
    JAMES D. BITTING, Surviving Partner for the use of William H. West, Administrator of Davidson v. THE UNITED STATES.
    [No. 14678.
    Decided, November 3, 1890.]
    
      On the Proofs.
    
    Bitting & Davidson are contractors to lay the marble and brick work of the Memphis Custom-House, the defendants furnishing the material. They seek to recover damages for failure to furnish material, and for unreasonable suspensions of the work. The defendants seek to recover back on a counter-claim money erroneously allowed and paid to the contractors by the Supervising Architect of the Treasury. Also for additional material furnished in consequence of the contractors’ imperfect work.
    I.Where a contractor agrees to lay the brick and marble work for a public building, and the defendants agree to furnish the material, they will be liable for the wages of his unemployed men, if they unreasonably neglect to furnish it.
    II.Where the defendants unreasonably delay the work for years, they are liable for the contractor’s losses caused by a rise in the cost of" labor.
    III. Where the defendants, having suspended the work, give notice of its-resumption on a designated day, the contractor can not incur an unnecessary expense by employing men long before the day named.
    IV. Where the contractor being notified to resume work in October, does not resume it till freezing weather, he will be liable for its imper-. fection.
    
      Y. Though tlie defendants agree to furnish material ready for use, hut furnish sand which needs screening, they will not he liable, if before the contract the bidders were so notified, and such was the local usage.
    VI. Where the Supervising Architect of the Treasury without mistake of fact, allowed and paid for certain work as additional to that required by a written contract, the defendants can not recover it back on counter-claim.
    
      The Reporters’ statement of the case:
    This case was referred to the court by the Secretary of the Treasury under the Revised Statutes, § 1063.
    The contract which was thefoundation of the actiou contained the following provisions:
    
      “ The Government will furnish at the site of the building all materials required for the execution of this work; marble cut, lewised, ready for setting, bricks, cement, sand clamps, etc. * * *
    “ That the party of the second part consents and agrees to and with the party of the first part to furnish all labor required in mixing mortar, setting marble, laying bricks, bedding plates for iron and wooden work for the several floors and the roof, etc., and building in all iron and wooden work, being all the said work required to complete the United States custom-house, court-house, and post-office buildiug, at Memphis, Tenn., from top of water table (line A A, as shown on the elevations of said building) to line O 0, as shown on the elevations of said building, including brick work in first-floor arches, setting steps, platforms, buttresses, and supporting stones of front, end, and rear entrances to first story, all in strict accordance with the terms of the advertisement and specification and as shown on the general drawings of said building. * * *
    The following are the facts of the case as found by the court.
    I. The contract, as set out in the petition, was entered into by Jared D. Bitting and Robert Davidson, under the firm name of Bitting & Davidson. It was approved by the Secretary of the Treasury, April 25,1879. Bitting ceased to be a member of the firm in October, 1882; Davidson died in 1883, between the 9th of April and the 2d of May. The plaintiff was duly appointed administrator of his estate, and proceeded with the execution of the contract. The last nine vouchers under the contract were paid to him in that capacity.
    II. The proposal of Bitting & Davidson, in response to the advertisement of the United States, was accepted March 5,1879. March 21,1879, the contractors wrote from Memphis, Tenn., to the Department that “ they were on the ground ready for work.” April 21,1879, the following letter relative to the time of beginning the. work was sent to the contractors:
    “Oeeice oe the Superintendent,
    “ U. S. Custom-House, Court-House, and Post-Oeeice,
    “ Memphis, Tenn., April 21,1879.
    “ Messrs. Bitting '& Davidson :
    
      “ Gentlemen : Acknowledging the receipt of your letter of the 18th instant, and referring to mine of the 17th, addressed to you, I have to say the stone-cutters went to work again on the 18th, and the work is progressing in the usual way. The stock of rough stone, however, is very low. I will give you due notice when I think you had better commence the setting; but as the case now stands I do not think you can commence before the 15th of May or 1st of June.
    “ Mr. Burns advised me this morning that he would now finish out the lower courses as fast as possible. After the first six or eight courses are completed I will give you notice.
    “ Very respectfully,
    “ G. H. Sease,
    “ Superintendent.”
    The contractors began work on the Monday preceding May 29, 1879.
    July 14,1879, work was suspended until further notice, after the following correspondence upon the subject:
    “ July 11,1879.
    “ Hon. J. G. Hill,
    
      11 Supervising Architect:
    
    “Dear Sir: We have to inform you that,owing to the delay’ in receiving the cut-stone for the U. S. Custom-House at Memphis, we are compelled to be under a very heavy expense, as our men have only been employed ten days on the work since the first dayT of June, and for the balance of their time up to this date we have had to pay them the same as if working on the contract, with their expenses. And now, as we are informed that the stone-cutters are on a strike again, which will cause a considerable delay, we would wish to be advised by you what course to take, as we desire faithfully to execute ou'r contract.
    “ V ery respectfully,
    “ Bitting & Davidson.”
    
      “ Treasury Department,
    “ Oeeioe oe the Supervising- Architect,
    Washington, July 14,1879.
    
      11 Messrs. Bitting- So Davidson,
    “Contractors, etc., Washington, N. <7.:
    “ Gentlemen : I have to acknowledge tbe receipt of your letter of the 21st inst. relative to tbe delays occasioned to your work at tbe new custom-house building in Memphis, Tenn., by tbe non-delivery of cut stone, and stating that you claim to be entitled to extra compensation only for the traveling expenses of tbe mechanics whom you have sent from a distance, and for such advance as there may be, if any, in wages.
    I have to request that you discontinue operations under your contract for the work above referred to until further notice, and present at as early a day as practicable any claims you may have, on any account, in order that proper settlements may be made speedily with the cut-stone contractors.
    “ Y ery respectfully,
    “ Jas. G. Hill, “Supervising Architect.”
    
    The yellow fever broke out at Memphis about this time, which prevented the resumption of work during that and the following season.
    III. From the time the contractors began work to July 14, 1879, the defendants were unable to furnish cut stone fast ■enough to keep the men employed. The time so lost amounted to twenty-seven days. During these days they retained and
    paid:
    1 stone-cutter 23 days, at $6 a day. $138
    1 foreman of brick-layers 27 days, at $6 a day. 162
    1 engineer 27 days, at $4 a day. 108
    2 laborers 27 days, at $2.50 eacb a day. 135
    Hotel bill for contractors and men. 298
    One of tbe contractors 27 days, at $10 a day. 270
    Total. 1,111
    IV. Mr. Bitting at the outset went personally to Memphis, taking with him a number of workmen and skilled labor; he built a lot of turn-tables, made a track around the building, and supplied part of the scaffolding. Upon receipt of the notice of July 14, 1879, Mr. Bitting returned to Philadelphia, bringing his skilled hands with him. The expense of their return to Philadelphia in July, 1879, and of their trip to Memphis in November, 1880, amounting to $616, has been reimbursed by the United States, as appears by the following recommendation of the Supervising Architect, the contractor’s bill and receipt:
    “ Treasury Department,
    “ Oeeice op the Supervising Architect,
    
      “January 13 th, 1881.
    “Hon. John Sherman,
    
      “Secretary of the Treasury:
    
    
      “ Sir: On the 15th of April, 1879, the Government entered into contract with Messrs, Bitting & Davidson for the supply of all the labor required for setting the marble and brick work for the superstructure of the new custom-house building at Mem [this, Teuu., for the sum of twenty-seven thousand three hundred and fifty dollars ($‘17,350). The contractors entered promptly upon their work, but, on account of the suspension of stone-cutting, caused by the prevalence of yellow fever at the time, it became necessary for the Department to suspend work under the contract referred to, which action was taken under date of July 14, 1879.
    “ By reason of the failure of the stone contractors, Messrs. Burns & Benner, to supply cut stone as required for the work of Messrs. Bitting & Davidson, they were prevented from resuming work under their contract until the 15th of November last. This delay has resulted in losses to them, on account of which a claim is made against the Government.
    “ Upon examination of the bill as presented I find that several questions of law arise, demanding careful consideration. Through the direct action of the Department, extra expense was incurred by the contractors for railroad fares of foremen and mechanics employed by them at the North and taken to Memphis for the prosecution of their work, which it is proper for the Department to allow.
    “ In view of the circumstances of the case, 1 would recommend that, except the item of extra railroad fares, consideration of the claim by the Department be declined, but that payment be authorized of the actual amount of this extra expense, stated by Messrs. Bitting & Davidson to aggregate the sum of six hundred and sixteen dollars ($616), which statement should be verified by oath, and that authority be given for a payment in full for work completed to date, to the satisfaction of the superintendent under the contract, the estimated value of which is seven thousand dollars ($7,000), on which payments have been made aggregating two thousand seven hundred and ninety dollars ($2,790).
    “Very respectfully,
    “ Jas. G. Bile, ■
    
      “Supervising ArchitectP
    
    
      “January 14,1880.
    “ Belative to contract of Messrs. Bitting & Davidson for tbe supply of labor required for marble and brick work for customhouse, Memphis, Tenn., and claim made thereunder for compensation for losses sustained on account of suspension of work, and recommending payment of amount of extra expense incurred for railroad fares of foreman and mechanics sent from the North, amounting to $616, and of the full value of work completed to date.
    “ Treasury Department,
    
      Jamiary 14, 1881.
    “Approved.
    “John Sherman,
    “Secretary.”
    
      The United States to Bitting Davidson, dr., on account of the appropriation for the construction of the U. S. custom-house, etc., Memphis, Tenn.
    
    1879.
    July 14. To R. R. fares from Memphis at time of suspension:
    To sup’t R. R. fares, $33.75; sleeping car, meals, and porterage, $25.00... $58.75
    To 5 fares (men), at $33.75 each. 168.75
    To sleeping ear, porterage, and meals. 42.50
    -$270.00
    1880.
    Nov. 3. To R. R. fares, meals and porterage, upon resuming work:
    To sup’t R. R. fares, $33.75; porterage, $16.25- 50,00
    To 7 men’s R. R. fares, $33.25 each.. 236.25
    To sleeping car, porterage, and meals. 59.75
    - 346.00
    616.00
    “Received, Memphis, Tenn., the second day of February, 1881, from 'W. J. Smith, disbursing agent, the sum of $616, in full payment of the above account.
    “ Bitting & Davidson.”
    
      V. By the time work was resumed in the fall of 1880 the price of labor had increased to such an extent that for the work between A A and B B, performed between November 3, 1880, and M arch 31,1881, the contractors were compelled to pay $541.49 more than they would have done if the work had been accomplished during the time fixed in the contract and for the work done after March 31,1881, between lines A A and B B, the enhanced cost was $200; total, $741.49.
    
      YI. The following letter relative to the resumption oí the work was sent to the contractors at the time of its date:
    “ Oeeice oe the Superintendent,
    “ U. S. OustoM-House, O. H., and P. Q., *’
    
      ' - “Memphis, Nov. 26th, 1879.
    “ Messrs. Bitting & Davidson,
    “707 Sansom Street, Philadelphia, Pa.:
    
    “Gentlemen: Referring to your letter of the 8th instant, I have to advise you that the stone-cutting is about to be resumed, but I learn from the contractors’ foremen there are still 110 pieces of stone to be quarried for the first story, 4 of these for the “ O ” course. Therefore, under the existing state of affairs, I am obliged to advise that I do not think you can resume operations under your contract, with a reasonable prospect of continuing work without interruption for the want of stone, until about the first of February next, should the weather then be inild enough for your work. As the terms of your contract make you responsible for the preservation of your work while it is under way or until completed, I have to request that you will take steps at once to have the walls of the building properly covered as a protection against damage by frost during the ensuing winter months. Some of the marble work set was never grouted and pointed, and is therefore liable to serious damage by freezing. Please give this matter your attention at once, as hard freezing weather is liable to set in at any time.
    “ Very respectfully,
    “ G. H. Sease,
    
      “Superintendent.”
    
    January 6,1880, the contractors were notified that the work was indefinitely postponed, as appears by the following letter:
    “Oeeice oe the Superintendent,
    “U. S. Custom-House, C. H., and P. O.,
    “Memphis, Term., Jem’y 6th, 1880.
    “ Messrs. Bitting and Davidson,
    “ 7u7 Sansom Street, Philadelphia, Pa.:
    
    “ GENTLEMEN: In reply to your letter of the 2nd instant, I have to say the stone-cutting has progressed tolerably well since the work was resumed in November, about one thousand (1,000) feet being cut since then, making now nearly one-half of the first story supplied ready for setting. No 'stone, however, has yet been received from the quarry since the work was resumed, and it is therefore impossible for me to say when tour work can be resumed. Judging from the present condition of things, I should say probably not before the first of April. Some of the“O”course and quite a number of door and window jambs must be. received first from tbe quarry, and probably some of them are not yet quarried. I bad the walls covered, as directed by the Supervising Architect, at your expense.
    “ Very respectfully,
    “G. H. Sease,
    
      u Superintendent.”
    After the receipt of the letter, November 26, 1879, Mr. Bit-ting went to Memphis to make preparation to resume work. Before starting he engaged men at Philadelphia and directed them to hold themselves in readiness to go to Memphis. He subsequently paid:
    Two laborers for 5 clays’ waiting. $27
    Two bricklayers, 5 clays’waiting-..... 35
    Mr. Bitting’s railroad fare to Memphis and return. 74
    Mr. Bitting 12 days’ timo, at §10 a day . 120
    Mr. Bitting, boarding 12 days. 36
    Total.292
    VII. The contractors were afterwards duly notified to resume work October 15,1880, but they did not so resume until a month later. Some of the brick-work, in consequence of this delay, having been put up in freezing weather, was not acceptable to the defendants, and had to be torn down and rebuilt at a cost to the contractors of $444, and to the defendants for additional material $200.
    VIII. The defendants furnished some unscreened sand, which had to be screened by the contractors, at a cost of $86.75. Before the building was let, the superintendent, Mr. Sease, informed the bidders that the sand would be furnished un-screened. That was according to the local custom.
    IX. When the contractors returned to Memphis, in November, 1880, they found the derricks and other machinery of the Government out of repair. Their expense in putting them in order was $180.20. It cost the contractors $500 to repair the damages their own plant had suffered during the exposure and $30.50 for rubbing down the walls.
    X. The claimants have been paid the full amount for their work and the first three items of the counter-claim now in dispute,
    XI. The Defendants’ Counter-Claim. — Item 1. Cutting stone for cramps for anchors, $1,500. This work was done at the Government’s expense. The superintendent, Mr.. Sease, and the contractors differed as to who should bear it, and the Supervising Architect decided in favor of the contractors, and it was paid accordingly.
    Item 2. For supplying labor, plastering bach; of cut marble of the entire superstructure of building, about 45,000 cubic feet, $700.
    This work was done by the claimants, but charged to and paid by the defendants as extra work.
    Item 3. This was a claim for traveling expenses, amounting to $616, which was paid by the defendants. The facts of the case appear in Finding IY.
    Item 4. This item of $200 is for material furnished by the defendants for relaying brick wall, as appears in Finding YII.
    
      Mr. John 8. Blair (with whom was Mr. JS. B. Ray) for the claimant.
    
      Mr. John 0. Ohaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Scoeield, J.,

delivered the opinion of the court.

The claimants had a contract with the defendants, dated April 15,1879, but not approved by the Secretary of the Treasury until April 25, 1879, by which they agreed to lay up the brick and marble work for the custom-house at Memphis, the defendants agreeing to furnish the material. The work has been done and paid for at the prices speciiied in the contract.

The controversy in this suit consists of claims, on the part of the contractors, growing out of alleged failure by the defendants to furnish, at the agreed time, proper materials for the work; and of counter-claims, on the part of the defendants, for alleged overpayments.

The facts upon which each item of claims and counter-claims is based are separately stated in the findings.

It appears by Finding Illthatthe claimants lost 27 working days in the months of May, June, and July, 1879, for lack of materials, which the defendants were bound to furnish. It was necessary to retain, under pay, during this.time certain employés, in order to proceed with the work as fast as the materials arrived. In this way the claimants sustained a loss amounting to $1,111. Inasmuch as this loss was caused by the failure of the defendants to perform their part of the contract, it should, in the opinion of the court, be borne by them.

Owing to the long delay in furnishing materialsthe work dragged along through several years. In the meanwhile the price of labor considerably advanced. The claimants’loss from this cause, as appears in Finding Y, amounted to $741.49. It is proper that the defendants should sustain this loss which they alone occasioned.

November 26, 1879, the claimants were notified that the work could not be resumed until about the 1st of February, 1880; and January 6, 1880, they were again notified that work could not be resumed before April; Notwithstanding these notices, .they engaged inen in Philadelphia and had them report at their office for service fór a number of days, and incurred other personal expenses preparatory to resuming the work. The facts are stated in Finding YI. This expense was entirely unnecessary. The claimants had just been notified that the work could not be resumed under two months. To employ men and put them on the pay-roll and charge for their own time and personal expenses, so long beforehand, was preposterous.

In Finding YII is a claim for tearing down and rebuilding an imperfect wall. The imperfection was caused by being-laid up in freezing weather, and was the fault of the claimants. They had been notified to resume work October 15, 1880, but did not resume until a month later, which brought the work into freezing weather. The loss should fall upon the claimants.

Finding YIII presents a small claim for screening sand. The bidders were informed beforehand that sand would be furnished unscreened. That was according to the local custom. The charge should not be allowed.

Finding IX includes three items: (1) Repairing the Government machinery 5 (2) restoring their own plant; and (3) rubbing down the walls.

The first and second items of loss were occasioned by the long delay in furnishing materials by the defendants, and they should make the contractors whole. The expense of rubbing down the walls devolved upon the claimants by the terms of the contract, and was therefore included and paid in the general settlement.

The defendants’ counter-claim consists of four items. The first, second, and third were allowed and paid by the defendants after discussion as to whether the work should be done by the claimants under the contract or should be considered extra thereto. There was no mistake of fact. The court does not feel warranted to revise the settlement thus made.

The fourth item, $200, is for extra materials furnished to rebuild a faulty wall as shown in Finding YII. The claimants’ imperfect work caused the expense and they should bear the loss.

Judgment will be entered for the claimants in the sum of $2,332.49.  