Ia this case, before reported in 8 Ct.Cl. 501, 12 Ct.Cl. 141, 13
Ct.Cl. 322, and 105 U.S. 871, the Court of Claims, 18 Ct.Cl. 470,
awarded to the claimants $18,250.95, for labor done and materials
furnished by them in constructing coffer dams and in performing the
work necessarily connected therewith and preliminary to the mason
work for the piers and abutments referred to in the contract. That
court proceeded on the view that the claimants had no right to rely
on the testimony of experts introduced by them as to the value of
the work, but should have kept and produced accounts of its cost
and expense, but it gave to the claimants the benefit of the
testimony of experts introduced by the United States as to such
value in awarding the above amount.
Held that the
claimants could not be deprived of reasonable compensation for
their work because they did not produce evidence of the character
referred to, when it did not appear that such evidence existed, if
the evidence they produced was the best evidence accessible to them
and it enabled the court to arrive at a proper conclusion.
On evidence thus rejected by the Court of Claims, this Court
awarded to the claimants, for the above-named work, $40,093.77.
The Court of Claims having awarded nothing to the claimants for
loss and damage from the reduction by the United states of the
dimensions of piers and abutments, made subsequently to the making
of the contract for doing the mason work thereof, on the view that
it had before made an allowance for such loss and damage, this
Court, being of a different opinion, allowed $4,574.80
therefor.
Under § 1091 of the Revised Statutes and the ruling in
Tillson v. United States, 100 U. S.
43, interest cannot be allowed on the recovery, and
there is nothing in the special Act of August 14, 1876, c. 279, 19
Stat. 490, which authorizes the allowance of interest.
The facts are stated in the opinion of the Court.
Page 113 U. S. 244
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This case was before this Court at October term, 1881, and is
reported as
Harvey v. United States, 105 U.
S. 671. The history of it is there fully given, and, in
connection with the reports of it in 8 Ct.Cl. 501, 12 Ct.Cl. 141,
and 13 Ct.Cl. 322, what occurred in it prior to the decision of
this Court can be fully understood. The Court of Claims had
dismissed the petition of the claimants, filed August 30, 1876,
under the Special Act of Congress passed August 14, 1876, c. 279,
19 Stat. 490. This dismissal involved the rejection of two items
sued for in such petition: (1) labor done and materials furnished
by the claimants in constructing the coffer dams, and in performing
the work necessarily connected therewith and preliminary to the
masonry work for the piers and abutments, $75,000; (2) loss and
damages resulting to the claimants in consequence of the reduction
of the dimensions of the piers and abutments made subsequently to
the making of the contract, $33,600. The decision of the Court of
Claims in regard to item (1) was that the claimants had not shown
that the written contract did not express the intent of both
parties as to the coffer dams, and that even if that court were
satisfied that the claimants executed the contract in mistake of
their rights, there was no evidence that the defendants shared the
mistake. Its decision in regard to item (2) was that it would be
disposed to regard the case, on the facts, as one for equitable
interposition for the purpose of further inquiry and the
ascertainment of the rights of the parties in equity if it had
jurisdiction, but that the statute did not authorize it to
entertain those considerations, because, in the proceedings before
it, it could hear and determine only claims for labor done and
materials furnished by the claimants under their contract with the
defendants.
This Court held that the ruling of the Court of Claims in regard
to item (1) -- the coffer dams -- was erroneous, and that by the
actual contract between the parties the claimants were not to do
any of the work covered by the claim made by them under item (1),
and that the written contract must be reformed accordingly. As to
item (2), this Court held, that the Court of Claims had
Page 113 U. S. 245
placed too limited a construction upon the special act of
Congress, and that its power, under that act, extended to reforming
the contract in respect to permitting the officers of the United
States to materially vary the plans for the piers so as to
essentially change the obligations of the parties.
The decree of the Court of Claims was reversed, and the cause
was remanded, with directions to proceed in it according to law and
in conformity with the opinion of this Court.
The Court of Claims, 18 Ct.Cl. 470, proceeded to determine what
the claimants did in constructing coffer dams, and in pumping the
water from the space enclosed in them, and in excavations for the
preparation of the beds for the masonry. It held that as the
claimants had been notified at the outset that the defendants
expected them to do such work, and had on their part notified the
defendants that they would do it and would hold the defendants
liable for the cost and expense, it was their duty to keep and
produce accurate accounts thereof, and they could not prove such
cost and expense by the evidence of experts as to the value. But
the court gave to them the benefit of the testimony of experts
introduced by the defendants, and, on that testimony, awarded to
the claimants $16,250.95 for the labor done and materials furnished
by them in constructing coffer dams, and in performing the work
necessarily connected therewith and preliminary to the mason work
for the piers and abutments referred to in the contract, the same
being on account of item (1) above referred to. A judgment having
been entered against the United States for that sum, both parties
have appealed to this Court, the claimants contending that $75,000
should have been allowed for item (1) and the defendants that
nothing should have been allowed.
In regard to the view adopted by the Court of Claims that the
claimants have no right to rely on the testimony of experts
introduced by them, but should have kept and produced accounts of
the cost and expense of the work, we are of opinion that the
claimants cannot be deprived of reasonable compensation for the
work they did because the evidence they produce as to the proper
amount of such compensation is not of the
Page 113 U. S. 246
character referred to when it does not appear that such evidence
ever existed. If they produce the best evidence which is accessible
to them, and it enables the court to arrive at a proper conclusion,
that is sufficient. We think such evidence is found in the estimate
made by Mr. Abbott. Taking as correct the statement made by the
Court of Claims as to the work done by the claimants and the
defendants respectively in constructing coffer dams, in pumping, in
excavating, and in preparing the beds for the masonry, we arrive at
these results as to the work done by the claimants:
They made the coffer dam at Davenport abutment; that at pier 1;
part of that at pier 2 (it being completed by the defendants); all
but the inside dam of that at pier 4; one-third of that at the
upper rest of the draw; that at the pivot pier of the draw; that at
the lower rest of the draw, and that at the island abutment.
They did the pumping at the Davenport abutment; at pier 1; at
the pivot pier of the draw; at the lower rest of the draw, and at
the island abutment.
They made the excavation at the upper rest of the draw, and that
at the island abutment.
They prepared the bed for the masonry at the Davenport abutment,
at pier 1, at the upper rest of the draw, at the pivot pier of the
draw, at the lower rest of the draw, and at the island
abutment.
Applying to the above work the estimates of Mr. Abbott instead
of those of Messrs. Scott and Stickney, which the Court of Claims
adopted, we have these results, presuming that, as Mr. Abbott's
estimates are not made in separate specific items for dam, pumping,
excavating, and preparing bed, respectively, in any case except
that of the Davenport abutment, we have proceeded on the basis of
taking (in regard to pier 2, pier 4, and the upper rest of the
draw, where alone it was necessary), as and for Mr. Abbott's
separate specific items such proportion of his aggregate estimate
as the corresponding specific item in the corresponding aggregate
estimate of Mr. Scott bears to such last-named aggregate
estimate:
Page 113 U. S. 247
Davenport abutment(dam, pumping, and preparing bed). . . . . . .
$ 2,668.35
Pier 1 -- dam, pumping, and preparing bed. . . . . . . . . . . .
4,668.00
Pier 2 -- part of dam (the Court of Claims said that it had
no means of knowing how much work the defendants did, and
it deducted nothing therefor; we follow that suggestion,
and allow the claimants for all the dam) . . . . . . . . . . .
4,147.86
Pier 4 -- all but the inside dam (the Court of Claims said
it had no means of knowing how much work the defendants did,
and it deducted nothing therefor; we follow that suggestion,
and allow the claimants for all the dam) . . . . . . . . . . .
5,793.83
Upper rest of draw -- 1/3 of dam, of excavation, and of
preparing bed. . . . . . . . . . . . . . . . . . . . . . . . .
2,475.25
Pivot pier of draw -- dam, pumping, and preparing bed. . . . . .
4,842.56
Lower rest of draw -- dam, pumping, and preparing bed. . . . . .
3,698.19
Island abutment -- dam, pumping, excavation, and
preparing bed. . . . . . . . . . . . . . . . . . . . . . . . .
3,780.98
----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . .
$32,075.02
Mr. Abbott says that his estimates "are based upon cost of
material and labor, and intended to cover cost alone," that 40
percent is a "reasonable percent of advance for contingencies and
profits," and that, with unusual floods in the river, 40 percent
would be a minimum allowance. The evidence shows that the claimants
met with great difficulties because of floods and high water. Mr.
Van Wagenen's estimate is $36,000. We have concluded to add 25
percent to the $32,075.02 -- that is, $8,018.75 -- making in all
$40,093.77.
As to item (2), that relating to loss and damage resulting to
the claimants in consequence of the reduction of the dimensions of
the piers and abutments, made subsequently to the making of the
contract, the claimants have appealed because nothing was allowed
therefor. The Court of Claims held that if the
Page 113 U. S. 248
claimants were entitled to recover any sum in respect of that
item, the sum was $3,066.42. But that court was of opinion that in
its judgment in favor of the claimants, in the suit at law for
$42,306.49, it had, in allowing $22,238.49, under item 5, as
amended, "for handling, cutting, preparing, and setting stone for
and in the piers and abutments," allowed the following item:
Stone received and handled, not set, and ready as
backing to the 1,527 yards of the next preceding
item -- that is, the 1,527 yards of stone dressed, not
set -- an equal quantity,
viz., 1,527 cubic yards
at $11 per yard, less $2, which it would have cost
to set it. . . . . . . . . . . . . . . . . . . . . . . . . . . .
$13,743.00
That in such allowance it had allowed a profit of $8.65 a yard
on the 1,527 yards of undressed backing stone, being $13,208.55,
which had been paid to the claimants; that this was an allowance to
the claimants of profits on masonry not constructed by them, and
that, although it could not be recovered back, its payment must
operate as a bar to any further recovery for the same thing. We
find, however, that in the suit at law, item 3 claimed was "for
loss of profits incurred by the unlawful reduction of the
dimensions of the piers and abutments, $33,600," and that, in its
conclusions of law in the suit at law, the Court of Claims held
that the claimants were not entitled to any recovery under item 3.
Moreover, that court allowed the $13,743 referred to, as a part of
item 5, as amended (above quoted), for doing to the stone in
question everything but setting it, it being undressed stone; in
other respects, prepared. We are unable to perceive how such
allowance can be classed as an allowance for loss and damage from a
reduction of the dimensions of the piers and abutments. We think
the proper allowance for item (2) is this: 449 yards for the three
piers of the draw at $10 per yard = $4,490, and 10 3/5 yards for
pier 1 at $8 per yard=$84.80 -- total, $4,574.80.
The only remaining question is as to interest, which the Court
of Claims disallowed. We think that under the ruling
Page 113 U. S. 249
in
Tillson v. United States, 100 U. S.
43, interest cannot be allowed on either of the items in
question. We do not see anything in the special statute, Act of
August 14, 1876, c. 279, 19 Stat. 490, which takes the case out of
the rule prescribed by § 1091 of the Revised Statutes.
The judgment of the Court of Claims is affirmed for the full
amount of the award made to the claimants, and an additional amount
of $23,842.82 is allowed for the labor done and materials furnished
by the claimants in constructing coffer dams and in performing the
work necessarily connected therewith and preliminary to the mason
work for the piers and abutments referred to in their contract, the
same being an additional allowance on account of item (1) in their
petition filed August 30, 1876, and the said judgment is reversed
so far as respects item (2) in that petition, and the sum of
$4,574.80 is allowed for that item, and
This cause is remanded to the Court of Claims, with a
direction to enter judgment accordingly.