While reasonable contracts for liquidated damages for delay are
not to be regarded as penalties and may be enforced between the
parties,
Sun Printing Assn. v. Moore, 183 U.
S. 642, one party must not prevent the other party from
completing the work in time, and if such is the case, even if the
subsequent delay is the fault of the latter, the original contract
cannot be insisted upon, and the liquidated damages are waived.
Where the original contract for government work provided for
liquidated damages for delay beyond a specified date but
supplemental contracts contained no fixed rule for the time of
completion, the government is limited in its recovery to the actual
damages sustained by reason of the delay for which the contractor
was responsible.
It is the English rule, as well as the rule in some of the
states, that where both parties are responsible for delays beyond
the fixed date, the obligation for liquidated damages is annulled,
and unless there was a provision substituting a new date, the
recovery for subsequent delay is limited to the actual loss
sustained.
Where the government has, by its own fault, prevented
performance of the contract, and thereby waived the stipulation as
to liquidated damages, it cannot insist upon it as a rule of
damages because it may be impracticable to prove actual
damages.
47 Ct.Cl. 489 affirmed.
The facts, which involve the construction of a contract for
government work and the rights and obligations of
Page 234 U. S. 237
the government and the contractor thereunder, are stated in the
opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
Suit was brought in the Court of Claims by the United
Engineering & Contracting Company to recover of the United
States upon a contract, dated the 15th of September, 1900, for the
construction within seven calendar months from the date of the
contract, namely, by April 15, 1901, of a pumping plant for Dry
Dock No. 3 at the New York Navy Yards, the work to be done in
accordance with certain plans and specifications annexed to and
forming a part of the contract. The claimant recovered a judgment
(47 Ct.Cl. 489), and the United States brings this appeal.
The principal question in the case involves the correctness of
that part of the judgment of the Court of Claims which permitted
the claimant to recover $6,000, which the government had deducted
as liquidated damages for 240 days' delay in the completion of the
work at the rate of $25 per day. To understand this question, the
terms of the contract and certain facts found by the Court of
Claims upon which the case is to be considered here must be had in
view.
The claimant commenced the construction of the work in
accordance with the contract, and after a portion thereof had been
done, the Navy Department concluded to connect Dry Dock No. 2 with
Dry Dock No. 3, and to build a single pumping plant for both docks.
To that end, on July 21,
Page 234 U. S. 238
1901, a supplemental contract was entered into with the United
States whereby the claimant agreed, for an additional sum, to
furnish all the material and labor necessary to carry out the
changes in and additions to the plant originally contracted for,
and to complete the work on or before October 15, 1901, to which
date the original contract was extended.
While the work was progressing under the original and
supplemental contracts, a controversy arose between the claimant
and the civil engineer in charge as to the proper method of
designing and constructing the floor of the pump well, and as to
the correct interpretation of the requirements of the
specifications concerning other matters, which resulted in
considerable delay and the cessation of work without the fault of
the claimant. On January 13, 1903, the chief of the Bureau of Yards
and Docks appointed a board to consider changes in the bottom of
the pump well, and the compensation to be paid therefor, of which
the claimant was advised by letter, and it was informed that it
would be expected to immediately resume work under its contract,
and push the same to completion with utmost dispatch, otherwise the
Bureau would annul the contract and take over the entire work. The
claimant thereupon promised to push the work to completion as
rapidly as possible, with which promise the Bureau appears to have
been satisfied.
On February 15, 1903, after the date fixed for the completion of
the work under the original and supplemental contracts, a second
supplemental contract was entered into, whereby the claimant agreed
to construct three hatches in the roof of the pump well for
additional compensation. Nothing was said in this contract as to
the time of completion, or as to delays under prior contracts.
The board of officers appointed to consider the design of the
floor of the pump well and other matters in controversy reported
February 16, 1903, that there were, as
Page 234 U. S. 239
conceded by the Bureau, errors in the design of the pump well
floor; that the work done and materials furnished by the claimant
complied with the specifications, and that it was not chargeable
with improper work or procedure, and the board estimated the
increased compensation for the new work, and made certain
allowances to the claimant. On March 7, 1903, a third supplemental
contract was entered into which embodied the changes found
necessary in the original plan for the construction of the floor of
the pump well, and the increased compensation to claimant therefor.
Nothing was said in this contract as to the date of the completion
of the work theretofore contracted for, nor as to prior delays.
The claimant proceeded under the contracts with reasonable
dispatch and without delay on its part until May 1, 1903, when the
work was ready for the installation of the machinery. Up to this
date, the claimant was delayed by the government in making changes
and alterations in the work, and in the use of the docks for
docking vessels while the work was going forward. No delays were
chargeable to the claimant up to October 15, 1901, the time fixed
for the completion of the work, nor thereafter to May 1, 1903.
During this period, due to the delays of the government, the
claimant incurred additional expenses for superintendence and
maintenance. During the period from May 1, 1903, to April 21, 1904,
the work was delayed by the claimant's subcontractors in not
getting the pump castings in place, for which the government was
not responsible. The claimant was also delayed for a few days
during said period by the government while using the docks for
docking vessels.
At the request of the Bureau, a civil engineer made a review of
the matter of delays, and in February, 1905, reported that,
notwithstanding the increased work required by the supplemental
agreements and the restrictions placed upon the work, the claimant
was up to time
Page 234 U. S. 240
on its contracts to May 1, 1903, but that, subsequent to that
date, and up to April 21, 1904, it had taken seven calendar months'
more time than was necessary. After the plant was completed, a
board was appointed to pass upon it, which recommended certain
deductions from the contract price for failure to strictly comply
with the specifications. On March 24, 1905, the civil engineer in
charge transmitted to the claimant a supplemental agreement
covering the deductions, which agreement contained a reservation
that nothing therein and no action taken under it should affect the
rights of either party in the matter of delay and the completion of
the work, or otherwise, except as specifically stated, which
supplemental agreement claimant refused to execute. In February,
1906, long after the plant had been accepted, the Bureau held the
claimant responsible for 240 days' delay at the rate of $25 per
day, or $6,000, as liquidated damages, and deducted the same from
the balance due under the contract, which the claimant accepted
under protest, and it subsequently filed with the Bureau a written
protest against the deductions for delays and disallowances. The
work was completed and accepted finally by the government on April
5, 1905.
Notwithstanding the delays of the government, the Court of
Claims found that the claimant, with reasonable diligence, could
have completed the plant for tests during the period by about
September 21, 1903, and found that, if it was chargeable for the
delay according to the liquidated damage clause of paragraph 12 of
the specifications of $25 per day, the deduction would be $750 less
than the government had deducted. But it found that, if the
claimant was only liable for actual damages, and it did so
determine, since there was no evidence as to such damages, the
claimant was entitled to recover the entire amount deducted.
In the original contract, the specifications provided,
Page 234 U. S. 241
paragraph 12, for liquidated damages for delay, as follows:
"12. Damages for delay. -- In case the work is not completed
within the time specified in the contract, or the time allowed by
the Chief of the Bureau of Yards and Docks under paragraph 11 of
this specification, it is distinctly understood and agreed that
deductions at the rate of $25 per day shall be made from the
contract price for each and every calendar day after and exclusive
of the date within which completion was required up to and
including the date of completion and acceptance of the work, said
sum being specifically agreed upon as the measure of damage to the
United States by reason of delay in the completion of the work, and
the contractor shall agree and consent that the contract price,
reduced by the aggregate of damages so deducted, shall be accepted
in full satisfaction for all work done under the contract."
Under the provisions of this paragraph, if there had been
nothing subsequently changing the rights of the parties, and the
delay had resulted from the failure of the claimant to complete the
work within the time specified, the deduction at the rate of $25
per day might have been made by the United States as liquidated
damages. This was the sum estimated and agreed upon between the
parties as the damages which might be regarded as sustained by the
government in event of the breach of the claimant's obligation to
complete the work within the stipulated time. Such contracts for
liquidated damages, when reasonable in their character, are not to
be regarded as penalties, and may be enforced between the parties.
See Sun Printing & Publishing Ass'n v. Moore,
183 U. S. 642, in
which the matter is fully discussed.
The precise question here is whether, when the work was delayed
solely because of the government's fault beyond the time fixed for
its completion, and afterwards the work was completed without any
definite time being fixed in
Page 234 U. S. 242
which it was to be done, the claimant can be charged for the
subsequent delays for which he was at fault by the rule of the
original contract, stipulating liquidated damages, or was that
stipulation waived by the conduct of the government, and was it
obligatory upon it, in order to recover for the subsequent delays,
to show the actual damages sustained. We think the better rule is
that, when the contractor has agreed to do a piece of work within a
given time, and the parties have stipulated fixed sum as liquidated
damages, not wholly disproportionate to the loss for each day's
delay, in order to enforce such payment the other party must not
prevent the performance of the contract within the stipulated time,
and that, where such is the case, and thereafter the work is
completed, though delayed by the fault of the contractor, the rule
of the original contract cannot be insisted upon, and liquidated
damages measured thereby are waived. Under the original and first
supplemental agreements, the claimant knew definitely that he was
required to complete the work by a fixed date. Presumably the
claimant had made its arrangements for completion within the time
named. Certainly the other contracting party ought not to be
permitted to insist upon liquidated damages when it is responsible
for the failure to complete by the stipulated date; to do this
would permit it to recover damages for delay caused by its own
conduct.
It may be that damages were sustained by the failure to carry
out the subsequent agreement. But the government, as well as the
claimant, saw fit to go on with the work with no fixed rule for the
time of its completion, so that it be reasonable, and the
government required no stipulation in the second and third
supplemental contracts as to damages in a fixed and definite sum
for failure to complete the work as required. Under such
circumstances, we think it must be content to recover such damages
as it is able to prove were actually suffered.
Page 234 U. S. 243
This conclusion is in accord with the rule of the English cases.
In
Dodd v. Churton, L.R., 1 Q.B. 1897, 562, 568, Chitty,
L.J. said:
"The law on the subject is well settled. The case of
Holme
v. Guppy, 3 M. & W. 387, and the subsequent cases in which
that decision has been followed, are merely examples of the well
known principle stated in Comyns' Digest, Condition L(6), that,
where performance of a condition has been rendered impossible by
the act of the grantee himself, the grantor is exonerated from
performance of it. The law on the subject was very neatly put by
Byles, J., in
Russell v. Bandeira, 13 C.B.(N.S.) 149. This
principle is applicable not to building contracts only, but to all
contracts. If a man agrees to do something by a particular day, or,
in default, to pay a sum of money as liquidated damages, the other
party to the contract must not do anything to prevent him from
doing the thing contracted for within the specified time."
The same rule was followed with approval by the New York Court
of Appeals in a well considered case,
Mosler Safe Co. v. Maiden
Lane S.D. Co., 199 N.Y. 479, in which it was held that, even
where both parties are responsible for the delays beyond the fixed
time, the obligation for liquidated damages is annulled and, in the
absence of a provision substituting another date, it cannot be
revived, and the recovery for subsequent delays must be for actual
loss proved to have been sustained.
This principle is applicable here; the conduct of the
government's agents had caused the delays up to May 1, 1913, and
the subsequent delays, though chargeable to the claimant, would
only give rise to a claim for damages measured by the actual loss
sustained.
Mosler Safe Co. v. Maiden Lane S.D. Co., supra.
We think the application of this rule is not changed by the
difficulty suggested, that it might be impracticable to prove
actual damages. This fact, if such it be, would not permit the
government,
Page 234 U. S. 244
by its own fault, to prevent the performance of the contract and
to do that which amounts to a waiver of the stipulation, and then
insist upon it as a rule of damages. We think the Court of Claims
was right upon this principal branch of the case.
There are certain minor assignments of error to the conclusions
and judgment of the Court of Claims. The government was held
responsible for the extra cost of enclosing certain machinery in
casing necessitated by its building a plank walk across the top of
the pipe in the pumping plant to protect its workmen from high
speed gearing. The Court of Claims found that this expense was made
necessary by the government, and allowed for it. We find no error
in this. Also, as to the assignment of error to the judgment of the
Court of Claims under finding XI, awarding damages for repairs made
necessary by the breakage of certain pipes caused by sudden
increase in the pressure in the salt and fresh water systems in the
Navy Yard, the Court of Claims found that these breaks were caused
by the government without notice to the claimant, and without its
fault. We find no error in the judgment of the Court of Claims
awarding damages under this finding.
It follows that the judgment of the Court of Claims is
Affirmed.