#### THE AUSTIN COMPANY v. THE UNITED STATES.

[No. 47-A.

Decided March 12, 1923.]

*On the Proofs.*

*Contract, cost plus; expenses of securing labor; expenses of purchasing material.*— Where a cost-plus contractor has incurred expenses in securing labor and in purchasing and expediting the delivery of materials for the contract work, he is entitled to reimbursement therefor in addition to his agreed percentage on the cost of the work.

*Same; expenses of housing and feeding laborers.*— Where the Government under a cost-plus contract authorizes the contractor to establish, maintain, and operate a commissary for feeding and housing laborers engaged on the contract work under Government supervision, he is entitled to reimbursement for his expenses thereby incurred

*99*Same; interest on loans.*— The interest on loans to carry on work under a cost-plus contract is not part of the cost of the work.

*Same; liquidated damages.*— Where a contract provides for liquidated damages if certain buildings are not completed within a specified time, and the Government does not furnish the location for said buildings until after the contract time has expired, the time limit is waived and the contractor is not liable for liquidated damages.

*The Reporter’s*statement of the case:

*Messrs. W. B. Stewart*and *Clinton M. Horn*for the plaintiff. *Dustin, McKeehamMerrick, Arter <& Stewart*were on the briefs.

*Mr. Alexander II. McCormick,*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, the Austin Co., and the United States on or about the dates hereinafter mentioned entered into written contracts as follows:

Bureau of Yards and Docks, contract No. 2713, December 13,1917, for 22 powder dry houses.

Bureau of Yards and Docks, contract No. 2602, December 24, 1917, for two blending towers.

Bureau of Yards and Docks, contract No. 2715, December 24, 1917, for powerhouse extension.

Bureau of Yards and Docks, contract No. 2747, December 24, 1917, for two magazine buildings.

Bureau of Yards and Docks, contract No. 2748, December 24, 1917, for five sets of double quarters.

Bureau of Yards and Docks, contract No. 2749, December 24, 1917, for pulping and poaching house.

Bureau of Yards and Docks, contract No. 2873, March 18, 1918, for cottages, garage, and quarters.

Bureau of Yards and Docks, contract No. 2912, April 18, 1918, for construction camp.

Each of said contracts contained a provision that plaintiff should perform the certain work therein mentioned in' ac*100cordance with certain specifications and di'awings and general provisions.

A copy of each of said contracts is annexed to the petition, marked as follows, and made a part hereof by reference:

Contract No. 2713, “ Exhibit No. 1.”

Contract No. 2602, “ Exhibit No. 2.”

Contract No. 2715, “ Exhibit No. 3.”

Contract No. 2747, “ Exhibit No. 4.”

Contract No. 2748, “ Exhibit No. 5.”

Contract No. 2749, “ Exhibit No. 6.”

Contract No. 2873, “ Exhibit No. 7.”

Contract No. 2912, “ Exhibit No. 8.”

Subsequent to the execution of contract No. 2713, “ Exhibit No. 1,” the Bureau of Yards and Docks, on behalf of the United States, authorized in writing the plaintiff to perform certain additional work under said contract. The written authorizations or requests for such work were designated as *“*change orders ” and were duly accepted by plaintiff. They were dated as follows, respectively:

Change “ A,” dated January 12, 1918.

Change “ B,” dated January 12,1918.

Change “ C,” dated January 12,1918.

Change “D,” dated January 12, 1918.

Change “ E,” dated January 12,1918.

Change “ F,” dated February 1, 1918.

Change “ Gr,” dated February 1, 1918.

Change “ I,” dated February 9, 1918.

Change “ K,” dated March 15, 1918.

Change' “ L,” dated May 13,1918.

A copy of each of said change orders is annexed to the petition following contract No. 2713 and made a part hereof by reference.

On January 22, 1919, subsequent to the execution of said contract No. 2873, the Bureau of Yards and Docks, on behalf of the United States, authorized in writing plaintiff to perform certain additional work under said contract. A copy of such change order is annexed to the petition following contract No. 2873 and made a part hereof by reference.

*101II. The work of construction under said contracts was to be and was performed at the Government reservation at Indianliead, Md., an isolated place on the Potomac River some 45 to 50 miles distant from Washington by wagon road and 20 to 25 miles by water. Indianhead was 14 miles from the nearest railroad station, over a dirt road. There was a limited supply of labor, but no supply of materials, at or near Indianliead for the work. The nearest place from which labor for the work could be secured was Washington and outlying towns, and the supply at these places was inadequate. At least six other large Government construction contracts were being performed in the vicinity of Washington, D. C., which was also the nearest place where materials, supplies, and equipment could be bought for said work.

At the time of beginning the work plaintiff was authorized by the officer in charge to employ men at the expense of the defendant for the purpose of securing labor and purchasing materials and expediting its delivery. Arrangements were accordingly made with the' approval of the officer in charge for the performance of such services and the renting of office space therefor in Washington, but no definite period was fixed for the continuance of such office and labor in connection therewith.

Prior to incurring such expense the plaintiff informed the officer in, charge that it would'be necessary to solicit prices in Washington and that such work would have to be done in Washington and other places. Plaintiff arranged with such officer in charge for the hiring of the superintendents, clerks, draftsmen, labor solicitors, and expeditors of material at the time believed to be- advisable for the work and for the opening and maintaining of an office in Washington from which said employees could perform such work as stated above. The officer in charge stated that expenses due to the use of men for purchasing and expediting materials were necessary and would be paid for by the defendant.

Plaintiff employed such persons and incurred and paid such expense in the amount hereinafter stated. Said labor agent was placed in charge of th.e work of securing labor and for such purpose, by authority of the officer in charge, opened *102an employment office at the entrance to the Washington Navy Yard, and employed assistants and a clerk and stenographer.

Said labor agent was instructed by said officer in charge to report directly to him concerning the number of men hired, and pursuant thereto said labor agent made daily reports for more than a year to said officer in charge.

Said officer in charge exercised supervision over the employment of said labor agent and his assistants, and also of the employees in purchasing and expediting such material. He fixed the number of men to be used in such work, and from time to time increased or decreased their wages, and at all times directed their operations and required and received daily reports thereof. He instructed the company to send said labor agents to Charleston, W. Va., and to Kansas City to secure labor for work at Indianhead. Said labor agent, upon his return from said trips, delivered the men so secured to said officer, who received them and distributed them. The securing of labor through said employment agency was continuous until about March 18,1918, on which date the United States took control of the securing of common labor for all its construction work, including that to be performed under the above-mentioned contracts, and at the end of said period plaintiff’s labor agent was instructed by defendant’s officer in charge to resume work.

Said employment agency throughout the contract period secured and delivered to said officer in charge between 5,500 and 5,600 men. The parties have stipulated as follows:

*“*That at the Naval Proving Ground, Indianhead, Md., where said work was to be performed, there was no labor supply and no accommodations for feeding, housing, and for the comfort of the necessary employees; that Washington, D. C., was the nearest place where labor could be secured and material, supplies, and equipment bought for said work; that claimant established an office in Washington as headquarters, from which it could purchase material, supplies, and equipment for said wox-k, and from which its employees could trace and expedite delivery thereof; and it established an office adjacent to the navy yard at Washington, D. C., from which it hired employees to secure skilled and common labor exclusively under said contracts. Claimant maintained said offices and hired the employees *103who performed such, work of purchasing, tracing, and expediting the delivery of material and who secured said labor.

“ The United States, on the approval of said officers, to wit, the officer in charge of the Bureau of Yards and Docks, paid said expenses in the sum of $6,023.94, incurred by claimant to March 14, 1918.

“ Thereafter claimant continued to maintain said offices, perform the same kind of said service through its employees, and incur the same kind of expense therefor, until on or about January 9, 1919, when the officer in charge approved the closing of said employment office.

*“*The amount of expenditures made by claimant for such employment office since March 14,1918, to January 9,1919, is the sum of $13,626.16, and said amount is reasonable and just.

“ Claimant, under the circumstances herein alleged, in good faith and in the exercise of skill, and for the purposes of said contract, in addition to the amounts approved for payment by the Navy Department expended the sum of $4,906.75 from and after March 14, 1918, as a part of the cost of maintaining said Washington office and as part of the time employees who were then engaged in purchasing materials and expediting delivery thereof solely for said contracts.

*“*Claimant is entitled to receive upon all or such parts of the amounts hereinbefore stated which it may be entitled to recover a sum equal to 10 per cent thereof. The total of all such amounts, together with said 10 per cent, is $20,386.20.”

Expense for securing labor was approved in writing as part of the cost of the work by the Bureau of Yards and Docks, July 9,1918, provided that said office should be maintained exclusively for supplying labor for the construction work at Indianhead.

Plaintiff had contracts at Indianhead, Annapolis, and the Washington Navy Yard other than the ones in suit, and the men in the offices in question constituted the district officers of the Austin organization for all the contracts under their control.

III. Before plaintiff began work defendant authorized it to establish, maintain, and operate a commissary for the feeding and housing of its men. Plaintiff relied upon said agreement and built and operated said commissary under the orders and direction of the officer in charge, who exercised supervision over and controlled the construction, *104equipment, and tbe operation of the commissary, including the feeding of the workmen. Plaintiff was instructed to present statements of account weekly, but failed to do so because of the refusal of the officer to whom the reports were to be made to allow plaintiff to employ a sufficient number of clerks to make up the desired statements. The fact that the commissary was running at a loss was frequently and almost weekly communicated by plaintiff’s agent to the officer in charge. The officer in charge fixed the number of employees used by plaintiff in conducting said commissary and the amount of their wages, and through his own inspectors checked the pay rolls used in paying such commissary employees. He supervised the purchase of equipment, supplies, and foodstuffs for the commissary; he required plaintiff to submit at the end of all work an inventory of broken and worn-out material which had been paid for by the Government and required an accounting at the end of the work.

At the beginning of the work plaintiff’s general superintendent, who had had many years of experience in handling commissaries, advised the officer in charge to name a rate for meals which it could charge the men sufficient to cover the cost, but the officer in charge arbitrarily ordered plaintiff to charge only $1 per day, which was insufficient to cover such cost.

The officer in charge required that, beginning January 26, 1918, and until further notice, the said amount of $1 per day to be charged certain of the trades should be reduced to 65 cents per day. But the laborers were required to continue to pay $1 per day. Plaintiff objected to> such reduction. The officer in charge stated that the loss would be paid at some later date by the Government. This rate was later adjusted SO that the $1 per day rate held throughout the contract.

. Until about the month of March, 1918, plaintiff duly submitted to the officer in charge its invoices for such commissary expenses. They were retained by him in his possession until February, 1919, when the Bureau of Yards and Docks received them. Said bureau still retains them.

In March, 1918, the officer in charge required plaintiff to purchase its supplies for the commissary through the Marine *105Corps at Indianhead and to submit for approval to the office of said Marine Corps the menu which the plaintiff proposed to serve at its commissary. Plaintiff complied with said instructions for over a month, and said office controlled the purchase of such food supplies and the food to he served plaintiff’s employees. The quantity of such food proved to be unsatisfactory to plaintiff’s employees and many of them quit their employment.

During the performance of said contracts the Chief of the Bureau of Yards and Docks and the project manager thereof in charge of said work at the Washington office of said bureau were informed that there was a loss at the commissary.

Plaintiff expended the total of $172,298.58 in the conduct of said commissary, which amount is reasonable and just. Plaintiff collected from its workmen the sum of $107,416.14, and defendant has reimbursed plaintiff to the extent of $25,112.45, making a total of $132,528.59 which plaintiff has received. The difference between such total expenditure and total receipts is $39,769.99, which has not been paid.

It is stipulated between the parties:

“ That at said naval proving ground there were no facilities for feeding and housing employees engaged in the performance of said work, and it was necessary, on behalf of the United States, to establish and conduct such facilities; that the claimant erected and equipped mess halls and bunk houses and therein fed and housed said employees; that it purchased food and other supplies and equipment necessary for said purposes, and from December, 1917, to January, 1919, furnished therein meals to such employees: that the United States has paid the expense of building such mess halls and bunk houses and equipping the same, and has paid in part the expense of the sanitary force and of a bookkeeper and keeping the accounts of such commissary, but has not paid the difference between said total expense and the amount received from all sources hereinafter stated.

“ Said commissary was the first one to be constructed at said place and was the largest on the said grounds.

“ Upon all or such portion of the amounts to which claimant shall be entitled in this action there shall be added a sum equal to ten per cent thereof as claimant’s fee.”

*106If plaintiff is entitled to recover this balance and 10 per cent commission on the entire sum expended, the total would be $56,999.84.

IV. The sand and gravel needed for the work was purchased from a dealer at Washington and was delivered by him in scows, which were towed down the Potomac River around into Mattawoman Creek and there tied to the dock at Indianhead.

Date in December, 1917, one of the scows loaded with this sand and gravel was brought in by the vendor and tied to the wharf. The scow was tied up too close to the wharf, and owing to the severe winds and “heavy sea” the scow was filled, causing the sand to wash to one side and' the scow sank. Plaintiff’s superintendent of construction, when informed of the sinking, decided that because of the creek being frozen over the raising of the scow should be delayed. When the scow reached Indianhead, it was plaintiff’s duty to see that it was taken care of, and as between the shipper and the plaintiff the latter was responsible for the scow while it was tied up at the wharf.

Late in February, 1918, the defendant desired to have coal unloaded at said dock for its use at the Indianhead station. The sunken scow blocked the channel. Orders were given to the plaintiff and by the plaintiff to the Smoot Sand & Gravel Co. to raise the scow. The plaintiff had the scow raised, and issued its purchase order to the Smoot Sand & Gravel Co. for its removal. The plaintiff’s agent applied to the officer in charge for what was known as a purchase order or approval authorizing a removal of the scow. The officer declined at first to give the order, stating that he had no intention of approving the order for reimbursement, and upon said agent assuring him that the agent wanted an approval or notation to show his Cleveland office that they were spending the money the officer in charge signed the purchase order and immediately returned the invoice disapproved when later it was presented for payment.

The reasonable expense involved in raising the scow was $991.08. Plaintiff paid this expense, and has not been reimbursed therefor by the Government.

*107Y. At the beginning of the work plaintiff itself inspected, upon arrival, all materials and supplies purchased for the work, and made payment for the same within the time allowed by the vendors for the taking of discounts. The officer in charge changed such practice and required the inspection, approval, and recording of all materials by his own agents before he would approve for payment by plaintiff the invoices for materials and supplies. After this change was made an invoice was not approved for payment until the material had arrived at the site and had been so inspected, appraised, and a record made of it. The effect of this change was to carry the time of payment to plaintiff beyond the discount period allowed by the vendors of such material. A few of the discounts were allowed by the vendors, but many of them refused to allow discounts under such circumstances and demanded full payment. In such cases discounts were thus not available to the plaintiff. On account of said officer’s refusal to pay for said material until the same was inspected, approved, and recorded, and his refusal to do so within the time permitted by the vendors for the taking of discounts as hereinbefore stated, said plaintiff did not take such discounts in the sum of $2,032.51. The plaintiff was charged with these discounts and has not been reimbursed for such loss.

VI. The contract provided that the plaintiff should be reimbursed monthly for its expenditures under the contract. This provision was later changed so as to provide for payment to the plaintiff on the 1st and 15th of each month.

The officer in charge required plaintiff to carry out the following procedure for supplying the work with men and materials:

The plaintiff would first submit to the officer in charge for his approval an order for the purchase of material. Upon securing it, plaintiff could then be permitted to order the materials. Upon its arrival the material was to be inspected, approved, and recorded by the officer in charge, and the invoice approved by him. Plaintiff was then required to pay for the materials and forward the receipted bills, along with the pay rolls for labor, to the officer in charge for his approval and payment to plaintiff.

*108The plaintiff submitted from time to time pay rolls and vouchers for said materials showing its expenditures, but defendant did not fully and promptly reimburse plaintiff for its expenditures. Some pay rolls as submitted were incorrect, and this condition caused delay in the office of the officer in charge. From time to time the plaintiff sent its own men to the office of the officer in charge to assist his clerks in checking pay rolls and invoices and correcting errors, and this was done as a matter of expediency to aid in correcting errors which otherwise would have had to be corrected in plaintiff’s office and also to aid in the preparation of vouchers. The construction manager of plaintiff upon investigating the matter decided to send auditors from the plaintiff’s Cleveland office to assist in straightening out the plaintiff’s office so as to facilitate submission of bills and get vouchers.

The inaccuracy of pay rolls and records of expenditures submitted was in part the cause of the delay in the payment of the invoices and pay rolls which plaintiff submitted to the officer in charge for approval, and the want of office force in the latter’s office in checking up same was also in part the cause of the delay in such payments.

From the beginning of the work in November, 1917, until January 1,1919, there was an average of $200,000 per month for its said expenditures that was unpaid.

The respective amounts so expended by the plaintiff in excess of the amount paid *it by the*Government were:

In January, 1918_ $82, 868. 46

In February, 1918-82, 834.19

In March, 1918_ 94, 647. 20

In April, 1918-107, 623. 80

In May, 1918_ 311, 418. 55

In June, 1918_ 279, 695. 37

In July, 1918_ 339, 821.29

In August, 1918_ 359, 000. 77

In September, 1918. 283, 732. 02

In October, 1918_ 323, 364. 94

In November, 1918-211, 762. 56

In December, 1918-155,144. 29

In January, 1919— 152, 817. 72

In February, 1919— 171, 617. 72

*109Plaintiff appropriated, from its capital resources for use under said contracts a sum which it regarded as sufficient to finance the work at Xndianhead, but the same was insufficient. The additional work contracted for required additional expenditures and plaintiff was compelled to obtain large additional sums.

Plaintiff carried a normal loan of $150,000, and estimated that $100,000 additional was necessary to cover general increased prices because of prevalent conditions, and that $100,000 more should be furnished to this particular job, the three sums aggregating $350,000. The total loans of plaintiff were as follows:

December, 1917-$299, 538.16

January, 1918 — 239, 538.16

February, 1918. 335, 000. 00

March, 1918_ 180, 000. 00

April, 1918_ 264,250.00

May, 1918_ 694, 553. 37

June, 1918_ 710, 250. 00

July, 1918_ 694, 250. 00

August, 1918_ 587, 500. 00

September, 1918 644, 500. 00

October, 1918_ 697, 600. 00

November, 1918-674, 400. 00

Deeember, 1918-656, 000. 00

January, 1919 __ 666, 000. 00

February, 1919 - 613, 000. 00

Plaintiff requested reimbursement from defendant to the amount of $12,477.50, which was 8 per cent interest for 16 months on the difference between the average of the said total loans ($505,969.86) and the sum of $350,000, such difference being $155,969.86, but defendant refused to pay the same.

VII. Certain material necessary for the performance of the work had been ordered by plaintiff and the vendors promised that shipment of the material would be made by freight on specified dates. The purchase orders included as part of the cost of the goods delivery by freight at Indian-head. These orders had been approved by the officer in charge.

The materials in question were urgently needed for the construction of said work, but because of the general con-

*110gestión of traffic and the inability of the vendors to obtain cars, it was impossible to make shipments of the material as promptly as the needs of the work required.

The officer in charge granted permission to the plaintiff to have the shipping instructions covering some materials changed from shipment by freight to shipment by express, and the materials were shipped by express, but in all cases where shipments by express were authorized payment was so made. The vendors added to their invoices the difference between the cost of freight and express charges incurred in shipping the goods by express, which was paid by plaintiff. The aggregate amount of such items is $684.76. The officer in charge refused to approve for payment the additional express charges herein claimed as not authorized, and plaintiff has not been reimbursed therefor.

It does not satisfactorily appear that the shipments by express were authorized.

VIII. It is stipulated between the parties “ that the claimant purchased large quantities of cement for use under said contracts and that said purchases began early in December, 1917; that on or about December 13, 1917, claimant secured bids from dealers in and manufacturers of said cement and tendered such bids to the officer in charge. The officer in charge approved, under his purchase order No. 12, the purchase of 5,000 barrels of cement from the Rosslyn Steel and Cement Company at the price of $2.37 per barrel in bags, f. o. b. Washington Navy Yard, Washington, D. C., less 40 cents for returned bags, or $1.97 net.

“The claimant paid to the Rosslyn Steel and Cement Company the amount thereof at the foregoing price, and thereupon submitted receipted vouchers for such amount to the officer in charge for reimbursement. The officer in charge forwarded the same to the Bureau of Yards and Docks, together with his written approval endorsed thereon, and the Navy Department thereafter reimbursed claimant for the full amount thereof.

“Thereafter claimant prepared and submitted an additional purchase order covering 9,000 barrels of cement at $1.97 per barrel net f. o. b. Washington Navy Yard, Wash*111ington, D. C., which was approved by the officer in charge on or about March 6, 1918.

“ Thereupon claimant caused such cement to be delivered at such price, paid the invoice of the vendor therefor at said price, and submitted the receipted invoices to the officer in charge for reimbursement. Said purchase order is No. 987.

“ The officer in charge thereupon submitted such receipted invoices to the Bureau of Yards and Docks, which approved the same, and the Navy Department paid to claimant the amount thereof, as shown by said invoices.

*“*It is further stipulated that on or about June 2,1920, the Navy Department made a counter charge against the claimant in the sum of $1,485.06, which it claimed was paid by the claimant in excess of certain prices at which the Government claimed that the claimant could have purchased said cement, and further made a counter charge against the claimant in the sum of $148.51, as representing 10 per cent of said claimed excess cost, making a total counter charge against the claimant of $1,633.57.

“It is further stipulated and agreed that claimant purchased said cement and paid the purchase price therefor in accordance with the approval of the officer in charge of said price.”

Liquidated damages. 1. Contract No. 2713, job 108.

IX. This contract (Exhibit 1 to the petition) was dated December 13, 1917, and provided for the construction and completion of 22 powder dry houses of frame construction, to be located upon the ground then owned by defendant at the Naval Proving Grounds, Indianhead, Md. Five of said buildings were to be completed within 70 days after the delivery to plaintiff of said contract, to wit, on or before March 4, 1918, and one every three and one-half days thereafter until the last thereof should be completed, on or before May 3, 1918.

The defendant failed to give the plaintiff the location of these several buildings, or any of them, until June 6, 1918, and the last location given was on September 16, 1918. As finally located the buildings were upon land that was acquired by the Government after the date of said contract, and after the dates on which the buildings should be completed according to the contract provisions.

*112Prior to the execution of the contract the plaintiff, who had its force or part of it at Indianhead, informed the Bureau of Yards and Docks that its understanding was that the locations of these buildings would be given by defendant’s officer in charge, and in January, 1918, and also in February, 1918, the plaintiff again notified the officer in charge that it was awaiting the location of the buildings. The locations were given in June and subsequently, and were delayed as above stated. As to eight of the buildings, work was ordered suspended by the defendant and these are not involved in this case.

The deductions made by defendant on account of liquidated damages were applied to the first 14 of the buildings, 9 of which were completed and 5 were in process of completion when defendant stopped the work upon them..

The nine buildings were completed between January 14, 1919, and January 29, 1919, and work upon five buildings was stopped by defendant Januaky 14,1919.

The stoppage of work on the five uncompleted buildings, and on the eight buildings upon which no work was done, was not because of any fault or delay of the plaintiff.

None of the buildings comprised in job 108 was completed within 70 days after the locations for them were designated by defendant.

The delay in the completion of each and every of the nine buildings that were completed, and of the five buildings upon which work was stopped, was attributable to causes for which in some instances the plaintiff was responsible and for which in other instances the defendant was responsible.

The causes of the delays, as found by the board hereinafter mentioned, are as follows:

*{a)*The defendant delayed the making of necessary steam tests in the building after its completion.

*(b)*Delay caused by epidemic of influenza among employees.

*(c)*Delay caused by changes made by defendant in plans of the buildings, requiring addition of porches.

*(d)*Delay caused by strikes of employees during the construction of the work.

*113(<?) Delay caused by change made by defendant in plans of construction from frame to brick construction.

(/) In addition to these, there was the delay, above mentioned, in fixing the locations of the buildings before the work of actual construction could begin.

Tabulating these six several causes of delay as applicable to the respective buildings in job 108, the number of days of delay in their completion is as follows:

Building No. 1: (a) 10 days, (b) 4 days, (c) 5 days, (d) 6 days, (e) 16 days, (f) 79 days; total, 120 days.

Building No. 2: (a) 12 days, (b) 4 days, (c) 5 days, (d) 6' days, (e) 16 days, (f) 79 days; total, 122 days.

Building No. 3: (a) 15 days, (b) 4 days, (c) 5 days, (d) 6 days, (e) 16 days, (f) 79 days; total, 125 days.

Building No. 4: Causes (a), (b), (c), (d), (e), and (f), 21, 4, 5, 6,16, and 79 days, respectively, a total of 131 days.

Building No. 5: Causes (a), (b), (c), (d), (e), and (f), 20, 4, 5, 6, 16, and 129 days, respectively, a'total of 180 days.

Building No. 6: Causes (b), (c), (d), (e), and (f), 4, 5, 6, 16, and 126 days, respectively, making a total of 157 days.

Building No. 7: Causes (b), (c), (d), (e), and (f), 4, 5, 6, 16, and 123 days, respectively, making a total of 154 days.

Building No. 8: Causes (b), (c), (d), (e), and (f), 4, 5, 6, 16, and 119 days, respectively, making a total of 150 days.

Building No. 9: Causes (b), (c), (d), (e), and (f),4, 5, 6, 16, and 116 days, respectively, making a total of 147 days.

The defendant’s officer in charge issued orders cutting out or forbidding Sunday work or overtime, and this change required more days in which to do the work, and resulted in delay in the completion of the buildings Nos. 10, 11, 12, 13, and 14. This cause of delay is indicated below by the letter (g). And as to these five buildings, the causes above mentioned, (b) referring to influenza, and (d) referring to strikes, apply as do also the causes (e) change in construction and (f) referring to locations.

Tabulating these causes of delay, as applicable to buildings 10, 11,12,13, and 14, the results are:

Building No. 10, causes (b), (d), (e), (f), and (g), 4, 6, 16,148, and 1 day, respectively, making a total of 175 days.

*114Building No. 11, causes (b), (d), (e), (f), and (g), 4, 6, 16,145, and 3 days, respectively, making a total of 174 days.

Building No. 12, causes (b), (d), (e), (f), and (g), 4, 6, 16,141, and 5 days, respectively, making a total of 172 days.

Building No. 13, causes (b), (d), (e), (f), and (g), 4, 6, 16,168, and 6 days, respectively, making a total of 200 days.

Building No. 14, causes (b), (d), (e), (f), and (g), 4, 6, 16,163, and 8 days, respectively, making a total of 197 days.

The copy of the contract for the 14 buildings above mentioned was delivered to plaintiff in December, 1917, and the locations or places where the buildings were to be placed were not given to plaintiff until the month of June and afterwards.

In making settlement the department charged the plaintiff with a total of 1,188 days of delay at $10 per day, $11,880, and withheld the same out of money otherwise due the plaintiff.

There is no proof of the damages, if any suffered by defendant, from plaintiff’s delay.

Change A, job 115 (contract 2713).

X. The construction of two soda storehouses and four cotton storehouses was provided for by contract No. 2296 with'Penn Bridge Co., and the construction of two additional soda storehouses was also provided for under that contract. This contract was annulled on December 8, 1917, after a large part of the contemplated work was done by Penn Bridge Co. This contract 2296 stipulated a price of $147,297.71 for the four soda storehouses, and upon its annulment there was paid to the contractor $124,179, which would leave a difference of $23,118 upon the contract price. The plaintiff company was paid on account of the completion of the work the sum of $132,858. The contract to complete this work was awarded to plaintiff in December, 1917, at or about the date of the annulment of the prior contract. The specifications of the proposed work were in possession of plaintiff on December 4, 1917; the plans on December 10, 1917; and the locations were awarded December 14, 1917. It participated in making an inventory of the materials on *115hand on December 24 which had been assembled by Penn Bridge Co. The plaintiff was at work upon this contract (change A) nearly a month prior to the date of the written contract, dated January 12, 1918 (Exhibit “change A” to petition). The written contract was delivered to and received by plaintiff on January 13, 1918. The completion date was March 15. The plaintiff asked for extensions of time on January 14, January 28, and February 22,1918, setting forth reasons therefor to the effect that the river was frozen over, preventing the movement of cars from the navy yard; that the railroad company had placed embargo on the movement of cars; that there was a shortage of coal necessary to run the hoist engine and compressor, and in consequence that wood was being burned and slow progress being made; and there was an inability to get sufficient sand and gravel from the pit. No action toward fixing definite dates of extensions was taken at or about the times the requests therefor were made, but these questions of extension, as well as other requests in this and other findings, were continued until the work was completed and the questions relative to liquidated damages were considered by the board and officers hereafter mentioned.

On June 17, 1918, plaintiff duly filed a request for extension of time, stating reasons therefor, and again on July 2 stated reasons for delay, and September 6, before the final completion of the work under this contract (job 115), made an extended report in which it requested extensions.

The work was completed on August 3, 1918, making a delay between March 3 and August 3 of 141 days. The board hereafter mentioned found that of these delays 8 days were on account of abnormally bad weather; that 10 days’ delay was caused by the confiscation of plaintiff’s coal and its use of wood instead of coal; that 10 days’ delay was caused by defendant’s changes or additions to plans, making an aggregate of 28 days, which, deducted from 141 days, leaves 113 days for which the board found the plaintiff responsible on account of the four buildings, and the plaintiff was accordingly charged with liquidated damages at $5 per day for 113 days on each of the four buildings, $2,260.

*116Change B, job 133-A (contract 2713).

XI. The plaintiff was authorized to do certain additional work under the terms of its contract 2713, by what was called a change order, which is herein called contract.

The John H. Nolan Construction Co. had contracted to build three powder-dry houses at Indianhead by its contract No. 2346. This Nolan contract was annulled by the defendant and the plaintiff was authorized *“*to complete the work in accordance with the provisions of specification No. 2346 and the drawings therein mentioned.”

This contract was dated January 12,1918, was received by the plaintiff January 13,1918, and fixed the completion date to be March 15, 1918.

The defendant delayed giving the location of the buildings until February 10, 1918. Two of the contemplated buildings were not constructed, and the plaintiff is not in anywise responsible therefor. The one building was not completed until October 23, 1918, a delay of 222 days from the named date of completion. The plaintiff in February, 1918? made a general request for extensions of time on the jobs it had under contract because of weather conditions, the consequent trouble with transportation, and because of an embargo placed on cars by the Fuel Administrator, and in this request called particular attention to a number of its jobs, but made no special mention of this contract (133-A). Prior to the date for completion the plaintiff made no request for extension because of the delay in location. Afterwards the plaintiff filed before the board hereinafter mentioned its requests for extensions of time, and its reasons therefor, and its allegations as to the causes of delay. It asked for 48 days’ extension on account of the delay in locating the building, and this the board allowed. It asked for 12 days’ extension on account of alleged delay in drafting and designing, and the board allowed 2 days. The board found that the plaintiff was not entitled to the other extensions claimed. It accordingly assessed the plaintiff with liquidated damages for 172 days, at $5 per day, $860.

*117Change C, job 114 (contract 2713).

XXI. The plaintiff was authorized to perform certain additional work under its contract No. 2713, by what was called “ change C,” and is herein referred to as a contract, which was dated January 12, 1918, and received by the plaintiff January 13, 1918. It provided for the completion of a sulphur storehouse and elevator house at Indianhead, which had been contracted for by Penn Bridge Co., which was annulled December 8, 1917. The contract called for the completion of the work by plaintiff on or before April 15, 1918, 90 days from the time the contract or *“*change ” was delivered to plaintiff.

The plaintiff was not furnished with the location of the building until it received, on May 22, a drawing showing the storehouse, and until June 13, when it received a drawing showing the location of elevator. The defendant delayed designating the places for the contemplated buildings at least 130 days, which carried the delay of defendant beyond the date when by the “ change ” or contract the work was to have been completed. The plaintiff could not proceed with the work until the places, or one of them, were located. The board hereinafter mentioned allowed some of the plaintiff’s requests for extensions, as follows: Awaiting location of site, 130 days; general labor shortage, 10 days; delay in removing obstructions, 2 days; discontinuance by governmental order of Sunday and overtime work, 13 days; and epidemic, 2 days; making a total of 157 days. There was a total delay of 241 days in the completion of the work, which was completed December 12, 1918, and the board deducted 157 days and imposed on plaintiff as liquidated damages 84 days, at $5 per day, $420. The defendant was not responsible for the 84 days’ delay.

Change F, job 110 (contract No. 2713).

XIII. This contract (change F) involved additional work under plaintiffs contract No. 2713, and was dated February 1, 1918. It was received by plaintiff February 2, 1918, and *118called for the completion of the work March 10, 1918, and for liquidated damages at the rate of $35 per calendar day for delay. It required repairs on building No. 172, known as Solvent Recovery No. 2. The original building had been destroyed by fire on November 19, which greatly reduced the output of powder, and it was known to plaintiff as early as November 24, 1917, that the reconstruction of this building was a part of the cost-plus work at Indianhead, and it had received specification January 7 and the location was given January 3. The work consisted of the erection of a one-story building about 85 feet wide by 42 feet deep, divided into four units by three brick partitions and four small structures in the rear of each of the subdivisions. The foundations were in place and the design was simple. The completion of the work as early as possible was urgent and the time fixed within which work of that kind would ordinarily be done was reasonable. The work was not completed until July 29, making a delay in completion of 141 days. On February 22,1918, plaintiff’s district superintendent wrote to defendant’s officer in charge, making a general request for extensions of time on all of their work on account of freezing over of the Potomac River and of embargoes on cars put into effect by the Fuel Administrator, and referred to various of the jobs. As to job 110, it was stated that the same would be completed on or about March 9. Afterwards, on June 17, for reasons stated in the request, plaintiff asked for an extension of time. The board hereinafter mentioned fully considered all of the reasons assigned by plaintiff for desired extensions of time and concluded that out of the total 141 days of delay the plaintiff should be charged with 135 days’ delay at $35 per day, as liquidated damages, and accordingly deducted from the amount otherwise due the plaintiff, $4,725.

Change Gr, jobs 134-3, 134-4, and 134-5 (contract 2731).

XIV. This *“*change ” provided for the construction and completion of three structures for use as solvent recovery buildings, known as Nos. 3, 4, and 5, the work to be done as *119additional work under contract No. 2713. The contract (change G) was dated February 1, 1918, and the work was to be completed on or before March 29, 1918. The specifications were delivered to plaintiff on January 31, 1918, but there were delays chargeable to the defendant, or for which plaintiff was not responsible, in the completion of the several structures, as follows:

*Structure No.*3. — There was a delay of 41 days in the giving of the location of this building which carried the date of beginning work to March 15, 1918. In the meantime the plaintiff had made little, if any, preparation for proceeding with the work. The plaintiff proceeded with the work and made no request for an extension of time for its completion until August, 1918, at which time complaint was made of a strike or walkout of its employees. The building was substantially completed August 1, 1918.

The questions of delays and the extensions of time to which plaintiff was entitled were submitted to the board hereinafter mentioned. The plaintiff, before the board, urged that it should be granted extensions of time on account of (1) delay in giving location, (2) delay in getting preliminary information, (3) delay caused by excessive excavation, (4) delay caused by having to repair roads, (5) delay caused by embargoes, (6) by inadequate transportation facilities, (7) by Government requisitioning plaintiff’s men, (8) by general labor shortage, (9) by strikes, (10) by revisions and additions; and it claimed to be entitled to an aggregate of 177 days’ extension.

The board found that claimant was entitled to extensions of time on the items 1, 3, 5, 6, 7, 9, and 10, a total of 69 days. The entire delay was 124 days, and the plaintiff was charged with 55 days’ delay at the stipulated sum per day of $25, $1,375, which was deducted from the amount otherwise due the plaintiff.

*Structure No.*A — There was delay in giving the location for this building of 41 days, which carried the date for beginning work to March 15. In the meantime the plaintiff had made little, if any, preparation for proceeding with the Avork. It did, however, proceed with the work, and made no *120request for an extension of time for completing the work until in August, 1918, at which time it referred to a strike of its employees. The building was substantially completed September 1,1918. The board hereinafter mentioned recommended extensions of time to plaintiff aggregating 69 days, because (1) the defendant delayed 41 days in giving location of building; (2) excessive excavation and grading over that originally contemplated, a delay of 3 days; (3) delay of 7 days on account of inadequate transportation facilities; (4) delay of 1 day because of strikes; (5) delay of 15 days on account of revisions and additions ordered by defendant, and (6) delay of 2 days because of Government taking for other work plaintiff’s men. Before the boai’d the plaintiff contended for the several items of extension above set forth with inference to structure No. 3. The plaintiff was charged with liquidated damages at $25 per day for 88 days, $2,200, which was deducted from the amoimt otherwise due the plaintiff.

*Struotwre No.*5. — There was a delay by defendant in giving the location for this building of 41 days, which carried the date of beginning work to March 15. In the meantime the plaintiff had made little, if any, preparation for the work. It proceeded, however, and did not request any extension of time until in August, 1918, at which time it asked for extension on account of strikes. The building was substantially- completed October 1,1918.

■ The hoard hereinafter mentioned recommended extensions of time to plaintiff aggregating 76 days, because: (1) Of delay in-giving location, 41 days; (2) excessive grading and filling required, 10 days; (3) inadequate transportation facilities, 7 days; (4) Government action in taking plaintiff’s men for other work, 2 days; (5) strikes, 1 day; (6) revisions and additions by defendant, 15 days. The plaintiff contended before said board that it should have the several extensions above set forth with reference to structure No. 3. The plaintiff was charged with liquidated damages, at $25 per day for 110 days, $2,750, which sum was deducted from the amount otherwise due the plaintiff.

*121Change L, job 144 (contract 2718).

XV. This “ change ” provided for the furnishing of materials for and the construction of certain gun bases and concrete runway at Indianhead as additional work under contract No. 2713.

The contract (change L) was dated May 13, 1918, and called for the completion of the work on or before July 1. 1918. The plaintiff was informed prior to the contract date of the nature and requirements of the work, and started the work April 13. It was completed July 30, 1918; that is, 29 days after the date provided in the contract for its completion. It does not appear that plaintiff made any request for extension of time during the progress of the Avork. In September plaintiff filed with the officer in charge a list in detail of reasons for asking extensions, among them being the request for extension of time in tlie completion of this work (change L). The basis for the request was “ on account of changes, revisions, and extreme difficulties in performing the woi’k.” The board hereinafter mentioned found the defendant responsible for part of the delay and recommended that 20 days’ extensions of time be allowed plaintiff as follows: Fifteen days because of changes or revisions by defendant in the work; 10 days for loss of time caused by defendant’s firing its guns, which necessarily interrupted plaintiff’s work; and 5 days for loss of time occasioned by repairing defective concrete work done by defendant’s agents. For the other nine days of delay in completion, the plaintiff was charged with $90, as liquidated damages at $10 per day, and this sum was deducted from the amount otherwise due the plaintiff.

Contract No. 2602, jobs 111 and 116.

XVI. This contract provided for the construction of two blending towers, designated as jobs 111 and. 116. A copy of the contract is attached to the petition as Exhibit 2. It is dated December 24, 1917, and a copy of the contract was delivered to the plaintiff on January 14, 1918, and it provided that the work should be completed on or before 90 *122days after the delivery of said copy. It also provided for liquidated damages for delay at the rate of $25 per day for each of the buildings.

As to job 111:

This building was completed on December 3,1918, a delay of 231 days.

The location of this building was not given to plaintiff until May 20, or more than one month after the date fixed by the contract for its completion.

The claims of the plaintiff for extensions of time under the contract for this building were submitted to the board hereinafter mentioned, and it found, and accordingly recommended, that the plaintiff was entitled to extensions of "time as follows: *(a)*Because of the defendant’s delay in giving location; (5) because of the change in location which greatly increased plaintiff’s work; (o) because of strikes; *(d)*because of general strikes, induced by a departmental ruling that free board would not be allowed mechanics under cost-plus contracts after July 1; *(e)*because of epidemic of influenza; (/) because of defendant’s stoppage of “ Sunday and overtime work”; *(g)*because of revisions of plans and additions by defendant. The total of days extension thus determined was 181 days. This left 50 days of delay, which was charged to plaintiff, and as liquidated damages at the rate of $25 per day, $1,250. This sum was deducted from the amount otherwise due the plaintiff.

As to job 116:

This building was completed on November 14, 1918. The location of the building was not given until February 23, 1918, which was 40 days after a copy of the contract was furnished plaintiff, and 50 days before the date of completion provided for therein.

Before the contract was actually signed specifications of the work were delivered to plaintiff on December 4, the plans were delivered December 10, and there were revisions made in January. On February 22 the plaintiff filed written request for extension of time because of the delay in giving the building site. The question of extension was not taken up by the defendant’s agents until afterwards, but plaintiff *123proceeded with the work after the location was given and had assembled a large amount of material as early as February 22. The requests and claims for extensions of time by plaintiff were submitted to the board hereinafter mentioned, which found, and accordingly recommended, that plaintiff was entitled to extensions of time as follows: *(a)*Because of defendant’s delay in locating the building site; *(b)*because of strikes growing out of a departmental ruling affecting the right of mechanics on cost-plus contracts to free board; *(o)*because of delays occasioned by revisions of and additions to plans and buildings; and *(d)*because of the site finally fixed being so distant from other work as to materially delay plaintiff. These delays aggregated 80 days, which, deducted from the total delay of 214 days, leaves 134 days’ delay, with which the board charged the plaintiff at $25 per day, $3,350, which sum was deducted as and for liquidated damages from the amount otherwise due the plaintiff.

Contract No. 2715, job 103.

XVII. This contract was dated December 24, 1917, and provided for the construction of an extension to the powerhouse, according to certain plans and specifications. A copy of it is Exhibit 3 to the petition. The contract provided for completion of the work within 75 days after a copy of it rvas delivered to the plaintiff, which was January 12, 1918. The building was completed on May 25.

After the work was completed the questions of delay were submitted to the board hereinafter mentioned, which found, and accordingly recommended, that extensions of time be granted to the plaintiff as follows: *(a)*Because of abnormally bad weather; (5) because of delays caused by additions and revisions made or required by defendant; (<?) delay caused by extra work made necessary by the required removal of buried water and steam lines, making a total of extensions of 16 days, which deducted from the total days of delay leaves a net delay of 40 days.

For the 40 days’ delay at $30 per day there was deducted as and for liquidated damages the sum of $1,200 from the amount otherwise due the plaintiff.

*124Contract No. 2747, jobs 112 and 117.

XVIII. This contract, dated December 24, 1917, a copy of which is Exhibit 4 to the petition, provided for the construction of two magazine buildings at Indianhead within 55 days from the date of the delivery of copy of the contract to plaintiff. This copy was delivered January 12, which brought the date of completion to March 8,1918.

As to job 117:

This work was completed September 4, a delay of 180 days.

The location of the building site for this building was furnished to plaintiff by letter of the officer in charge March 23, 1918, which was subsequent to the date for completion above stated. The building was completed September 4, and thereafter the question of extensions of time for completion were submitted by the plaintiff and defendant to a board, hereinafter mentioned, which found and recommended that extensions of time be granted to plaintiff as follows: *(a)*Because of delay to plaintiff in having to remove some Government property from the site, 5 days; (Z>) because of strikes, 4 days. The board refused to recommend plaintiff’s requested extensions, which it claimed to be entitled to, because of alleged revisions and additions and because of inadequate transportation facilities, and because of weather conditions, and because of delay in designating the site. The reasons assigned for this last-named refusal was that the plaintiff was not ready £o proceed with the work before March 20, and that the location was known to plaintiff prior to tlie¡ award of the contract. There was a total period between the stated date for completion and the date of completion of 180 days, from which was deducted 9 days’ extension, leaving 171 days, for which, at $20 per day, $3,420 was deducted as and for liquidated damages from the amount otherwise due the plaintiff.

As to job 112:

There was a delay in the completion of the work on this building of 202 days.

The location for the building was not given to plaintiff until May 23, 1918, a delay of 72 days beyond the date fixed for completing the work.

*125The questions of delay in the completion of the work were submited to the board hereinafter mentioned, which found and recommended that out of the total delay of 202 days, the plaintiff was entitled to extensions of time as follows: *(a)*Delay of defendant in giving location of building, 72 days; (5) delay caused by excessive excavation and clearing over that contemplated to be done, and making extra ■work, 10 days; (c) delay caused by strikes caused by departmental ruling as to meals for mechanics, 5 days; making a total allowance for extensions of time of 87 days, which, deducted from 202 days, left 115 days of delay charged to plaintiff-, and for these 115 days, at $20 per day, there was deducted as and for liquidated damages, the sum of $2,300 from the amount otherwise due the plaintiff.

Contract No. 2748 job 105, jobs 106-A and 106-B, jobs 107-A and 107-B.

XIX. This contract, dated December 24, 1917, provided for the construction at Indianhead of five sets of double quarters, as directed by the officer in charge, and in accordance with certain plans and specifications, and the work was to be completed within 62 calendar days from the date a copy of the contract was delivered to plaintiff. A copy of the contract is attached to the petition at Exhibit 5, and a copy was delivered to plaintiff on January 11, 1918. The date for completion was accordingly March 14, 1918.

1. As to job 105:

This job involved the construction of a 30-room hotel. The work was completed May 13, 1918. There was a delay beyond the contract period of 60 days. The question of extensions of time to the plaintiff for completing the work was submitted to the board hereinafter mentioned, which found and recommended that extensions of time be granted to plaintiff as follows: *(a)*Because of delay caused by abnormally bad weather, 10 days; *(b)*because of strikes not the result of defendant’s action, 4 days; *(g)*because of delay caused by defendant’s changes or revisions in the specifications and work that could not be foreseen when the contract was made, 15 days; a total of 29 days. Deducting these 29 *126days from tlie entire time of delay, 60 days, there were left 31 days, and for these at $5 per day there was deducted, as and for liquidated damages, the sum of $155- from the amount otherwise due the plaintiff.

2. As to (A) jobs 106-A and 106-B, and (B) jobs 107-A and 107-B:

These jobs involved (A) two 10-room houses and (B) two cottages.

The work was completed April 27, 1918. There was a delay beyond the contract period of 4.4 days. The questions of extensions of time to the plaintiff for completing the work were submitted to said board, which found and recommended that the plaintiff was entitled to extensions of time as follows: *(a)*Because of abnormally bad weather, 10 days; *(b)*because of strikes not caused by defendant, 4 days; *(c)*because changes and revisions, which delayed the work and for which defendant was responsible, 10 days; a total of 24 days. Deducting this number from the total delay, there remains 20 days of delay, and for this delay of 20 days in the completion of each of said four buildings, at $5 per day, there was deducted as and for liquidated damages the sum of $100 per building, or $400 for all, from the amount otherwise due the plaintiff.

Contract No. 2749, job 104.

XX. This contract, a copy of which is made Exhibit 6 to the petition, is dated December 24, 1917, and provided for the construction at Indianhead of a pulping and poaching-house, in accordance with certain specifications, and to be completed within 70 calendar days from the date a copy of the contract was delivered to plaintiff. A copy was delivered to it on January 12, making the contract date of completion March 23,1918. The work was started by plaintiff on January 12 and was completed June 19, 1918. There was a delay beyond the contract period of 87 days. The plaintiff asked for extensions of time, and the questions of extensions which plaintiff requested were submitted to said board, which found and recommended that plaintiff was entitled to extensions of time: *(a)*Because of delay caused by defendant in making *127revisions and additions, 28 days; (&) because of abnormally bad weather, 14 days; a total of 42 days. Deducting this number from the total delay beyond the contract period of 87 days, there were left 45 days, and for this number of days, at $30 per day, there was deducted as and for liquidated damages the sum of $1,350 from the amount otherwise due the plaintiff.

Contract 2873, jobs 131 and others.

XXI. This contract (a copy of which forms Exhibit 7 to the petition) is dated March 18, 1918, and provided for the construction and completion of 7 cottages of the Aladdin type, 1 garage, and “ 15 or more, buildings,” for use as quarters at Indianhead, as directed by the officer in charge. This work was required to be done within stated times from the date on which a copy of the contract was delivered to plaintiff, that is to say:

,1. For the seven cottages and one garage, within 60 calendar days.

2. For the 15 buildings, for use as quarters, within 90 calendar days.

A copy of the contract was delivered to plaintiff on March 29, 1918.

The date for completion of the seven cottages and one garage was May 28. It was estimated that the cost under this contract would be $142,000. The actual cost to July 9 was $216,600.

1. Job 131. Cadillac cottage (library).

The contract date for completion was May 28 and the actual date of completion was July 17, 1918, a delay of 50 days.

The questions of extensions of time to the plaintiff were submitted to the said board, which found and recommended that the plaintiff was entitled to extensions of time as follows : (a) Because defendant stopped the work on shelving in parts of June and July for 34 days; (&) because defendant delaj'ed the work by requiring extra or additional work for six days. Deducting this delay of 40 days from the total delay of 50 days left 10 days, and for the 10, days, at $5 *128per day, there was deducted as and for liquidated damages the sum of $50 from the amount otherwise due the plaintiff.

2. Jobs 132-A, Stanhope cottage.

132-B, Stanhope cottage. ■

132-E, Plaza cottage.

132-F, Plaza cottage.

132-C, Maples cottage.

132-D, Sunshine cottage.

No question arises as to 132-C and 132-D.

There was a delay of 10 days in completing said 132-A and 132-B and a delay of 15 days in completing 132-E and 12 days’ delay in completing 132-F.

The plaintiff’s requests for extensions of time were submitted to the said board, which found and recommended that plaintiff was entitled to extensions of time as follows: *{a)*Because of delay caused by defendant in requiring additional work and changes and *(b)*because of strikes not caused by plaintiff, a total of 6 days’ delay for each of said buildings. Deducting this 6 days’ delay from the totals above mentioned left a delay in completion of the four buildings of 4, 4, 9, and 6 days, respectively, and for these days of delay, aggregating 23 days, at $5 per day, there was deducted as and for liquidated damages the sum of $115 from the amount otherwise due the plaintiff.

3. Job 138. Garage:

There was a delay of 35 days in completing the garage. Of this delay 25 days was because of the failure of defendant’s officer in charge to locate the place for the building.

The plaintiff’s requests for extensions of time having been submitted to said board, it found and recommended that plaintiff was entitled to extension of time as follows: *(a)*Because of defendant’s failure to give location, 25 days; *(b)*because defendant required changes in and additions to the work and because of strikes, for which plaintiff was not responsible, an additional 8 days, making 33 days. Deducting this 33 days’ delay from the 35 days’ total delay left 2 days, and for these 2 days’ delay, at $5 per day, there were deducted as and for liquidated damages the sum of $10 from the amount otherwise due the plaintiff.

*1294. Jobs 141-A, 141-B, 141-C:

The delivery of copy of contract was March 29. The date for completion (allowing 90 days) was June 27, 1918. The defendant delayed 66 days in giving plaintiff the locations of the buildings. They were completed September 9,10, and 11, respectively, making a delay in completion from the contract period of 75, 76, and 77 days, severally. The requests for extensions of time made by plaintiff were submitted to said board, which found and recommended that plaintiff was entitled to extensions of time for completing the work as follows: *(a)*Because of defendant’s delay in giving locations, 66 days; *(b)*because of delay caused by defendant in requiring additional work, and in revisions; *(c)*because of strikes for which plaintiff was not responsible, delays *b*and o, 6 days, making a total of 72 days. Deducting these 72 days from the entire delays on the three buildings severally left, 2, 3, and 4 days, aggregating 9 days, and for these 9 days at $5 per day, there was deducted as and for liquidated damages $45 from the amount otherwise due the plaintiff.

The total deductions on account of liquidated damages under contract 2873 were $220.

Contract 2912, construction camp for acid plant.

XXII. This contract, a copy of which forms Exbibit 8 to the petition, is dated April 29, 1918, and calls for the construction and completion of 26 buildings for use as a construction camp for the acid plant, as follows: Two 24-room bunk houses, ten 6-room cottages, ten Haskill-type houses, one modified Langford-type house, two washhouses, and one mess hall, together with plumbing, heating, and lighting systems and certain equipment, as directed by the officer in charge. The contract provided that the contemplated work should be completed as follows: Two bunk houses, mess hall, two washhouses, and one 6-room cottage on or before April 8, 1918, the balance of the 6-room cottages and the 10 Haskill-type houses on or before May 13, 1918, and the modified Langford-type house on or before May 23,1918.

The work called for by this contract had been first undertaken by the Du Pont Co., and afterwards, under an arrange*130ment between that company and the plaintiff, the latter proceeded with the same. Thereafter, it was determined that the Bureau of Yards and Docks would have direction of the work and that it would be brought under the “ cost-plus ’• plan in operation on other work being done by plaintiff, and it was informally agreed that the plaintiff should proceed with the work and a formal contract would be made covering the same. The work was for a period stopped, pending the execution of a written contract which the officer in charge stated it was necessary to have. The contract was not drawn, however, until April 15, and it was forwarded to plaintiff’s office in Cleveland, Ohio, where it was signed by plaintiff’s representative on April 22 and returned to said bureau. Attention was called to the discrepancy in the dates by plaintiff’s agent. These dates had been inserted by defendant’s agent without plaintiff’s consent as being the dates originally agreed upon between the Du Pont Co. and plaintiff, and the latter’s agent informed said bureau when the contract as signed by plaintiff was returned to the bureau that the dates therein should be changed. The dates to be stated when the changes were made were not fixed by the parties. The defendant held the said contract and did not deliver the same, or a copy of it, to plaintiff until on or about May 20, 1918. At that time plaintiff had performed a large amount of the said work. On April 30 the plaintiff duly applied for extensions of time within which to complete the work.

The two bunk houses and one washhouse were completed May 10; the mess hall was completed May 14; one 6-room house (E) was completed May 14; one 6-room house (F) was completed May 25; and the other buildings, except the Langford type, were completed June 4, 1918. The Lang-ford-type house was completed on August 2, 1918.

The said board found and recommended that there were delays of 11 days each in completing the two bunk houses; 15 days’ delay in completing the mess hall; 11 days’ delay in completing washhouse No. 1 and 36 days’ delay in completing washhouse No. 2; 8 days’ d_elay in completing each of six of the 6-room houses; 15 days’ delay in completing 6-room house E; 9 days’ delay each in completing 6-room

*131houses I and J; and 8 days’ delay in completing each of 10 Haskill-type houses, making an aggregate of 245 days’ delay, and for this number of days, at $5 per day, there was deducted as and for liquidated damages the sum of $1,225 from the amount otherwise due the plaintiff. The said board also found and recommended that there was a delay of 57 days in the completion of the Langford-type house, and for this number of days, at $5 per day, there was deducted as and for liquidated damages the sum of $285 from the amount otherwise due the plaintiff. The total sum deducted as liquidated damages under contract 2912 was $1,510.

XXIII. Copies of the respective contracts in the foregoing findings mentioned are attached to the petition and are made a part of these findings by reference, with, however, the qualification that parts of the following-named contracts have been omitted for convenience of printing, and these omitted parts are to be treated as parts of the respective contracts as follows:

Each of said contracts No. 2602, No. 2715, No. 2747, No. 2748, No. 2749, No. 2873, and No. 2912 have attached thereto as a part thereof, as stipulated in paragraph 2 thereof, the said “ General Provisions forming part of Specifications for Contracts for Public Works, Bureau of Yards and Docks, Navy Department,” and also “Addendum No. 1, dated July 10, 1917, to the General Provisions,” in manner and form as shown in, and attached to, said contract No. 2713, and said General Provisions and Addendum are to be taken and treated as if set forth in full herein.

XXIY. After the plaintiff had filed requests for extensions of time, as hereinbefore referred to, and before any settlement was made between the parties, the Navy Department duly appointed a board, consisting of Eear Admiral H. H. Bousseau as senior member, and two others, who were charged with the duty of investigating the facts, with their recommendations as to what extensions of time the plaintiff should be allowed on account of delays in the completion of the several contracts hereinbefore set forth, and the several causes of delay. This board held numerous meetings, at which the plaintiff and the defendant were represented.

*132They heard the evidence adduced and heard arguments by representatives of both plaintiff and defendant, and duly considered the same, and thereafter made and filed an elaborate and carefully prepared report, setting forth the conclusions and recommendations of the board, together with the evidence on which the same were based. The conclusions and recommendations of the board, as hereinbefore stated, were duly approved by, and were made the finding and action of, the Navy Department Bureau of Yards and Docks in the premises.

XXV. By stipulation of the parties, it is agreed that there is due the plaintiff from the defendant, on account of said work and commissions, the sum of $46,648.32, subject to deduction for such liquidated damages as the defendant is entitled to, and subject also to credits for items aggregating $2,037.36, or some of them, for which defendant claims credit. Of these items the Government should be credited with $1,769.42, which leaves a balance due the plaintiff of $44,878.90, subject to deductions for amounts due the defendant for liquidated damages. This sum does not include the claims of plaintiff involved in the foregoing findings.

Camebell, *Ohief Justice,*

delivered the opinion of the court:

On or about December 13, 1917, the Austin Co. entered into a contract (No. 2713) with the defendant, represented by the Bureau of Yards and Docks, for the construction and completion of 22 powder dry houses, in accordance with certain specifications, the work to be done at the defendant’s naval proving ground, Indianhead, Md. The work was to be done under what is called a “ cost-plus ” contract. It involved an estimated expenditure of approximately $366,-000. The defendant had let contracts for other work at Indianhead to other contractors and found it necessary to annul some of these and relet the work to plaintiff under the oost-plus plan.. Still other work was provided for under plaintiff’s contract, the general character of which is indicated by what was called *“*change orders ” D, E, F, G, I, K, and L, copies of which are attached to the petition, all *133referring to additional work under the terms of contract No. 2713. Change orders A, B, and C refer to work begun by other contractors and relet to plaintiff, as above stated', and these different change orders contemplated 15 or more distinct structures — storehouses, powder dry houses, office buildings, solvent recovery buildings, gun bases, and others.

In addition to the contract and change orders mentioned, the plaintiff and defendant entered into seven or more other contracts for the construction of buildings and works at Indianhead upon the cost-plus plan, viz: No. 2602, for two blending towers; No. 2715, for extension of power house; No. 2747, for two magazine buildings; No. 2748, for five sets of double quarters; No. 2749, for pulping and poaching house; No. 2873, for cottages, garage, and quarters; and No. 2912, for construction camp. These contracts were made between December 24, 1917, and April 18, 1918. The expenditures involved under plaintiff’s first contract grew under the additional contracts and change orders from the amount above stated to about two and a quarter millions of dollars. A general provision of the contracts and change orders was that the contractor’s compensation would be a sum equal to 10 per cent of the cost of the work performed directly and involving no subcontracts for labor at the site, and 5 per cent where the work was done indirectly and by subcontractors for labor at the site.

After the work was completed or suspended, as parts of it were, differences arose between the plaintiff and the Navy Department involving the amounts plaintiff was entitled to receive as compensation and amounts claimed by the Navy Department as proper deductions from sums it conceded would otherwise be payable to plaintiff. These questions are hereinafter stated under the several items of claim.

The plaintiff was an experienced contractor, had an excellent organization, and had undertaken many and large contracts for construction. It was strong financially.

The Naval Proving Ground at Indianhead was an isolated place on the Potomac River, remote from railroad connections, and reached by water transportation from Washington, about 45 miles, and by wagon road from the same place, *134about 20 miles. Neither the necessary labor nor materials for the work were to be had at Indianhead. Labor had to bo sought at other, and sometimes remote, places, and materials had to be purchased elsewhere and transported, principally through the navy yard at Washington. An added obstacle to transportation of materials, and at times to the prosecution of the work itself, was an abnormal and almost unprecedented spell of cold weather in the winter of 1917-18.

The large number of contracts calling for different “ jobs,” each of which is treated separately in the requests for findings, have extended the court’s findings of facts to an unusual length, but it is believed that the findings as they appear make it unnecessary to discuss at length the facts. We shall therefore state our conclusions upon the several items made the bases of contention by the parties.

Item 1 involves a claim by plaintiff for reimbursement of its expenses in securing labor, and in connection therewith the maintaining of an office in Washington for the purchase of materials and the expedition of their delivery. The amount involved, including the percentage to plaintiff, is not controverted. The Government admits that the maintenance and expense of the office to expedite labor, purchase material and expediting delivery thereof, was a necessity under these contracts. Without any such concession, however, we think the facts demonstrate the necessity. It denies, however, that the expense of the maintenance should be borne by the defendant, and argues that whatever authority ■ the plaintiff had to. operate said office or incur this expense was for a temporary expedient. The facts show (Finding II) that at the time of beginning the work the plaintiff was authorized to incur the expense stated, and that arrangements were accordingly made “ with the approval of the officer in charge” for the performance of the service. The labor agent had to report directly to the officer in charge, who directed in one or more instances his movements. The officer fixed the number of men to be used in this work, and from time to time their wages. It also appears that in March of 1918 there was paid to plaintiff, on approval of the officer in charge, a considerable sum for the expense to March 14 of the office and service in question. In view of these facts, *135and the conduct of the parties, it can not be reasonably maintained that the defendant should not reimburse plaintiff for the expense incurred and pay the agreed percentage. The payment made for a portion of the time when the same kinds of expense were involved, and there was a full knowledge of the facts, furnishes a practical interpretation by the parties of the meaning of their contracts in this regard, which is entitled to much weight, especially when such payments were made before the matter became a subject of controversy. See *Lowry*v. Hawaii, 206 U. S. 206, 222. In view of the facts and circumstances of the case, we think that the defendant’s suggestion that the bureau only approved the expense in the event the labor was solely intended for In-dianhead, and therefore that plaintiff can not recover this item, is without merit. It can at least be said, however, that the suggestion is an admission that there was some authority from the bureau itself for the expense in question.

Item 2 (Finding III) is a claim for reimbursement and commissions on account of the construction and maintenance of the commissary. The stipulation of parties that, among other things, it was necessary, on behalf of the United States, to establish and conduct facilities for housing and feeding employees engaged in the work at Indianhead, sufficiently shows the importance of this item of charge, and we think should fix the defendant’s liability. In addition, however, it appears from the findings that the defendant’s agents had entire control of the conduct of the commissary and fixed its charges. Over the objection, or at least against the advice, of the plaintiff’s experienced agent the charges were for a period reduced and the reduction added to plaintiff’s loss. The expenses of this operation were a part of the cost of the work, and, according to the stipulation, were a necessary part of it. And if not, why was plaintiff paid for part of the expenditure ? The plaintiff was not conducting an independent boarding house. See *Brogan*v. *National Surety Co.,*246 U. S. 257. We think it is entitled to the balance unpaid and its commission on the whole.

Item 3 (Finding IV) refers to the cost of raising a sunken scow. It had brought sand or gravel to Indianhead from a vendor, from whom plaintiff purchased the material. *136While moored at the wharf the scow sank, and defendant’s officer later directed that it be gotten out of the way because it was obstructing the proper use of the wharf. The plaintiff raised, or caused to be raised, the scow. Aside from the provisions of sections 21 and 27 of the “ General Provisions,” the facts show that, as between the plaintiff and the vendor of the material, the former was responsible for the care of the scow. It was designed of course to float, and was not expected to sink; and, when it did sink in the circumstances shown, there is an inference that somebody was careless. There was no fault imputable to the defendant; and, if the plaintiff’s vendor or owner of the scow was careless in the manner of mooring the vessel, the plaintiff should not have paid such vendor or owner to raise it. Without placing some responsibility on defendant for the sinking, there should not be a liability for the expense of raising it. The cii’cumstances attending what is suggested as an approval of the bill by the officer in charge sufficiently indicate a knowledge of plaintiff’s agent that it was not intended as an approval. This item we think should be disallowed.

Item 4 (Finding V) involves a deduction from plaintiff’s bills on account of discounts of which defendant’s agents claimed the plaintiff should have availed itself. The contract contained a provision requiring the contractor to take advantage of all the discounts available. It is, however, to be borne in mind that the contractor was not at liberty to buy whatever he saw fit to buy, but at all times there was supervision and the right of inspection and rejection by the officer in charge. The available discounts referred to were those which the vendors would agree to and accordingly bills were rendered, as is not infrequently the case, subject to a discount if paid within a stated number of days» The delay of the officer in charge in approving the bills should not impose on the plaintiff liability for discounts which it did not take advantage of because of such delay. It paid the entire bills in the cases referred to after the time allowed for the discounts had expired, and it should be reimbursed “ the actual net cost ” to it of the materials purchased, but not so approved as to make available the discount provision.

*137Item 5 (Finding YI) involves a claim by the plaintiff that it is entitled to be paid a stated sum which it alleges was a damage or loss to it because of the delays of the defendant’s representatives in passing upon its bills and making payment thereof, and that this loss or damage is measured by an amount of interest it paid upon money borrowed by it in excess of what it would have borrowed if the payments had been forthcoming more expeditiously. Taking an average of what loans it had from time to time during a number of months and deducting from this average amount the sum of several items which it claims represent what its loans would have been if the vouchers had been promptly sent to it, the plaintiff contends that the interest on this difference for 16 months at the rate of 6 per cent per annum fairly measures a loss or cost to it for which it should be reimbursed. The basis of its contention in this regard is that the claim is part of the cost of the work.

It is quite plain that the method adopted for formulating the claim leads to considerable speculation. The average of all the loans does not show what interest was actually paid on any of them, and if it be true that the plaintiff in good faith provided what was regarded as a reasonable sum to carry on the contract, it is yet true that this amount was an estimate that would of necessity change with the amounts required by the additional contracts. An estimate of the funds needed to carry out a cost-plus contract involving a few hundred thousands of dollars would not be rer garded as a reliable estimate where the contracts involved millions. Section 29 of the “ General Provisions ” provides for vouchers by the officer in charge “ as soon as practicable after the end of each month, covering his estimate, according to the schedule of prices, of all material delivered, material worked into place, and work done to date,” and also provides for a 10 per cent reduction in some cases. The contractor was thereby informed that it should not expect payment at the end of the month, but as soon as practicable, “ after the end ” of the month, and its estimate of the funds it would need was to be made accordingly. And it was also informed that there could be a retention of 10 per cent of the difference between two stated estimates, which fact probably explains, in part at least, why there was an unpaid *138balance due plaintiff for its expenditures from November, 1917, to January, 1919.

In making up wbat we are asked to accept as “ the maximum amount ” which plaintiff would have been required to borrow “ if the Government had made its payments promptly,” the plaintiff’s testimony tends to show that it took the amount of its “ normal loan ” and an additional sum because of prevalent conditions increasing the prices and another sum “ that should be furnished to this particular job,” these three items aggregating $350,000. This sum deducted from the average of loans outstanding during the months from December, 1917, to February, 1919, makes the difference above referred to, upon which interest is claimed as part of “ the cost of the work.” Upon what theory the interest on this difference is part of the “ cost of the work,” while concededly the interest on the larger sum laid out in the work is not a part of the cost of it, is not clear. The rule of practical construction by the parties, urged by plaintiff, and applied in other items of claim, is alike applicable to both parties. But if this item of claim was free from the speculation and uncertainty that inhere in the method and amount stated, we can not agree with the contention that interest on the loans, or excess in loans, to the contractor constitutes part of the cost of the work under the contracts in question. The meaning of the term “ cost of the work ” is not to be altered by the circumstance that one contractor has to borrow money to carry on the enterprise while a more fortunate contractor has sufficient funds without borrowing, or that one pays interest and another does not have to pay it. The Government undertook to pay for that portion performed directly by the plaintiff “ a sum equal to the cost of the work plus 10 per centum thereof,” and then with much particularity the contract sets forth a definition of cost of the work. The item of interest as part of this cost can not be deduced from anything in the definition. If it could be construed that it was a “ necessary expense connected with the work not specifically excluded in ‘ the addendum ’ to the contract, it would then have to be denied in the absence of an approval ‘ by the officer in charge as representing actual and essential elements in the cost of *139tlie work.’ ” In any view, we think the claim is not allowable.

Item 6 (Finding VII). The claim for expenses of shipments by express instead of by freight is not allowed because the proof does not show that the expense was authorized.

Item 7 (Finding VIII). The payment for cement is shown by the stipulation to have been authorized, and the deduction of part of the sum paid upon the theory that the cement should have been purchased for less was erroneous. The plaintiff should recover the sum stated in the finding.

Item 8 (Findings IX-XXIV). This claim involves the question of liquidated damages, it appearing that the plaintiff was assessed with a large sum for delays in the completion of the houses and structures, of which there were many provided for in the different contracts and “ change orders.”

Certain of the contract provisions to be found in the “ General Provisions,” as sections 8, 11, 12, 13, and 14 are as follows: (8) That the contractor should commence work immediately after the delivery to it of a copy of the contract and continue without interruption unless otherwise directed by the Government.

(11) That in the event of the work not being completed within the stipulated time it should continue and be carried on according to all the provisions of the contract, and the contract should remain in full force, provided: “ That neither an extension of the time beyond the date fixed for the completion of said work nor the permitting or accepting of any part of the work after said date shall be deemed to be a waiver by the Government of its right to annul * * * or to impose and deduct damages as hereinafter provided.”

(12) Providing for extensions of times and requiring the contractor to submit in writing an application for extension, if at any time it considers that it be entitled to an extension of time, for any cause, for the completion of the work, “ stating therein the cause or causes of the alleged delay; ” and further providing that the failure or neglect of the contractor to submit its claim for an extension within 30 days *140after the happening of the cause or causes upon which its claim is predicated “ shall be deemed and construed as a waiver of all claims and right to an extension * * * on account of the alleged delay,” and the contractor agrees to accept the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding.

Section 13 provides for liquidated damages and the deduction thereof from the amount due the contractor in case the work is not completed within the time specified in the contract, or within such extension of the contract time as may be allowed.

Section 14 defines “unavoidable delays” and provides, among others, that “ delays caused by the acts of the Government will be regarded as unavoidable delays.”

It thus appears that the contracts between the parties provided not only for the payment by plaintiff of liquidated damages in the event of its noncompletion of the work in time, but also for extensions of time for any cause as well as prescribing a method of determining the question of extensions. Considering the purpose of a cost-plus contract, it is entirely appropriate, that it should have a clause providing for liquidated damage. The work was to be done rvithin the stipulated time, or “ within such extension of the contract time as may be allowed,” thus evidencing an intention that the liquidated damage clause should continue in effect in case of extensions. Section 11, above quoted, so provides.

Whether there should be extensions of time allowed were questions to be determined by the Navy Department, Bureau of Yards and Docks, and it has been repeatedly held that Avhere parties thus agree upon a tribunal to determine the question, effect will be given to their agreement. *Gleason case, 175*U. S. 588; *Plwmley case,*226 U. S. 545. The plaintiff made requests for extensions in many instances, and while action upon them was generally deferred until the time for final settlement, this course is not an unusual one. The plaintiff was permitted to proceed, and was willing to. continue with the work and await action on matters of extension. These,,were duly considered by the tribunal *141raised up for that purpose by the contract. Before final action in the matter, the department caused a board to be organized to investigate the facts and report its findings. Both parties were heard by the board. Its carefully prepared, elaborate, and detailed report in writing evidences the most careful consideration of the many reasons assigned by plaintiff’s representatives, and opposed in many instances by the defendant’s officer in charge, for its claims to extensions of time. The plaintiff or its representatives were given access by the board to all records or information in the Government’s possession affecting the questions at issue, and the board’s report was approved by the proper authorities. There is not a suggestion by plaintiff of any bad faith on the part of the board or bureau, nor is there anything in the record upon which any such suggestion could be based.

It will be noted that the contract provisions require the plaintiff to request an extension within a stated period and that its failure to do this is a waiver of any right to an extension. Generally speaking, and as shown in the findings, requests for extensions were duly made. There is a distinction, however, to be observed growing out of the facts applicable to the particular contract, and it is illustrated by the facts applicable to the plaintiff’s first contract (No. 2713) calling for 22 buildings, of which some 14 were wholly or in part completed. The work was to be completed as to five of these houses within 70 calendar days “ to be reckoned from the date a copy of this contract is delivered ” to plaintiff. One additional building was to be completed every three and one-half days thereafter. Seventy days from the date the copy was delivered fixed the date for completing the five houses to' be on March 4. But the places where the buildings were to be located were not designated by defendant’s agents until June following. Therefore, before any locations were given the time within which the contract required all of the buildings to be completed had long since expired. The locations as finally adopted were upon lands which the Government acquired after the contract dates had expired.

The question therefore is whether, under these facts, there could be any liquidated damages assessed against the plaintiff. The contract fixed a date in March for completing five *142houses, and when plaintiff was prevented from beginning work until after that date the time provision was waived; and unless the contract provide some method, or the parties agree upon one, for fixing another date, the liquidated damage clause is turned loose. The delay by the defendant, extended as it was over the entire period prescribed by the work, annulled any obligation for liquidated damages and remitted the defendant to proof of damages. *United Engineering & Contracting Co.*case, 234 U. S. 236, 243; *Camden Iron Works*case, 51 C. Cls. 9. The provision relative to seeking an extension and giving the reason therefor can not be applied to the situation thus developed. That provision is operative where, after being permitted to begin work, something occurs which the contractor sees or supposes may produce delay and give cause for an extension of time within which to complete the work. And where before the date fixed for completion the actual work is begun or permitted to proceed, then by the terms of the contract itself it becomes obligatory upon the contractor to request an extension, and he waives any right thereto if he fail to make such request. And, on the other hand, if he make the request in time, the contract provides that the bureau shall finally determine his right in that regard.

It follows that in the instance mentioned (contract 2713), and in several other like instances set forth in the findings, there should not be assessed any liquidated damages. In other instances where the plaintiff delayed completing the work, but was also granted extensions covering parts of the delay, the assessment of liquidated damages was proper, and the action of the department is conclusive.

It follows that the amount of liquidated damages with which plaintiff was charged should be reduced in accordance with the views we have expressed, and deducted from the sum otherwise admittedly due the plaintiff, and for this balance and other items mentioned and allowed the plaintiff should have judgment.

The plaintiff is entitled to recover the following sums: Finding II, $20,386.20; Finding III, $56,999.84; Finding V, $2,032.51; Finding VIII, $1,633.57; Finding XXV, $44,-878.90, aggregating the sum of $125,931.02, subject to deduc-*143tdons on account of liquidated damages due the defendant as follows: Under Finding X, $2,260; under Finding XI, $860; under Finding XIII, $4,725; under Finding XIV, $1,375, $2,200, and $2,750; under Finding XV, $90; under Finding XVI, $3,350; under Finding XVII, $1,200; under Finding XIX, $155 and $400; under Finding XX, $1,350; under Finding XXI, $220; under Finding XXII, $285, making an aggregate sum on account of liquidated damages properly chargeable against plaintiff of $21,220, which, deducted from said sum of $125,931.02 due plaintiff, leaves a balance of $104,711.02 which the plaintiff is entitled to recover.

Graham, *Judge;*Hat, *Judge;*DowNey, *Judge;*and Booth, Judge, concur.