
    EDWARD WILLIAMS v. THE UNITED STATES.
    [No. 15213.
    Decided January 12, 1891.]
    
      On the Proofs.
    
    The contract says: “ The party of the first part is authorized and empowered, after eight days' notice thereof in writing, to talcepossessionof the work and to complete it." The officer in charge takes possession without giving the notice, and the Government brings an action against the contractor for the cost of completing the work. The court directs a verdict in favor of the contractor, who now brings suit- for the profits he might have made.
    I. A power of forfeiture must be strictly construed. If an antecedent duty be omitted, the act of forfeiture will be void.
    II. Where a contract authorizes the Government in case of nonperformance to complete the work at the contractor’s cost “ after eight days’ notice in writing," the giving of the notice will be a condition to annulling the contract.
    Til. Where a defendant filed several pieas and obtained a verdict, it may be shown in a subsequent action upon which plea the defense really rested.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    L On the 14th day of December, 1881, the claimant and the defendants entered into a certain contract as follows:
    
      “ Whereas, in accordance with law, by duly published notice, a copy whereof is hereto annexed, proposals were invited as therein set forth: Now, this contract, made and entered into by and between James G-. Hill, Supervising Architect of the United States Treasury Department, for and in behalf of the United States of America, of the first part, and Edward Williams, of the city of Washington and District of Columbia, of the second part, to whom was awarded the contract to furnish, deliver, and lay complete all the slate required for the main roof and dome of the United States court-house and post-office building at Philadelphia, Pennsylvania, on his bid for the same received under said notice, witnesseth : That the 'party of the second part covenants and agrees to and with the party of the first part to furnish, deliver, and lay complete all the slate required for the maiu roof and dome of the United States courthouse and post-office building at Philadelphia, Pennsylvania, in accordance with general drawings marked Nos. 13, 16, and 17, and the terms of the advertisement and specification, a copy of which said advertisement and specification is attached hereto and forms a part of this contract, and said drawings, bearing the signatures of the parties hereto, are on file in the office of the Supervising Architect of the Treasury Department and are hereby made a part of this contract.
    ‘•And the party of the second part further covenants and agrees that all of the slate used shall be the slate known as “ Heinback Hand,” as per sample No. 2 submitted by the party of the second part with his bid, and that the slate shall be of the very first quality and free from every defect, and in the execution of the work to use Farqubar’s galvanized iron fasteners, and that all of the work shall' be executed in the most skillful and workmanlike manner, and that both the materials used and the work performed shall be to the entire'and complete satisfaction of the party of the first part.
    “The party of the second part further covenants and agrees to lay said slate at such times and in such quantities as may be required by the party of the first part, the entire work to be completed within eight weeks after the completion of the iron work of the roofs of the said building, it being understood and agreed by and between the parties hereto that if through any fault of the party of the first part the party of the second part is delayed in the execution of the work provided for in this contract, and is thereby prevented from completing the same within the time above stated, the party of the second part shall be allowed one additional day to the time above stated for each and every day of such delay as ascertained by the party of the first part. • And it is understood and agreed by and between the parties hereto that if the party of the second part shall fail to comply with the terms of this contract which relate to the time within which the said work, or parts thereof, are to be completed, the said party of the second part shall forfeit the sum of twenty-five dollars ($25.00) per diem for each and every day thereafter until the completion of the contract by the party of the second part, subject, however, to the discretion of the Secretary of the Treasury, which sum shall be deducted from any money which may be due him; and, if that amount be not due, then the party of the second part agrees to pay the same.
    “ It is further covenanted and agreed by and between the parties hereunto that if the said party of the second part shall fail to prosecute the work herein contracted for with such diligence as, in the judgment of the party of the first part, will insure the completion of the said work within the time herein-before provided, or shall fail to comply with any of the terms of this contract, and thereby, in the judgment of the party of the first part, hazard the satisfactory completion of the work, as hereinbefore stipulated, the said party of the first part is authorized, and empowered, after eight days' due notice thereof in writing, served personally npon or left at the shop, office, or usual place of abode of the said party of the second part, or with his agent, and the said party of the second part having failed to take such action within the said eight days as will, in the judgment of the party of the first part, remedy tbe default for which said notice was given, to take possession of the said work in whole or in part, and of whatever machinery, tools, or materials belonging to the said party of the second part and employed thereon, and to complete the said work, and to supply the labor, materials, and tools, of whatever character, necessary to be purchased or supplied by reason of the default of the said party of the second part, and the actual cost thereof shall be deducted from any moneys due or owing to the said party of the second part on account of this contract, and, if that amount be not due, then the actual cost thereof shall be repaid to the party of the first part on demand.
    “ And the said party of the first part, acting for and in behalf of the United States, doth covenant, promise, and agree to pay, or cause to be paid, unto the said party of the second part, or to his heirs, executors, administrators, or assigns, in lawful money of the United States, in consideration of the herein-recited covenants and agreements made by the party of the second part, the sum of eight thousand nine hundred and forty-five dollars ($8,945.00).
    “ Payments to be made in the following manner, viz: Ninety per cent, (nine-tenths) of the value of work executed will be paid from time to time, as the work progresses, in monthly payments (the said value to be ascertained by the party of the first part), and ten per cent, (one-tenth) thereof will be retained until the completion of the entire work and the approval and the acceptance of the same, by the party of the first part, which amount shall be forfeited by said party of the second part in the event of the nonfulfillment of this contract, subject, however, to the discretion of the Secretary of the Treasury, it being expressly stipulated and agreed that said forfeiture shall not relieve the party of the second part from liability to the party of the first part for all damages sustained by reason of any breach of this contract. It is further covenanted and agreed between the parties to this contract that the party of the second part shall execute, with two or more good and sufficient sureties, a bond to the United States in the sum of three thousand dollars ($3,000), conditioned for the faithful performance of this contract and the agreements and covenants herein made by the said party of the second part. It is an express condition of this contract that no member of Congress or other person whose name is not at this time disclosed shall be admitted to any share in this contract or to any benefit to arise therefrom, and it is further covenanted and agreed that the contract shall not be assigned, and that any assignment thereof shall be a forfeiture of the same. It is further covenanted and agreed by and between the parties hereto that this contract shall be valid and binding when approved by the Secretary of the Treasury, and not otherwise.
    “ In witness whereof the parties hereto have hereunto subscribed their names and affixed their seals this 14th day of December, A. D. 1881.
    “Jas. G-. Hill, [seal.]
    “ Supervising Architect.
    
    “Edward Williams'.” [seal.]
    II. In connection with said contract the said petitioner and others executed and delivered to the defendants the following bond:
    “Know all men by these presents that we, Edward Williams, of Washington, District of Columbia, and William E. Williams, John S. Davis, John E. Williams, Robert L. Jones, and Griffith Williams, all of West Bangor, county of York, and State of Pennsylvania, sureties, are held and firmly bound unto the United States of America in the sum of three thousand dollars ($3,000), lawful money of the United States, for the payment of which, well and truly to be made to the United States, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents.
    “ Sealed with our seals and dated this twenty-eighth day of Decembi-r, A. D. 1881.
    “ The condition of the above obligation is such that whereas the said Edward Williams has entered into a certain contract, hereto attached, with James G. Hill, Supervising Architect of the United States Treasury Department, acting for and in behalf of the United States, bearing date the fourteenth day of December, A. D. 1881: Now, if the said Edward Williams shall well and truly comply with the conditions of said contract, and shall perform all of the undertakings therein stipulated by him to be performed, then this obligation to be void; otherwise to remain in full torce and virtue.
    “ In testimony whereof the said William E. Williams, John S. Davis, John E. Williams, Robert L. Jones, and Griffith Williams have hereunto subscribed their hands aud affixed their seals the day first above written.”
    III. At the time of the execution of said contract and bond, there was outstanding an agreement for the erection of the iron work on the roof and dome of said building, between defendants and Dwight & Hoyt, whereby the said Dwight & Hoyt agreed to construct the same by Jan’y 15,1882. This fact was known to claimant when he entered into said agreement. The agreement with D wight & Hoyt provided a penalty of $25 for each day’s delay after said date.
    IY. On the 6th October, 1883, claimant received the notice, which is annexed and marked Exhibit “B.” On that day the scaffolding of the iron contractors was in the way and the work was not in a shape for claimant to proceed. The iron work on dome was not finished. Claimant performed no work on the building after receipt of said notice; was prevented from proceeding with work by the defendant at said time. Said exhibit is as follows:
    “ Treasury Department,
    “Office Supervising- Architect,
    “ October 6th} 1883,
    “ Mr. Edward Williams,
    “ 227 Race Street, Philadelphia, Pa.
    
    “ Sir : No answer having been received to office letter of the 13th ultimo relative to the completion of your contract for the slating of the dome roof of the Philadelphia post-office and the Department having been advised by the superintendent of the building that you had signified to him your inability to proceed with the work, you are advised that a contract has been made with other parties to finish the slating. The cost of doing the unfinished work will exceed by one thousand six hundred and forty-nine dollars ($1,649.00) the amouut unpaid under your contract.
    “Your attention is called to the last clause (printed) on the second page of your contract, under which, you are liable for the excess of cost over your contract price, and you are hereby notified that you and your bondsmen will be held therefor. “ Very respectfully,
    “R. H. Thayer,
    “ Acting Supervising Architect
    
    It does not appear that the claimant had signified, to the superintendent of the building his inability to proceed with the work.
    Y. Between the execution of the contract and December 31, 1882, claimant had completed the work on the mansard roof, having laid 174 squares of slate. This work was accepted and estimated tobe worth $30 per square by the U. S. superintendent in charge of the building, and approved vouchers were made out in the sum of $5,220. From said vouchers ten per cent., amounting to $522, was retained by the Government. Other work done by him under said contract was estimated by the same officer at $440, of which $396 was paid and $44 retained. These payments were all made upon vouchers certified to by John McArthur, jr., superintendent of said building; none of them received the personal approval of the Supervising Architect.
    VI. Had the claimant been allowed to complete his contract the profits to him on the unfinished work would have been the sum of $285.
    VII. To the August term of the district court of the United States for the eastern district of Pennsylvania a suit in debt was brought by the defendant against claimant on the bond dated December 28th, 1881, and hereinbefore set forth, alleging a breach of the covenants of said agreement. In this suit the claimant pleaded non est factum, payment with leave and, set off. In the trial of said cause the court instructed the jury to find for the defendant, and in pursuance to that instruction the jury found the issues-for the defendant.
    The court held that, inasmuch as it did not appear from the evidence that a notice, either verbal or in writing, had been served-on the defendant of the intention of the Government to discharge the defendant as set forth in Exhibit “B,” the plaintiff could not recover, and instructed the jury to find for the defendant, which was done as aforesaid. It does not appear that the plaintiffs appealed in said case.
    Upon the foregoing findings, the court determined as a conclusion of law that the claimant was entitled to recover the sum of $851 and that the counterclaim of the defendants should be dismissed.
    
      Mr. John 8. Blair (with whom was Mr. J. K. McGammon) for the claimaht.
    
      Mr. F. P. JDeioees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    Under the circumstances the contractor and sureties were not liable on the bond, but it by no means follows that the contractor was not liable on his contract.'
    “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases and must be determined on its merits. If the suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” (Hughes v. United States, 4 Wall., 327; Packet Go. v. Sickles, 5 Wall., 592.)
    The contract was that the entire work should be completed within eight weeks after the completion of the ironwork of the roofs of said building. The time of the completion of such ironwork was indefinite. The only delay in the ironwork was in the dome; in the other parts of the roofing it was way ahead of the contractor. There was no complaint made by plaintiff of delay in the ironwork of the dome until about the time lie bad made up- his mind to throw up the contract.
    
      Gibbon’s Case (109 U S., 200) is in substance that the Government officials should not mislead a contractor under the pretense of aiding him. In that case he was led by the acts of Government to believe that a wall was uninjured, which, after the execution of the contract, he was required to tear down and rebuild.
    The Government may be liable for breach of contract under some circumstances where extra work is required and done or where losses have resulted by work done under the contract after unreasonable delay on the part of the Government. In the case at bar it does not appear there was unreasonable delay on the part of the Government. If there was, plaintiff can not complain, as he did not do the work. His position is not the same as the claimant’s in any of the cases cited.
   Weldon, J.,

delivered the opinion of the court:

The claimant and defendants on the 14th of December, 1881, entered into an agreement, in which claimant undertook, in consideration of the sum of $8,945, to furnish, deliver, and lay complete all the slate required for the main roof and dome of the United States court-house and post-office in the city of Philadelphia, in accordance with' certain drawings, terms of advertisement, and specifications which became a part of said agreement.

The following are such provisions of the contract as become material under the issues of this case:

“ The party of the second part further covenants and agrees to lay said slate at such times and in such quantities as may be required by the party of the first part, the entire work to be completed within eight weeks after the completion of the iron work of the roofs of the said building, it being understood and agreed by and between the parties hereto that if through any fault of the party of the first pare the party of the second part is delayed in tlie execution of the work provided for in this contract and is thereby prevented from completing the same within the time above stated, the party of the second part shall be allowed one additional day to the time above stated for each and every day of such delay as ascertained by the party of the first part. And it is understood and agreed by and between the parties hereto that if the party of the second part shall fail to comply with the terms of this contract which relate to the time within which the said work, or parts thereof, are to be completed, the said party of the second part shall forfeit the sum of twenty five dollars ($25.00) per diem for each and every day thereafter until the completion of the contract by the party of the second part, subject, however, to the discretion of the Secretary of the Treasury, which sum shall be deducted from any money which may be due him; and if that amount be not due, then the party of the second part agrees to pay the same.
“It is further covenanted and agreed by and between the parties hereto that if the said party of the second part shall fail to prosecute the work herein contracted for with such diligence as, in the judgment of the party of the first part, will insure the completion of the said work within the time herein-before provided, or shall fail to comply with any of the terms of this contract, and thereby, in the judgment of the party of the first part, hazard the satisfactory completion of the work, as hereinbefore stipulated, the said party of the first part is authorized and empoicered, after eight days’ due notice thereof in writing, served personally upon or left at the shop, office, or usual place of abode of the said party of the second part, or with his agent, and the said party of the second part having failed to take such action within the said eight days as will, in the judgment of the party of the first part, remedy the default for which said notice was given, to take possession of the said work, in whole or in part, and of whatever machinery, tools, or materials belonging to the said party of the second part and employed thereon, and to complete the said work, and to supply the labor and materials and tools of whatsoever character necessary to be purchased or supplied by reason of the default of the said party of the second part, and the actual costs shall be deducted from any moneys due and owing to the said party of tlie' second part, on account of tliis contract, and if that amount be not due, then the actual cost thereof shall be repaid to the party of the second part on de-rnand.”

The agreement is set forth in finding one. Collateral to said agreement, the plaintiff executed a bond with sureties set forth in finding n, conditioned upon the faithful performance of said agreement, on the part of the plaintiff. On the said 18th of December, 1881, the defendants had subsisting with Dwight & Hoyt a contract for the construction of the roof and dome of said building, in which it was provided, that said roof and dome were to be finished by the 15th day of Jan’y, 1882, and in ease of default the said firm was to pay a penalty of $25 per day for each day’s delay, which contract was known to plaintiff at the time he executed the contract set forth in finding one.

The firm of Dwight & Hoyt did not finish the roof and dome by the 15th of January, 1882, nor for a long time thereafter. The claimant by the 31st of December, 1882, completed the slating on the roof, amounting to 174 squares. This work was accepted and estimated to be worth $30 per square, and approved vouchers were made out in the sum of $5,200. From said amount 10 per cent was deducted, amounting to the sum of $522, which was retained by the defendants. Other work was estimated at $440, of which sum $396 were paid, deducting from said amount 10 per cent., under the terms of said contract.

On the 6th day of October, 1883, the acting supervisor of the Treasury Department notified the claimant that the slating of the dome had been let to other parties, at the cost of $1,649, in excess of what he was to receive, and for the difference he and his bondsmen would be held responsible. Up to that time no work had been done on the dome by the plaintiff and none was done afterward.

To the August term of the District Court of the United States for the eastern district of Pennsylvania a suit in debt was brought against said claimant, on the bond set forth in finding one. He was sued alone on said bond. The declaration in said cause alleged a breach of the covenants of said agreement, as a forfeiture of said bond. To the declaration the claimant pleaded, three pleas non est factum, payment with leave, and set-off. In the trial of the cause the court instructed the jury to find for the defendant, and in pursuance of that instruction the jury found the issues for the defendant. The court held, that inasmuch as it did not appear from the evidence that a notice iu writing had been served on the claimant, according to the requirement of the contract, of the intention on the part of the G-overmnent to discharge the defendant as set forth in Exhibit B, no recovery could be had on said bond, and upon that state of facts instructed the jury as aforesaid. Upon said contract, the claimant files liis petition, alleging distinct failures, and liabilities, upon the part of and against the Government.

He seeks to recover the 10 per cent, deducted from his estimates upon the roof of said building, profits upon the unexe-cuted portion of the work, damages for delay iu not furnishing the dome in time, taking off and putting on slate, slate left on his hands as worthless, in consequence of the orders of the superintendent, and enhanced cost of labor and material because of the unlawful requirements of -the officers of the defendants.

In and by Exhibit B, the officer of the defendants sought to exercise the pow'er given to him under that clause of the agreement, which provides in substance, that upon the failure of the claimant to proceed in the prosecution of the work, to the satisfaction of the Supervising Architect of the Treasury Department, he may upon notice take jiossession of the work, and complete the same at the cost of the claimant. The legal effect of that provision is to give the officer of the United States the right to forfeit the contract, and to discharge the claimant from further performance.

The power of forfeiture must be construed strictly, and if any antecedent duty is omitted, the exercise of the power becomes unlawful, as against the rights of the other party. In the litigation in the eastern district of Pennsylvania the court took that view of the law, and directed a verdict for the defendant. It did not appear in that case, nor does it ax>pear in this case, that a notice had been served on the claimant of the intended purpose of the Government to exercise the power of forfeiture contained in the agreement. The agreement having provided a specific mode in which the contract was to be annulled, that mode must be strictly pursued in order to charge the claimant with the consequence of delinquency. In our opinion, the court in the litigation on the bond charged the jury correctly, and the issue was properly found for the defendant.

It is insisted that the case having been decided for the defendant the question whether the claimant performed his contract is res judicata, and that nothing is left to the determination of this court but the assessment of damages. We do not take that view of the legal effect of the judgment of the district court of Pennsylvania. (Hughes v. United States, 4 Wall., 237; Packet Co. v. Sickles, 5 Wall., 592.) If that judgment is to be enforced literally, it might involve serious trouble to the claimant, he having appeared and defended, under pleas which might exhaust his legal remedy against the defendants, on the contract litigated in this proceeding. The findings show that the cause in the District Court was not tried on its substantial merits, but upon the question whether a notice had been given in pursuance to the requirements of the contract. The giving of that notice was necessary to the exercise of the right of forfeiture upon the part of the Government, and the suit in the District Court of Pennsylvania was predicated upon the attempted forfeiture of the defendants.

The facts found show that for the work performed on the roof of the building, 10 per cent, of the value has been retained by the defendants, and that the profits which would have been made by the claimant on the work of the dome would have been $285. The sum retained and the profits amount to an aggregate of $851. At the time of the service of the notice of the 6th of October, 1883, the dome was not in a condition as to its construction to permit the claimant to go forward with the roofing, Dwight & Hoyt having up to that time failed to fully complete their agreement with the United States. The requests of the claimant upon the questions of damages, because of slate rejected, damages for delay in not receiving the work in time, taking off slate, and enhanced cost of material because of the unauthorized requirements of the officers in charge are disallowed. The findings reduce the basis of the petitioner’s right to the unpaid percentage on the value of the work performed and the claim for profits on the work not performed. A judgment will be entered in favor of claimants for the sum of ($851) eight hundred and fifty-one dollars.  