
    JOHN M. MUELLER v. THE UNITED STATES.
    [No. 11962.
    Decided May 26, 1884.]
    
      On the Facts.
    
    A contractor’s proposals offer to furnish building stone of different sizes at different rates; for stones from 150 to 200 feet, a certain price per foot; for stones above 200 feet, a greater price. Tbe defendant’s acceptance accedes to tbe terms for stones from 150 to 200 feet, but is silent as to stones exceeding '200 feet. The formal contract omits tbe limitation of 200 feet, and fixes tbe same price for all which exceed 150 feet. Tbe contract also binds tbe contractor to deliver stone “ at suoli times and in such quantities as may be required” by tbe other party. Stone is injured in tbe progress of tbe work and charged without objection to the contractor.
    I.The common-law rule that prior understandings of contracting parties are merged in tbe final contract cannot be strictly applied to government contracts required by law to be made by advertisement», bids, and acceptances.
    II.Though a formal contract provide that for stones whose dimensions exceed 150 cubic feet the price shall be $1.47 per cubic foot, yet if tbe proposals and acceptance show that tbe price was limited to stones running from 150 to 200 feet tbe intention of tbe parties will be deemed to have been expressed by tbe proposals and aecex>tance and not by formal contract.
    III. Settlements whereby defaced and injured stone is charged by one party to tbe other, who acquiesces and receipts in full for a balance, should not be disturbed unless tbe party giving tbe receipt can establish a mistake.
    IV. Tbe word “required” which occurs frequently in government contracts may relate to tbe wants of the service or to tbe unsettled purpose of tbe government. Where tbe provision.is to furnish stone “at suoh times and in such quantities as may be required,” tbe word must be construed to refer to tbe wants of the service. Therefore if tbe government cause delay by a change of plan, tbe contractor should recover bis damages. /
    
      The Reporters’ statement of the case:
    This action the claimant brought by the voluntary filing of his petition. The following are the facts as found by the court:
    I. Immediately prior to the 23d day of July, 1872, the United States, by the Supervising Architect of the Trearury, by public advertisement, invited proposals for furnishing all the dimension stone required for the construction of a building for the custom-house, post-office, &c., in Chicago, which advertisement contained the following provisions;
    “Sealed proposals will be received until the 23d day of July, 1872, at the office of the Supervising Architect, Treasury Department, for furnishing and delivering at the site of the proposed new United States Government building at Chicago,' Illinois, all of the dimension stone required in its construction. The species of stone from which, a selection will be made will be confined to granites, marbles, or sandstones, and the qualities especially insisted upon will be uniformly of color and texture and durability, and their capacity for working under the chisel or hammer; one sample 12 x 12 X 12, showing on each face a different kind of cutting, and on one the natural fracture of the stone, must be submitted in all cases.
    “About 260,000 cubic feet of stone will be required; the size of the stones cannot now be given, but will approximate 60 feet; the largest stones will not probably contain over 200 cubic feet.
    “The stone will be ordered on a schedule of net sizes in order that' the contractor may make proper allowances for cutting in the quarrying, and on this schedule payment shall be made.”
    July 23,1872, the claimant submitted the following proposal:
    “ Cincinnati, July 23d, 1872.
    “ I hereby propose to furnish dimension stone in accordance with the attached advertisement, delivered on the cars at Chicago, for the sum of one dollar and thirty cents ($1.30) per cubic foot for all blocks containing one hundred cubic feet (100) and under, and five (.05c.) cents extra per cubic foot for all blocks containing more than (100) one hundred cubic feet and less than (150) one hundred and fifty cubic feet, and (12¿) twelve and a half cents extra per cubic foot for all blocks containing more than (150) one hundred and fifty cubic feet and less than (200) two hundred cubic feet, and (25c.) twenty-five cents extra per cubic foot for all blocks containing more than two, hundred cubic feet. If I deliver the stone at the site of the building, an addition of (10c.) ten cents per cubic foot must be made to the above prices.
    “I can commence delivery of stone as soon as the contract is awarded me, and can deliver from (3,000) three thousand cubic feet to (6,000) six thousand cubic feet per week. The average stones produced from my quarry contain (100) one hundred cubic feet, but I can quarry blocks of any size that can be handled.
    “I am further prepared to comply with all the requirements of the advertisement; my stone is sufficiently known to need no reference.
    “John M. Mueller.”
    
      Claimant received tire following notice of the acceptance of his proposal:
    “Treasury Department,
    ■ “Office of Supervising Architect,
    
      iiA%ig. 26, 1872.
    “Sir: You are hereby notified that your proposal to furnish all the dimension stone that may be needed for the exterior of the new custom-house building to be erected in the city of Chicago, for the sum of $1.30 per foot for all stones whose schedule dimensions do not exceed one hundred cubic feet, $1.35 per foot for all stones whose schedule dimensions exceed one hundred and do not exceed one hundred and fifty feet, and $1.17J per foot for all stones whose schedule dimensions exceed one hundred and fifty and do not exceed two hundred feet — the stone to be delivered at the site of the building and in such quantities and at such times as the Department or its duly authorized agent may direct — is accepted.
    “A contract will be prepared and forwarded to you without delay, which you will please execute and return for the formal approval of the Secretary of the Treasury.
    ! ‘ Yery respectfully,
    “A. B. Mullett,
    . “ Supervising Architect.
    
    “John M. Mueller, Esq., '
    “ Cincinnati, Ohio.”
    September 2, 1872, a contract, in pursuance of said’advertisement and proposal, was made between the United States and the claimant, which contained the following:
    “ This contract made and entered intQ this second day of September, A. D. 1872, by and between Alfred B. Mullett, Supervising Architect of the United States Treasury Department, for and in behalf of the United States of America, of the first part, and John M. Mueller, of Cincinnati, Ohio, of the second part, to whom was awarded a contract for certain dimension stone required in the construction of the new custom-house, court-house, and post-office building at Chicago, Illinois, on his bid received under advertisement, and dated July 23, A. D. 1872, witnesseth:
    “ That the party of the second part covenants and agrees to and with the party of the first part to furnish from a quarry known as the California quarry, situate in the county of Adams, and State’ of Ohio, and from such part of the ledge of stone in said quarry known as the City Ledge as may be designated by the Supervising Architect .or his duly authorized agent, and deliver at the site of the afores aid b uildin g all of the dimension atone that may be required in the construction of said building.
    
      “And the party of the second part further agrees to furnish and deliver one hundred thousand cubic feet of said stone air the site of the said building on or before the first day of Janu-uary, A. D. 1873, and the remainder at such times and in such quantities as may be required by the party of the first part, or his duly authorized agent; and that the said stone shall be of the best quality to be obtained from the quarry aforesaid, and of uniform color, free from flaws, strains, or discoloring matter, and to the entire satisfaction of the party of the first part.
    “And the party of the first part, acting for and in behalf of the United States, doth covenant and agree to pay, or cause to be paid, unto the said party of the second part, or to his heirs, executors, administrators or assigns, in lawful money of the United States, the sum of one dollar and thirty cents ($1.30> per cubic foot for every cubic foot in stones whose scheduled dimensions do not exceed one hundred cubic feet; and one dollar and thirty-five cents ($1.35) per cubic foot for every cubic foot in stones whose scheduled dimensions exceed one hundred cubic feet and do not exceed one hundred and fifty cubic feet; and one dollar and forty-seven and one-half cents ($1.47£) per cubic foot for every cubic foot in stones whose scheduled dimensions exceed one hundred and fifty,cubie feet; the stone to be furnished according to schedule of net sizes to be furnished by the party of the first, one-half (£) inch to be added to said schedule sizes for every worked face for quarried dimensions.”’
    III. July 18, 1873, claimant entered into another contract with the United States, whereby he agreed to furnish the skilled labor, shops, machinery, &c., necessary to cut, dress, and box all the stone required for the construction of said building, which contract was in writing, and was duly approved by the Secretary of the Treasury August 6, 1873, and contains, the following:
    “ This contract, made and entered into by and between James C. Bankin,' superintendent of the construction of new customhouse, &c., at Chicago, Illinois, for and in behalf of the United States of America, of the first part, and John M. Mueller, of the city of Cincinnati, O., to whom was awarded the contract for supplying Buena Vista freestone for the construction of the new custom-house, post-office, &c., at Chicago, Illinois, on his bid for the same, received under advertisement, and dated July 23rd, A. D. 1872, of the second part, witnesseth :
    “ That the party of the second part covenant and agree to and with the party of the first part to furnish such number of' mechanics and laborers as may be required from time to time by the party of the first part and all of the tools and materials, necessary to cut, dress, and, if necessary, box all of the Buena. Yista freestone required for the construction of the new custom-house building at Chicago, Illinois, and to cut such stone in such manner and at such place as may be required by the party of the first part; and it is further agreed that all shops, sheds, aud machinery necessary to cut, dress, and box said stone shall be furnished by the party of the second part free of cost to the government. And it is further agreed that all materials required for the cutting or boxing of said stone shall be supplied only upon the requisition of the party of the first part 5 and it is also agreed that not less than two hundred and fifty stone-cutters, with the necessary complement of mechanics and laborers, shall be employed at any time during the progress of the work.”
    YI. During the performance of the contract of September 2,1872, claimant was required by the United States to furnish 49 stones, whose scheduled dimension's exceeded 200 cubic feet. The quarry dimensions (being one-half inch added to the schedule sizes for each worked face) of these 49 stones amounted to 11,033.7 cubic feet. He furnished also 16 stones whose schedule dimensions were less than 200 cubic feet, but whose quarry dimensions were greater. The aggregate quarry contents of the 49 stones and the 16 stones were 14,350 cubic feet. For all of these he has been paid at the rate of $‘1.47£ per cubic-foot quarry dimensions. The 49 stones above-mentioned were reasonably worth 25 cents more than $1.47¿ per cubic foot.
    YII. The stone produced by the quarry of the claimant, mentioned in the findings, was what is known as “ freestone,” and was more or less porous, and, as was well known to the agent of the United States at the time the agreement was concluded, had to be quarried a sufficient time before freezing weather to give it an opportunity to “ season ” or become dry, otherwise the stone was in danger of freezing and breaking, and would thereby become comparatively worthless. The quarrying season usually began about the first of May, and ended about the middle of October in each year.
    The “schedules of net sizes” of stones, which the United States agreed by the terms of the contract to furnish, were not furnished in the autumn of 1872 in .time, for the reason that the clerical force of the office of the Supervising Architect was insufficient. The claimant was urgent in his demands for the plans and schedules in order that he might get out the stoner for the building before cold weather should set in.
    
      From two to three months are required for seasoning stone ■of the character produced by the quarry of the claimant, depending somewhat upon the size of the stone.
    In the course of dealings with the contractor deductions were made from vouchers on account of loss of stock, loss of sawing, and loss of cutting, for which he had been previously paid. These deductions aggregated $6,062.92 as follows: Loss of stock, $3,005.41; loss of sawing, $860.10; loss of cutting, $2,318.38. When a stone was received it was inspected before it went to the cutters; if accepted Mueller was paid for it. After cutting it was again inspected, and if found badly cut the stone had to be replaced. To do this a deduction was made from the .next voucher of the cost of stock. If the cutting developed hidden defects, which rendered the stone unfit for the purpose for which it was purchased, the cost of cutting and the cost of stock were also deducted. Sometimes also stone when taken from the cars would look well, but when taken to the sheds for cutting manifested imperfections. Then the cost ofstock would be deducted from the next voucher. Eight or ten stone burst because quarried too late in the season. The dimensions of these are not ascertainable from the evidence. As they burst while in the rough and before acceptance they are not included in these deductions. No deductions were made for any stone furnished in the winter of 1872-’73.
    Four or five pieces of stone were broken after the stock and •cutting had been paid for, by reason of a thaw setting in and rendering uneven the frozen ground on which they were piled. That any deduction was made for these is not shown.
    The vouchers upon which the deductions were made each •contained a statement of the amount of the deduction, the number of feet for which it was made, and whether for stock, cutting, or sawing, the deduction was on the face of the voucher and showed the purpose for which it was made. The receipt at the bottom was signed by claimant without protest or objec-, tion, and was couched in the following language:
    “ Eeceived Chicago this-day of-, from--, the sum of [the face value of the voucher less the deduction] in full payment of the above account.”
    VIII. On the 13th May, 1875, claimant was directed to stop shipment of stone until further orders, and on the 15th he was directed to stop cutting. On the 25th May he was notified formally, in accordace with the,language of the contract, “that the party of the first part does not require that any more stock should be delivered at the present time. Whenever more is required 5rou will be notififed.” On the 16th of October, 1875, he was notified to resume cutting. In the summer and fall of 3877, when the work was nearing completion, he was directed to discharge workmen from time to time, so that the number was reduced below the minimum fixed in his contract. The work of sending forward stone was also resumed about the middle of October, and continued until about the 3st December. 'The second suspension lasted until about the middle of February. These suspensions arose from a well-founded doubt as to the desirability of completing the Chicago custom-house with the Buena Yista stone and on the site. Several commissions made lengthy and exhaustive examination of the foundation and stone, pending which the United States stopped the work. The damages resulting to the claimant therefrom were $20,000.
    IX. All stone furnished by claimant was delivered in accordance with schedules taken from the plans; these indicated the dimension of each stone and its location in the building. The receiving agent would take the schedule (or a copy) accompanying the shipment and check off the stones that corresponded to the schedule; any stones that did not correspond were not accepted. The schedule as checked off then was attached to and became part of the voucher., It does not appear that any stone tendered by claimant and accepted by the officers of the United States remains unpaid for.
    X. The approaches or steps leading up into the building required, according to the plans for said building, a large quantity of out dimension stone, to wit, 17,473.10 cubic feet, and although the claimant was able and willing to furnish the same under his agreement, the officers of the United States refused to permit him to furnish the same. But it does not appear that he made any proposition to furnish it. The defendants determined that granite would be more sutiable than sandstone for these approaches, and the amount required was furnished by other parties. If the claimant had been allowed to furnish sandstone he would have made a profit of $6,115.58.
    
      
      Mr. Enoch Totten for the claimant:
    If the government caused the contractor to ship “green” stone from Cincinnati in cold weather, or exposed it after it had been delivered, the damages should be borne by the government. (See Ash v. Town, 5 Wall., 689; Gibbons v. The United States, 10.) U. S.,200; Harvey v. The United States, 105 U. S., 671; 1 Parsons on Con., 483.)
    The petitioner is entitled to recover all damages brought upon him by the delays caused by the United States. (Harvey v. The United States, 8 O. Cls. R., 501; Tigh v. The United States, 8 ibid., 319; Smith v. The United States, 11 ibid., 707; same case affirmed on appeal, 94 U. S. R., 214.)
    By the terms of the cont' act for furnishing the material for the proposed building, the contractor “covenants and agrees to furnish * * and deliver at the site of the aforesaid building all of the dimension stone that may be required in the construction of said building,” and the invitation for proposals asks for bids for “all of the dimension stone required in its construction.” The proposal and the letter accepting it use similar language. It is, therefore, submitted that the United States, by making a contract in 1880 for the material for the aproaches, when the price of material had greatly depreciated, violated the agreement, and that the petitioner is entitled to recover the profits he would have made by furnishing the material for the approaches under his contracts.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    Claimant agreed to deliver all the dimension stone that might be required in such quantities as may be required by the Supervising Architect, or his duly authorized agent, and the United States agreed to pay him $1.47^ per cubic foot for every cubic foot in stones whose scheduled dimensions exceed 150 cubic feet. This we have done, and more than this we did not agree to do. (Harvey v. The United States, 8 O. Cls. R., 501; Brawley v. The United States, 96 U. S., 173.)
    The delay of the United States, which under all the circumstances was far from being unreasonable, may have wrought great injury to claimant, but it is difficult to see how, from any point of view, it was a breach of contract. (Chotean, v. The United States, 95 U. S., 61; Swift & Ge. v. The United States, 14 C. Cls. It., 208; Brawley v. The United States, 96 U. S., 168.)
    If a properly authorized agent has required of claimant stone for these approaches and then refused to accept without sufficient reason, the measure of damages is laid down in the case -of Bulklsy v. The United States, 19 Wallace, 37; Parish v. The United States, 100 U. S., 500.
   Sooeield, J.,

delivered the opinion of the court:

In 1872 and 1873 the claimant made four several contracts with the government to furnish and prepare the stone for the ■Chicago custom-house. By the first he agreed to furnish all the stone required in the rough. By the second he agreed to ■cut the stone for the basement story, sill, and lintel course. By the third he agreed to furnish mechanics, laborers, tools, shops, and machinery for cuttiug the stone, and cut the same. By the fourth he agreed to furnish labor, tools, and shop, and saw all the stone required to be sawed. All were completed.

In the progress of the work several disputes arose, which are now brought here for adjudication.

The first dispute relates to the price to be paid for sixty-five stones whose dimensions exceed 200 cubic feet each. The facts are presented in finding- VI. The claimant has already been paid at the rate of $1.47J a cubic foot. The contract provides that he shall be paid at that rate for all stones exceeding 150 cubic feet. The claimant insists that he was not bound to furnish stone exceeding 200 cubic ieet, and for such as he did furnish he should receive an advance in the price.

Considering that the cost of getting out and transporting stone of large dimensions increases rapidly as the size increases, it would seem unreasonable that there should be no limit to the size that might be demanded for the same price. Without a limit, claimant might be required to furnish stone containing 300 or 400 cubic feet, or as large as an ambitious architect might propose. The advertisement states ‘‘ the size of the stones cannot now be given; the largest stones will not probably contain over 200 cubic feet.” Claimant’s proposal, in reply, was to the effect that lie would “furnish the stones containing from 150 to 200 cubic feet at $1.47£, and 25 cents extra per cubic foot for all blocks containing more than 200 cubic feet.” The letter of acceptance says “$1.47J per foot for all stones whose schedule dimensions exceed 150 and do not exceed 200 feet.” If the advertisement, proposal, and letter of acceptance can be t.iken, it is quite evident that at least $1.72J was to be paid for these large stones.

By the common-law rule all prior understandings are merged in the final contract. That rule cannot be so strictly applied to government contracts, because they are required to be made by advertisements, bids, and acceptances. If this rule were to be strictly applied to such contracts, the agents of the government, having gone through the formality of advertising, could make important changes without submitting them to the publicity and competition required by law. In Harvey v. United States (105 U. S., 688-’89) the Supreme Court said :

“The written bid, in connection with the advertisement and acceptance of that bid, constituted the contract between the parties so far as regards the question whether the contract prices embraced the coffer dam work. (Garfielde v. United States, 93 U. S., 242; Equitable Insurance Co. v. Hearne, 20 Wall., 496.) The written contract, in that respect, was intended by both parties to be merely a reduction to form of the statement as to work and prices contained in the bid. If the formal contract is susceptible of a different construction, to the prejudice of the contractors, it is very plain that >uot only the contractors but the officers of the government were uuder a mistake.”

For the reason above stated, and under this ruling of the Supreme Court, we frel authorized, in order to ascertain the intention of the parties, to examine, in connection with the contract, the advertisement, proposals, and acceptance. From all these papers combined we derive the conclusions that it was the intention of both parties that all stone exceeding 200 cubic feet should be paid for at the rate of $1.72¿- a cubic foot. Of the sixty-five large stones sixteen were above 200 feet by quarry dimension, and below it by schedule dimension. By the contract the divisions by sizes were to be made according to schedule dimension. The sixteen stones must therefore be classed with those below 200 feet. With this view of the law, the claimant is entitled to recover $2,758.25 for the forty-nine stones, in addition to the amount already paid him.

A second dispute grows out of the facts presented in finding VII. In the several partial settlements with the claimant the defendants made deductions in his pay, from time to time, for broken, discolored, and imperfect stones, amounting in all to $6,062.92. The only question was as to whose fault occasioned the loss. Each party now attributes it to the other. We do not enter upon this inquiry because the parties appear to have considered and settled it for themselves at the time. The deductions claimed or agreed upon were put in the several pay-bills, and the claimant receipted them in full. These settlements should not be disturbed unless it appears that the parties made mistakes in fact, which is not shown.

A third dispute grows out of the facts stated in finding VIII.

During the progress of the work it came to be apprehended that a bad site had been selected, and that this kind of stone was unfit for such a building. About the middle of May, 1875, the work was stopped and an investigation made. About the middle of October following the work was resumed.

In the autumn of 1877 the work was'again suspended for the same reason, and resumed about • the middle of February following.

The court has found that'these delays resulted in a loss to the claimant of $20,000.

It is said that the defendants had a right under the several contracts to demand these interruptions. The clauses relied upon to sustain the position are taken from thte first’and third contracts presented in findings I and III respectively. In the first contract claimant agrees after the first 100,000 feet are delivered, “to furnish and deliver the remainder at such times and in such quantities as may be required by the defendants or their duly authorized agent.” In his third contract he agrees “to furnish such number of mechanics and laborers as maybe required from time to time” by the defendants and “to cut such stone in such manner and at such place as may be required by the defendants.” This word “required” in- similar connection occurs very often in government contracts. This court has had frequent occasion to pass upon its force and meaning. In some cases it has been held to relate to the wants of the service; in others to the unsettled purpose of the government. In this case we think it should have the former construction. In the erection of so large a building there must necessarily be occasional delays. One part must often await the progress of other parts. Unavoidable accidents will often for short periods of time delay the whole. Such delays would doubtless be protected by the quoted language of the contracts. In this case the delay was caused by a contemplated change of purpose. It was supposed that a bad site had been selected, and that the sandstone was not sufficiently ornamental or substantial for such a building. While the defendants deliberated the whole work was stopped. If this language would justify a delay of ten months for such a purpose, while the claimant waited with his labor, machinery, and capital, it would also justify a much longer delay, even to the practical abandonment of the work. (Figh’s Case, 8 C. Cls. R., 319; United States v. Smith, 94 U. S., 214.)

We think the claimant is entitled to his reasonable damages which is found to be $20,000.

The claimant alleges that a large amount of stone furnished by him and used in the building has not been paid for. The facts ,as stated in finding IX do not sustain this item of his claim. . •

Upon the facts presented in finding X the claimant demands a large amount of prospective profits. He had a right under his contract to furnish all the sandstone required for the building. The government determined to use a harder and more enduring material for the approaches to the building, and contracted with other parties to furnish granite. In this there was no violation of the contract.

Some other claims are set forth in the petition, but they were abandoned upon the trial.

Judgment will be entered in favor of the claimant for the sum of $22,758.25.  