1. Where a party who, by contract, has a right to have and takes
security to have work finished by a certain day -- no penalty nor
any right to terminate to contract for noncompletion being reserved
-- permits the other side, after breach, to go on in an effort to
complete the contract, he has no right to compel him to complete it
in a manner which necessarily involves him in loss.
2. Where one party agrees to build an embankment for a certain
sum per cubic yard at such place as he shall be directed by
another, and the place selected by this other is such that there is
a natural settling of the batture or foundation while the
embankment is building, and a consequent waste and shrinkage of the
embankment, any system of measurement which does not allow for the
embankment which supplies the place of the settling is not a
correct one.
The case was thus:
Clark entered into a contract with the United States
to
furnish all the material and make 221,000 cubic yards of
embankment at the Navy Yard at Memphis, Tennessee, the embankment
to be made
in such manner and
places as should be
directed by the engineer and finished on or before the 15th of
July, 1847. The United States engaged that for the materials and
embankment made &c., according to the contract, there
should be paid, on account of all bills presented for the aforesaid
materials and
work delivered and executed, "eighteen cents
for every cubic yard." Ten percent was to be withheld from the
amount of all payments as collateral security, and a bond given to
secure performance.
Clark having brought suit in the Court of Claims to recover a
balance which he asserted to be due on this contract, that court
found:
"1. That he built 128,913.55 yards of the embankment, for which
he had been paid."
"2. That the system of measurements pursued by the officers of
the United States, and by which the said quantity of yards was
computed, consisted in measuring from a fixed base monthly, and
that the claimant at the time objected to the system,
contending
Page 73 U. S. 544
that he should be paid for the quantity of earth actually
deposited by him on the embankment."
"3. That there was a waste and shrinkage of the embankment while
building, and a natural settling of the
batture on which the
embankment was built, and that the loss occasioned thereby
necessarily was borne by the claimant
under the system of
measurements adopted."
"4. That this system was the one customarily used on the public
works of the government, and that there was no competent evidence
offered to show a contrary custom."
"5. That the officers of the government interfered with the
claimant in the execution of his work, compelling him to dump loose
earth where it was exposed to the direct currents of the river, and
that they also used the embankment as a roadway, to the loss and
injury of the claimant, but that all of such acts of which there
was sufficient evidence, occurred subsequent to the 15th day of
July, 1847, and when the claimant was in default in not having
performed his said agreement and completed the said
embankment."
And the court decided:
"That the contract was entire and not severable, and that by the
terms thereof the claimant could only recover for the embankment
completed and not for the quantity of earth deposited by him
therein, and that as a necessary and legal consequence thereof, all
loss by settling, shrinkage and the action of the currents of the
river was to be borne by the claimant and not by the United
States."
"That the claimant was not entitled to recover for the
interference of the defendants or their officers subsequent to the
15th July, 1847, the time when the work under his said contract was
to have been completed by the terms of his agreement."
From this decision Clark appealed.
Page 73 U. S. 545
MR. JUSTICE MILLER delivered the opinion of the Court.
1. Among the facts found by the court, it is stated that
"the officers of government interfered with claimant in the
execution of his work, compelling him to where it was exposed to
the direct current of the river, and that they also used the
embankment as a roadway to the loss and injury of the claimant; but
that all of such acts of which there was sufficient evidence,
occurred subsequent to the 15th day of July, 1847, and when
claimant was in default in not having performed his said agreement,
and completed said embankment."
And they declare the law applicable to this state of facts to
be
"that the claimant was not entitled to recover for the
interference of defendants or their officers subsequent to the 15th
July, 1847, the time when the work under his contract was to have
been completed by the terms of his agreement."
We are of opinion that this ruling was erroneous. The court
seems to have placed this right of the agents of the government to
use the embankment as a roadway, and to compel him to dump loose
earth into the current, by which it was carried away, both of which
are found to be to his loss and injury, upon the simple fact that
those injuries were inflicted after the day at which his contract
should have been completed. What relation there is between his
failure to do all the work by a certain day and the claim of the
government to subject him to these losses is not pointed out by the
court, nor is it perceived by us. The contract declared
Page 73 U. S. 546
no penalty for not completing the work by the 15th July. It does
not even authorize the government to forfeit the contract or to
terminate it. The utmost that can be claimed for this failure is
such damages as it may have sustained because the work was not
finished in time. For this the plaintiff had given a bond with
sureties. But if the government permitted him to go on in the
effort to complete the contract, it surely had acquired no right to
compel him to do it in a manner which necessarily involved him in
great loss, and to use the embankment as a roadway, to his further
injury.
2. The court finds that there was waste and shrinkage of the
embankment while building, and a natural settling of the batture on
which the embankment was built, and that the loss occasioned
thereby necessarily was borne by the claimant under the system of
measurement adopted. And it finds as matter of law that, the
contract being entire and not severable, claimant could only
recover for embankment completed, and that as a necessary
consequence all losses by settling and shrinkage and the action of
the current were to be borne by the claimant.
We take it for granted that the word "settling" in this finding
of the law is used for the settling of the batture. If this be so,
we think the court erred in this matter also. It must be evident,
if the foundation on which the embankment was built had settled
lower while the building was going on, that the embankment which
supplied the place of this settling was there and had become the
property of the government. If the system of measurement did not
enable the engineer to compute this accurately, they should have
done it approximately, or adopted some other system. It is clear
that for the embankment built by him and remaining he should be
paid, and if the quantity necessary to be built had increased by
this settling, it was the loss of the government, which had agreed
to pay by the cubic yard, and not by a certain sum for the job in
the aggregate.
3. A more difficult question is presented in reference to the
question of loss by the action of the current, and the
Page 73 U. S. 547
natural waste and shrinkage of the embankment while it was in
process of completion.
It is certainly true that if this embankment had been built on
dry land, the contract is of that nature that these losses would
fall on claimant, and the custom of measurement found by the court
probably was founded on such work. But we do not feel so clear that
in a contract like this, in which no place is mentioned for its
precise location, and in regard to which the contract obliges the
party to do the work "in such manner and at such places as shall be
directed by the said engineer or other authorized agent," the
government is only bound to pay for what earth remains visible, and
capable of being triangulated after the work is finished. If, for
instance, the engineer had ordered plaintiff to commence in the
middle of the river, and had caused him to dump the whole 221,000
yards in the midst of the current, where it could neither be seen
nor measured, we are of opinion that the quantity of dirt placed
there should be ascertained by some other mode and paid for. As the
contract is silent as to the place where the work was to be done,
as there are no facts found concerning the previous negotiations as
to location or character of work required, we have not sufficient
means of determining whether the application of the law to this
point by the court was correct or not. We must therefore dismiss
this, the most important branch of the case, with the foregoing
remarks, and as the judgment of the Court of Claims must be
reversed for the errors already mentioned, the court may on a new
trial find differently, or may find such acts as will enable us to
determine the law of the case if it shall become necessary.
Judgment reversed and the case remanded for further
proceedings in conformity with this opinion.
