
    THE PHŒNIX BRIDGE COMPANY v. THE UNITED STATES.
    [No. 20804.
    Decided March 30, 1903.]
    
      On the Proofs.
    
    The claimant agrees to construct the Kock Island bridge according to plans and specifications. The specifications requires a “draw-span,” which is carried away before completion by a freshet. As the claimant is about to resume work it is advised by the officer in charge to substitute a “liftspan ” so that there shall be no obstruction to navigation. The claimant objects to the advice upon the ground that the liftspan is not required by the contract and will involve serious additional expense. The officer insists. In carrying out the advice of the officer the claimant is put to the additional expense of !p6,683. At the time of final payment a controversy exists as to the liability of the claimant for delay in the completion of the work and of the defendants for the extra cost of the liftspan.
    I.Where the ordnance officer in charge of the work of constructing a bridge advises or orders the contractor to put in a temporary ‘ ‘ lift-span,” the advice or order being given to meet the exigency of the immediate and unexpected opening of navigation in the river, his action is not obligatory upon the contractor, who, if he performs,' can not recover the extra cost to which he has been subjected. Nott, C/h. J., nonconcurring.
    II. An unexpected freshet will not relieve a contractor from completing a bridge within the time within which he has agreed to complete the work. If a part)' contract to perform that which is possible and does not he is liable. It is only where an obligation is imposed by law and not by contract that an act of God or of the Government will excuse him for nonperformance.
    III. Where at the time of the final payment upon a contract each party asserts a liability upon the part of the other, payment of the full amount of the contract price by the defendants and the giving of a receipt by the claimant which acknowledges it as payment “in full for all charges, claims, adjustments, differences, or other alleged, indebtedness incident to the work or related to it,” constitute a compromise, conclusive upon the claimant.
    
      The Recorten? statement of the case:
    The following are the facts of the case as found by the court: I. The claimant, the Phoenix Bridge Company, is a corporation duly created and existing under the laws of the State of PennsjTvania, having an office and place of business in the city of Philadelphia, in that State, and is engaged in the business of constructing bridges of metal and wood and manufacturing the materials necessarity entering into the same. Said claimant has at all times jfielded true faith and allegiance to the United States, and is the true owner of the claim herein sued on, never having assigned or transferred the same or any interest therein to any person or persons.
    II. On July 5, 1895, the Government of the United States issued a circular advertisement, signed by A. It. Buffington, colonel of ordnance, U. S. Army, inviting proposals for the construction of a new superstructure and making alterations in the abutments and piers of the Government bridge over the Mississippi River, connecting Davenport, Iowa, and Rock Island, Ill.
    This advertisement called for proposals for the furnishing of about 900 cubic yards of masoniy for the abutments and piers and for the construction of a new metal superstructure, consisting of eight spans, including one drawspan.
    The claimant submitted a formal proposal, and in addition thereto addressed a letter to Colonel Buffington, dated August 10, 1895, in the words and figures following:
    “PhoíNixville, Pa., August 10th, ’95.
    
    “Col. A. R. BUFFINGTON,
    “ Gol. Orel., Commanding Hock Island Arsenal,
    
    
      “Rode Island, 111.
    
    “Dear Sir: Appreciating the importance of finishing the proposed new bridge at Rock Island at the earliest possible date, we have been making a very careful study of the best method of removing the present structure and erecting the new spans, and have finally decided upon a plan which will enable us to work on the structure regardless of floods and ice in the river, and thereby give you the work at least five or six months before the time mentioned in your letter of July 27th. Our plan of erection is shown in detail on prints 1 and 2 sent herewith.
    “The erection of the drawspan of eourse must be done during the closing of navigation, between the 20th of November and the 15th of March of the following year, and this span will be removed in the ordinary manner, by placing false work i n the river to support temporarily the old structure and the railway traffic during the removal of the present span, and for supporting the new work during erection, the various parts being put in position by the ordinary overhead traveler shown on plan 2. This particular part of the erection does not need anjr special explanation. As we have made a specialty1 of drawspan work and have every facility in our shops for building such a span, we have named a date of completion for the new drawspan of March 1st, 1896. The first small span, ‘ E,’ we will erect in advance of the drawspan, and will have same in position on Feb. 1st, 1896. We erect this small span in advance of the draw that we may bring these two spans up to the new grade together.
    “The method we have adopted for removing the old and raising the new river spans is shown in detail on plan 1 and is explained in its general features by note at the upper right-hand corner of this print. The essential feature is this: Wo abandon highway traffic, thereby reducing the live load on present structure by at least 2,400 lbs. per lin. ft., remove the sidewalks and planking and other portions of the work as far as possible, making a total reduced load on old span of at least 3,000 lbs. per lin. ft. We are- thereby enabled to support the new trusses from the old span, as they will not exceed this weight. It is needless to enumerate the various stages of this erection, as it is clearly noted on print. This plan enables us to work independently of the river and is of great advantage.
    “Regarding the repairs to masonry, we propose to jack up the present structure and enable masons to do their work in advance of the raising of the new work, so that when we arrive on the ground with the new iron all these masonry repairs will be completed. W e could start this part of the work at any time.
    “We have not been asked to name a price for the old material removed, but are prepared to give you figures at any date you agree to receive same.
    “ We shall be glad to further explain our proposed method of erection and the modified plans of the new structure presented, in person, at any time.
    “Hoping that we may be favored with your order for this work, as we have a very special interest in the old Rock Island bridge, having built the old structure as well as made the recent repairs, and assuring you that if the order is placed with us it will have our very best attention,
    “ We remain, yours, truly,
    “(Sgd.) JNO. STERLING DEANS,
    “ Chief Engineer.
    
    “P. S. — Referring to our bid for masonry, please note that it is in accordance with spec. Granite bridge seats and the balance Anamosa stone. If Kettle River or Bedford would be satisfactory to you for bridge seats our price could be reduced to $21.75 p’r yd. for foundation in place.
    “(Sgd.) Phoenix Bridge Co.”
    On August 13 and again on the 16th the claimant was notified; in writing, of the acceptance of its proposal, such notification stating, however, that decision upon the. character of the stone to be used and the form of the solid steel railroad floor was reserved. Some delay occurred in reaching a decision in reference to this stone work and flooring, and it was not until October 2, 1895, that the contract was finally executed between the claimant and the United States.
    In the execution of the contract, and thereafter in the supervision of its performance until the end, the United States was represented locally by A. II. Buffington, colonel of ordnance, U. S. Army. The contract was duly approved by 1). W-. Flagler, brigadier-general, Chief of Ordnance, acting under the direction and by the authority of the Secretary of War.
    The portions of said contract material to be considered here are as follows:
    “1st. * * *
    “Under advertisement dated July 5th, 1895, the said party of the first part does hereby contract and engage with the said United States to furnish all the labor and material required for renewing the superstructure of the Rock Island bridge, at Rock Island, Illinois, including alterations of the masonry thereof and repairs thereto for a double track, and to do and perform all the said work in accordance with the plans furnished bjr the United States, and subject to all the conditions, stipulations, and requirements of said advertisement, the specifications and drawings issued thereunder, and the supplementary specifications for a solid steel floor for railway deck, and plan shown in blue print marked ‘ Proposed section of flooring for Rock Island bridge,’ copies of all of which are hereto attached and form part of this contract.”
    * * * * • *
    “The price to be paid for the work herein contracted for is as follows:
    “For renewing the superstructure, including the steel floor, finished in place, including the cost of removal of the old superstructure, three and ninety-four one-hundredths cents ($U.03yV4o) per pound.
    “For alteration of the.masonry in the piers, including removal of the old masonry, excavations, and. additional foundations, twenty-one dollars and seventy-five cents ($21.75) per cubic yard.
    “The work to be completed within the time specified in the proposal of the party of the first part under the advertisement of July 5, 1895.”
    “3d. The said party of the first part shall indemnify the United States and all persons acting under them for all liability1" on account of any patent rights g'ranted by the United States which may affect the work herein contracted for. ”
    “5th. If any default shall be made by the party of the first part in delivering all or any of the work mentioned in this contract, of the quality and at the times and places herein specified, then in that case the said party of the second part may supply the deficiency by purchase in open market or otherwise (the articles so procured to be of the kind herein specified as near as practicable), and the said party of the first part shall be charged with the expense resulting from such failure. Nothing contained in this stipulation shall be construed to prevent the Chief of Ordnance, at his option, upon the happening of any such default, from declaring this contract to be ■thereafter null and void, without affecting the right of the United States to recover for defaults which may have occurred; but in case of overwhelming and unforeseen accident, by fire or otherwise, the circumstances shall be taken into equitable consideration by the United States before claiming forfeiture for nondelivery at the time specified.”
    The specifications forming a part of said contract contained, among other things, the following material provisions:
    “II . — Plans.
    “ 4. General plans and strain sheets will be furnished to the contractor, from which he shall prepare, free of charge, full working drawings and submit them to the commanding officer, Rock Island Arsenal, for approval, before ordering-material.
    “7. The contractor shall make all changes in the plans ordered by the commanding officer, Rock island Arsenal, after the contract has been awarded. Such changes shall be made free of charge, unless they involve the rejection of material already ordered or manufactured. In case such changes involve a dekyy, the contractor shall be allowed a corresponding extension of time.”
    
      “VIII. — General Shop Requirements.
    
    “ 36. The work shall be done in all respects according to the plans and specifications furnished or approved by the commanding officer, Rock Island Arsenal.”
    
      
      “XX — .Election.
    “141. The contractor will be required to furnish all tools, barges, and false work of every description.
    “142. The contractor shall remove all temporary work which he may put in the river, so that there will be nothing-left to interfere with the navigation or to catch drift. This temporary work shall be removed as soon as possible after its duty is done.
    “ 143. The contractor will be required to perform the work in such a manner as not to interfere with the running of the trains over the bridge. One track will be used until the erection is completed. The contractor will be required to keep this track continually open and safely supported, so as not to delay the trains.
    “148. The contractor will be required to remove the old superstructure, without disturbing the trains, and to erect the new superstructure complete in every respect, including riveting, ready to receive the ties for the railway floor, the wooden roadway, and the moving machinery of the draw. He will be required to give the whole superstructure a coat of pure iron-oxide paint and boiled linseed oil after erection.
    “T49. The grade of the railroad floor on the new bridge will be about two feet higher than the present grade. The contractor will be required to effect this change of grade in a manner not to disturb the trains or introduce heavy inclines.
    “152. There shall be no traffic on the roadway floor during erection which will interfere with the erection, but the contractor shall so manage the work as to require a closing of the roadway floor for as short a period as the requirements of a proper performance of the work will permit, and the commanding officer is to be the judge of this; and if,, for any reason, work is suspended for a sufficiently long period, the commanding officer may require the contractor to provide for such temporary use of the roadway as is reasonable and practicable. ”
    
      “XXL — Terms.
    
      “ 155. The superstructure will be paid for by the pound of finished work erected complete, and accepted by the engineer in charge and the commanding officer Rock Island Arsenal. The price per pound of new work will include the removing of the old superstructure and depositing it on cars, or otherwise, as may be agreed upon.
    “156. No material will be paid for which does not form a part of the permanent finished structure.
    
      “157. The contractor will be required to perform all work and furnish all tools, machinery, and everything necessary to remove the old structure as far as indicated, and build the new structure complete, except timber floors and rails and except moving machinery for draw. The price per cubic yard of new masonry and per pound of iron and steel erected must cover the total cost. No extras of. whatsoever kind or nature will be allowed.
    “159. The several spans shall be completed and erected on or before the following days:
    “A” drawspan_ * * * “D” _ Complete for shipment. December 1, 1895 * * * Erected. January 1. 1896 October 1, 1896 November 1, 1896
    “ The dates given above are of the essence of the contract, and no payment will be made for any work or material, as provided by these specifications and the contract, to be made with the contractor while he is in arrears in delivery or erection, and in case of the failure of the contractor to have the work completed by November 1, 1896, he will be required to pay two hundred dollars ($200) per day as liquidated damages in consequence of such delay.”
    III. The specifications, as originally prepared, called for the erection of the drawspan by January 1 1896, and the completion of the bridge on November 1, 1896. Subsequently, the specifications were modified so as to fix March L, 1896, as the date for the erection of the drawspan, and September 15, 1896, for the final completion of the whole bridge.
    IY. On February 25, 1896, a sudden breaking up and movement of the winter ice in the Mississippi Fiver at the point in question took place, by which the drawspan, so far as it was then constructed, was destroyed.
    Y. On the 26th of February, 1896, while the claimant was about to resume work upon the drawspan, in accordance with the terms of its contract, and had begun to replace the false work in the river, Colonel Buffington advised it to desist and employ a “lift&pa/n” so that there would be no obstruction to navigation should it open before the work of reconstructing the drawspan had been completed.
    
      This “liftspan” was a temporary span running from the drawrest to the first finished span, supported at each end ly ropes attached to wooden towel’s, and was raised and lowered by means of a stationary engine to admit the passage of boats and trains.
    VI. The claimant objected to the advice of Colonel Buffing-ton upon the ground that it was not warranted by the contract, and by complying therewith claimant would be subjected to great expense.
    VII. In carrying out the advice of the Government officers and thus reconstructing the drawspan by the liftspan method, the claimant was put to an expense beyond what it would have been compelled to incur if the drawspan had been reconstructed in the manner provided by its contract of $6,683.59.
    VIII. Colonel Buffington’s advice was intended to meet an exigency caused by the imminence of an immediate opening of navigation, and to avoid the consequent large damage which would have been doixe to the shipping of the river and the property interests employed therein by the obstruction which would have been caused by work under the contract if navigation had opened about March 1, as might have been apprehended upon February 26.
    IX. The bridge so provided to be renewed by the plaintiff extended between Rock Island, Ill., and Davenport, Iowa. At the Rock Island end of the bridge there was a stationary span, and next to that there was a drawspan, and beyond that there were several more stationary spans extending to the Iowa end of the bridge. The drawspan was intended for the convenience of navigation upon the river, and said draw was the only means that vessels and' other craft on the river had of going from one side of the bridge to the other. The object of fixing March 1, 1896, for the completion of the drawspan was that navigation, which was likely to open at that place in the middle of March, should not be interrupted by the work of construction upon the bridge. This object was well understood by both parties to the contract.
    The plan adopted for the erection of the bridge contemplated the substitution of new material for the old superstructure without interruption to the railroad traffic over the bridge, and the scheme adopted was to carry such traffic upon false work, consisting of timbers extending from the bed of the stream to the old superstructure, for the purpose of supporting the tracks for such traffic. This false work under the drawspan made a barrier across that portion of the stream which would ’ have rendered navigation impossible in case such false work were not removed prior to the opening of navigation.
    X. The claimant proceeded to fulfill the obligations of its contract, and erected the necessary false work, including that for the drawspan, and was proceeding with the erection of the drawspan itself on February 25, 1896, when, as a result of a rise in temperature, the ice in the river at that point moved, taking with it the false work and a substantial portion of the drawspan then in place. In the condition in which the work was at that time nothing could have been done to prevent the destruction of the work. In case the accident had not happened, the drawspan would have been completed by March 15, 1896, to such an extent that it could have been swung so as not to impede navigation. The claimant did not proceed with the erection of the drawspan as expeditiously as it might have done, particular!}' in that it did not procure the necessary material in the order necessary for erection of the drawspan. Said span might have been completed a considerable time before February 25, 1896, although the claimant was not bound to have it completed until March 1, 1896, by its contract. The United States was in no way responsible for any delays in the fulfillment of said contract, and was in no wise in default.
    XI. After said accident Col. A. Ü. Buffington, United States ordnance officer in charge of the construction, together with several of his assistants, had a conference with the representatives of the claimant at the site of the bridge, and it was determined that the most feasible waj of repairing the damage and going on with the construction of the drawspan was to erect said span upon the pivot pier running up and down the river, so that the erection of said drawspan should not interfere ivith navigation, which was likely to open at any time after March 1. It was further determined that the most feasible way of providing for railroad traffic during the erection of said drawspan was to put in place a temporary lift-span, which could be so operated as to allow the passage of vessels. Thereupon Colonel Buffington advised the claimant to erect such liftspan, which the claimant did at the expense of $6,683.59.
    XII. At the time of the conference mentioned in the last finding the representatives of the claimant demurred to the erection of such liftspan. Thej" claimed that the claimant could proceed to repair the damage done by the accident and erect the drawspan on false work across the channel of the river prior to the opening of navigation. Colonel Buffington and his assistants maintain that this could not be done.
    XIII. Navigation opened in the season of 1896 on March '2/1. At the time of the accident it could not have been foreseen that navigation would not open several weeks prior to that date. Navigation on the river at this point is heavy and continuous from the.opening of navigation. In case navigation had been interrupted up to the date when the drawspan could have been ready to swing, the damage to persons en gaged in such navigation would have been greater than the expense of the erection and operation of such liftspan.
    XIV. The liftspan was furnished to the claimants, and was erected by them as advised by engineers of the United States, and maintained until June 1, 1896. The cost of the erection and maintenance of said liftspan was $6,683.59. The erection of the liftspan was necessary in order to provide for railroad traffic and the navigation on the river, and was the most feasible and the least expensive method of so doing.
    . XV. After the accident on February 25, 1896, the claimant proceeded to erect the drawspan, in accordance with the contract, and said drawspan was ready to swing June 1, 1896.
    XVI. Upon the completion of the contract the claimant signed the following instrument and received the payment therein mentioned:
    “DEPENDANT’S EXHIBIT No. 8 — F. W. B.
    “The receipt on the attached voucher for the last payment, viz, of twelve thousand nine hundred and thirty-five dollars and forty cents ($12,935.40), for the new superstructure and work of erection of same, and alterations and additions to the abutments and piers of the Rock Island Bridge between the ‘ ‘ Rock ” Island and the city of Davenport, I o wa, under the contract with the United States dated October 2nd, 1895, is hereby acknowledged as the final and full payment for all the material furnished and for all the work performed under the said contract, and in full for all charges, claims, adjustments, differences, or other alleged indebtedness incident to the work or related to it in any manner whatever.
    “The Phoenix Bridge Co.,
    “By A. C. Stites, Res. Eng.
    
    “Rock Island ArseNal, Illinois, December 11th, 1896.
    
    “ (Triplicate.)
    “ Form No. 17 bbb.
    ‘ ‘ To be used only in payment for labor under contract.
    “ The United States to The Phoenix Bridge Co., PhcenixviUe, Pa.} Dr.
    
    
      
    
    “ Final payment. Contract completed.
    “ Under formal written contract dated October 2nd, 1895.
    “ I certify that A. C. Stites is the res. engr. of the Phoenix Bridge Co., and is known to me to be duly authorized to receive and receipt for moneys due said company.
    (Signed) _ “A. H. Russell,
    _ “ Gwptain of Orcbicmce, IT. S. Arm.y."
    
    At the time of signing this paper the claimant made no protest and understood that it covered all claims it had against the United States growing out of the erection of said bridge. The final completion of the work provided for in the contract was several months later than the time limited in said contract, and at the time said instrument was presented to plaintiff’s agent for his signature he objected to signing it. Buffing-ton then informed him if he did not so sign it as a final release of all claims, his instructions were to refer the whole matter, including claims for delay in the completion of the work, to the Department. Claimant’s agent then advised directly with his principal, after which he signed the instrument and received the final payment, and at the same time, in reply to an inquixy by Colonel Buffington whether he signed without reservation, replied, “You have our signature to the release as 3’ou handed it to me.’’ Befoi’e this time there had been dispute between the parties, both as to the liability of defendant for the lift span and the plaintiff for delay in the completion of the work. No damages for delay were afterwards claimed or sought to be enforced against the claimant.
    
      Mr. J. 8. Flcmnenj for the claimant. Mr. 8. F. Phillips and Mr. F. D. McKenney were on the brief:
    We submit, that having notified the claimant in the beginning that no penalties would - be exacted of it; after having-ignored and waived these alleged delays or defaults during the progress of the work, and after the extension granted by his assistant, the engineer in charge, Colonel Buffington, by his ipse dixit, in December, 1896, could not invoke the penalties specified in the contract and enforce the same against the claimant to compel it to x-elinquish a just claim for extra work growing out of the erection of this lift span.
    “Whatever delays or defaults on the part of the claimants may have occurred prior to the last extensions of the contracts were waived by the defendants when the extensions thereof were granted; no forfeitures were declared at the time, and by the several extensions were waived, and once waived cannot be revived” (Pigeon’s case, 27 C. Cls. It., 167,175). “So that the delay or diligence of the claimants in respect of the prosecution of the work could only be looked to by the officers in charge during the period of the last extensions.” (Gleason v. Ü. S., 33 C. Cls. K., 65.)
    “If one enters into a contract possible of performance and such performance be prevented by the act of God, it is well settled that no breach can be assigned therefor, although no reference be made thereto in the contract” (McDermott v. 
      Jones, 2 Wall., 1,7; Satterlee, adrtir, etc.,v. U. S., 80 C. Cls. R., 31, 50, and authorities there cited: Cobb v. llarmun, 23 N. Y., 150). {Ibid.)
    
    If the claimant can not be held responsible for the disaster, it can not justly be made liable for any of the consequences resulting therefrom.
    The claimant was under no legal obligation to protect the navigation of the river. There is no provision in the contract requiring it to do so. The duty, such as it was, rested wholly upon the United States, and all expenses connected therewith should be borne by the Government.
    For the purpose, possibly, of saving expense in the cost of constructing the bridge, the Government engineers substituted protection by closed season for protection by contract. They calculated that the draw span could be erected between November 20 and March 15, when the navigation of the river was closed, and for that reason omitted the clause usually inserted in such contracts calling upon the contractor to protect navigation. Under ordinary circumstances, their calculation would have proven accurate, but an extraordinary calamity occurred which compelled the claimant to replace much of the work it had already finished and required the Government officers to resort to a heroic expedient to protect the navigation of the river.
    Furthermore, the work upon the bridge was in discharge by the Government of a Federal police duty in respect to a great highwa\r of interstate commerce. Such work and any inconvenience arising therefrom would afford no ground for an action for damages caused thereby, either against the Government or against anyone duly authorized to act for the Government in the undertaking. This principle is so familiar and well established that its discussion would seem to be unnecessary. {Levy v. U. S., 177 U. S., 621; Bridge Co. v. Hatch,. 125 U. S., 1; Cardwell y. Bridge Go., 113 U. S., 205; Scranton v. Wheeler, 179 U. S., 141.)
    The absence of any express provision in this contract creating a duty upon the part of the claimant to protect navigation, a breach of which might have afforded a ground of action against it in favor of persons interested in the navigation of the river is significant, in view of the fact that the contract contains similar provisions as to other and less important matters of the same sort.
    A recent case, whose features are very like those of the present, is McCarthy v. Hampton (61 Iowa, 287), where a man while performing work under a contract with specifications was threatened by his emplo3rer that unless he gave a new guaranty about the work it would be stopped, and therefore without further consideration gave it, and the work Avent on. Subsequentty, after failure of the guarantor, it Avas held that this guaranty had never been binding, for want of consideration, and the guarantor recovered for the Avork.
    
      Mr. William H. Button (Avith whom was Mr. Assistant Attorney- General Pradt) for the defendants:
    It is perfectly plain not only that the claimant was under obligation to finish the drawspan on March 1, 1896, but also that the reason for such requirement was specifically brought to its attention and assented to by it, and it is apparent that the claimant undertook to see that navigation on the river should be kept open during the period of the erection of this bridge. {Jones v. United States, 11 C. Cls. R., 733; 96 U. S., 21; Roettinger v. United States, 26 C. Cls. 17., 391, 109.)
    If there was no obligation on the claimant to erect a lift span Avithout compensation, yet the claimant would haATe been liable to the defendant for the damages sustained bjr navigation in case navigation should have been interrupted, and such damages being likely to be much more than the cost of the lift span, it Avas proper for the United States to haAm such span erected, charging the cost thereof to the claimant, as being the best Avay of diminishing the damages for Avhich the claimant avouIc! have been liable. This upon the doctrine that it is the duty of one who is likely to be subjected to damage to use all effort to make that damage as small as possible, charging the cost of such prevention to the party who is liable for the damage. {Harden v. Dalton, 1C. & P., 181; Miller v. Church, 7 Me., 51; Qrindle v. Express Co., 67 Me., 317; Loiters. Damon, 17 Pick., 284; Milton v. Steamboat Co., 37 N. Y., 210; Howard v. Daly, 61 N. Y., 362; Williams v. Coal Co., 60 Ill., 149; Warren V. Stodart, 105 U. S., 224.)
    
      The proposition of the defendant is that the claimant iras under obligation to keep navigation open, and being so liable it was his dutj^ to prevent damages to arise from its interruption in a reasonable manner, unless it can show some reason why it should be relieved of its obligation.
    It is argued that the accident to the drawspan being inevitable, and arising from no fault of the contractors, the claimant can not be held responsible therefor, citing the case of Gleason v. United States (33 C. Cls. R., 88).
    The claimant’s proposition that if it can not be held responsible for the disaster, then it can not justly be made liable for the consequences of the disaster, is a remarkable one. Actions are daily brought to enforce liability for damages which occur from causes over which the defendants have no control. A claimant may obligate himself to be responsible for his own actions, the actions of others, or upon contingencies absolutely beyond the control of all persons, and the only question here is what did the claimant obligate itself to do.
    The argument seems to be based upon the proposition that where the performance of a contract is rendered impossible by an act of God, then performance is excused.
    There' is nothing to prevent one from contracting absolutely, to do a certain thing, and when he does so contract, the law will cast the damage caused by an inevitable accident upon him rather than the other parties, inasmuch as one or the other will have to sustain it. (,Steele v. Bitch, 61 Ill., 343.)
    That such an accident will not excuse performance is apparent from the following cases: Paradine-¶. Jcwie (Alleyn, 27); School District v. Bauchy (25 Conn., 530); Trenton School v. Bennett (27 N. J., 513); Harmony v. Bingham (12 N. Y., 99).
    The claimant relies upon the case of Gleason v. United States (33 C. Cls. R., p. 88).
    There is a broad statement of the principle involved in the case indicated, but it had no application to the matter under consideration, because the accident in question was made by special terms of the contract an excuse for delay. The statement, although true in a broad sense, is not an accurate statement of law, and is a dictum in that case.
    The above case also refers to the case of Satterlee v. United 
      
      States (30 C. Cls. R., 31). The statement of the law in this regard in this case is also a dictum. The contractors for certain work in the Harlem River were delayed on account of a-flood, and a new contract was entered into, under which their rights were settled. A discussion of the principle involved was not necessary to a decision of the case and did not particularly figure therein.
    The other case referred to is that of McDermott v. Jones (2 Wall., 1). The statement of the law in this regard in this case is also a dictum. The case' simpl}” decides that unforeseen difficulties will not excuse the performance of a contract where there is no impossibility of performance. The case, however, does not decide what or when impossibility will be an excuse.
    This brings us to the third consideration to be urged against the claimant’s position in this regard. The reason of the fixing of the date for the finishing of the drawspan on March 1 has been considered. The real obligation of the claimant was to keep open navigation. The means of accomplishing it was to finish the drawspan by March 1. Consequently the accident did not render impossible the fulfillment of the real obligation of the claimant. It might have rendered it impossible to do it in the exact way contemplated, but the event demonstrated that it did not render it impossible to fulfill such obligation by the erection of this lift span.
    Of course the principal obligation was to furnish a bridge. In case the accident had carried away some of the stationary spans, it would have been just as permissible for the claimant to’ argue that it was relieved of the principal obligation to furnish a bridge simply because it could not do it in the exact way contemplated. When the claimant discovered that it could not finish the draw in time to keep navigation open, yet it was under obligation to fulfill that provision of its contract at any expense. It has been demonstrated that it could do so and that it was not impossible. The United States required it to do so, and in so doing required nothing but what the contract contemplated. (Williams v. Vanderbilt, 28 N. Y., 223.) Here the main thing the claimant agreed to do was to keep open navigation. It could do so by erecting this lift span, and under its contract it was required so to do. ( White v. Mann. 26 Me., 361.)
    
      It is submitted that this is not a case in which an inevitable accident has excused performance.
   Wright, J.,

delivered the opinion of the court:

By its contract with the defendant the plaintiff had obligated itself to construct a new bridge over the Mississippi River between Rock Island, Ill., and Davenport, Iowa, with one drawspan for the use of navigation upon the river, this latter to have been completed March 3, 189(5, in order that river navigation might not be interrupted by the work of constructing the bridge, it being then understood by the parties that river navigation would open between that date and the 1st of April following, and the intention of the parties was to provide for and accommodate that event. During the winter the river was frozen, and February 26, 1896, as the result of a thaw, the movement of ice in the river at this point caused 'the destruction of the incompleted draw span; and to prevent interference with navigation, with the advice of defendant’s officers, plaintiff erected a temporary lift span, to be operated upon the bridge, for the accommodation of railroad traffic and river navigation until the permanent draw span could be reconstructed. This suit is to recover for the cost of the construction of the lift span.

There is dispute in the several contentions of the parties relative to their respective liabilities for the cost of the temporary span made necessary by the action of the ice in the river upon the incompleted bridge. It is not denied that it was beyond the power of petitioner to reconstruct a permanent draw span in time to accommodate the opening of river navigation, nor that the erection of the lift span was the most feasible and inexpensive way to meet the necessities of the public in that regard. After the destruction of the incom-pleted draw span the militar}7 officer in charge, upon consultation with his subordinates, determined that the lift span should be constructed, and so advised the representatives of the petitioner, which the latter now construes as an order of that officer, but whether advice merely or an order, we deem unimportant, for if the latter, petitioner was under no obligation, except to fulfill the terms of its contract, and the officer possessed no power over the claimant, or authority to represent the defendant, except also as provided in the terms of the contract itself, and there can be no just claim that it gives sanction to such order of that officer, or power to vary the terms stipulated therein for his principal, except such as relate to change of plans merely. Hence the case clears itself, and is to be settled exclusively by the contract as made by the parties. Tt is not disputed that by the stipulation ^f the contract the draw span was to be completed March 1, or if the contention of plaintiff is to be admitted, the time was extended to March 15, and for this purpose it would be immaterial which date should be adopted, for the 'fact remains that the draw span was not completed before March 15, and in order not to obstruct river navigation, and at the same time accommodate railroad traffic, as contemplated byr the contract, it was necessary to construct the temporary lift span. Without the fault of the defendant, plaintiff was, b}r an unforeseen event, rendered powerless to perform its contract rvithin the time stipulated and it was met by the contingency of subjecting itself to the consequences of interrupting river navigation incident to its inability to perform, and the incurrence of such damages to the defendant and the public as might result from such interruption, or assume the burden of providing a temporary means of avoiding the obstruction of the river, and it chose the latter alternative. In any aspect of the case in rvhich it may be presented, we are of the opinion that by the contract of the plaintiff it assumed the burden of this accident, if it ma}' be thus characterized. It has been argued, to unburden itself of this liability, that the ice flow was the act of God, and thereby the contract was rendered impossible of performance. It can not be denied that the ice flow was the act of God, and by reason thereof the contract could not be performed, but counsel for plaintiff are mistaken in their application of the law in such cases, when it is claimed the bridge company was excused from performance because of the act of God, where the event which caused the impossibility of performance might have been anticipated and guarded against in the contract. The event of a frozen river and its incident of ice gorges is of common observation in the locality of this contract, and might well have been anticipated by the parties. It is, we think, in such cases, elementary law, needing no authority in support of it, that if a party contract to perform anything which is possible at the time when the contract is made, but afterwards becomes an impossibility, he is liable in damages resulting from nonperformance thereof. The distinction is that if an obligation be imposed by law, and does not arise from his contract, if it be rendered impossible afterwards by the act of God, or bj^ the act of the Government, he will be excused for nonperformance. In the case presented the obligation does arise from the contract of the party, and does not therefore fall within the exception of things rendered impossible by the act of God. The rule is that if a person desires exemption from such acts it must be so provided in the contract (Story on Contracts, sec, 975; Chitty id., 1071), and there is no pretense that such was done in the present case.

After the bridge was completed, the voucher for the final payment was sent by the Department to the military officer in charge at Rock Island, who was required by his superiors to insist upon a stipulation in the receipt to be executed by the plaintiff to the effect that the payment therein designated should be in. full for all charges, claims, adjustments, differences, or other alleged indebtedness incident to the work or related to it in any manner whatsoever, thereby clearly evincing an intention to include the claim in question. Previous to this timé the representatives of the plaintiff had been, insisting upon a claim for compensation from the Government for the construction of the lift span, which had been denied and resisted by the officers of the defendant and a counterclaim against claimant insisted upon for dela3r in the work. There was at least honest dispute and differences between the parties in this regard. Plaintiff’s representative', objected to the • execution of the document in the form insisted upon, but was informed by the officer unless he did so the instructions from Washington were that all matters in dispute should be referred to the Department for adjustment. The person in charge of the business for the plaintiff advised directly with his principal relative to the matter, after which, to enable the plaintiff to gain immediate use of the final payment of twelve thousand nine hundred and thirty-five dollars' and forty cents (112,935.10), he executed the voucher as required, and in the form and substance we have recited, and payment was made accordingly. No protest could be continued as effective under the circumstances, for by signing the release and accepting payment without first returning the money so obtained, such protest, was abandoned, and hence petitioner’s reliance upon a protest, if one existed, is futile. It has been often held by courts of highest resort, and is familiar law, that the compromise of honest disputes or differences of the parties, forms a good consideration for the discharge of all supposed liabilities growing out of them, and that a release or discharge so obtained and given is valid and binding upon the party who executes it. No undue advantage was taken of the plaintiff; it was free to accept or reject the payment upon the terms proposed, and it saw fit to choose the former, and it must be held to abide by the effect of its own voluntary act.

It results from our expressed views that plaintiff can not recover, and its petition will therefore be dismissed.

Nott, Ch. J.

I concur in so much of the decision as holds that thé claims which are the subject of suit were closed by the compromise of the parties.  