#### HARRIS STRUCTURAL STEEL CO. v. THE UNITED STATES

[No. C-183.

Decided December 7, 1925]

*On the Proofs*

*Contract; delays; estimate of damages.*— (1) Where the plaintiff bases its claim for damages upon delays of the Government in furnishing agreed materials, the time of such delays must be ascertained, and the expenditures sought to be recovered must be actual and have relation to the contract in suit.

(2) Where the evidence shows delay on the part of the Government and damage to plaintiff by reason thereof, and the time of the delay is in doubt, an estimate as to the amount of the damage, made by the plaintiff when it was fully advised as to the extent thereof and *dwm fervet opus,*will be given cpnsideration by the court.

*340*The Reporter’s*statement of the case:

*Mr. Frank Davis, jr.,*for the plaintiff. *Mr. Lucien H. Boggs*and *Boggs & Caton*were on the briefs.

*Mr. Alexander H. McCormick,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, Harris Structural Steel Co., is now, and was during the different transactions described in these findings, a corporation organized under the laws of the State of New York, with its principal office and place of business at No. 1480 Broadway, in the city of New York, State of New York.

II. On June 2, 1919, the United States was having erected the structural steel framing for a hangar at Langley Field, Hampton, Ya. The plaintiff was doing the structural steel framing under a contract with the United States. The plaintiff, at the instance of Maj. J. W. Cramer, Engineer Corps, United States Army, submitted a bid for furnishing the necessary labor to complete the construction of' said hangar other than the steel framing. The said officer informed the plaintiff that only labor would be required, and that all necessary materials would be furnished by the United States when needed. Thereupon, on June 2, 1919, the plaintiff submitted its bid for performing said labor, which bid was as follows:

HáNGAr, LaNgley Field,

*Hampton, Va.*

Major J. W. Cramer,

*Langley Field, Va.*

Dear Sir: We propose to furnish the labor for completing the dirigible hangar at Langley Field, with the exception of the labor for the structural steel, plumbing and heating, setting steel sash, asphalt floor, gypsum roof, electric wiring and fixtures, hydrogen piping, for the sum of fifty-five thousand dollars ($55,000).

We agree to start work immediately on receipt of order, and it is understood and agreed that the Government will furnish all material required for this work f. o. b. cars *341Langley Field, and in such quantities and at such time as may be required, so as to not delay the progress of the work.

We agree to unload all materials and haul from cars to gate, to site, provide "fuel and crew for engine, and maintain one passenger auto, with chauffeur, and to continue one competent superintendent and assistance on job until completion of contract.

We have included in this estimate the cost of a bond, also the labor for building one house on roof, size 12 x 12 x 8', not shown on plans, and installing the hand-hole covers for gas.

It is understood that the Government will furnish for our use, free of charge, sleeping quarters, dining room and kitchen, and office space, also dining room and kitchen equipment, and the engine and one auto. We are to maintain living quarters for employees and provide food for them at our expense, and we will receipt for all materials, supplies, and equipment, return same in good condition at completion of this contract, and reimburse the Government for anything lost or broken.

Trusting that this quotation will be satisfactory, we remain,

Yours truly,

Harris Structural Steel Co., INC., Per (Sgd.) Geo. W. Harris, President.

With the bid the plaintiff submitted its estimate of the time required to complete the work in accordance with its proposal. The estimate is as follows:

1. Complete open-end foundation_June 30, 1919

2. Concrete cutters_July 20, 1919

3. Concrete at column bases, exterior_July 30, 1919

4. Catcb basins_Aug. 9, 1919

5. Remove track- Do.

6. Cinder fill under floor_ Do.

7. Boiler bouse_ Do.

8. Asbestos siding_Aug. 12, 1919

9. Concrete floor-Aug. 20, 1919

10. Concrete arches- Do.

11. Concrete basis for U-bolts- Do.

12. Set U-bolts_ Do.

13. Concrete curbs_ Do.

14. Concrete basis at rooms- Do.

15. Hauling and unloading- Do.

16. Handhole doors_ ■ Do.

17. Set door bucks for H. M. doors- Do.

18. Asphalt roofing_ Do.

*34219. Gutters, leaders, flashing_Aug. 20, 1919

20. Louvres and screens-Aug. 25, 1919

21. Metal lathing_ Do.

22. Plastering_1-Sept. 2, 1919

23. Hang H. M. doors and hardware-!- Do.

24. Pent house- Do.

25. Grading around building_ Do.

26. Finish concrete walls_ Do.

27. Concrete manholes_ Do.

28. Precast slabs_ Do.

29. Painting sheet metal_1 Do.

30. Glazing_ Do.

31. Painting steel sash_Sept. 7, 1919

32. Painting steel doors_ Do.

33. Hang steel doors, and hardware_ Do.

On June 7, 1919, the United States informed the plaintiff that its proposal was accepted and that a formal contract would be prepared and forwarded for its signature. The United States ordered the plaintiff to begin work pending the execution of the formal contract, and that it wo'uld be expected to complete the work within 90 days from June 7, 1919.

III. The formal contract was entered into by and between plaintiff and the United States, represented by Fred J. Wood, Engineer Corps, United States Army, the said officer having been duly authorized to execute said contract in behalf of the United States, bearing date of June 7, 1919, by the terms of which plaintiff obligated itself to furnish all necessary labor to complete the construction of the balloon hangar at Langley Field, Hampton, Va., all for the lump sum of $55,000. In addition thereto the contractor further agreed to furnish all necessary labor and material for the construction of facilities and accessories in connection with the said balloon hangar, and which might be required by the contracting officer, at the exact cost of said labor and material, plus 7 per cent thereon for profit. The contractor was required to complete the performance within 90 days from June 7, 1919.

The contract was not furnished plaintiff for its signature until June 30, 1919, and the copy executed by the Government was not delivered to plaintiff until September 9, 1919. *343A true copy of the contract is attached to the petition marked “ Exhibit A ” and is made a part hereof by reference.

Under the terms of the contract its performance was to be completed within 90 days from June 7, 1919, but it was not completed until March 25, 1920. After the completion of the contract the United States paid to the plaintiff the full contract price agreed upon.

IY. This hangar was a new design, largely experimental, and the representatives of the Government were required to and did make many changes in the plans and drawings. All of the changes were ordered in writing by the contracting officer. Plaintiff fully performed all extra work and furnished all extra material arising out of said changes. Plaintiff also performed all extra work and furnished all material for the construction of the facilities and accessories in connection with the hangar which were required by the contracting officer, and the compensation therefor was paid in full by the United States.

Y. On March 10, 1919, the plaintiff entered into a contract with the United States to furnish and erect the structural steel framing for a dirigible balloon hangar at Langley Field, Hampton, Ya. Said contract was to have been completed on June 15, 1919, but was not completed until October 11, 1919. After the completion of the contract the United States paid the plaintiff the stipulated contract price therefor. The contract in suit could not have been completed until the contract of March 10, 1919, was fully performed.

YI. During the period of time intervening between September 7, 1919, when the contract in suit should have been completed, and March 25, 1920, when it was completed the plaintiff incurred expenses as follows:

(a) In the New York office: Expenses of general supervisor, clerical work on accounts, telegraph, telephone, office rent, and traveling expenses between

the New York office and Langley Field_$3, 721.34

(5) Field organization, including salary of superintendent employed at the field, assistant superintendent, timekeeper, clerk of the works, storekeeper, night watchman, and janitor_ 5V450.59

*344(c) Expenses of field office, including telegraph and tele-

phone bills, stationery and office supplies, laundry

bills, coal and fuel during' winter months_ $323.91

*(d)*For providing living quarters and meals for employees

on the work and commissary employees’ pay roll— 4, 442. 32

(e) Auto service, including expert to operate, maintain,

and repair trucks and passenger cars, gas and oil,

new parts, and garage rentl- 1, 707. 27

(†) Teams and labor for the hauling and unloading of

material furnished by the Government_ 3, 392. 00

An itemized statement of the various sums expended by plaintiff, as shown by this finding, is set out in plaintiff’s petition under paragraphs 4, 5, 6, *7,*8, and 9, and is made a part hereof by reference.

The plaintiff in its petition also claims to have expended certain other sums during the period mentioned; these items are set out in the petition under Paragraphs X to XVIII, inclusive, and are made a part hereof by reference. The aforesaid items are dealt with specifically in findings hereinafter made.

The plaintiff maintained an office in New York for the conduct of its business and employed an office force and rented rooms for the accommodation of this office force, which was maintained permanently and was not employed for any particular contract, but for all its business.

VII. A part of the labor required under the terms of the contract consisted of applying asbestos siding to the building, which was connected by fasteners, all furnished by the Government. Sheets of asbestos 9 feet long were required, but the siding that was delivered was *7*feet in length. This necessitated extra labor in making alterations, at a total cost of $210, which sum was paid by the plaintiff to the siding contractor. In addition thereto the contractor was compelled to, and did, pay the sum of $384.50 as wages to nine men (expert asbestos setters), who, under orders from the construction quartermaster, were sent from New York to Langley Field to apply the siding. The fasteners had not been delivered and the workmen had to wait from August 21 to August 27, 1919, before they could begin the work of applying the siding. This sum the contractor would not *345have had to pay except for the delay in the delivery of the fasteners.

VIII. The material for the concrete floor was needed on November 2, 1919, and plaintiff was advised by the construction quartermaster that all of said material would be on the job on or before that date. Plaintiff had a force of 24 laborers ready on November 2, but the material was not delivered until November 7. Owing to this delay plaintiff was compelled to and did pay the wages of the men for the five days that they were waiting for the material a sum of $432.

IX. Plaintiff entered into a contract with the J. C. Council & Co. to do all the work required to complete the roofing for the sum of $3,060. Work was commenced on October 16,1919. On December 10 the construction quartermaster complained in writing about the manner in which the Council Co. was doing the work and ordered the contractor to give Council a three-day notice to quit the job. On December 16 J. C. Council & Co. was removed, and another contract was entered into with the Benjamin Foster Co. to finish the roofing job. Work was commenced by the Foster Co. on January 9, 1920, and completed on February 14, 1920. During the interim between December 16, 1919, and January 9, 1920, plaintiff company employed its own labor to take care ox the roof and materials and to place material on the roof for the use of the Foster Co. at a cost of $736.60. Plaintiff paid the Council Co. on account the sum of $800. On February 18, 1920, the J. C. Council Co. filed a suit against the Harris Structural Steel Co. in the Circuit Court of Elizabeth City County, Va., for the sum of $2,150.68 for breach of contract. A trial was had and judgment rendered against the Harris Structural Steel Co. in the sum of $1,650.68. This judgment was affirmed by the Supreme Court of Appeals for the State of Virginia. On February 4,1921, the judgment, together with interest in the sum of $41.27, was paid in full by plaintiff. In the defense of said suit plaintiff incurred expenses, including court costs and attorneys’ fees, in the sum of $511.85.

The Benjamin Foster Co. claimed by suit and recovered a judgment from plaintiff in the sum of $3,020 for work done *346on the roof after the removal of J. C. Council & Co. This judgment has not yet been paid by the plaintiff, who has appealed its case to a higher court.

X. The plaintiff undertook, on December 8, to glaze the building. The Government had furnished it with drums of putty for that purpose, but when the plaintiff opened said drums it found the putty to be hard and useless, requiring several days to soften it with gasoline. During this time the glaziers would have been idle and they consequently went back to New York, and when the putty was in shape for use they were recalled to the work. The cost of transporting said workmen to New York and return was $90, which sum plaintiff was forced to pay. Plaintiff was reimbursed for the time and materials and for softening the putty, but was not paid for the transportation of the men above referred to.

XI. Some of the sheet metal that was furnished by the Government was defective and certain alterations had to be made by plaintiff before the same could be used. These changes and the extra work caused the plaintiff to expend the sum of $110.80 in addition to what the sheet metal would have cost had the material not been defective.

XII. The material delivered by the Government for metal-lath partitions was in various forms and sizes, and required alterations before using, which changes and alterations cost the contractor the sum of $22.

XIII. Owing to the delay in the performance of the contract the plastering had to be done in cold weather, and it was necessary to provide heat for the rooms where the plastering was being done. This caused an expense to the plaintiff of $100.

XIY. As the work progressed certain changes were made by the Government in the small doors for the building; the material furnished by the Government was not of proper sizes and dimensions and required alterations, and' for this the plaintiff was compelled to .pay and did pay for extra labor the sum of $418.

XV. Plaintiff carried compensation insurance from September 7, 1919, the date when the contract should have been completed, until March 25, 1920, when it was completed, at a cost of $472.

*347XVI. The plaintiff, on September 6, 1919, requested in writing an extension of time in which to complete the contract; and on December 27, 1919,-it requested an extension of time to complete the work of the contract from September 7, 1919, to February 16, 1920. On February 7, 1920, Capt. Frank C. Peters, constructing quartermaster, wrote the plaintiff as follows: “ The date set for the completion of the dirigible balloon hangar, your contract at Langley Field, is February 13, and when the building is completed, it is ready for the owner’s use.” Letters were exchanged between the plaintiff and the constructing quartermaster with reference to an extension of time, but other than the letter from Capt. Frank C. Peters aboye quoted it does not appear that any extension of time for the completion of the contract was granted to the plaintiff.

XVII. During the progress of the work the plaintiff frequently complained of the delay in the delivery of material by the Government. These complaints were embodied in letters and telegrams from the plaintiff to the constructing quartermaster; these letters and telegrams bear date as follows: August 12, 1919; August 14, 1919; August 23, 1919; August 29, 1919; August 30, 1919; September 3, 1919; September 6, 1919; September 6, 1919; September. 19, 1919; September 20, 1919; September 29, 1919; November 3, 1919; November 7, 1919; December 22, 1919; December 27, 1919; February 11, 1920. In this last letter the plaintiff goes into particulars as to delays on the part of the Government in furnishing materials, but neither in that letter nor in any other does the plaintiff point out or attempt to point out how many days it was delayed in the performance of the work by the failure of the Government to furnish materials. The plaintiff asserts in general terms that the whole delay in the performance of the contract was due to the Government, but there is no evidence which fixes with certainty the actual time which the plaintiff was delayed by the Government.

The constructing quartermaster in charge of the work frequently wrote the plaintiff complaining of delay on its part in the performance of the contract, and complaining as to the character of the work being performed: Letters *348and telegrams containing these complaints bear date as follows : September II, 1919; September 18, 1919; September 20, 1919; September 26, ■ 1919; October 2, 1919; October 17, 1919; November 17,1919; November 18, 1919; December 10, 1919; February 16, 1920; February 26, 1920. These letters and telegrams do not fix with any certainty the delay which was caused by the plaintiff in the performance of the work.

XVIII. At the time plaintiff submitted its bid and estimate proposing to do the work and complete same within 90 days from June 7, 1919, and at the time the contract in suit was formally executed the plaintiff and the officers of the Government were fully acquainted with the conditions at the field where the work was to be done and knew the status of the steel contract.

XIX. On January 27,1920, the plaintiff wrote the following letter:

Harris Structural Steel Company,

INCORPORATED, STEEL STRUCTURES,

*11¡80*Broadway, *New*York, *Jan. ¡87, "W.*Capt. Frank C. Peters,

*Constructing*Quartermaster, *Langley*Field, *Ya.*

Dear Sir: We herewith respectfully request payment to cover the loss we have had to stand in carrying out the work in this contract for the Balloon Hangar at Langley Field, Va., on account of the delay of the Government in furnishing materials for our use when required.

We estimate the amount of this loss to be the sum of two thousand five hundred dollars and would thank you for the favor of a check covering same.

Yours truly,

Harris Structural Steel Co., Inc., Per Thos. W. Golding.

To this letter the contracting officer replied as follows:

IT. S. Constructing Quartermaster,

*Langley*Field, *Va., Feb. 1), 19W.*Harris Structural Steel Co.,

*11¡.80*Broadway, *New York City.*

Payment of extra compensation.

Attention Mr. Golding.

1. In answer to your letter of January 7th relative to extra compensation, pay, for what you claim a loss in exe*349cuting your contract, due to delay in getting material, this claim can not be granted as the delays are not up to the Government.

Frahk C. Peters,

*Gapt., Q. M. 0., Constructing Quartermaster.*

The claim for $2,500 aforesaid was presented to the Government and denied. Subsequently plaintiff presented its claim for the amount here involved.

The court decided that plaintiff was entitled to recover, in part.

Hay, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover the sum of $26,618.71 from the United States.

The plaintiff on June 7, 1919, entered into a contract with the United States whereby it agreed to perform the labor to complete the construction of a balloon hangar at Langley Field, Hampton, Va., for the lump sum of $55,000. The plaintiff also agreed in said contract, in addition to the labor, to furnish all necessary labor and material for the construction of facilities and accessories in connection with said hangar which might be required by the contracting officer at the exact cost of such labor and material plus 7 per cent thereon of profit. Under the terms of the contract the same was to be completed within 90 days from the date of the contract, which required the contract to be completed on or before September 7, 1919.

The contract was not completed until March 25, 1920, 291 days from the date of the contract.

The plaintiff bases its claim for damages upon the alleged delays of the Government in furnishing the materials which it agreed to furnish. These damages are made up of numerous items which are set forth in the petition of the plaintiff.

The first item of damages claimed is the sum of $3,721.34, expenses in its New York office. This amount the plaintiff claims was expended on the contract in suit from September 7, 1919, to March 25, 1920, and was made necessary by the alleged delay of the Government in furnishing materials *350for the performance of the contract. In the first place, it is not shown that this expenditure was all made with relation to the contract in suit, nor does it appear that any addition was made to the regular force employed in the New York office by reason of the alleged delay. Nor is it shown with any certainty how many days the plaintiff was delayed by the Government. The expense of field organization, amounting to $5,450.59, is subject to the same objection, to wit, that the time of the delay complained of is not shown. It is true that the plaintiff claims that the entire delay in the performance of the contract was due to the Government, but this claim is not borne out by the evidence. So with the claim, $323.91, for expenses of field office.

The claim for providing living quarters and meals for employees on the work, $4,442.32, is subject to the same objection, and moreover the contract is silent on this matter. In the bid of the contractor it was stated: “We are to maintain living quarters for employees and provide food for them at our expense.”

The claim for auto service is subject to the same objection, namely, that it is based on the alleged delay of the Government, and that the time of that delay is not ascertained.

The claim for the hauling and unloading of material furnished by the Government comes in the same category, and, moreover, there was no more hauling and unloading of material because of delay than there would have been if the contract had been completed within the period prescribed by the contract.

The item set out in Finding XY is disallowed for the same reasons as given above.

The expense incurred by the plaintiff on account of the roofing, which it claims to have been $3,700.30 more than it would have cost if the original subcontractor for this work had not been put on the job at the request of the contracting quartermaster can not be charged to the Government. The plaintiff was not obliged to comply with the request or order of the contracting quartermaster; it was responsible for the work to be performed, and if it complied with the request or order did so voluntarily and can not now *351hold the Government liable. Moreover, the plaintiff, as appears from the record, is still litigating its claim with the Benjamin Foster Co. in the courts. The amount, if any, which the plaintiff will have to pay on this account has not been ascertained.

The items allowed are set out in Findings "VII, VIII, X, XI, XII, and XIV. In these cases the plaintiff has proved definite delays caused by the Government in furnishing materials, or has shown that it performed extra labor for which it has not been paid. As to some of these items a witness for the Government testified that purchase orders had been given for them, and that those orders had been paid. But a careful examination of these purchase orders, and a comparison of them with the items claimed, leaves no doubt that the plaintiff has not been paid for the items, which we have allowed.

It appears as a fact that the plaintiff on January 27, 1920, estimated and claimed the damages which it asserted had been caused “ on account of the delay of the Government in furnishing materials for our use when required.” The plaintiff stated “We estimate the amount of this loss to be the sum of two thousand five hundred dollars and would thank you for the favor of a check covering the same.” This estimate was made by the plaintiff when it was fully advised as to what its damages were, and *dum, fervet opus.*If the Government had paid the amount claimed, that would have been an end of the case; and while the plaintiff is not bound by its claim then made, yet in this case where there are claims and counterclaims as to who caused the delay, and doubt as to the definite time of the delay, the estimate made by the plaintiff at the time and on the ground must be given consideration. As the evidence does show some delay on the part of the Government, and some damage done the plaintiff by reason thereof, we adopt the estimate made by the plaintiff itself, and have therefore allowed it the sum of $2,500. '

This is as far as it is possible to' go in a case where at the close of the contract both parties allege delay in the completion of the contract and neither party proves the quantum of • *352the delay. Under such apportion the fault, nor can it undertake to ascertain what the delay was or who was responsible for it. *R. Guastavino Company*v. *United*States, 50 C. Cls. 115, 119.

A judgment will be entered for sum of $2,500. The petition as to all sums over this amount is dismissed.

It is so ordered.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.