
    ELISHA B. GREGORY AND DIGHTON D. BISHOP v. THE UNITED STATES.
    [No. 17808.
    Decided May 23, 1898.]
    
      On the Proofs.
    
    The claimants enter into a contract for sinkiDg an artesian -well at Fort Schuyler, N. Y. They are to “ case the well from the surface of the ground to the solid rock with a drivepipe, to he carried into the rock sufficiently to shut off all surface water.” They case the well with drivepipe down to and into the rock, excluding surface water. Thereafter brackish water is found which is not “surface water.” To shut out this water the defendants require the contractors to extend the drive pipe through the solid rook.
    I. The terms “solid rock” and “surface water” have a technical meaning in the trade of boring artesian wells. “Solid rock” means rock which will not cave when drilled or yield or move under the drill.
    II. A contract to sink an artesian well and to “case the well from the surface of the ground to the solid rock with a drive pipe” is not a contract to sink a well which will furnish fresh water. If the other . party requires the drive pipe to be carried down through the solid rock so as to exclude brackish water found therein, it i3 extra work, for which the contractor can recover.
    
      The Reporters’ statement of tbe case:
    The following are the facts of the case as found by the court:
    I. June, 1890, plaintiffs, copartners, made the following contract with defendants:
    “Articles of agreement entered into this tenth (10th) day of June, eighteen hundred and ninety, between 2nd Lieutenant Richmond P. Davis, and Gregory and Company:
    “ agreement Richmond P. Davis, 2nd Artillery, Acting Assistant Quartermaster, for and in behalf of the United States of America, and the said Gregory and Company (Elisha B. Gregory and D. D. Bishop), for themselves, their heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    “Article I. That the said Gregory and Company B. Gregory aud D. D. Bishop) shall furnish all labor and material necessary for the complete and substantial execution for sinking an artesian well at Fort Schuyler, N. Y. H., including all apparatus and utensils requisite for the same, as described and reasonably implied in the specifications attached hereto. To give the work their personal superintendence and in their absence keep a competent foreman constantly on the ground, and are not to sublet tbe whole or any part of the work, which is to be entirely under the control of the post quartermaster.
    “Article II. That the said party of the second part shall case the well from the surface of the ground to the solid rock with a drive pipe ten (10) inches in diameter, weighing forty (40) pounds to the foot. The drive pipe to be carried into the rock sufficiently to shut off all surface water. The well, when completed, must be perfectly straight.
    “Article III. That the said party of the second part shall make thorough tests of the capacity of the well at their own expense whenever there appears to be an increase in the height at which the water stands in the well and at such other times as the officer in charge may direct. The final test shall not be less thau forty (40) hours and a supply of water of good quality will not be less than twenty thousand (20,000) gallons per twenty-four (24) hours.
    “Article IV. That the party of the second part shall be responsible for and pay all liabilities incurred for labor and material in fulfillment of this contract.
    “Article Y. That deliveries on this contract shall, if required, commence on the first (1st) day of July, eightéen hundred and ninety, provided that the agreement is approved by the Quartermaster-General, U. S. Army. The work to be continued without intermission, except from som e unforeseen cause, and to be pushed as rapidly as possible, otherwise not until such approval is obtained.
    “Article YI. That it is expressly agreed and understood that this contract shall be noneffective until an appropriation adequate to its fulfillment is granted by Congress and is available.
    “Article YII. That for and in consideration of the faithful performance of the stipulations of this agreement, the parties of the second part shall be paid, at the office of the post quartermaster at Fort Schuyler, N. Y. H., as follows: Eight (8) dollars per foot for the first (1st) hundred (100) feet. Seven (7) dollars per foot for the second (2nd) hundred (100) feet. Six (6) dollars per foot for the third (3rd) hundred (100) feet. Six (6) dollars per foot for the fourth (4th) hundred (100) feet. Six (6) dollars per foot for the fifth (5th) hundred (100) feet. Five (5) dollars per foot for the sixth (6th) hundred (100) feet. Four (4) dollars per foot for the seventh (7th) hundred (100) feet: And provided the well is sunk seven hundred (700) feet the contractors shall be paid the sum of four thousand and two ■hundred (4,200.00) dollars; but if work is stopped before this limit in depth is reached and a free and sufficient supply of water of satisfactory quantity is obtained, then in addition to the price per foot they shall receive such additional sum as set forth in clause five (5) of the specifications. The contractors shall receive seventy-five (75%) per cent of work at completion of each one hundred (100) feet, according to bid.
    
      “Article VIII. That in case of failure of the said party of the second part to comply with the stipulations of this contract according to the true intent and meaning thereof, then the party of the first part shall have the power to commence or continue the work specified at the expense of the party of the second part, who shall make good all loss or damage which may result directly or indirectly to the United States in con-of such failure.
    “Article IX. Neither this contract nor any interest therein shall be transferred by the said Gregory and Company (Elisha B. Gregory and D. D. Bishop) to any other party or parties, and any such transfer shall cause the annulment of the contract so far as the United States is concerned; all rights of action, however, for any breach of this contract by the said Gregory and Company (Elisha B. Gregory and JD. D. Bishop) are reserved to the United States.
    “Article X. No Member or Delegate to Congress, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit which may arise herefrom.
    “Article the Quartermaster-General, U. S. Army.
    II. The work actually done by plaintiffs under this contract was satisfactory to defendants’ representatives at Fort Schuyler.
    III. Plaintiffs, by express command of the officers of the United States in charge of the effort to obtain fresh water at Fort Schuyler by means of this well, did work, furnished material, and incurred expenses in and about the boring of the well which they claim were not required by the contract.
    IV. Plaintiffs protested at the same time that said work (claimed as extra) was done, said material was furnished, and said expenditures were incurred that this work, expenditure, and material did not fall within the terms of the contract, and they gave notice to defendants that compensation would be claimed therefor.
    V. The terms “ solid rock ” and “ surface water ” used in the contract (set forth in finding i) have a technical meaning in the trade of boring artesian wells. “Solid rock” (in that trade) means the rock which is found below the loam, gravel, etc.; that is, rock which will neither cave-in when drilled nor yield nor move under the drill.
    VI. When plaintiffs had bored one hundred and sixty-nine feet they struck large rocks. These rocks were so large that they remained steady under the drill; thus a hole could be drilled through them without movement on their part either by twisting or yielding. When these rocks had been bored plaintiffs cased the well with drivepipe down to and into the rock, excluding surface water throughout the length of the pipe.
    VII. Thereafter and to the greatest depth bored, to wit, five hundred and thirty-seven (537) feet, the boring was through solid rock.
    VIII. At a depth of two hundred .and fifty-four (254) feet brackish water was found, whereupon the officer in charge (August 11, 1890) directed plaintiffs to suspend operations.
    IX. August 17, following, said officer directed that work be resumed and that plaintiffs cased the well with drivepipe and shut off the brackish water.
    X. This brackish water was not “surface water.”
    XI. Plaintiffs protested against the casing, but received a positive command from defendants to put it in and were threatened by defendants with an action against their bondsmen if plaintiffs failed to obey the order.
    XII. In consequence of this command, and acting under the orders of defendants, plaintiffs continued the boring and cased the well with 10-inch drivepipe from the surface of the ground to a depth of three hundred and twenty-five (325) feet.
    XIII. The charges made by plaintiffs for materials furnished and delay caused are reasonable in amount.
    XIV. The work claimed to be extra was done, the material claimed to be extra was furnished, and the expenditures stated were made for the benefit of the United States. The delay in finishing the work was caused by the United States, and was-not then objected to by defendants.
    XV. Defendants paid to plaintiffs the amount specified in the contract, but have not paid them for said work done claimed to be extra, or the material furnished and expenditures made as aforesaid, amounting to two thousand one hundred and twenty-one dollars and seventy-two cents ($2,121.72).
    
      Mr. Wharton JS. Lester (with whom was Mr. William Limey) for the claimant.
    
      Mr. M. G. Burch (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Davis, J.,

delivered the opinion of the court:

The 10th day of June, 1890, plaintiffs and defendants con-traoted that the former should bore a well for fresh water .at Fort Schuyler, N. Y., where the East Elver and Long Island Sound join. Fresh water was not obtained from this well at the depth where it was expected. The boring was unsuccessfully continued at considerable cost'to the contractor until the defendants decided to abandon the scheme. A depth of 537 feet had then been reached. For extra cost due to the unexpected depth of the well this action is brought.

"The first article of the contract requires plaintiffs to sink an artesian well at Fort Schuyler, while the second article, more important to our present purpose, provides—

“That the party of the second part shall case the well from the surface of the ground to the solid rock with a drill pipe ten inches in diameter, weighing forty pounds to the foot, the drill pipe to be carried into the rock sufficiently to carry off all surface water. Clause Y of the specifications alludes to ‘sufficiency of water’ and ‘a free and sufficient supply of water.’”

It appears, then, that plaintiffs were to sink an artesian well down to and into the solid rock and to case it with a drill pipe which was “to be carried into the rock sufficiently to carry off all surface water.” It does not appear that they contracted to sink a well which would furnish fresh water; they were simply to sink an artesian well to and into the solid rock, to case this well with a certain drill pipe which was to be carried into the rock sufficiently to carry of all surface water. This the findings show was done. The work below this point was not embraced in the contract, as'it was not necessary “to carry off all surface water,” but was done at defendants’ request to shut off a kind of water which was not surface water, but was objectionable to defendants.

Judgment for plaintiffs in the sum of $2,121.72.  