#### BARTLETT *&*KLING, A CORPORATION, v. THE UNITED STATES.1

[No. 33863.

Decided January 8, 1923.]

*On the Proofs.*

*'Contract; misrepresentation; delays.*— Where there were no misrepresentations made by officers of the Government as to the character of the materials to be excavated, and no delays caused by the Government, a contractor is not entitled to recover damages for such delays as occurred.

*The Ref or taps*statement of the case:

*Mr. Benjamm Carter*for the plaintiff.

*Mr. Alexander E. McCoivniek,*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. On August 13,1910, the plaintiff entered into a contract in writing with the United States whereby the plaintiff agreed to furnish all the labor and material for the construction of a concrete dam, spillway, and valve chamber at Fort Meade, S. Dak., in accordance with plans and specifications attached to, and forming a part of said contract; and the United States agreed to pay the plaintiff for said labor and materials the sums set out in said contract. A copy of said contract with the specifications is filed with the petition and marked *“*Exhibit A” and is made a part hereof by reference.

The plaintiff entered upon the performance of the work upon the approval of said contract, and completed the work on October 27,1911, and was paid for all work done by it at contract prices.

II. The plaintiff was paid at contract prices for all work done by it. Under the contract all work was to be executed under the direction and to the satisfaction of the officer in charge, and his decision in any and all cases was final- All excavations were to be made of such dimensions as would, in *62the judgment of the officer in charge, not only admit of the concrete foundation being properly placed, but the plaintiff was to remove all earth, boulders, and unsound rock within the limits of the foundation of the dam and secure bed-rock surfaces of proper form and condition to receive the foundation concrete.

III. The plaintiff stopped work on January 5, 1911, it having on November 21, 1910, asked that it should be allowed to do so, and the Government granted the request. Under the contract all work was to have been completed on December 31, 1910. Extensions were granted to October 1, 1911; and later an extension of 15 to 30 days was granted to complete the work. Work was resumed early in April,. 1911, as soon as the weather permitted.

XY. It was provided in the contract that the material to be excavated was of two classes — earth excavation and rock excavation. Earth excavation included, by the terms of the-contract, all classes of soil. Rock excavation, by the terms-of the contract, included “ all solid rock which could not in the opinion of the officer in charge, be removed by means of picks and shovels a.nd boulders of one cubic yard or more in size.” It does not appear from the evidence that any material was encountered, which was not of one class or the other provided for in the contract.

Y. The contract provided that the plaintiff might be allowed to place fragments of rock in the core of the dam, forming what is known as “ rubble concrete.” The amount of rock which the plaintiff might, use for this purpose was not to exceed 25 per cent of the volume of the concrete. It does not appear from the evidence what per cent of such rock was or was not used in the core of the dam.

yi. As a final payment there was sent the plaintiff a voucher in the sum of $1,384.74, with a requirement that,, before cashing the same, a receipt in full should be written across it. The plaintiff in a letter written to the Quartermaster General, of date July 25, 1912, declined to execute-such a receipt and returned the voucher. Neither in the petition of the plaintiff nor in the brief filed by it is the above-amount claimed to be now due and unpaid.

1

 Appealed.

*63MEMORANDUM

BY THE COURT.

It is not shown that there was in this case any misrepresentation on the part of the officers of the Government; nor was there any delay in the work caused by the United States. The plaintiff itself requested extensions of time, and if the consequences of the delay resulted in loss to the plaintiff those consequences can not be'saddled upon the Government. As to the voucher for $1,384.74, no proof has been submitted to show whether this has been paid or not. If it has not been paid the plaintiff will be entitled to a judgment for that amount.1

1

 On April 16, 1923, the court filed the following order: “ It appearing from a report from the General Accounting Office filed April 13, 1923, that warrant No. 4877 for $1,384.74 has been paid by the united States to the plaintiff, it is ordered by the court that the plaintiff’s motion for a new trial and to amend; the findings of fact be, and the same is hereby, overruled."