#### BATES & ROGERS CONSTRUCTION COMPANY v. THE UNITED STATES.

[No. 33958.

Decided February 7, 1921.]

*On the Proofs.*

*Contract; no protest during work; absence of had faith.*— A contractor enters into an agreement to do certain dredging, and the borings made by Government engineers indicate that only two classes oí materials will be found. After beginning work he finds materials which do not belong to either class, but which increase the cost of the work. He proceeds with the work without protest or objection until the final estimates have been prepared, about four years afterwards. He makes no charge of bad faith, and none has been proven against the engineer officer making the classification. *Held,*the decision of this officer is final, and there can be no recovery for such increased cost of the work.

*Same; extra work; requirement in writing.*— Where a contract provides that no claim shall be made against the United States for extra work unless the same shall have been expressly required in writing by the contracting officer, there can be no recovery for such extra work unless the requirement of the contract has been complied with.

*The Reporter’s*statement of the case :

*Messrs. William B. King*and *George R. Shields*for the plaintiff. *King da King*were on the briefs.

*Mr. George H.*Thome, with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendant.

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

I. On April 8, 1911, a contract was entered into by and between the United States and the plaintiff, the Bates and Rogers Construction Company,, of Chicago, Ill., for the construction of Lock and Dam No. 29, Ohio River, above Ash-land, Ky. A copy of the contract, and of the principal part of the specifications constituting a part of the same, accompany and are made a part of the plaintiff’s petition as Exhibit A thereto, and by reference these are made a part of the findings of fact.

*50In addition to the provisions set forth in said Exhibit A to the petition, said specifications contained in the following provision:

“ 34. Field Inspection. The work will be laid out and inspected by an authorized representative of the contracting officer. The inspector so appointed shall have power to reject material or work which, in his opinion, does not conform to the requirements of the specifications. Any material or work rejected by him shall be kept out of and removed by the contractor from the finished work, unless in each particular case the objections be overruled by the contracting officer. In all cases of disagreement on matters relating to material or work the decision of the contracting officer shall be final.”

II. The site selected for the lock and dam was about 2 miles up the river from Ashland, Ky., at a point where the river was about 1,300 feet wide. The lock was located on the Kentucky side along or near the shore, and had a length of about 600 feet, with a width of about 100 feet between its land wall and river wall. The upper and lower guide walls are substantially continuations of the land wall of the lock extending up and down the river, and each of them was about 600 feet long. The abutment wall on the Ohio side of the river was about 200 feet in length along the bank of the river. The dam proper extended from about the middle point of the river wall of the lock, across the river to about the middle point of the abutment wall, on the Ohio side, a distance of approximately 1,100 feet, and had a structural width of about 25 feet.

Prior to definitely locating the place for the dam, a number of preliminary borings were made in order to fix tentatively upon an available site for the same. The site having been selected, final borings were made to ascertain the depth to bedrock, and from this and the kind of material found to make an estimate of the character and quantity of excavation. The exact location of the preliminary borings, or the distances between them, can not be determined from the evidence, but there were 36 of them, and, taking them as a whole, they extended over the area afterwards selected for the site. The preliminary borings were made in September, 1909, and the final borings in November, 1909. There were 42 of the *51final borings. The results of the final borings were platted in 1910. These final borings were about 100 feet apart and extended along the lines of the lock walls and guide walls, dam and abutment, and they furnished the data upon which the estimated quantities of materials to be excavated, as stated in the specifications or drawings, were based. It does not appear that any drawings were made from the preliminary borings, the purpose of them being merely to furnish data as to the availability of the place for the site of the dam, as above stated.

III. The Government advertised for bids for the construction of this lock and dam in January, 1911, to be opened in February. The plaintiff was in possession of the drawings and specifications on February 20, but whether it made a proposal in answer to the first advertisement does not appear. All bids submitted were regarded as too high, and were rejected. On March 6 new bids were called for, to be opened on March 21, following. During the time between the advertisement for and opening of the new bids, the stage of water in the river at the site was such that a mere ocular inspection would fail to furnish material information as to the character or quantities of the materials to be excavated or of the difficulty of the work of excavation. The difficulty of obtaining such information during said period was greater than it would have been had the river been at a lower or its ordinary stage of water. The plaintiff made no survey or investigation to ascertain the character or quantity of the materials to be excavated in the performance of the work, and relied upon the drawings and specifications furnished by the Government.

The president of plaintiff company was acquainted in a general way with the conditions existing in the river with respect to logs and snags. The work under the contract here involved was the first he had done for the War Department. He had prior thereto made personal examination of the conditions on the Ohio Kiver at Cairo in 1904, and perhaps at other times, and had made a good many examinations of rivers of a similar nature, such as the Tennessee.

After the contract was made, and while plaintiff was preparing to proceed under its terms, logs and snags were to *52be seen in the river at ordinary stages, but while the river was up they could not easily be seen. Difficulty in getting a derrick boat into the bank at that time was experienced on account of logs and snags at the site of the work, and as the river went down these logs and snags could readily be seen.

IV. Above the site of Lock and Dam 29 the Ohio River and its tributaries flow through more or less wooded sections of country, and in times of high water large quantities of logs, trees, stumps, and driftwood are carried into and down the river. Much of these drifts become lodged in the river bed, both in the main channel and outside of it, nearer the shore, and frequently become embedded in the bottom. Partially embedded portions of the same often form snags in the main channel, which make obstructions to navigation. These were removed from the main channel, as stated in Finding VIII.

V. The preliminary borings of September, 1909, do not disclose, as appears from the record thereof, any stumps, snags, or logs, except at one of the borings, where it appears that a log had been encountered next to rock. The locar tion of this boring is not shown by the evidence. The preliminary borings and the final borings do not appear to have been made at the same points.

The records of the final boring over the site as finally located, and from which the drawing submitted to bidders were made, were correctly transcribed upon the drawings, and do not disclose stumps, snags, or logs, except they show that at one of the borings on the line of the dam “ wood and coal ” for about 6 inches in depth were encountered. The location of this boring was in the bed of the river, several hundred feet distant from the lock, at or near which the logs generally complained of in this action were found. A part of a sunken coal barge had been removed from about the locality of this boring several years before. The drawings and specifications furnished bidders contain no reference to the “ wood and coal ” encountered in said boring. It does not appear from the evidence that the plaintiff made or had any complaint of what was found at or about the place of that boring. The evidence does not disclose when the logs, snags, *53complained of were lodged at or near the site, or whether they were deposited there before or after the boring.

YI. After making its contract with the Government the plaintiff contracted with a dredging company in May, 1911, to do the dredging required in connection with the construction of said lock and dam (during a limited period), and for the material excavated the subcontractor was to be paid on the basis of place measurement at the rate of 33 cents per cubic yard on the actual quantities estimated and paid for to the plaintiff by the engineer in charge. After commencing work and continuing therein for several days the subcontractor notified the plaintiff that he would not proceed longer under the contract, because he had encountered logs and driftwood, which he claimed was different material from that contemplated by the agreement between them. Thereupon a new agreement was made between the plaintiff and the subcontractor whereby the latter was to be paid for the hire of his dredging plant the sum of $110 per day, with some additional compensation for towing the plant to the site. This subcontractor continued at work during 12 days in June, in addition to the 3 days before the second contract was made, and was paid the sum of $1,960.54. Afterwards others were employed in the dredging.

VII. At and near the land wall of the lock there were found a considerable number of logs which had become water-logged and embedded in the bottom. These were found close together and overlapping. Most of them were at or near the land wall site. These constituted a part of the material to be removed in the excavation for such wall. Some few logs were found along the lines of the guide walls and in the lock chamber.

The removal of these stumps, snags, and logs was effected by the use of additional equipment, and they could not be removed by pick and shovel or by dipper dredge. The removal of them by the subcontractor or the plaintiff was more expensive to the plaintiff than it would have been had the subcontractor been able to carry out his first contract with the plaintiff, or if they could have been removed by pick and shovel or by dipper dredge.

*54It does not appear that the plaintiff made any protest or objection to proceeding with the removal of the logs and stumps during the progress of the work. At or about the time of final settlement he did claim additional compensation on account of that work and some other items. The work was begun in 1911 and finished in October, 1914. The work was being prosecuted in June, July, August, September, October, November, December, 1911, and January, 1912, and then from June to December, inclusive, in 1912, and from June to December, inclusive, in 1913, and sometimes in the summer and fall of 1914.

The total quantity of material excavated in connection with the construction of Lock and Dam 29 was 108,264 cubic yards of common excavation and 13,182 cubic yards of rock excavation, according to the classification made by the oificer in charge. The logs, stumps, and snags removed were classified as common excavation, and the amount is included in the aggregate above mentioned. The exact yardage of these logs, stumps, and snags is not shown, but is approximately 1,100 cubic yards.

VIII. For many years prior to the execution of the contract in suit, officers and employees of the United States, acting under the direction of the United States Engineer officer in that district, were engaged in the removal from the channel of snags, stumps, logs, and other obstructions to navigation in the Ohio Liver at, above, and below the location of the site of said lock and dam and depositing the same at selected places along and near the banks or elsewhere, where it was calculated they would not interfere with navigation. A boat, known as the snag boat, operated on the river for many years.

The agents of the Government, making such deposits, kept, as a part of their official duties, records showing from where such stumps, snags, and logs were removed and where they were deposited after removal. These records were available to Maj. Jervey, the contracting officer of the Government in the contract in suit, at the time of the advertisement for bids and the execution of the contract. It does not appear from the evidence that any logs, stumps, or snags, taken from the *55river by the snag boat, were deposited at or near the location of said lock and dam.

For many years prior to the locating and construction of said lock and dam, both sides of the Ohio Kiver, at the point of location of the lock and dam, were extensively used for the mooring and harboring of rafts of logs floated down the river for reduction into lumber at the sawmills in that vicinity; and among the materials encountered in the excavation for the lock and dam were tie poles of the kind used in the construction of such rafts.

IX. The quantity of the stumps, snags, and logs so removed in excavation was 1,100 cubic yards, for which plaintiff was paid at the contract rate for “ common excavation,” 65 cents per cubic yard, amounting to $715.

The cost to the plaintiff of the removal of said stumps, snags, and logs was $6,753.58, or $6,038.58 more-than plaintiff received from the United States therefor. A reasonable profit, if plaintiff be entitled to the same, would be 10 per cent of said first-named amount. It is not satisfactorily shown what, if any, sum would be allowable for overhead expense.

If such work was properly classifiable as “ rock excavation,” the compensation to the plaintiff therefor, at the contract rate of $3.60 per cubic yard for rock excavation, would be $3,960, less $715 paid plaintiff as above stated. Upon final settlement, the plaintiff was paid the last estimate on the work and the retained percentages, which latter, during the three years of the period over which the work extended; was $40,000.

X. The yardage of the stumps, snags, and logs so excavated and removed by the plaintiff was not segregated in the monthly estimates of the work performed, but was included in the general estimates of “ common excavation ” performed, and was paid for in the monthly settlements for such excavation.

It does not appear that any protest was made by the plaintiff against these monthly estimates, settlements, and payments for such excavation when they were made, but it appears that at the time of signing and returning the. final estimate, for the final settlement and payment on the work, *56in December, 1915, the plaintiff, in its letter returning the estimate to the United States Engineer Office, stated that it reserved claim for extra cost on account of submerged logs, stumps, and snags, and delays in connection with their removal.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff made a contract to do all the work and furnish the material for the construction of Lock and Dam No. 29 in the Ohio-River, at unit prices. Among other requirements was certain excavation or dredging, for which the prices were fixed in the contract at 65 cents per cubic yard for “common excavation” and $8.60 per cubic yard for “ rock excavation.” The specifications provided for the classification of excavation into these two kinds and that “ common excavation shall include all material that can be removed with pick or shovel or by dipper dredge without blasting,” and that “ rock excavation shall include bowlders exceeding 9 cubic feet in volume and material requiring blasting for removal.” Logs, snags, and stumps were encountered in the early stages of the work, which were paid for as “common excavation” and were so classified in the monthly estimates made by the officer in charge, upon which the payments were predicated. The plaintiff claims that this classification was erroneous and seeks to recover the alleged cost of removing the logs, stumps, and snags, the excavation of which it is claimed was more . difficult and expensive than either “ common excavation,” properly considered, or “ rock excavation.”

The specifications provide that “ in all cases of disagreement on matters relating to material or work, the decision of the contracting officer shall be final.”

Section 8 of the contract provides:

> ‘‘No claim whatever shall at any time be made upon the United States by the contractor for or on account of any extra work or material performed or furnished, or alleged to have been performed or. furnished under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or material shall have been expressly required in writing by the *57contracting officer, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers.”

The contract was awarded to plaintiff, under competitive bidding, in March, 1911. It became effective upon approval by the Chief of Engineers, in April, 1911. Work was begun in June, 1911, and was prosecuted actively for six months or more in 1911, for about the same period of time in each of the years 1912 and 1913, and for some months in 1914, being completed in October of the last-named year. For the work done during each of these months estimates were prepared, a retained percentage of 10 per cent of the several estimates was deducted, until the aggregate of the retentions amounted to the $40,000 mentioned in the contract, and payments were made accordingly. During all of that period the plaintiff received the payments without protest or objection, so far as the record discloses. When the final estimate was prepared in 1915, which included the amount of $40,000 that had been retained under section 20 of the specifications, the plaintiff insisted he was entitled to the additional sum here sued for, and he accepted the final voucher under protest with the announced purpose of suing for the amount claimed.

No bad faith is imputed to the officer making the classification, no objection to his classification was asserted when it was made, and if the material was not properly to be classed as either common or rock excavation there should have been a timely objection to the officer’s action. This would have enabled the parties to consider what course was to be taken in view of section 8, above quoted, of the contract. All of the work was upon the basis of unit prices, and when a character of excavation was found which plaintiff thought was not comprehended within the defined terms of the contract it became his duty to assert his claim to the end that the officer of the Government, acting for it, could consider what, if anything additional, should be paid, or what, if any, reclassification should be made. If the plaintiff did work which he did not contract to do it is too late to assert the fact after receiving payments based upon contract prices without objection or protest, and without an *58observance of positive provisions of the contract. *Plumley Case,*226 U. S., 545, 547; *Wells Brothers*Case, 254 U. S., 83; *Gleason Case, 175*U. S., 588, 602.

While claiming, in the alternative, the alleged expense of removing the logs, snags, and stumps, the plaintiff’s claim is based upon a different theory than that suggested above, and states the question upon his brief as follows:

> “ There is but a single issue: The right of the contractor to payment on a fair basis for the excavation or removal of certain snags, logs, and stumps not shown on the contract drawings or in the specifications, although the existence of same was known to the defendant.”

The proposition thus stated would apparently pretermit any inquiry into the question of plaintiff’s knowledge *ot*conditions, or of the means of knowledge, open alike to both parties, or of any duty upon the plaintiff to investigate for himself or to seek information or even to inquire of the defendant as to the extent of its knowledge or information; but without admitting the accuracy of a rule so broadly stated as it is by plaintiff, we think the evidence fails to show any misrepresentation by defendant or any warranty of conditions to be encountered, or a concealment that could be a misrepresentation or the basis of an action.

As already stated, the plaintiff’s contract was let in March, 1911. Prior thereto, in September, 1909, Government engineers had made certain borings — 36 in number — preliminary to the location of the proposed lock and dam, and for the purpose of determining tentatively upon an advantageous site. These are known as “preliminary borings,” and are to be distinguished from the final borings subsequently made. A record was kept of what these preliminary borings disclosed. At one of them, the location of which can not be determined, the record disclosed that a “ log next to rock ” was found. Having decided upon the location the engineers, in November, 1909, made what was called final borings, 42 in number, extending along the proposed lines of the two walls and guide walls of the lock and the upper and lower sides of the dam and abutment. The lock was located on the Kentucky side of the river. The dam extended across the river, and there were abutment walls on the Ohio side. The *59land wall of the lock and its guide walls together extended about 1,800 feet up and down the river, the river wall of the lock was about 600 feet long, the dam proper was about 1,100 feet long, and the abutment wall was several hundred feet long. The borings were approximately 100 feet apart, except along the upper line of the dam they were 200 feet apart, and similarly along its lower line, but so “ staggered ” that they were approximately 100 feet apart, the distance between the two lines being about 29 feet. The results of these final borings were shown upon drawings. There can be no question that the drawings accurately portrayed all that these borings disclosed. A slight exception to this latter statement may be made in the fact that one of the final bor-ings disclosed “ wood and coal ” for about 6 inches, not shown on the drawings. But that fact is immaterial, because the boring was in the line of the dam several hundred feet from the places of which complaint is made, and does not appear to have caused any trouble. The wood and coal were probably remnants of a sunken coal barge that had been partly removed some time before.

The specifications, after describing the work to be done, state:

> “ From borings and test pits, made at the site, it is assumed that rock will be found approximately as indicated on the drawings, but the United States does not guarantee the nature of the material to be encountered in the river bed, the correctness of the depth to rock as assumed or shown on the drawings, the depth to which it may be necessary to excavate, nor that the bottom of the river will not be changed before or after the commencement of work.”

Except as to the assumption that the borings might indicate the approximate depth to rock it is difficult to convert the language used into a representation of fact as to what was to be encountered. No question is made in this case that there was any mistake as to where the rock was found, but even “the correctness of the depth to rock as assumed or shown on the drawings ” was, by express terms, not guaranteed, which we understand to mean was not “warranted.” Nor was there any guarantee of the material that would be encountered in the river bed.

*60statements in the specifications as to what was not guaranteed were part of the contract between the parties, binding no less upon the contractor than upon the Grpyernment. By accepting them, in the contract he executed, the plaintiff agreed that the Government was not guaranteeing conditions that might or would be encountered. It was perfectly competent for parties to so agree, and their agreement is controlling. *Wells Brothers*Case, *supra.*

But the plaintiff contends that the preliminary borings had developed that a log was found at one of them, and, although its location can not be determined, that the Government should have informed the bidders — or plaintiff particularly — of the fact. It is apparent that the drawings had reference to the final borings which were made for the purpose of developing, as well as they could, the depth to rock and afford means for estimates of the amount, and kind of excavation. There is nothing in the facts of the case, there is no representation made or drawing furnished, that misstated any fact or amounted to a misrepresentation by concealment or otherwise. It would be extending the rule further than the adjudicated cases have gone, and further than we are prepared to go, to say that the Government can be held, as upon a warranty, of a condition as to which it makes no representation, either by word or by drawing, when all it does is to furnish drawings which accurately state all they purport to show, notwithstanding it fails to state to the bidder that a hole was bored somewhere in or about the large area involved at some other time which disclosed that there was a log in the bottom of the Ohio River.

In the *Christie*Case, 231 U. S., 234, there was a positive statement that all information in the Government’s possession was accessible to the bidder, and the bidder was left in ignorance of it. It is conceded by plaintiff’s brief that no such specific representations as to the character of materials to be encountered were made in this case as furnished the basis of recovery in the *Hollerbach*Case, 47 C. Cls., 236; and whilst reliance is placed on the *Christie*Case, 237 U. S., 234, and the *Atlantic Dredging Co.*Case, 53 C. Cls., 490, the facts of this case are not similar to either of them. The statement in the Christie Case that the materials to be ex*61cavated “ *as far as known*” were shown by borings, “ drawings of which could be seen at the office of defendants’ agent,” was held to be a representation of fact when it developed that borings had been made, but not recorded, which showed a different kind of material from that shown on the drawings. In other words, the drawings did not show the character of material “ as far as known ” from the actual bor-ings. Similarly, in the Atlantic Dredging Company Case, as appears from the majority opinion, there was a positive statement which misrepresented the fact, as developed by the borings or soundings.

In the instant case the borings were made in November, 1919 (preliminary borings having been made in September) , and from these final borings the drawings were made in 1910; and the work let in March, 1911, was begun in June of that year. Thus, about 18 months elapsed between the times of the borings and the contract. The specifications declared that the Government would not guarantee that the bottom of the river would “not be changed before or after the commencement of the work.” There is no proof as to when the logs complained of became lodged in the river bottom; but if it be assumed that they were there when the borings were made there is no statement of fact that can be construed into a representation or warranty that they were not there, nor any withholding of information which the defendant undertook, or was bound, to communicate. Measurements of excavated material were to be based upon “ a survey of the river bed and banks ” to be made after the contract and prior to beginning work (see section 42, specifications), arid the plaintiff made no objection to the measurements or classification, as has already been stated. As stated by its counsel: *il*Materials of this character (i. e., ‘ snags, logs, and stumps ’) aggregated about 1,100 cubic yards, and it required about two months for the removal thereof.” It constituted a small part of the total excavation, which amounted to 108,264 cubic yards of common excavation and 18,182 of rock excavation, or a total of 121,446 cubic yards. The logs, stumps, and snags were encountered at the very inception of the work, and if the classification of them was not provided for by the terms of common and rock excavation, as used in the con*62tract, or the plaintiff was dissatisfied with it as made, it was his duty to make clear his position. That course was at least indicated by the action of the subcontractor, who had undertaken the work under statements made to him by the contractor about the kind of materials to be dredged, and finding them different he called upon the contractor to alter their contract, which was done at once. It may be that the subcontractor’s undertaking to do dredging for 33 cents per cubic yard, for which the contractor was to receive from the Government 65 cents per cubic yard for one kind, and $3.60 per cubic yard for another kind-of excavation, may have had some influence on the latter’s willingness to so alter the arrangement as to retain the former’s services; but it is significant that while the subcontractor called upon his principal to alter their contract, the contractor did not see fit to make complaint to, or demand upon, the Government for a similar change in their contract, notwithstanding the express requirement in section 8 above quoted.. On the contrary, the work having been done largely, if not entirely, by the subcontractors, the plaintiff accepted the classification and payments therefor without protest.

These facts are at least suggestive of the view that the claim made nearly or quite four years after the work involved in the claim had been done was largely an afterthought. The plaintiff urges that the defendant knew of logs, stumps, and snags in the river, and did not communicate the- fact to him. He seeks to establish the fact by showing that in the course of some preliminary borings, a log was. located next to rock at a place of one of these bor-ings, not located, and that he relied upon the drawings.. But the findings do not state that he had no other means of information; nor does the law relieve him from making reasonable investigation and from the use of such means of information as the common knowledge of conditions in the Ohio River would develop. At any flood, it carried large quantities of drift composed of logs, stumps, and such like; a Government boat had for many years worked up and down the river to remove snags that interfered with or could obstruct navigation; the plaintiff’s president admits he had a general knowledge of the conditions, and some years before *63this contract had examined conditions at Cairo. When plaintiff’s foreman commenced work there were logs and snags at or near the site that impeded the movement of its boat, and these were plainly visible at ordinary stages of the river. The facts show that between March 6 and 21, when the last bids were opened, the river was up and conditions below its surface were not visible; but the facts do not show what its condition was between the dates of January 20 and the opening of the first bids under the advertisements, which were in plaintiff’s hands on February 20. It does not affirmatively appear that plaintiff was not a bidder under the first advertisement. And it is a draft upon credulity to ask a court to believe that a responsible contractor would undertake to dredge material from the Ohio Biver and construct works that involved an expenditure by the Government of over $400,000 without any further knowledge or information about the difficulties to be encountered than the meager statement in the specifications as to what borings disclosed as to the depth to rock, with the accompanying statements that the Government would not guarantee the materials.

As was said by Mr. Justice Clarke in *Wells Brothers*case, *supra:*“Men who take million-dollar contracts for Government buildings are neither unsophisticated nor careless.” And it is to be borne in mind that if the plaintiff chose to make a bid on such short notice that he could not make a thorough investigation, he can not blame the Government for his action. It was entirely voluntary, and he was under no sort of compulsion to bid at all. The conclusion is inevitable that for the prices named in his proposal, and accepted, he was willing to take chances on the kinds of excavation, or whatever the dredging would disclose. When holes were bored about 100 feet apart, how could the Government know what lay between them? It is somewhat significant that the plaintiff had his derrick boat at the site of the work before and at the time of beginning work. Why a derrick boat if the material that was expected to be found could be removed with a dipper dredge without blasting ?

*64Our conclusion is that on neither of the views presented by plaintiff is it entitled to recover. The petition should be dismissed, and it is so ordered.

Graham, *Judge;*Hat, *Judge;*Downet, *Judge;*and Booth, Judge, concur.