
    C. MARK COLE v. THE UNITED STATES.
    [No. 14709.
    Decided June 11, 1888.]
    
      On the Proofs.
    
    The contract binds the contractor to deliver stone at Ms quarry at the rate of 13,000 yards per month; “ total quantity to he delivered" hy June 30, 1883, “70,000 yards;” and the defendants “to supply barges to take stone as fast as possible, and to take the whole 70,000 yards hy June 30, navigation permitting.” The contractor excavates the stone, hut the defendants do not supply sufficient barges. On the 30th June the contractor treats the contract as at an end; but the defendants insist that it is continuing, and compel him to deliver the balance of the 70,000 yards.
    I.A contract -which requires the defendants to furnish barges and receive 70,000 yards of stone at the contractor’s quarry, “navigation permitting,” means navigation at the place of loading.
    II.A contract which requires the defendants to receive and remove stone as fast as their barges can be unloaded, but to receive a certain quantity within a designated period, will be construed to mean ■that the defendants shall furnish barges enough to take away the designated quantity within the period named.
    III. Where a contract binds the defendants to furnish barges for and receive a certain quantity of stone within a designated period, and they neglect to do so, it does not bind the contractor to furnish a portion after the period has elapsed; but if he does so, it will be deemed a delivery under the contract.
    IV. Where a contract binds the defendants to furnish barges for and receive stone at the contractor’s quarry at a prescribed rate, and they, by neglecting to do so, cause an accumulation of stone in the quarry, it is a negligence casting needless expense upon the contractor, for which the defendants will be liable.
    Y. If by neglect within the prescribed period the defendants reduce the contractor’s profits on stone subsequently delivered, they will be liable.
    VI. Tender is not necessary where the defendants are in default and know that the contractor is ready and willing to perform.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. Plaintiff entered into the following contract:
    ‘‘Articles of agreement entered into this 27 th day of December, eighteen hundred and eighty-two (1882), between Oapt. Clinton B. Sears, Corps of Engineers, U. S. Army, of tbe first part, and C. Mark Cole, of Marietta, of the county of Washington, State of Ohio, of the second part.
    “ The party of the second part agrees to deliver at his quarry at Golconda, Ill., upon barges supplied by party of the first part, riprap rock of sound, durable sandstone in sizes varying from 20 lbs. to 200 lbs. weights, aud in quantities as follows: 5,000 cubic yards in January, 1883, and 13,000 cubic yards in each of the months of February, March, April, May, and June, 3883, providing navigation will permit the barges to reach the quarry, otherwise lesser quantities will be furnished monthly. Total quantity to be delivered between January 1 and June 30, 1883, is 70,000 cubic yards.
    “It is further agreed that should navigation not permit the barges to reach the quarries, the party of the first part shall be empowered to purchase riprap rock at such places as may be accessible, the amounts so purchased to be deducted from the total quantity to be supplied by the party of the second part. Also, in case the party of the second part fails, in any one month, to deliver at least 7,000 cubic yards, except in January, 1883, and as above excepted, through no want of barges, the party of the first part is empowered to buy in open market, wherever he can, the amount of the deficiency, and charge the difference in excess in price, if any, to the party of the second part.
    “Further, it is agreed that the party of the first part shall be empowered to increase the total quantity of rock to be delivered up to 100,000 cubic yards (i. e., 30,000 yards more) upon due notice being given to the party of the second part.
    “For each cubic yard of stone delivered in accordance with this agreement the party of the first part agrees to pay to the party of the second part the sum of fifty-five (55) cents.
    “The party of the second part agrees to take care of the barges, when sent in good condition, spar them off, pump them out, and supply lines for holding them from the time they are turned over at his quarry until taken away by the party of the first part.
    
      “ The party of the first part assumes all risks usually covered by marine insurance companies.
    “ The party of the first part agrees to supply good, serviceable/ barges, as fast as they can be unloaded, but does not guarantee to keep the party of the second part supplied with barges at all times, nor does he guarantee to take 7,000 cubic yards a month; but he does agree to use his best efforts to supply barges to take stone as fast as possible, and to take the whole 70,000 cubic yards by June 30th, 1883, navigation permitting; and, if not, as soon thereafter as possible.
    “ No claim fordamages shall be made by the party of the second part by reason of the failure of the party of the first part to remove loaded barges when there is less than three (3) feet depth of water in the channel below the quarry, or when the ■channel is obstructed by ice.
    “ All materials furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the Government, and snch as shall not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.
    “ The said O. Mark Cole shall commence the delivery of the riprap rock as specified on or before the tenth day of January, 1883, and shall complete the said delivery on or before the thirtieth day June, eighteen hundred and eighty-three (1883), providing the party of the first part can supply barges sufficient to remove it.”
    This contract, executed in quintuplícate, was approved January 20, 1883, by H. G. Wright, Chief of Engineers, brigadier and brevet major-general. •
    The following is the advertisement mentioned in the contract:
    
      “ Proposals for riprap stone and wire.
    
    “ Office of Ex. Officer, Con. Dept.,
    “Miss.1 River Com:.,
    “2653 Olive St., St. Louis, Mo., December 10, 1882.
    “ Sealed proposals, in triplicate, will be received at this office until 12 o’clock noon, on December 20th, 1882, at which time and place they will be opened in presence of bidders, for furnishing 70,u00 cubic yards of riprap stone and 450,000 pounds of galvanized steel wire. The proposals for the stone and wire must be sent in separately. Bids for either article alone will be received. The Government reserves the right to reject any or all proposals. Preference will be given to articles of domestic production.
    “ Blaub proposals and full information as to the manner of bidding, conditions to be observed by bidders, and terms of contract and payment will be furnished on application to this office. Envelopes containing proposals should be marked ‘Proposals for stone' or wire, as the case may be, and addressed to the undersigned at this office.
    “Clinton B. Sears,
    “ Gapt. oj Eng., U. S.A., Ex. Off. Gon.Dept.M.B. GomP
    
    Thefollowingaiethe specifications mentioned in the contract:
    “ Special instmictions to bidders for riprap stone.
    
    “ Transportation. — The barges will be supplied and towed to and from the points where the stone is loaded by the United States.
    
      “ Bids. —The bid will state the price per cubic yard, delivered upon the barges, at the quarries, and must include all the labor connected with the quarrying, loading, and piling of the.stone ijpon the barges.
    
      u Time for loading. — Five days’ notice of the time when the first barge load will be required will be given, and the barges must be loaded as expeditiously as possible.
    “ Quantity required,. — The quantity to be supplied will be about 12,000 cubic yards per month, beginning about Jan. 2, 1883, navigation permitting. The total quantity required will be about seventy thousand (70,000) cubic yards, with the privilege of taking up to 100,000 cubic yards at the same rates. All to be taken by June 30, 1883.
    “ Description. — Bids must describe the kind of stone, weight per cubic foot, and location of quarry, and proposed rate of delivery.
    “ tfndesired bids. — No bids will be considered for quarries more than two hundred and forty' (240) miles above Cairo, on either the Mississippi or Ohio Bivers, nor from below Plum Point, Tenn., on the lower river, nor for the delivery of less than seven thousand (7,000) cubic yards per month.
    “ Measurement. — The measurement of the stone will be made upon the loaded barges, at the place of loading, by a Government inspector, whose measurement shall be considered as final.
    
      Payments. — Payments shall be made monthly upon the quantities received during the month, reserving' ten per cent, of amount due until the completion of the contract.
    “ Specifications. — The stone must be in random sizes, varying’ in weight between the limits of twenty (20) pounds and two hundred (200) pounds, and must be of a character not liable to disintegration from handling or exposure to water and air, and be delivered in accordance with the foregoing instructions.
    “ Care of barges. — The contractor will be expected to take care of the barges, spar them off, keep them pumped out, and supply lines from the time they are turned over at his quarry until taken away by the United States. As far as possible, new barges will be supplied by the United States.
    “ Note. — In making the awards, the accessibility of the quarries and a reasonable allowance for the towage between the quarries and the works will be considered.
    “ Navigation. — Should navigation not permit the barges to reach the quarries, the United States reserves the right to buy elsewhere in open market such quantities as may be immediately needed.
    “ Failure of contractors. — In case contractor fails in any one month to deliver at least 7,000 cubic yards, through no want of barges, the United States claims the right to buy in open market, wherever it can, and charge the same to the contractor,. providing the amount so purchased does not exceed the deficiency on the part of contractor.
    “ Clinton B. Seaks,
    “ Ocvpt. Engineers, U. 8. A., Eco. Off. Con.Dept.M. B. G.
    
    “ U. S. Engineer Oeeice,
    “2653 Olive st., 8t. Louis, Mo., Eec. 13, 1882.”
    II. Immediately after the execution of said contract plaintiff entered upon the work of fulfilling the same, and during the period from January 1 to June 30,1883, plaintiff was at all times ready and able to perform his part of said contract.
    III. From January 1 to June 30,1883, the United States furnished barges for and received only 34,120 cubic yards of rock under said contract, and the United States failed to furnish the-necessary barges for and to take the balance of said rock, viz., 35,880 cubic yards, during said time.
    IV. The failure on the part of the United States to furnish barges for and to take the whole 70,000 cubic yards of riprap rock within the time specified by said contract was not occasioned by any obstruction to navigation in the Ohio. Captain Sears, the officer in charge, made great efforts to supply barges, but was unable to do so in sufficient quantity. The failure to do so was in some degree due to high water in the Lower Mississippi, the point of unloading; but it does not appear that it was due only to this, or that extra barges could not have been bought or hired.
    V. From January 1, 1883, to July 1, 1883, plaintiff delivered to the United States 34,120 cubic yards, all that was called for, for which he was paid at the contract rate of 55 cents per cubic yard. The balance of the 70,000 cubic yards was called for by defendant and delivered by plaintiff from time to time after July 1, the last delivery being made in December, 1883; for this stone also plaintiff has been paid at the rate of 55 cents per cubic yard.
    Plaintiff from time to time gave receipts, as payments were-made, in the form shown in receipt A, hereinafter set forth, and finally, after all deliveries completed, he gave the receipts B and C.
    
      A.
    
      Appropriation for improving- Mississippi River. The United States (for Plum Point Reach) to C. Marie Cole, JDr.
    
      
    
    * In red ink. tin pencil.
    “ Received, at Saint Louis, Mo., this 21st day of Dec., 1883, from Capt. Clinton E. Sears, Corps of Engineers, the sum of two hundred and seven dollars and ninety ceüts, in full payment of the above account. “ (Signed in duplicate.) “O. Make Cole.”
    B.
    
      Appropriation for improving harbor at New Orleans, La. The United States (for same) to O. Mark Cole, Dr.
    
    
      
    
    * In red ink. tin pencil.
    
      “ Received, at Saint Louis, Mo., this 1st day of January, 1884, from Capt. Clinton B. Sears, Corps of Engineers, the sum of forty-six dollars and nine cents, in full payment of the above account.
    
      “ (Signed in duplicate.)
    “C. Mark Cole.”
    
      C.
    
      Appropriation for improving Mississippi River. The United States (for Plum Point Reach) to O. Mark Gole> Dr.
    
    
      
    
    * In red ink. tin pencil.
    
      “ Received, at Saint Louis, Mo., this 1st day of January, 1884, from. Capt. Clinton B. Sears, Corps of Engineers, the sum of ■six thousand two hundred and forty dollars and seventy-six cents, in full payment of the above account.
    “ (Signed in duplicate.)
    “O. Mare: Cole.”
    VI. Early in July, 1883, defendants demanded of plaintiff rock then ready for delivery. Plaintiff refused to deliver, claiming that his contract had ended. This view of the case was substantially concurred in by Captain Sears, the officer in charge, who recommended to his superiors that a new contract be entered into with plaintiff and that some compensation be made him for his losses under the contract of the 27th December, 1882. Captain Sears proposed to plaintiff to go on and load barges as they came to the quarries, saying he would treat the stone as bought in open market until he could hear from Washington. Relying upon this statement, plaintiff began to deli ver stone. To the view of Captain Sears the Engineer Office in Washington did not agree, and a letter, of which, the following is tire important part, was written to him from that office:
    “ Upon examination of the contract on file in this office, it is observed that the United States; through the party of the first part (Captain Sears), ‘agrees to supply good and serviceable barges as fast as they can be unloaded, but does not guarantee to keep the party of the second part supplied with barges at all times, nor does he guarantee to take 7,000 cu. yards a month; but he does agree to use his best efforts to supply barges to take stone as fast as possible, and to take the whole 70,000 y’ds by Juue30,1883, navigation permitting, and if not, as soon thereafter as possible;’ and it is presumed that 1 the best efforts to supply barges ’ was faithfully carried out.
    “ The contractor agrees ‘ to complete said delivery on or before the 30th day of June, 1883, providing the party of the first part can supply barges sufficient to remove it.’
    
      u The party of the first part, having used his best efforts to supply barges, failed to supply them, and thus prevented the delivery at the 30th June, 1883.
    “ The contract has not expired, and will not expire until the conditions have been complied with by both of the parties to it, and may be extended until these conditions have been fulfilled. It is not seen, therefore, that the claim of Mr. Cole has any substantial basis; even if it had, your proposed mode of settling it would be inadmissible.
    “ In regard to the further stone that may be required for the work, it should be obtained by contract, after advertising for proposals in the usual way.
    Plaintiff was informed of this decision, as set forth in the following finding, but continued to deliver stone until the total amount of 70,000 cubic yards was reached. This stone plaintiff purchased of the quarry-owner at 45 ceiits per cubic yard (as he had meantime and after July 1 sold his quarry), and for it he was paid by the Government 55 cents per cubic yard.
    VII. Plaintiff considered the contract at an end upon July 1,1883, and so notified Captain Sears. The subsequent delivery of rook was at first by the request of said captain until after the receipt of the letter quoted in the foregoing finding, when the latter wrote as follows to the plaintiff:
    “ I must, therefore, hereby notify you that the U. S. does not consider the contract with you as having expired, and insists that you shall go on with the delivery of the stone under said contract as fast as barges may be supplied by the U. S.”
    To all this action* claimant protested, and his subsequent deliveries of stone and receipts were made and given under protest.
    
      YIII. If plaintiff had been furnished a sufficient number'of barges to remove the entire 70,000 cubic yards prior to July 1, 1883, he would have received a direct profit of 12¿ cents per cubic yard. Having sold his quarry after July 1, and before ■the receipt of the letter quoted from in Finding YII, he bought stone at 45 cents, which he could have quarried before at 42-3,-cents; he therefore lost a profit of 2-3,- cents on each cubic yard not delivered before July 1, 1883; to wit, 35,880, at 2J cents, $897. The extra expense thrown upon plaintiff by reason of defendant’s failure to furnish barges by said date, an expense to which he would not otherwise have been subjected, was $3,200; total, $4,097.
    IX. Plaintiff never had at one time ready quarried and on the river bank the total amount of stone remaining on any one day undelivered of the total 70,000 cubic yards; that is, on June 30,1883, he had not so ready quarried and on the bank 35,880 cubic yards ; but he was always ready and able to deliver the stone on the barges as called for in usual course of business; a fact known to defendants.
    
      Mr. Green B. Bcmm for the claimant:
    It is a well-settled rule that if a defendant neglects to furnish what he has contracted to find in due time, so that the plaintiff is obliged to perform his part of the contract at an additional expense, such additional expense ought to be taken into consideration and added to the contract price. (Koon v. Greenman, 7 Wend., 123; Eingler v. Wiseman, 20 Ohio, 361.)
    It is a well-settled rule of law that the actual loss sustained by the breach of a contract and a fair and reasonable profit which would have been made if the contract had not been broken are recoverable by action for such breach. (Masterton v. Mayor of Brooklyn, 7 Hill, 61; Story v. New York & Harlem B. B. Go., 1 Seld., 85; Fox v. Harding, 7 Cush. (Mass.), 516.)
    
      Mr. Felix Brannagan (with whom was Mr. Assistant Attorney-General Howard) for the defendants : .
    1. The fact that a promisor could have had the articles contracted for ready to be delivered at the proper time and place .if the other party had been present to receive them would not be a sufficient tender, nor would it vest the property in the latter. (Smith v. Loomis, 7 Conn., 110.) See also McConnell v. Hall, Bray., 223; Newton v. Galbraith, 3 Johns., 119; Bivins v. Graham, 4 Co wen, 452; Nichols v. Whiting, 4 Boot, 443.
    The confusion relates not to the necessity of a tender, but to the effect of the tender in transferring' the title to the property.
    2. Even when a tender is pleaded with a profert, the defendant should have the hr tides in court, unless they are very bulky. In the latter case the old rule of law required an averment to that effect in the plea, but now it is deemed sufficient to plead actual possession of the articles and readiness to make delivery. (Bro. Abr., tit Tout temps prist, pi. 3 j 2 Bol. Abr., 524).
    3. The legal consequence, therefore, of the construction put upon the contract by the claimant is that he has no ground upon which to maintain an action in damages, the defendants having accepted and removed each month all the rock that he was ready, able, and willing to supply them ; all that he actually had to deliver. His losses are chargeable to his own indiscretion and want of foresight. He can have no relief in the courts. Congress alone can extend it.
    4. In this view of the case non-performance is an effectual defense. {Haldane v. Johnson, 8 Exch., 689; Poole v. Tunbridge,, 2 M. & W., 223; Shep. Touch,, 378; Rowe v. Young, 2 Brod. & B., 165 ; Cranley v. Hillary, 2 M. & S. 120).
    5. The action of both parties affords a very fair and commonsense view of what they understood by the contract.
    Final payment of the 10 per cent, reserved and unqualified acceptance was an admission of satisfaction by both parties-as to the manner in which the contract had been performed. {Sioeeny v. The United, States, 17 Wall., 75.) Breach or no breach, this action was a concord — a final settlement of all matters which might have been in dispute prior thereto. It was a complete accord and satisfaction. It is binding upon both parties, and bars ail suits for alleged breaches of the contract.
   Davis, J.,

delivered the opinion of the court:

The contract in issue in this case provided for the delivery to the Government, at plaintiff’s quarry, of riprap, intended for use in the improvement of the Lower Mississippi. An abstract of the contract may thus be stated:

Plaintiff was to furnish the riprap as called for, and was to furnish all the stone prior to July 1. He was to take care of the Government barges which called at his quarry for the stone and was to load them. Having complied with these conditions, he became entitled to his pay of 55 cents per cubic yard.

The principal duty imposed by the contract upon defendants, aside from that of payment, was to furnish the barges. This they did not do; and upon July 1 plaintiff, through no fault of his, but entirely from the failure on defendants’ part to produce barges at his quarries, had delivered only about one-half' the stone.

At the end of the contract period (July 1, 1883) plaintiff refused to deliver more stone, claiming that his contract had ended; but the engineer officer in charge, in the exercise of that careful protection of the Government’s interests which traditionally has characterized his corps, asked him to proceed under a certain personal assurance of protection.

The Engineer Bureau inWashington differed from the plaint-. iff, and held the contract to be a continuing one. They refused any compensation to plaintiff for delay, and refused any arrangement for the future other than that before in force. Plaintiff protested against this decision, but did furnish, still v under protest, the remainder of the stone, and was paid therefor the contract rate. The last delivery of riprap was in December, 1883, one year after the contract was signed.

Was the delivery of stone to continue over an indefinite period, as in substance contended by the Engineer Bureau, or was plaintiff to deliver 70,000 cubic yards of stone in such quantities as might from time to time be called for, but all to be called for before July 1, as contended by him ? It may be noted here that no point is made as to the regularity or irregularity of call under the clause fixing the monthly allotments.

The specifications annexed to the contract state—

“ That barges will be supplied and towed to and from the points where the stone is loaded by the United States; the quantity to be supplied will be about 12,000 cubic yards per month, beginning about January 2, 1883, navigation permitting. The total quantity required will be about 70,000 cubic yards, with the privilege of taking up to 100,000 cubic yards at the same rates. All to be taken up by June 30, 1883.”

Although annexed to the contract as “ specifications ” or “instructions,” this document appears, from its context, to have been prepared before the contract for the information of bidders. The contract states that it was made in conformity with these “ specifications.” Its first clause, after the recital, provides that plaintiff shall deliver—

“Upon barges supplied by defendant, riprap rock, as follows : 5,000 cubic yards in January, 1S83; and 13,000 cubic yards in each of the months of February, March, April, May, and June, 1883, providing navigation will permit the barges to reach the quarry; othenvise, lesser quantities will be furnished monthly. Total quantity to be delivered between January 1 and June 30,1883, is 70,000 cubic yards.”

Further on we find defendants agreeing to supply—

“ Good, serviceable barges as fast as they can be unloaded, but does not guaranty to keep the [plaintiff] supplied with barges at all times, nor does he [Captain Sears] guaranty to take 7,000 cubic yai’ds a month; but he does agree to use his best efforts to supply barges to take stone as fast as possible, and to take the whole 70,000 cubic yards by June 30, 1883, navigation permitting, and, if not, as soon thereafter as possible.”

Again:

“ The said [plaintiff] shall commence the delivery of the rip-rap rock, as specified, on or before the 10th day of January, 1883, and shall complete the said delivery on or before the 30th day of June, 1883, providing the party of the first part can supply barges sufficient to remove it.”

Such are the clauses of this instrument which immediately affect the issue before us. A careful reading of the whole contract shows it to have been prepared in the interest of the Government; the plaintiff receives his pay and is to be furnished barges; otherwise the principal burden very properly is upon him. The barges were furnished in such absolutely insufficient number, that by July 1 less than one-half of the stone had been removed.

We do not agree with the construction put upon this contract by the Engineer Bureau. They laid stress upon certain phrases of the instrument which, disconnected from the context, might support the result they reach. Taking the instrument as a whole,- however, it will be seen that the defendants specifically bound themselves to take all the stone by July 1. There was allowed to them certain elasticity as to the various takings, but everywhere we find the one fact fixed, that prior to July 1 all the stone was to be taken. Defendants distinctly pledged themselves to.two things: to take all the stone within the contract period and to pay for it at the contract rate. “ Navigation permitting ” is the only limiting clause upon this part of the agreement; this means “navigation” permitting at the point of loading, and “ navigation ” there did not impede the fulfillment of the contract.

Plaintiff did not agree to hold himself ready for an unlimited period to furnish stone in any amount the Government might ask with the one limit of 70,000 cubic yards. It is not reasonable te suppose that his entire plant, his'men, and boats were to indefinitely await the pleasure and convenience of defendant’s officers. Nearly six months elapsed after the contract period before that amount was called for; a delay not explainable upon any theory of “ days of grace ^ or elasticity in time.

The engineer office relied largely upon the single clause in the contract that barges should be supplied as fast as they could be unloaded, and holding that the barges could not be unloaded faster than they were, then reached the result that plaintiff must be ready to deliver at once, until the United States ceased to care to take it, provided that, at some period,the 70,000 yards were taken. Such an interpretation proceeds upon the assumption that some definite number of barges was to be used in carrying away this stone; no number of barges is named in the contract, and, to push this argument to its logical result, defendants might have used two barges, the lowest number which fulfils the contract demand of the plural, and have held the plaintiff at their command until these barges could have loaded and unloaded all the stone. The reasonable and fair interpretation of the contract is, that defendants were to furnish sufficient barges to take away all’ the stone by about July 1, and that the single phrase “ as fast as they can be unloaded ” refers simply to the regularity of call for the stone. It will be noted, in support of this position, that the same paragraph in which this phrase occurs closes with the provision that all the stone shall be taken by June 30, 1883.

We think plaintiff correct in his contention that it was his right upon July 1 to consider the contract at an end.

After signifying this decision and after receiving the Engineer Bureau’s adverse decision he continued to deliver stone and to receive payment for it at the contract rates, giving receipts for these payments. There has been some argument as to the effect of these receipts : but we do' not attach much importance to their form. They were “ in full payment of the above account,” but in no sense in full ” of all other and different demands upon the Government. Continuing to furnish stone at 55 cents per yard, plaintiff was paid at thatrate, and receipted at that rate as 11 in full ” for the stone from time to time furnished in the amounts stated in the receipts. He receipted in full for the iC above account,” but the u above account ” was merely an account of the last deliveries of stone>

It is urged that he should have made a tender of the stone. To this a sufficient answer is found in the fact that he was always able and ready to fulfill his contract, and defendants knew it. It would be most unreasonable to suppose that he should have quarried and ready on the river-bank the total amount of stone remaining undelivered.

That Captain Seal's did all in his power to furnish barges is not an excuse for defendants. High water in the Lower Mississippi was an element to be contended against, but the careful provision against loss to them by low water in the Ohio shows the Government not to have been unmindful of possible changes in the water stage when they spoke of navigation permitting.” Captain Sears’s efforts may have been counteracted by lack of co-operation elsewhere or by failure of Congress to furnish funds. All this is speculative; but if true affords no excuse, for the United States is bound to fulfill its agreements as is any other-contractor.

In Gibbonh Case (8 Wall. p. 269) plaintiff had a contract for oats, part of which he delivered and the remainder of which he properly tendered, meeting with a refusal to accept. After the contract time for delivering had passed he was called upon to furnish the quantity of oats necessary, with what had been received, to complete the amount stated in the contract, and he furnished that quantity. The Supreme Court held that he was entitled to recover for any loss he suffered by the refusal to receive the balance due within the contract time, and they further held:

“ It was very clear that but one contract was ever made in this case, and that plaintiff was absolved from this by the refusal of the quartermaster to receive the oats when tendered. But, from whatever motive he may afterward have consented to renew that agreement and proceed to its fulfillment, its-terms were the same. If suca pressure was brought to bear on him as would make the renewal of the contract void, as being obtained by duress, then there was no contract, and the proceeding was a tort, for which the oiileer may have been personally liable. If plaintiff’s consent was voluntary, then the contract to which he assented was binding, and must control the case. The quartermaster treated the contract as still in force, and his demand on plaintiff was made under that idea. In this he was wrong. But plaintiff had his option to concur in this view and deliver the balance of the oats or to refuse to deliver any more.”

In the case at bar there is no suspicion of duress, and it completely falls within the principle thus announced. It would be difficult to 11 ud two cases more alike. Plaintiff, then, is entitled to recover the loss he suffered by the Government’s failure to fulfill its share of the contract, and nothing more.

Plaintiff had made large expenditures upon his quarry and its surroundings. Some of these expenditures were unnecessary under the circumstances, and could have been saved had it not been for his endeavor to be in readiness to deliver the full amount of stone within the contract period. Other expenditures contributed to the value of his property, and were-not lost to him; if he had continued to own the property,they would have aided in the fulfillment of all future contracts; they did aid in furnishing the rock called for after July 1. The fact that he sold the quarry does not complicate this branch of the-question; for if he held,it he had the advantage of the plant in increased facilities for work; if he sold it, he presumably had the advantage of the plant in the increased value of his quarry..

The rule seems to be that plaintiff is entitled in a case of' this kind to the actual extra outlay imposed upon him by defendant’s default, and which was made m an endeavor to fulfill Ms contract obligation. This we find to be $3,200.

In addition he is entitled to the direct profit which he lost. Had he furnished the stone prior to July 1, his profit per cubic yard would have been 121 cents; furnishing it after July 1, his profit was 10 cents per cubic yard. This difference of 2¿ cents per cubic yard upon the amount of stone uncalled for at the expiration of the contract period we think he should receive. (P., W. & B. R. R. v. Howard, 13 How. 307; Masterton v. Mayor of Brooklyn, 7 Hill, 61; Fox v. Harding, 7 Cush., 516.) It amounts to $897.

Judgment will be entered for $1,097.  