
    SEYMOUR P. THOMAS, TRUSTEE IN BANKRUPTCY OF THE SCOFIELD CO. v. THE UNITED STATES.
    [No. 32548.
    Decided April 29, 1918.]
    
      On the Proofs.
    
    
      Contracts; proofs, burden of. — Where the United States charges against certain retained percentages due the contractor a number of items of expense alleged to have occurred in the completion of the work, they must assume the burden of furnishing such proof as will justify the conclusion that the charges made were proper charges.
    
      Retained percentages, proper charges against. — Where certain engines to be furnished under contract do not comply with the specifications and the Government contracts with other parties to remedy the defects, such extra cost is a proper charge against the original contractor.
    
      The Reporter's statement of the case:
    
      Messers. George A. King and Russell H. Robbins for the plaintiff. King <& King were on the briefs.
    
      Mr. Philip G. Walher, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
    The following are the facts of the case as found by the court:
    I. Pursuant to authority, the Secretary of the Navy, through the Chief of the Bureau of Yards and Docks, on November 29,1899, entered into a contract with the Atlantic, Gulf & Pacific Co. for the construction of a dry dock at the United States Navy Yard at Philadelphia for the sum of $782,600,-which, by supplemental contract of April 6, 1901, was so modified as to provide for the construction of a concrete and stone dock at the modified contract price of $1,133,397.77. A second supplemental agreement, dated June 30, 1902, with reference to the price for gravel obtained beyond the limits of the yard, was also entered into.
    November 29, 1902, because of the alleged failure of the contracting company to properly proceed with the work, the Secretary of the Navy forfeited its contract, took possession of the dock, materials, and machinery on hand and after due advertisement and bids, the Chief of the Bureau of Yards and Docks, by authority of the Secretary of the Navy, on March 9, 1903, entered into a contract with The G. M. Sco-field Co. for the completion of the dock, in accordance with the contracts of the Atlantic, Gulf & Pacific Co., for $1,148,500.
    The contract of said Scofield Co. was modified by four supplemental contracts whereby the contract price was increased $221,253.12. All of said contracts and supplemental contracts are attached to the petition herein and are made a part hereof by reference.
    The corporate name of The G. M. Scofield Co. was thereafter changed to The Scofield Co. It was adjudged bankrupt in December, 1907, trustees were appointed, and at the time of the commencement of this action Seymour P. Thomas was, and now is, the successor of said trustees.
    At the time the Scofield Co. went into bankruptcy, as aforesaid, the main body of the dock had been completed and machinery installed to such an extent that a number of ships had been docked therein; but portions of the work yet remained to be done.
    II. On January 6, 1908, subsequent to the insolvency of the Scofield Co. and because of their failure to make satisfactory progress in the completion of the dock, the Secretary of the Navy declared its contract forfeited and on the following day, pursuant to instructions, the Chief of the Bureau of Yards and Docks took possession of the dock and of all the materials and machinery of the Scofield Co. and proceeded with the completion of .the dock at the expense of said company.
    On final statement, subsequently made, in March, 1911, 29 items of expenses, said to have been incurred by the United States in the completion of the dock, were charged against the retained percentages due the contracting company, the contested items of which are referred to in the findings following.
    
      III. A contemplated sea wall was necessary to retain a portion of the filling required by the contract to be placed around the dry dock. The Bureau of Yards and Docks declined to comply with a recommendation of a naval board that provision be made by supplemental contract for the construction of the sea wall by the Scofield Company and entered into a contract with another contractor, who failed to construct the sea wall within the prescribed time and who delayed its completion for approximately a year and a half. In order to put in as much of the required filling as possible the Sco-field Company constructed a temporary dike inside the line of the proposed sea wall, to retain the fill, at a cost to it of $250. Subsequent to the completion of the sea wall, which was subsequent to the canceling of the Scofield Company’s contract, the defendants’ representatives completed the fill and charged the Scofield Company on account thereof $1,577.58. This sum was $837.20 in excess of the amount it would have cost the Scofield Company to complete the fill had the sea wall been in place.
    IY. The Scofield Company contracted with the Great Lakes Engineering Works, subject to the approval of the Bureau of Yards and Docks, for the two 700-horsepower vertical cross-compound condensing engines required by the specifications and notified the bureau thereof. These engines were intended for the sole purpose of pumping the dock. Thereafter extensive changes in the dry dock and its accessories were contemplated and a naval board was appointed to consider and make recommendations with reference thereto and instructed, with reference to the power plant, to make recommendation as to the enlarging of the plant so as to cover the needs of the bureau not only for dock pumping but for lighting, heating, and power, and to create a centralized plant for all such purposes. This board recommended the addition of “ one Great Lakes Engineering Works vertical cross-compound condensing 700 i. h. p. engine to comply with the original specifications ” and “ similar to the two engines to be furnished under the present contract,” the plans and specifications for which the board reported that it had examined and was “ satisfied that these engines promised to comply fully with the original specifications so far as can be judged in advance of actual efficiency test.” Said report was approved and a supplemental contract entered into for the furnishing of an additional Great Lakes engine.
    The three engines were inspected by representatives of the Bureau of Yards and Docks at the factory of the Great Lakes Engineering Works and were erected at the yard under the supervision of representatives of the bureau. When tested they were found and reported to be unsatisfactory in that they did not properly regulate, and upon subsequent test by another board it was concluded that the steam consumption was excessive. Representatives of the Great Lakes Engineering Works endeavored to remedy the defects in the engines, and after the contract with the Sco-field Company was canceled representatives of the engine builders were permitted to continue efforts to correct the defects complained of, as they were obligated to do under their contract with the Scofield Company. Thereafter the Bureau of Yards and Docks concluded to undertake for itself the correction of the defects in the engines and to that end corresponded with experts in that line of work, and finally entered into a contract with the Providence Engineering Works whereby that company contracted to furnish the necessary services and materials for the installation of new governors or for modifying the existing governors and for changing valves and valve mechanisms and for making such other alterations to these engines as might be necessary to secure results stipulated in said contract for the sum of $8,400. Changes were to be made first upon one engine, after which, if that was found to comply with the contract requirements, the others were to be likewise changed, otherwise the first engine was to be restored to its original condition, and no payment was to be made by the bureau, except at its own option, until performance of the contract and acceptance of the engines.
    One of the engines was modified by the Providence Engineering Works under this contract, but upon test by a naval board was found by it to be unsatisfactory. Objection was still made on account of the variation in speed of the engine on change of load and on account of alleged excessive steam consumption. It does not appear that the test for steam consumption was accurately made under proper conditions, and the specifications as to variation under change of load were improperly interpreted. The Providence Engineering Works represented that such defects as remained in the engines could be corrected by the insertion of an additional check valve, which it proposed to do. The Bureau of Yards and Docks declined to allow the Providence Engineering Works to proceed further in its efforts to perfect the operation of the engine, stopped further work under the contract, and paid that company $3,611.94 for the work done. In the meantime a number of vessels of the United States had been docked in this dock, and these engines had been successfuly used in the pumping of the dock. The engines in question were then rejected over the plaintiff’s protest, and a contract entered into with McIntosh, Seymour & Company in September, 1909, for the installation of three engines at a contract price of $40,815.90. These engines were of a different type, were larger and more powerful, were furnished under somewhat different specifications, and were better adapted for generating heat, light, and power. It was required that the substitution should be one at a time, so that Great Lakes engines might be available for pumping the dock until the others, or at least one of them, were available for that purpose. In its final accounting to the Scofield Company there was charged against the retained percentage due that company the sum of $3,611.94 paid to the Providence Engineering Works, the sum of $40,815.90 paid to McIntosh, Seymour & Company for the three engines furnished by them, and $14,347.58 for alleged miscellaneous items of expense incurred as the result of the rejection of the Great Lakes engines and the substitution of the Mclntosh-Seymour engines. Of the last sum, $1,649.48 was charged for removing, storing, and caring for the rejected engines, $4,364.98 for changing the foundations, $2,827.06 for installing oil, drip, and water piping, $5,146.43 for installing exhaust piping and making electrical connections, and $359.63 for shields, etc., and oil.
    
      Subsequent to the last test of these engines by a naval board a competent engineer, representing the plaintiff herein, made a test of these engines and reported the steam consumption of the engine which had been overhauled by the Providence Engineering Works as 15.14, being 0.36 less than the specification requirement. *
    In conducting the tests to which these engines were subjected by the various representatives of the Bureau of Yards and Docks and the naval boards the apparent purpose was to determine their suitability for use as a centralized power plant and not for dock purposes alone. One of the engines modified by the Providence Engineering Works complied approximately at least with the specifications, was suitable and efficient for the purpose originally intended, and to the extent that there remained any failure to comply fully with the specifications, it does not in any way appear that the Providence Engineering Works, if permitted to proceed as proposed by it, might not have removed any remaining defect, as it asserted it could.
    The plaintiff declined to receive the rejected engines, they were dismantled and sold by the Bureau of Yards and Docks at public auction for $3,100, which included also the caisson engine hereinafter referred to, and the account of the company credited with that amount. The Scofield Company had paid the Great Lakes Engineering Works 90 per cent of the contract price for the engines.
    V. The Scofield Company, under its contract, furnished stokers which were used in firing the boilers used in connection with the dry-dock power plant. They were operated by employees of the Scofield Company who were competent and experienced men in that line of work, until that work was taken over by the Bureau of Yards and Docks, after which they were operated by its employees. The stokers were thereafter found to be damaged and were repaired at an expense to the United States Government of $215.28. It is not satisfactorily shown whether they were damaged while being operated by the employees of the Scofield Company or by the employees of the Bureau of Yards and Docks, and if they were damaged by reason of the negligence of either of said employees, it is not satisfactorily shown whose negligence it was.
    YI. Under the supplemental contract with the Scofield Company in connection with the changes in the power plant, said company was required to furnish a foundation for a fourth engine. In installing this foundation it left pockets in the masonary for the anchor bolts but did not put them in place. It was impracticable to place the anchor bolts until the dimension of the engine to be installed on said' foundation and the proper position of the anchor bolts were •known. The anchor bolts charged against the retained percentages due the contractor in the sum of $96.16, were made in one of the departments of the yard, but have not been installed, nor has the fourth engine been installed on said foundation. The cost of said bolts is not shown except by said charge.
    VII. Certain glass fittings for gauges called for by the contract with the Scofield Company were not furnished by said company and, thereafter, defendants’ officers procured and installed the same at the reasonable cost of $162.80, which amount was charged to the account of said Scofield Company and deducted from retained percentages.
    VIII. The caisson engine was built and installed by the Scofield Company in strict accordance with plans and specifications which, as required by the contract, were approved by the Chief of the Bureau of Yards and Docks. The engine operated satisfactorily on a number of occasions and operated capstan and pump at the same time. Upon one occasion, during an official test by defendants’ officers, the engine stalled when an attempt was made to operate the capstan and pump simultaneously. The engine thereupon was rejected on the ground that it was “ too light.” Defendants’ officers procured and installed a more powerful and more expensive engine at an expense of $2,182.50 and charged said sum against said retained percentages. The rejected engine was sold by defendants’ officers and the amount received therefor was credited to the Scofield Company in the credit of $3,100 referred to in Finding IV. The rejection of the caisson engine and the substitution of another at the expense of the contractor was not justified.
    
      IX. In the final statement of the defendants’ charges against the retained percentages due the Scofield Company was the sum of $4,917.95 for “ maintaining dry dock and appurtenances.” For all the time subsequent to the withdrawal of the employees of the Scofield Company the dock had been in the possession and under the control of defendants’ representatives, and it, together with the power plant and other appurtenances, had been used constantly for the purpose for which it was intended. The record does not show the items going to make up this charge and it does not satisfactorily appear that it was an expense properly chargeable against the contractor.
    X. The contract with the Scofield Company required that that company should take from the yard such gravel as might be available in stated quantities, and for such gravel as was necessary to procure otherwise it should be paid a stated price. There was but a small quantity of gravel available in the yard and this was used by the Scofield Company. Subsequently to the execution of its contract the Scofield Company contracted with others for the furnishing of such other gravel as might be necessary, and thereafter the defendants’ officers paid the Scofield Company for gravel so obtained by it beyond the limits of the yard $2,851.20. Long after the date of the Scofield Company’s contract considerable quantities of materials, gravel included, were pumped into the yard in connection with the dredging of the Delaware Eiver, and defendants’ officers, contending that the Scofield Company should have used this pumped-in gravel instead of the gravel procured as aforesaid from outside the yard, charged said sum of $2,851.20 against the retained percentages due said company.
    XI. During the performance of its contract the Scofield Company dredged the channel from the entrance to the dock and thereafter the engineer officer in charge informed said company that said channel had filled up and that it had so filled as the result of the carelessness of the subcontractor who was delivering sand and gravel to said company and demanded that said channel be redredged. The Scofield Company insisted that the filling of the channel was due to other causes for which it was not responsible, but it consented to and did redredge the channel upon the assurance of the Chief of' the Bureau of Yards and Docks that when the cause of the filling of the channel was determined, from the character of the materials removed, the question of compensation or otherwise would be determined also, and in connection with this redredging additional dredging; beyond the limits of the specifications was done at the request of the Government authorities. The redredging showed that the filling of the channel was due to the deposit of silt from the Delaware River. The dredging was satisfactorily done by the Scofield Company and was reasonably worth $6,134.43. It was paid $3,506.12 thereof for the portion of the redredging done beyond the limits of the specifications. The portion of re-dredging done in the dock entrance proper was reasonably worth $2,628.31, for which said company has not been paid.
    XII. Of the amount shown upon statement of final account to be due the Scofield Company $75,000 was paid, leaving unpaid $11,365.43, which yet remains unpaid and is due said company.
   DowNey, Judge,

delivered the opinion of the court:

After the cancellation of the contract and supplemental contracts which had been entered into between the United States and the Atlantic, Gulf and Pacific Company for the construction of a dry dock at the Philadelphia Navy Yard a contract was made with The G. M. Scofield Company for the completion of the dock in accordance with the contracts of the Atlantic, Gulf and Pacific Company, and certain supplemental contracts with said Scofield Company were also entered into.

The Scofield Company performed the major part of its contracts by the completion of the dock proper and the installation of most of the machinery, but before it had finally completed its work it became embarrassed financially, went into bankruptcy, and soon thereafter, when satisfactory progress was not being made in the completion of the dock and its appurtenances, its contract was canceled, and the dock, together with all the materials, supplies, and machinery on hand, was taken over by the United States, and through- the Bureau of Yards and Docks they proceeded with the completion of the dock at the expense of the contractor.

There were retained percentages in a considerable amount due the contracting company, and when the work had been finally completed by the United States it rendered a statement in which it charged against the retained percentages quite a number of items of expense alleged to have been incurred in the completion of the work. With reference to many of these charges the plaintiff makes no question. As to seven items plaintiff contends that the charges were improperly made and seeks recovery. Those seven items are as follows:

2. Placing the filling required by contract_$1, 577. 58
U; Three main engines_ 58,775.42
13. Repairing stokers_ 215.28
14. Providing anchor bolts for foundation of engine_ 96.16
15. Providing and installing gauges, etc_ 162. 80
19. Substituting larger and approved engine in caisson_ 2,182. 50
27. Maintaining dry dock and appurtenances_ 4, 917. 95

In addition to these the plaintiff seeks recovery also for the charge made against it of $2,851.20 on account of gravel theretofore paid for, $2,628.31 on account of redredging not paid for, and the balance of $11,365.43 shown by the final accounting to be due and unpaid.

The findings as to some of these items so speak for themselves that but little, if any, discussion is necessary.

With reference to the deduction of $1,577.58 as to alleged cost of completing the fill which the contractors were obligated to make, it clearly appears that this fill was not made because of the failure of the United States through its separate contractor to complete the sea wall which was to retain a part of the fill and without which the fill could not be completed. The contractors, in order that they might perform their contract in this respect as fully as might be, constructed at an expense of $250 a temporary dike inside of the line of the proposed sea wall to hold the fill, and when they had filled to- the required height against that dike it is plainly apparent that they had done all which, under the circumstances, they could do. The contractor for the construction of the sea wall so delayed his work that it was not completed until approximately a year and a half after the expiration of the contract period, and not until after the Scofield Company had become involved financially, had gone into bankruptcy, and their contract had been canceled. It is found, by deduction, that it would have cost that company $740.38 to complete the fill had the sea wall been in place. A statement of the facts seems to be all that is necessary to justify the conclusion that there should be a recovery of the excess charge of $837.20 and also of the $250 expended in the construction of the dike erected to facilitate the progress of the work and made necessary by the absence of the sea wall.

The next item is much the largest of all the contested items and gives room for more of controversy. The record is replete with correspondence, expressions of opinion, reports of tests and various matters of that sort from which we have drawn conclusions, but which we have not found it necessary to incorporate in detail in the findings.

It appears to our entire satisfaction that when the contract was made for this dry dock, which carried with it detailed specifications and among them the'specifications for two engines by which the dock was to be operated, it was then intended that these engines should perform solely the work necessary in connection with the operation of the dock; that is, so far as they were concerned, its pumping. The record bears evidence of some uncertainty in the minds of those in authority as to exactly what was desired to be accomplished at the Philadelphia Navy Yard. When the contractor first informed the Chief of the Bureau of Yards and Docks of the awarding of the contract to the Great Lakes Engineering Works for the two engines required they were informed that changes in the power plant were under consideration. They were afterwards notified that it had been determined not to make changes but to abide by the provisions of the original contract. Again, later on, the matter of the changes presented itself. A board was appointed to investigate and recommend, and changes were determined, upon. The change, so far as engines are concerned, excepting some matters of minor detail, consisted in the addition to the power plant of one more engine, specifically of Great Lakes Engineering Works’ manufacture, and of the type called for by the original contract, and already under contract as between the Scofield Company and the Great Lakes Engineering Works.

It is quite apparent that this change in power plant was for the purpose of accomplishing something more than that for which it had been originally designed and intended; that is, the installation of a centralized power plant which, in addition to the pumping of the dock, should perform the added functions of furnishing heat, light, and power for the whole yard; and, in this connection, we are also impressed with the idea that when these engines were being subjected to official tests there was always present in the minds of those making these tests the idea, not simply that they were engines to be used for the purpose for which originally intended, but that they were to constitute a power plant for other and different purposes. To the nonexpert it also appears entirely possible that an official test might demonstrate satisfactory efficiency in an engine designed to pump a dock and not demonstrate the same degree of satisfactory efficiency in three engines necessary to be used in parallel and for entirely different purposes. But if it be possible that any of the difficulties encountered in connection with the satisfactory operation of these engines was due to the fact that they were not of a suitable type for the performance of a service other than that for which they were originally intended, it would seem that, so far as the type of engine is concerned, the defendant had foreclosed itself when it specifically, by supplemental contract, provided for the addition of a Great Lakes engine of the same type as those already under contract.

While we must credit those in charge of this matter on behalf of the United States with entire good faith in their procedure we are not required to overlook or to eliminate from consideration in reaching a conclusion some of the peculiarities attending their procedure.

When the contract with the Scofield Company was canceled the engines were then placed; they had been used repeatedly in connection with the docking of vessels and had satisfactorily performed the service required of them. It is to he conceded, however, that in some respects they did not at this time comply with the specifications. The principal fault found with them up to this time was the fact that they did not regulate properly; that is, they showed more variation in speed upon change of load than the specifications permitted. We are of the opinion that the test to which the engines were subjected in this respect involved a misconstruction. of the specifications and required more than should have been required. This idea is sustained to some extent by the fact that there was a change in the supplemental contract with reference to permissible variations, but conceding that the engines at the time in question did not comply with the specifications the procedure thereafter is for consideration.

Undoubtedly, at this time, the engines might have been rejected. They were not. But after the work was taken over by the United States and the Scofield Company prohibited from any further operations in connection therewith the obligation of the Great Lakes Engineering Works, under its contract with the Scofield Company to furnish engines which would comply with the specifications, seems to have' been recognized, and for a time the representatives of the engine builders were permitted to proceed with their work, designed to correct the defects in the engines. However, before they had accomplished the purpose or indicated their inability so to do, the Bureau of Yards and Docks concluded to. take upon itself the burden of making these engines satisfactory. After correspondence with several concerns expert in that line of work the bureau entered into a contract with the Providence Engineering Works, under which that company obligated itself to make these engines comply with the specifications stated therein, evidently satisfactory to the bureau, and under which contract they were not entitled to receive any compensation except at the option of the United States until they had fully performed the contract. They made certain changes in one of the engines, their work being limited to one engine at a time so that the others might still be available for pumping the dock, and it was subjected to test. The naval board found an excessive steam consumption. A competent engineer representing the plaintiff herein made a test thereafter in connection with wbicli he determined that the steam consumption was well within the specifications. In the face of conflicting testimony upon this question it is for the court to determine the fact, and the record, taken as a whole, with respect to the conditions under which the various tests were made, seems to us to justify the conclusion that there is at least a failure to satisfy that the tests of the naval board for steam consumption were made under such conditions as to demonstrate accurate results. It may not be improper to observe in this connection that there is much of technical matter in the record with reference to these various tests which furnishes to the nonexpert but little basis for a satisfactory conclusion and which it is entirely possible is of little practical value to the expert.

Aside from the question of steam consumption the naval authorities concluded that there was yet some unsatisfactory operation in this remodeled engine and the Providence Engineering Works represented that the remaining defect could be cured by the use of an additional check valve, which it proposed to install. Peculiarly, and in the face of this suggestion by that company and in spite of the terms of the contract with that company, under which they were obligated to produce the desired results or receive no compensation, the authorities terminated the contract with the Providence Engineering Works, paid that company a considerable sum for the work it had already done, and rejected the engines over the protest of the plaintiff herein.

It would seem that little more, if anything, need be said on this question. Having undertaken to correct the faults in these engines at the expense of the Scofield Company, and having manifested sufficient faith in the ability of the Providence Engineering Works to justify a contract with that company such as was made, we are unable to comprehend the basis upon which those in charge for the United States were justified in discrediting the ability of that company by slight further modifications to perform its contract and in terminating that contract under such conditions as imply a right to charge the expense incurred to the Scofield Company without the possible accomplishment of results to their benefit, and in then rejecting the engines. It plainly appears that the Providence Engineering Works had accomplished a large part of the work which it had contracted to accomplish, and no satisfactory reason ap pears in the record to justify an assumption, in the face of their own declaration on the subject, that they could not remedy the remaining defects. Since the United States had elected to take this course in the matter it would seem that a rejection was not justified until the Providence Engineering Works had failed to accomplish the desired purpose or there was some reasonable basis for the conclusion that it could not do so. We have found that it does not appear that the engineering works, if permitted to proceed as proposed by it, might not have removed any remaining defect in the engines as it asserted that it could.

After the rejection of these engines the defendant contracted with another concern for other engines which were of a different type and as to which there were material variations in the specifications from those provided in the original contract, and the cost of these engines in the final statement submitted has been charged against the retained percentages due the Scofield Company. We can not in this connection but observe in the record the fact that in connection with the completion of this dock at the expense of the contractor those in charge were warned by superior authority that in order to charge the Scofield Company with the expense incurred the work must be done substantially as called for by the contract of that company.

As bearing on the general question of the efficiency of these engines, even in the condition they were in before being remodeled by the Providence Engineering Works, although strictly not up to specifications, it is noticeable that in connection with the contract for the installation of the substituted engines it was required that the rejected engines should be taken down and new ones substituted one at a time, to the end that during the progress of the work of substitution and until new engines were ready to assume the burden the rejected engines might still be available for the purpose for which they were originally intended.

We have concluded that the charge against the retained percentages due the Scofield Company of the cost of the substituted engines was unjustified, but upon the theory that they did not as originally furnished comply with the specifications, and that the United States was justified in incurring and charging against the Scofield Company the necessary expense of making them so comply, which it undertook to do, and that had the Providence Engineering Works been permitted to complete its work under its contract to remedy the defects in the engines the amount then payable to said engineering works under its contract would have been a proper charge against the Scofield Company, the charge of the cost of the new engines should be offset to the extent of $8,400 contracted to be paid the Providence Engineering Works.

Charging to the contractor the item of $8,400, it is apparent that the item of $3,611.94, paid to the Providence Engineering Works for work included in the contract price of $8,400, should not be charged. If, as we conclude, the engines were improperly rejected, the items of $1,649.48 for removing and storing, and the item of $4,364.98 for-modifying foundations, were improperly charged. The items of $2,827.06 for oil, drip, and water piping, and $5,146.43 for exhaust piping and electrical connections are practically without explanation, except such as appears in the statement of the items. The defendant has not shown us the basis of and the justification for the charges. So far as we can gather any light from the record it tends to the conclusion that these items, except as to electrical connections, may have been for work the contractors for the substituted engines should have done under their contract. If they were for work done in connection with the installation of the rejected engines the fact shoud have been shown. There is no showing separately as to any expense for electrical connections properly chargeable to the Scofield Company. We are unable to find in the record any facts supporting the charge of the remaining items amounting to $359.63. As to such charges against the contractor, under the circumstances, the burden is on the defendant. This disposition of the charge on account of the substituted engines requires the elimination, or the setting off, of the credit given in the sum of $3,100 for the proceeds of the sale of the rejected engines included in which is also the proceeds of the sale of the caisson engine hereinafter referred to.

The Scofield Company, under its contract, furnished certain stokers which were used in firing the boilers. Some time after the employees of the Scofield Company had been withdrawn and the employees of the United States had been operating the power plant, it was discovered that the stokers were considerably damaged. They were repaired at the expense of $215.28, which was charged to the retained percentages due the contractor. It does not satisfactorily appear that the Scofield Company or its employees were responsible for the damage. It may as well be concluded, in the light of all the circumstances, that they were damaged when being operated by employees of the United States. Under such circumstances, there is no justification shown for the charge as made.

Under the supplemental contract the Scofield Company was required to furnish a fourth engine foundation. This it did; and, in constructing it, the company left pockets therein for the insertion afterward of the anchor bolts. No anchor bolts were furnished it by anyone for insertion in the foundation, and anchor bolts could not properly be set into the foundation until the type of engine, its dimensions, etc., which was to be placed on the foundation, were known. It does not appear that there has ever been any engine .placed upon this foundation, nor that there have ever been any anchor bolts set. The anchor bolts charged against the contractor’s retained percentages, at $96.16, were made in the yard. Why they were made at a time when it could not be definitely known what their proper size should be and when they could not be properly set in the foundation is problematic, unless it was for the purpose of assisting in mar-shalling the charges which it was thought proper to make against the contractor. Objection is made that there is no showing in the record, aside from the charge itself, as to the cost of these anchor bolts, and the objection is not without force, since the burden in this respect would seem to be on the defendant; but, aside from that, we think we are justified in applying such common knowledge as may be available on the question, and in suggesting that where foundations for engines are being installed by one contractor and the engines furnished by another contractor, it is the usual practice for the foundation builder, following a plan furnished by the engine builder, to set the anchor bolts, which are also to be furnished by the engine contractor. This view of the usual rule is strengthened by the fact that the contract of McIntosh, Seymour & Company, for the new engines, requires them to furnish the anchor bolts, and nothing appears in the Scofield Company’s contract to the contrary. We conclude that the charge is not justified.

It is found that certain glass fittings for gauges which were required by the contract to be furnished by the Scofield Company were not so furnished and it follows that the charge therefor of $162.80 was a proper charge.

With reference to the caisson engine there is much of detail in the record which is not recited in the findings but which is the basis of the conclusion stated therein. We have found that the rejection of the caisson engine furnished by the Scofield Company and the charging against the retained percentages due that company of the cost of the new engine substituted therefor was not justified. As against this charge, however, there should be offset the proceeds of the sale of the rejected engine which was credited to the Scofield Company, but that amount is included in the $3,100 item heretofore considered and does not separately appear.

There was a charge made against the retained percentages of $4,917.95 which is indicated in the statement as for “ maintaining dry dock and appurtenances.” This was subsequent to the time that the United States cancelled the contract with the Scofield Company and took charge of the dry dock, and during the time when it was being used almost constantly by the United States for the docking of ships. We are not furnished with any evidence as to the details of this charge, but the basis upon which it is made as against the Scofield Company is assumed, we take it, to be that the Scofield Company was liable for any expense incurred by the United States in caring for and operating the dock until its final acceptance. Even if this theory were correct, we think it incumbent upon the defendant to present such evidence as would justify the conclusion that the charges made were proper charges. It has not done so, and, on all the facts found, we conclude that the charge is improperly made.

The contract with the Scofield Company contemplated that wherever gravel in given quantities could be found within a given part of the yard it should be used by the contractor. There was also an agreement as to the price to be paid the contractor for such gravel as it was necessary to procure elsewhere. After the execution of the contract and about the time the Scofield Company was beginning its work it was plainly apparent that there was but a small amount of gravel available in the yard, and a contract was made by said company for the furnishing of the necessary gravel from outside sources. Thereafter there was paid to the Scofield Company $2,851.20 for gravel furnished from, without the yard. Some time after the execution of its contract and after it- had contracted for the furnishing of gravel from outside sources there was a .considerable quantity of materials, gravel included, pumped into the yard in connection with dredging operations being carried on in the Delaware River. The charge made against the contractor in' the sum stated above was upon the theory that it was obligated, under its contract, to have used out of the yard the amount of gravel represented thereby. Such question as there may be in the matter, if any, would seem to be disposed of by the fact that this gravel was.not available in the yard at the time this contract was entered into by the Scofield Company, nor could that company anticipate that supplies of gravel would later be available by reason of dredging operations or that it was required to use any other gravel than that available at the time the contract was entered into. Procedure would seem to indicate that this was the view of the matter first taken by the representatives of the United States since the charge is a charging back of a payment theretofore made for outside gravel, and that the idea that the dredged gravel was within the contemplation of the contract was an afterthought.

The claim for redredging the dock entrance in the sum of $2,628.31 quite clearly speaks for itself under the facts found. The only point in controversy with reference to it seems to have been whether the redredging was necessary by reason of the carelessness of those for whose acts the Scofield Company was responsible. The materials dredged indicate quite clearly that the filling which necessitated redredging was by reason of the natural action of the river in washing silt into the channel, and the Scofield Company was plainly not responsible therefor.

The final item of $11,365.43 is an unpaid balance of retained percentages conceded to be due.

Upon the whole case we conclude that the plaintiff is entitled to recover the sum of $72,619.45, under Findings III, IY, V, VI, VIII, IX, X, XI, and XII, and judgment is awarded accordingly.

Hat, Judge; BaRney, Judge; Booth, Judge; and Campbell, GMef Justice, concur.  