
    HENRY COLLINS AND GEORGE FARWELL v. THE UNITED STATES.
    [No. 18589.
    Decided February 27, 1899.]
    
      On the Proofs.
    
    This case is referred to the court by the Secretary of War under Revised Statutes, § 1063. The claimants contract with the Government to remove 108,000 cubic yards, more or less, of rock, bank measurement, at $1.33 per yard; to dress the rock in a suitable manner to receive timber and masonry without extra compensation, rock intended to be left, if shattered by accident, to be removed and replaced with masonry or concrete at their own expense, subject to the approval of the engineer in charge. Under the order of the engineer in charge they excavate below grade and in excess of the amount contracted for. The claimants also demand compensation for losses caused by delays.
    I. Where a contract for a rock excavation of 108,000 cubic yards provides that the length, width, and depth of the excavation are to be fixed by the engineer in charge, and that the bottom is to be dressed for the reception of timber and masonry, and the contractor having complied with these requirements the engineer in charge calls for excavation below grade and in excess of the amount fixed, the contractor is not obliged to do the extra work or dress the excavation anew at his own expense.
    II. Where a contract to excavate 108,000 cubic yards of stone provides that “the lode pit must be excavated to the width ami length and depth which the engineer in charge shall deem necessary,” the contractor will not be compelled to excavate within slopes and above grade at the price fixed by the contract, and to excavate without compensation below grade as far as the engineer m charge may require.
    
      III. Where a contract for rock excavation provides that when the contractor is ready to begin the dry excavation “ the United States will alose the cofferdam and pump out the look pit," and that they will not he responsible for the safety of the employees or for plant or material used by the contractors, or for any cause whatsoever, the failure of the cofferdam excepted, and thereafter the cofferdam leaks and delays the work and injures the tools and materials of the contractors the Government will be liable.
    IV. Where the United States are responsible for damage which may result from leakage, the responsibility continues though the leakage occurs during a period covered by an extension of the contract made at the request of the contractor.
    V. Where a contract for rock excavation provides that “ the pumping required to free the lock pit from water will he done hy the United States, for this purpose the engineer in charge will locate the position and determine the dimensions of all necessary wells,” etc.; and only one well is located, thereby imposing unnecessary burdens on the contractor, it will be regarded as a violation of the contract. A reasonable number should have been located.
    VI. Where the engineer in charge proceeds upon a wrong theory of a contract or excludes a factor to the benefit of which the contractor is entitled, the court will grant relief, notwithstanding the provision that the engineer’s decision shall be final. This provision refers only to his measurement and not to the principle of law on which it is made.
    VII.Parties who contract on a subject-matter in regard to which well-known usages prevail, by implication incorporate them into their contracts, if nothing is said to the contrary.
    
      The Reporters’ statement of the ease:
    The following are the facts of the case as found by the court:
    I. The claim involved in this case was referred to this court by the Acting Secretary of the Treasury, at the request of the Second Comptroller of the Treasury, December 17,1894, under the provisions of section 1063 of the Revised Statutes of the United States,'and a duly verified petition was filed in the court by the claimants and served on the Attorney-General on the'21st day of May, 1895, as required by the rules of the court.
    II. Henry Collins and George Farwell, claimants herein, are citizens of the United States and they are the sole owners of the claims herein sued on, never having sold or assigned the same or any part thereof to any person or persons.
    III. By acts of Congress approved February 26, 1885, and February 23, 1887, vol. 2 ¡, p. 332, and vol. 24, p. 14, Statutes at Large, and under appropriation made by act of Congress of August 11, 1888, the excavation for a new lock. pit at St. Mary’s Falls Canal, Michigan, under the direction of the War Department, was provided for.
    IY. Thereafter, to wit, on the 19th day of January, 1889, in pursuance thereof, the War Department published an advertisement, as shown by the exhibit annexed to the petition, inviting sealed proposals for doing the work, accompanied by instructions for bidders aud specifications for the work, all of which were prepared by the United States.
    Y. That the claimants bid upon the work, and they being the lowest and best bidders the contract was awarded to them, and on the 1st day of March, 1889, they entered into the contract set out in the exhibit also annexed to the petition, which was prepared by the officers and agents of the United States, and which was approved by the Chief of Engineers, United States Army, March 26,1889.
    YI. The contract provided that the United States might annul it and forfeit all money or reserved percentages due or to become due to the claimants by giving notice in writing at any time the claimants should delay or fail to commence with the delivery of the material or the performance of the work on the day specified in the contract or should, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of the contract, but no such notice was ever given or any steps taken by the United States looking to the annulling of the contract or forfeiture of reserved percentages or other moneys due the claimants.
    YII. The time for the completion of said work was duly extended from time to time by the United States, as provided for in the contract, the last extension expiring on the 15th day of June, 1891.
    YIII. No subsequent, additional, or supplemental contract in writing was ever made by and between the claimants and the defendants for the performance of any extra or additional work beyond that specified in the contract, nor for the furnishing of any extra or additional materials, nor for the payment of any increased, additional, or extra cost, or higher price for work than that specified in the contract.
    IX. Within the time limited in said contract and of the extensions thereof granted by the United States, and while the same was in full force and effect and in strict accordance with its terms, claimants excavated and removed from said lock pit, in accordance with the direction, and under the eye of the engineers in charge of said work, as provided in the contract, the full amount of earth and rock specified therein, all of which earth and rock excavation was measured, accepted, and estimates made out and transmitted, by said engineers in charge, from time to time to the engineer .in charge, and payment made for all of such work, except the final estimate made on the 6th day of April, 1892, less percentages reserved.
    X. The United States measured, estimated, and paid the claimants from month to month for all of said rock excavation in said lock pit, less percentages retained, except for the quantity completed on June 15,1891, viz, 3,262.58 cubic yards within. the slopes and above grade at $1.33 per cubic yard, amounting to the sum of $4,339.23, which sum remains unpaid.
    The lock pit was at that time turned over by the contractors to the officers and- agents of the United States as completed according to the contract. No measurements or final estimates were made at this time for removing stone and putting in concrete, and it does not appear that any concrete or dressing beyond that given the crests then at grade all over the bottom of the pit was necessary to receive the timber and masonry. Subsequently, without rejecting the work and without notice to the contractors of its not having been completed according to contract, the engineer officer deemed it necessary to get a more satisfactory bottom by having the lock pit excavated below grade, owing to the friable nature and bad character of the stone at grade in the bottom of the lock pit and because the strata were not uniform, the ledges not being horizontal and the strata dipping to the southwest. Pursuant to directions of the engineer officer in charge (the contractors consenting) an inspector in the employ of the United States took charge of the force and employees of the contractors, and with sledges, bars, and • by blasting went over the pit, taking out large quantities of stone to get a more satisfactory bottom. Not succeeding in obtaining a more satisfactory bottom, the contractors were then required to go over the bottom and take out loose rock where it could be brought up and to put the bottom in more solid condition. This work of the contractors was supervised by an inspector in the employ of the defendants, and although the contractors were ordered to excavate to the depth of 6 inches, a more secure foundation was not found, the bottom of the pit at grade being in as solid a condition as the bottom of the pit below the grade after the excavation. The nature of the stone in the pit when exposed was such that it cracked, raised up, and swelled. The contractors were required to remove a large part of this material which cracked, disintegrated, and went to pieces after exposure to the elements. The amount of rock excavated below grade by the contractors under the requirements of the engineer officer aggregated 3,134 cubic yards, which, at $1.33 per cubic yard, amounted to $4,168.22. The sum total of rock excavation above and below grade which the contractors are entitled to have paid makes a general aggregate of 6,396.58 cubic yards, which, at $1.33 per cubic yard, amounts to $8,507.45. It does not appear that the contractors in blasting the rock preparatory to its excavation negligently or carelessly used excessive charges of powder and shattered and broke the bed rock of the pit, or drilled too deep at any time while excavating below the grade. ’Whatever rock below grade that was disturbed in the bottom of the pit by the contractors was blasted and drilled as required, except in some few instances, and as to these instances where the rock was disturbed by the fault of the contractors suitable dressing was used to'repair the same. The measurements and estimates for removing stone and putting in concrete were based upon the condition of the lock pit in April, 1892, and the latter part of 1894, after the disintegrating stone in the bottom of the pit had been exposed to the process of freezing and thawing and the effects of sun and moisture within the time the contractors had quit the work in June, 1891, and the time said measurements and estimates were made in 1892 and in 1894. Considerable quantities of stone had in the meantime, between the summer of 1891 and the spring of 1892 and the latter part of 1894, been taken out by barring and blasting by the defendants, and a culvert constructed by the defendants had been used for a stone yard.
    XI. There was retained by the United States from the payments made to the claimants, under and pursuant to the provisions of the contract, the sum of 10 per cent on all amounts ascertained to be due, which amounts to the sum of $21,414.79
    
      XII. Under the specifications in said contract the claimants were required to begin work before May 15, 1889, and complete the same before June 1, 1890. To complete the work within this time extraordinary energy and diligence were necessary, and in view thereof the claimants proceeded at once, upon the approval of the contract, to procure the necessary plant and begin work; that with the necessary plant and such force as they could procure, which force was increased within a week after commencing to 200 men, they, on the 10th day of April, 1889, commenced the excavation of the lock pit under the contract, and continued to pro.-ecute the work until April 21, 1889, on which date they were notified by Mr. Wheeler, the assistant engineer in charge, to stop work under their contract, giving as a reason therefor that the United States had not given them formal permission to begin the work. This suspension being indefinite and uncertain, the claimants were compelled to discharge their force and suspend all operations until such time as they should be permitted to proceed with their work. This order of suspension remained in force until June 12,1889, when they were notified by the officers and agents of the United States in charge of the work that they might proceed with the excavation under their contract.
    The cofferdam mentioned in the contract was the property of and controlled exclusively by the United States; by said contract the United States undertook and agreed to preserve in good condition and repair said cofferdam, for the express purpose of protecting the claimants from injury and damage by water from leakage into and overflow of said lock-pit area, wherein the excavation described in the contract was to be made, claimants having duly notified the officers of the United States in charge of said work, in writing, on the 10th day of April, 1889, that they were ready to begin the dry excavation of the lock pit and requested such officers and agents in charge of said work to close the cofferdam and pump out the lock pit, as by the terms of the contract they were required to do. Although the cofferdam was all completed except the opening left in the lower part thereof, of sufficient size to permit the passage of a dredge, the cribs for the closing of which opening were all built ready to be placed in position, and which with reasonable diligence could have been put in position, filled, and the lock pit pumped out, as required by the contract, within thirty days from the date of said written notice, yet by the carelessness and. negligence of the officers and agents of the United States in charge of said work they were not put in place, the cofferdam closed, and the lock pit pumped out until the 23d day of September, 1889, or about five months and a half after the- notice was given, thereby preventing claimants from excavating and removing any of the earth below lower water level during such period.
    During the months of April, May, and June, 1889, claimants, at great cost and outlay, to wit, the sum of $50,000, procured, and under the direction of the officers and agents of the United States, placed within said lock pit, appliances, fittings, machinery, tools, and other supplies necessary to such a vigorous prosecution of the work under their contract as would enable them to complete the earth excavation within the time allowed therefor and before they would be interrupted by frost. The said plant consisted chiefly of the' following: One 45-ton steam shovel and all necessary appliances; 33 steam shovel railroad cars; one 50-arc electric plant and appliances; 5 lighters or scows; 7 double drum Lidgerwood hoisting engines; 6 derricks; 5 Cameron pumps; 15 tons of drill steel; a large lot of picks, shovels, and other small tools; steel rails and ties for track to operate steam shovel and cars. In addition they caused to be erected within said lock-pit area carpenter shops and blacksmith shops, which were necessary for the proper prosecution of said work, and which were supplied with all necessary tools and appliances; they erected stables and procured eight or ten teams of horses. They also procured an additional 45-ton steam shovel for use in said excavation when necessary.
    The claimants bid upon said work and took the contract for the same u£>on the basis of the profits which they would be enabled to realize by the use of these extensive plants and machinery in said earth excavation.
    After making all necessary preparations, on the 1st day of July, 1889, they had their said plant in full and successful operation, with a full complement of skilled operatives working night and day, by the use of which they were enabled to excavate and remove and did excavate and remove said earth excavation at the rate of 1,000 cubic yards per day.
    If they had been permitted by the United States to continue said excavation with said steam appliances, they would have been able to complete said earth excavation in all respects in accordance with said agreement on or before the 23d day of September, 1889.
    But on the 17th day of July, 1889, while said plant was in successful operation, the United States, by its officers in charge of said work, notified claimants to suspend the said earth excavation within the said lock pit indefinitely, and in consequence of said notification plaintiffs were compelled, without fault on their part, but wholly by the fault of the United States, to suspend all work on the said earth excavation as to 17,509 cubic yards thereof within said lock pit. The amount of material contained in the area of the lock pit, as to which claimants were notified to suspend the work of excavation, was 26,165 cubic yards, of which 8,646 cubic yards consisted of piers, filling, lock gates, and masonry, which could have been removed by hand as cheaply in winter as in summer. The effect of the notice to the claimants to suspend work on the lock pit was to interfere with them in the use of the steam shovel, which at the time of the notice said claimants, as contractors, had at work on that much of the'lock pit as covered 17,509 cubic yards, and as to that number of cubic yards claimants were obliged to discontinue‘all work, to their injury and damage as hereinafter shown. Claimants, as contractors, were not prevented, during the period from July 17, 1889, to September 23,1889, from excavating and removing any other of the material to be excavated and removed except that mentioned, to wit, 17,509 cubic yards.
    The order of suspension was, and is stated in the official report of the officers in charge of said work, dated April 16, 1892, to the Chief of Engineers, United States Army, as follows:
    “ These instructions were given because of the condition of the cofferdam, which was then considered dangerousj and the object was to retain the upper gates of the locks of 1885, to serve as a dam in case the cofferdam should give way.”
    That said order of suspension being for an indefinite period and the said engineers in charge refusing, though requested, to give any information as to its probable duration, the claimants were compelled to and did discharge their force, including their expert steam-shovel crew, and await the further orders of said engineers in charge of said work.
    
      That said order of suspension continued- in force, whereby they were prevented by the United States from using their said plants in making said earth excavation for the period of two months and five days, or from July 17 to September 23, 1889.
    Upon said last-named date said order of suspension was removed and claimants were directed by said officers in charge of said work to proceed with said excavation; they protested to said officers and agents against being required to proceed with said work after said 23d day of September, for the reason that the ground was already frozen and the cold weather which had set in, and which was certain to continue during the winter in that latitude, rendered it, and would continue to make it, impossible to operate their steam shovel during the freezing weather, and that they would be compelled to take out the frozen earth with picks and shovels and by blasting, which would greatly increase the cost to them of such excavation. Notwithstanding these facts and the fact that the delay was wholly the fault of the United States and not of claimants, the officers in charge of the work directed and ordered them to proceed with said work without delay.
    Claimants being required as aforesaid to abandon the use of said steam shovel and plant, were compelled under protest to make said excavation by hand, which was the only method by which it could be done in its then frozen condition; and to do said excavation by hand they were compelled, at great expense and outlay, to employ a force of 600 men whom they brought from New York, Buffalo, and Detroit, which were the only points at which they could then procure them, with which force claimants during the winter of 1889-90, by blasting and with picks, shovels, and bars, completed said earth excavation and removed the same with hand cars, 100 of which they were compelled to build for said purpose at a considerable cost to them.
    The amount or quantity of said earth excavation so removed by hand was 17,509 cubic yards, at an actual cost to claimants, excluding all profit and compensation for their own time, of 83 cents per cubic yard. Said claimants have received from the United States, on account of said excavation, 43 cents per cubic yard, leaving due to said contractors, based upon actual cost to them, the sum of $7,003.60.
    The United States, by its officers and agents in charge of said work, admitted the liabilty of the United States to claimants for suck interference and increased cost of said excavation, and on account thereof allowed claimants, in the final estimates made thereof, and submitted to and approved by their superior officers, 25 cents per cubic yard additional to the contract price of 43 cents per cubic yard, on an estimated quantity of 17,509 cubic yards, the officer iu charge stating in his report, at page 8 of report made April 6, 1892, the reason therefor, as follows:
    “The effect of the prohibition was to stop the use of the steam shovel which the contractors had at work on the interdicted area, and to defer the excavation until a greater portion of it was affected by the frost to such an extent as to render an excavation very difficult.”
    The earth excavated and removed from the lock pit during the months of October, 1889, to May, 1890, both inclusive, was excavated and removed in a frozen condition at the increased cost to the contractors above stated.
    By the terms of said contract they were entitled to receive 43 cents per cubic yard for all material classed as earth, upon which, but for said interference, they would have realized a profit of 14¿ cents per cubic yard, amounting to the sum of $2,538.80.
    By reason of the order suspending the work of said contractors and the interference with them while carrying out their said contract plaintiffs lost the profit above set forth of $2,538.80, and sustained a loss on account of the actual cost to them of $7,003.60, making the aggregate of profits prevented and actual losses sustained of $9,542.40.
    XIII. In violation of the contract as set out and described in finding No. 12 and in violation of the “responsibility” clause in.the specifications, which are a part of the contract, said cofferdam was, through the carelessness and negligence of the United States, and not by reason of any unusual quantity of water, freshet, or other unlooked-for cause, permitted to leak so as to greatly interfere with the work of claimants, and on several occasions to require an entire cessation of work by said claimants. And that on the 19th day of March, 1891, in violation of said contract, and while said claimants had in said lock-pit area their steam and electric plants, together with a large stock of appliances, fittings, tools, and material which, owing to tbe distance said work was situated from supply depots, they were compelled to carry in stock, a large part of which are enumerated in finding No. 12, all of the value of $50,000; and while they were successfully prosecuting said work the United States permitted said cofferdam to break and to flood said lock pit with 33,000,000 gallons of water, together with great quantities of mud and other sediments, which was permitted to remain in said lock-pit area, submerging all of said machinery, fittings, tools, and appliances to the depth of 55 feet for a period of seventeen days, or from March 19 to April 5,1891, greatly damaging all of said plant and totally ruining large portions thereof.
    The officers and agents of the United States, recognizing their liability under said contract for damages to claimants by reason thereof, directed them to employ men and clean the mud, water, and sediment off said plant, tools, fittings, machinery, etc., which was done under the special direction of the officers and agents of the United States in charge of said work, at an actual cost to the claimants of $1,229.44. Said sum was estimated by the United States, with the approval of the engineer in charge, as due the claimants for such work, but remains unpaid.
    XIV. Under the orders and direction of the officers and agents of the United States in charge of said work, repairs were made to said plants, tools, and machinery, which were damaged by the flooding of said lock pit as aforesaid, and the freezing of the water therein during the time it was permitted by the United States to remain in said lock pit, at a cost to said claimants of $993.05, and, under the direction of the said officers and agents of the United States in charge of said work, vouchers for such payments were taken, which sum was estimated by the United States, with the approval of the engineer in charge, as due to said claimants on account of such payments so made at the request and under the direction of said officers and agents, which also remains unpaid.
    XV. In addition to the said injury and damage to said plants, appliances, machinery, tools, and necessary supplies, other parts thereof were lost or destroyed or so badly damaged as to render their repair impossible and were a total loss to claimants, whereby claimants were further damaged to the extent of $100, which remains unpaid.
    
      XVI. As a direct result of tbe breaking of said dam and tbe flooding' of said lock-pit area, in violation of tbe contract of tbe United States, there was deposited therein large quantities of mud, sand, and other sediment, which prevented any further prosecution of said work until it was removed from said lock-pit area. Under the instructions and direction of the officers and agents of the United States in charge of said work, the claimants proceeded to remove, and did remove, 2,603 cubic yards of such material. Said material was deposited within the “rock plane,” but was not rock. It was earth and water, and was fairly worth 50 cents per cubic yard to remove, aggregating $1,301.50.
    XVII. That in accordance with the contract and under the specification “pumping,” which is part of the contract, the United States agreed and undertook to do all the pumping necessary to be done to keep the lock pit free from water, the claimants agreeing to excavate all necessary wells, reservoirs, and drain ditches. That the cofferdam, which the United States agreed to keep in repair, continually leaked, which required constant pumping.
    That under this agreement it was the duty of the United States to locate such reasonable number of wells, and at such reasonable and convenient places in or near such lock pit, as would enable the claimants to prosecute their work with dispatch, and without unnecessary inconvenience and cost to them. That, the United States located but one well, which was placed 300 feet east of the east end of said lock pit, and refused, though requested so to do, to locate other and more convenient pumping stations, but ordered and directed claimants to dig a ditch the entire length of said lock pit, namely, 800 feet, and 300 feet east of the east end thereof, to said well, in order to drain the lock pit; that this would have required a ditch over 50 feet deep most of the distance and about half of it through rock; that this would have required as much time as to excavate the whole lock pit, and if excavated as ordered it would have been, impossible to have kept such a ditch, running the whole distance through the said- lock pit, open, so as to carry the water to said well, because of the necessary blasting and otherwise removing the material in said lock pit, which was required of claimants under their contract, and also because of the impossibility of preventing the water from freezing in said ditch or drain in cold weather.
    That claimants finding it impossible to conduct the water to this well, and the United States refusing to locate others in proper places, the claimants were compelled to and did put in wells, pumps, and machinery at several pumping stations and pumped the water from said lock pit at their own expense. That said pumping cost claimants and was worth the sum of $3,499.97.
    XVIII. On the 4th day of November, 1889, while the claimants were engaged with their plant and all their force in excavating material from said lock pit, in accordance with their contract, on account of the leak in the cofferdam, which under said contract the United States were required to keep in repair, the works were flooded and they were ordered by the United States to cease work. The injury to their plant and this stoppage of work resulted in damage to them in the sum of $200. The officers and agents of the United States in charge of said work, recognizing the liability of the United States under said contract for the payment of said damages, estimated said sum of $200 as due claimants for such damage, which estimate was approved by the engineer in charge, which said sum of $200 remains unpaid.
    XIX. Under the terms of said contract the claimants were required to place back of the pier to be built in front of Fort Brady 100,000 cubic yards of the excavated material, more or less, the entire area between the piers and the bluff on the shore (having an average width of 100 yards) to be filled to the level of the top of the pier and the surface leveled off neat and smooth.
    For the whole of this work they were to be paid by the cubic yard, measured in the bank after the filling material had been deposited back of the pier. During the construction of the pier it was found upon investigation that a mass about 24 feet in height of the material used in filling, covering a space some 40 feet wide and 1,400 feet long, would settle into the bottom— in about-20 feet of water where portions of the filling washed out through the cribs — to a depth estimated by the engineer officer to be 1 foot, but which we find to be an average depth of uncertain extent, because no examination appears to have been, made of the bottom of the fill-
    
      The claimants, under the terms of the contract, within the time limited therein and the extensions thereof granted by the United- States, i.n accordance with the direction and under the eye of the engineers in charge, as required by the contract, placed back of said pier 110,840 cubic yards of material.
    Under the terms of said contract the claimants were entitled to compensation at the rate of 13 cents per cubic yard for the material placed in said fill, “to be measured in the bank after the filling material had been deposited back of the pier.” On the 16th day of February, 1891, said fill was completed in all respects according to the contract, and the officers and agents of the United States in charge were so notified and requested to measure and estimate the same at that time, which they failed to do. Afterwards, to wit, in the months of March, April, and May, 1891, the fill was again leveled off neat and smooth, in accordance with the contract, and filled 2 feet higher than the level of the top of the pier, the filling and leveling off having been done in accordance with the direction of the engineers in charge and under their eye, and they were each time requested to measure the same and make out an estimate with a view to payment therefor. The said engineers in charge failed to measure and estimate said fill, as required by the contract to do, “when the material was placed there,” and refused and neglected to make said measurement until the 5th and 6th days of June, 1891, and after the said fill had had many months, including the seasons of the spring rains and thaws, within which to settle into the mud and water which composed the greater part of the bottom of the fill. According to said measurement thus_ made, after it had so settled as aforesaid, and the estimate based thereon, there remained due the claimants in addition to that which had been before esti-matedbut 4,777.3 cubic yards, which, at 13 cents per cubic yard, amounts to $621.05. This estimate so made claimants disputed and refused to accept, for the reason that the measurements and estimates were not made in accordance with the contract, which required that the measurements should be made “when the material was deposited,” and not after the expiration of such time as, in the opinion of the engineers in charge, it had had sufficient time to fully settle, and because the final estimate was not correct, and no sufficient allowance had been made for shrinkage. The computation of,the volume of filling required was made from surveys, the soundings for which were taken to, but not into, the bottom, by the engineers of the United States.
    Making due allowance for the kind of material necessarily deposited during the winter season, and excluding material not properly classed as earth, the claimants have not been paid for 15,261 cubic yards of material deposited under the contract, for which they are entitled to 13 cents per cubic yard, aggregating $1,983.54.
    XX. Within the time limited in said contract, and of the extensions thereof granted by the United States, and without any notice of any intention to annul said contract and forfeit such sums as might be due or become due claimants, but while the same was in full force and effect, and in accordance with and under the eye of the engineers in charge of said work, the claimants completed the work undertaken by them in all respects strictly in accordance with the contract, and the same was accepted, measurements made, and estimates submitted by the engineers in charge to their superior officers, and payments made on said estimates, less reserve percentages, except the final estimate, which was reported April 6,1892, under measurements made by the engineers in charge and submitted to the engineer in charge of the work. Said completed work was turned over to the United States as completed according to the contract on the 15th day of June, 1891, and immediately accepted and taken charge of by one of the officers and agents of the United States in charge of said work.
    XXI. Upon the issues presented by the counterclaims of the defendants the evidence is insufficient to satisfy the court that the contractors carelessly and negligently, or in violation and disregard of their contract, shattered and broke the bed rock of the lock pit, but whatever rock was broken below the grade was done under and pursuant to orders of the chief engineer in charge of the work or because of the soft and friable nature of the stone, and after the work had been turned over as completed under the contract and accepted as satisfactory; that the contractors did carelessly an d negligently break an d destroy the face stones and other valuable stones in the old lock walls to the damage of the defendants $383.40; that the contractors did not fail, neglect, or refuse to complete the filling behind the Fort Brady pier as.required by the contract; and that the leak in tbe bedrock underlying the cofferdam was not due to the negligence of the contractors in the use of excessive charges of blasting powder whereby said bedrock was shattered and broken.
    The court decided as conclusions of law that the claimants were entitled to recover: On finding x, the sum of $8,507.45; on finding XI, the sum of $21,414.79; on finding xii, the sum of $9,542.40; on findings xm, xiv, and xv, the sum of $2,322.49; on finding xvi, the sum of $1,301.50; on finding xvii, the sum of $3,499.97;. on finding xvm, the sum of $200; and on finding xix, the sum of $1,983.54. The defendants, are entitled to recover: On finding xxi, the sum of $383.40. Deducting the amount due the defendants on their cross action, the net recovery of plaintiffs should be $48,388.74.
    
      Mr. 8. M. Stoolcslager, for the claimants:
    It having been provided in the contract that “ all the work under these specifications must be carried on under and in conformity with the direction of the engineer in charge” and that “the lock pit was required to be excavated to the width, length, and depth which the engineer in charge should deem necessary;” and it having been provided, also, that, “if in any event the party of the second part shall delay or fail to commence with the delivery of the material or the performance of the work on the day specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirement of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have the power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party or parties, or either of them, of the second part,” and no notice of intended forfeiture having been given by the United States, they will not now be heard to say that the work was not commenced and completed within the time agreed upon, or that it was not faithfully and diligently prosecuted under and in accordance with the direction of the engineer in charge and according to the contract. (Dales Case, 14 C. Cls., R., 515; Merriam, 20 C. Ols. R., 290; Buvcil, 25 C. Cls. R., 27; Langford, 12 C. Ols. R., 338; same, 25 C. Cls. R., 401.)
    As to Fort Brady fill the amount due the contractors depends upon tbe proper construction of the paragraph in the specifications as to the time and manner of making the measurement by the engineers in charge. The specification referred to requires the fill to be measured in the bank after the filling material has been deposited back of the pier. This language is so plain that it does not seem to require construction by the court. The plain import of the language is that it is to be measured as soon as it has been deposited back of the pier and the engineer in charge notified of the fact. If it had been intended that the engineer must wait one month or six months or any. other period for the fill to settle before the measurements could be made, the parties would have so provided in the contract. {Ciarle v. United States, 73 U. S. E.; 6 Wall., 543 cited 7 o‘. Ols., E., 24.)
    If the language was open to construction, it should be construed most strongly against the United States, as the contract and specifications were all prepared by the officers and agents of the United States. (Oriental Mutual Insurance Company v. Wright, 1 Wall., 456; Garrison v. United States, 7 Wall., 688; Simpson & Go. v. The United States, 31 C. Ols. E., 217.) The evidence proves, and the engineer admitted, that at his direction the fill was made two feet higher than the contract required, in May, 1891, upon his construction that the contract required the fill to be as high as the top of the pier after it had thoroughly settled, and he declined to measure it until, in his opinion, it had so settled. Eut if our construction of the contract is correct, and it was the duty of the United States to measure it when it was thus deposited, and the engineer notified, then the contractors are entitled to pay not only for filling to the required height, but for the two feet additional material deposited under his direction, as the contract and specification required that it should all be done upon the inspection and by the direction of the engineer in charge. That this ivas necessary and proper, although not provided for in the contract in terms, except as it is provided that the fill shall be made under the direction of the engineers in charge, and the United States got the benefit of it, the contractors should be i>aid for it.
    As to the damages which were the result of the delays caused by the United States, the rule is well settled that the United States are liable, the same as an individual would be for an improper interference with the work of the contractors. (United 
      
      States v. Joseph Smith, 94 U. S. R., 214;, Corliss Company Case, 10 C. Gis. R., 494; Kelley & Kelley v. The United States, 31 C. Cls. R,, 361.)
    It is also settled that they may recover as damages losses sustained by them and profits which they would have made, if they had been permitted to perform without interference. (Mgh v. United States, 8 0. 01s. R., 319; Ed. H. Skelsey et al. v. United States, 23 0. 01s. R., 61; L. & K. By. Co. v. Hollens-haeh et al., 106; Indiana 137, and eases there cited.)
    In the case o'f Eigh v. United States [supra), this court held that the rule laid down by the Supreme Court of the United States in the case of Washington and Baltimore Railroad v. Howard (13 Howard, 344) and-in Speed’s Case (7 0. 01s. R., 93), while a just rule in those cases, does not accurately measure the damages in a case where the contract was not rescinded or annulled, but where the contractors performed notwithstanding the delay.
    “ Besides, the delay caused by the suspension pushed the execution of the contract over into a more inclement season when it was more difficult to perform the work, and when the cost of material, wages of labor, freight, etc., were much higher than they were when the work was suspended. All these and such like elements enter into the consideration of damages; and in this case, the increase in the wages of labor, cost of materials, etc., must be understood as constituting a part of the direct damages.”
    The contractors in the case at bar make no charge for their own services or the services of their hands or teams during the various periods of suspension, but seek to recover the actual loss to them in taking out this material by hand, and in a frozen condition, together with the profits which they would have derived if they had been permitted to execute their contract without interference on the part of the United States.
    We think it is clear that when the United States agreed to do the pumping required to sufficiently free the lock pit from-water, and that for this purpose the engineer in charge would locate the position and determine the dimensions of all wells, .reservoirs, and draining ditches, when it would be the duty of the contractors to excavate them, it would be a breach of the contract on their part if they failed and refused to locate such reasonable number of wells and pumping stations as might be found necessary from time to time to free tbe lock pit from water without requiring the contractors to go to unreasonable and unnecessary expense in the excavation of ditches and drains to reach such well or wells.
    The supreme court of Pennsylvania held:
    “In an act exempting from taxation ‘all colleges, with the ..grounds annexed and necessary for the enjoyment of the same,’ •J the word ‘necessary’ as used in jurisprudence imports not an absolute, but a reasonable necessity.”- (North Hampton Go. v. Lafayette College, 45 Leg. Int. (Pa.), 246.)
    In Chalcraft v. Louisville, etc., B. Go. (113 Ill., 88), the supreme court of that State held:
    “An Illinois statute provides that every railroad corporation shall construct farm crossings ‘when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroads,’ the word ‘necessary’ was held to be equivalent to ‘reasonably convenient.’”
    To the same effect is the case of Detroit, etc., B. B. Go. v. Detroit (Michigan, 1890), 46 N. W. Pep., 12.
    As to all of the damages to the contractors necessarily resulting from the leaking and final breaking of the cofferdam, we think there can be no question but that the United States are liable.' It was their duty according to their undertaking to close the cofferdam which they had constructed, pump out the lock pit when notified to do so, and protect the contractors and their plant from water. That they failed to do this is conceded by all of the witnesses on the part of the United States, as well as by the report of Col. O. M. Poe, the engineer in charge. That this constitutes a breach of the contract for which the claimants are entitled to recover is settled by this court in the case of Dd. H. Slcelsey et al. v. United States (23 C. Cls. B., 61).
    
      Mr. George II. Gorman (with whom was Mr. Assistant Attorney- General Pradt) for the defendants:
    The contract is plain and absolute in its terms that no excavation was to be made below grade, and that if any is made the grade shall be restored to its proper limits and concreted at the cost of the contractors. To this provision there is no reservation or exception concerning the character of the rock, and we have before us precisely the same legal proposition as was before court in Simpsons Gase (31 C. Cls. B.), and which has so often been before tbe court, wherein the contractor has contracted absolutely to do a certain thing and has been held to be required to do it, whatever may have been the misfortunes or increased cost of the work — as, for example, the case of Dermott v. Jones (2 Wall., 1), where the contractor covenanted to erect a house, and when the same had been partially completed it fell by reason of inhereut defects in the soil and the contractor was required at his own cost and expense to reconstruct the same.
    Of course these, recommendations of the engineers can in no wise bind theUnitedStates in this litigation. (Waters v. United States, 4 O. Cls. B., 390-391; Whitesides v. United States, 93 U. S. B., 247.)
    I most earnestly submit that there can be no recovery whatever for the excavation of material beyond the sum of 43 cents per cubic yard, the contract price, which has already been paid to tho claimants for each and every yard excavated, for the reason that the written contract remained in full force and effect, unaltered either in parol or in writing.by the consent of the parties, and that the work done was done under the contract without any modification; and hence, the claimants having executed the contract and received the contract price, it is now too late to disregard it and sue upon a quantum meruit.
    
    This provision of the contract is almost identical with that of the regulation which formed the basis of the contract in Garlinger’s Case (109 U. S. B., 316).
    But even if it be conceded that the order of July 17, 1889, was a violation of the claimants’ right and was a breach of the contract on the part of the defendants, still there can be no recovery, for the reason that the express contract has never been rescinded, altered, or modified by mutual consent, either in writing or by parol, but, on the contrary, subsisted at all times, and has been fully executed by the claimants, and the claimants having executed this contract and having received the full contract price for the work, can not now set it aside and sue upon a quantum meruit. If, as is contended, the order of July 17,1889, was a breach of the contract on the part of the defendants, then it became and was the duty of the claimants to do one of three things: (1) To treat the contract as at an end and sue for their damages, or (2) to enter into a written agreement with the defendants for the increased cost of the work, in accordance with the above-quoted clause of the contract, or (3) to go ahead and complete the work, notwithstanding the defendants’ breach.
    There is no pretense that the contract was ever modified, with regard to the price to be paid for this work, by mutual consent, either in writing or orally, nor is there any evidence to show that the contractors ever notified the agents of the defendants that they considered their act a breach of the contract, that the claimants regarded the contract as at an end, and that thenceforth they were performing this w_ork, not under the contract at contract rates, but upon a quantum meruit. On the contrary, they went on as though nothing had happened, doing the work under the contract, and, so far as the defendants knew, at the contract rates, which have been paid them in full for the entire excavation. This, I submit, was a waiver of whatever rights they may have possessed by virtue of the defendants’ breach of the contract, and it is now too late for them to seek to set aside the contractural provisions and to sue as upon a quantum meruit. Says Bishop on Contracts (sec. 792):
    
      u Waiver is where one in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterward.”
    And when this waiver is the result of the exercise of an election whereby the rights of the other party are affected or his conduct influenced so that something is done or left undone by the other party as a result thereof, then the waiver becomes binding as an estoppel, and, as Bishop says, “ he is precluded from claiming anything by reason of it afterward.” This principle has been applied in the law of contracts so often that it has become oné of the most familiar topics of the law relating to those questions. A good example of it is to be found in the case of Slum v. Turnpike Company (3 Pa., 446); and so in the case of McGrann v. B. B. Co. (29 Pa. State, 82-91); Merrill v. B. B. (16 Wend., 588); McCoombs v. McKerna/n (2 W. and S., 216); Boutwell v. O’Keefe (32 Barb., 434); Kaioldns’ Case (96 U. S. R., 689).
    See in further support of these doctrines Ladd v. Franklin 
      (37 Conn., 62), Westonv. Davis (24 Maine, 374), GlacinsY. Black, (50 N. Y., 145J, The Mayor, etc., v. Bsclibach (18 Md., 276).
    There is nothing in this record to show that any verbal agreement was ever made between the claimant and any agent or officer of the United States looking to an increase of pay over the contractual rates. But even if such an agreement had been had between the parties, it would have been utterly void and without effect — first, because the contract expressly provides that such increase in cost shall not be made or granted unless the same has been reduced to writing and signed by the respective parties prior to the incurring of the obligation (see Bee., p. 18, bottom; p. 19, top); and this court has held in numerous instances that such provisions in contracts of this character are absolutely binding, and that unless the increased cost is first agreed to in writing in the manner provided for in the contract no recovery can be had upon it. (See Terris v. United States, 28 O. Ols. B., 332; Simpson v. United States, 31 O. Ols. B., 217.)
    Second. Such verbal agreement, if had, would be of no binding force, for the reason that the law expressly prohibits it. It is provided in section 3744 of the Be vised Statutes that—
    “It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the Government, or any of their officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof.®
    Under this statute this court has held (Jones v. United States, 11 C. Gis. B., 33) that this act is a statute of frauds as clearly as ic the statute of 29 Oar. II; that both have the same purpose and aims, the same means, and are subject to the same rules of construction, and that both statutes require certain contracts to be in writing for reasons of public policy; that this requirement necessarily excludes an unwritten alteration or substitution for the original written contract. To the same effect is the decision of this court in Henderson’s Case (4 C. Cls. B., 75), where it is further said that the provisions of this act are mandatory, and that it is as much the duty of the contractor as of the officer to see that this requirement is fulfilled, and that unless such contracts are reduced to writing and signed by the parties with their names at the end thereof, such contracts will be absolutely void and in no way binding’ upon the United States. This doctrine is reasserted and reaffirmed by this court in the late case of Chapter of Calvary Cathedral v. United States (29 C. Cls. R., 269); and such has been the decision of the Supreme Court upon the same point, affirming the above-quoted decisions of this court. (See Clarlds Case, 95 U. S. R., 539,541.)
    Under contractual provisions of this character it has been uniformly held that the decision of the engineer can only be set aside where the whole record discloses that his decision was brought about by fraud, either actual or constructive, and that in the absence of fraud, or such gross error as would necessarily imply bad faith, the estimate of the engineer is final and conclusive and can not be reviewed by the courts. (Ogden v. United States, 60 Fed. Rep., 725, 727; Sweeney v. United States, 109 U. S. R., 618; B. B. v. March, 114 U. S. R., 549, 553; B. B. Co., v. Price, 138 U. S. R,, 185; Kennedy v. United States, 24 C. Cls. R., 139; Gilmore v. Courtney, 158 Ill., 432,437.)
    But aside from this there is another provision of the contract which would prevent the recovery here sought:
    “ The work must be begun before May 15,1889, and completed before June 1,1890. All cost to the United States resulting from any extension of the contract at the request of the contractors shall be determined by the engineer in charge, and shall be deducted from the final payment.”
    Now, this alleged leak in the cofferdam occurred during a period of extension asked for by the claimants, as will be seen by reference to the letter of Colonel Poe addressed to the contractors, dated May 31,1890 (Rec., p. 568), and of the same officer’s letter to the contractors, dated December 5*1890 (Rec., p. 570), in which the claimants are advised that their application for an extension has been granted. Therefore, under this provision of the contract the United States are entitled, to recover from the claimants “ all cost resulting from any extension of the contract at the request of the contractors,” and, inasmuch as this leak occurred during such an extension of the contract at the request of the contractors, the Government is entitled to recover whatever cost resulted to them by reason of it — that is to say, the amount which was paid by the United States to the contractors for labor and materials in repairing the cofferdam after this leak occurred, amounting to $3,824.06, as shown in Exhibit F of claimant’s petition.
    Nor can there be any question of the right of the Government to recover this amount from the contractors, notwithstanding its payment to them by the accounting officers under a misconstruction of the contract. The right of recovery of money erroneously paid by officers of the United States has been settled by the Supreme Court in the case of Wisconsin Central It. B. Co. v. United States (164 U. S. R., 190), where it is held that the action of executive officers in matters of account and payment can not be regarded as a conclusive determination when brought in question in a court of justice; that the Government is not bound by the acts of its officers making an unauthorized payment under a misconstruction of law, and that parties receiving moneys illegally paid by a public officer are liable ex aequo et bono to refund them.
    The contractors refused to dig the drain, notwithstanding they had agreed to do so, giving as the reason for violating the contract their own convenience, and not offering any other. They then proceeded to drain the pit in a manner to suit themselves, and to do their own pumping, and they now ask to be reimbursed for the cost which has accrued to them in this violation of their contract; and in support of this demand their counsel enters into a lengthy discussion of the definition of the word “necessary” as contained in the foregoing clause of the specifications, and arguing that the word there means such drains as are reasonably necessary, and that this court is to take cognizance of the degree of necessity which existed.
    The word “ necessary” became the subject of judicial interpretation by the Supreme Court of the United States in an opinion by Chief Justice Marshall in the celebrated case of McCollough v. Maryland (4 Wheat., 315,413). The decision arose over those words of the Constitution granting to the Congress power to pass all laws which are “necessary and proper” to carry into execution the powers conferred upon it by that instrument. It was contended that these words carried with them the right only to pass such laws as were indispensably requisite or absolutely necessary for the accomplishment of the desired object, but the court held that if the object be within the scope of the Constitution all measures which are appropriate to that end may be employed to carry it into effect, and that the degree of its necessity is to be determined by the Congress alone, and that when the Congress has determined that degree the court can not review its decision.
    These remarks of Chief Justice Marshall were subsequently affirmed in the opinion of the court, delivered by Mr. Justice Cray, in the Legal Tender Gases (110 U. S. It., 421, 440, 441), where the same construction was given to the word “ necessary.” And in Union Pacific B. B. Go. v. U. 8. (20 C. ,01s. It., 70,108-109) these cases are extensively quoted from, and the word “necessary”in the Thurman Act is construed in accordance with these views.
    In the case of Olmstead v. Proprietor of Morris Aqueduct (47 N. J. L., 311, 329) the above-cited cases were followed and approved in the construction of the word “necessary” in an act which gave authority to corporations to condemn such lands “as may be necessary for its purposes,” and the court held that while the courts had authority to determine whether the land taken was taken for a public use, yet if the land was taken for public use the extent to which it shall be so taken and the degree of necessity which existed therefor is a matter to be determined entirely by the corporation and can not be reviewed by the courts. To the same effect see Thayer v. Sedges (23 Ind., 141).
    It has been held repeatedly that the court' can not review the estimate of the engineer in the absence of proven fraud or of such gross error as necessarily implies bad faith; and the mere fact that the court would, if it had been acting in the place of the engineer, have arrived at a different conclusion or made a different estimate will not justify the setting aside of the conclusion or estimate which the engineer did make, in the absence of fraud.
    
      (Ogden v. United States, 60 Fed. Rep., 725, 726; Siveeney v. United States, 109 U. S. R., 618; Bailroad v. March, 114 U. S. R., 549, 553; Bailroad v. Price, 138 U. S. R„, 185; Kennedy v. United States, 24 C. Ols. R., 139; Gilmore v. Gonrtney, 158 111., 432, 437.)
    The contract is plain and absolute in its terms that no excavation is to be made below grade, and if any is made the grade shall be restored to its proper limit with concrete at the cost of the contractors. To this provision there is no reservation or exception concerning the character of rock, and we have, therefore, the simple proposition of requiring a man to stand by the terms of his written agreement; to do the things which he has contracted to do.
    
      (Simpson v. United States, 31 O. Gis. R., 217; JDermott v. Jones, 2 Wall., 1; Satterlee y. United States, 30 0. Cls. R., 31; Gobb y. Hannon, 23 N. Y., 150.)
   Howry, J.,

delivered the opinion of the court:

This action arises from a contract for the construction of a lock pit for a new lock at St. Marys Falls Canal in the State of Michigan, for the recovery of $101,110.51 as damages for alleged breaches by the defendants of the agreement, and for extra services undertaken and performed and expenses incurred by plaintiffs, either at the instance of the defendants or because of the breaches alleged, whereby plaintiffs were obliged to perform the services and incur said expenses to carry out the contract. The defendants deny the grounds of action aside from retained percentages and some few items, and allege loss and damage to them arising from" breaches of the contract on the part of the plaintiffs, and plead counterclaims amounting to $89,159.50, asserting a general balance due the United States on a full statement of the account of $02,784.43, for which amount judgment is asked against the plaintiffs.

The case is before us by reference from the War Department under the provisions of section 1063 of the Revised Statutes.

The facts pertaining to the several items vary so greatly that they present several distinct causes of action, which is likewise true with respect to the items of the counterclaim. The demands of the plaintiffs are necessary to be considered with those of the defendants as the determination of the claims of the one party will have the effect of disposing of the claims of the other.

The contract and the specifications are set out in full in the findings. By these it appears a great public improvement involving the expenditure of a large sum of money was provided for, rendering necessary the investment of a large sum of money in the plant, appliances, and material, and in the employment of the necessary labor to do the work on the part of the contractors.

The first subject of contention is the demand of the contractors for the excavation of 9,262.33 cubic yards of rock at $1.33 per cubic yard, aggregating $12,317.90. This charge is made up by taking the amount of 3,262.58 cubic yards of rock excavation within the slopes and above grade and adding thereto the amount of 5,999.75 cubic yards of rock excavation below grade, the latter amount having been recommended by the defendant’s engineer, who allowed for rock excavated to a depth of 11¿ inches below grade. The recommendation being-rejected, the item must be considered on its merits.

The i>rincipal item of the counterclaim arises on the provision relating to the excavation of rock. This part of the cross action is a charge against the contractors for the cost to the United States in excavating rock alleged to have been shattered by the contractors below the grade and of replacing the same with concrete, which the defendants say amounts to $82,502.04. The issues on these respective demands present wide differences of much import and gravity.

By the contract the plaintiffs agreed to excavate and remove 108,000 cubic yards, more or less, of rock, bank measurement, at the rate of $1.33 per cubic yard. Under the head of “Excavation ” the specification provides that—

“ The lock pit must be excavated to the width and length and depth which the engineer in charge sliall deem necessary. * * * For this work the contractor will be paid by the cubic yard, measured in the bank. Care must be taken to leave the rock in the bottom of the completed pit undisturbed, and it must be dressed in a suitable manner to receive the timber and masonry of the lock. For such dressing the contractor will receive no extra compensation, and should he, by accident or otherwise, shatter the rock intended to be left undisturbed, he will be required to remove the shattered portions and replace them with masonry or concrete, all at his own expense, and subject to the approval of the engineer in charge.”

It is contended that this provision does not carry with it any responsibility to pay the contractors for rock excavated below grade, and if any such excavation was made the grade should be restored to its proper limit and concreted at the cost of the contractors. This defense rests.upon the charge that in blasting the rock of the pit necessary to be excavated the contractors negligently and carelessly used excessive charges of powder and shattered and broke the bed rock of the pit below tbe grade as fixed by the engineer in charge of the work, contrary to the provisions of the contract in that they failed and neglected either to remove the rock thus shattered and broken or to replace it with concrete or masonry. This, the defendants say, necessitated the subsequent employment of their own force or subsequent contractors at defendants’ cost to move the shattered rock below grade and replace the same with concrete, the cost of which became a charge against the contractors.

Aside from the charge of negligence and carelessness and the liability of the contractors to replace the excavated pit with concrete, the defendants further insist that upon any excavation below grade, for any cause whatever, the contractors can not recover.

This offset is not sustained by the findings. The excavation below grade was not the result of excessive charges of explosives, and the allegation of negligence and carelessness on the part of the contractors in the work of excavation is not made out. The contractors were without fault. In the final estimate of the amount due them the engineer supervising the work for the defendants allowed for excavating to a certain limit below grade. There were differences between the engineer and the assistant engineers as to the extent of the excavation and in the amount of the. allowance, but their reports and recommendations will not be noticed any further than to say that if the recommendation of the chief engineer should be followed plaintiffs would receive greater benefit than we find on the whole proof they are entitled to have; and while it is true the recommendations of the engineer and agents of the Government in the premises do not bind the United States, the reports of the engineer and his assistants emphasize the correctness of the findings which exclude any imputation of fault on the part of the contractors in excavating below grade, and which allow them fair compensation for such' material as they actually did take out.

There was a seeming necessity in the opinion of the engineer for carrying the excavation below grade owing to the friable nature of the strata and what the engineer styled the bad character of the stone at the bottom of the lock pit. The strata of rock dipped to the southwest, and the ledges not being horizontal and some of them soft and friable, the contractors were ordered, to remove rock until better strata were found. The work done under the order below grade was in excess of the 108,000 cubic yards of excavation estimated to the grade limit first fixed by- the engineers. In point of fact, no necessity really existed for excavating below grade, as, when the entire excavation had been made, a more secure foundation was not found. The pit at grade, it turned out, was as solid and in as good a condition to receive the timber and masonry of the lock (the contractors having dressed it) as the bottom below grade was found to be after the excavation.

In any event, if any necessity existed for an excavation below grade, that necessity did not arise from any conduct of the contractors. The work of excavation within grade had been completed and the pit, then in proper condition to receive the timber and masonry, had been turned over. It is true that no formal acceptance of the work was made, but without rejecting the same or giving notice of its not having been completed according to contract, the engineers commenced experimenting with the foundation, using the force of the contractors in blasting the bottom of the pit and removing quantities of stone. The contractors were subsequently ordered to work over this foundation and to excavate more of the stone. It does not appear that any other or further dressing beyond that given the crests at grade was necessary to receive the timber and masonry of the lock.

The contract contemplated no disturbance of the rock in the bottom of the pit. The agreement was framed on the idea that no necessity would exist to go below the grade. It imposed upon the contractors the obligation not to excavate below grade without directions, but if the rock intended to be left undisturbed should be shattered through design or accident on their part they were required to remove the shattered portions and replace these portions with masonry at their own expense. Thus the defendants secured themselves against any intentional or improvident excavation on the part of the contractors. It was the bottom of the pit within grade that was not to be disturbed, and which, on completion, was to be dressed if the excavation of about 108,000 cubic yards of stone left the bottom of this pit within the grade. Plaintiffs contracted with reference to the intention not to excavate below grade through fault of their own, and to bear the consequences if they did do so. But the defendants, notwithstanding the number of cubic yards estimated by the specifications, provided that any portion of the solid rock outside of the face stones of the proposed masonry might be retained undisturbed in place, diminishing to that extent the estimated amount of rock excavation and the expense of excavating any unnecessary amount, at the option of their engineers.

On the other hand, it was provided that the lock pit should be excavated to the width, length, and depth deemed necessary by the engineer to put in the foundations and walls of the proposed lock. The excavation below grade was accordingly made in compliance with the direction of the defendants’ engineer in excess of the 108,000 cubic yards contracted for, but not until the pit had been completed within grade, was in condition to receive the masonry and had been turned over to the engineer. With the excavation of 108,000 cubic yards of rock, more or less, bank measurement, the contractors became entitled to be paid the full contract price for that amount of material, if there was no disturbance of the rock in the bottom of the completed pit and this unbroken rock was suitably dressed to receive the timber and masonry of the lock. When the engineer excavated below grade to get a more satisfactory bottom, using the force of the contractors for that purpose, and removed quantities of stone from the bottom of the completed pit, the contractors were under no obligation to fill up or dress the excavated pit anew at their own expense, nor were they under obligation, free of cost to the defendants, to excavate below grade to procure a more satisfactory foundation. The provision which authorized the engineer to determine the width, length, and depth of the pit to put in the foundations and walls of the proposed lock is in the specifications, but this was not meant to compel the contractors to excavate within slopes and above grade at the price fixed by the contract and excavate without price at all below grade as far as the engineer saw fit to order them to go. It would be unreasonable to prohibit the contractors from excavating below grade and to impose penalties for their carelessness in doing so, and at the same time deny to them, without fault on their part in the matter of the, excavation, the right to compensation for obeying an order of the engineer involving the same or greater labor and cost to them in removing similar material below grade as that above grade in the face of the evident intent that there was to be no excavation below grade at all. It would be still more unreasonable in such case, unless they were at fault, to require them to restore the grade at their expense. The grade that was to be restored at their cost was over such excavation that they should make by drilling too deep or blasting too much and the like, and not such excavation as the defendants ordered to be made after the pit had been completed at grade and was already in position to receive the timber and masonry of the lock. The Government acquired no right when the pit was excavated as contemplated by the contract to compel the contractors to perform work below the grade in such manner as necessarily involved them in loss.

It is contended for the defendants that because there was no reservation or exception made concerning the character of the rock below grade the same legal proposition is presented in this case as in Simpson v. The United States (31 O. Cls. B., 217; Í72 U. S. B., 372). That was a case where under the contract the obligation was imposed upon a contractor to construct a certain dock according to specifications within a designated time for an agreed price upon a site selected by the United States. The court held that there was no warranty in favor of the contractor concerning the character of the underlying soil sufficient to sustain the contention of such warranty, and although the specifications contained a statement that the dock was to be built upon an “ available site, that word did not intrinsically imply any such warranty. The contract there required the contractor to construct a completed dock, ready to receive vessels as a dry dock, and to do ail necessary work and furnish all materials at a round sum. The defendants did not expect or promise to pay for a completed dry dock beyond the agreed price; the contractor did not intend to exact or receive pay in excess of the contract, as evidenced by their conduct. There was no fact arising in the course of construction from which an agreement to pay could be presumed, and not only was none of the extra work ordered by the defendants, but there was no change of plan. The case here is different. The contract contemplated a completed pit within grade; the number of cubic yards of rock required to be excavated had been taken out and removed; the pit had been suitably dressed to receive the- timber and masonry of the lock and was in possession of the engineer. The result of the excavation below the grade established the fact that the additional depth was not needed to obtain a better foundation than that obtained at grade, and the experiment of the engineer in ordering further excavations and making some of them himself can not be charged to the contractors. No request was made of the contractors to restore the grade with concrete or otherwise. On the contrary, they were ordered to quit work. In such case no damages can be recovered on a counterclaim, the contractors not being in default when ordered to suspend work. (Nourse v. United, States', 25 C. Oís. R., 8.)

A different question might arise as to the obligation of the contractors to restore the grade from the final excavations under different circumstances, but under the facts here that question does not arise.

On this demand plaintiffs are entitled to recover $8,507.45.

The retained percentages amount to $21,414.79. There is no substantial dispute over this item.

The next subject of contention arises upon a claim for $49,451.67, growing out of an order suspending the work of the contractors for the time set forth in the findings. This sum is made up of losses alleged to be sustained by the contractors and gains prevented to them whereby they were compelled to take out much of the earth (provided by the contract to be taken out) by hand, in winter, instead of with a steam shovel or excavator before frost, as they could and would have done if not hindered and delayed by the defendants. On this head the specifications provide in regulating the work that—

“The contractor will be permitted to do such portion of the work as he may desire before the cofferdam is closed. For this purpose an opening will be left in the lower part of the cofferdam of sufficient size to admit the passage of a dredge. Whenever the contractor notifies the engineer in charge in writing that he is ready to begin the dry excavation the L nited States will close the cofferdam and pump out the lock pit. The time occupied by the United States in doing this will be added to the contractor’s time for completing the work.”

By the contract, any changes or modifications in the project involving a change in the specifications as to character and quantity of labor and material as would increase or diminish the cost of the work was to be agreed upon by the parties in writing, with the reason for such change, and showing the quantities and prices of both material and labor thus substituted for those things named in the original contract, subject to approval by the Secretary of War; and extra work or material not expressly bargained for, it was further provided, should not be claimed unless such extra work or materials were expressed in writing by the defendants and prices and quantities first agreed upon and approved by the Chief of Engineers.

This item of the claim is not for labor growing out of any change or modification involving change in the specifications as to character and quantity. It is a claim dehors the contract upon a quantum meruit for such an interference with the work as caused loss and damage to plaintiffs while they were carrying out their part of the contract. They were removing earth at the rate of 1,000 cubic yards per day when they were obliged to discontinue this earth excavation with a steam shovel or excavator for such an indefinite period as to cause them loss. Their plant was in full and successful operation with a full complement of operatives when the order came to them to cease the further prosecution of the work with the steam shovel. The indefiniteness of the time stated in the order of suspension, though creating an additional hardship upon the contractors, did not relieve them from obeying. Had they continued the work of excavation with the steam excavator in the face of the direction to suspend they would have been in direct disobedience of the terms of the contract which required them to work under the direction of the defendantsengineers. The cause of the interference is set forth in an official report of the officers in charge of said work, dated April 16,1892, to the Chief of Engineers of the United States Army. This report alleges as a reason for the interference that the instructions to discontinue the work were given because of the condition of the cofferdam, which was then considered dangerous; and the object was to retain the upper gates of the lock of 1885 to serve as a dam in case the cofferdam should give way.

The direction to resume the work was given so as to require plaintiffs to proceed September 23, after the order to suspend in July. Cold weather had set in and the ground was frozen so that the steam shovel could not be used on the interdicted area. The contractors, however, protested, but undertook to do the work, as shown by the findings.

It is contended for the defendants that when the interference became effective the contractors should have treated the contract as at an end, or have entered into a written agreement with the defendants for the increased cost of the work, or have completed the work notwithstanding the breach.-

Without reviewing the many authorities cited in support of these propositions, many of which apply in case of changes of plan only, we think the contractors are entitled to recover the fair value of their services as upon an implied contract for a quantum meruit on account of this interference with them in the prosecution of their work.

It is well settled that for any improper interference with the work of a contractor the United States,, like individuals, are liable (United States v. Smith, 94 U. S. R., 214; Clarice v. The United States, 6 Wall., 546); and 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 (Smoot's Case, 15 Wall., 47; 17 ib., 592); and suspension ■ of work by contractors and subsequently resuming it where the Government suspended work under a contract gives the contractors the right to recover actual damages including the loss occasioned by the non employment of hands (Figh v. The United States, 8 O. Cls. R., 320); and if by the fault of the defendants the cost of the work or the materials has been increased to that extent the jury will be warranted in departing from the contract price (Dermott v. Jones, 2 Wall., 1); and when a party injured by the stoppage of work elects to rescind he can not recover any damages for a breach either for outlay or for loss of profits; he recovers the value of his services actually performed as upon a quantum meruit. There is then no question of losses or profits. But when he elects to go for damages for tlxe breach of the contract the first and most obvious damage to be shown is the amount which he has been induced to expend on the faith of the contract, including a fair allowance for his own time and services. (Kelly v. The United States, 31 C. Cls. R., 361; United States v. Behan, 18 O. Gis. R., 687; 110 U. S. R., 338,345.)

The order of suspension only prevented the contractors from using the steam shovel. There was nothing in the prohibitory order to prevent them from removing the piers, pier fillings, lock gates, and masonry. Under any circumstances the material outside of the earth could only be removed by hand, without any addition to the cost in September over the actual cost of doing so in July. The steam excavator was used exclusively in the removal of soft earth. The facts establish damages to the plaintiff's on account of the interference with the work at $9,547.40. This amount includes reasonable profits.

Damages are claimed in the fourth place, arising out of leak in the cofferdam, as follows: For extra cost of labor in cleaning plant, $1,229.45; for cost of repairs to plant, $993.15; for extra material used in repairing damages and for parts of plant destroyed, $4,257.76, and labor and material furnished the United States, $306.69.

By the contract, under the head of “Responsibility,” it was agreed:

“The United States will not be responsible for the safety of employees, plant, or material used by the contractor, nor for any other cause whatsoever, the failure of the cofferdam excepted.”

By reason of no unusual quantity of water, freshet, or other unlooked-for cause, the cofferdam leaked so as to interfere with the contractors at various times during the progress of their work, and on several occasions the leaks were of such magnitude as to require an entire cessation of the work. While the contractors had in the lock-pit area their steam and electrical plants and a large stock of appliances, fittings, tools, and materials, which they were obliged to have there, the defendants permitted the cofferdam to break and flood the lock pit with water and mud and other sediment, which was permitted to remain in the lock pit, and which submerged the machinery, fittings, tools, and appliances, to the damage of the plaintiffs, as shown by the findings.

The defendants concede that if the obligations of the contract impose liability on them in this behalf at all that the damages made out are as set forth in the findings.

The fact that the leaks in the cofferdam occurred during a period of extension of the contract at the request of the contractors, and that the repairs to the dam became a charge to the United States, does not relieve the defendants from liability on account of these damages, The items of damage on this part of the case aggregate $2,342.49.

The fifth cause of action is a claim for $3,461.99 for excavating washed-in material, the charge being that the earth was washed into the area to be excavated by reason of the break in the dam. The excavation of this washed-in material was the direct result of the break in the dam and the flooding of the area of the lock pit. The presence of the mud, sand, and other sediment prevented any prosecution of the work until it was removed from the area of the lock pit. The officers and agents of the United States in charge of the work instructed the plaintiffs to remove this material. It was deposited within the rock plane, but was not rock, and it would be going too far to estimate for the removal of this sediment at rock prices. The defendants concede 50 cents per cubic yard to be the reasonable worth of this labor, and the concession is adopted. This item, therefore, amounts to $1,301.50.

The sixth cause of contention grows out of an item for pumping, for which plaintiffs ask $3,499.99. The contract provides that—

“The pumping required to sufficiently free the lock pit from water will be done by the United States. For this purpose the engineer in charge will locate the position and determine the dimensions of all necessary wells, reservoirs, and draining ditches, whereupon it will be the duty of the contractors to excavate them. This excavation, when in material in situ, will be paid for as part of the excavation of the lock pit.”

The differences between the parties grew out of the unwillingness of the engineer to locate more than one well and out of his locating that well in a place substantially inaccessible.

The contention for the United States that where an instrument provides that one party shall have power to do things which are necessary to the accomplishment of a given object, the degree of necessity for the accomplishment of this object is a thing to be determined by the party himself and his decision upon that necessity can not be reviewed by the courts, can not apply under the terms of this contract and the action of the engineer officer thereunder in relation to the pumping. If the engineer in charge had the sole right to determine the necessity for a given drain or well, whose judgment when exercised could not be the subject of review, then the one party has retained, and the other party has conceded, in the matter of the location of the wells and drains, the right of the one to exercise an arbitrary discretion to'the prejudice of the other and regardless of the effect upon the rights of the other. That we do not think was done under this contract, which contains mutual and dependent covenants.

That more than one well, reservoir, and drain was to be constructed is apparent from the specifications. Nevertheless, the engineer in charge located bnt one well and directed the construction of drains with reference to but one well.

And this one well was located 300 feet east of the east end of the lock pit and the contractors were required to dig a ditch the entire length of the pit to the well in order to drain the lock pit. This would have required a ditch some 50 feet deep most of the distance and about half of it through rock. To have thus constructed a drain through material of that character for something like 1,100 feet would have required as much time as it would to have excavated the whole lock pit, and even if excavated as ordered it would have been impossible to have kept such a ditch (running the whole distance through the lock pit) open so as to carry water to the well. Under other provisions of the contract plaintiffs were under the necessity to remove material in the lock pit, and it would have imposed upon them the additional unnecessary burden to require them to dig a ditch of the depth and dimensions mentioned and at the same time compelled them to remove the additional material. The location of one well at the place indicated by the findings was the practical annulment of the contract to locate the necessary number.

Several well-considered authorities are suggested which in effect hold that in cases like this a reasonable number of wells at reasonable and convenient places are necessary so as not to impose unnecessary costs and burdens upon the other party to the contract, {dialeraft v. Louisville By. Go., 113 Ill., 885 LforJi Hampton Go. v. La Fayette College, 45 Leg. Int. (Pa.) 246; Detroit, etc., B. B. Go. v. Detroit {Mich.), 46 N. W. Bep., 12.)

Under any view that may be taken of the matter it was the duty of the defendants to locate a reasonable number of wells— how many we can not undertake to say — but certainly more than one well. The defendants having failed to do so, and the contractors being obliged to do the necessary pumping at a cost to them of $3,499.97, we think this item should be allowed.

The next item claimed is $200 on account of damages from leak in the cofferdam. This item stands upon the same footing as the fourth item and is allowed for the reasons set forth in the findings.

The eighth and last item in the claim is for the balance alleged to be dne for what is known in the contract and specifications as the Fort Brady Fill, the charge for the balance claimed being $3,967.99,

The contract provides:

“All materials furnished and work done under this contract shall, before accepted, be subject to a rigid inspection by an engineer appointed on the part of the Government, and such as do not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charged as to quality and quantity shall be final.”

The engineer decided adversely to the contractors on this item, which decision must stand unless impeached for fraud or mistake other than an error of judgment.

If the contract contained nothing else respecting the materials furnished and work done under the contract in filling this pier the contractors might be without remedy in this court. But the clause respecting the final decision of the engineer is not all.

The specifications provide:

“ The contractor will be required to place back of the pier to be built in front of Fort Brady 100,000 cubic yards of the excavated material,‘more or less. For a distance of 25 feet back of the pier the material must be rock. The remainder of the filling may consist of any of the excavated material except timber. The entire area between the pier and the bluff on the shore (having an average width of 100 yards) must be filled to the level of tlie top of the pier and surface to be leveled off neat and smooth. The space under the present Government dock also to be filled; for this purpose the planking will be removed by the United States. The contractor will be allowed to put in place such portions of the filling as he may desire before the pier is completed, provided that no part of such filling is placed less than 50 feet from the pier site. For the whole of this work the contractors will be paid by the cubic yard, measured in the bank after the filling material has been deposited back of the pier. * * * No payment will be made to the contractor for the removal of any ice or snow that may form or be deposited within the area referred to in these specifications.”

The differences between the parties on this item relate to the time when the estimates of the filling should have been made and the effect of the decision of the engineer of the defendants as to the manner of the filling. The engineer claimed that under the contract he was not required to measure the fill until it had done settling, in consequence of which he refused to measure it until about June 5, 1891, while the contractors claimed that the fill was completed according to contract in the preceding February, at which time the engineer was requested to make the measurement; that the fill was refilled under the direction of the engineer in March, April, and May, 1891, and its measurement requested by the contractors at each time, but these several requests were refused by the engineer on the ground that the earth had not fully settled.

The defendants concede 4,777.3 cubic yards not paid for, amounting to $621.05, according to the measurement made by the engineer under the contract in June, 1891, but they say that the cost of filling 7,000 cubic yards behind the pier at 35 cents per cubic yard, amounting to $2,450, constitutes an offset for what the contractors failed to do and perform in this behalf.

If the engineer officer proceeded upon a wrong interpretation of the contract or excluded from his calculations a factor of which the contractors were entitled to the benefit, the court will grant relief notwithstanding the provision that the decision of the engineer officer shall be final. The provision in the contract that “the decision of the engineer officer in charge as to quality and quantity shall be final” refers only to his measurement in point of fact and not to the principle Of law on which it is made, as it is the province of the court to determine the law of the contract. (Lyons v. The United States, 30 O. Cls. B>., 353,365; King Iron Bridge v. St. Louis, 43 Fed. It., 768.)

The work to be done by plaintiffs on this head required them to fill in front of Fort Brady 100,000 cubic yards of excavated material, more or less, at the rate of 13 cents per cubic yard. The entire area between the piers and the bluff on the shore was to be filled to the level of the top of the pier and the surface leveled neat and smooth. The contractors placed back of the pier 110,840 cubic yards of material. For the whole of this work the contractors were to be paid by the cubic yard measured in the bank after the filling material had been deposited back of the iner, but no payments were to be made to the contractors for the removal of any ice or snow that might form or be deposited within the area referred to in the specifications.

It is assumed for tbe defendants that the shrinkage arose from the melting of the ice and snow which was deposited behind this pier along with the other material.

It does not appear how much of the excavated material deposited back of the pier in front of Fort Brady consisted of ice and snow. We are left to infer from the contentions of the defendants that whatever shrinkage there was at that point must have been caused by the melting of the ice and snow necessarily deposited there because most of this filling was done in the winter time when the earth was largely mixed with that material.

Making due allowance for the kind of material excavated in all the seasons and deposited back of the pier in the fill and excluding from the calculation the ice and snow, the usual rule prevailing among ordinary contractors in cases of shrinkage would seem to be the rule necessary to be applied where the contract is silent as to the extent of the allowance for shrinkage of the deposited material.

A considerable part of the fill was made in some 23 feet of water, but portions of the earth washed out through the cribs. The engineer estimated that over a space 1,400 feet long and 43 feet wide the fill would sink in the mud at an average depth of 1 foot, which they estimated to the contractors. This estimate was made without any examination of the bottom of the fill, and was at best but a mere guess. In this condition of affairs an accurate measurement of the number of'cubic yards indicated for payment by the contract would seem to be the number deposited according to an agreed account of the number of cars dumped and the quantity which each car held. The quantity thus ascertained by the parties was 110,840 cubic yards.

It is well settled that parties who contract on a subject-matter concerning which known usages prevail by implication incorporate them into their agreements if nothing is said to the contrary. (Robinson v. United States, 13 Wall., 366; Ohateau-gay Iron Co. v. Blake, 144 U. S. B., 476.)

It was not the continual filling of a definite space, but the cubical contents of the proper material furnished, delivered, and deposited in the area to be filled to the level of the top of the pier which afforded the criterion for the measurement. The contract provided for the payment of every cubic yard of proper material so furnished, delivered, and deposited. Properly interpreted, it allows for shrinkage if the same was not the result of the deposit of ic© and snow. It can not be construed to mean that the measurement should be made immediately upon the deposit of the material, considering the time of the year when the deposit was made, without taking into the account the probability of the presence of some ice and snow. On the other hand, it does not mean that the defendant should unreasonably delay the measurement so as to exclude an allowance for the permanent shrinkage of the proper material required to be deposited. This part of the case is almost identical with that of Olarlce v. United States (6 Wall., 543), in which the Supreme Court said that where one party agrees to build an embankment for a certain sum per cubic yard, at such places as he should be directed by another, and the place selected by this other was such that there was a natural settling of the batture or foundation while the embankment was building, and a consequent waste and shrinkage of the embankment, any system of measurement which did not allow for the embankment which supplies the place of the settling is not a correct one, and if the system of measurement resorted to did not enable the engineer to compute accurately or approximately so, some other system should have been adopted.

In this case the contract provides for 100,-000 cubic yards of material at a place mentionéd. The specifications were framed on the idea'that about that number of cubic yards of material would enable the contractors to level off the surface of the top of the pier within the area described. The Government agreed to pay by the cubic yard on the estimated quantity of proper material. During the construction of the pier it was discovered that portions of the fillings had settled into the water and washed out through the cribs. When the fill was supposed to be completed the engineer was required to measure and estimate the amount of material deposited. The officer failing to do so, more material was deposited in the fill by the contractors and the surface again leveled smooth by them, as shown in the findings. It is difficult to determine with precision just how much of the material was lost by the action of the current and how much was due to natural shrinkage, but making due allowance for the kind of material necessarily deposited during the winter season and excluding the matter not properly classed as earth, we find that the claimants have not been paid for 15,261 cubic yards of proper material deposited under the contract, which, at 13 cents per cubic yard, entitles them to recover the sum of $1,983.54 on this item. (Clarice’s (Jase, sufra; Lyon v. United States, 30 C. Cls. R., 353.)

The items allowed the plaintiffs aggregate $48,772.14. The third counterclaim of the defendants, amounting to $383.40, being allowed, the net amount of the allowance to the plaintiff's on their demands is $48,388.74, for which judgment will be entered.

Weldon, J., was not present when this case was heard and took no part in its decision.  