
    SMITH’S CASE.
    (11 Court of Claims R., p. 707;
    94 U. S. R., p —.)
    Joseph Smith, appellee, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      While huildings are in progress of construction in a fort the contractor is stopped by order of the post-commander, approved by the commander of the department. He reguests to be allowed to continue or to be released from the obligation of his contract. His release is refused. Subsequently he is alloioed to resume. He brings his action for the damages caused by the suspension. The court below finds them to be $5,000, and refuses to find (1) the damage done to the build-. ings by the weather during the suspension, (2) the amount resulting from the retention of certain shilled laborers, (3) the deterioration of certain materials. It decides that the officers charged with the supervision of the work had no right to hinder or delay the contractor by an order suspending the work, and that the rule for the measure of damages was not the sum of the ex parte payments he made to his subcontractors, but the natural and inevitable losses which would be caused to any contractor by such a suspension on such a building. Judgment for the claimant. The defendants appeal.
    
    I. When no time is specified in a contract within which the work must he done, and no right is reserved by the Government to suspend it, the law implies that it must be done within a reasonable time, and that the Government should not interfere to prevent this.
    II. To stop a contractor engaged in the erection of buildings by an order suspending his work is an improper interference as between individuals, and where this is done by officers charged with the supervision of a Government work the Government will be liable.
    
      III. When a contractor’s work has been improperly suspended by officers of the Government, the true measure of damages is such an amount as may be necessary to put the contractor in the same condition he would have been in if allowed to proceed, not allowing anything for injury to his materials which he might have prevented with reasonable care.
    IV. The court below should not be compelled to set forth in its findings of fact the elements of calculation by which it arrives at the total of the damages awarded. It would be proper to ask for the elements of compensation allowed so far as to show the nature of the damages awarded, but not the items of calculation so as to determine whether the proof supports them.
    V. Questions of law arising in the Court of Claims are reviewed in this-court only by means of a finding of fact in the nature of a special verdict, and a contest as to the sufficiency of the evidence to sustain the facts found cannot be reviewed on ax>peal.
    
      The Reporters’ statement of the case:
    The court below found the following facts :
    I. In May, 1873, the chief quartermaster of the Department of the Platte advertised for proposals for constructing certain buildings at the military post of Beaver, in the Territory of Utah. On the 24th June, 1873, the claimant sent in proposals, which were accepted by the order of the Secretary of War on the 23d August, 1873. Notice of acceptance was given to the contractor, who immediately proceeded with the work; but the agreement of the parties was subsequently reduced to the formal written contract annexed to the petition in this case.
    II. On the 1st December, 1873, while the buildings were in progress of construction, the contractor was stopped by order of the post-commander, with the approval of the commander of the department, and all work under the contract was ordered to be suspended. The contractor objected to the work being stopped, and requested that he be released from his agreement unless the work could go on. The matter was referred to the Quartermaster-General, and by him submitted to the Secretary of War. Pursuant to orders of the latter, the contractor was allowed to resume work. The period of suspension was from the 1st December, 1873, to .the 3d February, 1874. The defendants have paid for the work done under the contract, but have not paid the damages occasioned by the suspension of the work.
    III. On the 30th October, 1874, General Ord, commanding *the Department of the Platte, referred the contractor’s claim for damages caused by the suspension to the quartermaster of the post of Beaver, who had had entire charge of the work from the beginning to the completion thereof, with instructions to report as to the damages caused by “ the unexpected stoppages and the delays inflicted on the contractor, Smith, by the orders from Washington and department headquarters; the exposed and unfinished condition in which he was compelled to leave the buildings during winter storms; the remoteness of the place of building, where all skilled labor had to be provided from a great distance, and which was left sometimes unoccupied and unpaid for on the contractor’s hands; the deterioration in value of material left exposed while waiting for orders to continue the work.” The post-quartermaster, under these instructions, re- - ported the contractor’s losses at $8,000, and the department commander approved the recommendation. The court finds the claimant’s damages for the same to be $5,000.
    IY. During the progress of the work the contractor furnished and performed certain additional or extra work not required by his contract. But on the inspection of the buildings before the final payment it was found by the inspecting-officer that the contractor had omitted to furnish and perform certain work required by the contract. It was subsequently agreed between the contractor and the defendants’ officers that the extra work furnished should be received and stand in the place of that omitted by the contractor, and under and in pursuance of such agreement or compromise the contractor was paid the balance remaining due of the contract-price.
    And upon the foregoing findings of fact the Court of Claims decided as conclusions of law :
    1. The officers of the Government charged with the care and supervision of the building to be erected by the claimant had no right to hinder or delay him in the proper performance of his work; and for the suspension thereof, ordered by such officers in the supposed interest of the Government, the claimant should recover such damages as were the necessary consequence of the suspension; that is to say, such damages as would place him as nearly as possible in the same condition as he would have been in if he had been allowed to proceed without such interference, excluding therefrom, nevertheless, any loss or injury to his materials which might have been prevented by the exercise of reasonable care and prudence on his part in the storing, custody, and preservation thereof.
    2. The estimate or allowance of damages for the suspension of the work made by the post-quartermaster, under the instructions of the commanding officer of the department, does not determine the amount thereof, and should be excluded by the court in making a computation of damages.
    3. The extra work on the buildings done by the claimant in addition to that required by the terms of his contract, and the deficiencies under the contract, as determined by the inspecting officer who inspected the work before acceptance by the Government, as provided by the contract, were proper subjects of compromise and set-off, and having been so compromised and set off against each other before final payment, the claimant is concluded from seeking a recovery for the former.
    The defendants at the same time requested the court below to find certain specific facts relating to the damages suffered by the claimant; but these the court refused as irrelevant or immaterial,, They are stated and reviewed in the opinion of the Supreme Court.
    
      Mr. Assistant Attorney -General Smith for the United States, appellants:
    The purpose for which most personal actions are instituted before any tribunal, and for which all petitions are presented to the Court of Claims, under general statutes, is the ascertainment and recovery of damages.
    Those awarded in the present case were wholly for the loss which Smith might have suffered by the enforced suspension of the work under his contract.
    If entitled to any damages, upon what basis are they to be assessed? Compensation is the proper standard. (2 Greenl. on Ev., § 253; Wiclcer v. Soppoek, 6 Wall., 99; Bussey v. Donaldson, 4 Dallas, (Pa.,) 207; Boclmood v. Allen, 7 Mass., 256; Stmt v. D’Orval, Dudley, (So. Car.,) 183; Smith v. Shenoood, 2 Texas, 460; Robinson v. Varnell, 16 Texas, 391.)
    “A plaintiff who claims damages for the loss of a contract is as much bound to prove that he has sustained damages as he is to prove the contract itself. The jury cannot be asked to guess. They cannot try the case upon conjecture.” (Lentz v. 
      Chotean, 42 Pa. St., 438; Stevenson v. Smith, 28 Cal., 102; Pastorius v. Fisher, 1 Eawle, 29; Funk v. Oresswéll, 5 Iowa, 64 ; Linder v. Lake, 6 Iowa, 109; Wilson v. Barnes, 13 B. Mon., 331.)
    The issue between us and the Court of Claims (for the opinion states that “both parties” were agreed upon the law) is, that we contend Mr. Smith, if entitled to anything, can only recover his actual damages, of which the sums really disbursed for labor, &c., are items, while that court holds the proper course to be “to estimate (guess or conjecture?) the natural and inevitable losses caused to any contractor by such a suspension,” &c., and therefore they refuse to find actual expenditures “as immaterial under the conclusions of law.”
    But we have already mentioned that “where the law implies the injury, it also implies the .lowest damage.” (Sedgwick on Dam., 48, citing cases.) If more is to be recovered, it is by specific proof of the facts upon which each item rests.
    If any contract existed between the United States and Smith, outside of the written one, and relative to this so-called “ suspension,” it was one of indemnity, implied by law, to wit, that Smith should not lose anything by this suspension; not that he should be allowed to make anything out of it. For whatever damage he suffered by a termination of the contract December 1, 1873, he could have obtained redress, had he never resumed the work; but, resuming it, he should have for the interruption only what that cost him, if entitled to anything. That was not a contract out of which profit could arise; indemnity from loss, not from liability, is its utmost limit. (6 Wall., 99, cited infra.)
    
    If there was any contract at all relative to this suspension, it was (by implication of law) to indemnify the contractor by paying him only so much as he might reasonably be obliged to expend upon that account.
    He must likewise prove his case, if he claim to be indemnified for whatever he lost by the suspension. In any event, the damages are special and must be specially laid and proved; particularly where, as here, they were not the natural result of the stoppage, but of the contractor’s desire to complete the work, and keeping the men for that purpose. (Vanderslioe v. Newton, 4 Comst., 130; Pastorius v. Fisher, 1 Eawle, 2*9; Lin-der v. Lake, 6 Iowa, 169; 5 Iowa, 64; 42 Pa., 438; Wilson v. 
      Barnes, 13 B. Mon., 331; Stevens v. Lyford, 7 N. H., 365; JDielcenson v. Boyle, 17 Pick., 79; Furlong v. Polleys, 30 Me., 493.) “In actions upon contracts no damages can be given which cannot be specifically stated.” (JETamlin v. Gt. No, By. Co., 1 Hurl. & Nor., (Exch.,) 411; Arroto smith v. Gordan, 3 La. Ann., 109, bottom; Suntv. JPOrval, Dudley (So. Car.,) 185. “The difficulty in this case is to ascertain what is due, and, in the absence of proof to that effect, a nonsuit was proper.” (Teal v. Auty, 2 Brod. & Bing., 101.) If the plaintiff, having shown a breach of contract, would recover more than nominal damages, “ the burden is still upon him to show that he has suffered more,” and how much more. (Winslow v. Lane, 63 Me., 163; Quinn v. Van Pelt, 56 N. Y., 419; Grier v. Ward, 23 Geo., 150, bottom.)
    The present case is a signal example of the necessity of exact proof, instead of asking court or jury “ to guess; ” of the propriety and justice of the suggestion of Judge Strong, in 42 Pa., 438, that we “ are to try the case upon evidence, and not upon conjecture.” The Court of Claims conclude that “ the natural and inevitable losses to any contractor ” “ must have been at least $5,000,” though they declare the facts which go to show this contractor’s actual loss “immaterial;” so they give us nothing but their own inference of the. natural effect of so stopping snch a work, so situated, for fixing the damages at $5,000 instead of $1 or $50,000, unless they assume the keeping of men, &c., on hand for two months to be the natural effect of a stoppage; and then they do not consider the actual wages of these men, nor the number of men, but the general fact that skilled labor was scarce and wages high.' .We will add a suggestion about this “skilled labor.” By his contract Smith was to furnish “ all the skilled labor,” &c.; he could only employ such labor, and it was a breach of his contract if he furnished any other; by far the largest item of damages mentioned in his petition ($3,744) is for 78 days’ pay, at $4 per day, of twelve men ; yet his petition states this sum to be “ the wages and maintenance of twelve men, some of whom were skilled mechanics.” How many 1 Non constat that he had more than two “skilled” workmen. By their statement of the dates of stoppage and resumption, the court reduces the working-days of the suspension to 53; but they do not consider this an element of damage, unless as forming the basis of a conjecture wbat it would cost u any contractor ” to suspend for 53 days; nor that it makes any difference what number of skilled men he had or paid. If he had but six, reducing that item proportionately, and striking out the extras and other items which the Court of Claims say they did not include, (and properly omitted, upon any hypothesis,) it is apparent that they have allowed this contractor more than he could have lost, upon legal items; and this result is reached by adherence to an inflexible principle of law, to wit, “ the natural and inevitable loss to any contractor,” although in fact this contractor has been fortunate enough to avoid the inevitable. This rúle, as we have above remarked, can only be applied where the contract has been entirely abandoned and is never resumed. If the contract is completed agreeably to its terms the contractor only receives the contract-price, whether more or less than he has expended. If rescinded by the other party, against the contractor’s will, he can only recover the profit, ascertained by deducting estimated cost of completion from contract-price. But if merely interrupted and resumed he is only entitled to the actual damage caused by the interruption.
    
      Mr. James Lowndes for the claimant:
    The meaning of the contract was a matter of construction for the court; and it has construed the contract as giving no right to the Government to hinder or delay the claimant in the performance of the work.
    This action was not brought on the contract, but on an implied assumpsit collateral to it.
    Here are all the legal elements of an implied assumpsit — work done or expense incurred by the claimant at the request of the Government outside of the contract.
    This case is plainly within the doctrine of the AmosTceag Company v. The United States, 12 Wall., 592.
    Does, then, the subsequent resumption of the work by the claimant bar his recovery on this implied promise ?
    This court has distinctly recognized the right to recover on the collateral promise after the completion of the work under the original contract.
    In Ciarle's Case, (6 Wall., 543,) the claimant suffered loss by the interference of the Government, completed his contract, and was paid in full under the contract. (1 O. Cls. B., 257.) ' He brought his action in the Court of Claims for the loss caused by the interference and delay, and was there defeated. On appeal to this court the decision below was reversed.
    In Garrison’s Case, (7 Wall., 688.) the claimant had been paid under his contract, when he brought his action to recover an additional sum for the rifles already paid for. Judgment in his favor was directed by this court.
    
      Gibbon’s Case (8 Wall., 272) is clearly distinguishable. On the facts there the claimants could not recover.
    In Gibbon’s Case, the act complained of was the-unauthorized act of a subordinate agent of the Government. In this case the act was that of the Secretary of War. In the third finding of fact General Ord, the department commander, attributes the delay to orders from Washington •, and in the second finding it will be observed that the resumption was by orders of the Secretary. That officer had full authority to contract for the United States.
    The point seems to be made in the argument that the suspension of the work constitutes a rescission of the contract. The answer to this is obvious, that the act of the Government could operate a rescission only at the option of the other party to the contract; and everything he did showed that he considered the contract as still subsisting.
    The court makes two references to the voluminous evidence on the point of damages.
    In its opinion the court says that in estimating the damages the parties have gone upon the actual expenditures of the contractor to his subcontractors and workmen.
    These references to the evidence are alone sufficient to meet the charge that this is a case in which damnification has been assumed without specific proof of the amount of it.
    The principles applicable to the question of damages, laid down both in the “ conclusions of law ” and in the opinion, are so obvious as not to need discussion. They go upon the ground of compensation or payment of the actual damage suffered, and they are sustained fully by the authorities cited on behalf of the appellant.
    The court did in this case exactly what a jury would do; that is, assessed .the damages upon a view of all the evidence. It can no'inore be called upon to itemize its finding than a jury could to itemize its verdict. In most cases it is practically impossible for either to do so.
    If there had been on the trial no evidence of damage, the proper proceeding of the Government would have been to move a non-suit or to demur to the evidence, neither of which steps appears by the record to have been taken. There is besides in the record ample reference to the evidence on the question of damages. The admission of the post quartermaster was enough evidence to go to a jury on. The claimant could, not bring up here the whole of the evidence. It is not too much to say the real question in the case is as to the quantum, of damages. That is a question of fact, on which the Court of Claims has made its finding, and it is not a question subject to review in this court.
   Mr. Chief-Justice Watte

delivered the opinion of the court:

The only questions presented in this case relate to the liability of the United States for damages growing out of the suspension of the work under the contract sued upon. In effect, the contract bound Smith to furnish the materials and erect the buildings, the labor being performed by the soldiers at the fort except to the extent that skilled workmen were necessary. There was no time specified within which the work must be done, neither was there any power reserved by the United States to direct its suspension. Under such circumstances the law implies that the work should be done within a reasonable time, and that the United States would not unnecessarily interfere to prevent this.

In Clark’s Case, (6 Wall., 546,) it was decided that the United States were liable for damages resulting from an improper interference with the work of a contractor, and in Smoot’s Case, (15 Wall., 47,) that the principles which govern inquiries as to the conduct of individuals in respect to their contracts are equally applicable where the United States are a party. The same rules were applied in the Amoskeag Company’s Case, (17 Wall., 592.) Here the work was stopped by order of the United States. Smith asked to be released from his contract unless he could go on. This was refused until the expiration of sixty days, when he was allowed to resume. As between individuals, certainly this would be considered an improper interference, and damages would be awarded to the extent of the loss which was the necessary consequence of the suspension. The United States must answer according to the same rule. In this respect we cannot consider this case different in principle from that of Clark, (6 Wall., 546.)

The Court of Claims has found the amount of the damages to have been five thousand dollars; that is to say, that sum in its opinion, from the evidence before it, was necessary to place Smith in the same condition he would have been in if he had been allowed to proceed without interference, and not allowing anything for loss or injury to his materials, which he might have prevented by the exercise of reasonable care and prudence.

This rule of damages, as an abstract proposition, is clearly right. Unless, therefore, there appears in the record some error growing out of the estimation of the amount, the judgment below should be affirmed.

By our rules in reference to appeals from the Court of Claims, (rule 1, sec. 2,) that court sends here its finding of facts as established by the evidence, in the nature of a special verdict.” The evidence is not sent up. This finding is conclusive unless impeached for some error in law appearing in the record. Here in effect the error complained of is, that the court refused to state the items of its account of damages. This we have not required, and while, under the practice we have established, liberal provision should be made for review of questions of law, it seems to us that in this case the claim of the United States goes beyond anything we ought to grant. The court might with propriety have been asked to state in a finding whether a particular item of claim or damage was included in its estimate, and, if so, what amount. To such a finding exception might in proper form be taken, and then we could be called upon to decide whether such an item was legally the subject of compensation in an action for damages. The United States can be required to make compensation to a contractor for damages which he has actually sustained by their default in the performance of their undertakings to him, but this is the extent of their liability in the Court of Claims. More than compensation for damages actually sustained can never be awarded against the United States.

In this case the United States asked the court to find (1) the amount of damage done to the building on account of exposure to the winter storms in its unfinished condition; (2) the amount resulting from the retention of the skilled labor, &c.; and (3) the deterioration in the value of materials. All these were legitimate subject's of inquiry by the court in making up its final estimate, but we know of no rule of law or practice which requires a court or jury to itemize the elements of the calculation by which it arrives at its final result. In this case the court was not asked to say whether it included this or that supposed element of compensation in its judgment, but the only effort seems to have been to ascertain the items of calculation so as to determine whether the proof supported them. The whole contest evidently was as to the sufficiency of the evidence, not as to the liability of the,United States if the facts as claimed were established by the proof.

In the estimation of damages the Court of Claims occupies the position of a jury under like circumstances. Damages must be proven. The court is not permitted to guess any more than a jury, but like a jury it must make its estimates from the proofs submitted. The result of the best judgment of the triers is all that the parties have any right to expect.

As the record presents the case, we see no error in the court below. The judgment is, therefore, affirmed.  