
    Hervey S. Dale v. The United States.
    
      On the Proofs.
    
    
      The claimant has two contracts for building a breakwater. The consideration is §8 per 1,000feet of the timber used. The size of the cribs is specified. The work is to be at the risk of the contractor till accepted by the defendants. The right to order changes is reserved by them. No charge for extra work or alterations is to be made, unless the alterations, <fe., were approved by the Chief of Engineers in Washington. In the progress oj the work alterations, dxily approved, are ordered, to which the claimant objects as increasing the cost or risk. Others are ordered to which, he makes no objection. Others, again, are ordered which are not approved. Payments are made as the work goes on upon measurements and estimates made by the local engineer. Upon their estimates the claimant receipts 
      
      in full for each installment. Some of the xoork is destroyed after such measurements and estimates hare been made; some is destroyed by storms in consequence, as-the claimant contends, of alterations ordered by the defendants.
    
    I. Tlie defendants’ acceptance of work under a contract will be inferred where it is done under tlie eye of their engineer, who measures and makes out and transmits to his superior officer estimates for its payment.
    II. Where work under a contract is paid for as it progresses upon measurements and estimates made hy the defendants’ engineer in charge, receipts in full, given hy the claimant upon each estimate, will not conclude him as to items not enumerated in the estimates, in the absence of xiroof that they wore to be regarded as estimates of the entire work.
    III. Where the court orders that a case on trial be continued unless one party waive his objection to the authenticity of certain evidence offered by the other and he elects to waive it, he cannot subsequently question the authenticity of the evidence.
    1Y. If the defendants, under a reserved power in their contract, order changes in the work which would diminish the claimant’s compensation according to a rate prescribed hy the contract, the latter must object. If he remain silent, it would be inferred that he assented to make the change at the price prescribed by the contract.
    V. If the defendants order such changes and the claimant does not assent, he may recover the increased expense which the alteration subjects him to.
    YI. YiThere a contract ircovides that no claim shall be made by the contractor for extra work unless ordered with the approval of the defendants’ Chief of Engineers, the contractor cannot recover for extra work or material furnished by direction of the local agent without the knowledge or approval of the Chief of Engineers.
    YII. Where a contractor regarded a proposed change of holt to be used in the construction of a breakwater as entailing upon him increased risk, it was his duty to put the defendants upon their guard.
    YIII. If such notice were given, the risk, in the absence of fault or neglect on the part of the contractor, would be shifted to the defendants; and, the breakwater being destroyed by a storm, it would not be necessary for him to prove affirmatively that the accident was due to the new form of bolt which he objected to.
    IX. If the accident could have been avoided by prudence and diligence on the contractor’s part, the burden is on him to prove affirmatively that the change in the form of the bolt was the cause, and that it would not have happened had such change not been made.
    
      
      The Reporters’ statement of tbe case:
    Tbe contract referred to in tbe findings of fact and tbe facts as found by tbe court are as follows:
    “ Articles of agreement entered into tbis second day of December, eighteen hundred and seventy-four (1874), between G-. Weitzel, Major of Engineers, for and in behalf of tbe United States, of tbe one part, and Hervey S. Dale, of Chicago, Cook
    County, in tbe State of Illinois, of the other part.
    “Tbis agreement witnessetb that tbe said G-. Weitzel, Major Corps of Engineers, for and in behalf of tbe United States of America, and tbe said Hervey S. Dale, for himself, bis heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other in tbe manner following, namely:
    “ That tbe said Hervey S. Dale shall furnish tbe materials and labor for tbe construction of a breakwater for a harbor of refuge at Sand Beach, Michigan, all in accordance with tbe advertisement, instructions, and specifications hereto attached and forming part of tbis contract, and shall receive in full compensation therefor as follows:
    “ For pine timber and plank, fifteen dollars ($15) per M ft. b. m.
    “ For oak or Norway pine piles in place, ten cents (10 cts.) per lineal foot.
    “For iron plating, drift-bolts, nuts, screw-bolts, washers, and spikes, in place, three and one-half cents (3J cts.) per pound.
    “ For bowlder-stone, six dollars and ninety cents ($6.90) per cord of 128 cubic ft.
    “ For limestone, six dollars and ninety cents ($6.90) per cord of 128 cubic ft.
    “For Naming, laying plank, including all labor of construction, placing, sinking, and filling cribs, nine dollars and fifty cents ($9.50) per M ft. b. m. of timber used.
    “That all the materials and labor offered under this contract shall, before being accepted, be subjected to a rigid inspection by an inspector appointed on the part of the government, and such as do not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.
    “ That the said Hervey S. Dale shall commence the delivery of materials and performance of labor on or before the first day of March, eighteen hundred and seventy-five (1875) and complete the same on or before the thirty-first day of October, eighteen hundred and seventy-five (1875).
    “ That payment shall be made in monthly installments, when the materials and labor contracted for shall have been delivered and accepted, reserving ten per centum from the payment until tbe whole materials and labor shall have been so delivered and accepted.
    “ And it is also agreed that if, in any event, the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work at the day specified herein, or shall, in judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have power to annul this contract, and to declare all money or reserved percentage that may be due by virtue of its provisions forfeited to the United States.
    “And it is also further agreed bythe parties of the second part, as required by the 14th section of the act of Congress approved July 17, 1862, that neither this contract nor any interest therein shall be transferred to any other party or parties, and that any such transfer shall cause the annulment of the contract as far as the United States are concerned.
    “No member of Congress, officer or agent of the government, or any person employed in the public service, shall be admitted to any share herein or any benefit which may arise herefrom.
    “ In witness whereof the undersigned have hereunto placed them hands and seals the day and date first above written.
    “ [Executed in quintuplícate.]
    “ G-. WEITZEL,
    “ Major of Engineers.
    
    “HERYEY S. DALE.”
    I. Prior to the loth September, 1874, the defendants projected the construction of a breakwater for a “ harbor of refuge ” at Sand Beach, on Lake Huron, in the State of Michigan. The proposed breakwater was to be composed of two arms, one known as the shore arm, the other as the sea arm, each made of crib-work. The two were to be joined together at an obtuse angle, so as to present a continuous line of wall to the exterior water. It was proposed to construct the sea arm in a straight . course, which, in the main, corresponded with the shore line, of about 4,000 feet in length, and in water of about 30 feet in depth at the mean level of the lake. The shore arm was proposed to be about 2,000 feet in length, in water varying from about 30 feet to about 6 feet in depth, and over a bottom partly of mud and partly strewn with bowlders. A lithographed plan of said proposed breakwater was prepared by the defendants, showing its location, but not the details or the mode of construction as adopted and defined in the contracts hereinafter referred to.
    
      II. On the same 15th. day of September, 1874, the claimant and one Amintor Davidson were engaged, under a contract previously entered into, in the construction of 1,000 linear feet, more or less, of the said breakwater. The work which they were then engaged on included the angle where the two arms joined, and extended for a short distance on the shore arm, and for a longer distance on the sea arm, so that, when the work under their contract should be finished, the angle would be turned, and a portion of each arm would be completed.
    III. On the same 15th day of September the defendants advertised for proposals for the construction and putting in place of another 1,000 linear feet, more or less, of said breakwater. The advertisement and specifications accompanying it are annexed to the claimant’s petition. The designs therefor, furnished by the defendants’ engineer, and the said lithographed plan, were submitted to the bidders. They indicated the form and mode of construction of each crib and the general plan of the breakwater, but did not show upon which arm the proposed work was to be done.
    IY. The claimant bid for the work thus advertised and his bid was accepted. On the 2d of December, 1874, the written contract was entered into between the claimant and the defendants, which is annexed to the claimant’s petition as Exhibit A. It was intended by both parties that the work to be done under the said contract of the 2d December, 1874, should be done on the said shore arm of the said breakwater, commencing at the termination of the work done under the said Dale and Davidson contract, and extending thence continuously 1,000 linear feet, more or less, towards the shore. The claimant did construct that amount of breakwater on said shore arm under said contract, as hereinafter set forth, and in doing so acted in everything under the general directions of the defendants so far as required to do so by said contract, but not otherwise.
    Y. About the time of the signing of the said contract of December 2, 1874, the defendants’ agent notified the claimant that he would be required to construct each crib to be constructed thereunder 50 feet by 25 feet, instead of 05 feet by 38 feet, as called for by the said specifications. The working plans and drawings for said cribs, subsequently made by the defendants and delivered to the claimant, required the cribs to be constructed of the dimensions set forth in said notice.
    
      VI. The claimant made no objection to the proposed change in the size of the cribs, and gave his orders for the timber to be used in the construction of the said cribs after the receipt of the notice and in conformity therewith. He constructed the said cribs, and each of them, which were put into the 1,000 linear feet of the shore arm, of the said size of 50 feet by 25 feet, as required by the defendants. The claimant was put to no extra expense by reason of such changes.'
    VII. Soon after the signing of the contract, and some months before work was begun on it, the defendants’ agent notified the claimant that he would be required to commence the new work at a point about 300 feet distant from the end of the work under the Dale and Davidson contract, so as to leave an opening of about that length. The claimant thereupon addressed the following letter to General Weitzel, the engineer in charge of the work:
    “ Sand Beagh, M., Dec. 19,1871.
    
      u General Weitzel :
    
      a Dear Sir : You will pardon me for assuming to address you on the subject herein mentioned, but having been informed by Capt. Lee and Mr. Gilbert that it was a settled fact that there was to be an opening left in the breakwater at Sand Beach, and feeling so much interest in the success of the proposed work, aside from a pecuniary interest, is why I address you. As I am informed by the inspector, Mr. Gilbert, that when the contemplated work is complete there will be only about three hundred acres inclosed that would be of sufficient depth of water for vessels to rest in. And, in my opinion, to leave an opening of 300 feet or less would permit a sea from the northwest, north, and northeast to roll in to such an extent that it would so disturb the water of more than one-half the space that was contemplated for a harbor of refuge; and believing myself, after an experience of two seasons (all of which time I have closely observed the action of the water), that the greatest fault with the whole project is that the space is too small, having more than once during the season of 1873 counted upward of 200 vessels off Sand Beach at one time; and believing that an opening of that kind would cause a swell inside the harbor that not one-fourtli of that number could safely lie there, particularly large tows of barges that (oftener than any other class of vessels) are compelled to run back to the St. Clair Biver. And, again, I believe that an opening left would increase the danger (of all others) that I think is most to be feared, and that is, from floating fields of ice, I believe an opening left would allow it to flow into it with greater force, and cause more damage than striking an unbroken wall; I believe it would operate as a wedge against each end of the work, and in a short time make breaches that would destroy that part of the work.
    “Yours, very respectfully,
    “H. S. DALE.»
    VIII. General Weitzel referred said letter to Captain Lee, the officer in immediate superintendence of the work, by whom it was referred to Mr. C. P. Gilbert, the assistant, who reported in favor of the proposed change. General Weitzel thereupon addressed the following letter to the claimant, and the work was constructed in accordance therewith:
    “United States Engineer’s Oeeice,
    “85 Washington Avenue, Detroit, Mich.,
    
      “Dec. 24,1874.
    “ Mr. H. S. Dale, Sand Beach, Mich.:
    
    “ Sir : Your letter of the 19th inst. was referred by me to Capt. Lee, and by him to Mr. Gilbert. It was returned by the latter with the following indorsement: ‘ Respectfully returned to Capt. A. N. Lee, Corps of Eng’rs, with the statement that the opening mentioned was recommended as an experiment, which, if successful, will give greater facility in passing in and out of the harbor in certain winds, and if found to be impracticable, a little extra expense will close it at any time.’ This is approved.
    “ Very respectfully,
    “G. WEITZEL,
    “ Major of Engineers.”
    
    IX. The first crib under the contract of December 2,1874, was launched May 31,1875, and was, on the 3d June, 1875, sunk in place at the lake end of the pier, 300 feet distant from the work done under the Dale and Davidson contract. It was a bulkhead crib, with a finished end towards the opening, and it cost "the claimant $470 more to construct it than it would have cost had there been no change in the plan. The 19 remaining cribs necessary to complete the 1,000 feet named in the contract were sunk as follows: June 15, 18, 25, 26, and 29; July 7,12,15,17, 24, and 28; August 4,17, 24, and 25, one each; and August 13 and 20, two each.
    X. Early in August, 1875, it was found that after completing 1,000 feet of the breakwater on the shore arm, there would still remain an unexpended balance of the appropriation. In order to get the full benefit of the appropriation, it was then agreed between tbe claimant and tlie defendants that the claimant should extend the said shore arm 500 feet farther, on the same terms and conditions as named in the contract of December 2, 1874, and as if it were constructed thereunder, except that the cribs in the new structure should be 18 feet by 45, and connected with the other structure by a taper crip. The cribs thus agreed to be constructed were sunk as follows: the taper crib and three other cribs, August 30,1875; two cribs August 31, and one crib each on the 2d, 8th, 14th, and 26th September, and 2d October, 1875.
    XI. On the 10th and 17th September, 1875, storms occurred at Sand Beech, by which a quantity of stone was displaced from cribs on the shore arm, which has been already estimated for by the defendants. The defendants’ agent measured the space thus displaced, and determined that the amount of it was 35 cords. The claimant’s agent also measured the same displacement, and determined that it was 353 cords. The claimant filled up a second time the space which was thus washed out, and was paid therefor, at the contract rates, as for a filling of 35 cords, according to the defendants’ measurement. The claiment filled in this way with stone a second time a space of 300cords, worth at the contract price $2,374.83, for which he has received no payment.
    XII. Before it was decided to reduce the width of said last named cribs from 25 to 18 feet, the claimant had contracted for the lumber for the same. A part of said lumber consisted of 195 ties of 25 feet in length. It became necessary, in consequence of said change in plans, to cut 7 feet from each of these ties. This was a loss to the claimant, in consequence of the reduction in the measurement, amounting in the aggregate to $245.70, for which he received no compensation.
    XIII. In September, 1875, the defendants directed the claimant to make a change in the superstructure which was to be put upon the said shore-arm breakwater. The said change was to consist in reducing the height of the work by means of a slope commencing at a point 300 feet distant from the said opening and continuing with such uniform grade that the superstructure should be 2J feet lower at the shore end than at the point where the slope began. Thus the whole breakwater, instead of being at a uniform height of 8 feet from the lake, as originally proposed, would be 8 feet in height for the first 300 feet from the opening, and tbence would gradually diminish, in height until it should become, at the other end, 5J feet in height.
    XIY. The claimant made no objection to the last-named change, although he had, before the receipt of the order for the same, contracted for materials sufficient to construct the superstructure, its sheathing and wainscoting, according to the original plans. He did the work in accordance with said change in plan, and wasted thereby 59,666 feet, board measure, of timber and planking, which were not allowed to him in the measurement, which was worth at the contract price $894.99, and on which he would have been entitled to the further sum of $566.82 for labor if it had gone into the structure. He has received no compensation for this loss.
    XV. The claimant continued work that season upon said shore-arm breakwater until December 16, 1875. On that day work was discontinued, the entire superstructure having been then filled with stone. Work was resumed on said structure in following season, and it was completed in July, 1876. The delay in the completion was not due to acts of the defendants or of their agents.
    XVI. The defendants’ agent in charge of the work made monthly estimates of the amount of material and labor furnished by the claimant in the work under said contract during the preceding month. Monthly vouchers were made out in the usual manner on the estimates thus furnished, and the contractor was paid upon the said vouchers, and with each payment he gave a receipt therefor in full. All the said estimates and all the said vouchers and all the said receipts were, in general form, like the final estimates, vouchers, and receipts, of which the following are copies:
    “ Sand Beach, Mich., June 16,1876.
    “ To L. H. CHRISTMAN :
    “Final estimate under contract of Dec. second, eighteen seventy-four, one hundred and ninety-four thousand nine hundred and forty feet board-measure timber; fifty-three thousand three hundred and seventeen and eighty-one one-hundredth pounds iron; ninety-five cords stone; one hundred and ninety-six thousand and ten feet board-measure framing. Total payment seven thousand three hundred and seven dollars and eiglitv-one cents.
    “C. P. GILBERT.”
    
      
      The United States to Hervey S. Dale, Dr.
    
    
      
    
    “ Deceived at Detroit, Michigan, this 22d day of June, 1876,. from Major G. Weitzel, Corps of Engineers, the sum of three thousand four hundred seventy-five dollars and one cent, in full payment of the above account, f Signed in duplicate.]
    “ HEBVEY S. DALE.”
    
      The United States to Hervey St Dale, Dr.
    
    (Appropriation June 23,1874, for improving Harbor of Refuge, Lake Huron, Michigan.)
    
      
    
    “Deceived at Detroit, Michigan, this 22d day of June, 1876, from Major G. Weitzel, Corps of Engineers, the sum of ten thousand one hundred and thirty-one dollars and nine cents, in full payment of the above account.
    [Signed in duplicate.]
    “HEBVEY S. DALE.”
    XVII. On the 21st July, 1876, the claimant presented a bill for ' extra labor and materials under said contract of December 2, 1874, as follows:
    “ Sand Beach, Mich., July 21 st, 1876.
    “ Gen’1 G. Weitzel,
    “ 85 Washington Ave., Detroit, Mich.:
    
    “ Dear Sir : Will you please arrange so as I can adjust my claim on contract of Dec. 2d, 1874, for extra labor & materials-furnished when I receive my estimate due the first of August next?
    <l When receiving my estimate the first of July, I was informed by Mr. Cristman that it would be necessary to adjust it at time of receiving an estimate on contract of 1875. The superintendent, Mr. C. P. Gilbert, not being in your office when receiving estimate the first of this month, and knowing you were very busy with your annual' report, was the reason I said nothing to you in reference to the matter then.
    “ Yours, truly,
    “H. S. DALE.”
    
      The United States Dr. to Kersey S. Dale.
    
    For items of labor & material under contract of Dec. 2, ’74, not estimated & paid for, as follows:
    Difference in consequence of change of size of cribs from those bid for—
    Additional cost for increased am’t of wainscoting. 295 31
    Additional on bottoms in excess. 268 00
    Do. on increased length and amount of superstructure proper. 807 45
    - 1,370 76
    3,096 spike used in wainscoting, 867 lbs., ©3£ c. 30 34
    Extra bolts, in double (top) ties, 553 lbs., @3J c. 19 36
    Stone, below grillage... 178..3
    Washed out, after filling, on Sept. 9, ’75, & replaced. 300.7
    479 cords, $6.90.3,305 10
    - 3,354 80
    Waste—
    In cutting down wainscoting for slope of 2¿ inches in 100 for 1,200 ft. = 22,500 ft., 24.50. 551 25
    In cutting sluices for superstructure proper, including slope of 2J in. to 100 ft., 4,286 ft., © 24.50. 105 00
    - 656 25
    $5,381 81
    August 1st, 1876.
    
      General Weitzel referred said letter and bill to Captain Lee, wbo, after referring tbe same to said Gilbert, returned said papers to General Weitzel with tbe following indorsement:
    “TJ. S. EnGt’e Oeeice, Detroit, Aug. 28, 76.
    “ Eespectfully forwarded to Major Weitzel. Tbe enclosed letter from Mr. O. P. Gilbert, ass’t, shows that tbe contractors have no just grounds for these claims. With regard to tbe 8th item, however, if tbe contractors can prove that more than 35 cords of stone which Mr. Gilbert allowed have been washed out of the cribs, and if they have replaced them, I think they should be paid for them. No allowance should be made for loss of stone washed from top of cribs and which was placed there by the contractor for his own convenience.
    “ A N. LEE, Capt. of ling’s.”
    
    No part of the amount of said bill for extras thus presented by the claimant has ever been paid.
    XVHL On the 21st day of June, 1875, the claimant and the defendants entered into the certain other contract for the construction of a further portion of said sea arm, a copy of which is attached to the claimant’s petition as Exhibit 33. The work under this contract consisted of crib-work only, without superstructure, and was fully performed by the claimant, who in so. doing acted in all things under the general direction of the defendants, so far as required to do so by the contract, but not otherwise.
    NIX. After entering into said last-named contract the defendants changed the plans thereof, so as to require double dovetailed ties in the place of single dovetailed ties. The claimant made no objection to this change. He complied with the requirement, at. an extra cost to him of $152 above what it would have cost him to construct said ties with single dovetail ties. He has never been paid this amount.
    XX. The last-named contract called for square iron bolts, headed at the top to a square one-half inch greater than the side of the bolt. The top of the head was to be flat, and it was. to be joined to the side of the bolt by a wedge-shaped connection resembling the common screw-head, except that the curve was to be concave instead’ of convex. The bolts were to be 30 inches long, with sides parallel till reaching the pointing (which was to- be pyramidal), and they were to be driven in holes yf-inch in diameter.
    
      On the 14th March, 1876, the defendants’ agent required the claimant to substitute for these bolts round bolts of one inch diameter, with button-shaped heads, formed with a straight shoulder projecting ¿ inch from the bolt, with sides parallel till reaching the pointing, and with a conical pointing. About f of these bolts were to be 34 inches in length, and about -f were to be 42 inches, and all were' to be driven in holes -j-f-inch in diameter.
    XXI. Prior to that time it was usual to construct crib-work with square bolts. From the evidence of experts, and from the results of experiments introduced on both sides in evidence, it is found that with two bolts of equal length, one of which is round and the other of which is square, with a face equal to the diameter of the round bolt, the square bolt has the greater holding power, and is less liable to break.
    XXII. The claimant, being informed of the proposed change, •expressed to the defendants’ agent, before work was done under the contract, the opinion that the 42-inch bolt would kink in driving, and that the round bolts would not hold as firmly as the square bolts; but he made no formal protest against the change, and, except as already stated, said nothing to induce the defendants’ agent to suppose that he regarded it as increasing his risk under the contract.
    XXIII. The claimant constructed all the dribs made under the last-named contract after receipt of the notice referred to in Finding XX, including cribs Nos. 34 and 37, hereinafter referred to, with round iron bolts of the forms and sizes specified in said notice.
    XXIY. On the 13th August, 1876, the claimant sank in position said sea-arm crib No. 34, being the tenth crib sunk under the last-named contract. The said crib was 65 feet by 38, and was 29 courses Of 12-inch timber in height. Each longitudinal course was held to the corresponding longitudinal course on the other side by cross-ties dovetailed into the longitudinal courses. The cross-ties were fastened on the interior by two courses of longitudinal connections, each parallel with an exterior course, and about il feet distant from it, thus dividing the interior into separate compartments or pockets. Each exterior course Whs bolted ’to the courses below by 34-inch bolts, which necessarily passed through the tipper course, the course next below it, and penetrated the third course 10 inches. Thus, with the exception of the two upper and two lower courses, each course was attached by its own bolts to two courses below, by the bolts of the course nest above it to the course above and the course below it, and by the bolts of the second course above it to that course and to the intervening- course.
    The end tiers of the pockets of the said crib were covered with temporary decks of heavy planking, and these decks were then loaded with stone ballast until the crib touched the bottom in the place where it was intended to stay. Then the claimant commenced packing the interior pockets with stone. The whole capacity of the pockets was about 480 cords, of which about 120 cords were filled in on that day. During the night a storm arose which washed away a large part of the deck load of ballast. The crib then parted by the force of the waves on an irregular line about eleven courses from the bottom. The claimant was put to the following expenses to repair the damage caused by said parting, no portion of which has been repaid to him:
    August 15 to 22 — 110J days’ labor, at $2.$221 00
    August 16 to 22 — 6 days’ labor of diver, Quigley, at $20... 120 00
    3J days’ use of tug, at $50. 175 00
    2 days’ use of steam-derrick, at $35. 70 00
    Timber used in fastening cribs:
    Four - pieces 12" by 12" by 22', 4 pieces 10" by 10" by 38'=2,223 ft. b. m., at $23.:.•. 51 13
    Twelve iron drift-bolts, heads, and nuts, 84^ lbs., at ■ 2J cents .....¿_ 2 97
    640 10
    The part of said crib 34 which came away was resunk on the 21st August, 1876, in the same position, and was secured there by stone filling.
    XXV. On the 9th October, 1876, the claimant sunk crib No. 37 in position on said sea-arm. It was constructed in all respects like crib No. 34, except that it was'thirty courses in height, afid that the capacity of its pockets was about 490 cords. It was also ballasted in the same way that crib 34 had been ballasted. A brisk wind blew from the shore early in the morning of the day on which it was sunk. The claimant asked the defendants’ agent whether it was best to undertake the sinking on that day. Tne agent replied that he thought it a little risky, but would not give an opinion either way, and the claimant must act on his own judgment. The claimant sank the crib about half past ten o’clock in the morning of that day. The wind increased to a stiff breeze by noon. Before night the sea was rolling in from the lake with such force that the claimant was able that day to put only about 100 cords of stone into the pockets of crib 37. The sea increased in the night and washed the ballast from the temporary decks over the end pockets. Early in the morning of the following day said crib No. 37 parted on an irregular line about six courses from, the bottom. The claimant was put to the following expense to repair the damage caused by said last-named parting, no portion of which has been repaid to-him:
    Money paid out.. o T — I
    Board of laborers 140 days, at 50c. a day. o
    Use of steam-dredge and steam-tug-13 days, at $65 per day. co Ci
    Use of steam-derrick 13 days, at $35 per day. ^ Cl Or
    2,530
    Tbe part of said crib -37 which, came away was resunk October 21,1876, in the same position, and secured then by stone filling.
    XXVI. Said cribs parted in consequence of the action of the sea¿ by which some of the retaining bolts were drawn out and some were broken. Each crib separated at or near the line where the filling in the pocket ceased. Had the interior pockets in said cribs been properly filled and packed.with stone, neither crib would have parted.
    NXYII. The estimates, vouchers, and payments under this contract and the receipts taken for the latter were in all respects similar in form and style to those set forth in Finding XVI. At the close of the work under this contract a final estimate was made similar in form to the one made under the former contract, and the claimant gave a receipt therefor in full, similar to the one set forth in Finding XVI.
    
      Mr. James Coleman for the claimant.
    
      Mr. Assistant Attorney-General Simons for the defendants.
   Davis, J.,

delivered tbe opinion of tbe court:

This action is brought to recover damages for alleged breaches of two contracts, each for the construction of a part of the breakwater of the Harbor of Eefuge at Sand Beach, in Michigan, on Lake Huron.

The case was ably and fully argued. The court has also had the advantage of subsequent written briefs and arguments on both sides, and we now feel entire confidence in the correctness of the results which we have reached upon the complicated questions raised in the arguments.

The first contract was dated December 2,1874, and the causes of damage are twelve in number, as set forth in the claimant’s reargument:

1. For preparing 980 feet lineal of bottom, at $3.00. $2,940 00

2. For sinking bulkhead crib No. 1. 600 00

3. For wastage of timber on ties, 34,944 feet b. m., at $15.00.\. 524 16

4. For building 23 crib bottoms, at $50. 1,150 00

5. For stone furnished to level bottom, 145 cords stone, at $6.90.:. 1,000 50

6. For loss of stone washed out by storms, 353 cords stone, at $6.90. 2,435 70

7. For waste of timber by sloping superstructure, 59,666 feet b. m., at $24.50 . 1,461 81

8. For liewing sides of superstructure, 2,523 lineal feet, at 50c. 1,261' 50

9. For labor in putting on wainscoting or sheathing, 141,120 feet b. m., at $4.00. 564 48

10. For labor in putting on plating, 280 lineal feet, , at $1.00. 280 00

11. For additional cost of superstructure over crib-work, 250,000 feet b. m., at $3.00. 750 00

12. For delay and expenses, 60 days, at $100 . 6, 000 00

18,968 15

The second contract was dated June 21,1875, and the causes of damage are four in number, as set forth in the claimant’s reargument:

1. For labor in framing tie-timbers, 533,748 feetb. m., at $4.50.$2,401 86

2. For breaking of crib No. 34. 640 10

3. For do. crib No. 37 ... 3, 609 00

4. For keeping up general expenses 13 days, at $100. 1, 300 00

7,950 96

Many of the subjects of contention between the parties are settled in the findings of fact. The court has found that the contract of December 2, 1874, provided for the construction of 1,000 feet, more or less, of crib-work and superstructure on the shore arm of the breakwater, and that, when it became apparent that the appropriation for the year would not be exhausted by that work, the parties, by a liberal construction of the words “more or less,’ extended that contract so as to cover the construction of 500 additional feet on the same arm. These findings sweep away the issues growing out of a supposed transfer of the work from the sea arm to the shore arm of the breakwater, and dispose of claims 1, 4, 5, 8, 9, 10, and 11, under the first contract.

It is also found that the delay in the completion of the work under the first contract was not due to the acts of the defendants or their agents. This makes it incumbent on the court to refuse to allow the twelfth item of the claimant’s demand under the first contract, viz, for delay and expenses, 60 days, at $100 a day.

In the sixth claim under the first contract, the claimant demands compensation for filling a second time the cribs on the shore arm, which were washed out by the storms of September 10 and 17, 1875. The contract provided that payment for the work should be made in monthly installments, after delivery and acceptance of the materials and labor contracted for, and also that no work or material should be accepted and paid for until in a proper position in the breakwater. The work was to be at the risk of the contractor till accepted, and after acceptance was to be at the risk of the defendants.

The latter had an agent on the spot to see that the work was done according to the contract. As each crib was completed by the contractor, with the eye of the defendants’ agent ujpon him, it was sunk into place and then packed with stone. The defendants’ agent then made- estimates of the labor and material, at the contract rates, in the cribs thus sunk and packed during the month, and forwarded them to his superior as the basis for the preparation of vouchers. In due time the voucher was paid. We regard such an estimate as the acceptance of the work on which it was made. Inasmuch as estimates had been made upon the cribs which were damaged by these September storms, the court is of opinion that the cribs had been accepted, and tbat they were at tbe defendants’ risk wben tbe injury took place. ,Tbe defendants’ agents were also of tbis opinion. Tbey paid tbe claimant for tbe loss of 35 cords of tbis stone, and tbe captain of engineers in charge reported tbat if it could be proved that more than tbis quantity was washed out, and tbat tbe claimant replaced it, be ought to be paid for it. Tbe amount due tbe claimant on tbis account is $2,374.83.

Tbis leaves for consideration all tbe items claimed under tbe second contract, and items 2, 3, and 7 of tbe claims under tbe first contract.

Tbe defendants set up against all these claims, 1st, receipts of tbe claimant in full under both contracts, and, 2d, tbat tbe changes were ordered by them in tbe exercise of a right reserved in each contract.

As to tbe first of these defenses, it is to be said tbat tbe receipts given on tbe vouchers prepared under tbe final estimates made on tbe two contracts respectively are acknowledgments of payment of tbe value of tbe labor and materials included in tbe estimates at tbe prices therein set forth, and are so far binding on tbe claimant. In tbe absence of proof tbat be assented to tbe correctness of tbe estimates as an estimate in each case oñ tbe entire work, and agreed to be bound by them and to make no further claim, or of proof tbat tbe payment was made and accepted in settlement of a disputed claim, we cannot give tbe receipts tbe force for which tbe defendants contend.

Copies of these receipts, certified in tbe usual way by tbe Secretary of tbe Treasury, were offered in evidence by tbe defendants. These being objected to by tbe claimant, tbe court gave him tbe option of either allowing them to be received in evidence with tbe same force which tbe originals would have bad or of a continuance. ■ He elected to waive bis objection to tbe receipt of tbe evidence. Tbis is a complete answer to tbe unusual request to have a ruling upon tbe admissiblity of evidence inserted among tbe findings of fact.

As to tbe second point in tbe defense, it is to be said tbat tbe clause upon which tbe defendants rely is to be found in both contracts. In tbe first it is stated in tbe following form:

“No variation from these specifications will be permitted without tbe consent of tbe United States engineer officer in charge of tbe improvement, to whom tbe right to make any change in tbe plans and specifications which be may at any time deem expedient is expressly reserved.”

Tlie second contract varies from the first only by inserting tlie words “ or location” after tlie word specifications.”

Tlie provisions of tliese contracts concerning xiayment are somewhat anomalous. While the claimant is bound to construct and put in place the breakwater, including the preparation of the bottom of the lake to receive it and all the labor and materials included in the completed structure, his compensation for the labor employed on the whole, whether in preparing the bottom or on the actual structure, is gauged by a measurement. of the lumber employed in the work when finished. In the first contract this provision reads as follows:

“For framing, laying plank, includingall laborof construction, placing, sinking, and filling cribs, nine dollars and fifty cents per thousand feet, board measure, of timber used.”

In the second contract the rate is $9. In other resi>ects the provision is the same in the two contracts.

This mode of payment furnished an adjustable scale which both parties accepted for the measurement of all changes which the defendants might order under their reserved power, and which the claimant might accept without protest or dissent. As to all such changes, the claimant cannot recover a higer ox-other compensation than the one fixed by the contract scale.’

The claimant did object to the proposed opening in the breakwater, and he may, therefore, recover the increased expense in the sinking- of the crib to which he was put in conse-quence of it. The court finds this to be $470. This disposes of claim 2 under the first contract.

The claimant, was put to no extra expense by reason of the change of the cribs in the first thousand feet from 68 by 35 to 50 by 25. The court did not consider whether tbie reduction which the narrowing caused in the number of cubic feet in the structure occasioned any loss in profits, because it is found that the change in plan was made before the purchase of materials, and that the claimant acquiesced in it, and purchased the mate-l’ial to suit the plan as changed, and constructed the cribs accordingly, without protest and without expression of dissent. The claimant also assented to the change of the cribs in the additional 500 feet from 50 by 25 to 45 by 18. The court, therefore, regard the findings of fact as a denial of the third item in the claimant’s demands under the first contract.

The claimant also assented to the proposed change in the height of the superstructure over the shore breakwater, whereby a large part of it was sloped toward the shore. He had bought the material for the superstructure as originally planned, and was obliged to cut it down in order to suit the arbitrary change. In consequence of the reduction in the measurement under the contract scale, he received a less sum than he would have received if no change had been made. In this he suffered an undoubted loss; but, as the change was accepted by him without objection, and without intimating that his material was purchased, and that he would suffer a loss by the change, the court must regard it as an exercise by the defendants of their reserved power, made with the assent of the claimant. This disposes of the seventh and sole remaining item in the demands under the first contract.

The changes which were made in the plans and specifications in the course of the execution of the second contract were also subject to the operation of another provision, which was peculiar to that contract:

“ And it is further expressly understood and agreed that no claim whatever shall at any time be made upon the United States by the party or parties of the second part for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or materials shall have been expressly required in Avriting by the party of the first part or his successor, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers.”

This alone is sufficient to preAent the claimant from recoAering any part of the first claim under the second contract. There was not a particle of evidence that the prices and quantities of such extra work Avere, agreed upon by the contracting parties, or that the same Avere approAmd by the Chief of Engineers. In the absence of a finding of such material facts, the court cannot set aside the salutary check of the contract upon the otherwise unbridled license of local agents. It was the claimant’s duty to see to it that the agent who ordered this change had authority from Washington to do so.

The claims-arising from the change in the bolts present a different question. They are not founded upon a difference in cost in the article furnished by the claimant, but upon defects in the construction of the work, which the claimant maintains were caused by the change, and which he says materially altered the risks which he took under the contract.

The breakwater constructed under the second contract is in 30 feet of water at the mean level of the lake. It is constructed of separate cribs, each 65 by 35 feet, and stands one foot above the surface of the lake, without superstructure. Bach crib was completed as a separate structure before being sunk in its place, and, when completed, was towed to its place and sunk by the contractor; then it was packed solidly with stone. Until this was done, the work was to be at the contractor’s risk. Two of those cribs, numbered 34 and 37 respectively, parted before they were filled, and it cost the contractor much labor and time and some material to put them in place again. This loss would have been thrown on the contractor had there been no change in the contract. The defendants’ agent,, however, under the power reserved in the contract, made an arbitrary and apparently fanciful change in the form of the iron bolts by which the courses of these cribs were fastened together, and this change is the cause of the claims 2,3, and 4, which are made under the second contract.

The contract called for square iron bolts, headed at the top to a square one-half inch greater than the side of the bolt; the top of the head was to be flat, and it was to be joined to the side of the bolt by a wedge-shaped connection, somewhat resembling the common screw-head, except that the curve was to be concave instead of convex. The bolts were to be 30 inches long. The sides were to be parallel until they reached the place where the pointing began. The pointing was to be pyramidal, and the holes prepared for the bolts were to be of an inch in diameter.

The bolt which the defendants’ agent substituted for these was round, one inch in diameter, the head button-shaped on the top with a straight shoulder projecting one-quarter of an inch from the bolt, the sides parallel until they reached the place where the pointing began, the pointing conical, and the holes prepared for them of an inch in diameter. About six-sevenths of these bolts were 34 inches long and the remainder 42 inches.

The change thus ordered and made was a novelty. Before that time cribs had generally been constructed with square bolts. Taking two bolts of equal length, one of which is round and the other of which is square, with a face equal to the diameter of the round bolt, the square bolt has the greater holding power and is less liable to break.

Respecting the immediate cause of the accident, the court in its findings says: “ Said cribs parted in consequence of the action of the sea, by which some of the retaining-bolts were drawn out and some were broken. Each crib separated at or near the line where the filling in the pockets ceased. . Had the interior pockets in said cribs been properly filled and packed with stone, neither crib would have parted.”

The claimant showed that, on his being informed of the proposed change, he expressed to the defendants’ agent, before work was done under the contract, the opinion that the 42-inch bolts would kink in driving and that the round bolts would not hold as firmly as the square bolts; but it did not appear that he protested against the change, or that, except as aforesaid, he said anything to induce the defendants’ agent to suppose that he regarded it as increasing his risk under the contract.

The claimant now contends that the damage to the cribs was the direct result of the change in the bolt, and maintains that the objection which he made to the change shifted the risk of separation during the process of filling.

The court has not found that the accident was the direct or e.Aen the consequential result of the substitution of round bolts for square bolts. The round bolts which were used were four inches longer than the square bolts which were discarded, and penetrated that much deeper into the lower timber. The result reached as to the comparative holding power of bolts of equal length is subject to modifications when applied to a comparison between bolts of different lengths. So, too, conclusions respecting the comparative power of resisting breakage do not apply to round bolts which did not break, but which drew out in the separation. The court did not feel itself justified in going further in the findings on this point than has been stated, and if it is essential to the claimant’s case that he should establish affirmatively that the injury would not have happened had the cribs been bolted with square bolts instead of round ones, he certainly has not shown it to the satisfaction of the court.

We think, however, that it would be unreasonable to require the claimant in all cases to prove this negative. The rules which we adopt for determining the respective rights and liabilities of the parties are these:

1. If the claimant regarded the proposed change as entailing upon him an increased risk which he was unwilling to assume, it was his duty to put the defendants upon their guard in this respect, so that they might have an opportunity to abandon the proposed change if they desired to do so.

2. Such notice being given, the risk, in the absence of neglect or fault on the part of the claimant, would be shifted to the defendants, and in such case it would not be necessary for the claimant to prove affirmatively that the accident was caused by the use of bolts of the new form.

3. But if the accident could have been avoided by the exercise of reasonable care and prudence on the claimant’s part in selecting the time for sinking the cribs and in stowing the deck-loads intended to keep them in position till the pockets should be filled, or if the claimant was wanting in diligence in filling the pockets, then it is incumbent on the claimant to prove affirmatively that the change in the form of the bolt was the cause of the accident and that it would not have happened had such change not been made.

Applying these rules, we are of opinion that in both eases the claimant did use language sufficient to put the defendants on their guard find to shift the risk. We also think that, in the sinking of crib No. 34, the claimant took proper precautions as to the choice of the day for sinking it and as to the stowing of the deck-loads, and that he exercised a reasonable diligence in filling the pockets. We therefore think that he is entitled to recover, for the work done and materials found in replacing this crib, the sum of $640.10. As to crib No. 37, we think that he did not exercise proper precaution in the choice of the day for sinking it nor in the stowing of the deck-loads. We therefore think that he is not entitled to recover for the work done in replacing it. It also follows that he is not entitled to the fourth item in his claims under the second contract, viz, to the expenses of his establishment while replacing crib 37.

To recapitulate, the claimant is entitled to recover—

On item No. 2 in the claim set up under the first contract for sinking bulkhead crib. $470 00

On item No. 6 set up under the same for loss of stone washed out by storms, 360-^ yards, at $6.90 . 2,374 83

On item No. 2 in the claim set up under the second contract for breaking of crib No. 34.. 640 10

Total. 3,484 93

And be is not entitled to recover any other or further claim set up by him as aforesaid.

Judgment will be accordingly entered in the claimant’s favor for $3,484.93

. Drake, Ch. J., was absent when this case was heard, and took no- part in the decision.  