#### HARVEY & LIVESEY’S CASE. James W. Harvey et al. *v.*The United States.

*On the Proofs.*

*The Government advertises for proposals for the Boole Island bridge, stating that detailed information with regard to the general form and dimensions of the piers and abutments, and a profile of the bed of the river can be obtained by personal application at the arsenal. The claimants applying are shown plans which fix the dimensions, the number of piers, #c. They*“propose to "build the masonry of piers and abutments” *at a price per yard specified. Their bid is accepted, and a written contract entered into. It provides that they shall*“construct the piers and abutments” “in accordance with such plans and specifications as may be fixed by proper authority,” “the United States to furnish stone, cement, sand, and all necessary templets required for the work, and nothing more.” *Subsequently the claimants insist that the Government is to erect the coffer-dams necessary, and that they are merely to do the masonry. The Government refuses and requires them to erect the cofferdams. The plans and specifications furnished by the Government alter the dimensions of the piers so as to materially affect the value of the worlc. The ■ Government also hinders the claimants from performing by neglecting to furnish the necessary plans. It also fails to supply material according to the terms of the agreement. Finally it evicts the claimants for delay and declares the contract forfeited. The claimants bring their action.'*

I. The advertisement for proposals for Government work required by the *Act March 2d,*1861, (12 Stat. L., 220,) and the proposals in response thereto, do not form any part of the subsequent contract and cannot be admitted .to contradict or vary the terms thereof.

II. Where the contractors agree to *“ construct piers and*abutments” for a bridge, and the Government agrees to furnish “ *stone, cement, sand, and all necessary templets required for the ivorlc, and nothing more,”*the parties must be deemed to have defined their reciprocal duties and obligations, and the contractors are bound to erect the necessary coffer-dams, notwithstanding that the consideration of the contract is a price per yard for the masonry.

III. Where a contract provides for the construction of piers and abutments for a bridge “ *in accordance with such plans and specifications as may be fixed by the proper authority acting for the United States,”*the contractors are bound by the terms of the contract, notwithstanding that the plans and specifications subsequently fixed upon by th'e officers of the Government materially differ from plans and specifications exhibited to the contractors at the time they made their bid for the work, and materially affected the value thereof.

*502IV. No exact definition, can be given of *“ reasonable time,"*but it must always be that time which preserves for each party the rights and advantages he possesses, and protects each from losses ho ought not to suffer.

V. Where the defendants wrongfully neglect to fix a location for the work to be performed by contractors, and to furnish working plans, as required by the contract, the rule of damages is the same *pro tanto*as in cases where they wrongfully put an end to the contract, *i. e.,*the direct and natural loss which the contractors have sustained.

VI. A provision in the contract that, if default be made by the contractors in the performance of their work, the Government shall have the right to complete it at the contractors’ cost, is a condition-subsequent, which cannot be enforced where the Government, by neglecting to furnish working plans and materials, has delayed the contractors, who have, subsequent to the detention, exercised reasonable diligence.

VII. Where the Government wrongfully declares a contract forfeited and evicts the contractor, so that he is prevented from completing the work, he is not entitled, as damages, to his losses for tools, machinery, &c., but to the profits which he might have made if allowed to perform.

*The*Reporters’ statement of tlie case :

The following is the material portion of the advertisement for proposals:

“ Sealed proposals will be received at this arsenal up to 10 o’clock a. m. on the 25th day of May, 1869, for the construction of the piers and abutments of the railroad and wagon-road bridge to be built to connect the island of Bock Island with the city of Davenport.

“ It is proposed to build, say, five common piers, one draw-pier, and two abutments.

“ Detailed -information with regard to the general form and dimensions of the piers and abutments, and a profile of bed of river, can be obtained by personal application at the arsenal.

“ The total amount of masonry is estimated at about 10,000 cubic yards; all the piers and abutments will be required to be completed prior to the 1st day of December, 1869.

*“*Parties making bids will state theprice per cubic yard of solid masonry at which they are willing to complete the work, the United States furnishing the stone, cement, and sand, as above stipulated, and nothing more.

*"*They will also make a bid, stating separately the price per cubic yard of solid masonry at which they will undertake to build the piers and abutments, the United States furnishing *503stone, cement, ancl sand as above, and the price at which they will agree to put in the necessary coffer-dams, with their protections.”

The contractors put in the following proposal:

“We propose to build the masonry of piers and abutments of the Bock Island bridge, as per annexed advertisement. Small piers and abutments per yard, $11; draw-piers and abutments per yard, $13.”

The provision of the contract out of which the controversy arose was as follows:

“The parties of the first part do hereby contract and engage with the said United States to construct the piers and abutments for the new rail and wagon bridge to be built to connect the island of Bock Island with the city of Davenport, in accordance with such plans and specifications as may be fixed by proper authority acting for the United States. The United •States to furnish stone, cement, sand, and all necessary tem-plets required for the work, and nothing more.”

With regard to the coffer-dams the court found that “it was necessary, in order to the laying of the masonry of the abutments and piers, that a coffer-dam should be built for each abutment and pier, and the water pumped out of it, and the bed of the river prepared for laying the masonry of the abutment or pier thereon; and without such coffer-dams it was impracticable to construct any of the abutments or piers of said bridge.” And that “immediately upon the refusal of the officer in charge of the work to build the coffer-dams, and pump the water therefrom, and prepare the beds for the abutments and piers, the claimants proceeded to build the requisite cofferdams ; and all that was required in that respect while the work was in the hands of the claimants was done by them.” •

With regard to change of dimensions the court also found:

“When proposals were invited by advertisement, as aforesaid, General Bodman had prepared certain plans of the bridge, intended to show the general form and dimensions of the piers and abutments, and a profile of the bed of the river; which plans were seen and inspected by the claimants before they sent in their proposal aforesaid. The dimensions of the piers of said bridge, which were fixed upon on the 22d of August, 1869, and those which were, after that date, from time to time, fixed upon, were less than the dimensions indicated *504in the plans prepared by General Rodman, and shown to the claimants before they made their said proposal; but there was no reduction of the sizes which were fixed upon on the 22d of' August, nor was there any reduction of the sizes thereafter adopted.”

*Mr. Enoch Totten*for the claimants :

The advertisment called for two hinds of proposals covering the two classes of work necessary in the construction of piers and abutments for a bridge across the Mississippi River, to wit: first, for building the solid masonry of such piers and abutments alone; secondly,for building the coffer-dams and their protections. .The plaintiffs proposed to build the solid masonry only, and made no bid stating the price at which they were willing to putin the coffer-dams and their protections; and the price at which they offered to perform the work was only a fair compensation for performing the labor of dressing and setting the stones. It could not possibly have been the intention of' the parties who made the contract, that the persons who performed the labor should spend a fortune in doing it, without any equivalent.

In construing the contract, the court will look to the language employed in all the papers, the subject-matter and surrounding circumstances; and will avail itself of the same lights which the parties enjoyed when the contract was made. And the advertisement and proposal will be considered as part of the contract. *(Ash*v. Toione, 5 Wall. R., 689; *Gibbons*v. *United States,*5 0. Gis. R., 416; *Adams*vi *United States,*1 Id., 193; *Moore & Boiee*v. *United States,*Ibid., 90; 1 Parsons on Contracts, 483 ; 12 Stat. L., 220.) And if from the language of those written instruments their true import and the intention of the parties be-doubtful, the language will be construed most strongly against the party using it. *(JBarney v. Neiocomb,*9 Cush., 47; *Lawrence-*v. *McCalmot,*2 How., 450; *Walrath*v, *Thompson,*4 Hill; 200.)

The Government having changed the dimensions of the piers and abutments so as to diminish largely the quantity of' rough and profitable work, without any corresponding diminution of the elaborate or expensive work, is responsible to the contractors, and bound to compensate them for the increased expense caused by the deviation from the original plans. (2 Parsons on Contracts, 432.)

*505The plaintiffs supplied themselves at great expense with the-necessary tools, vessels, and machinery to carry on the work under the contract, and when the Government wrongfully took possession and ejected them, these implements became useless to them, and were of but little- value except for the purpose of completing this work. This was a serious injury to the contract* ors, and the defendants are liable for all damages resulting from their wrongful termination of the work. And, generally, the Government is bound to pay such compensation as will put the plaintiffs in the same position they would have occupied had they been permitted to complete their contract. *(Speed*v. *The United States,*7 C. Ols. It., 93.)

During the progress of the work the contractors performed labor not required or contemplated by the contract, at the-request of the agents of the defendants, and they are entitled to recover what such extra labor was reasonably worth. (Bes*tor*v. *The United*States, 3 C. Cls. It., 426; *Ourtis*v. *The United States, 2*Id., 151; *Grant*v. *The United States,*5 Id., 71.

*Mr. Assistant Attorney-General McMichael*for the defendants.

Milligan, J.,

delivered the opinion of the court:

This action is prosecuted to recover $230,400, damages, which the claimants allege resulted from breaches of a written contract, a copy of which is appended to and made a part of the original petition in this case. The sum claimed is itemized in the petition, and set down under eight distinct heads, all of' which, in the view we have taken of the case, need not be separately considered. The principal difficulty, as well as the-greater amount of damages claimed, arises on the construction of the contract.

The contract was let in the ordinary way, under public advertisements soliciting sealed proposals for the work, which were responded to by the claimants and the work regularly awarded to them. Much stress was laid in the argument on the preliminary papers leading to the written agreement, which is the foundation of this suit. On the one side, it was insisted that the advertisement and bid constitute a substantive part of the contract, and may be looked to in its construction; and on the other, this position was denied, and the subsequently written contract claimed as the only paper to which, in the absence-*506of all uncertainty in its language, the court can look in giving-effect to the agreement of the parties.

The law requiring advertisements and proposals for public contracts, obviously was intended by Congress to invite competition among bidders, and to prevent favoritism and fraudulent combinations in awarding contracts ; but the advertisement and bid under which the contract was awarded were never supposed to constitute any part of the contract. On the contrary, the *Act June 2d,*1861, (12 Stat. L., 411, § 1,) expressly requires that *“*every contract be reduced to writing and signed by the contracting parties with their names at the end thereof.”

Outside of the statute, and on general principles, the written contract is the last and most deliberate act of the parties, and must be looked upon as the consummation of all previous negotiations, and the exact expression of the parties’ final purpose. No evidence external to the contract, whether written or in parol, as a general rule, is admissible in aid of the interpretation of its language, and therefore all preliminary papers passing between the parties while the contract was *in fieri,*are merged in the written agreement and inadmissible to contradict or vary the written agreement. (2 Parsons on Contracts, 60; 2 Kent’s Com., 11th ed., 746; 1 Greenleaf’s Evidence, 12th ed., § 275; *Nash*v. *Towne,*5 Wall. R., 689, 703.)

Passing from this question, and dealing with the contract as the parties executed it, the first and most prominent obligation assumed by the claimants was, “to construct the piers and abutments for the new rail and wagon bridge to be built to connect Rock Island with the city of Davenport, in accordance with such plans and specifications as may be fixed by proper authority acting for the United States.”

The obligation here imposed on the claimants ex *vi termini,*carries with it the performance of all labor necessary to complete the construction of the piers and abutments according to the plans and specifications furnished by the officer in charge of the work.

If doubts existed as to the interpretation of this clause of the contract, they are removed by a subsequent provision, whicli sets out in terms what part the United States are to perform in the fulfillment of the contract. They are bound “ to furnish stone, cement, sand, and all necessary templets required for the work, and nothing more.”

*507The parties having undertaken to define the reciprocal duties and obligations of each other, the law holds each bound to his own agreement. This is the rule'on general principles, and especially is it rigorously enforced when there is a positive negation of any other or further obligation in this respect on the part of the Government inserted in the contract. The maxim, *-expressio unuis est exelusio alterius,*applies here, and excludes everything not included in the contract.

It follows, therefore, that it was the duty of the claimants to build the coffer-dams, pump the water therefrom, and prepare the bed of the river for the piers and abutments, 'which they were bound to construct.

Next to this question, and of kin to it, arises another, which must also find its solution in the construction of the contract. It is proven that the dimensions of the piers, as indicated in' the drawings shown to the claimants before they sent in their bid for the contract, were somewhat diminished by the officer in charge of the work, after the execution of the contract, and thereby rendered less valuable to the contractors. This reduction, it is claimed, was unlawful, and entitles the claimants to damages.

It is certainly true, if the claimants undertook to do a specific piece of work, and they were wrongfully prevented from performing it according to the terms of the contract, that that would be a breach of the contract, for which the defendants -would be answerable in damages. And there is no valid distinction between the wrongful termination of a contract, and an unlawful diminution of the quantity of the work stipulated to be performed under it. Both alike work a breach, for which the law gives damages, but in unequal amounts.

But the question here presented is one of authority. Had the officer in charge of the work the power, under the contract, to make the alteration complained of? Discarding, as in the former part of this opinion, the preliminary negotiations of the parties, and looking alone to the written agreement, it seems clear that the claimants conceded this right when they executed the contract. By the very words of the agreement they bound themselves “to construct the piers and abutments *in accordance with such plans and specifications as may he fixed hy proper authority acting for the United States."*The right of the United States to fix the plans and specifications for the piers *508and abutments is not disputed, and the question now to be decided is, whether or not that right was exhausted when the-specifications and drawings* were exhibited to the claimants, before they sent in their proposals for the contract. To hold that it was, would be to defeat the purpose of the after written contract, and render nugatory its leading stipulations. Such-was not the intention of the parties, nor will the language employed in the contract bear any such interpretation. It clearly has a future signification; and the claimants having conceded the right to the United States to fix the working plans and specifications, they cannot now claim its exercise worked a-, breach of the contract, for which the defendants are answerable-in damages.

Conceding the right of the United States to locate the piers- and abutments, and to furnish the plans and working draughts thereof, they could not delay the exercise of this right beyond a reasonable time. And what is a reasonable time must be determined by the court, from the facts and circumstances surrounding each case. No exact* definition can perhaps ever be-given of “reasonable time;” but it must always be that time-which preserves for each party the rights and advantages he possesses, and protects each from losses he ought not to suffer.

The contract in this case was executed on the 1st day of June,. 1869, and the work was to be completed prior to the 1st day of' December next thereafter, provided the stone was delivered by the United States at the rate of 2,000 cubic yards per month; and! in Case of any failure on the part of the G-o vernment to deliver this amount of stone, then the work to be completed as soon after the 1st of December as practicable.

The work which the claimants undertook to perform was of considerable magnitude, and they had the undoubted right immediately after the contract was executed to employ such a force upon it as would enable them to complete it, within the time limited in the contract, with the least possible expense and inconvenience to themselves. Corresponding to this right was the reciprocal duty of the defendants to locate the piers and abutments and to furnish all the necessary working plans in due and reasonable time, so as not to retard any part of the work.

The fact that the officer in charge of the work when the contract was entered into was subsequently relieved by another officer, who, under instructions from the War Department, *509.•suspended the work until he could determine the location of the bridge, and adopt a general plan for its erection, furnishes no excuse for delaying the contractors in the lawful prosecution of the work they had undertaken. On the contrary, the delay of the Government in locating the first pier of the bridge until the 22d of August, 1809, and in furnishing the first working plan ■until the 4th of September thereafter, was unreasonable, and a palpable breach of the contract, for which the defendants are answerable in damages.

The rule of damages in such a case is precisely the same, *pro tanto,*as in cases where the defendants wrongfully put an end to the fulfillment of a contract. The rule in cases of this character has repeatedly been declared by the Supreme Court and strictly followed by this court. In the case of the *Philadelphia, Wilmington & Baltimore Railroad*v. *Howard,*(13 Howard’s R., 344,) the Supreme Court, after declaring that actual damages are all that can lawfully be given in an action in covenant, proceed to say: Actual damages clearly include the direct and actual loss which the plaintiff sustained *propter rem ipsam non habitam,*and in cases of contract like this, that loss is, fimong other things, the difference between the cost of doing the work and the price to be paid for it.” (See also *Speed’s Case,*7 C. Cls. Rep., 93; *Figh & Gindrat’s Case,*ante.)

Estimating the damages under this rule, the witnesses, as shown in the findings of the court, fixed the amount of actual damages directly resulting from the defendants’ wrongful acts .at $20,068.

The plaintiffs claim additional damages in consequence, as they allege, of having been wrongfully ejected from the work on the 8th of October, 1870. The United States justify the removal of the claimants from the work, on the ground of its tardy progress, and claim to have acted under the contract itself.

The contract provides if any default shall be made by the claimants “ in the performance of their work, specified in the •contract, of the quality and at the times and places therein provided, that then, in that case, the United States shall have the Tight to take entire and exclusive charge of the work, and complete it in accordance with the conditions prescribed in the ■contract,” &c.

The stipulation in this clause of the contract constitutes a con*510dition-subsequent, and the defendants’rightunder it to eject the claimants from the work did not attach until the condition was broken. The proof abundantly demonstrates the claimants never broke it, but at all times subsequent to the detention exercised reasonable dilligence under the circumstances in the fulfillment of their part of the agreement.

The ground of complaint was the " tardy progress ” of the work, which the defendants themselves produced, by neglecting to furnish the working-plans and materials as they were bound under the contract. And now to justify the action of the officers of the Government in ejecting the claimants, would be to> justify one breach of the contract by another, which no court can do.

By the contract, as before stated, the* work was to be completed prior to the 1st day of December, 1869, on condition the-stone was delivered at the rate of 2,000 cubic yards per month, and, in case of failure on the part of the defendants to deliver this amount of stone, as soon thereafter as practicable. The stone was not delivered at the rate of 2,000 cubic yards per-month, and although the United States’ default in this respect did not produce long delays in furnishing the material they were-bound to furnish, they did, by their failure to comply with the terms of the contract, technically postpone the time of completing the work beyond the 1st of December, 1869. After the United States’ default, the claimants, by the words of the contract, were bound to complete it as soon after the 1st of December *“*as practicable.” To fulfill this part of their obligation, the claimants had the undoubted right to push the work forward as rapidly as practicable, without any hinderance or delay on the part of the defendants. But they were not left free to exercise this right, but hindered and delayed by the-agents of the United' States failing to fulfill their part of the contract, for which we-have awarded damages.

The delay of the Government was so great that only oner abutment and one pier were located on the22d of August, 1869, and the working plans therefor were not furnished until the 4th of September following, and no other plans until long after the time when the whole work was to have been completed. High waters also intervened, in the fall of 1869, and stopped the work for a month, which, by the terms of the contract, con*511stituted an equitable element to be considered by the Government before claiming the forfeiture of the contract.

In fact the record shows no ground of forfeiture, or reasonable apology for ejecting the claimants from the work. The act .was unauthorized, and constituted another breach of the contract, for which the law awards at least nominal damages. But the evidence fails to show actual damages, and therefore we have allowed none.

On the contrary, the cost of finishing the work would have been, as shown by the proof, equal to the price to be paid for it.

It also appears that the damages which resulted to the claimants by reason of the idleness of their tools, machinery, and vessels, after their ejectment from the work, were no greater than those wSicli were necessarily incident to the termination of the work under the contract.

The other claims for damages under the second, third, fourth, seventh, and eighth items in the petition are not sustained, and therefore disallowed.

The value’of the work, as measured by the contract, which claimants did before their ejectment, is shown to be... $76,314 47

They have received. 54,105 98

Leaving balance. 22,238 49

Damages sustained... 20,06.8 00

42, 306 49

For this sum ($42,306.49) the claimants are entitled to recover, and judgment will be so entered.

NOTT, J.,

concurring:

This case is one of extraordinary hardship. So far as the real intent of the claimants is concerned it appears, first, that. an estimate was made to Congress by the officer charged with that duty, stating the expense of total construction of the piers and abutments as about $24 per cubic yard; second, that the claimants’ bid for masonry was just equal to half of the estimated cost, being on an average $12 per yard; third, that the bids of other parties did not vary much from this, being $12.70 a yard for the masonry alone, and $19 for the masonry and cof*512fer-dams; fourth, that the claimants’ proposal was not to construct the piers and abutments complete, but “ *to build the masonry*of piers and abutments;” fifth, that the contract executed was prepared by the officers of the Ordnance Department; and, sixth, that at the time of execution those officers inquired of the claimants “if they knew what they were doing,” which I take to mean that, in the officers’ opinion, they were agreeing to do two things for the reasonable price which should be paid for one.

All of these facts and circumstances combine to lead me to the conclusion that the claimants never intended.to do the work of building the coffer-dams; and that when they estimated for masonry at $11 and $13 per yard, they supposed it was to be simply masonry in a place prepared by the other contracting party.

As to the construction given to the contract by the majority of the court, I am not so clear that there is no latent ambiguity in the subject-matter. A contract to construct piers and abutments at a price specified per yard, may include everything relating to the construction, such as excavating for the walls of a cellar, or building coffer-dams for the piers of a bridge, but it may also mean simply the work of constructing the piers, as in this case, out of materials furnished by the other party. On the whole, I prefer to consider it an open question if a similar case should arise.

It is in this connection worthy of note that this court is without equitable power to reform a contract on the one hand, and, on the- other, is required to apply the rigid' rule of the common-law which admits of no explanation of *the*terms of a contract when there is no latent ambiguity therein. In most countries under the common-law system of jurisprudence there are both courts of law and’courts of equity, and the party who has unwittingly entered into a contract contrary to his real intent may come into a court of equity for relief. It is for this reason, and not from any presumed sacredness of written contracts, that the courts of the common law have been so inexorable in confining parties to the terms of their contracts, for, having another tribunal in which they might procure relief, they decline to go there. Under a different system a different rule should prevail. In Pennsylvania, where there is no court of equity, a party may set up in an action at law any facts which *513would entitle him to relief in equity. For these suits which come before us we have neither the one system nor the other; and it seems as if restricting’ the court from all’equitable jurisdiction on the one hand, and compelling it to follow those rules which only exist because there is an equitable jurisdiction elsewhere, may be fraught with great danger to both parties, and especially to the Government.

With regard to the claim for damages growing out of the change in the work, occasioned by the subsequent plans and specifications of the Government, I dissent from the opinion of the court. Undoubtedly the Government could secure the right to vary its plans and specifications, and undoubtedly the claimants would be bound to carry out the changed or changing purposes of the Government, but the first plans and specifications exhibited to the claimants, at the time they entered into the contract, fixed, so far as the price was concerned, the nature of the thing contracted for. Any material deviation from that standard must be at the expense of the party requiring the change. Otherwise it would be in the power of one party to substitute an entirely different thing from that bargained for, and compel the other to build it at the original agreed price. In this case the Government not only diminished the quantity of the work, but materially changed its character and augmented its cost; and for the difference in value I think the claimants should recover. •

Drake, Ch. J.,

dissenting:

I dissent from the opinion of the court on the point of there having been delays caused by the defendants which amounted to a breach of the contract; and also upon the amount of the damages awarded.