
    THOMAS AND DRISCOLL v. THE UNITED STATES.
    [No. 18028.
    Decided December 14, 1896.]
    
      On the Proofs.
    
    Claimants enter into a contract to enlarge the United States court-house and post-office building in Atlanta. The work is substantially performed and a payment of $103,684.14 received. In the course of the performance of the contract certain changes in the specifications are made and extra material is furnished by the claimants.
    I. Where marble tiling not called for in the specifications of a contract is required by the defendants to be put in, the contractors can recover.
    II. Where a bidder appends to his proposals for an elevator a cut of an Otis car, but the specifications of the other party expressly provide that “nothing in this description, however, is intended to express a preference for any particular manufacture,’’ the use and profert of the Otis cut does not have the effect of modifying and changing the force of the words, and claimant may recover any extra expense if he be compelled to put in an Otis elevator.
    
      The Reporters’’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. On tbe 25tb day of January, 1889, tbe claimants and defendant made and entered into a contract, a copy of wbicb is attached to tbe original petition, marked Exhibit A. To said contract are attached advertisement and specifications, the material portions of which as applicable to the claim are as follows, to wit:
    “ SPECIFICATION EOR THE LABOR AND MATERIALS EOR ENLARGING THE H. S. COURT-HOUSE AND POST-OFEIOE BUILDING AT ATLANTA, GEORGIA.
    
      “Proposals for the labor and materials for enlarging the U. 8. court-house and post-office building at Atlanta, Ga.
    
    “December 4th, 1888.
    “ Sealed proposals will be received at the office of the Supervising Architect, Treasury Department, Washington, D. 0., until 2 o’clock p. m., on the 27th day of December, 1888, for the labor and materials required for enlarging the U. S. courthouse and post-office building at Atlanta, Ga., in accordance with specification and drawings, copies of which may be seen at this office, the office of the custodian, Atlanta, Ga.; Builders’ Exchange, Baltimore, Md.; Builders’ Exchange, Cincinnati, Ohio; Builders and Traders’ Exchanges, Chicago, Ill., and Louisville, Ky., and Mechanics, Dealers, and Lumbermen’s Exchange, New Orleans, La.
    
      * * * # # * *
    “Will. A. Freret,
    
      “Supervising Architect.
    
    “ Specification.
    
    “Each bidder is requested to examine the building, and must assume responsibility for all errors or omissions on account of his failure to do so.
    “The dimensions given on the drawings are in accordance with the general plans; but as variations may occur or may have occurred in construction, the contractor is required to make his measurements at the building, construct his work accordingly, and will be held responsible for any errors in his figures and for the proper fitting of his work.
    “CONDITIONS OE CONTRACT.
    “ Proposals must include the furnishing of labor and materials — with scaffolding, fixtures, machinery, tools, &c. — necessary for the complete and substantial execution of everything described, shown, or reasonably implied in the specification and drawings, without any extra charge whatever and to the satisfaction of the Supervising Architect, whose decisions on all questions pertaining thereto shall be final.
    “All materials must be the best of their several kinds and all workmanship of the best quality.
    
      “The Supervising Architect reserves the right to make any alterations in the work without affecting the validity of the contract, the value of such alterations, at market rates, to be taken from or added to the amount to be paid under the contract, but no additional compensation will be allowed unless the price be first agreed upon and the work authorized, in writing, by the Supervising Architect.
    *******
    “Concrete.
    *******
    “Concrete for tiled floors to be leveled up to within 2 inches of floor line.
    “The floors of water-closet room, hall, and stair hall in basement to receive a layer of cement concrete 4 inches thick, with one coat of cement plaster, 1 inch thick, of half Portland cement and half sand, laid smooth and properly graded.
    “BRICKWORK.
    *******
    “Molded work, &c., to be laid as in the present building, and to be equal to the best manufactured.
    “ The first floor to be filled in between iron beams upon proper centers with good, common hard-burned brick, 4 inches thick and 8 inches at the haunches, at least three courses each side, the top of the arches to be filled in as specified under ‘ Concrete.’
    
    “The pointing of face brickwork to be done with Portland cement, colored black.
    “The outside face brickwork to be carefully washed down at completion with a solution of muriatic acid and coated with linseed oil.
    “The first foot of brickwork above ground level down to the top of concrete course to be laid in cement, with a course of slate on top, if on moist ground.
    “All outer brick walls to be asphalted on the outside below grade line.
    “The basement and area floors, where so shown, to be of paving brick, laid herringbone fashion, on a sufficient bed of sand not less than 4 inches, and sand spread over to work into the joints, unless otherwise specified.
    “terra cotta or fireproofing-.
    “All new exterior walls, where shown to be covered with 2-incli porous terra-cotta furring, secured with iron staples built into brick walls. The shafts of iron columns to be covered with terra-cotta furring, 2 inches thick, secured to columns in the most approved manner.
    
      “The floors of the upper stories to be filled in between iron beams with flat terra-cotta arches.
    “Where marble tiling is to be laid over wood joists, 2-inch-thick porous terra-cotta tiles are to be furnished, with concrete filling on top, in which to embed the floor tiling.
    “ All the terra cotta to be evenly burned, free from cracks, and true on surface.
    “The contractor to do all cutting and making good before and after the various tradesmen necessary to perform their work.
    *******
    “The basement, from 4 inches below grade line to top of water table, and all stone trimmings to be dressed in gray granite.
    “The steps, platforms, doorsiIls,-and caps of piers, which are to support columns, to be of granite.
    “The joints of cut-stone work not to exceed £ inch, the bed inch, without undercutting, and to be set with lime mortar. The joints of the outer surface to be raked out ¿ inch deep and filled in and pointed with lime, putty, and sand, colored to match the stone.
    “ROGE.
    “The roof construction of the rear extension to be in accordance with drawings, and to include the suspended ceiling furring. The roof of the main building to be reflaslied around the enlarged chimneys, and all roofs to be made water-tight at completion.
    “The roof, except where otherwise specified, to be covered with 2-inch pine merchantable planks, tougued and grooved, with a smooth outer surface when laid: the planks not to exceed 6 inches in width and to be secured to the iron beams with ¿-inch galvanized-iron bolts, countersunk, each plank to have two bolts at every fastening to the iron beams.
    *#*.**■* *
    “QUALITY.
    “ Wrought iron to be tough, ductile, fibrous, and of uniform quality.
    *******
    “PAINTING.
    “All ironwork to be cleaned of scales and dirt, and to receive one coat of best oxide of iron and pure linseed oil; and all pins, pin holes, and machined surfaces to be coated with pure white lead and tallow before leaving the shop. All points inaccessible for painting after erection to receive two coats of paint.
    
      “CARPENTER WORK.
    *******
    “Door and window openings, openings for masonry, etc., to be turned on rough, strong centers, properly put together. For inverted arches, templets to be furnished with the correct line of the extrados of the brick arch, by which the concrete center may be formed.
    “The wood beams of tiled floors to have 1-inch x 2-inch rough cleats nailed-on each side, the top edge to be straight and 3 inches below top of joists.
    “JOINER WORK.
    “The window and doorframes to be of butternut, and as detailed on the drawings, with air-inlet subsills where noted.
    “The floors not intended to be covered with ornamental tiles, or otherwise specified, to be of Georgia pine, well seasoned, selected, 1-J- inches thick, and not exceeding inches in width, tongued and grooved and blind nailed, laid on a bed of mortar deafening, and to be dressed smooth after being-laid.
    
      *******
    
    “ELEVATOR DOORS.
    “ The several doors required for the elevator openings to- be constructed with two leaves to each opening, one fixed and the other sliding. The panels to be filled in with latticework of flat brass -¿-6- inch x ¿ inch; interlaced, as shown, and properly secured.
    “PLASTERING-.
    “The plastering of ail walls and ceilings, unless otherwise specified, to be 3-coat work, hard finish. The walls back of skirting and wainscoting to be 2'-coat work, flush with grounds. The shafts of iron columns to be plastered with Portland cement on the terra-cotta fireproofing- from top of base to capital, and to be finished in Keene’s cement i inch thick.
    “All walls to be swept clean, and the brickwork to be wet immediately before plastering is put on.
    
      * * * * * * *
    
    “The walls and ceiling of the basement rooms, indicated by lines around same, to be plastered 2 coats.
    “ The walls and ceilings in basement not plastered to be whitewashed two coats.
    “MARBLE WORK.
    “ The marbles used to correspond with the work in place.
    “The floors of the water-closets, lobby, halls, and stair halls of the stories above basement, unless otherwise specified, to be finished with marble tiles 12 inches square and one inch thick, in alternate squares, white and dark, and dark border to match; white to be best American, and dark to be either black or red marble or slate or dark-pink marble. The borders to be of sufficient width to permit the use of only whole and half tiles. The bordering to extend at least 2 inches' under the post-office screen and skirting. The doorways to be filled in with marble in one piece, and to extend at least 1 inch under the threshold.
    “ The top surfaces of the tiles to be finely rubbed work, true and out of wind, the edges square with the upper surface.
    “The tile floor concreting, to within 2 inches of the finished level, is specified under ‘ Brielmorlc;7 but the contractor is to provide the additional Portland cement mortar filling necessary to bed the tiling, the whole being thoroughly grouted, and the joints flushed at the conclusion,
    “ PAINTING-.
    “The exterior wood finish and the exposed galvanized and other metal work, except copper, both interior and exterior, to have three coats of white lead and linseed oil, of such colors as may be approved by the Supervising Architect or the superintendent, the whole well rubbed down and sandpapered.
    “The hard-wood finish to be coated with an approved filler, rubbed down, and have, three coats of hard-oil finish, thoroughly rubbed down with sandpaper after each each coat, the last coat to be rubbed down to a dead smooth finish.
    “ The Georgia pine floors of the several stories to have one coat of linseed oil, one-third turpentine and drier, and two coats of hard-oil finish.
    “ GLAZING-.
    “All inside and outside sashes-to be glazed to correspond with the original work.
    “All glass for outside sashes to be well bedded, puttied, back puttied, and tacked; for inside sashes and post-office screens to be held in place with wood beads, secured with nickel-plated round-headed screws of sufficient number.
    “The glass in the lower tier of sashes of post-office screen, except for delivery and stamp windows, to be ground glass.
    “ HARDWARE.
    “The hardware to be real bronze, similar to the original finish.
    “The doors generally to be hung with two 5-incli knuckle butts, with steel washers and tips, and of sufficient width to allow the door to swing clear and free.
    
      “ Entrance doors to have 6-inch butts, three to each leaf. The butts for slat doors of water-closets, &c., to be 3 iuebes.
    “ The outer doors to have mortise looks 4 inches x 6¡V inches. The other mortise locks to be 4 inches x 5 inches, having three tumblers each. All locks to have bronze fronts, strikes, and bolts, with iron japanned boxes, antifriction latches, and elongated bronze escutcheons and knobs 2¿ inches diameter, of approved pattern. The outer doorknobs to be 3 inches diameter, and each lock to be provided with duplicate keys.
    “ The elevator sliding doors to be fitted with 3x4 inch flush elevator latches (with keys), sheaves, track, and all necessary fixtures.
    “ The folding doors with locks to have bronze flush top and bottom bolts on the standing leaves, the handle being within easy reach.
    “ The pivots to the transom sash, &c., to be of bronze, heavy pattern; and spring fasteners to be of the best form and finish.
    “Axle pulleys to window frames to be inches diameter, and plain iron-face finish, brass wheels, and antifriction rollers.
    “ The chain to be No. 2 giant metal; the whole being properly attached to cast-iron weights properly balanced with the sash when glazed, the bottom rail of each lower sash frame being provided with two sunk bronze pocket plates, &c., and bronze burglar-proof sash fasteners.
    “Bound-headed nickel-plated screws to be furnished to secure the glazing in sash wherever found necessary.
    “ The doors to the washstands to be fitted up with small locks and keys.
    “ Sample of hardware to be forwarded with bid.
    “ The contractor to put in place complete metal-front letter boxes, to be furnished by the Government, for post-office screen, with necessary glass, locks, letter plates, keys, and other hardware for wood-front drawers, delivery windows, &c.
    “ plumbing-.
    “ The rules and regulations of the water department to be complied with, and the contractor to pay all proper fees and charges, iiermits, etc.
    . “The supply pipe to be 2-inch, having 2-inch brass full-area stopcock, continued up the vent shaft, and connected to tank with ball cock and float.
    “ The tank to be 6' 0" long, O' 0" wide, 5' 0" deep, and to be constructed of f-inch tank iron, with §-inch rivets to same; the whole being thoroughly water-tight, and braced internally with -|-inch x 1-inch iron braces, and of sufficient strength to be guaranteed.
    “A safety tray to be constructed for the above, '6 inches larger than tank each way, and 6 inches deep, of No. 18 galvanized iron. The tank to be supported upon I-beams, as shown on drawing No. 154. The tank, pan, and beams to be thoroughly cleaned, and when finished to receive one coat of asphalt paint, mixed with linseed oil. The tank and pan, where pierced for connections, to have -fV-inch plates riveted to same, drilled aud tapped for the pipes. An overflow to be attached to the tank, to be 2 inches in diameter, and to empty on gutter, or where directed; under no circumstances to any soil pipe. A f-inch wrought-iron telltale pipe to connect with tank and with bottom of safety pan, and to be run to basement sink, or where directed.
    W TP 71' TV TP 7?
    “A 2 inch pipe to be connected with main supply in basement, the same to be fixed outside of building with standard hose connections, fitted for city fire department’s use, to increase pressure in case of fire.
    “ The falling main to be connected in basement with rising* main by a 2-inch pipe, said pipe to be provided with a cut-off valve in accessible position. All the supply pipes to be graded so that they can be entirely drained through fixtures, or to be drained through waste cocks at lowest points.
    “All soil, waste, and drain pipes and down spouts to be laid as shown on drawings, and the main drainpipe to be run to manhole, outside of building, provided with trap, with an inlet and inspection hand-hole, as shown, and connected to earthenware drain (which latter is specified herein under head of ‘Excavation1).
    
    “All vertical and soil pipes and down spouts to rest at bottom on a brick pier, and to have quarter bend at foot, with 3-inch inspection hand hole. All vertical soil pipes to be 4-inch diameter, unless otherwise specified, to be enlarged to 6-inch just below roof, to extend 4 feet above roof and be covered with copper wire basket. Manholes also to be provided at connections of all branch and soil pipes to main drain and clean-outs, to be inserted on straight lines of pipes where shown.
    “STREET washers.
    “A 1-inch pipe to be run as indicated in basement and terminate outside building, so that hose may be attached for street washing purposes; these pipes to be graded, collected, and controlled by one compression cock and waste.
    * * # * # ’ * *
    “WASTE.
    “All closets above basement to waste through 4-inch wrought-iron pipe, properly connected to brass floor plate and to waste pipe. Basement closets to -waste through cast-iron pipe of dimensions noted.
    
      “GAS PITTING.
    ##**-###
    “All pipes to have a continuous fall toward tlie meter, which is to be placed where a cock is also to be provided to draw off condensation; pipes in the cellar or basement to be exposed, and those hung from ceiling to be fastened with suspension rods.
    *******
    “Each floor to be controlled by a separate stopcock.
    ****** #
    “Each floor and the court room chandeliers to be controlled separately by the best valve known; these valves to be placed in an accessible position as near as possible to rising main.
    “The piping to be tested as soon as laid, and again after the second coat of plaster is on.
    *******
    
      “Addenda.
    
    “1. Each proposal should be made on a blank of the form hereto attached and should state separate amounts for:
    “First. Raising upper portion of the building, introducing new third story, and completing the main building in accordance with the drawings and requirements, rear extension omitted, or taking down the upper portion of the building and rebuilding complete in accordance with drawings and requirements, rear extension omitted.
    “Second. The additional amount required in either case to add the rear post-office extension complete.
    “And should also state the time required in each case to complete,
    “ 2. Proposal for enlarging the U. S. court-house and post-office at Atlanta, G-a.
    “ 3. The contractor to furnish all labor and materials required for enlarging and altering the building, adding’ intermediate third story (raising the upper portion, or taking down and rebuilding), adding rear extension to the post-office portion, and completing the entire building in strict accordance with this speciflcation and the requirements of the accompanying drawings, and such additional details and directions as may be furnished for the proper and substantial execution of the work.
    “There is certain work specified or called for in drawings which may prove unnecessary during the progress of the work. Such omissions are to be made only upon written directions of the Supervising Architect, or superintendent, and deductions from contract price will be made according to market rates for such omissions.
    “The heating apparatus not to be included in this contract.
    
      
      List of drawings.
    
    No. 25. Details of iron columns.
    
      “ 30. Details of tower, &c.
    “ 35.) “ 36. > “ 38. S Details of joinery.
    
      “ lo" } Court-room details.
    
      “ 41. Plans and details of roof.
    
      “ 44. Details of joinery.
    “ 48. “ 53. “ 54. ■ Details of main stairs.
    “ 66. “ 67. > “ 68. ) New floor plans of enlarged building.
    
      “ 69. ) “ 70. > “ 72. ) Elevations of enlarged building.
    
      “ 73. Section and details.
    “ 75. Details of P. 0. extension.
    “ 126. Pine linings.
    
      “ 154. Details of plumbing.
    “CHANGES IN OLD WORE.
    “ Tbe main building is to be enlarged by the construction of an intermediate third story and enlarging rooms by changing the loggia construction into engaged arcades.
    “ The entire plumbing apparatus to be overhauled, rearranged, and completed as shown on the new plan, using old. material as far as possible.
    “ The extension of the heating apparatus will not be included in this contract, but all changes required by the alterations in the building, and to make the new system of flues and air inlets complete and the taking down of mantels and fireplaces, as noted on the plans, to be included in this contract.
    “ Mantels not reused to become the property of the Government.
    “ Passenger elevator complete, including necessary alterations in the floors and the construction of the brick shaft, to be included in this contract.
    The elevator to be located near the main stairway entrance and travel from the first to the fourth floor.
    “A new flight of stairs of the same design and construction as the other flight of the main stair to be built from the second to the third floor, the present flight being taken down and reused between the new third and fourth floor.
    “All the wooden stairs of the present building are to be taken out and the several flights indicated on the new plan to be constructed.
    “The following alterations of the rooms of the main building are to be made:
    
      “ The floors are to be properly supported and the interior walls taken down as required to make the chauges.
    “In the basement a new pier is to be constructed at the Fairlie-street end of the building, and rooms for the railway mail clerks prepared and fitted with plumbing fixtures as indicated on the plan of basement.
    “Above this pier the walls are to be taken down in the several stories to rearrange in accordance with the plans, and columns and girders substituted as noted and detailed.
    “ Heavier beams are also to be substituted to carry new partitions in the second story. Also I-beam girders for the upper corridors.
    “ The P. O. working space to be extended, as shown on the new plan, and additional closets, screens, &c., to be provided.
    “ In the second story the inner wall of loggia to be taken down and replaced by two stories of columns and the girders W, X, and 'Y to carry the curtain wall of the present third (new fourth) story, as shown and detailed on drawing No. 73, and the front room enlarged by rebuilding the curtain wall in contact with the present loggia columns.
    “ Tb e Fairlie- street stairway end of second story ip be properly columned and girdered and rearranged in accordance with the drawing No. 67.
    “The new partitions, vaults, &c., to be arranged in accordance with the plans, and a twelve-inch beam to be provided in the ceiling of this story to carry the partition in the story above; also the corridor beam noted to support the third floor.
    “The third story to be constructed in accordance with the drawing, using the old flight of main stairs and the mautels taken from the other stories as before noted.
    “The fourth story to be the present third story rearranged in accordance with the plan on drawing No. 68.
    “The two main doors of the court room to be changed to one, and the flues and ventilation changed.
    “ The attic portion to be completed with new stairs, new chimneys over court room, &c., in accordance with the new fifth-story plan.
    “ POST-OEEICE EXTENSION.
    “Should the rear extension to the post-office working room be included in this contract, the rear curtain wall of the present building is to be properly supported; the plate girder detailed on drawing No. 75, inserted, to support the upper wall and the first story and basement wall below the girder be replaced by piers and columns.
    “The present mailing platform and rear area to be carefully taken down and reused in completing the new work. The rear driveway to be taken up, and after the completion of the extension,, the approaches, &c., to be properly repaired.
    
      “ The exterior facing of walls to be pressed brick, with cut gray granite trimmings to match the present facing of the building.
    “All walls, except in office rooms and closets and the attic story, to be wainscoted to correspond with the original work.
    “The basement stair in rear extension to be substantially constructed of wood and to be enclosed with a matched and beaded partition in the basement and balustraded in the first story, as indicated on the floor plan.
    “Each tread and riser, with stiffening ribs and flanges, to be a single casting, as detailed, with the upper surface of threads diamond checkered. The stringer and wall casings and the soffits of the stairs to be of cast iron, designed and constructed as detailed, and to conform to the old work.
    “The platforms to be arched, concreted, and tiled as in the original work. The wainscot of the stairs to be wood, stopping on the cast-iron wall casing.
    ^ ^ ^ ^
    “The elevator shaft to be constructed of brick and to start with concrete footings in the basement.
    “The old mantels are to be reset. New fireplaces are indicated on the iilans, and all fireplaces in the completed building to be provided with grates, &c., complete.
    #######
    “Hyde,audio Elevatoe.
    “ GENEEAL SPECIFICATION.
    “The following specification is intended to describe, in general terms, what will be required. Nothing in this description, however, is intended to express a preference for any particular manufacture.
    “The contractor to furnish and erect one hydraulic passenger elevator, including car, cylinder, framework, hoisting and controlling gear, annunciators, &c., in accordance with this general specification and drawings, which shall have been furnished by the contractor with his proposal.
    “DETAIL DEA WINGS.
    “Each bidder to submit with his proposal detailed drawings and specification of the car, hoisting apparatus, method of erection, position of machinery, &c.
    “FEAMING.
    “ The contractor to construct a substantial foundation and bedframe for the cylinder, provide, erect, properly iron, line true, and substantially secure to masonry of shaft the elevator guides, and to substantially frame and build in place at the bead of shaft the supports for the hoisting sheaves.
    “ CAB.
    “ The passenger car to be the largest size suited to the shaft, constructed of oak, strongly framed, ironed, and braced.
    “ The interior woodwork and front of car to be neatly paneled and finished in butternut, filled, and polished. Floor to be wood parquetry. Ceiling to be of ornamental glass, and the car to be properly ventilated.
    “ Car to be provided with pneumatic or electric annunciator, connected at each floor with the indicator of the car.
    “ The design and description of car to be submitted with proposal.
    “ The hoisting apparatus to be so arranged that the car will stop automatically at the upper and lower landings, and the car to be supplied with operating cables and clutches for stopping car at the different landings.
    
      “ CAPACITY.
    “ The passenger car to travel from the basement to the fourth story, and to have a maximum hoisting speed of not less than 200 feet per minute with 2,000-pound load in the car.
    “WATER PRESSURE.
    “ The elevator to be operated by an hydraulic cylinder with the water taken directly from the street main, with a pressure of pounds to the square inch.
    “PIPING-.
    “ All piping for the working of the elevator, together with all connections, to be provided and fitted by the contractor.
    “Provision to be made to drain the water from the cylinder into the sewer to guard against injury to the apparatus from the water freezing.
    “All pipe to be the best quality of wrought iron and tested to 500 pounds hydrostatic pressure.
    “CABLES.
    “ The passenger car to be suspended, for lifting and counterpoise, with three steel wire cables, each cable capable of sustaining a load of five tons.
    “ COUNTERWEIGHT.
    “ Oar to be partially counterbalanced, allowing only sufficient weight of car to give a moderate speed while descending.
    
      “SAFETY APPLIANCES.
    “The elevator to be fitted with approved safety devices to prevent injury to the ear or its contents from a fall in case the hoisting apparatus give way.
    “Safety appliances that clutch the sides of the guide strips are preferred to the ratchet principle.”
    II.' Under said contract the claimants substantially performed the work specified and received in payment the sum of $103,684.14.
    In the course of the performance of the work there were omitted by the agreement of the parties from the contract work certain items which in the aggregate amounted to the sum of $535.80.
    The defendants withheld from the claimants the sum of $912 because of the refusal and failure of the claimants to lay new marble tiling on the floors of the first and second stories of the old building. The claimants protested against such reduction, upon the ground that they were not bound by the contract to lay new floors on said stories. It was agreed by .the parties that the sum of $912 was the reasonable costs of laying new floors of marble tiling.
    III. In the performance of the work the claimants contracted with the “Warner Elevator Company” to put in an elevator at the cost of $2,150. The company had partially performed its agreement when defendants requested and required the claimants to put in the design and pattern manufactured by “ Otis Brothers & Go.,” which the claimants did under protest at a cost of $3,300. The work done by the Warner Company was turned over and used by the Otis Company and accepted by the defendants. The claimants filed with their proposal, and as a part of the specifications, an engraving or picture of an elevator car and appendice bearing the imprint, “ Otis Brothers & Co., New York.” Before the claimants had been notified that the Otis plan or pattern would be required the contract had been made with the Warner Company, and a substantial part of the work had been done by that company in putting in their system.
    In the change from the Warner to the Otis system the “ tank-pressure system ” was adopted, which required a tank and pumping plant, and the additional cost of such system was the sum of §1,690, which was paid by the defendants to the Otis Company. A reasonable per cent of profit on such additional cost was 20 per cent, making the sum of $330. The street-pressure system, which would not have required said tank and pumping plant, was abandoned.
    In the construction of the elevator the Otis Company used the car which had been made by the Warner Company and which was intended by them to be used in their system. It was not contended by defendants at the time they made a change to the Otis system that the Warner system would not perform the work of an elevator, nor does it appear that it was defective in any requirement of complete elevator. The architect of the defendants ordered the change, because the cut indicated, as he contended, that the Otis system was to be used. The change was ordered by an architect detailed to superintend the work after the claimants had made preparation and performed work with the view of putting in that new system.
    IV. Claimants also performed, by direction and at the request of the defendants, certain work and provided certain materials of the value of $7,478.85, as set forth below, the claimants protesting that said work and material were no part of their contract, and gave notice before doing same that they would seek and demand reasonable compensation therefor. All of the work was accepted by the defendants, but no compensation has been paid the claimants. The items are as follows:
    PAINTING.
    1. Painting inside of 35 window frames, etc., of old portion of building, first and second stories, at $5. $175.00
    2. Painting 29 window frames and trimmings, inside and outside, at $5 (first and second stories). 145.00
    3. Painting 22 window frames and sash on outside of first story, at $2. 44.00
    4. Painting and repairing 14 basement windows, at $3. 42. 00
    5. Painting 13 old doors and frames, at $5. 65.00
    6. Painting and ornamenting 4 vault doors, at $9. 36. 00
    7. Painting wainscot, second story, 307 linear feet, at 30 cents.. 92.10
    8. Painting bases, second story, 15 rooms, at $3. 45.00
    9. Painting walls, second story, 3,161 square yards, at 30 cents (inside). 948.30
    10.Painting and cleaning old stone and brick work, i. e., outside scaffolding for first and second stories. $300.00
    11. Painting outside brickwork, first and second stories, 1,541 square yards, at 30 cents..:. 462.30
    12. Cleaning off stonework. 450.00
    1,212.30
    
      The scaffolding was substantially the same that was used in the erection of the building.
    13. Painting stairway, first and second stories. $25.00
    14. Painting stairway in basement. 12, 00
    15. Painting walls and ceilings of old portion of first story, 150 squares, at $1.75. 273.00
    TILING AND FLAGGING.
    16. Cleaning off tile in the second story. 55.00
    17. Repairing tile, first and second stories. 40. 00
    18. Repairing flagging in area.:. 25.00
    19. Repairing flagging in front walk. 25.00
    The tile and flagging were injured by the contractors in doing the work in the building and the repairs became necessary to restore them to their former condition.
    PLASTERING.
    24. oo 20. Plastering ceiling of portico, Marietta street front, 60 square yards, at 40 cents.
    6.40 21. Plastering ceiling of portico, Fayette street front, 16 square yards, at 40 cents.
    22. Cutting out plastering in postmaster’s room at niglit, first story .
    23. Plastering and repainting same.
    The plastering in items 20 and 21 became necessary because of a defect in the temporary roof. The water leaking through it impaired the plaster.
    CONCRETE AND CEMENT.
    24. Concreting over brick arches of third-story loggia. 40.00
    25. Cementing floors in basement.. 40.00
    26. Punning Portland cement cornice in portico, Marietta street front, 136 feet, at $1. 136.00
    27. Running Portland cement cornice in portico, Fayette street front, 48 feet, at $1. 48. 00
    ROOFING, SLATING, AND GUTTERING.
    28. Seven squares and 56 feet coxiper roofing for towers. 350.00
    29. Slating around ventilators. 58.56
    30. Coxiper work on skylight of annex:
    73 pounds copper, at 30 cents.$21.90
    1 xiapier copper tacks.50
    12 hours’ time, at 60 cents. 7.20
    -29.60
    31. Gutter on mailing platform, i. e.':
    14J ft. 5-in. galv. guttering, at 15c. $2.18
    4 Berger hangers, at 8c.32
    26 ft. 2-in. galv. pipe, at 8c. 2.08
    6 2-in. elbows, at 8c.48
    8 hours’ time, at 60c. 4.80
    Profit.•. 1.97
    - 11.83
    Item 28, for copper roofing for towers, was done by claimants by an order from the architect changing the roof as it had been completed, by the acquiescence of the architect, from a use of old material to new material. The work done with the old material made a good roof, but unsightly, and for that reason the change was made against the protest of claimants.
    
      PLUMBING AND GAS PITTING.
    32. Terra cotta drain pipes in two stairway areas ordered by inspector. $44.67
    33. T. C. drains around 9 window areas. 243.75
    34. 4 ft. 4-in. terra-cotta pipe. .33
    35. Disconnecting steam pipes.« .60
    36. 5k hours changing' sewer. 2.64
    37. Changing pipes in annex:
    
      
    
    - 4.10
    38. Running gas pipes from interior lights out to mailing platform . 12.00
    CARPENTERING.
    39. Taking out partition in money-order office, first story. 25. 00
    40. New door in basement connecting with P. O. extension, necessary to use in new building. 9.60 *
    41. Planing off surface of old floors, first and second stories entire. 175.00
    42. Changing counter from registered-letter department; 4 men, 2 days, at $3.60. 28.80
    43. Building temporary roof to permit use of lower stories during repairs. 1,500.00
    44. Rehanging doors on Marietta street side, first story, 1 man, 3 days, at $3.60. 10.80
    45. Rehanging sash in second story, 15 windows, at $3. 45.00
    46. 8 windows of sash chain repaired, at $1. ■ 8.00
    47. Repairing doors on mailing platform. 15.00
    48. Changing scuttle in deck roof of west tower, defective roof.. 25.00
    Item No. 41 for planing. The work became necessary for the reason that the floors had become uneven in consequence of brick and other material being carried over them by claimants, and the fact that they had been saturated with rains leaking through temporary roof. Item No. 43. A temporary roof was necessary to protect the lower stories of building from damage. At the time roof was put on the architects insisted that it was not sufficient. It was impaired during the work by brick and other materials falling on it and making holes.
    HARDWARE.
    49. New locks and hardware for old doors; keys furnished for doors on first and second stories. 10.00
    50. Putting on 3 window guards, prisoners’ room. 30.00
    51. Pipe rail for ladder to tower roof. 51.60
    52. 1 dozen sash locks on windows of first and second stories- 12.00
    GLASS.
    53. Duplicating glass, first and second stories, broken by P. O. employees. 50.00
    54. Replacing glass in various parts of building June 18,1891... 200.00
    55. Glass for basement windows. 42.00
    WIREWORK.
    56. Wire screen over counter, registered-letter office. 66.00
    57. Changing wire doors in registered-letter office. 24.00
    
      58. Inclosing elevator in basement. $66.00
    59. Material for P. 0. screens. 10.00
    60. Repainting same. 5.00
    BRICK.
    61. Furnishing and laying 7,000 brick for arches over loggia, at $25 per thousand. 175.00
    STONEWORK.
    62. Cutting cases for air inlets under sills, second story, stone-cutter, 10 days, at $5. 50.00
    63. Stone corbels in annex. 176.00
    VENTILATION.
    64. Air duct in basement. 75.00
    65. Ventilators on roof. 60.00
    GENERAL REPAIRING.
    66. Repairing basement, printing room, Forsyth side. 75.00
    67. Repairing basement, and hardware, 3 men, 6 days, at $3. 54.00
    CLEANING AND SCRUBBING.
    68. Cleaning and scrubbing floors after building was occupied.. 60. 00
    Total.•. 7,478.85
    
      Mr, John G. Fay for the claimant.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Bodge) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The claimants in the year 1889 were builders and contractors, doing business as Thomas & Driscoll, and as such entered into an agreement with the defendants to make improvements upon the United States court-house and post-office in the city of Atlanta, State of Georgia, as shown by the contract of January, 1889, filed as an exhibit to the original petition, marked “A.”

To the contract are annexed very voluminous specifications detailing the character of the work to be done under said contract. The specifications applicable to the items in controversy are set out in the findings.

The contract price of the work is $104,500, to which was added, by the stipulation of the parties, the sum of $531.94 for extra work, making the aggregate sum of $105,031.94, upon wbicb was paid the sum of $103,684.14. By agreement of the parties, certain items of the work were omitted, which amounted to $535.80.

A deduction of $912 was made by the defendants because marble tiling-was not laid in the first and second stories of the old building; and that item so deducted is one of the disputed items of this case, the defendants insisting that by the terms of the agreement it was the duty of the claimants to put in such tiling, and the claimants insisting that they were not bound to do so by the obligation of their agreement.

As is shown in the findings, the said sum of $912 was deducted from the pay of claimants because of their failure.

The third finding shows that the claimants made a contract with the Warner Elevator Company to put in their system, and the company made an expenditure of the sum of $2,150 in so doing; but the defendants objected and insisted upon a form of elevator manufactured by Otis Brothers & Company. The claimants then contracted with the last-named company at an increased expense of $1,150, and they now claim the increased expense as a just demand against the defendants. The claimants insisted that the Warner system complied with their obligations, and changed to the Otis system under protest.

In consequence of the use of the Otis system a different plan of pumping was required, and the difference in the cost of the two systems of pumping was $1,690, which additional expense was borne by Otis Brothers & Company and paid by defendants; and upon that difference of cost the claimants now sue to recover the sum of $338 as a percentage of profit on the increased cost.

In the fourth finding is an itemized account of labor performed and material furnished by the claimants amounting to the sum of $7,478.85, which they claim was extra work beyond the requirements of the contract and specifications, and for which they now seek a judgment. It is insisted by the defendants that the claimants were bound by their contract to perform such labor, and that therefore compensation is embraced in the consideration of $104,500.

The first item in dispute is the $912 deducted by the defendants because of the failure and refusal of the claimants to lay tiling in the first and second stories of the building. As is said, tbe claimants protested against tbe deduction upon tbe ground that they were under no obligation to put new marble tiling on tbe first and second floors; but if forced to they would repair tbe old tile, and that a deduction of $912 was a proper deduction as tbe difference between new marble tiling and what they did by way of repairing tbe old work.

By reference to tbe specifications entitled “ Changes in tbe old work,” it will be seen that no mention is made by specific description to tbe main floors of tbe building, although many other items of work are specified in detail. Nothing is said as to tbe change in tbe floor from tbe old material to marble tiling, as contended by tbe defendants. Tbe item, amounting, as it did by tbe agreement of tbe parties, to the sum of #912, was a very substantial one, and its omission, when so many other items of much less importance are specified, tends very materially to strengthen tbe contention of tbe claimants that they were not bound to lay new marble tiling, as contended by tbe defendants.

It is insisted that it comes under tbe bead of marble work, as provided for in the specifications.

Tbe main floors of tbe first and second stories of tbe building are not referred to by name or by necessary implication in tbe terms of tbe marble clause of tbe specifications. If marble tiling bad been intended for tbe two named floors, it is most probable that it would have been referred to and provided for in that branch of tbe contract which refers to “ changes in old work.”

Marble tiling, as to tbe first and second floors, not being provided for by tbe terms of tbe agreement, tbe defendants were not justified in making tbe deduction, and upon that item of tbe claim the claimants have a right to recover.

Tbe next item of tbe claim grows out of tbe construction of tbe elevator. It is shown by finding hi that in tbe prosecution of the work the claimants contracted with tbe Warner Elevator Company to put in one of their make at a cost of #2,150; that the company bad partially performed their agreement when the defendants requested and required claimants to put in a design and pattern manufactured by Otis Brothers, which they did under protest, at a cost of #3,300. Tbe work done by tbe Warner Company was utilized by tbe Otis Com-pa-ny and accepted by the defendants. The claimants filed with and as a part of the specifications an engraving or picture of an elevator car and appendice bearing the imprint, “Otis Brothers & Co., New York.”

The elevators of the two companies were substantially similar except in the motive power, the “tank system” being-adopted in the Otis plan, which cost the sum of $1,690, which was paid by the defendants, the Otis Company. A reasonable per cent of profit on that work would amount to the sum of $338.

The street-pressure system which would have been adopted with the Warner plan would not have required the tank and pumping plant of the Otis system.

In the specifications, under the head of “Hydraulic elevator,’-’ it is said:

“The following specification is intended to describe in general terms what will be required. Nothing in this description, however, is intended to express a preference for any particular manufacture. The contractor to furnish and erect one hydraulic passenger elevator, including car, cylinder, framework, bolting and controlling-gear annunciator, etc., in accordance with the general specifications and drawings which shall have been furnished by the contractor with his proposals. Bach bidder to submit with his proposals detailed drawings and specifications of the car-bolting apparatus, methods of erection, position of machinery, etc.’ The passenger car to be the largest size suited to the shaft. The- design and description of car to be submitted with proposal.”

The increased cost to claimants between the Warner and the Otis systems was the sum of $1,150, and for that amount the claimants seek a judgment. While the specifications intended to describe in general terms the requirements of the contract on the subject of the elevator, they expressly disclaimed any purpose to prescribe or require any particular manufacture. Besides the claimants had, upon the faith of the defendants in difference as between systems, made a contract with the Warner Company, in the performance of which the company had done a substantial portion of the work when the claimants were notified by the defendants that they must adopt the Otis system.

In the construction of the elevator the Otis Company used the car which had been manufactured by the Warner Company, by and with the consent of the defendants; and the only substantial difference between the two systems consisted in the pressure, one being the tank pressure and the other the street pressure. For that difference the defendants paid the Otis Company the sum of $1,690 without making any claim against the claimants. The change from the Warner system to the Otis system was made by the newly appointed architect for the reason that he construed the contract as calling for the Otis system. He did not insist or claim that as a system the Warner plan was defective and unfit for the purpose and requirement of the building, but that the Otis system was the one recognized by the contract and should therefore be adopted. Construing the rights of the parties by the terms of the specifications and their acts in the execution of the work, the court is of opinion that the use and profert of the Otis cut representing an Otis car did not have the effect of modifying and changing the force of the words, “nothing in this description, however, is intended to express a preference for any particular manufacture.” The form of the car did not seem to be a material consideration with the defendants, as they used the car which had been made by the Warner Com- ’ j)any in the construction of the elevator under their agreement. The plan was changed by the newly appointed architect for the reason that he so construed the specifications as to give him that right and for the further reason that he had a preference for that system. The defendants, before the change, were notified by the acts of the claimants that they had decided to adoiit the Warner system by making a contract with that company for their system and doing work under the contract, with the knowledge and consent of the defendants.

Taking the agreement in its specifications and the acts of the parties in the execution of the agreement, the court determines, as a legal conclusion, that the increased expense between the two systems which the claimants have been compelled to pay is a just and legal demand against the defendants and upon that item of the claim there should be a recovery.

As to the claim of a profit on the difference between the cost of the Warner and the Otis system, amounting to the sum of $330, it is sufficient to say that the claimants refused to put in the Otis plan, so far as the tank and pumping plant is concerned, and for that the defendants dealt with, the Otis Company and paid them in fall for the construction of it. That item is disallowed.

The next subject of controversy grows out of the items of labor and material embraced in the fifth finding, consisting of 68 items and amounting in the aggregate to the sum of 87,478.85. That amount of work was done by the claimants for which they have not received compensation unless it be embraced in the aggregate consideration of the contract. It is insisted by claimants that it is in addition to the work required by the specifications and therefore extra; while the defendants insist that it falls within the requirements of the specifications and that therefore the claimants are not entitled to specific compensation. While the contract itself is brief the specifications and plans, which by the terms of the agreement are made a part of it, are voluminous and somewhat difficult of interpretation. If the work had been a continuous and simple building of the house the difficulty would be very much lessened; but when the labor and material are made applicable, as they are, to an improvement of an old building, the condition becomes somewhat complicated.

The contract provides that the claimants are to “ add two stories thereon and to rebuild and complete main building, including rear extension, and makeall attendant changes in strict accordance with drawings, terms of advertisement, and specifications” for which an aggregate sum of $104,500 was to be paid. The question which arises in the claim of the items of the fifth finding is, Do they come, either by express specification or necessary implication, within the terms of the agreement amplified by the drawings and specifications? It would enlarge the opinion of the court to unreasonable bounds to discuss in detail each item, and we therefore by way of abbreviation indicate which of the smaller items are to be allowed as extra and which are to be disallowed as coming within the terms or spirit of the claimants’ agreement.

The judgment of the court is that the claimants recover the sum of $5,244.62, as indicated in the conclusion of law.  