
    THE ATLANTIC DREDGING COMPANY v. THE UNITED STATES.
    [No. 14680.
    Decided May 14, 1900.]
    
      On the Proofs.
    
    The claimant contracts to dredge four excavations in the Lubec Narrows, for which he is to receive different prices. The contract represents that “the material in the shoals consists chiefly of sandy mud and a little gravel." The shoals difEer materially from “sandy mud and a little gravel," and it is worth much more to excavate them than the contract price. On the trial the claimant offers in evidence the record of an action in a circuit court of the United States in which the defendants were plaintiffs and the claimant defendant. The defendants object for the reason that the record has not been pleaded. The claimant replies that it is not matter in chief, but comes in by way of replication.
    I. Where the specifications in a contract represent that “the material composing the shoals between D and JS consists chiefly of sandy mud and a little gravel" it is a warranty as to the character of the material. Though the claimant may have made an examination . of the character of the tides and to some extent of the material, it does not waive the warranty.
    
      II.A contractor lias the right to rely on a warranty in the contract although out of abundant caution he makes an examination in order not to be subjected to possible litigation.
    III. Warranty will not extend to defects plain and obvious to the contracting party, but where the material offered no opportunity for the contractor to protect himself by observation the warranty will become operative.
    IV. Where the defendants were plaintiffs and the claimant defendant in an action in another court, and the same issues were decided, the defendants are estopped.
    V.When estoppel is a matter of record embodying the result of judicial proceedings, courts, on grounds of public policy, enforce the legal effects of the verdict.
    VI.Where a jury renders a verdict in favor of a defendant under the direction of the court and judgment is thereupon rendered for the defendant, it is an estoppel.
    VII.The Government will be estopped like an ordinary party where it sues in a circuit court on an alleged breach of contract and the verdict is for the defendant.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 23d of September, 1879, a contract in writing was duly entered into between the United States, acting through Lieutenant-Colonel Thom, U. S. A., of the one part, and the Atlantic Dredging Company, of New York, of the other part, as alleged in the petition and referred to as “A. D. Co. Exhibit, No. 1.” The contract relates to dredging “for the improvement of the channel in Lubec Narrows,” in the State of Maine, consisting of four distinct places.
    II. In pursuance of such contract the claimant commenced dredging October 8, 1879, near the lower end of points designated in the agreement as D-E, at a place to which it had been directed by the engineer in charge of the work, and continued there until October 22, when, by permission of said engineer, it removed its plant to “ C;” and after having completed the dredging there, removed again to “ B,” at which place the strength of the tide was such as to break the dredge’s mooring chains; whereupon, further operations were suspended for the winter.
    The dredging plant with which the claimant commenced was commensurate with the requirements of the work.
    
      III. The dredging, as above, upon D-E was done at four different points along a line of 400 feet, and within 500 feet of the southern end of the shoal, where, subsequently — i. e., in March, 1880 — borings were made on the part of the United States, numbered consecutively from north to south, “13,” “28,” “14,” “29.” At the three last points this dredging was to the depth of 12 feet below mean low water, but at the first merely beyond 8 feet. In all of these the material found at the bottom was clay.
    IY. Some time before October 22, 1879, and while the dredging upon D-E was going on, the claimant communicated to the engineer in charge the fact that clay had been found to be a considerable part of the material there; but upon a suggestion by the latter that the amount of such clay would, upon the whole, be unimportant, it proceeded with the work; subsequently, however, on becoming satisfied that clay was an important element throughout the shoal, it made repeated protests to the engineer, and at last declined to go farther.
    In the course of such dredging large quantities of stiff, sticky clay, of the character known as tenacious or hard, were found to underlie the mud and gravel upon D-E. The said shoals did not consist chiefly of sandy múd and a little gravel.
    After the discovery of the character of the material, the engineer in charge, on behalf of the United States, and the claimant, attempted to make a new agreement based on the character of the material to be dredged, but such negotiations failed, and thereupon the claimant on the 24th of February, 1880, abandoned the further prosecution of the same.
    The material composing the shoal from D to E was materially different from sandy mud and a little gravel, and because of such difference was worth in some places twice as much to excavate and at other places 50 per cent more. Eighty-three thousand five hundred cubic yards of the shoals were afterwards let at 50 cents and 38,557 at 37 cents per yard. There was left due and unpaid by the defendants the sum of $423.35 as the retained percentage on the work at point C.
    The profit which the claimant would have made on the contract if the material had been of the kind and character described in tbe contract oyer and above tbe cost of tbe work would have been $5,610.
    VI. In answer to tbe proposal heretofore stated tbe claimants made tbe following bid:
    “PROPOSAL POR DREDGING, LUBEC, MAINE.
    “BrooklyN, N. Y., Sept. 16th, 1879.
    
    “To Maj. Gen’l Geo. Thom, IT. S. A.,
    “ Portland, Me.
    
    “Sir: In accordance with your advertisement of Sept. 8, 1879, inviting proposals for dredging in Lubec Channel, Maine, and subject to all tbe conditions and requirements thereof, and of your specifications, dated Sept. 8th, 1879, copies of both of which are hereto attached, and, so far as they relate to this proposal, are made a part of it, we (or) I propose to do the dredging for the following prices pr. cubic yard, viz:
    “At point marked A on map, seventy-five (75) cents per cubic yard.
    “At point marked B on map, two (2.00) dollars.
    “At point marked C on map, two (2.00) dollars.
    “All of above measured in situ.
    “At point marked D to the point marked E, on map, the sum of twenty-three (23) cts. per cubic yard, measured in the scows.
    “We (or) I make this proposal with a full knowledge of the kind, quantity, and quality of the articles required, and, if it is accepted, will, after receiving written notice of such acceptance, enter into contract within the time designated in the advertisement, with good and sufficient sureties for the faithful performance thereof.
    “Atlantic Dredging Co.,
    “By It. G. Packard, President.”
    VII. Before making said bid the claimant, by one of its agents, visited Lubec Channel for the purpose of ascertaining the character of the currents and making an examination of the work at points embraced in the agreement. In the course of such visit the agent made an examination along the line of shoals between D and E with a bar of iron, using it over both ends of the boat. In making the examination the iron rod was at some of the points driven down by being struck with a mallet. In the examination the iron bar pierced the material of the shoals at some places hard and at others easy.
    
      YIII. Tbe United States as plaintiffs commenced and prosecuted a suit against the claimant in the United States circuit court for the eastern district of New York, of which proceedings the following is a record:
    “United States Circuit Court, eastern district of New York.
    “The UNited States
    
      v.
    
    “The Atlantic DeedgiNG CompaNY.
    “The plaintiff herein, bjr Asa W. Tenney, United States district attorney in and for said district, complains of the defendant on information and belief, and show and allege:
    “I. That at the times hereinafter mentioned the defendant, The Atlantic Dredging Company, was and is a domestic corporation organized in pursuance to'the laws of the State of New York.
    “ II. That on or about the 24th day of September, 1879, the defendant signed, sealed, and delivered a certain contract between them and the plaintiffs, a copy of which contract is hereto annexed and marked 6 A,’ and forms part of this complaint.
    “III. That the plaintiffs have.duly performed all the conditions of said contract on their part.
    “IV. That the defendants entered upon the performance of the work under said contract.
    “ V. That said defendants have failed to perform said contract in the following respect — that is to say:
    “ First. Said defendants, The Atlantic Dredging Company, failed and neglected to perform said contract as therein provided, and in said bond referred to, on or before the 31st day of December, 1880.
    ‘ ‘ Second. Said defendant, The Atlantic Dredging Company, failed and neglected to perform said contract as therein provided, in not dredging 10,000 cubic yards, more or less, at the bar at the head of Lubec Narrows (marked ‘A’ on office map) and 125,000 cubic yards, more or less, of dredging at the several shoals being between the points marked £D’ and CE’ on the said office map.
    “VI. That by reason of the premises the plaintiffs duly caused the said work to be completed according to the terms of said contract which the defendants neglected to perform, and have sustained damages in the amount of twenty-nine thousand six hundred and seventy-seven 70/100 dollars by reason of the defendants failing to perform their said contract.
    “Wherefore plaintiffs demand judgment against the defendant for the sum of twenty-nine thousand six hundred and seventy-seven 70/100 dollars with interest from the 9th day of March, 1880.
    “Asa W. TentNey,
    “ United States Attorney, Plaintiff's Attorney.
    
    “United States Circuit Court, eastern district of New York.
    “The ÜNited States of America 1
    
      against >•
    “The AtlaNtic Dredging Company. ]
    “To A. W. Tenney, Esq.,
    “ United States District Attorney, Plaintiff's Attorney.
    
    “Dear Sir: Please take notice that upon the summons and complaint in this action, and upon the proceedings herein, the undersigned will move this court, at a term thereof to be held, at the U. S. court building, corner of Clinton and Montague streets, in the city of Brooklyn, on Saturday, the 19th day of January, 1884, at ten o’clock in the forenoon, or as soon thereafter as counsel can be heard, for an order requiring- the plaintiff, or its attorney herein, to serve upon the defendant’s attorney a bill of particulars of the plaintiff’s alleged claim or demand set forth in the said complaint herein, and for which this action is brought.
    “Brooklyn, January 10th, 1884.
    “Yours, &c.,
    A. W. PARKER,
    
      “Defendant's Attorney."
    
    “United States Circuit Court, eastern district of New York.
    “The United States
    
      v.
    
    “The Atlantic Dredging Company and others.
    “January 19, 1884.
    “ On reading and filing notice of motion for a bill of particulars in this case, and on hearing counsel for the respective parties, it is ordered that the complainants in this case furnish to the defendants, within ten days from service of this order, a bill of particulars of the claim in this action.
    “Chas. L. Benedict.”
    
      “United States Circuit Court, eastern district, New York.
    “The United States
    
      agst.
    
    ‘The Atlantic Deedging Company.
    “The United States: 1
    
      v. V
    ‘The Atlantic Dredging Co. and Ors. )
    “Sir: please take notice that the following constitute the items of plaintiff’s claim herein, damages for breach of contract in neglecting and refusing to cany out and perform the contract between the plaintiffs and defendant, by reason whereof the plaintiffs caused to be performed by Moore & Wright, under contract dated on or about 2 Sept., 1880, the following'work, contracted for by the defendant:
    1st. For 12,388 cubic yards of dredging at Shoal A, at 25 cents per yard, being the difference between the contract price and the price paid by the plaintiffs. §3,097.00
    2nd. For 83,500 cubic yards of dredging on Shoals D and E, at 27 cents per yard, being the difference between the contract price and the price paid by the plaintiffs. 22,545.00
    3rd. For 38,557J cubic yards of dredging on Shoals D and E, at 14 cents per yard, being the difference-between the contract price and the price paid by the plaintiffs. 5,398.05
    31,040. 05
    Less amount retained on the two payments made to the defendants. §423. 35
    Less amount of dredging at Shoal B, 939 cubic yards, at §1.00 per cubic yard...' 939. 00 - 1, 362.35
    29,677. 70
    “Yours, &c., A. W. Tenney,
    “ IT. S. Atty.
    
    “To A. W. PARKER, Esq.,
    
      “Defts: Atty”
    
    “United States-Circuit Court, eastern district of New York.
    “The United States
    
      v.
    
    “The Atlantic Dredging Company.
    “The defendant herein answers the complaint of the plaintiffs as follows:
    “I. It admits that it was and is a corporation organized in pursuance of the laws of the State of New York.
    
      “II. It admits that on or about the 2-+th of September, 1879, it signed, sealed, and delivered a certain contract between 'it and the plaintiffs, but it denies that a copy of said contract is annexed to the complaint and marked ‘A,’ for it avers that a certain map was referred to in said contract and in the specifications attached to said contract, and formed part of said contract, and without the same the copy attached to the complaint is not complete.
    “III. It denies that the plaintiffs have duly performed all the conditions of said contract on their part.
    “IV. It admits that it entered upon the performance of the work under said contract.
    “V. It denies that it has' failed to perform said contract in any particular.
    “ YI. It denies that the plaintiff duly caused the said work to be completed according to the terms of said contract, or that the defendants have neglected to perform said contract, or that the plaintiffs have sustained damages in the sum of $29,677.70, or any other sum, by reason of any failure of the defendants to perform their said contract.
    “ VII. And for a further and separate defense the defendant alleges that it entered into said contract on the faith of certain representations made by the plaintiffs and their agents and officers in reference to the character of the work to be done under said contract, which representations the defendant and its officers and agents believed to be true and correct and relied upon in making said contract.
    “That the representations which were contained in the map or drawings referred to in said contract and in the specifications which were attached to the defendant’s proposals for said contract and to said contract, and which formed part of the same, and which specifications were furnished by the plaintiffs to the defendants for the purpose and intent that they should be so relied on, were not correct or true in that the said map or drawings contained what was described as a ‘table of borings,’ which purported to state that borings had been made in different parts of said shoals shown on said map to certain depths therein stated, and that the result of such borings showed that the character of the material to be dredged was as was stated in such table of borings, whereas in fact no borings whatever had been made and the character of the material to be dredged was not truly or accurately stated in such table of borings, but said material was of a different character and very much more difficult to be dredged.
    “And that the representations above mentioned were not correct and true in that the specifications averred that very accurate survej^s had been made in reference to the dredging to be done under said contract, and that the amount of dredging required was estimated from the results of very accurate surveys made in October and November, 1878, whereas what surveys had been made were very inaccurate; and in that they averred that the shoal between the point marked ‘ D ’ and the point marked ‘ E ’ on the said map consisted s chiefly of sand, mud, and a little gravel,’ whereas in fact the said shoal consisted in large part neither of sand, nor of mud, nor of gravel, but of a tenacious clay, which it was very much more difficult and expensive to dredge. And the defendant avers that the statements in relation to the making of such borings, and in relation to the character of said material, and in relation to the accuracy of such surveys were each of them material to the making of said contract, and without a reliance upon them the defendants would not have entered into said contract.
    “That when the defendant learned'of the falsity of such representations it offered to perform all the rest of the work if relieved from work upon said shoal between D and E; and also offered to do the whole work upon such terms as might be fair, just, and equitable; and that, although plaintiff did offer defendant an increased price for said shoal between D and E, it did not offer an equitable or just price for the increased labor and expense, and thereupon defendant withdrew from said contract and such work, as it lawfully might do.
    “That the said plaintiffs have never invited proposals for the same work for which the defendant had contracted, but issued new and different proposals and had different work done from that for which it had invited the defendant to propose for, and which the defendant had proposed for and contracted to perform.
    ‘ ‘ That by reason of such misrepresentations of the plaintiff and its agents and servants it made breach of the said contract, to the loss and damage of the defendant $7,848 and over.
    “Wherefore this defendant prays that the complaint of the plaintiff be dismissed.
    “A. W. Parker,
    ^ Tí n •f-nno rJ /-//vi-fi ‘Defendamos Attorney.
    
    “United States Circuit Court, eastern district of New York.
    “The plaintiffs, for a reply to the alleged counterclaim of the defendants, deny each and every allegation thereof.
    “A. W. TeNNEy,
    
      “US. Atfiy”
    
    
      “At a stated term of Circuit Court of the United States of America for the eastern district of New York, in the second judicial circuit, held at the United States court rooms in the city of Brooklyn on the 15th day of January, in the year of our Lord one thousand eight hundred and eighty-five.
    “Present: The honorable Hoyt H. Wheeler, district judge, holding the court.
    “The UNITED States “vs.
    
    “The Atlantic Dredging Company.
    “Cause called. Hearing ordered.
    “ Prank Angelí, asst. dist. atty., for United States; A. W. Parker, for defendant; JEt. D. Benedict, as counsel.
    “ The jury drawn and sworn.
    “ On motion of Mr. Benedict, the court directed a verdict for the defendant.
    “Verdict rendered and recorded.”
    “At a stated term of the Circuit Court of the United States of America for the eastern district of New York, in the second judicial circuit, held at the United States court rooms in the ■city of Brooklyn, on Thursday, the 15th day of January, 1885.
    “Present: Hon. Hoyt H. Wheeler, U. S. district judge, holding the court.
    “The United States “against
    
    “The Atlantic Dredging Company.
    “The issues in this action having been brought on for trial before Mr. Justice Wheeler and a jury this day, and the allegations and proofs on the part of the plaintiffs having been heard and considered, and the jury having rendered a verdict in favor of the defendant under the direction of the court:
    “Now, on motion of A. W. Parker, proctor for defendant, it is ordered and adjudged that the complaint of the plaintiff in the above-entitled action be, and the same is hereby, dismissed upon the merits and judgment rendered for defendant.
    “I hereby consent to the entry of above order.
    “HoytH. Wi-ieeler,
    “A. W. Tenney,
    “ TJ. S. Atty.”
    
    
      
      Mr. F P. McKenney for tbe claimant. Mr. PFatha/niel Wilson and Mr. 8. F. Phillips were on the brief:
    The case of the plaintiff proceeds upon the theory that the United States practically warranted the character of the material upon D — E to “consist chiefly of sandy mud and a little gravel;” and therefore, inasmuch as it is shown that this warranty has been broken,' that the plaintiff is entitled to damages. Simpson v. The TT. 8., 172 U. S., 372; Pelafield x. Westfield, 77 Hun., 124.
    The issues made were tried by a jury upon proofs on the part of the United States; and then by direction of the court a verdict and judgment were rendered for the defendant therein.
    We refer to the record as making conclusive proof in the present case that the United States warranted the material in question to consist “chiefly of sand, mud, and a little gravel; ” and that such warranty was broken; and also that the defendant, upon its part, performed all matters respecting such contract for which it was bound.
    Its bearing upon the present contention may be well summed up, mutatis mutandis, in the following words, which are submitted as elementary:
    
    “Where the vendor makes a positive affirmation as to a material fact, and the vendee, relying upon the truth of it, makes a purchase which probably he would not have made otherwise, it is presumed conclusively that the vendor intended his statements. as a warranty, whether he actually intended them as such or not.” * * * “Any positive statement of a material fact made with the intention of influencing the buyer, and relied upon by him, will constitute a warranty, whether as such intended or not; the intention is presumed conclusively from the efforts made to induce a sale by these statements.” (28 Am. and Eng. Ency. of Law, 751, ’2.)
    Upon the matter of estoppel, we also refer to the case of The S. Pac. R. R. Co., 168 U. S. R., 1, 48-51.
    
      Mr. George H. Gorman (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    At the outset it is to be observed that if any warranty as to the character of this soil is to be found it must be found in the contract, and not in any- representations, promises, or conversations, whether verbal or written, had between the parties while the contract was m fieri and prior to the execution of the contract. Some attempt at this sort of thing was made in the examination of claimants’ witnesses, and while the fact thus sought to be established is overwhelmingly dis-. proved in the record, as is to be seen by the citations heretofore given under the defendants’ fourth request for findings of fact; yet even if the contention were true it could make no sort of difference in this case, for the reason that we must look to the contract alone and not to any negotiations that led up to its execution. Simpson v. The United States (172 U. S.), 379, citing with approval the language of similar import in Brawley v. The United States (96 U. S.), 173.
    If it had been the design and intent of the contracting parties to have guaranteed and warranted that the material to be excavated was precisely and exactly sandy mud and a little gravel, they had the whole English language at their disposal with which to say so, and they would have said so in plain and unambiguous terms, which would have been incapable of any misunderstanding. The best evidence in the world that they • did not intend to do it is that they did not do it. The case in this respect is exactly similar to the dry-dock contract case of Simpson (& Go., recently decided in this court (31 C. Cls. R., 217) and affirmed in the Supreme Court (172 U. S., 372).
    The claimants knew that a survey, soundings, and borings had been made to ascertain the character of the soil to be excavated at these shoals, and if it had been their intent to have predicated their bid and the contract upon the correctness of that survey and soundings, then certainly, to use the language of the Supreme Court, “a purpose so vital, so important, would necessarily have found direct and positive expression in the bid and specifications, and would not have been left to be evolved by a forced and latitudinarian construction.” There was no such intent on the part of the claimants and no acquiescence in such intent on the part of the defendants, and it is for this reason that we look in vain to the specifications, the bid, and the contract for any words that can properly be held to mean a warranty of the character of the soil.
    It was upon their own information, thus derived, acting solely and entirely upon their own judgment and trusting to that of nobody else, that they made np their minds as to what this work could be done for at a profit and named the prices mentioned in their proposal for the work. The bid that they made was the result of their own observations, their own examinations, their own judgment, uninfluenced by anything that the defendants had represented to them, either in the specifications or otherwise, and this fact negatives any notion of evolving a warranty out of the above-quoted language in the specifications.
    Whosoever sues for damages by reason of a misrepresentation merely presents the converse of the common-law action for deceit and must prove all the constituent elements of that action, to wit, that the defendant knew, or had good reason to know, that the representation was false; that it was a representation of fact peculiarly within the knowledge of the defendant and as to which the plaintiff knew nothing and had no way of finding out; that the defendant intended that the plaintiff should rely upon it, and that the defendant had a right to rely upon it without making any inquiry or investigation for himself, and that the defendant did do so to his damage. (Freeman v. Choke, 2 Ex. W. H. & G., 654; Picard v. Sears, 6, A. & E., 474; Wright’s Appeal, 99 Pa. State, 425-432; Bank of Ireland v. Evans Charities, 5 H. of L. Cas., 389,410, per Baron Parke; Steel v. The Smelting Co., 106 U. S,,447, 456, per Mr. Justice Field; Tyler v. Odd Fellows, 145 Mass., 134,138; Cowley v. Smith, 46 N. J.:L., 380.)
    The plaintiffs are prevented from recovery independent of the foregoing consideration by virtue of the provisions of the contract and the facts incident thereto, as recited in the defendants’ request for finding 7. In this aspect of the case it is in all respects similar to that of Ferris v. The United States (28 C. Cls. R., 332), quoted and followed with approval in Simpson v. The United States (31 C. Cls. R., at p. 242).
    When the claimant claimed to have discovered that this material was of a more difficult and more expensive character than that which he claimed to be contemplated by the contract, of course the only way in which additional compensation could have been obtained by him was to have obtained from the defendants, through their proper agents or officers, a supplemental contract in writing, in conformity with the proT visions of law, whereby the price to be paid for the excavation of the material was to be increased to such amount as might be mutually agreed upon. This fact was fully recognized by both parties, and negotiations to that end were pending, but the claimants, instead of waiting until a new survey of a perfectly correct character could be made of this soil and until this necessary supplemental agreement could be framed, voluntarily abandoned the work and towed their dredging machines to New York.
   WeldoN, J.,

delivered the opinion of the court:

On the 23d day of September, A. D. 1879, the claimant and defendants entered into an agreement, the substance of which is that the claimant agreed to perform certain dredging for the defendants in the Lubec Narrows in the State of Maine, consisting of four excavations, amounting in the aggregate to 142,720 cubic yards, more or less, for which the claimant was to receive different prices, according to the location. The contract advertisement and specifications are made a part of the petition as “A. D. Co., Exhibit No. 1.” It is alleged that the defendants had by examination ascertained, as they thought, the character of the material in the different excavations, especialty D and C, which comprise the larger portion of the excavation, and that upon such knowledge the contract provides as to the character of the material embraced in such excavation, as hereafter shown; that the claimant ■ entered upon the performance of the work within the time with sufficient force; that in the prosecution of the work it was found that D and E did not consist as in said contract provided of “sandy mud and a little gravel,” but upon the contrary consisted of stiff and tenacious clay extremely difficult to remove. It is further averred that upon finding that to be the character of the material the parties attempted to make a new agreement, but failed to do so; that thereupon the claimant abandoned further work upon said shoal in consequence of such materia] being so different from that alleged, and that because of such breach of contract on the part of the defendants the claimant suffered and was subjected to great loss by being prevented from making gains in the performance of such work.

It is further alleged that for work actually performed on the different parts of said contract there is due the claimant the sum of $1,217, which being added to the profits which the claimant would have made, and the expenditure to which it was subjected in preparation for the work, amounts to the sum of $35,465/88.

The main controversy arises on that portion of the contract embraced in the fourth classification of work between points D and E, the claimant contending, that as to that work, there is a warranty as to the character of the material to be excavated in the specifications, as follows: “The material composed in shoals between D and E consists chiefly of sandy mud and a little gravel, the estimated quantity of which to be averaged amounts to 125,000 mdre or less cubic yards, measured in scow.” The findings show that the shoals between D and E differed very materially from “sandy mud and a little gravel ” and that such excavation was worth much more than “sandy mud and a little gravel.”

The legal theory upon which the claimant seeks to recover is that there is an express warranty in the agreement as to the quality of the excavation, that such warranty was violated by the great difference in the material in fact and the material contracted for, and because of such violation it is entitled to recover profits and compensation for its outlay in preparing for the execution and performance of the work.

It is contended by defendants that as a matter of fact the claimant did not rely on the specifications as to the character of the material, but made examinations for itself; and conceding that the terms of the specifications measure the liability of the defendants, they do not express or imply a warranty of the kind of material composing the excavation provided for in the agreement. In support of this contention counsel for the United States quotes the language of the Supreme Court in the case of Simpson & Co. v. The United States (172 U. S., 372) and this court in the same case (31 C. Cls. K., 217).

It is said by the Supreme Court: “ If it had been their intention to only undertake to build a dock for the price stipulated, provided a guaranty was afforded them by the United States that the soil upon which the dock was to be constructed was to be of a particular nature, conforming to a plan then existing, a purpose so important, so vital, would necessarily have found direct and positive expression in the bid and specifications, and would not have been left to bo evolved by a forced and latitudinarian construction of the word ‘ available,’ used only in the nature of a recital in the specifications and not in the contract. The fact that the bidders knew that a test of the soil in the yard had been made, and drew the contract providing that the dock should be located on a site to be designated by the United States, without any express stipulation that there was a warranty in their favor that the ground selected should be of a defined character, precludes the conception that the terms of the contract imposed such obligation on the Government in the absence of a full and clear expression to that effect, or at least an unavailable implication.”

In the opinion of this court it is said: “We fail to see how the character of the soil entered into the contract. No representations were made as to it (the profile shown in the findings of fact did not amount to a representation upon which the plaintiffs might rely); the Government did not guarantee the character of the soil underlying the site, but freely gave the plaintiffs what information it had, and the parties contracted in no way as to the foundation of the site.”

In the Simpson case the contract simply provided that the dry dock was to be built in certain navy-yards, “ upon available sites to be provided by the Government,” and under that clause of the agreement it was held by this court, and affirmed bj' the Supreme Court, that there was no warranty as the subsoil or guaranty against quicksand, or any other matter which might cause an extraordinary expense to the contractor.

The substance of the decision is, that no liability attached to the United States because the terms of the contract had no reference to the character of the material to be excavated in the performance of the agreement.

The Supreme Court in substance says: If it had been the purpose to particularize the material to be excavated, such a purpose would have found expression in the bid and specifications and would not have depended upon the “latitudinarian construction of the word ‘ available ’ in the nature of a recital in the specification.” The Simpson case differs very much from the case at bar in this, to wit: In that case the contract of warranty as contended for by the claimant depended upon the use of the expression “upon a site that was available,” without any designation of the character or quality of the material to be excavated; in this case there is a specific description of the kind of material which is to be removed, to wit, to consist chiefly of “ sandy mud and a little gravel.”

In the Simpson case the alleged warranty related to the surface indications of an available site open to the inspection and view of the claimant, but in this case the alleged warranty is as to the composition of the material composing the shoals which by the terms of the agreement were to be dredged. The one stated an available site as to space and environment; the other relates to the character and quality of • the material, which is shown by the findings to have been very important, inasmuch as when the true character of the shoal was known a contract was let at nearly double the price for which the claimant was to do the work. One related to the surface or site; the other refers to composition hidden from the view.

The findings show that the claimant commenced the work on the 8th day of October, which was within the time prescribed by the contract in pursuance of directions of the engineer in charge, and continued at-the point designated until the 22d, when, by permission, the claimant removed its plant to point C, designated in the agreement, and from that point the plant was removed to point B, where, in consequence ,of the strength of the tide, the further prosecution of the work at that place was suspended until the close of the winter. The dredging plant with which the claimant began the work was commensurate with the requirements of the work.

The controversy in this case originates as to the work contracted to be done at the shoals' coming within the points D and E, as specified in the fourth clause of the agreement, which embraces the principal part of the work contemplated by the contract.

In the specifications which are made a part of the agreement it is prordded as follows:

“At the several shoals lying between the point marked D on the map (which is about 700 feet north of the upper block buoy) and the point about li miles below, marked E on the map (about 850 feet south of the western bar beacon), on which the depth varies from 4 to 12 feet at mean low water. The materials composing the shoals between D and E consist chiefly of sandy mud and a little gravel, the estimated quantity of which to be dredged amounts to 125,000, more or less, cubic yards measured m scow.'1'1

The finding with reference to the character of the material composing the shoals between the point of D and E shows that they were composed, in a large measure, of stiff, sticky clay of the character known as tenacious or hard; and upon the discovery of that fact the engineer in charge and the claimant attempted to make a new agreement based on the character of the actual material; but such negotiations failed, and on the 24th of February the claimant abandoned the further prosecution of the work.

The claimant seeks, by this proceeding, to recover damages because of a breach of the contract in respect to the character of the material composing the shoals D and E and the retained percentage on the work done at the point C. The findings show that on that work the defendants have retained the sum of $423.35.

The defendants insist that the warranty was not relied on by the claimant in making the contract; but upon the contrary it made an examination for itself, and from such examination concluded that it was safe to assume that the material was substantially of the kind specified in the agreement, and upon the faith of that knowledge so obtained, and without reliance upon the terms of the agreement, undertook and agreed to excavate the shoals D and E. The findings show that before the claimant made a bid for the work one of the agents of the company made an examination for the purpose of ascertaining the force of the tide and to some extent the character of the material composing the shoal, and from such examination, in connection with what is specified in the agreement as to the kind of material, it may be assumed, the contract was executed. .

The court is of the opinion that the representation in the specification and embraced in the contract that “ the material composing the shoals between D. and E consists chiefly of sandy mud and a little gravel ” is a warranty as to the character of the material, and although the agents of the company may have made an examination to ascertain the character of the tides, and to some extent the character of the material to. be removed, such examination did not waive the representation or warranty made by the defendants and forming an essential and vital portion of the contract.

Although the claimant had a right to rely on the warranty, out of abundant caution it may have adopted the expedient of making an examination for itself, in order that it might not be subjected to the risk of making a contract with the United States which might involve the trouble and expense of litigation incident to an agreement founded on an error of fact.

It may not have concluded from its examination that the material was as represented, but it did decide it was safe from indications to undertake the work,.with the guaranty of the United States as to the quality of the material.

The cost of the work to be performed depended to a large extent on the character of the material lying between points D and E, and therefore what is said in the contract as to the quality of such material must be construed as being, in the estimation of the parties, important, and constituting one of the essential provisions of the agreement. And although the claimant made an examination and did not detect the mistake of the defendants in representing that the shoals were of sandy mud and a little gravel, it does not follow as a consequence that thereby the defendants are relieved from the legal responsibility incident to the guaranty of the quality of the material to be excavated. The object and purpose of reducing an agreement to writing is to impress upon it the quality of certainty, and to comprehend into compact form the very essence of the agreement; and it is for these reasons that the law excludes previous statements and understandings and enforces the contract as the parties have made it by the written terms of their agreement. A written agreement is to be enforced in all .its parts, and therefore what the parties may have said antecedent or contemporaneous with execution of the agreement is excluded. And so the acts of the parties before the execution of an agreement can not be so construed as to limit or suspend one of the most important provisions of a written agreement.

Attached to the proposal of the claimant is a statement, the substance of which is that the proposal is made with a full knowledge of the kind, quality, and quantity of the articles required. The phraseology of that statement does not seem to be entirely applicable to a contract for dredging, but is applicable to the kind, quantity, and quality of articles to be delivered, and not to acts done in the performance of an agreement of excavation.

It is a most familiar principle of law that a warranty will not extend to guard against defects plain and obvious to the senses of the contracting party; but the condition of the material afforded no opportunity to the claimant to protect itself by mere observation, so that the warranty at the time it was made became operative upon the right of the parties. (Chitty on Contracts, p. 644.) The above is the noted exception to the liability growing out of a warranty.

In the case of Delafield v. The Village of Westfield (77 Hun., 124) it is held, in substance, that a note at the end of specifications for laying pipe that “The vitrified pipe line is mostly and the tunnels are entirely to be in soft shale rock” amounted to a warranty shat the material to be excavated was soft shale rock.-

It is insisted that this case is governed by Ferris v. The United States (28 C. Cls. R., 332), and that it was the duty of the claimant when it was discovered that the shoals were of a different quality of material from that specified in the contract to have notified the officer in charge and get from him such changes as could be agreed upon. In the Ferris case the contractor proceeded with the work, notwithstanding he had found a different material from what was agreed upon, relying on a statement of a subordinate officer for additional compensation. The court held in that case that the responsibilhy of the United States could not be enlarged by a subordinate officer in agreeing to pay extra for the work because of a difference in the material, and that under the circumstance it was the duty of the contractor to apply to the officer having the right to change the agreement. The findings in this case show that the claimant and the officer in charge sought to make a new agreement based upon the condition of the material as it existed in fact, but the parties were unable to come to any agreement, and the result was that the claimant quit work, and other parties did the dredging at a greatly increased price.

In the trial of the cause in this, court, in reply to the contention of the defendants that the claimant had violated its agreement in the failure to perform the work, to the damage and prejudice of the defendants to the extent of the amount which the defendants were compelled to pay for the performance of the work beyond what the claimant had contracted, the claimant offered in evidence the record of a proceeding in the circuit court of the United States for the eastern district of New York, in which the defendants were plaintiffs and the claimant was defendant. The record of the case is fully set out in the findings.

To the introduction of this record and a reliance on it by the claimant'the defendants objected, for the reason that the record had not been counted on, and therefore formed no part of the claimant’s cause of action. To this contention the claimant replied that it was not matter in chief, but came into the cause by way of replication. The court holds that it is competent, by way of replication to the claim of the defendants, that the claimant failed and refused to perform its agreement, and because of that is not entitled to recover in this proceeding.

An examination of the record discloses that the suit in New York was between the same parties on the subject-matter which is the basis of the litigation in this case.

If the issue which the defendants are making in this case was decided in the case in New York,, then the defendants are estopped by the result of that ■ case, and can not now reopen what was closed by the legal effect of.that proceeding.

Estoppels, as a general rule, are not favored defenses, but when the alleged estoppel is a matter of record embodying the result of a judicial proceeding, the courts, as a matter of strict legal right and on grounds of public policy, enforce as against the parties the legal effect of that result.

There must be an end of litigation, and an issue once settled must remain so unless properly reopened.

In the bill of particulars filed in that case three items of charges appear, all relating to the failure of the claimant to comply with the obligations of the contract embraced in this proceeding, and two of which relate exclusively to Shoal D and E, and for the difference in the price which was to be paid the claimant by the contract, and which the defendants were compelled to pay other parties for doing the same work.

To the claim made by the petition and specially exemplified by the bill of particulars the defendants in that case say, in substance, that upon the faith of certain representations it entered into said contract, and that in such contract it is averred that the shoal between D and E consisted “chiefly of sand, mud, and a little gravel,” whereas, in fact, that it did not so consist, but upon the contrary it consisted in a large part of tenacious clay, which was much more difficult and expensive to dredge.

It is sufficient to state in this connection that that issue was tried before Mr. Justice Wheeler and a jury, on the allegations and proofs on the part of the plaintiffs, and the jury rendered a verdict in favor of the defendant under the direction of the court, and the cause was thereupon dismissed on the merits and judgment rendered for the defendant.

In the proceeding in New York the rights of the parties were not reciprocal. The plaintiffs had the right to prosecute its action for any violation of the agreement on the part of the defendant, but the defendant was limited in the range of its judicial right to a defense in showing that it did not violate the contract, but beyond that it had no right of set-off or counterclaim. The law in its policy gave it a power to defend, but no power to attack; and hence, while it might defeat the plaintiffs, it could not succeed in establishing any affirmative right or claim against the plaintiffs. (Tillou v. United States, 6 Wall., 484.) The exercise of that right was left to the jurisdiction of this court, and it now seeks to exercise that right in the presentation of its claim, unaffected by the claim of the defendant, that it violated its agreement in the nonperformance of the contract.

Upon the whole case the claimant has the right to recover' the sum of $6,033.35, and for that amount judgment will be entered.  