
    CASE & VAN WAGENER’S CASE.
    Charles G. Case et al. v. The United States.
    
      On the Proofs.
    
    
      A contract provides that the engineer in charge of the work shall malee monthly estimates, subject to correction, in his final account; that his determination shall he final, “ both as regards the quantity of stone removed and the completion of the work,” and that the contractors shall excavate and remove roclc from the bottom of the river to a certain grade at a specified price per yard. The engineer allows for rock excavated and removed below the designated grade less than the contract; but the contractors, after disputing this, accept payment, and receipt in full therefor, though on one of the monthly estimates for rock excamated but not removed the engineer refuses to allow anything.
    
    I. Where monthly estimates by an engineer in charge of a work are to be the means for his final account, which is to be conclusive upon the contractors according to the terms of their agreement, a dispute as to the price allowed in a monthly estimate, followed by the acceptance of payment, accompanied by the giving of a receipt in full, will conclude the contractor from seeking a greater price.
    II. Where a contract required the contractor “to excavate and remove” stone from the channel of a river, which material should be the property of the Government, and provided that the determination of the engineer in charge should be conclusive “both as to the quantity of store removed and the completion of the work,” the contractor cannot recover for stone excavated and spread in the channel, unless the engineer in charge determined that it should be paid for.
    III. Where a contract provides that the “ determination ” of the engineer in charge shall be “conclusive,” both as regards the quantity and the completion of the work, his determination to allow nothing for a part of the work imperfectly performed may be shown by his refusal to pay for it and by his omitting it from all his monthly estimates and accounts, on which the contractor was paid in part from time to time.
    
      The Reporters'1 statement of the case:
    The following are the material parts of the contract which formed the subject-matter of this suit:
    “This agreement witnesseth: That the said Brevet Major-General J. H. Wilson, U. S. A., Lieutenant-Colonel 35th Infantry, for and in behalf of the United States of America, and the said Charles G. Case and F. D. Yan Wagener, for their heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, in the manner following, namely: That the said parties of the second part shall furnish all the boats, machinery, and materials of every sort required, which shall be of good and sound quality, and perform all the labor necessary to excavate and remove from the bottom of the Mississippi Biver, at such place or places on the Upper or Bock Island Bapids of the Mississippi Biver as may be designated by the engineer in charge of the work, all rock or other material necessary to make a continuous channel through said rapids, which shall not be less than (200) two hundred feet wide at any place, and not less than (4) four feet deep in the lowest stages of the river; the same to be located for the improvement of the Bock Island Bapids of the Mississippi Biver, and to be done in all respects according to the provisions of this contract.
    aAnd it is further agreed that the engineer in charge of the work is to be sole judge, in all cases where reference is to be made, of what is understood as the lowest stages of the river, and his judgment will be conclusive, and said parties of the second part agree to be guided by his decision. That all work offered under this contract shall, before being accepted, be subject to a rigid inspection by the engineer in charge, or an inspector appointed on the part of the Government, and such as does not conform to the provisions set forth in this contract shall be rejected.
    “And it is further mutually agreed and understood that all rock or other material excavated in order to make said channel is the property of the United States, and shall not be sold or otherwise disposed of by the said parties of the second part, but shall be delivered and deposited at such place or places, and in such manner, either in the river in the form of a dam, or elsewhere, as the engineer in charge of the work may direct; provided the distance which it is necessary to carry it does not exceed one mile, in which case a compensation, to be fixed by the engineer in charge, will be allowed.
    “And it is further agreed that the work under this contract, in every respect, shall be prosecuted in such order and places, and at such times and seasons, as the said engineer shall direct.
    “And to provide for a speedy and just settlement, and to prevent disputes, it is hereby further mutually agreed that the engineer in charge, when the work herein contracted to be done shall in all respects have been completed according to the terms and conditions of this contract, shall present a final account and estimate of the same, which shall be final and conclusive on both parties to this contract, and Brevt. Maj. Gen. J. H. Wilson, ü. S. A., lieut. col. 35th Infantry, will then pay to the parties of the second part the balance due, including the 15 per cent, retained on monthly estimates.
    “And it is further agreed that estimates shall be made at the end of each month, under the direction of the engineer in charge of the work, for all work done under this contract during said month, and that the amount of said estimates shall be paid (less 15 per cent, retained as guaranty for the performance of the contract) by the middle of the succeeding month.
    “And it is further agreed that the said work is to be estimated and determined exclusively under the direction of the engineer in charge of the work, and his determination is to be final and conclusive both as regards the quantity of stone removed and the completion of the work ; and the said parties of the second part further agree to perform all the work contracted for as specified fo this contract, but any alteration in the form, dimensions, location, or manner of doing the work, directed by the engineer in charge of the work’, beyond what is specified herein, and which will increase the cost of the same, shall be done as directed, and the engineer in charge shall decide, in writing, what increased compensation shall be paid for such alteration ; which writing shall be attached to and shall thereafter form a part of this contract, and the said parties of the second part agree to do the work at the prices established by the said engineer. And in case any of the quantities exhibited at the letting shall be increased or diminished without changing the character of the work, such increase shall be paid for at the prices in this contract for the same class of work; and the said parties of the second part agree to do the work at the prices stipulated, without making any claim for damages in consequence of such increase or diminution, and in all cases the work is to be paid for by the cubic yard.”
    As -to the coutroversy which grew out of this contract, the court found the following facts:
    1. That on the 28th of June, 1867, the contract, a copy of which is annexed to the petitiou, duly executed between General J.- H. Wilson on the part of the United States, of the first part, and Charles G. Oase and F. D. Van Wagener, of the second part, and on or about the 13th of June, 1870, the said contract was extended so as to cover so much, of the money appropriated on the 11th of July, 1870, as might be necessary to pay for the completion of the unfinished work already commenced by the petitioners, beginning on the 1st day of July, 1870, and remaining in full force, to all intents and purposes, until the completion of the above work.
    2. General J. H. Wilson was, in 1866, assigned by the War Department to the superintendence of the works embraced in the contract, by the following.order:
    “Engineer Department,
    “ Washington, August 14, 1866.
    “General: In obedience to Special Orders No. 379, Adjutant General’s Office, August 3, 1866, you will proceed to Keokuk, Iowa, to superintend the improvement of the Des Moines and Eock Island Rapids of the Mississippi, and the survey of the Eock Eiver iu the States of Illinois and Wisconsin, with its connection with Lake Winnebago.
    “In addition to the above duties, you are hereby assigned to the survey of the Illinois Eiver from its mouth to La Salle.
    “You will accordingly make the necessary arrangements for the prosecution of the above duties, which it is very desirable should be commenced at the earliest practicable period, that the bureau may place before Congress at its next session the result of your examinations and plans of improvement.
    “You are authorized to employ as many civil assistants as you may require, at such compensation as will command suitable qualifications, to be subject to the approval of the Department, with the mileage allowed to officers while traveling on duty.
    “Very respectfully, your obedient servant,
    “A. A. HUMPHEEYS,
    
      11 Chief of Engineers, Brig, and Bvt. Maj. Gen., ü. S. Army.
    
    “Brevet Maj. Gen. J. H. Wilson, U. S. A.,
    
    
      “ Corps of Engineers, Washington, D. C.”
    
    On the 26th of November, 1867, General J. H. Wilson, by the following order, placed Maj. Charles H. Allen in local charge of the improvements of Eock Island Eapids:
    “United States Engineer’s Oeeioe,
    “ Davenport, November 26, 1867.
    “Bvt. Maj. Charles J. Allen, captain of engineers, is assigned to duty as senior assistant, and in local charge of the improve-meats of the Bock Island Eapids. He will superintend the labor of the contraetors, keeping ample notes of their daily-operations, and supervising the estimates of the work done. He will also exercise a general supervision over the maps projected by Lieutenant Hoffman, and will have a supervising charge over the making and mapping and draughting done at office.
    * # # # # * #
    “J. H. WILSON,
    
      a Lieut. Gol. Thirty-fifth Infantry,
    
      uBvt. Maj. Gen., U. 8. Army.”
    
    General Wilson did not make the measurements, nor run the levels, nor personally inspect or direct the claimants’ work, all of which was done by Major Allen.
    3. The petitioners duly commenced, prosecuted, and performed all the work required on the part of the United States to be performed by said petitioners under the said contract and its extension, and the same was accepted, and therefor there was paid to the petitioners the sum of $500,473.23, by said General J. H. Wilson.
    4. In the execution of said work in December, 1868, 889.41 cubic yards of stone and material at Moline Chain, and in February, 1869, 3,533.25 of stone and material at Sycamore Chain, were excavated below grade and removed by said petitioners.
    The excavation below grade was not objected to by the local engineer, and it was determined by General Wilson that such excavation and removal were rendered necessary by the stratification and peculiarity of the rock, and he determined the quantity which had been so removed, and subsequently recommended to the Chief Engineer the allowance of the contract prices therefor, and requested authority to pay the same, which was refused, as set forth more fully in the next finding.
    But the court finds that such excavation and removal resulted from the stratification and peculiarity of the rock, and the method of doing the work by the claimants, by blasting, and were not absolutely necessary to the excavation of the rock to the grade required.
    5. And for the purpose of making up the monthly estimates, and making the monthly payments required by the contract, and without undertaking to decide definitely at that time the proper compensation for said excavation below grade and removal of 889.41 cubic yards of stone and material at Moline Chain, and of 3,533.25 cubic yards of stone and material at Sycamore Chain, the engineer in charge allowed and paid for the former, as the cost thereof to the contractor, $5.56 per cubic yard, and for the latter, as the cost thereof to the contractor, $8.75 per cubic yard. And the petitioners claimed the contract prices for said work, but being informed by said engineer in charge that justice and equity should be observed in the final determination of their compensation for said work below grade, signed the receipt that was attached to a monthly estimate, and a copy of which is hereto annexed and marked “E. No. 1.” On the 2d of June, 1869, the question of such compensation was referred by the engineer in charge to the Chief of Engineers, and by him referred to the Secretary of War, who, on the 19th June, 1869, approved of the cost-prices allowed in said monthly estimates, as aforesaid. And thereupon the same were adopted by said engineer in charge in the account made by him as his final account, and hereinafter shown. And no further payment was made to said contractors for the below-grade work specified above in this article.
    E. No. l.
    
      The United- States for the improvement of the Rock Island Rapids to Charles G-. Case and F. D. Van Wagoner, contractors, Ur.
    
    
      
    
    
      “Received at Keokuk, Iowa, this 30th day of July, 1869, from Brevet Major-General J. H. Wilson, lieuténant-colonel U. S. A., the sum of thirty thousand six hundred and two dollars and One cent, in full payment of the above account. Paid by checks Nos. 1459 and 1460, dated July 30, 1869, on assistant treasurer at New York, for—
    “No. 1459 ... $20,602 01
    “No. 1460 . 10,000 00
    30, 602 01
    “CHAS. G. CASE.
    “F. D. YAN WAGENER.
    “Signed in duplicate.”
    (Indorsed thereon:)
    “Appropriation for the repair, preservation, extension, and completion of river and harbor works.
    “ For the improvement of the Rock Island Rapids.
    Voucher No. 35, abs. “B.”
    “ Of the accounts of Brevet Major-General J. H. Wilson, lieutenant-colonel U. S. Army, for the third quarter of 1869, $30,602.01.
    “Paid to Chas. G. Case andF. D. Van Wagoner, contractors.
    “ Services were rendered, and were necessary for the public service.
    “J. H. WILSON,
    
      “Lieutenant-Colonel cmd Brevet Major-General, If. S. A.”
    6. In the excavation of said works at Sycamore Chain the petitioners excavated below grade 2,966.75 cubic yards of stone and material, which was thrown up by the blasts from drills made below grade, and which resulted from the stratification and peculiarity of the rock and the method of doing the work by the claimant, by blasting, but which was not absolutely necessary to the excavation of the rock to the grade required. And said stone and material so excavated were not removed from the bed of the river, but were spread by the petitioners on the bottom of the river to make that level, with the knowledge of and without objection by. the engineers in local charge, and without any requirement for its removal by them, or by the engineer in charge, to whom the circumstances were reported. And the petitioners claimed payment for the excavation and deposition of the said 2,966.75 cubic yards, at the contract-price of $13 per cubic yard. But said General Wilson refused to make any payment therefor, because it was not removed from the bed of the river as -required by the contract, and none has been made.
    7. In December, 1870, General Wilson, as engineer in charge, made as his final account under the contract between the United States and the claimant the following account:
    Final estimate. — Final estimate of world done by Chas. G. Case 4" Co.^u/nde)' their various contracts and extensions for the improvement of the Foclc Island Fagids of the Mississippi Fiver, commencing June 28,1867, and ending October 31,1870.
    
      
    
    
      And said account is the only final account made by General Wilson, as engineer in charge, under the contract in this case.
    The counter-claim filed by the United States was not proved in any part.
    
      Mr. James Grant for the claimant.
    
      Mr. Jacob Shroeder (with whom was the Assistant Attorney-General) for the defendants.
   Loííikg-, J.,

delivered the opinion of the court:

In this case the two first items of claim are for balances unpaid of the contract price, viz: $3,948.99 on 889.4Í cubic yards of stone and material excavated at Moline Chain, and $14,874.98 on 3,533.25 cubic yards of stone and material excavated at Sycamore Chain, under the contract; and to each of these items of claim the defendants object, that after the dispute, discussion, and reference to the Secretary of War stated in the finding of facts, the petitioners signed a receipt in full therefor on payment of the sum stated in the receipt, while the petitioners claim that the receipt was not, in legal effect, a receipt in full. We think the claim of the defendants is maintained by the evidence. It is true that the receipt in full is appended to a monthly estimate, and that these were subject to correction by the engineer in charge, in his final account, if he found any error in such monthly estimate ; but otherwise they were to be the means for his final account; and there is nothing to suggest that the engineer in charge found any error in the monthly estimate as to the items claimed or the receipt relating to them. On the other hand the evidence shows that the reductions made in the contract price was the subject of dispute, and reference and final adoption by the engineer: and that after that the petitioners signed the receipt, which, in terms, is “in full payment of the above account,” and the account specifies the number of yards excavated, and the price per yard allowed, making the sum of $30,602.01, which the petitioners received. On its face, therefore, the receipt is in full for the number of yards excavated in the places specified and claimed for.

The remaining item of claim is for 2,960.75 cubic yards of stone and material, $38,489.25.

Tke.amount of material specified was thrown up by the blasts from drills made below grade, and was spread on the bottom of the river and not taken out of it, and for this the engineer refused all payment, because it was not excavated and removed, and therefore was not within the words of the contract “to excavate and remove from the bottom of the Mississippi River.”

We have to adjudge the legal- rights of the parties on the terms of the contract, and that provided that the stone and material excavated in order to make the channel should be the property of the United States, and should “ not be sold or otherwise disposed of by said parties of the second part, but shall be delivered and deposited in such place or places, and in such manner, either in the river in the form of a dam, or elsewhere, as the engineer in charge of the work may direct.” And as the stone thrown up by the blasts, and then spread on the bottom of the river, was neither delivered therefrom nor deposited in it in the form of a dam, it may be that literally it was not within the words of the contract, nor material as to which any of the prices specified in the contract were applicable.

And the contract further provides as follows: “ That the said work is to be estimated and determined exclusively under the direction of the engineer in charge of the work, and his determination is to be final and conclusive, both as regards the quantity of stone removed and the completion of the work.” And we think this provision makes the engineer in charge the sole and final judge as to the quantity of stone to be allowed for. And that he refused to allow any part of the quantity of stone referred to is proved by his refusal to pay for it, as stated in the finding of facts, and the further circumstance that no allowance of any part of it is shown in the monthly estimates of the work done from the beginning of the work to its final completion, nor in the account claimed to be his final account provided for in the contract; and if the parties to the contract by that appointed their own tribunal, there is no appeal here from its decision. If, under the provision in the contract that “ the determination of the engineer in charge should be final and conclusive as regards the quantity of stone removed,” he had allowed a number of yards less than the number removed, we could not have reviewed or corrected his determination, and we think the rule is the same where his determination is shown to have been to allow nothing of the particular quantity claimed.

The contract provided that when the work was completed the engineer in charge should “presenta final aecount and estimate” to provide for a speedy and just settlement, and it may be that the account filed by the engineer in charge as his final account departs from the contract and transcends his authority, and is in legal effect a nullity; but that would not alter the effect of the provisions of the contract above cited, which makes his determination as to the quantity of material removed final and conclusive on the parties.

The judgment of the court is that the petition be dismissed.

. Bighardson, J., was absent when this decision was announced.  