such error having been made. The addition al cost to the contractors amounted to $59.30." (Finding IX.)

It was discovered during the progress of the work that the soil at the bottom of the dock was of a very tenacious and unyielding character, so as to be difficult of penetration for piles driven by the ordinary drop-hammer process, and was so reported by the contractors.

use in the ashlar of this dry dock; and thereupon, to wit, on the 29th day of August, 1894, the contractors were notified of this decision of the Bureau of Yards and Docks, and were required to furnish other and better sandstone. From this decision of the chief of the Bureau of Yards and [130] Docks the *claimants appealed to the Secretary of the Navy, who concurred in the opinion of the said chief of the Bureau of Yards and Docks, and concurred in his order requiring a different and better sandstone. The tests and analyses of said Tenino sandstone were made from samples furnished to the Bureau of Yards and Docks by the contractors and by the commandant of the Puget Sound Station. The delay in arriving at the ultimate determination to require a better quality of sandstone, which was reached on the 24th of August, 1894, was partly caused by the fact that the claimants were in correspondence with the Secretary of the Navy in an endeavor to persuade him to accept said Tenino sandstone. The tests and analyses of said stone, as above recited, were made promptly." And it was found by the court: "The amount of Tenino sandstone quar-view of these facts, the Secretary of the ried, cut, and delivered was 2,349 cubic feet, amounting, at 65 cents a cubic foot, to $1,526.85.

It was stated, on the 15th of February, 1894, that penetration was from 8 to 10 feet, and while the Bureau of Yards and Docks thought this might be satisfactory, yet the bureau also thought that the piles should be driven, if possible, 15 feet below the bottom of the excavation. There was no claim made by the contractors at that time that they could not reach a greater depth than theretofore reported. After some correspondence the bureau telegraphed definite instructions to accept no piles driv en to a less depth than 15 feet. The contractors made no attempt to show that this could not be done, but employed experts to give an opinion, after tests upon the piles driven, that the bureau was wrong. "In

Navy, on the 21st day of May, 1894, and upon the occasion of a visit to said dock by that official, verbally authorized and direct"The claimants had also, before receiving ed the contractors to sink the piles by a notice of the rejection of the Tenino sand-method known as the water-jet system; that stone by the Bureau of Yards and Docks, is to say, by forcing water into the ground caused to be quarried and cut, but not trans- by means of a sink pipe operated by the ported, 7,280 cubic feet, amounting, at 65 hydraulic system, thus forming a hole into cents a foot, less the cost of transportation, which the pile is set. The contractors ob10 cents a foot, 54 cents a foot, to $3,967.- jected to and protested against this method 60, making a total for stone actually quar- of driving the piles upon the ground that it ried and cut, and part of which was deliv- destroyed and weakened the bottom of the ered, of $5,494.45. That sum, however, has pit, and subsequently a board of naval exnot been paid by the claimants to the own-perts was convened for the purpose of reers of the said Tenino stone quarry, nor does it appear that any action or suit has ever been brought against the said claimants for said sum of money.

"The total amount expended by the claimants for furnishing, delivering, and cutting the stone which actually went into the construction of said dry dock from Sucia island and Dog Fish point, as afore said, was $33,556.23.

porting upon the advisability of sinking the
piles by this system. The board reported
adversely to this system, and recommended
that the piles be driven in accordance with[132]
the provisions of the contract and by the
ordinary drop-hammer process, the piles to
be driven to a minimum of 6 feet. The re-
maining 696 piles, which were driven after
this report by the drop-hammer process,
reached an average depth of 10 feet 4

"If they had been allowed to furnish Te-inches."
nino stone they could have done so at a cost
of $17,948.80. The additional cost, there-
fore, to the claimants of furnishing the stone
which they did furnish, over and above
what it would have cost them to furnish the
Tenino stone, is the difference between the
two sums last named, amounting to $15,-
607.43." [35 Ct. Cl. 514.]

In the execution of the contract claim-
[131]ants made a mistake in the cutting off of
certain piling, which mistake could be cor-
rected in two ways. One of the ways was
accepted by the Navy Department and exe-
cuted by the claimants as required, but
claimants were also required to make some
additions which "had no relation to the er-
ror which had been made in the original
construction of the sheet piling, but would
have been required irrespectively of any

The same board of naval experts, under the direction of the Secretary of the Navy, passed upon the expense caused the contractors by the use of the water-jet system, and recommended an allowance of $1,156.76. The allowance was approved by the Secretary and a voucher drawn therefor; "but when the same came before the Auditor for the Navy Department for audit and before the Comptroller of the Treasury for payment, it was refused, upon the ground that the services required were not extra and additional, but that they were such as the contract contemplated, and upon the further ground that the Secretary of the Navy, under the specific requirements of § 7 of the original contract, had no power or authority to authorize or direct the incurring of this expense unless the cost of the

184

same was first ascertained by a board of officers provided for that purpose before the expense was incurred, and reduced to writing, as required by the 7th clause of the contract. Whereupon the Secretary of the Navy procured the reference of this item to this court under and pursuant to the provisions of Revised Statutes, § 1063." (Finding XI.)

The reasonable value of the work set forth and described in the finding is $1,156.76.

The foregoing statement of facts is applicable to the appeal of the United States. The findings applicable to the appeal of claimants (No. 128) are given in the opinion.

Mr. George A. King argued the cause, and, with Mr. Rufus H. Thayer, filed a brief for Barlow & Co.:

The decision of the engineer as to quality was final.

United States v. Shrewsbury, 23 Wall. 508, 23 L. ed. 78; Kihlberg v. United States, 97 U. S. 398, 24 L. ed. 1106; Sweeney v. United States, 109 U. S. 618, 27 L. ed. 1053, 3 Sup. Ct. Rep. 344; Kennedy v. United States, 24 Ct. Cl. 122; Ogden v. United States, 9 C. C. A. 251, 13 U. S. App. 615, 60 Fed. 725; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 29 L. ed. 255, 5 Sup. Ct. Rep. 1035; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 34 L. ed. 917, 11 Sup. Ct. Rep. 290; Elliott v. Missouri, K. &T. R. Co. 21 C. C. A. 3, 40 U. S. App. 61, 74 Fed. 707.

The subcontractors could not, by bringing actions or recovering judgments against the principal contractors, claimants in this case, either enlarge or restrict the liability

of the United States.

L. ed. 115; United States v. Mueller, 113 U. S. 153, 28 L. ed. 946, 5 Sup. Ct. Rep. 380.

Mr. George A. King filed a separate brief in reply for Barlow & Co.

Upon all matters arising under the contract, which the engineer had power to decide, there could be no disagreement. His decision upon these subjects was absolutely final and conclusive upon the parties.

Hasbrouck v. Milwaukee, 17 Wis. 266. See also Pashby v. Birmingham, 18 C. B. 2; Mason v. Bridge, 14 Me. 468, 31 Am. Dec. 66.

The submission of a question arising in the progress of the work, to the responsible officer of the government, has been deemed to be the very thing which fixed and de termined the liability of the government.

Hawkins v. United States, 96 U. S. 689, 24 L. ed. 607.

Mr. George Hines Gorman argued the cause, and, with Assistant Attorney General Pradt, filed a brief for the United States:

The United States can only be required to make compensation to the contractor for damages which he has actually sustained by its default in the execution of its undertakings to him; but this is the extent of its liability in the court of claims. More than compensation for damages actually sustained can never be awarded against the United States.

United States v. Smith, 94 U. S. 214, 24 L. ed. 115.

If it be contended that the government is given the advantage by the contract, the complete answer is, such is the contract.

Delaware & H. Canal Co. v. Pennsylvania Coal Co. 8 Wall. 276, 19 L. ed. 349; Sun Printing & Pub. Co. v. Moore, 183 U. S. 642, ante, 366, 22 Sup. Ct. Rep. 240.

same

An express contract and an implied contract cannot exist concerning the transaction at the same time. Hawkins v. United States, 96 U. S. 689,

Masterton v. Brooklyn, 7 Hill, 61, 43 Am.
Dec. 38; Chandler v. United States, 17 Ct.
Cl. 1; Hobbs v. McLean, 117 U. S. 567, 29
L. ed. 940, 6 Sup. Ct. Rep. 870; Price v.
Forrest, 173 U. S. 410, 43 L. ed. 749, 1924 L. ed. 607.
Sup. Ct. Rep. 434.

Doubtful expressions should be construed most strongly against the government, by which the contract and specifications were drawn.

Simpson v. United States, 31 Ct. Cl. 217, Affirmed in 172 U. S. 372, 43 L. ed. 482, 19 Sup. Ct. Rep. 222.

The Secretary of the Navy had authority by oral direction to vary the terms of a written contract wherein was provided a formal method of varying such contract.

Ford v. United States, 17 Ct. Cl. 60. A parol contract has been sustained which was made by a mere subordinate with a party with whom the government had no written contract whatever, after the contract had been executed and the government had received the benefit of the services rendered or the supplies furnished.

Clark v. United States, 95 U. S. 539, 24 L. ed. 518.

Expense due to delay in experimentation with water jet was properly allowed. United States v. Smith, 94 U. S. 214, 24

The provision of U. S. Rev. Stat. § 3744, requiring the Secretary of the Navy to cause all contracts made by his Department to be reduced to writing and signed by the contracting parties with their names at the end thereof, has been held to be a statute of frauds as clearly as that of 29 Car. II., and contracts not made in conformity with its provisions are absolutely void.

Clark v. United States, 95 U. S. 541, 24 L. ed. 519; South Boston Iron Co. v. United States, 118 U. S. 37, 30 L. ed. 69, 6 Sup. Ct. Rep. 928; Calvary Cathedral v. United States, 29 Ct. Cl. 269.

of his capacity as an agent of the governA public officer is limited in the exercise ment by the positive commands of statute law, and can bind the government only when he has express authority to do the very identical thing and to make the very identical promise which he does or makes.

Whiteside v. United States, 93 U. S. 256, 23 L. ed. 884; Story, Agency, 6th ed. 307a; Lee v. Munroe, 7 Cranch, 367, 3 L. ed. 373; Baltimore v. Eschbach, 18 Md. 282; State ex rel. Blakeman v. Hays, 52 Mo. 578; Dela

field v. Illinois, 26 Wend. 228; Baltimore | tions." And the United States also relies V. Reynolds, 20 Md. 10, 83 Am. Dec. 535. upon the covenants contained in the 14th subdivision of the contract set out in the statement of facts.

The promise of a Cabinet officer, or any other agent of the government, to pay money or to obligate the government for the payment of money, if made without authority of law, is absolutely void.

Stansbury v. United States, 8 Wall. 33, 19 L. ed. 315; United States v. Garlinger, 169 U. S. 316, 42 L. ed. 762, 18 Sup. Ct. Rep. 364. The government does not guarantee the capacity, fidelity, or integrity of its officers or agents, and all persons dealing with them must know at their peril the extent to which they have authority to bind the government, and their ignorance on this subject cannot increase the government's risk.

United States v. Beebe, 180 U. S. 343, 45 L. ed. 563, 21 Sup. Ct. Rep. 371; Dox v. Postmaster General, 1 Pet. 318, 7 L. ed. 160; McElrath v. United States, 12 Ct. Cl. 201, Affirmed in 102 U. S. 426, 26 L. ed. 189; Wisconsin C. R. Co. v. United States, 164 U. S. 207, 41 L. ed. 405, 17 Sup. Ct. Rep. 45; Hume v. United States, 132 Ū. S. 406, 33 L. ed. 393, 10 Sup. Ct. Rep. 134; Moffat v. United Statcs, 112 U. S. 24, 28 L. ed. 623, 5 Sup. Ct. Rep. 10; Steele v. United States, 113 U. S. 129, 28 L. ed. 952, 5 Sup. Ct. Rep. 396; United States v. Barlow, 132 U. S. 271, 33 L. ed. 346, 10 Sup. Ct. Rep. 77.

Delays incident to the experimentation with the water-jet system do not entitle the claimants to additional or further compensation, but merely entitle them to additional time for the completion of the structure. United States v. Garlinger, 169 U. S. 316, 42 L. ed. 762, 18 Sup. Ct. Rep. 364.

If the contract as written did not express
the intention of the parties, it was the claim-
ants' folly to have signed it.

Brawley v. United States, 96 U. S. 173, 24
L. ed. 624; Simpson v. United States, 172 U.
S. 379, 43 L. ed. 484, 19 Sup. Ct. Rep. 222.
[132] *Mr. Justice McKenna, after stating the
case as above, delivered the opinion of the

court:

And we think these provisions are har monious and determine the rights of the parties. We think, indeed, that the engi neer in charge of the work was the appointec of the parties, and that his decision upon the quality of sandstone was final when properly exercised, but it could not be exercised in advance of the work and forestall his judgment of stone furnished or about to be used, or the judgment of any "other competent officer or person or persons" who might be designated by the Navy Department. To so hold would destroy the power reserved by the United States to appoint any competent person to inspect the work and material. The engineer was given power to judge, not a type of stone, but particular stones. It was such stones which were to be "hard, clean, and free from seams and imperfections, and of good bed and build." Such was the power of the engineer in charge, but who should be the "engineer in charge" depended upon the appointment of the Navy Department; and the power of appointment was reserved to be exercised at any time. A useless right if one appointee could anticipate and control the judgment of his successor.

The influence which these considerations have in the interpretation *of the contract is[134] not destroyed by answering that every stone from the Tenino quarry might have satisfied every requirement and have been approved by every and any person designated to inspect the work. This, indeed, might be so; but, on the other hand, not one stone might have passed the test. Besides, claimants are not in a position to urge that consideration. Every stone which might be tendered for inspection was subject to be rejected, but claimants seek to recover as for an acceptance. They rely, not upon approval of stones, but upon the approval of the quarry, and they rest the quality of the quarry upon the general inspection of the engineer and certain instances of satisfac tory use. In opposition stand the cove nants of the contract already mentioned, and the test the Bureau of Yards and Docks

made of samples of Tenino stone furnished by claimants. And there is no pretense that the test was unfairly made. It, at least, convinced the bureau that the Tenino stone was not a hard stone, nor a clean stone, nor free from imperfections.

The principal claim of appellees and the [133]largest item in the *judgment awarded them grows out of the rejection of the Tenino sandstone. That item was based upon the provision in the specifications which required it to be "of quality approved by the engineer." But that provision, it is contended by the United States, must be read and construed with those covenants of the contract which require, (1) that all materials used in the dry dock shall be of the best kind, "subject to the approval of the The court of claims did not pass upon the civil engineer, or such other competent of issue raised as to the quality of the stone. ficer or person or persons as may for that It accepted the decision of the engineer as We cannot purpose be designated by the party of the being final as a matter of law. second part," which officer or persons may, concur to the full extent of the decision, and "from time to time during the progress of must limit, therefore, the recovery of claimthe work, inspect all material furnished, ants to the price of stone inspected and apwith full power to reject any mate- proved. On this the finding is that "the rial, in whole or in part. which he or they amount of Tenino standstone quarried, cut, may deem unsuitable for the purpose or pur- and delivered was 2,349 cubic feet, amountposes intended, or not in strict conformity ing, at 65 cents a cubic foot, to $1,526.85." with the spirit and intention of this con- These views render it unnecessary to contract, and the aforesaid plan and specifica-sider that provision of the contract which

184

tract.

makes the decision of the chief of the Bu-|partment are performed under the control reau of Yards and Docks final, only subject of the Secretary of the Navy. Their orders to appeal to the Secretary of the Navy, of are considered as emanating from him and "any doubts or disputes as to the meaning have "full force and effect as such." Rev. or requirement of anything" in the con- Stat. § 420. And the act of 1891, which provided for the construction of the dry dock, authorized the Secretary of the Navy to have it constructed by contract. He especially stood for the United States in such contract, and was invested with its power, and was charged with the duty of seeing that the dock was adequately constructed.

It is further contended by the government that the experiment with the water-jet system was a "change or modification" of the contract, and because not agreed to in writing by the parties that the expense incurred by the contractors in making the experiment cannot be recovered.

2. The next item of importance is the expense to which the claimants were subjected in experimenting with the water-jet system. The court found that the experiment was ordered by the Secretary of the Navy against the protest of the claimants, and the board of inspectors found that the cost of the experiment to the claimants was $1,156.76, and recommended the payment of that sum. This action was approved by the [135] Secretary, *and vouchers drawn accordingly. It was refused when it came for audit and payment, because "under the specific requirements of § 7 of the original contract, [he] had no power or authority to author- If both contracting parties were individize or direct the incurring of this expense uals, it would easily be seen that subdivision unless the cost of the same was first ascer-7 was inserted in the contract for their tained by a board of officers provided for benefit, to be insisted upon or waived as to that purpose before the expense was in- them might seem best. What precluded curred, and reduced to writing, as required that freedom and useful power to the gov by the 7th clause of the contract. Where- ernment? If not precluded it certainly upon the Secretary of the Navy procured could have been exercised, and, as we have the reference of this item to this court un- seen, through the Secretary of the Navy. der and pursuant to the provisions of Re- If the power to insert the provision in the vised Statutes, § 1063." contract or to omit it was given, the power There was certainly nothing in the con- to dispense with it was also given, unless it tract or in the specifications which re- was necessary to be inserted, and could not quired the contractors to experiment with be dispensed with, on account of some inthe water-jet system. There was nothing junction of the law. Such injunction, as in the contract which required them to ex- we understand counsel, is claimed by virtue periment with ineffectual or detrimental of § 3744 of the Revised Statutes, which remethods. Their obligation was to drive the quires the Secretary of the Navy to cause piles in the construction of the dock to a all contracts made by his department to be sufficient depth, and it is not found that the reduced to writing and signed by the condepth attained, when the Secretary of the tracting parties with their names at the end Navy interfered, was not sufficient. The thereof. It is certainly disputable if the Bureau of Yards and Docks conceived a requirement of the section applies to algreater depth to be necessary, and that it terations, which may become necessary in could be attained. Some controversy arose, the progress of work regularly conducted and there were reports to and correspond- under contract. And this court has held ence with the Bureau of Yards and Docks, that the requirements of the section did not and finally the bureau "telegraphed definite preclude a recovery for property or services instructions" "to accept no piles driven to "as upon an implied contract for a quan... a less depth than 15 feet." In view of the tum meruit.” Clark v. United States, 95 facts the Secretary of the Navy, on the oc- U. S. 539, 24 L. ed. 518. But we are not casion of a visit to the dock, "verbally au- required to decide on this record the questhorized and directed the contractors to sink tion suggested. We do not think that the the piles" by the water-jet system. The order of the Secretary of the Navy direct-[137] contractors protested and predicted failure. ing the experiment with the water-jet sysFailure occurred and the system was aban-tem was a "change or modification" of the doned upon an adverse opinion of its utility given by a board of naval experts.

It is contended by the United States that the direction of the Secretary of the Navy was a change or modification of the contract within the meaning of the 7th subdivision of the contract, and that the Secretary had no power to direct or consent to such change more than the "humblest laborer employed upon the work," and besides, that no such change could be made except by an agreement in writing.

We have no doubt of the power of the Secretary of the Navy. His power is manifest from the contract, and is given by law. [136]*The duties of the bureaus of the Navy De184 U. S. U. S., Book 46.

30

contract within the sense of subdivision 7. It was an exercise of superintendence and unwarrantable superintendence. The experiment was forced upon the contractors. They were powerless to do anything but protest and yield. The interference with the work of driving the piles by the drophammer process was an improper interference, and brings the claim of the contract ors within the rule in Clark's Case, 6 Wall. 546, 18 L. ed. 917; Smoot's Case, 15 Wall. 47, 21 L. ed. 110; the case of the Amoskeag Company, 17 Wall. 592, 21 L. ed. 715, and within the ruling of United States v. Smith, 94 U. S. 214, 24 L. ed. 115, where the other cases are cited and approved. By denomi

469