
    BENJAMIN HYDE v. THE UNITED STATES.
    [No. 21194.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    The contract is for building a temporary post-office in Chicago. It provides that “no claim, for compensation for any extra materials or work is to be made or allowed" unless it is “authorized in writing by the Supervising Architect -under the approval of the Secretary of the Treasury." Much extra work is ordered by the Government superintendent and with the knowledge of the Supervising Architect. The officers and contractors of the Government delay and interfere with the claimant in the performance of his work.
    I.If a contract provides that no claim for extra material or work will be made or allowed unless it be “ authorized in writing by the Supervising Architect under the approval of the Secretary of the Treasury," the contractor can not recover for it without the approval of the Secretary, though the work was ordered by the Government superintendent in charge with the knowledge of the Supervising Architect and was a benefit to the defendants.
    II.Where the evidence to establish the damages caused by the defendants is general and unsatisfactory there can be no recovery, though the claimant would be entitled to recover for some things if the evidence were not so general that their value can not be segregated and ascertained.
    III.Where the officers and other contractors of the Government delay and interfere with the work of a contractor he can recover. ■
    
      
      The Beporterx’ 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 and a resident of the c.ity^ of Chicago, State of Illinois.
    II. On or about the 24th day of May, 1895, the Supervising-Architect of the Treasury advertised for proposals for the erection and completion (except heating and ventilating ap¡ia-ratus, elevator, and electric-light plant) of a temporary building for the United States post-office at Chicago, Ill., and claimant was the lowest bidder in response to said advertisement. His proposal was accepted on the 13th day of July, 1895, upon which day a contract was entered into, which contract was approved by the Secretary of the Treasury July 31, 1895. .The contract is attached to the petition and marked ‘ ‘ Exhibit A. ” The claimant has been paid in full the contract price.
    III. The claimant, in the erection of the building, performed certain work and furnished materials as follows, to wit, for which he has not been paid, unless the work falls within the contract:
    Item 1. Labor digging test pit and for material for “pig-iron test” of soil for foundations of buildings, which was reasonably worth. $49.65
    The work was done by order of the Government superintendent of construction and with the knowledge of the Government inspector of public buildings and of the Supervising Architect of the Treasury, the latter of whom was advised of the cost of and necessity for making the test. It is not shown that the Secretary of the Treasury approved it.
    The digging was done as a test of the iveight that the ground would carry as a safe load to the square foot. When the claimant reached the specified deptli for the cellar, it was found that the foundation was not adequate to support the weight of the building-, and this test was made to determine the weight the ground would carry. This claim was for $158.10, but $108.45 was for pumping, which had to be done in order that the claimant could perform the work.
    Item 2. Pumping out basement for inspection and to keep water out. $429.44
    The basement was inspected three or four times, and the water had to be pumped out for that purpose, and it had also to b'c pumped out to complete the work. The pumping for inspection was ordered to be done by the Government superintendent of construction and bjr the inspector of buildings, and the Supendsing Architect was informed of it. It does not appear that the Secretary approved the work as extra.
    Item 3. Tearing up and relaying floors originally laid under protest, which Was reasonably worth. $134.78
    The floors were torn up and relaid by order of the Government superintendent of construction and the Government inspector of buildings, the latter of whom promised to see that the contractor was paid for the extra work. The floors ■were laid before the roof ivas completed; rain came through onto the floor, causing dampness, and when the steam pipes were put in the floor bulged upward. The Supervising-Architect was advised by Government Inspector Roberts that if the floors were laid before building was thoroughly dried they would be affected. The floors were originally laid by order of the Government superintendent of construction against, the protest of the claimant. It is not shown that the Supervising Architect authorized the relaying of the floors with the approval of the Secretaiy of the Treasury.
    Item 4. Putting in shoring under first-story floor for support of safe, which was reasonably worth. S10. 00
    • The instructions of the Supervising Architect were to allow $10 for shoring each safe, and the Government paid for shoring for four safes. Five safes were placed in the building, and the shoring for one safe has not been paid for. This work was ordered by the superintendent of construction. It is not shown that it was approved by the Secretary. Item 5. Extra cost of weighing shed, reasonably worth. S482.11
    August 9, 1895, the Supervising Architect wrote to W. H. Iieyser, superintendent of construction, proposing certain changes in the size and the roof construction of this shed, and requesting him to confer with the contractor and ascertain whether such changes would be made without extra charge. The claimant agreed to make the changes without any extra charge, providing that details for the changes required only wood construction throughout.
    
      Thereafter, on September 6, 1895, claimant received the detail drawing's, and the shed was built of wood construction in accordance therewith.
    Item 6. Extra cost of mailing platform, shed, which was reasonably worth. §488. 70
    This shed was built according- to detail plans furnished by the defendants. The claimant, in acknowledging- the receipt .of the detail plan, on August 21, 1895, called the attention of the superintendent of construction to certain alleged differences between the original plans and specifications and the detail plans, and stated that if he was entitled to any recompense for additional work, as shown by these details, the same could be adjusted later. To this letter no reply appears to have been made, nor was any order given for work at extra cost by the Supervising Architect or Secretary.
    Item 7. Additional scuttles for roof, complete, which were reasonably worth. SI 6. 00
    The original plans called for 11 scuttles, but the roof plan received after the contract was awarded showed that 17 were required, and that number was put in the building. The Government paid for 15 scuttles. The claimant has never received any pay for the other two. . It does not appear that the attention of the superintendent of construction was called to the difference in the plans, and no order was given by the Supervising Architect for the extra scuttles except to follow the detail plans.
    Item 8. 24 liip trusses, special rods, pins, etc., of iron, at §15 each, of the reasonable value of §324 above cost of wood construction.
    The hip trusses, rods, and pins put into the building were of iron, following the detail plans, and the difference in cost as between wood and iron is as above. Nothing is shown in original plans and specifications as to the material of the trusses, and no order was given bjr the Architect or approved by the Secretary.
    Item 9. Door and partition changes in second story, which were reasonably worth. §251. 00
    The variations in the final floor plan and the second-story plan affected by the omission of Section A called for more material than was required by the omission of Section A, which was deducted from the original plans. There was no order given to claimant for these changes except to follow detail plans, and the attention of the superintendent of construction was directed to the difference between the original and final plans. No oi’der was given by the Supervising Architect and none by the Secretary.
    Item 10. 408 feet of shelving in linen room, which was reasonably worth. $24. 48 ■
    The shelving was originally shown in the plans of Section A, which was omitted, and the shelving was afterwards placed in another part of the building. It does not appear that any orders were given for this shelving other than the detail plans.
    Item 11. 10 feet extra gas-pipe railing in mezzanine gallery, reasonably worth. $20.00
    Three sections of gas pipe were put in by the order of the Government superintendent of construction. It does not appear that the Supervising Architect authorized or had any knowledge that more than two sections of pipe were put in.
    Item 12. 46 batten doors, worth §3 each. $138.00
    These doors opened into the skylight well, and without them openings would have been left into the skylight well. They were put in following the detail plans.
    Item 13. Extra cost of heel straps, bolts, and nuts, which were of the reasonable value of.$733.00
    The detail plans furnished after the contract was awarded required these straps, bolts, and nuts, and they were accordingly furnished. It does not appear that there was any order for them as an extra by the Supervising Architect or approval of the Secretary.
    Item 14. Extra cost of joist straps and bolts, which were reasonably -worth. $66. 02
    These joist straps and bolts were put in according to detail plans in lieu of the strap anchors calléd for in the original plans and specifications, and the above amount is the difference in cost. ' There was no order for these. The detail plans called for them and claimant put them in accordingly. The claimant protested against putting them in.
    Item 15. Sand used to cover approaches, reasonably worth. §100.00
    The Government superintendent of construction ordered this sand put down before the cement had set in order to protect the approaches. It ivould not have been required had a reasonable time been allowed for the cement to set. The post-office having been moved into the building, they wanted to use the driveways and the Government superintendent ordered the sand put down. It does not appear that the Supervising-Architect authorized this item.
    Item 16. Painting all roofs and skylights an extra coat, reasonably worth.$625.00
    This extra cost of paint was ordered by the Government inspector after all the coats of paint required by the contract had been put on, and the inspector agreed to see that the claimant was paid for the extra coat of paint.
    After the painting required by the contract had been done the paint had become worn off in man}*- places by bad weather and by employees of the claimant and of other contractors walking over the roof of the building. .
    The Government inspector notified the Supervising Architect of this extra coat of paint ordered, but it does not appear that it was authorized by the Supervising Architect as an extra or approved by the Secretary of the Treasury.
    Item 17. 644 feet 6 inches window glass replaced, which was broken by other contractors before the acceptance of the building, which was reasonably worth.1. $193. 35
    Item 18. 3,757 feet 8 inches roof glass, one-half rough plate, which had been broken by other contractors and replaced before the acceptance of the building, reasonably worth. 3,127. 30
    All the glass called for by the contract had been put in by claimant before the acceptance of the building by the Government. The glass was broken by employees of other contractors at work on the building and by claimant’s employees. It is not shown that any order was given by the Supervising-Architect to replace this broken glass.
    Item 19. Putting in new partition and changing location of 'doorway in railway mail service room. $37. 50
    
      This work was arranged for and requested to be done by the Government superintendent and the postmaster at Chi-co. No authority is shown from Supervising Architect or approval of the Secretary.
    IV. Owing to the delay in furnishing claimant the details called for bj^ the contract, the delays' by the United States in the approval of samples of materials, the failure of the United States to name an inspector for the rolling of the structural iron work of the building, the inability of the contractor to order materials in quantity; owing to the failure of the United States to furnish details showing what quantities would be required, the delay on the part of the United States in settling the changes in the foundation about the basement of the building, and owing to sundry other changes made by the United States, the building was delayed in the construction for a period of forty-two days beyond the time within which the claimant could have completed the building, to wit, the 8th of October, 1895.
    Y. By reason of the aforesaid delays and changes claimant -was required to and did pay out the following amount in order to complete his said contract, which he would not have been obliged to pay but for said delays:
    1. For insurance on said buildings for 42 days.•.$46.87
    2. Night watchman, 6 weeks, at $15 per week. 90. 00
    3. Day watchman, 6 weeks, at §15 per week... 90. 00
    4. Superintendent of construction, 6 weeks, at §30 per week.180. 00
    5. Carpenter foreman, 6 weeks, at §20 per week. 120. 00
    6. Carpenter foreman, 6'weeks, at §20 per week. 120.00
    7. Carpenter foreman, 6 weeks, at §20 per week.120. 00
    8. Mason foreman, 6 weeks, at §30 per week. 180.00
    9. Painting foreman, 6 weeks, at §20 per week. 120. 00
    This was done after the periods in which the claimant could have performed the agreement notwithstanding the delay.
    Extra cost of 1,200 squares of sheet metal, at 50 cents.§600.00
    This extra for sheet metal arises from the fact that claimant was unable to let his contract for the sheet metal work until September 7, 1895, the date he received the detail plans for same. The claimant had to pay the subcontractor 50 cents per square extra for doing the work at the late period in September and October.
    
      10. Labor moving scaffolding for plastering, 25 days, at §1.50 per day.:.§37.50
    11. Labor of plasterers lost in moving scaffold, 25 days, at §4 per day. 100.00
    These items are for extra labor in moving scaffolding while plastering. This labor, rendered necessary in moving scaffolding, was caused by the contractor for the steam fitting having placed his material in such a position that the scaffolding had to be moved around it every time a move was made.
    2. Carpenter’s time cutting and patching around radiators and pipes, 50 days, at §3 per day.,.§150.00
    This cutting and patching was made necessary by the manner in which the contractors for the steam fitting did their work in cutting through the flooring to lay pipes. It is not shown that the Supervising Architect had any knowledge of or gave any orders as to this work.
    YI. The following were the average minimum daily temperatures for the periods named:
    October 15 to 31, both inclusive, 34° Fahrenheit (1895).
    The month of November, 30 and 7-10° Fahrenheit (1895).
    The month of December, 24° Fahrenheit (1895).
    The month of January, 20 and 8-10° Fahrenheit (1896).
    The month of February, 20 and 6-10° Fahrenheit (1896).
    The month of March, 20 and 5-10° Fahrenheit (1896).
    That rain or snow or both fell during the period named in October, two days; November, seventeen days; December, nineteen days; January, fifteen days; February, seventeen days, and March, seventeen days.
    That snow lay on the ground at 8 p. m.; in October, two days; in November, twelve days; in December, eighteen days; in January, fifteen days; in February, twenty-four days, and in March, twenty days.
    VII. By reason of the construction of said building being delayed into cold weather by the defendants, claimant had to and did pay the following amounts in excess of what he would have been required to pajr if he could have completed the building in the contract period:
    For masonry.:.§109.80
    For carpenters and laborers’ wages... 274.67
    For so-called “overtime” work. 15.22
    
      All of the above items of cost occurred before the expiration of the forty-two days which the claimant was delayed by the failure of the defendants, as shown in finding iv, and after the 8th of October.
    
      Mr. F. 8. Bright for claimant. Mr. Kenesaw M. Landis was on the brief.
    
      Mr. William II. Button (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This is a proceeding based upon a contract, dated the 13th day of July, 1895, between the claimant and the defendants, for the building of a temporary post-office in the city of Chicago, Ill., for which the claimant was to receive, in the aggregate, the sum of $124,930, which sum has been fully paid. The contract is set forth as Exhibit A of the petition, and was approved by the Secretary of the Treasury on the 31st of July, 1895. The time limit in which the work was to be performed was ten weeks from the date of the approval of the contract.

It is alleged in the fourth paragraph of the petition that in accordance with said contract the claimant performed all the work and furnished all the materials provided for, and that in addition thereto he did other work and furnished other materials, which were accepted b}'' the defendants, amounting to the sum of $9,188.04, for which no payment has been made.

In the fifth paragraph it is alleged that at the request of the United States he did certain other extra work and furnished other material, amounting in value to the sum of $1,372.30.

It is further alleged, in the seventh paragraph, that at the request and instance of the defendants he furnished other material and did other extra work, amounting to the sum of $6,338.15.

It is also further averred that, by the delay and changes made in the construction of said building bjr the defendants, the completion of the contract was carried over into cold ■weather, and that in consequence of that fact he was compelled to heat the building at an expense of $770.19, for which he claims compensation.

It is also alleged that the claimant, in the acceptance of his bid, was to be furnished immediately with all the details and drawings of the work; that such details and drawings were not furnished, but, on the contrary, the claimant was unreasonably delayed by the defendants; that there was a constant changing of the plans by the defendants, to the prejudice of the claimant; that the defendants failed and neglected to appoint an inspector, thereby increasing the cost of the work;, that on August 15, 1895, the excavation of the basement was suspended by order of the defendants, and the claimant was put to great disadvantage, in consequence of which the building was not completed until the 1st of April, 1896; that owing to the failure to furnish the details aforesaid, the time for the completion of the contract was extended nearly six months beyond the period in which the same could have been performed; that in consequence of such delay the most of the work on the building had to be done after the cold weather had set in, and for that reason it was much more expensive than it would have been if the claimant had been able to complete the building within the period named in the contract; that in consequence of such delay he was compelled to pay overtime to men employed, expenses of insurance, watchmen, foremen, and superintendents of construction, amounting to the sum of $10,528.16.

It is further averred that in consequence of the time being-extended, as above stated, the claimant lost the use and value of his plant, which might have been profitably employed elsewhere, and was compelled to pay a large amount of interest on the money invested in the building, and that during said time he was compelled to rent an office and pay the expense of an office force of clerks, bookkeepers, etc.; that in consequence of the delay and said expenses the claimant was damaged to the extent of $14,000.

The claim for extra labor and materials is set forth in finding in and shows the character of the work and the circumstances under which it was done.

In that connection it is important to note a clause of the contract providing for extras to the work agreed to be performed b3r the terms of the contract. It is provided that “no claim for compensation for any extra materials or work is to be made or allowed without the same being first agreed upon and specially authorized in writing- by the Supervising Architect, under the approval of the Secretary of the Treasury.” The contract was originally made by the Supervising Architect subject to the approval of the Secretar}', so that the same must be held to be in the official power and keeping of the Supervising Architect and the Secretary during the entire period of its execution bjT the claimant.

Finding n, shows that in some instances the Supervising-Architect had knowledge of the performance of the work, but in no instance is it shown that the Secretary approved of the change or addition, in pursuance of the terms of the agreement.

Item 1 for §19.65, as shown in finding m, was done by the order of the Government superintendent of construction and with the knowledge of the Supervising Architect, but it does not appear that the Secretary had any knowledge or approved of it in any wajr.

Item 2 of finding in is for pumping out the basement for inspection. It is shown that the Government superintendent of construction and inspector of buildings and the Supervising-Architect had knowledge of it, but it does not appear that the Secretary approved it.

The basement was inspected three or four times and the water had to be pumped out for that purpose, and it had to be, as shown in the findings, pumped out to complete the work, which being true, the claimant is not entitled to recover upon that item, as it was his duty to have done the pumping, not onl}' for inspection, but for the completion of the work.

As to item 3. This item is allowed for the reason that the defendants obstructed the claimant in the performance of the contract, and therefore responsible.

Item I is a claim for shoring a safe. Five safes were placed in the building and four onl}- have been paid for. The instructions of the Supervising Architect were to allow §10 for. each safe. This work was not authorized in writing by the (Supervising Architect and it does not appear that it was done with approval of the Secretary.

As to item o, the findings show that it was done, by agreement without extra charge.

Item 6, for extra cost of mailing platform shed, §488.10. This was built according to detail plans which were, to be furnished subsequent to the original plans and specifications. If this was extra it was done without the authority of the Supervising Architect or the approval of the Secretaiy.

Item 7, claim for additional scuttles. This claim is for alleged difference between the original and detail plans. It does not appear that the attention of the superintendent of construction was called to the difference in the plans and no order was given for additional scuttles by the Supervising Architect.

Item 8, $324, for the difference between iron and wood. The original plans said nothing about the material of the trusses, and no special order was given to make them of iron except so far as the detail plans required it.

Item 9, amounting to $251, for partition changes in second story. The claim in this particular originates from the omission of Section A, which was provided for in the contract. There was no order given to the claimant for these changes except to follow detail plans, and the contract provided for detail plans to be furnished after the original plans wore given to the contractor. No order was given by the Supervising Architect.

Item 10, $24, for shelving in linen room. In the performance of this work the claimant followed detail plans, and no order was given.

Item 11, 10 feet of extra pipe, amounting to the sum of $20. It does not appear that the Supervising Architect authorized or had any knowledge that more than two sections of pipe were put into the building. It was ordered by the superintendent of construction.

Item 12, amounting to $138, for 46 batten doors. These doors open into the skylight well, and without them the openings would have been left, making the wells dangerous. These were put in following the detail plans. No order was given by the Supervising Architect.

Item 13, amounting to $733. The detail plans furnished after the contract was awarded required these straps and bolts, and they were accordingly furnished. It does not appear that there was any order for them by the Supervising Architect with the approval of the Secretary.

Item 14, $66, for joist straps and bolts. These straps and bolts were put in the building following the detail plans, and no order was given by the Supervising Architect.

Item 15, sand used to cover approaches. This claim is disallowed, as no order was given by the Supervising Architect and it was the duty of the contractor to keep the building in good order up to the time of its delivery. The order was given by the Government superintendent in order to accommodate the house to the use of the post-office, but no order was given by the Supervising Architect. •

Item 16, painting roofs and skylights, $625. No allowance can be made for this, for the reason that the painting required by the contract after being done became impaired in many places by bad weather and by the employees of the claimant and of other contractors walking over the roof of the building. This work was done by order of the Government inspector, and no authority is shown from the Supervising Architect or the Secretary.

Items 17 and 18, for replacing glass broken by other contractors before the acceptance of the building. The glass was broken by employees of other contractors at work on. the building and by claimant’s employees, therefore the United States should not be held responsible. Besides, no order was given by the Supervising Architect, approved by the Secretary, and in addition it was the duty of the claimant to care for and protect the building until its final completion and acceptance.

Item 19, putting in new partition and changing location of doorway, $37.50. This was arranged for and requested by the Government superintendent and the postmaster at Chicago. No authority is shown from the Supervising Architect or the Secretary of the Treasury.

All the items in finding hi are disallowed, except item 3, $134.78. The items embraced in finding v are allowed to the extent of $1,666.87, as shown in the conclusion of law; also items 10, 11, and 12, amounting to $287.50. The sum of $399.69 is allowed on finding vn, it being the increased cost of masonry and carpenters’ and laborers’ work and overtime on work performed by carpenters and laborers prior to November 20, 1895, which increased cost resulted from the failure of the defendants in furnishing detail plans called for by the contract and other failures, as shown in finding iv, in consequence of which failures on the part of the defendants the increased cost of labor was suffered by the claimant.

As to the claim for $770.19 alleged in the petition, but little, if any, of that expense was incurred by the claimant before the 20th of November, the period within which the claimant might have performed the contract, notwithstanding the delay of the defendant, as shown in finding iv. There can be no recovery upon that charge for the reason that it is not shown what portion of the claim accrued before the termination of the prolonged period from October 8 to November 20.

As to the claim of damages for the prolonged period in the loss of the use of the plant of claimant, rent of office, interest, wages of clerks, the evidence is too general and unsatisfactory to establish damages occurring between the 8th of October and the 20th of November, and, therefore, no findings can be made on that branch of the case, conceding that for some of the claim for the alleged damages the claimant might be entitled to recover.

Upon the whole case a judgment is allowed in the sum of $2,488.84, as shown in the conclusion of law.  