
    JOHN C. McINTYRE AND JOHN H. HOWARD v. THE UNITED STATES.
    [No. 22497.
    Decided April 10, 1905.]
    
      On the Proofs.
    
    A contract for the construction of a levee on the Mississippi River provides that within ten days after notice that the contract has been awarded to him the contractor shall employ “ such ■ force and outfit as, in the judgment of the engineer in charge, shall he necessary to complete the worlc within the contract time.'’ If he fails “ to maintain this force and outfit, or it becomes evident to the engineer in charge that the work is not being prosecuted ivith due diligence, and loill not be completed in the contract time,” the engineer may employ such additional labor as may seem to him essential. The contract also provides that “ where a levee is constructed across a slough, or at any place where settlement of the soil on which the levee rests is anticipated,” the contractor will erect structures for determining the settlement in such manner as the engineer may prescribe, but shall receive no compensation unless the instructions of the engineer are fully complied with.
    I.Where a contract empowers the engineer in charge to employ an additional force and outfit if in his judgment it becomes evident that the work is not being prosecuted or that the work will not be completed within the contract time, he is not limited by a provision that he is to determine before the work begins what force will be necessary to complete it.
    II.The mere maintenance of the force which the contractor had when the work was begun, as prescribed by the engineer, is not sufficient to relieve him from responsibility to complete the work within the prescribed time.
    III. If an officer in charge of a public work acts in bad faith in requiring the performance of work at such times and amid such circumstances as to indicate a tyrannical and fraudulent exercise of power the rights of the contractor will not be concluded thereby.
    IV. Where the contract is for the building of a levee on the Mississippi an increased apprehension that high water will inundate the country justifies the engineer in charge in determining that the anticipated emergency requires him to intervene and assist in a rapid completion of the work.
    
      Y. Where -a levee contract provides that if the work be constructed upon a slough, where the settlement of the soil is anticipated, the contractor shall erect structures for determining the amount of the settlement, he can not recover unless he complied with the requirement to erect such structures as the engineer should designate.
    VI. All levees in the Mississippi Valley are built on soil which is compressible ; hut such soil is not necessarily soil where settlement may be anticipated — such as a slough.
    
      The Reforters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The United States, through a captain of engineers, United States Army, contracted in writing with claimants September 10, 1897 — which contracts, three in number, were approved by the Chief of Engineers, United States Army, September 27, 1897 — to furnish all labor and material necessary for the construction of a levee above Greenville, Miss., the construction to be paid for at 12 cents per cubic yard, and the entire levee to be completed on or before January 1,1S98. The three contracts are similar, except that each covered a different part of the work, covering, respectively, stations; 999 to 1018, 1018 to 1034, and 1034 to Í051a. The contracts are made part of the petition as Exhibit A.
    II. The claimants about the 6th day of September, 1897, moved their appliances and outfit on the ground where the work was to be undertaken. At this time, September 6, 1897, fifty-five teams composed their outfit, but from the 6th to the 30th of September, 1897, they had employed from one to twenty-eight teams on the work covered by the three contracts, an average of about sixteen teams per day during the month of September. During the month of October, 1897, the working outfit of claimants was from thirty-four to forty-four teams on the entire work, an average of about forty teams per day. during that month. During the month of November, 1897, the working force of claimants was on an average of about forty-four teams per day. During the month of November, 1897, the greatest number of teams the contractors had employed on this work at any one time was sixty-five, on the 27th of November, but from this date their force was from time to time increased until the’ work was entirety completed.
    III. About the 17th clay of September, 1897, yellow fever broke out in Memphis, Tenn., 100 miles distant from where the work was to be done, ’and continued until about the middle of November, 1897. The State of Mississippi, on the 22d of October, 1897, established quarantine regulations against the city of Memphis, prohibiting the transportation of passengers to any city or town in the State of Mississippi from the city of Memphis, as shown by the following :
    “ Office of Mississippi State BoaRD of Health,
    “Jackson, Miss., October 88, 1897.
    
    “ Official information having been received from the president of the board of health of Memphis, Tenn., announcing-yellow fever in that city, the State of Mississippi is hereby quarantined against said city. The railroad companies and common carriers are hereby prohibited from transporting any passengers, freight, baggage, or express to anjr city or town in the State of Mississippi from the city of Memphis.
    “ J. F. HunteR, M. D.,
    “ W. G. Niger, M. D., “Executive Committee.”
    Up to this date, October 22, persons coming from Memphis, Tenn., had been permitted to enter Bolivar County, Miss., where this work was to be done, on health certificates.
    The State of Mississippi in the enforcement of said quarantine regulations was aided by the Marine Hospital authorities of the United States; the quarantine regulations against the city of Memphis by the State of Mississippi was raised about November 12, 1897. During the quarantine regulations the claimants experienced great difficulty in securing laborers from or via Memphis, Tenn., to carry on the work.
    IY. Bjr December 1, 1897, the claimants had so far advanced with work that what remained to be done could have been completed, under ordinarity favorable conditions, by January 1, when the contract time would expire.
    From the date of the contract to December 1, 1897, the weather conditions for the performance of the work of levee construction were favorable; the weather conditions during the months of December and January were unfavorable for the prosecution of the work covered by the contract; the unfavorable weather in December made a material change in the conditions under which the work could be prosecuted, rendering the same much more difficult and materially increasing the cost thereof per cubic yard.
    The weather conditions during the months of January; February, and March, 1898, were unfavorable. The rainfall and rise in the river in December and January had so saturated the soil with water that the work of levee construction became extremely difficult and more expensive than under more favorable weather conditions. After the latter part of January, 1898, there was not so much rainfall, and overhead the weather conditions were comparatively more favorable, but for prosecuting the work there was very little improvement, for the reason that the soil had become so saturated with water, due to heavy rains and water seeping through the levee caused by the pressure of the river, that it would have required a number of months of good weather to dry the soil sufficiently to make it work easily.
    After the removal of the quarantine against the city of Memphis, about November 12, 1897, claimants increased their force and outfit to such an extent that about the 1st of December, 1897, in the judgment of the engineer in charge, they would complete the levee, under ordinary weather conditions, at least by January 10, 1898, but could not do so within the contract time. The month of December, 1897, proved to be a season of remarkably heavy rainfall, and at the end of the month there was considerable work remaining to be prosecuted under unfavorable weather conditions. The engineer or his designated agent did not require protection to be constructed to the levee, as specified in section 46 of the specifications, nor was such protection requested by the claimants.
    V. The work to be done by the contractors was advertised as 215,000 cubic yards. The progress reports, which give the amount of yardage in place — by whomsoever put up — on the work contemplated by said contracts, shows that the completed work netted 216,891 cubic yards. The estimates on which payments were made show that in the completed work there were 216,870 cubic yards.
    The work at Stokes crevasse, covered by the contract, was located about 100 miles from Memphis, Tenn., and Vicksburg, Miss., and about 50 miles above Greenville, Miss.
    ' VI. Reports as follows were made by the officer in charge of the work:
    “U. S. ENGINEER OeEICE,
    
      11 Memphis, Tenn., January 6,1898.
    
    
      “ Brig.- Gen. John M. Wilson,
    “ Ghief of Engineers, U. S. A., Washington, D. G.
    
    “ Sir : I have the honor to submit the following report in response to your indorsement- of Jan. 3, 1898.
    “ The contractors began work promptly and have done their utmost under very adverse circumstances. This statement applies with special force in the case of the Stokes crevasse. The contractors had a force of about 30 teams at work here and were making arrangements to largely increase this number when further expansion of the force was rendered impossible by the quarantine regulations made about the middle of September by the State and local authorities. For about two months during the best working season of the year these regulations were rigidly enforced with the shotgun and absolutely prevented the contractors from enlarging their operations. During this time thejr were even obliged to keep in idleness 30 teams (that they had hired from Mr. Chas. Scott and had to subsist and pay for), as they were not permitted to bring in labor and work them.
    “ The contractors made every effort to induce the local authorities to permit them to increase their force, but without avail.
    “ When the quarantine restrictions were removed (about Nov. 12), these contractors at once increased their forces to such an extent that- b3^ the first of December I estimated that under average conditions they would complete the loop at least by Jan. 10, in spite of the enormous delays to which they had been subjected. As a matter of fact, however, the month proved to be very unfavorable on account of many rains, and it became evident that additional time would be required. I then obtained authority to extend the contract time to Feb. 15, 1898, at the-same time notifying the contractors to put on sufficient force to complete by Feb. 1, 1898. , This was the condition of affairs when Mr. Scott wrote his letter. By the end of December the contractors for Stokes crevasse loop had on the ground 160 teams, and Jan. 2 about 42 more teams were put on by the Mississippi State levee board at its own expense, with my consent. I considered this action of the levee board rinnecessary, but of course did not object- to it, as it would still further expedite the work and relieve the contractors from part of the los@ due to their enforced idleness during the best part of the working season.
    “ It is a rare occurrence for the river to get out of its banks before the middle of February. Moreover, the river is now at a remarkably low stage for this time of the jmar and is falling. On the whole, I think there is little occasion for alarm. While I recognize the great hardships to which the people would be exposed by another overflow through these crevasses and shall do everything in my power to prevent such a disaster, even if it involves heavy losses to the contractors, yet I desire to treat the. contractors with as much consideration as the circumstances will admit, in view of the fact that the failure to complete the loops on contract time is largely due to the action of these same people in refusing to permit a vigorous prosecution of the work, with suitable sanitary precautions, during the period of the yellow-fever quarantine.
    “ On December 31, 1897, the yardage remaining undone and the forces actually at work at the crevasse loops in the Lower Yazoo levee district were approximately as follows:
    
      
    
    “ I expect to start on a trip to these localities to-morrow, and shall take such additional action, if any, as the condition of the various works may seem to demand.
    “ Very respectfully, your obedient servant,
    
      u II. C. NewcoMER,
    “ Gaptcdn of Engineers.”
    
      “ U. S. EngineeR Office,
    “ Memphis, Term., February 8, 1898.
    
    
      “ Brig. Gen. John M. Wilson,
    “ Chief of Engineers, U. S. A., Washington, D. C.
    
    “ SiR: I have the honor to submit the following report in compliance with your instructions of January 24, 1808 (as|Ji4).
    “ In my former report on the Sledge and Stokes crevasse work, dated January 6, 1898, I related the causes for the unfortunate delays that had occurred. These were, briefly:
    “ 1. The original delay of nearly a month in the acceptance” of bids, presumably due to the protest made by persons who did not approve my recommendation concerning the bids for the relatively unimportant enlargement work.
    “ 2. The serious restrictions placed on levee operations by the local and State quarantine regulations during about two months of the best working season.
    “ 3. Following these primary causes of delay came an unusually early season of rainy weather with abnormally heavy precipitation.
    “ These circumstances were beyond the control of the contractors and of myself. The quarantine order of October 22, referred to by Mr. Scott, was issued after the appearance of yellow fever in Memphis. Other orders, however, had been in existence for more than a month, practically prohibiting any increase in levee forces. The first announcement of yellow fever on the Gulf coast was made early in September, and at once quarantine regulations of a more or less stringent character were issued, culminating September 15 in the order by the Mississippi State board of health directing that no persons be allowed to get off trains or boats within the limits of the State. This order was modified September 28 so as to permit travel of persons provided with health certificates. Copies of some quarantine orders issued in Bolivar County, in which these crevasses are situated, are transmitted herewith. The contractors endeavored, without success, to secure such modification of the regulations as would permit them to increáse their forces. They were not permitted to land men they had shipped down the river by boat.
    “ The unusual amount of rainfall is shown on the accompanying diagrams, giving the precipitation for the months of December and January at Vicksburg, Miss., Greenville, Miss., and Memphis, Tenn., for a number of years past. The weather record at Vicksburg show that rain fell there on 16 days in December and 20 days in January. At Greenville these numbers were 12 and .13, respectively, and at Memphis 16 and 16. The rains not only stopped the work for a considerable part of the time, but put the earth in such condition that it could not be handled effectively when the teams were working. This is shown by the fact that the amount accomplished per team day at Stokes was over 38 cubic yards during the good weather in September and October, whereas in December the amount was less than 24 cubic yards and in January about 14 cubic yards per team day. The contract price is 12 c., and the cost to the contractors is probably between $3 and $4 per team day.
    “ The contractors for the Stokes work were notified September 10 of the acceptance of their bid. They did not wait for the approval of the contract. By September 15 they had. 30 teams at work, and some thirty more on the ground that they could not work for lack of men. .From time to time they were enabled to put on a few more teams, so that by October 31, 44 teams were working. About one-fourth of all the work was done by this time. The quarantine restrictions were removed about November 12. On November 19 there were 59 teams at work; on December 9, 111 teams; on December 29, 126 teams.
    “At the date of my former report, January 6, the river conditions were not such as to cause any apprehension in view of past records. Since then, however, there has been a remarkable rise in the river. Its unprecedented character will be readily seen by reference to the accompanying hydrographs of the Cairo gauge for the months of December, January, and February during the past 17 j^ears. It will be noticed that the only preceding years of high water in January were 1882 and 1890. For purposes of more ready comparison the hydrographs for January and the preceding December for these three years are repeated on the right of the sheet.
    “ I think that the data presented will indicate the extreme difficulties under which the work has been prosecuted. The steps taken by the State levee board were only adopted after full consultation with me. The organization of the wheelbarrow force, when the rapid rise made their use appear advisable, was first directed from this office.
    “ The levee board did all in its power to assist in collecting the necessary laborers, and has paid part of the expense. The expenditures by the board, hoAvever, were assumed voluntarily', after conference with me, as partial relief to the contractors who were suffering heavy losses.
    “ Mr. Scott is a political opponent of the levee board as at present organized. The attitude that he has publicly assumed toward them as well as toward myself is shown in the accompanying marked copies of bis paper, The Bolivar County Democrat.
    “ Very respectfully, your obedient servant,
    
      “ H. C. NewcomeR,
    
      “Oaptain of Engineers
    
    The following correspondence took place between claimant, J. C. McIntyre, and the engineer officer in charge:
    “ Gunnison, Miss., %/%l/98.
    
    “ Capt. H. C. Newcomer,
    
      uGorps of Engineers, U. 8. A., Memphis, Tern.
    
    “ Dear Sir : Will you kindly direct a letter to me expressing the same sentiments which you did to me here upon the occasion of your'last trip to this place, which was Feby. 9th, 1898 ? If you will allow me to recall to you, you stated that you could not recommend that I be given relief here, but expressed yourself as being satisfied I used every effort to do and complete this work, etc., etc., but that it was a combination of circumstances I could not overcome, etc.
    “ You also expressed your sympathy, and stated that you would be willing to assist me if you could see any way for your doing so. The above will give you a sufficient idea of the kind of a letter I would like to have from you. I hope you will make it as strong as the occasion requires and you feel justified in doing.
    “ Trusting that you will both grant and pardon the above request, I am,
    
      “ Yours, very truly, J. C. McIntyre.”
    “ U. S. Engineer Oeeice,
    “ Memphis, Tenn., March 10,1898.
    
    “ Mr. J. C. McIntyre,
    
      “Gunnison, Miss.
    
    “Sir: Replying to your letter of February 21, 1898, I wish to say that I have no hesitation in stating that your work on the Stokes crevasse loop has been surrounded by many unforeseen difficulties and retarded'by circumstances over which you had no control. If you could have, prosecuted the work more vigorously during the quarantine period, and you showed every intention of doing so, the work could doubtless have been done at some profit. In fact, the records of this office show that during September and October the teams you were able to work put up 38 cubic yards of earthwork per day. The quarantine regulations, however, tliat were in force from about the middle of September until November 12 prevented any increase of importance in your force during that time. After the removal of the quarantine regulations you took measures at once to increase your force, and put on sufficient outfit to insure the completion of the levee early in January under ordinary weather conditions. The month of December, however, proved to be a season of remarkably heavy rainfall, and at the end of the month there was considerable work remaining to be prosecuted under even more unfavorable conditions in January. The execution of the work under such great disadvantages doubtless caused you considerable loss, and this through no fault of your own.
    “ I believe that you-observed every reasonable precaution in conducting the operations, and I think that you are entitled to every consideration that it is possible for me to extend to you under the terms of the contract covering the work. It may seem to you that there should be some method by which you can be reimbursed for losses suffered through^ no fault of your own, and I should be glad if you could obtain such relief. Under the terms of the contract, however, I do not consider that I have authority to pay you anything beyond the contract price, as there is no provision for increasing the rate of compensation on account of prosecuting the work under unforeseen difficulties enhancing its cost.
    “ Very respectfully,
    “ H. C. Newcomer,
    “Captain, Corps of Engineers.”
    
    The following letters were written by the officer in charge to Assistant Engineer V an Meter:
    “ U. S. ENGINEER OeEICE,
    “Memphis, Tenn., February 1898.
    
    “ Mr. J. D. Van Meter,
    “Z7. 8. Asst. Engineer, Greenville, Miss.
    
    “(Copy to Mr. B. B. Eggleston.)
    “ Sir: I have just had an interview with Mr. Jayne and Major Starling, who have informed me that in view of their present financial situation they consider it inadvisable to continue payments for forces on any of the breaks. I have wired to Mr. Eggleston, instructing him that the wheelbarrow force at Stokes will be paid on Government rolls beginning with to-morrow’s time. I at first' understood that the levee board would continue on the work the teams that they have so far employed at Stokes, but found upon inquiry that they would’ like to have the Government assume charge of these also. I am not certain about the terms on which Stone & Stancell’s outfit is working, but I think that they are receiving a high price for an 8-hour day. If employed under the Government, it should be preferably at so much per working day of about ten hours, so that there would be no overtime payments, and I think they should receive no more than other teams are being paid generally at different points on the breaks.
    “ Major Starling informs me that the work at the Sledge loop is in such satisfactory condition that it will probably be practicable to withdraw' some of the forces from there by the end of the week. If that is the case, it 'occurred to me some of the forces might be withdrawn from this point to the Stokes loop, taking the place of the planters’ teams that may be withdrawn. In any case, I wish the necessary steps taken to secure for the Stokes work all the teams that can be used to advantage at that place.
    “ I have not been informed on what terms Mr. Boyd’s teams are working at the Sledge break, but I presume it is through some understanding with Mr. Watkins, and the matter should be settled, if possible, between them.
    “ It may possibly be well to employ Mr. Gordon for a time .at the Stokes break. You are authorized to do this if his services are needed.
    “A copy of this letter has been sent to Mr. Eggleston for his information.
    “ Very respectfully, H. C. Newcomer,
    
      “Captain of Engineers.”
    
    “ U. S. ENGINEER OeEICE,
    
      Memphis, Tenn., February 3,1898.
    
    “ Mr. J. D. Van MeteR?
    “27. S. Asst. Engineer, Greenville, Miss.
    
    “(Copy of letter to Mr. Eggleston.)
    “ SiR: I have just had a conversation with Mr. McIntyre about the Stokes crevasse work. He states that the planters’ teams will be withdrawn on Saturday, leaving him about 35 teams in addition to Stansell’s force, if the latter is continued.
    “ Mr. McIntyre would prefer, if practicable, to have the wheelbarrow force withdrawn and do the work by teams, and of course team work is preferable in case it can be relied upon- to do the work. Mr. McIntyre thinks that the amount remaining to be done is considerably less than the 44.000 yards given on the progress reports at the end of the month of January. -While it is my desire to have the work conducted in such a manner as to occasion the least possible expense to the contractors, and for that reason authorize you to lay off the wheelbarrow force as soon as you consider it safe to do so, yet I think that every possible advantage should be taken of the present good weather by working all forces that can be used effectivefy.
    “ Mr. McIntyre would like to have control of any forces put on the work at his expense, and I think it is proper that he should be granted this privilege, so far as practicable.
    “ If Stone & Stansell insist upon receiving the high price that they have hitherto been paid, it may be well to have them return to their own contract, substituting other teams, if they can be obtained, from the Sledge loop.
    “A copy of this letter is sent to Mr. Eggleston, since you may have left Greenville, and the letter will thus reach you sooner.
    “ Very respectfully,
    “ H. C. Newcomer,
    
      “Captain of Engineers.”
    “ U. S. ENGINEER OeEICE,
    “Memphis, Tenn., Feh. 19,-1898.
    
    
      “ Mr. J. D. Van Meter,
    “Z7. S. Asst. Engineer, Greenville, Miss.
    
    “ Sir : I have the honor to return herewith estimate No. 4 for the middle section, Stokes loop, for correction.
    “ I have decided that the Government will assume the expense of the wheelbarrow work done' on-this section, and therefore the yardage put up by the barrow force while under pay by the United States must be withdrawn from McIntyre & Howard’s contract. I presume that in submitting this estimate you have included all of your yardage in place. If so, you will make out a new estimate, crediting* McIntyre & Howard with all the yardage in place, except that put in by wheelbarrows under Government pay, of which you will make as close an estimate as you can, and then indicate only the team force to be deducted from the amount due the contractor.
    “ You will indicate on one of the estimates the amount of earthwork the Government barrow force is to be credited with, and I would also like to be informed whether Mr. McIntyre wishes to pay the team force directly out of his estimate, or whether I am to pay the team force, deducting the amount from bis estimate. It may be well to hold this estimate until a final can be submitted, as the work is so nearly complete.
    “ Very respectfully,
    “ H. C. Newcomer,
    
      “Captain of Engineers.”
    
    VII. The work contemplated by the contracts was not completed by January 1, 1898, but the contractors were granted extensions as follows:
    “ U. S. ENGINEER OeEICE,
    “Memphis, Tenn., February 8,1898.
    
    “ Messrs. McIntyre & Howard, _
    “(c/o Geo. Arnold Co.) Gity.
    
    “ Gentlemen : I have the honor to inform you in writing, as I have already notified you verbally, that the Chief of Engineers has approved the extension oí your contracts, stations 999-1018, 1018-1034, and 1034-1051, from January 1, 1898, to February 15, 1898. It is probable that some additional extension will be required before all of these contracts can be completed, and I shall request authority from the Chief of Engineers to grant such additional extension.
    “ Very respectfully,
    “ H. C. Newcomer,
    
      uOaptain of Engineers.”
    The above extension to February 15, 1898, was applied for to the Chief of Engineers by Captain Newcomer December 14, 1897, and granted by the Chief of Engineers December 24, 1897.
    “ Memphis, Tenn., March 8th, 1898.
    
    “ Messrs. McIntyre & Howard,
    “(c/o Geo. Arnold Co.) Gity.
    
    “ Gentlemek : I have the honor to inform you that your contracts for Stokes crevasse loop stations 999-1018, 1018-1034, and 1034-1051 A, are extended from February 15th to April 1, 1898, on account of the delay due to bad weather in December and Januaiy. This extension is without expense to you for superintendence and inspection.
    “ Very respectfully,
    (Signed) “H. C. Newcomer,
    
      “Oaptain of Engineers.”
    On October 4, 1897, claimants requested Captain Newcomer, the officer in charge, to extend the contract time ninety days, and Captain Newcomer, by letter dated October 6, 1897, Hinckley, Ill., instructed his chief clerk to inform the claimants “ that due consideration would be given the difficulties surrounding their work incident to the quarantine regulations, but there is no apparent reason yet for granting the ninety days’ extension asked for. I shall act on'his application after my return to Memphis;” and the chief clerk informed them accordingly, by letter dated October 9, 1897.
    On February 8, 1898, the date the claimants were by letter informed of the approval authorized December 24, 1897, by the Chief of Engineers, of the extension of the contracts from January 1, 1898, to February lo, 1S98, the claimants requested an extension of time to April 1, 1898, on account of continued inclement weather, previous hindrances, and the prevailing high water. On Februarjr 12, 1898, when the work was very nearly completed, the officer in charge asked authority of the Chief of Engineers to grant this extension. The request was granted March 4, 1898, and on March 8, 1898, when the work was almost completed, the officer in charge informed the claimants that their contracts were extended from February 15 to April 1, 1898, “ on account of the delay due to bad weather in December and January.”
    VIII. In the latter part of Defeember, 1897, it became apparent to the engineer officer in charge that the force then employed by the contractors was not sufficient to complete the work within the time therein specified, or within a month thereafter, to wit, February 1, 1898, and on the 21st day of December, 1897, the engineer officer in charge addressed the contractors a letter, as follows:
    “ Memehts, Tenn., December 81,1897.
    
    “ Messrs. MclNTYRE & Howard,
    “(C/o George Arnold Co.) Gity.
    
    “ GenttlemeN : I find that there will be required on your contract for the Stokes crevasse loop a force of about .200 teams during next month, in order to insure its completion by February 1, 1898. You are therefore requested to increase your present force to about 200 teams % January 3. In case you can not make the necessary increase additional force will have to be put on the work by this office. Please let me know whether you can add the necessary number of teams.
    “ Very respectfully,
    “H. C. NEWCOMER,
    
      “Oapt. of Engineers.”
    
    Upon receiving the above notice claimants began to secure additional teams, and'increased their working force from 95 to 160 teams; and on January 2, 1898, 42 more teams were placed on the work covered by contracts by the Mississippi State levee board without expense to the claimants.
    IX. As the water of the first winter’s flood reached its highest point about January 25, 1898, at which time the river was over its banks and was against the levee to the extent of 5 or 6 feet, the ground in the rear from which the earth had to be taken to build up the levee became so boggy that teams could not work in part of it and had to be withdrawn. In order to keep this portion of the levee line above the rising waters, it became necessary to use a wheelbarrow force, as wheelbarrows could be used under conditions where teams could not be moved.
    About this time the people of the State of Mississippi became alarmed and apprehensive that owing to the continued bad weather the contractors would not be able to close the gaps in the levee in time to prevent an overflow when high water came, and on January 24, 1898, a wheelbarrow force was put on the work bjr the Mississippi State levee board, and was continued until February 24, 1898, working in all 3,889 days.
    Prior to Febuary 3, 1898, the said wheelbarrow force was paid for by the levee board and the yardage given to McIntyre & Howard without any cost to them, After that date the United States paid the wheelbarrow force and deducted the yardage.
    The account of the wheelbarrow force against McIntyre & Howard is as follows:
    Cubic yards.
    . Done by the Government forces_ 9, 807
    Done by the levee board force___4,102
    Total 13, 909
    
      For which there was deducted $1,176.81, making this yardage cost the contractors 8.16 cents per cubic jrarcl.
    X. The claimants had in their employ teams belonging to D. P. Cullen & Co., and about January 14,1898, Cullen & Co. became dissatisfied and desired claimants to secure' to them the payment for their team work. ' Thereupon claimants requested the engineer in charge to guarantee the payment of whatever might be earned by Cullen & Co.’s teams. In compliance with claimants’ wishes, and in order to have the teams continue at work,- the engineer in charge arranged with Cullen & Co. for the employment of their teams by the Government, the terms agreed upon being $3.85 per team per working day, an increase of 10 cents per day over that paid by claimants. The 10 cents per day increase was given as an equivalent for some blacksmithing to be done by Cullen & Co., and was not objected to on the part of the claimants.
    Work done under this arrangement Avas credited to the claimants, and only the amount paid by the Government was charged to the claimants in the settlement of accounts.
    XI. The work under the contracts Avas advertised for 215,000 cubic yards, and the progress reports,. giving the amount of yardage in place by Avhomsoever put up, sIioav the completed work to be 216,891 cubic yards. The estimates on Avhich payments Avere made show 216,870 cubic yards, and McIntyre & Howard were paid for 207,063 cubic yards at 12 cents, the contract price, or $24,847.56; the remainder, or 9,807 cubic yards, being deducted as the amount done by the AvheelbarroAv force put on and paid for by the Government. The profit on said 9,807 cubic yards, had the claimants been permitted to do the work, would haA^e been $441.31.
    From said $24,847.56 there Avas deducted for team hire the following:
    D. P. Cullen & Co.:
    205-nj team days, at $4____'_ $823.20
    33-/0- days’ labor, at $1.50___ 49.80
    8days ’ foreman, at $2.50...' 21.37
    -i $894.37
    Henry McCarten:
    12 team days, at $4.581 55.00
    
      Stone & Stansell:
    284]^ team days, at $4____ 1,187.20
    61A days’ labor, at $1.50.. 92.25
    15T8„- days’ foreman, at $2,50.. 89.50
    - 1,268.95
    O. P, Gibson:
    106-& team days, at $4.68tVj...-. 493.20
    Total.......2,711.52
    To offset the amount of $2,711.53 deducted by the engineer in charge for team hire, McIntyre & Howard were given by the Mississippi State levee board the use of teams and wheelbarrow forces sufficient, imder the supposition that' the work per team and per wheelbarrow was uniform, to put in place 17,616 cubic yards without expense to the contractors, and for which they received full payment.
    XII. The work under the contracts was started in September, 1897, when the weather was favorable for such work, and the levee was not constructed across a slough or at any place where settlement of the soil on which the levee rests was anticipated by either the contractors or the United States engineer in charge of the work. There was no measurement made by anyone to ascertain whether or not there was any settlage, and none could be made unless some preparations are made previous to its settlage, which was not done, and any estimate of a settlement or how much the levee had settled would be purely guesswork. There was no evidence to the engineer in charge that there was any anticipation of settlement. All of the levees practically are built on soil that is quite compressible, and the whole of the Mississippi Valley is an alluvial deposit, and resting thereon such an amount of earth necessarily causes some settlement and shrinkage. For that reason it is provided that levees be built about 10 per cent higher than the intended final grade.
    At no time during the progress of the work did the contractors erect the constructions provided for in section 43 of the specifications for determining the settlement of any portion of the levee covered bjr the contracts.
    After the work had been in progress a considerable time— that is, during the wet weather that followed the opening of the year 1898 — the contractors claimed that a part of the levee was settling, but in the judgment of the engineer in charge there was no evidence to corroborate their claim.
    XIII. The total number of team days put on the entire work covered by the contracts was 9,251. Of this number the Mississippi State levee board put on and paid for, without any cost to the contractors, 1,022J team days, leaving 8,228-J team days as paid for by the contractors. This includes the G08.4 team days put on and paid for by the Government out of money due the contractors.
    XIY. The claimants were paid for 207,063 cubic yards of levee construction, at 12 cents per cubic yard, the contract price, or $24,847.56, less $2,711.52 deducted for .11,554 cubic yards placed by teams employed by the Government, less the payment of $707.67 made to D. P. Cullen & Co. in January, 1898 (which was a part of the above-mentioned amount of $2,711.52), was made to McIntyre & Howard. This payment was made to the contractors by the Government, the claimants indorsing the check over to D. P. Cullen & Co.
    The total amount of yardage upon which payments were made was 216,870 cubic yards, of which 9,807 cubic yards was placed without cost to the claimants by the wheelbarrow force paid for by the Government (the yardage simply being deducted from their contracts), leaving 207,063 cubic yards, and of this amount there was placed by the Mississippi levee board 17,616 cirbic yards without cost to the contractors and for which they were paid at the contract price, leaving 189,447 cubic yards. Of this last amount there was placed by the Government teams 11,544 cubic yards, but the claimants paid D. P. Cullen & Co., as above set out, $707.67, which, at the contract price, equaled 5,897-]; cubic yards of this amount, leaving 5,647 cubic yards as placed by the Government force, and for which there was deducted the cost thereof to the Government from moneys due the claimants. This left 177,903 cubic yards, exclusive of the 5,897J cubic yards represented in the payment of $707.67, as actually placed by the contractors, and for which they received from the Government the sum of $22,843.71, as above stated, or about 12-| cents per cubic yard.
    
      XV. It does not appear that the engineer in charge acted in bad faith in refusing to grant the extension to April 1, 1898, asked for by the claimants on October 4, 1899; nor does it appear that the engineer in charge acted in bad faith when he employed additional forces and placed them on the work, deducting the cost thereof from money due the contractors. The same is true as to the action of the engineer in charge in permitting the Mississippi State levee board to place a force on the work without any cost whatever to the contractors.
    And it does not appear that the engineer in charge acted in bad faith in requiring the claimants to perform any material portion-of the work under unfavorable conditions, or that an emergency which did not exist was assumed on the part of the engineer officer in charge.
    The people in the vicinity were very much exercised over the possibility of the work being done before the next high water, and the engineer, although not impressed with the danger as firmly as the people interested, yet, inasmuch as the levee board were to pay for the work and in order to save the country from the disaster of the overflow, decided it was necessary to have the work done before the floods should arise; but upon the whole he thought there was no occasion for alarm.
    
      Mr. Benjamin Micou for the claimant. Messrs. Herbert <& Micou were on the brief.
    
      Mr. IF. IF. Scott (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This is a suit founded on three contracts executed on the 10th of September, 1897, between the claimant and the United States, for the construction of a levee on the Mississippi River, in the lower levee district, in the State of Mississippi.

There are three contracts containing the same provisions, but embracing different parts of the work. The contracts are made part of the petition as Exhibit A. Under said contracts the claimants obligated themselves to build a large amount of levee embankment, amounting in tlie aggregate to about 215,000 cubic yards. By the terms of such contracts the work was to be finished by January 1, 1898. The contracts were not approved by the Chief of Engineers until September 27, 1897. The parties were much delayed by the prevalence of the yellow fever, which became epidemic on the 17th of September, and continued so until about the 18th of November, 1897. Extensions in time were made by the officer in charge until April 1, 1898, in consequence of the epidemic and the extraordinary condition of weather during the months of December, 1897, January and February, 1898.

It is alleged in the petition that the officer in charge of the work'representing the defendants treated .construction of the levee as an emergency, pushing the work in bad weather to the great prejudice of the claimants, putting on additional force not employed by the claimants, and'charging- the same to the account of claimants, and that the officer unjustly, and in violation of the terms of the contract, interfered with the claimants in the execution.of the contracts.

The result and effect of the alleged interference of the agent of the United States is summarized in the petition as follows:

For forcing the work under unfavorable conditions as of an emergency character_$28, 008. 82

For loss of profits and actual cost to petitioners on the 30,000 yards of work rendered necessary from settling of foundations, for which petitioners were paid nothing _ 7, 800. 00

For loss of profits on work the United States should have permitted petitioners to do," but which it did itself, deducting said amount of work from petitioners’ contracts _ 441.31

For loss of profits petitioners could have made on work ' done at petitioners’ expense, and the excess over 12 cents per cubic yard charged to them by the United States for its doing this work.'-•-_ 2, 894.19

Total_ 39,144. 32

In the early stages of the performance of the work the claimants were delayed for a considerable period of time during the months of October and November by a quarantine established by the authorities of the State of Mississippi, so that by the 1st of December, 1897, the work was much behind, and then during the month of December the work was very much delayed in consequence of the wet weather of that month. The delays of the work during the time in which the contracts were to be performed are in legal effect eliminated from this controversy by the different extensions of time which were given to the claimants by the officer in charge, which are as follows, to wit: On October 4, 1897, claimants asked for an extension of time for ninety days; on December 21, 1897, contract was extended to February 1, 1898. Upon a, further request the time was extended to February 15, 1898. On February 8, 1898, claimants applied for a further extension to Apinl 1, and on March 8, 18.98, the request was granted.

It is stated in the brief of claimants that “ we base the claim for compensation herein set up upon damages resulting to the claimants by unauthorized interferences after the engineer officer in charge had, in his judgment, held them to be entitled to extensions.” This concession eliminates the question of time extension and places the right of the claimants on this charge of the petition to forcing the work under unfavorable conditions as an emergency character.

In connection with this branch of the case we quote from the forty-seventh section of the specification, which is as follows :

“ 47. Force. — Within ten days after written notice has been given the contractor that he has been awarded the contract, he shall employ‘such force and outfit as, in'the judgment of the engineer in charge, shall be necessary to com-ísete the work within the contract time; and if he shall fail •to maintain this force and outfit, or it becomes evident to the engineer in charge that the work is not being prosecuted with due diligence, and will not be completed in the contract time, he, the engineer in charge, shall have power to employ, at any rate of pay which in his judgment may be necessary, such additional labor and to purchase such additional outfit as may seem essential to insure the completion of the work in the contract time, and place them upon the work, deducting the total cost of the same from any moneys due or to become due the contractor. The contractor shall personally superintend bis work on the ground, or cause it to be done by a responsible and capable representative, and will also, on request of the engineer in charge or his designated agent, discharge any employee detected in violating these specifications.”

It is insisted in this connection that if the claimant had a sufficient force in the judgment of the engineer at the commencement of the work and maintained that force, it was a sufficient compliance with that provision of the contract; and that thereafter the officer in charge would have no right to interfere, although the progress of the work might be such as justified the belief that the work would not be completed within the limitation of the contract. In connection with the clause of the specification on the subject of the force needed in the commencement of the work there occurs the disjunctive provision “ or it becomes evident to the engineer in charge that the work is not being prosecuted with due diligence and will not be completed on contract time, he, the engineer in charge, shall have power to employ at any rate of pay which in his judgment may be necessary to the completion of the work in the contract time and place them upon the work, deducting the total cost of the same from any moneys due or to become due the contractor.” This was done on the by the findings of fact. The mere maintenance of the force which the claimants had when the work was commenced is not sufficient to discharge the claimants from their responsibility to complete the work on time, and does not deprive the officer in charge from the exercise of a reasonable discretion to hire an additional force at the expense of the claimants.

The conclusion of the fifteenth finding states “ it does not appear that the engineer in charge acted in bad faith in requiring the claimants to perform any material portion of the work under unfavorable conditions.”

If the officer in charge had acted in bad faith, in requiring the performance of the work at such times and under such circumstances as to indicate a tyrannical and fraudulent exercise of power, in that case the rights of the claimants in this proceeding would be materially different. The circumstances surrounding the performance of the contract, growing out of a continued and increasing apprehension that the high water would inundate the surrounding country, called for, on the part of the engineer, the exercise of a very delicate and difficult duty, and it is not unreasonable that he should determine that the emergency-required hipi to assist in the completion of the work. By the consent of the engineer the levee board of the State of Mississippi assisted in the performance of the work, the benefit of which was allowed the claimants in the estimate of the work and paid for by the United States.

The next clause of complaint is for loss of profits and actual costs to petitioners on the 30,000 yards of work rendered necessary from settling of foundations, for which petitioners were paid nothing. •

Section 43 of the specifications is as follows:

“43. Settlement of foundations. — Where a levee is constructed across a slough, or at any place where settlement of the soil on which the levee rests is anticipated, the contractor will erect, at his own expense, such structures for determining settlement as the engineer in charge may designate, and shall construct the levee in such a manner as he may prescribe, and for all material used in restoring the sunken portions the contractor shall be paid at the same price per cubic yard as for the original embankment, but he shall receive no compensation unless the instructions and directions of the engineer in charge are fully complied with.”

The twelfth finding is applicable to this branch of the case, which states that the levee was not constructed across the slough or at any place where settlement of soil on which the levee rests was anticipated by either the contractors or the engineer in charge. There was no measurement made by anyone to ascertain whether or not there was any settling, and none could be made unless some'preparations are made previous to the settling, which was not done, and any estimating of a settlement or how much the levee had settled would be purely guesswork. There was no evidence to the engineer in charge that there was any anticipation of settlement. All of the levees, practically, are built on soil that is quite compressible, and the whole of the Mississippi Valley is an alluvial deposit, and resting thereon such an amount of earth'necessarily causes some settlement and shrinkage. For that reason it is provided that levees be built about 10 per cent higher than the intended final grade.

At no time during the progress of the work did the contractors erect the constructions provided for in section 43 of the specifications for determining the settlement of any portion of'the levee covered by the contracts.

After the work has been in progress a considerable time— that is, during the wTet weather that followed the opening of the year 1898 — the contractors claimed that a part of the levee was settling, but in the judgment of the engineer in charge there was no evidence to corroboi’ate their claim.

The third claim of the petition is “ for loss of profits on work the United States should have permitted petitioners to do, but which it did itself, deducting said amount of the work from petitioners’ contract, $441.31.”

This claim is covered by the eleventh finding of fact, the substance of which is that the amount advertised for is 215,000 cubic yards; but the actual amount by whomsoever put up is 216,891. Of that amount the claimants were paid for 207,063 cubic yards at 12-cents per yard, the contract price, or $24,847.56, the remainder, or 9,807 yards, being deducted as the amount done by the wheelbarrow force put on and paid by the Government. Had the claimants been permitted to do the 9,807 cubic .yards their profits thereon would have been $441.31, and this sum we think they are entitled to recover, notwithstanding the benefits accruing to them from the work done by the levee board.

The fourth claim of the petition is “ For loss of profits petitioner could have made on work done at petitioner’s expense and the excess over 12 cents per yard charged to them by the United States for its doing the work.”

The eleventh finding contains a statement of the amount paid the different parties engaged by the officer in charge to assist in the performance of the work in order that the same might be finished within the time limited by the different extensions of the contract.

It is true that the prices paid by the engineer in charge were in some particulars higher than what was being paid by the claimants, but the difference in the amount is not sufficient to justify the inference that the officer acted in bad faith and dishonestly disregarded the interest of the claimants.

Judgment will be entered for the sum of $441.31, and as to the other items of the claim the petition is dismissed.  