#### UNITED STATES FIDELITY AND GUARANTY COMPANY v. THE UNITED STATES.

[No. 31543.

Decided June 10, 1918.]

*On the Proofs.*

*Contracts.*— Plaintiff became surety for contractors engaged to build tbe Sbosbone Dam for tbe United States Reclamation Service, and after the default of tbe contractors and the suspension of their contract by the Secretary of the Interior, plaintiff entered into a supplemental contract with defendants’ officers whereby it undertook to complete the construction of the dam and certain auxiliary work. Thereafter defendants’ officers by contract purchased a quantity of lumber for another project .from a concern operating a leased sawmill a short distance above the dam site. In connection with the sawmill was a log boom that later broke and seriously damaged work on the dam theretofore completed and otherwise delayed the work. Various delays in the work attributable to the defendants’ officers took place, and numerous changes from the original plans were made, causing the plaintiff to perform extra work.

*Delays due to Government, liability for.*— The Government is, of course, responsible in damages for delaying a contractor’s work and for noncompliance with contract provisions respecting the prompt delivery of materials undertaken to be furnished by it.

*Delays of third parties, liability for.*— The Government is not liable *ex contractu*for damages or delays suffered by one of its contractors by virtue of the actions of third parties merely because the latter are engaged in furnishing materials for the Government as well as for the public generally.

*The Reporter’s*statement of the case:

*Messrs. J. Kemp Bartlett*and *E. 0. Brandenburg*for the plaintiff. Bartlett, *Poe (& Olaggett*and *Brandenburg dc Brandenburg*were on the briefs.

*Mr. Assistant Attorney General Huston Thompson*and *Mr. J. Harwood Graves*for the defendants.

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

I. On September 23,1905, Prendergast *&*Clarkson entered into a contract with the United States for the construction *562of the Shoshone Dam and auxiliary works in the State of Wyoming for the sum of $515,730. On the same day the United States Fidelity & Guaranty Co. executed and delivered to the United States its bond in the penalty of $100,000, guaranteeing on the part of Prendergast & Clark-son the performance of said contract. A copy of the contract, specifications, and the bond aforesaid are made a part hereof by reference.

On August 10, 1906, the Secretary of the Interior suspended the contract of Prendergast & Clarkson and took possession of their machinery, plant, and equipment. On September 10,1906, the plaintiff entered into a supplemental contract with the defendants, by which the plaintiff agreed to construct and complete the Shoshone Dam and auxiliary works in accordance with the terms of and at the prices set forth in the contract made by the defendants with Prender-gast & Clarkson. A copy of said supplemental contract is made a part hereof by reference. The dam was completed and the work accepted by the defendants on January 15, 1910.

II. The defendants placed in charge of the construction of the works covered by the aforesaid contracts, as their construction engineer, D. W. Cole, who had been located at the canyon of the Shoshone Biver making surveys and test bor-ings in connection with said work since June, 1904. Mr. Cole remained continuously at the site of the work and in charge thereof until it was completed and accepted by the defendants.

III. At the time of the execution of the contract with Prendergast & Clarkson the defendants had not acquired title to all of the land which would be flooded by the reservoir to be formed by the Shoshone Dam. On October 26, 1905, the defendants entered into an agreement with Thomas S. Trimmer and his wife for the purchase of a tract of land containing 679 acres, all of which lay Avithin the resenmir site; among other things said agreement provided that the vendors might retain possession and have the use of said land until they Avere dispossessed by the Avaters, notwithstanding the earlier delivery of the deed. On said tract of land there Avas located in the year 1905 a saAvmill on the *563banks of the Shoshone Eiver, in connection with which there was maintained a log boom extending across the river at a point about a mile and a half above the Shoshone Canyon and site of the Shoshone Dam. The Shoshone Eiver is a nonnavigable stream under the control of the State of Wyoming.

The sawmill site was leased by Trimmer to the Wallop & Moncreiife Lumber Co., which operated the same, and sawed lumber for the public generally. The defendants had no control over said sawmill or log boom. The presence of this sawmill and log boom were known to the engineers of the United States and to the contractors.

IY. Prendergast *&*Clarkson assembled at the site of the work a plant and equipment for the doing of the work required in the first season, and had in their employment a force of superintendents, foremen, mechanics, and laborers. The work was commenced on November 11, 1905. No work was performed on any structure until the Government engineer had established and set location stakes, points, or elevations for the same. This was done by the Government engineer for the upstream end of the diverting tunnel on November 18, 1905, and on the downstream end thereof on November 30, 1905. The contract required that the temporary diverting dam, the diverting flume above the tunnel, and the diverting tunnel should be completed by March 3, 1906. The temporary dam was completed on April 28,1906; 840 feet of the flume was built, and the diverting tunnel was bored, and one-half of it was lined. The log boom spoken of in Finding III on or about June 13, 1906, broke, and the water and logs released by it wrecked the flume and seriously injured the diverting dam. This damage to the diverting works delayed the work on the dam for one year. The reasonable cost of constructing said flume was $24,986.

V. After the execution of the supplemental contract by the plaintiif. on September 10, 1906, the defendants entered into a contract with the Wallop & Moncreiife Lumber Co. by which it was agreed that the lumber company would furnish the United States Eeclamation Service with 1,000,000 feet b. m. lumber, which the defendants needed for a project other than the Shoshone Dam project. Before the flood *564season of 1907 Wallop & Moncreiffe applied to the State engineer of Wyoming for a permit to drive logs and other timber, submitting with said application plans for the construction of a log boom across the river from the site of their sawmill, which they were occupying under a lease from Trimmer as aforesaid. This application was approved by the State engineer of Wyoming on February 25, 1907. The log boom was built by the lumber company in accordance with the plans submitted to the State engineer. These plans were approved by the Government engineer in charge of the work on the dam which was being constructed by the plaintiff. They were submitted to the engineer employed by the plaintiff, and he did not object to them.

VI. The plaintiff assembled at the site of the work its plant for the prosecution of the work, and early in January, 1907, began to rebuild in its entirety the diverting flume, which had been destroyed as aforesaid; to repair the diverting dam; to complete the lining of the diverting tunnel; and to remove the rock blasted by the previous contractors, which had been allowed to remain in the bed of the river, where it impeded the flow of the river and raised the level of the water above the mouth of the tunnel.

Under a revised plan prepared by the Government engineer a new diverting flume was built by the plaintiff, longer and with timbers of larger dimensions than the one which had been destroyed in the previous year. This work was completed in April, 1907. The plaintiff repaired the damage done to the diverting dam the season before, and this work was also completed before the flood of 1907. The lining of the tunnel was also completed, and the rock removed from the bed of the stream before the flood of 1907. A temporary connection was made between the diverting flume and the diverting tunnel. This was completed on May 19, 1907. Owing to differences of opinion between the Government engineers the location of the tail flume was delayed, and was not built until the fall of 1907, and as a result of this delay the curtain wall could not be placed.

VII. During the winter of 1906 and the spring of 1907 Wallop & Moncreiffe reconstructed the log boom across the *565Shoshone River at the site of the sawmill, which they were leasing from Trimmer, as above set out. The flood of that year (1907) came in the early part of July, and at midnight of July 3 the logs, which had been assembled along the banks of the river above the boom, reached the log boom, jammed against it and broke it, and these logs in large numbers were driven upon the diverting works of the plaintiff and were piled against and upon the diverting dam. The diverting dam was punctured and a 100-foot section of it was carried away. Before the flood had entirely subsided the plaintiff began repairs on the diverting dam and completed the same in October, 1907. The plaintiff actually and reasonably expended in rebuilding the diverting flume the sum of $38,650, and in repairing the damage done by the flood of 1906 to the diverting dam the sum of $14,700.

The actual cost to the plaintiff of the repairs to the diverting dam, damaged by the flood of 1907,' was $22,250, which was a fair and reasonable cost of repairing the damage.

VIII. On October 28 the defendants caused the diverting flume to be cut, and the waters of the river returned to their natural channel through the canyon. The plaintiff could not proceed with the excavation in the bed of the river for bedrock foundation for the permanent dam. This suspension of excavation for bedrock necessarily continued for 35 days. During the time of this suspension the defendants had installed at the portal of the intake of the diverting tunnel a concrete and iron structure, not shown upon the contract plans, nor mentioned in the specifications or in the contract. It was constructed by the defendants at their own expense. This structure consisted of two concrete walls, parallel with the line of the tunnel, with seven iron I beams built into said walls, each of which I beams extended across the portal of the tunnel at right angles to its axis, each of said I beams being 6 inches wide by 15 inches high and 10 feet long, and each having attached to it a cast-iron plate 6 inches wide and 8 inches high and 10 feet long; the dimensions of each I beam and attached plate being 6 inches wide-, 23 inches high, and 10 feet long, and iron bars were then placed across said I beams and plates, forming a screen or grillage. This grillage obstructed the flow of water into and through the di*566verting tunnel, and reduced its capacity to divert the waters of the river to less than one-half of its capacity prior to the installation of this grillage, and to less than one-half of the diverting capacity of 2,000 feet per second, guaranteed to the plaintiff by the terms of the contract. Upon this grillage there collected débris and drift material, which further restricted the diverting capacity of the tunnel. The installation of this grillage by the defendants delayed the work of the plaintiff, and made it necessary to do a part of the concrete work during the winter months; was the direct cause of money loss to the plaintiff entailed by the cold-weather work in the fall of 1908, and of the organization for work in the spring of 1909.

The time lost by the plaintiff during the installation of this grillage made it necessary for the plaintiff to make the excavation for the foundation of the dam during the winter of 1907 and 1908 at an additional cost to it of $25,123, which is the fair and reasonable extra cost of this item of work. To remove the driftwood and debris from this grillage the plaintiff was obliged to employ a force of hands during two and one-half years, and to use them for protracted periods during that time. The reasonable cost to the plaintiff for the labor thus required was the sum of $4,200.

IX. The contract provided for the construction of a curtain wall, which was to be constructed in advance of any other portion of the dam. It was provided that it should be 15 feet in thickness at the base, and battering to a thickness of 3 feet at its top. It was to serve as a temporary dam to protect the foundation pit from being filled, and operate to increase the diversion capacity of the tunnel, and extend the period of time during which concrete could be placed. Its elevation was to be 5,158, which is 18 feet higher than the bottom of the tunnel and 31 feet above the river bed. This would have increased the diverting capacity of the tunnel, if unobstructed, to 3,500 second-feet, and greatly expedited the work of the plaintiff.

The defendants refused to permit the plaintiff to build the curtain wall upon the location called for and specified in the contract drawings, or as it was therein designed. The plaintiff was required, over its protest, by the defendants to build *567the curtain wall at a different location, and more than twice as broad at its base, which wall was required to be racked or stepped up on its downstream face, which made it slower of construction than the wall provided for in the contract. This wall was partially built prior to the rise of the river on April 11, 1908, and contained 8,700 cubic yards of concrete. At that time it had reached an elevation of 15 feet below the river bed. The wall provided for in the contract called for 2,500 cubic yards of concrete, at an elevation of 5,185, or 31 feet above the river bed, and if built in accordance with the provisions of the contract would have been completed before April 11, 1908.

Further delay in the building of the curtain wall was caused by the failure of the defendants to deliver at the site of the dam cast-iron pipes for the construction of two discharge pipe lines through the dam at the elevation of the bed of the river, which pipes were not included in the work of the plaintiff. From the elevation to which it had been built before the arrival of high water in 1908 the curtain wall as such was never constructed. The failure to construct this curtain wall delayed the plaintiff in its work.

X. The location of the dam is shown upon the drawings, which are parts of the contract. The contract provided that no work depending upon locations and grades should be undertaken until they had been given by the e-ngineers of the defendants. The engineers from time to time as the work progressed gave points to the plaintiff for the area to be excavated for the foundation of the dam. The foundation for the dam was fully excavated on February 22, 1908, at the site shown upon the' contract drawings with full knowledge of the Government engineer. It was then made ready for the placing of concrete in the curtain wall. The engineer of the Government changed the location of the dam, and required the plaintiff to make additional excavation 12 to 15 feet in width upstream from the location fixed by the contract and from the foundation which had been uncovered. Bedrock at this point was 80 feet below the river bed; and the plaintiff was obliged to excavate to a depth of 20 feet 4 inches below the uncovered foundation. The requirement was not made of the plaintiff until it had uncovered bedrock *568and cleaned np at the location of the dam provided for in the contract. This change in the location of the dam caused additional delay in the placing of concrete and in completing the work under the contract. The actual cost to the plaintiff by having to make this additional excavation was $7,163.75 above contract price.

XI. The obstruction of the tunnel caused by the installation of the grillage and I beams and the failure to erect the curtain wall caused the overflow of the flume, which resulted in the filling up with water, rock, gravel, and sand of the foundation pit, which had been excavated and de-watered before the overflowing of the flume on April 11 and May 2, 1908. The foundation pit had to be again excavated and dewatered, and this work cost the plaintiff the sum of $17,096.12, which was a fair and reasonable cost for this work. After the flume ceased to overflow the plaintiff, on August 28,1908, began the reexcavation of the foundation pit, which it finally completed on September 23, 1908. On October 14, 1908, the work was again overflowed, the overflowing being due to the overflow of the flume.

XII. There was contained in this dam 75,242 cubic yards of concrete. The change in the location of the dam, the installation of the grillage and I beams at the portal of the tunnel, the obstruction of the tunnel caused thereby, the delay in building the curtain wall, and the flooding of the works which resulted therefrom caused great delay to the plaintiff in placing concrete. These delays were caused by the defendants.

The contractor was compelled to do a large amount of concrete work in the winter seasons, which greatly increased the cost of the work. Extensive plants had to be installed, work had to be done with much less expedition, and labor had to be paid higher wages.

There were placed in the base of the dam 15,775 cubic yards of concrete, which cost the plaintiff $8.28 per yard; a total of $130,538. It was paid the contract price of $4.75 per cubic yard, a total of $74,951, leaving the amount $55,587 due the plaintiff as excess cost incurred by it and due to the delay caused by the defendants.

*569Sixteen thousand two hundred and fifty yards of concrete immediately above the base of the dam was laid in cold weather in the years 1908 and 1909, and cost the plaintiff $7.70 per cubic yard, a total of $125,120, for which it was paid the contract price of $4 per cubic yard, leaving as the excess cost to the plaintiff $60,120.

Forty-three thousand two hundred and seventeeen yards of concrete were placed in the dam from September, 1909, to January 15, 1910; of this amount 19,395 cubic yards were placed in the cold months of November and December, 1909, and January, 1910, at a cost of $10 per cubic yard, or a total cost of $193,950, for which it was paid the contract price of $4 per cubic yard, or a total of $77,580, leaving as the excess cost to the plaintiff the sum of $126,370, making an aggregate loss to the plaintiff of $242,077 in the placing of concrete due to the delays caused by the defendants. The item of $17,096.12 mentioned in Finding XI is included in the above aggregate.

XIII. Because of the overflow of the flume in April, 1908, due to the throttling of the diverting tunnel and the failure to build the curtain wall as designed and located by the specifications, the plaintiff lost certain trackage in the bed of the stream between 400 and 500 feet in length, and a small suspension bridge, the reasonable value of which was $624.

XIY. The contract provided that the Government was to provide and deliver at Cody, Wyo., the cement for the use of the plaintiff in the construction of the dam; the plaintiff was to furnish suitable warehouses, having a capacity of at least 12,000 barrels, and was to be liable for any loss or damage to the cement after its delivery to the railroad station at Cody.

The Government did not furnish the cement in regular quantities. The plaintiff was, owing to the irregularities of delivery of cement, compelled to hire extra teams for the purpose of hauling the cement to the site of the work, and to pay therefor $700. For this amount the Government issued a voucher for its payment. This voucher has never been paid and is still due.

Four hundred barrels of cement were lost by the flooding of the dam above described. For this the Government *570charged the plaintiff the sum of $920, said sum having been retained by the Government from money due by the Government to the plaintiff. The plaintiff had also to pay for extra cartage of cement thus lost in flood $240.

XV. Section 51 of the specifications designates class 4 excavation “ as all excavation of solid rock in walls of canyon for abutments above elevation 5,130.” The schedule annexed to the contract estimates the quantity of the excavation at 6,000 cubic yards at $2 per yard. The specifications also provide that the quantities given in the proposal are for the purpose of comparing bids, and are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. The excavation of class 4 material was of the most difficult and expensive character, as well as dangerous. The Government delayed in giving plaintiff the lines and location stakes in order that the work might not be started until June 1, 1906. The plaintiff was required to excavate from the said walls of the canyon 12,857 cubic yards of class 4 material, instead of 6,000 yards mentioned in the schedule. Because of the difficulties attending the excavation of this class 4 material the cost was very much greater than any other excavation, and the time required for the work was for the same reason greatly increased.

The plaintiff was paid the contract price of $2 per cubic yard for excavating this class 4 material, which amount was the sum of $13,714. The excess cost to the plaintiff of excavating 6,857 yards of class 4 material was $1.88 per yard, which amounted to the sum of $12,891.16.

XVI. The contract provided that the plaintiff should place, by hand, in the freshly deposited concrete, sound and clean pieces of granite, weighing between 25 and 200 pounds. This hand-placed stone was known as plum rock. In the excavation of the abutments and foundation pit a large quantity of the rock' excavated therefrom was placed under the cableways to be used as plum rock. A part of this rock was rejected as being unsound, and a large part of the remainder was rejected by the Government engineer as having-been subjected to overflow from the frequent floods and the *571deposit of silt and sediment thereon. The engineer in rejecting this work as not being suitable acted in good faith.

The plaintiff in order to supply suitable rock was obliged to open quarries at various points in the vicinity of the work, which resulted in the plaintiff having to undergo additional expense for placing this rock. This additional expense amounted to the sum of $39,746.60.

XVII. The specifications provided for the construction of a tail flume, the lower terminal of which was to be at least 500 feet below the lower end ftf the outlet tunnel, the said flume to cross from the right to the left bank of the river. The constructing engineer and the supervising engineer having charge of the construction of the work could not agree as to the location of this tail flume. The supervising engineer finally agreed with the constructing enginer that the location of this flume should be changed from the location fixed in the specifications, and directed that it should be built on the right or south bank of the river. To construct the flume where it was finally authorized to be placed by the supervising engineer increased the cost therefor in the reasonable sum of $2,000.

XVIII. The specifications provided that all concrete should be composed of Portland cement, sand, and broken stone in the proportion directed by the engineer, and where not otherwise directed the proportions should be one part cement, two and one-half parts sand, and five parts broken stone. In all cases of controversy in regard to the quality of the sand the contracting engineer was, according to the specifications, to be the judge of the quantity of the sand used in mixing the cement.

At various times in the mixing of concrete the engineer decided that the sand was too coarse and contained more voids than authorized by the contract. This decision was made in good faith.

On these occasions the enginer reduced the quantity of stone entering into the mixture, which necessitated the use of more sand to the amount of 2,425 yards of sand. This sand cost $3 per yard, which was a reasonable cost. The total excess cost to the plaintiff by reason of the reduction of stone and the increase of sand in the mixture was $12,784.

*572XIX. The plaintiff was required by the defendants to excavate 183 cubic yards of rock outside of the neat lines within the portal of the spillway tunnel not provided for in the contract or shown in the plans. The reasonable cost and value of this work was $5.50 per yard, making a total of $1,006.50.

XX. In the spillway discharge, a short distance below its lower mouth, there was a projection in the canyon wall, which the plaintiff was required to remove in order to straighten the discharge channel. This rock was removed in small quantities, as required by the Government engineers. In doing this work this plaintiff excavated 600 yards of rock at a total cost of $3,600. The specifications provided that the plaintiff should do this character of work.

XXI. In order to place the concrete the plaintiff was required to construct forms out of 2-inch dressed tongue-and-groove lumber to hold the concrete in place until it became hardened. These forms were placed on the exterior of the dam, and the lumber of which they were made could be repeatedly used. Owing to the amount of concrete laid in cold weather, occasioned by delay caused by the defendants, it was impossible to remove this lumber on account of the severity of the weather. The plaintiff could not save this form lumber and was obliged to replace the same with new lumber at the actual cost of $33 per thousand feet. The amount of lumber needed to replace the lumber above described was 76,323 feet, which cost the plaintiff the sum of $2,518.50, which was its reasonable cost and value. .

. XXII. Additional work amounting to the sum of $1,700.93 was performed by the plaintiff; an estimate therefor was issued by the Declamation Service under date of April .30, 1910, and was approved and passed for payment, but has not been paid.

XXIII. The plaintiff provided a large and expensive plant in order to execute the contract. This plant was reasonably worth the sum of $160,000. This plant was necessarily kept at the site of the dam during the time of the execution of the contract. The reasonable value of the use of this plant during the time which it was not used, owing to delays caused by the defendants, was the sum of $25,000.

*573XXIV. Under the terms of the contract 10 per cent of the cost of the work was deducted from the payments and retained by the defendants until the completion of the contract. All of this retained percentage has been paid to the plaintiff except the sum of $8,890.99, which is still due and owing to the plaintiff.

XXV. A profit of 10 per cent is a fair and reasonable profit on work of the character done by the plaintiff under its contract. The cost referred to in the above findings is the actual expenditure made by the plaintiff taken from the records of cost kept by the plaintiff and by the defendants. The extra cost of the performance of the contract for which the defendants are responsible is the sum of $272,658.18, 10 per cent of which is $27,265.81. The plaintiff was paid the full contract price for the work performed by it.

Hay, Judge,

delivered the opinion of the court.

This is a suit brought by the United States Fidelity & Guaranty Co. of Maryland against the United States. The facts are that on September 23, 1905, Prendergast & Clark-son, a construction firm of Chicago, entered into a contract with the United States for the construction of the Shoshone Dam in the State of Wyoming. They were to receive the sum of $515,730 for its construction. The two contractors actually expended over $1,000,000 on this work. The plaintiff became the surety for Prendergast & Clarkson, and executed and delivered a bond to the United States in the penalty of $100,000, guaranteeing on the part of Prendergast & Clark-son the performance. of the contract aforesaid. The said Prendergast & Clarkson began work on the contract and continued the work until August 10, 1906, on which date the Secretary of the Interior suspended their contract and took possession of their plant and equipment under circumstances to be detailed later in this opinion.

The site of the dam was located in a narrow canyon, 5,000 feet above sea level. The approach to this canyon was almost inaccessible, and through it flowed the Shoshone River, a non-navigable stream in the State of Wyoming. This river flowed with a variation of volume from a few hundred to 12,000 second-feet. The floods in this river, owing to melt*574ing snow, as a rule, continued for some time in April until August. At the time of the execution of the contract with Prendergast & Clarkson one Trimmer owned a tract- of land situate on the Shoshone River about *1{-*miles above the canyon where the dam was proposed to be built. Upon this tract of land was a sawmill, and across the river at that point was a log boom, which at that time was being operated by the Wallop & Moncreiffe Lumber Co., under a lease from said Trimmer. This land of Trimmer was within the reservoir site and would be flooded when the dam was completed. The lumber company operated the sawmill for the public generally. At the time the contract was entered into by the defendants with Prendergast & Clarkson the United States had no control over the land of Trimmer, nor over the sawmill situate thereon.

On October 26,1905, the defendants, through agents of the United States Reclamation Service, entered into an agreement with Trimmer and wife for the purchase of the land, on which was located the sawmill above referred to. Among other things this contract provided that “ Trimmer and wife might retain possession and have the use of said land until they were dispossessed by the water, notwithstanding the earlier delivery of the deed.”

Among other provisions of the contract it was provided that témporary works shall be erected by the contractors for the purpose of diverting the waters of the Shoshone River from the proposed site of the dam. These works were to comprise a temporary diverting dam, and temporary flume, and a Averting tunnel. These works were to be completed under the terms of the contract on or before March 8, 1906, having special reference to the annual occurrence of the flood season. The dam and 840 feet of the flume and the tunnel were not completed on the 3d day of March, 1906, but they were completed before the flood season of 1906 began. Early in June of the year 1906 the floods in the river began, and on June 13, 1906, the log boom of the Wallop & Moncreiffe Lumber Co. broke, and the water and logs released by it wrecked the flume and seriously injured the diverting dam built by Prendergast & Clarkson. It cost Prendergast & Clarkson $24,986 to construct this flume.

*575After the execution of the supplemental contract by the plaintiffs, on September 10,1906, the defendants entered into a contract with the Wallop & Moncreiffe .Lumber Co., by which it was agreed that the lumber company would furnish the United States Reclamation Service with 1,000,000 feet b. m. of lumber, which the defendants needed for a project other than the Shoshone Dam project. Before the flood season of 1907 Wallop & Moncreiffe applied to the State engineer of Wyoming for a permit to drive logs and other timber, submitting with said application plans for the construction of a log boom across the river from the site of their sawmill, which they were occupying under a lease from Trimmer as aforesaid. This application was approved by the State engineer of Wyoming on February 25, 1907. The log boom was built by the lumber company in accordance with the plans submitted to the State engineer, and these plans had been approved by the Government engineer in charge of the work on the dam which ivas being constructed by the plaintiff. Whether the engineer employed by the plaintiff formally approved these plans does not appear, but it does appear that they were submitted to him and he did not object to them.

The plaintiff, in the fall of 1906 and the spring of 1907, proceeded to repair the damage done to the temporary dam by the flood of 1906, and to rebuild the temporary flume, and to complete the lining of the diverting tunnel. The flume was built of larger timber and made longer than the flume which had been washed away. The temporary diverting works were completed before the floods of 1907. The flood of 1907 came in the early part of July, and at midnight of July 3 the logs which had been assembled along the banks of the river above the boom reached the boom, jammed against it, and broke it. These logs in large numbers were driven upon the temporary diverting works of the plaintiff; they were piled against and upon the diverting dam of the plaintiff ; the dam was punctured and a 100-foot section of the dam was carried away, and the work of the plaintiff was flooded, and it was greatly delayed in the prosecution of the work. It cost the plaintiff the sum of $38,650.50 to rebuild the diverting flume, and to repair the damages to the diverting *576clam done by the flood of 1906, $14,700, and the sum of $22,250 to repair the damages done by the flood of 1907 to the diverting dam.

The contract provided for the building of a tail flume, and also for the construction of a curtain wall. The Government engineers could not agree upon the location of the tail flume, and the postponement of the tail flume was responsible for the delay in the construction of this curtain wall.

On October 28, 1907, the defendants caused the diverting flume to be cut and the waters of the river returned to their natural channel through the canyon. The plaintiff was therefore prevented from proceeding with the excavation in the bed of the river for bedrock foundation for the permanent dam. This suspension of excavation for bedrock necessarily continued for 35 days; and during the time of this suspension the defendants had installed, at their own expense, at the portal of the intake of the diverting tunnel, a concrete and iron structure not required by the contract nor shown upon the contract plans. This structure when completed proved to be a grill which extended across the portal of the tunnel at right angles to its axis. This grill obstructed the flow of water into and through the diverting tunnel, and reduced its capacity to divert the waters of the river to less than one-half its capacity prior to the installation of this grill, and to less than one-half of the diverting capacity of 2,000 feet per second guaranteed to the plaintiff by the terms of the contract. Upon this grill debris and drift .of all sorts collected and further restricted the diverting capacity of the tunnel.

The contract provided for the construction of a curtain wall, which was to be constructed in advance of any other portion of the dam. Its purpose was to act as a temporary dam for diverting the water of the river into the outlet tunnel in case the temporary flume would not. It was designed also to prevent the filling of the foundation pit with rock and gravel, and was a protective measure to enable work on the dam to be carried on with expedition and dispatch when the water had risen. In short, it was a feature of the utmost importance to the successful and expeditious prosecution of the work. As tersely stated by Mr. Cole, the constructing *577engineer of the defendants, “ It was a vital thing.” It was provided in the contract that it should be 15 feet in thickness at the base, and battering to a thickness of 3 feet at the top. Its elevation was to be 5,158, which is 18 feet higher than, the bottom of the tunnel, and 31 feet above the river bed, and it was estimated that it would have increased the diverting capacity of the tunnel 3,500 second-feet.

The plaintiff was required, over its protest, to build the curtain wall at a different location than that specified in the contract drawings, and to build it of a different design than that called for in said drawings. It was required to construct it more than twice as broad at its base; it was also required to rack it or step if upon its downstream face, thus prolonging its construction. On April 11, 1908, it had been built to an elevation of onlv 15 feet below the river bed. Further delay in the building of the curtain wall was also caused by the failure of the defendants to deliver at the site of the dam cast-iron pipes for the construction of two discharge pipe lines through the dam at the elevation of the bed of the river; these pipes were not included by the terms of the contract in the work of the plaintiff.

The flood of 1908 season began on April 11, 1908.

The location of the dam is shown upon the drawings which are parts of the contract. The contract also provided that no work depending upon location and grades should be undertaken until they had been given by the engineer of the defendants. The foundation for the dam was fully excavated on February 22, 1908, at the site shown upon the contract drawings. It was then made ready for the placing of concrete in the curtain wall. The engineer of the Government then changed the location of the dam, and required the plaintiff to make additional excavation 12 to 15 feet in width up the stream from the location fixed by the contract and from the foundation which had been uncovered. Bedrock at the new location was 80 feet below the river bed, and the plaintiff was obliged to excavate to a depth of 20 feet 4 inches below the uncovered foundation. This change in the location of the dam caused additional delay in the placing of concrete and in completing the work under the contract.

*578The obstruction of the tunnel caused by the installation of the grill and the failure to erect the curtain wall caused the overflow of the flume which resulted in the filling up with water, rock, gravel, and sand the foundation pit which had been dewatered and excavated before the overflowing of the flume on April 11, 1908, and on May 2, 1908. After the flume ceased to overflow, on August 28, 1908, the plaintiff began the reexcavation of the foundation pit, which it finally completed on September 23,1908, when, on October 14,1908, the work was again overflowed, the overflowing being due to the same causes; and the work had to be again done over.

There was contained in the dam 75,242 cubic yards of concrete. The change in the location of the dam, the installation of the grill at the portal of the tunnel, the obstruction of the tunnel caused thereby, the delay in building the curtain wall, and the flooding of the works which resulted, caused great delay to the plaintiff in placing concrete. This delay was caused by the defendants, without the fault of the plaintiff. The plaintiff, as a consequence, was compelled to do a large amount of concrete work in the winter seasons, which greatly increased the cost of the work. Extensive plants had to be installed, work had to be done with much less expedition, and labor had to be paid higher wages.

Under the facts above detailed the court has in the findings set out more particularly the facts as to the items of the claim of the plaintiff, and has in its conclusion allowed the plaintiff the amount of $322,164.67. Most of this amount, as the findings show, results in large measure from the delay caused by the defendants and the failure of the defendants to comply with the contract. It is not thought necessary to repeat here in detail the findings as to each of these items, as the findings are specific and speak for themselves.

Of the amount disallowed ($454,656.46), the first items to be considered will be those items which are based upon the damages done to the temporary diverting works of the plaintiff by the log boom placed by the Wallop & Moncreiffe Lumber Co. across the .Shoshone River about miles above the site of the work. These items amount to the sum of $100,586.

The theory and contention of the plaintiff is that by virtue *579of tbe contract of the defendants with Trimmer and wife to purchase the land upon which was situated the sawmill site operated by Wallop & Moncreiffe under a lease from Trimmer, the defendants had control of said sawmill and log-boom and of the logging operations; and contend further that Wallop & Moncreiffe were the agents of the defendants by reason of the fact that Wallop & Moncreiffe had entered into an agreement with the defendants to furnish them a large amount of sawed lumber for the use of a project of the defendants not connected with the building of the Shoshone Dam, and that any act of the lumber company which interfered with or resulted in damage to the works of the plaintiff must be made good by the defendants; and that the defendants must pay to the plaintiff the damages sustained by it from the breaking of the log boom in the years 1906 and 1907.

The facts are that in the agreement for the purchase of the land from Trimmer, upon which was situate the sawmill site, there was a clause which provided that Trimmer should have the possession and the use of said land until it was overflowed by the water, notwithstanding the deed might be earlier delivered. Trimmer therefore retained the use and possession of the land free from any control thereof by the United States. At the time the agreement for purchase was made the sawmill was on the land and was being operated. Furthermore, before the United States entered into the agreement for the purchase of the land from Trimmer, and before the contract made by the defendants with Prendergast & Clarkson for the construction of the dam, Trimmer had leased the sawmill to Wallop & Moncrieffe, who were operating the same, and were maintaining a log boom across the river about 1J miles above the proposed site of the dam. Of this fact Prendergast & Clarkson had notice, as it appears from the evidence that they visited the proposed site of the dam before they executed the contract for its construction. In so.far as they were concerned they must have taken into consideration the menace which the possible breaking of the log boom must have been to the temporary diverting works which they had to construct for the diversion of the water. *580But at all events the United States had no control over this log boom nor over the operations of this sawmill. The mere fact that the defendants had contracted for the sawing of lumber at the sawmill, just as any other customer might have done, and as others did do, did not entitle the defendants to control its operations, nor impose upon them any responsibility as to its operations or conduct. Nor can it be said that the defendants incurred any liability for what might happen in the event of the breaking of the boom and consequent injury to the works of Prendergast & Clarkson.

The defendants, as has been pointed out, did not control this land nor any part of it. The plaintiff had full notice of the terms of the agreement for the purchase of it, and was informed of the breaking of the log boom in 1906. The Shoshone River was a nonnavigable stream under the control of the State of Wyoming. Wallop *&*Moncreiffe, in compliance with the laws of that State, made application to its State engineer in the fall of 1906 for a license or permit to operate the sawmill and to construct the log boom. This license was granted in February, 1907, upon the condition that the log boom should be built with a view to protect the temporary diverting works of the plaintiff. It was built upon a plan approved by the Government engineers, a plan shown to and not objected to by the engineer of the plaintiff, although no obligation rested upon Wallop & Moncreiffe to obtain the approval of either the one or the other. Nor can any liability be inferred to have been, incurred by the defendants, because their engineers approved of the plan for the construction of the boom — a boom over which the defendants could not have legally exercised any control, nor could they have- legally prevented its being placed across the stream. The very terms of their contract with Trimmer gave to him the use and the possession of the land, and there was nothing in their agreement with him which would have entitled them to prescribe the character of the use which Trimmer might make of the land, so long as that use was legal and within the terms of their contract with him.

Nor can it be said that Wallop & Moncreiffe were the agents of the defendants, and that therefore any acts of *581theirs were binding upon the defendants and made the defendants responsible for the consequences of those acts. It is true that Wallop & Moncreiffe entered into a written agreement with the defendants whereby they agreed to furnish the defendants a certain number of feet board measure lumber at a price fixed in the contract, but such an agreement does not make the defendants responsible for the acts of Wallop & Moncreiffe in the operation of their sawmill. The defendants were merely purchasers from a private firm which was selling an article of commerce. To say that the United States must be responsible for the operations and the consequences arising therefrom of every firm with which' it may deal is untenable, and can not be sustained by any principle of law known to the court.

From the facts in this case it is not perceived how any contractual relation can be implied between the defendants and the plaintiff arising from the transactions of the defendants with either Trimmer or with Wallop & Moncreiffe.

And the result would not be different if the Government owned or controlled the sawmill and boom. The fact of its having contracted with plaintiff that the latter erect a dam did not serve to prevent its operating the sawmill and boom upon the river, such structures not being in their nature or operation unlawful. The duty to use ordinary and reasonable care to have a boom suited to its purposes and that would be sufficient to sustain the weight of logs upon it, even at times of high water, is the same and not different when the Government is involved and when an individual is involved. In either case the liability for injury to the works or property of another caused by a breaking of the boom would be determined by the fact whether due care had been exercised in the construction or the maintenance of the boom; in other words, whether or not there had been negligence. The plaintiff’s damages' in such case would necessarily sound in tort, and the United States can not be sued for tort. *Bigby*Case, 188 U. S., 400.

The other amounts disallowed by the court consist in cutting down the amount claimed on some of the items allowed, which are shown in the findings, and in disallowing some items as a whole. The findings sufficiently explain *582themselves, and it is not necessary to go over them in detail here.

Judgment will be entered for the plaintiff in the sum of $322,164.67, under Findings VXII, X, XII, XIII, XIV. XVII, XIX, XXI, XXII, XXIII, and XXIV. The other items of plaintiff’s petition are dismissed.

It is so ordered.

DowNEy, *Judge;*BarNey, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.