
    WALTER D. LOVELL v. THE UNITED STATES.
    [No. 30359.
    Decided April 8, 1912.]
    
      On the Proofs.
    The contract provides that for extra work the contractor shall be paid the “ actual necessary cost,” to be determined by the engineer, plus 15 per cent. The questions involved are whether “ actual necessary cost ” includes “ liability insurance, depreciation of plant, expenses of superintendence,” and loss on account of boarding superintendent’s workmen; and whether the contractor, after having been paid on monthly estimates during the progress of the work, is not now “ estopped from, demanding an extra allowance as a part of the cost of the extra work”
    
    I.Where items of actual cost of extra work could not be accurately determined until after the completion of the extra work, the contractor was not bound to include them in his monthly estimates and is not estopped from seeking to recover for them.
    II.Where the engineer in charge, after consultation with the supervising and consulting engineers, gave assurances to the contractor “ that m making up the final estimate proper and equitable consideration will be given and an allowance be recommended to cover the liability insurance of laborers, the unloading and storing of construction material, and the depreciation of machinery,” the engineer in effect authorized the contractor not to include such items in his monthly estimates.
    III.Where the contractor boarded his men and lost money thereby instead of raising their wages (which the Government was to pay), his loss can not be charged to the Government as an element of “ actual and necessary cost ”; and the acquiescence of the engineer officer in charge did not bind the Government.
    
      The Reporters’ statement of the case:
    The following are the essential facts as found in the case by the court, except as stated in the opinion:
    VI. This claim thus certified and transmitted was disallowed by the Auditor for the Interior Department on September 10,1907, for the following reasons:
    “ All of the extra work under this contract appears to have been performed prior to June 1, 1907, and the cost thereof to the contractor, plus the 15 per cent provided for in paragraph 24, itemized and determined by the engineer, approved by the director, and paid for in full upon settlements heretofore made in this office. The Government’s obligation for this extra work under the terms of this contract has thus been fully discharged.”
    An appeal was taken by the Secretary of the Interior from this decision to the Comptroller of the Treasury by the following letter:
    “ DEPARTMENT OF THE INTERIOR,
    “ Washington, October, 5, 1907.
    
    “ The Comptroller of the Treasury.
    “Sir: Under date of July 24, .1905, a contract was executed by the United States with W. D. Lovell, of Minneapolis, Minn., for the construction of certain structures under the Huntley project, Montana. It is provided in paragraph 24 of the specifications governing this work that ‘ extra work, or work not provided for in the specifications, if ordered in writing by the engineer, will be paid for at actual necessary cost, as determined by the engineer, plus 15 per cent. Demand for such extra payment must be accompanied by the certificate of the engineer that such work has been satisfactorily performed or the material furnished and stating the amount to be allowed therefor. Such demand must be made before the time of the payment following the completion of said extra work or the furnishing of the material.’
    “During the progress of the work it became necessary to order the performance of a considerable amount of extra work. These orders were all presented in writing by the engineer and have been filed in the office of the auditor with estimates covering the cost of such extra work under the above-quoted provision as such cost was at the time computed. Upon the approach of completion of the work the contractor presented claims for reimbursement of certain expenses incurred by him in carrying on this extra work which had been omitted from the estimates theretofore made during the progress of the work. These items cover a total amount of $3,387.48, which was included in the final estimate presented to the auditor with recommendation for payment.
    “Under date of September 10, 1907, the auditor made settlement of the final estimate; disallowing the items of ‘ liability insurance; depreciation of plant and warehouses; fixed charges; and loss of boarding men.’
    
      “ In ordinary cases the amount of extra work performed under construction contracts is a small part of the total; in the present case, however, the amount of extra work comprised 29.09 per cent of the total amount of work performed.
    _ “ The items covered by Mr. Lovell’s claim are capable of direct and accurate calculation, as shown by the accounts submitted and represent a part of the actual necessary cost to the contractor of this extra work. In performing such work the contractor made use of his usual force of employees and mechanical equipment. All expenses incident to the maintenance of such force and equipment therefore became a part of the actual and necessary cost to the contractor for performing the extra work ordered by the engineer under the provisions of the contract.
    “The auditor’s disallowance is based upon the fact that payment having been made covering the performance of this extra work, further payments to the contractor can not now be made. It is believed, however, that inasmuch as the United States contracted to pay to the contractor the actual and necessary cost of performing this extra work, the Government is bound to make payment as agreed upon in the contract.
    “The contractor carried liability insurance on all his employees, and this was properly an item of the cost of the work to him. The amount in the estimate is derived from the rate stated in the contractor’s policy of insurance applied in proportion to the amount of labor employed on this extra work.
    “ The proportional depreciation of plant is a proper and reasonable charge under the terms of the contract, as it is an element in the cost of his work.
    “The fixed charges are likewise a part of the cost and have been determined in proportion to the amount of the extra work.
    “ The loss of boarding the men is a part of the contractor’s cost of the work and was taken at the proper proportion of the difference between the cost of boarding his laborers on the work and the amounts actually collected from them.
    “All these items are obtained by the engineer from the books of the contractor, and the proper proportion due to the extra work was determined by the engineer.
    “ It will be noted that the auditor states that ‘ all of the extra work under this contract appears to have been performed prior to June 1, 1907, and the cost thereof to the contractor, plus the 15 per cent provided for in paragraph 24, itemized and determined by the engineer, approved by the director, • and paid for in full upon settlements heretofore made in this office. The Government’s obligation for this extra work under the terms of this contract has thus been fully discharged.’
    “Manifestly these general items could not be accurately determined except by a thorough review of the contractor’s books and after the completion of the extra work. In the progress estimates from month to month the items of cost of labor and materials furnished were included and paid. Upon the completion of the work a board of engineers was convened in June, 1907, to consider and report upon the general claims of the contractor. This demand was made as required by paragraph 24 of the contract and an estimate in pursuance of the board report of June 21, 1907, was submitted to the auditor on August 16, 1907.
    “ The various requests of the auditor for information and further data were complied with and on September 10 he made settlement as stated.
    “ The orders of the engineer, the claims of the contractor, full statement and report by the engineer, and also by a board specially convened to consider this matter are on file in the office of the Auditor for the Interior Department.
    “It is respectfully requested that auditor’s setlement be revised by the comptroller and that a decision be made as to the legality of making payment of these items, amounting to $3,387.48.
    “Very respectfully,
    “ Jamies Rudolph Gareield, Secretary.
    
    “ G. W. W.”
    The Comptroller of the Treasury affirmed the decision of the auditor, his decision being reported in full in 14 Comptroller Decisions, 297.
    
      Mr. William B. King for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. George E. Boren (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Peelle, Ch. J.,

delivered the opinion of the court:

The question now arises on the defendants’ motion for a new trial on the ground of (1) error of fact, (2) error of law, and (3) newly discovered evidence, the latter resting on records in an executive department. While we overrule the defendants’ motion for a new trial, the former findings are withdrawn and the judgment vacated because of new findings and revised opinion this day filed. We allow most all of the amendments to the findings asked for by the defendants, including those based on the new or record evidence, though we adhere to our ruling on the law of the case, and will restate our reasons.

As the findings disclose, the claimant on July 24, 1905, entered into a contract with the Government, through the Acting Secretary of the Interior, for the erection of certain structures required in connection with the Huntley (Mont.) reclamation project, in accordance with the advertisement, proposal, and specifications made part of the contract set forth in the petition, excepting in so far as the specifications might thereafter be amended or modified by the terms of the contract, as set forth in article 1 thereof.

The contention is that the words “ actual necessary cost ” contained in paragraph 24 of the specifications include liability insurance, depreciation of plant, expenses of superintendents, and loss on account of boarding men.

Paragraph 24 of the specifications provides:

Changes and extra worlc. — The Secretary of the Interior reserves the right to make such changes in the specifications of work or material at any time as may be deemed advisable, without notice to the surety or sureties on the bond given to secure compliance with the contract, by adding thereto or deducting therefrom, at the unit prices of the contract, or at such allowances for changes of materials as shall be deemed just and reasonable by the engineer, whose decision shall be binding on both parties. The right to make material changes in the quantities listed in the proposal is an essential part of the contract, and bidders must make their estimates accordingly. Should any change be made in a particular piece of work after it has been commenced, so that the contractor is put to extra expense, the engineer shall make reasonable allowance therefor, which action shall be binding on both parties. Extra work or work not provided for in the specifications, if ordered in writing by the engineer, will be paid for at actual necessary cost, as determined by the engineer, plus 15 per cent. Demand for such extra payment must be accompanied by the certificate of the engineer that such work has been satisfactorily performed or the material furnished, and stating the amount to be allowed therefor. Such demand must be made before the time of the payment following the completion of said extra work, or the furnishing of the material.”

Paragraph 36 of the specifications provides that “the payments due shall be made to the contractor upon the presentation of proper accounts, prepared by the engineer and approved by the chief engineer, in accordance with the provisions made therefor and pertaining to the contract,” while paragraph 96 provides that the work shall be completed to the “ entire satisfaction of the chief engineer.”

Subsequent to the execution of the contract and after the claimant had entered upon the performance thereof he was, on May 2, 1906, directed through the supervising engineer to build, under said paragraph 24, certain structures listed on force account under the provisions of said paragraph. That is to say, at “ actual necessary cost,” to be determined by the engineer, plus 15 per cent.

Various other changes were from time to time ordered in the work for which claimant was paid at unit prices, as provided in said paragraph, but no payments were made for the items now claimed for. The engineer, under date of June 2, 1906, as set forth in his letter, directed the claimant to assemble the necessary plant and equipment to- enable him tc complete the work on force account as well as other work under the “ structures ” contract, for which work, as therein provided, he was assured that in making up the final estimate proper and equitable consideration would be given, and an allowance recommended to cover the liability insurance of laborers, the unloading and storage of construction materials, and the depreciation of machinery.

On May 31, 1907, when the “ structures ” work and extra work so ordered were completed to that date, the claimant forwarded his statement of account for the value of labor and material furnished, adding thereto 15 per cent as provided in said paragraph 24, which he certified was correct and which, after certification by the engineer of the Kecla-mation Service, was paid. No mention was made in said account of the items for which payment is now claimed; but upon completion of the work and before payment of the retained percentages under paragraph 96 of the specifications, the claimant did make claim for expenses of the class referred to, and by reason thereof a board of engineers of the Reclamation Service was assembled by authority of Mr. Savage, supervising engineer, and after conferring with the claimant they “recommended for settlement, subject to the regulations of the department,” the claim for liability insurance, depreciation of the plant, and storage warehouses upon the basis or ratio of the force work to the other work performed, and also the total loss in the boarding of men on force account; in all, $3,387.48. Thereupon the claim so recommended and certified was presented to the Auditor of the Treasury, who disallowed the claim on the ground that “ all of the extra work under this contract appears to have been performed prior to June 1,1907, and the cost thereof to the contractor, plus the 15 per cent provided for in paragraph 24, itemized and determined by the engineer, approved by the director, and paid for in full upon settlements heretofore made in this office. The Government’s obligation for this extra work, under the terms of this contract, has thus been discharged.”

From the decision thus rendered an appeal was taken to the Comptroller of the Treasury for the reasons stated by the Secretary of the Interior in his letter set forth in Finding VI; but the decision of the auditor was affirmed by the assistant comptroller (14 Comp. Dec., 297) on the ground that the items for which claim is here made were not a part of the “ actual necessary cost ” of .such extra work within the meaning of paragraph 24 of the specifications, holding that as the claimant at the end of each month during the progress of the work had made his demand for extra payment based on the cost of work and material, which he certified to be correct, as did the engineer in charge, and settlement was made therefor upon that basis, he was “ estopped from demanding an extra allowance as a part of the cost of the extra work”; that the Government was not “ responsible for the course of business of the contractor and the performance of the whole contract ”; that if it were, it “ would virtually create a partnership between the contractor and the Government as to losses only”; that if there had been a profit on the boarding of men, the same could not have been deducted from the “ extra work as an element of the cost of such work within the meaning of the contract.” No question was raised by the accounting officers as to the way in which the account herein sued on was certified by the engineers and acting director instead of by the chief engineer.

As is apparent from what has been said, the claimant bases his right to recover under paragraph 24 of the specifications on the ground that the language therein respecting “ extra work or work no.t provided for in the specifications” embraces the items of the present claim as a part of the “ actual necessary cost” determined by the engineer, about which there was a difference of opinion between the officers of the Keclamation Service and the accounting officers.

When the claimant from time to time presented his accounts, certifying that they represented the “ actual necessary cost,” the presumption might well be indulged that the items now claimed as a part of such cost were included therein, and upon this theory the claim was'disallowed by the accounting officers. The assurance given to the claimant, however, as before stated, when the extra work was ordered, that upon making up the final estimate'proper and equitable consideration would be given and an allowance recommended to cover the liability insurance of labor, the unloading and storage of construction material, and the depreciation of machinery, does not appear to have been before the auditor or the comptroller. This assurance to the claimant by the engineer so ordering the extra work was sufficient justification for his not including the items now claimed in his monthly accounts.

As the Secretary of the Interior, in his application for an appeal from the decision of the auditor to the comptroller, states that “manifestly these general items could not be accurately determined except by a thorough review of the contractor’s books and after the completion of the extra work,” we are not inclined to hold that the claimant is concluded by reason of having excluded the present items from his monthly estimates.

■ The views of the Secretary of the Interior that the items could not be accurately determined until after the corrvple tion of the extra work are in harmony with the assurances given by Engineer Stockton to the claimant on conference with the supervising and consulting engineers,- when the extra work -was ordered, to the effect “ that in making up the final estimate proper and equitable consideration will be given and an allowance recommended to cover the liability insurance of laborers, the unloading and storage of construction materials, and the depreciation of machinery.” Nothing was said therein about the loss on board of men, if, indeed, the question had then arisen. But, after the claimant had received the order for the extra work, there was some negotiation with the local engineers as to the meaning of the clause providing for the extra work and payment of the “ actual necessary cost,” the claimant contending that as there were no boarding houses in the vicinity it was necessary for him to establish boarding camps and board the men, which he did at less than the actual cost to him; and this course the claimant deemed best to continue, on the ground that to increase the price of board would, in his opinion, have necessitated an inci'ease in the price of labor. To this arrangement the engineers agreed, and that item, along with the other items of the claim, were approved by the board of engineers assembled, as stated, to inquire into the expenses incurred by the claimant other than those which he had certified as the “ actual necessary cost,” for which he had been paid.

In view of the assurances so given and of the ratification thereof by the Secretary of the Interior we must regard such action as a construction of said paragraph 24 embracing said claims as part of the actual necessary cost in so far as the extra work out of which they arose was ordered in Avriting. Said claims Avere subsequently approved not only by the board of engineers referred to, but were certified by the engineer, the supervising engineer, and the acting director, and presented by the claimant to the accounting officers along Avith his claim for retained percentages, which latter was paid under the certification by the accounting officers Avithout controversy.

The loss on the board of men can not be regarded as extra- work nor an element of the “actual necessary cost” of the work performed any more than the profit thereon would have diminished such cost. True, the claimant doubtless acted in good faith in continuing to board the men at a loss rather than to increase the price and thereby take chances on having to increase wages. And although this course was acquiesced in by the engineer officers, we can not agree that it was within their province so to do under the contract. They were there as the agents of the Government to direct the execution of the contract and the performance of any extra work which they might determine was necessary for the effectual completion of the work; and that there might be no mistake about such extra work they were required to give the directions therefor in writing.

The defendants contend, on the authority of Sweeney v. United States (109 U. S., 618), Railroad Company v. March (114 U. S., 549, 553), Hoffeld (36 C. Cls., 230, 235), and McIntyre (44 C. Cls., 448), that under paragraphs 24, 36, and 96 of the specifications the certification by the chief engineer was a condition precedent to the payment thereof.

The extra work, though authorized by the specifications, was not included therein, and for that reason was to be “paid for at actual necessary cost, as determined by the engineer, plus 15 per cent.”

We are inclined to agree with the Secretary of the Interior and the engineer officers having to do with the work in their construction of the contract as embracing these items of the claim, and we do so on the ground, as before stated, that the amount of such claims could not have been definitely ascertained until the completion of the work and the final estimate, of which the claimant was advised by the engineer officer at the times such extra work was directed to be done.

True, the actual amount paid for labor and material could be determined, but the liability insurance of laborers, the depreciation of plant, as well as the unloading and storage of construction material, necessarily depended upon the time required to complete the work and store such material. This in effect was the view of the officer ordering the extra work to be done, and for that reason — none other being assigned — the claimant was assured that such items would be considered in the final estimate as part of the actual and necessary cost of the extra work and that an allowance therefor would be made and recommended for payment. Upon this assurance the claimant, after asserting his right to be paid therefor, appears to have relied. That he was justified in this course is abundantly shown by the recommendation of the board of engineers appointed to consider his claims.

The claim for $3,387.48 was not only considered and passed upon by the board of engineers appointed by the supervising engineer, as before stated, but was certified both by the engineer and his assistant, and was also certified with other accounts, by the engineer and supervising engineer, as Avell as the Director of the Reclamation Service, the latter ofiicer being the superior of the chief engineer of said service. This approval was followed by a release from the claimant, as provided by the contract, of all claims and demands in law or equity on account of said contract.

Prior thereto, the Reclamation Service, as a branch of the Geological Survey, was made independent of the Geological Survey, and the head thereof was designated as director, which latter officer, by authority of the Secretary of the Interior, was directed “ to give administrative examination and approval of the accounts of fiscal officers and claims of creditors submitted for direct settlement in the Treasury Department.” This being true, we must hold that the certification of the account by the officers named, with the approval of the director, was sufficient, and that the additional 15 per cent by way of profit on the work, provided for in paragraph 24, was a matter of calculation thereunder, to be made by the accounting officers on the sum so certified.

Ordinarily expenses for insurance of men and depreciation of plant are included in a contractor’s bid, and in respect to the items of work expressly' provided for in the specifications for which he was paid that was true in this case; but the “ extra work or work not provided for in the specifications ” was to “ be paid for at actual necessary cost,” to be determined by the engineer, plus 15 per cent; so that: the “ actual neces'sary cost ” under the custom prevailing included the liability insurance of men as well as deprecia-. tion of plant, wliicli was determined by the engineer to be a part of the actual necessary cost of the extra work, which, as found by th^ board of engineers, was 29.09 per cent of the total work done. ^

The allowance of the items herein so recommended for payment by the board of engineers and approved as aforesaid was upon the basis of the percentage of extra work to the whole work; that is to say, more than 29 per cent of the entire work was extra. Had the claimant herein been permitted to bid on this extra work, he, of course, would have included therein his profit, but in lieu of such bid the extra work was to be paid for at actual and necessary cost, as determined by the engineer, plus 15 per cent. This being true, and the same having been determined by the officers of the Government, who appear to have acted in good faith with the claimant, it can not be said that such items were not a part of the actual and necessary cost of the extra work so determined by the engineer; that is to say, the engineer in charge. The actual necessary cost was to be determined not by the chief engineer, but by the engineer in charge. This having been done, can it be said that the mere failure of the chief engineer to formally certify to the correctness of the account, as thus determined, would defeat the claimant’s right to recover? We think not, especially since the account is certified by the Director of the Declamation Service, the superior officer of the chief engineer, and in effect approved by the Secretary of the Interior both as to the method and the amount, who asked payment therefor.

Had the actual and necessary cost of the work been left to the discretion of the chief engineer, as well as the certification of the account, the defendant’s contention that his approval was a condition precedent would have more force and would be more in line with the cases relied on; but the specification points out by whom the actual and necessary cost is to be determined, and that being done, there was nothing left for the,chief engineer except his formal approval or rejection of the account. But under the direction of the Secretary of the Interior, as hereinbefore stated and as set forth in the findings, the Director of the Declamation Service was directed to give administrative examination to claims of creditors, and this, we think, under the circumstances of this case, is a sufficient compliance with the contract, especially since it is not shown that the claimant was in any fault in respect thereto.

The acting chief engineer, in his letter of June 6, 1906, gave it as his opinion that the items here claimed for were “ covered by the 15 per cent in addition to the total cost of the work.” But if we should treat this action as a disapproval of the account for the reason stated, the question would still remain whether the items were so covered; and as that question was determined by the engineer in charge under the contract, and his action was approved by the board of engineers assembled by authority of the supervising engineer and by the Director of the Reclamation Service, the superior officer, followed by the approval in effect by the Secretary of the Interior in his application for appeal from the auditor to the comptroller, we think the questions raised by the defendants under paragraphs 36 and 96 of the specifications are met. Thus believing, the claimant is entitled to recover on the items of liability insurance of laborers, depreciation of plant, fixed charges, and depreciation of warehouses, or $2,251.36, plus 15 per cent, making in all $2,589.06, for which judgment will be reentered.

The item for loss on board of men is disallowed for the reasons stated.  