
    WILSON & GOSS v. THE UNITED STATES.
    [No. 14556.
    Decided January 30, 1888.]
    
      On the Proofs.
    
    There is only one point of law in the case, viz, whether a parol agreement enlarging the quantity of work authorized by a written contract is obligatory upon the Government while still executory, where the contract is required by law to be in writing.
    A parol agreement enlarging the quantity of work required by a written contract is not obligatory upon the Government, where the contract is required by law to be in writing. (Rev. Stat. § 3744. > But compensation for work actually done thereunder may be recovered on au implied assumpsit.
    
      The Reporters1 statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimants and defendants entered into the following contract in writing, after advertisements for proposals and proposals made by the claimants, who were the lowest bidders:
    “This agreement, entered into this sixth day of December, 1882, between General M. O. Meigs, supervising engineer and architect of the fire-proof building for Pension Office, of the first part, and William A. Wilson and John S. Goss, of the city of Washington, county of Washington, District of Columbia, of the second part, witnesseth: That the said General M. C. Meigs, supervising engineer and architect of fire-proof building for Pension Office, for and in behalf of the United States of America, and the said William A. Wilson and John S, Goss, for themselves, their heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    “ Abitóle 1. That the said William A. Wilson and John S. Goss shall lay all the rubble-stone masonry in the cellar and foundation walls of the new Pension Building, in Judiciary Square, in the city of Washington, D. 0., and in strict accordance with the specifications of rubble-stone masonry hereto attached, for the sum of one dollar and forty-nine cents per cubic yard, said work tp be prosecuted at not less than twenty cubic yards for each working day, elements and supply of materials permitting.
    “ Art. 2. That work on this contract shall, if required, commence on the fifteenth day of December, 1882.
    “Art. 3. That it is expressly agreed and understood that this contract shall be non-effective until an appropriation adequate to its fulfillment is granted by Congress and is available.
    “ Art. 4. That for and iu consideration of the faithful performance of the stipulations of this agreement, the parties of the second part shall be paid at the office of the disbursing clerk of the Interior Department, upon accounts certified by the supervising engineer and architect, as follows: In accordance with the conditions of these specifications for materials, also hereto attached.
    “Art. 5. That in case of failure of the said parties of the second part to comply with the stipulations of this contract according to the true intent and meaning thereof, then the party of the first part shall have the power to complete work herein provided for, and any excess in cost to the United States by reason of such completion shall be charged against the parties of the second part and their securities. ##*#*»*
    “ SPECIFICATIONS ATTACHED TO CONTRACT.
    “The cellar and foundation walls resting upon this concrete base are to be laid with large rubble-stone, flat bedded, and of nearly equal thickness, laid in the best quality of American cement and lime mortar, consisting of about one volume of pure hydraulic cement, one volume of lime, and two volumes of sharp-grit siliceous sand well mixed and manipulated.
    “The walls shall be laid with a sufficient quantity of bond stone, so as to tie the work and insure its uniform compactness, care being taken to make the walls of equal solidity throughout.
    “ All these walls to be carried up and kept both vertically and horizontally true, and of thickness and height as shown on the plans and sections and elevations.
    “ Whatever part of the rubble-stone work along the front of this building will show above ground must be neatly rough-hammered and brought up to true and exact height and level. This exposed surface will be about 1 foot in height.
    “All doors and window-frames for vault or cellars will be set by carpenter, to be built in by the masons.
    “All the work to be executed in thebess and most workmanlike manner.
    “The outside of cellar walls, which will be filled against with earth by the contractor for grading, is to be plastered with cement-mortar floated down by the masons.
    “The Government will furnish to the contractor for masonry, delivered near the site, the rubble-stone, cement, and sand, but the contractor is to prepare the ingredients and to mix the mortar; he is to lay the stone, furnish all tools, scaffolds, etc.
    “The proposals should state a price per cubic yard of rubble-stone masonry, as above specified, without any extra charges.”
    II. In the advertisement for proposals upon which the contract was founded and upon which the parties relied it was stated:
    
      uRubble-stone. — There are required about 900 cubic yards of rubble building stone to be used iu foundation and cellar walls.”
    After the first plans, estimates, and contract were made, and there had been some progress in the work, a change was made by defendants by which the quantity of wall to be laid was very much enlarged, so as to include not only all that was finally done by the claimants, but also 546 cubic yards done by the defendants, as hereinafter stated; in all, 2,939Jf cubic yards. General Meigs, the superintendent and architect, stated to the claimants orally that he did not think it right to call upon them to do more work than was contemplated when their bid was made, and left to them the choice whether or not they should go on with the work beyond the 900 yards at the same rate, and they elected to go on, but no written agreement was entered into.
    
      III. While claimants were engaged in the work beyond the first 900 yards, General Meigs informed them that he wanted the work done faster, but they declined to put on any more men. At that time the work was going on-as fast as was required by the contract for the first 900 yards. Thereupon General Meigs, for the defendants, put on men and laid 560 yards of the wall. Had the claimants been allowed to do this work they would have realized profits to the amount of $250.
    IV. While the claimants were engaged upon the first 900 yards of work the defendants changed their plans, so as to require certain spout-holes to be left in the wall. This made it necessary for the claimants to take down and relay some portions of the wall, and subjected them to additional expenses,, by which they were injured to the extent of $96.
    V. The claimants laid 2,393¿f yards of rubble’stone masonry in all, including the openings for windows, each of which was of about the size of 4 feet square. It was proved in this case to be the custom of the District of Columbia for stone masons in laying walls by the perch or yard to measure as solid work all openings for windows which are as small as those in the present case. It further appears that Government army officers in making such measurements in work under Government contracts here and elsewhere do not measure such openings and allow to contractors pay for the same as solid work; but it does-not appear that claimant knew of that fact, nor does it appear what are the terms of the Government contracts which are so> measured by public officers, and most, if not all, of them are required to be in writing.
    VI. The claimants have received Treasury vouchers Nos. 315, 423, 433, 468, and 507, which, if not paid, remain their property for collection, to the amount of $2,783.15.
    VII. The other alleged facts on the one side and the other are not proved.
    
      Mr. J. Q. Hildebrandt for the claimant.
    
      Mr. F. P. Fewe.es (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The facts found by the court eliminate from the case several questions of law argued at the trial, which, beiug founded upon alleged facts not proved, have become immaterial. Only one point of law remains, and that is whether the claimants had a valid contract for doing a larger quantity of work than they were permitted to do, and so are entitled to damages for interruption and breach of contract on the part of the defendants.

It appears that by the written contract between the parties, after advertisement for bids and proposals, the claimants, in article 1, agreed to lay “ all the rubble-stone masonry and foundation walls of the new Pension Building in Judiciary Square, in the city of Washington, D. C.,” but that the advertisement for bids, upon which both parties relied when the contract was made, stated that the quantity of rubble-stone masonry which would be required wrould be “about 900 cubic yards.”

According to the decision of this court in Brawley’s Case (11 O. Cis. 1Í,, 532, affirmed on appeal, 90 U. S. B., 168), the parties were bound only to “ a quantity approximate to that specifically named, allowing only such a slight variation therefrom as, from the circumstances of the case or the nature of the articles to be delivered [or the work to be done], may seem to the court to be reasonable.”

It seems that both parties so understood the contract, for after some progress had been made towards laying the 900 yards contracted for, the plans were changed by the defendants and it became necessary to increase the quantity three times as large as that first specified and understood between them. General Meigs, the superintendent and architect, who made the contract on the part of the defendants, thereupon orally gave them the option to go on or nob with the work beyond that contracted for at the same price. They elected to go on, but no advertisement for proposals was published and no written contract was made.

This oral arrangement between the parties was not binding upon the defendants as a contract (South Boston Iron Company's Case, 18 C. Cls. R., 165; affirmed on appeal, 118 U. S. R., 37; Barnes v. District of Columbia, 22 C. Ols. R., 386.) The Kevised Statutes, section 3744, provide that—

“It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them, severally, on behalf of the Government, or by their officers under them appointed to make suck contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof.

The appropriations for the Pension Building were under the control of the Secretary of the Interior, and all contracts founded upon them were therefore subject to the provisions of that section of the Bevised Statutes. {Meigs’s Case, 19 C. Cls. B., 197.)

The legal effect of the oral arrangement was, that if the claimants should go on with the work they would become entitled to compensation, upon an implied assumpsit, for the value of so much as they should actually perform, which, in the absence of other evidence, would be the price fixed by the written contract for like work (Clark v. The United States, 95 U. S. R., 543), but did not operate to deprive the defendants of their right to do the whole or any part thereof themselves.

The work not progressing rapidly enough to satisfy General Meigs, he put on men and did some part of it at the expense of the defendants. This he had a right to do. It was no breach of contract on the part of the defendants tor which they were liable in damages as alleged and argued for the claimants, because there was no valid contract by which it was agreed that the work should be done by the latter.

The findings allow for all the work contemplated by the written contract, and for all that was actually done by the claimants beyond that quantity at the same price.

Judgment will be entered for the claimants for the sum of $879.47.

Nott, J., did not sit in this case and took no part in the decision.  