
    WALTER D. LOVELL v. THE UNITED STATES
    (No. 34084.
    Decided March 31, 1924)
    
      On the Proofs
    
    
      Contract; equity jurisdiction; reformation of contract. — Where mutual mistakes in the specifications are made which require a contractor to perform work clearly not contemplated by his bid and. its acceptance, the contract will be reformed so as to express the true intent of the parties, and he is entitled to recover for work performed as a result of such mistakes.
    
      Same; change of site. — Where a contractor bids upon the construction of buildings to be erected on a site set out in the plans, and the location of the buildings is afterwards changed without proper authority, he is entitled to recover any loss suffered by him by reason of such change.
    
      Same; delay. — -Where a contractor agrees to erect a building on an old foundation and has a force ready to begin work qn contract time, and makes a bid at the defendant’s request to construct a new foundation which is rejected, and the Government, after unnecessary delay, builds the foundation, the contractor may recover reasonable compensation for damages caused by such delay.
    
      Same; changes; delay. — Where the contract provided for changes and reasonable time was consumed by the Government in investigating, in good faith, the advantages and disadvantages of substituting electricity for gas, a contemplated change which was not adopted, the contractor took the risk of such a delay in entering into the contract and can not recover for the loss suffered by the suspension of work on the gas plant.
    
      Same; extra sewer, if needed; right of Government to build. — Where a contract provides that if a certain extra sewer shall be required by the Government it shall be constructed by the contractor at a designated price per linear foot, and such sewer is required but is constructed by the Government, the contractor is entitled to recover the reasonable profit he would have made if he had been allowed to construct it.
    
      The Reporter’s statement of the case:
    
      Mr. M. Walton Hendry for the plaintiff.
    
      Mr. W. L. dole, with whom was Mr. Assistant Attorney General Robert Ii. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. At the time of the transactions involved in this case, and for some time prior thereto, the plaintiff was in business as a construction contractor, with his principal place of business at Minneapolis, Minnesota.
    II. Pursuant to the usual Government advertisements, proposals by bidders, and acceptances by the Government, the plaintiff, during the years 1913, 1914, and 1915, entered into the following contracts with the United States Commissioner of Indian Affairs, of the Interior Department:
    Contract dated May 26, 1914, for the construction of a brick hospital at Eosebud Indian Agency, South Dakota.
    Contract dated May 26, 1914, for the construction of a brick hospital at Cheyenne Eiver Indian Agency, South Dakota.
    
      Contract dated May 26, 1914, for the construction of a frame hospital at Standing Rock Reservation, North Dakota.
    Contract dated December 26, 1913, for the rebuilding of a brick schoolhouse, No. 9, Rosebud Indian School, South Dakota.
    Contract dated March 23, 1915, for the construction of a frame hospital and a gas house at Turtle Mountain Agency, North Dakota; for the construction of a hospital at Mes-calero, New Mexico, and for the construction of a hospital at Carson, Nevada.
    Contract dated June 22,1915, for the construction of a hospital at Fond du Lac, Minnesota.
    Copies of the signed articles of agreement of each of said contracts are annexed to the plaintiff’s petition as Exhibits A, B, C, D, E, and F, respectively, and are by reference made a part of these findings of fact.
    Under the terms of each contract the advertisement for proposals and the drawings, plans, and specifications for the work to be performed thereunder were embodied in and became a part of the contract.
    III. The advertisements and the specifications submitted for proposals for the construction of all of said hospitals provided: “ The contractor must give careful attention to all reference Notes and the Articles of these specifications, as he will be held strictly accountable for their proper application.”
    Said advertisements also provided that for any additional information desired application should be made to the superintendents of the Indian schools at the respective agencies.
    IV. The “ General conditions ” of the specifications for the construction of said hospitals and of the said Rosebud school building contained, among others, the following provisions:
    “ 1. All materials are to be of the best quality of their several kinds, and the entire work is to be executed in a thorough and workmanlike manner under the direction and to the full satisfaction of the Commissioner of Indian Affairs, or his representative, according to the requirements off the plans, specifications, and detail drawings.
    ' “ 2. The contractor shall give his personal superintendence to the work, or shall have some competent person on the work at all times to act for him, and shall furnish all materials, labor, scaffolding, etc., necessary to complete the work according to the true intent and meaning of the drawings and these specifications, of which intent and meaning the Commissioner of Indian Affairs, or his representative, «ball be the interpreter, and his decision in any and all cases shall be final and binding on the contractor.
    “6. It is intended that the drawings and specifications shall include everything requisite and! necessary to the proper and entire finishing of the building, notwithstanding every item necessarily involved by the work is not particularly mentioned and the work or material shown or called for by one and not shown or mentioned in the other is to be done or furnished in as faithful and thorough a manner as though fully treated by both, and the whole work is to be delivered complete in an undamaged condition.
    “8. In any case of discrepancy in figures or drawings, the matter shall be immediately submitted to the Commissioner of Indian Affairs, or his representative, for a decision, otherwise the contractor will be held responsible for the results of any discrepancy that may be found in- the work.
    “ 10. The contractor will be held responsible for all damages to the building, whether from fire, frost, water, or other causes, during the prosecution of the work, and until the work is accepted. He shall be held responsible for all .damages that may occur to persons, animals, or vehicles from want of proper lighting, watching, boarding, or in-, closing, or any accident arising from defective scaffolding, or any negligence on the part of himself or his employees.
    “ 11. It will be the duty of the contractor to make special provision for doing masonary work during freezing weather by heating the water and other material when necessary, and by properly protecting such work to prevent damage by freezing after it is in place. The temperature in buildings being plastered must be kept above freezing point until the plastering is thoroughly dry.
    “ 13. The Commissioner of Indian Affairs reserves the right to order a cessation of all or any part of the work when, in his judgment, the interest of the Government demands the same. Such cessation not to impose extra expense upon the Government nor invalidate the contract.
    “14. The Commissioner of Indian Affairs reserves the right at any time to make changes, alterations, or omissions from, or additions to the work or materials herein provided for. It is preferred that the value of such changes shall be agreed upon in writing previous to making such changes. In the absence of such an agreement the value of the changes shall be determined on the basis of the contract unit of value of material and work, to be agreed upon at the commencement of the work, for the purpose of making estimates for partial payments as well as for the purposes named above; or in the absence of such unit of value, in the case in dispute, the value of such changes shall be determined by the Commissioner of Indian Affairs, and such decision shall be binding on both parties. Such changes shall not make void or affect the other provisions or covenants of the contract based upon these specifications, but the difference in cost thereby occasioned, as the case may be, shall be added to, or deducted from, the amount of the contract, and in case changes in, alterations of, omissions from, or additions to the work or materials are directed by the. Commissioner of Indian Affairs, the contractor may apply to the Commissioner of Indian Affairs for an extension of the time fixed for the final completion of the work, and in the event of advérse action by the commissioner may appeal therefrom to the Secretary of the Interior.
    “16. All material and work will be subject to inspection at all times by the Commissioner of Indian Affairs or his representative. If material is rejected it must be removed from the premises by the contractor. It will be the duty of the contractor to remedy any defective or unsatisfactory work at his own expense within a reasonable time, otherwise the same will be done by the Government at the contractor’s • expense.”
    Y. The flooring provisions of the specifications submitted to bidders and becoming part of the contracts for the Rosebud, Cheyenne River, and Standing Rock hospitals, so far as involved in this case, are as follows:
    
      “ Flooring. — Double flooring throughout 1st and 2d stories (except where otherwise specified). Subflooring of dressed and edged boards, laid diagonally and thoroughly nailed to each bearing. Finished flooring to be clear, matched, vertical-grain maple or other hardwood flooring equivalent in strength and quality and approved by the Commissioner of Indian Affairs, tightly strained and blind nailed and laid after plastering is completed. For screened porches the finished flooring -is to be nailed to B" x i" sleepers bedded in concrete, and covered on two sides and bottom with metallic and oil of pitch. All over wood planed off, butt joints well secured.
    “ Composition -flooring and wainscoting. — The wards, office, and dispensary, operating, toilet, bath, and serving rooms and kitchen and all halls and stairways and stair spandrels in first and second stories to be properly prepared for the reception of an approved composition flooring and wainscoting, equal to the ‘ Torgoment ’ or ‘Asbestone,’ with sanitary base cove and neat cap, of which the contractor will be required to submit samples, color schemes, and details of construction for approval of the Commissioner of Indian Affairs.”
    In the advertisements for proposals for the construction of said hospitals a number of alternative proposals by bidders were requested, one of which related to changes in the flooring specified in the specifications, and was as follows:
    “ For omitting the finished wood flooring hereafter specified for first and second story halls, wards, and screened porches and substituting the composition flooring hereafter specified for operating room, etc.”
    This requested alternative proposal for composition flooring for wards, halls, and screened porches was, so far as it related to wards and halls, based upon an erroneous assumption or understanding that the specifications in question called for wood flooring for the wards and halls, this composition flooring for wards and halls being already provided for by the specifications.
    Pursuant to the above-quoted requests for alternative proposals for composition flooring, the plaintiff submitted proposals of $700 additional for each hospital for putting in such floors in the wards, halls, and screened porches. These alternative proposals were not accepted, and the flooring provisions of the specifications remained and became embodied into the contracts, as written.
    At the time of the execution of said contracts, it was the understanding of the parties thereto that they provided for wood floors for said halls and wards.
    YI. On June 11, 1914, sixteen days after the date of said contracts for the Rosebud, Cheyenne River, and Standing-Rock hospitals, the plaintiff wrote the Commisisoner of Indian Affairs as follows:
    “ Kindly refer to the plans and specifications for the three hospital buildings at Standing Rock, Cheyenne River, and Rosebud Reservations. In the call for bids, alternate 3 reads as follows:
    
      “ ‘ For omitting the finished wood flooring hereafter specified for first and second story halls, wards, and screened porches, substituting the composition flooring hereafter specified for operating room, etc.’
    “.Inasmuch as this alternate bid was not accepted when contract was awarded, but the alternate bid for Keene’s cement-plaster wainscoting was accepted, my.understanding and interpretation of the plans and specifications as to floor and wainscoting of rooms is as per following list.
    
      
    
    “ I am simply calling the matter to your attention at this time so that in case you desire to make any changes the matter of price can be adjusted now and the material ordered so as to be shipped at the proper time. I believe the fewer questions we have to thrash out on the job with the inspector, making a three or four cornered correspondence necessary, the better progress we will make on the job and the better satisfied everybody will be. The inspector at Rosebud is causing us a lot of unnecessary grief.
    “ Yours truly, « W. D. Lovell.”
    In response to this letter, Assistant Commissioner Hauke, Office of Indian Affairs, on June 24 following, wrote plaintiff as follows:
    Mr. W. D. Lovell,
    
      11/15 Eighth Street SE., Minneapolis, Minnesota.
    
    Sir: In reply to your letter of June 11, 1914, you are informed that the schedule submitted by you listing the various rooms and finish of same in the hospitals at Cheyenne River, Rosebud, and Standing Rock has been carefully examined and with the exception of the flooring yon list for wards, the schedule is correct.
    Regarding the wards, your attention is called to page 17 and subheading thereon, “Composition flooring and wainscoting,” which reads:
    “The kitchen, wards, office, and dispensary, operating, toilet, bath, serving rooms and kitchen, and all halls and stairways and stair spandrels in first and second stories to be properly prepared for the reception of a composition flooring and wainscoting, equal to the ‘Torgoment’ or ‘As-bestone,’ with sanitary base and neat cap, of which the contractor will be required to submit samples, color schemes, and details of construction for approval of the Commissioner of Indian Affairs.”
    From this it is evident that you are required to place composition flooring in all wards.
    Respectfully,
    C. F. Hauke,
    
      /Second Assistant Commissioner.
    
    VII. The plaintiff protested against the interpretation and decision of the Indian Office requiring composition flooring for the wards in said Rosebud, Cheyenne River, and Standing Rock hospitals; but upon being notified by said office that the Comptroller of the Treasury had decided that the contract required composition flooring for the wards, he proceeded, under protest, to put in such flooring. This composition flooring for the wards in said three hospitals cost the plaintiff $969.16 more than would have been the cost to him of installing wood flooring therein.
    VIII. The plaintiff, basing his action upon the correspondence between him and the Indian Office set forth in Finding VI, proceeded and installed wood floors in the halls of said Rosebud, Cheyenne River, and Standing Rock hospitals. In the final settlements under the contract for said hospitals, the Indian Office, against the plaintiff’s protest, charged against plaintiff and deducted from the balance of compensation otherwise due him under said contracts, sums amounting to $730.96 on the ground that the contracts called for composition flooring in the halls, the sums deducted being the estimates of the Indian Office of the lesser cost of the wood floors installed as compared with the cost of composition floors. It does not appear what would have been the actual difference in cost between wood floors and composition floors for said halls.
    IX. The “ General conditions ” of the specifications of the said Rosebud hospital provided:
    “ The location and grade of the building will be indicated by the superintendent of the school or other authorized agent, if the same has not been otherwise designated on the topographic map, and the site shall be cleared by the contractor for the reception of the structure, and should be examined T>y the contractor before bidding. The contractor must lay out his work correctly and will be held responsible for measurements.”
    On the “ block plan ” constituting a part of the plans and specifications, the site for said hospital was shown as being within or immediately adjoining the agency village, and right alongside an agency water main.
    The contract for this hospital was approved and the plaintiff notified of its approval on or about June 30, 1914. Plaintiff’s superintendent for the construction of the building, upon reporting at the agency on July 3, following, for the commencement of the work, was informed by the agency supervisor that he would not approve the building site shown on the “block plan,” and showed plaintiff’s superintendent a site across a creek and some 1,500 feet away by air line, and about a half mile away by wagon road, which he had recommended to the Indian Office. Plaintiff’s superintendent protested against this change of site, on the ground that the proposed new site was more inaccessible and that the cost of building the hospital there would be increased, and he notified the plaintiff, at his office in Minneapolis, to this effect. Plaintiff immediatley took up the matter with the Indian Office, which, on July 8, telegraphed plaintiff that the new site had been selected and told him to “look into matter and wire proposition at earliest date.” Plaintiff thereupon submitted a proposition for increased compensation on account of the change of site. On July 13 the Indian Office telegraphed plaintiff that the agency supervisor had reported that the construction of the hospital on the new site would be less expensive than on the original site, and that no increase of compensation would be allowed; and tbat plaintiff “ should therefore proceed with the work at the new site as originally specified and contracted for.” Plaintiff thereupon proceeded with the work at the new site as directed; and on July 20 his attorney in Washington wrote the Indian Office as follows:
    “ IN RE ROSEBUD HOSPITAL, CHANGED LOCATION
    “ In reference to the above matter, beg to advise that my client, Mr. W. D. Lovell, has advised me that he will not refuse, as advised by me, to proceed with the work at the new site until the Indian Office settles the question of the extra amount incident to the change of the location, and that although he realizes that he is under no legal obligation to do so, he is proceeding now before the Indian Office has decided the amount due him for the said change, with the understanding that the claim will hereafter.be paid and that the Indian Office will pay him the extra costs and damage incident to the said delay. If this is not satisfactory, kindly advise me immediately, so that I can advise my client to proceed no further with the work until this matter is settled. However, unless I hear from you to the contrary, I will presume that the above arrangement is satisfactory, and that my client will be paid the extra costs incident to this change.”
    X. As a result of the change of the site for said Rosebud hospital, plaintiff sustained damage and loss from delay in the work and increased cost of construction, as follows:
    Salary and expenses of his said superintendent for six days while waiting for final determination of the site for the building, $48.
    Extra cost of hauling sand to the new site, over what the hauling to the original site would have cost, $155.40.
    Extra cost of hauling and otherwise supplying water to the new site, for use in construction, $156.25.
    XI. In the construction of the Standing Rock hospital, under the said contract of May 26, 1914' (Exhibit C to petition), the flooring of certain rooms was passed, during the period of construction, by the local officer in charge of construction for the Government as satisfactory. Upon the final inspection of the building by the Indian Office superintendent of construction, said superintendent of construction found, and reported to the Indian Office, certain defects of workmanship and materials in some of said floors, in the way of poor grade and loosely laid flooring, on account of which he recommended a deduction of $400 from the contract price.
    Upon this report and recommendation, the Indian Office, against the protest of the plaintiff, deducted from the contract price the sum of $150, to be withheld until plaintiff should remedy the said defects in the flooring. Plaintiff did not remedy these defects; and the Government then had the work done by other persons, at a cost of $146, and the remaining $4 of the amount so withheld was subsequently allowed plaintiff on a claim by him for said $150.
    XII. In the said contract of December 26, 1913, for “ rebuilding brick schoolhouse, Eosebud Indian School, South Dakota” (Exhibit D to petition), the description and specification of the work to be performed contained, among others, the following provisions:
    “ The building will replace and duplicate a burned structure, the walls of which have been leveled to the water table.
    “ Contractor to properly prepare the present work throughout for connection to the new, and where directed by superintendent must carefully remove all portions of the old work necessary to complete the building in conformity with these specifications and accompanying • drawings. Where old work is changed or disturbed it must be carefully restored by contractor. Connection of the new and old work must be made in a most thorough and workmanlike manner.”
    Said contract was approved by the Secretary of the Interior on or about March 18, 1914. Plaintiff received notification of said approval on or about March 21, and his superintendent of construction for the work arrived on the ground for commencement of the work on or about March 29, following.
    Upon his arrival, said superintendent of construction found that the contract work could not then be commenced, for the reason that a number of the piers and walls constituting the foxindation for the superstructure to be erected by plaintiff were either wholly or partially torn down or otherwise damaged, so that they had to be rebuilt or repaired before the plaintiff’s work could proceed, of which fact he at once notified plaintiff, at his office in Minneapolis. Plain- ' tiff immediately notified the Office of Indian Affairs of this fact, and asked that immediate action be taken to relieve the situation, his subcontractor for the brickwork of the building having in the meantime arrived from a distance with his force for the work. The Indian Office thereupon requested a proposal from plaintiff for the rebuilding or repairing of said piers and walls, which was prepared and forwarded by plaintiff without delay. This proposal was rejected by the Indian Office as being too high, and the work in question was finally done by the Government by “ force account.” Plaintiff’s said subcontractor for the brick work, after remaining on the ground about a week and seeing no immediate prospect of being able to go on with his work, returned to his home in Illinois, notifying plaintiff he would hold him for his expense and loss in the matter. Plaintiff repeatedly complained to the Indian Office of the delay and loss he was sustaining, and urged expedition by the Government in the work so he could proceed with the contract work, which, without fault on his part, he was unable to do until on or about June 2, 1914. Plaintiff tried to get his said subcontractor to return and carry out his contract for the brick work, but did not succeed, and had to do the brick work himself, by “ force account,” and at a much greater cost to him than it was to have been performed by his said subcontractor.
    During said period of delay plaintiff’s said superintendent of construction remained on the ground, at the agency; at first with the prospect of plaintiff’s doing this extra work for the Government, and later with the assurance of the Government officers having the work done that it would be finished in a short time so plaintiff’s work could proceed. Also, plaintiff had no other work where it was practical to employ his said superintendent during this period of delay.
    The plaintiff sustained expense and loss by reason of being thus delayed in the prosecution of the contract work, as follows:
    Salary and expenses of his said superintendent while waiting, after March 29, 1914, to commence work, $582.
    The expenses of plaintiff’s said brick work subcontractor and his workmen on their said trip to and from the location of the work, which expenses were paid by plaintiff in settlement of the claim of said subcontractor against him, $408.06.
    Increased cost to plaintiif of the brick work under the contract, over and above the contract price for which it was1 to have been performed by his said subcontractor, $788.10.
    An extra cost of $450 in the performance of the work on account of said delay having extended its performance and completion into winter weather, the work not having been completed until on or about January 22, 1915.
    XIII. The specifications for said Rosebud school building contained, among others, the following provisions as to the plastering:
    “All new plastering to be two-coat work * * *.
    “ Plaster all walls and ceilings in finished parts of building (except where otherwise specified) and all stair soffits and enclosures, omitting stairs to basement.
    “Walls in basement rooms and halls to be plastered as directed by superintendent. See note page relative to connection of old and new work.
    “Plasterer to do all necessarv pointing up after other workmen.”
    Said specifications further provided:
    “ Contractor to properly prepare the present work throughout for connection to the new, and where directed by superintendent must carefully remove all jmrtions of the oíd work necessary to complete the building in conformity with these specifications and accompanying drawings. Where old work is changed or disturbed it must be carefully restored by contractor. Connection of the new and old work must be made in a most thorough and workmanlike manner.”
    There were two large playrooms in the basement of the building which were “finished” rooms, requiring plastering on the walls. The plaintiff expected only to have to patch up the plastering of such walls in the basement; but owing to the rebuilding of a large part of the walls by the Government, as set forth in Finding XII, he had to plaster almost the whole of them. The plastering done by plaintiff on these walls was done at a cost to him of $247. It does not satisfactorily appear what would have been the cost of the plastering these walls would have required if they had not required rebuilding.
    XIV. On 'June 24, 1915, during the construction of a frame hospital at Turtle Mountain Agency under the said contract of March 23, 1915 (Exhibit E to petition), plaintiff was notified to defer shipping the gas fixtures for the building, as the.use of electricity instead of gas was being considered; and on June 30 following, plaintiff was further notified, for the same reason, to defer construction of the gas house, which plaintiff did, with a protest against resulting delay in the work. After securing a proposal from plaintiff for a change to electric lighting, it was finally decided to go ahead and put in the gas lighting-system contemplated by the contract, and plaintiff was notified on August 12, 1915, to proceed with the work as called for by the contract. The gas house was a small frame building for housing the acetylene gas tank, the cost of the construction of which, and of the remainder of the work delayed by said action of the Indian Office, was in the neighborhood of $1,000.
    This proposed change in the lighting system and the resulting delay caused certain extra work in the hospital building and required the presence and services of some, of plaintiff's superintending force on the work a short time longer than would otherwise have been necessary, all at an additional cost to plaintiff of $60.
    XV. The said contract of March 23, 1915 (Exhibit E to petition), providing, inter alia, for the construction of a hospital at Carson, Nevada, contained a provision that, “ If any extra six (6) inch sewer is required by the party of the first part, to be constructed, the same shall be constructed by the party of the second part for the sum of eighty (80) cents per linear foot, provided it can be, and is, constructed in an earth drainage less than eight (8) feet deep. ”
    A total of 560 linear feet of such sewer was required by the Government at said hospital; and plaintiff wrote the Indian Office calling attention to the above-quoted provision of the contract and submitting a proposal for the construction of said sewer at said price of 80 cents per linear foot, amounting to the sum of $448. In reply the Indian Office wrote plaintiff:
    
      “ You are informed that the superintendent at Carson will complete the sewer extension for the hospital in open market, as thereby a saving of $229.62 is secured, this being the difference between the cost in open market and that of your contract price. ”
    Said sewer was thereupon constructed by the Govern- . ment in the “ open market. ” The cost to the plaintiff of the construction of said sewer would have been 40 cents per foot, amounting to $224.
    XVI. In the plaintiff’s contract of June 22, 1915, for the construction of frame hospital at Fond du Lac India]! School, Minnesota (Exhibit F to petition), the advertisement and specifications for the work, in addition to the provisions of the “ General conditions ” set forth in Finding IV, contained the following:
    “Kailroad station: Cloquet, Minn., on Great Northern and Northern Pacific Kys., distance to hospital site approximately % of a mile.”
    “ The hospital will be located where directed by the superintendent. ”
    The site contemplated by the specifications was not within the Indian reservation, and the appropriation for the building not being available for the construction of a building outside of the reservation, the Indian Office changed the site for the hospital to a point on the reservation about one and one-fourth miles farther from the railway station than the site contemplated by the contract.
    The plaintiff’s superintendent of construction' for the building, upon arriving at the agency for the commencement of the work and being informed by the Government’s agent there of the change in the site for the building, immediately notified the plaintiff in the matter and was instructed by plaintiff not to start construction work until further orders from him. Shortly thereafter he received orders from the plaintiff to proceed with the building on the new site, notifying the Government agent there that this was being done under protest, which orders were carried out by him.
    
      By reason of said change in the site, there were increases in the cost to plaintiff of the clearing and excavation of the site for the building and in the hauling of materials for construction of the building, amounting to $224.
    XVII. On or about October 5, 1916, a claim was presented by plaintiff to the Auditor for the Interior Department in the sum of $13,910.24, on account of alleged extra work performed, and damage and loss sustained by him in the performance of the contracts involved in this case, in which claim were included the items of the claim in this case. Upon said claim plaintiff was, on or about September 20, 1917, allowed and paid the sum of $4,222.34, the remainder of the claim, including the items of the claim in this case, being disallowed.
   Booth, Judge,

delivered the opinion of the court:

The plaintiff responded to certain advertisements and proposal put forth by the Commissioner of Indian Affairs, representing the Government, for certain construction work on Indian reservations. He procured six contracts, as follows: Three dated May 26, 1914, for the erection of three hospitals, one of brick at Rosebud Agency, South Dakota, another of similar construction at Cheyenne Diver Agency, South Dakota, and one of frame construction at Standing Dock Reservation, North Dakota. Of the remaining three, one dated December 26, 1913, provided for the rebuilding of a brick school house, No. 9, Rosebud Indian School, South Dakota; another dated March 23, 1915, provided for a frame hospital and gas house at Turtle Mountain Agency, North Dakota, a hospital at Mescalero, New Mexico, and one other hospital at Carson, Nevada; the last dated June 22, 1915, provided for a hospital at Fond du Lac, Minnesota.

Each of these contracts contained the usual Government stipulations, plans and specifications were furnished, and the undertakings were considered as embraced within them. The contracts and specifications are made a part of the findings by reference.

The first item for which judgment is sought has to do with the specifications as to flooring to be placed in the hospitals at Standing Rock, Cheyenne River, and Rosebud Agencies. The specifications (see Finding V) covering this subject are carelessly drawn and abstruse. It is difficult to define their extent and exactions. Manifestly the plaintiff was to lay wood flooring except in the rooms, etc., specified for reception of composition flooring. The defendant, in soliciting proposals for bids, either by mistaking the requirements of the specifications, or in good faith intending to extend an option to lay one or the other sort of flooring, induced the plaintiff to present alternate proposals, binding him to a certain amount in addition to his lump sum bid if composition flooring was to be laid, and the lump sum bid if it was to be omitted and wood flooring laid. The record in this respect is indisputable. The bid of the plaintiff was accepted, and the alternate proposal for $100 additional for laying composition flooring was rejected. This is the inevitable result from the bid and acceptance. It follows logically from the fact that the $100 additional asked for laying composition flooring was not added to the lump sum bid. If subsequent to the making of the written contract it was discovered that the specifications, according to the construction put thereon by the defendant, exacted composition flooring — a construction open to doubt — it is quite evident that the mistake was mutual, and in the absence of any evidence tending to establish any other than perfect good faith, it seems to us the contract to this extent should be reformed to meet the actual and intended agreement of the parties. The plaintiff, with respect to this.item, was misled to his financial injury by the juoposals submitted by the defendant. The express wording of the specifications, out of which the mistake grew, were susceptible to the commission of just such an error, and where there is a mutual mistake in the-written contract, an unintentional variance between the proposals and the written instrument, the right to resort to the proposals and acceptance thereof, to ascertain what the parties did really agree upon, has been approved by the Supreme Court in a number of decisions. Harvey v. United States, 105 U. S., 671; Garfielde v. United States, 93 U. S., 242; Ackerlind v. United States, 240 U. S., 531. That the written contract does not reflect in this case the true understanding of the parties, we think, is apparent. The plaintiff, as shown by the findings, is entitled to a judgment for $1,700.12 upon this item.

The location for the hospital at Eosebud Agency was distinctly shown on the block plan and specifications, part of the plans and specifications for this particular work. This was in exact conformity with the specifications examined by the plaintiff before submitting his bid, and as so exhibited the plaintiff had a positive right to rely thereon. The plaintiff was admonished to visit the site of the work. The duty of clearing and making it ready for the structure was imposed upon him, and he was held responsible for laying out his work correctly and for exactment of measurements. The site shown on the plans was immediately adjoining the agency village. A sufficient supply of water was available, as well as business houses and places where his laborers might secure board and lodging. When the plaintiff’s superintendent reported at the agency to commence work he was informed by the agency supervisor that he — the supervisor — would not approve the building site shown on the plans, and the plaintiff was compelled, despite his protest, to erect the building on a new site, a half mile away by wagon road, at a point devoid of any conveniences, poor water supply, and more difficult and expensive to reach in the transportation of materials. By what authority the agency supervisor so arbitrarily set aside the positive provisions of the contract and the Indian Office afterwards approved the same, is a little difficult to understand. An effort is made to justify the procedure under paragraphs 2 and 14 of the “ General conditions,” as shown in Finding IV, and article 3 of the written contract. We need not indulge in a lengthy discussion to demonstrate their utter inapplicability. The right to make changes, so confidently relied upon, from the very language of the clauses according this right, has obviously no reference whatever to the location of the building. The superintendent of the school was positively forbidden to intervene in the matter of site, if the same was designated on the topographic map. It is almost inconceivable that the parties ever intended that the contractor should be left in the dark as to where he must perform the work, and be subjected to shifting opinions as to the availability of the site selected. This matter was very properly put at rest by the specifications and thereafter it required the mutual consent of the parties to change it. Findings IX and X disclose the situation in detail. Judgment will be awarded on this item for $359.65.

The plaintiff was subjected to a deduction of $146, the expense occasioned the defendant in making good some defects found on final inspection of the work, in the flooring of certain rooms in the hospital building at the Standing Rock Agency. This deduction is expressly authorized by the terms of the contract. See paragraphs 2 and 16 of “General conditions” and article 6 of the contract. The defendant observed the terms, of the contract and specifications in making this deduction. The amount withheld was the exact cost of repairing the defects.

The rebuilding of the brick schoolhouse at Rosebud Indian School, South Dakota, as the contract and specifications indicate, was an obligation to erect the new building upon the standing foundation left over after the destruction of the former schoolhouse by fire. The specifications recite: “The building will replace and duplicate a burned structure, the walls of which have been leveled to the water table.” After the contractor arrived on the scene it was soon discovered that the old foundation was valueless, and to use it in connection with the contract work was impossible. The defendant, upon being notified of this condition, acceded to the truth of the fact. The contractor submitted, at the request of the defendant, a bid to do the work required to construct a new foundation and relieve the situation. The defendant rejected the bid after a considerable time, and finally the defendant, at its own expense and on its own account, did the work. It required the defendant from March 29, 1914, until June 2, 1914 — two months and three days- — to make up its mind and complete this relatively small job, during which time, the most opportune of the working year, the plaintiff could do nothing toward going forward with his contract. The plaintiff, relying upon the workability of the plans and specifications, had his contractor engaged to lay the brick ready and on the ground March 29, 1914. He and bis working force were present to commence work. After waiting around for about a week this subcontractor and his force, seeing no prospect of immediate employment and not desiring to impose additional expense upon the plaintiff, returned home and refused thereafter to return.

The result was that the plaintiff was compelled to do the work by “ force account,” and at an enhanced cost. In addition to this, the plaintiff’s superintendent was compelled to remain on the work, first because he anticipated the acceptance of the plaintiff’s bid to rebuild the old foundations, and, secondly, because the defendant assured him it would soon be accomplished and the plaintiff could proceed. It is quite difficult to approach with patience a contention that this loss to the contractor may be imposed upon him under the terms of the contract, as it was. This was not, and by no manner of strained construction may be tortured into a change, an addition to or omission from the contract work. The contractor was positively assured that certain conditions obtained, conditions vitally essential to the performance of the contract work. He was told that a foundation existed intact, upon which he might rest the superstructure. This proved to be a representation which was not true. What then ? The defendant did not add to nor subtract one single item of work required under the terms of the contract. It set about, as it should have done, to make its representations reflect the true situation previously set before the plaintiff. It was, in effect, a disconcerting and belated performance of an act which through its own carelessness occasioned the contractor real loss. To say that the contract in terms absolves the defendant from making its word good, and imposes loss upon the contractor because of its own stupidity, borders closely upon the absurd. The plaintiff engaged to do the work according to the plans and specifications. The defendant who drafted them impliedly assumed their sufficiency, and if it was found impossible to proceed because of an error committed by the defendant, it is difficult to perceive how such a blunder may be brought into provisions which expressly cover, and cover only, details of constraction. The facts are stated in Finding XII. The plaintiff is entitled to a judgment for $2,228.16.

There is a measure of justice in the plaintiff’s demand for extra compensation for additional plastering required when the old foundation was supplanted by the new. The claim, however, is one of a character difficult to prove in view of the contract. The contractor agreed to abide the directions of the superintendent as to removing all portions of the old work, and where the same was disturbed or changed to replace it with new. It is apparent, then, that what the contractor might or might not have been relieved from doing in the way of plastering, where he was to erect a new structure on an old foundation, is a matter of conjecture. At any rate, we find no sufficient proof of the additional cost, and no way from the record to segregate the extent of work which might have been required under the contract had the old foundation remained undisturbed, from what was required under changed conditions. Manifestly, under the terms of the contract, what was required was within the agreement. See Finding XIII.

Paragraph 13 of the “ General conditions,” Finding IV, confers upon the Commissioner of Indian Affairs the undoubted right to order the contract work to cease when in the judgment of the commissioner the interests of the Government demanded the same. The mere fact that a contemplated change which caused a cessation of the work was not finally adopted will not of itself suspend the authority of the commissioner under this clause. The commissioner was in good faith considering the substitution of electricity for gas in lighting the hospital at Turtle Mountain Agency. He solicited from the plaintiff a bid for making the substitution in the contract. It subsequently developed that the substitution would not be made, and while the process of final determination consumed a considerable length of time, nevertheless the plaintiff, by signing the contract, must have known by its terms that just such a situation was possible. There is nothing in the record to sustain a contention that what was done consumed an unreasonable length of time, in view of the situation of the parties and the circumstances under which the work was to be done. At any rate, the contract provided for the contingency and the contractor assumed the risk.

In the contract for the construction of a hospital at Carson there was an express provision as follows:

“ If any extra six (6) inch sewer is required by the party of the first part, to be constructed, the same shall be constructed by the party of the second part for the sum of eighty (80) >cents per linear foot, provided it can be and is, constructed in an earth drainage less than eight (8) feet deep, and for the sum of one dollar and fifty ($1.50) cents per linear foot, if it is required to be placed in a rock drainage less than eight (8) feet deep.”

When words are given their ordinary meaning, it is plain from this provision that in the event this six-inch sewer was constructed the plaintiff was to do the work and be paid the stipulated price. The defendant determined upon doing the work, but declined to accede to this provision of the contract and did it on its own account, irrespective of the plaintiff’s contractual rights. It is true that it was done for less than the contract price, but we are confronted with legal rights under a contract, not retrenchments irrespective of contractual rights. The defendant justifies this departure from the express provisions of the contract under article 8 of the contract itself. Said article 3 conferred upon the Commissioner of Indian Affairs the right to make changes, alterations, or omissions from the contract work. It is to be observed, however, that article 3, like all other similar provisions in Government contracts, is not unilateral. It in' express terms points out the precise way in which the commissioner shall proceed and protects from invasion the rights of the contractor, when the authority there conferred is invoked. There is not a single line or word in the article which authorizes the commissioner to invoke its provisions and deprive the contractor of his right to do work he is legally obligated to do, or preclude him from participating in the changed, modified or omitted works, to the extent at least of his decreased or enhanced compensation. There is, it seems to us, no authority delegated to the commissioner by the terms of this article to abrogate the contract and curtail the contract construction work by taking from the contractor an integral part of what the contractor agreed to do, and, because it may be done at less expense, employ someone else to do it, or substitute the defendant for the contractor.

The contention that under this article a portion of the work may be designated as omitted for the purpose of enabling the defendant to do it, is, to say the least, quite novel. In truth and in fact the work was not omitted. The very thing the contractor agreed to do, and which the defendant agreed he might do, was done. It is to-day in the ground completed just exactly as the contract contemplated it might be. Article 3 was designed to anticipate changes, alterations, and omissions in the work as it proceeded toward completion. It was a comprehensive reservation of the right to amend the plans and specifications in the course of the construction — changes, alterations, and omissions which might suggest themselves after the work was entered upon — and which could not be made if the contract was allowed to stand as a rigid and indexible determination of all its details. To hold that under this article the defendant had the right to deprive the contractor of doing Avork clearly Avithin the terms of the contract, Avhich the defendant Avanted done, and which it had decided to haA^e done, Avould, it seems to us, render Avritten agreements of this character subject to such extensive depletions in the quantum of work to be performed, and so fluctuating as to compensation to be received, that contractors avouIc! be difficult to obtain. If the defendant had a right to abstract from the contract Avork this one item and do it on its oaaui account, it had the equal right of taking aAvay any other parts from the contractor, doing them for less than they agreed to pay the contractor, and thereby imposing upon the latter the completion of all integral parts of the Avork Avhich were more expensive and costly, and depriving him of profits in the other class of work AAdrere they were more certain to accrue. Judgment Avill be aAvarded under this item for $224. See Finding XY.

The claim for extra expense caused by the change in the location of the site for the hospital at Fond du Lac, Minnesota, is alloAved. The merits of a similar controversy have been heretofore discussed under Finding IX. Judgment for $224.

The remaining claim for damages due to delayed inspection of the hospital at Mescalero, New Mexico, fails for want of proof.

Judgment is awarded the plaintiff under Findings VII, VIII, X, XII, XV and XVI, for the total sum of $4,736.53. It is so ordered.

Graham, Judge/ Hat, Judge, and Campbell, Chief Justice, concur.

Downet, Judge, took no part in the decision of this case.  