
    GIBBONS’S CASE.
    Francis A. Gibbons v. The United States.
    
      On the Proofs.
    
    
      Buildings at the Norfolk navy-yard are burnt. The officers remove the injured parts of the walls. What is left standing is supposed to he fit to huild •upon. Bids are invited and specifications shown, which say, “walls now standing that wore uninjured by the fire will remain and be carried up.” The claimant makes a hid and is awarded the contract. After he begins work, the commanding officer orders that one-third of the remaining portion of the walls he removed and new work substituted.
    
    
      I.In construing a disputed clause of a contract, three tilings sliould "be considered: (1) The circumstances in the light of which the contract was made; (2) the general purpose of the contract and of other provisions directly or indirectly affecting the clause under consideration ; (3) the language and effect of the clause itself.
    II. Where a building contract is ambiguous as to which party shall be responsible for the fitness of old walls partially destroyed by fire, the condition in which they were delivered to the builder is a fact of interpretation; if turned over to him as the fire left them, it indicates that he is to be responsible ; if razeed by the owner anterior to the contract, it indicates that he assumed responsibility for the portion which he himself retained.
    III. Where a builder agrees to build a house and have it “fit for use and occupation,” he is responsible for everything; but where he agrees to complete a partially-existing building, his responsibility for the fitness of old walls which he did not contribute must depend upon a specific provision to that effect. '
    IV. A clause in a building contract, “ The foundations and the brick walls now standing that were uninjured by the fire will remain and he carried up to the height designated on the plan by new work,” is a doubtful expression which should be construed against the party who prepared the contract and used the language.
    V,Where a change in contract work is ordered amid circumstances which imply or warrant the belief that no additional expense will result from the change, it is the duty of the contractor to notify the other party that he cannot make the substitution for the contract price. But where a change is ordered which must necessarily cause increased expense, no such notice is necessary.
    VI.Where a builder’s claim for extra work is really a claim for extra expense thrown upon him by the owner, or where it cannot be determined what is extra work until the contract work be done, the statute of limitations will not begin to run against the demand for extra work so long as the contract remains executory.
    VII.Where a building-contract contemplates extra work, and provides that payment shall be by oertain specific installments, and then that the balance which may become due shall not be paid until the entire work be completed, no action will lie for the extra work while the contract remains executory, nor will the statute of limitations begin .to run.
    
      The Reporters’ statement of the case:
    The contract in suit, dated May 22, 186.6, contained, among others, the following provisions:
    “And it is further mutually agreed by the parties to this contract, that all the materials furnished, and work performed, shall be of the best quality, and subject to tbe inspection, approval, or rejection of tbe superintendent, to be appointed on tbe part of tbe United States, wbo shall have full power to reject any materials or workmanship which, in his opinion, are-not of the best quality; and all rejected materials shall be immediately removed from the premises, and all rejected work shall be immediately taken down and properly rebuilt, or otherwise made satisfactory; old materials from, the building, if suitable, may be used in reconstruction.
    “The bureau shall have the power of annulling this contract,, without loss or damage to the government, in case the contractor shall fail to perform all or any of the covenants herein provided on his part.
    * . * * * # * *
    “It is distinctly understood that the true intent and meaning of this contract is, that the parties of the first part are to furnish all the materials and perform all the work necessary to render the entrance-buildings Nos. 19 and 37, and the carpenters’ shop at the Norfolk navy-yard, perfect and complete in every respect, according to the plans and specifications annexed, whether expressed in the same or not, and no extra charge for modifications will be allowed unless agreed upon by the parties, and no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity. *******
    
    
      ■ “And it is further agreed and understood, that all the articles embraced in the schedule of materials hereto annexed are to be furnished the parties of the first part by the party of the second part, in addition to the considerations hereinbefore named, to be by the parties of the first part used in the reconstruction of the several buildings hereinbefore named.
    * * * # * * *
    
    The following are the facts as found by the court:
    I. On the 22 d day of May, 1866, the claimant and the defendants entered into the contract made in pursuance of an advertisement for proposals bearing date April 17, 1866, annexed to said petition. Attached to and forming part of the contract were the following specifications:
    
      “Specifications for entrance-builcMng.
    
    “U. S. Navy Yard, Norfolk,
    “January, 1866.
    “ The dimensions and projections, the sizes and forms of the different parts of the building, the apartments, height of stories, pitch of roof, &o., are clearly shown in the drawings.
    “The foundations and the brick walls now standing that were uninjured by the fire will remain and be carried up to the height designated on the plan by new work.
    
      
      u The stone masonry of the entrance and archway is to be cut range-work, brown sandstone and granite forming the fagade, the former to be cut andrubbed, the latter to be cut and dressed with eight peon hammers. The granite sills and lintels in all the building {i. e., the east and west wing and the entrance proper, designated on yard plan by the numbers 37 and 19) are to be cut in the same manner. The fagade to be the best quality range-ashler, well bonded.
    “ The coping and cornice as per plan. The entrance-way to be repaired with granite throughout, as directed by the civil engineer.
    “ The brick mansonry to be of the same character as that of the old work; the walls to be built of the best hand-made hard red brick, laid in the best lime-mortar and well bonded. ##**#*#
    “ Theroof is to be framed with tie-beams formed of two pieces of timber 3| by 12 inches, well packed and bolted, taking care to break joints in splicing, to be held up by lf-inch round-iron rods reaching from the junction of the strain-beam and principal rafters, which are to support the purlines and jack-rafters, the whole to be sheathed with sound inch No. 3 white-pine boards and slated as per plan with best slate 11 x 12. The jack-rafters to be in one piece, reaching from eaves to ridge. All the bents to be braced and bolted as per plan. ' Solid tie-beams may be substituted, reaching entirely across the building, at the option of the contractor, in lieu of the packed beams described, provided they are of the best white-pine timber 8 x 12, free from knots, wind-shakes, or defects calculated to impair their strength or durability. The ridge and valleys to be covered with á-pound sheet-lead 16 inches wide.
    
      “ It is considered that in these specifications and the drawings'referred to everything is embraced that may be necessary to complete the buildings aforesaid, but if, after the work is under way, anything shall appear to have been omitted in either or both, accidentally, which shall be actually necessary and usual in completing such buildings, the contractor is not to take advantage of such omission, but proceed in good faith to com- ‘ píete the building according to their true spirit and meaning. The work to be supervised and inspected by the civil engineer of the yard, under the direction of the commandant.”
    II. The specifications annexed to and forming part of the contract had been prepared by the defendants’ engineer about the time of their date. They were shown by him to the claimant pfior to his entering into the contract.
    III. At the outbreak of the late rebellion these buildings mentioned in the contract were burnt, but portions of the walls were left standing. Prior to the proposals for the work, an inspection of these fragmentary walls so left standing bad been made by the officers of the government in charge of the works,, and those portions of them deemed unfit to form a part of the permanent structure were taken down, and those parts which were considered uninjured and proper to be built upon were left standing for that purpose. After the agents of the government had prepared the walls, retaining the portion which the civil engineer of the navy-yard in charge of the work supposed might be used in the new structure, the Chief of the Bureau of Yards and Docks invited the examination of bidders by the advertisement annexed to the petition, and the claimant, by his agent, visited and saw the walls so standing. At the time the claimant, by his agent, so visited theyard he was shown the walls by a quarterman acting under the civil engineerof the yard. The claimant’s agent asked if those walls were to stand. The quarter-, man replied that they were, so far as he knew; and that Mr. Williams, the master mason of the yard, and Mr. Worrall, the civil engineer of the yard, had said that they were to stand. (But it does not appear that the quarterman was authorized to make such representations to the claimant’s agent.) And the civil engineer likewise represented to the claimant’s agent that the portion of the walls then standing would remain and be used in the new work. After the claimant’s agent had so visited the yard and been shown the walls, the claimant made his bid.
    IY. After the claimant had begun work under his contract, it was discovered that a portion of the walls still standing had. been so injured by the fire as to be unfit for building a superstructure thereon. Commodore Hitchcock, commanding the naval station, thereupon ordered that the walls be further razeed, and, pursuant to his orders, about one-third of the portion then standing was taken down by the claimant before proceeding to build. The effect of this second razeeing was that the claimant had to substitute new brick work for that so removed; and the additional cost of construction thereby thrown upon him was the sum of $4,050; and for it he has received no remuneration additional to the price named or consideration expressed in the contract. It does not appear that at the time Commodore Hitchcock ordered the walls to be further razeed the defendants’ officers made any pretense or claim that the increased expense was to be borne by the claimant as work required by tbe contract; nor does it appear that tbe claimant made any objection to tbe taking down of tbe walls as ordered by Commodore Hitchcock.
    Y. Tbe brick work and walls described in tbe preceding finding were completed before tbe 1st October, 1866. Tbe buildings, comprising all tbe contract work of tbe claimant, were completed by tbe 26tb November, 1866, except a few items of work, amounting in value to $312.25. These remained unperformed by him on tbe 7th December, 1866. Subsequent to that date tbe estimated value of these items was withheld by tbe defendants’ officers with tbe concurrence of tbe claimant from tbe final payment in tbe manner following:
    In tbe latter part of November, 1866, tbe claimant reported to tbe defendants’ engineer in charge of tbe work that be bad completed bis contract work and was ready to turn over tbe buildings to tbe authorities of tbe navy-yard. On tbe 26th November tbe engineer reported this fact to tbe commandant, and specified at tbe same time a number of defects in tbe work and departures from tbe contract. On tbe 27th November tbe commandant referred tbe subject to a board of survey by tbe following order:
    “Navy-Yard, NORFOLK, Va., Nov. 27,iM808.
    “ GENTLEMEN: You will carefully survey tbe building under contract of reconstruction by Mr. F. A. Gibbons, and state whether tbe conditions of tbe contract have been fully complied with. You will also examine tbe bills of charges for extra work, and state whether you consider tbe work extra under a fair construction of tbe contract,1 and, if so, whether tbe charges are fair. You will also examine such work as is called for by tbe contract, and omitted by permission or omission, and make offsets of it against work not named in tbe specifications of tbe contract. Tbe contract, together with tbe civil engineer’s report and claims & charges made by Mr. Gibbons, are herewith enclosed.
    “ Resp’y,
    “ S. C. Rowan,
    uOomm’cPt.
    
      “ Captain O. R. P. Rodgers, U. 8. Navy.
    
    “ Oonstruct’g Eng’r War. R. Singleton,
    
      uNavy-Tard, Norfolk, VaP
    
    On tbe 28th November, tbe board of survey, without stating whether the conditions of tbe contract bad been fully complied with, reported tbe condition in which they found tbe buildings, specifying certain defects and imperfections, which report the commandant forwarded to the Chief of the Bureau of Yards and Docks of the Navy Department “for his instructions on the different points set forth” in the report. On the 30th November, the Chief of the Bureau of Yards and Docks approved a voucher which authorized the payment of $5,000 to the claimant upon the fourth or final installment of his contract, but which directed that “ The final payment and third reservation are withheld until the buildings are inspected and formally received.” No formal acceptance of the buildings by the defendants is shown; but on the 18th December,' 1866, the engineer in charge made out a voucher for final payment, which was duly certified, approved, and paid, and is (with the certificate of the engineer and receipt of the claimant) in the following terms:
    “ Navy-Yaed, Nokfolk, Dec. 18,1866.
    “ U. 8. Navy Department, per U. 8. navy-yard, Norfolk, to F. A.
    
    
      Gibbons, Dr.
    
    “ Bureau Yards and Docks. Appro.: .“Improvements.”
    “ For material and labor delivered and performed in rebuilding entrance buildings Nos. 19 and 37 at the Norfolk (Ya.) navy-yard (exclusive of material furnished by the government), being the balance due of the 4th or final payment..$7,207 95
    “ Less:
    “1,250 bricks furnished by gov’t, ® $21.00. .30 00
    “Sftfo tons bitum’s coal “ 10.62..31 12
    “1,925 lbs. scrap wrought iron, “ 2-J-cts. .48 12
    - 109 24
    “Balance due... $7,098 71
    “I hereby certify that the entire material and labor contracted for by F. A. Gibbons on the above building have been delivered and performed, except $312.25, which is deducted from bill of extras of this date.
    “ Wn. B. Singleton,
    “ Const. Fny'r.
    
    “Approved 24Dec., 1866.
    “Jos. SMITH,
    
      «GhfofBu.
    
    “Approved 20th Dec., 1866, for seven thousand & ninety-eight dollars seventy-one cents, and ordered to be paid by paymaster.
    “S. C. Rowan, Oom’d’i.
    
      “ Received, Washington, D. 0., Dee. 31, 1866, of C. C. Jackson, paymaster U. S. Navy, the sum of seven thousand ninety-eight dollars and seventy-one cents, in full of the above bill. $7,098.71.]
    ■ “ Francis A. Gibbons.”
    VI. At various times prior to the 28th October, 1866, the claimant, at the request of the defendants’ officers, furnished material and performed labor additional to that required by the contract. On the 29th November, 1866, he wrote to the Chief of the Bureau of Yards and Docks, inclosing his account of such extras, amounting to $4,688.09. On the 6th December, the account was referred to a board of officers. On the 11th December the board reported, allowing some items in full, reducing some in amount, and rejecting others in toto. The items so allowed by the board amounted to $2,394.89, instead of $4,-688.09 demanded by the claimant. On the same day the claimant served upon the commandant of the navy-yard a paper purporting to be a protest against the action of the board. On the 5th January, 1867, the commandant approved a voucher authorizing the payment of the items and amount allowed by the board. On the 25th January, 1867, the claimant accepted payment of the amount allowed, and-receipted therefor in full. All of the foregoing papers were in the words following: 1
    “ Navy-Yard, Norfolk, Va., Wov. 29th, 1S66.
    “ADMIRAL: Enclosed you will receive account of materials furnished and extra work done by me to complete the east and. west wing and entrance proper, denominated entrance-buildings of navy-yard, at Norfolk, Va., under contract made with your department, dated 23rd May, 1866.
    “ I deem it proper to say that the engineer and commandant in charge of the construction of said buildings was duly notified touching the principal items charged, by letters on file among the paper in the case. The work was subsequently ordered by the commandant and civil engineer and executed. The value of the items charged were made by two disinterested mechanics, and certified to by the engineer in charge at the time as correct.
    “ Very respecting, yours,
    “Francis A. Gibbons.
    “ To Admiral Joseph Smith,
    
      “Bureau Yards & Bodes, Washington, D. G.”
    
    
      “ Navy-Yard, Norfolk, Ya., Oct. 28,1866.
    
    “Account of extra work on entrance-building:
    (5) five chimneys, at $20 each. $100 00
    (3) three side doors, at $30 each.. 90 00
    (1) one flight of stairs.:. 60 00
    (70) seventy yards of plastering in water-closets and old buildings. 31 50
    (23) twenty-three transoms, at $6.00. 138 00
    (1) one doorway complete. 30 00
    Putting up partitions in water-closets. 10 00
    Ceiling joist in chapel. 25 00
    Stripping top of partition in passage. 15 00
    (10) ten stove-flues, at 50 cts. each. 5 00
    Work in paymaster's office. 5 00
    Moulding washboards in passage. 5 00
    Washboards in water-closets. 5 00
    (3) hatchways, at $10 each, ordered by Col. Sanger. 30 00
    250 cubic feet white-oak timber, at $40 pr. .. 100 00
    1,680 feet B. Y. M. pine, ® $50 per M. 84 00
    1,024 pounds bolt-iron, © 9 cts. per lb... 92 16
    Labor on same. 772 48
    “ Extra work on west-end entrance:
    1,048 yards plastering, © 45 cts. per yd. 516 60
    Trimming (22) twenty-two windows, © $10. 220 00
    “ (23) “ three doors, © $17. 161 00
    432 lineal feet washboarding, © 20 cts. per foot- 86 40
    The above has been certified to by civil engineer of yard.
    940' pounds lead-flashing around fourteen dormer windows, cupola, © 13 ct'.. 122 20
    Labor on same.i..'... 100 00
    Yeranda on south fronts... 300 00
    Old materials of marine barracks taken by government .. 1,200 00
    235 feet six (6) inch diameter copper water-pipes from west-end wing, ordered by Mr. Warrel, © $1.25 per foot. 293 75
    60 feet ashlar, ® $1.50 per foot. 90 00
    $4, 688 09
    “ The above account is in full, except a small bill of iron and nuts not drawn from the naval store, which has been deducted in the estimate of material advanced.
    “N. B. — The above iron was unlit for the use intended.
    “ Francis A. Gibbons.”
    
      “Navy-Yard, Yore ole, Ya., 6th DecV, 1866.
    “ Gentlemen : Yon are hereby constituted a ‘ board ’ for the purpose of exam’ing the contract & specifications made between F. A. Gibbons, on the one part, & Bureau of Yards & Docks, on the other part, & take into consideration the claims of the contractor, Gibbons, for extra work of all sorts, & report, in duplicate, what are extras, & what should be paid for them.
    “ Such work as you consider extra, upon a fair interpretation of the contract & specifications, you are at liberty to summon such experts in the yard as will aid you in fixing the amount of award for such extras.
    “ The contractor will be duly notified, that he may be present during’ the investigation. The contract and specifications, together with the claims of Mr. Gibbons, and other papers connected with the transaction, are herewith enclosed.
    “S. C. Rowan, Commandant.
    
    “ Bespectfully,
    “ Commander R. T. Renshaw, U. 8. Navy.
    
    “ Paymaster G. E. Thornton, U. 8. Navy.
    
    “ Constructing Engineer Wm. R. Singleton.
    “ Foreman of Carpenters G. R. Botisii.
    “Navy-Yard, Norfolk, Ya.”
    
    “Navigation Oeeice,
    “ Navy- Yard, Norfolk, Ya., 11 th Dec., 1866.
    “ Rear-Admiral S. C. Rowan, U. S. N.,
    “ Comd’g Naval Station, Norfolk, Ya.:
    
    “ Rear-Admiral : After consulting the most reliable and expert authorities with regard to the claim of Contractor F. A. Gibbons on tbie Bureau of Yards and Docks for extra work on the main-entrance building of this yard, we have, agreeable to your order of the 6th inst., the honor to make the following report:
    “1st. The claim for $349.50, viz :
    (3) five chimneys, at $20 each. $100 —
    (3) three side doors, at $30 “ . 90 —
    (1) one flight of stairs. 60 —
    (70) seventy yards plastering in water-closets of old building. 31 50
    (23) twenty-three transoms, at $6 each.•. 138 00
    (1) one doorway complete. 30 00
    Putting up partitions in water-closets. 10 00
    Ceiling joints in chapel. 25 00
    Stripping top of partition in passage. 15 00
    (10) ten stove-flues, at 50 cts. each. 5 00
    
      Work in paymaster’s office.:. o? o o
    Moulding washboards in water-closets. Ol o o
    (3) three hatchways, at $ 10 each...... oo O o o
    549 50
    is, in the opinion of the board, a fair claim, and recommend it to be allowed. ■
    “2nd. The claim for $1,048.64, viz:
    250 feet white-oak timber, at 40 cts. per foot. $100 —
    1,680 feet B. M. Y. pine, at $50 per M. 84
    1,024 pounds of bolt-iron, at 9 cts. per lb.. 92 16
    labor on same. 772 48
    1,048 64
    is not recommended to be allowed, and the board consider that $567.64 (five hundred and sixty-seven dollars and sixty-four cents) is a fair compensation for the same.
    “3rd. Theclaimfor extra work on west-end entrance, $984, viz;
    1,148 yards of plastering, at 45 cts. per yard. $516 60
    Trimming (22) twenty-two windows, at $10. $220 00
    (23) twenty-three doors, at $7 per door. 161 00
    432 lineal feet of washboarding, at 20 cents per foot.. 86 40
    984 00
    is recommended to be allowed.
    “ 4th. The claim for $522.20, viz:
    940 pounds lead-flashing around (14) dormer windows and cupola... $122 20
    labor on same....•- 100 00
    Yaranda on south front.. 300 00
    $522 20
    is considered by the board to be a part of the contract, and not recommended to be allowed.
    “ 5th. The claim for $1,200, for material of old barracks, is not recommended to be allowed, as it was not a. part of the old entrance-building.
    “6th. The claim for $293.75 (two hundred and ninety-three dollars and seventy-five cents) for 235 feet six inches (6) diameter copper water-pipes from west wing, ordered by Mr. Worrell, at $1.75 per foot, is recommended to be allowed.
    “ 7th. The claim for $90.00, for 60 feet ashlar, at $1.50 per foot, is not recommended to be allowed.
    “ In conclusion, the board have to state that they consider $2,394.89 (two thousand three hundred and ninety-four dollars and eighty-nine cents) to be a just and fair compensation to Contractor F. A. Gibbons for tbe extra work clone on tlie main-entrance building at this yard.
    “Very respectfully,*your ob’d’t serv’ts,
    “B. T. Benshaw,
    “ Commander, TT. 8. N.
    
    “ G. E. Thornton,
    
      “Paymaster, TT. 8. TT.
    
    “¥l. B. SlNG-LETON,
    “ Constructing Engineer..
    
    “Geo. B. Botjsh,
    
      li Foreman of Carpenters.
    
    “Approved.
    “S. C. Bowan, CommhVV’
    “Norfolk, Dec. 11,18CG.
    “Admiral S. 0. Bowan,
    
      “Commandant TTorfollc Tfavy-Tard:
    
    “ Sir ; The undersigned, acting on. and in behalf of the contractor, H. A. Gibbons, jr., hereby protests against the action and desisson of a board of survey ordered by the Bureau of Yards & Docks, the members thereof^ being appointed by you, which-is to determine the amount due me for constructing the entrance-building No. 19, 37, & gaiíe-way: also, carpenter-shop at the dry-dock, instead of repairing the same according to contract dated 22 May, 1866, for the following reasons, to wit:
    “First. The engineer who made the plans & specifications has estimated the stone ped’ment and a bill of small items in the Sept, and Oct. estimates by order of the Bureau of Yards & Docks, which bills remain unpaid.
    “Second. The brick walls buihfby me, which was not within my contract as shown, can only be properly estimated by the engineer who made the drawing and specifications.
    “Thirdly. In composing a board of survey, the contractor is Entitled to a choice of a portion of said board, according to justice, all of which has been denied me this day by you. My nessesities require money to pay for labor & material, and therefore will be compelled to take what is & has been paid, under protest.
    “F. A. Gibbons, Sen.,
    “ For F. A. Gib’ons, Jr.
    “Served by B. B. Johnson, ‘
    “ Norfolk, Dec. 11,1866.
    
      case. "NAv~-YARD, NoirFoLIc, Dee. 18,
    1866. "U. S. icavy Department, per U. S. navy-yar1, Horfolk, to .F~ A. Gibbons,
    Dr. "Bureau Yards & Docks. Appr'n: .`
    Improvements.' "For amount of `extra work' in rebuilding `entrance build- lug' Nos. 19 & 37, as per report of board of officcrs, com vened by order of Rear-Admiral S. 0. Bowan, dated Dec. 6,
    1866. 5 chimneys, `~ $20.00 ea . $100
    00 ~O.O() ~,. 90
    00 1 flight of sthirs . .. 60
    00 70y'ds of plastering in water-closets of old build- inn, •
    3100 23 ti~ansoms `~i ~6.OQ ea. 138
    00 1 doorway, ~omp1ete - 30
    00 Puttin~ up iiartition ill water-olosets . 10
    00 Oeilin~iofstin citaDel . 25
    00 Strnmii tOT) of na~tition in Dassaae 15
    00 10 StOV~flUCS, ea. ~rork
    on paymaster's office . ~ 00
    Mou1clin~wash-board~ in water-closets . 5 00
    3 liatoh~avs. @ ~1.OO ea. 30 00
    250 f't W. 0. timber, 1,680 f't B. M. Y. pine, 1,024 lbs. bolt-iron and labor on bits in rigging-loft... 567 64
    1,148 y'ds plastering, 60 Trimming 22 windo~s, `W
    $10.00 ea. 220 00 23 doors,~ . .
    00 432 1ine~I f't washboarding, @
    20c. p'r £`t 86 40 235 f't copper water-pipes, 6
    in. dia., from west wing, `~ 1.25 p'r $2, 389 39 1,826 lb. ~to 1~- rotrndiron,
    retainedin N. store.
    $86 72 2~1ironi~uts,~1Oc.ea.,2in., " " " " 28 10 Si
    " " " U 64 US 46
    Total . $2, 50785 Less: O~iin~' of court-room
    . $132
    00 Fasteiiings for wiudow~
    .
    . 21 00 La,bor for same.
    14 00 Bolts for windows . 10
    00 Door-knobs.. • 24 00
    Bolts for windows . 10 00
    Door-knobs.. � 24 00
    
      Labor on same.„ $3 25
    Fastenings to windows in court-room. 3 00
    Painting stairway. 5 00
    Putting up clock. 100 00
    - $312 25
    Balance due ... .$2,195 60
    “ I hereby certify that the above is a true account of the allowances for work, and that this estimate is made in conformity with instructions from the Bureau of Yards & Docks.
    “Wl. R. SlNGEETON,
    
      “ Const7g Ung7r.
    
    “Approved 5th Jan’y, 1867, for twenty-one hundred & ninety-five dollars sixty cents, and ordered to be paid by paymaster.
    “S. C. Rowan, Com’d’t.
    
    “Received, Washington, D. C., January 25th, 1867, of O. O. Jackson, paymaster U. S. Navy, the sum of twenty-one hundred & ninety-five dollars and sixty cents, in full of the above bill.
    $2,195.60.]
    “Francis A. Gibbons.”
    VII. Under the contract and specifications the claimant had the option of putting into the building solid tie beams or packed beams as he might elect; and the defendants furnished to the •claimant certain material for packed beams as a part of the consideration of the contract. In the progress of the work, the defendants’ engineer decided that the material so furnished by the defendants was defective and unfit for the purpose, and he required the claimant to put in solid beams. This, requirement of the engineer threw upon the claimant the additional cost of $362.79. This item was not embraced by the bill of extras set forth in the preceding finding. The work was done and material furnished prior to the 6th December, 1866.
    VIII. In the progress of the work, the claimant was required by the defendants’ engineer to put in twelve brown-stone capitals instead of brick-work. These capitals threw upon the claimant the additional expense of $621.48. They were not required by the contract and specifications, and were not embraced in the bill of extras set forth in the sixth finding. They were furnished prior to the 7th December, 1866.
    IX. In the progress of the work, the claimant was required by the defendants’ engineer to put under the first floor certain supporting or foundation walls, about three feet in height, running tbe length of the building. The value of this brick-work was $18 per thousand bricks, but the claimant has not produced evidence to show the' quantity of wall thus constructed. These supporting walls were not required by the contract, nor embraced in the bill of extras set forth in the sixth finding. They were furnished and completed prior to the 7th December, 1866.
    X. In the progress of the work the claimant was required by the defendants’ engineer to erect a portico on the southern front of the main building. The value of this portico was $300. It was not required by the contract, but was embraced in the bill of extras set forth in the sixth finding. It was completed prior to the 6th December, 1866.
    And upon the foregoing findings of fact the court decided as conclusions of law:
    The claimant should recover $4,050 for the additional work performed by him upon the walls of the building, as set forth in finding IV. And the claimant should further recover $362.79 for the extra expense cast upon him by being required to put in the building solid tie-beams, as set forth in finding VII. And the claimant should further recover. $621.48 for the extra expense cast upon him by being required to put in the building brown-stone capitals, as set forth in finding VIII. And as to the other demands of the claimant, his petition should be dismissed.
    
      Mr. Hnoch Totten for the claimant :
    The last payment was made to the plaintiff on the 25th day of January, 1867, and at the time of that payment he caused.to be presented to and left with the officer- of the government making the payment a written protest to save his right to sue for and recover the amount due therein for these materials and the labor not included within the terms of the contract, A protest is effectual to prevent an estoppel, by a receipt in full.. (Justice v. United, States, 14 Wall., 535.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    Claimant, by presenting his bill on the 29th November, 1866, “in full” for extra work and materials, and by accepting on the 25th' January, 1867, the amount allowed by the board who examined the bill, his receipt being in full of the bill as reported by said board, estopped himself in the present action to claim for any extra work or material furnished prior to November 29, 1806. (Child, Pratt & Pox's Case, 12 Wall., 232.) Nor does his protest, even if he made one, affect the character of the payment to him nor detract from its force. (Savage's Case, 92 U. S., 382; McDaniels v. Lapham, 21 Yt., 222; McDaniels v. The Bank of Rutland, 29 Yt., 230; Croft v. Burnley,. El. Bl. & El., 1069.
    The whole evidence points to the conclusion that all the material and labor extra to the contract was furnished and each separate item of claim completed more than six years prior to the commencement of this action. The action being for materials and labor, outside of the contract, upon a building belonging to defendants and upon their soil, the liability of the defendants arose as fast as the material was furnished and the labor done. This liability in nowise depended upon the acceptance of the building nor the completion of the special contract. If the building had been destroyed by fire before the special contract was fully executed, their liability to pay for the extras furnished ■ before its destruction woxdd not have been affected thereby. Material furnished to ■ a building and work done thereon are not matters of account so as to postpone the running of the statute until the last item.
    “Prescription against the demands of tradesmen and artificers runs from the day of each article supplied or each piece of work being done; and a continuation of the supply or of work does not interrupt it.” (Pothier on Obligations, Evans, p, 419, margin 680; Angelí on Limitations, § 148; Peck v. United. States Mail Steamship Company, 5 Bosw., 226.)
    The brick walls claimed by plaintiff; to be extra were clearly within the terms of the contract, for he replaced none “that were uninjured' by the fire.”
   Nott, J.,

delivered the opinion of the court:

The first and most important question in this case is as to the construction that should be given to the second clause of the specifications, which is in these words: “ The foundations and the brick walls now standing that were uninjured by the fire will remain and be carried up to the height designated on the plan by new work?.

When it becomes the duty of a court to- ascertain the true construction which should be given to a disputed article of a contract, there are three things which ordinarily should be the subject of consideration: 1st, the circumstances, known to both parties, which preceded and attended the making of the contract in the light of which it should be interpreted; 2d, the general purpose of the contract and those specific provisions which directly or indirectly bear upon and affect the provision which is the subject of controversy; 3d, the language and effect of the clause or article to which a construction must be applied. We will consider these in their order.

The circumstances known to both parties which preceded and attended the making of this contract were these:

The old walls were in the possession and under the control of the defendants. It was to their interest that as much as possible of these old walls should be saved, yet that no imperfect portion should be retained. To a contractor it mattered not until he entered into a contract whether much or little should be utilized. If the former, there would be so much the less work for him to do; if the latter, he would be paid for doing so much the more; in either case, he could regulate his bid by the amount of old wall that was to enter into the new building. But it was vital to every contractor to know how much of the old walls woidd remain, and how much new work he must contribute. A superficial inspection would not tell the bidders what was the real condition of the walls. It was necessary that they be dismantled of the injured parts, if the contractors sending in proposals were to make close and accurate estimates ; otherwise every bidder would leave margin enough in his calculations to cover the unknown contingency, and the result might be that the government would- be allowed little or nothing for the old walls. Such being the conditions of the case, the officers of the government, instead of leaving the walls' as the fire left them, and turning them over to the contractor to be razeed by him to such extent as might be found necessary, pulled down what they deemed the imperfect portions, and apparently left only so much of them standing as was fit for the new superstructure. They next prepared the specifications afterward annexed to the contract, and then, handing the contractor a copy of these specifications on the one hand and showing him the razeed walls on the other, invited him to make proposals for erecting a superstructure.

These circumstances, so far as they go, point to an interpretation favorable to the claimant. “ The duty of the court is to ascertain not what the parties may have secretly intended as contradistinguished from what their words express, but what is the meaning of words they have used. It is merely a duty of interpretation, that is, to find out the true sense of the written words as the parties used them; and of construction, that is, when the true sense is ascertained, to subject the instrument in its operation to the established rules of law.” (1 Greenl. § 277, p. 323.) If the defendants had turned the old walls over to the contractor untouched at the time he entered into the contract, that would have been a significant, a controlling fact against him. If it was not their intention to save the uninj ured portion of the walls and reject the injured, why did they touch them ? If the contractor was to assume the risk of the old walls, what object had the defendants in apparently rejecting- and apparently retaining a portion before inviting his bid ? Somebody had to assume the risk of the old walls being fit to build upon. Responsibility for their fitness (in the absence of express words to the contrary) would naturally be assumed by the party who owned them, and controlled them, and put them into the contract, and who apparently had prepared them for the uses and purposes of the contract. It would be contrary to the ordinary dealings of men to infer, from such circumstances, that the party who did not own them or control them, who did not put them into the work as his contribution toward the new building, and who had not examined, tested, or prepared them for a new superstructure, was to assume and be responsible for their fitness.

• The other terms and provisions of the contract which have any bearing upon this point are not very significant, but, so far as they go, are likewise favorable to the claimant. In the first place, the contract, like the advertisement upon which it was founded, was not for rebuilding the edifice, but for “ repairs.” In the second place, the contract expressly throws “the risk and expense of all the materials and work” which the claimant was to “furnish” upon him, but does not in terms, if at all, throw upon him any risk as to the fitness of the walls furnished by the defendants. In the third place, the contract also expressly provides uthat all the materials furnished and work performed ” by tbe claimant “should he of the best quality and subject to the inspection, approval, or rejection” of the defendant’s superintendent. The old walls were neither material furnished nor work performed by the claimant, and there was no provision expressly authorizing their rejection by the party who furnished them. In the fourth place, the contract is not like that in Dermott v. Jones (2 Wall., 1), where the contractor agreed to build a house and have it “ fit for use and occupation” by a certain day. Here the contractor simply agreed to repair a partially existing building under the supervision of the other party’s officers and according to the plans and specifications annexed. In other words, his responsibility for the fitness of the old walls does not, if it exist, spring out of the general purpose or express covenants of the contract, but must be attributed entirely to the single clause of the specifications which has been quoted.

That clause of the specifications was prepared by the defendants before the .contract was made, and was shown to the claimant when he was estimating for the work. Upon the faith of it he made his bid. Its language is, “ The foundations and the brick walls now standimg that were uninjured by the fire will remain and be carried up to the height designated on the plan by new work.” It is manifest that this language needs some amplification to make its meaning clear. The defendants contend ip effect that it means [“ So much of] the foundations and the brick walls now standing [as subsequent examination may show] were uninjured by the fire will remain and.be carried up.” The claimant contends that the true construction is, The foundations and the brick walls now standing [being those portions'] that were uninjured by the fire will remain.”

As was held by the Supreme Court in Garrison Case (7 Wall., 688; 7 C. Cls. R., 78), “doubtful expressions should be construed most strongly against the party who uses the language.” This expression of this contract is “ doubtful,” because its meaning cannot be rendered certain without the interpolation of words (one way or the other) which the party who used the language neglected to employ. The defendants first razeed the burnt walls1 to their own liking by throwing off the supposed injured parts; then prepared these specifications; then gave them to the claimant to estimate upon; then made them a part of the contract without a word of amplification or a provision that should make their meaning clear and certain; and now seek to interpolate into them, in two distinct places, modifying words without which their ambiguous language does not bear the construction they give to it, and with which all responsibility concerning the matter in controversy will be shifted from themselves to a party who neither furnished the walls nor draughted the specifications.

For these doubtful acts and doubtful expressions the defendants are justly responsible. The old walls were their contribution toward the new building to save themselves the expense of so much new work; they were not put in for the benefit of the contractor; and it seems unreasonable to hold that he was to take the risk of the defendants’ material being fit for the purpose for which they intended it should be used. If the defendants withdrew this part of their material and made the contractor furnish other material of his own in its stead and do more work than he would otherwise have been required to do, the law will imply a contract on their part to pay for that which they ordered done.

For this reason it was not necessary that the contractor should object. If the defendants had ordered a change of the material which he had agreed to furnish, or in the work which he was bound to perform amid circumstances that might imply or warrant the belief that no additional expense would result from the change, it would have been his duty to notify them that he could not make the substitution for the contract-price. But if they had determined to abandon the old walls in toto, and to substitute entire new walls and entire new foundations, or if they had determined to withdraw the old lumber which they likewise had put into the contract as a portion of their contribution to the work, and directed new lumber to be substituted by the contractor, assuredly no notice would have been necessary on his part to tell them that the substitution must be at their cost and charge. The commanding officer of the naval station, Commodore Hitchcock, did not indeed order the entire walls to be obliterated, but he did order one-third of them to be removed. He was not the engineer in charge (termed by the contract “ the superintendent of the work”), who had power to reject the contractor’s materials; but he was the representative of the defendants, their highest responsible officer on tlie ground, in constant communication with the Chief of the Bureau of Yards and Docks, and presumably acting with the knowledge and approval of the bureau, and he, acting for the defendants, withdrew one-third of this old-wall material from the contract, and directed the contractor to furnish new material in its stead. The defendants reaped the benefit of this substitution, and it would be highly inequitable and narrowly technical to defeat the contractor’s recompense were we to hold that he ought to have notified the officer that substituting new material for old would necessitate additional outlay by the defendants. What was palpable to the contractor was palpable to the officer. He who wanted the work done intended to pay for it. Qui sentit eomnodum, debet et sen-tire onu°. But it is not a case where mistake or misrepresentation can be set up, or where an option could have been exercised. If the change was not necessary, it would have been most iniquitous in Commodore Hitchcock to have ordered it at the contractor’s cost3 if, in his judgment, it was necessary, it had to be made, regardless of the question who was to pay for it.

It is proper to add that the representations made to the claimant’s agent, as set forth in finding III, at the time the walls were shown to him, we put entirely out of sight. If this were a suit to reform the contract, such evidence would be admissible 3 and it may be that if the civil engineer (who is designated in the specifications as the person who was to supervise and inspect the work) had authority to make such representations, they would be a part of the res gestee, admissible to show the thing contracted for; but as the authority of the officer is doubted, we prefer to exclude his representations in the consideration of the case.

2. The second question of importance in the case is whether its consideration upon the merits is barred by the statute of limitations.

The item of $4,050 for tearing down and replacing portions of the old wall was not, strictly speaking, extra work. The wall as finally constructed was neither longer nor higher nor of different material than the wall which the contract called for. The demand is properly to recover an extra expense thrown upon the contractor contrary to the true intent and requirements of the contract. Strictly, he sues not for work outside of the express agreement, but for the defendants’ breach of their implied covenant that be should be allowed to use and utilize the old walls as they stood when he received them. His action for this work must needs be upon the specific contract, and he could not have brought an action upon it while it remained executory. The counsel for the defendants has insisted that if this was additional work it was rendered under an implied contract, and that the cause of action accrued and the statute began to run the moment the work was completed. But we are of the opinion that the cause of action sprang out of the specific contract, and that no action could have been maintained by the claimant while it remained executory, and that it so remained until the buildings were accepted by the defendants subsequent to the 7th December, 1866.

The item of $362.79 is of the same nature. The defendants furnished to the contractor a portion of the material necessary for packed beams and gave him his option to put them in or solid-tie beams, as he might elect. They were not at liberty, in the face of their agreement, to say that the material so furnished was not suitable, and compel the contracter to put in the other kind of beans. This was a hinderance and expense thrown upon the contracter contrary to the terms of the contract, but was in no sense extra work under a different or an implied agreement. Instead of being able to bring an action in assumpsit for these beams as for work not required by the contract, the claimant’s cause of action sprang out of the very terms of the contract.

The items for brown-stone capitals and for supporting foundation-walls, on the contrary, are clearly eases of extra work. They were not required by the contract; they were distinct things which the claimant had not agreed to construct or furnish ; and he might have gone on and completed all that he had agreed to do without them. They were furnished before the 7th December, 1866, and if the claimant could have maintained an action for them while the specific contract remained execu-tory, they are barred by the statute.

The contract contemplated “ changes and modifications.” It provided that “ no extra charge for modifications will he allowed unless agreed upon hy the parties, and no changes or modifications mutually agreed upo n by the parties to this contract shall in any way affect its validity.” It further provided that three specific installments of $12,000 each (of sums in gross and not percentages) should be paid to the contractor as the work progressed, and. finally that the balance which might become due to him should not be paid until the work should be “ entirely completed” “to the satisfaction of the party of the second part.”

On the 7th December, I860, the work had not been entirely completed. If payment for extra work falls within the foregoing provision of the contract, the statute of limitations does not preclude a recovery.

As the Supreme Court said in Dermott v. Jones (2 Wall., 1), “While a special contract remains executory, the plaintiff must sue upon it.” “He must produce the contract upon the trial, and it will be applied as far as it can be traced; but if, by the fault of the defendant, the cost of the work or material has been increased, in so far the jury will be warranted in departing from the contract prices.” If the claimant had brought his action for any of these items of extra work immediately after performing it, the defendants might have answered that the contract was still executory; that it was to be applied so far as it could be traced; that no payments were to be made except the installments specified in the contract until the buildings should be completed.and accepted; that it cannot always be determined what are extras until the contract work be done; and that by the plain import of the contract the defendants were not to be thus harassed, and that such suits were premature.

It is not easy to understand how the provision that “no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity ” can have any other significance. Certainly changes or modifications mutually agreed upon would not per se affect the validity of an express agreement; certainly they would affect -the price, notwithstanding this clause, for it cannot be supposed that either party intended that extra work should be furnished without an additional consideration. The only rational’ interpretation of the clause is that those provisions of the contract which threw upon the defendants the obligation of paying three specific installments, and assured to them the privilege of having all other payments delayed and gathered up into one final payment when the entire work should be completed, was not to be impaired by demands for extras, but should remain valid, i. e., operative as to them as well as to the subject-matter proper of the express agreement.

3. As to the bill of extras dated October 18, 1866, reduced by the naval board from $4,688.09 to $2,394.89, set forth in the sixth finding, we think the case comes under the decision of the Supreme Court in Child, Pratt & Pox Case (12 Wall., 232; 7 C. Cls. R., 209). There the claimants protested against the action of the Holt-Davis-Campbell commission; but they subsequently accepted the reduced amount allowed by the commission, and receipted therefor in full without protest. That, was precisely what the claimant here did, and Ms case cannot be distinguished from theirs.

The judgment of the court is that the claimant recover—

For the extra work upon the wall. $4, 050 00

For the entire expense in putting in solid beams.... 362 79

For the brown-stone capitals.. 621 48

Amounting in the aggregate to..... . 5, 034 27

Drake, Ch. J.,

dissenting:

From so much of the opinion of the majority of the court as holds the claimant entitled to recover $4,050 for an additional quantity of brick put into the walls, over and,.above what he supposed, before he made his proposals, would be necessary, I am constrained to dissent.

The case, stated in condensed form, is as follows:

At the outbreak of the rebellion, certain brick buildings in the Norfolk navy-yard were burnt, but portions of the walls remained standing.

In 1866, the Bureau of Yards and Docks of the Navy Department advertised for proposals for the repair of those buildings, and the advertisement contained this clause:

“Persons desiring to bid must necessarily visit the yard and examine the present condition of the works, and can there see the plans and specifications, to enable them to bid understandingly.”

In anticipation of the repairs, the officers of the navy-yard had caused portions of the walls to be taken down; after which, and after the advertisements for proposals had been published, an agent of the claimant visited the yard and saw the plans and specifications of the work proposed to be done, and was shown the walls by a quarterman acting under the civil engineer of the yard. The agent asked if those walls were to stand. The quarterman replied that they were, so far as he knew, and that Mr. Williams, the master mason of the yard, and Mr. Worrall, the civil engineer of the yard, had said that they were to stand. But it does not appear that the quarterman was authorized to make such representations to the claimant’s agent. And the civil engineer likewise represented to the agent that the portion of the walls then standing would remain and be used in the new work. After the claimant’s agent had so visited the yard and been shown the walls, the claimant made his bid, which was accepted, and the contract sued on was entered into in pursuance thereof.

After the claimant had begun work under the contract, it was discovered that about one-third of the walls still standing had been so injured by the fire as to be unftt for building a superstructure thereon; and thereupon the commandant of the yard ordered that portion of the walls to be taken down; which was done; and in consequence thereof the claimant was obliged to furnish bricks of the value of $4,050 over and above what would have been necessary if he could have built upon the walls as they stood when his agent examined them, before making his proposals.

The claimant, at the time, made no objection to that taking down of the one-third of the walls.

Upon the case as thus in substance stated, the majority of the court, as it seems to me, hold that there were tioo contracts between the claimant and the government: first, the written one sued on; and, secondly, a previous unwritten one, resulting from a visit of the claimant’s agent to the navy-yard and the then condition of the walls that were shown to him; from which condition and showing, it is claimed, resulted an implied undertaking and agreement on the part of the government, that the walls as they then stood and were shoion to the agent were fit to be used and should be used to support the new superstructure which the proposed repairs would require to be built upon them.

It is said that if no part of the old walls had been taken down by the government officers before the claimant entered into the contract sued on, or, in other words, if the walls had been seen by the agent in the exact condition they were left in by the fire, and had been turned over to the contractor in that exact condition, to be razeed by him to such extent as when he entered upon the work he might find necessary, the whole responsibility would have rested on him, and upon him would bare fallen all tlie expense aud loss consequent upon the razeeing, however g'reat it might have been. In this view I concur; but when it is claimed that because before the agent visited the yard, and before any advertisement for proposals was published, the government caused a part of the walls to be razeed, it thereby said to all who might thereafter come to examine the parts left standing that it assumed the risk of those parts being fit to build upon, and, therefore, that those parts should stand as they were, and that the new work should be built upon them just as they stood, I am quite unable to see how so important an engagement could be held to grow out of the mere fact of the partial razeeing, standing by itself, without any declaration by any authorized representative of the government that the government intended that fact to amount to or to be regarded by any one as amounting to such an engagement.

But if it be supposed that this undertaking of the government resulted not alone from the fact that parts of the walls were left standing, but from that coupled with the other fact that the parts left standing were shown to the claimant’s agent by servants of the government, there is to my mind a sufficient answer to the proposition in the further fact that what the government intended to say in regard to the walls was not left to inference, but was precisely expressed in the written specifications of the proposed work, shown to and examined by the claimant’s agent at the time, and afterwards made a part of the contract. The existence of those specifications and the agent’s knowledge of them at the time, in my opinion, utterly preclude any implication against the government in regard to the walls, growing out of their having been left standing and shown to the agent. JSxpressum faeit eessare taciturn is a maxim which seems to me to close and bar the door against any such implication.

The agent visited the yard after the advertisement for proposals was published. What took him there ? Of course nothing but, in the words of the advertisement, “ to examine the present condition of the works and see the plans and specifications, to enable him to bid understandingly.” The government said to bim and all others, in effect, “There are repairs to be done at the Norfolk navy-yard, and the work is to be let out by contract. Go and examine the condition of the works, the plans, and the specifications, and see whether yon will bid for the job.” That was all that government asked him to do, and all that he then had a right to dó, so far as the government’s invitation was concerned. The advertisement made no representations, except to indicate the particular buildings to be repaired; did not say that this or that wall or part of a wall was or was not to stand; simply left the whole matter to be examined by any one who thought fit to dp so. When the agent went there, he knew all that, or was bound to know it; and knowing it, he made such examination as he saw fit, without let or hinderance from any one, presumably taking his own time, using his own methods, extending his scrutiny at his own will, and, without doubt, relying on his own senses, his own observation, and his own judgment in reaching results. If he made a superficial or unskillful examination, or a careful and skillful but insufficient one, it was wholly at his own risk; the government had nothing to do with it.

If it was the intention of the Navy Department that the walls as they then stood should be built upon, every dictate of ordinary business capacity, of the plainest common sense, and of common houesty, would have prompted its announcement in the advertisement; but it was not there. So far from that, the specifications open with this stipulation:

“ The foundations and the brick walls now standing that were uninjured by the fire will remain and be carried up to the height designated on the plan, by new work.”

Whatever meaning may be ingeniously ascribed to those words, it is noteworthy that the claimant did not in his petition aver that he or his agent understood them at the time to mean that the walls then standing were fit to build upon and were to remain as they then stood; nor did his counsel, in his brief, take any such position; nor has either ventured to claim, much less has any attempt been made to prove, that the claimant’s bid was based on his or his agent’s understanding that that was the meaning of those words. If that had been his supposition, is it reasonable to suppose that he would not have averred and attempted to prove if? I think not. And because he did neither the one nor the other, it is to my mind conclusive evidence that he had at the time no such supposition.

' But, however that may be, those specifications were made a part of the contract, and it is the business of the court to declare their meaning.

It is assumed tbat tills expression of tlie contract is doubtful, because its meaning cannot be rendered certain without the interpolation of words; and therefore the court must needs interpolate words. It is my misfortune not to be able to perceive any just grounds for doubt as to the meaning intended. Placing myself in thought, as nearly as I can, in the positions occupied by'the Navy Department on the one hand and the claimant on the other, it seems to me clear, first, that the department, to save expense and to secure solid and stable work, would mean to use all parts of the walls which were fit to sustain the new work, and not to use any parts which were so injured by fire as to be unfit therefor$ and, secondly, that the bidder, to avoid the danger of the old walls giving way under the weight of the new work, and so bring loss to him, would seek to avoid building new work upon walls or parts of walls that had been so injured by fire as to put him to that risk. It was therefore clearly to the interest of each party to use no parts of the old walls that had been injured by fire, and to use all the uninjured parts thereof, and unless some imperative reason be shown why. they did not express that intent in the clause in question, I am bound to hold that they did, and am not authorized to defeat that intent by inserting words in it.

It is claimed that the clause should be construed as if it read “The foundations and the brick walls now standing [being those portions] that were uninjured by the fire will remain.” But where is the authority for the interpolation included in brackets ? I know of no such authority. The parties themselves did not make it.

If it was the intention of the Navy Department to say what that interpolated sentence says, all that was needed to that end was simply not to have inserted the words “that were uninjured by fire,” and then it would read, “ The foundations and the brick walls now standing will remain and be carried up * * * by new work.” So framed, there could have been no question about the meaning; and if that had been the intention of the department, would it not have been so expressed %

"When, therefore, the clause was not so shaped, but those words were inserted, had they not a purpose and a meaning % When the sentence was made to read, “ The foundations and the brick walls now standing, that were uninjured by the fire, will remain and be carried up * * * by new work,” ought there to be any reasonable doubt about the meaning ¶ Is it not clear that the intent was to except from the general stipulation the walls or parts of walls that had been injured by the fire? In •other words, is it not plain that what was to remain and be •carried up by new work ” was what was “ uninjured by fire ” ? When bids were asked for the repair of burnt buildings, is it •conceivable that the walls which had been injured by the fire, the very things that were to be repaired, should stand just as they were, without repair, and be carried up by new work?

But to my mind the claimant has, by his own acts, precluded himself from any recovery, on account of the razeeing of the walls after the contract was entered into.

For the sake of the argument, let it be admitted that the clause in question is ambiguous. It has been held by this court that if the parties to a contract, while the contract is in process of execution, do, either expressly or by tacit concurrence, agree or act upon a particular construction of it, neither party can after-wards set that construction aside and insist upon a different and inconsistent one. (Merriam’s Case, 14 C. Cls. R., 289; and see Swift & Co's Case, ib., 208.)

Can it be for a moment doubted that this claimant, while the work was in progress, tacitly acquiesced in the construction put by the government’s officers on this now for the first time disputed clause ? If the claimant really considered it his right under the contract to build upon the walls as they stood when his agent examined them, would he, when ordered by the commandant of the yard to razee one-third of them, have done so, and gone on to rebuild them, without uttering a word of objection ? Is it consistent with any sensible view of his capacity! to understand his rights under the contract, and how to proteo! them, to suppose that neither when the order to razee was givenl nor when he proceeded to obey it, nor yet up to the hour when! after the completion of the whole contract job, he received th<| final payment on account of it, he should have been dumb ? I

If, on the other hand, the previous examination had showii his agent that parts of the old walls, as his agent saw theml were, in fact, so injured by fire as to have to come down, ancj his bid was based on the knowledge of that fact and the calcuB lations necessarily resulting from that knowledge, his silencB when the razeeing was ordered and done is instantly and satisB factorily explained as an indication of his own consciousnesl that the razeeing was necessary and right, and had been hi him calculated upon and estimated for before he framed the bid which got him the contract.

When, therefore, ou oue theory his silence is unnatural and inexplicable, and on the other is quite natural, and also quite consistent with our observation and experience of men, I am compelled to adopt the latter as the true theory of his action.

And when the silence remains unbroken until nearly six years after the whole work was done, and after he had rendered a bill purporting to chargefor all extra work done by him, as well as for the contract work, and had been paid in full, and then for the first time this claim is set up, I am constrained to the conviction that it is an afterthought and a mere speculative demand, as, in my opinion, it is without merit in conscience or justification in law.

But were every view I have expressed insufficient, there is one other which seems to me conclusive.

If the circumstances of the agent’s examination of the works, and what he then saw, are to have any effect towards the claimant’s recovery here, they are to have that effect by engrafting on the written contract a stipulation not found in its words. To do that-requires words to be inserted in the contract as signed and acted under by both parties. If any one rule in the law of contracts is settled, and has been so always, it is that such a thing cannot be done; and that when parties, after whatever conversation or preparation, at- last reduce their agreement to writing, that is to be looked upon as the final consummation of their negotiation and the exact expression of their purpose. The parties write the contract when they are ready to do so, for the very purpose of including all that they have finally agreed upon, and excluding everything else, and so make this certain and permanent. (2 Parsons on Contracts, 5th ed., 548; Oelricks v. Ford, 23 How., 49; Hawkins v. United States, 12 C. Cls. R., 181; affirmed on appeal, 96 U. S., 689.)

Discarding, then, all in regard to the walls but the one clause of the specifications which has been discussed, T hold that that clause is without ambiguity; that the claimant acted upon it las having the meaning put upon it by the Navy Department; [that he made no objection to what was required of him under p; and finally settled for his pay under it without protest or pemur. Such being the case, I can see no justification for ¡awarding him any part of the $4,050 allowed him by the majority of the court.  