Under contracts to furnish stone to the United States for a
building, and to saw it, and cut and dress it, all as "required,"
the contractor may recover damages for enforced suspensions of, and
delays in, the work by the United States arising from doubts as to
the desirability of completing the building with the stone and on
the site, which involved the examination of the foundation and the
stone by several commissions.
A contract to furnish "all of the dimension stone that may be
required in the construction" of a building does not include
dimension stone used in "the approaches or steps leading up into
the building."
The facts in this case are stated in the opinion of the
Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
Before July 23, 1872, the United States advertised for proposals
for furnishing and delivering at the site of the United States
government building to be erected at Chicago, Illinois "all of the
dimension stone required in its construction." John M. Mueller
submitted a proposal, dated July 23, 1882, "to furnish dimension
stone in accordance with the attached advertisement," at specified
prices. This proposal was accepted by a notice to him which
said:
"You are hereby notified that your proposal to furnish all the
dimension stone that may be needed for the exterior of the new
customhouse building to be erected in the City of Chicago"
for specified prices,
"the stone to be delivered at the site of the building and in
such quantities and at such times as the Department or its duly
authorized agent may direct is accepted."
On the 2d of September, 1872, a written contract in pursuance of
such advertisement and proposal was made between the United States
and Mueller which described Mueller as the
Page 113 U. S. 154
person
"to whom was awarded a contract for certain dimension stone
required in the construction of the new customhouse, courthouse,
and post office building at Chicago, Illinois, on his bid received
under advertisement, and dated July 23, A.D. 1872."
By the contract, which was made on behalf of the United States
by the supervising architect of the Treasury Department, Mueller
agreed to furnish from his quarry "and deliver at the site of the
aforesaid buildings all of the dimension stone that may be required
in the construction of said building," and to furnish and deliver
100,000 cubic feet of the stone on or before the first of January,
1873, "and the remainder at such times and in such quantities as
may be required" by the supervising architect, and the United
States agreed to pay to Mueller certain specified prices. The stone
was known as "Buena Vista freestone."
On the 9th of December, 1871, Mueller entered into another
contract with the United States, on his bid made under an
advertisement, by which he agreed to furnish the cutting of the
Buena Vista freestone to be used in the basement story, sill, and
lintel course of said building, in accordance with a specification
attached, by which he was to deliver the stone, cut and ready for
setting, "promptly and as required by the superintendent, so that
the progress of the work will not be interrupted." By the contract,
all the stone for the area wall was to be cut, lewised and ready
for setting on or before the first of March, 1873, and the
pierstones, and sill and lintel course as soon thereafter as
required by the superintendent.
On the 18th of July, 1873, Mueller entered into another contract
with the United States, by which he agreed "to furnish such number
of mechanics and laborers as may be required from time to time" by
the superintendent and all of the tools and materials necessary to
cut, dress, and if necessary box all of the stone required for the
construction of said building, "and to cut such stone in such
manner and at such place as may be required" by the superintendent,
and to furnish free of cost to the government all shops, sheds and
machinery necessary to cut, dress, and box said stone, and it was
agreed that all materials required for the cutting or boxing of
said stone should be
Page 113 U. S. 155
supplied only upon the requisition of the superintendent, and
that not less than 250 stone-cutters, with the necessary complement
of mechanics and laborers, should be employed "at any time during
the progress of the work," Mueller to be paid for the labor full
market rates "of the labor" actually performed, increased by 15
percent, and for the materials the lowest trade prices, increased
by 15 percent thereof.
On the 4th of August, 1873, Mueller entered into another
contract with the United States, on a bid of his, by which he was
to furnish all the tools, machinery, shops, and sheds, etc.,
required to saw, and to saw such of the stone supplied under his
contract of September 2, 1872, as might be found necessary by the
superintendent, the sawing to be done at such times and in such
quantities as the superintendent might require and Mueller to be
paid a specified price for all stone sawn.
Mueller brought a suit on these contracts against the United
States in the Court of Claims to recover sundry items and among
them pay for certain stones furnished for which he had not been
fully paid; also damages for suspensions and delays, enforced and
caused by the United States, of work under the contracts, which
kept Mueller and his men, machinery, plant, and capital idle; also
damages because dimension stone was required for the construction
of "the steps and approaches leading up into said building," but he
was not allowed to furnish it.
The Court of Claims allowed to him $20,000, as damages for
suspensions of the work enforced by the United States, and
$2,758.25 additional pay for the stones referred to, and rejected
all the other items sued for, and rendered a judgment in his favor
for $22,758.25. Among the items rejected was the claim for damages
in respect to the stone for the "steps and approaches." The United
States have appealed because of the allowance of the $20,000, and
Mueller has appealed as to the item for "steps and approaches."
The finding of facts by the Court of Claims as to the $20,000
item is this:
"On the 13th of May, 1875, claimant was directed to stop
shipment of stone until further orders, and on
Page 113 U. S. 156
the 15th he was directed to stop cutting. On the 25th of May, he
was notified formally, in accordance with the language of the
contract, 'that the party of the first part does not require that
any more stock should be delivered at the present time. Whenever
more is required, you will be notified.' On the 16th of October,
1875, he was notified to resume cutting. In the summer and fall of
1877, when the work was nearing completion, he was directed to
discharge workmen from time to time, so that the number was reduced
below the minimum fixed in his contract. The work of sending
forward stone was also resumed about the middle of October, and
continued until about the first of December. The second suspension
lasted until about the middle of February. These suspensions arose
from a well founded doubt as to the desirability of completing the
Chicago customhouse with the Buena Vista stone and on the site.
Several commissions made lengthy and exhaustive examinations of the
foundation and stone, pending which the United States stopped the
work. The damages resulting to the claimant therefrom were
$20,000."
The court was of opinion that as the delay was caused by a
contemplated change of purpose in regard to the stone and the site,
the enforced suspension and delay were unjustifiable, and not
covered by the stipulations in the contracts that the stone and the
work should be furnished as "required." 19 Ct.Cl. 591. We are of
opinion that the court was correct in its view.
United States
v. Smith, 94 U. S. 214.
The finding of facts as to the "steps and approaches" was as
follows:
"The approaches or steps leading up into the building required,
according to the plans for said building, a large quantity of cut
dimension stone, to-wit, 17,473.10 cubic feet, and although the
claimant was able and willing to furnish the same under his
agreement, the officers of the United States refused to permit him
to furnish the same; but it does not appear that he made any
proposition to furnish it. The defendants determined that granite
would be more suitable than sandstone for these approaches, and the
amount required was furnished by other parties. If the claimant had
been allowed to furnish sandstone, he would have made a
Page 113 U. S. 157
profit of $6, 115.58."
The court was of opinion that there was no violation of the
contract. 19 Ct.Cl. 592.
The expression "steps and approaches leading up into said
building," used in the petition, and the expression "approaches or
steps leading up into the building," used in the finding of facts,
are perhaps somewhat vague. But we must infer that the expression
used in the finding means structures wholly outside of the
building, not a part of it, but constituting a means of ascent on
the way into the building. In this view, the stone used in the
approaches or steps was not stone used in the construction of the
building within the meaning of the first contract and the original
advertisement. The approaches may have been of cut dimension stone
and necessary for use in connection with the building after it was
constructed, but, in the absence of anything more definite in the
finding, it cannot be said that they were in the building or a part
of it.
Judgment affirmed.