
    Alexander Swift et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants agree to build two iron-clods al a designated price, the defendants reserving the right to order changes and alterations. The contract is made March 26, 1863, and the vessels are to he completed Inj the 26th of September, 1863; hut the changes and alterations ordered prolong the worlc wntil the 6lit of Mag, 1866. During this period the cost of labor and material is increased hg the war. The claimants always accede to the defendants’ requests and perform, the additional worlc involved. Seasonable diligence is exercised hg the defendants’ officers, bul, the number of similar vessels under construction and the magnitude and intricacy and noveltg of the alterations ordered necessarily prevent them from furnishing the worlnng-plans within the time of construction designated by the contract. The claimants’ having been paid the coni/ract price by instalments, send imbills for the extra worlc. The defendants revise the bills and tender a reduced amount. The-claimants accept it and receipt therefor in full. They now sue for damages caused them by the delay, such as the increased cost of labor and material, prolonged rent for their shops, interest, andinsuran.ee.
    
    I. Where a contract Finds the claimant to build a vessel, under penalty, within a designated imriod, but re,serves to the defendant the right to order alterations, it will not be an abuse of this right if they prolong-the worlc beyond the designated period, provided the alterations ordered be incident to the novelty of the undertaking, and the orders he issued and plans be furnished without unnecessary delay. *
    
      II. Though the government order changes upon changes, and cause, delays upon delays, so that a vessel’s construction he extended through a period six times as long as that proscrihodhy the contract, yet if there bo neither intimidation nor coercion, on the one side nor remonstrance nor protest on the other, the contractor’s acquiescence, in the delay will be deemed voluntary.
    III. Where one- party to a contract hinders the- other in the performance', of his work, liis acts are in the nature of a breach, and he will be, liable in whatever damages his wrongful acts may have caused; but, where , lie merely requests additions or alterations which the other accedes to and performs, the latter cannot hold the former liable for resulting losses, but must find his compensation for incidental delay in the price which ho charges or accepts for the extra work.
    IY. Payment for one tliiiig is not payment for another, provided that the two are so distinct as to form per se independent causes of action; hut things merely incident, to things paid for cannot he treated as independent causes of action. A contractor’s insurance, rent, interest, and profits are elements of cost which, if he accepts payment for his work, cannot afterward he sued for separately.
    
      The Reporters’ statement of tbe case:
    In tbe progress of tbe suit, it was referred, on tbe.claimants' motion, to commissioners. Tbe following are tbe material parts of tbe order of reference :
    1st. To state an account between tbe claimants and the defendant for and on account of tbe claims and canses of action stated in tbe claimants’ original and amended petitions in tbe said cause.
    2d. To take into consideration every item of claim or demand covered by or embraced in tbe said petitions.
    3d. To take tbe depositions of such witnesses as either party should produce before them.
    4th. To examine and consider tbe evidence already taken in said cause, as well as such other and further evidence as either party should thereafter submit.
    5th. To state each item of claim or demand separately, and their conclusions thereon, whether of law or fact.
    6th. To note all objections to evidence, and whether tbe evidence objected to was admitted or excluded by them.
    7th. To extract from such voluminous documents or books of account or entry such portion thereof as may relate to tbe case, and return such extracts to tbe clerk with tbe other evidence used by them in stating tbe account.
    
      The commissioners reported at great length in favor of the claimants; but as the report was overruled both on the law and the facts, it is not inserted. The following are the material parts of the contract and the facts as found by the court:
    “CONTRACT FOR-IRON-CLAD STEAM-BATTERY.
    “ This contract, made and entered into at the city of Cincinnati, in the State of Ohio, the 26th day of March, 1863, between Alexander Swift, of Cincinnati, and Seth Evans, of Cincinnati, as principals, Robert Moore, John G-. Richardson, Samuel T. Hambleton, Samuel T. Hambleton & Co., Allan Collier, and John Swasey, all of Cinciniiati, as sureties; and John Lenthall, ■Chief of the Bureau of Construction and Repair, acting in the name of the Secretary of the United States of America, of the second part, witnesseth:
    “That in consideration of the payments hereinafter provided for, the party of the first part hereby contracts and agrees to construct one irony clad steam-battery, of iron and wood combined, of the following' general dimensions, viz: two hundred and twenty-five (225) feet extreme length, forty-five (45) feet extreme breadth of beam, and nine and one-twelfth (9-jV) feet total depth from top of deck to bottom of lower vessel, according to the general plans and specifications furnished, which will form a part of this contract. The working/Irawings to be made by the parties of the first part in conformity therewith to the satisfaction of the superintendent.
    “This battery to be completed and ready for service in six months from the 26th day of March, 1863, unless arrested by. any contingency which human foresight could not avert, and the work on her shall progress in proportion to the time stipulated for her completion.
    “And it is further agreed between the contracting parties that this battery shall be^completely fitted and equipped in all respects for service, with the exception of the guns, fuel, ordnance stores, and nautical instruments, to the satisfaction of the party of the second part; and the party of the first part warrant and guarantee the work conforming in all respects to the specifications, drawings, &c., furnished, which constitute a part of this contract, and are to govern the parties hereby contracting as truly as if the same were incorporated in this instrument; nor is the omission therein of any detail or object necessary to carry into effect the intent of this agreement to be to the detriment of the United States.
    “For this battery so completed and delivered at Cairo, Ill-* inois, within the six montlis stipulated, the party of the second part will pay to the party of the first part the sum of three hundred and ninety-five thousand dollars, in eight payments, in the following manner:
    
      “When there shall have been furnished by the party of the first part materials and work done to the amount of forty-nine thousand three hundred and seventy-five dollars, and certified to by the superintendent on the part of the United States, the party of the second part agrees to pay the same to the said party of the first part, on bills properly approved therefor, deducting and reserving twenty-five (25) per centum from each and every payment until after a satisfactory test and acceptance of said vessel.
    “ The party of the second part further agrees that, in addition to the price to be paid for the vessel, there will be paid to the party of the first part the additional sum of four thousand five hundred dollars ($4,500) per month for each and every month that the vessel may be delivered completed previous to the time stipulated; and the parties of the first part do hereby agree that for every month’s delay beyond the time named for the delivery of the vessel there shall be a deduction of four thousand five hundred dollars .($4,500) per month from the sum of three hundred and ninety-five thousand dollars before named as to be paid.
    “It is further agreed that the parties of the second part shall have the privilege of making alterations and additions to the plan and specifications at any time during the progress of the work as they may deem necessary and proper; and if said alterations and additions shall cause extra expense to the parties of the first part, they will pay for the same at fair and reason-, able rates; and should such changes cause less work and expense to the parties of the first part, a corresponding reduction to be made from the contract price; and in each case the cost of the alterations to be determined when the changes are directed to. be made.”
    I. The two contracts attached to and forming a part of claimants’ petition were each executed between the claimants and the United States at the time stated in the said petition, and are the contracts by and under which the claimants undertook and contracted to construct for the United States the two iron-clad batteries called, respectively, the Klamath and the luma.
    II. The said two iron-clad steam-batteries were completed by tbe claimants and accepted and received into the service of the United States on the 6th day of May, A. D. 1866.
    III. The general plan and specifications which, by the terms of the contracts, were to form a part of each of them, were delivered to the agents of the claimants on the 7th of April, 1863, and were accepted and acted upon by them as the general plan and specifications of the vessels to be built; but the same were from time to time altered and changed by the United States as imperfections or defects therein were discovered, and these changes and alterations in such plans and specifications were ordered and directed by the United States, in order to make the said iron-clad batteries more useful and effective for that public service for which they were designed, and were acted upon by the claimants; such changes and alterations being required as defects were developed from time to time, in actual service at sea and in battle, showing weakness and inefficiency in iron-clad vessels built upon the same system with those contracted for with the claimants, and specifications and drawings were from time to time furnished to cover the necessary changes to remedy such defects.
    IY. The provision in the contracts that, in case alterations should be ordered by the United States, “ the cost of the alteration should be determined when the changes were directed to be made,” was observed by the United States only in the following instances, viz:
    1st.' Letter of October 8,1863, ordering a small alteration in the lower end of port stopper, costing $160.
    2d. Letter of - October 9, 1863, ordering changes in shell of pilot-house, costing $1,000.
    3d. Letter of October 12,1863, ordering additional bulkheads, costing, $1,547.52.
    4th. Letter of February 18, 1864, ordering additional bilge-valves, costing $500.
    5th. Letter of May 27,1864, order air-valves in the water compartments, costing $1,610.
    . 6th. Special contract of September 20,1864, under which the hull of the vessel was raised twenty-two niches, for the sum of $89,000.
    The above provision of the said contracts was tacitly disregarded and laid aside by both parties from the commencement of the work required to be done 'under them, and there was practically no other attempts to carry out that provision of the contracts during the time of their performance. The United States found, upon experiment with an iron-clad battery built upon the same plans and specifications as those the claimants contracted to build, that it would not float when launched, and it was thereupon determined to raise the decks of this class of vessels twenty-two inches.
    With the exception of the special contract for raising the ves-seis twenty-two inches, when it was found they would not float, all the changes before enumerated, when an attempt was made to fix the cost thereof in advance of the work being done, were trivial, compared with the great number of changes and additions where no attempt was made to determine the cost in-advance.
    Y. The claimants received the contract price for each boat in thirteen payments; each of said payments being made upon a voucher, which was made out as “ a.payment due under their contract dated March 26, 1863, for the iron-clad shot-proof vessel Klamath” (or Yuma); they also received on sis several vouchers $115,585.33 for extra work on each boat; each of said twelve vouchers reciting that it was for work done to the light-draught monitor Klamath (or Yuma), which is extra to the contract dated-March 26, 1863. The claimants from time to time presented to the general superintendent bills for work and material which they alleged to be extra to the contract; and in ■examining these bills reference was constantly made to the contracts of March 26, 1863, and the specifications furnished April 7,1863. The result of this examination was the allowance and payment of the above-mentioned $115,585.33 and the receipt thereof by claimants in full.
    The several amounts allowed the claimants for extra labor and materials, from which the above specified amount was obtained, were not the amounts claimed- by them in the bills submitted by them to the officers of the Kavy Department for extra labor and materials furnished by them in the construction of the Klamath and Yuma, but said six vouchers, and each of them, and the amount therein specified, were made up and certified by the several officers by whom they purport to have been signed from claims for extra work and labor previously submitted to the said officers by the claimants; and .the price of labor and ■.materials, and the amount stated as allowed in the said bills, and each 'of them, were fixed and determined after consultation with ^he claimants, in some cases with their consent and in some •■cases without their assent at the time such bills were made up .and allowed. .
    The last of the vouchers for extra workon the Klamath, and the claimants’ receipt of the payment thereof, were in the words .and figures following, to wit:
    
      “ KLAMATH. — PAYMENT ON ACCOUNT OF EXTEAS.
    “New Yoke, July 11th, 1866.
    
    
      “ U. S. Waxy Department to Alex’r Swift & Oo., Dr.
    
    “ Appropriation: ‘ Oonst’n & Repair.’
    “For work clone to tbe light-draft monitor Kla-math, which is extra to the contract dated March 26th, 1863, being the hill and final payment on all extras and in full for all claims and demands for that work. $15,688 90
    “ Less outfits and equipments called for by the . contract but not furnished. 103 56
    $15, 585 34
    “I certify that the materials and labor which are extra to the contract dated March 26th, Í863, put upon the vessel Klamath, built by Messrs. Alex’r Smith and Co., amount in value to $115,688.90 (certificates having been previously given for $100,000.00), and that they are according to directions which have been given them from time to time.
    “ ROBERT DANBY,
    
      u General Inspector of Stecm-MacMnery for the Waxy.
    
    “Approved:
    “F. H. GREGORY,
    “ Dear-Admiral, Superintending.
    
    “Rec’d, Washington, July 18,1866, of C. C. Jackson, esq., paymaster, U. S. Navy, fifteen thousand five hundred eighty-five-'Too dollars, in full above bill.
    $15,585.34.] “ALEX. SWIFT & CO.
    “GUSTAYUS RICKER.
    [Twenty-five ots. internal revenue.]
    “POWEE ATT’Y.
    “Cincinnati, June 4,1866.
    “Know all men by these presents that we, Alexander Swift & Go., of Cincinnati, Ohio, do hereby constitute and appoint Gustavus Ricker, of Covington, Kentucky, our attorney, for us, and in our name, to collect all money now due or that may become due from the Government on the light-draft monitors Klamath & Yuma, and upon payment to him to receipt therefor.
    “Whatsoever our said attorney shall lawfully do in the premises, we do hereby confirm the same as if we were present and did the same personally.
    “ ALX. SWIFT & CO.
    “In presence of—
    “J. EL Weight.
    “Edwin Swift.”
    
      YI. The provision of the contracts which imposed upon the claimants the duty of making the detailed working-drawings from the plans and specifications to be furnished with the contracts was ignored, and the United States assumed control of, and took entire charge of, making and furnishing to the contractors the detailed working-drawings from the beginning to. the end of the completion of all the work contracted to be done under these contracts; and the claimants were not permitted to commence on any part of the work until the detañed working-drawings thereof had been furnished to them by the United States inspector in charge of the construction of these batteries.
    ' But the claimants never made or offered to make any of the detail-drawings, but acquiesced without protest or objection in the system of making them at the office in New York which was adopted by the general inspector.
    The acquiescence found in the preceding paragraph results from the fact that the claimants proceeded without objection with the execution of their contracts upon the working-drawings furnished from time to time by the officers of the United States.
    YU. The claimants never complained. to any officer of the United States that the specifications and plans furnished on the 7th April, 1863, did not correspond with the ones exhibited to them at the time of bidding; nor that the drawings were not 'furnished in such sequence as to enable them to progress rapidly with the work; nor that said drawings were not furnished as promptly as the work demanded; nor that they were not allowed to make or furnish the drawings according to the provisions of the contract; and the claimants never notified any competent officer of the United States that the detail-drawings so furnished called for more elaborate or costly work than they had contracted to execute, and that they would demand extra pay therefor.
    YIH. The delay in the completion of said vessels was caused in a large degree by the alterations ordered by the government in the construction thereof; but what specific portion of said delay was caused by said alterations does not appear, except that the work was partially suspended by order of the officers of the government from June 16, 1864, to September 20,1864, as hereinafter stated in Finding X.
    IX. When alterations in the plan of these vessels were determined upon by the officers of the government charged with the supervision of their construction, reasonable diligence was exercised in preparing’ the working-plans and specifications; and these were furnished to the claimants as soon as prepared. But the number of similar vessels which the government was then having constructed under contracts and upon plans identical with these in terms and design, and the magnitude and intricacy of the alterations ordered, and the novelty of the improvements sought to be effected, necessarily prevented the officers of the government from furnishing them to the claimants earlier than at the times set forth in the following table:
    KLAMATH AND YUMA.
    
      Date of contacts, March 26, 1863.
    
      
    
    
      
      Dale of contraéis. March 26. 1863 — Continued.
    
      
    
    
      X. The suspension of work from the 16th June, 1864, to the 20th September, 1864, referred to in Finding VIH, was caused by the order of June 15, 1864, issued by the Chief Engineer of the Navy to the engineer having the immediate charge and superintendence of the claimants’ work} and by the letter of June 24, 1864, from the general inspector of steam-machinery for the Navy to the claimants, hereafter set forth. The purpose of the suspension so ordered was to effect the alterations referred to in such letter; and the detailed specifications and drawings therein referred to were sent to the claimants so soon as completed, at various times between the 8th July, 1864, and the 30th August, 1864, inclusive.
    The claimants neither protested against nor objected to the suspension of the work so ordered, nor notified the defendants that any damage would result to them (the claimants) thereby. They subsequently offered to make the changes so ordered for the sum of $89,000 for each vessel, and their proposition was accepted by the letter, hereinafter set forth, of September 20, 1864; and the claimants thereafter performed the work and were paid the agreed price therefor, and receipted in full therefor by accounts and receipts in the form hereinafter set forth.
    The following are the order, and letters, and account, and receipt hereinbefore referred to:
    ■ “ June 15, 1864.
    “ To Chief Engineer Chas. H. Loeing, U. S. Navy,
    “ Niles "Worles, Cincinnati, Ohio.
    
    
      “ Suspend work on deck-beams, motive-engines, and condensers of Klamath and Yuma.
    “ J. W. KING,
    
      “ Chief Engineer, U. S. Wavy.”
    
    
      u Office of General Inspector
    “ Steam-Machinery, &o., U. S. N.,
    <£256 Camal St., New Yorh, June 24th, 1864.
    “ Alex. Swift & Co.,'
    
      u Cincinnati, Ohio:
    
    
      u Gentlemen : It has been determined to raise the decks of the light-draft monitors Klamath and Yuma, being constructed by you under contract with the Navy Department, twenty-two inches, together with all bulkheads, diagonal braces, and stanchions.
    
      “ The motive machinery, with exception of screws, will remain unchanged.
    aTlie turret and turret-pinion shafts will be lengthened twenty-two inches; the overhang at stern will be constructed of pine instead of oak; the angle of clearance of the vessel will be sharpened up, and the sides proper, for the 22 inches put on, will be of ¿-inch iron, double riveted to sides of hull, with the frames extended up and secured to under side of deck-beams, as at present contemplated.
    
      u All pipes, valves, &e., in the- water compartments will be removed.
    
      u Detailed specifications of these changes will be forwarded to you, with proper drawings, for the execution of the work— and you will suspend all work on the vessel not required in accordance with and bonflicting with, the above changes — when a proper estimate can be submitted for the cost of the extra work embraced in these changes. I am, respectfully,
    “ WM. W.' W. WOOD,
    
      u General Inspector of Steam-Machinery for the Navy?
    
    
      “ Sept. 20th, 1864.
    “ Messrs. Alex. Swept & Co.,
    “ Cincinnati, Ohio:
    
    
      “ GENTLEMEN: Your proposition of the 19th inst. to make the changes proposed in the light-draft monitors Klamath and Yuma, viz, to raise these vessels 22 inches, and place in cross-floors, stiffening plates in water compartments, and raise the boilers, in conformity to the plans and specifications submitted to you, for the sum of eighty-nine thousand dollars ($89,0000-0%), for each vessel, has been submitted to the admiral superintending, who directs that the sums named are satisfactory, and authorizes that you proceed with the work without delay, and to hurry the same to the earliest possible completion.
    
      “ The payments for the work will be made as it is completed, certificates being forwarded by the local inspector, certifying as to the amount done.
    “ I am, respectfully,
    “WM. W. W. WOOD,
    
      “ General Inspector of Steam-Machinery for the NavyP
    
    
      [Ia trixilioate. ]
    “ KLAMATH. — PAYMENT ON ACCOUNT OE ALTERATIONS.
    “New York, April 14ft, 1865.
    “ U. S. Wavy Department to Alex. Swift & Go., Dr.
    
    Appropriation: 20 iron-clad gunboats.
    On account of work done to tlie light-draft monitor Klamath, to raise that vessel 22 inches, putting in all additional cross-floors, stiffening plates in water compartments, and raising the boilers: being the full and final payment on the altera^ tions and additions named and in full for all claims and demands for that work. $22,250 00
    18,515 62
    18,515 62
    22,250
    59, 281 24
    ■“ Received, Washington, May 17, 1865, of S. P. Brown, esq., navy-agent, Washington, twenty-two thousand two hundred and fifty dollars, in full above bill.
    “ALEX. SWIFT & GO.,
    $22,250.] “Per GESTAYUS RICKER. .
    “power att’y.
    “Cincinnati, May 10ft, 1865.
    “Know all men by these presents that we, Alexander Swift & Co., of Cincinnati, Ohio, do hereby constitute and aiipoint Gustavus Ricker, of Covington, Kentucky, our attorney, for us and in our name to collect the amount due us from the Government for the following payments on the iron batteries Klamath and Yuma, viz :
    For 1st half of 8th payment on Yuma. $18,515 623,-
    “ account of work done to Yuma to raise that
    vessel 22 inches (final.payment). 22,250 00
    “ 1st half of 8th payment on Klamath. 18,515 62J
    “ account of work done to Klamath to raise the
    vessel 22 inches (final payment). 22,250 00
    “And upon payment to him to receipt therefor.
    “ Whatsoever our said attorney shall lawfully do in the premises, we do hereby confirm the same as if were present and did the same personally.
    “ALEX. SWIFT & CO.
    “ Witness :
    “ Samuel B. Fell, [seal.]
    “Edwin Swift.” [seal.]
    
      XI. The United States never made any complaints against the contractors for any lack of skill or fidelity with which they were performing the work required in the fulfillment of these contracts, nor made any complaints that they were not .prosecuting the Avork with that degree of rapidity which the contracts required, nor that the Avork of constructing these batteries as the claimants AA’ere ordered' to construct them was not progressing in proportion to the' time stipulated for their completion.
    XII. The construction of these vessels Avas under the immediate and direct supervision and control of an inspector appointed by the United States to superintend and direct such construct tion 5 and in the construction of said Aessels the work done upon them in accordance Avith the i>lan and specifications of April 7,1803, and that done and the materials furnished in the extra work required by the alterations Avliieh were ordered Avere so intermingled, that the separation and determination of the cost of each description of work is impracticable; and it is likewise imimaeticable to ascertain and determine the precise period of time AAlien the contract work and the extra Avork, respect-. rvely, became parts of the vessels.
    XIII. After the expiration of the time specified in the contracts for the completion of said vessels, the prices of the labor and materials necessary to be used in their construction rose in the markets of the country, in consequence, of the intestine war then flagraut and of the condition of the currency; and this rise in prices greatly increased the cost and expense to the claimants of constructing said vessels over what it would have been . if the vessels had been finished within the time specified in the contracts. What the amount of such increased cost and expense Avas does not appear, nor does it apjiear what proportion thereof Avas connected with those parts of the vessels which were constructed according to the plan and specifications of April 7, 1863, nor how much thereof was in connection Avith those parts which were alterations of and additions to those specifications. It also appears that previous to the date of the contracts the prices of labor and materials had been rising.
    XTV. Had no alterations or changes been made by the United States in the plans and specifications for the construction of said vessels, and had the United States furnished the plans and working-drawings according to the original designs, without alteration, and a? required by tbe claimants from time to time in snob construction, tbe work required of tbe claimants by tbe said contracts and by tbe specifications forwarded to tbe claimants on tbe 7tb April, 1863, could bave been completed by tbe 1st day of April, 1864.
    XY. Tbe delays in tbe construction of tbe said vessels subsequent to tbe said 1st day of April, 1864, were caused by tbe alterations and changes made by tbe United States, as set forth in Findings III and IX.
    And tbe claimants requested tbe court to find tbe following facts; but tbe court refused so to do, for tbe reasons that no breach of tbe contracts bad been shown, and that tbe payments and acquittances set forth in tbe preceding findings fully discharged tbe defendants from all liability to tbe claimants upon tbe original contracts and upon tbe express and implied contracts for tbe changes and alterations ordered by tbe defendants’ officers, and for tbe further reason that tbe facts requested do not constitute a proper measure of damages :
    “I. That tbe actual cash disbursements-which tbe claimants made for tbe labor and materials which entered into and were required in tbe construction of tbe said iron-clad batteries was tbe sum of $1,297,785.10, and of this sum tbe claimants bave received from the “United States tbe sum of $1,205,970.10.
    “II. That twenty per centum of tbe actual cash cost of such labor and materials as was required in tbe construction of these batteries is, by tbe custom of persons engaged in manufacturing such structures, added as a reasonable and proper cb arge for doing such work as was required in tbe cons traction of these batteries to cover tbe items of cost of superint endence of work and ship-yard, and use of shops, wear a nd tear of machinery, insurance on shops and machinery, and other incidental expenses relating to such business, and this per centum forms a part of tbe actual cost of tbe said batteries.
    
      “III. That tbe actual loss to tbe claimants of constructing tbe said iron-clad batteries over and beyond what they bave received from tbe United States under tbe contracts, or for work and materials which were extra to tbe contracts, is tbe sum of $267,557.08.
    “IV. That tbe actual cost to tbe claimants of furnishing tbe labor and materials required by tbe said contracts to be furnished and used in tbe construction of the said batteries, over and beyond what tbe same labor and materials would bave cost bad they been furnished on or before tbe 1st day of January, 1864, was tbe sum of $268,858.59, and this result is obtained by assuming that tbe work done and materials furnished subse quent to January 1, 1864, is represented by the sum of $1,001,535.10, which, sum is obtained by deducting from the total cost the amount of $296,250 paid prior to that date; and that the increased cost of all the work done subsequent to that date is represented by the sum of $259,538.83; and that the contract work and materials is represented by the sum of $585,564.32, which sum is obtained by deducting the amount paid for extra labor and materials, $415,970.78,. from the above sum of $1,001,535.10.
    
      u The increased cost of the contract work and materials is obtained by the following proi>osition in proportion:
    “ $1,001,535.01 : 259,538.83 : : 585,564,32 : 151,743.73.
    “ And to this sum is added twenty per cent, on the contract work and materials, which produces the sum of $117,112.86; and these two sums produce the amount of $268,856.59, which represents and is the increased cost of the contract work and materials furnished after the above date.”
    And the claimants likewise requested the court to find the following fact; but the court refused to find the same except so far as already found in Finding V, for the reason that the fact requested was against the weight of evidence, to wit:
    That they (the claimants) 11 were neither heard before nor consulted by such officers at any time before the said several bills were made up and allowed by the said officers ; but the price of labor and materials and the amount stated as allowed in the said bills, and each of them, were arbitrarily fixed and determined without consultation with or the assent of the claimants at the time such bills were made up and allowed.”
    And the claimants likewise requested the court to find the following fact; but the court refused to find the fact requested, for the reason that the motive which actuated the claimants was not a proper subject of judicial ascertainment, and did not affect the rights of the defendants, to wit:
    That they the claimants acquiesced in the defendants’ furnishing the working-drawings, as set forth in Finding YI, “ with the knowledge and belief on the part of the claimants that any protest or objection by them against the system of furnishing such detail working-drawings would have been useless and unavailing.”
    And the claimants likewise requested the court to find the following facts; but the court refused to find the facts so requested, except so far as the same are already found in Findings XIY and XY:
    
      u I. That had the defendant kept and observed the obligations and stipulations of said contracts on its part, by furnish-fug in apt and reasonable time tbe plans and specifications of the work contracted to be done under them, as well as the detail working-drawings thereof, the work required of the claimants by the said contracts and the specifications which were forwarded to the claimants on the 7th day of April, 1863, could have been completed by the first day of January, 1864, proidded no alterations therein or additions thereto had been directed to be made by the United States; and both the claimants and the United States intended and contemplated the completion of the said batteries within the time specified in the said contracts at the time they were made. •
    11II. That the delays which the claimants suffered, and to which they were subjected by the acts of’the authorized officers and agents of the United States, were as follows:
    
      “ 1st. Delays caused by and resulting from the inability and failure of the authorized officers and agents of the United States tp furnish to the claimants within apt and reasonable time the plans and specifications, and the detail working-drawings thereof, of the work required of the claimants under the said contracts.
    “ 2d. Delays caused by and resulting from the making of alterations in and additions to the work which the claimants contracted to do under the said contracts, and by the inability and failure of the authorized officers and agents of the United-States to furnish, within apt and reasonable time, the plans and specifications and the detail working-drawings of such alterations and additions to the contracts.”
    
      Mr. Samuel Shellabarger (with whom was Mr. John J. Weed) for the claimants:
    1. If by defendants’ fault or breach of its contract the defendants delayed the performance of our contract to a time beyond the contract time of completion, or beyond the time at which complainants would have completed it, then the defendants are liable to the plaintiff for whatever legal damages resulted from such enforced delay in such completion.
    2. A contract like the one in suit, requiring claimants to sell and supply the government with work and materials at a designated price, within a designated time, as a matter of law devolves on the defendants the reciprocal obligation to do no act which shall prevent such performance within such time (Smith v. United States, 4 Otto, 214); and such a contract contemplates and covers any damages which should arise to the contractors through the breach of such contract, whereby the 'contractors were prevented from providing such work and material as soon as be would otherwise have done, and that included in such damages is any increased cost in the market of said' work and material which the contractors were required to supply, and which ivas supplied and accepted by the government.
    3. Independently-of special knowlédge by the defendants possessed at the date of the contract and of its breach, the law implies, in a case like the one stated in the preceding proposition, that the parties contemplated compensation for any increased cost in the market of said work and material so to be provided and furnished by the contractors which might be forced upon the contractors through the delay caused by the defendants’ breach of the contract; but such is especially the case where both the contract and its breaches occurred when the defendants had full knowledge that the prices of said work and material were rapidly augmenting and must continue to augment during all the periods into which said breaches of contract were pushing and postponing .the completion of said work.
    4. Such a contract as is involved in this suit, in authorizing the defendants to make changes, does not authorize changes of a character, nor to be ordered at a time, which could not reasonably permit the completion of the contract within the contract tim e; and if such be ordered and submitted to and executed, the law implies that it is done upon the condition of making full compensation for all the damages resulting from such a breach so compelling the work to be. done at a time more expensive than that in which the work would, otherwise have been completed.
    5. The fact that the complainants proceeded to complete the work, notwithstanding said breaches of contract by the defendants, is no waiver of the right to compensation for the damages sustained in being compelled to furnish the work and materials at increased cost; but, on the contrary, the contractors had a right to proceed with the work after the breach, and compel the defendants to pay the increased expenses incurred by reason of the delay.”
    
      Mr. John J. Weed for the claimants:
    1. The United States is liable upon an action in indebitatus assumpsit fbr the increased cost of completing and fulfilling the contracts into which the claimants entered with the United States, if sucb increased cost resulted from tbe acts of tbe United States. (Dermot v. Joaev, 2 Wall. 9; Dubois v. Delaware and Hudson Canal Co., 4 Wend., 291.)
    2. Tbe contract between tbe United States and tlie claimants having been fulfilled and performed by tbe- claimants, and tbe United States, having received and accepted tbe benefit of tbe claimants’ labor and materials, is liable upon an implied contract to make compensation to tbe claimants for any increased cost, rendered necessary by its acts of omission or commission, which resulted in causing sucb increased cost, although some . portions of tbe labor and materials furnished may have been paid for upon tbe terms specified in tbe special contracts between tbe claimants and tbe United States.
    3. If, as tbe evidence shows, tbe construction of tbe iron-clad ■batteries which tbe claimants contracted to construct for tbe United States was “ a novelty,” an experiment, and tbe actual requirements which should make these iron-clad batteries useful for tbe service for which tbe United States designed them could only be ascertained and determined by “ experience ” and experiment, then it necessarily results that tbe United States, and not tbe claimants, must bear tbe cost and expense of testing tbe experiments which resulted in tbe construction of these batteries by tbe claimants for tbe use and benefit of tbe United States.
    4. Even if tbe United States, in tbe contracts, bad reserved tbe right to make alterations in and departures from tbe contracts, it was bound to direct sucb alterations to be made in sucb apt time as would not prevent the claimants from completing their contracts within tbe contract time.
    Tbe claimants bad an absolute right to complete them contracts “within six months” from their respective dates. Time was a controlling element of tbe contracts, not only so far as tbe United States was concerned, but with tbe claimants. Tbe United States was bound, therefore, to do no act which would prevent tbe attainment of that result.
    5. Tbe United States, having bound tbe claimants to complete tbe work required by their contracts by a specified time, was bound to do no act and leave none undone which would prevent tbe accomplishment of that result; and although tbe contract is silent as to tbe defendants’ duty in this respect, yet the law impbes that it should not interpose any unreasonable delay by wMcIl the claimants would be prevented from completing their work by the time specified; and it is a general principle, applicable to all contracts, that whatever may be fairly implied from their terms is, in judgment of law,.contained in it. (See v. Partridge, 2 Duer, 470.) ■
    6. The United States, having required the claimants to build for it more expensive iron-clad batteries than their contracts contemplated or required, and having received and accepted from the claimants such batteries, is liable to pay therefor the cost thereof, notwithstanding the cost of such batteries may have exceeded the contract price.
    7. Even if it is true that those provisions of the contracts which required the completion of the batteries within a specified time were waived by the United States, and the United States subsequent to that time received and accepted the labor and materials which the claimants furnished and used in the construction of the said batteries, still the claimants are entitled to recover, and the United States is legally liable to pay what such labor and materials were worth at the time they were furnished to the United States, unless such waiver of that requirement of the contracts was at the instance and request and for the benefit of the claimants.
    8. The commissioners were correct in the declaration made by them in their fifth finding, that “it was unimportant and immaterial to ascertain or determine whether or not the claimants could have completed the work required under the said contracts within the time specified therein respectively,” for the reason that the United States were first in default, and that in consequence of such default the claimants were hindered and prevented from completing their work within the contract time; and it will always excuse the performance of a condition precedent that performance was hindered or prevented by the other party. (Camp v. Barker, 21 Vt., 469; The Mayor, &e., ofWeio York v. Butler, .1 Barb., 338; Maine v. Haight, 14 Barb., 77; Marshall v. Craig, 1 Bibb, 384; Majors v. Hielcman, 2 Bibb, 218; Jones v. Waiker, 13 B. Mon., 163.)
    9. The fair and reasonable value of the labor and materials which the claimants furnished to the United States in the construction of these batteries is the market value of such labor and materials at the time and place when and where such labor and materials were furnished, unless the price or value of such materials had been previously fixed by special contract previous to the time when such labor and materials were furnished; and such special contract was recognized by the parties, and in force at the time such labor and materials were furnished.
    10. If an article manufactured under contract or upon an order is of a character so anomalous or novel as to be fitted but for that use for which it is manufactured, and by reason thereof has no “market value,” then the manufacturer thereof, if no contract has been made to make compensation for the construction or manufacture thereof, as constructed, is entitled to recover for the value of the labor and materials which entered into the manufacture of such article, and such value is not merely the naked cost of the labor and materials used, but in-includes as well such fair and reasonable percentage added thereto as may be shown to be customary among persons engaged in the manufacture of similar articles, and these two elements — the labor and materials — and the usual and customary percentage added thereto are to be taken into consideration in determining the “ actual cost” as distinguished from the “ market value” of such article.
    ' 11. If by the acts of the officers and agents of the United States such articles of labor and materials as the claimants furnished to the United States in the construction of these batteries, under the special contracts for their construction, were so mixed and intermingled with those articles of labor and materials which entered into the construction of the said batteries, and were outside of and extra to those furnished under the special contract, that each of such articles of labor and materials cannot be separated from the other, then the United States is legally liable to pay to the claimants the actual cost of the labor and materials furnished to the United States and used in the construction of these batteries, with a fair and reasonable profit on the cost of these batteries at the time they were accepted and received by the United States.
    12. The claimants having shown a readiness and ability to perform the contract for the construction of these batteries within the time specified therein respectively, and having shown that the failure to perform within that time resulted from the authorized acts of the officers and agents of the United States, the United States is legally liable to the claimants for all the loss and damage sustained by the claimants in consequence of such acts, unless such loss and damage accrued from some other cause which did not result from the acts of such agents; and the burden of proving the fact that such loss and damage resulted from some cause or causes to which the acts of such agents did not contribute rests upon the United States.
    13. The case of the claimants is not ruled or decided by the decision of the Supreme Court in the case of Choteau, assignee of McCord, v. The United States, decided at the present term of that court.
    
      Mr. John 8. Blair (with whom was the Assistcmt Attorney-General) for the defendants:
    The case is ruled by the case of MeOord v. The United States (9 O. Cls. B., 155), and the same case in 95 U. S., 61, and therefore the claimants cannot recover upon either basis of computation adopted by the commissioners.
    If, after the wort is completed, the plaintiff receives the contract price and adjusts, settles, and receives the cost of the extra work, receipting in full therefor, there is nothing left upon which to base an action, and it is immaterial whether, at the time of trial, it is possible from the evidence to separate the work done under the original contract from the alterations, if the adjustment and settlement for extras was based upon an attempted separation of the extras from the contract work. However unsatisfactory and incomplete this separation was, it is binding upon the plaintiff, if he receipted in full for the amount thus ascertained. If the plaintiff, during the construction of the work, repeatedly received the contract price without objection, and at no time before completion of the vessel intimated a desire to rescind the contract, it remained in full vitality, and is to-day, what it was originally, an agreement to receive the contract price for so much of the vessel as corresponded with the original contract. His continued silence and his repeated receipt of the installments of. the contract price was equivalent to saying “ I go on upon the old terms.” Whenever the United States violated the contract by unreasonable delay in furnishing drawings, the plaintiff had a right to rescind it, but this right was one which he was bound to exercise as soon as it accrued; going on with the work was a waiver; he made bis election, and be must stand by it. (Merrill v. I. and O. B. B. Go., 16 Wend., 586; Hawkins v. The United States, 12 O. Ols. B., 181.)
    Tbe principle we contend for is “ that tbe possibility of consequential damages being in tbe contemplation of both parties is not sufficient. There must have been express recognition by tbe defendants of tbeir responsibility therefor.”
    That tbe rise or fall of market prices is too remote for consideration is sustained by tbe following authorities: Smeed v. Ford, 1 E. & E., 602; Conger v. H. B. B. B., 6 Duer, 375; Jones v. F. Y. & F. B. B., 29 Barb., 633; Wibert v. F. Y. <& F. B. B., 19 Barb., 43; Fdgar v. Boies, 11 S. & E., 445.)
    Tbe acceptance of each and every drawing and going to work thereon was a waiver by plaintiffs of any obligation on tbe part of defendants to furnish said drawings in a reasonable time. Smith’s Leading Cases (vol. 1, p. 578, 6th Am. ed.) says: “Uo one who waives or dispenses with tbe performance of a contract can rely upon tbe failure to perform it either as a defense or a cause of action, for no one can complain of á default which be has caused or sanctioned;” and cites Shaw v. The Leioistoion Turnpike Go., 2 Penn. St., 454; MeKee v. Miller, 4 Blackf., 222; Young v. Hunter, 2 Seld., 203; Boutwell v. O’Keefe, 32 Barb., 434; Hart v. Lanman, 29 id.., 410.
   Nott, J.,

delivered tbe opinion of tbe court:

This case comes before us on tbe report of commissioners, to whom it was referred on tbe claimants’ motion and exceptions filed thereto by tbe defendants. Tbe court, acknowledging tbe immense labor expended on tbe case by tbe commissioners and regretting tbe needless expense which tbe claimants bave imposed upon themselves, is nevertheless constrained to say that tbe commissioners proceeded upon a false theory, and that tbe case must be considered upon tbe finding of facts now substituted for tbeir report.

Tbe court has given prolonged and careful consideration to tbe elaborate arguments of tbe eminent counsel who presented it for the claimants, and has little doubt of very serious losses having been incurred by tbe claimants in consequence of alterations and delays ordered by tbe defendants’ officers, but is never-tbeless constrained to bold that some of these losses were not such as are known to the law as damages, and that the, remainder were given away by the settlements into which the claimants (in a legal sense) voluntarily entered. The amount sought, to be recovered is very large and the elements of damage are of unusual magnitude, but the questions presented by the case are not involved, and the principles which must control our decision are few and simple.

Briefly stated, the principal facts amount to little more than these:

The claimants agreed to build two vessels at a stipulated price, and the defendants reserved a right to order changes and alterations in the work. The defendants requested alterations to be made, and the claimants acceded to the request and performed the additional work involved. The claimants, having been paid the contract price of the original agreement, sent in their bills for the extra work and materials. The defendants revised the bills and tendered a reduced amount. The claimants accepted the reduced amount and receipted therefor in full. What, then, is left for a party thus circumstanced to sue for ?

The claimants’ counsel are understood to answer this question by saying that while the defendants had the right to order alterations, still, that the sum-of the alterations ordered should have b,een restricted to such an amount as would not necessarily have extended the entire work beyond the fixed period within which the contract bound the contractors to complete it. A serious question of construction might be presented here, if the claimants had stood upon their supposed contract rights and the matter were res nova. But the acts of the claimant and the decision of the Supreme Court in Choteau’s Oase (95 IT. S., 01) remove all doubt. The contract there and the contract here were identical in terms, and the alterations ordered and delays caused were substantially the same; but we understand the Supreme Court to have decided, in effect, that so long as the alterations ordered were incident to the novelty of the undertaking and were made by the officers of the government without unnecessary delay, they must be regarded as coming within the defendants’ privilege, secured to them by the pro-Adsion of the contract, and cannot be regarded as forming a ground for damages. >

The claimants’ counsel are further understood to say that tbe defendants’ officers ordered changes upon changes and caused delays upon delays, so that the construction of the vessels was extended through a period six times as long as that prescribed by the contracts, during which the prices of material and labor were constantly rising; that the defendants, while thus greatly enhancing the actual cost of the vessels, paid to the claimants for the contract work nothing more than the contract price; and that the acquiescence of the claimants in the alterations and delays ordered and caused by the defendants’ officers was not voluntary, they, in fact, yielding to the eminent necessity of the day, which would have justified the government, if they had refused, in seizing their works and making the alterations with its own employés. Whatever may have been the motive of the contractors, it is certain that in all the transactions, correspondence, and conversations between the parties there is not a vestige of threats, intimidation, or coercion on the one side, nor of objection, remonstrance, or protest on the other. The overshadowing power of the government may have been before the eyes of the contractors, but it does not appear upon the records of the case. Judged'by the evidence which the claimants have produced, all of their acts were voluntary, and their rights in the premises must be measured by the rule which would be applied to ordinary contractors.

That rule is briefly this: Where a defendant has hindered and delayed a plaintiff in the performance of his work, as in Smith's Case (11 C. Cls. R., 797, affirmed 94 U. S., 214), his acts are in the nature of a breach, and he is liable to the plaintiff in whatever damages his wrongful acts may have caused; but where, as in this case, the defendant requested additions to or alterations of the contract work, which the plaintiff acceded to and performed, the latter cannot hold the defendant liable for resulting losses by treating the transaction as a breach, but must find his compensation for incidental delay in the price which he charges or accepts for the extra work.

In contemplation of law, such a plaintiff consented to the change; the motive or consideration operating upon his mind was the profit which he expected to make on the extra work. If a new contract by the voluntary agreement or consent of the plaintiff thus took the place pro tcmto of the old one, and the delay which followed was incident to the changes agreed upon, no breach, can be imputed to the defendant; and, consequently, the measure of damages which must govern the case is not that which applies to cases of breach, viz, that the jury will find such damages as will make the plaintiff whole.

One item in the case furnishes a clear illustration of this principle (Finding X). The defeiidants ordered a suspension of the work. The purpose of the suspension, as the claimants were informed, was to effect certain alterations and enlargements in the vessels. The suspension continued from the 16th June to the 20th September. The claimants neither protested against nor objected to the suspension of the work so ordered, nor notified the defendants that any damage would result to them thereby. So soon as the detailed specifications and drawings were furnished to them, they offered to make the changes ordered for the sum of $89,000 for each vessel. Their proposition was accepted, the work was done, and the price paid. Nothing had been said on either side about. damages caused by the delay, nor did the claimants reserve a demand for such damages when they made their offer nor when they accepted payment for the work. Upon such a statement of facts the law supposes that they included their damages in the price which they asked, and found compensation for their losses during the period of suspension in the profits which they made or expected to make out of the new work.

But the claimants further insist-that the price paid for other extra work done under implied contracts, that is to say, for the greater portion of the changes and alterations ordered, was arbitrarily fixed and determined without consultation with or the assent of the claimants,” and that their acceptance of the amount tendered, accompanied by the giving of receipts in full, does not bind them as a final settlement of their demand. To this it must be replied that they should have done in 1866 what they have done now; they should have brought an action against the government if they did not intend to accept payment at the rates fixed by the defendants’ officers. That want of money does not constitute duress, and that acceptance of payment and giving a receipt in full, when the price was not a matter of express agreement, is a conclusive and final settlement binding theparty, are propositions which have been so repeatedly decided of late in similar cases, that it is unnecessary to cite authorities or discuss them further. Whether the claimants were consulted or willingly acquiesced in the reductions made by the defendants’ officers is utterly immaterial, so long as it appears that they voluntarily accepted the payment tendered as payment in full.

This brings us to the last and most involved position taken by the claimants, which is that the payments made for extra work did not in fact include everything which the claimants should have been paid for, and are to be regarded as final and conclusive only so far as they go. Unquestionably payment for one thing is not necessarily payment for another, provided the two things are so distinct as to. form per se independent causes of action. Payment for the smoke-stack of the vessel would not include payment for her anchor; payment for the vessel would not necessarily include payment for her cabin furniture. But here we find that the things for which a recovery is sought are really things incident to the things paid for. Undoubtedly, if the claimants had not accepted payment for the extra work and had brought their action, these things would have formed elements of damage when the court came to determine the amount of its judgment. But they cannot be set up separately or regarded as anything more than a part of the cost of the things paid for. The tilings sued for are delay, insurance, rent, interest, and profits, things which enter into every business and form elements of cost in every article bought and sold. In ordinary cases they are rarely a subject of consideration, and they come to the surface here only because the magnitude of this case is such that they are in a measure tangible from their extraordinary dimensions.

If the claimants had gone to a carriage-maker to build them a wagon with wooden hubs at a specified price, and after the wheels were built had requested him to put in iron hubs of a peculiar pattern, and had subsequently paid him the contract price of the wagon and his bill, less their reductions, for the iron hubs and alteration, and he liad receipted for both payments as payments in full, what would be thought of his subsequently bringing an action against them and assigning as damages the rise of prices of material that went into the wagon during the period of delay, the rent of his shop, interest on his capital, insurance on his stock, and profits on the material purchased and Avages paid'? Yet these are precisely the elements of cost Avhieh form the subject-matter of this suit. We are of the opinion that they should have been included in the prices paid for the extra work. If an authority be necessary to sustain so plain a proposition, we think it can be found in the recent case of Baird (96 U. S., 430).

The judgment of the court is that the report of the commissioners be not confirmed, that the findings of fact now filed stand in lieu of suclnreport, and that the claimants’ petition be dismissed.  