#### WARREN, MOORE AND COMPANY v. THE UNITED STATES.

[No. 34691.

Decided June 12, 1921.]

*On the Proofs.*

*Contract; reformation; mistake of fact.*— Where the defendant withholds the balance due under a contract for the construction of certain buildings after completion and acceptance of the .same, on the ground that said contract was executed under a mutual mistake as to the size of the buildings to be constructed, and the evidence shows that both parties to the contract understood its meaning when it was executed, the court will not re-form the contract and will render judgment for the balance of the contract price so withheld.

*The Reporter's*statement of the case.

*Mr. Amos J. Peaslee*for the plaintiff. *Peaslee da Oompton*were on the briefs.

*Mr. George H.*Foster, with whom was *Mr. Assistant Attorney General Robert II.*Lovett, for the defendant.

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

I. The plaintiff is a corporation organized and existing under the laws of the State of Pennsylvania, and was and is engaged in the business of general contractor, and on October 2, 1918, entered into a wi'itten contract with C. W. *420Parks, Chief of the Bureau of Yards and Docks, Navy Department, representing the United States, whereby it agreed to construct certain emergency hospital buildings at Wards Island, New York, for the total sum of $1,054,000. A copy of said contract, together with the specifications and plans attached thereto and made a part thereof, is filed with the petition as an exhibit and is made a part hereof by reference.

The plaintiff entered upon the work, and has duly performed all the work required by the terms of the contract, and the same has been inspected, approved, and accepted by the United States and the plaintiff has performed all the conditions which it was obligated to perform under the contract.

The United States has paid to the plaintiff under the said contract th.e sum of $1,048,332.71, and has been credited by the plaintiff on account of said contract with the additional sum of $297, leaving the sum of $5,370.29, which the United States has not paid, and which sum is still due and owing to the plaintiff by the United States.

II. During the progress of the work under the contract of October 2, 1918, the plaintiff on February 1, 1919, entered into another written contract with said C. W. Parks, acting for and in behalf of the United States, whereby the plaintiff undertook to construct certain- additional and other buildings not covered by the contract of October 2, 1918, for the additional sum of $231,658.09. The work provided for in this contract was duly performed, inspected, approved, and accepted by the United States, the plaintiff having performed all the conditions which it was obligated to perforin under the contract of February 1, 1919, and was paid the sum of $174,929.13, leaving the sum of $56,728.96 which the United States has not paid, and which sum is still due and owing to the plaintiff by the United States.

III. The'final form and size of the buildings included in the contract of February 1, 1919, were determined upon by the Bureau of Yards and Docks about November 27, 1918. Work was started and partially performed upon them before the said contract was executed. Pending the preparation of the contract, which was delayed by the fact that the draw*421ings to be attached thereto had not been completed, the plaintiff worked from sketch plans and pencil notations upon old plans furnished to the plaintiff by the Bureau of Yards and Docks. These plans and notations indicated the reduced sizes of the buildings as they were later described in drawings Nos. 82449 and 82450, which were afterwards attached to the contract of February 1, 1919. These drawings were finished before January 13,1919, in the Bureau of Yards and Docks and were delivered to the plaintiff on January 16, 1919. The meeting of the board of naval officers to determine the cost of the buildings, and the amount to be allowed to the plaintiff for constructing the same, was held on January 20,1919, and made its report to the bureau on January 28, 1919, at which meeting it was decided by the said board that the sum of $231,658.09 was a reasonable sum to pay the plaintiff for the construction of the buildings, and on February 1, 1919, the contract was entered into, which contract provided for the payment to the plaintiff of the sum of $231,658.09. The drawings Nos. 82449 and 82450 attached to the contract had plainly written across their face the statement that they “ superseded” drawings No. 78994 and No. 78995, which latter were drawings providing for buildings of greater size than those which the plaintiff undertook to construct under the contract of February 1, 1919.

IV. About one month after the execution of the contract of February 1, 1919, the representative of the Navy Department at the site of the work ascertained that the drawings for the reduced size of the buildings were attached to the contract, and stated to the plaintiff that the price of $231,~ 658.-09 was understood by the board to be the price of the-buildings as originally planned, and not the price of the-buildings at reduced size. This contention on the part of' this office was denied by the plaintiff, which insisted that the* contract and the drawings thereto attached rightly set forth; the agreement arrived at by the parties before the execution of the contract. The Bureau of Yards and Docks on September 10, 1919, proposed that the price for the buildings which had then been completed and accepted by the United States should be arrived at by the bureau ascertaining. wha.t

*422it cost the plaintiff to construct the building, and on October 30, 1919, the bureau determined to issue what it called a change order, deducting the sum of $53,730.61 from the sum of $231,658.09 which the contract provided for. This method of fixing compensation was unsatisfactory to the plaintiff and it refused to abide by it, insisting that it be paid in accordance with the terms of the contract.

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of $62,099.25, which it alleges is due it on two written contracts which it entered into with the defendant. Of this sum $5,370.29 is alleged to be due on the contract of October 2, 1918, and the defendant does not deny that it is due. The balance of the amount, the sum of $56,728.96, is alleged to be due the plaintiff on the contract of February 1, 1919, and this sum the United States, while admitting it is the amount now due on that contract, contends should not be paid because of a mutual mistake, which consisted in attaching to the last-named contract certain drawings known as Nos. 82449 and 82450, and that the aforesaid contract was executed under the mutual and mistaken belief that other drawings calling for lai’ger sized buildings were attached to the contract, and that the sum of $231,658.09 agreed to be paid the plaintiff in the contract referred to the construction of the large buildings shown on the drawings which by mistake were not attached to said contract.

The United States assuming that its position in the controversy was correct, appointed a board to determine the cost of the construction of the buildings provided for in the contract and, acting upon the report of said board, deducted from the contract price the sum of $53,730.61, and refused to pay the-amount agreed upon in the contract, and by a cross petition filed in this suit asks the court to correct the mistake and re-form the contract.

The court will not re-form a contract and correct an alleged mistake unless the party asking to have a written contract re-formed makes out a clear case and one free from doubt. This is elementary law and it is not necessary to cite authorities in support of it.

*423In the case at bar there is very great doubt as to any mistake having been made by either party, and certainly there is no evidence that the plaintiff made any mistake or had any doubt about the effect and purpose of the contract. The evidence is contradictory as to the attitude of the defendant, and not until a month after the execution of the contract was any question raised as to its meaning.

The facts go to show that both parties to the contract understood what it meant when they executed it.

Under the contract of October 2, 1918, the defendant had the privilege of making changes in the contract, plans and specifications, and the plaintiff was obliged under the terms of the contract to *“*proceed with such changes as directed in writing by the Chief of the Bureau of Yards and Docks.” Par. *17,*p. 110 of the record. The same-paragraph provides as to how the cost of changes shall be ascertained, and the plaintiff agrees to accept any decrease in price approved by the Chief of the Bureau of Yards and Docks in full satisfaction for all work done under the contract. Thus the defendant had it in its power to have the work done under a contract which was already in effect, but the defendant preferred to enter into another and separate written contract with the plaintiff providing for the construction of these additional buildings, and having done so the defendant can not now7 repudiate its own agreement unless fraud or mistake can be shown.

It is difficult to understand why the amount of $231,658.09 was incorporated in the contract if the understanding was that a board should, after the work was completed, fix the price to be paid to the plaintiff.

That the drawings Nos. 82449 and 82450 were intended to be attached to the contract seems very plain when it is considered that the execution of the contract was delayed because these drawings had not been completed; and that these drawings were to be used in ascertaining the price to be fixed in the contract seems established when it is considered that the board which was to recommend the price to be paid for the work did not make its recommendation until after these drawings were furnished it by the Bureau of Yards and *424Docks, and it then recommended the amount which appeal’s in the contract, its recommendation being alluded to in the contract tself. That the plaintiff in its estimates made to the board was governed by these drawings is equally clear, when it is considered that it did not make its estimates of the cost of the work until after it had been furnished with the said drawings.

We are of opinion that no mistake of fact has been established and that the contract of the parties should not be re-formed. A judgment will be entered for the plaintiff in the sum of $62,099.25, the full amount of its claim. It is so ordered.

Graham, *Judge;*Dowkey, *Judge;*Booth, Judge, and Oampbeul, *Chief*Justice, concur.