
    RUDOLPH AXMAN v. THE UNITED STATES.
    [No. 28707.
    Decided February 12, 1912.]
    
      On the Proofs.
    
    The contract is for the removal of certain impediments to navigation in the harbor of San Francisco. It is in the usual form of such contracts, the contractor being subject to the direction of the engineer in charge. The conduct of the engineer is characterized by the court as an arbitrary and unreasonable exercise of his discretionary power: He refused payment of money due under the contract; he compelled the contractor to remove rock not required of him by the contract; he made a gross mistake in adopting a plane from which measurements were to be made; he used defective mechanism to ascertain the depth of excavation under water, compelling the contractor to excavate to a depth in excess of that prescribed by the contract, etc., etc.
    I. Where the circumstances of the ease and the situation of the parties characterize the rulings of an engineer in charge as an arbitrary and unreasonable exercise of his discretionary power, the damages thereby caused the contractor may be recovered.
    II. Where the contract provided a means of making a survey of the completed work, the contractor can not relieve himself from the obligation to furnish it by showing the approval of a different plan prepared by himself and assented to by the engineer in which no provision was made for a fixed point for survey. If the contractor did not pursue the method prescribed by the contract, he can not complain that by proceeding in a different manner he incurred additional expense.
    III. Where the engineer required the contractor to remove a rock which was a separate and distinct formation, SO feet distant from the rock which was the subject of the contract, and would not have made final payment until this extra rock had been removed, his ruling was arbitrary and the contractor may recover for the extra work.
    IV. Where it is incontrovertible that a mistake was made by the engineer in charge in adopting a plane from which measurements were to be made, thereby requiring an excavation in excess of that prescribed by the contract, the contractor may recover.
    
      V. A novel contrivance for making soundings used by tlie engineer instead of Ms pursuing the ordinary method, and his doing so not being satisfactorily explained, does not conclude the contractor and leaves to the court the determination of the question of reasonable fairness or unfairness.
    VI. A sequential average slightly below the requirements of the contract in the estimate of quantity by the engineer will be disregarded by the court; but a substantial and inexplicable deficiency totaling 8,012 cubic yards, removed from below a prescribed datum plane, indicates an egregious blunder in the engineer’s method of measurements.
    VII.Where rock was removed to the entire satisfaction of all the officers in immediate charge of the work, but the engineer in charge refused to make proper estimates and payments as required by the contract, unjustly, when he knew the result would be irreparable loss and perhaps financial ruin to the contractor, his conduct was reprehensible; and where there was no legal excuse for such action and it forced the contractor to borrow $65,000 and pay interest thereon in order that he might proceed with the work, it was an expense improperly thrown, upon the contractor for which he may recover.
    VIII.The provision in this class of contracts that where the contractor has delayed his work, and an extension of time has been allowed him, the increased cost of inspection must be borne by him, can not be enforced where the delay is chargeable to the defendants or caused by them; and if the facts show that the orders and prohibition of the engineer in charge prevented an orderly and systematic procedure on the part of the contractor, the defendants will be chargeable with the delay.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. Claimant is a citizen of the United States and the State of California.
    II. In an act of Congress approved March 3, 1899, making appropriations for the improvement of rivers and harbors (30 Stat. L., p. 1132), provision was made for the removal from San Francisco Harbor of three rocks, two known as Shag Rock No. 1, Shag Rock No. 2, and the other’ known as Arch Rock, all to a depth of 30 feet below mean low water, and the sum of $100,000 was appropriated to be expended on suck improvement, and contracts for the further expenditure of $500,000, as appropriations might be made, were authorized.
    On the 7th day of June, 1899, Col. W. H. Heuer, a district engineer of the United States Army stationed at San Francisco, by published advertisement invited proposals for the removal of said rocks in accordance with said statute. At the office of said Col. Heuer there were exhibited to prospective bidders on the work specifications of the same; also a map prepared from surveys made by Engineer officers of the Army, which showed the details of the excavation to be done. Claimant submitted to said Col. Heuer a bid in which he proposed to perform said work for the lump sum of $253,500. That, being the lowest bid received, was accepted by said Col. Heuer, and he and claimant signed a contract in accordance therewith, which contract was approved by the Chief of Engineers on the 29th day of September, 1899. Under requirements of said specifications and contract, claimant entered into a bond with sureties, payable to the United States, in the sum of $100,000, conditioned for his full and faithful' performance of the said undertaking, which bond said Col. Heuer approved. On October 4, 1899, claimant was notified by said Col. Heuer that the Chief of Engineers of the Army had approved said contract, and he began work on December 3,1899.
    III. The portions of such specifications which related to the manner and the time in which it should be performed, and the payments to be made thereon, are those set out in Paragraph III of the amended petition.
    By the terms of said invitation for proposals, said specifications and map were made a part of the contract.
    Said contract and specifications are annexed to and made a part of the amended petition..
    IY. In tlie performance of his contract claimant removed first Shag Rock No. 1, then Shag Rock No. 2, then Arch Rock, and, at about the time when he completed the work on Arch Rock, another rock, smaller and hitherto undiscovered, hereinafter described as Arch Rock No. 2. The sequence in which claimant desired to prosecute his work was first to blast Shag Rock No. 1, then to prepare the next for blasting while reducing the first to grade plane by dredging and supplemental surface blasting, and so on until the job was completed. Arch Rock, being much the largest rock, claimant’s purpose was to blast and remove it piecemeal. Said Col. Heuer, who had charge of the performance of the work, however, refused to permit the claimant to work in the order described, and construed paragraph 39 of the specifications to mean that claimant must complete the removal of the broken pieces of each of the rocks in the order named before doing any work whatever on the next rock. Claimant protested against this ruling and set up the contention hereinbefore stated, but to no avail. As to each of said rocks in its turn, before the work on it was commenced, claimant’s plan of doing the work was submitted to and was approved by said Col. Heuer.
    V. Claimant performed the work provided for in the contract, but, for the reason hereinafter stated, he was not able to complete it within the time indicated by the contráct, and said Col. Heuer, therefore, with the approval of the Chief of Engineers, extended the time until April 30,. 1903. By said latter day the work was completed and said Col. Heuer approved and accepted the work and paid claimant the remaining proportion of the compensation earned, $253,500, less the inspection charges hereinafter referred to for the time of the extension.
    VI. Claimant blasted Shag Rock No. 1 on April 30, 1900, and completed its entire reduction on August 1, 1900. He proposed to commence the work on Shag Rock No. 2 on May 6,1900, but was stopped by said Col. Heuer, because the area of Shag Rock No. 1 had not been completely reduced to grade, and was not permitted to proceed until August 13. On September 12, 1900, he commenced work on Arch Rock, but, because the area of Shag Rock No. 2 had not been completely reduced to grade plane, he was stopped by said Col. Heuer until September 28, when he was permitted to resume work on the condition that no blast would be fired until such reduction of Shag Rock No. 2 should be completed. The completion of the entire work was thus delayed three and one-half months. During said delays of the commencement of the work on Shag Rock No. 2 an average of seven men. employed by claimant to prepare the blasts, were idle about half the time and for the remainder of the time were doing the work of common laborers who received $2 per day, but claimant, nevertheless, under his contracts with them was compelled to pay, and did pay, them for their whole time. The average wages paid each of said men for said time were $3.50 per day. In the payments made to claimant by said Col. Heuer nothing was allowed for said extra expense, which amounted to the sum of $735.
    VII. On September 12, 1900, Col. Heuer wrote the claimant that it had been reported to him that he desired to commence work on Arch Rock before Shag Rock No. 2 was completely removed. In this letter Col. Heuer said that if the report was true he desired to forbid the same, resting his refusal so to do on specification No. 39, stating that while the appropriation was available for the removal of Arch Rock it was not his purpose to have it removed until Shag Rock No. 2 was completed. On September 28, 1900, Col. Heuer addressed another letter to the claimant in response to two communications from the claimant to him in which he approved the general plan of the claimant to remove Arch Rock by piecemeal and consented to the completing of a platform on the rock from which to drill blast holes, and the drilling of as many holes to such depth as the contractor might deem necessary, but insisting that the contractor fire no charges on said rock until Shag Rock No. 2 was completely removed. Contractor accepted the conditions imposed by Col. Heuer, and in a letter bearing date of September 27,1900, so stated. On November 24,1900, the contractor notified Col. Heuer by letter that he had removed about 2,500 yards of Shag Rock No. 2 and had at that time blasted and ready for removal 500 yards more and his dredge was at work removing the same. He further stated that his progress on Arch Rock had been more rapid than he expected ; that he had completed 11,000 feet of platform and completed a sufficient number of drill holes to break up 7,500 yards of rock; that a severe storm had weakened his platform, collapsed some of bis casings, and he feared another storm would wreck the entire structure, and notified the engineer officer that to guard against possible loss and financial waste he would fire the holes already drilled, stating at the same time that he would not remove any of the rock so blasted until Shag Eock No. 2 was completely removed. On November 26, 1900, Col. Heuer, in reply to above letter, protested against firing any holes on the Arch Eock before the complete removal of Shag Eock No. 2. On November 28, 1900, the claimant addressed another letter to Col. Heuer, in which he again explained that his position on Arch Eock was very precarious; that he could not hope to maintain his platform and tubes intact during the strong tides due about the 1st of December; that his work on Shag Eock No. 2 was almost completed, having removed at least two-thirds of same, and again respectfully requesting the colonel to withdraw his objections to his firing the holes already drilled on Arch Eock. On November 28, 1900, in replying to above letter, Col. Heuer again in a brief note refused permission to fire charges on Arch Eock. Subsequent to this last letter and prior to December 6, 1900, the exact date being unknown, Col. Heuer submitted to the claimant a written request to be executed by the claimant for permission to blast the holes drilled in Arch Eock, promising therein no dredging would be done until Shag Eock No. 2 had been completely removed and waiving payment for such work until Shag Eock No. 2 had been completely removed, supplementing such request by a separate approval of his bondsmen to the same.
    On December 6, 1900, claimant explained in detail to Col. Heuer his inability to comply with said written instrument submitted to him because he could not reach the proper officers of the surety company to make the changes in his bond, and for the further reason that his situation was so precarious that he would not have time to do so if he could. In his-letter he states that the winds and tides are destroying ‘his platforms and his casings and that he is now threatened with the loss of the entire structure and all the holes which he has drilled, and states the extent of the financial loss should the work be further retarded. He further states that he will refrain from firing any of the holes as long as it is possible for him to do so, rather than engage in a controversy with the engineers’ office; but if the situation becomes extreme and the danger imminent, he will give orders to explode the holes despite orders to the contrary; and in so ■doing he insists he will not be violating his contract. A short time thereafter the situation did become extreme, and the contractor gave orders and did explode some of the holes so drilled: The blast was a success and the rock so blasted afterwards satisfactorily removed. Col. Heuer complained to the War Department of this alleged disobedience and attempted to have the contract annulled, but the department overruled him.
    VIII. By the river and harbors act approved June 6, 1900 (31 Stat. L., 628), Congress appropriated $170,000 for the continuation of said improvement in San Francisco Bay. When petitioner was seeking permission to commence operations on Shag Bock No. 2 and before said appropriation of June, 1900, was made a large balance remained out of said original appropriation of $100,000 above the sums earned by the work already accomplished, and after said appropriation of June, 1900, there was at all times a balance available sufficient to pay for the work. In the end a total ■of only $53,757.68 was paid for the work done on the Shag Bocks.
    IX. At the commencement of the work claimant’s plan of ■operation on Shag Bock No. 1 was submitted to said Col. Heuer. Under said plan claimant was to use and did use a floating platform swinging from a mast but held at the proper place by anchors and moorings. No drilling was done on said rocks from scows or boats. Col. Heuer compelled claimant to erect, and he did erect and maintain on said work, as a fixed point from which said Col. Heuer and his assistants could make surveys, a spar 50 feet long with heavy weights and guys to hold it steady. The cost to claimant of erecting and maintaining said spar was $2,000. In the payments made to claimant he was not reimbursed any part of that expense.
    X. During the progress of the work on Arch Bock there was discovered about 80 feet therefrom in 27-J feet of water at low tide a small pinnacle of rock about 25 feet in length and from 2 to 5 feet in width. This rock was within the area, shown by a plat attached to the advertisement for proposals and to the contract, over which soundings had been made by the United States engineers previous to the advertisement, but it was not within the area covered by the contour lines and did not appear on any part of said plat; it had not been revealed by any of said soundings. A dispute arose between claimant and the engineer as to whether claimant was required by his contract to remove this newly discovered rock. Claimant contended that he had not figured on its removal in submitting his bid and that it was not within his contract. The engineer contended that claimant was bound to remove to the required grade plane everything within the area of the soundings, and he informed claimant that unless he did remove it he would not be paid the final installment in full. Claimant, still protesting, removed said rock. The removal of said rock was accomplished after much difficulty and two unsuccessful attempts. Being detached from the main rock, its removal was proportionately more expensive than the other work. Reasonable compensation for the removal of said rock is $650.
    XI. In testing the depth of the excavations accomplished by claimant said Col. Heuer caused to be used a float 24 feet long and 16 feet wide, consisting of a wooden box at each end with braces holding the two together. Secured to and extending across said float parallel with its bottom was an iron pipe 30 feet long so arranged that it could be carried at depths of 30 feet and mb re below the surface of the water. Said float was drawn many times across the area of each of said excavations, always carrying the assistant of said Col. Heuer and from two to six other men, by whom soundings were made at many points, whenever said iron touched rock; this was done by lowering a lead line 30 feet in length. When said areas were so swept said pipe was fixed at a depth of 30 feet below the mean level of the lower low tides of that time. The water in said bay was, as it always is with rare exceptions, rough; and notwithstanding said float was used at the most favorable times, the two sides of same could not ride even; and from that cause and from the necessary shifting of the position of the men so engaged on the float one end of the pipe, 7 feet beyond the side of the float, continually went more than 30 feet below said level; but wherever either end of the pipe thus encountered rock, at whatever depth, and the lead line had been lowered to ascertain and verify the depth of the obstruction from the plane of the catamaran said Col. Heuer compelled claimant, by additional blasting or by dredging, to remove the rock; and thus, over the entire areas, excavations were made to depths which, though the float were sharply upturned and the entire weight of the men were on the lower side, were beyond the reach of the lower end of said pipe.
    Said Col. Heuer also adopted, as the plane for which said measurements were made, 30 feet below mean lower low tide instead of below mean low tide. By said methods he compelled petitioner to remove, below the grade named in the contract, an aggregate, including the contents of said Arch Rock No. 2, of 8,012.18 cubic yards, for which the compensation due, at the price of $10.50 per cubic yard, was $84,127.89.
    Mean low water as determined by the Coast and Geodetic-Survey is 1.2 feet above the mean of the lower low tides at Fort Point, the nearest place where observations of the tides are made and recorded. Said point is only a few hundred feet from the place where this work was done.
    XII. The holes for the blasting on Arch Rock were rather vertical than horizontal, and a dispute arose between claimant and said Col. Heuer on the question whether said method' was a tunneling process, but Col. Heuer’s local assistant, in charge at the work, agreed that said process was, for said work, probably better than the tunneling process which Col. Heuer had said he had had in mind, and Col. Heuer consented to the use of said method. Claimant proposed to blast said rock piecemeal, but said Col. Heuer, on the ground that the dredging and leveling on Shag Rock 2 was not entirely completed, forbade and prevented that method. Claimant protested against said ruling, but he submitted to the same. After said remaining work on Shag Rock 2 was completed, Col. Heuer consented that the entire Arch Rock should be exploded when all the holes should be ready for firing at one time. Said blast was made on the 15th day of August, 1901. Thereupon claimant applied for and insisted upon payment of the amount due at the contract price for the removal of one-half of said rock, but said Col. Heuer denied the same on the ground that the method of the blasting was not a “ tunneling process.” Claimant was constantly engaged in dredging the area of said rock until in April, 1903, and until in May, 1901, he was still engaged in dredging and leveling parts of the area covered by the rock blasted from Shag Eock 2. The first progress payment during said period was made in December, 1901, the amount of the same being $21,547.40. During each month thereafter claimant received payment. By reason of the denial of payments, as provided in specification 45, which were due the claimant subsequent to August 15, 1901, the claimant was compelled to borrow $65,000 to meet the necessary expenses of the work and to pay interest thereon at the rate of 8 per cent per annum. Col. Heuer was acquainted with claimant’s financial condition and knew this to be a fact. The amounts borrowed and the interests paid thereon are set forth in the following table:
    Note No. Pate. Amount. Date paid. Time. Interest at 8 per cent.
    
      Months.
    
    3247 Aug. 30,1901 $6,000 Dec. 16,1901 34 $116.67
    3263 Sept. 10,1901 6,000 Feb. 12,1902 5 166.67
    3326 Oct. 11,1901 5,000 /_do. \Apr. 10,1902 14 26 100.51 49.24
    3417 Nov. 27,1901 5,000 _do. 4* 150.00
    4288 Jan. 35,000 May 11,1903 855.55
    4313 Jan. 30,1903 10,000 _do. 226.67
    65,000 1,665.31
    i 63,769.14. 2 $1,230.86.
    The sum of $1,665.31 interest paid is not allowed.
    XIII. Said Col. Heuer calculated that on the basis of 31,936 cubic yards of material claimant, at the average rate of 1,000 cubic yards of excavation per month after the first month, should complete the contract by August 4, 1902, and on claimant’s failure to complete it by that time deducted and withheld the sum of $2,133.33 from his compensation as the expense of superintendence and inspection from that date to April 30,1903, the time when the work was completed. Including the cubic yards of excess excavation claimant did excavate an average of over 1,000 cubic yards per month, at which rate the 31,931 cubic yards would have been excavated by June 4, 1902, notwithstanding the delay of 3 months and 10 days recited in Finding VI, or any other delays which he suffered.
    XIV. During the progress of the work the claimant was paid the following sums on the following dates: March, 1900, $249.80; August 1, 1900, $26,810.81; May 2, 1901, $21,261.13; December, 1901, $21,547.40; January, 1902, $210.54; February, 1902, $18,506.24; April, 1902, $22,181.80; May, 1902, $22,089.81; June, 1902, $16,756.09; August, 1902, $9,650.81; September, 1902, $14,017.23; November, 1902, $18,465.45; January, 1903, $8,284.45; May 9, 1903, final payment, $51,364.58.
    XV. Claimant constantly objected and protested against said rulings and requirements of said Col. Heuer in retarding his work, in requiring the erection of a fixed .point on Shag Rock No. 1, in requiring the removal of Arch Rock No. 2, in the measuring of the depth of the excavations, in withholding moneys due for work on Arch Rock No. 1, and in charging him with the expenses of inspection and superintendence, and when the final payment was made, he, at an interview with said Col. Heuer, protested that more was due him and said that he accepted the payment under and subject to that protest.
    XVI. Col. Heuer, the Engineer officer in charge of the work, manifested toward the claimant from its beginning to its close a feeling of intense dislike and prejudice, and at times treated him with extreme discourtesy and unreasonableness. He admitted disappointment in claimant securing the contract over a personal friend of his, and repeatedly and persistently claimed claimant’s inability to perform the work because of inexperience and inadequate compensation prior to his commencing work thereon. A short time subsequent to the execution and before any work had been commenced, he endeavored to have the contract annulled for failure to furnish the bond provided therein as promptly as he thought it should have been done, and he made a similar attempt subsequent to the explosion of Arch Bock by the claimant. His construction of the contract and specifications was uniformly technical in the extreme; he declined to grant reasonable and courteous interviews and dismissed polite appeals with harsh and profane language. His exactions under the contract and his rulings in respect thereto were so erroneous and unjust as to imply bad faith.
    
      Mr. darter Pope and Mr. Benjamin darter for the claimant. Mr. John B. Aitlcin was on the brief.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney General Thompson) for the defendants;
   Booth, J.,

delivered the opinion of the court:

Congress by an act approved March 3, 1889 (30 Stat. L., 1132), authorized the removal of certain impediments to navigation in San Francisco Harbor, Cal. On June 7, 1899, Col. W. H. Heuer, a district engineer of the United States Army, publicly elicited bids for the performance of the work, and in response thereto claimant submitted his proposal, which, being the lowest, was accepted. The written contract annexed to the petition and made a part thereof, was executed by the parties and duly approved as provided therein by the Chief of Engineers on September 29, 1899. On October 4, 1899, claimant was notified of the approval of the contract, and commenced work thereunder on December 3, 1899.

The contract and specifications constituted one instrument, and required the removal of three comparatively large rocks, almost totally submerged, known as Shag Bock No. 1, Shag-Bock No. 2, and Arch Bock. The manner of their removal was left to the discretion of the claimant, subject to the approval of the Engineer officer in charge, the claimant being expressly obligated to remove each of the rocks to a depth of 30 feet below mean low water. Very soon after the commencement of the work differences arose between Col. Heuer and the claimant, resulting finally in the commencement of this suit. The respective items of the claim can best be treated separately. They aggregate the total sum of $101,222.13, made up of separate and distinct complaints and necessarily segregated by counsel in their briefs and arguments.

Item 1: The claim arises under Finding YI. Specification 39 provided as follows: “ The smaller rocks (the Shag Rocks) will be removed first; work on Arch Rock need not be commenced until further appropriation shall be made.” The Engineer officer in construing this Specification construed it strictly, refusing the contractor permission to work conjointly on the two Shag Rocks, holding that all work, including dredging of material blasted, must be entirely completed on one before anything could be done upon the other. The language of the specification is clearly susceptible of two constructions, the one interposed by the engineer and the one contended for by the contractor. No specific direction as to Shag Rock No. 1 or Shag Rock No. 2 was given as to the order of their removal; the plural is used, “the smaller rocks.” The contractor elected to -commence work on No. 1, but by so doing it, can not be reasonably asserted he precluded himself from joint operations if the organization of his force and his interests, as well as the interests of the defendants, would be advanced thereby. His plans for the removal of both Shag Rocks had been submitted and approved by the engineer, and if the circumstances of the case and the situation of the parties at the time characterize the rulings of the engineer as an arbitrary and unreasonable exercise of his discretionary power under the contract the consequential loss is recoverable. (Collins and Farrel v. United States, 34 C. Cls., 294.) Taking specification 39 as a whole, and construing it in conjunction with the act of March 3, 1899, supra, it is clearly designed as precautionary rather than mandatory, its evident intent being to bring the contract within the terms of the enabling act, for the preliminary appropriation was not sufficient, to cover the entire undertaking, and the defendants were justly concerned in keeping the completed work within the limits of available funds to pay therefor. It is obvious that no particular order of removal of the rocks was indispensable; they were not contiguous; the language as to the removal of Arch Rock is clearly directory; the whole specification preceding, as it necessarily did, the execution of the contract, was intended to comply with the intent of the Congress as expressed in the act of March 3, 1889, wherein it provided for supplemental appropriations from time to time as the work progressed. If the appropriation was available work might have commenced on Arch Eock without violating the contract. The contractor’s worldng organization included the employment, of skilled workmen, experts in the handling of drilling machines, and the employment of high explosives; to be compelled to use these men at ordinary labor at advanced wages when they could have been profitably employed occasioned loss. It was impracticable to discharge them after each blast and thus disorganize a systematic working force. The Engineer officer in charge can find no safe refuge in making this ruling by ascribing'it to a belated performance of the work on the part of the contractor, and a conjectural increase in price and additional difficulties in performance if the contractor failed in his undertaking, for he was manifestly requiring extra work of the contractor in the matter of depth of excavation and had unjustly and arbitrarily prejudiced the contractor’s ability to do the work before he had even commenced operations. The United States was in no position to suffer, but on the contrary to benefit by a contrary ruling. Not one dollar had at this time been paid the contractor, and none was asked for. One thousand cubic yards of rock were required to be removed monthly; the engineer officer knew this, and instead of facilitating operations and enabling the contractor to execute the contract by having blasted material immediately available for removal he compelled him to confine operations to the single rock until every vestige had been removed. The contractor was limited as to time and was entitled to some consideration, especially when he had exhibited a degree of industry and faithfulness not always manifest in contracts of this character. The defendants were amply protected from any failure of performance by a surety bond equal in amount to the first appropriation under the act of Congress. The amount claimed for the delay preceding work on Arch Eock must be disallowed. The refusal of the Engineer officer having been ignored, the work proceeded and contractor suffered no loss thereby. Item 1 is allowed for $735.

Item 2: The claim under this item is found in Finding IX. Paragraph 44 of the specifications provided a means of making survey of the completed work upon which estimates were to be predicated. The claimant knew this was indispensable, and while the drilling was not done from scows or boats, he can not relieve himself from the obligation to furnish the same by the approval of a different plan prepared by himself and assented to by the engineer, in which no provision was made for a fixed point for surveys. The specification did not provide in detail as to manner and is clearly susceptible to the construction placed upon it by the engineer in charge. The specification was intended to provide for a fixed point for a survey of the work done at the expense of the contractor, and because' he did not elect to pursue the methods permitted by the specification, which he could have done, he can not now complain that in doing the work in a different manner he incurred additional expense. The item is disallowed.

Item 3: Finding X discloses the facts. This item will be allowed. It is inconceivable how it could be disallowed. The work required of the contractor was not included in the contract, specifications, or the contour lines of the blue prints. The existence of this rock, a separate and distinct formation, 80 feet distant from Arch Rock, was not known to any official or any other person concerned in the subject matter of the contract, and was never intended to be included in the contract price. The Engineer officer compelled its removal as a part of Arch Rock, and admits he would not have made final payment on Arch Rock until this extra rock had been removed by the contractor. The ruling was arbitrary. The evidence as to cost of removal varies in amount. The rock was not large nor the work on the contract unduly prolonged. A reasonable sum under all the circumstances is allowable, which we find to be $650.

Item 4: The claim under Finding XI involves two contentions, one of which is partly conceded by the defendants, and the other contested. Defendants admit, and it is incontrovertible, that a mistake was made by the Engineer officer in charge in adopting a plane from which measurements were to be made to ascertain the prescribed 30 feet below mean low water, thus requiring the contractor to excavate to a depth of 1.2 feet in excess of that prescribed by the contract. The method of ascertaining the depth of excavation by the use of an improvised mechanism termed a catamaran is seriously questioned. The construction of the catamaran and the method of using the same is set forth in detail in the findings, as well as the objections to its accuracy.

The contract is silent as to a method of survey and leaves the determination of the question to the court upon the evidence in the record as to its reasonable fairness or unfairness. A careful analysis of the testimony discloses that the chief complaint of the contractor in the use of the machine goes more to the extensions, i. e., the 7 feet protrusion of the submerged horizontal rod on each end over the width of the machine above water. In other words, it is contended that the submerged rod was 1G feet longer than the width of the floating portion of the machine, thereby giving an increased depth to the measurements when the floating portion of the machine assumed changing elevations caused by the wind, the tide, and the shifting of the men in operating the same. No mechanical or any other explanation is offered for this manifest difference in length between the submerged rod and the main body of the contrivance, and it is apparent to even the unskillful that it served to increase the depth of the excavation. It would in effect be similar to straight rockers to a chair. Protruding, as they do, some distance from the body of the chair, they necessarily would protrude into a yielding substance to a greater depth when the chair itself was moved forward and back. The novelty of the contrivance is conceded, and just why the ordinary method of making soundings was departed from is not satisfactorily explained. The testimony establishes beyond question that under the existing conditions in San Francisco Harbor, as to violence of wind and waves, it would bo impossible under most favorable conditions to maintain any just degree of equilibrium in the piloting of a float of the dimensions of this mechanism, and it appears by the completion maps, exhibiting the depth to which the contractor was compelled and did excavate, irrespective of the error of 1.2 feet in the establishment of a correct datum plane, that in every instance, taking into consideration several hundred points on the work, the contractor excavated to a depth varying from 31.6 to 37.5 feet, and in no single instance does a reading show a depth as small as 30 feet, and very few at 32. Some portion of this excavation might be accounted for by the admitted impossibility to obtain regular and certain surface below water where the rocks were disintegrated by the explosion of large charges of high explosives, a sequential average slightly below the requirements of the contract would be disallowed, but a substantial and inexplicable amount, totaling the sum of 8,012.18 cubic yards, moved by the contractor below the prescribed datum plane indicates an egregious blunder in the manner of measurements. The Coast and Geodetic Survey had ascertained and published the fact that mean low water was 1.2 feet above the mean of the lower low tides in San Francisco Harbor. This information was available and the proper depths easily ascertainable, but the engineer officer in charge compelled the contractor to excavate to a depth of 30 feet below mean lower low tide, adjusted the measuring devices of his catamaran accordingly, and made soundings from the catamaran which were necessarily erroneous because of the inability of the mechanism as a whole to produce accurate results. The claimant protested against the use of this device, but to no avail. The evidence as to its worth clearly preponderates in favor of the claimant and is not seriously contested. The item will be allowed for $84,127.89.

Item 5: The claim under item 5 is for interest paid by the contractor upon money borrowed to complete the work. The amount is not allowed under section 1091 of the Revised Statutes. A controversy similar to this was decided by this court in Myerle, exr., v. United States (31 C. Cls., 137) and also in McLaughlin & Co. v. United States (36 C. Cls., 186).

Item 6: Finding XIII. The contract, as usual, contained a provision for charging the costs of supervision and inspection against the contract price in the event of an extension of the contract. We need not cite authorities to sustain the proposition that where it appears that the delay is chargeable to the defendants, or caused by them, the charge can not be sustained. The findings show that the contractor was compelled to remove over 8,000 cubic yards of rock over the amount required by the contract. This is of itself sufficient to sustain the claim under this item. ■ Finding VI augments claimant’s contention to a material extent, disclosing an absolute prohibition against an orderly and systematic procedure toward celerity of performance. Finally the prevalence of storms and rough water, an ever-present preventive to speed in the performance of work of this character in San Francisco Harbor, and especially excepted in the contract, caused the delay in performance, which was obviously excusable, and additional time willingly granted. The actual sum of $2,133.83 was withheld when it should have been paid. The amount will be included in the judgment.

The last finding of the court is sufficiently explicit to speak for itself. We need not elaborate upon it further. The finding is the result of careful consideration of all the testimony in the récord, and, after careful deliberation, received the unanimous approval of the court.

Judgment is awarded the claimant in the sum of $81,646.22. It is so ordered.  