
    CATHARINE C. McGOWAN, Administratrix, v. THE UNITED STATES.
    [No. 19806.
    Decided October 22, 1900.]
    
      On the Proofs.
    
    The contract for a post-office building provides that the work shall be in three distinct parts, for each of which a specified sum is to be paid. If in the judgment of the officers in charge it appears at any stage of the work that it can not be completed within the time designated, the Government may take possession of tools, materials, etc., and complete the work. The contractor completes the first part of the work and is paid the amount due, less ¡$18,298.40, withheld. Subsequently he is unable to go on with the work, and the tools and materials by mutual consent are taken possession of by the Government, and the work is finished at a cost much greater than the contract price. The claimant sues for the amount withheld under the first division of the work and for the sum the tools sold for.
    I.A building contract divided into three parts so as to conform to present and future appropriations is an entirety and the contractor’ s' rights and liabilities are upon the whole contract.
    II.Where a contractor, after part performance, relinquishes all his rights under the contract and the Government completes the work, he can not recover for alleged profits on a part if indebted to the Government on the whole work.
    III. Where a contract provides for the completion of the work by the Government in case of default by the contractor, the Government is bound to pay him the difference in cost, if any; and if the actual cost exceeds the contract he is bound to make the difference good to the Government.
    IV. A contractor who surrenders his rights under a contract can not avail himself of any benefit arising from his own default.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant is a citizen of the United States, residing in the District of Columbia, and is the duly appointed admin-istratrix of the estate of Michael A. McGowan, deceased, who was also a citizen of the United States and a resident of said District.
    
      II. In response to the advertisement of the defendants for sealed proposals to construct a court-house and post-office building in the city of Pittsburg’, Pa., the claimant’s decedent and others made bids thereon, as follows,:
    
      
    
    The bid of the claimant’s decedent' being the lowest, the same was accepted by the defendants, and on January 21,1886, a contract was entered into in these words:
    “TREASURY DEPARTMENT,
    “Office of the Supervising Architect,
    “ (Form 36.)
    “ Contract between the United /States of America and M. A. McGowan. ' >'
    “Whereas, in accordance with law, by duly published notice, a copy whereof is hereto annexed, proposals were invited as therein set forth; now, this contract, made and entered into by and between M. E. Bell, Supervising Architect of the United States Treasury Department, for and in behalf of the United States of America, of the first part, and M. A. McGowan, of Washington City, and District of Columbia, of the second part, to whom was awarded the contract for the stonework- required for the superstructure of the court-house and post-office building, Pittsburg, Pennsylvania, on his bid for the same received under said notice, witnesseth: That the party of the second part covenants and agrees to and with the party of the first part to furnish all the labor and materials required to complete the stone masonry of the walls of the superstructure of the court-house and post-office building at Pittsburg, Pennsylvania, from and above the water table to the top of course ‘ U ’ at the second-floor line, including towers, carving, etc., and making the holes and sinkings for cramps, anchors, dowels, and bolts, designated herein as the first division, all in strict accordance with such of the following drawings as relate to that division, viz: Nos. 48, 49', 50, 51, 52, 54, 55, 59, 62, 68, 61, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 83, 84, 85, 86, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100, 101, 102, 103, 104, 105, 106,107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128,129, 131, and 133, and full size details and models (which said full size details and models will be furnished to the party of the second part by the party of the first part), and the terms of the advertise ment and specification, a copy of which said advertisement and specification is attached hereto and forms a part of this contract, and said numbered drawings, bearing the signatures of the parties hereto, are on file in the office of the Supervising Architect, and are hereby made a part of this contract.
    “And the said party of the second part, in consideration of the covenants hereinafter mentioned on the part of the party hereto of the first part, further agrees to furnish all the labor and materials required to build complete the stone masonry of the remainder of the said,superstructure; that is, from the top of the aforesaid course “ U ” at the second-floor line to the top of the third-story cornice, course Y-2, including pediment on front, and on center portions of Third and Fourth avenues to the top of course A-3, designated herein as second division, for the sum of one hundred and thirty thousand four hundred and fourteen dollars, and from the points last above named to complete the said building, designated as the third division, for the sum of one hundred and eighty thousand five hundred and seventeen dollars, including pavilions, towers, dormers, chimneys, vent-shafts, carving, and statuary, making the sink-ings and holes for cramps, anchors, dowels, and bolts, required for the said second and third divisions, respectively, all in strict accordance with the drawings, and the terms of the advertisement and specification hereinbefore recited and made part hereof, whenever orders for the work on said second and third divisions, or either of them, shall be given by the party of the first part.
    “And the said party of the second part further agrees that all of the materials used shall be of the very best quality of their respective kinds, as per samples on file in the office of the said Supervising Architect, and in every respect equal thereto; all the stone used to be Black Island granite taken from quarries in Black Island, Maine, and the work shall be executed in the most skillful and workmanlike manner, and that both the materials furnished and the work performed shall be to the entire satisfaction of the party of the first part.
    “The party of the second part further covenants and agrees to execute the said work at such times and in such quantities as may be required by the party of the first part; the work on the first division to be completed within ten months after possession of the building is given to said party of the second part, and the work on the second and third divisions to be completed within seven months, respectively, after the date of the orders for the commencement of .work-on each of said divisions; it being understood and agreed’by and between the parties hereto that if, through any fault of the party of the first part, the party .of the second part is delayed in the execution of the work provided for in this contract, and is thereby prevented from completing; the same within the time above stated, the party of the second part shall' be allowed one additional day to the time above stated for each and every day of such delay as ascertained by the party of the first part. And it is understood and agreed by and between the parties hereto that if the party of the second part shall fail'to comply with the terms of this contract which relate to the time within which the said work or parts thereof are to be. completed, the said party of the second part shall forfeit the sum of fifty dollars (^50.00) per diem for each and every day thereafter until the completion of the contract by the party of the second part, subject, however, to the discretion of the Secretaiy of the Treasury, which sum shall be deducted from any money which may be due him; and if that amount be not due, then the party of the second part agrees to pay the same.
    “ It is further covenanted and agreed by and between the parties hereto, that if the said part}'' of the second part shall fail to prosecute the work herein contracted for with such diligence as in the judgment of the party of the first part will insure the completion of the said work within the time hereinbefore provided, or shall fail to comply with any of the terms of this contract, and thereby, in the judgment of the party of the first part, hazard the satisfactory completion of the work as hereinbefore stipulated, the said party of the first part is authorized and empowered, after eight days’ due notice thereof in writing, served personally upon or left at the shop, office, or usual place of abode of the said party of the second part, or with his agent, and the said party of the second part having failed to take such action within said eight days as will, in the judgment of the party of the first part, remedy the default for which said notice was given, to take possession of the said work in whole or in part, and of whatever machinery, tools, or materials belonging to the said party of the second part’and employed thereon, and to complete the said work, and to supply the labor, materials, and tools of whatever character necessary to be purchased or supplied by reason of the default of the said party of the second part, and the actual cost thereof shall be deducted from any moneys due or owing to the said party of the second part on account of this contract, and if that amount be not due, then the actual cost thereof shall be repaid to the party of the first part on demand.
    44 And the said party of the first part, acting for and in behalf of the United States, doth covenant, promise, and agree to pay, or cause to be paid, unto the party of the second part, or to his heirs, executors, administrators, or assigns, in lawful money of the United States, in consideration of the herein-recited covenants and agreements made by the party of the second part, the following sums, viz:
    For materials and work embraced in the first division, sixty-
    four thousand and forty-one dollars. $G4,041.00
    For materials and work embraced in the second- division, in case the same shall be ordered by the party of the first part, one hundred and thirty thousand four hundred and fourteen
    dollars. 130,414. 00
    And for materials and work embraced in the third division, in case the same shall be ordered b}' the party of the first part, one hundred and eighty thousand five hundred and seventeen dollars . - . 180,517.00
    “Payments to be made in the following manner, viz: Ninet}' per cent (nine-tenths) of the value of work executed to the satisfaction of the party of the first part will be paid, from time to time as the work progresses, in monthly payments (the said value to be ascertained by the party of the first part), and ten per cent (one-tenth) thereof will be retained until completion of the work embraced in each division, and the approval and acceptance of the same by the party of the first part, which amount shall be forfeited by the party of the second part in the event of the nonfulfillment of this contract, subject, however, to the discretion of the Secretary of the Treasury, it being expressly stipulated and agreed that the said forfeitures shall not relieve the party of the second part from liability to the party of the first part for all damages sustained by reason of any breach of this contract. It is further covenanted and agreed between the parties to this contract that the party of the second part shall execute, with two or more good and sufficient securities, a bond to the United States in the sum of sixty-four thousand dollars ($64,000.00), conditioned for the faithful performance of this contract, and the agreements and covenants herein made by the said party of the second part. It is an express condition of this contract that no member of Congress, or other person whose name is not at this time disclosed, shall be admitted to any share in this contract or to any benefit to arise therefrom; and it is further covenanted and agreed that this contract shall not be assigned, and that any assignment thereof shall be a forfeiture of the same. It is further covenanted and agreed by and between the parties hereto that this contract shall be valid and binding when approved by the Secretary of the Treasury, and not otherwise.
    “In witness whereof the parties hereto have hereunto subscribed their names this twenty-first day of January, A.D.1886.
    “M. E. Bell,.
    ■ “ Supervising Architect.
    
    “ Witnesses to the signature of the Supervising Architect: “R. H. Thayer,
    “IrwiN B. LiNTON.
    “ Mich. A. McGowan.
    “Witnesses to the signature of the contractor:
    “Wm. H. West.
    “ J. J. LlNNEY.’’
    Attached is a bond in usual form with sureties in the sum of $64,000, their responsibility being vouched by R. J. Meigs, clerk of the supreme court of the District of Columbia, and the contract and bond is indorsed:
    “DEPARTMENT OE JUSTICE,
    “ Office of Solicitor of the Treasury,
    
      “March 13, 1886.
    
    “ Examined and approved as to form and execution.
    J. H. R. “A. McCue,
    “ Solicitor of the Treasury.
    
    “Treasury Department?.
    “Approved March 15, 1886.
    “ C. S. Fairchild,
    “L. - “Acting Secretary.
    
    “Bell.”
    III. The claimant’s decedent was given possession of the building about September 1, 1886, and at once began to carry out his said contract for the construction of the first division of said building as in said contract set forth, and completed the same about September 26,1887, for which he was paid the sum of $45,742.60, leaving due, under his bid, for the work on said division the sum of $18,298.40.
    IV.' Prior to the completion of said first division, of said building as aforesaid,- to wit, October 6,1886, the defendants, through the Supervising Architect, addressed to the claimant’s decedent a communication as follows:
    ‘ ‘ Treasury Department,
    “Office of the Supervising Architect,
    “ Washington, D. 0., October 6th, 1886.
    
    “Mr. M. A. McGowaN,
    “ Corcoran Bidldmg, Washington, D. C.
    
    “Sir: Under the terms of your contract for the stonework of the superstructure of the court-house and post-office building at Pittsburgh, Pa., dated January 21st, 1886, you are hereby directed to proceed with the stonework from the top of course £ W’ at 2d-floor line to the top of 3d-story cornice, courses ‘V’ 2, including pediment on front and on center portions of Third and 4th avenues to top of course ‘A’ 3, designated as the second division.
    “Consideration to be ($130,414.00) one hundred and thirty thousand four hundred and fourteen dollars.
    “Respectfully, yours,
    “Tiros. D. Fistbr,
    “ Acting Supervising Architect.”
    No order was given to the claimant’s decedent to construct the third division of said building.
    V. September 16,1887, the Supervising Architect addressed to the claimant’s decedent a communication as follows:
    “Treasury DepartmeNT,
    “Office of the Supervising Architect,
    
      September 16, 1887.
    
    “Mr. M. A. McGowaN,
    “ Rooms Nos. 8 a/nd9, Corcoran JEPld?g, Washington, D. O.
    
    “Sir: Whereas you have failed to comply with the terms of your contract dated January 21, 1886, for furnishing and setting all the stonework required for the United States courthouse and post-office building at Pittsburg, Pennsylvania, are hereby notified that unless you take such action within eight (8) days from the date of the service of this notice as will remedy said default the United States will take j)ossession of the said work in whole, and such machinery, tools, or materials that belong to you and used in connection therewith, and complete said work; and whatever labor, material, and tools of whatever character that may be necessary to be purchased or supplied by reason of your default will be procured, and the actual cost thereof deducted from any moneys due you on account of said contract, and if that amount be not due, you and your sureties will be held responsible under your bond for any excess necessarily incurred in the prosecution and completion of said work.
    “ Respectfully, yours,
    “Will A. Freret,
    “ Supervising Architect.
    
    ‘ ‘ Approved.
    “Hugh S. Thompson,
    
      “Acting Secretary A
    
    At the time of the completion of the first division of said building, as set forth in Finding III, the claimant’s decedent addressed to the Supervising Architect a letter, as follows:
    “WASHINGTON, D. C., September 86th, 1887.
    
    “To the Honorable ■
    “The Supervising Architect op the
    “ Treasury Department.
    “Sir: On January 21st, 1886, I entered into a contract to furnish all the labor and material required to complete the stone masonry of the walls of the superstructure of the United States court-house and post-office building at Pittsburgh, Penna., wherein I agreed to execute the said work at such times and in such quantities as might be required by you.
    “I obtained possession of the building for the prosecution of this work on about the 1st day of September, 1886, and have practically completed the first division, more particularly described in the contract above referred to; and now desire to notify you that bjr reason of serious complications I am unable to complete the remainder of my contract, and hereby relinquish all my rights to you under said contract as the official representative, in behalf of the United States.
    “And I hereby surrender to you full possession of such material, machinery, and tools which belong to me and used in connection with said work, in full compliance with the terms of my said contract. I further surrender all my right, title, and interest in the lease of the George Candage Stone Quarries at East Blue Hills, Hancock County, in the State of Maine, hereby giving you full possession of said premises for the prosecution and completion of my said contract.
    “ Respectfully, yours,
    “M. A. McGowan.”
    
      to which letter the Supervising Architect replied as follows:
    “Treasury Department,
    “Office Supervising Architect,
    
      "■Sept. 26, 1887.
    
    “Mr. M. A. McGowan,
    “ Washington, D. O.
    
    “Sir: I am in receipt of your communication under date of September 26,1887, notifying me that, on account of serious complications, you are unable to complete the remainder of your contract to furnish all the labor and material required to complete the stone masonry of the walls of the superstructure of the United States court-house and post-oifice buildingat Pittsburgh, Pa., and relinquishing all your rights under said contract, surrendering and giving full possession of such material, machinery, and tools which belong to you and are used in connection with said work; also giving full possession of the stone quarries at East Blue Hills, Maine, all in pursuance of the terms and obligations of your contract. You are hereby notified that the Department has this day taken possession of said work in whole and such machinery, tools, or material as belong to you, and will complete said work, and whatever labor, material, and tools, of whatever character, that may be necessary to be purchased or supplied by reason of your relinquishment will be procured, and the actual cost thereof deducted from any money due you on account of said contract; and if that amount be not due, you and your sureties will be held responsible under your bond for any excess necessarily incurred in the prosecution and completion of your said contract.
    “Respectfully, yours,
    “Will A. Freret,
    “ Supervising Architect.
    
    “Approved.
    “Hugh S. Thompson,
    “ Acting Secretary A
    
    YI. In accordance with the agreement entered into, as shown by the correspondence in Finding V, the United States took possession of said building and completed the second division thereof, using therefor the material, machinery, and tools employed thereon belonging to the claimant’s decedent, and which were surrendered by_ him to the United States as aforesaid.
    What the actual cost to the United States was in the completion of said second division does not appear, but the cost to them for the labor and materials necessarily furnished and used in the completion of the second and third divisions of said building, under the contract so relinquished by the claimant’s decedent, was $169,055.99, and for the three divisions so contracted to be done by the claimant’s decedent the cost to the Government was $514,798.59, or $139,826.59 in excess of the bids of the claimant’s decedent therefor.
    No request appears to have been made at any time by the claimant’s decedent that the defendants keep a separate account of their expenditures on the several divisions of said building.
    The evidence is not sufficient to satisfy the court that the second division of said building could have been completed with ordinary diligence for less than the amount of the bid made therefor by said claimant’s decedent.
    YII. The defendants also used the machinery, tools, and appliances of the claimant’s decedent in the construction of the third division of said building, and thereafter, December 18, 1890, the defendants sold said machinery, tools, and appliances for the sum of $1,019.14 and paid the money therefor into the Treasury of the United States, no part of which has been paid to the claimant or to her decedent, otherwise than in reduction of the amount of the loss so sustained by the defendants.
    VIII. The claimant’s decedent had free access to and examined from time to time the pay rolls and other accounts showing the actual expenditures in the construction of the second and third divisions of said building, and was thereby advised as to the actual cost thereof. No objection or protest appears to have been made by him to the Supervising Architect or to the Secretary of the Treasury that the actual cost of said two divisions, or either of them, was excessive or unreasonable.
   Peedle, J.,

delivered the opinion of the court:

The contract, made part of the petition herein, provides for the construction of the stone masonry of the walls of the superstructure of the court-house and post-office building in the city of Pittsburg.

The work thereon was divided into three divisions, designated as the first, second, and third divisions; the first division embraced the masonry of the superstructure of the building, from the water table to the top of the second-floor line; the second division was from the seeond-floor line to the top of the third-story cornice; and the third division being all the masonry work above the last-named point to complete the building.

From an examination of the statutes making appropriations from time to time to continue the prosecution of the work, it is evident that the work was divided as indicated, in order that such appropriations mig’ht not be exceeded in the prosecution of the work. (Act August 7, 1882 (22 Stat. L., 302, 305); act March 3, 1883 (22 Stat. L., 603, 601); act August 4, 1886 (24 Stat. L., 222, 223); act March 3, 1887 (24 Stat. L., 509, 511), and numerous other acts.)

Under the terms of the contract the claimant’s decedent obligated himself to furnish all the labor and materials required to complete the first division for $64,041 and to complete the same within ten months from the time the possession of the building was given to him; and he further obligated himself, if ordered by the defendants so to do, to complete the second division for the sum of $130,414 within seven months from the date of the order for the commencement of work on said second division; and to complete the work on said third division, if ordered by the defendants so to do, within seven months therefrom for the sum of $180,517.

Pursuant to the contract thus entered into, the contractor, in September, 1886, was given possession and began work on the first division of the building, but he did not complete the same until about September 26, 1887, or a little more than twelve months from the time he commenced work. For the work so performed he was paid the sum of $45,742.60, leaving a difference Between his bid and the amount paid of $18,298.40.

About one month after he had commenced work on the first division of the building, as set forth in the findings, he was notified by the Supervising Architect that he would be required to proceed with the work on the second division.

That part of the contract material to the case is as follows:

“It is further covenanted and agreed bjr and between the parties hereto, that if the said party of the second part shall fail to prosecute the work herein contracted for with such diligence as in the judgment of the party of the first part will insure the completion of the said work within the time here-inbefore provided, or shall fail to comply with any of the terms of this contract, and thereby, in the judgment of the party of the first part, hazard the satisfactory completion of the work as hereinbefore stipulated, the said party of the first part is authorized and empowered, after eight days’ due notice thereof in writing, served personally upon or left at the shop, office, or usual place of abode of the said party of the second part, or with his agent, and the said party of the second part having failed to take such action within said eight days as will, in the judgment of the party of the first part, remedy the default for which said notice was given, to take possession of the said work in whole or in part, and of whatever machinery, tools, or materials belonging to the said party of the second part and employed thereon, and to complete the said work, and to supply the labor, materials, and tools of whatever character necessary to be purchased dr supplied by reason of the default of the said party of the second part, and the actual cost thereof shall bo deducted from any moneys due or owing to the said party of the second part on account of this contract, and if that amount be not due, then the actual cost thereof shall be repaid to the party of the first part on demand. ”

In the judgment of the Supervising Architect the claimant’s decedent failed to prosecute the work with that degree of diligence which insured the completion thereof within the time provided in the contract; and availing themselves of that provision of the contract relating thereto, the defendants, through their agent, the Supervising Architect, under date of September 16, 1887, notified the contractor in writing, as set forth in the findings, that unless he took such action within eight days therefrom as would remedy his default they would take possession of the work in whole, including his machinery, tools, and materials used in connection therewith, and complete the building, and that whatever labor, material, and tools of whatever character became necessaiy therefor would be purchased or supplied and the actual cost thereof deducted from any monej^s due him on account of said contract, “and if that amount be not due, then the actual cost thereof shall be repaid to the party of the first part on demand.”

Thereafter, and about the time of the completion of the ñrst division of the building, the claimant’s decedent, as set forth in the findings, notified the Supervising Architect:

“That by reason of serious complications I am unable to complete the remainder of my contract, and hereby relinquish all my rights to you under said contract as the official representative in behalf of the United States.

“And I hereby surrender to you full possession of such material, machinery, and tools which belong to me and used in connection with said work, in full compliance with the tonus of my said contract. I further surrender all my right, title, and interest in the lease of the George Candage stone quarries at East Blue Hills, Hancock County, in the State of Maine, hereby giving you full possession of said premises for the prosecution and completion of my said contract.”

On the same day the Supervising Architect informed the claimant’s decedent, that in consequence of the relinquishment of his rights under the contract, and of his surrendering and giving full possession of the material, machinery, and tools which belonged to him and which were used in connection with the work, including the quarries, aforesaid, that the defendants had taken possession of the work in whole and would complete the same.

In compliance with the terms of the contract so relinquished, the Government completed the work on the second and third divisions of the building, using therefor the machinery, tools, and materials surrendered therefor by the claimant’s decedent, and purchasing such other machinery, tools, and materials as became necessary therefor, at the cost of $4:69,055.99, which, added to the sum of $45,742.60, paid to the claimant’s decedent for the work done by him on the first division of said building, makes the total cost of $514,798.59, or $139,826.59 in excess of the bids of the claimant’s decedent therefor.

After the completion of the building the defendants sold the materials, tools, and appliances of the claimant’s decedent, as aforesaid, for the sum of $1,019.14 and paid the money into Treasury of the United States in reduction of the amount of the loss so sustained by the Government.

The claimant contends that notwithstanding the relinquishment by his decedent to the defendants of all his rights under the contract as stated, he is entitled to recover the $18,298.40 retained by the defendants for the work performed by him on the first division of the building, including the additional sum of $1,019.11 for which the materials, tools, and appliances were sold as aforesaid; and in the amended petition it is averred, in substance, that inasmuch as the contractor was ordered to proceed with the work on the second division before he surrendered his rights under the contract, that therefore he is entitled to recover profits on the work performed thereon by the defendants — being,.as he avers, the difference between his bid therefor and what the work in the exercise of ordinary diligence would have cost.

By the terms of the contract the Government, upon the relinquishment by the contractor of all.his rights thereunder, was bound to carry the residue of the contract work to completion without unnecessary cost, and to account for and pay to the contractor the difference, if any, between his bid and the actual and necessary cosh of the work. Contrariwise, if the actual and necessary cost of the work performed by the defendants exceeded the amount due the contractor, he was bound to make good the difference by repayment thereof to the Government.

The contention that because the contractor was not ordered to proceed with the work on the third division, that therefore he is exempt from any liability growing out of the work thereon can not be sustained. The contractor, by surrendering his rights under the contract, thereby obviated the neces-sitjr for any such order, and having done so he can not avail himself of any benefit arising from his. own default.

Had the contractor continued the prosecution of the work and, without any fault on his part, the Government had refused to order him to proceed with the work on the third division, then, of course, no liability would attach to him for Avork performed thereon by the Government in excess of his bid therefor.

The contract must be considered as a whole, and in determining the rights of the parties must be considered as one contract, and not as a several contract applicable alone to each division of the work.

Upon the relinquishment of his contract the liability of the contractor was not thereby extinguished. He had for a stipulated sum or sums obligated himself to furnish all the labor and materials necessary to complete the work covered by his contract; and, by the terms thereof, whether he continued the prosecution of the work or relinquished his rights under the contract, he was bound to make good to the Government the work thereunder at the price agreed upon. And this seems to have been the construction put upon the contract by the contractor himself, for by the findings it appears that he had free access to and examined, from time to time, the pay rolls and other accounts showing the actual expenses incurred by the .defendants in the construction of the second and third divisions of the building; and, furthermore, it does not appear that he at any time requested the defendants to keep a separate account of the expenditures on said several divisions, or that he made anj^ complaint to them that the expenditures so made were unreasonable.

After having completed the work on the first division, and after he was ordered to proceed with the work of the second division, the contractor “by reason of serious complications,” as expressed by himself, was unable to complete the remainder of his contract; and that the prosecution of the work which ho had undertaken to perform might be continued, he, in compliance with the terms of his contract, surrendered his rights thereunder to the defendants, who continued the prosecution of the work and carried the same to completion with reasonable diligence, thereby incurring $139,826.59 in excess of the contractor’s bids for the work so contracted by him to be done.

The bids of the claimant’s decedent for the entire contract by him was $374,972, whereas the bids of the three competitor's for the same work, as shown in the findings, were $379,000, $416,164, and $438,713, respectively, showing a difference between the contractor’s bid and theirs of from $4,000 to $63,000, or an average difference of more than $36,000.

The bids thus made indicate that the contractor’s bid was too low, for which he alone was responsible, and when considered in connection with the surrender of his rights under the contract would seem to rebut any anticipation of profits arising from the work on the second division, or on any of the work to be thereafter performed. And if we should adopt the claimant’s theory that profits were recoverable for work done by the defendants on the second division, even though the work on the third division may largely have exceeded the contractor’s bid therefor, still we think the findings sufficiently disclose the fact that there were no profits on the work on the second division; and this view is átrengthened by the act of the contractor in surrendering his rights under the contract. No fraud or bad faith is shown on the part of the Government in the work it did.

We are constrained to hold, notwithstanding the seeming hardship on the contractor, that he was bound to make good to the Government the work he contracted to perform at the price agreed upon; and having failed in person to carry out his contract, for which the Government was in no way responsible, he voluntarily intrusted the completion of the work under the terms of his contract to the Government, who, with reasonable care and diligence, completed the work at an expense greatly exceeding the contractor’s bid therefor.

What we have said applies with equal force to the 118,298.40 retained by the Government out of the money earned by the contractor for work on the first division, for by the terms of his contract he agreed that in case the Government took possession of the work by reason of his default, the actual cost of the completion thereof should be deducted from any moneys due or owing to him on account of the contract, and further, that if that amount be not due, then the actual cost thereof he agreed should be repaid to the Government on demand. That provision of the contract precludes the claimant from recovering the sum so retained.

And as to the SI,019.14 realized on the sale of the machinery and tools of the contractor which he surrendered to the Government to be used in completing the unfinished work under his contract, we think that sum was properly applied under the terms of the contract in reduction of the amount of the loss sustained by the Government through the fault of the contractor, and no recovery can be had thereon.

Thus the position of the contractor is in effect held to be the same as though he in person had carried out his contract and suffered the loss of the difference between the amount of his bid and the actual cost of the work done. There is, however, this difference: Had the contractor completed the entire work according to the terms of his contract he would, of course, have been entitled to the full amount of hite bid therefor, including the amount retained, together with his machin ery and tools, but inasmuch as he relinquished his rights under the contract, and the Government completed the work at great loss, he is in no condition to complain because the Government diminishes that loss by the application of the money in its possession which accrued for work performed by him before the relinquishment of his contract, or for the money realized from the sale of the machinery and tools which he delivered to the Government for the prosecution of the work under his contract.

The petition is therefore dismissed.

Nott, Ch. J., was not present when this case was tried and took no part in the decision.  