules of evidence, nor will these be relaxed because the Government is defendant; hardships may occur, but generosity is no part of judicial duty.”

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

I. The plaintiffs were at all the times herein mentioned a partnership, composed of Louis P. Smith and James A. Smith, doing business under the name of the L. P. and J. A. Smith Company. They are citizens of the United States and reside in the city of Cleveland, in the State of Ohio, where was their principal offices, and they have at all times borne true faith and allegiance to the Government of the United States, and have not in any way aided or abetted rebellion against the said Government.

II. In response to advertisements on behalf of the defendants, inviting proposals for furnishing all labor, material, and appliances and excavating a ship channel 20 and 21 feet deep, the plaintiffs submitted proposals for said work on section 8, which section was at the mouth of the Detroit River, and which section was a part and parcel of the channel appropriated for by the act of Congress of July 13, 1892, known as the river and harbor act.

*122III. On December 81, 1892, a contract in writing was entered into by O. M. Poe, colonel, Corps of Engineers, United States Army, and the plaintiffs, whereby the plaintiffs agreed to excavate a ship channel 20 and 21 feet deep, located in section 8, mouth of Detroit River, in accordance with the specifications attached to said contract, and which were a part thereof, and the plaintiffs were to receive in full compensation for their work 18 cents per cubic yard of excavation, scow measure. A copy of the contract and specifications are attached to the petition, marked “ Exhibit A.”

The foregoing contract was duly approved by the Chief of Engineers, United States Army, on January 19, 1893, and the plaintiffs, in pursuance of said agreement, proceeded to execute and carry out the provisions of the said contract,' and on October 19, 1897, the plaintiffs were ordered to cease dredging on section 8, and were notified on that day that their contract was completed.

Y. Among the specifications for said contract was paragraph 91, which read as follows: “Material: The material to be removed consists of clay, sand, gravel, and boulders, all in unknown proportions.” In the season of 1894 the plaintiffs and defendants discovered a natural bed of limestone rock toward the northerly end of section 8, which was within the boundaries of the excavation called for by the contract, and this rock was a material which was not provided to be removed by the terms of the contract. Whereupon the defendants advertised for bids for the removal of this limestone rock from section 8 of the aforesaid ship channel. The L. P. and J. A. Smith Company, a corporation organized under the laws of the State of Ohio, submitted a bid on said work, which bid was accepted by the defendants, and a contract in writing was entered into by the said corporation with the defendants through Col. O. M. Poe, United States Army, whereby the said corporation agreed to remove said rock and other material at the price of $2.24 per cubic yard of excavation bank measure. The said corporation completed the contract aforesaid on or about June 16, 1895. A copy of said contract and specifications are attached to the petition marked “ Exhibit B.”

*123VI. On February 10,1897, the plaintiffs were informed by Col. Lydecker, Corps of Engineers, United States Army, who was then in charge of the work being done by the plaintiffs under the contract of December 31,1892, that their contract was extended to July 1, 1897, and was extended from time to time by the defendants for the completion of the work. In that year Col. Lydecker ordered the plaintiffs to work at particular spots toward the northerly end of section 8, on what was known, respectively, as Upper Eock Shoal, Middle Eock Shoal, Hackett Eock Shoal, Lower Eock Shoal, and to do work on the Bar Point Eock Shoal, which had been excavated under the contract of November 9, 1894, with the L. P. and J. A. Smith Company. The material or a large part of the material to be removed from these points was limestone rock and limestone bedrock. The plaintiffs protested against excavating and removing limestone rock and limestone bedrock, and asked for the fixing of an extra price for doing this work. The defendants refused to fix any other price than that called for by the contract. The defendants insisted that all the material to be removed from the points above enumerated was clay, sand, gravel, and bowlders and told the plaintiffs that if they did not remove the same the plaintiffs would be declared defaulting contractors; that the work would be taken from them; that the work would be done and the same charged to the plaintiffs; and that it would be paid for from the retained percentages in defendants’ hands due the plaintiffs for work already performed under their contract, and if said percentages were not sufficient to pay for the work the plaintiffs and their bondsmen would be proceeded against.

VII. A large part of the material which the Engineer officer in charge arbitrarily stated to be clay, gravel, sand, and bowlders, was in fact limestone rock, and limestone bedrock and was not the material which was specified in the contract, and which the plaintiffs had to remove under the terms of the contract.

The quantity of material excavated by the plaintiffs from June 25, 1897, to October 17, 1897, was 33,832 cubic yards, 10 per cent of which was clay, sand, gravel, and bowlders, *124leaving 29,998 cubic yards of limestone bedrock. From this latter quantity there is to be deducted 1,250 cubic yards, the amount excavated below grade, leaving 28,748 cubic yards of limestone rock and limestone bedrock. Of this latter quantity about 12,990 cubic yards was limestone bedrock and 15,758 cubic yards was limestone rock.

A reasonable price for removing the 12,990 cubic yards of limestone bedrock was $6.22| per cubic yard, which would amount to the sum of $80,862.75. A reasonable price for removing the 15,758 cubic yards of limestone rock was $2.24 per cubic yard, which would amount to $35,297.92. These two sums amount to the sum of $116,160.67. The contract price for removing clay, sand, gravel, and bowlders was 18 cents per cubic yard; 3,333 cubic yards of this material at 18 cents added to $116,160.67 makes the sum of $116,760.61. From this sum must be deducted the sum of $5,174.64, being the 18 cents per cubic yard paid the plaintiffs on the 28,748 cubic yards removed by them from June 25,1897, to October 19, 1897, leaving due the plaintiffs by the defendants the sum of $111,585.97, which sum remains unpaid.

VIII. From June 25 to October 19, 1897, the defendants insisted upon locating for the plaintiffs the points where dredging was to be done, and the plaintiffs were compelled to wait upon the defendants for instructions before they could proceed with their dredging. As a result, the plaintiffs being without authority to continue the work, lost time while waiting for the defendants to locate their work. The time lost during this period, from June 25 to October 19, 1897, was 385 hours and 55 minutes, and the time so lost caused a loss to the plaintiffs of $7,718.30.

1

 Appealed.

MEMORANDUM BY THE COURT.

The plaintiffs in this case had a contract with the Government whereby they agreed to move from a ship channel certain material, which was specifically set forth and described in the specifications attached to the petition. The defendants, over the protests of the plaintiffs, required them to excavate and remove material which was not included in the contract. The defendants insisted, in the face of incon*125trovertible evidence, that the material which they required the plaintiffs to excavate and remove was the material described in the specifications, and stated to the plaintiffs that if they did not remove it they would be declared defaulting contractors; that the work would be taken from them, and would be done and charged to them, and paid for from the retained percentages due the plaintiffs for work already performed, and that if these percentages were not enough to pay for the work, the plaintiffs and their bondsmen would be proceeded against. Under these circumstances the plaintiffs excavated and removed the material, which the evidence in this case plainly shows was not the material described and specified in the contract and specifications. We think the right of the plaintiffs to recover the price for the work done by them is indisputable.

Judgment for plaintiffs in the sum of $111,585.97, under Finding YII, and the sum of $7,718.30, under Finding VIII, aggregating the sum of $119,304.27.