
    JAMES E. SIMPSON & CO. v. THE UNITED STATES.
    [No. 18028.
    Decided March 3, 1896.]
    
      On the Proofs.
    
    The claimants send in proposals to build their patented dry docks “upon available sites to be provided by the Government.” The proposals are accepted and a "contract entered into. A site is selected in the Brooklyn yard, and soundings are made which disclose no special difficulty. These soundings, made by the defendants’ engineer, are examined by the claimants, who then make their offer and enter into their contract without further examination. In the progress of excavation a stratum of quicksand is struck, which greatly increases the cost of construction. It is a surprise to both parties. The defendants pay the contract price, but decline to pay the additional cost caused by the quicksand.
    I.A provision in a contract that the contractors will build dry docks in certain navy-yards “upon available sites to be provided by the Government” can not be so construed as t) hind the Government to furnish information with regard to the subsoil or to warrant the site as being what it appears.
    II.An “ available site” for a dry dock in a navy-yard is one which is free from buildings, easy of access from the shops, convenient for workmen, having practicable entrance from the water, and which interferes as little as practicable with the other uses of the yard. The term does not import one which has a good subsoil free from quicksand and defects which may cause an extraordinary expense to the builders.
    III.Where a contract throws the risk of construction upon the builder and it was so understood by the defendants, and there was no mutual mistake of fact, there is nothing in the contract to reform.
    IV.Where contracts and specifications are drawn by the contractors, doubtful expressions will be construed more strongly against them.
    V.Where a contract is drawn and tendered by an expert in a difficult and unusual class of work, one of the unwritten considerations is the dependence of the employer upon the skill of the specialist who undertakes the work. The danger of the undertaking should he contemplated by the latter when he enters into the contract.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. At all times hereinafter mentioned James E. Simpson, James E. Simpson, jr., Alfred H. Simpson, and Willie E. Simpson, plaintiff's herein, were copartners, doing business under the firm name of J. E. Simpson & Co.
    II. April 19, 1887, the following advertisement was made by the Bureau of Yards and Docks, of the Department of the Navy:
    “Bureau op Yards and Docks,
    “Navy Department,
    “ Washington, April 19,1887.
    
    “Under authority conferred by the act of Congress making appropriations for the naval service, approved March 3, 1887, sealed proposals are hereby invited and will be received at this Bureau by the undersigned until 12 o’clock noon on Wednesday, the 29th day of June, 1887, at which time and place the proposals will be opened in the presence of bidders for the construction by contract of two timber dry docks, of the following.general dimensions, with iron caissons or floating gates, pumps, boilers, engines, pump houses, capstans, bollards, discharge and drainage culverts, and all other attachments pertaining thereto, complete, said docks to be located at the New York and Norfolk navy-yards, respectively, each dock to be not less than 480 feet in length from the inside of the coping stone at the head of the dock to the outer caisson abutment at the entrance, the width not less than 125 feet between the coping, from side to side, measured across the length of the dock midway from the ends; draft on sill not less than 25 feet 6 inches; width on floor not less than 40 feet; entrance 80 feet wide.
    “All patents or patented articles, if any, employed in the construction of these docks are to be included in the proposals.
    “That portion of the dock exposed to the water at all times to be of timber, impregnated with creosote; also the five upper altars.
    “The pumps for the docks to have a discharge capacity equal to 40,000 gallons per minute each.
    “Dry-dock builders are invited to submit plans and specifications with proposals for the entire construction and completion in all respects of one or both of the timber docks of the dimensions above specified. Proposals, plans, and specifications are also invited and will be considered from dry-dock builders for two timber docks of any length over and above 480 feet and not exceeding 500 feet (the dimensions otherwise to be the same as hereinbefore stated), the cost of the increased length to be proportionate per lineal foot to the offer made for the docks of 480 feet length.
    “Bidders will make their plans and specifications full and clear, describing the kinds and qualities of materials proposed to be used.
    
      “Plans not favorably considered will be returned to tbebid-ders if desired.
    “Proposals must be in duplicate, sealed and addressed to tlie Chief of Bureau of Yards and Docks, Navy Department, Washington, D. C., and the envelopes endorsed ‘Proposals for timber docks.’ Blank forms will be furnished on application.
    “For information in regard to the location and sites of the dry docks, bidders are referred to the commandants of the New Yorlc and Norfolk navy-yards.
    
    “Two satisfactory sureties must accompany the proposal, and no proposal will be considered unless accompanied by the prescribed bond which forms a part of the same.
    “The successful bidder will be required, within ten days after the acceptance of his proposal, to enter into a formal contract for the performance of his work, and to give a bond therefor, with sufficient sureties, and in a penal sum equal to 15 per cent of the amount of his bid.
    “Bidders will state how soon after the award of the contract they will be in readiness to commence the work and the length of time they require to complete the docks, and also what docks they have built and where located.
    “The Bureau reserves the right to reject any or all bids, as in its judgment the interests of the Government may require.
    “ Payments to the contractor will be made i n ten equal installments, as the work progresses, upon bills duly certified, from which 10 per cent will be reserved, to be paid on the full and final completion of the contract.
    “D. B. Harmony,
    “ Chief of Bureau”
    
    III. May 23, 1887, the following letter was written to the commandant of the New York Navy-Yard:
    “Bureau letter No. 880.]
    “Bureau or Yards and Docks,
    “Navy Department,
    “ Washington, I). C., May 23, 1887.
    
    ' “Sir: To enable the dry-dock builders who may apply at the yard under,your command for information concerning the proposed neAV timber dry dock, particularly regarding the foundation of the site selected for the dock, I am instructed by the Chief of the Bureau to request you to direct the civil engineer of the yard to have the necessary borings made at once with a view of ascertaining the nature of the soil to be excavated for the pit or basin of the dock, as well as to what depth, if any, below the line of water mark it will be necessary to have the piling driven to secure a proper foundation for the structure.
    “Yery respectfully, your obedient servant,
    “A. B. Merritt,
    
      “Chief Cleric and Acting Chief of the Bureau.”
    
      ° This letter was referred by the commandant of the navy-yard to P. C. Asserson, a civil engineer of the Navy.
    Asserson then prepared the profile and report hereinafter shown.
    IV. After this advertisement Alfred EL Simpson visited Commodore Gherardi, commandant of the New York Navy-Yard, and asked for information concerning the site of the proposed dry dock at that yard. Simpson was referred by the commandant to Asserson for the information.
    V. Simpson then saw Asserson, and in his company visited the site selected. Asserson, in answer to a request of Simpson, informed Simpson that he (Asserson) had made borings on the site to ascertain the nature of the foundation and was preparing, or had prepared, a profile of it and report upon it. Simpson asked Asserson for a copy of the profile and report. Asserson referred Simpson to the commandant of the yard for permission to examin e the profile and report. The site selected was useful from a seaman’s point of view. The only objection to it shown is that as to the substrata developed, as appears in these findings.
    VI. June 9, 1887, Alfred H. Simpson applied at the New York Navy-Yard for a copy of the said profile and report, and was informed that the same had been sent to Washington.
    VII. June 9, 1887, Alfred J. Simpson, for plaintiffs, requested Commodore D. B. Harmony, Chief of the Bureau of Yards and Docks, to permit him to examine the said profile and report, to obtain information as to the character of the soil underlying the site. Simpson, at the time of making' this request, stated to Harmony that he wished the information for use in estimating the cost of the dry dock, and in the preparation of a bid which the plaintiffs proposed to submit, pursuant to the advertisement hereinbefore set forth.
    VIII. PursuanttothispermissionfromOommodoreHarmony, Alfred H. Simpson examined the said profile and report in the drafting room of the Bureau of Yards and Docks of the Navy Department.
    Said profile and report appear as the last of these findings.
    IX. June 11,1887, plaintiffs sent the following letter:
    “New York, June 11, 1887.
    
    “Commodore Bancroft Gherardi, U. S. N.,
    
      “Commandant, Navy-Yard, Neio York.
    
    “ Sir : On the fourth inst. we communicated with you, by letter, requesting certain information in reference to proposed dry dock, but at this date have not the pleasure of your reply.
    
      “We have now tbe honor to request, if consistent, that you will favor us with a copy of any profiles which may have been made showing the character of the soil underlying the selected site for proposed dry dock.
    “ Very respectfully, your obedient servants,
    “ J. B. Simpson & Co.”
    Thereafter, in compliance with this request, plaintiffs were furnished with a copy of the qirofile aforesaid.
    X. At plaintiffs’ request the court find as a fact that the character of the soil underlying any given piece of ground can be learned by means of borings or soundings, and if quicksand and other unstable materials are present, that fact can be ascertained.
    XI. It was important for the plaintiffs to know the character of the soil underlying the site in order to determine the length of the piles and the amount of labor and material to be required in the construction of the proposed dry dock.
    Plaintiffs had no information concerning the character of the soil underlying the site, except that obtained from the said profile and report, and they were offered no opportunity to make borings, or other independent investigations for the purpose of ascertaining the character of the said soil, nor did they ask to make them, nor were they prevented from making them. Plaintiffs trusted to Asserson’s report and the profile for information as to the character of the site.
    XII. Alfred H. Simpson is an engineer by education and practical experience, and is a member of the American Society of Civil Engineers; prior to the time when he made an examination of the said profile and report he had had extended experience in the construction of dry docks and was familiar with the requirements thereof.
    Alfred PL. Simpson saw the said profile and report.
    XIII. An engineer, after making an examination of the said profile and report, and trusting exclusively to them, would consider that the soil underlying the site offered a good foundation for a dry dock.
    An engineer, after making an examination of the said profile and report and trusting exclusively to them would consider that the construction of a dry dock upon the site represented would not be attended with unusual engineering difficulties or unusual expense.
    XIV. Alfred H. Simpson used the information aforesaid in tbe preparation of plans and specifications for the dry dock, and upon this information he based his estimate of the length of the piles and the amount of other material and labor to be required, and his estimate of the cost; taking this estimate as a basis, he prepared, thereafter, the bid for the dock.
    XY. Pursuant to the advertisement hereinbefore set forth, plaintiffs, June 27, 1887, submitted to the Navy Department the following bid, accompanied by plans and specifications drawn by plaintiffs :
    “Navy Department,
    “Bureau op Yards and Docks,
    “New YorJc, June 27th, 1887.
    
    “The undersigned, J. E. Simpson & Co., contractors and builders of Simpson’s patent timber dry docks, of the city of New York, in the State of New York, hereby offers to furnish, under your advertisement, dated April 19th, 1887, and subject to all the requirements of the same, and of the specifications, instructions, and plans to which it refers, two timber dry docks of like dimensions, to be built in accordance with plans and specifications herewith submitted. One of said dry docks to be located at the U. S. navy-yard, Brooklyn, in the port of New York, and the other at the U. S. navy-yard, Portsmouth, in the port of Norfolk, Va., upon available sites to be provided by the Government, for the sum of one million and sixty-one thousand six hundred ($1,061,600) dollars, U. S. currency. We further offer to furnish, under the same advertisement, two timber dry docks, as describéd in specifications hereinbefore referred to, of any greater length than four hundred and eighty (480) feet, and not exceeding five hundred (600) feet, for the sum of eleven hundred and five and -nf0-($1,105-^-) dollars per lineal foot.
    “ Should the contract be awarded to us we will be in readiness to commence the work within twenty days after we shall have been putin possession of the aforesaid sites, and the said dry docks shall be completed, ready to receive a vessel, within twenty-four (24) calendar months thereafter.
    “ In accordance with the requirements of the advertisement above referred to, we respectfully submit the following list of timber dry docks built by us and their location, all being now in successful operation:
    “Two (2) at the port of Portland, Me.
    “ Three (3) at the port of Boston, Mass.
    “ Two (2) at the port of New York, N. Y.
    “ One (1) at the port of Philadelphia, Pa.
    “ One- (1) at the port of Wilmington, Del.
    “ One (1) at the port of Baltimore, Md.
    “ One (1) at the port of St. Johns, Newfoundland.
    
      “And one (1) now in course of construction at the port of Newport News, Va.
    “ Should onr offer be accepted, we request the contract may be prepared and sent to navy paymaster at New York for signatures and certificate. And we hereby declare that the above offer is made in strict conformity, in every particular, with the law approved March 3, 1863, section 2, herein quoted.
    ^ ^ '/p ^
    “J. E. Simpson & Co., [l. s.]
    “ 35 Broackoay, New Yorlc, N. Y.
    
    “ Witness:
    “Bichaed S. Bostwick.
    “New Yore, June 27,1887.”
    
    XYI. The following contract was made October 13,1887:
    “ First. The contractors will, within twenty days after they shall have been placed in possession and occupancy of the site by the party of the second part, which possession and occupancy of the said site during the period of construction, and until the completion and delivery of the work hereinafter mentioned, shall be secured to the contractors by the party of the second part, commence, and within twenty-four calendar months from such date, construct and complete, ready to receive vessels, a timber dry dock, to be located at such place on the water line of the navy-yard, Brooklyn, New York, as shall be designated by the party of the second part; and will, at their own risk and expense, furnish and provide all-labor, materials, tools, implements, and appliances of every description — all of which shall be of the best kind and quality adapted for the work as described in the specifications — necessary or requisite in and about the construction of said dry dock and the iron caissons, pumping machinery, pumphouses, culverts, and all other accessories and appurtenances, in accordance with the aforesaid plans and specifications, subject to the approval of the civil engineer, or such other competent officer or person or persons as may for that purpose be designated by the party of the second part; it being further mutually stipulated aud agreed that the officer or officers, person or persons thus designated, shall and may, from time to time during the progress of the work, inspect all material furnished and all work done under this contract, with full power to reject any material or work, in whole or in part, which he or they deem unsuitable for the purpose or purposes intended or not in strict conformity with the spirit and intent of this contract and with the aforesaid plans and specifications, and to cause any inferior or unsafe work to be taken down, by and at the expense of the contractors, and that all such rejected material shall be at once removed from the yard and replaced by material satisfactory to such inspector, and that all such inferior or unsafe work shall be replaced by satisfactory work by and at the expense of the contractors. Such inspectors shall at all times during the progress of the work have full access thereto, and the contractors shall furnish them with full facilities for the inspection and suiierintendence of the same.
    “It is further mutually stipulated and agreed that at and upon the request of the civil engineer or other officer in charge any disorderly, careless, or incompetent person or persons employed by the contractors in or about the work to be done under this contract shall be at once discharged and not again employed therein; and that all necessary and suitable precautions shall be taken by the contractors during the progress and until the final completion of such work to avoid or prevent accidents, and that the contractors shall indemnify and save harmless the party of the second part from all claims against the United States, and from all actions and proceedings at law, and from all costs and damages for or by reason of any injury to person or property resulting from or directly or indirectly attributable to any accident or accidents which may occur in or during the prosecution of the work and in connection therewith or any part thereof, or to any carelessness or negligence wilful or otherwise, of any person or persons employed by the contractors, or to the use of improper or defective materials, or to any act or omission of the contractors prior to the final acceptance of the said dry dock.
    “Second. The contractors will, at all times during the progress of the work, give their personal supervision and attention to the same and to every part and detail thereof, and in case of their absence will have a competent representative or foreman present, authorized to act for them in all matters connected. with the work and to receive and follow directions relating thereto when given by the civil engineer or other officer in charge; and for all acts and omissions of such representative or foreman in the premises the contractors shall be responsible.
    “Third. The contractors will, from time to time, as the same may accumulate during the progress of the work, remove all refuse material and rubbish connected therewith, and any portion of such refuse material or rubbish which the contractors may agree to deposit within the limits of said navy-yard shall be so deposited by the contractors, at their own expense, where the commandant may direct, within reasonable distance from the work. On the completion of the work the surroundings shall be thoroughly cleaned up, filled and graded to the established level or levels of the yard as the civil engineer or other officer in charge may direct, and all plant and surplus material, including piles, timber, shores, braces, bolts, and rods comprising the cofferdam and its filling, shall be removed, by and at the expense of the contractors, without unnecessary delay.
    “Fourth. The contractors stipulate and agree to excavate or dredge all earth, clay, and mud behind or within the cofferdam used in the construction of said dry dork, and to remove any and all obstructions at and in front of the entrance of the said dry dock, occasioned by the construction of the cofferdam, to a depth of thirty-four feet below the coping of the dock, without extra charge.
    “Fifth. Insurance to the amount of fifty thousand dollars ($50,000) shall be effected in such manner and in such companies as shall be approved by the Chief of the Bureau of Tards and Docks, which insurance shall be renewed from time to time at the expense of the contractors; the loss, if any, to be stated in the policies as payable to the United States, for whom it may concern.
    “Sixth. The contractors shall hold and save the United States harmless from and against all and every just and legal demand or demands of any nature or kind, for or on account of the adoption of any plan, model, design, or suggestion, or for or on account of the use of any patented invention, article, or appliance, which has been or may be adopted or used in or about the construction of the said dry dock, its accessories and appurtenances, or any part thereof, under this contract, and to protect and discharge the Government from all liability on account thereof by proper releases from patentees or otherwise, and to the satisfaction of the Secretary of the Navy, before final payment under this contract shall be made.
    “ Seventh. The construction of the said dry dock and its accessories and appurtenances herein contracted for shall conform in all respects to and with the plans and specifications aforesaid, which plans and specifications are hereto annexed, and shall be deemed and taken as forming a part of this contract, with the like operation and effect as if the same were incorporated herein. No omission in the plans or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect, in accordance with the true intent and meaning hereof, shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the contractors, and all claims for extra compensation by reason of, or for or on account of, such extra performance, ate hereby and in consideration of the premises, expressly waived; and it is hereby further provided, and this contract is upon the express condition, that the said plans and specifications shall not be changed in any respect when the cost of such change shall exceed five hundred dollars, except upon the written order of the Secretary or Acting Secretary of the Navy; and if changes are thus made the actual cost thereof and the damage caused thereby shall be ascertained, estimated, and determined by a board of naval officers appointed bythe Secretary of theNavy,and the contractors shall bebound by the determination of said board, or a majority thereof, as to the amount of increased or diminished compensation which tliejr, tbe contractors, shall be entitled to receive, if any, in consequence of such change or changes; it being further expressly understood and agreed that such working plans and drawings and such additional detailed plans and specifications as may be necessary shall be lurnished by and at the expense of the contractors, subject to the approval of the Chief of the Bureau of Yards and Docks, and that if during’ the prosecution of the work if shall be found advantageous or necessary to make any change or modification in the aforesaid plans and specifications, such change or modification must be agreed upon in writing by the contractors and by the officer in charge of the work, the agreement to set forth fully the reasons for such change and the nature, thereof, and to be subject to the approval of the party of the second part: Provided, That no further payment shall be made unless such supplemental or modified agreement shall have been signed before the obligation arising from such change or modification was incurred, and until after its approval by the party of the second part: And provided further, That no change herein provided for shall in any manner affect the validity of this contract.
    “Eighth. The aforesaid dry. dock and its accessories and appurtenances and each and every part thereof shall be constructed of approved materials and in a thoroughly substantial and workmanlike manner, and to the satisfaction of the party of the second part.
    “Ninth. In case the completion of the said dry dock, its accessories and appurtenances, shall be delayed beyond the said period of twenty-four months, pienalties shall be imposed upon the contractors for each and every day (excepting Sundays) in excess of said period, and until the said dry dock, its accessories and appurtenances, are complete and ready for use, as follows, viz, during the three months next succeeding the expiration of said period, fifty dollars per day, and for each and every day (except Sundays) during which such completion shall be delayed beyond a period of two years and three months from the time fixed in this contract for the commencement of the work, one hundred dollars per day; all penalties thus incurred to be offset, from time to time, against any payment or payments falling due under this contract: Provided, however, That such delay shall not have been caused by the act of the party of the second part, or by fire or water, or by any strike or stand out of workmen employed in the construction of said dry dock, its accessories and appurtenances, or by other circumstances beyond the control of the parties of the first part, but such circumstances shall not be deemed to include delays in obtaining materials when such delays arise from causes other than those herein specified: Provided further, That in case of such alleged delay the contractors shail give immediate notice thereof to the Secretary of the Navy.
    
      “In case any question shall arise under this contract concerning penalties, such question, with all the facts relating thereto, shall be submitted to the Secretary of the Navy for consideration, and his decision thereon shall be conclusive and binding upon all the parties to this contract. All delays which the Secretary of the Navy shall find to be properly attributable to the Navy Department, orto its authorized officers or agents, or any or either of them, and to have been a delay operating upon the final completion of the dry dock within the times herein specified therefor, shall entitle the contractors to a corresponding extension of the period herein prescribed for the completion of said dry dock: Provided, hoioever, That no delay attributed by the contractors to the Department, its officers or agents, or the alleged cause or causes thereof, shall be considered by the Secretary of the Navy, unless the contractors shall at the time of the occurrence of such delay, notify him in writing of the facts and circumstances in each case, and of the extent to which they claim that the final completion of the dry dock is thereby delayed.
    “Tenth. It is mutually understood, covenanted, and agreed .by and between the parties hereto that the said dry dock shall not be accepted, and that the contractors shall not be entitled to the final payment or to the reservations previously made until twenty days after a complete test of said dock shall have been had under the direction of such officers as may be designated by the party of the second part; such test to consist of a full-duty test of the pumping machinery in pumping out the dock, and the docking of such vessel as the party of the second part may direct; the emptying of the dock, the refilling of the dock, and the removal of such vessel, without any indication whatever of any defect, weakness, or settlement, or of any lack of capacity or power in said dock or either of its accessories; and the results of such test to be in all respects to the full and complete satisfaction and approval of the officers designated to superintend the same. Such test shall be made within twenty days after the contractors shall have notified the party of the second part of the completion of the dock, and a decision upon the question of acceptance made within twenty days thereafter.
    “In case the pumping machinery shall, on such test, fail to have and exhibit a discharge capacity of eighty thousand (80,000) gallons per minute, a corresponding deduction from the contract price shall be made, the amount of said deduction to be fixed upon by a board consisting of three persons, one of whom shall be selected by the contractors and one by the party of the second part, the two thus selected to choose the third, and the decision of such board or a majority thereof to be final: Provided, however, That the mean discharge shall not fall below sixty thousand (60,000) gallons per minute: And provided further, That the pumping machinery shall be found satisfactory in every other particular. In case the pumping machinery shall, on such test, fail to discharge an amount equal to or greater than sixty thousand ((10,000) gallons per minute, it is to be rejected and to be thereupon removed from the yard at the expense of the contractors, and other and suitable machinery substituted therefor by such contractors.
    “Eleventh. It is further mutually understood, covenanted,, and agreed that in case of the failure or omission of the contractors, at any stage of the work prior to final completion, from any cause or causes other than those specified in the ninth clause of this contract, to go forward with the work and make satisfactory progress towards its completion within the prescribed period, it shall be optional with the Secretary of the Navy to declare this contract'forfeited on the part of the contractors, by giving notice in writing to that effect to them or any of them; and, upon the giving of such notice, all money or reserved percentage due or to become due to the contractors by reason of this contract shall be and become forfeited to the United States; and the party of the second part shall thereupon have power to perform or complete the work by special contract, or in such other lawful manner as may be deemed advisable, and the contractors shall be charged with the expense resulting from such failure. In case the said Secretary shall, under the provisions of this clause, declare this contract forfeited, such forfeiture shall not affect the right of the United States to recover for defaults which may have occurred hereunder and as liquidated damages a sum of money equal to the penalty of the bond accompanying the same: Provided, however, That if the contractors shall, by any of the causes specified in the ninth clause of this contract, be prevented either from commencing or completing the work at the time agreed upon in this contract such additional time may, in writing, be allowed them for such commencement or completion as, in the judgment of the Secretary of the Navy, shall be just and reasonable; but süch allowance and extension shall in no manner affect the rights or obligations of the parties under this, contract, but the same shall subsist, take effect, and be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.
    “ Twelfth. And this contract further witnesseth that, in consideration of the premises, and for and in consideration of the payments tobe made as hereinafter specified and provided for,, the parties of the first part, for themselves, their heirs and assigns, and their and each of their personal and legal representatives, do hereby jointly and severally fur! her covenantaud agree to and with the United States as follows — that is to say:
    u The contractors will, within twenty days after they shall have been placed in possession and occupancy of the site by the party of the second part, which possession and occupancy of the said site during the period of construction and until the completion and delivery of tbe work hereinafter mentioned shall be secured to the contractors by the party of the second part, commence and, within twenty-four calendar months from such date, construct and complete, ready to receive vessels, a timber dry dock, to be located at such place on the water line of the navy-yard, Portsmouth, Virginia, as shall be designated by the party of the second part, which dock shall be of the same dimensions and, together with its accessories and appurtenances, shall be constructed, completed, and tested in the same manner and subject in all respects to the same conditions as are, in and by this contract, provided for in the case of the timber dry dock to be constructed as aforesaid at the navy-yard, Brooklyn, New York $ it being further expressly understood, covenanted, and agreed that the timber dry dock to be located at the navy-yard, Portsmouth, Virginia, as aforesaid, shall be constructed and completed in exact accordance with the aforesaid plans and specifications, and with any changes therein or modifications thereof that may be determined or agreed upon as hereinbefore provided, the same being equally applicable to each of the dry docks to be constructed under this contract.
    “Thirteenth. The covenants, conditions, and provisions relating to payments under this contract are hereby mutually understood and agreed upon by and between the respective parties, as follows — that is to say:
    “1. The contract price to be paid for the two timber dry docks and their accessories and appurtenances, to be constructed in accordance with this contract, shall be one million and sixty-one thousand and six hundred dollars ($1,061,600), U. S. currency.
    “2. The amount of material provided and of work performed by the contractors monthly shall be taken as a basis for making payments under this contract, and shall be determined by a fair schedule and classification of prices furnished by the contractors and annexed hereto and forming a part of this contract.
    “ 3. The officer in charge shall, on or before the fifth day of each month during the progress of the work, prepare an estimate of the work done and materials furnished and delivered during the month preceding the first day of the month then current, according to the rates specified in the schedule aforesaid, and certify as the amount properly payable thereunder, which estimate shall be submitted to the commandant of the navy-yard where such dock is in course of construction for his approval.
    “ 1. When such estimates shall have been approved by the respective commandants as aforesaid, the respective amounts thereof, less ten per cent, shall be paid through the issuance and delivery to the contractors of bills in triplicate, duly certified by the officer in charge and approved by said commandant and the Chief of the Bureau of Yards and Docks, and every such payment shall be deemed a payment on account of the aforesaid contract price.
    “5. The reservation of ten per cent on each monthly payment, as above provided for, shall be held until this contract shall have been fully performed by or on the part of the parties of the first part, and the said dry docks, their accessories and appurtenances, shall have been finally accepted by the party of the second part; and no monthly or other payment shall be made under this contract, except upon approval by the officer in charge, of all work done and material furnished up to the first of the month previous to the date of such payment, nor without satisfactory evidence, such as a county clerk’s certificate, furnished by the contractors to said officer, that there are no existing liens other than that of the United States upon such work or materials at the date of such approval.
    “6. When all the conditions, covenants, and provisions of this contract shall have been performed and fulfilled by and on the part of the contractors, they shall be entitled, within ten days after the filing and acceptance of their claim, to receive the said reserve, or so much thereof as they may be entitled to, on the execution of a final release to the United States, in such form as shall be approved by the Chief of the Bureau of Yards and Docks, of all claims of any kind or description under or by virtue of this contract.
    “Fourteenth. It is hereby mutually and expressly covenanted and agreed, and this contract is upon the express condition that no Member of or Delegate to Congress, officer of the Navy, or any person holding any office or appointment under the Navy Department shall be admitted to any share or part of this contract, or to any benefit to arise therefrom; that this contract shall not, nor shall any interest therein, be transferred by the contractors to any other person or persons, and that any such transfer shall subject the contractors to a forfeiture of their rights hereunder, all right of action to recover for any breach of this contract being, however, reserved to the United States.
    “Fifteenth. It is expressly understood, covenanted, and agreed by and between the parties to this contract that each and every provision, clause, covenant, and condition herein contained shall be deemed and taken to apply in and to the construction, completion, and acceptance of each of the aforesaid dry docks in the same manner and with the like effect as if each of said docks had been separately contracted for, and that if any doubts or disputes arise as to the meaning or requirements of anything in this contract, or if any discrepancy appear between the aforesaid plans and specifications and this contract, the matter shall be at once referred for the consideration and decision of the Chief of the Bureau of Yards and Docks, and his decision thereon shall be final, subject, however, to the right of the contractors to appeal from such decision to the Secretary of the Navy, who, in case of such appeal, shall be furnished by the contractors with a full and complete statement of the grounds of their appeal, in writing, and shall thereupon take such action in the premises as, in his judgment, the rights and interests of the respective parties to this contract shall require; and the parties of the first part hereby bind themselves, a.nd their heirs and assigns, and their and each of their personal and legal representatives, to abide by his (the Secretary’s) decision in the premises.
    
      “Specifications for 'two Simpson’s patent improved timber dry docks for the United States Government, to accompany general plans of same (two sheets).
    
    “These dry docks shall be located as follows: One at the U. S. navy-yard, Brooklyn, in the port of New York, and the other at the U. S. navy-yard, Portsmouth, in the port of Norfolk, Ya., upon available sites to be provided by the Government. The length of each dry dock, respectively, shall be five hundred (500) feet inside of head to outer gate sill.”
    *******
    The contract and specifications were drawn by plaintiffs.
    XVII. In the construction of a dry dock 500 feet in length intended to accommodate naval vessels upon a site such as that described in the said profile and report, foundation piles from 25 to 30 feet in length would usually be sufficient.
    XVIIL Plaintiffs’ Exhibit No. 1 shows a cross section of a timber dry dock of the general design shown in the plans and specifications, and represents the method of construction adopted by plaintiffs in the construction of the dry dock at the navy-yard, Brooklyn, N. Y.
    The method employed by plaintiffs in the building of dry docks, and particularly that adopted by them in building the dry dock at Brooklyn, is and was as follows:
    First. The site is cleared.
    Second. The cross-cap piles driven and cross caps are placed thereon.
    Third. The exterior sheet piling is driven, surrounding the entire structure.
    Fourth. The brace piles are driven and at the same time the cofferdam is built.
    Fifth. The excavation is made.
    Sixth. The foundation piles are driven and the heads thereof are surrounded with concrete.
    
      Seventh. The fore-and-aft timbers are laid and the spaces between them are filled with concrete.
    Eighth. The floor timbers are laid and at the same time the interior sheet piling is driven at the ends of the floor timbers and surrounding the dock floor.
    Ninth. Concrete is put down, covering the fore and afters and between the floor timbers, running transversely to the sides of the dock.
    Tenth. The braces are put in place.
    Eleventh. The altars are put in place.
    XIX. Plaintiffs began the construction of the dry dock in November, 1887.
    About ten months thereafter plaintiffs had furnished materials and performed labor, as follows:
    First. The site had been cleared.
    Second. The cross-cap piles had been furnished and driven, cross-cap timbers furnished and put in place upon the cross-cap piles.
    Third. The exterior sheet piling had been furnished and driven.
    Fourth. Part of the brace piles had been furnished and driven, and part of the brace ties had been furnished and put in place.
    Fifth. The cofferdam had been built.
    Sixth. Auxiliary and subsidiary materials, such as spikes, bolts, etc., had been furnished and worked.
    Seventh. Part of the excavation, for the body of the dry dock, had been made, to wit :
    That part commencing at the head or inner end of the dock and extending thence toward the end nearest the river for a distance of about 125 feet, and commencing at the grade of the site and extending to. a depth of from 30 to 34 feet, the required depth of the excavations being upward of 37 feet.
    About August 31, 1888, it first became apparent that a portion of the dry-dock structure had sunk and moved inward toward the excavation, and had thereby sustained damage, and that this damage was caused by encountering a stratum of water-borne sand in the excavation.
    October 3, 1888, Asserson made the following report to the commandant of the navy-yard:
    
      u Sir : I would respectfully report the following amount of material received and progress of work upon the new timber dry clock at this navy-yard during the month of September, 1888, viz:
    “On the 27th of September about 60 lin. ft. of the embankment on the west side of dock, near the head angle, settled about 4“ and moved inwards in the center about 4 ft., bending' the coping timber, sheet piling-, and cross-cap piles. This was caused by quicksand undermining the bank and finding its way under the outer row of sheet piling. This will have to be rebuilt as soon as the flow of quicksand can be stopped, before any more digging is done at the bottom level. It has been determined to drive the bottom line of sheet piling shown on the plan, and instead of sheet piling V 6" long, it has been determined to drive sheet piles 30 ft. long, in order to make sure of confining the quicksand that is nowbecoming dangerous to the stability of the sides of the dock.
    “Trial piles are now being driven in the bottom of the dock, the result of which will be reported to the Department as soon as completed and the length of the piles to be used is determined upon. Inclosed please find tracing showing progress to this date. The i>lace on the bank that has moved is marked upon the plan.”
    Thereafter it was ascertained that the sand stratum underlay the entire area of the site of the dry dock, and, beginning a depth of from 26 to 30 feet below the grade of the site, extended to a depth of 70 feet below the same.
    Between August, 1888, and October, 1889, portions of the dry-dock structure, completed by plaintifis during that period and prior thereto, continued to settle and move inward toward the excavation, in the manner described by Asserson in his above report. This was caused by the presence of the said sand stratum, which continued to undermine the side of the dry-dock excavation; hence the said portions of the dry-dock structure were destroyed or greatly damaged.
    The photographs annexed hereto as exhibits show the condition of the work at the dates noted thereon.
    During the period aforesaid the sand flowed into the excavation made for the dry dock, delayed the completion thereof, and increased the cost of the dock.
    Between November 3, 1888, and October 5,1889, Asserson, the Government engineer who superintended the work, made monthly reports to the commandant of the New York Navy-Yard, informing him fully as to the condition and progress of the work.
    XX. The sands contained in the box marked “ Specimens of material found by boring of new dry dock, Brooklyn Navy-Yard,” exhibits herein, are specimens of the various strata underlying the site of the said dry dock, and were taken from the excavation made for the dock during its construction.
    The said sands are siliceous quicksands.
    XXI. The character of the soil underlying the said site was not as it appeared in the profile and report of the said Asserson, in so far as the sand stratum is concerned, and both parties were surprised in encountering the difficulty and expense caused by the presence of the said sand stratum.
    XXII. After the discovery of the sand stratum, as aforesaid, Commodore Harmony, Chief of the Bureau of Yards and Docks, inspected-tbe work upon the site of the dry dock, and directed the plaintiffs to complete the dock.
    XXIII. By reason of the presence of the said stratum of sand and the difficulties caused thereby, the completion of the dock was delayed for seven months.
    XXIY. In order to stop the flow of sand above described and to prevent the consequent settling and caving in of the embank ments, and thus to make it possible for the plaintiffs to construct the dry dock thereon, they were obliged to and did furnish materials and perform work over and above the materials and work provided for in the said specifications, at a cost considerably over $3,000.
    XXY. Shortly prior to the expiration of the period within which the Brooklyn dock was required to be completed under the contract, the following letter was written:
    “ Washing-ton, D. 0., Oct. 9,1889.
    
    “ Com. G. B. White,
    “ Chief of Bureau of Yards and Doclcs,
    
    “ Navy Department, Washington, D. Ü.
    
    “ Sir : We beg to inform the Bureau that we shall be unable to complete the dry dock at the U. S. navy-yard, Brooklyn, N. Y., within the time specified in contract dated Oct. 13th, 1887, owing to ‘circumstances beyond our control,’ the soil at a depth of 37-feet from grade being quicksand, continuing for a further depth of 42 feet. We therefore respectfully request that we be relieved from the penalties provided under article 9th of said contract, for the reasons stated and the other reasons provided in said article 9th.
    “The contract time will expire November 16th, 1889, and we respectfully request an extension of four months from that date.
    “We have the honor to be, your most ob’t servants,
    “J. E. Simpson & Co.”
    
      On which said letter the following indorsements were made:
    [1st indorsement.]
    “Bureau oe Yards and Doces,
    
      “10th Oct., 1889.
    
    “Respectfully referred to the Secretary of the Navy.
    “For reasons herein stated and known to the Bureau, it recommends that the extension of time requested be granted.
    “G. B. White,
    
      11 Chief of Bureau.
    
    “Referred to the Judge-Advocate-G-en’l.”
    [2d indorsement.]
    “W. B. R., Navy Department,
    “ October If 1889.
    
    “Returned to the Bureau of Yards and Docks.
    “The recommendation of the Chief of the Bureau is approved.
    “B. F. Tracy,
    “ Secretary of the Navy.”
    
    To this letter the following reply was sent, to wit:
    “Bureau oe Yards and Docks,
    “Navy Department,
    “ Washington, D. C., Oct. 12,1889.
    
    “Gentlemen: Referring to your letter of the 9th instant, wherein you request to be relieved from the penalties provided under article 9th of your contract dated Oct. 13th, 1887, owing to “ circumstances beyond the control,” and to have an extension of four months from the expiration of the contract time, viz, November 16,1889, you are informed that your request was submitted to the Secretary of the Navy with a recommendation that the extension of time requested by you be granted, and that said recommendation has been approved by the Department accordingly.
    “ Yery respectfully, G. B. White,
    “ Chief of Bureau.
    
    “ Messrs. J. E. Simpson & Co., .
    “Wo. 35 Broadway, New Yorh.n
    
    December 3, 1890, Asserson wrote the following letter to Charles M. Bird, an engineer in the service of the plaintiffs, employed in the construction of the said dry dock :
    “Department oe Yards and Docks,
    “Civil Engineer’s Oeeioe,
    “ U. S. Navy- Yard, New York, December 3,1890.
    
    “ My Dear Mr. Bird : You promised several times to give •me a synopsis of the various changes made in the dock structure and additions that were made necessary, such as sheet piling across the dock, location and length of the piling, the additional length and thickness of the sheet piling, additional braces and location of the same, iron braces and piling around the dock. In short, all the additional work put in not called for by the contract for the dock built at this yard.
    “Will you kindly let me have the memorandum1? I have much of the data, but I want to be sure that I am correct.
    “Yours, very truly,
    “P. C. Asserson,
    “ Civil Engineer, U. S. W.”
    XXYI. May 9, 1890, the plaintiffs completed the dry dock. June 4,1890, the dry dock was accepted by the United States. The following receipt was signed.
    “Nayy Pay Oepice, Neto York, June 7, 1890.
    
    “Received from Pay Director G-. E. Thornton, U. S. N., fifty-seven thousand one hundred and ninety-five dollars and forty-sis cents, in full of the above bill.
    “J. E. SlMPSON & Co.
    “$57,195.46.”
    XXYII. During the entire period in which the plaintiffs were engaged in the construction of the work they did not at any time give notice of any claim or claim or demand any sum of money on account of any extra work or materials furnished by them in or about the construction of the said dry dock; nor was any officer or agent of the Government apprised of such a claim until the receipt of the letter of Messrs. Goodrich, Deady & Goodrich, attorneys for the assignees of the plaintiffs, dated April 11, and which appears below in these findings.
    XXYIII. No change in the plans, specifications, structure, or work was ever made by order or authority of any officer of the Government after said contract was executed, nor was any extra or additional work or material performed or furnished in obedience to any order or requirement of any officer of the Government except the driving of 480 additional center-bearing piers along the bottom of said dock, the cost of which said change was first ascertained and the agreement concerning the same reduced to writing. The agreed extra cost of this change has been paid to plaintiffs.
    XXIX. June 2,1890, a board of naval officers was appointed to examine and make the tests of the dry dock which the contract required, which said board recommended that the said work “should be accepted as complete under the contract.’* Whereupon the following letters were sent to claimants:
    “Bureau oe Yards and Docks,
    “Navy Department,
    “ Washington, D. C., June- 4,1890.
    
    “ G-entlemen : The board appointed underthe Department’s order to examine and test the stability of the timber dry dock constructed by you at the U. S. navy-yard, Brooklyn, N Y., having recommended that ‘the dry dock should be accepted as complete under the contract,’ this is to inform you that the said dry dock is hereby accepted, and the commandant has been so notified and also instructed to have prepared and forwarded vouchers for the reserved payments to which you are entitled under the conditions, covenants, and provisions of your contract.
    “Very respectfully, “N. H. Farquhar, .
    “ Okie/ of Bureau.
    
    “Messrs. J. E. Simpson & Co.,
    “35 Broadioay, Neio Yorlc.”
    
    “Commandant’s Oeeice, Navy-Yard,
    
      “New Yorlc, June 5, 1890.
    
    “G-entlemen: You are informed that the new timber dry dock, contracted by you at this navy-yard, has been accepted.
    “Reservation bill for 857,195.4-6, due you, was forwarded to the Bureau of Yards and Docks on the 4th instant.
    ‘ ‘ Y ery respectfully,
    “D. L. Braine,
    “ Bear-Admiral Commandant.
    
    “Messrs. J. E. Simpson & Co.,
    “35 Broadioay, New Yorlc.”
    
    XXX. At the time of the receipt of the letters set forth in the preceding finding, plaintiffs made no objection or protest to anyone, nor claimed any other or additional amount than that therein specified as the total amount remaining due on the said work, but accepted said amount and signed the following receipit:
    No. 1.]
    
      The United States Navy Department to J. E. Simpson Co., Dr.
    
    [Appropriation timber dry dock. Bureau of Yards and Docks. Navy-yard at New York.]
    Contract dated October 13, 1887.
    To amount 10 per cent reservations under the contract above specified on the following-described bills., to wit:
    No. 1 to 28 . Total amount. $571.955.03 Net amount. $514,759.57 Amount reserved. $57,195.46 $57,195.46
    
      Reporters’ statement of the case.
    “Civil EN&ineeh’s Oeeice,
    
      “Neto York, June 4,1890.
    
    “I certify that this 10 per cent reservation bill is correct and that all articles noted on the contract of J. E. Simpson & Co. have been delivered.
    “P. C.'Asserson,
    “ Civil Engineer, U. S. N.
    
    “This bill is correct.
    “D. L. Braine,
    
      “Rear-Admiral, U. 8. N., Commandant.”
    “Bureau Doces and Yards,
    
      uJune 5, 1G90.
    
    “This bill is approved for $57,195.46, payable by the paymaster at New York.
    “N. H. Farquhar,
    “ Chief of Bureau.”
    “Navy Pay Oeeice,
    
      “New Yorlc, June 7,1890.
    
    “Deceived from Pay Director G. E. Thornton, U. S. N., fifty-seven thousand one hundred and ninety-five dollars and forty-six cents in full of the above bill.
    “J. E. Simpson & Co.
    “ $57,195.46.”
    And thereupon the matter was not again opened or adverted to until April 11,1893, when the following letter was received by the Secretary:
    [Law office of Goodrich, Deady & Goodrich, 59 and 61 "Wall street.]
    “New Yore, April 11,1893.
    
    “Hon. Hilary A. Herbert,
    “ Secretary of the Navy, Washington, J). G.
    
    “Dear Sir : The Simpson Dry Dock Company, as assignees of the claim of J. E. Simpson <& Co., have placed in our hands for collection a claim against the United States for extra services rendered by said firm of J. E. Simpson & Co., and material furnished by them while carrying out a contract with the United States Government, which contract was for the construction of a dry dock in the city of Brooklyn, and was dated * October 13,1887.
    “The value of the extra services and the materials so furnished is the sum of $174,322, and the said extra services and materials were necessitated in constructing the said dry dock under said contract on account of the site for said dry dock not being available, owing to the unfavorable and unstable character of the soil.
    
      Argument for the claimants.
    “Will you kindly give tbe matter your early attention, and notify us wbat tbe Department or tbe Government intends to do with, reference to said claim.
    “ Respectfully, yours,
    “Goodrich, Deady & Goodrich.”
    NSXI. Tbe sum of $1,061,000 for tlie two dry docks (one at Brooklyn and one at Portsmoutb) lias been paid to and received by said J. E. Simpson & Co., and tbe sum of $6,062.40 for tbe extra work hereinbefore mentioned.
    XXXII. Profile and report (see Finding IX).
    
    “Civil Engineer’s Opeice,
    
      “Navy-Yard, Neto York, June 9,1887.
    
    “Sir: As directed by Bureau letter No. 880, May 23,1887, a set of. borings 50 feet apart have been made along the axis of tbe side for tbe proposed dry dock, with result as indicated upon the inclosed tracing, showing a profile of the ground.
    “The clay and sand m the lower stratas were found very firm and difficult to penetrate with our boring augers, the streaks of sand is toater bearing, and the clay firm, but mixed with a fine micaceous sand. Further borings, as directed, are being continued. The bearing piles should, in my opinion, be driven on an average not less than to a depth of 30 feet below the foundation. In places where tbe bottom may be found of a less compact or yielding nature, the piles should be driven by a 3,300-pound hammer, falling 25 or 30 feet, until the pile refuses to go less than one-fourth of an inch unde* each blow. Where the clay bottom is very firm, a less depth may be found sufficient.
    “For more accurate information on this important point it would be well to drive a few trial piles along tbe axis of the dock, noting accurately the moinentum of tbe hammer and the resistance of the pile to each blow.
    “I would also recommend that the expense of boring and other tests that may be ordered be borne by the appropriation for the new docks when it shall become available, as it is now being charged to the appropriation for the repairs to the granite dock.
    “Yery respectfully, your obedient servant,
    “P. O. Asserson,
    “ Civil Engineer, U. S. N.
    
    “Commodore Bancroft Gherardi, U. S. N.,
    “ Commandant.”
    
      Mr. Joseph K. McCammon and Mr. James II. Hayden for the claimants.
    
      
      Mr. George JEC. Gorman (witb wbom was Mr. Assistant Attorney-General Doclge) for tbe defendants.
   Davis, J.,

delivered the opinion of the court:

Contracts were made by the parties to this action for the construction of two dry docks — one at Brooklyn, N. Y., the other at Portsmouth, Ya. Both these docks are finished. As to the Virginia dock, no question is presented. At Brooklyn, owing* to an unforeseen difficulty, the completion of the dock was much delayed, and plaintiffs were forced to incur an expense which they had not contemplated when making their bid. This expense, it is now contended, should be borne by the defendants.

The discussion has largely turned upon the force of the word “available,” qualifying the word “site,” as this word appears in the following clause of the specifications:

“These docks shall be located as follows:

“ One at the United States navy-yard, Brooklyn, in the port of New York, and the other at tiie United States navy-yard, Portsmouth, in the port of Norfolk, Ya., upon available sites to be provided by the Government.”

Plaintiff's contend (in substance) that the defendants undertook to furnish information with regard to the site of the dock. This information represented the site as “ available,” and thereupon plaintiffs submitted a proposal for the construction of the dock “upon an available site, to be provided by the Government.” This proposal was accepted and, with the advertisement, became part of the contract. It is urged that plaintiffs were bound only to furnish material and labor necessary to the construction of a dry dock upou an “available site,” and that plaintiffs did not “ warrant the availability of the site. It was agreed that an ‘available site’ should be ‘provided by the Government,’ and that was a consideration of the contract on its part to be performed.”

The findings disclose these facts pertinent to the main point involved in this discussion. A site was selected at the Brooklyn yard which from a seaman’s point of view was useful; soundings were made, which disclosed no especial difficulty in excavation or construction. These soundings were made by the defendants’ engineer and were examined by plaintiffs. Upon the report of defendants’ engineer plaintiffs chose to rely without attempt at further examination for themselves. The discovery of the sand stratum was a surprise to both parties-It may be said, upon the one hand, that plaintiffs had a right to rely upon the Government engineer, and that his examination of the site was so insufficient as to mislead plaintiffs; or it may be said, upon the other hand, that the site being accessible to these experienced dock builders it was their duty to protect themselves by examination prior to contract, failing which they must suffer from the accident of faulty foundation which afterwards developed.

It is contended that this court should re-form the contract because it was entered into under a mistake as to matters of fact. The main facts are that this dock was to be built within the relatively limited area of a navy-yard, upon an “available” site upon the water line; that is, a site “available” in that yard and available primarily for naval purposes, which may be understood to be a site near the water so as to provide short lockage, a site presenting such an entrance as would least be affected by prevailing strong wind and the sharp running tide of the East River, and finally such a site (the other conditions being protected) as would be reasonably near the foundries and workshops of the yard. The availability of a site would mean its usefulness for the purpose intended — that is the primary meaning; secondarily, its adaptability to that purpose. In this case we have a site which upon its surface is absolutely available from the seaman’s and naval constructor’s point of view, also “available” from the contractors’ point of view when they began work and which they discover not to be available only after many days, and then because, to their and everyone’s surprise, a faulty stratum of earth is found some distance below the surface.

We fail to see what there is in the contract to re-form; mutual mistake of fact can not be assumed where there is mutual risk in a matter so uncertain as the substrata of a filled-in soil bordering a great city and a swiftly flowing tidal river.

Under such circumstances one who lets or takes a contract for excavation or construction must (barring deceit) take his own risks, rely upon his own judgment, be responsible to himself. The area of a navy-yard is small, the sites upon its water lines “available” for a dry dock are very limited, so that little room is there for choice; certainly so limited is this choice that the question of the quality of deep layers of soil could hardly have been considered by those who made the contract. They would have thought that “available” meant “available” in the yard; that is, free from buildings, easy of access from the shops, convenient for the workmen; practicable of entrance from the Bast River; that an “available” site is one which is convenient for docking and repairing ships, also economical in yard space, and a site which as little as practicable interferes with the other uses of the yard.

No officer would knowingly select as an “available” site one whose substratum was a quicksand unless absolutely forced by more important considerations to this choice, but in this case there was an error as to the substratum — an innocent error which led to expense, but nevertheless an error against which plaintiffs had the possible protection of a personal examination had they chosen to resort to it. Wb ether that examination would have shown anything different from the Government’s survey we do not know, but plaintiffs showed no desire to make it.

We then have presented this question: The dock is to be built upon an “available” site upon the water front for a certain price; it is to be built upon a site which, from a naval officer’s point of view, is “available” — that is, convenient of access for vessels, convenient in the yard for work upon the vessels; it is, in fact, built upon a site which is “available” in all qualities but this one, that a layer of water-borne sand is found (to the surprise of both parties) by a contractor who chooses to rely upon the honest statement of defendants’ agent as to the substrata of the soil in which the dock is to be dug, and who does not make an investigation for himself, which he might have done.

We fail to see how the character of the soil entered into the contract; no representations were made as to it (for the profile shown in the findings of fact did not amount to a representation upon which plaintiffs might rely); the Government did not guarantee the character of the soil underlying the site, but freely gave plaintiffs what information it had, and the parties-contracted in no way as to the character of the foundation of the site.

This case does not seem to us to differ in principle from that of Ferris (28 C. Cls. R., 332), where the dredging was to be of sand, mud, and gravel, and in tbe process of tbe work large bowlders, amounting to over one-quarter of tbe work, were discovered, greatly increasing tbe contractor’s expense; there we beld “ wben it was ascertained by tbe claimant tbat the materia] contemplated by tbe contract was essentially different from tbe material to be dredged, it ivas bis duty, if be did not wish to proceed with tbe execution of the work, to so notify tbe officer with whom be contracted and get from him, by tbe sanction of tbe proper parties, such changes as could be agreed upon.” No modification or change in tbe contract was made in this case, nor was an application made for extra payment at tbe time tbe work was in progress.

Further, tbe contract and specifications were drawn by plaintiffs, and (following Garrison v. The United States, 7 Wallace, p. 690) “ its doubtful expressions should, therefore, according to a well-known rule, be construed most strongly against tbe party who uses tbe language.”

In fact, plaintiffs completed tbe dock without complaint, rested quiescent upon their rights or wrongs until they began this action, in 1894, upon a contract upon which what defendants supposed was tbe final payment bad been made June 7, 1890. Further, tbe parties engaged in tbe usual form in their contract tbat if the cost of tbe dock was to be increased tbe reason therefor and tbe cost should be put in writing and signed before tbe expense was incurred, which was not done.

Nor is there anything shown by this record upon which can be founded an implied contract binding defendants to pay this unforeseen expense. One of tbe main obj ects of a contract with an expert for a complete structure is tbe avoidance of those extra expenses which will occur when tbe work is undertaken by one untrained in tbe trade, art, or profession. Defendants could have built a dock at Brooklyn using their own engineers, and if deemed advisable and with proper compensation, probably plaintiffs’ patented dock. They elected to employ plaintiffs undoubtedly because of the- advantage to be gained by their acknowledged skill in this their specialty. Defendants contracted for plaintiffs’ skill because of their reputation and experience, and contracted to give them two things — one, a site on the water line available for a dry dock in the Brooklyn yard; the other a certain compensation for the dock. In this contract, or in what occurred after, we find nowhere anything tending to show an agreement, an implied contract, to pay the extra expense which has occurred by reason of the faulty sand stratum.

The natural interpretation of a contract like this is that one of the unwritten considerations is dependence upon the skill of the specialist undertaking the work; one of the dangers apparent at the outset is a faulty substratum, a danger which the Government might anticipate, aud the anticipation of such a. danger would be a fair reason for the employment of a specialist, as the danger is one that such a specialist would in the very nature of his specialty take qiains to provide against; and the chances of such an accident as occurred in this case should be considered by an expert, and would be a proper element of his. bid.

It has been held by this court, where the cost of the work was increased fivefold by reason of the breaking of dams, through freshets, as follows:

“Wien the performance of a contract becomes impossible by the laws of nature, the party is absolved from its obligation to perform; but if by an intervention of those laws it becomes much more difficult to perform, the condition, because of such intervention, will not justify the party upon whom rests the obligation of performance in refusing to comply with the requirements of the contract. The destruction of the dams and the incidental condition of the work were no doubt the-result of an irresistible cause of loss, and if they had made it impossible (in the reasonable view of that term) for the claimants to perform, the law would have discharged them from all liability. (Satterlee, administratrix, v. United States, 30 O. Gis. B., 31.) It is a settled rule of law that where a party by his own contract absolutely engages to do an act, or creates a-duty or charge upon himself, he is bound to make it good, notwithstanding any accident or other contingency not foreseen by or within the control of the party, unless its performance is. rendered impossible by the act of God, or of the law, or of the obligee. (Cobb v. Harmon, 23 N. Y., 150.) It must be an impossibility, not a difficulty, that will excuse the performance of a contract. (Huling v. Craig, Addison, B., 342; see also-52 Penn. St., 356; Story on Contracts, sec. 463; Chi tty on Oont., 272; 7 Mass., 325; 13 Mass., 94; 69 Ill., 285; Am. Bep.,, 613.)”

From this it follows that defendants did not promise, or expect-to pay for a completed dry dock more than they had agreed to pay notwithstanding any accident in the building. There is, do express contract to pay for this expense nor can any contract be implied, for no one supposed this work was 'extra or outside the contract; certainly the defendants did not, for they had contracted for a sum fixed for a dock described, at a spot designated. The plaintiffs in furnishing the labor and materials herein declared upon found no intention or expectancy on the part of the defendants to pay anything in excess of the contract price, therefore no agreement to pay for this additional labor and material can be implied. In fact, the long delay in presenting this account would tend to show that the plaintiffs did not at the time expect the payment here sought. An implied contract is founded upon a presumed agreement, and nothing appears in this record showing an agreement to pay for this increased expense nor any fact from which it can be presumed.

None of the work alleged herein to be extra was ordered by the defendants; neither was any change made iixthe plan. An accident of foundation equally open to the early discovery of both parties and discovered by neither after reasonable endeavor until after the work was well advanced is the only ground for this action.

There can be no recovery. Petition dismissed.  