#### SANITARY WATER-STILL COMPANY v. THE UNITED STATES.

[No. 32488.

Decided February 16, 1920.]

*On the Proofs.*

*Contract; failure to perform; counterclaim.*— Where a contractor begins work after the time for its completion has expired and then abandons the contract without fault or delay on the *102part of tlie Government, and the Government relets the contract to another contractor, the United States is entitled to recover on a counterclaim the additional cost to the Government over and above the original contract price.

*The Reporter's*statement of the case:

*Mr. William W. Scott*for the plaintiff. *Scott <& Goncuway*were on the briefs.

The question presented by the facts in this case is, Was there a breach on the part of the Government of the contract with plaintiff; and if so, what is the measure of damages? This question has been before the court frequently, and it is submitted that the decisions made thereon fully support plaintiff’s contention. The following cases are in point: *Jones*v. *United*States, 1 C. Cls., 266: *Wormer*v. *United States,*4 C. Cls., 258; 13 Wall., 25; *Hughes*v. *United*States, 4 C. CÍs., 64; *Wilder*v. *United*States, 5 C. Cls., 468; *Kellogg Bridge Co.*v. *United*States, 15 C. Cls., 206; *Pneumatic Gwn-Carriage Go.*v. *United*States, 36 C. Cls., 71.

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

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

I. The plaintiff, the Sanitary Water-Still Company, was a corporation organized and existing under and by virtue of the laws of the State of New York.

II. On the 15th day of February, 1912, the plaintiff, the Sanitary Water-Still Company, made and entered into a contract with the United States of America, acting by and through the proper officer of the Navy Department, said contract being known in the Navy Department as contract No. 16539. The bids had been opened on December 26,1911.

Copies of the advertisement for bids, the specifications, the plaintiff’s proposal, and the said contract are attached to the plaintiff’s petition and made a part of this finding by reference.

III. By the terms of said contract the plaintiff agreed with the United States of America, acting as aforesaid, for *103the consideration hereinafter mentioned, to furnish and deliver, within nine (9) months after date of contract, to the proper officer of the Navy Department, at the Brooklyn

Navy Yard, a distilling apparatus as follows:

4 multicoil Navy type evaporators, at $1,015 each-$4, 060. 00

2 multicoil Navy type distillers, at $790 each- 1, 580. 00

16 spare coils (2 £or each evaporator and 4 for each distiller), at $20 each_ 320.00

2 multicoil Navy type evaporators, feed-water heaters, at $151 each_ 302. 00

1 spare coil for the 2 heaters- 20. 00

Total_ 6,282. 00

to be installed in the U. S. S. *New York,*a battleship then being built at the Brooklyn Navy Yard in accordance with the provisions of said contract and specifications.

IY. Upon the opening of the bids and before the letting of the contract it was found that there were two bidders— the Griscom-Spencer Company, who had a contract for a similar apparatus for the battleship Texas, and the plaintiff. The bid of the former was $12,550, of the latter $6,282. The plaintiff’s plans submitted for this work with the bid were so meager in detail as to amount to a little more than sketch plans, from which but little could be gathered as to details.

In an interview sought by the plaintiff with the representative of the defendant before the contract was awarded the latter discussed and explained fully the formal requirements as to material, design, character, and technique of the sets of plans which would be required under the contract, in addition to the plans which had been submitted with the bid. This was for the instruction and general guidance of the plaintiff in case the contract should be awarded to it. At this conference it was also pointed out to the representatives of the plaintiff that the plans which they had submitted with their bid were below the standard of the requirements of the Navy Department. The detailed plans and the drawings submitted later were not satisfactory, and as the work on these did not seem to be progressing as it should, the defendant, after nearly five months had elapsed since the execution of the contract, sent its representative to examine the *104plant of the plaintiff and found that its drawing and engineering equipment was entirely inadequate for the purpose of getting out the necessary detailed plans, which fact was admitted by the plaintiff at the time of this inspection. The plaintiff then promised to employ expert assistance from the outside to prepare these plans, -and this it did later.

Y. It did not require an unusual degree of engineering skill and knowledge to adequately draw the proper working plans for this apparatus. The plaintiff did not have the equipment or persons in its employ possessing the necessary engineering knowledge and experience in this class of work. Failing to produce in its engineering department proper plans, and to have the Navy Department prepare for it plans which it was required to furnish, the plaintiff requested permission to see and examine the plans and details of the apparatus of a similar kind installed by another firm on the battleship *Texas.*The delays in furnishing completed plans continued and also the delay in ordering materials. After much delay in completing the plans the plaintiff began to order materials for the parts, the detailed drawings of which had been accepted and approved, and at once experienced difficulty in getting contractors to furnish them, being unable to produce them in its own plant. The delay in completing the contract was not attributable to any improper conduct or default by the defendant. This delay in completing the plans and getting supplies continued until the 4th day of October — the time for completing the contract expiring on the 15th day of November — when the plaintiff asked for an extension of time in the following language:

“ Because of this unfortunate difficulty in obtaining this material we are forced to ask for an extension of time on our contract for the evaporators and distillers until January 1, 1913.”

The defendant took under advisement this request and on the 3d day of December refused to grant an extension and informed the plaintiff that its request would be held in abeyance pending the completion and delivery of all the work called for by the contract, when the total amount of *105damages and delay to the Government, if any, could be ascertained and determined.

VI. On the 18th of December, more than a month after the time limit for completing the contract had expired, the plaintiff by its attorney wrote to the Secretary of the Navy requesting that, in view of the difficulty the plaintiff was experiencing in procuring the necessary shells for the evaporators for the distillers, the Government should make these shells for the plaintiff in a Government navy yard, allowing a price named therefor to be deducted from the contract price for the whole work.

On the same day in another communication the same attorney for the plaintiff wrote to the Secretary of the Navy stating that the plaintiff had stopped work on the contract and would not recommence it. It did stop work on the contract and did not recommence it.

VII. On January 2, 1913, two weeks after the notification that the plaintiff had stopped work, the defendant’s inspector inspected the plant of the plaintiff and found that no progress had been made since the work had been stopped, and so reported to the defendant. Thereupon on the 13th day of January the defendant informed the plaintiff that the Government would exercise its rights under the contract to take it over and relet it. The Government then relet the contract for this work and purchased and procured the articles and materials specified in the plaintiff’s contract, and had the same installed as required by that contract, paying therefor the sum of $11,550, which was a reasonable price therefor. This sum is $5,268 in excess of the plaintiff’s bid of $6,282.

Graham, Judge,

delivered the opinion of the court:

This case grows out of a contract for installing certain distilling apparatus on the battleship *New York,*and is a suit to recover damages for breach of contract.

It is apparent that the plaintiff improvidently entered into this contract. It possessed but a limited knowledge of, and acquaintance with, the character and details of the particular work to be done and the requirements of the Navy *106Department, particularly on battleships, as to materials, quality of work, special details, inspection, and other regulations. Its bid for the work was a little more than half of the bid of its only competitor, who was experienced in this character of construction for the Navy. Its plans submitted with its bid were mere sketches, crude in design, and very incomplete as to details. Its engineering department, as related to the preparation of the necessary detailed drawings, was inadequate in personnel and expert knowledge of this kind of work.

After consuming more than four months of the time allowed by the contract for performing it, in futile attempts to prepare these drawings, even with the helpful suggestions of the representatives of the defendant, whose duty it was to pass upon them, the plaintiff found it necessary to employ an expert engineer from outside of its own engineering department to prepare them. The detailed plans were not completed until after the time within which the work was to have been performed had passed. The plaintiff was not prepared to supply from its own plant all of the materials or to construct all of the parts of the apparatus, and had to depend upon subcontractors to supply them. The failure to complete the detailed plans necessitated delay in placing orders for these materials and parts. It was found difficult in some instances to secure them, which caused a further delay. The time for completing the contract expired with the installation of the apparatus not commenced, the detailed drawings of it not completed, and the work on the construction of parts of it not even begun.

Before the time for the contract to expire the plaintiff asked for an extension of time, which was refused by the defendant.

With this general condition confronting it the plaintiff, more than a month after the time for completing the contract had expired, notified the defendant that it had stopped work and would not recommence it. It did stop work; it did not recommence it.

The plaintiff not only failed to complete and install the apparatus, as it contracted to do, within the time required, but when that time expired had not even completed its de*107tailed plans or begun to construct some of the parts. It thus breached its contract and forfeited its rights thereunder.

This failure to complete the work within the time required by the contract was not attributable to any unnecessary or improper delay or default by the defendant.

After thus forfeiting its rights under the contract, it voluntarily stopped work and abandoned its contract. Thereafter the defendant inspected the work, and finding that it was not progressing, exercised its right and relet the contract to another contractor at the cost of the plaintiff. The apparatus was manufactured and installed by this contractor at an agreed price of $11,550, which was paid by the defendant.

The plaintiff’s petition is dismissed and judgment is ordered to be entered in favor of the defendant against the plaintiff in the sum of $5,268, and the cost of printing the record in this case.

Hat, Judge, Downey, Judge, Booth, Judge, and Camp-belt, *Chief Justice,*concur.