
    SMITH’S CASE.
    Joseph Smith v. The United States.
    
      On the Proofs.
    
    
      While buildings are in progress of construction at a western fort, the contractor is stopped by order of the post-commander approved by the commander of the department. Subsequently he is allowed to resume work. The defendants pay him the contract-price but not his damages occasioned by the suspension. On the final suspension of the work it appears that he has omitted some things amd has performed extra work. The one is set off against the other by the imspect-ing-board and he is paid the balance. The post-quartermaster then, by order of the departmental commander, estimates and reports the damages caused by the suspension, and ultimately the report is approved. On the trial the claimant insists that he should be ailoioed to give this report in evidence and recover the amount thereof. The defendants insist that he can recover only his actual losses, and that every item must be established by positive proof.
    
    I. The officers of the Government charged with the supervision of contract-work have no right to hinder or delay the contractor in the prosecution of the work; and the contractor may recover such damages as were the natural consequence of a suspension of his work.
    II. An allowance for damages caused by the suspension of work under a contract with the Quartermaster Department, though made by the officer charged with the supervision and approved by the commanding officer of the military department, does not determine the amount thereof, and must-be excluded by the court in making a computation of damages.
    III. The rule for the measure of damages where a contractor’s work has been suspended is not the sum of the ex parte payments he may have made to his subcontractors, but the natural and inevitable losses which would be caused to any contractor by such a suspension on such a building, taking into consideration the condition of the work, the magnitude of the contract, the cost of labor and material, the remoteness of the situation, and any other element of loss which would affect any party interfered with in like circumstances.
    IV. Extra work done on a building and deficiencies under a building-contract are proper subjects of set-off and compromise; and where they have been set off thus by the parties and the balance has been paid by the one and accepted by the other, a court will not re-open the controversy.
    
      The Reporters’ statement of the case:
    Some of the legal conclusions rendered in this case are not discussed in the opinion, but will be found in the conclusions of law appended to the following findings of the court:
    
      I. In May, 1873, the chief quartermaster of the Department of the Platte advertised for proposals, for constructing certain buildings at the military post of Beaver, in the Territory of Utah. On the 24th June, 1873, the claimant sent in proposals, which were accepted by the order of the Secretary of War on the 23d August, 1873. Notice of acceptance was given to the contractor, who immediately proceeded with the work ; but the agreement of the parties was subsequently reduced to the formal written contract annexed to the petition in this case.
    II. On the 1st December, 1873, while the buildings were in progress of construction, the contractor was stopped by order of the post-commander, with the approval of the commander of the department, and all work under the contract was ordered to be suspended. The contractor objected to the work being stopped, and requested that he be released from his agreement, unless the work could go on. The matter was referred to the Quartermaster-General, and by him submitted to the Secretary of War. Pursuant to orders of the latter, the contractor was allowed to resume work. The period of suspension was from the 1st December, 1873, to the 3d February, 1874. The defendants have paid for the work done under the contract, but have not paid the damages occasioned by the suspension of the work.
    III. On the 30th October, 1874, General Ord, commanding the Department of the Platte, referred the contractor’s claim for damages caused by the suspension to the quartermaster of the post of Beaver, who had had entire charge of the work from the beginning to the completion thereof, with instructions to report as to the damages caused by “ the unexpected stoppages and delays inflicted on the contractor, Smith, by the orders from Washington and department headquarters, the exposed and unfinished condition in which he was compelled to leave the buildings during winter storms, the remoteness of the place of building, where all skilled labor had to be provided from a great distance, and which was left sometimes unoccupied and unpaid for on the contractor’s hands; the deterioration in value of material left exposed while waiting for orders to continue the work.” The post-quartermaster, under these instructions, reported the contractor’s losses at $8,000, and the department commander approved the recommendation. The court finds the claimant’s damages for the same to be $5,000.
    
      IV. During the progress of the work the contractor furnished and performed certain additional or extra work not required by his contract. But on the inspection of the buildings before the final payment it was found by the inspecting-officer that the contractor had omitted to furnish and perform certain work required by the contract. It was subsequently agreed between the contractor and the defendants’ officers that the extra work furnished should be received and stand in the place of that omitted by the contractor, and under and in pursuance of such agreement or compromise the contractor was paid the balance remaining due of the contract-price.
    And upon the foregoing findings of fact the Court of Claims decided as conclusions of law :
    1. The officers of the Government charged with the care and supervision of the building to be erected by the claimant had no right to hinder or delay him in the proper performance of his work; and for the suspension thereof, ordered by such officers in the supposed interest of the Government, the claimant should recover such damages as were the necessary consequence of the suspension; that is to say, such damages as would place him as nearly as possible in the same condition as he would have been iu if he had been allowed to proceed without such interference, excluding therefrom, nevertheless, any loss or injury to his materials which fnight have been prevented by the exercise of reasonable care and prudence on his part in the storing, custody, and preservation thereof.
    2. The estimate or allowance of damages for the suspension of the work made by the post-quartermaster, under the instructions of the commanding officer of the department, does not determine the amount thereof, and should be excluded by the court in making a computation of damages.
    3. The extra work on the buildings done by the claimant in addition to that required by the terms of his contract, and the deficiencies under the contract, as determined by the inspecting-officer who inspected the work before acceptance by the Government, as provided by the contract, were proper subjects of compromise and set-off, and having been so compromised and set off against each other before final payment, the claimant is concluded from seeking a recovery for the former.
    
      Mr. James Lowndes for the claimant.
    
      Mr. Horace M. Hastings for the defendants.
   Nott, J.,

delivered the opinion of the court:

The Supreme Court decided in William ClarWs Case (7 C. Cls. B., p. 24) that the officers of the Government have no right to hinder or interfere with a contractor in the prosecution of his work, even though he be in default and is seeking to perform after the expiration of the time fixed by his contract.

In the Amoskeag Company’s Case (9 id., 50) it was held that where the officers of the Government request alterations in contract-work which will involve delay, the Government is responsible for the natural consequences of the delay. In Garrison’s Case (7 id., 78) the Supreme Court likewise held that a subsequent alteration, indorsed upon the contract at the instance of the contracting-officer, was to be taken as an alteration made for the benefit of, and to be most strongly construed, if in doubtful terms, against, the Government.

In the case now before the court, the officers of the Government, for its supposed convenience or benefit, not only hindered the contractor, but absolutely suspended his work. The suspension was not authorized by the agreement, and was to all intents and purposes an alteration sought by the Government for its own purposes, and for which it is properly and legally liable. ,

In estimating the damages caused by this suspension of the work, both parties have gone, to a greater or less extent, upon the actual expenditures of the contractor to his subcontractors and workmen. We do not understand this to be the rule for measuring the damages in such cases. The Government is a stranger to the subcontractors and workmen, and is not interested in the amounts paid to them. If the contractor had paid to them three or four times as much as the necessities of his case required, the Government would not be liable for such excess; and if they had waived all claims upon the contractor, or compounded with him for a nominal consideration, his good fortune would not have enabled the Government to throw off its own liabilities. The instructions which should be given to a jury in such a case, we apprehend, would be not to inquire into the private or ex-parte transactions of this contractor, but to estimate the natural and inevitable losses caused to any contractor by such a suspension on such a building, taking into consideration the condition of the work, the magnitude of the contract, the cost of labor and material, the remoteness of the situation, and any other element of loss which would affect any other party interfered with in like circumstances. A contractor in such a case is not bound to make out a bill of particulars, and if he were able to make out one, (which in such a case he never is,) it would not follow that he should recover the full amount thereof. A jury must take into consideration all the facts and circumstances of a case, and while excluding losses due to the negligence of the contractor, allow to him such damages as, with reasonable diligence and prudence on his part, would put him in the same situation at the end of the work that he would have been in if he had not been interfered with. On the one hand, the defendant in such a case is not required to pay more for the suspension which he has requested than it is reasonably worth ; on the other, he is bound to make the contractor whole.

The contract here was for about $70,000 worth of work; and the cost of the buildings, taking into the account the work which was to have been contributed by the Government, could not have been far from $75,000. It is manifest that the unexpected and total suspension of work upon such buildings in a remote place, where skilled labor was not to be had, and where the rate of wages and materials was very high, must have entailed on the contractor serious loss. Taking into consideration all the elements and circumstances of the case, we think the damages caused to the contractor must have been at least $5,000.

The judgment of the court is that the claimant recover of the defendants the sum of $5,000.

Richardson, J., was absent and took no part in the decision.  