Modern tendencies to depart from the strict letter in
discovering intent do not alter the principle that, within the
scope of his undertaking, a party contracting assumes the risks of
intervening obstacles.
A contractor agreed with the United States to furnish, at
specified rates, such labor and material in place as might be
necessary to complete a canal and locks, already built in part, the
total payment not to exceed a sum fixed in acts of Congress
authorizing the contract. The government had erected a bulkhead,
deemed of sufficient height, to safeguard the work from river
floods; the contract, however, did not guarantee protection,
referring to freshets and other natural causes merely as grounds
for time extension. The contractor had been required to base his
proposal upon personal investigation, and the specifications
provided that he should be held responsible, without expense to the
government, for the preservation and good condition of the work
already in place, and that to be added from time to time under the
contract, until the contract should be terminated or the whole work
turned over in a completed condition as required. To protect the
work from an extraordinary flood which exceeded the bulkhead, the
contractor necessarily expended work and materials in building new
structures, for which he sought reimbursement in the Court of
Claims.
Held that the contract was for the completion of
the works, and that the cost of protecting them from floods in the
meantime was within the contractor's undertaking.
48 Ct.Clms. 128; 50
id. 421, affirmed.
Page 245 U. S. 160
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit by a contractor to recover for work and material
furnished to build a bulkhead and temporary dams in order to
protect a canal and locks at the cascades of the Columbia River
against an extraordinary flood. The facts of the case are simple.
An Act of Congress of July 13, 1892, c. 158, 27 Stat. 109,
appropriated $326,250 for continuing an improvement at the cascades
that had been under way for a number of years, and authorized a
contract for completing it, to be paid for as subsequent further
appropriations, not exceeding $1,410,250, should be made. On
December 27, 1892, the claimants made a contract to "furnish such
labor and material in place," etc., "as may be necessary to
complete" the canal and locks at certain rates, the total of all
payments not to exceed $1,745,500, the amount of the two
just-mentioned sums. The contractor was required in the usual way
to base his proposal upon his personal investigation and the
specifications provided in reiterated words that the contractor
would
"be held responsible, without expense to the government, for the
preservation and good condition of all the work now in place, and
such as he may from time to time under this contract put in place,
until the termination of the contract, or until the whole work is
turned over to the government in a completed condition, as
required."
The government had built a bulkhead to protect the
Page 245 U. S. 161
work 142 feet high, which was the height of the projected work
and was supposed to be high enough for floods, but in May and June,
1894, the flood in question rose three feet above it, necessitating
the extra work now sued for, and leading to a change in the project
so as to add six feet to the height of the protecting dam. The
government, however, had not guaranteed that the bulkhead should be
sufficient or that it would protect the work while going on. On the
contrary, the contract contemplated, in terms, that the contractor
might be prevented from commencing or completing the work by
freshets or other forces or violence of the elements, and provided
in that event that the representative of the United States might
allow such additional time as, in his judgment, should be just and
reasonable, but gave no other relief.
One who makes a contract never can be absolutely certain that he
will be able to perform it when the time comes, and the very
essence of it is that he takes the risk within the limits of his
undertaking. The modern cases may have abated somewhat the
absoluteness of the older ones in determining the scope of the
undertaking by the literal meaning of the words alone.
The
Kronprinzessin Cecilie, 244 U. S. 12,
244 U. S. 22.
But when the scope of the undertaking is fixed, that is merely
another way of saying that the contractor takes the risk of the
obstacles to that extent.
Carnegie Steel Co. v. United
States, 240 U. S. 156,
240 U. S. 164;
Globe Refining Co. v. Landa Cotton Oil Co., 190 U.
S. 540,
190 U. S.
543-544. There can be no doubt of the scope of the
undertaking in this case. If the unqualified agreement to complete
the work were not enough by itself,
Chicago, Milwaukee &
St. Paul Ry. Co. v. Hoyt, 149 U. S. 1,
149 U. S. 14-15,
the provisions to which we have referred would make it plain.
Freshets were contemplated as possible, but were not allowed to
qualify the absoluteness of the contractor's promise beyond the
possibility that they might be considered in the discretion of the
other party on the question
Page 245 U. S. 162
of time. It is impossible for us to say that, if the flood had
destroyed the work that the claimants had added and for which they
had received nearly $300,000, they would have been excused under
the contract from replacing what they had done.
It follows without the need of referring to clauses in the
contract excluding claims for extra work that, if the claimants put
up temporary defenses against the water, even though not bound to
do so by the contract, they were doing what it was for their own
interest and safety to do, and that, in the absence of an actual
contract to pay for it by the other party, there is no ground for
shifting the cost on to the United States. The arguments that are
based by the claimants upon public documents outside of the record
do not seem to us to raise a doubt that the construction adopted
and conclusion reached by the Court of Claims were correct.
Judgment affirmed.
