#### THOMAS L. DUROCHER v. THE UNITED STATES.

[No. 34201.

Decided October 30, 1922.]

*On the proofs.*

*■Contract; delays.*— Where delays are not attributable to the fault or misconduct of the Government, the plaintiff can not recover damages for such delays.

Same; *extra work; waiver of contract requirements.*— Where extra work has been performed by a contractor who has submitted vouchers for the same as work performed under the contract, and the United States has accepted the work, received the benefit thereof, and paid for it as work coming under the contract, the Government will be held to have waived its right *522to enforce tlie requirements of the contract concerning extra wort and can not recover the amounts paid for such extra work.

*The Reporter's*statement of the case:

*Mr. George R. Shields*for the plaintiff. *King de' King*and *Mr. Francis T. McDonald*were on the briefs.

*Mr. Alexander H.*McCormick, with whom was *Mr. Assistant Attorney General Robert H„ Lovett,*for the defendant. *Mr. Charles M. Nash*was on the briefs.

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

I. The plaintiff, Thomas L. Durocher, is a citizen of the United States and a resident of the State of Michigan.

II. September 24, 1914, advertisement was made for bids to perform work in constructing a rubble mound breakwater at Marquette, Mich. The claimant was awarded the work and contract was formally entered into November 5, 1914. A copy of said contract and the specifications is attached to the petition herein and together with defendant’s Exhibit No. 2, blue print of work to be performed, by reference is made a part of this finding.

III. The contractor acknowledged receipt of the contract November 20, 1914, and was required under the terms of the contract to commence work 15 days after receipt of notification of approval and furnish labor, material, tools, and plant, and therewith place all stone and construct a rubble mound breakwater extending 1,500 feet, as an extension to a present breakwater constructed by the same contractor, along the lines shown in and to conform to blue print showing] a map of the locality and the location of the proposed rubble mound extension to the Marquette Breakwater, the location of said extension being further fixed by a rock embankment having been already built on the line of the extension 1,500 feet in length with top at 25 feet below low water datum, width of top 61 feet, and side slopes of 1-J to 1, the same slope as for the extension.

There had been previously erected a breakwater of about 3,000 feet in length of which this was an extension or an *523addition. Both the original breakwater and this embankment had been constructed by the contractor — the latter about a year before. At that time he was given the ranges,, and knew them and also the axial line of the proposed breakwater at the time he commenced this work.

IV- The United States agreed to pay for all classes of stone placed in place in the breakwater the sum- of $1.10 per ton of 2,000 pounds. All payments under the. contract have been made and final voucher submitted and paid.

The work was to> conform to a certain drawing which formed a part of the specifications and was on file at the United States Engineer’s office. This drawing was a blue print showing a map of the location of the proposed rubble mound extension with the latest soundings indicated, together with the typical average cross section of the rubble mound and a cross section of the outer end and a longitudinal section at the outer end. This print was not printed as part of the record. The contractor was not an engineer and had no competent engineering force of his own and relied upon such assistance as he was able to secure from the Government’s engineers, which assistance — though not required by the contract — to a limited extent was given in a spirit of helpfulness to the contractor and without charge.

The estimated quantity of rock for the extension was 250,000 short tons of rock. The work was completed, including all rock placed, by delivery of and payment for 254,944 short tons of rock, or less than 2 per cent excess.

V. The contract in regard to extra work, or work outside the contract, disputes, controversies, and claims, provides that no claim shall be made against the United States on account of any excess or deficiency; that no allowance will be made for the failure of a contractor to estimate correctly the difficulties attending the execution of the work; that responsibility for the proper execution of the work shall be upon the contractor; and that—

“ If the contractor considers any work required of him to be outside of the requirements of the contract or considers any record or ruling of the inspectors or contracting officer as unfair, he shall ask for written instructions or decision immediately and then file a written protest with the contract*524ing officer against the same within five days thereafter or be considered as having accepted the record or ruling.”

VI. On April 22, 1915, the contractor by telegram notified the contracting officer to send an inspector. The inspector arrived at the place of work April 25 and the first load of 174 tons of rock was delivered April 28,1915. The inspector so sent was not an engineer, which fact was known to the plaintiff, and he was not authorized or expected or instructed to do engineering work.

In May, 1915, after the work of placing stones had proceeded to a limited extent, it was discovered that through a mistake upon the part of the inspector in placing a range on the outside of the lake side of the rubble mound or breakwater, which it was not a part of his duty as an inspector to place, a total of 1,903 tons of rock was placed outside of the limits of the contract by the contractor. The contractor knew the ranges and the axial line of the proposed breakwater and placed this stone outside of the limits of the contract without protest, and afterwards submitted a voucher alleging the same to be under the contract, and was paid the full contract price of $1.10 per ton therefor, or the total sum of $2,093.30. When the mistake in placing this range was discovered, which was about the 15th of May, 1915, the work of depositing stone with reference to it was stopped.

VII. In 1915, 1916, and a brief portion of 1917 some rock was placed joining and capping and upon that' part of the work where the proposed breakwater joined the previously built and existing breakwater and about the cribbing at the end of the existing breakwater, which was outside of the limits of the contract, and to entitle plaintiff to payment for which the contract required an agreement in writing in addition to the contract and before the obligation was incurred. The plaintiff submitted a voucher for this tonnage, alleging the same to be under the contract, and was paid the sum of $13,200, being the contract price for 12,000 tons of stone so placed.

Prior to and at the time of the performance of the greater part of this work on the existing breakwater, and also at the time of the work performed outside of the limits of the contract work set forth in Finding *\*I, the plaintiff was desirous *525of being allowed, and had requested the privilege of being permitted, to put in all of the stonework that could be permitted by the contracting officer, and had verbally agx-eed with said, officer for the performance of this work on the -existing breakwater, and no written protest, as provided for by section 42 of the specifications, was made by the plaintiff against the performance of any of this erroneous or additional work.

VIII. The date for the completion.of the contract was December 1,1916. At this time the contract was not completed, there being something over 6,000 tons of stone to be placed before it would be completed. On account of delay from labor troubles, bad weather generally, and stormy weather in the lake, and in getting machinery delivered at the beginning of the work, and in securing power from the municipal light plant at the beginning of the work, getting rafts and other equipment ready, inability to get covering stone, and by reason of the taking from the work without the consent of the defendant, for approximately three months, a derrick which previously had done about one-half of the work of placing stone, the contractor was not able to complete the work at the date fixed by the contract. It does not appear how much of the delay was due to these causes and how much was due to the performance of the extra work described in Findings VI and VII. The delay in completing the contract within the agreed time was not, under the contract, -attributable to any fault or, misconduct of the defendant or its authorized representatives. The contractor asked for -and was granted an extension of time, assigning as reasons for extension extreme scarcity of labor, inclement weather and the increased amount of work required over the original estimated amount; and during the spring and summer of 1917 completed the work and submitted a final voucher for the same and was paid on it the sum of $18,713.53, which .sum covered the retained percentages less inspection expenses for the year 1917. This voucher, as presented and paid by defendant, contained on the face thereof a certificate of the junior engineer inspector that “ The contract'has been completed in accordance with the plans and specifications,” and so worded was certified to as “ correct ” by the contractor.

*526It does not appear that the contractor asserted or suggested any claim for damages by reason of delay at the time he made the request for an extension of time or at any time prior to the time when the extension was granted.

Graham, Judge,

delivered the opinion of the court:

This is a suit for damages alleged to have been caused by delays to the contract work proper through the alleged unwarranted requirements of the contracting officer and his representatives in having the plaintiff do certain work which, it is alleged, was outside of the requirements of the contract. The suit grows out of a contract entered into by the plaintiff with the defendant for the erection of a breakwater in the shape of a rubblestone mound at Marquette, Mich., in Lake Superior, for the purpose of affording additional protection to the harbor at that point. The contract became operative on the 20th of November, 1914. It provided that the plaintiff' should begin work within 15 days from that date and complete it by the 1st of December, 1916.

The proposed breakwater was to be 1,500 feet long and was an extension of the existing breakwater, 3,000 feet long, and under the contract was to be built from the end of this latter-breakwater and joined to it to make the two one continuous-breakwater. The description of the breakwater is set out in the specifications and in a blue print attached thereto, which latter has not been printed as part of the record. It is described in the findings.

About a year before the contract was entered into there-had been laid along the line of this extension an embankment upon solid sand, not as high and not as wide as the instant breakwater and upon and over which the latter was to be constructed. This embankment had been erected by the plaintiff, as had also the existing breakwater of 3,000 feet.

The plaintiff knew the ranges and axial line of the extension which he contracted to build. The defendant assumed no obligations to furnish engineers or to do engineering work, and the plaintiff assumed full responsibility for the construction of the work according to the specifications. The defendant had the right of inspection for the purpose of see*527ing that the work was fully performed in accordance with the specifications and contract, and it was distinctly provided that the presence of the inspector would not relieve the plaintiff of any of his obligations under the contract.

The plaintiff, on April 28,1915, when ready to commence work, asked for an inspector and one was promptly sent. He was not an engineer which was known to plaintiff and he was not authorized or expected to do engineering work. He, without authority and by mistake, placed a range on the outer side of the existing breakwater and the plaintiff used this range and in so doing deposited stone for some distance out into the lake and beyond the lake side line of the proposed extension.

When the error was discovered, which was about the middle of May, 1915, the work of depositing stone along this line was stopped.

The plaintiff did the work without objection and without asking for written instructions or filing any written protest as required by the contract, although he knew the true ranges and axial line, and submitted a voucher certifying that the work was done under the contract, and was paid for the full amount of work done at contract prices.

At the end of the existing breakwater was a wooden crib filled with stone. Under the direction of the inspector and engineer, during the years 1915,1916, and a portion of 1917, the plaintiff deposited stone on both sides of this crib, and in capping and joining the extension to the original breakwater, which work was outside of the contract — in other words, extra work — without objection or asking for written instructions or filing a written protest as required by the contract, and submitted a voucher for payment certifying that such work was done under the contract, and was paid in full at contract prices for the work, although the contract provided that in case of extra work the defendant should not be liable to pay unless the payment had been agreed upon in writing before the obligation was incurred. And while as an original proposition the plaintiff could not — under the contract — have compelled the defendant to pay for this work, yet, inasmuch as the defendant accepted the work, received the benefit, and has paid for it, it must be held to *528have waived its rights to enforce the formalities of the contract with regard to extra work, and should not be allowed to recover the amounts paid the plaintiff for this and other extra work for which it claims an offset. *Clark*v. *United States,*95 U. S. 539; *South Boston Iron Company*v. *United*States, 118 U. S. 37; and *Horton*v. *United*States, ante, *p.*395.

The items of the plaintiff’s claim for damages all grow out of the contention on the part of the plaintiff that he-was not able to complete the work within the time, fixed by the contract owing to the time consumed and materials used in doing this extra work at the direction *of*the defendant’s representatives, and that had not the time consumed in this work been so consumed and the stone used for this purpose been so used, he would have been able to have completed the work by the 1st of December, 1916, the time fixed for completion; and that owing to the delays occasioned he was unable to complete the work on time and was compelled to ask for an extension of time and carry over his plant during the winter months of 1916-17, and was not able to complete the work until the spring and summer of 1917, the work being completed about the 1st of July, 1917. The time was extended at the request of the plaintiff in a letter dated September 29, 1916, in which the plaintiff alleges as reasons the extreme scarcity of labor, the inclement weather, and the increased amount of work required over the original estimated amount. The estimated amount of work called for by the contract was 250,000 tons, and the amount actually used to complete the work, including that used for additional work, was 254,914 tons, an overplus of 4,944 tons. It will be seen, according to the plaintiff’s own statement in his letter asking for an extension of time, that the delay caused by the extra work was only one of three causes for delay which he assigned, the others being labor troubles and bad weather

However, there were other causes of delay, namely, in getting machinery delivered at the beginning of the work, in securing power from the municipal light plant at the beginning of the work, in getting rafts and other equipment ready at the beginning of the work, inability to get covering stone later on in the work and, especially, in taking from the *529work without securing the consent of the defendant as required by the contract for approximately three months a derrick which previousy had done about one-half of the work of placing stone. Further, it does not appear how much of the. delay was due to these causes and how much was due to the performance of said extra work.

The contract also required that if the plaintiff should consider any work to be required of him outside of the requirements of the contract or consider any demand by the contracting or inspecting officers as unfair he should ask for written iñstructions and decision immediately and then file a written protest with the contracting officer against the same within five days thereafter, or be considered as having accepted the requirement and ruling. This the plaintiff did not do.

The court has found that the delay was not attributable to the fault or misconduct of the defendant. It, therefore, follows that the plaintiff can not recover for damages by reason of such delay. In view of this conclusion, it becomes unnecessary to discuss the question of whether the damages are too remote or whether they have been satisfactorily proved as to amounts. The petition should be dismissed and judgment entered for the defendant, and it is so ordered.

Hay, *Jud.ge;*Downey, *Judge;*and Campbell, *Chief Justice,*concur.