#### GENERAL CONTRACTING & ENGINEERING CO. v. THE UNITED STATES

[No. D-869.

Decided June 14, 1926]

*On the Proofs*

*■Contract; provision for delays; damages*— Where a Government contractor, before submitting its bid for tbe work contemplated is admonished to examine and does examine tbe premises, wbicb indicate tbe probability of tbe operations causing tbe delay, and tbe contract reserves to tbe Government tbe right to suspend tbe work, and that in case of such suspension or delay “no claim shall be made or allowed” to the contractor therefor, and said contractor is delayed in tbe performance of its contract by necessary operations on tbe part of tbe Government, and requests an extension of time on that account, which is granted, the contractor can not recover damages for such suspensions or delays.

*The Reporter’s*statement of the case:

*Messrs. Melvin D. Hildreth*and *Camden R. MeAtee*for the plaintiff. *Wilson & Wilson*and *Mason, Spalding <& MeAtee*were on the briefs.

*Mr. Joseph Henry Cohen,*with whom was *Mr. Assistant Attorney General Hermam, J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff is a corporation duly organized and existing under the laws of the State of New Jersey; its main offices *434are in the city of New York, State of New York, its business being the construction of piers, wharves, and coal-handling-plants.

II. The Department of Labor on November 15, 1921, advertised for bids for “ all labor and materials required for the extension of coal hoist, part two,, fender system, at the United States immigration station, Ellis Island, New York Harbor, as described by the accompanying specification and drawing.”

Contained in the proposal was the following paragraph:

“ Repairs of steelwork for coal-hoist structure.

“ The work specified under paragraph headed £ repair of steelwork, coal-hoist structure,’ must be completed within ten days from time the contractor begins repair of coal-hoist structure, because the capacity of the coal bunkers at the Ellis Island power plant can provide a supply for only about ten days maximum operation, and therefore it is absolutely necessary that the steelwork portion of the present coal-hoist structure be not put out of service for more than ten days.”

The plaintiff’s bid of $2,984 for doing the work was accepted and the plaintiff awarded the contract.

III. On November 28, 1921, the plaintiff signed the written contract attached to and made a part of the petition.

On December *17,*1921, the plaintiff wrote the following letter to the defendant, viz:

General Contracting & Engineering Co.,

*New York, December 17,19M.*

U. S. Department op Labor,

Commissioner op Immigration,

*Ellis Island, New York.*

Gentlemen: This will acknowledge receipt of your contract duly executed for all labor and material required-for extension to coal hoist, part two, fender system, U. S. immigrant station, Ellis Island, at 11 a. m., December 16th, 1921.

We have been advised by your department that it will not be possible for us to begin work until Wednesday, December 21st, as the coal boat now discharging coal alongside of sea wall will not be light until Tuesday afternoon, December 20th, and we have arranged our plans accordingly.

You also advise that it will be necessary to unload coal during the progress of the work, which will delay us, and *435we respectfully request an extension of time, as our time limit was based on having full and exclusive use of the sea wall during the progress of the work.

Thanking you for your consideration, we beg to remain Yours very truly,

General Contracting & Engineering Co., By J. S. Hannis, *Engineer.*

IV. The work to be done was in front of a coal hoist at the barge-unloading berth. It consisted of driving fender piles in front of a new granite sea wall and fastening them to heavy timbers, known as ribbons, which were to be placed at the bottom and top of the wall. The work covered about 160 lineal feet. It required some 80 holes to be bored into the granite wall, under water at low tide, 4 or 5 feet apart,, and bolts were inserted in these holes by means of which heavy ribbon timbers about 20 feet long were to be anchored to the wall. Similar ribbon timbers were to be anchored in the same way at the top of the wall. The ribbon timbers were scarfed together at the ends so that they lapped into each other. The holes were bored with pneumatic jackhammer drills and the ribbons were handled with the pile-driver derrick. The piles, 12 in number, were 35 to 45 feet long, and were driven down to bedrock by the pile driver and then bolted to the ribbons at the top and bottom.

The work required a marine pile driver, two float stages,, and a raft of timber, all floating in the water. To do it required an engineer, foreman, and blacksmith, and from four to eight dock builders, and a timekeeper, who kept track of them as a part of his work. Placement of the lower ribbon and piles could only be made at low tide, which allowed not more than two hours a day for this purpose.

Ellis Island, where the work was undertaken, was only reached by ferry, and was 10 miles from plaintiff’s plant, so that men reporting for a day’s work could not be sent away to other places.

V. On December 21,1921, plaintiff was ready to commence; work at Ellis Island, but was notified not to commence until December 27. When the work was commenced the coal bunker was not full, and defendant put coal into the bunker from time to time, and, partially by reason of the barges-*436loading or unloading, it required 27 days to complete the work instead of 10.

Plaintiff had a crew of eight men able to work when coal •barges were not unloading but when said barges were at the dock was required to keep four men at the island looking after its equipment. Plaintiff ivas further compelled to keep its men waiting on the island at all times, ready to start work as soon as the barges were moved away. Plaintiff, .after starting to work, was ordered by the Government engineer to suspend from time to time when coal was to be unloaded.

Plaintiff was compelled on some occasions to move the coal barges with its own men in order to continue its work.

VI. Defendant notified the plaintiff by letter of suspensions of work as follows:

U. S. Department oe Labor, Immigration Service,

*Ellis Island, New York Harbor, N. Y., January 10, 19*

■General Contracting & Engineering Co.,

*Jfi Rector Street, New York Gity, N. Y.*

Gentlemen : This is to confirm verbal orders given you by this office to discontinue work on contract covering “ All labor and materials required for extension of coal hoist, part two, fender system, at the U. S. immigrant station, Ellis Island, N. Y. H.,” under dates of December 21, 22, 28, 24, 27, 28, 1921, and January 3, 4, 5,1922, to permit of discharge of coal at the power-plant bunkers, this station.

Respectfully,

Robert E. Tod, *Gommissioner.*

VII. Plaintiff protested to defendant against said interruptions and suspensions, and demanded compensation for the additional expense thereby imposed on plaintiff and presented to defendant its figures and evidence to establish the amount of expense, to wit:

Foreman, 16 days at $8.00_ $128. 00

Engineer, 16 days at $8.00_ 128.00

Watchman, 16 days at $3.50_ 56. 00

.Blacksmith, 8 days at $9.00_ 72.00

Supt_ 96.00

*437Additional wages to dock builders- $300. 00

Temporary track and platform over scale opening- 15.00'

795.00.

Insurance plus 8 per cent_ 63.60

Plant rental, pile driver No. 1, 16 days at $15- 240.00

Catamaran, 16 days at $3.00_ 48.00'

5 tons coal at $7.00_ 35.00

1,181.60-

Plus 10 per cent profit_ 118.16

1,299. 76

resulting entirely from defendant’s interruptions of plaintiff’s work, and demanded payment thereof, but defendant declined and refused to pay same or any part thereof to-plaintiff. Plaintiff was paid the contract price of $2,894, and in accepting same paintiff made written reservation of its right to claim additional compensation of $1,299.76.

The court decided that plaintiff was not entitled to recover-

Booth, Judge,

delivered the opinion of the court:

The plaintiff responded to public proposals, circulated by the Department of Labor, for doing certain work in connection with the extension of the coal hoist at Ellis Island, New York Harbor. The plaintiff’s bid of $2,984 for completing the job was accepted, and on November 28, 1921, a formal written contract was executed by the parties.

Plaintiff’s cause of action depends for success upon two contentions. First, the allegation is made that the written contract does not clearly and precisely set out what the real contract was. To sustain this contention plaintiff introduces testimony to the effect that the mutual understanding of the contracting parties was that the defendant would load the coal hoist to its full capacity; that by doing so a sufficient quantity of coal would be available to meet the wants of the station for at least ten days, thereby affording the plaintiff free and uninterrupted access to the plant for that period of time, within which it had agreed to complete the work.

Whatever may have been the preliminary negotiations with respect to the contract, it is impossible to find therein *438any covenant to the above effect. It is true tbe plaintiff agreed to complete the work within ten days; but, on December IT, 1921, the defendant advised the plaintiff of the absolute necessity of continuing to unload coal at the hoist during the performance of the work, and the plaintiff’s only protest was for an extension of time because of this fact. The extension was granted and no penalties under the contract exacted.

The record as a whole discloses a transaction where the activities of the parties were more or less interdependent. The plaintiff could not expeditiously complete the work when coal barges monopolized the space adjacent to where the work was to be done; neither could the defendant dispense with the public necessity for a supply of coal. This situation presented itself upon an examination of the premises, and the plaintiff was expressly admonished to ascertain the difficulties attendant upon the job prior to submitting his bid.

Paragraph 11 of the contract reserved to the defendant the right to suspend the work in whole or in part when in the opinion of the Secretary it was necessary, and contained a proviso as follows: “ That no claim shall be made or allowed to said party of the first part of any damages arising out of any such suspension or delay.” This provision was, of course, in the contract when the plaintiff signed it. Contracts may not be reformed in the absence of a mutual mistake of the parties as to their terms. While it is certain the plaintiff was delayed by the presence of the coal barges at the site of the work, a delay sufficient in extent to prolong the anticipated time of completion some IT days, nevertheless there is not sufficient evidence in the record to warrant the court in holding that the defendant agreed to keep the coal barges away for a consecutive period of 10 days, whatever may have been the honest impression of the plaintiff.

The plaintiff was one of several bidders; the plaintiff’s bid contained the proposal to do the work in 10 days, the others were unwilling to enter into a contract providing for such a short period of time. The work was not unusually extensive, but attended with the difficulties appertaining to con*439struction which must depend to some extent on the ebb and flow of the tide. It was out in the harbor of New York, 10 miles distant from the plaintiff’s base of operations, and it would be an insurmountable task to attempt an exact proportion of time chargeable to the defendant as delays caused by the presence of the barges, even if recovery therefor would he allowable. Plaintiff admits that as to certain character of work to be done no more than two or three hours were available each day for its performance. The record seems to warrant an inference that the plaintiff mistakenly limited the time of performance to a much shorter period than should have been done.

The case it seems to us, is determined by the decision of the Supreme Court in the case of *Wells Bros. Co.*v. *United States, 254*U. S. 83; *Wood*v. *United States, 258*U. S. 120; and *Crook Co.*v. *United States,*decided January 25, 1926, *270*U. S. *4.*

The petition will be dismissed. It is so ordered.

Geaham, *Judge;*Hat, *Judge;*and Campbell, *Chief Justice,*concur.