
    CHARLES J. NOURSE, Jr., Assignee Of Paulding Kemble & Co., v. THE UNITED STATES.
    [No. 15449.
    Decided December 2, 1889.]
    
      On the Proofs.
    
    A contract requires the delivery of smooth-hore cannon to the claimants for alteration. While the work is in progress the Government orders it to be suspended. A supplemental agreement “ amenda-tory of the contract” then provides that the Government shall pay a special sum for the work already done and allow the claimants to complete it, should the Government desire to have it done. The claimants then give bond for future performance. After waiting five years they bring suit for their gains prevented by not being permitted to complete the work.
    Where an amendatory agreement contemi>lales the suspension of work and provides pay for that already done, bnt keeps alive the original contract, the contractors do not relinquish thereby the profits they may be entitled to.
    
      II. Where a contract,contemplates that the Government shall decide when suspended work shall he resumed or the original contract be abandoned, unreasonable neglect to decide is equivalent to a decision.
    III. No damages can be recovered on a counter-claim if the contractor was not in default when he was ordered to suspend work.
    
      The Reporters’ statement of the case.
    The following are the facts of this case as found by the court:
    I. For some years prior to the 30th day of August, 1884, and between the 20th day of October, 1880, and the said 30th day of August, 1884, Gouverneur Paulding, Gouverneur Kemble, James N. Paulding, and Peter Kemble were copartners, engaged in business in the city of New York and elsewhere, under the ñrm name or style of Paulding, Kemble & Go., and as such firm carried on the business of manufacturing, converting, and furnishing ordnanee supplies and gun tubes, at what has long been known as the West Point Foundry, at the village of Cold Spring, in the county of Putnam, in the State of New York.
    II. On or about the 30th day of August, 1884, the said Paul-ding, Kemble & Co-, being insolvent, made, executed, and delivered unto the claimint a general assignment of all their property for the benefit of their creditors, pursuant to the statutes of the State of New York, the State in which the said assignors and each of them resided and carried on their said firm business: that the claimant duly accepted said assignment and the trust thereby created, and the said assignment was, on said 30th day of August, 1884, duly recorded in the office of the clerk of the city and county of New York pursuant to the statutes aforesaid.
    Thereafter the claimant duly filed his bond conditioned for the faithful performance of his duties as assignee under said assignment, pursuant to the statutes aforesaid, which was on the 2d day of October, 1884, duly approved by a judge of the court of common pleas for the city and county of New York, to whom jurisdiction in that behalf pertained, and the claimant thereupon entered upon the performance of his duties as such as-signee, and has since been and now is engaged in the business of the trust thereby created, and as such assignee is invested by virtue of said assignment with all the right, title, and interest of said Paulding, Kemble & Co., or of the said individuals composing said firm, in and to all of their property, real and personal, including the cause of action set forth in the petition herein.
    III. The following four contracts were duly entered into by the parties, thereto:
    4‘Articles of agreement entered into this 22d day of October, eighteen hundred and eighty, between Paulding, Kemble & Co., of Cold Spring, in the. county of Putnam, State of New York, of the first part, and the United States, by Brigadier-General S. V. Benét, Chief of Ordnance,'acting under the direction and by authority of the Secretary of War, for and in their behalf, of the second part.
    “ 1st. This agreement witnesseth, that the said Paulding, Kemble & Co., for themselves, their successors or assigns, and the said Brig. General S. Y. Benét, for and in behalf of the United States of America, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other as follows, viz :
    “ That the said party of the first part does hereby contract and engage with the said United States to furnish four (4) coiled wrought-iron tubes, with muzzle-collars of twelve (12) inches caliber, for use in the fabrication of the same number of twelve-inch breech-loading rifles, model of 1880, cast-iron body lined with a steel-jacketed coiled wrought-iron tube, breech insertion, the jacket of the tube being prolonged to the rear, and adapted for reception of the breech-block. These tubes are to be identical in general mode of manufacture, and fully equal in quality, workmanship, and finish to the experimental tube furnished for and tested in experimental 8-inch breech-loading rifle, No. 1, except that that portion which provides for the seat of the gas check is to be of low steel or f, rged wrought iron — as may hereafter be determined — perfectly welded to the coiled wrought iron portion of the tubes. These tubes are tobe subject to inspection during all stages of their manufacture; also to the water-test of one hundred and twenty (129) pounds per square inch, and to the powuler-proof after insertion. They are to be standard in caliber, the variations allowed being those adopted by the Ordnance Department for breech-loading rifles (converted), and their exterior dimension are to be such as to admit of receiving the finishing cuts for insertion into the steel breech receivers and cast-iron casings, as x>er drawing hereto attached, which forms part oí these specifications. The bar iron (a quality) to be used in their fabrication must first pass a satisfactory test as to tensile strength and other physical qualities. It is further stipulated and agreed, that if any of the said coiled wrought-iron tubes shall, tifter proper insertion and adjustment in the steel jackets and the cast-iron casings for which they are provided, fail under the powder-proof by reason of any defect of workmanship applied or material employed by the said party of the first part in their manufacture, the said party of the first part shall replace the tubes failing under the powder-proof by tubes with muzzle-collars, fulfilling all the conditions of this contract.
    “'2d. All these tubes with muzzle-collars shall be delivered by the said party of the first part at their works on or before June 30,1881.
    “3d. The said party of the first part shall indemnify the Un ited States, and all persons acting- under them, for all liability on account of any patent right granted by the United States which may affect the tubes with muzzle-collars herein contracted for.
    “4th. For the tubes with muzzle-collars herein contracted for, which shall Lie delivered, inspected, and approved as aforesaid, there shall be paid by (lie United States to the said Paulding, Kemble & Co., their successors and assigns, on bills in duplicate, made in approved form and duly authenticated by the proper officers of the Ordnance Department, the sum of seven thousand seven hundred dollars for each tube and muzzle-collar, in the funds furnished for the purpose by the United States.
    . “5th. Payments shall be made on certificates of inspection, and receipt by the United States inspectors at the rate stated above.
    “ 6th. If any default shall be made by the party of the first part in delivering all or any of the tubes with muzzle-collars mentioned in this contract of the quality and at the times and places herein specified, then, in that case, the said party of the first part shall forfeit and pay to the United States the sum of seven thousand dollars, as agreed and liquidated damages.
    “ Kothing contained in this stipulation shall be construed to ]«’event the Chief of Ordnance, at his option, upon the happening of any such default, from declaring this contract to be thereafter null and void, without affecting the right of the United States to recover for defaults which may have occurred ; but in case of overwhelming and unforeseen accident-, by fire or otherwise, the circumstances shall be taken into equitable consideration by the United States before claiming forfeiture for non-delivery at the time specified.
    “7th. Neither this contract nor any interest therein shall be transferred by the said Paulding, Kemble & Company to any other party; and any such transfer shall cause the annulment of the contract so far as the United States are concerned. All rights of action, however, to recover for any breach of this contract by the said Paulding, Kemble & Company are reserved to the United States.
    
      “ 8tb. No member of or delegate to Congress, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit which may arise therefrom.
    “Paulding, Kemble & Co. [seal.’
    “S. V. Benét. [seal.'
    
      “ Brig. Geni., Chief of Ordnance.”
    On the 1st December, 1880, two similar contracts, substantially identical in terms, were entered into by the, same parties, and on the 27th December, 1880, a third.
    IV. The five 10-inch guns to be converted were delivered to the claimants December 22, 1880; the two 15-inch guns April 22, 1881, and the gun to be converted into a mortar howitzer, March, 1881.
    V. On November 7,1881, after much work had been done, the further performance of work under the said several contracts was suspended by direction and upon the order of Brigadier-General S. V. Benét, Chief of Ordnance, on behalf of the United States, excepting the work of converting one of the five 10-iueh guns under the first above-mentioned contract, dated December 1, 1880, and the work of converting one of the two 15 inch guns under the second above-mentioned contract, dated December 1,1880. The work was not sufficiently advanced at that time to admit of its completion by December 1,1881. A short time before the suspension two guns similarly converted at the South Boston Iron Company’s works had failed in firing at Sandy Hook. The time for completing the suspended work in three of the contracts had not expired on November 7,1881. The time in the contract dated October 22, 1880, requiring the tubes to be delivered by June 30,1881, had been extended at the claimants’ request four months, which extension expired October 31, 1881. October 29,1881, the time was again extended to February 1,1882, and on January 17,1882, to August 1, 1882. All the contracts were afterwards extended to June 30,1883, upon the request of the claimants, made at the suggestion of the defendants. ' ' ’
    Thereafter the parties entered into the following agreement:
    “ Whereas the United States of America, by Brigadier-General S. V. Benét, Chief of Ordnance, acting under the direction and by authority of the Secretary of War, has made contracts with Paulding, Kemble & Go. as follows, viz:
    
      “ C — Contract dated October 22d, 1880, for 4 coiled wrought-iron tubes with muzzle-collars for 12" breech-loading rifles, at $7,700 each.
    “ D — Contract dated December 1,1880, for converting 5 10" smooth bore guns into 8" breech-loading rifles, at $3,780 each.
    
      il E — Contraed, dated December 1, 1880, for converting 2 15" smooth-bore guns into 11" breech-loading rifles, at $9,000 each.
    “F — Contract dated December 27, 1880, for converting 1 15" smooth bore gun into a 12" breech-loading chambered rifled mortar-howitzer, at $8,258.
    “ And whereas the Chief of Ordnance has, in the interest of the United States, directed the suspension of work on the above-named contracts, thereby preventing the contractors, Paulding, Kemble & Co., from completing said contracts at this time; therefore the following supplemental articles of agreement amendatory of said contracts are hereby entered into this thirteenth day of December, eighteen hundred and eighty-one, between Paulding, Kemble & Co., of Cold Spring, in the county of Putnam, State of New York, of the first part, and the United States, by Brigadier-Ceneral S. Y, Benét, Chief of Ordnance, acting'under the direction and by authority of the Secretary of War, for and in their behalf, of the second part:
    “ 1st. This agreement witnesseth, that the said Paulding, Kemble & Co., for tliemseLves, successors, or assigns, and the said S. Y..Benét, for and in behalf of the United States of America, have mutually agreed, and by these presents do mutually covenant and agree to and with each other, as follows, viz:
    “ That the said United States will now make partial payments to the said Paulding, Kemble & Co. to the extent of the following values of the work thus far finished and delivered to the Unit< d States as per report of the inspector at the foundry, dated December 6, 1881, viz:
    On 'contract of October 22, 1880, for 4 coiled wrought-iron 'tubes with muzzle collars. $30,090
    On contract of December 1, 1880, for converting 5 10" S. B. guns into 8" B. L. rifles. 5,335
    On contract of December 1, 1880, for converting 2 15" S. B. guns into 11" B. L. rifles. 4,865
    Oil contract of December 27, 1880, for converting 12 15" S. B. guns into a 12" B. L. chambered rifled mortar-howitzer. 1,739
    Making a total of.-. 42, 029
    
      ■“ and Paulding, Kemble & Co. hereby contract and agree to complete their several contracts, when so permitted, subject to all the requirements and penalties thereof, aud if auy default shall be made by the said Paulding, Kemble & Co., their sue-cessors or assigns, in executing said contracts as provided or delivering said tubes or other ordnance mentioned in this contract, then in that case the said party of the first part shall forfeit and pay to the United States the sum of $40,000 as agreed and liquidated damages.
    “7th. Neither this contract nor any interest therein shall be transferred by the said Paulding, Kemble & Go. to any other party, and any such transfer shall cause the annulment of the contract so far as the United States are concerned. All rights of action, however, to recover for any breach of this contract by the said Paulding, Kemble & Go. are reserved to the United 8 ates.
    “ 8th. No member of or a delegate to Congress nor any person belonging to or employed in the military service of the United States is or shall be admitted to any or share or part of this contract, or to any benefit which may arise herefrom.
    “ PauldiNG-, Kemble & Co. [seal.”
    “S. Y. BeNét, [seal.'
    “ Brig. Geni., Chief of Ordnance, V. 8. A.”
    The claimants were required to and did give a new bond, with sureties for the performance of this contract.
    In this amount of $42,029 was included the claimants’ profits-on the work so far as it had progressed. The amount was paid by the defendants. The two guns excepted from the suspension were subsequently completed and delivered, and claimants were paid the contract price for one, $2,718, June 16,1882, and for the other, $6,222, September 28, 1882.
    VII. After the suspension aforesaid, when the time fixed in. the said four contracts respectively for the completion of the-work not excepted from the terms of the suspending order expired, Paulding, Kemble & Go., at the suggestion of the Ordnance Department, applied for and received written extensions, of time to complete the same, and thereafter, upon similar suggestions, applied for and received similar extensions upon all of said contracts until June 30, 1883, when the last extensions expired.
    YI1I. September 7, 1881, Paulding, Kemble & Go. wrote-the Chief of Ordnance asking that he would decide as soon as-convenient whether the remaining 11-inch and 8-inch breech-loading guns were to be completed on the original contracts, or if they were to be canceled. So reply was made to this letter. That on December 12, 1882, Paulding, Kemble & Go. again wrote to the Chief of Ordnance, stating that if the guns-were to bo finished it would be necessary to go on with the work at once in order to complete them by June 30,1883, when, untier the law, the appropriation therefor would have to be returned to the Treasury, while, if they were to bo canceled, they desired to be paid the amount due thereunder as soon as possible, and asking to know at once the intentions of the .Bureau in regard thereto. June 20, 1883, Paulding, Kemble & Go. notified the Chief of Ordnance in writing that the extensions granted on the said suspended contracts would expire on the 30th instant, and asked that they be extended, or that such action be taken as might b.e deemed proper $ to which, however, no reply was made and no further extensions were granted.
    IX. The order suspending work under said contracts was never revoked or modified, and the United States never requested nor permitted Paulding, Kemble & Co. to continue or complete the’ same, although during such time Paulding, Kemble & Go. were always ready and willing to complete said contracts on their part if permitted by the United States.
    X. In consequence of the failure of the defendants to permit the claimants to proceed with that part of the work which was suspended on Xovember 7,1881, at some time between December 13, .1881, and June 30, 1883, they lost the profits that would otherwise have accrued to them on that part of the work. This loss, calculated by taking the difference between the cost of doing the work and what they were to receive for it under their several contracts, and making a reasonable deduction for the less time engaged and for release from the care, trouble, risk, and responsibility attending its full execution, amounts to $4,998.80.
    XI. The counter-claim of the defendants consists of alleged forfeitures for failures to perform the work within the time specified in contracts, as follows :
    Contract October 22, 1880, four 12-incli wrought-iron tubes. $7,000
    Contract December 1,1880, five 8-inch conversions. 5,000
    Contract December 1,1880, steel parts, two 11-inch guns. 2,500
    Contract December 1, 1880, two 11-inch conversions. 4,000
    18,500
    Facts bearing upon this question appear in Finding Y.
    
      
      Mr. George W. Wicker sham, for tbe claimant.
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton), for the defendant.
    All work under the old contracts, with the exception of the completion of two guns in November, 1881, had beeu suspended indefinitely by direction of the Government.
    It is possible by reason of this suspension the said firm might have had at that time a claim for damages, except, first, for the reason that the steel furnished by them under contract was rejected as unreliable; and, second, that they were not in condition to comply with the terms of their contracts as to time.
    The contractors having failed in the performance of an essential part of the contracts, the whole migtit have been repudiated by the Government. (Norrington v. Wright, lio U. S. It., 188; Filley v. Pope, 115 TJ. S. It., 213; Cleveland Bolling Mill v. Rhodes, 121 U. S. R., 2C0.)
    It is true that in the cases cited mercantile transactions as to time of delivery of goods are specially referred to, but the principle decided is the same as that presented in the case at bar. In no transactions, perhaps, is time so essentially the essence of a contract as in the delivery of ordnance stores or manufactures.
    It is beyond question, under the facts in this ease, that the Government could not only have repudiated the contracts at the time fixed for their performance, but could have demanded and enforced the penalties as agreed and liquidated damages.
    Without special authority, conferred by law, the ordnance officers had not the power to yield any right of the United States obtained under contracts legally and regularly executed.
    The Government had the right to suspend the work, but in doing so it would be subject to the same liability for non-pert'orniance that an individual would be under the same circumstances. It had a right to make settlement, under the law, with the contractor. “ When a settlement is made upon a full knowledge of all the facts, without concealment, misrepresentation, or fraud, it must be equally binding upon the Government as upon the contractor; at least such settlement can not be disregarded by the Government without returning to the eon tractor the property surrendered as a condition of its execution.” (Oorliss Steam-Ungine Go. v. United States, 91 0. Cls. LI., 521.)
    Notwithstanding the decision in Oorliss Steam-Ungine Go. Case (supra) has special application to the rights of the Secretary of the Navy to make settlement, the principle decided would seem to apply with equal force to the Secretary of War,, under his general authority and the authority conferred by statute upon the Chief of Ordnance. (R. S., 1164.)
    But a public officer has no legal power to surrender by compromise a right or release a penalty due the United States.
    He has no power to advance public money. “And in all cases of contracts for the performance of any service, or for the delivery of articles of any description for the use of the United States, payment shall not exceed the value of the service rendered or of the articles delivered previous to such payment.” * * * (ft. S., § 3648.)
    The Secretary of War was justified, subject to the provisions of said statute, to pay for work already done; he had no right or legal authority to remit any forfeiture or penalty incurred by the contractor. Even if such authority should be conceded, he did not exercise it.
    Whether the ordnance officers exceeded their authority in, making a supplemental contract is immaterial to the issue presented. The contractors were competent to contract, and their rights under the contracts of 1880 are subordinated thereto.
    There was no contract, either express or implied, that the Government ever would permit the completion of the work. The contract was conditioned to take effect, provided the ordnance officers in their discretion concluded to finish the work. The contractors submitted the question of such completion to such discretion.
    It is true that subsequent to such agreement the original contracts were extended by consent of the Government, but such extensions were subject to the rights of the parties under said agreement of December 13, 1881; that is to sajq if permitted to complete the work, the terms of the original contracts-as to character of work, etc., should be preserved.
    As the contractors have not been required to complete the work, they demand damages.
    It is not necessary to consider, in this connection, the rule as to the assessment of damages upon which such claim is made. There has been no breach of contract; the completion of the work has never been required. Such work has not been given by the Government to other parties. This alone would constitute a breach of said contract.
    This case does not come within the rule laid down in the case of United States v. Speed (8 Wall., 77-84), that when “the obligations of plaintiffs require the expenditure of a large sum in preparation to enable them to perform it and. a continuous readiness to perform, the law implies a duty on the other party to do whatever is necessary for him to do to enable plaintiffs to comply with their promise or covenant.” In this case the cost of preparation was computed and paid for by the Government.
    The element of preparation does not therefore enter into the question as to whether thereby an obligation on the part of the Government to permit or require the completion of the work should not be implied. Claimant, under the circumstances of this case, has not been injured, and under the common-law rule would not be entitled to damages.
    There is no power vested either in the Secretary of War or in the Chief of Ordnance to relinquish any just claim of the Government. The limit of their discretion would appear to be that, the circumstances of the case justifying it, they need not insist upon a penalty for non-performance of a contract. But in case of suspension of a contract, if the contractor sues for the breach, and claims damages on the equitable ground that, although rendering’ no service, he is entitled to profit he might have made had he rendered service, then the equitable principle applies, that before asking equity he must do equity.
    Applying the principle to this case, Paulding, Kemble & Co. could at the time fixed for the completion of the work under each contract have been called upon to pay the penalty for non-performance.
   Scoeield, J.,

delivered the opinion of the court.

This suit grows out of four different contracts between the United States and Paulding, Kemble & Co.

By the first contract, dated October 22, 1880, the claimants agree “to furnish four coiled wrought-iron tubes, with miizzie-eollars of 12-inch caliber, for use in the fabrication of the same number of 12-inch breech-loading' rifles,” to be delivered on or before Jane 30, 1881. The defendants were to pay $7,700 for each tube.

By the second contract, dated December 1, 1880, the claimants agree “ to do the work of converting five 10-inch smooth-bore Rodman guns into 8-iuck breech-loading rifles, by inserting from the rear coiled wrought-iron tubes,” to be delivered December 1,1881. For each gum so converted the defendants were to pay $3,780.

By the third contract, dated December 1,1880, the claimants agree “to do the work of converting two 15-inch smooth-bore Rodman guns into 11-inch breech-loading chambered rifles, by inserting from the rear wrought-iron coiled tubes,” to be delivered December 1, 1881. For each gun so converted the defendants were to pay $9,000.

By the fourth contract, dated December 27, 1880, the claimants agree “to do the work of converting one 15-inch smooth-bore Rodman gun into an experimental 12-inch breech-loading chambered rifled mortar-howitzer, by inserting from the rear a wrought-iron coiled tube,” to be delivered within fourteen months from date. The defendants were to pay therefor $8,258.

In all of these contracts the defendants agree to deliver the smooth bore guns to the claimants, and accept the return of them, after conversion, at the claimants’ works.

November 7,1881, after considerable progress in the performance of the contracts had been made by the claimants, the entire work was ordered to be suspended by the defendants, except on two specimen guns — one of the 8-inch and one of the 11-inch caliber. Shortly before the suspension two guns, similarly converted for the Government by another firm, had failed in firing.

The suspension was not based upon any alleged default, on thiTpart of the contractors, but was otherwise made “ in the interest oFThé United Stales.” Counsel for tne defendants claim that it is a fair inference from the facts that the defendants were apprehensive that this change of Rodman guns into rifles would prove a failure, and they wished to test it with two experimental guns, one of each caliber, before proceeding further. While this inference approves the motives of the defend ants’ object in making the suspension, it also tends to relieve the claimants from suspicion of fault.

December 13, 1881, about five weeks after notice of suspension, and in consequence of it, the parties entered into a new arrangement, which they called supplemental articles of agreement, amendatory of the contracts.”

In this amendatory contract the defendants agree to pay the ■claimants for the work already done $42,029, and to allow them to complete the work if they (the defendants) should eventually desire to have it done by anybody. The claimants agree to accept this sum in full satisfaction of all work and profits up to that date, and to complete their several contracts “when so permitted ” by the defendants on the original terms.

In determining the effect of this “amendatory contract” ■upon the pending claim we must consider the status of the parties immediately before its execution.

The defendants had suspended part of the work yet to be done~uncier the~cbntracts, but had not undertaken to abrogate the contracts themselves. The suspension was not entire and it might not be permanent. The word suspension carries with it an intimation of resumption. In consequence of it, how•ever, the claimants were at liberty" to abandon the contracts altogether, and demand pay not only for all work then done, including reasonable profits, but additional profits, if any coukT be made to appear on the un-execnted portion of the contracts. They did not, however, insist upon all their rights at that time. By entering into the new contract they suspended or waived, at least for the time being, their present right to claim future profits. They even consented to the continuance of the suspension until the defendants could determine whether they wanted the work to go on or not.

Did they also agree to relinquish their claim for future profits in case the defendants should filially decide to abandon the work They certainly did not in terms, nor< an such relinquishment be fairly inferred from anything in the contract itself. All the inferences seem to point in the opposite direction. The four original contracts were kept alive by stipulation. The claimants agreed to go on with them as soon as “permitted.” They were required to and did give new bonds for future performance. They were thus required to hold themselves in readiness to resume work when so ordered. It is recited in the amendatory contract that the amounts paid are “partial payments” on the original contracts “to the extent of the values of the work thus far finished and delivered.” The defendants on several occasions extended the time for completing these contracts, awaiting their final decision.

From these facts and circumstances the court comes to the conclusion that the claimants did not, by the amendatory contract, relinquish Their right* to claim their profits on the unex-ecuted portion oOhe fou'Fcontracts whenever the defendants-should aecide to abandon them.

Rut it is said the defendants have never so decided. That is true, but they have done what is equivalent to such a decision.. Although repeatedly urged by the claimants to decide the question, they kept them waiting for the. decision until after the appropriation for the work had been withdrawn from the-control of the Department and covered into the Treasury.. They waited five years before bringing suit.

By this long<delay_$he defendants, in effect, abandoned the contracts, and thereby revived tfie claimaúts’right to'sueTor damages.

In the case of Speed v. The United States (8 Wall., 77) the Supreme Court lays down the rule for measuring damages in such cases as follows: “ The difference between the cost of doing the work and what the claimant was to receive for it, making, reasonable deduction for the less time engaged and for the release from the care, trouble, risk, and responsibility attending, a full execution of the contract,” is the measure of damages.

Following this rule, the court has calculated the claimants” damages at $4,998.80.

The defendants’ counter claim consists of the following items:

Contract October 22, 18SO, four 12-incb wrought-iron tubes . $7,000
Contract December 1, 1880, five 8-inch conversions. 5,000
Contract December 1, 1880, steel parts, two 11-inch guns. 2,500
Contract December 1, 1880, two 11-inch conversions. 4,000
18,500

These items are the forfeitures or liquidated damage provided for in the several contracts for non-pérformance thereof.

As to the three items first named, it is enough to say that the time specified in the original contracts for completing the work had not expired when it was suspended by order of the defendants.

As to the fourth item, the original time fixed for completion of the work had been extended by agreement of parties to a time subsequent to the date of the suspension.

At the time of suspension, therefore, the defendants were not entitled to claim these penalties, and certainly they could not afterwards hold the claimants to perform the work which they (the defendants) had forbidden them to do.

Judgment will be entered for the claimants in the sum of $4,998.80, and the counter claim will be dismissed.  