
    SETH N. KIMBALL v. THE UNITED STATES.
    [No. 14687.
    Decided December 31, 1888.]
    
      On the Proofs.
    
    The claimant contracts to remove obstructions from the Pearl River, the ■work to be done to the satisfaction of the defendants, the decision of the engineer in charge to be final, and where the work does not conform to the specifications, the same to be “made to conform before settlement,” and the plant to be left on the work until after final completion and acceptance.
    I.Where a contract contemplates that the contractor shall be informed of defects in his work and given an opportunity to perfect it, a general refusal of the engineer in charge to accept does not conclude the contractor, though the decision, according to the terms of the agreement, is final.
    II.Under such a contract the contractor is entitled to a notice defining the particular omission which the engineer decides he shall supply.
    III. Leaving the plant on the work and awaiting instructions as to defects to be remedied is equivalent to a tender of readiness to perform on the part of the contractor.
    IV. A contractor may be bound to be ready to perform and await instructions from the other party; but only for a reasonable time.
    
      The Reporters' statement of the ease:
    The following are the facts of this case as found by the court:
    I. Under act of June 18, 1878, Congress authorized the survey of Pearl River, in Mississippi, under the direction of the War Department, with a view to improve its navigation. In 1878-’79, in pursuance of this act, a survey, beginning at Carthage, about 105 miles above tbe city of Jackson, and extending to tbe mouth of the river, a distance of about 500 miles, was made and reported to Congress, together with a plan of improvement and estimate of cost. A chart was prepared and filed in the Department, upon which were noted the obstructions to navigation at that time discovered, the removal, of which was in contemplation. By the act of March 3,1879, Congress appropriated $6,000 for the commencement of the work, under which the improvement of the river above Jackson was undertaken, and by a subsequent appropriation of $7,500, was in progress down to 1882. By the act of June 14, 1880, Congress appropriated $30,000 for the work, under which appropriation the improvement of the river below Jackson was undertaken, as set out in the following findings:
    II. Thereafter the War Department published the following advertisement:
    “ U. S. Engineer Oeeice,
    
      “New Orleans, La., July 26,1880.
    “Sealed proposals, in duplicate, will be received at this office until 12 o’clock, noon, August 30, 1880, for the following-named work:
    “For improving Pearl River, below Jackson, Mississippi. Specifications and the report of the assistant engineer who made the survey of the river will be furnished to those proposing to bid on application.
    “It is requested that all those desiring to bid call at this office and examine chart of survey, on which specifications are based.
    “Bids must be made on printed forms, to be furnished at this office.
    “Amount appropriated, $30,000.
    “C. W. Howell,
    
      “ Major of Engineers, TI. ti. A.
    
    “ General information for bidders.
    
    “The work set forth in specifications is designed to afford a navigable channel of five (5) feet depth at low water from Jackson down to the lowest point on the Pearl River possible with the appropriation available.
    “The work can not be judiciously undertaken except during the low-water season, although overhanging trees may be removed at a higher stage.
    “ Charts of survey on which specifications áre based will be shown at this office to those who propose to bid, and it is thought that no intelligent bid can be made without examination of them by bidders.
    “All bids must be made in duplicate upon printed forms to be- obtained at this office, together with forms for bidder’s, bond.
    “ The bond attached to the bid must be for fifteen per cent, of the appropriation available, viz, $4,312.50, and be signed by two responsible sureties, to be certified to as good and sufficient guarantors by a United States district attorney, collector of customs, or any other officer under the United States Government, or other responsible person known to this office.
    “When firms bid individual names of the members should be written out and should be signed in full, giving the Ohris-tain names, but the signers may, if they choose, describe themselves in addition as doing business under a given name and style of firm.
    “All signatures must have affixed to them formal seals of wax or other adhesive substance.
    “The place of residence of every bidder, with county and State, must be given after his signatures, which must be written in full.
    “All prices must be written as well as expressed in figures.
    “No payment will be made until the work contracted for is completed to the satisfaction of the United States.
    “ The contract which the bidders and guarantors promise to enter into shall be, in its general provisions, in the form adopted and in use by the Engineer Department of the Army, blank forms of which can be inspected at this office, and will be furnished, if desired, to parties proposing to put in bids. Parties making bids are to be understood as accepting the terms and conditions contained in said form of contract.
    “Reasonable grounds for supposing that any bidder is'interested in more than one bid for the same item will cause the rejection of all bids in which he is interested.
    “The United States reserves the right to reject any and all bids; also to disregard the bid of any failing bidder or con-' tractor known as such to the Engineer Department.
    “ The bidder must satisfy the United States of his ability to perform the work for which he bids.
    “ Transfers of contracts, or of interests in contracts, are prohibited by law.
    “In submitting proposals, the sealed envelopes must be so indorsed as to indicate before being opened the particular work for which the bid is made.
    “ No bid will be considered which is not made on the accompanying forms.
    “Each bidder must fill in all the blanks in the form of proposals.
    
      “Bonds in the sum of fifteen thousand dollars ($15,000) will be required when the articles of agreement are executed.
    “This advertisement and accompanying specifications will form part of the contract.
    “All bidders are invited to be present at the opening of the bids.
    “Specifications.
    “The following is the specification of the work offered at contract, as advertised under date of July 26, 1880, by the undersigned, for improvement of navigation of Pearl River from'Jackson, Mississippi, to the Rigolets, Louisiana, viz:
    “Removal of all trees overhanging the river bank; also removal, to a depth of at least five feet below low-water mark, of all trees, logs, and snags found in the river and placing them in cut-offs or run-out bayous, or where no such cut-offs or run-out bayous are available, putting them on the banks and burning them, or otherwise disposing of them so that they shall not again become obstructions to navigation.
    “No tree shall, under any circumstances, be cut into*the river and allowed to remain there, and.all trees, logs,-and snags placed in cut-offs or run-out bayous for their closure shall be so placed as not to project into the river, or to be an obstruction to its navigation.
    “An opening shall be made through the center of each fish-trap, giving a navigable width of at least 100 feet through it, with a low-water depth of five feet, or, in case the middle line of the deep-water channel intersects the fish-trap at some point other than its center, the opening shall be made to extend 50 feet on each side of this point.
    “ Bids must be made to cover a continuous portion of river from Jackson to some specified point, beginning at the R. R. bridge at Jackson.
    “ Award will be based on the number of miles the bidder proposes to improve for $28,750, responsibility of bidder being always considered.
    “ When the contractor reports his work finished, an inspection will be made to satisfy the United States before settlement.
    “ If, in any event, the contractor shall delay or be unable to commence or proceed with the prosecution of the work in accordance with the specifications and requirements of his agreement, the United States Government shall have full power to take away this contract, and employ others, to complete it, deducting the additional expense from any money, if any, that may be due said contractor.
    “ The successful bidder for the work must accept his contract subject to tbe existing laws of the United States and the regulations of the War Department in relation to contracts.
    “The contractor must in all cases not herein provided for, either as to the locality, manner, or rate of executing the work, or any part of it, obey the directions of the engineer or United States agent in charge.
    “The contractor is not allowed to sublet the work, or any portion of it, to any person or persons, whatsoever, but must personally superintend the work during its progress, or have it personally superintended by a skillful and responsible representative.
    “ Note. — Where reference is made to' a low-water depth of channel of five (5) feet it is to be understood that where there is naturally a less depth at low water, as there is no dredging provided for, obstructions are only to be removed to the natural bottom.
    “Also, that in case of making a channel through ‘fish-traps ’ the material removed, if stone or other riprap, is to be deposited along the unremoved portion, to build these ends up as much and as evenly as possible to better answer the purpose of spur-dikes (or jetties) to concentrate the low-water discharge through the channel, and so tend to deepen the latter.
    “ The contractor will be required to keep a daily record of his work, and at the close of each month forward a copy for the month to this office, in order that the engineer in charge may be kept well informed of the progress made daring the month.”
    III. The claimant bid upon the work and on the 7th October, 1880, entered into the following contract:
    “ This agreement witnesseth that, in conformity with the advertisement and specifications hereunto attached, and which form a part of this contract, the said Major Charles W. Howell, for and in behalf of the United States of America, and the said Seth N. Kimball for himself, his heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows :
    “ That the said pi arty of the second part, in accordance with the advertisement and specifications above referred to, and in accordance with his proposal herewith attached (subject to proviso herein), shall faithfully perform the work of improving the navigation of Pearl Kiver, Mississippi, from the railroad bridge at Jackson, Mississippi, for a continuous distance down said Pearl Kiver of one hundred and ninety-five (195) miles, or, in other words, to a point on said stream about three-quarters of a mile below “ Harrison’s Ferry,” as exhibited on a chart on file in the U. S. Engineer Office at New Orleans, La.
    
      “That the said party of the first part, for and in consideration of the faithful performance of this specified work by the said party of the second part, and after its due acceptance, as i>rovided for, agrees to pay to the latter the sum of twenty-eight thousand seven hundred and thirty-six ($28,736) dollars.
    “That it is mutually agreed and declared by the contracting parties that the subdivisions of the work, the calculations and per mileages specified in the body of the bidder’s proposal above referred to, are null and void, and this.agreement is based solely. on the ‘ lump,’ bid and printed specifications.
    • “All 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 such as does not conform to the specifications set forth in this contract shall be made to conform before settlement of contract. The decision of the engineer officer in charge as to conformity shall be final.
    “The said Seth N. Kimball shall commence the above-named work as soon as officially notified of approval of this agreement by the proper authorities, and shall complete the same on or before the first (1st) day of January, eighteen hundred and eighty-two (1882).
    “ If, in any event, the party of the second part shall delay or fail to commence with the performance of the work at the time specified herein, or shall, in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifications and requirements of this contract, then, in either case, the party of the first part, or his successor legally appointed, shall have power, with the sanction of the Chief of Engineers, to annul this contract by giving notice in writing to that effect to the party (or parties, or either of them) of the second part; and, upon the giving of such notice, all money or reserved percentage due or to become due to the party or parties of the second part by reason of this contract, shall be and become forfeited to the United States ; and the party of the first part shall be thereupon authorized, if an immediate performance of the work or delivery of. the materials be in his opinion required by the public exigency, to proceed to provide for the same by open purchase or contract, as prescribed in section 3709 of the Revised Statutes of the United States : Provided, however, That if the party (or parties) of the second part shall by freshets, ice, or other force or violence of the elements, and by no fault of his or their own, be prevented either from commencing or completing the work,' or delivering the materials at the time agreed upon in this contract, such additional time may, in writing, be allowed him or them for such commencement or completion as, in the judgment of the party of the first part, or his successor, shall be just and reasonable ; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect, and.be enforceable precisely as if the new date for such commencement or completion had been the date originally herein agreed upon.
    “ If, at any time during the prosecution of the work, it be-found advantageous or necessary to make any change or modification m the project, and this change or modification should involve such change in the specifications as to character and quantity, whether of labor or material, as would either increase. or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices of both 'material and labor thus substituted for those named in the original contract, and before taking effect must be approved by the Secretary of War : Provided, That no .payments shall be made unless such supplemental or modified agreement was signed and approved before the obligation arising from such modification was incurred.
    
      “ No claim whatever shall at any time be made upon the United States by the party or parties of the second part for or on account of any extra work or material performed or furnished, or alleged to have been performed or furnished, under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or materials shall have been expressly required in writing by the party of the first part or his successor, the prices and quantities-thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers.
    “ The party of the second part shall be responsible for and' pay all liabilities incurred in the prosecution of the work for labor and material.
    “ Payments shall be made to the said Seth N. Kimball when the work contracted for shall have been delivered and accepted.. The erasures covered by this slip were made by mutual consent of contracting parties at New Orleans, La., this 8th day of November, 1880.
    “O. W. Howell,
    
      “ Maj. of Ung’rs, IT. S. A.
    
    “ Seth N. Kimball.”
    
      The time for completing the work was afterward extended until January 1, 1883.
    IV. Having been furnished with a copy of the chart the claimant entered upon his work at the time fixed, and prosecuted it continuously, except when interrupted by high water and a cyclone, until September, 1882. At that time he notified the engineer in charge that he had completed his contract, and requested an inspection preliminary to payment. He was informed by that officer that Engineer Collins had already been over the work in' an informal way and found many obstructions still in the river. Therefore a more perfect inspection at that time would be useless, as he would not accept the work in that condition. The claimant contended that the obstructions noted by Mr. Collins were new, some of them having been swept down the river from above Jackson and some caused by a change of channel washing away’ the banks so as to undermine trees that before were some distance from the old channel. Nevertheless he obtained a copy of Mr. Collins’s notes, and again going over his entire work removed all the obstructions so noted. December 11, 1882, he again asked for a final inspection. Prior to that date he had removed all the obstructions noted on the chart of the original survey, all, in addition, that he found in the river during this prosecution of his work, and all that Engineer Collins discovered in August, 1882. December 25,1882, Mr. Buchanan, an assistant engineer, was sent to inspect the work, but he found the water too high. Thereupon the following contract was made January 23,1883:
    
      “ This agreement witnesses that—
    “ Whereas, in the articles of agreement entered into October 7th, 1880, between Charles W. Howell, major of engineers, and Seth N. Kimball, for improving Pearl Biver below Jackson, Mississippi, it is provided “ that payment shall be made to the said Seth N. Kimball when the work contracted for shall have been delivered and acceptedand whereas it is stated in the specifications attached to and forming part of said articles of agreement, that ‘ when the contractor reports his work finished, an inspection will be made to satisfy the United States before settlement •/ and whereas the contractor reports his work completed, and requests an inspection, which inspection can not be properly made, in consequence of the existing high stage of the water in the Pearl Biver, which high stage will probably continue until tbe summer months, and thus the contractor will be deprived of his payment for the work done by him, it is believed, to his detriment and injury:
    “Now, therefore, it is agreed upon the part of the United States that there shall be at once paid to the contractor, Mr. S. Ñ. Kimball, on account of the work performed by him under and in pursuance of his original contract, the sum of twenty-five thousand dollars (125,000), the balance of his contract price to be retained by the United States, to be paid over to the said Kimball only after due inspection and acceptance of the entire work, as provided for in said original contract; he, the said Kimball, covenating and agreeing on his part to make no claim or demand for said balance until after such inspections and acceptance, to duly perform any and all such other or further work as may, under the terms and conditions of said original contract, be required of him by the inspecting officer, and to leave all his plant on the work until after final and accepted completion of said work by the United States.
    “ This supplemental contract is made in conformity with the provisions of the original contract, which in all other respects than those mentioned herein will remain in full force and effect.
    “The supplemental contract to be subject to the approval of the Secretary of War.
    “ This contract shall be subject to approval of the Chief of Engineers, U. S. Army.
    “ In witness whereof the undersigned have hereunto placed their hands and seals the date first hereinbefore written.
    “AMOS Sticknet, [seal.] Mcy. of Engr’s, u. S. A.
    “ Seth N. Kimball, [seal.]”
    Twenty-five thousand dollars was then paid.
    Y. High water and occasional severe floods continued in the river during the winter and spring of 1883, and it was not until August of that year that Mr. Buchanau inspected the work and made a report to his chief. The claimant was not furnished with a copy of this report and it can not now be found in the War Department. Its purport may be gathered from the following correspondence between the claimant and the engineer in charge, and the latter’s report to the War Department :
    “Mobile, Alabama, January 12th, 1884.
    “ Major Amos Stiokney,
    “ Of U. 8. Engineers, New Orleans, La.:
    
    “ Sir : On last January (one year ago) a supplemental contract for improving Pearl Kiver, Miss., was executed between us, and I have so far complied witli tbe conditions of that contract as per my understanding. Hearing nothing from yon up to July 24th last, I had the honor to address you a letter on this matter from Key West, Fla., where I was closely confined on other Government work. Early in August I rec’d your letter of 31st July, stating you would send Mr. Buchanan to Jackson, Miss., and proceed with the inspection. Hearing nothing from you, on. Sept. 5th - I again addressed a communication to you, making inquiries as to result of Mr. Buchanan’s inspection, also expressing my surprise and regret that Mr. Collins, who had this work in charge from its inception, and who was still in your employ, had not been sent instead of Mr. Buchanan, who had no knowledge whatever of this work, or had ever seen this portion of the river in his life. In reply to this letter I rec’d yours of Sept. 11th, and after its due consideration, I remailed it to Mr. Gardner, the supt. of this work, at New Orleans, La., from Key West, Fla., and I rec’d from him the inclosed letter, dated Sept. 24th, in reply, and I earnestly request you to read it over carefully, as it notes a history of this work which would be tedious for me to repeat, and I ask you to receive it as a part of this letter. Since receipt of yours of Sept. 11th I have heard nothing whatever from you concerning this work, and my close confinement to other Government work in Florida, namely, Key West Harbor, Caloosahatchee River, and Suwanee River. These three contracts I have completed to the satisfaction of the Government since July last, which contracts have required my personal attention and prevented me from coming to New Orleans until the 4th of January, when leaded at your office and found that you were absent, but would probably return in a day or so. I left a note for you earnestly requesting that you would wire me at Mobile when you would see me on this business. 1 remained in New Orleans until the 6th of January. You not having then returned, I returned to Mobile, and I have not rec’d any communication from you up to this hour, six o’c. p. m., Saturday, 12th January. I am now compelled to leave to-night for Florida, where 1 go to arrange for the completion of the Manatee River contract between Major Damrell, of Engineer Corps, and John MaGuire, contractor, MaGuire having financially collapsed and abandoned the work. This business will necessitate my absence for a month or more. Hence the reason of writing this letter.
    “In my letter of Sept, oth I ask’d you for permission to allow me to dispose of my outfit, and you did not reply, and it is still tied up at some place on Pearl River, as heretofore. This property has now been idle for more than a year, and at an expense of fully one thousand dollars, to say nothing of its depreciation and loss of its use. Your letter of Sept. llth,’83, quotes from Mr. Buchanan’s report thus : ‘ And I do not believe that the river bas been cleaned out according to contract.’ Further on you state in substance that on Mr. Buchanan’s report you can not accept the work. Supplemental contract provides that The said Kimball covenanting and agreeing on his part to make no claim or demand for said balance until after such inspection and acceptance, to duly perform any and all such other or further work as may under the terms and conditions of said original contract be required of him by the inspecting officer.’ Now I have not heretofore ask’d for the balance due me on this contract, neither have you nor the inspecting officer required of me to do further work. The stage of Pearl Elver is now as high as when you refused to inspect the work one year.ago, and will probably continue so for six months, and not having been required to do more work, or any instruction to that effect, and no demand having been made for payment, I consider my contract at an end, and most respectfully now ask that the balance, ($3,736) three thousand seven hundred and thirty-six dollars, clue on this contract, be paid to me. I ask for this payment on the ground and from the honest conviction that I have not only faithfully carried out my contract, but that I have done far more than in justice and equity it was my duty to do. Mr. Gardner tells me that your inspector, Mr. Buchanan, told him more than once, while making this inspection, that the work of'clearing the river as then found would cost at least, according to his interpretation of the specifications, five hundred dollars ($500) per mile. It is clear to me that the work I have performed in clearing this river is a hundred-fold more than M.r. Collins had any conception of when he made his estimates, surveys, charts, etc., etc. 1 have actually spent on this work over thirty thousand ($30,000) dollars to this date, and I do not believe it was Major Howell’s intention, nor his assistant, Mr. Collins’s, understanding that such interpretations of specifications as Mr. Buchanan has apparently acted upon would be applied in the inspection of the work. For you well know other work has been inspected on this same river and accepted by Mr. Collins when the river was at a” higher stage than when you refused to inspect mine.
    “Now, major, when you carefully consider all the circumstances from the beginning to the end, and that I have (to avoid controversy) kept steadily at work for nearly two and a half years, spending my money and doing my best to satisfy you with this job, do you not feel that I am deserving of the full payment of my contract price'? I honestly believe I am justly entitled to additional compensation for the extra work that I have performed that has come into the river since the life of our contract, But if you will pay me the"balance of my contract price, namely, $3,736,1 will waive all claim for any further payment.
    “ If you can not do this yourself, I ask that you recommend to your chief that this settlement may be made and the contract canceled.
    “Very truly, your ob’t serv’t,
    “ S. N. Kimball.
    “ P. S. — Address me at Mobile, Ala., as all mail matter will be forwarded to me promptly when I am absent.”
    “ New Orleans, Sept. 2áth, 1883.
    “Mr. S. N. Kimball,
    “ Key West, Fla. :
    
    “ My Dear Sir : Yours of the 19th instant from Key West, giving an extract of Mr. Buchanan’s report on the inspection of Pearl River, at hand.
    “ There are two questions in this matter, and thé delay in testing them have already cost you dearly. First, does your •contract compel you to have the river clear of all obstructions, as specified, up to the hour of inspection; and, second, can the Government make this inspection at their option %
    
    “ In other words, did you agree when making this contract, to clear the river of such obstructions as then existed in the river, or did you agree to clear all existing and all such other and new obstructions that might come into the river for all time to come (for there is no limit to your contract if the Gov’t have the option of inspecting the work when they choose, and exercise this power as heretofore) 1
    
    “ You are well aware that it has always been my positive conviction that you were in no way bound to remove new trees and obstructions that came into the river after you had once thoroughly cleared it. It is plain common sense that you should not.
    “ Now let us look at the history of this job.
    “ Mr. Collins made the first survey of the river in the spring of 1879, and at a stage of water from 10 to 12 feet above low water. Proposals for clearing out the river were advertised in Aug., 1880. At no time from the day of advertising this work to date of letting was there less than 8 to 9 feet rise in this river. I carefully examined the work and found that the obstructions were fully noted by Mr. Collins and agreed well with his report of work to be done.
    “We commenced the work of building the snag boat immediately after the contract was awarded to you, but owing to high water actual work of clearing was not begun until April, 1881. We pushed the work steadily until Dec. of same year, completing 101 mijes of the work, from Jackson down, when we were compelled to suspend work on account of high water.
    “It was well understood when your contract was drawn that you should ask for inspection and payment for your work when one-half of it was done. Major Howell promised you this in my presence (it was even so written in your contract, but erased by the Dep’t at Washington as oat of place in contract), and also promised to recommend such partial payment and inspection.
    “ When the work was more than half done you made this request for inspection and payment. Prior to the demand Major Howell (with whom you had contracted) died, and the new officer in charge, Major Stickney, refused to recommend your prayer.
    “ We renewed the work of clearing in May, 1882, and completed the work in August, 1882. You then asked for inspection, and again were refused. Why "1 For the reason that the high water of the past season had again brought its yearly harvest of new trees and snags into the river (many of these new obstructions coming in from Strong River and other tributaries of Pearl River, and many the natural product of Pearl River from its ever-caving banks), and Mr. Collins, having occasion to pass over our work on a 12 to 14 foot rise, noted these obstructions, and informed Major Stickney that it would be useless to inspect our work until these obstructions were removed. In his report of this trip Mr. Collins claims that here and there a few of the many obstructions noted were old ones, same that he noted in his original survey. I take issue with him in this, and declare that he never saw one of his original survey snags on this trip, and the men employed by me in both seasons clearing of the river will sustain me in my declaration. Immediately after this last refusal of inspection I proceeded to Jackson, built new snag-boats,, and went over the entire work at a very low stage of water, clearing the river of all these new obstructions, and when completed you again asked for inspection, and this time a man is sent to make the long-asked and prayed-for inspection; he arrived at Jackson, and another disappointment and refusal is realized •, he finds the river too high — not higher than when original survey was made, not higher than when Mr. Collins made his notes in 1882 and inspected work of another contractor on this same river, but too high for Mr. Buchanan to inspect our work. You made a strong appeal against this last injustice, and your prayer for payment for your work was granted to the extent of a payment of $25,000, leaving a balance still due you of $3,736. Now, after more than 8 months’ waiting, and after another season of very high water in the river, an inspection of the work is made, and at the lowest stage of water ever known in Pearl River by the oldest settlers on its banks (one might truthfully say almost a dry river bed), and yon are told by a man who never saw this portion of the river before, and who knows nothing of the obstructions existing at the time you took hold of the work, or of the many-changes of the channels and cut-offs made since, that doubtless a great many snags and trees have come in since the contractor claimed that he had finished his work, but I do not believe that the river has been cleared out according to contract,’etc. And on the strength of , this report I fear Major Stickney will refuse to pay you the balance due.
    “ It would now seem that my course of clearing the river only at low-water stages has met a poor reward. You did not complain, but were worried by the delays, and I’m sure Maj. Stickney thought me dilatory and lacking in energy, because I would tie up the boats and' stop work during high water. . I note the wording of your contract where it says ‘ the removal of all snags that may be found,’ etc. It would have been better to have worked right on in the high-water seasons of 1881 and 1882, same as other contractors did. The removal of all snags that may (might) have been found at high-water stages would have been easily and quickly removed, and the work would have been ready for inspection early in the spring of 1882, and in all probability would have been inspected at once and found satisfactory. I do not for one moment believe that any officer or representative of the Gov’t’s interest in the work has acted in any spirit of unfairness, but there has grown out of this contract a combination of circumstances that have been burdensome, oppressive, and unjust, both to you as contractor, and to me as the sup’t of your work. I know well that the balance due on the work will not cover the loss you have sustained on this job, and I feel certain that when Major Stick-ney understands the case fully that he can not fail to arrange the settlement and payment in full, and to release you from further care and anxiety from this most burdensome contract.
    “Yery truly, yours,
    “J. H. Gardner.”
    “U. S. Engineer Oeeice,
    “ No. 3 S. Kampart St.,
    
      “New Orleans, La., January 2oth, 1884.
    
      “ Mr. S. N. Kimball, Mobile, Ala.:
    
    
      “ Sir : Your letter of the 12th inst., with letter of J. H. Gardner, was received. Owing to an accumulation of business during my absence your matter could not receive my attention till after your departure from Mobile. I have referred your letter on the subject of Pearl Elver to the Department. I waited from September 11th to hear from you on the subject, and am surprised that you should have allowed the low-water season to pass before making any move in the matter, if you had any intention of doing any more work. I notified you that I could not accept the work, and the contract states what work is required. It is very evident that you and your employes do not construe the contract as I and my assistants do. There is nothing left, therefore, but to have the Department pass upon it, and I shall await instructions from the Chief of Engineers.
    “ Yery respectfully,
    “Amos Stickney,
    
      “ Major of Engineers, TJ. 8. A.”
    
      “TJ. 8. ENGINEER OFFICE,
    “ No. 3 S. Rampart Street,
    “ New Orleans, La., June 9,1884.
    “ To the Chief of Engineers, TJ. S. Army,
    
      Washington, I). 0.
    
    
      “ General : I have the honor to return the letter of Hon. 0. M. Shelley with the enclosed papers. After a careful examination I do not see that Mr. Kimball has presented any new matter relating to the work on Pearl River. A careful reading of the report of Major Howell, including that of Mr. Collins, on the survey of Pearl River in Annual Report of Chief of Engineers for 1S79, Appendix K, shows what was to be expected in the work of clearing the river. At the top of page 888 the following paragraph is found : ‘ There are many logs and snags at low river visible, which do not show at high stage and do not appear on the chart, but which must .be removed.’ This was certainly a fair warning that there was more work to be done than the chart alone would show. On page 898 Collins’s estimate for work embraced in Kimball’s contract was as follows: .
    First 40 miles "below Jackson, at $200 per mile. $8,000
    The following 155 miles, at $150 per mile. 23,250-
    31,250
    For engineering and contingencies 20 per cent.. 6,250
    37 500
    “ Immediately after the estimate the following paragraph appears : ‘ This would be but for clearing out the river, and beyond this an appropriation would be needed annually to the amount of 20 per cent, of this amount for several years to keep the navigation good until the river had regained its normal length, as until that time it would certainly wash in many trees.’ On page 899, near the bottom, Major Howell writes : ‘The continued shifting of the river-bed where it leads through wooded low-lands suggests the impracticability of making accurate estimate of cost of removing obstructions. When each flood adds some new obstructions and removes some old ones, it is evident' that estimates made for the future must be based largely on personal judgment as to probabilities suggested by experience. The estimates made by Mr. Collins for improvement of Pearl River I have accepted as the best that can be made.’
    “ Now, Mr. Kimball states that he based his proposition on this report, after examining every mile of the river when it was at a stage of water lower than when survey-was made. Mr. Collins’s estimate was $37,500, with 20 per cent, to be added for each year. If this 20 per cent, were added for each year from the time of Collins’s report, August, 1879, to the stoppage of Kimball’s work, December, 1882, 3£ years, the work would be estimated to cost $37,500 + $26,250 = $63,750. It is quite evident the contractor did not contemplate this, but in his stricture upon the judgment of the engineer with regard to the cost of the work he should inform himself more thoroughly than he seems to have done as to what the judgment of the engineer was. Even taking the smaller sum of $37,500, which was Collins’s estimate of actual cost of work in 1879, why should Kim-ball, after a personal examination, offer to do it for $28,736, and then complain that the engineer had estimated too low. The contractor may with fairness claim that he did not contemplate the removal of the new obstructions that would come into the river during 3£ years, but, on the other hand, his original contract called for the completion of his work by January 1, 1882, and it was not completed, but the time extended.
    “ It is quite evident that the - contractor took the work at a price much too low. There is also no doubt that a great deal of additional work became necessary by the caving of banks, bringing in new obstructions. The question might arise as to whether the contractor was obliged to take out these new obstructions. An inspection of the river at low water, after the contractor reported the work completed, showed many obstructions, and it would be impossible to say whether these were . the identical obstructions that were originally in the river or new ones. The statement of Mr. Kimball that he had expended over $30,000 on the work simply shows that he took the work at too low price. That is the solution of the whole difficulty. The work is not completed in accordance with the contract, and therefore I don’t see why Mr. Kimball should receive any further payment. If a contractor is to be insured against loss, the contract system becomes a farce. I think it would be useless to call upon the contractor to go over the river again, for the cost of-it would much exceed the amount remaining unpaid of the full contract price, and I would recommend that he be allowed to remove his plant from the river and the contract be allowed to expire. I can not recommend any further payment. I would respectfully call attention to my letters of J anuary 8, 1883, and January 25, 1834, on this subject.
    “ Very respectfully, your ob’d’t servant,
    “ Amos Sticjkney,
    “ Major of Engineers, TJ. 8. A.”
    V. After the final inspection by Mr. Buchanan, in 1883, it does not appear that the claimant was notified of any obstructions that be was expected or required to remove, although on September 5,1883, he had written to the engineer in charge, making inquiry as to the result of the inspection. He was, however, notified by the engineer in charge, under date of September 11,1883, in reply to said letter of inquiry, as appears by his letter, dated January 25, 1884, that the inspector had reported, “I do not believe theriver has been cleaned out according to contract,” and he (the engineer) “could not accept the work.” No work was done after this final inspection. In May, 1885, the claimant removed his plant.
    TI. The difference between the parties in the construction of the contract referred to in Major Stickney’s letter of January 25,1884, originated in the meaning of the word “found,” as used in the second paragraph of the specifications. The engineer held that it referred to the condition of the river at the final inspection of the work, while the claimant contended that it referred to the condition of the river at the date of the contract, or at most to the condition in which it was found as he proceeded with .his work; that he was not bound to go back over that portion of the river he had once cleared and remove obstructions subsequently deposited. With this view of the contract he requested an inspection as his work progressed. He particularly requested an inspection in the fall of 1881, after he had cleared the river of obstructions, as he alleged, for 104 miles. His requests were not granted.
    VII. Pearl River is very crooked, with low banks, and runs much of the way through dense forests. It is subject to high floods, during which the banks cave in and new channels and bars are formed. At such times snags and trees, detached by the force of the water from the upper river and its tributaries, are carried down the stream and lodged in the channel below.
    
      Mr. A. G. Safford and Mr. Leiois Abraham for the claimant.
    
      Mr. W. I. Hill (with whom was Mr. Assistant Attorney-General Howard) for the defendant:
    The contractor complains that the time allowed to elapse from the time the work was reported completed to the date of the inspection was unfair to him, because when made it was impossible to ascertain the condition of the work at the time it was reported finished and ready for inspection. The answer to this complaint is that he agreed upon the time for inspection and formally promised that he would make no demand upon the Government for the balance of the money until inspection and acceptance. It is shown from the proof within what time this inspection was made, and surely the Government can not be held to a stricter rule than the one governing the ordinary principles of contracts.
    It is nowhere in the proof shown that the time for inspection was unreasonably delayed. It is shown, however, that this duty was performed about and within the time specified by the contract. It can not be denied that impediments to navigation were found when the work was inspected. When this had been done, the work was rejected, and the engineer in charge recommended that the contract be allowed to expire and the contractor be permitted to remove his plant. The contractor assented to this by the removal and sale of his property. It is respectfully submitted that the claimant has not shown a failure of the Government to comply with its contract, and that he has not made out such a case as will entitle him to recover.
   Sooeield, J.,

delivered the opinion of the court:

By authority of an act of Congress approved June 18,1878, a survey of Pearl River, in Mississippi, with a view to improve its navigation, was made under the direction of the War Department. The survey extended from Carthage, which is 105 miles above the city of Jackson, to the mouth of the river, a distance of about 500 miles. A chart was prepared, on which were noted the obstructions to navigation found in the river at that time.

In 1879 and again in 1880 small appropriations were made for the improvement above Jackson, and the work was commenced and prosecuted on that part of the river lor several years'.

June 14, 1880, Congress appropriated $30,000 to commence the improvement below Jackson.

The Department advertised for proposals. The claimant became the lowest bidder, and the work, beginning at Jackson and extending down the river 195 miles, was allotted to him.

October 7,1880, a formal contract was executed, in which, this claimant agreed—

“ In accordance with advertisement and specifications, and in accordance with his proposal, to faithfully perform the work of improving the navigation of Pearl River for a continuous distance of 195 miles to a point about three-quarters of a mile below Harrison’s Ferry, as exhibited on a chart on file in the United States engineer office at New Orleans.”

The contract provided that the work should be completed by January 1, 1882, but the time was afterwards extended to January 1, 1883. The work was not to be accepted until it had undergone a rigid inspection by % Government officer.

The claimant was furnished with a copy of the chart referred to in the contract and advertisement, and soon after began the improvement.

In the autumn of 1881 the claimant notified the engineer that he had cleared the river for 104 miles, and requested an inspection. The request was refused.

In September, 1882, he notified that officer that, his work was complete for the whole 195 miles, and requested an inspection. To this request the engineer replied that Mr. Collins,, the assistant engineer who had made the original survey, had already passed down the river and found many obstructions, and therefore a more formal inspection at that time would be useless, as he would not accept the work in that condition. The claimant contended that the obstructions observed by Mr. Collins had come into the stream after he had once cleared it out and that he was not required by his contract to remove new obstructions which were being deposited by every flood. Nevertheless, he obtained Mr. Collins’s notes, went over his work again, and removed all the instructions so noted.

December 12, 1882, he again notified the engineer that he had completed his contract and requested inspection and payment. December 25, 1882, Assistant Engineer Buchanan was sent to make the inspection, but he found the river too high.

Thereupon a.supplementary contract was made, whereby it was agreed that $25,000 should be then paid and the balance left until after an inspection could be made the next summer.

Although no official inspection was then made, the court has found that the claimant had, in fact, prior to December 12, 1882, removed all the obstructions to navigation in the river which were noted in the chart of the original survey; all that he had found in the river as he progressed with the work, whether noted on the chart or not, and all that were pointed out on the notes of Mr. Collins furnished him in September, 1882.

In August, 1883, Mr. Buchanan made an inspection of the work and reported to the engineer in charge September 11, 1883. The latter officer, in reply to the claimant’s inquiry as to the result of the inspection, informed him that Mr. Buchanan had reported that “ he did not believe that the river had been cleaned out according to contract,” and that “he (the engineer in charge) could not accept the work.” He did not inform him • of any specific obstructions found in the river by Mr. Buchanan, nor of any further work which he was expected to perform.

If the question of performance or non-performance were in issue here the court would be compelled to decide that on December 12,1882, when the claimant called for final inspection, his work was complete, and only awaited a formal inspection and acceptance to entitle him to his pay; and further, that he was not bound by the terms of his contract to clear the river of obstructions deposited by the floods of 1883.

The claimant, however, had agreed to submit that question to the decision of the defendants or their engineer in charge. The advertisement provides that—

“ No payment will be made until the work contracted for is completed to the satisfaction of the United States.”

The specifications further provide that—

“When the contractor reports his work finished an inspection will be made to satisfy the United States before settlement.”

The contract itself provides that—

“ The decision of the engineer officer in charge as to conformity [of the work to the contract] shall be final.”

The supplemental contract again provides that the claimant shall—

“ Make no claim or demand for said balance until after such inspection and acceptance.”

The engineer decided against the claimant, and that decision must stand unless impeached for fraud or mistake other than an error of judgment.

If that were all, the claimant would be without remedy in this court. But it is not all. After an unfavorable inspection and non-acceptance the claimant was to be informed of the alleged defects in his work and given an opportunity to perfect it.

The original contract provides that—

“ All work done under this contract shall, before being accepted, be subject to rigid inspection by an inspector appointed on the part of the Government, and such as does not conform to the specifications set forth in this contract shall be made to conform before settlement of the contract.”

The supplemental contract further provides that the claimant shall—

“ Make no claim or demand for said balance until after such inspection and acceptance and to duly perform any and all such other or further work as may, under the terms and conditions of said original contract, be required of him by the inspecting officer, and to leave all his plant on the work until after final and accepted completion of said work by the United States.”

The purpose in retaining the $3,736 and requiring the plant to be left on the work was, undoubtedly, to secure the performance of further work, if, on inspection, any deficiency should be found.

The claimant was never thereafter notified of any specific deficiency nor required to perform any specific work.

It is true that after the final inspection in August, 1883, the claimant was informed by the engineer in charge under date of September 11, 1883, that the inspector had reported that “he (the inspector) did not believe that the river had been cleaned out according to contract,” and that he (the engineer) “ could not accept the work.” This certainly was not such a notice as the claimant had a right to expect.

January 12, 1884, the claimant addressed a letter to the engineer in charge,complaining that he had heard nothing from him since his notice' of non acceptance September 11, 1883, and that “neither he nor the inspecting officer had required of him to do further work,” while “ his plant had been idle for more than a year, at an expense of fully $1,000, to say nothing of its depreciation and loss of its use;” and he added that—

“Not having been required to do more work, or any instructions to that effect * * * I consider my contract at an end.”

To this complaint the engineer replied, January 25, 1884, as follows:

“ I awaited from September 11th, to hear from you on the subject, and am surprised that you should have allowed the low-water season to pass before making any move in the matter, if you had any intention of doing any more work. I notified you that I could not accept the work, and the contract states what worlc is required. It is very evident that you and your employés do not construe the contract as I and my assistants do. There is nothing left, therefore, but to have the Department pass upon it, and I shall await instructions from the Chief of Engineers.”

These two notices (September 11 and January 25) were altogether too indefinite. The claimant might have passed over the whole 195 miles without discovering the particular omissions upon which the inspector had based his opinion. They were equivalent to saying to the claimant, “ There are some obstructions still in the river; hunt out and remove them at your peril.”

Notwithstanding the claimant, in his letter of January 12, 1884, informed the engineer that in consequence of the long delay in notifying him of further work required he “ considered his contract at an end,” still, after learning from that officer that his case was to be passed upon by the Department, he kept his plant tied up on the river for more than sixteen months longer, apparently awaiting orders for further work.

This was equivalent to a tender of readiness on his part to perform any further work that might be required to fulfill his contract to the satisfaction of the United States.” He was only bound to keep up this preparation for a reasonable time. Cooper’s Case (8 C. Cls. R., 199.)

After the long delay without any specific requirement for further work, the presumption would arise that the Government had become satisfied with the work, and then the claimant might rightfully remove his plant and demand his pay. The judgment of the court is that the claimant recover $3,736.  