1. In the performance of a contract with the United States for
the excavation of a channel to specified depths, under attached
specifications describing the materials to be removed as clay,
sand, gravel, and boulders in unknown proportions, deposits
consisting largely of limestone were encountered, the removal of
which entailed an expense per cubic yard much exceeding the price
fixed by the contract
Page 256 U. S. 12
for the materials therein specified. The engineer officer in
charge of the work arbitrarily classified these deposits with the
materials described by the specifications, ignored the protest of
the contractors and their request that a new price be fixed
therefor, and required them to proceed under threats that otherwise
they would be declared in default and the work taken from them and
completed, and the cost recouped from the retained percentages of
their pay already earned and through legal proceedings against
themselves and their sureties. Held
that clauses in the
contract making decisions of the officer as to quantity and quality
of work final, requiring the contractors to observe his
instructions, and denying an claim for modification of the work not
agreed to, or expressly required, in writing were inapplicable, and
that the contractors were entitled to recover from the United
States the cost of excavating the material not covered by the
contract. P. 256 U. S.
2. Contractors with the United States held
recover the amount of a loss due to delays of the engineer in
charge in locating the places where they should work. P.
256 U. S.
54 Ct.Clms. 119 affirmed.
Appeal from a Judgment against the United States for loss
suffered by contractors in performing work not covered by their
contract, under the arbitrary exaction of the official in charge,
and for loss due to his delay in locating the places where work was
to be done. The facts are stated in the opinion.
Page 256 U. S. 14
MR. JUSTICE McKENNA delivered the opinion of the Court.
April 14, 1919, the Court of Claims rendered a judgment against
the United States in favor of L. P. & J. A. Smith (appellees,
and we shall so refer to them) for the sum of $119,304.27. To
review that judgment, this appeal is prosecuted.
The appellees were a partnership doing business at the times
herein stated under the firm name of L. P. & J. A. Smith.
In response to an advertisement and after the submission of
proposals for work at the mouth of the Detroit River, a contract in
writing was entered into December 31, 1892, by O. M. Poe, Colonel,
Corps of Engineers, U.S. Army, and appellees, by which the latter
agreed to excavate a ship channel 20 and 21 feet deep, located in
section 8 of the Detroit River, in accordance with specifications
attached to the contract and made a part thereof. They were to
receive in full compensation for their work the sum of 18 cents per
cubic yard of excavation, scow measure.
The material to be removed was specified to consist "of sand,
gravel, and boulders, all in unknown quantities."
In the season of 1894, there was discovered a natural bed of
limestone rock within the boundaries of the excavation called for
by the contract which was not provided for by the contract. For the
removal of this limestone, the United States advertised for
Page 256 U. S. 15
The L. P. & J. A. Smith Company, a corporation of Ohio, and
a successor in interest to L. P. & J. A. Smith, bid on the
work. The bid was accepted, and a contract was entered into
November 9, 1894, by which that company agreed to remove the rock
and other material at the price of $2.24 per cubic yard of
excavation, bank measure. The contract was completed on or about
June 16, 1895.
The contract of December 31, 1892, was extended from time to
time by Col. Lydecker, the engineer in charge of the work, he
having succeeded Colonel Poe, to July 1, 1897. In that year, he
ordered appellees to work at particular spots toward the northerly
end of section 8 at certain designated shoals which had been
excavated under the contract of November 9, 1894, with the L. P.
& J. A. Smith Company.
And certain other officers, one an assistant engineer, another a
sub-inspector, in charge of the work insisted upon locating for
appellees the points where dredging was to be done. *
The material or a large part of the material to be removed from
those points was limestone rock or limestone bedrock. Appellees
protested and asked for the fixing of an extra price for doing the
work. This was refused, and they were told that, if they did not
remove the same, they would be declared defaulting contractors;
that the work would be taken from them, done and charged to them,
and be paid for from the retained percentages for work already
performed, and, if the percentages were not sufficient for that
purpose they, appellees, and their bondsmen, would be proceeded
against. No other officer or officers so told appellees or insisted
that all the material to be removed was day, gravel and boulders.
A large part of the material arbitrarily stated to be clay,
gravel, sand, and boulders was in fact limestone
Page 256 U. S. 16
rock and limestone bedrock, and was not the material specified
in the contract.
The quantity of material excavated as thus required, and that
required by the contract, the findings estimate in detail, and the
cost of its excavation, in the sum of $116,760.61, from which was
deducted the sum of $5,174.64 that had been paid appellees, leaving
due to them $111,585.97. It is found besides that delays caused by
the engineer in charge resulted in a loss to the appellees of
$7,718.30. For these two sums, judgment was rendered.
The Court of Claims, in a brief memorandum, summarized the
elements of liability against the United States, concluding as
follows: "We think the right of plaintiffs [the appellees] to
recover the price for the work done by them is indisputable."
The United States adduces against the conclusion certain
provisions of the specifications, the latter being, as we have
seen, part of the contract.
They are too long to quote or even summarize. They are to the
effect that the decision of the engineer officer in charge as to
quality and quantity of work was final, and that his instructions
were required to be observed by the contractor. And further, that
modifications of the work in character and quality, whether of
labor or material, were to be agreed to in writing, and, unless so
agreed to or expressly required in writing, no claim should be made
The contention overlooks the view of the contract entertained by
Colonel Lydecker and the uselessness of soliciting or expecting any
change by him. His conduct, to use counsel's description, "though
perhaps without malice or bad faith in the tortious sense," was
repellant of appeal or of any alternative but submission, with its
consequences. And, we think, against the explicit declaration of
the contract of the material to be excavated and its price. The
contract provided, in response to advertisements
Page 256 U. S. 17
and in fulfillment of bids, for the excavation of a ship channel
20 and 21 feet deep, and that "the material to be removed consists
of clay, sand, gravel, and boulders, all in unknown proportions."
To these explicit provisions and their contractual force, we may
add the judgment and conduct of Colonel Poe, the first engineer
officer in charge of the work. He realized immediately, when a bed
of limestone rock was encountered, it was not the material stated
in the contract, and, without hesitation, entered into another
contract concerning it, and at a price of significant contrast --
18 cents per cubic yard, scow measure, being the price of the first
contract, $2.24 per cubic yard of excavation, bank measure, being
the price of the second contract.
We think the case is within the principle of Hollerback v.
United States, 233 U. S. 165
Christie v. United States, 237 U.
, United States v. Spearin, 248 U.
, and United States v. Atlantic Dredging
Co., 253 U. S. 1
We concur, therefore, with the declaration of the Court of
Claims that "the right" of the appellees "to recover the price for
the work done by them is indisputable," including the loss to them
while waiting for the engineer "to locate their work."
MR. JUSTICE DAY and MR. JUSTICE McREYNOLDS took no part in the
* Additional finding upon the mandate of this Court.