
    MARY C. McKAY ET AL., EXECUTORS OF DONALD McKAY, v. THE UNITED STATES.
    [No. 12411.
    Decided March 31, 1884.]
    
      On the Facts.
    
    A contract requires the defendants to furnish certain ship timber, but is silent as to where it shall be delivered. It is turned over to the contractor at their yard, where he does certain work upon it before transporting it to his own. The defendants agree to furnish the claimant with the use of their dry-dock without charge. They also furnish without agreement the labor needed to do the blocking, pumping, &c.
    I.Where a contract requires the contractor to build a vessel, and the defendants to furnish the timber therefor, but is silent as to the place where the vessel shall be built and the timber be delivered, and the contractor receives it in the defendant’s yard and does work upon it there, he cannot afterward recover the cost of its transportation to his own yard.
    II.Evidence that there was delay and probable expense to the contractor in consequence, is insufficient to establish damages, if the length of the delay and the amount of the expense do not appear.
    III. Where the government furnishes a contractor with certain articles, it cannot without special agreement charge more than the market price.
    IV. An agreement to allow a contractor the use of a government dry-dock does not require the government to furnish the labor necessary for blocking, pumping, &e. Such labor, if furnished, may be charged to the contractor.
    
      The Reporters’ statement of the case:
    This action the claimants brought by the voluntary filing of their petition. The court prepared and filed findings of fact which set forth a great number of items; but all of the material facts are stated in the opinion.
    
      Mr. H. F. Paine for the claimant.
    
      
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants.
   Scoeield, J.,

delivered the opinion of the court:

November 8, 1873, claimants’ testator entered into the contract with the Navy Department. He agreed to build the hull of the steam-sloop Adams, and to furnish all the material “ except the live-oak timber to be furnished by the United States.” The contract price was $148,500. The work was done, and there has been paid upon it $147,726.65, leaving a balance of $773.35 still due. Only three items are left in dispute under this contract. All others being exclusively questions of fact are disposed of by the findings.

1. The said testator transported the live-oak timber from the Boston navy-yard to a ship-yard at East Boston, where the Adams was built, at a cost of $150, which the claimants seek to recover. The contract does not specify where the timber was to be delivered, nor does it state where the said testator was to build the sloop. The timber was stored at the Boston navy-yard. Claimants not only received it there without objection or other demand, but before it was taken away it was “got out and put in shape” for use at the yard, and the government saws and other tools were used for that purpose without charge. We infer from these facts that the timber was to

be furnished at the navy-yard, where it was stored, and where said testator prepared it, in part, for use by the peculiar saws and other tools at the yard. This item of claim is therefore disallowed.

2. There was some delay in furnishing the timber as fast as called for, owing to the small number of hands employed at the yard at the time, and the timber requiring considerable handling. If the claimant was thereby delayed in the work and increased expense resulted, he would be entitled to his damages. None are allowed, because, while it is shown there was some delay, and probable expense, the length of time and the amount of expense does not appear. We allow nothing, because, with no data to guide us, we cannot guess at the amount.

. 3. The defendants furnished to the said testator certain pumps, and charged him $411.53 more than the market price. He was not bound to pay more than the market price. The overcharge should be refunded.

Said testator afterwards, April 27,1875, agreed to do the work on the outfit of the Adams and the hull and outfit of the sloop Essex. The contract price was paid, but certain extras have remained unsettled. On the Adams the amount of extras is $980.33, and on the Essex $1,156. These two amounts are allowed to the claimants.

The defendants agreed, as appears in their contract, to allow the said testator the use of their dry-dock. They also furnished, without agreement, the labor needed to do the “blocking, pumping, and docking,” while the dry-dock was in the use of the claimants. For this service the defendants charged $309.62. The agreement to allow the use of the dry-dock did not require the defendants to furnish this labor. The amount is reasonable, and has been properly charged in claimant’s accounts heretofore settled.

The claim sums up as follows:

Balance due on contract......................... $773 35
Materials furnished and extra work on the Adams, as shown in finding II......................... 980 33
Extras on the Essex, as shown in finding II....... 1,156 00
Overcharge on pumps as shown in finding III..... 411 53
Total amount due claimants................ 3,321 21

Judgment will be entered for this amount.  