#### GEORGE F. HORTON v. THE UNITED STATES.

[No. 34670.

Decided March 19, 1923.]

*On the Proofs.*

*Contract; changes in plans; extra loork.*— Where the plans to construct a bulkhead are defective and the contractor suggests to the engineer in charge certain changes therein to remedy such defects, which are adopted in part and ignored in part, and the bulkhead after construction gives way and a part of the material deposited behind it is carried away to sea *149and lost, and the contractor is ordered by the engineer to repair the break, which is done and the work accepted, the contractor is entitled to recover the cost of such repairs as extra work required by an emergency.

*The Reporter's*statement of the case:

*Messrs. H. Rosier Dulany*and *Sewell Meyer*for the plaintiff. *Dulany (& Shepard*were on the briefs.

*Mr. Alexander H.*MoOormioh, with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

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

I. The plaintiff is a citizen of the United States and a resident of the city of Houston, Tex., where he has been for many years engaged in a general contracting business. During the year 1918 his said business was conducted under the firm name of Horton & Horton.

II. Under date of September 28, 1918, plaintiff entered into a contract in writing with the United States through the Bureau of Yards and Docks of the Navy Department whereby the plaintiff agreed in consideraton of the payment to him of $108,500 to construct at the naval air station at Galveston, Tex., a timber bulkhead and to dredge certain areas adjacent thereto and deposit the dredged material behind the bulkhead, as directed by the Government officer in charge of the work. A copy of said contract is appended to plaintiff’s petition as Exhibit A thereto, and is by reference made a part of these findings of fact.

III. After the execution of the contract by the parties thereto the Bureau of Yards and Docks changed the plans and specifications for the work, so that the height of the bulkhead above mean low water was increased to 6 feet instead of 5 feet and the height of the fill behind the bulkhead was increased to 8 feet instead of 5 feet. Plaintiff had provided for the work piles 32 feet in length, 2 feet longer than contemplated by the contract, which permitted the 1-foot increase in the height of the bulkhead without decreasing the depth of penetration of the piles. The bulkhead extended out into the bay some 300 feet beyond the shore line, and the fill behind the bulkhead was contem*150plated to be made and was made by the deposit of silt, mud, and sand dredged from the bottom of the bay and deposited in the fill by means of hydraulic dredges. The material of the extra 3 feet of fill added by the change in the plan was held by a timber barrier built upon or just within and up to the necessary height above the bulkhead proper. The said increase in height of the fill behind the bulkhead very greatly increased the lateral outward pressure against the bulkhead by the mobile semiliquid dredged material deposited in the fill.

IY. When the plans were changed by the Government, increasing the height of both the bulkhead and the fill, as recited in Finding III above, plaintiff believed that the bulkhead would be too weak to withstand the pressure of the fill behind it and recommended and urged that the bulkhead be strengthened by batter or brace piles on the outside and by anchor piles and tie-rods on the inside, the bulkhead piles being tied to the anchor piles by the iron tie-rods. The officer in charge concurred in plaintiff’s view as to the need of strengthening the bulkhead and recommended to the Bureau of Yards and Docks its reenforcement by the use of anchor piles and tie-rods alone, leaving out the batter-pile bracing also recommended by plaintiff. The recommendation of the officer in charge in the matter was approved by the bureau and this change or addition to the work authorized and directed. Plaintiff, upon being informed of the bureau’s action, protested to the officer in charge that this plan without the batter piles would not add sufficient strength to the bulkhead and urged the use of batter piles also, but followed the direction of the Bureau of Yards and Docks in the matter, and batter piles were not used. The anchor piles and tie-rods were furnished by the Government and were put in by plaintiff under and in accordance with the directions of the officer in charge.

V. As the work of driving the piles for the bulkhead progressed soft spots in the bottom of the bay into which the piles were being driven were disclosed at various points. One such soft spot was disclosed near the northeastern *151corner of the bulkhead which was duly called to the attention of the officer in charge by plaintiff, who advised and recommended that longer piles than had been specified and provided should be used at this point in order to give the bulkhead sufficient strength to withstand the outward pressure of the materials of the fill. The officer in charge concurred in plaintiff’s recommendation in the matter, but on account of the Government’s desire to expedite the work and to avoid the delay that would have attended the procuring of the longer piles such piles were not authorized or used.

VI. The bulkhead as modified and constructed was inadequate in strength at the point where the break occurred to withstand the pressure of the fill behind it because of the changes made by the G-overnment in increasing its height and in increasing the height of the fill behind it, as recited in Finding III, which changes were the proximate cause of the break in said bulkhead.

VII. During the progress of the contract work, and when the fill was approaching in height the top of the bulkhead, the bulkhead, on June 7, 1919, gave way and broke under the lateral pressure against it from within at the said point near the northeastern corner where soft material in the bottom had been disclosed in the driving of the piles, as stated in Finding V, and a large quantity of the semi-liquid material of the fill escaped from behind the bulkhead. Where the break occurred two of the said tie-rods and some of the anchor piles broke, and some other anchor piles were pulled up. One of the tie-rods broke at a weak point where two pieces had been welded together, the fact of its having been welded being overlooked by the officer in charge when the rods were furnished plaintiff and used.

The officer in charge on June 8, 1919, the day after the breach occurred, wrote plaintiff directing him to replace the broken section of the bulkhead in accordance with the plans and specifications and to confer with him, the officer in charge, as to the method to be pursued in this work, and on June 13, following, said officer further wrote plaintiff informing him that he, the public-works officer, held plaintiff *152responsible for the damage resulting from said break in the bulkhead, and directed him to make the necessary repairs as soon as possible at his own cost.

VIII. Plaintiff repaired said break in the bulkhead, replaced the portion of the fill that had escaped through the break, and completed the contract work in accordance with the contract and the directions of the officer in charge. The repairing of said break was completed on July 19,1919.

IX. During the month of December, 1918, when it appeared probable that dangerous lateral outward pressure against the bulkhead would be exerted by the semiliquid dredged material deposited in the fill, the Government officer in charge “ suggested ” to plaintiff’s superintendent on the work that a bank of dry earth be filled in around the bulkhead immediately inside of it, in order to relieve the bulkhead from this pressure. Said superintendent declined to do this, on the ground that it was not required of the plaintiff under the contract, and would result in increased cost to plaintiff not contemplated by the contract. The officer in charge then “ suggested ” to said superintendent that the dredged material be first deposited around and just inside of the bulkhead, so that solid matter in it would settle and build up a bank which would help relieve the bulkhead from the pressure against it from the inside. This also would have increased the expense of the contract work to plaintiff by necessitating extra or additional moves of his dredging and filling plant and equipment. This course appears to have been followed by plaintiff’s superintendent to some extent, but not altogether, in the prosecution of the work.

In a written memorandum of February 14, 1919, said officer in charge called the attention of plaintiff’s superintendent to the danger of this lateral pressure from inside of the bulkhead, and stated: “ Unless an opening is provided through the bulkhead, for the discharge of the dredged water, you are directed to protect the bulkhead with dykes and convey the water to points where it can pass through sluice boxes in the levee.” It does not appear what action *153was or of plaintiff pursuant to this communication of the officer in charge.

On May 30, 1919, a written memorandum from the officer in charge was delivered to plaintiff’s superintendent, as follows:

“ The accumulation of silt and slim in the northeast corner of the site is exerting a tremendous pressure on the bulkhead at that section. I would suggest that in order to avoid a rupture such as occurred on the west end of the bulkhead that the fill be made immediately on the inside of the bulkhead and be built toward the center of the site. This has been suggested in the past and, prior to that even, it was suggested that sand and other material be banked against the bulkhead to protect it from the great pressure of the slim and muck. The Government is not responsible for the bulkhead when proper precautions have not been taken to allay the thrust of the pressure of the silt and muck.”

The officer’s suggestion in this memorandum was followed by plaintiff’s superintendent, and was being complied with at the time the break in the bulkhead occurred.

The officer in charge, during the progress of the work, did not consider that the building of a bank around inside of the bulkhead, either dry earth or by discharge of dredged materials, for the purpose of relieving the bulkhead of the inside pressure upon it, could be required of plaintiff under the contract; and the evidence does not satisfactorily show anything more than mere “ suggestion ” by him to plaintiff of such action by plaintiff, with the exception of the conditional memorandum direction of February 14,1919, set forth above, to protect the bulkhead with “ dykes ” unless an opening be provided in the bulkhead for the escape of the dredged water.

It does not satisfactorily appear whether the break in the bulkhead would have been prevented if the suggestion of the officer in charge as to depositing the dredged material around immediately inside the bulkhead had been fully carried out by the plaintiff.

X. The reasonable value of the additional services, labor, and materials furnished and used by plaintiff in repairing *154and rebuilding the break in said bulkhead and fill was $9,274.99, claim for which was made by plaintiff to the officer in charge of the work on August 18, 1919. The claim was approved by the said officer in the sum of $8,357.59, payment of which was recommended by him; and upon reference of the claim to the Bureau of Yards and Docks the project manager of the bureau, in general charge of the contract work in the bureau, recommended that the claim be recognized as just “in principle” and that a board be appointed “to review the facts and determine the amount of compensation to be paid.” The claim, however, was rejected by the Bureau of Yards and Docks, and no part of said claim has been allowed or paid the plaintiff by the defendant.

XI. During the performance of the contract work the dredging was stopped for some time by order of the Government officer in charge on account of a change in the plans, as to location, which cut off a part of the work. During the time work was so discontinued plaintiff had to hold, unoccupied and in readiness for the resumption of the work, a rented dredge boat with which he was doing the dredging. This resulted in damage to plaintiff in the sum of .$781.46, this being the rental value of said dredge boat, which was paid by plaintiff to its owner on account of the time during which it so remained idle and unoccupied. Plaintiff was told by the officer in charge that he would be paid for the loss of time by said dredge boat, but no part of said sum of $781.46 has ever been paid the plaintiff. On March 5, 1920, the plaintiff signed a general release of all of its claim except claims to the amount of $9,274.99. This release embraced the foregoing claim for $781.46.

Graham, *Judge,*

delivered the opinion of the court:

The plaintiff in this case was a resident of the city of Plouston, Tex., and had been for many years engaged in a general contracting business conducted under the name oi Plorton & Plorton.

On September 28, 1918, he entered into a contract with the defendant through the Bureau of Yards and Docks of *155the Navy Department whereby, in consideration of payment to bim of $108,500, be agreed to construct at the naval air station at Galveston, Tex.,, a timber bulkhead, and to dredge certain areas adjacent thereto and to deposit the dredged materials in the bulkhead, work to be in charge of a Government officer representing the defendant.

After the contract had been executed the Bureau of Yards and Docks changed the plans and specifications so that the height of the bulkhead above mean low-water mark was raised to 6 feet from 5 and the height of the fill behind the bulkhead was increased to 8 feet from 5 feet, without increasing the length of the piles.

The bulkhead extended into the bay some 300 feet beyond the shore line. It was in contemplation of the parties that the fill inside the bulkhead should be made by the deposit of silt, mud, and sand drawn from the bottom of the bay and deposited in the fill. This was accomplished through iron piping by means of hydraulic dredges, by which the dredged material was forced through the piping and deposited from the end of the latter within the bulkhead.

Plaintiff proceeded to construct, and did construct, the bulkhead in accordance with his contract and the plans and specifications as changed. Said change in plans required the construction of an additional timber barrier built upon and just within the bulkhead and above it in order to hold the extra 3 feet of fill provided for in the said change of plans from 5 feet to 8.

The contract called for piles 30 feet in length. The plaintiff, although not required to do so, provided piles 32 feet in length, 2 feet longer than required.

As the work progressed in the driving of piles the plaintiff discovered that there were certain places where the earth beneath the water was soft. Particularly was this so at the point where the break subsequently occurred which gave rise to this suit.

Plaintiff informed the officer in charge that in his opinion the bulkhead as designed was not strong enough, in view of these soft places and the pressure of the earth which would be deposited within, and to this the officer in charge agreed. *156Tbe plaintiff then recommended tbat tbe bulkhead should be strengthened, particularly at the points where the earth had been found to be soft, including the point where the break occurred, with anchor piles driven inside of the bulkhead and iron tie-rods attached thereto and attached to the piles of the bulkhead, and that in addition thereto there should be erected batter pile bracing on the outside. The officer in charge, however, concluded that the anchor piles and tie-rods were sufficient and recommended placing of the same to the Bureau of Yards and Docks, but did not indorse the further recommendation of the plaintiff as to batter piles outside. The recommendation was approved by the bureau, and certain anchor piles and tie-rods were put in place by plaintiff as directed. The defendant, through the officer in charge, furnished the anchor piles and tie-rods.

When plaintiff was informed of this decision of the defendant to use only anchor piles and tie-rods he again protested to the officer in charge that the change recommended would not add sufficient strength to the bulkhead and again urged the use of batter piles in addition to it. His protest and recommendation were ignored, and following the direction of the Bureau of Yards and Docks he put in the anchor piles and affixed the tie-rods provided and as required by the bureau.

At the point where the break occurred at the time the piles were being driven on account of the soft and yielding character of the earth the plaintiff advised and recommended that longer piles than those specified should be used in order to- give needed strength to the bulkhead. The officer in charge concurred in this opinion that such change ought to be made, but on account of the defendant’s desire to hurry the work and avoid delay which the securing of longer piles would occasion, the plaintiff was not authorized to use longer piles.

When the fill was approaching the top of the bulkhead, on June 7, 1919, a portion of the latter, at the point where the plaintiff had pointed out weakness and had recommended longer piles as well as batter-pile bracing, broke under the *157lateral pressure against it of tibe material within, and a large quantity of the fill escaped. It was found on examination that some of said anchor piles had broken and some had pulled up. Two of the tie-rods had broken. One of the tie-rods had a weak point where two pieces had been welded together prior to being furnished to plaintiff by the officer in charge. A large quantity of the material deposited inside slipped out of this opening into the sea.

The officer in charge ordered the plaintiff to repair this break and rebuild the bulkhead, and this the plaintiff did under direction of the officer in charge, and presented his claim for additional compensation, and payment of it was refused, and thereupon he brought this suit.

The plaintiff did not agree, in his contract, to suffer any and all losses which might occur by reason of the defendant’s mistakes, or to bear losses which occurred by reason of defects in plans which he was directed to use.

The break in the bulkhead, with the moving out of the material through it into the sea, created an emergency which required prompt action in order to stop the outgo of the material already deposited. The plaintiff was ordered to do the work by the officer in charge, and he did it under direction of the officer in charge.

The work was accepted by the defendant, and it has received the benefit of it. *Clark*v. *United*States, 95 U. S. 539; *Salomon*v. *United*States, 7 C. Cls. 482, 19 Wall, 17; *Peck*v. *United*States, 14 C. Cls. 84, 102 U. S. 64, and *Horton*v. *United States,*57 C. Cls. 395.

The court has found that the reasonable value of the labor performed and services and materials furnished by the plaintiff in connection with the work was $9,274.99. This amount the plaintiff should recover.

Judgment should be entered for the plaintiff in the sum of $9,274.99, and it is so ordered.

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