#### UNION INSULATING & CONSTRUCTION COMPANY v. THE UNITED STATES1

[No. B-92.

Decided April 28, 1924]

*On the Proofs*

*Contract; right of way; maintenance.*— Where a contract provides that the Government will íurnish a right of way between the place of storage of materials and the place of their use, there *583is no obligation on tlie part of tbe Government' to .beep tbe right of way in repair.

*jSame; extra work; order in writing.*— Where a contract provides that “ no charge for any extra work will be allowed unless the same has been ordered in writing by the officer in charge, the price stated in the order, and accepted by the contractor,” the contractor can not recover for extra work that was not so ordered in writing by the officer in charge.

Game; *furnishing fuel.*— Where a contract provides that the contractor shall “ provide all fuel and men to operate ” the locomotives and other equipment furnished the contractor by the Government, and a list of the materials to be furnished by the Government .made part of the contract does not mention coal, the contractor is required to furnish the necessary coal.

*Same; decision of officer in charge; when conclusive.*— Where a contract provides that “ unless otherwise specifically set forth the contractor shall furnish all materials, labor, etc., necessary to fully complete the work according to the true intent and meaning of the drawings and specifications, of which intent and meaning the officer in charge shall be the interpreter,” the decision by the officer in charge that the contractor must furnish the coal for the locomotives and other equipment on the work is final and can not be reviewed by the court.

*Same; material to he returned.*— Where a contract provides that unused material furnished by the Government to a contractor shall be returned after completion of the work, if the same is not returned the Government may withhold the value of the same in its settlement with the contractor.

*Same; delay; commencing work.*— Where a contractor was to begin work on June 10, 1920, and begins June 13, 1920, the delay was not unreasonable, and when no protest was made at the time and the contractor did not file his claim until March 14, 1921, he can not recover.

*Same; delay; change in plans; supplemental contract.-*— -Where plans are changed and a supplemental contract is intended to cover the extra work caused by the change and the plaintiff was paid under the terms of the supplemental contract and made no claim of delay or protest at the time, he can not recover for alleged delays.

*Same; delay; recalculating cement; change of plans; supplemental contract.*— Where two supplemental contracts are entered into, one for recalculating the amount of cement, and one for change of plans as to certain earth fill, and the contractor was paid in full under the terms of said contracts, and made no claim for delays until March 14, 1921. several months later, he can not recover damages for alleged delays.

*584*The Reporter's*statement of the case:

*Mr. Edmund D. Adcoch*for the plaintiff. Haight, *Ad-*coch, *Haight dh Harris*were on the briefs.

*Mr. George H.*Foster, with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant. *Mr. William F. Norms*was on the brief.

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

I. The plaintiff is a corporation organized and existing under the laws of the State of Illinois having, its principal place of business in the City of Chicago, State of Illinois. On May 28, 1920, under the name of Union Insulating Company, which name was afterwards changed to Union Insulating & Construction Company, the plaintiff entered into a contract with the United States whereby the plaintiff agreed to do certain construction work at nitrate plant No. 2 at Muscle Shoals, Alabama. A copy of said contract, marked “ Exhibit A,” is attached to the petition and is made a part hereof by reference.

II. The contract provided that the United States would furnish at the nitrate plant all construction materials except those to be furnished by the plaintiff, which were specified in the contract, the plaintiff undertaking to perform all necessary labor required in transporting such materials to the proper place for use in construction, and the United States agreed at all times to furnish the necessary right of way for ingress and egress to the place of storage of such material and the place of ultimate use in construction.

The right of way furnished by the United States consisted of railroad tracks running from the site of the. work to the storage yards. These tracks, were used by others, and were not in good condition when the plaintiff submitted its bid, nor were they in any worse condition when it began work under the contract. The United States did not keep the tracks in good condition during the period of the performance of the contract, but turned them over to the plaintiff for its use together with the necessary rolling stock. The plaintiff expended the sum of $705.50 for labor in repairing *585railroad tracks, and $700.66 for making repairs to equipment damaged by reason of the defective tracks; it also expended the further sum of $1,653.49 for labor in connection with derailments.

III. Drawing No. 109 made a part of the contract provided for a wooden railroad trestle to be built with eighty-six bents, each bent to be twelve feet from center to center. After the contract was made the defendant changed its plans for said trestle, requiring the bents to be eleven feet from center to center instead of twelve feet, making necessary the construction also of twenty additional bents. There was on hand at the said plant at the time the bids were invited new lumber sufficient and which could have been made adaptable for the construction of said trestle with bents twelve feet from center to center. The defendant upon changing the plan for the building of the trestle, required the plaintiff to use old lumber, and to salvage the same from a trestle which the contract required the plaintiff to remove, and which was at or near the location of the new trestle. The change of place made it necessary to handle additional lumber amounting to 34,012 more lumber feet than would have been required under the plan specified in the contract. The cost of handling this additional lumber was $1,870.66. One hundred sixty-nine thousand seven hundred and sixty-four feet of old lumber were actually used in this construction. The extra cost of handling old lumber instead of new lumber and working the same into the wooden trestle was the sum of $5,092.92.

The plaintiff claims twenty per cent of the aforesaid two sums to cover liability insurance, overhead, and profit, making a total of $8,356.30 which is claimed by the plaintiff to be the extra cost of constructing the said trestle which it was obliged to incur to meet the changes in the plan. The contract provides that: “ No charge for any extra work will be allowed unless the same has been ordered in Avriting by the officer in charge, the price stated in the order, and accepted by the contractor.” The" work on the trestle was not ordered in Avriting by the officer in charge, and hence no price Avas stated nor accepted by the contractor*. The contract also provided: “ That all material obtained from existing *586work may, if same is in the opinion of the constructing officer sound and of suitable character, be used in proposed work; but such salvaged material and all other material furnished by the Government shall be adapted to the requirements of the work by the contractor.” The lumber used in building the said trestle was adapted to the requirements of the woi'k, and was at or near the side of the trestle, while the new lumber was stoi’ed more than a mile away.

IY. The plaintiff made its bid for the work on May 5, 1920, and the contract was entered into on May 28, 1920. At the time the plaintiff submitted it's bid it had a quotation for Portland cement inquired in the construction work at $2.80 per barrel, making the total cost of cement as of May 5, 1920, according to the mxmber of barrels required, $10,-950.80. By the time the contract was executed the quotation on cement, $2.80 per barrel, was withdi'awn and the plaintiff had to pay $3.93 per barrel for cement, or $15,370.23 for the amount of ceixient used in the work, a difference of $4,419.43. The price of cement was changing at the time the bid was made, and quotations were subject to change at any time, and this the plaintiff knew when it made its bid.

Y. The contract provided that the plaintiff should furnish all labor, ash skip hoists, cement, 20 by 80 inch I beams and necessary connections required to construct and finish complete all work as listed under Class B of “ Description of work ”; the United States to furnish at its present location on the reservation at United States nitrate plant No. 2, all other construction materials. A list of matei-ials to be fxrr-nished by the Government was, contained in a schedule which was made a part of the contract. Said schedule is attached to the petition, marked “ Exhibit B,” and is made a part hereof by reference. Said schedule fxirther provided that the contractor should furnish all labor and all material except that listed to be furnished by the Government. Coal was not one of the materials listed to be furnished by the Government. There was at nitrate plant No. 2 and on the Government resei-vations a large amount of coal sxifficient for the construction work. The plaintiff used some of this Government coal, but was prevented by the officer in command of the reservation from using it as soon as he was *587acquainted witli the fact that the plaintiff was using it. The plaintiff was required to replace the coal which it had used. The plaintiff used 820.401 tons of coal in and about the construction work in the performance of its contract, which coal cost the plaintiff the sum $7,807.60. The contract provided that the plaintiff could use any or all of certain equipment in its construction work, said equipment consisting of locomotives, steam shovel, concrete mixers, and so forth, but it was expressly provided that the plaintiff should provide all fuel and men to operate the same. The plaintiff used this equipment. The plaintiff claimed the right to use Government coal, but the officer in charge decided against this claim.

VI. It was provided in the contract that the plaintiff should be furnished with materials to aid in the work. Some of these materials were to go in the work, while others were loaned for use and were to be returned to the United States. The materials to go into the construction were issued to plaintiff on “ property transfer,” and those to be returned were issued on a “property loan.”

At the conclusion of the work it was found that certain materials issued on “ property loan ” were not returned and from a payment made on June 7,1921, the Government withheld $1,617.40 to cover the property not returned or accounted for. A list of this material was submitted to the plaintiff. This list was carefully checked by the Government ; the .plaintiff insisted that it had returned all materials, or that they had been used up in the work. Subsequently this list was revised by the Government and a check was sent to the plaintiff for $123.72, making the amount withheld $1,493.68.

VII. The contract provided that the work should be commenced on June 10, 1920. By June 10 the plaintiff had its executive and office force at the plant. The plaintiff was able to begin work on June 13. The delay resulted from the inability to get material issued to the plaintiff. The actual amount expended for salary and services to the persons kept waiting was the sum of $360. No complaint and no- protest wras made by the plaintiff at the time, and no claim was filed by it until March 14, 1921.

*588VIII. In making a certain filling which, was necessary to be made and because of the elevation it was ascertained that a portion of the railroad track leading to the raw material storage yard would be covered. In order to prevent this it was necessary to make a change in the plans, and while estimates were being made for this chajige the work at this place was stopped from August 19,1920, to September 7, 1920. The estimate was made by the plaintiff for the track change. A supplemental contract dated September 7, 1920, was entered into by the plaintiff with the defendant to cover the extra work made necessary by the change, and the plaintiff was paid the sum of $2,515.54 under the terms of the supplemental contract. At that time the plaintiff made no claim for delay, but on March 14, 1921, made a claim for five days’ delay, and placed the damages incurred by it by reason of said delay at $1,550, the said amount being made up of superintendents’, engineers’, timekeepers’, stenographers’, accountants’, clerks’, and foremen’s salaries at $310 per day. Work went on on other portions of the work during these five days, and work was done during the time by the persons whose salaries are estimated from above.

IX. Drawing III, attached to the contract, indicated that eighty cubic yards of concrete were required for each of the two coke hoppers. In order to construct the hoppers as planned an additional amount for the two hoppers was required, equaling 56.6 cubic yards. Therefore the plaintiff was directed by the constructing quartermaster to cease work on the hoppers until an estimate of cost could be made and approved for this additional yardage of concrete. The work on the hoppers was stopped on October 12, 1920; the estimate for the additional yardage was approved on November 11, 1920. After the estimate was approved the ivork on the hoppers proceeded. Work proceeded on other parts of the work during this time, and November 11, 1920, a supplemental contract was entered into by the plaintiff with the defendant providing for payment for this extra work on the hoppers, and the sum of $1,180 was paid the plaintiff under the terms of that contract. No claim for delay was made by the plaintiff at that time, but on March 14, 1921, *589plaintiff made claim for five days’ delay in completion of-the work due to the fact that it had to change to other work than the work on the hoppers. It claims that the damages incurred by it amounted to $1,550, made up of salaries as set out in Finding VIII.

X. The contract required plaintiff to make an earth fill for the railroad tracks at the river power house west of the ravine on said reservation United States nitrate plant No. 2, and the amount of work was described on the plan-and in the specifications. In order to inake this fill for the tracks it was necessary to use a large quantity of material in addition to that shown on the plan and in the specifications. The constructing quartermaster of the defendant required the contractor to prepare a plat and profile plan showing the tracks and earth supporting same in its original condition, and also a profile showing the track at its new elevation, with the proper cross sections, calculated to determine the amount of yardage necessary. This drawing was prepared and submitted to the constructing quartermaster, and said officer determined to adopt the plan prepared by plaintiff and the plaintiff was directed by the constructing quartermaster to prepare an estimate showing the additional money required to make the fill and also showing the yardage necessary in excess of that described in the original plans and specifications. Work on this fill was suspended from October 28, 1920, to November 26, 1920. A change in the arrangement of the work was neces^ry, but there was no loss of time on the work. On November 26, 1920, a supplemental contract was entered into by the plaintiff with the defendant for the extra work on this fill, and under the terms of that contract the plaintiff was paid the sum of $4,590.24 for said work. No claim for delay or for efficiency loss ivas at that time made by the plaintiff, but on March 14, 1921, plaintiff made claim for efficiency loss,, which it placed at the sum of $1,798, based upon the salaries as set out in Findings VIII at $310 per day.

XI. Extensions of time were agreed upon in writing between the parties; and the plaintiff has been paid the entire amount stipulated in the contract except the sum of $1,493.68 *590retained as value of material not accounted for and set out in Finding VI.

At the time of the final payment to the plaintiff the plaintiff had on file in the War Department the claims which are the subject of this suit. The final payment was made with the understanding that the plaintiff did not surrender its rights to bring suit for the claims aforesaid.

1

 Appealed.

Hay; *Judge,*

delivered the opinion of the court:

This is a suit brought by6 the plaintiff against the United States to recover the gross sum of $30,697.73. This sum is made up of nine separate claims growing out of a contract entered into by the plaintiff with -the United States providing for certain construction work at nitrate plant No. 2, Muscle ShoaU, Alabama.

The plaintiff performed the work-undertaken by it, and was paid the amount stipulated in the contract. During the progress of the work certain changes were made in the work, and controversies arose between the plaintiff and the officer in charge of the work. At the termination of the work the claims set out in the findings were filed in the War Department and were pending at the time of final payment. As these claims are separate and distinct from each other it will be best to take up each claim separately.

The first claim is for the sum $3,059.65, based upon the alleged failure of the United 'States to maintain the right of way which the defendant was to nrovide for ingress and egress to the place of storage of tire materials to be used on the work to be the place of ultimate use in construction. The contract provided: “ The U. S. of America to furnish at its pres'ent location on the reservation at U. S. Nitrate Plant No. 2, all other construction materials, the contractor to perform all necessary labor required in transporting such materials to the proper place for use in construction, the U. S. of America at all times to furnish the necessary right of way for ingress or egress to the place of present storage of such materials and the place of ultimate use in construction.”

The right of way which the United States furnished to the plaintiff consisted of railroad tracks running from the *591side of the work to the storage yards. During the progress of the work the plaintiff, in order to keep the tracks in proper condition for the transportation of materials,, was obliged to expend the sum of $705.50 for labor in repairing-railroad tracks and $700.66 for making repairs to equipment damaged by reason of the defective tracks; and it also expended the further sum of $1,653.49 for labor in connection with derailments. When the plaintiff submitted its bids its representative ivas on the site of the work and saw what the condition of the right of way was.

There is nothing in the contract whicb-ohhgated the (rnv-ernment to*maintain the tracks. It is not denied that the right o'i way was furnished. An agreement to furnish a right of way does not carry with it the obligation to maintain it; and there wns no hreanh — of contract on the part of the Government,' ancfconsequently the plaintiff can not recover on this claim.

The second claim is for alleged extra work in the construction of wood trestle due to change in size and number of bents, and the direction to use old and salvaged lumber. This claim amounts to $8,356.30, and is avowedly a claim for extra work. The facts are fully set forth in Finding III. As to extra work the contract provides as follows: “No charge for any extra work will be allowed unless the same has been ordered in writing by the officer in charge, the price stated in the order, and accepted by the contractor.” TMs extra work, if it was extra work, was not ordered in writing by the officer in charge. In • order to recover for extra work the terms of the contract must be complied with.

The next claim is for extra cost of cement. This claim. is based upon the idea that because the price of cement ivent up between the time of submitting the bid and the time of signing Of the contract, the United States is responsible and must make good to the plaintiff the rise in price. The contract ivas signed by the plaintiff tAventy-three days after the bid was submitted. The plaintiff made no complaint as to the delay, and moreover the plaintiff knew when it submitted its bid that the price of cement was fluctuating. With full knowledge of this fact the plain*592tiff can not be heard to complain of the cost of cement. The mere statement of this claim refutes its validity.

The next claim is that the Government did not furnish the coal which the plaintiff had to use during the performance of the work. The plaintiff claims that coal was a part of the material which the Government agreed to furnish. There is a schedule attached to the contract and made a part of it which recites the materials which the United States was to furnish; coal is not one of the materials there recited. Moreover the coal was used to operate the locomotives and other equipment furnished the plaintiff by the Government, and it is expressly provided in the contract that the plaintiff should “ provide all fuel and men to operate ” them. The plaintiff made this claim to the officer in charge who decided against it. The contract provides as follows:

> “ Unless otherwise specifically set ■ forth the contractor shall furnish all materials, labor, etc., necessary to fully complete the work according to the true intent and 'Meaning of the drawings and specifications, of which intent and meaning the officer in charge shall be the interpreter. Except when otherwise indicated no local terms or classifications will be considered in the interpretation of the contract or the specifications forming a part thereof.”

The plaintiff must abide by the decision of the officer in charge.

The next claim is for materials which the Government alleges were not returned as provided for in the contract, and for which in the final settlement the plaintiff was charged the sum of $1,493.68. The plaintiff claims that the materials were returned. A list of this material was submitted to the plaintiff, which had been carefully checked by the Government. It does not appear from the evidence that these materials were returned, and under the terms of the contract the Government had the right to withhold from the plaintiff the value of these materials.

The next claim is for delay in arranging for plaintiff’s starting work. The plaintiff was to commence work on June 10, 1920, it started work on June 13, 1920. The delay was not unreasonable nor does it satisfactorily appear that the *593delay was wholly caused by the Government. The plaintiff made no protest nor complaint at the time and did not file its claim until March 14, 1921. We do not think that it is entitled to recover.

The next claim is for delay due to a change in plans for a fill. The facts as to this delay are set out in Finding YIIT. A supplemental contract was entered into by the plaintiff with the United States t<5 cover the extra work made necessary by the change in plans, and the plaintiff was paid the sum of $2,515.54 under the terms of that contract. At the time of the making of this contract the plaintiff made no claim for delay and no protest was made by it at that time. The general work Avent on, no idleness resulted, and it does not appear that the plaintiff was damaged by reason of the change in the plan.

The next tAvo claims are for alleged delays in recalculating the amounts of concrete for coke hoppers and in connection Avith the change of plans for making earth fill for railroad tracks at river poAver house. In both of these cases the plaintiff entered into supplemental contracts with the United States and was paid in full for its work under the terms of those contracts. No claim was made by the plaintiff on account of delay Avlien these contracts Avere signed by it, nor at any time until March 14, 1921. No idleness of employees resulted, nor was the plaintiff damaged.

The petition must be dismissed. It is so ordered.

Doavkey, *Judge;*Booth, Judge, and Campbell, *Chief*Justice, concur.