
    Alexander, Swift & Co. and The Niles Works v. The United States.
    
      On the Proofs.
    
    
      The only substantial difference between this case,.and, that of Swift & Co. (.ante, p. 208) ¡Sj that the contracts here do not contain a provision expressly mUhor-isiny the defendants to make alterations and additions to the plans and speei-fieations of the vessels.
    
    I. Thongli a contract reserved no right to the de.fondante to order alterations in and additions to the contract work, yet, if the claimants complied with the orders, made no objection to the delay incident to the changes, and accepted payment both for the contract and additional work, they cannot maintain an adieu for damages growing out of the delay caused by the defendants’ orders.
    II. A claim for damages caused by the rise - of prices during a period in which the defendants delayed the claimants in the prosecution of contract work by ordering alterations and additions should be asserted before the work is paid for. The claimants cannot accept payment in full and then recover damages for the delay.
    
      The Beporters’ statement of the ease:
    The history of-this case is substantially the same as that of the preceding (Swift & Co.’s). The contracts on which both were founded are almost identical in terms, the only material difference being that pointed out in the opinion of the Chief Justice, viz, that the contracts here reserved no right to the defendants to order alterations and additions.
    The following are the facts as found by the court:
    1. The contract annexed to the petition as Exhibit A was entered into between the claimants and the defendants as alleged in the petition, and the vessel therein contracted for was named Catawba.
    
    
      II. At the time that said contract was entered into, no plans or specifications of the vessel to be built were furnished or shown to the claimants by the defendants or any of their officers; nor did the claimants then know what character of vessel they were to construct, except as the same was described in said contract. Two days before said contract was actually signed, but when it was known that it was to be signed, namely, on the 13th of September, 1862, the officer of the United States charged with the duty of general inspector of twenty iron-clad vessels of the monitor class (including the Catawba), then in process of construction, or about to be constructed, at several different points in the United States, transmitted from New York to the claimants a schedule of the angle-iron framing for the Catawba; and on the 22d of that month a schedule of the plating required to be ordered from the rolling-mill for her; and on the 24th of that month a tracing of the boilers; and on the 25th of that month drawings of the smoke-pipe, turret-ring, turret lower beam and gun-slides, and turret upper beam, rafters, and diagonal braces; and on the 4th of October, 1862, drawings of the lower bearing of turret-shaft, lower diagonal braces, turret, and general plan of the vessel; and on the 7th of that month a model of her, with the frames and plates drawn upon it, in accordance with the schedule sent September 22; and on the 8th of that month the specifications of the vessel; and from this last-named date until near the close of the year 1864, plans, specifications, and drawings were, from time to time, as the work progressed, transmitted by said general inspector to the claimants. It does not appear that the progress of the work was impeded by delay on the part of the officers of the government in furnishing the claimants with plans, specifications, and working drawings; nor did the complainants at any time complain of any such delay; nor did they allege that the time taken by these officers in furnishing the same was unreasonable or injurious to them.
    III. On the 13th of October, 1862, the contract annexed to the petition as Exhibit B was- entered into between the claimants and the defendants, as alleged in the petition, and the vessel therein contracted for was named Oneota.
    
    IY. -The schedules, model, plans, specifications, and drawings for the Oatawba, which had been furnished to the claimants, as aforesaid, prior to the making of the last-named contract, were those by which, so far as they went, the Oneota was required to be built; and tbe plans, specifications, and drawings furnisbed to tbe claimants after tbe date of said last-named contract were those by wbicli each of those vessels was required to be built; and both of said vessels were built throughout upon and after tbe same plans, specifications, and drawings, as well in tbe contract work as in that which was extra to tbe contract.
    V. Tbe said vessels' were completed and delivered to and accepted by tbe defendants on the 10th of June, 1805.
    VI. Between the 22d of December, 1862, and tbe 19th of January, 1865, tbe defendants’ officer, under whose direction tbe claimants were required to construct and did construct tbe said vessels, made, from time to time, numerous alterations in tbe plans, specifications, and drawings aforesaid; tbe principal of which was ordered in writing on said 22d of December, and consisted, among other things, of a requirement upon tbe claimants to increase tbe depth of each of said vessels eighteen inches; in connection with which increase alterations of great importance and expensiveness were directed by said officer to be made, and were made by the claimants. The alterations so ordered and those subsequently ordered caused the largest part of the delay in the completion of said vessels beyond the time specified in said contracts for their respective completion, until the said 10th of June, 1865; and it does not appear that any iiart of said delay was attributable to any want of diligence or working capacity on the part of the claimants. What specific portion of said delay was caused by said alterations does not appear.
    VII. At no time between the dates of said contracts and that of the completion of said vessels did the claimants object to or complain of the said alterations made by said officer in the plans and specifications, or of the delay in the construction of said vessels caused by said alterations. But throughout that time they acquiesced in and acted upon the alterations; and the stipulations in the contracts as to the time for the completion of the vessels were, throughout that time, tacitly disregarded and laid aside by both parties.
    VIII. In the said written order of December 22,1862, at the close of the instructions to the claimants in regard thereto, were the following words: “You will understand, of course, that the government will pay you all expenses incurred on account of these changes, in addition to the price agreed npon in the contract, and to allow you the extra time required on account of them to complete the vessel.” Such words do not appear in any subsequent letter from the officer to the claimants directing other alterations.
    IX. After the expiration of the time specified in said contracts for the completion of said vessels, the prices of the labor and materials necessary to be used in their construction rose in the markets of the country in consequence of the intestine war then flagrant and of the condition of the currency, and this rise in prices greatly increased the cost and expense to the claimants of constructing said vessels over what it would have been if the vessels had been finished within the time specified in the contracts. What the amount of such increased cost and expense was does not appear, nor does it appear what proportion thereof was connected with those parts of the vessels which were constructed according to the specifications of October 9, 1802, nor how much thereof was in connection with those parts which were alterations of and additions to those specifications. Whatever of such increased cost and expense accrued on account of those alterations and additions was included in the amounts paid the claimants, as hereinafter stated, for that part of the work; but it does not appear that any such allowance was made by the government to the claimants in connection with the work done in conformity with the specifications of October 9, 1862.
    X. The government paid the claimant the full contract price for the Catawba, in the following payments, made on approved bills, each made out'and approved as a “payment due under their contract dated September 15,1862, for an iron-clad shot-proof vessel, the Catawba,” and each receipted in full by the claimants, the date set opposite each sum being that of the approval of the bill:
    1863.
    Feb. 10. First payment.= . $42,187 50 >
    April 10. Second payment. 43,125
    Mar 16 '
    Third payment.1. 43,125 00
    Deficiency on first payment
    July 18. Fourth payment. 43,125 00
    Aug. 12. Fifth payment.
    Sept. 28. Sixth payment. 43,125 00
    Oct. 26. Seventh payment. 43,125
    1864.
    
      1863.
    June 11. Three-fourtbs of eighth payment. $32,343 75
    Oct. 4. On account 25 ];>er cent, reservation.... 38,333 33
    1865.
    June 17. One-fourth of eighth payment. 10, 781 25
    “ “ On account 25 per cent, reservation. 50,000 00
    July 17. Balance of reservation (alter deducting patent fee). 24,899 52
    SI. For extra work done by the claimants on the Catawba, resulting from the alterations of and additions to the specifications of October 9, 1862, made as aforesaid, the claimants were paid by the government the following sums, on approved bills, each receipted in full by them, the date set opposite each sum being that of the approval of the bill:
    1864.
    March 22. $54,000 00
    Aug. 18... 46,000 00
    I860.
    Jan. 9..'.. 35,000 00
    July 19.:. 26,424 54
    161,424 54
    Each of the bills for the first three of those payments was made out as “on account of work done to the harbor and river monitor Catawba which is extra to' the contract dated September 15, 3862”; and the bill for the last of said payments was in the words and figures following:
    “CATAWBA. — PAYMENT ON ACCOUNT OP EXTRAS.’
    “New York, July 19, 1865.
    
      UU.S. Wa/vy Department to Alex. Swift & Go. and Wiles Worlcs, Dr.
    
    Appropriation: ‘ Construction and Bepair.’
    On account of work done to the harbor and river monitor Catawba which is extra to the contract dated September 15, 1862, being the full and final payment on all extras, and in full for all claims and demands for that work upon the Catawba.... . $26,424 54
    “I certify that the materials and labor which are extra to the contract dated September 15,1862, put upon the vessel Catawba, built by Alex. Swift & Co. and Niles Works, amount in value to $161,424.54 (certificates having been previously given for $135,000^%-), and that they are according to directions which have been given'them from time to time.
    «WM. W. W. WOOD,
    . General Inspector of Steam-Machinery for the Navy.
    
    “ Approved.
    
      “F. H. GEEGOEY,
    “ Near-Admiral, Superintending.”
    
    XII. The government paid the claimants the contract price for the Oneota, in the following payments, made on approved bills, each made out and apprpved as a “payment due under their contract dated October 13,1862, for an iron-clad shot-proof vessel, the Oneota,” and each receipted in full by the claimants, the date set opposite each sum being that of the approval of the bill:
    1863.
    March 11. First payment.$43,125 00
    June 12. Second payment. 43, .125 00
    Sept. 21. Third payment. 43,125 00
    Oct. 21. Fourth payment. 53,125 00
    Dec. 5. Fifth payment. 43,125 00
    1864.
    Jan. 11. Sixth payment. 43,125 00
    March 10. Seventh payment. 43,125 00
    July 11. Three-fourths of eighth payment. 32,343 75
    Oct. 4. On account of 25 per cent, reservation. 38,333 33£
    1865.
    June 17. One-fourth of eighth payment. 10, 781 25
    June 17. On account of 25 per cent, reservation. 50,000 00
    July 17. Balance of reservation (patent fee deducted) .. 24,899 51§
    VIII. For extra wort done by the claimants on the Oneota, resulting frotn the alterations of and additions to the specifications of October 9, 1862, made as aforesaid, the claimants were paid by the government the following sums on approved bills, each receipted in full by them, the date set opposite each sum being that of the approval of the bill:
    1864.
    March 22 $54,000 00
    Aug. 18
    1865.
    Jan. 9
    July 22
    161, 424 54
    
      Eacb of tbe bills for the first three of those payments was made ont as “ on account of work done to the harbor and river monitor Oneota which is extra to the contract dated October 13, 1802”; and the bill for the last of said payments was in the words and figures following:
    “ ONEOTA. — PAYMENT ON ACOOUNT OP EXTRAS.
    “New York, July 19,1865.
    
      “ U. S.Navy Department to Alex. Swift & Go. and Niles Works, Dr.
    
    Appropriation: Construction and Repair.’
    On account of work done to the harbor and river monitor Oneota which is extra to the contract dated October 13, 1862, being the full and final payment on all extras and in full for all claims and demands for that work upon the Oneota ... $26,424 54
    “I certify that the materials and labor which are extra to the contract dated October 13, 1862, put upon the vessel Oneota, built by Alex. Swift & Oo. and Niles Works, amount in value to $161,424(certificates having been previously given for $135,000j^V), and that they are according to directions which have been given them from time to time.
    “WM: W. W. WOOD,
    “ General Inspector of Steam-Machinery for the Navy.
    
    “Approved.
    “F. H. GREGORY, Rear-Admiral, Superintending.”
    
    The following additional findings were allowed on request of the claimants or in lieu of additional findings requested by them:
    XIV. By the specifications of the Catawba, furnished to the claimants on the 8th of October, 1862, as stated in Finding II of the court, it was provided that the deck-plating should be composed of two thicknesses of iron] of fully one inch each, next to' the wooden deck. On the 11th of April, 1863, the general inspector ordered that the deck-plating of the Catawba and Oneota should be composed of two plates, the upper one inch and the under three-quarters of an inch in thickness, instead of two one-inch plates. On the 20th of June, 1863, the said general inspector ordered that the total thickness of the deck-plating should be made one and a half inches, instead of one inch and three-quarters, as ordered on the said 11th of April.
    16 c c
    
      XY. The changes ordered to bo made in the construction of the said batteries by the letter of December 22, 1862, were ordered by the general inspector on behalf of the United States, because it had become apparent to the officers having charge of the construction of the said vessels for the United States that, if constructed upon the plans and specifications previously prepared and furnished to the claimants, they would not float; and the originator of the system, Capt. John Ericsson, at that time gave notice to the United States that he would no longer be responsible for the flotative power of the said batteries; and the calculations and computations which became necessary by reason of the discovery of that fact were not completed until the 21st day of April, 1863.
    XYI. The several plans and specifications which the defendants were to furnish to the claimants, as their instruction to the claimants in the construction of the said batteries, were furnished at the times stated in the following tables, viz :
    CATAWBA AND ONEOTA.
    
      Date of contract: Catawba, September 15, 1862; Oneota, October 13, 1862.
    
      
    
    
      CATAWBA. AND ONEOTA — Continued.
    
      Date of contract — Continued.
    
      
    
    
      CATAWBA AND ONBOTA — Continued.
    
      Date of contract — Continued.
    
      
    
    XVII. Tlie claimants, Alexander Swift & Co., owned extensive rolling-mills, and had large and sufficient facilities for the manufacture of the various and different kinds of iron required in the construction of the said batteries; and the claimants, the Niles Works, were manufacturers of engines and machinery, such as were required in the construction of the said batteries j but neither of the said claimants had, at the time i/he said contracts were made, such ship-yard and other facilities as were required to commence the construction of the said battery.
    XVIII. The work required of the claimants under the said contracts, and the work done and materials furnished by them in addition to and in alteration of the said contracts, was done tinder the immediate charge and superintendence of an inspector appointed by the United States, and the said work tvhick was required by the said contracts and that which was in addition thereto and in alteration thereof, as tvell as the plans and specifications and the detail working-drawings relating to each, have been so far and so completely intermingled and mixed together that they are impossible of separation each from the other.
    
      XIX. The actual cost to the claimants of constructing these iron-clad batteries, over and beyond what they have received from the United States under the contracts or for work and materials which were extra to the contract, is the sum of $228,019.80.
    XX. The several bills for extra labor and materials furnished by the claimants and used in the construction of the said batteries, as stated in the eleventh and thirteenth.findings, were not in fact the bills for such labor and materials furnished by the claimants to the Navy Department, but the said bills, and each of them, were bills made up and certified by the several officers by whom they purport to have been signed from claims for extra labor and materials previously submitted to the said officers by the claimants; and the price of labor and materials, and the amount stated as allowed in the said bills and each of them, were fixed and determined after consultation with the claimants, in some cases with their consent, in some cases without their assent, at the same such bills were made up and allowed.
    XXI. The alterations in the plans, specifications, and drawings by which the claimants contracted to construct the said iron-clad batteries which were from time to time ordered and directed by the defendants were ordered and directed in order to make the said iron-clad batteries more useful and effective for that public service for which they were designed, such changes and alterations being required as defects were developed from time to time, showing weakness and inefficiency in actual service, at sea and in battle, in iron-clad vessels built upon the same system as those contracted for with the claimants; and specifications and drawings were from time to time furnished by the defendants to cover and provide for the necessary changes to remedy such defects.
    
      Mr. Samuel Shellabarger and Mr. John J. Weed for the claimants.
    
      Mr. John S. Blair (with whom was the Assistant'Attorney-General) for the defendants.
   DkAKE, Oh. J.,

delivered the opinion of the court:

The only substantial difference between this case and that of Alexander Swift & Oo., just decided, is that the contracts involved in this case do not contain a provision expressly author-iziug tbe defendants to make alterations and additions to the plans and specifications of the vessels, as the contract in that case did. In our view of the law, though this is a substantial, it is not a material difference.

The claimants agreed to construct for the defendants two iron-clad batteries, each to be finished within six months-after the date of the contract for its construction. Neither was completed until long after the expiration of the contract time. The court finds that the largest part of the delay was caused by the alterations made from time to time in the plans, specifications, and drawings for the vessels by the defendants’ officers; but it is also found that the claimants never objected to, nor complained of, the delay so caused, but that the stipulations of the contracts as to the time of completion were by both parties tacitly disregarded and laid aside.

As the work progressed on the vessels the claimants received the payments stipulated for in the contracts, and receipted therefor in full; and when the vessels were completed, they received and receipted in full for the final contract payment, without protest or objection.

Thereafter they instituted this suit to recover damages claimed to have been sustained by them through the delays caused by the defendants’ alterations in the plans, specifications, and drawings of the vessels; which damages they allege resulted from a great rise in the prices of materials and labor during the period of the delay, largely increasing the cost to them of constructing the vessels.

In passing upon this claim, we need not discuss the point whether increased cost resulting from rise in prices would be á legal grouud for the recovery of damages under the circumstances of this case, for the claimants have by their own acts barred their right to recover on that ground. Whatever claim of that kind they had was a part of their whole claim on account of the contract work, and should have been asserted before they received and finally receipted hi full for the whole contract price, without a word of demand for more on the score of the rise in prices. They could not settle and receive the contract price and then set up a separate claim for damages. This point was, as we conceive, settled, in effect, by the Supreme Court of the United States in Baird v. United States (96 U. S., 430), where it was held that a recovery of judgment in this court for a part of what was due uuder a contract at the time the suit was brought in which the judgment was recovered, was a bar to a subsequent suit for the residue. The principle there laid down is equally applicable to this case, where the claimants, at the time when their whole claim was due, received the stipulated payments, and receipted therefor in full, without even a hint that they considered themselves justly entitled to more. Such acts clearly prove an accord and satisfaction. (Francis v. United Stated, 96 U. S., 354.)

If the claimants cannot recover on account of the contract work on the vessels, much less can they recover on account of the extra work resulting from alterations; for they were paid for that the prices they consented to after the work was done, and receipted therefor in full; and it is expressly found that the increased expense of that work growing out of the rise in prices was included in the prices they so consented to and received without demur.

The judgment of the court is that the report of the commissioners be not confirmed; that the findings of facts now filed stand in lieu of such report; and that the claimant’s petition. be dismissed.  