#### ROY H. ROBINSON, ADMINISTRATOR OF THE ESTATE OF JOHN C. ROBINSON, DECEASED, v. THE UNITED STATES.1

[No. 30800.

Decided December 5, 1921.]

*On the Proofs.*

*Contract; liquidated damages.*— Where a contract provides that one day shall be added to the contractor’s time for completion for each day’s delay caused by the Government, and his time for completion has been extended to a certain date, liquidated . damages must be computed from that date, as if it had been stated in the contract.

*Same; guaranty of work Toy contractor.*— Where a contractor guarantees the condition of the work for one year, and repairs become necessary within that time and are made with materials specified by the architect, the contractor is liable for the cost of such repairs, but not for the cost of the architect’s services thereon.

*8
      *The Reporter's*statement of the case.

*Mr. Charles H. MeriUat*for the plaintiff. *Messrs. James K. Jones*and *Charles J. Ka/ppler*were on the briefs.

*Mr. W.*/S'. Ryan, 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. By an act of Congress, approved March 2, 1899, an appropriation was made for the construction of a United States customhouse in the city of New York, and the Secretary of the Treasury authorized and directed to construct such building.

Under the provisions of said act the Secretary of the Treasury, under competitive bids, accepted the plans, drawings, and specifications for the building proposed and submitted by Cass Gilbert, an architect of New York City, and on January 29, 1900, contracted with said architect, for a fee or compensation of 5 per cent of the cost of construction of the building, to render all the services required in the preparation of detailed plans, working drawings, designs, specifications, estimates, etc., or changes therein required to be made, in connection with the erection and completion of the building, and to locally supervise its erection and completion, in strict and full accordance with the terms, conditions, and requirements of the contract for its construction.

II. The work of construction of the building was subdivided into several principal parts, such as the excavation and foundation work, the walls and structural-steel work, the mechanical equipment, the interior finish, etc., and separate contracts were let for these different parts of the building. Work on the building began and proceeded in the order, generally, of the different parts of the work as given above, the performance of the work under the different contracts, however, generally overlapping more or less in point of time.

The construction work having progressed to the stage where the interior finishing could be commenced, the Treasury Department, through its Supervising Architect, on *9March 9.1905, advertised for bids for the installation of the interior finish of the building; and because of a probable shortage in the funds available for the work, alternative proposals or bids were requested providing for the omission of certain work and the substitution of less expensive materials in some instances than those provided for in the main proposals. Of the five bidders for the work the lowest two were the plaintiff’s decedent, John C. Robinson, of Chicago, and John Pierce, of New York City, the latter of whom was the contractor for the walls and structural-steel work of the building, which work had not yet been completed.

In the main bids of Robinson and Pierce, Robinson was the lowest by about $22,000. In the alternative bids, which were made on somewhat different bases in the matter of the kinds of alternative materials, and especially of the marbles proposed to be substituted, Pierce was lowest. The bids were referred by the Treasury Department to the architect of the building, the said Cass Gilbert, for his consideration and recommendation; whereupon he decided Pierce to be the lowest bidder; and, as all the bids were yet above the amount of the funds available for the work, said Pierce was requested to submit a proposal for a reduction in his bid on account of some 32 items of omissions and changes proposed with a view to bringing the bid within the funds available for the building. Pierce thereupon submitted a proposal for such reduction, which brought his bid within the available funds, and said architect, Gilbert, recommended that he be awarded the contract. The Secretary of the Treasury, however, upon protest by Robinson and a consideration of the facts in the case, decided that Robinson, by reason of his main bid being the lowest, was entitled to be considered the lowest bidder, and the contract was awarded to and accepted by him at the amount of Pierce’s said reduced bid or proposal and upon the basis of a restoration of the said 32 items of omissions and changes in the event that sufficient funds should subsequently become available for their restoration. The contract was entered into under date of August 30, 1905, the contract price for the work being $1,037,281.69, and the work to be completed by October 15, 1906.

*10Copies of the advertisement, specification, proposal, acceptance, articles of agreement, and other papers entering into the contract are annexed to and are by this reference made a part of these findings of fact as Exhibit A hereto.

III. The contractor in due time commenced and proceeded with the contract work; and additional funds having become available for the work, he was, by letters of October 22 and 31, 1906, directed by the Secretary of the Treasury to restore, or include in the work, the major portion of the said 32 items of omissions and changes referred to in Finding II at a designated increase of $200,041.01, and upon an extension of the contract period to June 1,1901. This order of the Secretary was agreed to by the contractor by the execution by him and his bondsmen of a “ Formal consent ” agreement thereto on November 16, 1906. Said letters and “ Formal consent ” are set forth in said Exhibit A to these findings of fact.

No final settlement on the contract has been effected between the contractor and the defendant, the statement of account and final settlement prepared and proffered by the department some time after the acceptance of the work having been protested and refused by the contractor on the ground that it was erroneous and unfair, and the balance therein stated in the contractor’s favor far below the amount fairly due him.

IY. In the course of the performance of the contract a number of items of extra work and changes were ordered by defendant under and in accordance with the provisions of the contract, and were performed by the contractor, the values or prices of which could not be determined on contract units of value nor agreed upon by the contractor and the defendants. The prices or compensation to be allowed for these items of work were thereupon determined and fixed by the Supervising Architect. The prices so fixed and paid the contractor for said work amounted to the sum of $23,891.27. The contractor protested that said prices were too low and insisted on much greater compensation for the work. It does not satisfactorily appear from the evidence that said prices were not fair and reasonable compensation for said work.

*11Y. Certain extra work, including a number of minor changes in the contract plans, was ordered by the architect of the building and was performed by the contractor at extra expense to him without the prior written agreement or direction by the defendant required by the contract for the authorization of extra work. In most of these instances the action of the contractor in proceeding without written agreement or direction was for the purpose of obviating the delay attendant upon securing such agreement or direction, he preferring to take chances’on securing compensation for such small items of work rather than chance the delay. Payment for some of this work was recommended by the architect but' was refused by the Treasury Department. The performance of this work was fairly worth the sum of $330.35, no part of which has been paid the contractor.

VI. The contract called for light-cloud Vermont marble for wainscoting of corridors; but as the work progressed it became apparent that a sufficient quantity of this marble could not be procured in time to complete the work within the contract time, and the contractor, upon his own suggestion, was permitted by defendant to substitute Italian marble in its stead, on condition that there should be no extra cost to the defendant on account of such substitution. The increased cost to the contractor on account of this substitution of Italian marble was $12,500, no part of which has been paid by the defendant.

VII. By the terms of the contract the contractor was required to maintain and operate the pumps for draining the subbasement of the building into the city sewer system. When the post-office section of the building was occupied and used during the latter portion of the contractor’s work the sewage from the toilets of this section of the building was discharged into the sump or drainage tank, from which the drainage of the building was pumped by the contractor. There was no indication in the contractor’s drawings or contract that such pumping of sewage would be required, but the drawings of the mechanical equipment contract showed the toilets of the post-office section connected with the drainage sump. When this discharge of sewage into the drainage began the contractor protested against it, both verbally and *12by letter, on the ground that his contract did not require such pumping. The architect ruled that he must do this pumping, and it was performed by him at a cost of $450. Just prior to the completion of the contract the contractor wrote the architect that he would in due time present a claim for this pumping of sewage, and in reply was informed by the architect that it would be useless for him to do so. A claim was subsequently presented by the contractor, which was disallowed.

VIII. The work on the ramp for the Bridge Street stairs as originally done by the contractor’s subcontractor was poorly executed and was condemned by the architect. The subcontractor then proceeded to get out the work anew, and, finding some difficulty in certain parts of it, suggested a modification, which was approved by the architect, and the extra cost of the performance of which was $325. There was no written agreement or direction by the defendant for this change in the work nor agreement of any kind for extra compensation therefor, and no claim was made for extra compensation on account of it until some time after the work was performed, when a claim for it was made by the contractor. No part of said extra cost has been paid the contractor.

IX. As originally planned, certain rooms in the building were to have wood-block flooring laid in mastic cement, known as herringbone flooring; but in the 32 items of changes made in order to bring the contract price within the available funds this style of flooring was changed to the ordinary wood flooring to be used in most of the floors of the building, which required a base of concrete in which were embedded the sleepers to which the flooring was nailed. This base for the flooring in said rooms had been put in by the contractor at the time the said 32 items were restored by the supplemental contract or order of October 22, 1906, which called for the herringbone flooring in these particular rooms; and the sum of $1,800 was allowed in the contract price for the restoration of these items to compensate the contractor for tearing out or removing this base of concrete and concrete-embedded sleepers. In the opinion of the contractor this herringbone style of flooring was not a durable *13kind of flooring; and upon his suggestion to this effect, and his recommendation of a steel-woven parquet flooring in place of it, the architect requested that he submit a written proposal for so changing the flooring in these rooms, which he did. In this proposal he agreed to substitute the steel-woven flooring without any extra cost to the Government on the basis of its being installed over the concrete and wooden-sleeper base which had already been installed by the contractor. This proposal, after extended negotiations and some slight modifications not material here, was accepted and authorized by defendant in writing; but when the contractor began the laying of these floors the architect discovered that to lay them over this existing concrete and sleeper base would in some instances bring the surface of the floors as much as a half inch above the surface of the floors of the adjoining rooms and corridors, and he thereupon ordered the contractor in writing to tear out the sleepers and concrete and put in a concrete base which would leave the surface of the floors at the proper level.

The contractor contended that the difference in the floor levels could readily be otherwise adjusted, and protested vigorously against said order on the ground that his proposal and agreement to make the change without extra compensation was based upon his not having to remove the existing floor base and put in another base. The architect insisted on his order being observed, and the contractor appealed to the Secretary, who finally ruled and notified the contractor in writing that the sleepers should be removed but that the concrete could remain, the spaces that were occupied by the sleepers to be filled with concrete. The contractor thereupon followed this ruling, though under protest, and with notice to defendant that he claimed compensation for the cost of removal of the sleepers, etc., which amounted to $207.80. The floors were laid accordingly, the difference in floor levels being mechanically adjusted, and the work was accepted. In the department’s proffered final settlement the contractor’s claim of $207.80 for extra order in the removal of the sleepers was disallowed, and on the recommendation of the architect, approved by the Supervising Architect, the sum of $1,850 was charged and retained *14against the contractor on the ground that it would have cost him this sum to have removed the original concrete floor base in said rooms and put in a new base, and that this deduction should therefore be made from the contract price.

X. The department had under consideration the extra work of waterproofing all the floors of the building; and as an agreement could not be reached with the contractor as to the proper compensation for such work several floors were waterproofed and laid complete by the Government, in order to determine what would be a fair price for the waterproofing. The cost proved to be greater than the department wished to expend for it and the proposition was abandoned. Being unable to secure an agreement with the contractor upon a deduction on account of this work performed by the Government, the department, in its proffered final settlement on the contract, upon the recommendation of the Supervising Architect, charged against the contractor and deducted from the contract price the sum of $500 as being the value of that portion of the work so performed by the Government which would otherwise have necessarily been performed by the contractor as a part of his contract work. It does not satisfactorily appear that the amount so deducted was greater than the value of said work.

XI. In the marble work installed by the contractor in the rotunda and some other parts of the building there were numerous blocks or pieces of marble which, after this and surrounding work had been finished, were rejected by the architect on the ground that they were not up to the contract requirements in the matter of color and failed to harmonize with contiguous pieces of marble. Written notice of their rejection was given the contractor by the architect, with demand for their replacement with satisfactory marble. The contractor contended the rejected pieces were within the contract requirements, and in many instances refused to remove them, and they were allowed to remain in the building. In the department’s proffered final settlement there was charged and retained against the contractor, on the recommendation of the architect; approved by the Supervising Architect, the sum of $3,000, on the ground that said *15pieces of marble were “ of darker color and inferior to sample marble submitted by contractor.”

XII. The specifications provided that “the contractor will be responsible for the proper care and protection of all materials delivered and work performed by him until the completion and acceptance thereof,” and that “ any and all portions of new work and parts of building work previously completed, if liable to damage by reason of building operations conducted under this contract, must be protected by temporary but substantial boxing or board covering, paper or canvas, which must be maintained in position until not further required and removal is approved by the architect.” Protective covering was provided by the contractor, of the character called for by the contract, but not to the extent directed and demanded by the architect, who repeatedly demanded better or additional protection, for the marblework especially. In the department’s proffered final settlement, after the completion and acceptance of the work, there was charged and retained against the contractor, on the recommendation of the architect, approved by the Supervising Architect, the sum of $2,500 “ for omission of protective coverings, interior marblework.”

XIII. Above the doors in the corridors of the building were transom lights, with a light of similar size and form on either side of the transom light, these side lights being pivoted sash lights. The contractor interpreted the contract to call for *double-thick sheet*glass, not only in the transom lights but also in these pivoted side lights, and proceeded to glaze them all with sheet glass. After some of this glazing had been done the architect notified the contractor that the contract required *plate glccss*for these side lights and directed that they should be so glazed. The contractor protested this requirement and referred it to his- glazing subcontractor, who refused to observe it and continued using the sheet glass in said lights until all this glazing was done above the third floor. On the three remaining floors this glazing was done with plate glass, as ordered by the architect. The sheet glass put in these side lights above the third floor was allowed to remain, but with notice from the archi*16tect to the contractor that a deduction would be made from the contract price for the difference in value between the sheet glass used and, the plate glass which the architect claimed was called for by the contract; and in the department’s proffered final settlement there was charged and retained against the contractor on the recommendation of the architect, approved by the Supervising Architect, the sum of $571, held to be the difference in value between sheet glass and plate glass for said lights.

XIV. The contract called for certain sash-operating devices for subbasement windows to be of bronze. Under written authority from the architect these devices were changed to iron instead of bronze. The parties coiild not agree upon the amount of reduction in the contract price to be allowed the Government on account of this change, and the amount was thereupon fixed by the architect at $127.03, which reduction was approved by the Supervising Architect and charged and retained against the contractor in the department’s proffered final settlement. The reasonable difference in value between the bronze and the iron devices was $108.

XV. During the time of the performance of the contractor’s work a number of prism light's in the walks and cement floors of the courts of the building over the basement were broken. These lights had been put in under the Pierce contract for the superstructure of the building and were of the value of $339.80. In the period during which they were broken there were several other contractors working on the building, and it does not satisfactorily appear by whom they were broken. The architect decided that one-half of this breakage was chargeable to the contractor Eobinson; and in the department’s proffered final settlement, on the recommendation of the architect, approved by the Supervising-Architect, there was charged and retained against the contractor the sum of $169.90, determined by said officers to be one-half of the value of the lights broken.

XVI. The specifications provided that the varnish should be selected by the architect from among well-known brands, and one or more of such brands approved for use, and that the bidder should allow the sum of $2.57 per gallon for spar varnish and $1.88 per gallon for interior varnish.'

*17The architect selected spar varnish costing $1.90 per gallon and interior varnish costing $1.65 per gallon, and notified the contractor that the difference between the cost of the varnish at these prices and what the cost would have been at the prices stated in the specification would be charged against him as a deduction from the contract price. This difference amounted to $154.90, and in the department’s proffered final settlement this amount was on the recommendation of the architect, approved by the Supervising Architect, charged and retained against the contractor.

XVII. The specifications provided that the contractor should supply the architect with such photographs, in duplicate, as might be necessary to show the general condition of the work, each negative to be taken from such point as would best show the condition of the work as directed by the architect, and that there would be required “ an average of six 8-inch by 10-inch negatives per month and 20 negatives 5 inches by 7 inches.” During the 24 months the contract was under way there could have been required of the contractor a total of 624 photographs. The number supplied by him was 542, 82 less than could have been required of him. On account of this difference, and upon the recommendation of the architect, approved by the Supervising Architect, the sum of $174.85 was charged and retained against the contractor in the department’s proffered final settlement. It does not satisfactorily appear that the contractor at any time refused or failed to supply photographs when directed by the architect so to do.

XVIII. The specifications called for “ chair rail in all rooms so noted, but not elsewhere,” and provided that “ no trim will be required for unassigned rooms except in the subbasement.” By written order of the defendant trim was required for three unassigned rooms not in the subbasement, the price for which extra work could not be agreed upon by the parties and was therefore fixed by the Supervising Architect on appraisal. In the appraisal allowance had been made for chair rails in these rooms, but the contractor had no knowledge of this fact when the rooms were being finished, and he therefore finished them without chair rails. The *18“ grounds ” for attachment of chair rails should be put in before the walls are plastered. After the walls in these, rooms had been plastered and finished the architect demanded of the contractor that he put in such chair rails as being a part of his work under the appraisal order and compensation for the trim of the rooms. The contractor contended the work was not included in such order and. refused to perform it except for additional compensation. Upon the recommendation of the architect, approved by the Supervising Architect, there was charged and retained against the contractor in the department’s proffered final settlement the sum of $196 on account of his failure to perform said work.

XIX. On account of the noncompletion of the contract work within the contract time a portion of the furniture arriving after the time for completion and before the building was ready for its installation was stored elsewhere by the defendant at an expense of $96, the contractor having been given prior written notice by the Secretary of the Treasury that such expenses would be charged against him. Much of the furniture so arriving was, with the assent of the contractor, temporarily stored in some of the rooms and corridors of the building, and the contractor contended that all of it could have been so stored, which, however, the defendant did not wish to do. In the department’s proffered final settlement said expense of $96 was, upon the recommendation and approval of the architect and Supervising Architect, charged and retained against the contractor.

XX. By letter of September 30, 1907, the contractor was notified by Assistant Secretary of the Treasury Winthrop that “ in accordance with the rights reserved by the Government” in the contract the department would accept the building the next day, October 1, 1907, subject to the contractor’s correcting, at the earliest possible date, all defects and omissions which should exist under the terms of the contract at that time, and that such action was not to be construed as relieving the contractor in any way from his full responsibility to complete all items of work embraced in the contract in a satisfactory manner and with the least possible delay. Thereafter the work was treated as accepted by the department, subject to the qualifications expressed in the *19Assistant Secretary’s said letter, as stated above; and the contractor proceeded in the performance of items of unfinished work.

XXI. The contract called for most of the window sash of the building to be of solid oak, which wood is not especially suited for a damp climate and locality, such as lower New York City, on account of its liability to warp under damp and changing conditions of moisture and temperature.

The contractor, before putting in the windows, called the architect’s attention to this fact and suggested a modification of the form of construction of the sash for the purpose of obviating as much as possible the danger of their warping, which suggestion was not accepted by the architect or department. Owing to the fact above stated, and to the further facts that the materials of some of the sash were not of the best quality, not thoroughly seasoned, and that the workmanship in their construction and installation was in some instances not of first-class character, there occurred, before the completion of the building and within one year after the issuance of the department’s certificate for final settlement, much warping, shrinking, and misfitting in a very large part of these sash, which required extensive repairs of an expensive character. The department demanded of the contractor that he make these repairs, which he refused to do except as extra work for which he should receive extra compensation. To this the department would not agree. Subsequently the contractor repaired a small part of these windows, about 12 in number, but under written protest and notice to the department that it was extra work for which he expected extra compensation. Later he presented a claim of $1,043.69 for this work, which was disallowed by the department.

XXII. In a report of February 7, 1908, to the Supervising Architect, the architect of the building recommended that the department retain from the contract price for the work the sum of $12,000 for the repair of said window sash and of window frames, and the completion and repair of certain other items of work on the building which the contractor had failed to do, any balance remaining over from the work to be paid to the contractor; and upon this report *20and recommendation the Supervising Architect, in his report and recommendation of March 13, 1908, to the Secretary of the Treasury for final settlement with the contractor, recommended the retention of said sum for the purpose stated. In accordance with these recommendations said sum was, against the contractor’s protest, so retained by the department, and against this retained sum there were subsequently charged by the department expenditures, etc., as follows:

1. For repairing said window sash, and also some of said window frames, and for repair and completion of some other work which the contractor had failed to perform, $10,401.45, the greater part of which sum was for sash repairs.

2. For the completion of toilet room No. 122, the sum of $140.

3. For metal reinforcement of certain marble work, previously demanded but not supplied, the sum of $181.20.

4. For services of the architect of the building, the said Cass Gilbert, in superintending the above-noted work, the sum of $1,072.26.

5. Retained by the department, upon the recommendation of said architect, as partial compensation for deficient character of mirror frames and pointing up of certain mason work, the remaining sum of $205.09.

XXIII. The completion of the contract was delayed 121 days beyond June 1, 1907, the termination of the contract period as extended by the order and supplemental agreement set out in Finding III. Of this delay 12 days were held by defendant to be chargeable to the Government on account of delays in approving and returning the contractor’s drawings. The remaining 109 days were held chargeable to the contractor, and liquidated damage therefor at the contract rate of $420 per day, amounting to $45,780, was, against the contractor’s protest, charged and retained against him in the department’s proffered final settlement on the contract, which sum the defendant still retains.

Of the total delay in the completion of the contract but 61 days’ delay was due to the fault of the contractor, the *21remainder of such delay being due to suspensions and other delays in the work caused by the defendant subsequent to October 22, 1906. The amount of the liquidated damages charged and retained against the contractor by the defendant on account of delay for which the contractor was not responsible, and was therefore not chargeable, was $20,160.

XXIV. In the department’s proffered final settlement on the contract the sum of $6,040 was by defendent found due, and was tendered to, the contractor, which sum the contractor refused to accept on the ground that a much greater sum than this was due him in settlement, and said sum is still unpaid by defendant.

Appealed.

Campbell, *Chief Jmtice,*court:

delivered the opinion of the

The plaintiff contracted to do certain interior work in the New York post office building. The amount involved, including additions to the work and increases in amounts, was largely in excess of $1,000,000. Other parts of the work incident to a completion of the building were done by other contractors, and all bidders in the work or parts thereof were cautioned by the specifications that there might be “ some hindrances and delay ” incident to the performance of work in the building by various contractors at the same time. The time for completing the entire work undertaken by plaintiff was fixed by the specifications upon which its bid was based to be on or before July 16, 1906. It was not completed at that time, and in October following a supplemental contract extended the time within which the plaintiff should perform to June 1,1901. It was not until October of 1901 that the building was accepted by the Government so far as plaintiff’s work was concerned, and when finally taken possession of there were some minor matters which the architect claimed were not completed.

The building was a large one, the plans for it were elaborate and the details of construction were almost innumerable. A number of different contractors were engaged upon different parts of it. There were suspensions of the work and alterations in parts of it. That these things would occur *22were well within the contemplation of all parties who undertook the work, as well as of the Government’s • representatives.

The plaintiff’s petition claims a number of items, and the findings of fact are extended so as to embrace the contentions of the parties. We think it unnecessary to discuss each of the items, because the facts found sufficiently show the proper conclusion deducible and deduced therefrom. There are two main questions of contention, one by the plaintiff upon the question of liquidated damages, and the other upon the question of a deduction on account of certain repair work.

The contract contains a clause providing for liquidated damages to be paid by the contractor in case he fails to perform within contract time. The act of June 6,1902, 32 Stat. 326, requires that clause in contracts such as this.

The work was not completed or accepted until October, 1907, or 121 days after the stipulated time in the supplemental contract, namely, June 1, 1907. In the attempted adjustment of that matter as made by the Treasury Department, and of which the contractor complains, he was charged with 109 days’ delay, the remaining 12 days having been deducted from the total because of delay by the Government in furnishing “ certain drawings.” The act of 1902 mentioned in the specifications empowers the Secretary of the Treasury to remit the whole or any part of the liquidated damages as in his discretion may be just and equitable. This act, being in existence when the plaintiff’s contract was made, must be read into the contract itself. In determining whether anything would be remitted the Secretary did not feel bound by the contract provision relative to the ascertainment of a cause of delay by the supervising architect, but appointed a board to investigate the facts and report to him with their recommendation as to whether any waiver of the liquidated damages should be made by him.

While it is argued with much force by the Government that this action of the Secretary is conclusive on the parties, we think the better view is against that contention when all the terms of the contract are considered. It provided that *23the Government could suspend the work in whole or in part, and that for “ all such suspensions ” and other delays caused by the Government an allowance should be made to the contractor, and it also provided that no claim for damages shoidd be made by, or allowed to, the contractor for any damages arising out of delays caused by the Government. This latter provision is valid and enforceable against the contractor. *Wells Bros. Go. case,*254 U. S. 83, 87 (54 C. Cls. 206). But the former provision requires that some account be taken of the “ suspensions ” in ascertaining what, if any, additional days’ time should be allowed the contractor. It is not every suspension of part of the work that will give the contractor additional time, but it must have been such a suspension of part that has operated to delay the whole work. If there were a suspension of a part that had no effect on the balance of the work, or where the contractor could proceed with other of the work unhindered by the particular suspension, it could not be said to have delayed the ultimate performance of the whole so as to entitle him to additional time. We are not concerned with suspensions prior to the supplemental contract of October, 1906, because that contract extended the time of performance and took account of delays to that time, but if a suspension made prior to the October contract on part of the work was not lifted until after that date, and if such continued suspension of part so affected the whole of the work as to delay its completion within the contract time, then that suspension becomes material. And an instance of that kind happened. In August, 1906, an order directed the suspension of certain work, including marblework on the Bridge Street stairway No. 116, and the order to resume work was not issued until the end of March following — more than six months. The architect himself states that the contractor was delayed by these items and would doubtless claim exemption upon them, but also concluded that the primary cause of the delay was the contractor’s refusal to submit a reasonable bid for certain work. We take a different view of this matter and hold that inasmuch as the department could have fixed the price it need not have waited upon the contractor’s bid, and in fact did *24not so wait, and that the suspension made in August and continued until nearly April did operate to delay completion of the work, which according to the supplemental contract was due to be completed by June 1. As early as December, and several times thereafter, the contractor had called on the department to be allowed to proceed with incidents connected with this particular work. We have not found that a period equal to the entire time of the suspension should be added to the time the contractor had within which to complete, but that a portion of it should be so added. Similarly, on account of other suspensions the contractor should have additional time. The extension of one day for each day’s delay in the performance of the entire work caused by suspensions at divers times of parts of the work has been found in finding XXIII.

The contention by the plaintiff that he is not chargeable with any liquidated damages can not be sustained. The case of *United Engineering Go.,*234 U. S. 236, is not applicable to the instant case. The contract provides a definite period from which the liquidated damages are to be computed, and in case of delays by the Government or suspensions, in the circumstances stated above, it is provided that one day be added to the contractor’s time for each day of delay. These delays being ascertained, the time of completion is as definitely fixed as if written in the contract itself. The theory that the entire liquidated damage clause is defeated by a provision intended to protect and save it, and at the same time to accord to the contractor some relief, is not to be adopted where the contract shows plainly that its intent is to furnish the means of definitely ascertaining the period during which the contractor should be charged with the agreed damages. There is no question here of an apportionment of delays. The contract itself requires that under certain stated conditions additional days shall be given in which the contractor may perform, and it is the duty of the court to give effect to this provision. We have therefore ascertained the number of days which should be added to the contract period from June 1 and extended the time accordingly, as contemplated by the clause under consideration.

*25The other question involves the withholding by the Government of $12,000, mentioned or referred to in Findings XXI and XXII.

In the contract the contractor undertook to guarantee the condition of the work for one year after acceptance. The sum mentioned was retained to pay for repair work which the contractor was called upon to do. It is true that the contractor suggested that a modification be made in the specification of certain material, and called attention to the fact that this material was not well suited to the climatic conditions, but nevertheless the provision to which he assented was incorporated in and made a part of the contract, and was to the effect that the condition was guaranteed for a definite period. It is too late, after contracting to do the repairs, to interpose the objection that the material (as in this case solid oak) was liable to warp. If it was not his purpose to guarantee the condition when oak was used the contract should not have said what it does say. If it be assumed that his judgment about the material to be used was better than that of the architect, it is yet true that he undertook to do the work, and guaranteed its condition with the material the architect had specified, and having failed and refused to do the repairs, the Government was within its rights when it caused them to be done at his expense. We think, however, that the contractor is not chargeable with the item of $1,072.26 for the architect’s services, nor for the other item of $205.09, this latter not definitely appearing to be for repair work which the contractor was obligated to do. The sum of these two items the contractor should recover, and he should recover the further sums shown in the court’s conclusion.

Judgment for plaintiff under Findings IX, XI, XII, XV, XVII, XVIII, XIX, XXII, XXIII, and XXIV, in the sum of $33,964.10. And it is so ordered.

Geaham, *Judge;*Hat, *Judge;*DowNet, Judge, and Booth, Judge, concur.