Where a public building contract provides that no claim shall be
made or allowed for damages which may arise out of any delay caused
by the government, damages due to delays caused by the government's
suspension of the work cannot be recovered even though suspensions
were not expressly authorized by the contract. So held
where the contractor acquiesced in the first suspension and
thereafter made no protest, nor any claim, until the suit was
brought. P. 258 U. S.
55 Ct.Clms. 533 affirmed.
Appeal from a judgment of the Court of Claims rejecting a claim
for damages arising from suspension of work under claimants'
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Philadelphia Steam Heating Company made a contract with the
United States, approved April 5, 1897, to furnish and install the
boiler plant, heating system, and other apparatus for the post
office building at Washington, then under construction. The price
fixed was $111,373, the time for completion 250 working days, with
a forfeiture of $100 a day for each day's delay. The contract
provided that, for each day's delay "in the execution of the work"
caused "through any fault" of the government,
Page 258 U. S. 121
one additional day was to be allowed for its completion, but
"that no claim shall be made or allowed for damages which may arise
out of any delay caused by the" government. The right to make
additions to or omissions from the work was reserved to the United
States, allowance therefor to be determined by the supervising
architect, and it was provided "that no claim for damages on
account of such changes or for anticipated profits shall be made or
The work was entered upon promptly both at the factory in
Philadelphia and at Washington. About a month thereafter, the
Secretary of the Treasury requested suspension of certain work in
view of contemplated changes, and notified the contractor that he
would be entitled to "one day additional for each day's delay
caused by the government, as provided for by your contract."
Radical changes in plan were made. There was a suspension for 10
months of part of the work which had to be done in the building,
and later another suspension was ordered. The whole work was not
completed until eighteen months after the expiration of the
contract period. This delay was attributable mainly, if not wholly,
to the government. To recover for the expenses and loss which
resulted from this delay, as well as for extra work, this suit was
brought in the Court of Claims. Judgment was entered for the value
of the extra work, but the court, following its decision in
Merchants' Loan & Trust Co. v. United States,
Ct.Cls. 117, denied recovery for damages due to the suspension.
The appeal to this Court was taken before our decision in
Wells Bros. Co. v. United States, 254 U. S.
. There, the contract gave to the United States in
terms "the right of suspending the whole or any part of the work."
The absence of such a provision in the contract here under
consideration is mainly relied upon to distinguish this case. But
here, as there, the contract provided
Page 258 U. S. 122
that no claim shall be made or allowed for any damages which may
arise out of any delay caused by the United States. Suspension by
the government is one of several possible causes of delay, and not
an uncommon one.
Moreover, when the contractor was first directed to suspend
work, he replied:
"We are not objecting to this, but we desire to call the
department's attention to the matter in order that we may be
entitled to extra time should we be unable to complete the work
within the time named in our contract."
So far as appears, no protest was ever made against the
prolonged suspension, nor was there any claim made of a right to
damages arising therefrom until it was asserted in this suit.