
    THANKFUL M. LAWRENCE, Administratrix, v. THE UNITED STATES.
    [No. 16835.
    Decided February 15, 1897.]
    
      On the Proofs.
    
    Tie case differs only from the previous Monitor cases (those of the Squando, the Nauset, the Umpqua, and the Naubuc) in this: After the contract had heen executed and the work begun, the Navy Department objected to the vessel being built in Boston and insisted that she he built in Portland. The builder remonstrated, but expressed his willingness to yield; the contract was annulled by the Department for another reason and a second contract was executed, differing from the first only in dates. The question in the case is whether “ the prolonged term for completing the work” is to he reckoned under the first contract or under the second within the intent of the statute referring the case to this court.
    I. The Act October 1, 1890 (26 Stat. L., 1314), referring the claim to this court limits the liability of the Government to “the prolonged term for completing the work rendered necessary by delay resulting from the action of the Government.” This contemplates a term within which the builder was to bear the risk of increased cost from a rising market, and designates another term during which the Government should he responsible for the enhanced cost. The two are distinct, the one ending before the other begins.
    II. Where a second contract was executed and a first abandoned, the court can not review the matter then in dispute, but must hold that the change was a matter of mutual agreement, and the term during which the contractor would he responsible must be held to have been the extended term resulting from the change of dates in the second contract.
    
      
      The Reporters’ statement of the ease:
    The following are the facts of the case as found by the court:
    I. The Secretary of the Navy, on the 4th of July, 1861, in his message to Congress recommended the appointment of a proper and competent board to inquire into the subject of floating batteries or ironclad steamers and make a report. Under the act of August 3,1861, a board was appointed. An advertisement was published August 7,1861, inviting the submission of designs. Seventeen proposals were received, all of which were rejected except three. The recommendations of the board were approved and the contracts were entered into. The New Ironsides, built by Merrick & Sons, was an ironclad, broadside frigate, carrying 11 guns. The Galena, built by C. S. Bushnell, was a small corvette plated with iron about 3 inches thick. The Monitor, built by John Ericsson, was of a novel design, characterized by the revolving turret and low free board.
    Nothing appears to have been done in the way of expending the money appropriated by the act of February 12,1862, until the conflict between the Monitor and Merrimac, on the 9th of March, 1862, demonstrated the utility of Mr. Ericsson’s invention.
    The Department, as soon as the engagement was over, gave to Mr, Ericsson an order for six more monitors, one of which was called the Passaic. The original monitor was built in one hundred days; the vessels of the Passaic class were built in six months. In these cases Mr. Ericsson had made the detail drawings before taking the contract's. In the fall of 1862 the Navy Department entered into contracts for the construction of nine vessels, known as river and harbor monitors, which were to be modifications of the Passaic class.
    During the year 1862 the necessity for some light-draft vessels for operations on our Western rivers and the shallow bays and sounds upon the Atlantic and Gulf coasts became so urgent that the Navy Department determined to provide some for that purpose, if possible, and application was made to Mr. Ericsson for a plan of a light-draft monitor, to carry one turret and have a draft of from 6 to 6J feet. On the 9th of October Mr. Ericsson submitted to the Department a plan which was not intended as a working plan, yet it defined the original principle and tbe mode of building tbe vessel, engines, boilers, and propeller.
    Tbe Navy Department issued tbe following advertisement:
    “ Light-draft vessels for rivers and bays.
    
    “Navy Department, February 10,1863.
    
    “Tbe Navy Department will receive proprosals for tbe construction and completion in every respect (except guns, ordnance stores, fuel, provisions, and nautical instruments) for armored steamers of about seven hundred tons, of wood and iron combined, having a single revolving turret.
    “On personal application at tbe Navy Department in Washington, or to Rear-Admiral Gregory, No. 413 Broadway, New York, parties intending to offer can examine tbe plans and specifications, which will be furnished to tbe contractors by tbe Department.
    “No offer will be considered unless from parties who are prepared to execute work of this kind, having suitable shops and tools, of which, if not known to tbe Department, they must present evidence with their bid.
    “Tbe act of Congress approved July 17, 18C2, prohibits the transfer of any contract or order or interest therein.
    “The bidders will state the price and the time within which they will agree to complete the vessel or vessels, and'the bid must be accompanied by the guaranty required by law, that if awarded to them they will promptly execute the contract.
    “Propositions will be-received until tbe 24th day of February, and they must be indorsed ‘Proposals for vessels for river defence/ to distinguish them-from other business letters.”
    II. In addition to such plans and specifications as had been prepared at that time, there was also exhibited to intending bidders, at the office at 413 Broadway, New York, an approximate estimate of the weight of the vessel to be bid for.
    III. On the 2d of June, 1863, a contract for a light-draft monitor (afterwards named the Wassuc) was awarded to George W. Lawrence & Co. for the sum of $386,000, to be completed within eight months from the date of the award of the contract.
    This award was accepted by George W. Lawrence June 9, 1863, and the contract in accordance therewith was duly signed (having been sent to Lawrence June 11,1863, and having been returned by him shortly afterwards), and Admiral Gregory was instructed to furnish him with plans and specifications.
    
      IY. On November 3,1863, tbe same George W. Lawrence, of Portland, Me., contracted with John Lentball, Chief of tbe Bureau of Construction and Repair, acting in tbe name of tbe Secretary of tbe Navy aud in bebalf of tbe United States., for tbe construction of a ligbt-draft ironclad steam battery or monitor, called tbe Wassuc, to be completed in eight months from that date, for tbe sum of $386,000, being the contract annexed to and forming part of tbe original petition in this case.
    Y. Tbe contract awarded June 2,1863, can not be found, after due search, in tbe Navy, Treasury, or Interior Departments, but tbe court finds that it was identical in terms with tbe contract of November 3, 1863, except that it was dated June 2, 1863, and that tbe opening words of tbe fifth paragraph read: “This battery to be completed and ready for service in eight months from tbe 2d day of June, 1863.”
    YI. On September 29, 1863, the following letter was sent to tbe contractor:
    “Navy Department,
    “Bureau oe Construction and Repair,
    “ Washington, Sept. 29th, 1863.
    
    “Mess. Geo. W. Lawrence & Co.,
    
      “Portland, Me.:
    
    “Tbe contract for a ligbt-draft monitor, awarded to you on tbe 2d day of June, 1863, together with your agreement with Mr. Pickering of the date of June 11th, has been submitted by tbe Department to tbe Attorney-General, whose opinion is that by tbe law the contract is annulled, and that it can not be treated as binding on tbe United States.
    “Respectfully, your ob’t serv’t,
    “John Lenthall, Ghf. BuP
    
    YII. Tbe reason given by tbe Attorney-General for bolding that this contract bad been annulled was that Lawrence bad transferred all his interest therein by tbe following instrument:
    “Boston, June 11th, 1863.
    
    “ In consideration of one dollar, paid by each to tbe other, we, tbe undersigned, hereby agree to enter into a copartnership for tbe purpose of building a ‘light-draught monitor’ for tbe Navy Department of tbe United States Government, and each of tbe parties hereto, copartners as aforesaid, and for tbe object above mentioned, it being understood and agreed that tbe Globe Works, of Boston, Massachusetts, are to build said 
      1 light-draught monitor’ in tbe manner required by tbe contract and specifications furnished by tbe Government aforesaid, said Globe Works receiving tbe payments as tbe same shall be made by tbe Government. Two thousand dollars from each of tbe five first payments in full for the interest of George W. Lawrence, one of the parties hereto, shall be paid to him by the Globe Works, and it is also understood that said Lawrence is not to be required to furnish any part of the guarantee to the Govt, on said contract, nor is he to pay any part of the tax, if any, which may be- payable to the Govt, as a manufacturer’s tax; and it is further agreed by and between the parties hereto that Daniel N. Pickering shall receive and receipt to the Govt., for us, for the payments when made, and he is to settle with and pay the Globe Works from said payments, and said Lawrence is not to be liable for any loss by reason of not having the same completed in time, or for any other reason.
    “D. N. PICKERING-. m ¡4
    “G. W. Lawrence. m
    
    “Witness both signatures:
    “E. K. McMichael.”
    Till. The Globe Works was a Massachusetts corporation, with a shipyard at South Boston, engaged at that time in building marine engines and vessels, among them the Suncoolc, a vessel similar to the Wassuc. John Souther was president and owned 94 per cent of the stock, while Daniel N. Pickering was treasurer. The above instrument was execute' in the presence of Mr. Souther, who had authorized Mr. Pickering to enter into an agreement as treasurer and in behalf of the company, but had not authorized him to enter into any agreement of partnership. In pursuance of the above instrument, the Globe Works bought material and began the construction of the Wassuc, which material Lawrence took off their hands in September, 1863, and moved to Portland, where he built the Wassuc.
    In the latter part of August, 1863, he began to build a ship house and a machine shop at his shipyard at Portland, in order to make it ready for the building of the Wassuc.
    IX. The general inspector of ironclad steamers, at New York, sent to Lawrence, at Portland, Me., drawings, specifications, and directions for the construction of work called for by the contract of June 2,1863, of changes required to be made in such work, and of work extra to that contract, from time to time, from June 17, 1863, to October 6, 1863, inclusive. The general plans and specifications furnished with the contract of November 3, 1863, and referred to therein, were the same that had previously been furnished with the contract of June 2,1863, and in paying for changes and alterations no distinction was made by the Navy Department between those ordered by communications sent to Lawrence before October 7,1863, and those ordered on or after November 3, 1863. The improvements adopted between June and November, 1863, were regarded and treated by the parties as changes and alterations from the specifications furnished with the contract of November 3,1863.
    On June 29, 1863, the general inspector wrote to one Emerson Ames, an assistant inspector, as follows:
    “You will proceed to Portland, Me., and assume the inspectorship of the ironclad steamer Wassuc, now building by Mr. G-.W. Lawrence in that city. * * * You will make biweekly report to me in duplicate, commencing Wednesday, July 22, of the state and progress of the work upon the vessel, armature, and turret.” * # *
    On July 22,1863, Ames reported to the general inspector, in regard to the Wassuc, stating that it was being built at the Globe Works, South Boston, by George W. Lawrence. His report of August 5, 1863, has not been produced, but later reports state that no work was done on the Wassuc at the Globe Works after the report of August 5,1863.
    On October 7,1863, the general inspector wrote to Lawrence, at Portland, as follows:
    “ I am instructed by the general superintendent that your contract for building the light-draft monitor Wassuc has been annulled by the Navy Department, on the opinion of the Attorney-General. You will please therefore deliver to Assistant Inspector Emerson Ames the drawings and specifications for that vessel, which have been sent to you from this office.”
    On November 2,1863, the general superintendent of ironclad steamers, at New York, wrote to Lawrence that the general inspector had been directed “ to return to you the drawings of the Wassuc.”
    X. The contractor was paid the full contract price for building the vessel, viz, $386,000.
    Changes and additional work were ordered from time to time during the construction of the vessel, both before the Navy Department declared that the contract awarded June 2, 1863, was annulled and after the contract of November 3, 1863, was made. The cost of a portion of these changes and of this additional work was agreed upon beforehand, viz:
    Raising liull. $55,275.60
    Bulkheads in quarters.'. 1, 500.00
    Port stoppers. 1,000.00
    Pilot-house roof. ■ 1, 000. 00
    Tar on pine timber. 900.00
    59,675.60
    The agreed price has been paid for all these items except that for the port stoppers, for which $862.77 was paid;
    For other changes and additional work the further sum of $110,277 was also paid.
    The cost of changes and additional work, over and above what has been paid therefor (including $137.23 for the balance of the sum agreed to be paid for port stoppers) was $30,919.08.
    XI. All payments made to G-eorge W. Lawrence, both those for contract work and those for changes and additional work, were made after the contract of November 3,1863, was made, the first payment being made on a bill rendered January 4, 1864. All the vouchers for contract payments, and all but three of the others, referred specifically to the contract of November 3,1863.
    XII. From the 24th of June, 1864, to October 20,1864, work was suspended by the orders of the Department, which then had in contemplation some general changes in construction which required time to perfect. During this time the contractor was under expenses, and he dared not discharge his men for the fear of inability to supply their places.
    If the work had continued under the contract of June 2, 1863, and if there had been no delay on the part of the Government in furnishing plans and specifications, the Wassue would have been substantially completed within the time specified in that contract.
    The loss sustained by reason of the delays of the Government could not have been prevented by reasonable prudence and foresight on his part; the labor could not be anticipated; nor could he know, from the changes being made, the kind, quantity, and quality of the material necessary to be used in complying with the changes.
    
      The contractor received the following letter from Mr. Sti-mers, the officer of the United States then in charge of this work:
    “ GENERAL INSPECTOR’S OEEICE,
    ■ “ Ironclad Steamees,
    
      “ 256 Oanal st., New Torlc, August 31,1863.
    
    “ G-. W. Lawrence,
    
      u Portland, Maine.
    
    
      “ G-entlemen: The building of ironclad steamers is a novelty in this country, as in every other. It is therefore impossible to make a complete general plan and write complete specifications at one date which will satisfy all the requirements subsequent, experience and study point out, the more especially as the fleet already in service is actually engaged with the enemy and developing rapidly all the weak points of the original structures.
    “The Navy Department, however, desire that vessels now building shall have incorporated in them all the improvements which our experiences and a study of the subject shall point out, and in the more recent contracts such improvements aud changes are especially provided for, but the mode of effecting them in such a manner as to create no confusion in settling-extra bills has not heretofore been very clearly defined.
    “ To establish rules for this purpose, I have been directed by the rear-admiral superintendent to write to you, explaining the course to be pursued in all cases which call for modifications of your contract.
    “ Whenever you receive any plans or any instructions from • this office, or from the local inspector, which you consider modifiesyour contract, or in any way entitles you to make an extra charge, you will write to me, stating the fact, with your reasons for considering it as an extra, and giving the extra amount for which you are willing to complete the work as directed.
    “ Upon the receipt of which I will obtain the decision of the Department or Bureau and write you accordingly.
    “ Hereafter all directions, and all plans which occur to me as being changes from the original contract, will first receive the authority of the Navy Department or the proper bureau before it is issued, and you will be so informed at the time; upon the receipt of which it will be necessary for you to state in writing the extra sum for which you are willing to make the change, and to receive the assent of the Department through its proper agents, probably by letter from this office, before it will consider itself committed to pay any extra sum for said change.
    “ I am, very respectfully,
    “Alban C. Stimers,
    “ General Inspector.”
    
    
      XIII. Between tbe 2d of February, 1863, when it was originally contemplated, under the contract of June 2,1863, that the vessel should be completed, and October 4,1865, the date of her completion, there was a great advance in the price of labor and material entering into the vessel, and in addition to the cost of extra work and extra material the contractor incurred great expense in the original contract work on that account. For this enhanced cost the contractor has received no compensation. None of those advances could have been avoided by the exercise of ordinary prudence and diligence on his part. No part of the above rise in the price of labor and material occurred after July 3,1864, the date fixed for completion by the contract of November 3,1863.
    XIV. The following table shows when the payments under the contract of June 2, 1863, should have been made and when they were actually received:
    
      
    
    XV.If the claimant is legally entitled to recover for the prolonged term beginning at the expiration of the period of eight months from the date of the contract of June 2,1863, to wit, on the 3d day of February, 1864, the following is the additional cost incurred by her decedent, George W. Lawrence:
    Increased cost of labor. $36, 440. 01
    Increased cost of materials.•-. 55, 540. 50
    Expenses, superintendence, etc.— 7,288.00
    Balance unpaid for changes and alterations ordered. 30, 919.08
    Amounting in all to...— 130,187.59
    If the claimant is legally entitled to recover only for the prolonged term beginning at the expiration of eight months from the date of the contract of November 3,1863, to wit, on the 4th day of July, 1864, the following is the additional cost incurred by her decedent, George W. Lawrence:
    Expenses, superintendence, etc. $5,466.00
    Balance unpaid for changes and alterations ordered. 30,919.08
    Amounting in all to. 36,385.08
    
      Mr. Sigourney Butler and Mr. John S. Blair for the claimant.
    
      Mr. William J. Binney (with whom was Mr. Assistant Attorney- General Bodge) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

This case is identical with a number of cases which have been before the court — the cases of the Squando (27 C. Cls. R., 422), the Nauset (29 id., 567), the Umpqua (28 id., 564), and the Baubue (31 id., 468) — in every particular save one. The vessel constructed was one of a class, the “ light-draft monitors;” the contract and specifications of all were the same; the vessel in size and form was the same; the period of construction was substantially the same; the nature of the changes, alterations, and delays was the same; the increase in the cost of labor and material during the time of construction was the same; and the statute referring the case to this courtis identical in terms with the other statutes of reference.

The particular in which the case differs from the others is this: After the contract had been executed and the work had been begun the Navy Department objected to the vessel being built in Boston and insisted that it was the purpose and policy of the Department that she should be built in Portland, Me. This requirement was not expressed in the contract, or in the specifications, or in the advertisement for proposals, or in any letter or paper which has been brought to the attention of the court. The builder remonstrated, but the Department was imperative and the builder expressed his willingness to yield. About this time the-Department discovered that an instrument had been executed by the contractor and the treasurer of the Globe Works in Boston which the Department construed to be ah assignment of the contract. The matter was referred to the Attorney-General, and he gave an opinion holding that this agreement was an assignment and worked an annulment of the contract under the Act 17th July, 1862 (12 Stat. L., 596). Some correspondence ensued, in which the builder reiterated bis willingness to construct tlie vessel at Portland, and resulted in tbe execution of a second contract . differing from tbe first only in dates.

Before tbe execution of this second contract plans and specifications had been furnished by tbe Department and work for tbe vessel bad been begun in the Globe Works in Boston, and delays bad occurred on tbe part of tbe Government. Tbe only effect of tbe second contract on the case is this, that if it be taken as fixing tbe beginning of tbe mutual obligations of tbe parties, of tbe builder to construct a vessel within eight months and of tbe employer to enable him to do so, tbe period of obligation will be postponed five months and tbe amount of damages to be recovered will be reduced from $ 13b, 187 to $36,385.

All of tbe payments that were made to tbe builder assumed to be made under tbe second contract, and tbe counsel for the claimant has conceded tb at tbe work was technically done under that contract; but tbe Department allowed and made payments for alterations which bad been ordered before tbe date of the second contract, and the case was so treated by tbe Gregory board, a naval board presided over by Admiral Gregory which examined all tbe claims of all tbe contractors and recommended allowances to them. (See 27 C. Cls. R., 422, where tbe history of tbe Gregory board is given.)

Tbe theory upon which tbe previous cases were decided was this: The court regarded tbe contract as giving to tbe builder a period of eight months within which be was bound to construct and complete tbe vessel, and to tbe Government, reciprocally, the same period of eight months within which it was not responsible under tbe statute “for any advance in tbe price of labor or material.” The “ prolonged term for completing tbe work,” in tbe opinion of tbe court, began when tbe eight months expired. In this case tbe first contract bore date tbe 2d day of June, 1863, and tbe period of construction, therefore, would have expired on tbe 2d day of February, 1864. If that was tbe day when tbe Government’s liability began for “ additional cost of labor and material” and for increased expenses, tbe claimant should recover for—

Increased cost of labor. $36,440.01
Increased cost of materials. 55,540.50
Expenses, superintendence, etc. 7,288.00
Amounting in all to. 99,268.51

The second contract bore date November 3,1863, and consequently the period of eight months expired on the 3d day of July, 1864. If that was the day on which the liability of the Government began, the claimant should recover nothing for increased cost of labor or increased cost of material and only $5,466 for “expenses, superintendence, etc.” In either of these alternatives the claimant should also recover for an unpaid balance of changes and alterations ordered by the Navy Department, $30,919.08. The total recovery therefor on the claimant’s theory of the case should be $130,187.59 and on the defendant’s, $36,385.08.

The position taken by the counsel for the claimant is substantially that which was taken by the Gregory board, when they disregarded the date of the second contract and considered alterations and additions as if a part of the work had been done under the first. The counsel contends that it was the intention of Congress when they referred the claim to this court that the contractor should be made whole for changes and alterations ordered by the Navy Department and for damages sustained by reason of delays in the progress of the work caused by the officers of the Government, irrespective of the contract or contracts.

It is true that when this special act was passed conferring jurisdiction and declaring and limiting the liability of the United States, the claimant could not recover upon either contract. Its terms constituted a complete defense. This had been decided by the highest judicial authority in the case of the Etlah (Chouteau v. The United States, 95 U. S., 61). Congress therefore disregarded the term of the contract when they enacted this law, which is in these words:

“AIN* ACT for the relief of the administratrix of the estate of George 'W. La-wrenoo.
uJBe it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the claims of George W. Lawrence for further compensation for the construction of the United States monitor Wassuc may be submitted by said claimant within six months after the passage of this act to the Court of Claims, under and in compliance with the rules and regulations of said court; and said court shall have jurisdiction to hear and determine and render judgment upon the same: Provided, however, That the investigation of said claim shall be made upon the following basis: The said court shall ascertain the additional cost which was necessarily incurred by tbe contractor for tbe construction of tbe United States vessel Wassuc in tbe completion of tbe same by reason of any cbanges or alterations in tbe plans and specifications required and delays in tbe prosecution of tbe work: Provided, Tbat sucb additional cost in completing tbe same, and sucb changes or alterations in tbe plans and specifications required, and delays in tbe prosecution of tbe work, were occasioned by tbe Government of tbe United States; but no allowance for any advance in the price of labor or material shall be considered unless sucb advance occurred during tbe prolonged term for completing tbe work rendered necessary by delay resulting from tbe action of the Government aforesaid, and then only when sucb advance could not have been avoided by tbe exercise of ordinary prudence and diligence on tbe part of the contractor: And provided further, Tbat the compensation fixed by tbe contractor and tbe Government for specific alterations in advance of sucb alterations shall be conclusive as to tbe compensation to be made therefor: Provided, That sucb alterations when made complied with tbe specifications of tbe same as furnished by tbe Government aforesaid: And provided further, Tbat all moneys paid to said contractor by tbe Government over and above the original contract price for building said vessels shall be deducted from any amounts allowed by said court by reason of the matters hereinbefore stated: And provided further, Tbat if any sucb cbanges caused less work and expenses to the contractor than tbe original plan and specifications a corresponding deduction shall be made from the contract price, and tbe amount thereof be deducted from any allowance which may be made by said court to said claimant.
'“ Approved, October 1, 1890. (26 Stat. L., 1314.)”

Here it will be seen tbat tbe liability of tbe defendants is limited to cbanges, alterations, and delays “occasioned by tbe Government,” and that an allowance “ for any advance in tbe price of labor or material” is limited to “tbe prolonged term for completing tbe work rendered necessary by delay resulting from tbe action of tbe Government.”

It is possible tbat tbe change of tbe work from Boston to Portland and tbe redating of the contract as of November 3, 1863, instead of June 2, 1863, did not materially delay tbe final completion of the vessel. It is possible tbat if tbe Government bad banded to tbe builder on tbe 3d of November all of tbe plans and specifications of tbe vessel, and allowed her to be built in the form originally intended, be might have completed her by tbe 2d of February, 1864, i. e., within the eight months of the first contract. But that possibility is not a thing to be assumed. There is no evidence in the case which would warrant the court in finding it as a fact. The statute contemplates a term within which the builder had to run the risks of increased cost of a rising market; and it designates another term of changes,, alterations, and delays during which the Government would be responsible for the enhanced market price of labor and material. Manifestly the one term must end before the other term could begin.

The questions therefore remain: During what period did the Department hinder and delay the work? During what period was there a rise in the prices of labor and material? During what period did the contractor by his own acts contribute to the delay; and if so, to what extent did he thereby diminish the liability of the Government?

The counsel for the claimant has also by an elaborate argument attacked the action of the Navy Department in refusing to allow the vessel to be constructed in Boston and in construing the instrument before referred to to be an assignment of the contract and in declaring an annulment of the contract as before stated. But the court does not feel at liberty to review those questions. The abandonment of the old contract, the execution of the new, the removal of the work from Boston, and the continuance of the work at Portland constituted the compromise of a matter in dispute; and the court must take the matter as the parties have left it. That is to say, the court must assume that by mutual agreement the first contract was canceled and the second was entered into, and the vessel was built in Portland instead of in Boston and by the contractor and not by the Globe Works.

These changes took place during the eight-month period of the first contract, and they necessarily involved delay. That delay, from a moral point of view, may have been caused by the Government, but from a legal point of view it was caused by the contractor. By submitting to the demands of the Government, by entering into a new contract, by constructing the vessel in Portland, he acquiesced in the Government’s demands. After the eight-month period of the first had begun to run, the contractor had to remove manufactured material from Boston to Portland and erect a building there for the construction of the vessel, and put new machinery in his works, and organize a force. These changes were delays, and delays for which he was responsible. From his then point of view it was necessary that the original eight-month period should be extended; that he should not be subject to penalties if he should not complete the work within eight months from the 2d June, 1863. This extension of time he obtained by means of the second contract. ' In the absence of evidence to show within what time he could have completed the contract at Portland if he had not been hindered and delayed, or to show how much time the change from Boston' to Portland involved, the court must hold that the term for completing the work for which the Government is responsible began at the expiration of the term of the second contract, to wit, on the 4th of July, 1864.

The judgment of the court is that the claimant recover of the defendants the sum of $36,385.08.

Howry, J., took no part in the decision, the case having been argued before he took his seat.  