#### EDGE MOOR IRON COMPANY v. THE UNITED STATES

[No. C-933.

Decided December 7, 1925]

*On the Proofs*

*Contract; delays; damages.*— Where the Government grants an extension of time for performance of a contract, made necessary by the delay 'of third parties in preliminary construction which it had agreed to have done, it does not preclude the-contractor from recovering from the United States damages-resulting from said delay.

*The Reporter's*statement of the case:

*Mr. Franlc Lyon*for the plaintiff.

*Mr. Joseph Henry*Oohen, with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant. *Mr. Howard W. Ameli*was on the brief.

The court made special findings of fact, as follows:

I. The plaintiff is a corporation organized under the laws of the State of Delaware, and on March 30, 1918, entered into a written contract, No. 2851, with the United States, under the terms of which contract the plaintiff agreed to furnish and install two water-tube boilers for the use of the aircraft factory at the navy yard, Philadelphia, within sixty days from April 10, 1918, the date on which the aforesaid contract was delivered to the plaintiff by the United States. By the terms of said contract the United States undertook to provide the foundations upon which the boilers were to be erected. The United States failed to have the foundations ready for the reception of the boilers within the period prescribed by the contract, which was sixty days from April 10, 1918, and did not have the said foundations ready until November 12, 1918, thus causing* á delay of five-months and‘three days in the work which the contract provided for. On November 12, 1918, the plaintiff proceeded with the work and completed the same in the latter part of January, 1919, some days before the expiration of the time to which - the United States had extended the time for its *393completion. This extension of time for the completion of the work was granted by the United States because of the delay caused by the failure of the United States to have the foundations ready for the erection of the boilers. The plaintiff was paid the contract price.

The parts of the contract deemed pertinent by the plaintiff and defendant are attached to the petition as an appendix and made a part of it, and the said appendix is made a part hereof by reference.

II. The plaintiff shipped the boilers to Philadelphia on April 29, 1918, in accordance with instructions received by it from the defendant. By reason of the delay of the United States in having ready the foundations upon which the boilers were to be erected the plaintiff had to pay the increased cost of labor which took place between June 9, 1918, and November 12, 1918. That increase of cost of labor amounted to the sum of $993.65.

III. On August 23, 1917, the plaintiff entered into a written contract, No. 2441-A, with the United States, under the terms of which contract the plaintiff agreed to furnish and install at the navy yard, Norfolk, Ya., eight water-tube boilers in three sections, the first to be completed on or before January 24, 1918, the second on or before February 23, 1918, and the third on or before March 25, 1918. For this work the United States agreed to pay the plaintiff the sum of $222,897, and further agreed to provide the foundations upon which the boilers were to be. erected, and to furnish the boiler tubes as specified in the contract. The parts of the contract deemed pertinent are attached to the petition as an appendix and are made a part hereof by reference.

The United States failed to have the foundations ready at the time stipulated and delayed the‘plaintiff in the performance of the work, 291 days, 277 days, and 267 days, respectively; the United States also failed to furnish the boiler tubes as agreed, and caused a further delay of 124 days thereby. Because of these delays the Bureau of Yards and Docks granted time extensions of 291 days, 277 days, and 267 days, respectively. Upon notification that the foundations were ready, the plaintiff furnished and installed *394the boilers in accordance with the contract, and was paid the contract price for the same.

During the period of the delay so caused by the United States the cost of labor increased, and the plaintiff was obliged to pay an increased cost of labor amounting to the sum of $4,075.40. During the period of delay freight rates were increased and the plaintiff also paid increased freight rates amounting to $107.37. The Bureau of Yards and Docks ordered the material to be held by the plaintiff in its yards, and that it be not shipped until the foundations were ready. The plaintiff also sent to Norfolk a boiler erector to work on the job after the foundations were ready. The United States, which supplied the boiler tubes under the contract, ran out of tubes and the work had to be stopped for several months until the boiler tubes were supplied. The boiler erector returned to Edge Moor, and then went back to Norfolk, entailing an expense of $37.92 for traveling which was paid by the plaintiff.

IV. On August 23, 1917, the plaintiff entered into a written contract, No. 2441-B, with the United States whereby the plaintiff agreed to furnish and install at the navy yard, Philadelphia, six water tube boilers in two sections, the first section to be completed January 24, 1918, and the second section to be completed March 23, 1918. For this work the United States agreed to pay the plaintiff the sum of $167,000, and further agreed to provide the foundations upon which the boilers were to be erected. The plaintiff was ready to install the boilers within the time stipulated in the contract. The parts of the contract deemed pertinent by the plaintiff and defendant are attached to the petition as an appendix, and are made a part hereof by reference.

The United States did not have the foundations ready within the time specified in the contract, and did not have them ready until after a delay of 330 days. Because of this delay the Bureau of Yards and Docks granted extensions of time of 332 days for the first section and 294 days for the second section. Upon notification that the foundations were ready the plaintiff furnished and installed the boilers and was paid the contract price for the same. During the period of the delay so caused by the United States the cost *395of labor increased, and the plaintiff was obliged to pay and did pay an increased cost of labor amounting to the sum of $3,358.66.

During the period of delay freight rates increased, and by reason of the delay the plaintiff also paid increased freight rates amounting to $102.01; the Bureau of Yards and Docks ordered the material to be held by the plaintiff in its yards, and that it be not shipped until the foundations were ready.

Y. On July 20, 1918, the plaintiff entered into a written contract with the United States whereby the plaintiff agreed to furnish and install certain water-tube boilers at the navy yard at New York and at Hampton Roads, Va., and to complete this work within 150 calendar days from the receipt of the necessary steel plates. The United States agreed to pay the plaintiff the sum of $93,726 for the work at New York, and $82,766 for the work at Hampton Roads, and further agreed to provide the foundations upon which the boilers were to be erected. The parts of the contract deemed pertinent by the plaintiff and defendant are attached to the petition as an appendix, and are made a part hereof by reference.

The necessary steel plates were received on December 12, 1918, which would bring the time of completion up to May 11, 1919. By reason of the delay of the United States in the preparation of the foundations the plaintiff was delayed in erecting the boilers for Hampton Roads 260 days, and for New York 272 days. The plaintiff upon notification that the foundations were ready furnished and installed the boilers and was paid the contract price for the same. Because of this delay of the Government the plaintiff was obliged to execute a new bond and to pay an additional premium of $490.23. The contract was according to its terms to be completed within the year. The plaintiff was required to furnish a bond for the faithful completion of the contract. The bond company charged a premium for each year’s duration of the bond. Owing to the delay caused by the United States the completion of the contract was delayed for nearly two years, and the plaintiff was required to furnish .a bond for the second year and had to pay the premium for that year.

VI. The United States, as to all of the contracts above enumerated, had made contracts with other parties for the *396construction of the foundations for the boilers. It was believed by the United States that the boiler foundations would be ready, so that the plaintiff' could erect the boilers within the times specified in the contracts.

The court decided that plaintiff was entitled to recover.

Hat, Judge,

delivered the opinion of the court:

The facts are fully set forth in the findings. It is not denied that the United States caused the delay whereby the plaintiff incurred the losses, which it has fully proved. The defendant does not question the amount of these losses. The law governing such cases is well established.

The work was to be completed within a specified number of days. The plaintiff did not need an extension of time, but was ready to perform within the period of time stipulated in the contract. It could not perform by reason of the delay caused by the United States. And in construing the contract the same principles of right and justice which prevail between individuals must be applied to contracts between the United States and its citizens. To hold that the granting of additional- time, made necessary by the default of the Government, precludes the plaintiff from the recovery of damages if otherwise entitled thereto would be reading into the contract a provision not in the minds of the parties when the contract was entered into.

The Government can not excuse itself upon the theory that the foundations were not ready, because the delay was caused by the contractors with whom the Government had contracted to have them ready. It took upon itself the obligation to have the foundations in place for the performance of the work by the plaintiff; the plaintiff can not be punished because of the failure of a third party to perform a contract with which the plaintiff had nothing to do.

A judgment will be entered for the plaintiff in the sum of $9,165.24.

It is so ordered.

Graham, *Judge;*DowNey, *Judge;*Booth, *Judge;*and Campbell, *Ghief*Justice, concur.