#### WILLIAM H. TAYLOR v. THE UNITED STATES.

[No. 33651.

Decided May 24, 1920.]

*On the Proofs.*

*Contract; materials dredged below a certain depth.*— Where a contract provides that the Government will not be liable for materials dredged before a certain specified depth, the contractor can not maintain an action to recover for the removal of materials below such depth.

*Same; decision of Engineer officer final.*— Where a contract provides that the decision of the Engineer officer in charge as to quantity and quality shall be final, his estimate of the quantity of materials dredged below a specified depth, in the absence of fraud, or mistake so gross as to imply bad faith, is final and can.not be reviewed by the court. .

*The Reporter’s*statement of the case:

*Mr. Herbert Barry*for the plaintiff. Barry, Wairmright, *Thaeher c& Symmers*were on the briefs.

*Mr. Horace 8.*Whitman, with whom was *Mr. Assistant Attorney General Frank*Davis, jr., for the defendants.

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

I. On October 14, 1903, the plaintiff, William H. Taylor, a citizen of the State of New Jersey, entered into a contract with Lieut. Col. C. W. Raymond, Corps of Engineers, United States Army, acting for and in behalf of the United States, whereby the plaintiff agreed to do certain dredging in the Arthur Kill on Staten Island Sound, N Y. and N. J. Copies of said contract and the specifications part thereof are filed with the petition of the plaintiff and made part hereof by reference.

II. Work was begun under this contract on December 1, 1903, and completed on or about August 27, 1910, the work *347having been proceeded with and completed in conformity with the provisions of the contract. During the progress of the work the plaintiff dredged and removed 8,480,688 cubic yards of material, scow measurement, for which he was to have been paid $0,148 per cubic yard. Under the provisions of the contract the plaintiff was to dredge a channel 21 feet in depth at mean low water and 300 feet in width, and was to be paid nothing for material dredged from a depth below 22 feet.

III. During the progress of the work the defendant caused surveys to be made for the purpose of ascertaining the amount of the material dredged and removed by the plaintiff. These surveys showed the amount of overdepth dredging to be 276,354 cubic yards, for which material the plaintiff has not been paid. If the plaintiff was paid for said material at the contract price it would amount to the sum of $40,900.25.

Upon the final settlement of the accounts of the plaintiff with the defendant he was offered by the defendant the sum of $1,702.21 as being in full of the amount due him after deducting the material dredged from overdepth. This sum the plaintiff declined to receive, because the same was tendered in connection with a voucher upon which were stated deductions for alleged overdepth. The sum of $1,702.21 is still due and owing to the plaintiff. The plaintiff has been paid by the defendant, in all, the sum of $474,241.32.

IY. The surveys made by the defendant to ascertain the amount of the material dredged and removed from the channel by the plaintiff were made in accordance with the usual method of making channel surveys, and were as accurate as measurements of that character can be made. The plaintiff was paid for the material dredged after these surveys had been made, and made no protest that the amount of material so ascertained was not accurate. The amount of material charged to the plaintiff as overdepth and not paid for was ascertained by the' same method. These surveys were made by an inspector appointed on the part of the Government, and the payments to the plaintiff were based on estimates made in accordance with the provisions of the con*348tract. The engineer officer in charge passed upon the estimates so made and decided that they were correct. .

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff against the United States to recover the sum of $40,900.25, which the plaintiff alleges is due him by reason of the fact that under a contract with the United States he dredged 276,354 cubic yards of material for which he has not been paid. The defendants contend that under the provisions of the contract they were not obliged to pay for any material dredged fr&m a depth below 22 feet, and that the 276,354 cubic yards for which payment is demanded were dredged from that depth.

The contract provides:

> “ The contractor will be required to remove any lumps or ridges left during the work. If it be found that any material has been dredged from a depth more than one (1) foot below the required depth of 21 feet a mean low water, or from any point outside the limits given for work, or if any material is not deposited in accordance with the requirements, the estimated amount of such material shall be deducted from the amount excavated before acceptance of the work.” Paragraph 43 of the specifications.

The contract also provides that “ payments will be based upon the assistant engineer or inspector’s estimates of the amount of material removed and deposited, deducting all amounts forfeited under paragraph 43.”

The evidence clearly shows that the defendants observed strictly the provisions of the contract and that the amount of material deducted from what was excavated below the depth fixed in the contract was ascertained by the method generally in use for ascertaining such facts.

The plaintiff has failed to show that the estimates made by the defendants were erroneous, or that the defendants have deducted from the material dredged a larger amount for overdepth dredging than they should have done.

Moreover the contract provides: “ The decision of the engineer officer in charge as to quality and quantity shall be final.” In the absence of fraud or such gross error as implies bad faith, or a failure to exercise an honest judgment, the decision of the officer in this case must be treated as final, and the court will not review that decision. *Brinck*v. *United**349States, 53 C. Cls. 170, 176, and cases there cited. There is no evidence in this case that the officer was either guilty of fraud or gross error, or that he failed to exercise an honest judgment in the premises.

The plaintiff is entitled to recover the $1,702.21 which the defendants tendered him when the final settlement was made, but which he at that time refused to receive.

Judgment for $1,702.21 will be rendered in favor of the plaintiff against the United States, and it is so'ordered.

Gkaham, *Judge;*DowNet, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.