#### DALY & HANNAN DREDGING COMPANY v. THE UNITED STATES.

[No. 32583.

Decided December 1, 1919.]

*On the Proofs.*

*Contract; quantum meruit.*— Where the terms of a contract provide that no compensation shall be paid to the contractor for extra work performed or materials furnished unless the same shall be required in writing by the contracting officer and approved by the Chief of Engineers, and the contractor performs certain extra work without such requirement in writing, he can not recover as upon a *quantum meruit*while the original contract remains in force.

*The Reporter's*statement of the case:

*Mr. 0. O. Galhoun*for the plaintiff.

In *Danolds*v. *United*States, 5 C. Cls., 65, this court carefully considered the question of recovering on *quantum meruit,*and decided that “ faithful performance by the contractor and the benefit received by the Government will take the case out of the statute so far as to leave it within the equitable rule of implied contracts.”

The Supreme Court followed the same rule in the case of *Ciarle*v. *United States,*95 U. S., 539. These two cases may perhaps be considered the leading cases on the question of recovery on implied contracts.

*2It is submitted tbat these two cases, which have been cited and followed repeatedly by this court and the Supreme Court, are directly in point. The case of *Wilson*v. *United*States, 23 C. Cls., 77, is very similar to the instant case.

A few other cases will be cited in which the law has been stated by this and the Supreme Court in perhaps different language, but in no case that has been found has the principle in the earlier cases been departed from:

*Burchiel*v. *United States,*4 C. Cls., 549; *Heath-field*v. *United States,*8 C. Cls., *213; Dougherty*v. *United States,*18 C. Cls., 496; *Mitchell*v. *United States,*19 C. Cls., 39; *Cebad-los*v. *United States,*42 C. Cls., 318; *Holiday et al.*v. *United-States,*33 C. Cls., 453; *Salomon*v. *United States,*19 Wall.. 17; *United States*v. *Gibbons,*109 U. S., 200; *St. Louis Hay de Grain Co.*v. *United States,*191 U. S., 159.

But eren admitting the contention of the defendants’ counsel that the engineer in charge did not direct the plaintiffs to proceed with the removal of the ledge rock, and did not enter into the supplemental agreement for its removal, yet, by reason of defendants’ admitted misrepresentations as to the existence of ledge rock, the necessity for the removal of this rock in order to complete defendants’ project, the actual removal by the plaintiffs of the rock with the full knowledge, consent, and acquiescence therein by the defendants that the work performed was advantageous to the de fendants, which was accepted by them; that the price for the performance of this work was agreed upon by the plaintiffs and the engineer in charge, subject to ratification, and that this price was reasonable, it is submitted the defendants are estopped from denying that they are liable to plaintiffs for fair and reasonable compensation for the services rendered and accepted.

In support of this contention the following authorities are submitted:

In *United States*v. *Iiarvey Steel Co.,*196 Ú. S., 310, it was held the alleged invalidity of the patent for the Harvey process of treating armor plate can not be set up by the United States as a defense to a suit for the royalties due under a contract for the use of the process which provided for the payment of royalties.

*3In *Knight*v. *United States,*35 C. Cls., 129, it was said that where one does work in good faith he is entitled to be paid. In this case the “ reports were received and filed without protests or objections and without notice of any kind that the work must cease.”

In *Merriam*v. *United*States, 20 C. Cls., 290, the facts briefly were that the defendant entered into a contract with plaintiff to furnish a certain quantity of beef at an agreed price. The contract was modified by the Commissioner of Indian Affairs and suit was instituted on the modified contract. Plaintiff thought he had complied with the modified contract, as defendant raised no objection at the time of supposed compliance with the terms thereof. The court, after finding that the officers of the Government had led the plaintiff to believe he had complied with the modified contract, held:

“After thus leading the claimant to understand that he had complied with all the terms and requirements of his contract, the defendants could not afterwards legally claim a reduction in price for underweight when it was too late for him to remedy the matter, even if he would have been obliged to do so at the time of delivery.”

In *Thayer*v. *United*States, 20 C. Cls., 137, it was decided that estoppel operated against the Government.

In *United States*v. *California*cfi *Oregon Land Co,,*148 U. S., 31, it was held that a purchaser under a quit-claim deed may be a bona fide purchaser. While the court did not expressly hold that the United States was estopped, such was the practical effect of the decision.

In the recent case of *Denver db Bio Grande Railroad Co.*v. *United States,*53 C. Cls., 155, it was stated that the defendant was estopped from denying liability to pay demurrage, the court saying:

“ It may have been, and quite likely was, more economical to the Reclamation Service to pay demurrage than to be glutted with these cars, and in any event it is clearly estopped from making any such defense.”

In *Omaha Indians*v. *United States,*53 C. Cls., 549, this court decided that where the Government had entered into *4a treaty with the Omaha Indians in regard to land the Indians were supposed to own, “ the defendants can not now be heard to say that the Indians did not own the land when the treaty was made and had no right to make a cession of it.”

In *Kisltadden*v. *United*States, 44 C. Cls., 205, this court held:

“ The payment of the consideration of an express contract, about which there is no dispute, does not estop the contractor from asserting a demand for damages caused by the defendants.”

A contract made with the Government, unless in conflict with some statute, is controlled by the same general law that controls as between individuals. *Lyons*v. *United*States, BO C. Cls., 352; *Eollerbach*v. *United*States, 233 U. S., 165.

*Mr. George E.*Thorne, with whom was *Mr. Assistant Attorney General Franlc Davis, jr.,*for the defendants.

Graham, Judge,

reviewing the facts found to be established delivered the opinion of the court:

This action grew out of a contract between the plaintiff and the defendant for dredging certain material from the harbor at Newport, R. I.

Paragraph 27 of the specifications, which were made a part of the contract, contained the following:

> *“*The material to be removed is believed to be compact sand, gravel, and clay overlaid by a small amount of mud, and containing some bowlders of varying sizes, but bidders are expected to examine the work and to decide for themselves as to its character, and to make their bids accordingly, as the United States does not guarantee the accuracy of this description. . . . The removal of ledge rock if found will not be required.”

The plaintiff began the work and in the course of the dredging encountered ledge rock. Its -representative thereafter communicated with the contracting officer and submitted in writing a proposal for removing this ledge rock in' consideration of the payment by the defendant of additional compensation to that named in the original contract. Subsequently a conference between the plaintiff and the con*5tracting officer relative to the removal of the ledge rock was held and a written tentative supplemental agreement prepared — but not signed by either party — for submission, under the terms of the original contract, to the Chief of Engineers of the War Department for his approval. His approval was necessary, under the terms of the contract, before said agreement could be valid and binding upon the defendant, which fact was well known to the plaintiff. The Chief of Engineers refused to approve the supplemental agreement and the plaintiff was so informed.

This ledge rock was not removed at the request, on the demand, or by the authority of the defendant. Much of it was removed between the time at which the supplemental agreement was prepared and the notification to the plaintiff of the refusal of the Chief of Engineers to approve the same.

The terms of the original contract were not vacated, changed, or supplemented by any subsequent agreement to pay the plaintiff for the removal of said ledge rock.

The plaintiff’s counsel in the oral argument and in his brief stated that this was an action to recover on a *quantum meruit*for money expended and labor performed presumably on an implied contract. It is well settled that so long as the original contract is in full force and effect, unrescinded, unchanged, or amended by a subsequent agreement, there can be no recovery on a *quantum meruit.*“ So long, therefore, as that contract remains unrescinded, he can not recover the value of his services upon a *quantum meruit.*Yet if the special contract be wholly abandoned, or its terms be varied by the mutual consent of the parties, the law implies a new promise.” *(Story on*Contracts, 2 ed., par. 15.) “ But where the parties have made an express agreement to perform certain acts, it is not to be extended by implication, so as to embrace all other unstipulated acts, which may be either convenient or necessary to the perfect performance of their express covenants; for it may very naturally happen, and indeed such is the presumption, that, having expressed some, they have expressed all the conditions by which they intended to be bound, and that what is omitted forms as much a part of the intentions as what is stipulated.” (Id., *6par. 16.) “Express stipulations can not in general be set aside or varied by implied promises; or, in other words, a promise is not implied where there is an express written contract, unless the express contract has been rescinded or abandoned, or has been varied by the consent of the parties. Hence, the rule is, that, if there be an express written contract between the parties, the plaintiff in an action to recover for work and labor done, or for money paid, must declare upon the written agreement so long as the special agreement remains in force and unrescinded, as he can not recover under such circumstances upon a *quantum meruit” Hawkins*v. *United States,*96 U. S. 689-697.

There is in the pleadings some suggestion of misrepresentation by the defendant, prior to the execution of the original contract, as to the nonexistence of ledge rock, but the plaintiff’s attorney in the argument before the court disclaimed any purpose or right to recover upon this ground. However, there is no proof of any misrepresentation by the defendant in regard to either the existence or the nonexistence of ledge rock. The plaintiff’s attorney also in the argument before the court disclaimed any purpose or right to recover for expenditures made in the removal of the ledge rock upon the ground that it was extra work, although the said proposed supplemental agreement would indicate that, at the time it was prepared, the claim was based upon the theory that this was extra work. Be this as it may, the Chief of Engineers refused to approve said proposed agreement for extra work, and as there is no proof of any other agreement to compensate the plaintiff for extra work, as provided by the contract, a claim for compensation for extra work could not be considered.

> “There was a total failure to comply with these provisions, and though it may be a hard case, since the court found that the work was in fact extra and of considerable value, yet Plumley can not recover for that which, though extra, was not ordered by the officer and in the manner required by the contract.” *Plumley*v. *United States,*226 U. S. 545.

*7It follows from the foregoing that the plaintiff has no grounds for a recovery in this case.

The petition is dismissed, and it is so ordered.

Hay, Judge, Downey, Judge, Booth, Judge, and Campbell, *Chief*Justice, concur.