
    NORMILE, FASTABEND & McGREGOR v. THE UNITED STATES.
    [49 O. Ols ft., 73; 239 U. S. ft., 344.]
    
      On both parties' appeals.
    
    The plaintiff entered into a contract with the defendant to do certain work, and this suit is to recover damages for an alleged breach of contract. Same. 45 0. of Ols. 203. The controversy is largely one of fact, the legal propositions involved being to a great extent elementary and established.
    
      The court below decides:
    Where in assuming a risk in the performance of an agreement the contractor performs, without authority, that which he is subsequently authorized and empowered to do, and the whole work tends to advance and discharge his positive agreement, it must of necessity come within the authorized contract.
    The rights and liabilities of the parties must be determined by the written agreement into which were merged all the prior negotiations, expectations, and conversations.
    Where the work charged for was performed for the express benefit of the plaintiff and under a distinct understanding that the defendants had no available funds to pay for the same, there was no contract express or implied therefor.
    Where under the contract the Engineer officer in charge was in command, and his authority thereunder being plenary, he was required to use ordinary care and skill in giving instructions as to the location and erection of the cofferdam, and the defeidants’ liability is limited to such acts as by the use of ordinary care and skill could have been foreseen and prevented.
    Where the Engineer officer in charge is under the contract in command and has plenary power thereunder and the contractor is required to three times attempt the erection of a temporary cofferdam in one place, ordinary care and skill is not shown by the Engineer officer in charge, and the defendants are liable for the loss sustained by the contractor in the last two attempts to construct said cofferdam.
    The decision of the court below is reversed.
   Mr. Justice Holmes

delivered the opinion of the Supreme Court December 13,1915.  