
    EDWARD H. SKELSEY ET AL. v. THE UNITED STATES.
    [No. 13616.
    Decided January 30, 1888.]
    
      On the Proofs.
    
    The contract is for the excavation of earth and rock in the bottom of the side channel of the Mississippi which forms Rock Island. Until the water he withdrawn the precise place for the work can not be designated, nor can the quantity to be removed be known. The contract provides that the work shall be done “ at such times as the commanding officer may direct,” with a restriction that the “lime allowed he long enough, to allow at least one day for every 400 euhie yards of rock.” It binds the Government to make the bed of the pool “ as dry as is reasonably practicable, by putting a coffer-dam across the head of the pool,” and the claimants to do their work within the time prescribed.
    I. Where a contract casts upon the defendants the obligation of erecting a coifer-dam, it must be sufficient to exclude the water above it from entering the area which the contractor is to excavate, and the period of exclusion must be sufficient for the performance of the work.
    U- The failure of the defendants to comply .with this condition renders them liable for such damages as the claimants actually suffered from that cause and for such profits as they might have made if they had been enabled to perform.
    III. But such a contract will not require the defendants to raise or strengthen another dam in existence when the contract is made, nor cast upon them a liability for water coming over or through it.
    IY. A provision in a contract which requires the defendants to keep “ open the water-ways in JBenham’s Island Bam” does not cast upon them the obligation of excluding backwater which may find its way up through the water-ways.
    
      The Reporters'1 statement of the case:
    The provisions of the contract involving construction will be found in the opinion. The following are the facts found ¿>y the court:
    I. On the 15th of June, 1881, the claimants and defendants entered into the contract annexed to and forming part of the petition, and the same was duly approved by the Chief of Ordnance. The defendants being unable to lay bare the pool, where the work was to be performed, during the year 1881, the time for the completion of the contract was extended to June 30, 1882, and again to December 31, 1882, so that the final agreement of the parties was that the work, should be done during low water between August 1 and December 31, 1882, instead of during the same months in 1881.
    II. At the time when the contract was entered into, the pool or place where the excavation was to be made by the claimants, shown on the plan or diagram annexed to and forming part of these findings, was covered with water; the wing-dam running parallel to the main stream of the Mississippi was built, but the coffer-dam across the head of the pool from the wing-dam to the Illinois shore, specified in the contract, did not exist, and its construction had not been begun. Subsequent to entering into the contract the defendants raised and improved the wing-dam, which had originally been built by them, so that during the time the claimants were carrying on their work in 1882, as hereinafter set forth, the wing-dam was as strong and as capable of keeping the water of the river from interfering with their work as when the contract was entered into in 1881.
    ' III. The coffer-dam referred to in the contract was not completed by the defendants until the 6th October, 1382,. up to which time the pool, including the place where the excavation was to be made by the claimants, remained covered with water. After the coffer-dam was completed the water and mud was so deep in the bed of the pool that it was not until the 17th October, 1882, that the defendants’ engineers were able to survey, cross-section, and designate the area which the claimants were to excavate, and until this was done it was impracticable for the claimants to begin the work of excavation. Neither was the quantity of rock to be excavated known to either party until the area was cross-sectioned. It was then ascertained to be 18,800 cubic yards, which, at the minimum rate designated in the contract of 400 cubic yards a day, would allow to the claimants forty-seven working days, exclusive of Sundays, as the period for excavating and removing both rock and earth. The quantity of earth to be removed was 20,491 cubic yards, and the area of excavation was for the rock 200 by 1,200 feet, and for the earth 206 by 1,200 feet.
    IV. On the 18th October, 1882, immediately after the completion of the survey described in the preceding finding, the claimants began work under the contract in the designated area. But on the 22d October the water broke over and through the coffer-dam erected by the defendants and flooded the area of excavation so as to prevent the claimants from continuing their work. This period of interruption was eight- days. On the 30th October the water of the river came over and through the wing-dam and backed up from the direction of Benham's Island through the water-ways referred to in the contract, so as to again prevent the claimants from continuing their work. This period of interruption was nine days. On the 22d November the coffer-dam again broke, and the water flooded the area of excavation so as to prevent the claimants from continuing their work. This period of interruption was seventeen days. On the 16th December the coffer-dam again broke and the water flooded the area of excavation so as to prevent the claimants from continuing their work; and on the 20th December the commanding officer in charge of the work ordered the cofferdam to be cut for the winter, so as to prevent further work, and notified the claimants through the following letter:
    “Hock Island Arsenal,
    “ Illinois, December 20, 1882.
    “Messrs. E. II. Skelsey & Go.,
    “ Contractors at the Water-Power Pool:
    
    “ Sirs: I have to inform you, as I believe you are aware, and as 1 told you last week, that in consequence of the high stage of water in the river, severe winter weather, and the action of ice, it will be impracticable to hold the coffer dams at the head of the water-power pool, and to keep the bottom of the river in condition for further work this winter without such great expense and certain risk of accident and heavy loss as to make any further attempts to prosecute the work very unwise and nearly impossible. I have therefore made provision to-day to flood the pool to save the dams from being destroyed during the winter, and will notcontinue the work this winter. I have kept a heavy force on the coffers since last week, keeping them in repair, largely on your account, for the bare possibility that some change in the river and the weather might make a resumption of the work possible, but it is now certain that a further continuance of this heavy expense is useless.
    Yery respectfully, your obedient servant,
    D. W. Flag-ler,
    
      Lieutenant-Colonel of Ordnance, Commanding.
    
    Y. No work was done by the claimants subsequent to the letter of Colonel Flagler, set forth in the preceding finding, ■neither did the claimants seek to resume work in the following spring; nor did the defendants’ officers proffer another extension of the contract, or require that the claimants proceed with the work. During the period of excavation they removed 2,99& cubic yards of rock and 13,809 cubic yards of earth, for which they were paid at contract rates less 10 per cent. They had also removed other earth washed in and deposited when the area of excavation was flooded, and they had blasted a considerable amount of rock not yet removed, for neither of which have they been paid. They were ready and willing to perform the work required by the contract, and, if they had had forty-seven working days, as contemplated by the contract, they coufid readily have removed the 18,000 yards of rock and 20,491 yards of earth which formed the subject of the agreement.
    VI. The period between the 18th October, 3882, when the area of excavation was determined and turned over to the claimants, and the 20th December, 1882, when the coffer-dam was cut and the work stopped by the defendants, contained fifty-four working days; and the court finds that of the interruptions set forth in Finding IV, during which the claimants were prevented from working, thirty days are directly attributable to the insufficiency of the coffer-dam erected by the defendants; and the court also finds'that it would have been practicable to have erected a coffer-dam on that site which would have excluded water from the claimants’ work during those periods. In addition to the foregoing interruptions, nine days of interruptions a.re attributable to the water of the river overflowing the wing-dam and backing up through the water-ways leading to Benham’s Island Dam named in the contract. But the defendants Kept open those water-ways, as required by the terms of the contract.
    VII. The Government likewise was engaged in excavating an area adjoining and above that assigned to the claimants* In the progress of its work it became necessary to pump out water which occasionally ran into the claimants’ area, putting them to increased cost and expense, and hindering and delaying them in the prosecution of their work.
    VIII. The profits which the claimants would have derived from tiie work if they had not been interrupted by the breaking of the cofter-dam, as set forth in Finding IV, were, on the earth to be removed, 9 cents per cubic yard, and on the rock 25 cents. The extra expense cast upon the claimants by reason of the breaking of the coffer-dam and the pumping by the de-fendauts, as set forth in Findings was The extra expense cast upon the claimants by reason of the overflow from the wing-dam and the backing np of water from theBenham’s Island Dam, as set forth in Finding IY, was $750. The defendants have withheld 10 per cent, of the moneys due the claimants for the removal of 2,996 yards of rock and 13,809 yards of earth, amounting to $964.65. The items for which the claimants may be entitled to recover are as follows:
    Profits on 6,683 yards earth, at 9 cents...
    Profits on 15,804 yards rook, at 25 cents.
    Ten per cent, withheld...-.
    Extra expense by pump.
    Amounting to. 7,707.00
    Extra expense caused by wing-dam,
    
      Mr. James Hagerman for the claimants.
    
      Mr. Lewis Goehran (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The questions in this case relate entirely to the construction of a written contract which was entered into by the defendants through the commanding officer at Bock Island on the one part and the claimants on the other.

Its subject-matter was the. excavation of earth and rock in the bottom of the side channel of the Mississippi which forms Bock Island. The area of excavation was prescribed only as being “mot more than 100 yards wide;” but until the water which, when the contract was made, covered the channel could be withdrawn, the precise place for the work could not be designated. Nor until the channel should be laid bare, and the area of excavation be cross-sectioned and leveled, could the quantity of earth and rock to be removed be known. The contract named a season within which the work should be carried on, viz, between the 1st August and the 31st December, but it did not assign all of that season to the claimants as the time for performance. On the contrary, it provided that the work should be done “at such times as the commanding officer may direct,” with a restriction, however, that the “time allowed for the work after the pool bed is bared is to bo long enough to allow at least one clay for every 400 cubic yards of rock to be removed.” On the one hand the contract bound the Government to make the bed of the pool “ as dry as is reasonably practicable by putting a coffer-dam across the head of the pool,” and on the other it bound the claimants to do their work of excavation and removal in the time prescribed.

The season within which the work was to be done was more than half gone when the area of excavation was cross-sectioned and turned over to the claimants. It then appeared that 18,800 cubic yards of rock were to be removed, -which, according to the terms of the contract, would allow to the claimants as the time of performance forty-seven working days. The language of the contract, so far as it involves construction, is in these words:

“ That the parties of the first part do hereby contract and engage with the said United States to quarry, in the bed of the llock Island Arsenal water-power pool, at such place as may be designated, such quantities of rock as the commanding officer of the Eock Island Arsenal may require, not less than fifteen thousand nor more than thirty thousand cubic yards, and the deposit of sand and mud on the rocks to be excavated, and to haul the same and dump it on the Eock Island shore above high-water mark. The rock and deposit are to be taken from a channel not more than one hundred yards wide, to be cut east of the arsenal bridge, to Moline, and nearly parallel to the island shore, and about one hundred yards therefrom. The depth and length of the channel are .to be what the commanding officer of Eock Island Arsenal may require. The rock excavated from below the required depth is not to be counted in the measurement.
“ The United States is at its own expense to bare and dry the b'd of the pool as dry as is reasonably practicable, by putting a coffer-da in across the head of the pool from the wing-dam to the Illinois shore, and by keeping open the water-ways in Benham’s Island Dam anil the dams below the bridge. The work is to be done during low water, between August 1st and December 31st, 1881, at.such times as the commanding officer of Eock Island Arsenal may direct, but the, time allowed for the work after the pool bed is bared is to be long enough to allow' at least one day for every four hundred cubic yards of rock to be removed, not counting «undays.
“ For each solid cubic yard of rock, and each solid cubic yard of deposit herein contracted for, which shall be excavated and removed as aforesaid, there shall be paid by the United States to the said E. H. Skelsey & Co., their heirs, executors, or administrators, proper vouchers made in approved form, and duly authenticated by proper officers of the Ordnance Department, tbe sum of one dollar and twenty-four and one-balf cents ($1.24J) for tbe rock, and tbirty-eigbt and one-balf cents (38¿) tor tbe deposit, in tbe funds furnished for tbe purpose by the United States, except that ten per cent, of each partial payment shall be withheld until tbe completion of this contract to tbe satisfaction of tbe commanding officer of tbe bock Island Arsenal.”

At tbe time when the contract was entered into, the wing-dam which bad been erected by tbe Government existed, and it continued to exist when the work was in progress, and was then as effective as when tbe contract was made. During the progress of tbe work interruptions arose from two causes: First, from water coming over tbe wing-dam, or backing up from below; second, from water coming over and*through tbe cofferdam. On the part of tbe claimants it is contended that the defendants were bound to exclude all water from tbe area of excavation; and on tbe part of the defendents that tbe claimants bad sufficient time, notwithstanding tbe overflowing of their work after different intervals, to have completed it if they had exercised due diligence.

The court is of the opinion that tbe contract in this case cast upon tbe defendants tbe obligation of erecting a coffer-dam sufficient to exclude tbe water above it from entering tbe area of excavation for a period of forty-seven working days, all of which of right belonged to the claimants, and are found on tbe evidence to have been sufficient for tbe full performance of tbe work. Tbe failure of tbe defendants to comply with this condition of their agreement renders them liable, under the decision of tbe Supreme Court in Speed’s Case (8 Wallace; Eec., p. 77), and within tbe rule for tbe measure of damages therein laid dowu, for such damages as tbe claimants actually suffered from that cause, and for such profits as they might have made if they bad been enabled to perform. But tbe court is also of tbe opinion that the contract did not require tbe defendants to raise or strengthen tbe wing-dam (which was in existence when tbe contract was made), nor cast upon them any liability for water coming over it or through it. Of its sufficiency the claimants wrere as well able to judge, as tbe defendants when they entered into their agreement. And tbe court is likewise of tbe opinion that tbe provision in tbe contract which requires tbe defendants to keep “ open tbe water-ways in Benbam’s Island Dam ” clid not cast upon them the obligation of excluding backwater which might find its way up the water-ways to the injury of the claimants. The only overflows for which the defendants were liable, in the opinion of the ,court, were such as might have been prevented by a sufficient coffer-dam.

The claimants have also sought to recover for additional expense thrown upon them by requiring them to blast a narrow channel through the area assigned to them instead of allowing them to excavate the full width of the area; but the court is-unable to find, either in the citations of counsel or in the printed record of the case, sufficient evidence to establish the fact that this mode of proceeding with the work was not voluntary on their part. *

The judgment of the court, in accordance with these views, is that the claimants recover of the defendants the sum of $7,707.  