
    SOUTH BOSTON IRON WORKS v. THE UNITED STATES.
    [No. 16790.
    Decided January 23, 1899.]
    
      On the Proofs.
    
    The claimant contracts to make 12-inch muzzle-loading rifled guns. In the process of manufacture one' attempt at casting is a failure, due to the inadequacy of the flasks furnished by the defendants, and another to imperfect cooling. The claimant seeks to reform the contract.
    
      I.Since the passage of the Act March 3, 1887 (24 Stat. L., 505.), the court has equity power to reform a contract so as to effectuate the full intention of the parties.
    II.Where a contract prepared by one party has been signed by the other after careful examination and consideration, previous correspondence will not be considered part of the agreement, nor be used to reform the contract.
    III. Under a contract for the manufacture of guns, the defendants can not be held responsible for the failure of an attempt in casting due to imperfect cooling.
    IV. If the defendants are to furnish the flasks, under a contract for the manufacture of guns, they will be liable for a failure resulting from the inadequacy of the flasks.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. Claimant is a corporation duly incorporated and existing under the laws of the State of Massachusetts.
    Under the act of Congress approved March 3.1883, chapter 96, provision was made for making and testing certain 12-inch cast-iron rifled breech-loading cannon, and a sum of money was appropriated for the manufacture and testing of that class of ordnance. Up to that time no guns of this size had been cast of iron, and such casting was, both to the Ordnance Department and to claimant, experimental work.
    II. After the passage of said act the Chief of Ordnance of the United States began a correspondence with claimant for the purpose of procuring claimant to cast the guns.
    Among the letters exchanged in the correspondence were the following:
    “OrdNánce Office, War Department,
    “ Washington, D. 0., April 25,1883. “The South Boston Iron Works,
    “ Boston, Mass.
    
    “(Through Capt. D. A. Lyle, Ordnance Department, U. S. A.)
    “Gentlemen: Herewith I enclose plans for the following-named guns, with the request that you will furnish me with estimates of the cost at which you will undertake their fabrication at your works, and which shall serve as a basis for drawing up the requisite contracts, viz: 2 12-inch cast-iron B. L. rifles, weight 51 tons; 1 12-inch cast-iron B. L. rifle, hooped with steel, weight 51 tons; 1 10-inch cast-iron B. L. rifle, wrapped with wire, weight 26 tons; 112-inch cast-iron M. L. mortar hooped with steel, weight 13 tons.
    
      “ In making estimates on the above it may not be possible to cover the entire work in each case, as all the details can not at present be communicated to you, You will accordingly be governed by the following considerations: The two (2) 12-inch cast-iron rifles would be cast and completed throughout, the Department furnishing the steel for the breech mechanism; the cast-iron bodies for the other three (3; guns would also be cast at once, and the hoops and wire, to be furnished by the Department, would be put in place on the guns as soon as received at your works, where the guns would be rifled and the breech mechanism made and iitted after the application of the hooping or "the wire. The steel parts for the breechblock and the mushroom head for all the guns will be furnished by the Department. Both the hoops and the cast-iron bodies must be accurately turned to correspondió adeterminateshrink-age, and the hoops will be put on hot. A suitable heating furnace or oven will be required for this purpose. The hoops when delivered will thus require a finishing cut to fit them for their application. The steel wire will be wound under tension, but the details of the operation and the mechanical device for securing the tension can not at present be furnished. In the-cases of? the three (3) built-up guns, therefore, your estimate can not extend further, perhaps, than the manufacture of the cast-iron bodies ready for the reception of the hoops or wire.
    “In physical qualities the castings must be of the standard required by the Ordnance Department for heavy guns, to wit: Tenacity, about li) tons; elastic limit, about 5 tons; the finished castings to be free from soft spots or cavities, and the metal not too hard.
    “All the guns will be cast hollow and cooled from the interior with a current of water, according to the usual Rodman method, and the sinking head must be of suitable height to insure soundness throughout the finished casting. The initial' tension, as determined from test rings taken next the gun proper, should be about 8 tons.
    “If the South Boston Iron Works desire to cast the two 12“ cast-iron rifles breech up, they must themselves assume the responsibility for the result of the operation.
    “A somewhat stronger metal would most naturally be obtained in the lower part of the casting (see results of tests of the Italian 100-ton gun, cast breech down, Ordnance Notes, Bo. 174), and it seems probable that the desired initial tension will be secured with more certainty in the lower rather than in the upper part of the pit; and it is certainly desirable to confer these advantages ou the breech of the gun, where the maximum strains are to be endured. The same objection to this plan of casting does not apply to the hooped and wire-wound guns, as any defectiveness in the initial tension due to cooling will be remedied by the tension coming from the shrinkage of the lioops or from tbe winding of tbe wire. A less initial tension in tbe breecb portions of these guns would perhaps prove a positive advantage, as tbe hoops and wire could then be applied with a higher tension, and thus the good qualities of the steel be more effectually utilized, while at the same time a stronger metal and a higher initial tension would be obtained in the unstrengthened chase portions. Experiments abroad in casting with the breech up have always been with guns which were to be hooped.
    “ These results are far below the standard, and indicate the necessity either for some change in the mixture of pig employed or for further remelting.
    “The estimated weight given on the enclosed plan for the 12-inch cast-iron rifle is approximate, and may be found to vary somewhat from the actual, but not probably more than one ton.
    “ The weight will be verified in making a more careful calculation for the position of the centres of gravity.
    “The Department is considering a plan for a 12-inch cast-iron rifle, wrapped with wire, to be substituted for the 10-inch gun above referred to. You will receive early notice of such a change, should it be made, and as the weight of tlie cast-iron body would be about the same (30 tons) as that for the 12-inch hooped gun, you can doubtless furnish an estimate on this gun with the others. An early reply is requested.
    “Respectfully, your obedient servant,
    “S. V. Benét,
    “ Brig. Gen., Chief of Ordnance.”
    
    “ Okdnanoe Oeeice, War Department,
    “ Washington, D. C., May 15,1883. “The South Boston Iron Works,
    “ Boston, Mass.
    
    “ (Through Oapt. D. A. Lyle, Ordnance Dept., U. S. A.)
    “Gentlemen: Herewith I enclose the following plans, to be substituted for certain of those sent with my letter of the 25th ult., viz:
    “1. A 12-inch rifle, cast iron, hooped and tubed with steel, for the plan of a 12-inch cast-iron rifle, simply hooped with steel.
    “2. A 10-inch rifle, cast iron, wrapped with wire, the wire extending under the trunnions, for the plan of a 10-inch gun previously sent.
    “ 3. A 12-inch rifle, cast iron, with 28 calibres length of bore, for the similar plan with 26 calibres length of bore.
    “ 4. A 12-inch cast-iron rifle, lined with a wire-wrapped steel tube, for one of the two sinqfle cast-iron rifles.
    
      “ The unsatisfactory results recently obtained in Italy with 12.6-inch cast-iron guns, hooped, renders it inexpedient, in the judgment of this office, to make a 12-inch gun on the Italian plan of construction 5 the French system has been adopted instead.
    “ For a like reason it is not deemed best to go any higher than 10 inches in calibre with the cast-iron wire-wrapped gun; particularly so as the method proposed for putting on and fastening the wire has never yet been reduced to practice. A rifled gun of 10 inches in calibre is required for coast armament, and it is very possible that a gun of this calibre will give good results without the use of a tube.
    “ The 12-inch cast-iron rifle has been increased to a length of 28 calibres agreeably to your wishes, and if the enclosed plans accord with your views, please so inform me. The chamber will have a diameter at first of, say, 13 inches, to be afterwards enlarged, should circumstances warrant it, to, say, 13.5 inches.
    “ The 12-incli gun, lined with a wire-wrapped tube, has also a length of bore of 28 calibres; but, owing to certain features of construction in the 12-inch rifle, hooped and tubed, it has been decided to limit the length of bore to 26 calibres.
    “ The steel tubes for these guns will be furnished by the Department.
    
      “ Tour letter of the 8th instant is received, and its contents have been duly noted.
    “ With regard to the mode of casting the guns, I desire that the body for the 10-inch wire-wrapped and for the 12-inch tubed gun shall be cast breech down. The Italians have abandoned the mode of casting guns breech up; the rapid deterioration recently reported of three 12.6-inch guns is largely attributed by them to that mode of casting.' It is stated that in turning the exterior of the 9.45 and 12.6 inch guns it was frequently observed that the cast-iron body for a considerable portion of its length showed marked variations in the structure of the metal, alternate layers of sound and spongy metal being encountered. Under the firing tests this lack of homogeneity soon showed its effect on the endurance of the guns. With a pressure not exceeding 31,000 pounds, the bores of two of the guns were seriously deteriorated in less than 50 rounds; the erosions of the metal were deep, and fissures had begun to form. A third gun actually parted after a total of about 200 rounds, of which, however, only 22 were with the increased charge,-.and yet the quality of the Italian cast iron is probably unexcelled in the world.
    “It is believed that where the body of the gun consists mainly of cast iron that every measure should be taken to secure the greatest strength possible for the breech, and that end is most surely obtained, in the opinion of this office, by casting the gun breech down and with a large sinking head. If, however, you feel confident of success and are of the opinion that for reasons of economy it is worth while to make this matter of casting breech up the object of further experiments, you are authorized to cast one of the guns — the 12-inch cast-iron rifle — in this manner.
    “In regard to the 12-inch gun, hooped and tubed, the mode of casting the body is still under consideration, and some further study is yet necessary. The work on the other guns, however, can be taken in hand first, and by the time you are ready to begin on this one the Department will have decided the question of casting. The employment of both hoops and a lining tube may obviate the objections to casting breech up in this case.
    “It is requested that new estimates may be submitted by you, at as early a day as practicable, to conform to the changes made in the plans. It will be well also to give the time required for manufacture more specifically, taking the guns in the following order:
    “ 1st. The 12-inch mortar, hooped.
    “ 2d. The 10-inch gun, cast iron, wrapped.
    “3d. The 12-inch cast-iron gun.
    “4th. The 12-inch gun, cast iron, tubed.
    “ 5th. The 12-inch gun, cast iron, hooped and tubed.
    “Referring to the prices given in your letter of the 8th instant, I would observe that, except in the case of the 12-inch mortar, they all overrun the estimates of this office, made, as it is believed, with very liberal allowances. Our estimates are appended herewith (marked A, B, O, and D) for your inspection. They are drawn up for the 12-inch rifles on a basis of 28 calibres length of bore, and in all cases on casting with breech down. By checking our estimates where they differ from your own, you may be able to make an estimate in detail, and thus facilitate the negotiations, preliminary to the drawing up of a contract.
    “ In the case of the hooped and tubed gun, estimates should be submitted for casting either with the breech up or down.
    “ In this connection I would call your attention to the stipulations of the contracts for the movable and permanent plant, put up for the fabrication of the four 12-inch breech-loading rifles, relative to reimbursing the United States for the cost of the same by reserving 5 per centum from the price of all subsequent work executed therewith until the sums stipulated are paid.
    “ Respectfully, your obedient servant,
    “ S. Y. Benét,
    
      Brig. Gen., Chief of Ordnance”
    
    
      “Office of the South Boston Iron Works,
    
      “70 Water Street, Boston, June 8th, 1883.
    
    “Geni. S. V. Benét, TJ. S. A.,
    
      “ Chief of Ordnance, Washington, D. C.:
    
    “(Through Oapt. D. A. Lyle, TJ. S. A.)
    “ Sir : I have the honor to acknowledge receipt of your favor of 15th ulto., and note the changes you propose to make in the plans for heavy guns submitted in your letter of 25th April. Considering- the reported erosion of the metal in the bores of the Italian guns lately tested, no doubt it is prudent to substitute steel, to withstand the sustained scouring effect produced by firing heavy charges of slow-burning powder.
    “I approve of the increased length of the 12" cast-iron guns, although I realize that the continued strain will tax more severely their endurance. With regard to the question whether or not it is wise to cast the 12" rifle breech up, I beg to say we have no more doubt of success than we should have casting-after the old method; nor are we induced to attempt it from economic reasons; probably the cost of the flrst gun would be even more, but we wish to be progressive, and believe the advantages from this mode of casting will much more than balance the objections. We believe that we can control the tension quite as well, and we believe the metal of the breech, which will be under a riser of some thirty tons weight, will prove to be nearly as strong as the bottom of the casting.
    “In regard to the statement that your estimates, made, as you believe, with very liberal allowances, are considerably below ours, we would point out that figures used by Mr. Dennet while in the employ of the South Boston Iron Co., and which I understand were made the basis of your estimate, are not fairly applicable to the work now offered, nor are they accurately quoted. The castings to be made are much heavier and necessarily are to be finished on more expensive lathes. Mr. Den-net now estimates the casting- at six cents per pound, while for the 124" idle last made he estimated seven cents per pound for hoisting from the pit, moving and delivery, now $400, $150 ($550), then $850, $300 ($1,150); cost of running engine, now turning and boring, now ten dollars per day, then fifteen dollars per day. If it is said that his estimates were too high at that eight dollars per day, then about twenty dollars per day; for time, we believe we can prove to the contrary.
    “We only want what a competent mechanic experienced in the use of heavy tools would judge to be a reasonable price, and would suggest that you make inquiry of such men as Sellers, Corlin, Boach, or Delamater, what w’dbe a proper price to charge for the use of a lathe capable of working a casting of one hundred tons weight to measurements of less than the one-hundredth of an inch.
    
      “The wort now offered is of magnitude enough to warrant careful investigation, and we can but feel that you have not full appreciation of the expense of such work.
    “I have examined the books of the S. B. Iron Co., and find that the amount paid by the Govt, for the two lathes and foundations was not much more than half the cost, including the new building in which they are placed, and which is used for no other purpose. It is entirely safe to say that interest, taxes, and insurance on the full costs of the said lathes, foundations, and building would amount to more than Mr. Ben net proposes to allow for their use day by day.
    “This statement may strike you as exaggerated, but I am prepared to demonstrate it satisfactorily.
    “In the hope that you will investigate the question as to proper price to allow for the use of the lathes referred to and communicate your conclusions to us, we await your reply before making calculation of the cost of the heavy guns as altered.
    “ In reply to your inquiry for size of risers on the proposed castings, we report: 2 12" B.L. riñes, cast muzzle up, 66" long, 42" diameter; 1 12" B. L. rifle, cast muzzle down, 66" long, 57.5" diameter; 110" B. L. rifle, cast muzzle up, 54" long, 28" diameter; 112" M. L. mortar, 48" long, 30" diameter.
    “ We'are actively engaged (at our own risk) in preparation for casting the 12" mortar, that no time may be lost by delay in completing the contracts.
    “Very respectfully, your obdt. servants,
    “South Boston Ibón Wobks,
    “By Wi. P. Hunt, PresH
    
    [1st indorsement.!
    “South Boston Foundby,
    “Boston, Jliass., June 9, }83.
    
    “Bespectfully forwarded to the Chief of Ordnance, U. S. 4.
    “D. A. Lyle,
    “ Oaptain of Ordnance, U. 8. AP
    
    [2d indorsement.]
    “Obdnance Office,
    
      “ Washington, June 11th, 1883.
    
    “Bespectfully returned to Capt. D. A. Lyle, with instructions to confer with Mr. Dennet, the draughtsman employed in this office, who will call on him in the course of the next few days regarding the charges specified within, and to make such further investigations as may be necessary to arrive at a proper understanding of the matters referred to. He will then communicate his conclusions to the South Boston Ironworks, and, after conferring with them, will forward their estimates, when transmitted, with his approval or disapproval, and his reasons therefor. Early action as possible in the matter requested. Copies of estimates, with plans drawn up in this office, sent separately by mail to consult if desired.
    “By order of the Chief of Ordnance:
    “Chas. S. Smith,
    “ Oapt. of Ordnance, Prin. Asst.”
    
    [3d endorsement.]
    “South BostoN FouNdry,
    “ Boston, Mass., June 28, ’83.
    “Respectfully returned to the Chief of Ordnance IT. S. A., with Mr. Hunt’s final estimates, his provisional estimates, and Oapt. Lyle’s estimates as inclosures to the latter’s report of even date herewith.
    “ D. A. Lyle,
    “ Oapt’ain of Ordnance.”
    
    III. On the 17th day of July, 1883, the Chief of Ordnance sent to claimant to be executed a draft of a contract for the fabrication of said guns. Whereupon the following correspondence ensued:
    “Office of the South BostoN IroN Works,
    
      70 Wafer Street, Boston, July 20th, 1883. “Geni. S. V. Benét, U. S. A.,
    “ Chief of Ordnance, Washington, IJ. 0.
    
    “(Through Capt. D. A. Lyle, IT. S. A.)
    “ Sir : I have the honor to acknowledge receipt of yonr favor of 17th inst., enclosing contract in quintuplícate for execution. I am surprised to find requirements in the contract which I did not contemplate, and which I can not assent to, and beg to say that I regard the fabrication of these five eximrimental guns, each of a different type to the standard called for by the contract, as a very delicate undertaking, and, considering the time that has elapsed since our workmen have had practice in the casting of heavy ordnance, not likely to be accomplished without repeated trials. Under such circumstances we are unwilling to rashly place ourselves under heavy penalties for failure to secure what we shall strain every nerve to accomplish. We regard the object of this experiment of very great importance to the Department and well worthy of the whole expense, even if it proves to be a failure. In case of moderate degree of success, the value, in our present condition, would be very great indeed; while to us, after our best exertions, failure, with the penalties you would place upon us, would simply annihilate our business. We could not meet tbe loss we should sustain— the twenty thousand dollar penalty and the indefinite sum that might be required to reimburse the Dept, for expenditures for forgings and other portions of the guns. The result might be, the Govt, would have the benefit of the results of the experiment without any expenditure, while we should be ruined completely. Therefore, while we are ready to work with the Ord. Dept., aud follow its instructions if desired, we are not willing to promise definite results in such experimental work; we can not guarantee that the elastic limit shall be 11,000 lbs. nor the initial tension 19,000 lbs.; we can not agree that the completion of each gun on the days stated shall be a condition of the validity of the contract, but shall expect reasonable extension of time in case of unexpected difficulties; we can not agree to pay any penalty for failure, although we are ready to give bonds for the security of partial payments; and we can not agree to reimburse the Govt, for its expenditure in material for the guns. While we are ready to accept from the Dept, as much iron, at $55 per ton, as may be required for these castings, we are not willing to purchase the whole lot of 420 tons at that price.
    “We must ask that partial payments shall be made as the work in'ogresses, as was the case in the contracts for the Thompson gun and the 12" 1/4 rifle.
    “We submit also that the 5 pr. ct. to be paid, as provided in contract of Oct. 19,1880, is not applicable to this work, for the reason that under said contract the 4 12" rifles were specially exempt, and as this work was given in lieu of said 12" rifles, fairly, these guns should be exempt. We recognize that it w’d be proper for the South Boston Iron Works to formally assume by written contract the obligation of the South Boston Iron Co. in said contract of Oct. 19, 1880, and we are ready to execute such instrument as soon as prepared.
    “I contemplate visiting Washington early next week with a view to harmonize these differences, if possible, relative to the said contracts.
    “Very respectfully, your obdt. serv’t,
    “South Boston Iron Works,
    “By Wi. P. Hunt, PresH.”
    
    “Ordnance Oepice, War Department,
    “ Washington, D. G., July 27,1883.
    
    “The South Boston Iron Works,
    “ Boston, Mass.
    
    “(Through Capt. D. A. Lyle, Ordnance Dept., U. S. A.)
    “Gentlemen: I send you herewith contracts in quintupli-cate for the 4 guns and mortars, which have been modified to conform as near as possible to your views as expressed in your letter of the 20th inst., keeping in view the interests of the public service.
    “ It should be observed that while all other contracts have stipulated for a money penalty to be paid the United States in case of failure to make or default in deliveries, that this contract has no money penalty for such failure or default, and that it merely stipulates that in case of failure to make the guns the South Boston Iron Works shall reimburse the United States for the value of its pig iron which you may have used.
    “Partial payments have not been provided for, because the Treasury Department is averse to such practice and will only allow it on finished and delivered work; but even if this were not so, the amount that you would receive of the 4/5 value of the casting at current rates, less the value of the pig iron used, would make the amount to be paid you at that stage not much of an object, while such payments would require a largely increased bond.
    “The bond on the present contract has been reduced to $15,000.
    “Your early action is requested.
    “Bespectfully, your obedient servant,
    “S. V. Benét,
    
      Brig. Gen., Chief of Ordnance.”
    
    “Oeeice oe the South Boston Iron Works,
    
      70 Water Street, Boston, August 10th, 1883.
    
    “Geni. S. Y. Benét, U. S. A.,
    “ Chief of Ordnance, Washington, D. C.
    
    “(Through Lieut. H. D. Borup, U. S. A.)
    “Sir : I have the honor to acknowledge receipt of your favor of 27th ulto., enclosing contracts in quintuplícate, and concerning which you say you have made modification to conform as near as possible to my views, as expressed in letter of 20th July, ’83, keeping in mind the interests of the public service.
    “I find in the modified contracts conditions which considerably add to the cost, without finding corresponding additions to the agreed price to be paid. I find also conditions that the elastic limit of the cast iron shall sustain about 11,000 lbs. per square inch — that the initial tension in some cases shall not be over 8,000 lbs. per square inch — in other cases shall be about 19,000 lbs. per square inch. In my communication of 20th ulto. referred to, I stated that we could not undertake to give definite results as to elastic strength and initial tension in experimental work — that we could not promise to do more than use our best skill and judgment to this end, or to follow the instructions of the Ord. Office as to the proper method to accomplish these results. And I can not feel that the interests of the public service require tbat experimental ordnance should not be made unless at the risk of the manufacturer. We have already expended some ten thousand dollars in making preparation in good faith for the casting of these guns; nevertheless we prefer to stop where we are rather than assume the risks these contracts call for. We are ready to use our facilities and thorough, earnest effort to accomplish a successful result, but we expect to be paid for all our expense, whether the result is successful or not. We believe this was the spirit and intent of the appropriation for the cast-iron rifles. At- any rate, if it was not, we do not feel called upon to expose ourselves to such serious danger, but must wait, hoping for more considerate action of Congress.
    “Very respectfully, your obdt. servants,
    “South Boston Ikon Works,
    “By Wm. P. Hunt, Pres’t.
    
    “Ordnance Ofeice, Wak Department,
    “ Washington, JD. 0., Aug. 17, 1883.
    
    “South Boston Iron Works,
    
      “Boston, Mass.
    
    “ (Through Capt. D. A. Lyle, Ordnance Dept., IJ. S. A.)
    “Gentlemen: In reply to your letter of the 10th inst., I beg to state that the modified contract forwarded with my letter of the 27th ult. embodies no condition that materially affects the cost of the work, not embodied in the original one, and not substantially embodied also in my first letter on this subject, of April 25th.
    “This statement you can easily verify from the documents in your possession. On the other hand, I have endeavored in this modified contract to concede in every way to your wishes as far as I could do so consistently with the interests of the U. S. The time for completion has been considerably extended, the quantity of iron required to be taken back in part payment has been reduced, the bond lowered $5,000, and the penalty in case of default limited to payment to the IJ. S. of the value of the pig iron used.
    “As regards the contract requirements for quality of metal and degree of initial tension I would remark as follows: Unless we are sure that we are using a standard quality of gun metal it would be folly to commence the fabrication of these guns; and such quality of metal the Department has a right to expect, and to insist on being obtained in dealing with an establishment that has had long experience in the production of cast-iron guns.
    “ It is in working up by trial the qualities of the metal until the requirements are reached, and then casting a cylinder for test under the conditions thus ascertained, that the held for experiment usually lies. Afterwards, it is only requisite that the kinds and proportions of pig metal found to succeed in the cylinder be repeated in the mixture employed for the gun castings ; and it is reasonable to expect that about equally good results will obtain with the guns, if the operations of melting and casting are properly conducted.
    “ Now, the contract provides for just such a trial cylinder, for which the Department has already made payment, and if there is a necessity for experimenting in order' to obtain the prescribed qualities in theiron, the difficultyis met rightthere.
    “The physical qualities specified for this trial cylinder are about the same as specified for the trial cylinder in the contracts with the South Boston Iron Co. for the 12.25" B. L. rifle and for the 4 12" B. L. rifles. These qualities were actually obtained, and without apparent difficulty, with the 12.25" rifle, cast in 1877, and also with the 12" Thompson rifle, cast in 1873. The Italians reached an elastic limit of 11,378 lbs. with the cast-iron body for their 100-ton gun; and the elastic limit for French cast iron is given as 11,000 lbs.
    “ If the iron for these guns has the other qualities possessed by theiron for the 12.25" rifle, it is pretty safe to predict that it will also have the same elastic limit. The specified elastic limit of 11,000 lbs. is not intended to be an absolute an d unvarying figure; it will admit of a variation of 1,500 lbs. either way.
    “ The quality of the metal, then, is a matter that must rest solely with the founders; unless the standard of gun metal is reached in the preliminay trials, it will be useless to proceed; unless the qualities that make up that standard are specified in the contract the IT. S. is protected by no sufficient safeguard— clause 6 of the contract becomes so far inoperative that after the production of the first gun, should it prove to be a bad one, four other equally bad ones may be successively produced without the Chief of Ordnance having the power to annul the contract, and thus save the Government from further loss.
    “ The initial tension of 19,000 lbs. required for the two 12" rifles is about what was obtained with the 12" Thompson gun and with the 12.25" rifle, and there should be no difficulty in obtaining again approximately like results. In the contracts for the 12.25" M. L. rifle and the 4.12" B. L. rifles the initial tension was specified in each case, and no objection was raised thereto on the part of the South Boston Iron Oo., yet these were all experimental guns. With the three other guns embraced in the present contract, it is designed to have a merely nominal tension, just sufficient interior cooling being-employed to throw the metal next the bore under a slight strain of compression rather than of extension, and with the object of utilizing, with these guns, to the farthest extent the useful effect to be desired from the steel hoops or wire.
    
      “ The degree of tension that will result from interior cooling depends mainly upon the temperature at which the water enters, and the rate at which it circulates through the interior of the casting, subject, of course, to some modification by the degree of temperature kept up in the pit surrounding the moulds. The tension can hence be very approximately determined beforehand by some calculations based upon the data derived from the records of cooling of former guns; and of such records the South Boston Iron Works must have a complete and extensive file. If the South Boston Iron Works will allow the Department access to their records of cooling, &c., the stipulation in the contract regarding the degree of initial tension may be so far modified as that it shall be determined in consultation with this office, in which case the Department will assume the risk of attaining the prescribed tension. In this connection I deem it but proper to observe that if the Department is to derive only a partial advantage from the skill and experience of the founders, and must itself assume part of the risks, it would seem only equitable that the Department should not be charged for full profit on the work.
    “ You state in your letter that you ‘expect to be paid.for all your expenses, whether the result is successful or not.’ The Department desires to be equitable in this business, but it contracts for sound castings and good workmanship, and the errors that may be committed through carelessness or the failures that may grow out of incompetency are justly chargeable on the contractors and not on the Government. This whole question of risk was amply provided for in the very liberal profits allowed in the sums stipulated to be paid under the contract. Besides, the objections raised by the Department to casting the 12" cast-iron rifle breech up were only waived by the assurances of the company of their perfect confidence in their ability to produce a successful casting in this way. Your remark respecting your belief as to the spirit and intention of the appropriation for the cast-iron rifles is also noted. It is to be fairly presumed that the Senate committee, in recommending the trial of cast iron, had been-led by the assurances of the president of the South Boston Iron Co., Mr. Hunt, to believe that the present ability of that company to make good cast-iron guns was an established fact, and not involved in any kind of uncertainty or doubt. Mr. Hunt’s testimony before the committee was to the following effect: ‘ I am ready to-day to contract to furnish a cast-iron gun to the Government and guarantee it to endure 100 rounds with the service charges that are used in Europe in a 10 or a 12 inch gun. I will guarantee it to endure 100 rounds; I have no doubt it will endure seven or eight hundred, the same as the others, &c. To show my confidence in it (cast iron) I am willing to furnish a gun that will cost $30,000, and assure the Government if it does not stand it will be no cost, provided, &c. Although I would guarantee the gun (12" cast-iron rifle) to stand a charge of from 150 to 250 lbs. of powder, I should expect that gun to endure a great deal more powder.’ Mr. Hunt also stated to the committee that all cast-iron guns, in order to be acceptable to the Government, require to have a tenacity of over 30,000 lbs. per square inch. Under such assurances the committee recommended the trial of cast-iron guns, assuming, doubtless, that their production was an assured fact; the trial was to be one of the firing of the gun, not of its manufacture.
    “ With these explanations before them it is hoped that the South Boston Iron Works may see their way clear to executing the contracts for the five new guns. In any case prompt action is requested.
    “Respectfully, your obedient servant,
    “ S. Y. Benét,
    
      11 jBrig. Gen., Ohief of Ordnance.”
    
    IY. On the 24th day of September, 1883, the United States, through said Ohief of Ordnance, entered into the following contract with claimant:
    “Articles of agreement, entered into this twenty-fourth day of September, eighteen hundred and eighty-three, between the South Boston Iron Works, of Boston, in the county of Suffolk, State of Massachusetts, of the first part, and the United States, by Brigadier-General 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 South Boston Iron Works, for themselves, their successors, and 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 party of the first part does hereby contract and engage with the United States to manufacture:
    “ First. One (1) cast-iron body for a twelve (12) inch muzzle-loading rifled mortar, finished in readiness for the reception of steel hoops, but not rifled; all as hereinafter specified.
    “ Second. One (1) cast-iron body for a ten (10) inch breech-loading rifled gup, finished in readiness for wire wrapping, but not rifled, and without the breech mechanism; all as hereinafter specified.
    “Third. One (1) twelve (12) inch cast-iron breech-loading rifled gun, finished complete; all as hereinafter specified.
    “Fourth. One (1) cast-iron body for a twelve (12) inch breech-loading rifled gun, finished in readiness for the insertion of a wire-wrapped steel tube and breech bushing, but not rifled, and without the breech mechanism; all as hereinafter specified.
    “ Fifth. One (1) cast-iron body for a twelve (12) inch breech-loading rifled gnn, finished in readiness for the insertion of a steel tube and for the reception of steel hoops, but not rifled, and without the breech mechanism; all as hereinafter specified.
    “All in accordance with the drawings hereto attached, and which form part of this contract, subject to such minor modifications as the United States may determine, without materially increasing the cost.
    “ The cast iron used for these guns shall be of charcoal pig, and of the standard quality prescribed by the Ordnance Department for the manufacture of heavy guns;- the kinds and proportions of pig metal to be about the same as shall be employed in a trial cylinder of the usual form and dimensions employed by the Ordnance Department for this purpose (see drawing attached), to be previously cast by the party of the first part, and for which the United States has already made payment. Specimens from such cylinder to show an elastic limit of 11,000 pounds per square inch, and an ultimate tenacity of not less than 30,000 nor more than 37,000 pounds per square inch.
    “All these castings shall be made hollow, and be cooled from the interior (except as hereinafter provided for) by a current of air or water, the exterior at the same time being kept hot either by a fire built around the flask within the casting pit or by filling the space between the flask and the pit walls with some suitable nonconducting material, as may be desired by the United States. Specimens of the metal taken from the lower ends of the sinking heads shall in each case have an ultimate tenacity of not less than 30,000 pounds nor more than 37,000 pounds per square inch. The exterior dimensions of the rough castings shall be such as to allow the finishing of the guns to accurately conform to the dimensions given on the drawings hereto attached, and also to assure a uniform surface when finished; and the castings shall be sound, free from cavities, soft spots, and flaws.
    “ The casting for the body for the twelve (12) inch mortar shall be made breech down, and, inclusive of the sinking head, shall be nearly cylindrical, the exterior diameter at no place being less than at the breech; the total length, exclusive of the sinking head, being great enough to allow for a cylinder eighteen (18) inches long, to be taken from next the muzzle. The weight of the sinking head shall be at least one sixth (}) of the total weight of the rough gun casting and cylinder. The part of the casting to which steel hoops are to be applied shall be turned to within four-tenths (4-10) of an inch of the finished diameter; theremainder of the exterior shall be finished turned.
    “The casting for the body for the ten (10) inch breech-loading rifled gun shall be made breech down and shall be flfteen (15) inches longer at the breech end than is called for on the attaobecl drawing, to allow for a cylinder to be taken from that end for experimental purposes; the weight of the sinking head shall be at least one-sixth (£) of the total weight of the rough gun casting and cylinder. The exterior shall be finished turned throughout to the diameters given on the drawing hereto attached, except at the rear and front of the cylindrical portion, where sufficient metal will be left for cutting the screw threads shown on the drawing.
    “The twelve (12) inch cast-iron breech-loading rifled gun shall be cast breech up and with a sinking head not less than seven (7) feet long, and shall be finished throughout, the gun rifled, and the breech mechanism fitted. The rifling shall be approximately as indicated on the drawing hereto attached; subject, however, to such change as the United States shall deem necessary, but without adding materially to the cost. The steel forgings for the breech bushing, the breechblock, and movable head will be furnished by the United States. The breech mechanism will be the interrupted screw, and shall be finished and accurately fitted by the party of the first part.
    “ The casting for the body for the twelve (12) inch breech-loading rifled gun, finished in readiness for the insertion of a wire-wrapped steel tube and breech bushing, shall be made breech down, the total weight of the sinking head shall be at least one-sixth (-J) of the total weight of the rough gun casting, and the body shall be finished accurately and completely on the exterior. The recess for the tube shall be finished bored in accordance with the drawing.
    “ The casting for the body for the twelve (12) inch hooped and tubed gun shall be made breech down or up, as the United States may elect. In the latter case a solid core may be used if desired by the United States, and with a weight of sinking head determined as in the cases, respectively, of the above-mentioned castings. The casting shall be eighteen (18) inches longer at the breech end than is called for on the attached drawing, to provide for a cylinder to be taken from that end for experimental purposes. The part of the casting to which steel hoops are to be applied shall be turned to within four-tenths (4-10) of an inch of the finished diameter; the remainder of the exterior shall be finished turned. The recess for the tube shall be finished bored, in accordance with the drawing.
    “All the boring on the rifled part of the bores of the castings for the gun bodies contracted for herein shall be within two-tenths (2-10) of an inch of the finished diameters.
    “It is further stipulated that these gun bodies and the gun shall be delivered by the party of the first part, completed as required by this contract, at the works of the party of the first part, in the following order, and on or before the dates specified, viz:
    “First. The body for the twelve (12) inch mortar, on or before March 31, 1884.
    
      “ Second. The body for the ten (10) inch gnn, on or before March 31,1884.
    “Third. The twelve (12) inch cast-iron breech-loading rifled gnn, on or before June 30,1884.
    “ Fourth. The body for the twelve (12) inch tubed gun, on or before June 30,1884.
    “Fifth. The body for the twelve (12) inch hooped and tubed gun, on or before June 30,1884.
    “It is further stipulated that the party of the first part shall receive in partial payment for these gun bodies and the gun, two hundred and ninety (290) tons, more or less, as may be required, of the four hundred and twenty (420) tons of pig iron now at their works belonging to the United States, at the price of fifty-five (55) dollars per ton.
    “For these gun bodies there shall be paid by the United States to the said party of the first part, subject to the conditions stipulated above, on delivery in good condition at their works, and after each has passed a satisfactory inspection by the Ordnance Department, the following prices, viz:
    “ For the body for the twelve (12) inch mortar, weighing nine (9) tons, more or less, three thousand five hundred dollars ($3,500).
    “ For the body for the ten (10) inch gun, weighing seventeen (17) tons, more or less, eleven thousand five hundred and eighty-eight dollars and eighty cents ($11,588.80).
    “ For the body for the twelve (12) inch tubed gun, weighing forty-seven (47) tons, more or less, twenty-five thousand sis hundred and fifty-seven dollars and ninety-three cents ($25,657.93); and
    “ For the body for the twelve (12) inch hooped and tubed gun, weighing thirty-one (31) tons, more or less, seventeen thousand and ninety dollars and forty-six cents ($17,090.46).
    “ The twelve (12) inch cast-iron, breech-loading rifled gun, weighing fifty-four (54) tons, more or less, shall be subjected to a' powder proof of five (5) rounds each of 150 pounds of powder, with a projectile not exceeding eight hundred (800) pounds in weight, prior to its final acceptance, and for said gun there shall be paid by the United States, on acceptance, twenty-seven thousand eight hundred and fifty-nine dollars and thirty-three cents ($27,859.33). And should the rough castings for the guns herein contracted for weigh more than the amounts stated in the estimates submitted by Captain D. A. Lyle in his letter of June 28,1883, then in that case the additional weight shall be paid for by the United States at the rate of six (6) cents per pound.
    “ It is further stipulated that should any of the guns or the mortar be rejected by the Uuited States by reason of imperfect castings or other defects, then in that case the party of the first part shall reimburse the United States for the amount of pig iron used, and shall also refund to the United States tbe partial payments made to tbe party of tbe iirst jtart on account of said guns or mortar.
    “All tbe work provided for in this contract shall be subject to inspection by tbe officers of tbe Ordnance Department at all tbe stages of its progress, and shall conform to the attached drawings, tbe party of tbe first part, however, agreeing to allow such minor modifications by tbe United States as may be deemed necessary to secure perfect guns; provided, however, that such modifications shall not materially affect tbe value of tbe material to be employed or tbe work to be applied.
    “ Partial payments will be made by tbe United States on tbe aforementioned guns as follows, viz:
    “ Tbe value of tbe gun castings (to be determined by tbe Chief of Ordnance), as soon as tbe tests of tbe iron taken from the sinking heads have been made and prove satisfactory to and tbe castings have been accepted by the United States : Provided, That the aggregate partial payments on incompleted work, together with the value of tbe pig iron used belonging to tbe United States, shall not at any time exceed tbe amount of the bond given by tbe contractor.
    “ 2d. All these guns, &c., shall be delivered by tbe said party of tbe first part at their works at the time specified herein.
    “3d. Tbe said party of tbe first part shall indemnify tbe United States and all persons acting under them for all liability on account of any patent rights granted by tbe United States which may affect the guns, &c., herein contracted for.
    “4th. For tbe guns, &c., herein contracted for, which shall be delivered, inspected, and approved as aforesaid, there shall be paid by tbe United States to tbe said South Boston Iron Works, their successors and assigns, on bills in duplicate, made in approved form and duly authenticated by tbe proper officers of the Ordnance Department, tbe sum of money herein specified, in tbe funds furnished for tbe purpose by tbe United States.
    “ 5th. Payments, as herein provided, shall be made on certificates of inspection and receipt by tbe United States inspectors, at tbe rate aforementioned, when accepted by tbe United States as provided herein.
    “ Cth. If any default shall be made by tbe party of tbe first part in delivering all or any of the guns, &c., mentioned in this contract of the quality and at tbe times and places herein specified, then in that case the said party of tbe first part shall pay to tbe United States the value of tbe pig iron used, at the price aforementioned, and shall also refund to tbe United States tbe partial payments made to tbe party of tbe first part on account of said guns or mortar. Nothing contained in this stipulation shall be construed to prevent the Chief of Ordnance, at bis option, upon tbe 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 accidents, by fire or otherwise, the circumstances shall be taken into equitable consideration by the United States before claiming forfeiture for nondelivery at the time specified. * * *
    “South Boston Ikon Works,
    “ By War. P. Hunt, President.
    
    • “S. Y. Benét,
    “ Brig. Gen., Chief of OrdnanceP
    
    The contract was prepared by the Chief of Ordnance in the city of Washington and sent to Boston to be signed by the company. It was presented to the president of the company and by him duly considered. He carefully read the same, consulted with his associates in interest as to the terms of the contract, and, after careful examination, signed it in the form set forth in this finding.
    The contract which the Chief of Ordnance mailed to the claimants on the 17th July, 1883,' referred to in the letter of that date, has been lost. The contract which the Chief of Ordnance mailed to the claimant on the 27th July, 1883, referred to in his letter of that date, is the same contract which was executed by the claimant bearing date the 24th September, 1883.
    Y. Under said contract claimant successfully made a casting for a 12-inch muzzle-loading rifled mortar and casting for a 10-inch breech-loading rifled gun and three castings of 12-inch breech-loading rifled guns finished and complete, all of which were accepted and used by the United States, and for which the compensation set out in said contract has been fully paid.
    YI. At the time the contract was made and during the time of the performance of the work provided for therein, the defendants were owners of certain flasks for molding, which, with other property belonging to the defendants pertaining to the manufacture of castings, were at the works of the claimant. When invited to send in proposals for the work the claimant was instructed by the Chief of Ordnance that it, the claimant, would not furnish the flasks, which would be furnished by the United States;, and it was mutually understood at the time when the proposals were made and the contract entered into that the subject of the contract was the furnishing of work and material for the casting of guns in flasks belonging to and to be furnished by the United States, and for the use of such flasks a consideration was allowed the defendants by claimant in making its proposal and agreement as to the price of the gun. In the month of July, 1884, in the presence of an ordnance officer of the United States, stationed at said works, the claimant attempted to make a casting of one of the 12-inch guns with the “ breech down,” but in the process of molding some of the flasks furnished by the United States were unable to sustain the weight of molten iron thrown into them, and when the claimant attempted to cast the gun the flasks, because of their weakness, gave way and in consequence thereof the casting became and was a total loss. The claimant replaced the flasks which broke with new flasks, which were removed, with other flasks belonging to defendants, to the Watertown Arsenal and kept by defendants.
    VII. In December, 1884, a second casting of the same gun was undertaken by claimant, breech down.” The casting was apparently successful, but when taken from the casting pit and placed in a lathe to reduce the inequalities of casting it developed cracks and broke in the lathe and became a total loss. The defect in the gun arose from imperfect cooling in not getting the proper initial tension. ■
    During the process of casting and cooling an ordnance officer of the United States was present, detailed by the defendants to observe and note the progress of casting and cooling for the purpose of a report to the Department, but it does not appear that he directed or interfered with the claimant in its management of either casting or cooling. He simply noted the progress and mode of progress, but did not direct either so as to interfere with the acts and agency of claimant.
    VIII. The cost of the gun which failed in July, 1884, was $16,203.99. The cost of removing the metal was $1,560.31. The cost of the new flasks, which the claimant was required to make and use, and which were removed by the defendants for use at the Watertown Arsenal, was $3,004.23. The metal used was a total loss. The items aggregate the sum of $20,828.33. The cost of the gun molded in December, 1884, was $16,203.99, and the cost of moving it from the pit was $550, making in the aggregate the sum of $16,813.99.
    
      
      Mr. John G. Fay for tbe claimant:
    Since tbe Tucker Act (24 Stat. L., 505) there has been no question of tbe full equity jurisdiction of tbis court, nór can tliere be any question of tbe power of a court of equity to reform a contract for fraud or mistake upon either written or parole testimony. In the case of Gillespie against Moon, Chancellor Kent said:
    “It bas been the constant language of tbe courts of equity that parties can have relief in a contract founded in mistake as well as fraud. * * * Tbe mistake may be shown by parole proof and tbe relief granted to tbe injured party, whether be sets up the mistake affirmatively by bill or as a defense.” (Gillespie v. Moon, 2d Johns. Ob. R., 585; Hendrick-son v. Ivins, 1 N. J. Eq., 562; Ins. Go. v. Whipple, 2 Bissell, 419.)
    Tbe Supreme Court, in Garfieldé’s Case (93 U. S. R., 242; 11 C. Cls. R., 592) and in Harvey and Livesey's Case (105 U. S. R., 671; 13 C. Cls. R., 322), have held that tbe advertisement and proposals for a contract with tbe United States when accepted make a valid executory contract between tbe parties, and that no formal written contract afterwards embodying terms not contemplated by such executory contract and not expressly agreed to by the parties may be reformed so as to conform to tbe terms of such executory contract. In this case it is not contended that tbe executory contract consists of tbe acceptance of advertised proposals, for tbe proposals in tbis case were themselves discussed at length and modified by tbe parties by written correspondence and personal interviews, and it is contended that tbe proposals and tbis correspondence and these interviews make a valid executory contract, tbe terms of which have been materially varied to the detriment of claimant by tbe formal written contract which was afterwards entered into by tbe parties. Tbis executory contract, I contend, is as definite in its terms and affords as sure and certain grounds for tbe guidance of tbe court in reforming tbe formal contractas though it'consisted of tbe unquestioning acceptance of the advertised proposals. In speaking of tbe terms of an insurance policy, which did not conform to an agreement reached by corresxjondence between tbe insured and tbe insurance company, Justice Swayne, in Ins. Go. v. Hearne, said:
    
      u He bad tbe right to assume that tbe policy would accurately conform to tbe agreement thus made and to rest confidently in that belief. It is not probable that be scanned tbe policy with the same vigilance as the letters of the company. They tended to prevent such scrutiny, and, if it were necessary, threw him off his guard.” (Ins. Go. v. Ilearne, 20 Wallace, 494; Oliver v. Ins. Go., 2 Curtis, 277; Palmer v. Ins. Go., 54 Conn., 488.)'
    It may be objected that it is not shown that the mistake in the contract in this case was mutual, or, in other words, that it expressed a different thing from what General Benét, the Chief of Ordnance, intended. The various drafts of contracts submitted to claimant for his signature, including the one he finally executed, were made in the office of the Chief of Ordnance, and purported to have been made to conform to the agreement reached by correspondence and personal interviews between claimant’s president, W. P. Hunt, and General Benét. (See Harvey and Livesey, supra.)
    
    
      Mr. George H. Walker (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    In this case the claimant contends that all the correspondence leading to the contract and the personal interviews made a valid executory contract, the terms of which were materially varied to the detriment of the claimant by the formal written contract which was afterwards entered into by the parties. The learned counsel for the claimant overlooks the fact that the correspondence and personal interviews, upon which he relies, related to the earlier contracts which were rejected, and that none of the points involved in the correspondence, except that of casting the guns breech down, is embodied in the contract which the court is asked to reform. As to all that occurred during the personal interviews we can not say, but the subjects referred to in the correspondence are mainly those as to whether the guns should be cast breech down and elastic limit and initial tension. The correspondence shows that no mistake was made as to what the contract should say on the subject of casting the guns breech down; and it shows further that the claimant objected to any guaranty respecting the elastic limit of the metal employed or the initial tension, and the final contract omitted all reference to the subject. The claimant’s representative and executive officer testified that the contract which was finally signed did in fact embrace his understanding as to what it should provide. Every subject bad been most carefully considered, and mistake was rigidly guarded against. The claimant was not required to secure a certain degree of initial tension either in the casting which failed or in those which were successful, and there is nothing in the record showing that any attention was given to the subject while the guns were being cast.
    
      “ The evidence to justify the reformation of a written instrument must be clear, strong, and satisfactory, and it must be made apparent that the instrument was executed under a misunderstanding and mistake, and that it does not express the intention of the parties. But when, after deliberation, one course is taken in preference to another, the parties are bound.” (American and English Encyclopedia of Law, Yol. XV, p. 651.)
    “A mistake on one side may be ground for rescinding but not for correcting or rectifying an agreement.” (Ibid, note, p. 652.)
    “The law is well settled that to justify the reformation of a written instrument upon the ground of mistake the alleged mistake must be one of fact and not of law. Secondly, such mistake must be proved by clear and entirely satisfactory evidence. A mere preponderance of evidence is not sufficient. Thirdly, the mistake must be mutual and common to both parties to the instrument.” (Ibid, note, p. 653.)
    If the foregoing citations give expression to the law governing this case, it is respectfully submitted that the claimant has failed to show cause why the contract which he entered into with the United States should be reformed.
   WeldoN, J.,

delivered the opinion of the court:

The claimant is a corporation under the laws of the State of Massachusetts, and doing business in the city of Boston.

By the act of March 3, 1883, chapter 96, for testing 12-inch cast-iron breech-loading cannon, a sum of money was appropriated for the manufacture of that class of ordnance. In pursuance of the power given by said act, communication was opened by the proper officer of^the defendants with the claimant for the purpose of having manufactured the kind and description of cannon contemplated by the act.

It is alleged that up to the time of the passage of the statute no such cannon had been manufactured, and the proposition to make such guns of cast iron was as to the claimant and the defendants experimental; that after the correspondence between the parties it was understood and agreed that the experiment should be made, and that the defendants should not be at any more expense than the actual cost of such experiments ; no profit was to be allowed for the use of the claimant’s plant, and claimant was to rely upon future business to recompense it in the manufacture of guns which thereafter might be made for the defendants.

It is alleged that it was understood between the parties that, as the casting was experimental, the defendants were to reimburse the claimant for any outlay which it might be subjected to in the experiment; that with such understanding claimant put its plant in order for the work comtemplated; thereafter a contract was submitted to claimant by defendants; such contract cast upon claimant the risk of the experiment, whereupon it refused to sign the agreement upon the ground that it would rather abandon the expense which it had incurred than to assume the rest of the experiment. After such refusal and further correspondence, to wit, on the 24th of September, 1883, a contract for five guns was submitted, with the explanation that so far as the initial tension was concerned, the defendants would assume the responsibility, and its ordnance officer would be present and regulate the cooling’ process and the casting of the guns; that the cooling process, in pursuance of such arrangement, was under the personal direction of an ordnance officer of the defendants.

It is also alleged that in casting the guns the process was under the direction of said officer, and notwithstanding the suggestion of the officers of the claimant against the mode of casting, the officer in charge required that the guns should be cast with the “breech downward,” instead of the “breech upward,” as urged by the officers and agent of claimant.

As to the execution of the contract, the claimant alleges that, relying upon the explanations and inducements of several letters, it entered into the agreement on the 24th of September, as set forth in the fourth finding, with the understanding and agreement that as the casting of the guns was experimental, and at a price affording no profit, said casting was to be made at the sole risk and cost of the defendants.

It is further alleged as to the casting of one of the guns in the contract mentioned, to wit, in July, 1884, that against the judgment and protest of the claimant, it was required to be cast “ breech down,” instead of “ breech up.”

It is farther alleged that by tbe terms of tbe contract tbe defendants were to furnish tbe flasks in which tbe gun was to be molded, and that tbe flasks so furnished were weak and unfit for tbe work, and so deficient that they were unable to sustain tbe weight of metal,- and when the casting was attempted to be made “breech down” the flask gave way and destroyed the casting and rendered the labor and material a total loss.

It is also alleged, as an additional grievance, that in December, 1884, the claimant further attempted to cast the gun under the direction of an ordnance officer of the defendants, whose duty it was to regulate the flow of water during the casting, so as to control tbe initial tension. That for such purpose he was in charge; the gun was cast “breech down,” not in accordance with the recommendation of your petitioner; that during the casting the ordnance officer failed to control the cooling process properly, but permitted the metal to chill or in some other manner to fail to adhere to the previous layers, and so produced cracks and crevices which rendered the gun valueless ; that the gun was placed in the lathe and developed cracks and crevices originating from the failure of the officer of the defendants to properly regulate the flow of water in the cooling process, and in consequences thereof the same was worthless.

Itis alleged that cost and expense of the unsuccessful attempts in July and December was the sum of $35,000, which was laid out and expended by claimant.

The twenty-second clause of the petition asks a reformation of the contract, so as to conform with the alleged agreement of the parties in casting the cost of the experimental work upon the United States.

These are the substantial allegations of the claimant’s cause of action, and from them it is to be deduced that a recovery is sought for the unsuccessful casting of the guns because of the general liability of the defendants to bear the expense of the experiment, and the further liability based on the improper interference and incompetent discharge of duty of the ordnance officer of the defendant in charge of tbe experimental casting, and the insufficiency of the flasks furnished by the defendants under the contract.

It is insisted by claimant that by the terms of the agreement as construed in the light of tbe antecedent correspondence, the cost of an unsuccessful experiment was to be borne by tbe defendants, and that the contract is to be reformed in effect to that extent. The provisions of the contract affected by this contention relate to the casting of the “ 12-inch breech-loading rifled gun finished in readiness for the insertion of a wire wrapped steel tube and breech-bushing shall be made breech down ” specified as the fourth in the series of the contract.

It is insisted, in connection with the terms of the agreement, that as to that gun there shall be inserted as a part of the agreement in effect the words “at the risk of the United States.”

The findings show that as to that gun there were two unsuccessful efforts made, one in July, 1884, and the other in December, 1884, and for the cost of those two failures' this action is prosecuted.

Since the passage of the act of March 3, 1887 (24 Stat. L., 505), tiiis court has been clothed with equity power sufficient to deal with the question of the reformation of a contract, so as to effectuate the full intention of the parties, and the only question for us to determine in that connection is, was there a mutual mistake made in the reduction of the agreement to the terms employed in the exemplification of the written instrument?

The contract was executed by the Chief of Ordnance of the United States and the president of the company, between whom, as appears in the findings, the most, if not all the negotiations were conducted antecedent to the making of the written instrument. The testimony of the Chief of Ordnance was not taken, owing to his sickness and death, and it does not appear from the testimony of the president of the company that he signed the contract in the belief that it embodied in terms that the experiment as to the casting of the gun was to be at the risk of the defendants. The most that can be said in favor of the company is, that the president at the time he executed the agreement believed that the correspondence between him and the ordnance officer in the particular of the risk at cost of the United States would form a part of the agreement and measure the rights of the parties.

Upon the question of the reformation of the agreement, so that the same shall read “at the risk of the United States,” it is shown in the last paragraph of finding m that the contract was prepared by tbe Chief of Ordnance in the city of Washington and sent to the claimant to be executed, and was by the president duly considered. He carefully read the same, consulted with his associates in interest as to the terms of the agreement, and after careful examination signed it, as set forth in the finding. The only qualification affecting the action of the company might have been the belief on the part of the president at the time he signed the agreement that the terms of the agreement would be modified by the force and effect of the explanatory correspondence between the parties antecedent to the execution of the instrument.

It is insisted by the claimant that it is competent and proper for the court to construe the terms of the written agreement in the light and by the force of those letters. To sustain this theory the claimant’s counsel cites thé case of Equitable Insurance Company v. Hearne (20 Wall., 494). In that case the con-trovery grew out of a discrepancy between the agreement of the parties as it was understood by them in certain correspondence and the policy of insurance when it was delivered to the insured, and in that connection the court says: “ He had a right to assume that the policy would accurately conform to the agreement thus made, and to rest confidently in that belief. It is not probable that he scanned the policy with the same vigilance as the letters of the company. They tended to prevent such scrutiny, and, if it were necessary, threw him off his guard.”

In the case of Hearne v. Marine Insurance Company (20 Wall., 490) it is said by the Supreme Court, upon the question of the reformation of a contract: “The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense, and are well settled. Where the agreement as reduced to writing omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to the real intent. The parties will be placed as they would have stood if the mistake had not occurred.” It is not necessary to cite at length other authorities on this point, as the apt words of the court in the above case succinctly state the law on that branch of this controversy. The mistake must be mutual and common to both parties to the instrument, and must be such as to have no reasonable doubt as to the existence of a common mistake. The contract in issue was prepared by the chief of ordnance, and it is to be presumed that he knew exactly vvliat its provisions were and was deliberately signed after full consultation and investigation by the president of the company.

In the case of Garfield, cited by claimant (93 U. S., 242), the United States invited proposals to perform certain mail service upon which the claimant made a bid, which was accepted by the United States, and the court held that the acceptance by the Post-Ofiice Department of the proposal of a bidder to so carry the mails had the same force and effect as if a formal agreement had been written and signed by the parties. And also in the case of Harvey v. The United States (105 U. S. It., 071) the court held that the advertisement inviting proposals, and the written bid of the claimant, accepted by the proper officer of the United States, but left out of the agreement by accident or mistake, was proper to be considered by the court in determining the rights of the parties, and the contract was reformed to the extent of making such advertisement a part of the agreement. The controversy in the case at bar does not originate from the advertisement for proposals, and the bid of the claimant on such proposal and the acceptance of the same by the United States, but originates from correspondence between the parties prior to the execution of the agreement as to what the parties should agree to and adopt as the final terms of the contract.

In this connection the court determines that the finding is not sufficient to reform and change the terms of the contract so as to cast upon the defendants the risk and liability for the expense and loss of material incident to the two unsuccessful experiments in July and December, 1864. Nerius v. Dunlap, 33 N. Y. Court of Appeals, 676; StocJcbridge Iron Company v. Hudson Iron Company, 102 Mass., 45; National Fire Insurance Company v. Crane, 16 Md., 260; Palmer v. Coni'erse, 60 Ill., 260; Palmer v. The Hartford Fire Insurance Co., 54 Conn., 489; Gray y. Woods, 4 Blackford (Ind.), 432.

This view of the case upon the question of reformation remits the consideration of the court to the contention that the correspondence is a part of the agreement, and that such correspondence shows that the fabrication of the guns was one of experiment, and that the cost of an unsuccessful molding was to be borne by the defendants. We do not consider that tbe facts of this case bring the correspondence antecedent to the execution of the contract on the 24th of September within the rule announced by the Supreme Court in the Hearne Case (siipra). This case differs from that in the fact that both parties signed the agreement after a preparation of it by one party and a most careful examination and consideration upon the part of the other party.

In the insurance case the contract was signed by only one of the partners, and, as the Supreme Court says, “ It is not probable that he scanned the policy with the same vigilance as the letters of the company.”

But conceding the consideration of the letters as proper in connection with the terms of the contract finally put into form on the 24th of September, do they establish the contention of the company that the casting was merely experimental and that the costs and expense was to be at the risk of the defendants'?

The contract provides that “these gun bodies and the gun shall be delivered by the party of the first part completed as required by the contract. * * * For these gun bodies there shall be paid by the United States to the said party of the first part, subject to the conditions stipulated above, on delivery in good condition at their works.” The contract also provides that the gun as to which both failures were made was to be cast “ breech down,” and it will be seen by the letter of the company that it only insisted for a casting “ breech up” as a progressive experiment, and that such a mode of casting would be as safe as the old method of “ breech down.” The theory of the claimant is that the defendants in the final correspondence agreed that the casting should be at the cost of the defendants. We do not so construe that correspondence.

In the letter of the 17th of August, 1882, the Chief of Ordnance says: “The whole question of risk was amply provided for in the very liberal profits allowed in the sums stipulated to be paid under the contract.” And in the same letter he quotes from the testimony of Mr. Hunt before, a committee, in order to show that the company had the utmost confidence in its ability to make a successful fabrication of the character of guns provided for in the agreement, while in the later letters of the president of the company he insisted that the risk should be on the United States. The agent of the United States did not agree or consent to that change in what he regarded as the obligation and undertaking of the company. There was some modification of the first agreement sent to claimant as to tension, but that it was changed so as to place the responsibility on the defendants does not appear from, the letters of the Chief of Ordnance.

This view of the case disposes of the claims for the failure of July, 1884, and that of December, 1884, on the general liability of risk for unsuccessful experiments being at the cost of the defendants.

The December failure grew out of a defect in the casting when subjected to the process of reduction on the lathe. The failure was not due to any interference upon the part of the agent of the United States. The claimants attempted to cool the gun in accordance with the plan provided in the agreement, and without any fault upon the part of defendants in the process of casting it was unsuccessful.

In the seventh finding it was shown that by an agreement made at the time when the parties were negotiating as to the contract for the fabrication of the guns, the defendants being-in possession and owners of certain flasks, it was agreed that in the process of casting the defendants were to furnish to claimants such flasks, and in consideration of which a compensation was allowed the defendants in the price agreed to be paid for the work. In pursuance of that agreement the claimants used the flasks of the defendants in making the castings in July, 1884; but in the process of molding the flasks furnished by the defendants were unable to sustain the weight of molten iron, and because of such weakness gave way, and in consequence thereof the casting became a total loss.

Such failure is one of the grievances complained of in the petition of claimants, and the question arises which of the parties is to bear the loss of such failure. The legal theory on which this claim is based is, that the defendants having furnished the flasks there is an implied warranty on the part of the defendants that they were sufficient to perform the service for which they were intended, and having failed in such sufficiency, there is a violation of the warranty; and the conse-' quence of such failure must fall on the defendants. The claimant had a right to use the flasks contributed by the defendants, and was compelled to do so unless it assumed tbe burden in violation of its own interest to furnish flasks of its own. It may be said that in strict compliance with its obligation under the contract with the defendants it was the duty of claimants to use the flasks. Although we hold that the casting was at the risk of the claimánts, it does not follow that a failure growing out of the insufficiency of the flasks cast the responsibility of the loss on the claimants. The defendants having been paid for the use of the flasks, in calculating and determining the compensation of the claimants for the work, they assumed the responsibility that the flasks would prove sufficient in the process of molding. The finding shows that because of their weakness they failed to do and perform what was expected by both parties. The failure in July, 1884, was not in consequence of any omission or fault of claimant, but the fault of the defendants in not furnishing flasks of sufficient capacity to sustain the weight and force of the iron.

- This case having in some particulars the nature of a proceeding in equity, and at the request of the parties, we have set out in extenso letters and other documents which might not be necessary in an ordinary suit, in order that in case of appeal the entire controversy may appear; and we determine from the whole record that the claimant is entitled to recover the sum of $20,828.33, as set out in finding vm, but not entitled to recover the item of $16,814; and for said sum of $20,828.33 a judgment is ordered.  