
    WILLIAM L. MILLER v. THE UNITED STATES.
    [No. 30851.
    Decided January 9, 1914.]
    
      On the Proofs.
    
    Tile plaintiff entered into a contract with the Government on November 30, 1907, to construct a pile and timber pier at the navy yard, Charleston; S. C. Contract had previously been entered into by the defendants with the North American Dredging Co. for dredging the site to be occupied by the pier which the plaintiff was to construct. This dredging was to be completed by January 31, 1908, and the plaintiff, at the time he made his contract, knew of this contract for dredging and its terms. The plaintiff’s contract work was to commence at once and to be completed in five months after the site should be turned over. The site was not turned over to the plaintiff until May 16, 1908, and it is for damages for this delay that this suit is brought.
    I.Where a contractor is delayed to his injury in the performance of a contract by a breach of the contract by the other party the rule is elementary that the latter must respond in damages.
    II.Where the defendants were under a reciprocal obligation with the plaintiff to properly prepare the site on which he was to construct the pier, and there is delay to his damage in preparing and turning over the site to him, the defendants are liable therefor.
    III.Where a Government contractor sustains damage caused by the unreasonable delay of another contractor of the defendants to do the work necessarily preliminary to the work of the first contractor, the Government is liable therefor in damages.
    
      
      The Reporter’s statement of tbe case:
    The following are the facts of the case as found by the court:
    I. November 30,-1907, the claimant entered into a contract with the defendants for the construction of a reinforced concrete and wooden pile and timber deck pier at the United States navy yard at Charleston, S. C., which said contract, together with the specifications forming a part thereof, are annexed to the petition herein and made a part thereof.
    II. August 20, 1907, the United States entered into a contract with the North American Dredging Co., a corporation, by the terms of which contract the said corporation undertook to dredge and remove from place at said navy yard at Charleston certain material and the pile and timber cofferdam and appurtenances then lying under the site where said pier so to be built by the claimant was to be placed, and by the terms of said contract between the United States and said dredging company said dredging was to be completed by January 31,1908. The existence of the said contract with the North American Dredging Co. and its terms were fully known to the claimant at the time he entered into his contract aforesaid with the United States.
    III. It was feasible for the claimant to perform a considerable portion of the work to be performed under his contract before said dredging was done, in the way of making the concrete piles therein required, bolting together timbers, and the preparation of other materials to be used in and in connection with the building of said pier, which would be preliminary to putting such material in place in the pier; but before said material could be put in place and said pier finished it was essential and necessary that the site for said pier should be dredged by said dredging company and that the work of said dredging company should be completed.
    IV. Claimant not being otherwise directed by the United States, or by any officer, agent, or representative thereof, and being assured by the Engineer officer in charge that the dredging contractor would begin its work within a few days, immediately commenced preparations for the prosecution and performance of the work contemplated by his contract and transported Ms plant, appliances, laborers, and materials to the site of the work. Immediately upon assembling his plant, materials, supplies, and laborers in Charleston at the site of the pier covered by the contract he began the construction and preparation of materials to be used in and in connection with the building of said pier and was ready by April 1, 1908, to perform the construction work in the area covered by the cofferdam to be removed by the North American Dredging Co. and in the area to be dredged by said company. The dredging contractor, however, had not completed the performance of its work sufficiently to enable claimant to proceed on, April 1, 1908, and did not, in fact, complete and tender the said area as sufficiently completed to enable claimant to proceed until May 16, 1908, on which last date claimant began operations therein and thereafter diligently and faithfully prosecuted the said work to completion, and the same was thereafter accepted as satisfactory in all respects by the United States.
    V. On account of the delay by the North American Dredging Co. in the performance of the work covered by its contract of August 20, 1907, claimant’s plant, laborers, and organization were forced to lie idle and were prevented from performing the work covered by this contract from April 1, 1908, to May 16,1908, both dates inclusive. The chief delay by the said dredging contractor was in connection with the removal of the cofferdam, and claimant repeatedly protested to the officers and agents of the United States against the interference resulting to him and to his force and organization from the delay on the part of the dredging contractor, and requested the officers and agents of the United States to allow him to remove the said cofferdam, offering to do the work for one-half the contract price which was to be paid therefor to the dredging contractor. However, nothing decisive was done by the officers and agents of the United States in regard thereto, and the said dredging contractor was allowed to do its work in an unsatisfactory and dilatory way, all the while delaying and interfering with claimant in the performance of his contract.
    The delay caused to the claimant before mentioned resulted in a damage to him in the sum of $2,665.97.
    
      VI. Claimant on September 16, 1908, addressed a letter to the Chief of the Bureau of Yards and Docks requesting reimbursement for $3,500 claimed to have been lost to him by the delay in turning over the site, and thereafter a board of officers was, by approval of the Secretary of the Navy, appointed and convened for the purpose of ascertaining the facts in regard thereto; and said board sustained the claim of claimant to the extent of $2,665.97 and recommended to the Secretary of the Navy that authority be granted to prepare a supplemental contract voucher in favor of claimant for the amount of damage found by the board and that a corresponding amount be charged against the account of the dredging contractor as actual damage caused by its delay in completing its work.
    Thereafter claimant filed with the accounting officers of the Treasury claim for $2,665.97, the amount found to be due him by the board, and on April 24, 1911, the claim was disallowed by the Comptroller of the Treasury upon the ground that the claim was one for unliquidated damages and therefore one which the accounting officers of the Treasury were without authority to settle.
    VII. The United States, in its settlement with the North American Dredging Co., deducted from moneys otherwise due the same the sum of $4,860 as liquidated damages for and on account of the unnecessary default and delay aforesaid in the completion of the dredging work it had contracted to do.
    
      Mr. G. G. Galhoun for the plaintiff.
    The case of Cotton v. United States, 38 Ct. ds., 536, is strikingly similar to this case. It involved the building of wharves at Honolulu. The contractor was delayed by reason of the dredging contractor. The wharf contractor (Cotton) sued the United States and was awarded the value of the services of his employees and plant during the period of delay.
    Again, in the case of Snare & Triest Go. v. United States, 43 Ct. Cls., 364, was involved a statement of facts almost identical to this case. The contractors were delayed and sued for damages and additional expenses to which they had been put by reason of delay. In tbe Snare & Triest case tbe contract also provided, as is true in this case, that the claimant should immediately begin tbe performance of bis work, and in finding for tbe claimant tbe court in its opinion used the following language:
    “The obbgation of tbe claimant to begin the work immediately after the execution of the contract was only reciprocal to tbe obbgation of tbe defendants to designate and prepare a site upon which tbe building should be constructed. Kelly v. United States, 31 Ct. Cls., K., p. 361; United States v. Speed, 8 Wall., pp. 77, 84.
    “That damages to a building contractor occasioned by such delay are tbe subject of recovery is too well settled to admit of discussion. The case of Kelly v. United States, supra, is strikingly similar to the case at bar, and there a recovery was allowed for damages exactly tbe same in kind as those sought in this case.”
    See also Pneumatic Gun-Oarriage <& Power Go. v. United States, 36 Ct. Cls., p. 71.
    
      Mr. G. F. Jones, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
    In the construction of a contract the intention of the parties thereto must be inquired into and such intention made effectual, if not contrary to law or public policy.
    In the case of Loud v. Pomono Land and Water Gompany, 153 U. S., 564-576, the court said:
    “If the language is clear and unambiguous, it must be taken according to its plain meaning as expressive of the intention of the parties, and under settled principles of judicial decision should pot be controlled by the supposed inconvenience or hardship that may follow from such construction.”
    In the case of International Contracting Company v. ■United States, 47 Ct. Cls., 158, this court used the following language:
    “As the parties competent to contract are the best judges of their motives, their contract should be construed not only in the light of the circumstances under which the same was signed, but in harmony with their conduct in performance. Bell v. Bruen, 1 How., 169-186; Chicago, B. I. dc P. B. B. Go. v. The Denver <& B. G. B. B. Go., 148 U. S., 596-609. In other words, the court in the case of ambiguous language should endeavor to ascertain the situation of the parties and their interpretation, if any, of the contract for the purpose of determining their intention. Topliffv. Topliff, 122 U.S., 121-131. This, however, does pot mean that where there is no ambiguity in provisions standing alone they are not subject to interpretation in connection with doubtful provisions to ascertain the meaning of the entire contract. O’Brien v. Miller, 186 U. S., 287-297. And, while contracts requiring construction should be construed most strongly against the party preparing the same, the other party is not thereby relieved from performance on its part, though he may not have read the contract. Upton v. Tribilcock, 91U. S., 45-50.”
    See also Northwestern L. Ins. Go. v. Gridley, 100 U. S., 614; Baltzer et al. v. Raleigh and Augusta R. R. Go., 115 U. S., 634-647; Bradley v. Washington H. <fe G. Packet Go., 18 Pet., 89.
   BaeNey, Judge,

delivered the opinion of the court:

This is a suit upon a contract for the construction of a pile and timber pier at the navy yard, Charleston, S. C. The contract was entered into November 30, 1907, and with the plans and specifications therein referred to is made a part of the petition. A contract had previously been entered into by the defendants with the North American Dredging Co. for dredging out the site to be occupied by the pier which the claimant was to construct; and this dredging work was to be completed by January 31, 1908. The claimant at the time he made his contract knew of this contract for dredging and its terms.

The contract provided that the work thereunder should begin at once and be completed within five months after the site should be turned over to the contractor. It appears by the findings that it was practicable for the contractor to do at or near the immediate site of the pier considerable of the work contemplated in the contract before the immediate site was turned over to him, such as making the concrete tiles, bolting together timbers, etc. For this purpose the claimant sent his plant to the navy yard about January 1, 1908, no instructions to postpone operations having been received by him, and after the erection of his equipment began this preliminary work. By the end of March all of this preliminary work which it was practicable to do had been completed and the claimant was ready to drive the piles and to do all the completing work upon the pier; but the necessary dredging work to be done before this work could begin had not been done. In fact, the site of the pier was not turned over to the claimant until May 16, 1908, thus delaying the claimant for more than six weeks; and it is for damages for this delay that this suit is brought.

After the completion of his contract the claimant addressed a letter to the Chief of the Bureau of Yards and Docks requesting reimbursement for $3,500, a loss claimed to have been suffered by him by reason of this delay, and thereafter a board of officers was, by approval of the Secretary of the Navy, appointed and convened for the purpose of ascertaining the facts in relation thereto, and this board estimated the damage by reason of such delay to the claimant to be $2,665.97. This sum was never paid to the claimant, the comptroller deciding that it being a claim for unliquidated damages for breach of contract the accounting officers were not authorized to settle it. It will thus be seen that there appears to be no dispute in this case as to the amount of the claim, and the only question for decision is whether the defendants are liable for anything.

Where a contractor is delayed to his injury in the performance of a contract by a breach of contract by the owner, the rule is, of course, elementary that the latter must respond in damages.

It is contended, however, by the defendants that the delay in this case having been caused by the misconduct of another contractor, they are not liable. We know of no authority or reason for such a contention. The defendants were under a reciprocal obligation with the claimant to properly prepare the site where he was to build the pier which he had obligated himself to construct. Like nearly all of the work done by the defendants, this preparatory work was to be done by another contractor, but in a legal view and so far as the contractual relation between the claimant and the defendant is concerned, this work was to be done by the latter. If the dredging company failed to perform its contract in time to the damage of the claimant, the latter had no recourse against it because there was no privity of contract between them. It was the defendants and not the dredging company who were under legal obligations to the claimant to prepare the site.

The defendants had protected themselves from damage on account of this delay by the dredging company by a provision in their contract with it for liquidated damages for such delay; and the findings show that under this contract they received by way of such liquidated damages, from the dredging company, a sum much larger in amount than the admitted damage to the claimant.

The case of Cotton v. United States, 38 C. Cls., 536, is almost identical with this. In that case the damage to the claimant was caused by the failure of another contractor with the defendants to make a timely preparation of the site where the work contracted to be done was to be performed, and the court laid down the rule that where a contractor with the Government sustains damage caused by the unreasonable delay of another contractor of the defendants to do the work necessarily preliminary to the work of the former, he is entitled to recover of the Government. In that case, as in the one at bar, the Government had received a large sum in liquidated damages from the delinquent contractor. This doctrine seems to be founded in reason, and the defendants have not cited us to any case holding to the contrary.

The defendants contend, however, that the contract in this case precludes a recovery by the claimant for damages caused by the delay of another contractor. The first provision of the contract thus depended upon is found in paragraph 13 of the specifications, but for an understanding of this provision both paragraphs 12 and 13 must be examined. They are as follows:

“ 12. Damages for delay. — In case the work is not completed within the time specified in paragraph 9, or the time allowed by the Chief of the Bureau of Yards and Docks under paragraph 10 of this specification, it is distinctly understood and agreed that deductions at the rate of $20 per day shall be made from the contract price as liquidated damages, and not as penalty, for each and every calendar day after and exclusive of the date within which completion was required, up to and including the date of completion and acceptance of the work, said sum being specifically agreed upon in advance as the measure of damage to the United States by reason of delay in the completion of the work; and the contractor agrees and consents that the contract price, reduced by the aggregate of damages so deducted, shall be accepted in full satisfaction for all work done under the contract.
“ 13. Unavoidable delays. — Unavoidable delays are such as result from causes which are undoubtedly, or may reasonably be presumed to be, beyond the control of the contractor, such as acts of Providence, unusual storms, fires (not the result of negligence), fortuitous events, inevitable accidents, etc. Delays caused by acts of the United States will also be regarded as unavoidable delays.”

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The defendants select the following clause from paragraph 13 as sustaining their contention: “ Delays caused by acts of the United States will also be regarded as unavoidable delays.” Standing alone this clause might be so interpreted, but construed with what precedes it in both paragraphs 12 and 13 it clearly has no such meaning. The “ unavoidable delays” mentioned are unavoidable as to the claimant and not the defendants. In other words, if the United States delayed the contractor, such delay was not to •be charged against him in the computation of the liquidated damages provided for in paragraph 12.

The last clause of paragraph 30 is also cited by the defendants as sustaining their contention. The whole paragraph is as follows:

“30. Worh to be done by the Government. — The Government will furnish all the necessary rail for railroad track, together with splice bars, track bolts, frog, spikes, , and steel for bumpers, but the contractor shall put the track and bumpers in place according to the plans and specification. The Government will furnish also all the bollards and bitts shown on the plans, together with the holding-down bolts, but the contractor shall put them in place, as shown on plans. The contractor will be required to carry on his work without interfering with the ordinary use of the streets or with the operations of other contractors or delaying or hindering any work done by the Government, whether upon the site or not. He shall make good any damage to Government property caused by his operations. It is understood and agreed that the Government and the contractor will, so far as possible, labor to mutual advantage where their several works in the above-mentioned or in unforeseen instances touch upon or interfere with each other. Mutual concessions under the direction of the officer in charge shall be made to secure this end. It is also further understood and agreed that from any such necessary interference, whether resulting in delay or additional expense or not, no claim for extra compensation shall arise, the contract price covering all contingencies of every kind, except for changes provided for in paragraph IT of this specification.”

Taking the whole paragraph together it clearly has no reference to delays caused by other contractors. It simply provides for reciprocal concessions to one another in the conduct of the work, when both the claimant and the defendants are working at the same time. All unnecessary interference by either party was to be avoided, and only in case of unnecessary interference by the defendants was the claimant to have any relief. It provides for the mutuality of the work to be done by the claimant and the defendants and nothing more.

It follows from the foregoing that the claimant should have judgment in the sum of $2,665.9T, and it is so ordered.  