
    JAMES McFERRAN v. THE UNITED STATES.
    [No. 20744.
    Decided May 2, 1904.]
    
      On the Proofs.
    
    Tile claimant contracts for the building of cavalry barracks at Fort Ethan Allen, Vt. The contract provides for good sandstone “ of the best quality, sound, and of even color." The contractor is required to furnish marble. He is paid the contract price, making no protest that the payment is insufficient. Other changes are made and additional work ordered. On the final settlement at the time of the last payment the contract price paid does not include the subject-matter of the present contention for extra work.
    X. Marble is not classified or known as “ stone ” in the building trade; but where a building is erected in a country of marble quarries, marble becomes a common material; and the contractor can not recover for the substitution of marble for stone unless it affirmatively appears that the cost was in excess of that of the best quality of the stone specified in the contract.
    II. Where items for extra work were not the subject of discussion or contention in the settlement of the amount due upon the contract, the payment of the contract price does not operate as an estoppel.
    III. The policy of the law is to enforce settlements and prevent litigation ; but settlements are not to be inferred or presumed except where the facts indicate that the present claim was embraced within the terms of the Setlement. The mere payment of what is due does not imply a settlement.
    
      
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court :
    I. A contract for building certain buildings was made on the 4th of May, 1893, between the United States and the claimant, which is annexed to the petition herein as Exhibit A.
    The specifications for all.the buildings in said contract contained the following general provisions:
    “ 1. The entire work is to be executed under the direction and to the entire satisfaction of the U. S. officer in charge; and in conformity with his instructions and such detail drawings as may be furnished from time to time during the progress of the work. .
    “ 2. The contractor shall give his personal superintendence to the work, or shall have some competent person on the job at all times.to act for him, and shall furnish all materials, labor, etc., necessary to complete the work according to the true intent and meaning of the drawings and these specifications, of which intent and meaning the officer in charge shall be the interpreter, and his decision in any and all cases shall be final.
    “ 3. The location and grade of building will be indicated by the officer in charge, and the site shall be cleared by the contractor for the reception of the structure, and should be examined by the contractor before bidding. The contractor must lay out his own work correctly, and will be responsible for measurements.
    “ 4. It is intended that the drawings and specifi cations shall include everything requisite and necessary to the proper and entire finishing of the building, notwithstanding every item necessarily involved by the work is hot particularly mentioned, and all work when finished is to be delivered up in a perfect and undamaged state.
    “ 5. Where no figures or memoranda are given, the drawings shall be accurately followed according to their scale; but figures or memoranda are to be preferred to the scale in all cases of difference.
    “ 6. In any and all cases of discrepancy in figures or drawings the matter shall be immediately submitted to the officer in charge for his decision, and without such decision said discrepancy shall not be adjusted by the contractor save only at his own risk; and in the settlement of any complications arising from such adjustments the contractor shall bear all the extra expenses involved,
    
      “ Y. The drawing and these specifications shall be considered cooperative, and work or material called for by the one and not mentioned in the other is to be done or furnished in as faithful and thorough a manner as though fully treated of by both.”
    II. The specifications for this building contain the following general conditions:
    “ INSPECTION AND ACCEPTANCE OP WORK.
    “ 20. Each bidder must understand that, should his proposal be accepted, the materials delivered and the work performed by him, at any and all times during the progress of the work, and prior to the final acceptance of and payment for the same, shall be subject to the inspection of the officer in charge, or other authorized agent of the Government, with the full right to accept or reject any part thereof; and that he must, at his oaa7u expense, within a reasonable time, remedy any defective or unsatisfactory materials or work; and that in the eA^ent of his failure to cío so, after notice, the officer in charge will have the full right to haA7e the same done, and to charge the cost thereof to his account.
    “ 81. All outside Avails and ceilings, first and second stories, except where ceiling is used (irrespective of figures on drawings), shall be furred Avith strips 1-J inches by 2 inches, set 16' inches on centers, securely fastened to walls by large spikes or by plugging. Stone Avails in basement where shown to be furred with 2" x 4" set 16" on centers.
    “ 128. Lath with the best lf-inch pine laths all walls, ceilings, soffits of stairs, first and second stories, ceilings and walls of finished rooms in basement, put on ■§ inch apart, breaking joints every fifth lath, double-nailed at ends with threepenny heavy nails and doA^etailed at angles. Long A7ertical joints will not be alloAved, nor lath put on vertically to finish up to angles or corners. All lath at corners or angles must be nailed to solid bearings, and lath will not be alloAved to run from one room to another behind studding. All walls and ceilings to be straightened before lathing, and all studs made solid at angles.
    “ 130. Plaster all walls, ceilings, soffits of stairs, in first and second stories (except closets), with three-coat work — a scratch, brown, and hard finish. All closets and the walls and ceilings ox laAmtory and storeroom in basement to be plastered two coats — one coat of brown mortar and hard finish. All other ceilings of basement to be plastered one coat brown mortar.”
    The claimant was ordered, against his protest, by the quartermaster in charge of the work, to fur, lath, and plaster certain girders shown in the drawings of this building. These girders supported the floor timbers of the second and attic stories in the center of the dormitories on two floors. The detail drawings call for casing with wood. After this work had been done, an inspector from the Quartermaster-General’s Office declared the plastering to be erronous, rejected it, and ordered it replaced with woodwork. The quartermaster so ordered the claimant. The claimant had, prior to the quartermaster’s order to plaster, ordered the material and had it on the ground, to case the girders with wood. He removed the plaster as directed and supplied its place with wood casing. The value of the work done and materials furnished in putting on and taking off the fur, lathing, and plaster was $179.20.
    III. The specifications contain the following provisions:
    “ 119. Lath with the best pine laths all walls, ceilings, soffits of stairs, first, second, and attic stories, and the ceilings of basement, and partitions and walls of laundry, and staircase hall, using l-j-inch laths, put on -§ inch apart, breaking joints every firth lath, nailed at ends with threepenny nails and dovetailed at angles.
    “ 121. Plaster all walls, ceilings soffits of stairs, in first and second stories (except closets), with three-coat work — a scratch, brown, and hard finish. One heavy coat of plaster for walls back of wainscoting between furring. strips, in laundry and hall. Closets, ceiling of basement, the walls of laundry, and staircase hall in basement, and entire attic to be plastered two coats — one coat of brown mortar and hard finish.”
    In the plans two rooms in the rear of the attic are marked ■ “ Lumber-room, unfinished.” The plan for these rooms and the rear section plan show the absence of plastering. The quartermaster ordered that the entire attic should be lathed and plastered. The claimant protested, but did as ordered, at an extra cost of $4Í0.
    The contract for steam heating was between the United States and another contractor. At the time of plastering, the steam-heating apparatus had not been put into the buildings. In order to dry the plaster, the claimant, by orders of the quartermaster, and in compliance with paragraph 10 of the specifications, heated the rooms, using plasterers’ charcoal furnaces. The quartermaster ordered the claimant to tint the walls of all the rooms after the same had been dried. The cost of this was $235.20.
    Paragraph 10 of the specifications provides as follows:
    
      “ He shall provide stove and fuel in cold weather for heating the building while his work is going forward and until it is dry, and all material and work are to be- properly protected from the weather.”
    The walls were discolored by the improper use of the mode adopted by claimant, and it was necessary to tint them.
    IV. The plans No. 49, .Q. M. H., sheet No. 1, for the bakehouse, provide as follows:
    “ Drain to extend to sewer.”
    The specifications provide as follows:
    “ Two heavy cast-iron waste pipes to be put in where directed by the officer in charge.”
    The branch sewer or drain from the bakehouse could not enter the main sewer at any place nearer than the place where it was located. No change was made in the location' of the drain or sewer by the officer in charge.
    V. The specifications contain the following:
    “ Entire floor (except saddle room and dispensary) to be paved with vitrified brick. First a layer of brick laid flat with broken joints, on a 4-inch bed of sand, well rolled, crowned and graded as required. Over this place a 1-^-inch layer of sand and cover with vitrified brick laid on edge, breaking joints, and leaving the surface smooth and even. Stall floor to pitch toward gutter with fall of 1-J- inch. Passageways to be crowned in center and gutters formed as shown. The joints of upper course of brick floor to be filled with best quality of pitch and tar poured in hot. Brick paving and sand filling not to be put in until after plumber has placed drain pipes, etc.
    “ The mortar for stonework below grade composed of one part gray lime and two parts clean, sharp, well-screened river sand, b}^ measurement. When thoroughly incorporated ready for use add a portion of £ Black Star ’ Louisville cement, or equal, amounting to one-third (by measure) of the lime used.
    “ The mortar for the brickwork above stonework to be composed of one part white lime and two parts clean, sharp, well-screened river sand, by measurement.
    
      “ Each stall, including the box stalls, to be provided with a plain half-circle manger, similar to J. L. Mott’s (Plate 54 F, page 37), and one plain wrought-iron corner hayrack extended for hay chute, similar to J. L. Mott’s (Plate 82 F, page 48).
    “ Provide and set 36 wall ventilators, size of opening Sc-inches by 4J inches, 3 inches deep, frame 11J inches by 6 inches, arranged to open and close, similar to J. L. Mott’s (Plate 273 F, page 112).
    “ Riding saddle and bridle brackets to be of japanned iron, similar to J. L. Mott’s (Plate 332 F). Provide and place in saddle room six dozen 6-inch extra heavy harness hooks; also provide and place in storeroom the same number of hooks.
    “ Provide and hang in stalls, from the beam overhead, a suitable chain of such length that the division bar can be attached to it. This bar to be provided with suitable iron hooks for connection with chain and at side of building.
    “ Provide and set one grain spout to each stall, includingbox stall, of 3-inch cast-iron pipe, with galvanized-iron funnel. All to be securely fastened to wall.”
    The following correspondence took place in regard to the mortar in the cavalry stables:
    “ OeEICE CONSTRUCTING QUARTERMASTER,
    
      Burlington, Vermont, July 3rd, 1893.
    
    “ To the Quartermaster-General U. S. Army,
    “ Washington, D. O.
    
    “Sir: Respectfully referring to your letter No. 57728, dated June 30, 1893, in the specifications for cavalry stables, plan No. 44,1 request authority to modify the specifications for mortar so as to call for £ mortar for stone walls below brickwork, and for all piers, of one part best American cement and two parts clear, sharp, coarse sand.’ There is no gray lime or river sand available in this vicinity. For the brickwork above the stonework I desire to modify the specifications to call for £ mortar comjiosed of one part best lump lime, fresh burned, two parts clean sharp sand, and one part best American cement of approved quality. The exposed joints of outside walls to be of mortar colored to match brickwork, and to be neatly struck.’ I think the addition of a little cement to the lime mortar for brickwork, which is called for for all the buildings except the stables, to be very desirable, lime and sand alone making an inferior mortar.
    “ Very respectfully, your obedient servant,
    “ Guv Howard,
    “ Captain and Asst. Quartermaster, U. S. A.
    
    
      “ War DEPARTMENT,
    “ Quartermaster-General's Oeeice,
    “ Washington, D. 0., July 1*B, 1893.
    
    “ Captain Guy Howard,
    
      11 Assistant Quartermaster, XJ. S. Army,
    
    “ Burlington, Vermont.
    
    “ Sir : Referring to your letter of the' 3rd instant, I am directed by the Quartermaster-General to inform you that the specifications for cavalry stables at Fort Ethan Allen, Vermont, should be changed to correspond with those for the barracks, as requested by you.
    “ Very respectfully,
    “ C. P. Miller,
    “ Captain and Assistant Quartermaster, U. S. A.
    
    “ OEEICE CONSTRUCTING QUARTERMASTER,
    “ Burlington, Vermont, September ffl, 1893.
    
    “ Mr. J. H. Brennan,
    
      “Representative of Mr. James McFerran,
    
    “ Fort Ethan Allen, Vermont.'
    
    “ Dear Sir : According to your request, conveyed to me by Mr. Nicholson, you are hereby directed in writing to use cement and mortar color in mortar for stone and brick work of the stables, in just the same way as you have been required to use it in the construction of other buildings.
    “ Very respectfully,
    “ Guy Howard,
    “ Captain and Assistant Quartermaster, U. S. A.”
    
    In accordance with the last letter, the claimant laid the brick in the cavalry stables in colored cement mortar, at an additional expense over the mortar required by the original specifications. Claimant refused to use cement and mortar color until ordered in writing to do so.
    Claimant protested against change of mortar. Additional cost to claimant, $476.
    The claimant offered vitrified brick for use in paving the cavalry stables, made in localities not distant, but was required by the quartermaster to obtain a special brick from West Virginia and did obtain them. They were not technically vitrified brick, but a hard paving brick. • The cost was $7 per M in excess of standard merchantable brick, or $980 for the entire number used. The Quartermaster-General, after a visit by an inspector from bis office, rejected the brick because not vitrified brick, but upon protest by the claimant the quartermaster finally permitted the use of the West Virginia brick to proceed.
    The claimant was permitted to use the brick which he had first obtained, and which had been sent to the place of the work. It does not appear that the claimant protested against the change to the West Virginia brick.
    The quartermaster required the contractor to bolt an oak pla.uk on the wall to which to fasten the mangers, and ordered hitching rings to be purchased for each stable at a cost of $28.80 per stable. The claimant thereupon purchased and furnished these rings. Afterwards, when it was found that the horses would destroy the plank and loosen the hitching rings, the claimant was obliged to cut holes through the brick wall and insert an iron fixture there at an additional cost of $84 for the holes and $67.20 for these special iron fixtures, $151.20.
    VI. The specifications for the various buildings contain the following provisions in regard to cut stone:
    “All door and window sills and templet stone to be of cut or sawed stone, sound and of even color, subject to the approval of the officer in charge, finished and cut as indicated •by the drawings. Gutter stones to be 4 inches by 16 inches by 24 inches, properly cut for all down spouts. Ml stonework to be properly covered during the progress of construction, all broken or defective parts made good, and to be thoroughly cleaned at completion.
    “ 32. Contractor to supply and set all cut stone required or shown on drawings. All to be of the best quality, sound and of even color, as approved by officer in charge; size and finish as per drawings. All cut stone not otherwise specified to be No. 8 cut work, and sawed stone to be sand-rubbed or fine drove work. All to be true and out of wind, with clean-cut and sharp angles.”
    The claimant was required by the quartermaster in charge to furnish marble and did furnish marble for the above work. The cost of the said marble was not in excess of the cost of a good- sandstone of the best quality, sound and of even color, as required by the specifications.
    It does not appear that in the vicinity of the work that marble such as was ordered and used by claimant was in excess of the price of the best quality of sound and even-color cut stone.
    Upon the completion of the work the whole amount of the contract was paid to the claimant, and no protest or claim was made that the payment ivas not sufficient. It is not shown that the items for which this suit was brought was the subject of discussion or' contention in the settlement of the amount due the claimant for the contract work.
    
      Mr. William B. King for the claimant.
    
      Mr. Franklin W. Collins (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

The claimant on the 4th day of May, 1893, entered into a contract with the defendants to build certain buildings at Fort Ethan Allen, as shown by Exhibit A, attached to the petition and made with certain specifications a part of such contract. The aggregate of the work amounted to the sum of $99,600, all of which was duly paid, and this suit was brought for the purpose of recovering .for certain additional work and difference in the value of work as provided by the specifications and the work required by the officers in charge in the execution of the agreement.

The first item is for plastering girders and removing such plaster, for which is claimed the sum of $119.20. It is shown by the findings that the claimant was ordered by the officer in charge to fur, lath, and plaster such girders, against his protest; that he was then required to remove such plaster and then case the same with wood, that being the requirement of the specifications.

The cost of plastering the girders amounted to the sum of $179.20, as shown by the findings. For this amount the claimant is entitled to recover, as shown in the conclusions of law.

The next item, as shown in finding h, is a claim for $410 for plastering two rooms in the rear of the attic. The plan for those two rooms in the rear attic is marked “ Lumber-rooms, unfinished,” in the plans, but the officer in charge, against the protest of the claimant, ordered and required him to lath and plaster the same, which was reasonably worth the sum of $410. For that amount the claimant is entitled to recover, as shown in the conclusions of law.

The petitioner makes a further claim of $285.20 for being compelled to tint the walls of certain rooms in the building. It is shown by the findings that to dry the planter, by. order of the quartermaster and as required by section 10 of the specifications, it was necessary to use plasterer’s charcoal furnaces, but an improper use of the same discolored the walls so that it became necessary, in-order that they be of the normal whiteness, to tint them, and for that the claimant demands the sum of $235.20, which is shown to be a reasonable price. No allowance is made for this.

The fourth item in the claim of the plaintiff is the sum of $50 for a change of sewer. The finding as to that part of the claim shows that the sewer was built in the only place it could be built in order to make it effectual, and that no change was made in the location of the sewer by order of the ofiicer in charge. No allowance is made for this item.

The fifth finding relates to the claim for the use of a higher grade of mortar used in laying the brick in the cavalry stables. It was conceded that the specifications did not require the kind of mortar used and the claimant refused to use the colored cement mortar until he was ordered in writing to do so. The difference in cost of laying the bride in the ordinary mortar and the mortar used by order of the officer in charge was the sum of $476. For this an allowance is made of $476.

No allowance is made for the claim of the difference between the price of vitrified brick and the West Virginia brick used by order of the quartermaster. It is not shown that the claimant protested to the change of the character of the brick used.

Fixtures in stables are allowed to the extent of $151.20, in changing the character of the fastenings. No allowance is made for the rings, as they were necessary in any form of fixtures.

Item 6, marble trimmings in lieu of cut stone. The specifications required cut stone, and much discussion was had in the trial of the cause as to whether such marble as was required by the quartermaster and used by the claimant came within the purview of the specifications. Upon that question the witnesses disagreed, but it is not necessary that the.court pass upon that question in the disposition of that item of the claim. The contract was performed in the country of the marble quarries, and as a result of that situation marble becomes a common material in the trimmings of houses. The findings on that point say that it is not shown that the cost of the marble used by the claimant by the direction of the quartermaster was in excess of the cost of good sound stone of best quality and even color. No allowance is made for this item.

Upon the completion of the. work the whole amount of the contract was paid to the claimant, and no protest or claim was made that the payment was not sufficient. It is not shown that the items for- which this suit was brought was the subject of discussion or contention in the settlement of the amount due the claimant for the contract work.

The settlement which took place between the parties at the time the last payment was made on the amount of the contract price did not include what is the subject-matter of contention between the parties in this proceeding, and in order that a settlement operate as an estoppel it must be shown that the subject-matter of the subsequent contention was embraced within the purview of the settlement by the express action and contemplation of the parties. The policy of the law is to enforce settlements and thereby prevent litigation, but settlements are not to be inferred or presumed except upon substantial showing of facts indicating that the claim was embraced within the terms of settlement. A mere payment of what is due does not imply a settlement of disputed facts.

A judgment will be entered as shown in the conclusion of law.  