#### HOWARD P. CONVERSE AND EDWIN P. BLISS, TRADING AS H. P. CONVERSE & COMPANY, v. THE UNITED STATES

[No. C-1202.

Decided February 15, 1926]

*On the Proofs*

*Contract; breach; intei-ferences.*— Where plaintiffs are prevented by other Government contractors from using all of the space assigned to them by the defendant and are denied the free use of a railroad spur track constructed by them by permission of the defendant, there is no liability on the part of the Government to pay for such interferences with plaintiffs’ rights.

*Same; proclamation of President; increase in wages.-*— The proclamation of the President of June 17, 1918, urging “ all employees engaged in war work to refrain after August 1, 1918, from recruiting unskilled labor in any manner except through ” the agency of the Employment Service of the Department of Labor, did not place any liability on the Government to pay contractors for losses sustained by reason of scarcity or increase in the wages of unskilled labor.

*Same; delays by Government.*— A contractor is not entitled to damages for delays by the Government in delivering materials where the contract provides that “ delays in securing de*673livery of materials will not be regarded as unavoidable,” and there is nothing in the contract placing any liability upon the Government for delays which were not unavoidable.

*The Reporter's*statement of the case:

*Mr. George R. Shields*for the plaintiffs. *King da King*were on the briefs.

*Messrs. George Dyson*and *Charles F.*Kincheloe, with whom was *Mr. Assistant Attorney General Hermana J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiffs are partners, doing business under the firm name of H. P. Converse & Co., with their office and place of business in the city of Boston, Mass.

On December 15,1917, the plaintiffs entered into a written contract with the defendant for the construction of a timber and concrete fitting-out pier at the navy yard, Norfolk, Va., a copy of which contract is attached to the petition, filed in the cause, and made a part of this finding by reference. The work was to be completed within 300 calendar days from the time a copy of the contract was delivered to plaintiffs, or on October 24,1918.

The work was to be done on a unit-price basis and in accordance with the provisions of Specification No. 2691, except as to certain modifications expressly mentioned, the total amount of money to be expended under the contract not to exceed $500,000.

II. The work to be done consisted of building a timber and concrete T-shaped bulkhead and pier, the bulkhead being some 350 feet in length and extending parallel with and about 80 to 100 feet distant from what was known as the structural shop, and the pier being 100 feet wide and extending at right angles to the bulkhead into the Elizabeth River a length of 1,000 feet. The work required the use of very large quantities of materials, particularly of lumber, steel reinforcing rods, sand, gravel, and cement.

III. A strip of land lying between the site of the bulkhead and of the fitting-out pier and the structural shop from 80 to 100 feet wide was solid ground and suitable to use, and *674could be made available for storage of material and working-space by running a spur track connected with the navy yard railroad-track system north of the structural shop, upon and over which equipment and material could be unloaded. Between the site for the pier and what was known as the ship.' runways, about 300 feet distant, was a tract of land extending the full length of the pier, known as slip 3, about one-third of which was solid ground suitable for the storage and handling of materials; the remainder was of a marshy character.

Connected with the navy yard tracks and extending therefrom was a. siding running in front of the northerly end of the structural shop diagonally across this strip and along the edge of the marsh to the high ground in the center of the slip. This track had been used by the Government for bringing in the gravel that was piled on slip 3, and was used by plaintiffs to bring in material which was unloaded and piled on the high, firm ground. The whole of such areas, with access thereto, was necessary for carrying the contract work on in a proper manner.

IV. The contractors immediately after the contract was-effected placed their orders for the necessary materials except coal, sand, cement, and gravel, which the Government had itself undertaken to supply, and at once began the assembly of the necessary plant equipment, such as derricks, locomotives, cranes, concrete mixers, etc. They applied in writing to the public-works officer for the assignment to them as a reasonable working and storage space of the two areas described in Finding III, and the public-works officer on March 22, 1918, advised them as follows:

“ It will be satisfactory for you to use for the storage of lumber and other purposes the space laid out for No. 3 slip,, also the space indicated on a sketch prepared by you at the-west end of the fitting-out pier. It will be satisfactory for' you to put in a siding in the position shown in your sketch; the connections, however, will be differently arranged. The details of this matter should be taken up with the public-works officer.”

At the time of such assignment the solid ground comprised in the area known as slip 3 was largely encumbered by piles. *675of gravel stored there by the Government for use in the construction of a dry dock being built by other contractors and this area was not available for use by the plaintilfs until such gravel was removed.

At the time of the assignment of space as above set forth the area between the site for bulkhead and the structural shop was not equipped with a railroad spur track and until so equipped could not be utilized by the plaintiffs for their purposes except at great extra expense and delay.

The other space between the site for the bulkhead end of the pier and the structural shop was not occupied by material or otherwise in use at that time. Until equipped with spur-track connections this space could not be used by plaintiffs for their purposes without extra expense and delay.

Y. The contractors made request that the gravel stored on the site of slip 3 over space assigned them be removed and the yard authorities did remove some of it and the contractors began the unloading of some materials in that area, but at this stage the Government discontinued the removal of the existing stores of gravel and thereafter stored large additional quantities thereon, utilizing in that connection about 75 per cent of the solid ground comprised in that area and covering with gravel some of the contractors’ materials previously unloaded thereon. A part of this area was continuously used by the Government for the storage of gravel and the contractors thereby deprived of its use during all of 1918. The amount of lumber and reinforcing rods that had been unloaded on the north side of the track and afterwards covered with gravel was not ascertained or shown; the greater amount or nearly all of the material had been unloaded on the part of the slip lying south of the railroad track.

VI. At plaintiffs’ request and at their expense the public-works officer in May built the track along the structural shop building adjacent to the head of the pier and connected the track with the navy-yard track system. This railroad track was intended to aid plaintiffs in handling and placing material, but with the exception of one day the track was not available for plaintiffs’ use until the last *676of September, 1918, because other Government contractors performing work connected with the project excavated a trench across and under the track, thereby rendering it unsafe to move cars over or use it until September 30, 1918.

VII. The placing and storing of the large amount of gravel on slip 3 rendered the greater part of the high ground unavailable for use by plaintiffs in sorting and handling material thereon, and necessitated the unloading and piling up lumber, timber, and reinforcing rods without sorting and classifying; much of the material had to be rehandled, none of which would have been necessary had the entire space assigned them been kept available for their use. In order to get their materials from the place, it was unloaded to the place where the same was to be used in the pier, and to assort and classify a part of it they were required to construct a timber mattress over and across a part of the marsh on the slip, and to handle such material by hand instead of by machinery, which could have been done if sufficient space had been available near the site of the pier. The mattress and runways thus constructed and used in handling and getting material to the pier were constructed of the plank intended for and afterwards used for the deck of the pier.

VIII. A schedule of the rates of wages prevailing in the vicinity of Norfolk, at the date the contract was executed was furnished to, followed, and adhered to by plaintiffs. Frequent changes and increases in rates of wages in that vicinity were made during the time of the performance of the contract, schedules of which were furnished to plaintiffs, and, so far as is shown, adhered to and observed.

The contractors at the time of making the contract in suit had been engaged in dock work for the city of Norfolk and were entirely familiar with labor rates and conditions prevailing in that vicinity.

IX. The labor situation throughout the greater part of the 300 calendar days fixed in the contract for the construction of the pier was more or less disturbed and unsettled. Advances in the wage scale for all kinds of labor were made at frequent intervals during said time. A scarcity in some lines of skilled labor obtained at times, and during the greater part of the entire time common labor *677was scarce and exceedingly difficult to obtain in the vicinity of Norfolk, where a great amount of Government and other kinds of public work was in progress and a large and increasing demand for’unskilled labor existed and prevailed. This condition intensified and became more acute and on June 17, 1918, the President of the United States issued a proclamation relative to the matter, which was communicated to the plaintiffs by the Chief of the Bureau of Yards and Docks, Washington, D. C., on August 2,1918, in the following letter:

*“Notice to*contractors, subcontractors, *a/nd material men.*— A proclamation of the President, dated June 17, 1918, with reference to the employment of labor through the agency of the United States Employment Service, Department of Labor, reads in part as follows: ‘ Therefore, I, Woodrow Wilson, President of the United States of America, solemnly urge all employers engaged in war work to refrain after August 1, 1918, from recruiting unskilled labor in any manner except through this central agency. I urge labor to respond as loyally as heretofore to any calls issued by the agency for voluntary enlistments in essential industry. And I ask them both alike to remember that no sacrifice will have been in vain, if we are able to prove beyond all question that the highest and best form of efficiency is the spontaneous cooperation of a free people.’

“ It will be satisfactory for contractors, subcontractors, and material men to accept workmen applying directly on the job, and the consent or approval of the employment service need not be secured at the present time. * * *

“ Branches of the United States Employment Service have been established in all important centers, to which application may be made for desired labor.”

Prior to the taking effect of above, and until that date, plaintiffs had the right and were at liberty to obtain labor of all kinds wherever available. An employment agency had been established at Norfolk under the Department of Labor for the purpose of obtaining and supplying labor to the navy yard and to the contractors carrying on work for the Government at that point, .and after August 1, 1918, the contractors were required to secure labor through such agency.

X. The contractors were directed and required by the public-works officer to have all equipment and materials re*678quired for use in the work consigned to him and he, in turn, undertook, by the use of yard switch engines, to deliver such materials to the point desired by the contractors. Sand, gravel, cement, and coal supplied by the Government were similarly consigned and delivered. Many cars so delivered by the railroads to the public-works officer were not promptly delivered by such officer to the contractors, and after delivery to and unloading by the contractors were not always promptly returned by the public-works officer to the railroads. In addition to freight charges, the plaintiffs were required and obliged to pay demurrage charges on all cars delivery of which to them or redelivery of which to the railroads was thus delayed by the public-works officer. Because of this delay the plaintiffs were obliged to and did pay demurrage charges amounting to $989.83. The contract provides: *“*Delays in securing delivery of materials will not be regarded as unavoidable.”

XI. What the excess cost of unloading lumber under the contract was in excess of what such cost would have béen had the plaintiffs had sufficient space for the receipt and storage of materials is not proven. Nor does it appear to what extent the Government’s interference, if any, with the labor supply had upon the cost of unloading lumber.

XII. The plaintiffs claim that the actual cost of handling and sorting lumber used in the contract work was $38,621.99 over and above what it would have been had not the Government failed to provide necessary working space for the handling and storage of materials, and had not the Government by its restrictions on labor obliged the plaintiffs to employ skilled labor when common labor was proper. Of this amount they claim that $11,223.55 was due to lack of common labor, $16,439.06 was due to lack of reasonable space on slip 3, and $10,959.38 was to interference by another contractor with the spur track at the head of pier. The evidence relied on by the plaintiffs to support this claim is not sufficient for that purpose.

XIII. The plaintiffs claim $4,777.13 for handling and sorting steel rods used in the work, which was in excess of what it would have cost had it not been for labor shortage and lack of space. The evidence does not support this claim.

*679XIV. The plaintiffs made a claim of excess overhead costs -of $5,859.57, which they claim was due to labor interference, to lack of space, and to obstructions preventing the use of the spur track. They also made a claim for plant depreciation cost, which they attribute to the same causes above set out. These claims are not proved.

XV. The obstructions to their spur track at the head of pier made it necessary to unload coal at a distance of about 300 feet from point of use and to transport it by wheelbarrow and hired labor. The extra expense of this was $1,775.74. The cost of unloading and handling of heavy plant equipment was increased by the sum of $900, ■due to the obstructions of the spur track.

XVI. The contractors erected a necessary storehouse for .supplies at the north end of the bulkhead in slip 3 area, which was convenient to a roadway connecting with the yard streets and trackage, but excavations and trenchways made by other contractors prevented the use of such roadway and the plaintiffs, while the roadway was thus obstructed, were obliged to convey all materials for the work by hand. This condition prevailed over a period of about four months and resulted in extra costs of $412.50.

XVII. The plaintiffs claim the sum of $1,731.66, which they claim is due them because of restrictions imposed by the Government in the matter of labor supply, which caused them to employ skilled labor in the mixing and pouring of concrete piles when the work could have been done by ■common labor. This claim is not proved.

XVIII. The contract was not completed within the time .-agreed upon. The time for its completion was by mutual consent of the parties extended to January 22, 1919, on which date the work was completed. No damages for delay were retained for failure to complete the contract within the time agreed upon, and payment in full was made and receipted for in December, 1922, at which time the plaintiffs executed a final release, filed with the plaintiffs’ petition as Exhibit B, and made a part hereof by reference.

The court decided that plaintiffs were not entitled to recover.

*680Hat, Judge,

delivered the opinion of the court:

This is an action brought by the plaintiffs to recover the sum of $69,742.51 damages for the alleged breach of a written contract entered into by the parties on December 15, 1917. By its terms the plaintiffs agreed to construct and complete within 800 calendar days after delivery to them of a copy of the contract a timber and concrete fitting-out pier at the navy yard, Norfolk, Va., for the consideration specified in the contract, but not to exceed the sum of $500,000.

By mutual agreement the time for the completion of the contract was extended to January 22,1919. The agreed compensation named in the contract was fully paid by the United States, the final payment being made in December, 1922, the plaintiffs having executed at that time a final release, with a proviso that this release should not be taken to include claims arising under the contract other than those which the Secretary of the Navy had jurisdiction to entertain.

The claims sued for, with one exception, are based upon alleged breaches of the contract by the United States: First, for preventing the plaintiffs from utilizing the whole of the space assigned to them by the public-works officer for the receipt and handling of the materials and equipment necessary for work on the contract; second, obstructing the plaintiffs in the use of a spur track at the site of the work, the building of which by the plaintiffs was authorized by the officer in charge of the work; and third, the taking over by the Government of the distribution of labor at Norfolk, Va., and thereby preventing the plaintiffs from obtaining an adequate supply of common labor and compelling them to use skilled labor in the place of common labor.

The contract provided that the plaintiffs should be allowed reasonable space at the site of the work; such space was allowed, and if the plaintiffs did not have the use of the whole space assigned to them it was the fault of other contractors; and, moreover, it is not proved what damage resulted to the plaintiffs because of this lack of space, and *681therefore the court is unable to determine the amount of this damage, if any.

There was nothing in the contract which required. the United States to build the spur track; this track was built by the plaintiffs, who obtained permission to build it; after it was built it was not obstructed or interfered with' by the United States but by other contractors. The plaintiffs failed to prove the amount of the damage incurred by them because of the alleged interference, and the court can not fix the amount of the damages, if any.

The United States in its contractual relation with the plaintiffs did not take over the control of the labor situation at Norfolk, Va.; its action with regard to labor was that of a sovereign, and applied not only to Norfolk but to the entire United States; and moreover, the plaintiffs have failed to prove what damages they incurred by reason of this alleged taking over of the labor situation, and therefore the court can not give judgment for something which has not been proven.

The contract provided as follows:

> “ *Control of Worle.*— The Government, by its officer in charge, shall at all times exercise full supervision and general direction of all work under the contract as far as it affects the interests of the Government, and all questions, disputes, or differences as to any part or detail thereof shall be decided by such officer in charge, subject to appeal, provided that it shall be distinctly understood that the supervision and general direction of all work under the contract by the officer in charge shall not relieve the contractor of responsibility for the full protection of and responsibility for the work, both as regards sufficiency and time of execution.”

The claims of the plaintiffs arose largely from the differences between them and the United States as to the space, spur track, and labor situation. The plaintiffs had the right to invoke this clause of the contract. They did not do so, and having failed to avail themselves of the remedy accorded to them by the provisions of the contract it is too late now to appeal to the court for redress. Parties must abide by their contracts. The court will enforce the provisions of contracts, and can not take into consideration questions of *682hardships entailed upon parties who by their own acts have precluded themselves from relief in the courts.

The plaintiffs’ claims based upon the alleged want of space, the spur track, and the labor situation must be dismissed for the reasons stated, and for the further reason that the amount of alleged damages has not been proven.

The plaintiffs allege that by the failure of the United States to make timely deliveries of carloads of material to the plaintiffs they were compelled to pay large excess de-murrage charges. The contract provided that “ Delays in securing delivery of materials will not be regarded as unavoidable.”

Nothing in the contract placed any liability upon the Government for delays which were not unavoidable. The plaintiffs signed the agreement with full knowledge that it could not hold the Government liable for delays in the delivery of materials. The plaintiffs were experienced contractors, and must have been fully aware of all the terms of the contract. They must abide by it. *Crook Company*v. *United States,*decided January 25, 1926, 270 U. S. 4, citing *Wells Brothers*v. *United*States, 254 U. S. 83, 86, and *Wood*v. *United*States, 258 U. S. 120.

The petition of the plaintiffs must be dismissed. It is so ordered.

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