
    THE PNEUMATIC GUN-CARRIAGE AND POWER COMPANY v. THE UNITED STATES.
    [No. 21034.
    Decided February 18, 1901.]
    
      On the Proofs.
    
    The contract requires the contractor to place the pneumatic system for mounting and working the turrets of the monitor Terror on board that vessel at the navy-yard at Boston. The apparatus is to be finished, so far as it can be, in the shop within six months and ready to be put on board. The defendants do not bring the vessel to Boston. They further delay the work from the 25th of April, 1888, until the 29th of May, 1897. It appears the contractor employed the South Boston Iron Works to construct the apparatus and that a large part of the delay occurred while it was in their works, and it does not appear that the contractor had paid the company therefor.
    I.Subcontracts are a common incident of building.
    II.A contractor may recover damages for delay caused by a defendant without first paying the damages sustained by his subcontractor.
    III. Where it is agreed that the defendants shall finish the work and charge the contractor with the actual cost thereof and they are guiltyof dilatory methods, the contractor can not recover where it is simply a matter of conjecture as to how much was properly expended and how much was caused by the defendants’ methods.
    IV. Where an account being stated, the Secretary of the Navy requires the contractor to execute a release for all manner of debts, dues, etc., and declines to approve any other release except such as is unconditional, full, and final, and the contractor executes the release, protesting, it must be held that the release does not extend to any matter which was not a subject of negotiation between the Department and the contractor.
    y. The head of an executive department can not impose terms upon a contractor which will deprive him of money due if he at the same time gives notice of his intention to insist upon payment. To make the release effective there must be a new consideration. Nothing can be treated as a consideration that is not intended as such by the parties.
    
      The Reporters’ statement of the case:.
    The following are the facts of the case as found by the court:
    I. The claimant is a citizen of the United States, and a body corporate duly incorporated 'under .the laws of the State of W est Virginia.
    II. On the 25th of April, 1888, claimant entered into a contract with the United States.for installing at the navy-yard at Boston, Mass., a pneumatic system for working the turrets and guns, steering, and refrigerating upon the United States monitor Terror, the material parts of which are stated in the opinion of the court.
    III. Immediately after-the execution of said contract, claimant proceeded to have manufactured at the city of Boston, by the South Boston Iron Works, a corporation organized under the laws of the State of Massachusetts, the machinery necessary for the installation of said system, as provided by said contract, and on the 25th day of October, 1889, the day of expiration of eighteen months from the date of said contract, the manufacture of said machinery was finished as far as the same could be finished in the shops until the arrival of the vessel and claimant was ready to deliver the same on board the Terror, and so notified the Secretary of the Navy. The claimant was aware of the unfinished condition of the vessel, but no notice was given to the claimant by the defendants of their inability to bring the vessel to the navy ward at Boston, Mass., and the claimant continued -to retain the machinery in its shops ready to be finished and fitted so soon as the vessel should be ready to receive it.
    IV. That on the 25th day of October, 1889, the Terror was at the Brooklyn Navy-Yard and not sufficiently advanced to warrant the removal of the vessel to the navy-yard at Boston, Mass., or to receive the machinery and workmen for the performance of claimant’s contract, and remained at Brooklyn not ready to receive said machinery and workmen until the 8th day of November, 1890, when, being still not sufficiently completed to be removed, claimant agreed to the following modification of its said contract by which it was to deliver said machinery on board the Terror at the Brooklyn Navy-Yard instead of at the navy-yard at Boston:
    “ Whereas it is provided in said contract that in accordance with the terms, covenants, and provisions therein set forth the Pneumatic Gun Carriage and Power Company shall furnish all necessary material and labor, and construct, erect, and connect in and upon the United States monitor Terror, at the navy-yard, Boston, Mass., all the machinery and appurtenances necessary to the complete application of the system of power known as the “pneumatic” system; and
    “Whereas the work in progress upon the United States monitor Terror, at the navy-yard, New' York, is not suffi-cently advanced to warrant the removal of the vessel from that yard to the navy-yard, Boston, Mass., for the purpose of having the machinery and appurtenances so erected, fitted, and connected on board said vessel; and
    “ Whereas the Pneumatic Gun Carriage and Power Company has, by its letter dated July 19th, 1890, hereto attached, proposed to transport from Boston, Mass., to the navy-yard, Brooklyn, N. Y., within 60 days from the date of the acceptance of such proposition, all the material and appliances necessary to the installation of the pneumatic system upon said vessel, and to proceed without delay, as the vessel may be made ready to receive the same, with the work of erecting, fitting, and connecting the machinery and appurtenances aforesaid, at the navy-yard, Brooklyn, New York:
    “It is hereby mutually covenanted and agreed by and between the parties-to the contract aforesaid:
    “First. That the Pneumatic Gun Carriage and Power Company will complete and deliver the machineiy .and appurtenances aforesaid and commence the erection, fitting, and connection of the same, in and upon said vessel, at the navy-yard, Brooklyn, N. Y., instead of at the navy-yard, Boston, Mass., within 60 days from date hereof, and will complete said machinery and appurtenances, and all other work required under said contract, ready for delivery to the United States on or before the expiration of six months from the date hereof in all respects except as herein provided, in accordance with the requirements, terms, and conditions of said contract of April 25, 1888, and subject to the provisions, extensions, stipulations, and penalties therein contained.
    “Second. That the United S ates, in consideration of the premises, shall pay to the said Pneumatic Gun Carriage and Power Company the actual cost of transportation of the said machinery and appurtenances .from Boston, Mass., to the navy-yard at Brooklyn, N. Y., and of such additional labor and materials as may be incurred by said compan}? by reason of performing the work aforesaid at the navy-yard, Brooklyn, N. Y., instead of at the navy-yard, Boston, Mass.; provided; however, and it is hereby mutually understood, covenanted, and agreed, that such additional cost shall not exceed the sum of eleven thousand five hundred dollars ($11,500.00). Payment of the cost of such additional transportation and additional labor and material shall be paid to said company as follows: The sum of five thousand seven hundred and fifty dollars ($5,750.00) to be paid when all of the said machinery and appurtenances shall have been delivered at the navy-yard, Brooklyn, N Y., and the balance of the cost as hereinbefore provided to be paid when said machinery, with its appurtenances, is completed, erected, and connected ready for use as required by the contract and specifications aforesaid.
    “Third. That the changes aforesaid in said contract dated April 25, 1888, shall have the same effect as if said changes had been incorporated in said contract between said company and the Unitea States.”
    *X* * * * * * *X*
    The use of plant in caring for the machinery from October 25, 1889, to November 8, 1890, cost the sum of $5,000.
    Y. That on the 8th day of January, 1891, claimant delivered all of said machinery at the navy-yard at Brooklyn and reported with a force of mechanics prepared to complete the work as provided in the original contract and the modification thereof. The vessel was not then sufficiently completed to receive all the machinery in its proper place. The general work of installation was begun, however, but the said claimant was delayed from time to time by the defendants because of the incompleteness of certain parts of the vessel and by reason of the interference of the workmen engaged in its construction. Said vessel could have been completed in time to enable plaintiff to proceed with the work of installing the machinery had defendants prosecuted with diligence work on the monitor. The hindrances and delays occasioned by the acts of the defendants cost the parties applying and fitting the machinery sums aggregating $9,612.88, which expenditures would not have been incurred had the contractor and its subcontractor been allowed to prosecute the work without interruption. Notice of these delays and interferences was given to the Secretary of the Navy.
    VI. A board of naval officers was duly appointed by the Secretary of the Navy November 20, 1894, to ascertain, estimate, and determine the actual cost of completing the work on the Terror required under the original contract; and under date of February 7, 1895, the said board reported to the Secretary of the Navy that — •
    “From an examination of the drawings in the possession of the board, the contract and correspondence furnished by the Department, and from an inspection of the machinery installed in the vessel, we find the following uncompleted work coming under the cognizance of the Bureaus of Ordnance, Construction and Repair, and Steam Engineering and Equipment.
    -X- * * * *
    Under cognizance of the Bureau of Ordnance. $4,498.00'
    Under cognizance of the Bureau of Construction and Repair... 3,185.00
    Under cognizance of the Bureau of Steam Engineering. 2,940. 00
    Under cognizance of the Bureau of Equipment. 930. 00
    Total. 11,553.00
    “Referring to the ninth clause of the contract, the board assumes that the expense of the successful trial of the system is to be borne by the Government.
    “We estimate, the time to complete this work at 70 working days. ”
    VII. It does not appear that plaintiff or its subcontractor were instrumental in the appointment of this board.
    VIII. On the 19th of February, 1895, claimant entered into' the following agreement with defendants, by which it was provided that defendants should complete the work of installing the machinery upon the Terror and charge the fair and reasonable cost thereof to claimant:
    “Memorandum of agreement relative to a change in the provisions of the contract dated April 25, 1888, between the Pneumatic Gun Carriage and Power Company and the United States, for the installation of the pneumatic system for working the turrets and guns and for steering and refrigerating upon the United States monitor Terror:
    “Whereas by the fourteenth clause of the contract dated April 25, 1888, by and between the Pneumatic Gun Cariage and Power Company, represented by the president of said, companjr, hereinafter called the party of the first part, and the United Statees, represented by the Secretary of the Navy, hereinafter called the party of the second part, for the installation of a pneumatic sj^stem for working the turrets and guns, and for steering and refrigerating upon the United States monitor Terror, it is provided that the contract price shall be paid in ten equal installments as the work progresses, with a reservation of ten per cent from each installment, and that the last payment shall not be made until said contract shall have been fully performed by or on the part of the party of the first part, and the machinery and appurtenances shall have been accepted by the party of the second part, as provided for in the tenth clause of said contract; and
    
      “Whereas it is provided by the tenth clause of said contract that said machinery and its appurtenances shall be accepted and final payment made, including all reservations, subject, however, to a special reserve of ten thousand dollars ($10,000), ■only upon fufillment by said machinery and appurtenances upon trial of the requirements and conditions of said contract; that said special reserve of ten thousand dollars ($10,000) shall be held by the party of the second part for a period of threé months from and after the date of the acceptance of the machinery, subject to certain conditions expressed, and that in case the system or the machinery shall fail to fulfill the requirements and conditions of the contract, the same may be rejected by the Secretary of the Navy, and shall in case of such rejection be removed by and at the expense of the party •of the first part, which party shall then restore the vessel to good and proper condition; and
    “Whereas there have been paid to the party of the first part, under the contract aforesaid, nine installments of the contract price, less the reservation therefrom of ten per cent, to be held by the party of the second part with the tenth installment of the contract price until the trial and acceptance •of said pneumatic system as provided for by the contract; and
    “ Whereas the progress of the work under said contract has been hindered and delayed by circumstances beyond the control of the party of the first part, such delays having been ■attributable in large measure to the failure of the party of • the second part to complete the work of construction of the hull of said vessel; and
    “ Whereas the party of the first part has informed the party •of the second part that its subcontractor, the South Boston Iron Works, is without financial means at this time to complete the installation of said pneumatic system, and requested the party of the second part to complete said work and charge the cost thereof to the account of the party of the first part in making settlement under said contract:
    “Now, therefore, in consideration of the premises, it is hereby agreed by and between the aforesaid parties hereto that the party of the second part shall furnish the labor and materials and complete, with due diligence and proper economy, the unfinished work required under the contract aforesaid in accordance with the contract, plans, and specifiations, employing in connection therewith Mr. It. A. Spiller, the engineer of the South Boston Iron Works, or such other person in that capacity as may be designated by the party of the first part, and charge against the party of the first part in settlement under its contract aforesaid the cost of such labor and materials, of which an accurate account shall be kept as the work is done, and all other expenses incurred by the party of the second part in the performance of the work covered by this agreement.
    “It is hereby further agreed by and between the parties hereto that the party of the second part does not assume and. shall not be charged by the party of the first part with the responsibility in any manner whatever for the success of said pneumatic system, or for the proper performance of the machinery and its appurtenances, except so far as the same may be affected by any defective workmanship or materials that may be employed or used by the party of the second part in the completion of the work as herein agreed upon, and that the party of the first part shall not by this agreement be relieved from any obligation or responsibility, or from the performance and fulfillment of any condition, stipulation, or provision imposed by or embodied in its contract aforesaid, and said contract, including such changes therein as may have been made heretofore, shall be and remain in full force and effect, except as herein expressly modified.”
    IX. Defendants took charge of said work on the 19th of , February, 1895, and it was not completed until the 29th of May, 1891, at a cost of 141,221.08. The evidence is insufficient to establish to the satisfaction of the court that the defendants did not complete the installation of said machinery with due diligence and proper economy.
    X. While the work progressed, after being well under way, some other changes became necessary to be made in the machinery to make it efficient and effective for the purposes provided in the original contract. The work was largely experimental in character at that time. Certain bearings were required to be fitted with such exactness of measurement that these bearings when fitted upon the monitor were only allowed to have a variation or play of two-thousandths part of an' inch to make the work under the contract entirely successful. It is usual in setting similar work to leave machinery about one thirty-second of an inch to work off in the fitting. This became especially necessary in fitting the machinery into the hull of the Terror. In adjusting the machinery and attempting to make it fit perfectly one machinist could work on but one piece at a time, thereby causing at such times the laying off of the helpers'to each machinist, and because of this fact, and the difficulties incident to applying and putting in proper place, correctly .fitted, each piece of machinery, and because of the changes rendered necessary, in the various parts of the work, claimants were put to some delay throug'h no fault of the defendants.
    XI. The evidence is insufficient to establish to the satisfaction of the court the payment of any sums for insurance or taxes on the machinery from October 25, 1889, to November 8, 1890.
    XII. On May 15, 1897, the claimant addressed the following letter to the Secretary of the Navy:
    “The Pneumatic Gun Carriage and Power
    “Company, Eoom 38, CorcoraN Building,
    “ Washington, D. G., May 15,1897.
    
    “ Hon. John D. LoNG,
    
      u Secretary of the Navy, Navy Department.
    
    “Dear Sir: The endurance trials of this company’s pneumatic system upon the monitor Terror having been completed, we are anxious to arrive at a final settlement with the Department under said contract. The statements of charges against the company by the various bureaus and by the authorities of the navy-yard, New York, have been received, and, together with our subcontractor, the South Boston Iron Works, we are preparing a statement of such of the items of said charges as we consider unjust or excessive. We are also preparing a statement of extra expenses incurred by the company by reason of the Department’s unreadiness and delays in connection with this contract. As the whole subject requires careful investigation and an examination of the records at the navy-yard, New York, and the testimony of the officers at that station and of our engineer and foreman who have had charge of this work, I believe it will expedite the settlement and be to the interest of each of the parties to the contract for the Department to organize a board composed of an officer from each of the bureaus that have had cognizance of the companies work, said board to meet at the nav3r-yard, Brooklyn, where all of the work was done out of which the differences arise, and examine the whole subject, hear the company’s representatives, and receive the evidence and the statements presented by the company, and report what in their judgment is a fair settlement to be made by the Department.
    “We accordingly respectfully request that you will issue the necessary instructions convening a board to meet at the navy-yard, New York, as above suggested. We would state that about June 3 would be an agreeable time to the company for the board to meet. In the intervening time we will be completing preparation of the evidence we desire to submit to said board.
    “ Very truly,
    “C. E. Ceeegy, President.”
    In response to this request the Secretary of the Navy appointed a board as shown in the following mandate:
    “Navy Depaetment,
    “ Washington, D. G., June 1, 1897.
    
    “Sie: Aboard, consisting of yourself as president and of Commander William Swift and Naval Constructor John G. Tawresey, U. S. Navy, as additional members, is hereby appointed for the purpose of making a full and complete investigation into all matters connected with the account between the Pneumatic Gun Carriage and Power Company and the Department under the contract dated April 25, 1888, for the erection and installation on board the Terror of the pneumatic system for working her turrets, steering gear, etc., and the modifications of said contract, the attention of the board being called particularly to the agreement dated Feb--ruary 19, 1895, in accordance with which the work was to be completed by the Department and the cost thereof borne by the contractors.
    “Enclosed herewith are copies of said contract and the specifications forming part thereof and the agreement for the completion of the work by the Government, and the board will examine the statement of account, which will be furnished by the Bureau of Supplies and Accounts, of the expenditures under said contract and agreement, and will ascertain whether the items charged therein against the contractors are fairly and properly chargeable to them, and also whether there are any items of the work done that are omitted in said account but should be charged to the contractors.
    “ The board will meet at the navy-yard, New York, for the purpose above indicated, at ten o’clock a. m. on Thursday next, the 3d instant, and at such times thereafter as may be designated by you, and will notify the contractors, to whom a copy of this precept has been furnished, of such subsequent times for the meeting of the board, and give them every opportunity to produce evidence and to be heard fully and thoroughly, by counsel or otherwise, concerning the matters coming before the board in carrying out these instructions; and the board will also call before it, to testify as to matters under investigation, any officers or employees at the navy-yard, New York, as it may deem necessary or advisable, the attention of the board being called to the fact that the heads of the departments of Ordnance, Construction and Repair, and Steam Engineering at said yard are in all probability more familiar with the matter than any other officers. If it should be desired to examine any officers or emploj'ees of the Government not on duty at the yard, the board will acquaint the Department with that fact in order that the necessary orders in the premises may be issued. If the presence before the board of any persons not in the employ of the Government is desired they will be requested to attend.
    “Such further information as may be necessary to the proper performance of its duties by the board will be called for by it from the bureaus having cognizance thereof.
    “ While it is intended that the board shall investigate thoroughly all matters pertaining to the account between the Department and the contractors for the work done on the pneumatic system, it is not contemplated that this investigation shall extend to any claim or representation that may be made by the contractors concerning claims for extra compensation on account of the unreadiness of the vessel or delays in the progress of the work, alleged to be due to fault of the Department.
    “Enclosed, also, for the board’s further information, is a report, dated November 18, 1896, and the papers connected therewith, including copies of the contract, specifications, and agreement above referred to, of the board appointed to make an examination of said pneumatic system and to witness the trials and tests thereof, as required by the contract, together with certain correspondence between the Department and the contractors.
    “Upon the conclusion by the board of its investigation it will make a complete and detailed report to the Department concerning the result of its labors, showing the account as it should stand between the Government and the contractors under said contract and agreements in modification thereof..
    “All papers forwarded herewith will be returned.
    “Very respectfully,
    ■ “John D-. Long, Secretary.
    
    “Chief Engineer Ralph Aston, U. S. Navy,
    
      ii Continental Iron Works, Brooklyn, Bew York.”
    XIII: Thereafter this board convened and considered claims for additional compensation furnished by the claimant. Claimant appeared before said board bjr witnesses and counsel. One of the claims presented to and disallowed by*- the board was that under the second supplemental contract, in which it was claimed that the United States had expended 130,054.12 more than was necessary, and more than it had a right under said contract to expend in completing the work. Certain other claims growing out of delays on the part of the defendants were urged by the claimant, but were not considered by the board. The board made a report on June 22, 1897. Thereafter the claimant urged anew before the Secretary of the Navy certain claims because of the Government’s overcharges and claims for extras and for damages on account of delays to its work. The Secretary allowed one item, as shown in the following account (declining to consider others), to the extent of §6,844.96.
    Thereupon the following account was stated between the United States and claimant:
    
      United States Navy Department to The Pneumatic Gun Carriage and Power
    
    
      Co., Dr.
    
    Appropriation: Increase of the Navy, armor and armament.
    Nov. 22, 1897.
    ForinstallationofpneumaticsystemontheU. S. S.
    Terror under contract dated April 25,1888_§228, 750.00
    For additional compensation under supplemental
    agreement dated Nov. 8,1890. 11,500.00
    For extra work caused by changes in plans authorized by the Department Sept. 26,1892_ 2,500.00
    -§242,750.00
    CREDITS.
    Payments made to the company, and work done by the Government on account of contract, as follows:
    Nine (9) installments of §20,587.50 each on vouchers approved from Apr. 19, 1889, to Jan. 28,1891. 185,287.50
    Jan. 28, ’91, freight on apparatus from Boston to New York. 5,750.00
    Sept. 28, 1892, for extra work (additional to contract). 2,500.00
    Work done by the Government prior to Feb. 19, ’95:
    By Bureau of Equipment. 410.58
    By Bureau of Ordnance. 8,999.72
    By Bureau of Construction and Repair. 2,427.50
    By Bureau of Steam Engineering. 5,823. 88
    
      Special pay rolls and vouchers paid by the paymaster at navy-yard, New York, under the agreement dated 3?eb. 19, 1895, by which the unfinished work on the system was done by the Government. §36,894.51
    Material furnished by the Government under the above agreement. 4,326.57 Repairs to central sleeve of eccentric rods. 41.40 Repairs to forward air compressors. 344.64
    247,806.30
    Less allowance for certain items embraced in the above charges authorized by endorsement of the Secretary of the Navy, dated Nov. 9,1897. 6, 844. 96 -§240,961. 34
    Balance due. 1,788.66
    XIY. The court finds this account correctly stated, as far as it goes, but also finds that said account does not include damages on account of the hindrances and delays caused by the defendants in not delivering the monitor at the navy-yard in Boston, and in the failure to complete the monitor at Brooklyn as well as damages for interfering with the work of placing the machinery on the Terror.
    XY. Thereupon the Secretary of the Navy prepared the following release and sent it to the claimant for execution:
    i
    “ Release under the contact, dated April 86,1888, for installing a pneumatic system for working the tu/rrets and guns, steering, and refrigerating upon the United States monitor Terror.
    
    “Whereas by the tenth clause of the contract, dated April 25, 1888, by and between The Pneumatic Gun Carriage and Power Company, a corporation created under the laws of the State of West Virginia, and doing business at 'Washington, in the District of Columbia, represented bjr the president of said company, party of the first part, and the United States, represented by the Secretary of the Navy, party of the second part, for the installation of a pneumatic system for working the turrets and guns, steering, and refrigerating upon the United States monitor Terror, it is provided that a special' reservation of ten thousand dollars ($10,000) from the price stipulated in said contract shall be held for a period of three months from and after the date of the acceptance of the machinery and its appurtenances, subject to certain conditions named in said clause; and
    
      “Whereas by a memorandum, dated November 8, 1890, of changes in the aforesaid, contract, it was agreed that The Pneumatic Gun Carriage and Power Company should deliver the machinery and all material and commence the erection of the same on board the Terror at the navjr-yard, Brooklyn, New York, instead of at the navy-yard, Boston, Mass., and complete the work as required by the contract aforesaid; and
    “Whereas b}*’ a memorandum of agreement, dated February 19, 1895, it was agreed that the party of the second part should furnish the labor and material and complete, at the expense of the party of the first part, the unfinished work required under the contract aforesaid; and
    “Whereas it is further provided by the sixth paragraph of the fourteenth clause that when all the conditions, covenants, and provisions of said contract shall have been performed and fulfilled by and on the part of the party of the first part, it shall be entitled, within ten days after the filing and acceptance of its claim, to receive the said special reserve, or so much thereof as it may be entitled to, on the execution of a final release to the United States, in such form as shall be approved by the Secretary of the Navy, of all claims of any kind or description under or by virtue of said contract; and
    “Whereas the said pneumatic system has been completed in accordance with the aforesaid contract and agreement in modifications thereof; and
    “Whereas all the conditions, covenants, and provisions of said contract have been performed and fulfilled by and on the part of the party of the first part, excepting as hereinbefore set forth; and
    “Whereas three months have elapsed since the trials and tests prescribed for said pneumatic sj^stem were made and concluded, no formal acceptance having taken place,
    “Now, therefore, in consideration of the premises, the sum of one thousand seven hundred and eightj^-eight dollars and sixty-six cents ($1,788.66), the part of the aforesaid special reserve to which the party of the first part is entitled, being, to me in hand, paid by the United States, represented by the Secretary of the Navy, the receipt whereof is hereby acknowledged — The Pneumatic Gun Carriage and Power Company, represented by me, C. E. Creecy, president of said company, does hereby, for itself and its successors and assigns and its legal representatives, remise, release, and forever discharge the United States from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law and in equity, for or by reason of or on account of the installation of said pneumatic system.
    “In witness whereof I have hereunto set my hand and affixed the seal of The Pneumatic Gun Carriage and Power Company this twenty-sixth day of November, A. D. 1897. [seal p. g. c. &p. co.J “Charles E. Creecy, [l. s.]
    “ President of the Pneumatic Gun ■
    
    “ Carriage and Power Company. “Approved. “Eppa HuntoN,
    “E. B. Cottrell,
    “Charles E. Creecy,
    
      Directors.
    
    “Attest:
    “C. S. McNeir,
    “Secretary.”
    Thereupon the claimant wrote the following letter:
    “The PneuMatic Gun Carriage
    “and Power Company,
    “Room 38, Corcoran Building,
    “ Washington, D. O., Nov. @8,1897. “Captain S. C. Lemly, U. S. N.,
    
      “Judge-Advocate-General, Nmy Department.
    
    “Dear Sir: Yoür letter of November 16th, enclosing-releases for the signature of the officers of this company in the matter of our contract for installing a pneumatic system on the Terror, was duly received. I return herewith the releases, executed with the formality observed in the execution of said contract. We have taken the liberty of adding the following to the release, which acknowledges the receipt of the sum of $1,788.66, which is the amount found due us under the contract, viz:
    “ ‘ Provided, That nothing in this release shall be construed to operate as a waiver of the company’s right to sue and recover judgment in the Court of Claims for damages incurred or losses sustained by the company in the prosecution of the work which were caused by the delays or defaults of the United States.’
    “If the Department has jurisdiction of such claims for damages and losses as are set out in this proviso, we shall be only too glad to present them to the Department for adjudication' and save ourselves thereby from long and expensive litigation in the Court of Claims. But if the Department has no jurisdiction of such claims, then, of course, we can not be expected, without consideration, to relinquish our rights, which the law has given us, to sue in the Court of Claims. We assume that it was not your intention in drawing up the release to have it operate as a waiver of our rights to sue in the Court of Claims for damages and losses caused by the delays of the Government, because, in the letter of Secretary Herbert to our com-punja of June 6, 1893, he said:
    “ ‘The Department regrets that you should have been subjected to losses bj^ being prevented from completing the work under your contract on account of delays in the completion of the Terror, and would gladly do anything that might lawfully be done to relieve you of embarrassment and further losses in connection with said contract.’
    “Your attention is also invited to the letter of the Department of June 1, 1897., addressed to Chief Engineer Ralph Aston, notifying him of the appointment of a board, with himself as president, to investigate all matters connected with the account between the Pneumatic Gun Carriage and Power Company and the Department under the contract for installing our sj-stem on board the Terror, in which it will be seen, by the following language, that these claims were excluded from consideration by that board, viz-:
    ‘ ‘ ‘ While it is intended that the board shall investigate thoroughly all matters pertaining to the account between the Department and the contractors for the work done on the pneumatic sjrstem, it is not contemplated that this investigation shall extend to any claim or representation that may be made by the contractors concerning claims for extra compensation oh account of the unreadiness of the vessel or delays in the progress of the work alleged to be due to the fault of the Department.’
    “In addition to this decision in the board’s instructions, declining to assume jurisdiction of these claims for losses and damage, the Department has recommended that similar claims which have been presented by The Cramp Shipbuilding Company be adjudicated in the Court of Claims. In view of all these facts we have taken the precaution in the release to add the proviso reserving our rights under existing law.
    “Very truly, yours,
    “C. E. Creecy,
    
      “President of The Pneumatic Q%wi Carriage
    
    
      and Power Company. ”
    In answer thereto the Secretary of the Navy returned the following letter:
    “Navy Deeartment,
    “ Washington, November 83, 1897.
    
    “Gentlemen: Referring to your letter of the 22d instant, addressed to the Judge-Advocate-General, relative to the release, under the contract for the pneumatic system, of the Terror, in which you intimate thatyou intend to sue in the Court of Claims for damages on account of losses alleged to have been sustained by reason of the delay on the part of the Government in the completion of the hull of said vessel, I have to inform you that the release accompanying- said letter, in which you have inserted a clause providing that said release shall not be construed as a waiver of the company’s right to sue and recover judgment in the Court of Claims for losses sustained by the delays or default of the United States, is not approved.
    £ ‘ The clause in your contract, under which a final release is to be given, provides that such release, in form approved by the Secretary of the Navy, shall be given before final payment is made, and as the release you have executed, not being an unconditional, full, and final release, is not in satisfactory form, the payment of the sum due, as stated in the Judge-Advocate-General’s letter of the 16th instant, will not be paid; and it is suggested that if, as appeal’s to be your intention, you bring suit in the Court of Claims against the Government, that the amount due as stated, $1,788.66, be included as part of your claim.
    “The patent guarantee executed by you has been approved.
    “Very respectfully,
    “JOHN D. LONG,
    “ Secretary.
    
    “The Pneumatic Gun Carriage and Power Co.,
    “ Gorcoran Biálding, Washington, D. ¿7.”
    XYI. That on the 26th of November, 1897, upon the payment of $1,788.66, which was the sum conceded by the Secretary of the Navy to be due upon the original contract and the modifications thereof, the claimant executed, under the foregoing circumstances, the release hereinbefore set forth. Claimant, however, protested jigainst the injustice of the' Secretary’s action.
    XYII. The claimant has never paid the South Boston Iron Works any money on account of damages herein alleged against the United States, and never made a settlement with that company. That company has made no claim against the claimant for any amount, for whatever damages have been caused by reason of the hindrances and delays on the part of the United States as hereinbefore set forth.
    
      Mr. John O. Fay for the claimant. Messrs. Fay <& Putnam were on the brief.
    
      Mr. William IT. Button (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Howry, J.,

delivered the opinion of the court:

Plaintiff, on April 25, 1888, entered into a contract with the defendants, represented by the Secretary of the Navy, to furnish all necessary labor and material and erect and construct upon the monitor Terror all the machinery and appurtenances necessary to the complete application of power known as the pneumatic system for the'manning and working of the turrets and a part of the armament of the monitor, to the steering- of the vessel, and to the permanent maintenance thereon of a uniform refrigerating temperature. The contract price was fixed at $228,750, and plaintiff agreed to deliver the machinery and appurtenances upon the monitor at the navy-yard, Boston, Mass., and commence the work of installation within six months from the date of the contract. The Terror was then under construction at the navy-yard in Brooklyn, N. Y. Shortly after the execution of the contract, plaintiff procured the South Boston Iron Works, a manufacturing concern in Boston, to manufacture the machinery in that city and to install the same when the Terror should be brought to Boston. The subcontractor proceeded in accordance with the terms of plaintiff’s contract with the defendants, and at the expiration of the six months had the machinery completed, as far as the same could be finished in the shops. Plaintiff was aware of the unfinished condition of the vessel, but no notice was given to it by the defendants of their inability to bring the vessel to Boston, and its subcontractor was compelled to hold the machinery until such time as the monitor might appear at Boston. This state of uncertainty continued until a contract was entered into between plaintiff and the United States, by which it was agreed, for the further sum of $11,500 to be paid to plaintiff, that the machinery should be delivered at the Brooklyn Navy-Yard within sixty days from the date of the contract. The subcontractor, acting for plaintiff, proceeded under the supplemental contract to remove the machinery to Brooklyn, and on January 8, 1891, had it all there ready to begin the work of installation. The monitor, however, was not sufficiently completed to receive the machinery in its proper place, and by reason of the uncompleted condition of the vessel and interferences with workmen engaged in its construction plaintiff was debited in the work of applying and fitting the machinery.

The findings establish damages in the sum of $14,612.88, occasioned by these acts of the defendants.

But for these acts it is claimed that whatever damages arose accrued to the subcontractor and not to plaintiff, and that for this reason the action can not be maintained.

It appears that there has been no accounting between plaintiff and the subcontractors; that no money has passed between these concerns, and no claims have been presented by the subcontractors to their principal; and, in consequence, it is argued that plaintiff can only recover such damages as it appears it alone has suffered, without reference to ivhat injury subcontractors may have sustained.

At the time plaintiff entered into the contract it had no plant of its own for the manufacture of machinery. The arrangement made bjr plaintiff with the South Boston Iron Works to manufacture and install the machinery proceeded until in turn the Hunt-Spiller concern, another company, was engaged to go on with the work.

The defendants- had no contract relations with the South Boston Iron Works or with the Hunt-Spiller Company, and can not be held to answer directly to those concerns. Defendants’ responsibility is direct only to the other principal party to the agreement, while the subcontractors must look alone to their principal for whatever damages may have arisen to them in consequence of delay or interruption of the work of that principal affected by the acts of the other principal. If plaintiff can not recover, then the whole loss must fall upon the party not in fault unless plaintiff shall hereafter pay the subcontractors, and then within the limit of time allowed by law to bring suit to recover. This, the- defendants insist, they should do before the damages can realty become a claim against the United States. But this theory ignores the fact of any subcontract being necessary to the fulfillment by plaintiff of its contract with the defendants, a fact which defendants knew in the progress of the work, if not in the beginning.

Subcontracts are the common incidents of building and other similar enterprises. They are ordinarily entered into preliminary to undertakings of the character shown here, and in case of delays and interferences caused by a party ordering work and material the measure of damages done the other principal is usually the measure of compensation due subcontractors by the principal not in fault. There is no element of uncertainty in what the damages to subcontractors should be after it is ascertained that the principals have caused.damages in a precise and definite sum. Such is the case here. Those cases of subcontract where damages sustained by the subcontractor should not enter into the estimate of the amount recoverable against the party first causing the damage rest upon the idea that the party having no control over or participation in the making of the subcontracts should not be compelled to assume them if improvidently entered into, and the further idea of assuming that the party complaining is necessariljr compelled to break all his subcontracts as the consequence of the breach of the principal one. But here the case is different. We know the subcontractor sustained the same helajes and interruptions as did the plaintiff. There is nothing-hypothetical or remote in the sums claimed or in the amounts that the subcontractors can claim of the plaintiff. The acts of the defendants operated precisely upon all the other parties alike in proportion to the extent of their respective interests. The defendants are not liable for any subcontracts improvidentty made. It is certain that plaintiff’s contract with the South Boston Iron Works was broken by the fault of the United States. We think defendants should answer at this time without waiting for plaintiff to first pay the damages sustained by the subcontractors, because these damages would not have been caused had the United States kept faith with the other principal to the agreement.

The work of installation proceeded so slowty a board of naval officers was appointed November 20, 1894, by the Secretary of the Navy to make an estimate of the actual cost of completing the work. This board estimated the time at seventy working days, at a total cost of $11,553, and in February, 1895, another supplemental contract was entered into in consequence of the delays, largely attributable to the failure of the Government to complete the construction of the hull of the monitor, but also in consequence of the subcontractor being without financial means at that time to go on under the original contract. Defendants took charge of the work but did not complete the same until May 29, 1897, at a cost of $41,221.08.

When the work was completed plaintiff submitted a request to the Secretary of the Navy to examine a statement (then being prepared by plaintiff) of extra expenses incurred by reason of defendants’ unreadiness and delays in connection with the contract, and to expedite the settlement plaintiff requested the Secretary to organizo a board to examine the whole subject, hear the company’s representatives, and receive the evidence presented by the company, and report what in their judgment was a fair settlement to be made. In response the Secretary appointed a board which convened and considered claims for additional compensation, claimant appearing before it by witnesses and counsel. One of the claims presented to and disallowed bj^ the board was that under the second supplemental contract, in which it was claimed that the United States had expended $30,054.12 more than was necessary, and more than it had a right under the contract to expend, in the work of completion. Other claims growing out of delays on the part of defendants were urged by plaintiff. The report of the board was approved by the Secretary of the Navy, less an allowance for certain items embraced in the report, leaving a balance due with the Secretary’s approval of $1,788.66. But there was a total disallowance of the demand for $30,054.12.

In considering this claim for the alleged overcharge of defendants for completing the work it should be observed at the outset that the contract for its completion by the Government was not based upon the estimates of the board. The contract itself contained no limitation upon the amount which the United States was entitled to charge to plaintiff for labor performed and material furnished, but gives to the United. States the right to charge whatever was actually expended. The entire work was largely experimental, and some changes were necessary to be made in the machinery to make it efficient and effective. It seems reasonable to say that changes were imperative in so delicate and important an undertaking. It is usual in setting similar work to leave machinery about one thirty-second of an inch to work off in the fitting, but in this case certain bearings were necessary to be fitted with such exactness of measurement and minuteness of detail that they, when applied to the monitor, were allowed to have only a variation or play of two-thousandths part of an inch to make the work under the contract entirely successful. In adjusting the machinery and attempting to make it fit perfectly it appears that but one machinist could work on but one piece at a time, which caused the laying off at such times of the helpers to each machinist. Other difficulties incident to applying and putting in proper place each piece of machinery must have operated to properly delay the work. This work was done under an agreement for the employment of the engineer of the subcontractor or such other person in that capacity as might be designated, and the installation of the machinery thus proceeded under the supervision of plaintiff and the subcontractor. Though it is insisted by plaintiff that a better showing should be made as to how much of the cost was due to changes and how much to the dilatory methods pursued by the Government, it is at best but speculation to indulge in comments as to how much was expended for changes in the machinery and how much for labor. The findings establish that the actual cost proved to be more than the estimate of the board. The estimate did not bind the Government. The Secretary of the Navy may have relied on it, but it does not appear that plaintiff did, or was instrumental even in the appointment of a board. As the findings settle the actual cost of completion and do not establish the failure of the Government to prosecute the work with due diligence and proper economy, this must be the end of plaintiff’s contention under this item.

But the right of plaintiff to maintain the action for any damages at all is further denied on the ground that plaintiff discharged the United States from its demand on this account.

By the first supplemental contract plaintiff agreed to move the machinery to Brooklyn and proceed with the work of installation there. The consideration named for that purpose was doubtless fair and sufficient (as the parties agreed to it) for the transportation of the 150 tons of machinery and for the expenses incident to taking engineers, machinists, and other employees to Brooklyn to do the work. But damages had been sustained by failure to have the monitor ready at the proper place, and the Government continued to cause damage by its prolonged failure to complete the hull of the vessel while plaintiff was undertaking to carry out the agreement under the supplemental contract. No waiver of these damages appears by the record, unless the acceptance of the amount stated to be due and the release given bjr plaintiff operated as such as now to estop plaintiff from asserting its demand.

When the account was finally stated the Secretary of the Navy required plaintiff to' execute a release in which it would “remise, release, and forever discharge the United States from all and all manner of debts, dues, sums and sums of money, accounts, reckonings, claims, demands, whatsoever, in law and in equity, for or by reason of or on account of the installation of said pneumatic system,” and the Secretary declined to approve any release except such as was unconditional, full, and final.

Under these circumstances, and protesting against the injustice of the Secretary’s decision, and denying his right to impose such terms, plaintiff executed the release and received payment of the balance shown to be due by the account.

The order appointing the board contained the following instructions:

“While it is intended that the board shall investigate thoroughly all matters appertaining to the account between the Department and the contractors for the' work done on the pneumatic system, it is not contemplated that this investigation shall extend to any claim or representation that may be made by the contractors concerning claims for extra compensation on account of the unreadiness of the vessel or delays in the progress of the work alleged to be due to the fault of the Department. ”

As the board did not have jurisdiction to consider any question of damages due from delay,- or really considered anything except those matters referred, the sole question now to be considered is the effect of the release.

The defendants contend that there was a good consideration for the release in that clause of the original contract which provides that—

“When all the conditions, covenants, and provisions of this contract shall have been performed and fulfilled by and on the part of the party of the first part, it shall be entitled, within ten days after the filing and acceptance of its claim, to receive the said special reserve, or so much thereof as it may be entitled to, on the execution of a final release to the United States, in such form as shall be approved by the Secretary of the Navy, of all claims of-.any kind or description under or by virtue of this contract.”

The Secretary of the Navy having expressly declined to give the board appointed to investigate the account authority to award any damages for delays and interruptions, and having refused to entertain these claims himself on the report of this board, it can not be said that the release given was in settlement of disputed claims between the parties on account of the delays and interruptions. These demands remained open on their merits. The receipt given by plaintiff was not founded on any agreement to release claims not considered, and it was not a settlement of matters excluded from consideration by the Secretary. There was no adjustment of differences by way of compromise and settlement of claims for delays because of the unreadiness of the vessel at the proper place or because of interruptions to plaintiff in subsequently endeavoring to install its pneumatic system upon the monitor at Brooklyn.

But, conceding for the sake of the argument that the Secretary had jurisdiction, the minds of the parties did not meet in final settlement of the differences. Though the paper on its face appears to be a full and unequivocal release of all demands, the Secretary imposed terms which attempted to deprive plaintiff of money due to it, with notice from plaintiff of its intention to insist upon payment of a sum on account of the damage done. If the balance conceded by the Secretary was due by the terms of the contract, the payment thereof did not create a new consideration for the relinquishment by plaintiff of its other demands aganist the United States. To make the receipt of a part the discharge of the whole there must be a new consideration, or a voluntary and well-understood compromise of a disputable and disputed claim. (Child et al. v. United States, 12 Wall., 232, and 7 C. Cls. R., 209; Mann v. United States, 17 Wall., 67, and 8 C. Cls. R., 125; Comstock's case, 9 C. Cls. R., 141.)

Nothing can be treated as a consideration that is not intended as such bjr the parties. (Insurance Association v. Wickham, 141 U. S. R., 564, and authorities there cited; Cape Ann Granite Company v. United States, 20 C. Cls. R., 1.)

In the progress of the work the attention of the Secretary' of the Navy was continually called to the causes which operated to create the claims for • damages. Both supplemental contracts recognized the fault to be largely on the defendants. When the settlement came to be made the Secretary kept within the terms of the contract and directed the payment of sums only which he had the right to direct to be paid.

As the causes which gave rise to the claims for damages were not considered by the board for want of jurisdiction, and were disregarded, no doubt, by the Secretary for the same reason so far as his official action was concerned, judgment will be entered for §14,612.88 in favor of plaintiff.  