Where a contract for the construction of a public building,
giving the United States a broad power to suspend operations where
necessary in the opinion of its architects for the purpose or
advantage of the work, permitted the United States to make changes
of materials, and, besides providing against claims for damages on
account of such changes, declared generally that no claim should be
made or allowed to the contractor for any damage arising out of any
delay caused by the United States, held
that a delay
ordered to await an appropriation by Congress for substituted
materials and another in anticipation of the passage of a postal
law because of which the plans were altered would not support
claims for damages under the contract. P. 254 U. S.
54 Ct.Clms. 206 affirmed.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
This is an appeal from a judgment of the Court of Claims
sustaining a general demurrer to and dismissing the amended
Page 254 U. S. 84
The allegations of this amended petition, admitted by the
demurrer and essential to be considered, are:
The appellant, a corporation organized under the laws of New
York and engaged in the general building and construction business,
entered into a written contract with the United States for the
construction of a post office and courthouse building in New
Orleans, dated September 30, 1909, for which it was to be paid
$817,000, but its bond for performance was not approved until nine
days later, on October 9; on the day after the contract was signed,
the United States "ordered and directed" appellant to delay
ordering limestone (as specified in the contract) for the exterior
of the street fronts of the building
"for the reason, as stated, that a change was contemplated in
said exterior face stonework which would require an additional
appropriation by Congress;"
the appellant assented to a delay of two weeks only, but,
although protesting that further delay would result in its damage,
it refrained from purchasing limestone until August 19, 1910, when,
the required appropriation by Congress having been obtained, a
supplemental agreement was entered into by the parties to the
contract by which marble was substituted for limestone for the
street fronts of the building, the compensation of the appellant
was increased $210,500, and the time for completion of the building
was extended from April 1, 1911, to February 5, 1912; during this
delay, the contractor proceeded with other work under the contract,
and, prior to August 19, 1910, it had completed all the required
excavation, foundation, and structural steel work; after the
"modification and addition of August 19, 1910, to the contract
work," the appellant so proceeded with the performance of the
contract that, by February 1, 1912, the building was substantially
completed except the interior partitions, and thereupon the United
States, again over the protest of appellant, "ordered and directed"
a delay, which continued to August
Page 254 U. S. 85
24, 1912, until congressional legislation was obtained
authorizing the parcel post, whereupon the plans for the interior
arrangements of the building were adapted to that service, and the
building was completed.
The claim is wholly for damages occasioned by the two delays
thus described, and the question for decision is whether the terms
of the contract authorized the government to require such delays
without becoming liable to the contractor for damages which may
have been caused to it thereby.
The contract involved contains this provision:
"It is further covenanted and agreed that the United States
shall have the right of suspending the whole or any part of the
work herein contracted to be done whenever, in the opinion of the
architects of the building or of the supervising architect, it may
be necessary for the purpose or advantage of the work, and upon
such occasion or occasions, the contractor shall, without expense
to the United States, properly cover over, secure, and protect such
of the work as may be liable to sustain injury from the weather or
otherwise, and for all such suspensions the contractor shall be
allowed one day additional to the time herein stated for each and
every day of such delay so caused in the completion of the work,
the same to be ascertained by the supervising architect, and a
similar allowance of extra time will be made for such other delays
as the supervising architect may find to have been caused by the
United States, provided that a written claim therefor is presented
by the contractor within ten days of the occurrence of such delays;
provided, further, that no claim shall be made or allowed to the
contractor for any damages which may arise out of any delay caused
by the United States."
The contract further declares that the contractor
"[w]ill make any omissions from, additions to or changes in the
work or material herein provided for whenever
Page 254 U. S. 86
required by said first party . . . , and that no claim for
damages on account of such changes or for anticipated profits shall
be made or allowed."
It would be difficult to select language giving larger
discretion to the United States to suspend the performance "of the
whole or any part of the work" contracted for, or to change the
work or materials, than that here used. The provision for the
protection of the work shows that long interruptions were
contemplated, with a compensating extension of time for performance
provided for, and it is admitted that, eight days before its bond
was approved and it became bound, the appellant received its first
order to delay, for the reason that "a change was contemplated in
said exterior stonework which would require an additional
appropriation by Congress."
Such a delay as was thus ordered was certain to be an indefinite
and very probably a long continued one, but the appellant,
experienced contractor that it was, did not hesitate to submit to
it by permitting the approval of its bond, which rendered its
obligation under the contract complete, more than a week after
notice had been received of the order. Thus, with much the longest
delay complained of ordered and actually entered upon, the
appellant consented to be bound by the language quoted, which
vested such comprehensive discretion over the work in the
government. That this confidence of the contractor was not
misplaced is shown by the fact that this first delay resulted in
the substitution of marble for limestone for the street fronts of
the building and in a supplemental agreement by which it received
additional payments, aggregating $210,500, and an extension of ten
months for the completion of the work.
In addition to all this, it must be noted that the first
paragraph above quoted concludes with this independent proviso:
"Provided further, that no claim shall be made or
Page 254 U. S. 87
to the contractor
for any damages which may arise out
of any delay caused by the United States."
Here is a plain and unrestricted covenant on the part of the
contractor, comprehensive as words can make it, that it will not
make any claim against the government "for any damages
which may arise out of any delay
caused by the United
States" in the performance of the contract, and this is emphasized
by being immediately coupled with a declaration by the government
that, if such a claim should be made, it would not be allowed.
Such language, disassociated as it is from provisions relating
to "omissions from" the making of "additions to or changes in" the
work to be done or "material" to be used, cannot be treated as
meaningless and futile, and read out of the contract. Given its
plain meaning, it is fatal to the appellant's claim.
Men who take million-dollar contracts for government buildings
are neither unsophisticated nor careless. Inexperience and
inattention are more likely to be found in other parties to such
contracts than the contractors, and the presumption is obvious and
strong that the men signing such a contract as we have here
protected themselves against such delays as are complained of by
the higher price exacted for the work.
We are dealing with a written contract, plain and comprehensive
in its terms, and the case is clearly ruled in principle by Day
v. United States, 245 U. S. 159
245 U. S. 161
Carnegie Steel Co. v. United States, 240 U.
, 240 U. S.
-165, Dermott v.
2 Wall. 1, 69 U. S. 7
Chouteau v. United States, 95 U. S.
, 95 U. S. 67
The judgment of the Court of Claims dismissing the petition must