[256 U.S. 11, 12] Mr. Assistant Attorney General Davis and Mr. Wilford Hearn, of Washington, D. C., for the United States.
[256 U.S. 11, 14] Messrs. John E. Morley, of Cleveland, Ohio, Rufus S. Day, of Washington, D. C., and Roscoe M. Ewing, of Cleveland, Ohio, for appellees.
Mr. Justice McKENNA delivered th opinion of the Court.
April 14, 1919, the Court of Claims rendered a judgment against the United States in favor of L. P. & J. A. Smith (appellees and we shall so refer to them) for the sum of $119,304.27. To review that judgment this appeal is prosecuted.
The appellees were a partnership doing business at the times herein stated under the firm name of L. P. & J. A. Smith.
In response to an advertisement and after the submission of proposals for work at the mouth of the Detroit river, a contract in writing was entered into December 31, 1892, by O. M. Poe, Colonel, Corps of Engineers, U. S. Army, and appellees, by which the latter agreed to excavate a ship channel 20 and 21 feet deep, located in section 8 of the Detroit river, in accordance with specifications attached to the contract and made a part thereof. They were to receive in full compensation for their work the sum of 18 cents per cubic yard of excavation, scow measure.
The material to be removed was specified to consist 'of sand, gravel, and boulders, all in unknown quantities.'
In the season of 1894 there was discovered a natural bed of limestone rock within the boundaries of the excavation called for by the contract, which was not provided for by the contract. For the removal of this limestone the United States advertised for bids. [256 U.S. 11, 15] The L. P. & J. A. Smith Company, a corporation of Ohio, and a successor in interest to L. P. & J. A. Smith, bid on the work. The bid was accepted and a contract was entered into November 9, 1894, by which that company agreed to remove the rock and other material at the price of $2.24 per cubic yard of excavation, bank measure. The contract was completed on or about June 16, 1895
The contract of December 31, 1892, was extended from time to time by Col. Lydecker, the engineer in charge of the work, he having succeeded Colonel Poe, to July 1, 1897. In that year he ordered appellees to work at particular spots toward the northerly end of section 8, at certain designated shoals which had been excavated under the contract of November 9, 1894, with the L. P. & J. A. Smith Company.
And certain other officers, one an assistant engineer, another a subinspector, in charge of the work, insisted upon locating for appellees the points where dreding was to be done. 1
The material or a large part of the material to be removed from those points was limestone rock or limestone bed rock. Appellees protested and asked for the fixing of an extra price for doing the work. This was refused and they were told that if they did not remove the same they would be declared defaulting contractors; that the work would be taken from them, done and charged to them, and be paid for from the retained percentages for work already performed, and if the percentages were not sufficient for that purpose they, appellees, and their bondsmen, would be proceeded against. No other officer or officers so told appellees or insisted that all the material to be removed was clay, gravel and boundlers. 1
A large part of the material arbitrarily stated to be clay, gravel, sand and boundlers, was in fact limestone [256 U.S. 11, 16] rock and limestone bed rock, and was not the material specified in the contract.
The quantity of material excavated as thus required, and that required by the contract, the findings estimate in detail and the cost of its excavation, in the sum of $116,760.61, from which was deducted the sum of $5,174.64 that had been paid appellees, leaving due to them $111,585.97. It is found besides that delays caused by the engineer in charge resulted in a loss to the appellees of $7,718.30. For these two sums judgment was rendered.
The Court of Claims in a brief memorandum summarized the elements of liability against the United States, concluding as follows:
The United States adduces against the conclusion certain provisions of the specifications, the latter being, as we have seen, part of the contract.
They are too long to quote or even summarize. They are to the effect that the decision of the engineer officer in charge as to quality and quantity of work was final and that his instructions were required to be observed by the contractor. And further that modifications of the work in character and quality, whether of labor or material, were to be agreed to in writing and unless so agreed to or expressly required in writing no claim should be made therefor.
The contention overlooks the view of the contract entertained by Colonel Lydecker and the uselessness of soliciting or expecting any change by him. His conduct, to use counsel's description, 'though perhaps without malice or bad faith in the tortious sense,' was repellant of appeal or of any alternative but submission with its consequences. And we think, against he explicit declaration of the contract of the material to be excavated and its price. The contract provided, in response to advertisements [256 U.S. 11, 17] and in fulfillment of bids, for the excavation of a ship channel 20 and 21 feet deep and that 'the material to be removed consists of clay, sand, gravel, and boulders, all in unknown proportions.' To these explicit provisions, and their contractual force we may add the judgment and conduct of Colonel Poe, the first engineer officer in charge of the work. He realized immediately when a bed of limestone rock was encountered it was not the material stated in the contract and without hesitation entered into another contract concerning it, and at a price of significant contrast-18 cents per cubic yard, scow measure, being the price of the first contract, $2.24 per cubic yard of excavation, bank measure, being the price of the second contract.
We think the case is within the principle of Hollerback v. United States, 233 U.S. 165 , 34 Sup. Ct. 553, Christie v. United States, 237 U.S. 234 , 35 Sup. Ct. 565, United States v. Spearin, 248 U.S. 132 , 39 Sup. Ct. 59, and United States v. Atlantic Dredging Co., 253 U.S. 1 , 40 Sup. Ct. 423.
We concur, therefore, with the declaration of the Court of Claims that 'the right' of the appellees 'to recover the price for the work done by them is indisputable,' including the loss to them while waiting for the engineer 'to locate their work.'
Mr. Justice DAY and Mr. Justice McREYNOLDS took no part in the decision.
[ Footnote 1 ] Additional finding upon the mandate of this court.