
    Timothy Ford et al. v. The United States.
    
      On the Proofs.
    
    
      The engineer in charge of. the Tennessee Hirer improvement recommends that a certain appropriation he applied to the reconstruction of the old canal around Big Muscle Shoals. The Chief of Engineers approves this and orders the officer to advertise and contract for the work, no limitation being set upon his authority. JTe enters into a contract which provides that no claim for extra work shall he made “unless such extra work shall have been expressly required in writing,” “the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers.” During the progress of the work, the engineer in charge directs orally that a larger embankment he built than the contract contemplated, and one which will necessitate greater cost per yard. The War Department during the progress of the extra work extends the contractors’ time for performing. The contract. calls for “rock excavation” at $1.23 per yard. The engineer in charge orders the contractors to excavate to the bottom line shown on the profile plan of the canal. Excavating to that depth by drilling and blasting necessitates bringing up rock from below grade. This the defendants refuse to pay for.
    
    
      I.Courts cannot transmute a contract intoastatute of frauds, nor attach to the agreement of the parties the irrevocable, mandatory attributes of a statutory provision.
    II.A clause in a formal written contract providing' that no claim shall be made for extra work unless first required and agreed upon in writing does not bind the x>arties. Such provisions were devised and inserted in building contracts to limit the power of architects and superintendents; but if the principals so act that the law will imply a contract for extra work, no prior agreement will render the transaction illegal or void.
    III. A provision in a written contract declaring that no claim for extra work shall be made unless it wás required and agreed upon in writing is merely a condition, which may be waived by a subsequent oral agreement.
    IV. In applying the law of agency to the transactions of the government it has not been the purpose of the counts to curtail the lawful and reasonable powers of the executive.
    V.The courts have sought to uphold the necessary discretion of the heads of executive departments, and other responsible officers, but at the same time so to apply the law that subordinate officers and agents shall not bring upon the government an unauthorized indebtedness through the medium of implied contraéis.
    VI.In applying the law'of agency to the affairs of government, the courts have recognized the principle of ratification; and have held that ratification by the head of an executive department, or other responsible officer, will render an unauthorized contract effective and valid.
    VII.Where an officer of engineers ordered extra work, and his authority so to do was not questioned by his successor under whom the larger part of the work was done, nor by his superior, the Chief of Engineers, nor by the Secretary of War, who had the matter brought to his personal notice, the acquiescence, coupled with the fact of acceptance, payment, and an extension of the time to perform, constitutes a ratification of the most unequivocal character.
    VIII.Where a public agent requests a departure from an express contract, and the change ordered is of such a nature that he may reasonably suppose that no additional expense will bo caused thereby, the contractor is bound to speak, or he will be doomed to have consented to make the substitution at the contract rate. But -where the change is of such a nature that it must necessarily involve additional cost, no such notification is necessary, and the contractor will recover reasonable conpensation.
    IX.Where the terms of the contract are “ rode excavation at Hie rate o/$1.23 per cubic narcl,” the contractors are only bound to use the ordinary and proper means for rock excavation (drilling and blasting), and are not bound to resort to other moans, such as “rode cutting.”
    
    
      X. Wliore the contract is for “rock excavation” at a designated price per yard, and the employer orders the contractor to excavate to a certain depth as shown hy a designated line on the profile plan of a canal, and the formation of the rock is such that to reach the required depth fragments of rock must he brought up from below grade, the damages will he for all rock necessarily excavated, and not merely for such as lay above the grade line.
    XI. If contractors are to excavate down to a certain line, their pay must stop when that line is reached; but if the contract he simply for excavating, and the designated line comes into the case through subsequent directions of the other party by whom the contract was draughted, he must bear th,e expense of rock necessarily taken from below the grade line.
    
      The Reporter’a statement of the case :
    The following are the chief parts of the contract, specifications, &c., requiring construction by the court:
    [Form: 19.]
    “ Articles of agreement entered into this thirteenth day of December, eighteen hundred and seventy-five (1875), between Major Walter McFarland, Corps of Engineers, United States Army, for and in behalf of the United States, of the first part, and Timothy Ford and John W. Hobbs, partners, doing business under the firm-name of T. Ford & Co., of Keokuk, in the County of Lee, State of Iowa, of the second part.
    “ This agreement witnesseth, that the said parties have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, in the manner following,namely: That the said Timothy Ford and John W. Hobbs shall, iu conformity with the advertisements and specifications hereunto attached, and which form a part of this contract, do the work of repair and improvement in the first section of the canal around Big Muscle Shoals in the Tennessee Biver, at the following rates, namely:
    " Grubbing and clearing, at the rate of forty dollars ($40) per acre.
    “Earth excavation, at the rate of twenty-four (24) cents i>er cubic yard. ■
    “ Eartb embankment, at the rate of five (5) cents per cubic yard.
    “Bock excavation, at the rate of one dollar and twenty-three cents ($1.23) per cubic yard.
    “ Construction of slope wall, at the rate of one dollar and twenty-five cents ($1.25) per cubic yard.
    “ That all material furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the government, and sncli as shall not conform to the specification set forth in this contract shall be rejected. The decision of the engineer officer in cliarge,'as to quality and quantity, shall be final.
    “That the said Timothy Ford and John W. Hobbs shall commence work under this contract on or before the twentieth day of December, eighteen hundred and seventy-five (1875), and shall complete the same the thirty-first day of May, eighteen hundred and seventy-six (1876).
    “That payment shall be made when the work contracted for shall have been delivered and accepted, reserving ten (10) per centum from each payment until the whole shall have been so delivered and accepted.
    “And it is also agreed that if, in any event, the party of the second part shall delay or fail to commence with the delivery of the material, or the performance of the work, at the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work, in accordance with the specification and requirements of this contract, then, in either case, the party of tbe first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party (or parties, or either of them) of the second part; and, upon the giving of such notice,, all money or reserved percentage due, or to become due, to the party or parties of the second part by reason of this contract shall be and become forfeited to the United States; and the party of the first part shall be thereupon authorized, if an immediate performance of the work, or the delivery of the materials, be, in his opinion, required by the public exigency, to-proceed to provide for the same by open purchase or contract, as prescribed-in section 3709 of the Revised Statutes of the United States; provided, however, that if the party (or parties) of the second part shall, by freshets, ice, or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work, or delivering the materials at the time agreed upon in this contract, such additional time may, in writing, be allowed him or them for such commencement or completion as, in the judgment of the party of the first part, or his successor, shall be just ar.d reasonable j but such allowance and extension shall in no manner affect the rights and obligations of the parties under this contract, but the same shall subsist, take effect, and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.
    “And it is further expressly understood and agreed that no claim whatever shall at any -time be made upon the United States by the party or parties of the second part, for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or materials shall have been expressly required in writing by the party of the first part, or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties, and approved by the Chief of Engineers.
    “ Walter McFarland,
    
      “Major of Engineers. SEAL.
    “Timothy Ford. SEAL.
    “John W. Hobbs. SEAL.'
    “Witnesses:
    “Paul L. Hardy.
    “0. P. COMEGYS.
    “J. B. Diver.”
    “Tennessee Eiver Improvement,
    “Muscle Shoals Canal,
    “United States Engineer’s Office,
    
      “Chattanooga, Tenn., September 28th, 1875.
    “ Sealed proposals, in duplicate, will be received at this office until noon on Monday, November fifteen (15), 1875, for the excavation of earth, rock, etc., in the construction of the canal around Muscle Shoals, in the Tennessee Eiver, between Florence and Decatur, Alabama.
    “ Specifications and forms for proposals will be furnished on application to this office.
    “Walter McFarland,
    
      “Major of Engineers.”
    “ specifications.
    “ The work to be done under this advertisement is limited to the repair and enlargement of the upper half of the old canal built around Big Muscle Shoals in the Tennessee Eiver ‘ forty years ago. The canal is now in a ruined condition ; the tow-path embankment being broken in many places, the dams - and lock-gates carried away;' the canal trunk partly filled with earth and sand, and both bed and banks covered with a heavy growth of timber and brush. The work to be done consists of clearing and grubbing,, the removal of the material that has washed into the canal, the repair, heightening, and strengthening of the embankment, and the widening and deepening of the canal trunk.
    “ The material to be removed is earth often mixed with sand and gravel and loose stone, but to be designated as earth in the bids, and rock, consisting of limestone mixed with flint. The thickness of rock to be removed varies from four (4) feet to a few inches. The material has in no case to be raised over twelve (12) feet, or to be removed in general over one hundred (100) feet, the extreme width proposed for canal.
    
      “ The greater part of it will be carried over the canal embankment and deposited on the outside. A part of it will be used to heighten the embankment about two feet. The breaks in the embankments will be repaired by removing from the sides and bottoms of the breaks all vegetable mould and growths of all kinds, and filling the opening thus prepared with material similar to that composing the rest of the embankment, placed in layers twelve (12) inches in thickness and well rammed.
    “ The embankment is to be raised and strengthened when necessary in a similar way, and the outer and inner slopes are to be shaped as required.
    “ The outer slope of the embankment is to be protected when required by a dry stone apron or slope wall, the stone toliave bed not less than twelve or eighteen inches square, and to be carefully laid by hand.
    
      “ The work is divided into seven sections, as follows:
    “ Section 1. Extends from First Creek to Second Creek, a distance of about one mile and a half.
    “ Section 2. Extends from Second Creek half way to Blue-water Creek; length about one mile.
    
      “ Section 3. Extends from the lower end of section 2 to Bluewater Creek; length about one mile.
    “ Section 4. Extends from Bluewater Creek, near station 1140, to station 1190, about one mile.
    “ Section 5. Extends from station 1190 to ' station 1240, about oue mile.
    “ Section 6. Extends from station 1240 to station 1290, about one mile.
    “ Section 7. Extends from station 1290 to station 1340, about one mile, its lower end being a little more than one mile above Four-mile, Creek.
    
      
    
    “ Grubbing and clearing. — About twelve acres per lineal mile.
    “Embanking. — About thirty-five hundred cubic yards per lineal mile.
    
      “ These quantities are given as approximations only, and it is to be clearly understood that if they shall be at any time reduced, by reason of any change which the government may decide to make in the proposed dimensions of the canal, such reduction is not to be assumed as the basis of a claim against the government for damages or loss of prospective profits on the part of the contractor.
    “ The line of the canal is intersected by various small creeks, against whose overflow it may become necessary for the contractor to protect his work by throwing temporary dams across the canal. These dams should be from seventy to one hundred feet in length, and their costs, as well as the cost of any other temporary protections which his work may require, must must be borne by the contractor.
    “ Bidders will bid for one or more sections, as they may choose, but separate bids will be made for each section.
    “Bach bid must cover all the work to be done in the section to w'hich it relates, and must give the proposed price of, first, grubbing and clearing per acre; second, earth excavation per cubic yard; third, earth embankment per cubic yard; fourth, rock excavation per cubic yard; fifth, slope wall per cubic yard.
    
      “ Special attention is called to the printed instructions to bidders, to be found on the second sheet of the Form of Proposals.
    “ Work must be begun under the contracts to be formed by the first of December, 1875, and must be finished by the thirty-first of May, 1876.
    “ Bidders are advised to examine the work in person before offering their bids. An engineer is stationed at Florence, Alabama, who will accompany them to and over the work when-desired, and will furnish such additional information as maybe required.
    “ Walter McFarland,
    “ Major of Engineers?
    
    The following are the facts of the case as found by the court:
    I. On the 28th March, 1871, Maj. Walter McFarland was assigned by order of the Secretary of War to take charge “ of the survey and improvement of the Tennessee River.” On the 28th September, 1875, Major McFarland recommended to the Chief of Engineers that the money appropriated by Congress for the imiirovement of the Tennessee below Chattanooga be applied to “ the repair and reconstruction of the old canal around Big Muscle Shoals.” On the 9th October, 1875, the Chief of Engineers approved the recommendation, and directed Major McFarland to advertise for proposals and proceed with the work. On the 13th of December, 1875, Major McFarland and the claimants entered into tbe contract set forth in the petition, the advertisement, estimates, and specifications setforth being apartofthe contract, and all of them, including the contract, having been draughted and prepared by Major McFarland and his assistant engineers. On the 15th May, 1876, Major McFarland was relieved from duty by orders of the War Department, and Gapt. W. B. King- succeeded him as engineer in charge. On the 23d of May, 1876, the Chief of Engineers having been duly informed of the progress and condition of the claimants’ work, ordered that the time specified in the contract for the completion of the work be extended to the 1st October, 1876, and by a similar order of the 8th September, 1876, it was further extended to the 15th December, 1876. Neither the Secretary of War nor the Chief of Engineers ever expressed any disapproval of the contract entered into by Major McFarland, nor of the extra work ordered by the engineer in charge hereinafter described ; and no controversy exists as to the quantity of work actually performed by the claimants, it having been measured and ascertained by or under the direction of the engineer in charge.
    II. At the time the contract was executed it was supposed that there was about 60,000 cubic yards of earth to be excavated from the prism of the canal. This estimate proved to be an error arising either from the data furnished the engineer in charge by his subordinates, or in the calculation of the approximate quantity. The true quantity of earth to be excavated from the prism was only 17,000 yards, of which 7,000, being mixed with mold, roots, leaves, &c., was unfit for the purposes of an embankment, leaving only 10,000 yards of earth which could be put into the embankment which the claimants were afterward required to build.
    III. The quantity of canal embankment which the contract required to be built, according to the specifications annexed thereto, amounted to only 5,250 yards. But while the work was in progress it was disclosed by a freshet of the river that the proposed embankment was not high enough to keep out the waters of the river. Accordingly, Major McFarland, the engineer in charge, ordered the claimants to build the embankment two feet higher than was required by the specifications. The claimants complied and built, under the directions of the engineer in charge, an embankment containing 65,603 yards of earlli; 10,000 yards of this embankment came from the prism of the canal; the remainder had to be excavated and brought from borrow-holes outside of the canal. The' distance which this earth had to be moved was about double the distance of earth procured within the prism of the canal; and the cost of procuring the earth was further enhanced by the circumstances of high water and rain preventing the borrow-pits from being sunk to any considerable depth, and of its being necessary to strip the ground, before excavating, of underbrush, vines, leaves, dead logs, a net-work of pine roots, and a mass of decayed vegetable matter. The amount of canal embankment thus built by the claimants with earth so procured was 55,603 cubic yards, and the additional cost of the embankment so built above the price provided by the contract was fourteen cents per yard; amounting in the aggregate to $7,784.42.
    IY. At the time when Major McFarland ordered the embankment to be enlarged beyond the dimensions prescribed by the specifications of the contract, the claimants inquired “ whether, as the excavation in the canal trunk would not furnish all the material required for the embankment, they would be allowed payment for excavating outside.” To this Major McFarland answered “ that they would be.” No question was raised as to the price to be paid for this outside excavation. Neither was the requirement to build the additional embankment put in writing by Major McFarland; nor were the prices and quantities of the additional work first agreed upon and submitted to the Chief of Engineers, as prescribed by the contract.
    Y. All of the additional embankment described in the preceding findings was paid' for at the contract rate and in the manner prescribed by the contract; that is to say, from time to time, as the work progressed, the engineer in charge made an estimate of the amount performed and accepted, from which ten per cent, was deducted, and. the balance was paid to the claimants. These estimates and payments were in the following form:
    
      “APPROPRIATION EOR IMPROVING TENNESSEE RIVER. ‘‘The United States (for that work below Chattanooga) to T. Ford ‡ Co., Dr.
    
    
      
    
    “ Received, at Chattanooga, Tenn., this 20th day of March, 1876, from Major Walter McFarland, Corps of Engineers, the sum of twenty-one hundred & ninety-three dollars and thirty-seven cents, in full payment of the above account. Check No. 116, dated March 20,1876, on ass’t treas U. S. New York, for $2,193.37.
    (Signed in duplicate) “ T. Ford & Co.”
    “I certify that the above account is correct and just. ■
    “ Walter McFarland,
    
      “ Major of Engineers.”
    
    When this work was fully completed, the claimants were paid the ten per cent, reserved, and they receipted for the same on the following voucher :
    “APPROPRIATION EOR IMPROVING TENNESSEE RIVER.
    
      
    
    
      
      
    
    ‘‘Received, at Chattannooga, Tenn., this 22 day of January, 1877, from Captain W. E. King, Corps of Engineers, the sum 'of thirty-seven hundred and sixty-one dollars and fifteen cents, in full payment of the above account. Check Eo. 21108, dated Jan’y 22, 1877, on ass’t treas. U. S. at N. Y. for $3,761.15.
    (Signed in duplicate) “T. Ford & Co.”
    “I certify that the above account is correct and just.
    “W. R. Kino,
    
      “ Captain of Engineers.”
    
    But at the time when the preceding final payment of arrearages was made, the claimants had, on the 30th December, 1876, presented a demand to Captain King, the engineer, in charge, that they should be paid ahigher rate for the additional embankment than that prescribed by the contract; and the engineer in charge had, on the 2d January, 1877, submitted their demand, together with his own report thereon, to the Chief of Engineers; and the Chief of Engineers had submitted it to the Secretary of War, by whom it was on the same day, the 22d January, 1877, transmitted to the Second Comptroller for his decision; and it was not intended by the engineer in charge, or by the claimants, that the said payments should include or prejudice the claimants’ demand for additional compensation.
    VI. After the claimants had completed the canal bank, Major McFarland, then tbe engineer in charge, directed them to build an earth dam across the canal. The claimant did so, nothing-being said by either party as to the rate of compensation. The dam, though ordered by Major McFarland, was constructed under tbe supervision of Captain King, bis successor, and be paid for it at the contract rate of earth excavation and embankment under tbe contract, and upon estimates in tbe same manner as contract work was paid for, and tbe claimants gave therefor the receipts in full set forth in the preceding finding. Tbe quantity of embankment in this dam, as determined by tbe •engineer in charge, was 1,359 yards. For one-third of tbe work tbe price paid was reasonable compensation. For tbe remaining two-tliirds of tbe work tbe claimants’ services were reasonably worth 14 cents per yard above tbe price paid to them, amounting to $126.84.
    VII. Tbe claimants were instructed by tbeengineer in charge to excavate to a certain grade line which represented tbe bottom of tbe canal on its profile plan. If tbe rock to be excavated bad run in strata parallel to and with cleavages upon tbe grade line, it would have been practicable by tbe means used to ex.cavate to that line without going deeper, but as tbe strata of tbe rock excavated did not, in fact, run parallel to tbe grade line, and the cleavage would often fall beneath tbe grade line, it was necessary, by tbe means used, to bring up quantities of rock below tbe grade line, so that tbe upper edge of tbe rock remaining should not project above tbe required depth of tbe canal; 2,580 cubic yards of rock were thus excavated and removed from below tbe grade line of tbe canal, tbe quantity being determined by Captain King, tbe engineer in charge; but be being in doubt as to whether tbe claimants should be paid for this excavation when tbe contract contained no provision in regard to it, reported this item to tbe Chief of Engineers for bis determination; and tbe Chief of Engineers decided that tbe claimants should not be paid, and payment was accordingly refused.
    Tbe means used for rock excavation by the claimants were drilling and blasting. This was tbe usual and ordinary method for work of that designation; and it was known to Major McFarland when be made tbe contract to be tbe customary way of making rock excavation for tbe bed of canals. It would have been physically possible for tbe claimants to have excavated to tbe grade line without going below it; but such work would not be designated as “ rock excavation ” among engineers and contractors, but as “rock cutting,” and would have required a more skilled class of laborers and would have been a more costly kind of work.
    It is usual for express contracts for this kind of work to specify, if a grade line be designated therein, that no payments shall be made for rock excavated below grade; but no custom has been shown to exist in cases where the contract .is silent concerning a grade line, or concerning rock excavated below the required depth.
    VIII. During the progress of the work, the engineer in charge determined to raise the banks of the canal higher than was contemplated by the original plans. In consequence of this being-done, the claimants had to raise 9,953 cubic yards of rock over twelve feet, the- maximum height designated in the contract. Captain King, the' engineer in charge, decided that this item of their claim for extra work was well founded, but that the price named by them was exorbitant, and hence no allowance whatever was made to them. The additional expense and trouble caused to the claimants by the additional lift was seven cents per yard. They have been paid the contract price for the excavation, but nothing for the additional expense cast upon them, which amounts to $696.71.
    
      Mr. B. P. Lowe and Mr. James Hagerman for the claimants:
    The claimants are entitled to recover the reasonable value of the extra work done by them, and the benefit of which has been accepted by the United States. (Kingsbury’s Oase, 1 C. Ols. R., 13; Brooke’s Case, 2 C. Cls. R.,180; Waters’s Case, 4 C. Cls. R., 389; JDanoldh Case, 5 O. Ols. R., 65; Grant’s Case, 5 O. Cls. R., 72; Cooler’s Case, 8 C. Ols. R., 199.^
    The doctrine of the foregoing cases is fully sustained in Murphy’s Case, 11 O. Ols. R., 372-381; also in Hawkins v. United States, 96 U. S., 689, and cases cited.
    The law will presume, from the fact that the parties to the contract have failed to make a settlement for the work and labor done and the material furnished, that compensation was demanded and refused for such extra work and material, and that the party entitled to compensation, if he has demanded it, has not waived his legal right to the same. (Watson v. Walker, 23 N. EL, 471; Randan v. Barton, 4 Tex., 289.)
    The fact that there was no written contract for the extra work does not preclude the claimants from recovering. (Grant’s 
      
      Case, 5 O. CIs. R., 72.) A written agreement may be modified by parol, and a clause requiring such modification to be in writing may be changed by parol, the same as any other provision of the contract. See, generally, Vielle v. Germania Insurance Company, 2G Iowa, 54.
    The contract as to what was meant by rock excavation, excavation and embanking, can be determined by the light of custom and the testimony of experts, in this case engineers. (Lawson on Usages and Customs, §§ 181, 197; Walls v. Bailey, 49 N. Y., 464; Stoops v. Smith, 100 Mass., 63.)
    The estimates of the engineers, by the contract, are only to be final as to quality and quantity, and they cannot decide questions of law.
    The receipts in evidence are no bar to this suit. These receipts are subject to explanation or contradiction. (Wharton on Evidence, §§ 1064,1365, and cases cited.) It is shown by the testimony that the receipts do not cover the claims sued for, and were not so intended. The United States and its officers and agents never have at any time while this case was pending before the department claimed these receipts barred the claims now sued for.
    
      Mr. B. A. Orbison (with whom was the Assistant Attorney-General) for the defendants:
    It appears'that the claimants gave receipts in full to Majors McFarland and King on the monthly vouchers from January, 1876, to January, 1877, and also for the 10 per centum retained. These vouchers contained the items of labor, with the prices allowed for the same. As claimants accepted the amounts allowed, and accompanied their acceptance with receipts in full, all the consequences of releases under seal attached to the receipts and are conclusive evidence of a legal agreement to accept the amount paid in satisfaction of any claim they may have had for the labor mentioned in the vouchers. (Comstock v. United States, 9 O. CIs. K., 141; United, States v. Child & Go., 12 Wall., 232; United States v. Justice, 14 Wall., 535; Bale United States, 14 C. CIs. K., 514; Case & Van Wagner v. United States, 11 C. CIs. B.., 712.)
    The contract contains the following clause, viz: ‘‘The decision of the engineer officer in charge, as to quality and quantity, shall be final.”
    
      Under the authority contained in this clause, the engineer officers in charge determined the quality and quantity of work performed each month, and allowed the same in the monthly estimates at the prices fixed in the contract, and the claimants were paid the amounts so allowed. As claimants agreed to abide by the decision of the engineer officer in charge, the action of Majors McFarland and King is conclusive, and cannot now be overturned. (Kililberg v. United Staten, 3 C. Cls. R., 148; Kihlberg v. United States, 97 U. S., 398; Sweeny v. United States, 15 C. 01s. R., 400; Case <& Van Wagner v. United States, 11 C. Cls. R., 712.)
    Another clause in the contract provides:
    “And it is further expressly understood and agreed that no claim whatever shall at any time be made upon the United States by the party or parties of the second part, for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or materials shall have been expressly required in writing by the party of the first part or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties, and approved by the Chief of Engineers.”
    This clause is sufficient to prevent the claimants from recovering any part of their claim. No evidence has been offered to show that the prices and quantities of any extra work were agreed upon by the contracting parties, or that the same was approved by the Chief of Engineers. (Dale v. United States, 14 C. Cls. R., 514.)
    As claimants assented to the changes made by the engineer in charge without objection, such changes must be regarded as an exercise by the defendants of their reserved power made with the assent of the claimants. (Dale v. United States, 14 O. Cls. R., 514.)
   Nott, J.,

delivered the opinion of the court:

This is an action for work and services rendered to the defendants in the reconstruction of tbe canal around Muscle Shoals, on •the Tennessee. The petition sets up a formal, express contract, and alleges that a certain amount is due thereon for work performed by the claimants in accordance with its terms; but the chief demands of the claimants are for extra work rendered at the request of tbe engineer in charge of the work, or made necessary by a departure from the plan contemplated by the contract, which departure was ordered bj tbe same officer. There is a provision in the contract that “no claim whatever shall be made by the parties of the second part for or on account of extra work or material performed or furnished under or by virl ue of this contract and not expressly bargained for and specifically included therein, unless such extra work shall have .been exjpressly required in writing by the party of the first part, the prices and quantities thereof having been first agreed u]>oriJhl-thcontracting parties and approved-by-the Chief of Engineers.” It is conceded by the defendants that the extra work Avas ordered by the engineer in charge; that it was duly performed, and. that its quality has been approved and its quantity determined in the manner prescribed by the contract; but it is contended that this provision requiring the order to be in writing precludes the court from deciding the case upon its merits.

We are aware of no principle of law by virtue of which courts can transmute a contract into a statute of frauds, and attach to the voluntary agreement of the parties the irrevocable and mandatory attributes of an act of Congress. The law-making power, upon considerations of public policy, may declare certain contracts void and certain transactions remediless; but where one man renders service or furnishes material to another with his consent or at his request, the law implies a contract, and no prior agreement of the parties can render a transaction illegal and AToid which the law declares to be legal and valid. ¡Such provisions as that aboATe quoted were devised and introduced into building contracts to control and limit the power of architects or superintendents, to the end that the OAvner should not be led into an unauthorized expense through the orders and directions of his agents. As to the principal, such provisions merely impose a condition Avhich may be waived. The parties to a contract cannot repeal a statute of frauds, but they may by a subsequent oral agreement Arary the terms of their Avritten contract, “or may waive and discharge it altogether.” Hawkins’s Case (96 U. S. R., 689.) The question, therefore,' which really is presented by this case is one of agency.

In applying the law of agency to the transactions of the government, it has not been the purpose of the Supreme Court, nor of this, to shackle or curtail the lawful and reasonable powei’s of the executive. Both courts have sought with great unanimity of decision to uphold the necessary discretion of the heads of the executive departments and other responsible officers of the government, but at the same time so to apply the law that subordinate and irresponsible agents should not bring upon the government an unauthorized indebtedness through the medium of implied contracts. In this application of the law of agency to the affairs of the government, the courts have also recognized the principle of ratification, and have held that ratification by the head of an executive department, or other responsible officer, could render a contract effective and valid which otherwise would be unauthorized and inoperative. There are two cases clearly illustrative of these positions, to which we may well refer.

The first of these is Hawkins’s Case (12 C. Cls. R., 181; 96 U. S. R., 689), where the contract was made virtually by the Secretary of the Treasury, and provided that there should be no departure from its terms without his written consent, but where the local superintendent of the government had ordered a different and more expensive wall to be erected than the contract required. It was held that the claimant could not recover for the added value of the work, and that he should first have procured the consent of the Secretary, or at least have notified . him of the change ordered b3r the local superintendent, and of the additional expense which the change would necessitate.

The second is Neal & Murphy’s Case (14 C. Cls. R., 280), where a contract for the transportation of Indian supplies had been entered into by a superintendent of Indians, which was utterly void for want of authority in the superintendent, but where payments upon the contract had been ordered by fhe Commissioner of Indian Affairs with the approval of the Secretary of the Interior. This court said: “ Such a payment between individuals would constitute one of the strongest evidences of the ratification of the act of an agent bearing the relation towards his principal which Hoag [the superintendent] bore to the Commissioner of Indian Affairs.” And the court added: ‘.‘We are neither disposed to deny the authority of the Secretary of the Interior to ratify this act of his subordinate, nor to review or question the right of the Treasury to approve and pay the account which had been adjusted in the Department of the Interior. We confine ourselves to the consideration of the legal effect of those acts. On this point we can have no doubt that they amounted to a complete ratification.”

Such being the declared law of public agency, what are the facts of this case to which the law must be applied?

In' 1875 the work of improving the navigation of the Tennessee had been placed’ under the charge of Maj. Walter McFarland, of the Engineer Corps. In September of that year, that officer recommended that the money which had been appropriated by Congress for the improvement of the river below Chattanooga be applied to the repair and reconstruction of an old canal which many years before had been constructed around Big Muscle Shoals. The Chief of Engineers, who in such matters represents the War Department, replied, approving the suggestion and directing Major McFarland to advertise for proposals and proceed with the work. No limitation appears to have been placed upon that officer’s discretion as to the details of the work, nor was any form of contract prescribed, nor was he directed to make his contracts subject to the approval of the Chief of Engineers. Major McFarland, after due advertisement, entered into a contract with the claimants, which contemplated their building an embankment of a certain height and consequent size. While the work was going on, a freshet" in the river disclosed the fact that the intended embankment was not high enough to keep out the waters of the river. Major McFarland thereupon ordered the contractors to carry the embankment higher, and consequently to build a larger embankment. This new embankment; so ordered .required more than twelve times as much work from the claimants as.the one originally contemplated. In May, 1876, the Chief of Engineers, upon the report of the engineer in charge, ordered that the claimants’ time for completing their work be extended, and in September he again granted a further extension. During the progress of this extra work the appropriation was transferred to the hands of the engineer in charge, and payments -were made to the contractors certainly with the concurrence, and never with the disapproval, of the Chief of Engineers or of the Secretary of War. When the claimants’work was finished it was accepted, and the usual percentage which had been deducted from previous payments was paid to the contractors. About the time when this payment of arrearages was made— in fact, a few days before tbe payment — tbe claimants bad presented their demand for extra compensation for this very work, and that demand bad been forwarded by tbe engineer in charge to tbe Chief of Engineers, and by him to tbe Secretary of War, and by him was submitted to the Second Comptroller for bis opinion, and from first to last this work ordered by tbe engineer in charge was never disapproved, nor payment therefor ordered to be stopped; nor bis authority in ordering it questioned ; nor was any objection ever raised to tbe claimants’ demand except that going to tbe rate of compensation.

If tbe contract in this case bad been made by tbe Chief of Engineers, tbe extra work ordered by the engineer in charge would have been without authority and at tbe risk of tbe contractors, and tbe case would be like that of Hawkins (supra). Or if tbe extra work, instead of having been ordered by tbe officer who made tbe contract, bad been ordered by tbe local assistant engineer who supervised tbe work, it would have been an order prohibited by tbe contract, and tbe case would have been like that of Braden & Angus (1G O. Cls. B., 389). But here Major McFarland bad tbe same authority to order the extra work that be bad to make the original contract. Tbe extra work was equally within bis discretion, and it no more required tbe approval of tbe Chief of Engineers than did tbe formal written contract of which it was a variation. Furthermore, tbe authority and discretion of Major McFarland in ordering tbe height of tbe embankment to be increased was questioned neither by bis'successor, under whom a large part of the work was done, nor by his superior, the Chief of Engineers, who exercised an official and professional supervision of bis proceedings, nor by the Secretary of War, who ultimately bad tbe matter of this extra work brought to bis personal notice. This acquiescence on the part of high officers of tbe government, in whom' the power of ratification undoubtedly was, coupled with tbe facts of acceptance and payment and extension of the time wherein tbe claimants might perform it, constitute a ratification of tbe most unequivocal character.

Concluding, therefore, that want of authority in tbe engineer in charge to order this extra work cannot be set up to defeat a consideration of tbe case upon its merits, we proceed to inquire whether tbe claimants have precluded themselves from demanding a higher rate of compensation than that which tbe contract prescribed and which has been allowed and paid to them.

In cases where a public agent has requested a departure from / an express contract, it has uniformly been held that if the ! change ordered was of such a nature that the agent might rea- i sonably suppose no additional expense would be caused, the ' contractor was bound to speak or otherwise he would be deemed/ to have consented to make the substitution at the contract price or rate. But, conversely, where the change ordered was of such a nature that it would necessarily involve additional cost to the contractor, it has been held that no notice was necessary] and that the contractor could recover his reasonable compensa-1 tion, following in the ascertainment thereof the clear and rea- * sonable rule laid down by the Supreme Court in Dermott v. Jones (2 Wall., 1). In the present case it appears that at the time when Major McFarland ordered the embankment to be enlarged, the claimants inquired whether, as the excavation in the canal trunk would not furnish all the material required for the embankment, they would be allowed payment for excavating outside,” and to this Major McFarland replied “that they would be.” (Finding IV.) Neither the inquiry nor the reply is desirably clear; but as the material taken from the prism of the canal amounted to only 10,000 cubic yards, while the material excavated outside amounted to 55,603 cubic yards, it is manifest that neither party could have expected the latter work to be done for absolutely nothing. The reasonable, and indeed the only rational, interpretation tobe put upon the words whether the claimants would be allowed payment for excavating outside” is that the claimants intended to inquire whether they would be allowed payment for the extra trouble and expense of excavating outside. Moreover, it appears that the distance which this outside earth had to be moved was about double the distance of earth procured within the prism of the canal; that it had to be carried up an increased elevation, and that it had to be procured from borrow-pits, which had to be stripped of underbrush, vines, leaves, a net-work of robts, and a mass of decayed vegetable matter. (Finding III.) In other words, it appears that the moment the work of excavating should pass from the prism of the canal to the outside borrow-pits, the work of the additional embankment must be prosecuted at a largely increased cost to the contractors. In such a case it seems certain that tbe agent of tbe government must have understood that souiuch of the new work would involve a higher rate of compensation than the original contract-prescribed ; and it seems not unlikely that if Major McFarland had continued in charge of the work till the end,, this increased rate of compensation would have been adjusted by the contracting parties; that is to say, by him and the claimants.

A second cause of action set up by the claimants is for additional compensation for building a dam across the canal by order of Major McFarland. It was contended by the defendants’ counsel that as this dam was not a permanent structure, it was therefore one of the temporary dams which the contract provided the claimants should erect at their own expense for the protection of their own work. A sufficient answer to this is that the. dam was ordered after the claimants’ embankment was built, and that the defendants’ engineers in charge, and Chief of Engineers, have all treated the dam as work done at the defendants’ request and for their benefit. But this branch of the case differs from the preceding one in several essentials: First, the claimants said nothing to the engineer which would lead him to believe that an increased rate would be demanded; second, the excavation was not of a nature which must necessarily be more expensive than the work contemplated by the contract; third, the claimants accepted pay for it, and gave receipts, and made no specific demand for additional compensation before final payment. Our conclusion is, that by so doing they are precluded from seeking- additional compensation.

A third cause of action set up by the claimants involves a construction of the contract, and the services to which it refers are not in the nature of extra work, nor were they caused by any departure from the contract.

The general purpose of the contract, as declared by itself, was that the claimants should “do the work of repair and improvement in the first section of the canal around Big Muscle Shoals.” It contemplated rock excavation, and provided a rate of compensation therefor. All that the contract says in regard to compensation is this: “Rode excavation at the rate of $1.23 per cubic .yard.” All that the specifications say of the work of excavating is this: “ The thickness of rock to be removed varies from four feet to a few inches.” Whether this term “thickness” refers to the thickness of the strata, or to the thickness from the imaginary plane of the intended bottom of the canal to the upper surface of the rock, is not stated.

If the strata of the rock had been parallel to the grade line of the canal, that is to say, if they had run in precisely horizontal planes; and if the cleavage of the strata had been found precisely where it was wanted, that is to say, at the intended depth of the canal, there would be no controversy now between the parties. But such a state of things would have been phenomenal, and no man could have supposed it to exist. The means resorted to by the claimants were the ordinary and proper means for rock excavation; that is to say, drilling and blasting. The engineer who.made the contract anticipated that the work would be carried on by these means, and neither he nor his successor raised any objection either to the means or the method of the claimants as their work progressed. In order that the canal might be deep enough, the whole of a stratum would have to be broken up by blasting, and when the rock, so blasted, was removed, the actual would slightly exceed its theoretical depth. Should the claimants, according to the true intent of this contract, be paid for the quantity actually excavated, or for a theoretic quantity estimated from the grade line of the bottom of the canal?

That this question is a doubtful one even among experienced government engineers is attested by the fact that the vigilant engineer in charge, Captain King, was in doubt as to whether he should determine it for or against the claimants, and that he referred it to his superior officer for his determination.

“It would have been physically possible,” the findings say (YI), “for the claimants to have excavated to the grade line without going below it; but such work would not be designated as ‘rock excavation’ among engineers and contractors, but as ‘rock cutting,’and would have required a more skilled class of laborers, and would have been a more costly kind of work.” Of course the defendants, by handing the contractors a profile plan of the canal and telling them to excavate to the bottom grade line, could not have secured “rock cutting” or chisel work when they had contracted for nothing better than “rock excavation” or drilling and' blasting. We may, therefore, regard the means employed by the claimants as practically the only means for prosecuting that kind of work, and may also regard the surplus of rock taken below the grade line as a necessary and inevitable loss incident to tbe work of deepening tbe canal, wbicb must be borne by one party or tbe other, according to tbe reasonable intent of tbe contract.

If the contract bad bound tbe claimants to construct a canal according to a certain plan, or to excavate rock and earth down to a certain line, there would be little doubt that their pay must stop when that line was reached, and that excavation below it was an expense incident to the prosecution of their work. But here tbe contract is not for excavating to a designated line, but is simply for excavating, and tbe designated line comes into tbe case through tbe subsequent directions and measurements of tbe other party’s engineers. Tbe contract was draughted and prepared by the defendants’ engineers, and should have contained a clause which would not have left the matter in doubt. A designated line would have been a limitation upon tbe contractors’ compensation, but when tbe contract wbicb tbe defendants themselves prepared contains no such limitation, we do not feel at liberty to import it into tbe case by implication.

A fourth cause of action is for tbe additional expense cast upon tbe contractors in being compelled to raise rock more than 12 feet, tbe maximum height designated by tbe contract. Tbe engineer in charge decided that this item was well founded, and tbe controversy is really as to tbe rate of compensation, the one party,claiming forty cents per cubic yard, the other conceding one cent. The findings of the court fix the value of the additional service, and judgment will be accordingly.

The judgment of the court is that the claimants recover of tbe defendants—

For 55,G03 cubic yards of embankment, at 14 cents

per yard..:.$7,784 42

For excavating 2,580 cubic yards of rock, at $1.23

per yard... 3,173. 40

For raising 9,953 cubic yards of rock, 7 cents .per

yard... 696 71

Amounting in tbe aggregate to... 11, 654 53

Drake, On. J., dissented.  