1. Stipulations in construction contracts obliging the
contractor to pay liquidated damages for each day's delay are
appropriate means of inducing due performance and of affording
compensation in case of failure to perform, and are to be given
effect according to their terms. P. 261 U. S.
2. Where a public building contract obliged the contractor to
pay liquidated damages for each day's delay not caused by the
government, and delays were attributable to both parties,
that the government was entitled to the damages for
the part of the delay specifically found by the Court of Claims to
have been due wholly to the fault of the contractor.
3. Where defects in a building result partly from the character
of materials expressly required by the building contract and partly
from the fault of the contractor, the fact that the contractor
pointed out the unsuitability of the material specified and
suggested a substitute, after the contract was made, does not
relieve him of the obligation to repair the defects under his
guaranty of the condition of the work for a stated period after its
acceptance. P. 261 U. S.
57 Ct.Clms. 7 affirmed.
Appeal from a judgment of the Court of Claim sustaining, in part
only, the appellant's claim for moneys due under a building
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
On August 30, 1905, claimant's intestate entered into a contract
with the United States to install the interior finish
Page 261 U. S. 487
in the custom house building then being constructed in New York
City pursuant to Act of March 2, 1899, c. 337, 30 Stat. 969. The
contract price was $1,037,281.69, and the time for completion of
the work October 15, 1906. Before it had been completed, but after
that date, a supplemental agreement was made which provided for
additional work, increased the contract price $200,041.01, and
extended the time for completion to June 1, 1907. The work was not
completed until 121 days after that date. The government insisted
that only 12 days of this delay were chargeable to it, and that the
contractor was liable in liquidated damages for $420 for each of
the remaining 109 days' delay. It therefore deducted $45,780 from
the amount otherwise payable to the contractor.
To recover that sum (and others), the contractor brought this
suit in the Court of Claims. He contended that, since the
government had caused some of the delay, the provision for
liquidated damages became wholly inapplicable and was
unenforceable, and that, since the government had failed to prove
actual damage, it was not entitled to any damages whatsoever. The
court found that, of the 121 days of delay, only 61 days were
chargeable to the contractor, and that the remainder were caused by
the government, after the date of the supplemental contract. It
accordingly gave the claimant judgment (among other things) for
$20,160, being that part of the amount withheld which represented
the delay in excess of 61 days, 57 Ct.Cls. 7. The case is here on
claimant's appeal. Whether on these facts the provision for
liquidated damages governs is the main question for decision.
The original contract provided that the contractor "shall be
allowed one day, additional to the time herein stated, for each and
every day of . . . delay [that may be caused by the government],"
"that no claim shall be
Page 261 U. S. 488
made or allowed to [the contractor] for any damages which may
arise out of any delay caused by [the government]," and that the
contractor shall pay $120 for each and every day's delay not caused
by the United States. The supplemental contract provided that the
extension then granted was in lieu of all additional time which had
accrued to that date "on account of delays by the government." The
construction of the contract and the findings of fact are clear. If
the provision for liquidated damages is not to govern, it must be
either because, as matter of public policy, courts will not, under
the circumstances, give it effect (even as a defense) or because,
in spite of the explicit finding, no day's delay can, as matter of
law, be chargeable to the contractor where the government has
caused some delay. Neither position is tenable.
The provision is not against public policy. The law required
that some provision for liquidated damages be inserted. Act of June
6, 1902, c. 1036, § 21, 32 Stat. 310, 326. In construction
contract,s a provision giving liquidated damages for each day's
delay is an appropriate means of inducing due performance, or of
giving compensation, in case of failure to perform, and courts give
it effect in accordance with its terms. Sun Printing &
Publishing Association v. Moore, 183 U.
, 183 U. S.
-674; Wise v. United States, 249 U.
; J. E. Hathaway & Co. v. United
States, 249 U. S. 460
249 U. S. 464
The fact that the government's action caused some of the delay
presents no legal ground for denying it compensation for loss
suffered wholly through the fault of the contractor. Since the
contractor agreed to pay at a specified rate for each day's delay
not caused by the government, it was clearly the intention that it
should pay for some days' delay at that rate, even if it were
relieved from paying for other days, because of the government's
action. If it had appeared that the first 61 days' delay had been
Page 261 U. S. 489
to the contractor's fault, and the government had caused the
last 60 days' delay, there could hardly be a contention that the
provision for liquidated damages should not apply. Here, the fault
of the respective parties was not so clearly distributed in time,
and it may have been difficult to determine, as a matter of fact,
how much of the delay was attributable to each. But the Court of
Claims has done so in this case. Its findings are specific and
conclusive. Compare United States v. Bethlehem Steel Co.,
205 U. S. 105
205 U. S. 121
Carnegie Steel Co. v. United States, 240 U.
, 240 U. S.
-164. The case is wholly unlike United States v.
United Engineering Co., 234 U. S. 236
upon which claimant relies. The question there was one of
construction. The lower court found as a fact that, but for the
government's action, the work would have been completed within the
contract period, and this Court construed the provision for
liquidated damages as not applicable to such a case. Here, the
question is not properly one of construction.
It is also assigned as error that the court sustained a
deduction by the government from the contract price of the amount
paid by it for certain repairs. The contract contained a guarantee
by the contractor of the condition of the work for one year after
acceptance. The specifications provided for window sashes of solid
oak. After the contract had been signed, and before putting in the
windows, the contractor called the architect's attention to the
fact that solid oak is not well suited for a damp climate and
locality, like that of lower New York City, and he suggested a
modification of the specifications to avoid warping. The suggestion
was not accepted. By reason, in part, of warping which occurred
within a year after acceptance of the work, extensive repairs
became necessary. He was requested by the government to make the
repairs, but refused to do so. Then the government had them made by
others. The Court of Claims found that,
Page 261 U. S. 490
owing partly to the fact that oak is not suitable to the climate
"to the further facts that the materials of some of the sash
were not of the best quality, nor thoroughly seasoned, and that the
workmanship in their construction and installation was in some
instances not of first-class character, there occurred . . . much
warping, . . . which required extensive repairs of an expensive
The contractor contends that the government's refusal to adopt
the modification proposed relieved him from the obligation under
the guarantee. The contention is unsound. He entered into a
contract plain and comprehensive in terms. There was no finding of
mutual mistake, or of fraud, misrepresentation, or concealment on
the part of the government or any of its officers or employees.
Under such circumstances, the contractor cannot be relieved from an
obligation deliberately assumed. Wells Brothers Co. v. United
States, 254 U. S. 83
MacArthur Bros. Co. v. United States, 258 U. S.
. If the warping had been caused entirely by the
adoption of wood unsuitable to the climate, it may be that, as a
matter of construction, the guaranty would not extend thereto. But
the findings do not present such a case. The case is wholly unlike
United States v. Spearin, 248 U.
; United States v. Atlantic Dredging Co.,
253 U. S. 1
United States v. Smith, 256 U. S. 11