
    James M. Andrews v. The United States.
    
      ■On the Proofs.
    
    
      The claimant contracts to furnish material and, labor for the pier of Cross Ledge Shoal light-house. The defendants reserve the right to designate the depth of water in which the structure shall stand. On a map made by defendants’ engineer of the shoal, the position is indicated, but there is no marie, on the shoal itself, when the contract is entered into, designating the place. Some time elapses before the defendants designate the spot, but they do so before the claimant is ready to proceed. When the site is first designated it is in 6 feet of water. The claimant requests that it be in deeper ucater. Itis changed to aplace having 9 feet. He does not object to this site, and proceeds %oith his worlc, though on the map before referred to the depth of water at the site was indicated at 10 feet. The claimant completes his worlc, and is paid for it, and for extra worlc in full, then setting up no demand for damages.
    
    I. Though a considerable period of time may elapse between the making of a contract and the defendants designating the site for the work, which,, hy the terms of the contract they are to do, yet if the claimant was not ready to proceed with his work, and made no request to have the site designated, the delay will not he held unreasonable.
    II. A contractor cannot settle with the other party and receive and receipt in full for the whole contract price and afterwards assert for the first time a separate claim for damages.
    
      
      The Reporters' statement of the case:
    The following is the contract upon which the action was brought and the facts of the case as found by the court:
    I. The contract annexed to the petition as Exhibit B was executed between the claimant and the defendants, as alleged in the petition.
    II. The proposals made by the claimant for the performance of the work specified in said contract do not appear.
    III. It does not appear that there was any agreement or understanding as to the location of the substructure of the proposed light-house, except as set forth in said contract and the specifications annexed thereto.
    IV. The officer of the government under whose supervision the work specified in the contract was to be done was the Lieut. Col. W. F. Baynolds who signed the contract on behalf of the defendants; and he had his office in the city of Philadelphia, Pa.
    V. Before the contract was entered into, said Baynolds had caused a special survey, with soundings, and a map, of Cross Ledge Shoal to be made, upon which the location of the proposed light-house was indicated, and marked ten feet, and the vertical plan annexed to the petition showing ten feet under water was also made by said Baynolds; but there was no mark made on the Shoal itself, to indicate the exact spot for the lighthouse, until after the contract was signed; the facts in regard to which are hereinafter stated in finding IX.
    VI. Some time between the 15th and 22d of September, 1874, Solon S. Andrews, a brother and employé of the claimant, called on Colonel Baynolds with a letter of introduction from the claimant; and informed Baynolds that claimant had not arrived at the Shoal, and that no stone was then on the way for the work; but that he expected him every day with a tug-boat and sloops. At that time, in answer to said Solon’s inquiries, Baynolds told him that there was to be ten feet of water at low water at the location of the light-house made on the survey.
    At the same time, in answer to Colonel Baynolds’s inquiries, the said Solon informed him that the sloops referred to were good, seaworthy, keeled sloops, that would carry 100 tons or more of stone, and drew nine feet when loaded, and did all their hoisting by steam; and Eaynolds said it would need that kind of sloops to lie at the works.
    When this conversation took place the claimant had not chartered any vessels to bring stone to the Shoal; and said Solon after the conversation wrote to claimant for vessels of the right depth to lie alongside of the works.
    These sloops were called the working sloops, and the use they were to be put to was to lie alongside of the vessels containing stone, and hoist the stone out of those vessels, and swing it across the sloops’ decks, and discharge it over the sloops’ sides upon the site of the light-house.
    The stone in vessels bringing stone to the Shoal could not be unloaded from them upon the site of the light-house without the presence and help of the sloops; and when some schooners containing stone.for the work arrived at the Shoal before the sloops, the claimant said he did not wish to see the schooners, as the ship-brokers were sending them faster than he had ordered them, and he was not ready to unload them, and would not be ready till the sloops arrived.
    VII. On the 20th of October, 1874, Colonel Eaynolds caused a pile to be driven into the Shoal to mark the site of the light-house.
    VIII. The working sloops arrived at the Shoal on the night of the 24th of said October.
    IX. On the 26th of October an assistant engineer, and a superintendent of construction, of the fourth light-house district, went with the working sloops, towed by a tug, to the Shoal, the claimant being along with them; and they found six feet of water at the point designated by the pile aforesaid as the site of the light-house; and the claimant requested that the site might be located in deeper water, because the sloops could not work in the water near the pile; and the site was accordingly changed to one where the depth was nine feet; where the sloops were unloaded in about twenty minutes without any difficulty; and that was the first actual work on the site; and all the rest of the work was done there. The load which the working sloops had on board was on their decks, and they had every appliance for handling it; and that was the reason why they were so soon unloaded.
    X. It does not appear that the claimant, or any one representing him, ever made any complaint to Colonel Eaynolds, or any other officer of the government, about the length of time that elapsed between the signing of the contract and the location of the site of the light-house, as stated in the next preceding finding; or made any demand for its location before it was located, as stated in said finding; or made any objection to its location, except as stated in that finding.
    XI. On the 8th of October the claimant’s tug-boat went to the Shoal, and found the schooner Annie Jones there loaded with stone for this work; and he ordered her to Delaware City on the shore of Delaware Bay, where she was unloaded on a wharf hired by the claimant. While the claimant’s hands were unloading the Annie Jones at Delaware City, other schooners kept arriving with stone for the work. The claimant sent them to that place, and also to Greenwich and Buena Yista, both on Cohansey Biver, where they were unloaded on the bank of the river. His men worked on three or four vessels a day, discharging. He brought from his quarries in Maine derricks, guys, railroad iron, cars, engines, and wheelbarrows for use in unloading the schooners. At Buena Yista he constructed a tramway with cars and machinery, and unloaded the vessels at the wharf, and transferred the stone to cars, and ran the cars back to make room for more stone; and the stone had to be reloaded and transferred to sloops of light enough draught to unload at the light-house site. It cost him $405.50 to transport the cars, tramways, machinery, &c., from his quarries in Maine to the points named where the schooners were unloaded. For labor in discharging and handling stone at Greenwich and Bu-ena Yista he paid between the 31st of October and the 19th of December, 1874, $1,869.50; and for like expenses at Delaware City, $356.50. He also paid $2,400 for hire of steamer W. G. Boulton for towing schooners to and from Delaware City and Cohansey Creek; and also $1,125 for charter of sloop Seal for freighting stone to the Shoal; and also $200 for use of lighter and hoisting derrick ; and also $195 for use of schooner Morning Star, in lightering stone to the Shoal; and also $190 to steam-tug Dorie Emory for services rendered at the Shoal; and also $175 to steam tug James for towing sloop Seal from Buena Yista to the Shoal; and also $273.24 for wharfage, coal, pointing saw, three months’ rent of house, three broken wheelbarrows, and use of piece of ground at Buena Yista; and also $200 for wharfage of stone at Delaware City. It does not appear that any of the sums stated in this finding to have been paid by the claimant were paid for expenses incurred under the direction of any officer of the government.
    Nil. In addition to the payments made by the claimant, as set forth in the next preceding finding, he paid to the owners of twenty-one schooners that brought stone, demurrage, in different sums, and for different times, amounting in the aggregate to $4,723.20; but how much of that sum was paid for time beyond what would have been consumed in unloading the vessels at the light-house site, if they could have been unloaded there, does not appear; nor does it appear how much was owing to the vessels having come faster than he ordered them; nor does it appear that any of the time for which demurrage was paid, in any case, was lost to the claimant by any failure or action on the part of the officers of the government; but between the 27th of October and the 10th of November the weather was so boisterous that no unloading of stone at the site of the light-house could take place; and after the latter date the claimant lost further time in unloading, on account of the weather; but how much does not apjiear.
    XIII. The vessels which brought the stone for the work on the shoal were schooners, varying in tonnage from 220 to 530 tons, and in draught of water from 9 to 13 feet, when loaded. They were twenty-one in number, and were loaded at different places in the State of Maine. The first of them sailed thence on the 28th of September, 1874; and thenceforward they sailed thence, as follows: one on each of these days, to wit: September 30 and October 1, 5, and 9; six on October 13; and one on each of these days, to wit: October 15,16,17,19, 20, and 23. All of those vessels, except the last four, arrived at the shoal before the working sloops got there.
    XIY. All the stone brought by the claimant’s vessels to the Shoal in October and November, 1874, in fulfillment of his contract, was used for that purpose, and he was paid the contract price therefor; and owing to the sinking of the stone in the sandy bottom of the Shoal, it was necessary to use about four times as much riprap and twice as much small stone as was estimated for; and the excess was furnished by the claimant, and he was paid the contract price therefor.
    CONTRACT.
    “Articles of agreement made and entered into between James M. Andrews, of the city of Biddeford, and of the county of York and State of Maine, of tbe first part, and Lieut. Col. W. F. Bay-nolds, Corps of Engineers, U. S. A., and Engineer of the 4th Light-House District, for and in behalf of the United States of America, of the second part, witnesseth that the party of the first part, in consideration of the matters hereinafter referred to and set out, and of the specifications attached hereto and forming a part of this contract, covenant and agree to and with the party of the second part to furnish all the material, outfit, implements, tools and appliances, and labor required for the erection of a stone pier of foundation for a light-house on Cross Ledge Shoal, Delaware Bay; aud to erect and deliver the same to the United States, fully completed, as follows:
    “All that part of the structure below low-water mark, consisting of small stones for the foundation, riprap stones and large flat paving stones for protection, by the 1st day of January, 1875, and, before that date, to place on the top of said foundation a weight of stone not less than (1,000) one thousand tons, to produce settling; and to resume work on the said structure within ten days after ice shall have left the bay, in the spring of 1875, and then to remove the above-mentioned weighting stone, and to complete and deliver the balance of the structure, consisting of cut outside granite courses, the stone backing or filling of the same, and the upper or capping courses of dressed granite, within sixty days of the time specified above for resuming work, and to conform in every particular to the stipulations and conditions specified in this contract, and to the specifications and drawings hereto annexed, and which are to be considered as a part of this contract.
    “The party of the first part agrees that all the material, workmanship, and labor used and employed in the erection of said structure shall be of best qualitj-, and, at all times, shall be subjected to a rigid inspection by the party of the second part, or his agents appointed therefor, and that this inspection shall be final.
    “And the party of the second part covenants and agrees to pay the party of the first part fore ach cubic foot of riprap, twenty-two (22c.) cents; for each cubic foot of broken stone for foundation, twenty-three (23c.); for each superficial foot of paving stone, fifty-five (55c.) cents; for each cubic foot of exterior cut granite, laid in cement mortar, one dollar and twenty-five ($1.25) cents; for each cubic foot of interior stone or backing, laid in cement mortar, forty (40c.) cents; for each cubic foot of dressed granite in upper course, laid in cement mortar, one dollar and eighty-five ($1.85) cents, all to be measured in the work, and to make payments, from time to time, on estimates of amount of work done; reserving 10 per cent, to secure fulfilment, in case of failure.
    “And it is distinctly understood that no additional payment is to be demanded or paid for the material, or for placing or removing the weighting stones above provided for to be placed on the structure to produce settling.
    “Provided, however, that in case the party of the second part shall, at any time, be of opinion that this contract is not duly complied with by the party of the first part, or that it is not in due progress of execution, or that the said party of the first part is irregular or negligent, in such case, he, the said party of the second part, shall be authorized to dec] are this contract forfeited, and therefore the same shall become null, and the party of the first part shall have no appeal from the opinion and decision aforesaid, and the right to except to or question the same in any place or under any circumstances whatever, is hereby released by the party of the first part; but the party of the first part shall remain liable to the party of the second part for the damages occasioned to him by the said non-compliance, irregularity, or negligence.
    “And it is further stipulated and agreed that no member of Congress shall be admitted t’o any share or part of this contract or agreement, or to any benefit to arise therefrom; and this contract shall be, in all its parts, subject to the terms and requisitions of an act of Congress passed on the twenty-first day of April, A. D. 1808, entitled ‘An act concerning public contracts.’
    “And this contract is also expressly understood to be subject-to the terms and conditions of the joint resolution of Congress approved April 15, 1852, containing a proviso in the following terms, viz: ‘Provided nothing herein contained shall be so construed as to authorize any officer or agent of the United States to bind the United States by contract beyond the amount appropriated by Congress, or to sanction any such contract heretofore made.’
    “And it is further understood and agreed that no light-keeper, superintendent, or inspector of lights, engineer, officer, nor any other person connected with or engaged in the Light-House Establishment Service, shall be allowed to contract for labor or materials, nor be interested in this contract, nor to any benefit to arise therefrom.
    “Provided, also, that it is expressly understood and agreed that this contract, or any part thereof, shall not be sublet nor assigned; but that it shall be well and truly carried out and fulfilled in good faith by the above-recited party of the first part, and that payment on account thereof shall be made to the aforesaid party of the. first part, his heirs, executors, or administrators, or to such person as he may lawfully authorize by power of attorney to receive the’ same.
    “And provided further, that this contract shall not be binding upon the United States until it shall have been approved.
    “And for the true and faithful performance of all and singular the covenants, articles, and agreements hereinbefore particulaly set forth, the subscribers hereunto bind themselves, jointly and. severally, their and each of their successors, heirs, executors, and administrators.
    “Thus covenanted, made, and agreed by the parties this 8th day of September, A. D. 1874, as witness their hands and seals.
    “JAMES M. Andrews, [seal.
    “W. F. Raynolds, [seal.’
    
      " Lt. Col. of JSngrs., Lt. Ho. Bngr., 4th List.
    
    “Signed, sealed, and delivered in presence of—
    “G-. Gaston Smith.
    “James McCall.
    “(Endorsed:) Enel. 62 4th Eng. U. S.Light-House Establishment. Contract between James M. Andrews — entered CGI— and the U. S. of America, dated Sept. 8, 1874, Cross Ledge Shoal, stone foundation, pier, and superstructure. Approved, Joseph Henry, Chn. L. H. Board.”
    “ Specifications for pier of foundation for light-house on Gross Ledge Shoal, Lelaioare Bay-.
    
    “The pier will be of stone, hexagonal in form, with vertical sides, resting on small broken stones, protected by riprap, and brought to a level at the surface of the water. The surface of the riprap to the depth of five feet below low water to be protected by a pavement of large flat stones, the upper two courses of the pier will project so as to form a cornice and extend inwards to form the lower portion of the walls of cellar of keeper’s dwelling.
    “The foundation will consist of an annular mass of riprap. The interior diameter to be fifty feet. The superior slope, to the depth of five feet from the surface of low water, to be one upon three, from that depth to the bottom one upon six. The stones in the riprap to weigh one hundred and fifty pounds and upwards. The interior of this ring of ripraps will be filled with broken stones, none of which shall exceed ten pounds in weight, brought to a level at the surface of low water. The superior surface of that part of the riprap having a slope of one upon three, or to the depth of five feet, shall be covered with a pavement of large flat stones, at least one foot in thickness, and each having a superficial area of not less than thirty square feet, carefully lain, so as to have no openings between stones greater than three inches or projecting points for the ice to rest upon.
    “ The pier will be hexagonal. The interior diameter forty feet, with vertical sides, to the height of seventeen feet from the surface of low water. The exterior of the pier shall be of granite blocks laid in courses of not less than two feet rise, hammer dressed, so as to give good beds and joints. Alternate headers and stretchers, as shown on drawing, all carefully lain in good cement mortar. The interior, or backing, shall consist of large flat stones, weighing two tons and upwards, carefully placed, with good beds well filled in and lain in good cement mortar. The whole to form a compact mass, well bonded, and laid in a workmanlike manner.
    “ Two capping courses, each of two feet rise, shall be placed on the vertical pier. The first capping course shall project one foot, and the second two feet from the vertical face of the pier. These capping courses shall extend inwards, so as to form the lower portion of the walls of the keeper’s dwelling, aS shown on •drawings, and the upper surface shall have a fall of one and a half inches from the cellar wall to the outer edge, to carry off the rain. The lower projecting corners of the capping courses shall be rounded to a circle of one foot radius. The capping courses shall be well dressed and be well laid in cement mortar, breaking joints as shown in drawing. Two openings, each two feet and a • half wide, shall be left in the projecting portion of the capping courses, to facilitate access to the pier. The sides of the opening shall be cut smooth. The total height of the pier, including ■capping courses, will be twenty-one feet above the surface of ■ordinary low-water mark.
    “ The government reserves the right to designate the depth of water in which the structure shall stand. On this will depend the quantity of broken stones and riprap required. Estimates of the cost of the structure will be made on the basis of this depth being ten feet; and bidders will state, distinctly, the price for the different kinds of stone laid and in place, including all claims for demurrage, delay on account of weather, or any other causes whatsoever. Bids must be for the entire work, and the contract will be awarded to the lowest responsible bidder, estimating quantities as per drawings. Bidders must state the dates at which they will be prepared to commence, and will agree to finish the work, and be prepared to ■enter into contracts with good and sufficient securities, as prescribed in the form of bids, for the completion of the work; and a penalty of fifty dollars per day will be imposed for each and every day of failure beyond the time specified in the bid.
    “The government reserves the right to increase or diminish the quantities of either or any of the kinds of stone or work, and payment will be made for the amount of each furnished.
    “The quality of the stone furnished must be of the best kind to resist the action of the elements, and must be approved by the authorized agent of the Light-House Board. No advantage to be taken of any omission of information in the foregoing specifications, or in the drawings, as full explanations and detail drawings will be given to the contractor for any part of the work not, sufficiently shown or understood. ■
    “Payments will be made from time to time on estimates, and twenty per cent, will be reserved to secure the completion of the contract, which will be forfeited in case of failure. The Government reserves tbe right to stop the wort at any time in case' the appropriation for the same is not sufficient to complete it.
    
      Mr John 8 Derby for the claimant.
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants.
   Drake, Ch. J.,

delivered the opinion of the court:

The claimant entered into a contract with the defendants to furnish all the material, outfit, implements, tools, appliances, and labor required for the erection of a stone pier foundation of a light-house on Cross Ledge Shoal, Delaware Bay; and to erect and deliver the same to the United States, fully completed, and conforming in every particular to the stipulations and conditions specified in the contract, and to the specifications and drawings thereto annexed. In those specifications the government' reserved the right to designate the depth of water in which the structure should stand; as upon that would depend the quantity of broten stone and riprap required.

When the contract was entered into, there had been indicated on a map of the Shoal which the engineer of the light-house district had caused to be made, the location of the proposed light-house; but there was no mark made on the Shoal itself to-indicate the exact spot for the light-house, until after the contract was signed.

The claimant rests his claim for damages upon the allegation that the officers of the government did not seasonably locate the site of the light-house, but unreasonably neglected and delayed to designate the saíne; by reason of which delay the claimant avers that he was subjected to great expense and loss.

The facts as found by the court do not sustain this claim.

True, the contract was signed on the 8th of September, 1874, and it was not until the 20th of October following that the government officers caused a pile to be driven into the Shoal to mark the site of the light-house; but it is not found that the claimant was ready before or on that day to proceed with work under the contract. On the contrary, it is found that though, before the 20th of October, one or more schooners of the claimant had arrived from the State of Maine with stone for the work, yet they could not be unloaded without the help of two working sloops, which were intended to lie alongside of the schooners, next to the site of the light-house, and by steam machinery hoist the stone out of the schooners, and over the decks of the sloops, and drop it upon the site. Those working sloops did not arrive in Delaware Bay till the night of October 24. There was, therefore, no point of time before the 25th of that month that the claimant was in a situation to begin the work he had undertaken to do.

On the second day after the arrival of the sloops in Delaware Bay they were towed to the Shoal; and the claimant and certain officers of the government went with them to the site of the light-house designated by the pile, where they found only 6 feet of water. The claimant then requested that the site might be located in deeper water, and the officers changed it to a spot where the depth was 9 feet; and there the sloops were unloaded of the stone they contained; and the cargoes of the schooners were all afterwards unloaded there with the aid of the sloops.

In our opinion, these facts do not show any unreasonable or even unnecessary delay on the part of the government officers in fixing the site of the light-house.

But had there been any such delay, the claimant could not demand damages therefor, since he made no complaint at the time; nor did he make any demand or request for a speedier location of the site; nor did he express any objection to the location, except that which had reference to the depth of the water; and that objection was promptly yielded to by the government officers by the selection of another site. On the contrary, he went straight on with the contract work, and, as it turned out, furnished four times the quantity of stone originally estimated for; and was paid the contract price for all that he furnished; and so the transaction was closed, without objection or question on his part.

As was held by this court in Svnft and the Niles Works Case (14 C. Cls. R., 235), whatever claim a contractor may have for damages on account of delays in the performance of the contract, caused by the acts of the other party, is a part of the contractor’s whole claim on account of the contract work, and should be asserted before he receives and finally receipts in full for the whole contract price. He cannot settle and receive the contract price and then set up a separate claim for damages.

And in Francis v. The United States (96 U. S. R., 254) the Supreme Court of the United States held that such acts oh the part of the contractor are sufficient to prove an accord and satisfaction.

In the light of these rulings there is no ground for this action, and the petition is therefore dismissed.  