#### EATON, BROWN & SIMPSON, INC., v. THE UNITED STATES1

[No. C-744.

Decided December 13, 1926]

*On the Proofs*

*Contract; specifications; erroneous contour map; discovery of error before execution.*— Where the specifications of a contract contain a contour map of the site to be graded, which is erroneous, and the contractor discovers the error before executing the contract and proceeds with the work on the basis of a revised map which it makes, and which is approved by the Government, the contractor can not recover the additional cost due to the change made in the contour map.

*Same; changes; approval of cost hy Chief of Bureau of Yards and Bodes.*— Where the contract provides that the ascertained cost of changes in specifications, “when approved by the Chief of the Bureau of Yards and Docks, shall be added to or deducted from the contract price, and the contractor agrees and consents that the contract price thus increased or decreased shall be accepted in full satisfaction for all work done under the contract,” the contractor can recover only the items so approved.

*669*Same; extras; finality of bureau's findings.*— Where by the terms of a contract the contractor agrees to accept the finding and action of the Navy Department, Bureau of Yards and Docks, in respect to additional compensation for extras, as conclusive and binding, the finding and action of the said bureau is final and will not be disturbed by this court.

*Same; an-angement to purchase lumber.*— Where the Government agrees to “ arrange with the lumber director of the War Industries Board for the party of the first part [the contractor] to purchase the lumber required for the work * * * at the prices named in the schedule ” attached to the contract, the Government is not liable for delays in delivery of lumber purchased by the contractor under this arrangement.

*Same; loss due to conduct of inspector.*— Where the contractor suffers loss due to the unreasonable conduct of a Government inspector in the discharge of his contract duties, it may recover.

*Same; final decision by bureau; subsequent allowance by Comptroller Generah*— -Where the contract makes the decision of the Bureau of Yards and Docks final as to extras, and a claim therefor is disallowed by the said bureau, the Comptroller General may not thereafter allow the claim, and his allowance thereof is not conclusive upon this court.

*The Reporter's*statement of the case:

*Mr. Raymond N. Beebe*for the plaintiff. *Davies <& J ones*were on the briefs.

*Mr. Percy M. Oox,*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 is and was during all the times hereinafter mentioned a corporation duly organized and existing under the laws of the State of New Jersey, with its principal office and place of business at 90 West Street, in the city and State of New York.

II. On or about April 1, 1918, plaintiff submitted a bid on Specification No. 2862 of the Bureau of Yards and Docks of the Navy Department of the United States for an extension to Naval Training Camp at Cape May, N. J. The said specification covered the furnishing of the necessary material, labor, and appliances and the construction and completion of certain frame structures for use as receiving building, barracks, dispensary, brig, galley, officers’ building, laundry, garage, gate house, sentry boxes, power house and pump *670bouse, together with sewerage, water, drainage, heating, lighting, power, and plumbing systems and certain gradings, walks,' and roads and the furnishing and installation of certain kitchen and laundry equipment and accessories. On or about April 14, 1918, plaintiff was advised that its said bid had been accepted and a formal contract in writing, designated Contract No. 2862, covering the said work was executed on April 30,1918.

III. The said contract provided “said Specification No. 2862, the general provisions and drawings therein mentioned, together with Addendum No. 1-A to said Specification No. 2862, and Addendum No. 1, dated November 3, 1917, to said general provisions, and the instructions relative to factory inspection mentioned in the said general provisions are appended hereto and form a part of this contract.”Specification No. 2862 upon which plaintiff based its bid also provided that the drawings accompanying the said specification should form a part of the contract.

Said contract dated April 30, 1918, Specification No. 2862 and the general provisions thereof, Addendum No. 1-A, Addendum No. 1, and general provisions dated March 20, 1917, are appended to the petition, marked “Exhibit A,” and áre made a part of these findings by reference.

IV. One of the said drawings accompanying said specification and designated Bureau-Serial No. 75514, sheet No. 1, was a contour plan of the site for the said work. The said drawing bore certain marks and figures which purported to designate the altitude of the said site at specific locations and to designate the location on the site at specific localities and relative positions, the points of high and low level, ditches, swamps, etc. When the said contract was made, the altitudes and levels and the location of the points of high and low level, ditches, swamps, etc., and other relative positions on the site of the said work were different from those indicated on the said drawing.

Y. Before its bid was submitted, and in March, 1918, the president of the plaintiff company, who was a contracting engineer, examined the site of the proposed work and had with him a copy of the contour plan contained in the specifi*671cations. At that time he did not discover any errors in the said contour plan.

On or about April 25, 1918, another representative of the plaintiff, a consulting engineer, made an inspection of the site, and, after making some rough measurements, discovered that the Government’s plans were grossly in error with respect to some of the high and low levels and the general contour of the site to be graded. He immediately communicated this information by telephone and letter to plaintiff’s headquarters in New York City.

VI. The said contract required the plaintiff to grade the site of the wTork to certain levels. It was necessary in order to determine what grading should be done that there be made a correct survey and contour and altitude record of the site. The plaintiff had a survey, contour, and altitude record of the site made on April 30, 1918. The officer of the United States in charge, Lieutenant Trexel, on or before June 8,1918, approved the said survey, contour, and altitude record, and the parties mutually agreed to change the specifications by substituting this record in the place of the erroneous map. The cost to the plaintiff of the said survey was $152.76.

VII. The contract required plaintiff to grade .the site of the work to elevation 8 as a peak, with variations thereunder to provide sufficient drainage. As the site of the camp was represented in the said drawing attached to specification this would have required the contractor to move 7,709 cubic yards of earth, and all of this would have been available on the camp site. As the site actually existed plaintiff was required to move 26,585.14 cubic yards of earth. Only 3,264 cubic yards of earth were available on the camp site, and plaintiff obtained the balance more than 500 feet away from the camp site and excavated it by digging holes in the ground known as “ borrow pits.” The cost of filling in the 18,876.14 cubic yards of earth over and above that which would have been required under the said drawing— to wit, 7,709 cubic yards — was $17,702.33. Of the said 7,709 cubic yards, 4,445 cubic yards had to be transported from a point off the site, and this cost the plaintiff $1,244.60 *672more than if it had been available on the site itself. The total cost of the grading over and above what would have been necessary if the site had been as indicated in the said drawing was $18,946.93. Of this amount the defendant allowed, when and by what officer is not shown, and has paid the plaintiff $11,417.24, leaving $7,529.69 unpaid.

VIII. If the contour of the camp site had been as indicated in the said erroneous drawing, the plaintiff, by building a railroad spur from the end of the already existing tracks along the entire northerly side of the operation, could have unloaded the material at various points along the side of the work at the point immediately adjacent to its point of use. The spur was not constructed, for the reason that under the actual conditions it was necessary to move over 23,000 cubic yards of earth across the line it would have taken. The plaintiff and its subcontractors were obliged to unload all of the material from the cars at a store yard approximately 2,000 feet from the center of operation and transport the material therefrom to the point of use by truck. This method of handling cost plaintiff more than it would have cost if a railroad spur could have been so used.

IX. Because of the elevations, depressions, and general contour of the site and the large amount of grading that was necessary, plaintiff found it impracticable to start the grading at two or more points and! work continuously therefrom in four directions, as it could have done had the camp site been as represented in the said drawing. It was obliged to proceed in a different manner, and thereby sustained loss of time of workmen, loss through inefficiency by the employment of too many men on one operation, loss in overhead expenses, and losses from the expense of overturn of workmen. These losses and expenses amounted to $5,332.00.

X. The plaintiff did not possess equipment for the extensive long-haul grading operations, which the actual conditions on the site demanded. The grading which would have been required had the contour of the site been as indicated in the said drawing was small in amount and consisted in the scraping off of the top of the high levels into the lower ground immediately adjacent. Plaintiff found it more con*673venient, economical, and expeditious to sublet a portion of the grading to another contractor. Plaintiff paid the subcontractor $913.92 more to move 3,264 cubic yards of earth scraped from within the camp site, the cost of which is not included in the other findings herein, than it would have cost the plaintiff to move this earth by its own labor, which it could have done had the said drawing been correct.

XI. At the time of the submission of its bid plaintiff had planned, on the basis of the said erroneous drawing, to construct the concrete roads with its own labor, and had computed its bid accordingly. The foundation for the said roads was created by grading. Subcontractors submitting bids for the grading regarded the concrete roads as a part of the grading, and, although effort was made, the plaintiff was unable to procure acceptable bids for the grading work except those including the building of the concrete roads. It cost the plaintiff $6,979.68 more to have these roads built by subcontractors than it would have cost to build the roads itself.

XII. The specifications and drawings upon which plaintiff based its bid required that the buildings be placed on wooden posts supported on concrete footings sunk only 3 feet 8 inches in the ground, if solid ground were found at that depth. On the basis of the said contour drawing solid ground would have been reached everywhere at the depth of 3 feet 8 inches. Under the actual conditions of the site plaintiff was required to sink most of these foundations to a greater depth than 3 feet 8 inches. The cost to the plaintiff of digging the holes for the foundation footings beyond the depth of 3 feet 8 inches was $1,324.59.

XIII. By reason of the facts set forth in the preceding finding of fact longer wooden posts were required as foundations for the buildings than those required by the drawings forming a part of the contract. The cost of the material and labor in installing the said additional lengths of posts was $920.48.

XIV. In the progress of the work a dispute arose between the contractor and the Government’s inspector as to whether, *674under the specifications No. 64 of the contract, relating to bridging, the ceiling should be put on vertically or horizontally. The contractor contended that it should be laid horizontally and so laid the ceiling of one of the barracks. The inspector contended that it should be laid vertically, and directed the contractor so to construct the remaining 19 barracks, and to put in additional bridging over and above that specified in the drawings and specifications. The plaintiff complied with his directions. The cost of additional labor and material resulting in the change from horizontal to vertical ceiling and additional bridging, plus 10 per cent profit, was $8,325.89.

XY. The Government inspector directed the contractor to place 1-inch by 1-inch strips underneath the edges of the windows and to place 1*4-inch by 1%-inch quarter rounds around the edges of all windows. This was not specifically required by the drawings and specifications, but was necessary to make a workmanlike and waterproof job. The additional cost of this labor and material, plus 10 per cent profit, was $1,758.14.

XVI. The plaintiff constructed concrete floors throughout the barracks in accordance with the drawings and specifications. Owing to faulty design in the said drawings and specifications the concrete floors sank after their installation. The Government inspector directed the plaintiff to put in additional concrete on top of these floors to bring them up to a specified level. The cost thereof, plus 10 per cent profit, was $1,766.60.

XVII. The drawings and specifications forming a part of the contract required only one thickness of roofing felt on all parts of the roofs of the several buildings constructed. The Government inspector directed the contractor to place an additional thickness of roofing felt over the peaks and under the valleys on all of the said roofs. The additional cost thereof to the plaintiff, plus 10 per cent profit, was $580.42.

XVIII. The drawings and specifications required no ship-lapping of sills and girders under the buildings, with the exception of those under shower rooms, toilet rooms, and barber shop of one particular building. The Government in*675spector directed the plaintiff to ship-lap joints under some-twenty-nine other buildings. The cost to the plaintiff of the additional materials and labor involved, plus 10 per cent profit, amounted to $722.01.

XIX. The drawings and specifications did not require flashing around doors and windows except over doors and windows exposed to the weather. The defendant’s inspector directed the contractor to place flashing along the sides of all doors and windows. The additional cost to the plaintiff, plus 10 per cent profit, was $898.43.

XX. The specifications required that window screens be fitted into the windows against a blind stop. This method of fitting required only screws to hold the screens in place. The inspector for the Government directed the plaintiff to have all of the screens on brass hinges and to provide hooks and screw-eyes at the bottom of the screens. The cost of the additional labor and material plus 10 per cent profit was $813.54.

XXI. On April 19,1918, representatives of plaintiff called oh Lincoln Rogers, who was project manager of the Bureau of Yards and Docks and who had, on March 4, 1918, as such officer signed and approved the drawings attached to and a part of the contract, and presented him with a list of lumber required for the work and of the grades specified in the contract. Mr. Rogers took plaintiff’s representatives to the office of Mr. Edgar, lumber director of the War Industries Board. Mr. Edgar told them they would have to get the lumber from the Alabama-Mississippi Emergency Lumber Bureau, as he could not place the order with the Georgia-Florida Bureau, and that he would have to change the grades on the list, which he immediately did, and Mr. ¡Rogers then and there approved the change. Mr. Edgar thereupon referred the representatives to Mr. Wooten, the Washington representative of the Alabama-Mississippi Emergency Lumber Bureau. Mr. Wooten took the revised list and said he would place the order with the mills in two days, or on or about April 21, 1918, and that the lumber would be shipped within five days thereafter. The evidence does not *676disclose when shipment was made from the said mills, but does show that the first carload arrived in Cape May on May 15,1918, and deliveries were made thereafter from time to time until August 23, 1918. Many cars containing the required lumber were tied up in various freight yards and plaintiff sent several expediters out in an effort to have the cars moved promptly. Plaintiff was greatly hindered, and delayed in the progress of its work by reason of the said delays in the delivery of the lumber and was required to expend large sums in expediting its delivery and for idle labor while waiting for its arrival. The loss to the plaintiff in overhead, time of laborers and carpenters, and in expediting the shipments amounts to $9,562.79.

XXII. As the lumber ordered as described in Finding XXI arrived at the camp it was inspected by the Government inspector. He required the plaintiff to handle separately each piece of lumber for his inspection. The customary method of inspection in the construction industry is to inspect the lumber as it is placed in the building which requires no inspection handling. The said inspector rejected large quantities of the said lumber, because it was not of the same grade as originally required by the specifications before the said lumber director, Mr. Edgar (Finding XXI), had changed the grades in the list of the lumber presented to him. The plaintiff was thereby required to purchase large quantities of additional lumber in local and near-by markets to take the place of that so rejected. The loss to the plaintiff by reason of the said rejection of lumber was $3,889.66, and the cost of the additional handling for the inspector was $1,767.00, a total of $5,656.66. The plaintiff made no appeal in the case of any of these rejections to the superiors of the inspector.

XXIII. Defendant’s inspector, in the course of his work under the contract, harassed, hindered, and delayed the plaintiff and interfered with and disorganized plaintiff’s labor. In numerous instances the said inspector refused to inspect and delayed inspections and decisions on inspections for long periods of time, as a result of which plaintiff’s labor was *677kept idle and progress of the work greatly delayed. The said inspector in the course of his work continuously and unreasonably engaged in quarrels and controversies with plaintiff’s employees, used abusive language in talking to them, and in general thereby disorganized the work of the plaintiff. The loss to the plaintiff on account of the said inspector’s acts and failure and refusal to act amounted to $4,306.22.

XXIV. The plaintiff is indebted to the United States in the sum of $2,405.93 on account of transportation charges on shipments by plaintiff during the period of Federal control ■of railroads.

XXV. On March 18, 1919, the plaintiff filed a claim with the Bureau of Yards and Docks, Navy Department, consisting of various items amounting in the aggregate to $49,-277.77, in connection with the contract in this suit, stated therein to be for extra labor performed and materials furnished, for damages, losses, and expenses caused by delays in securing necessary lumber, and for losses, expenses, and damages in performing extra labor and furnishing extra materials made necessary by the improper actions of a United States inspector.

The claim was, on or about December 16, 1919, referred by the Bureau of Yards and Docks to a board of three representatives of the Government, under paragraph 17 of the general provisions of the contract, and said board reported to the Bureau of Yards and Docks, March 11, 1920, that it had ascertained the increased contract cost due to the changes in plans to be $19,574.90, and the amount of liquidated damages due to delays attributable to the Government to be $7,751.88, “ subject to bureau decision as to whether or not such damages are to be allowed the contractor.” The said increased cost due to changes and the amount of liquidated damages were reported by the board as allowances.

The contractor’s several claims and the board’s allowances thereon were, with reference to the findings of fact made *678herein, as follows, certain items in the claims before the said board not being involved in this suit:

The report of the board was in due course considered by the Bureau of Yards and Docks, and sometime after March 12, 1920, the acting chief of that bureau,, by indorsement thereon, approved the above allowances of the board only as to the following items:

Finding Amount approved

VI_ $273.20

VIII 5, 039.00

XII— 416.00

XIII— 609. 60

XVI 860.00

XVII _. 364.32

7, 662.12

The total so approved, $7,562.12, was, subsequent to April 22,1920, paid by the defendant to the plaintiff, and plaintiff has not received any payment on the balance of its said claim of $48,610.94.

In presenting its claims to the Bureau of Yards and Docks plaintiff reserved the right to make additional claims at a later date with respect to the subject matter described in Findings XXII and XXIII.

*679XXVI. Work under the contract was finally completed in June, 1919.

On October 24, 1919, the plaintiff executed the following release to the United States in connection with the contract sued on herein:

“ Now, therefore, in consideration of the premises and of the sum of thirteen thousand eight hundred forty-four dollars and thirty-three cents, lawful money of the United States, being the full and entire sum due upon completion of the work, as aforesaid, to the said party of the first part in hand.paid by the said party of the second part, the receipt of which is hereby acknowledged, the said party of the first part does hereby remise, release, and forever discharge the said party of the second part of and from any and all manner of actions, suits, debts, dues, sums, and sums of money, accounts, reckonings, bonds, bills, covenants, controversies, agreements, promises, claims, and demands whatsoever in law or in equity that the said party, of the first part has or may have for or on account of or in connection with the contract aforesaid, with the exception of claims for additional compensation dated March 18,1919, the determination of which *are*now pending and for freight on cement, the total amount of both not to exceed $50,413.15.”

The claims for additional compensation dated March 18, 1919, referred to in the foregoing release, covered all of the claims sued on herein.

XXVII. Lieutenant C. A. Trexel, assistant public-works officer, was, during the period of the transactions recited in these findings, the officer in charge, referred to in paragraphs 2 and 3 and other paragraphs of the general provisions of the contract designated as forming part of the specifications.

The Government inspector, referred to in these findings, was a subordinate of the officer in charge.

XXVIII. The plaintiff’s bid is not in evidence, and the material portions of its contents not proved, except as they are recited in these findings.

XXIX. On July 23, 1920, the plaintiff presented to the Auditor for the Navy Department, Treasury Department, a claim for items in connection with its Avork on the said contract. Included therein was an item for unspecified studding for baseboards as an extra which had theretofore been included iir the claim referred to in Finding XXV and been considered and disalloAved by the Bureau of Yards and *680Docks. The Comptroller General allowed the said item in the sum of $252.23, and it was paid to the plaintiff on or about February 24, 1923.

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

1

 Writ of certiorari granted.

Geaham, *Judge,*

delivered the opinion of the court:

On the 30th of April, 1918, the plaintiff executed a contract with the defendant for grading a certain piece of ground, erecting buildings thereon, and constructing roads for an extension to the Naval Training Camp at Cape May, N. J. The specifications upon which plaintiff made its bid contained a contour map of the ground and most of the items and conditions of the contract, particularly the provisions with reference to changes in specifications and extras.

This suit grows out of claims by plaintiff for expenditures occasioned by changes in the specifications, extras, and damages for delays in the delivery of lumber and the conduct of the inspector. The facts are fully set forth in the findings.

In March, 1918, before executing the contract, plaintiff’s engineer made an inspection of the site, having with him a copy of the contour map. At that time he did not discover any errors therein. On or about April 25 another representative of plaintiff, a consulting engineer, made an inspection of the ground and found that the contour map was grossly in error, as to elevations and in other particulars. On April 30 plaintiff had a correct survey made of the site. The conditions were therefore known to the plaintiff before it executed the contract, and consequently it could not have been misled. There could, therefore, be no question of warranty.

After execution of the contract by agreement between the parties the said survey made by plaintiff’s engineer was accepted in place of the contour map attached to the specifications as representing the true condition of the ground, and the work was proceeded with in accordance with that survey, which required much more time and labor than would have been required under the original contour map attached to *681the specifications. There were changes also made in the construction of the buildings in connection with which the plaintiff did extra work.

Section *11*of the specifications contains the following provision as to changes:

“ The Government reserves the right to make such changes in the contract, plans, and specifications as may be deemed necessary or advisable, and the contractor agrees to proceed with such changes as directed in writing by the Chief of the Bureau of Yards and Docks. The cost of said changes shall be estimated by the officer in charge, and, if less than $500, shall be ascertained by him. If the cost of said changes is $500 or more, as estimated by the officer in charge, the same shall be ascertained by a boai*d of not less than three officers or other representatives of the Government. The cost of the changes as ascertained above, when approved by the Chief of the Bureau of Yards and Docks, shall be added to or deducted from the contract price, and the contractor agrees and consents that the contract price thus increased or decreased shall be accepted in full satisfaction for all work done under the contract: *Provided,*That the increased cost shall be the estimated actual cost to the contractor at the time of such estimate and that the decreased cost shall be the actual or market value at the time the contract was made, both plus a profit of 10 per cent.”

The following provision as to extras is contained in section 18 of the specifications:

“ The contract price shall cover all expenses, of whatever nature or description, connected with the work to be done under the contract. Should the contractor at any time consider that he is being required to furnish any material or labor not called for by the contract, a written itemized claim for compensation therefor must be submitted by him to the officer in charge, who will refer the same at once with full report and recommendation to the Navy Department, Bureau of Yards and Docks, for decision and formal order covering approved items, if any. The failure or neglect of the contractor to present as above his claim for material or labor alleged to be extra within 60 days after being required to furnish or perform the same shall be deemed and construed as a waiver of all claim and right to additional compensation for the furnishing or performance of the alleged extra material or labor, and the contractor agrees to accept *682the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding.”

The contract required the work to be completed in 90 days from April 80, 1918. In April, 1919, the work had not been completed. On March 18, 1919, plaintiff presented to defendant a claim for reimbursement for loss covering twenty-five different items. Some of these losses, as stated, grew out of changes in the specifications, some were caused by extra work, and others were due to delays in delivery of lumber and to the conduct of the inspector. The claim was referred to a board of three representatives of the Government, who made a report thereon, recommending allowances on some of the items and rejecting others. This report was submitted to the Bureau of Yards and Docks, and some time after March 12, 1920, the acting chief of that bureau disapproved certain items and approved others, the total amount of the latter being $7,562.12.

The specifications provided that the additional cost of the changes as ascertained by the board should be added to the contract price “ when approved by the Chief of the Bureau of Yards and Docks.” This makes the approval of the latter official necessary in order to establish the claim; and until this approval had been secured the original price for the performance of the contract could neither be increased nor decreased by reason of the changes made in the specifications. Plaintiff could only, recover, therefore, for such items as were approved by said official, and, as set out in Finding XXY, the total amount of these items, $7,562.12, was paid to plaintiff. .Whether the action of the Acting Chief of the Bureau of Yards and Docks was right is not for us to inquire. The plaintiff in its contract agreed to an adjustment of its claims by the said bureau and is bound by the contract. We have only to construe and enforce it as we find it.

As to the items claimed as “ extras,” the contract provides that the finding and action of the Navy Department, through the Bureau of Yards and Docks, in approving or disapproving the contract “ shall be conclusive and binding.” That bureau approved some of plaintiff’s claims and disapproved *683others, and its action is conclusive and binding upon the court.

The next question is the claim for delay in delivery of the lumber, the rejection of the lumber by the inspector and his conduct otherwise, and delays growing out of interference with the work.

As to the lumber, it does not appear whether the delays were due to the fault of the party who was to supply the lumber, inability to secure shipment, or delay in shipment. It is admitted that there was delay in some instances of as much as six weeks. However, the defendant can not be held liable for these delays. The contract contained the following provision:

> “ Fifth. It is understood and declared to be the meaning of the first clause of paragraph 2 of said Addendum No. 1A that the party of the second part will arrange' with the lumber director of the War Industries Board for the party of the first part to purchase the lumber required for the work hereunder, f. o. b. mills, at the prices named in the schedule of lumber prices attached to said Addendum No. 1A. Said schedule of lumber prices is attached hereto and forms a part of this contract.”

and Addendum No. 1A mentioned therein is as follows:

> “ The contractor may use in preparing his bid the attached *list*of lumber prices furnished by the lumber director of Haw Materials Division of War Industries Board. In case these prices are used and the Government receives the benefit of them in the lump-sum bid, the Government will arrange with the lumber director of War Industries Board to furnish the contractor by shipment direct from the mills the lumber required at the prices named in the schedule of prices attached hereto.

> “ In using these prices, which are f. o. b. mills, the contractor may assume that the average freight rate from the Georgia-Florida territory to Cape May, N. J., is 27 cents per hundred, which would amount to approximately $7.50 per thousand, no adjustment, however, in contract price on account of freight rates will be made.

> “The successful bidder in order to avail himself of the Government lumber prices shall make an affidavit that his bid was based thereon.”

*684It will be seen from this that the Government simply agreed to arrange for the plaintiff to purchase the lumber at the prices named in the schedule, provided the Government received the benefit of the lump-sum bid on the contract. There was a lump-sum bid and the Government did arrange, through the War Industries Board, for the purchase by plaintiff of the lumber required for the contract at the contract prices. Plaintiff purchased the lumber and was under obligation to pay for it. It took its chances as to prompt delivery just as it would have had it purchased the lumber from any other source.

The facts are that on April 19 plaintiff’s representatives came to Washington, saw the project manager of the Bureau of Yards and Bocks, and presented him with a list of lumber required for the work. He took plaintiff’s representatives to the lumber director of the War Industries Board, who told them that they would have to get the lumber from the Alabama-Mississippi Emergency Lumber Bureau, as he could not place the order with the Georgia-Florida Bureau, and that he would have to change the grades on the list. Thereupon in the presence of plaintiff’s representatives he and the representative of the Bureau of Yards and Bocks made the necessary changes. The lumber director then referred plaintiff’s representatives to the Washington representative of the Alabama-Mississippi Emergency Lumber Bureau, who received the revised list and said he would place the order with the mills in two days, about April 21, 1918, and that the lumber would be shipped within five days thereafter. Whatever delay there was was clearly not due to any act of the Government, through the Navy Be-partment, or the Bureau of Yards and Bocks, for which it was responsible under the contract. It agreed to arrange for the purchase of the lumber by plaintiff at the prices named in the contract, and this it did. Apparently the plaintiff was satisfied with the situation growing out of the changes. It does not appear that it made any objection or protest, and with full knowledge of the changed conditions executed the contract. The claim for damages by reason of this delay can not be allowed.

*685As to the delays caused by the action of the inspector, it has been difficult to reach a conclusion, owing to the number and character of the acts from which the plaintiff is claimed to have suffered loss. In some cases the inspector was within the defendant’s rights as fixed by the contract. Paragraph 26 of the specifications provides for inspection and gives the officer a very broad discretion. He is given power to reject materials and workmanship not in accord with the contract, and the plaintiff is required to promptly remove all such rejections and replace them to the satisfaction of the officer without extra cost to the Government. However, the conduct of the inspector in some respects was captious, unreasonable, and not due to the exercise of the spirit and discretion which were contemplated in the discharge of his duties, by reason of which plaintiff suffered loss for which it should be compensated. This loss has been fixed by the findings at $4,306.22.

As shown in Finding XXIX, the comptroller allowed an item of $252.23 for extra work, and this sum was paid to the plaintiff. This claim had been previously disallowed by the Bureau of Yards and Docks, whose decision under the contract must be held to be controlling. The action of the comptroller is not conclusive upon this court in determining the rights of the parties. See *Penn Bridge Co.*v. *United States,*59 C. Cls. 892, 896. The sum stated should be charged off against the allowance made to the plaintiff.

By a stipulation filed it is admitted that the plaintiff is indebted to the United States in the sum of $2,405.93, which should be deducted from the sum allowed here.

The plaintiff is entitled to recover $4,306.22 by reason of the conduct of the inspector. From this should be deducted , the amount of its indebtedness to the United States, $2,405.93, and also the sum of $252.23 allowed by the Comptroller General, a total deduction of $2,658.16, leaving a balance of $1,648.06, for which judgment should be entered in favor of plaintiff, and it is so ordered.

Moss, *Judge;*Hat, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.