
    TOOMEY BROS. v. THE UNITED STATES.
    [No. 28562.
    Decided January 5, 1914.]
    
      On the Proofs.
    
    On January 2, 1902, the plaintiff entered into a contract with the Government to furnish all the material and labor to construct a lighthouse within one year from the date when all the metal work provided for in the contract should be offered for delivery to the United States on the wharf at the lighthouse depot, Lazaretto Point, Baltimore. The work was completed and turned over to and accepted by the Government in February, 1905, more than one year and four months after the time provided for its completion and in the final settlement the accounting officers of the Treasury deducted the cost of inspection paid by the United States after the expiration of the contract period.
    I. Where under the contract the right of the contractor if he fails to complete within the time limit to an extension of the contract period, depends upon the judgment of the engineer officer in charge, it is not competent for the court to go back of the judgment of the engineer in an attempt to revise his action, unless bad faith, negligence, or mistake so gross as to infer bad faith is shown.
    II. A contractor can not be excused from carrying out the provisions of the contract by unforeseen difficulties, unless performance is rendered impossible by the act of God, the law, or the other party.
    III.Where the engineer acted within his rights in refusing to extend the time for the completion of the contract, the Government can not be held liable for loss or damage occasioned thereby.
    IY. Where the engineer in charge of the work directs the contractor to perform certain work and use certain material, and thereafter ' rescinds his former orders and directs that material of greater strength be substituted therefor, the Government is liable for the cost thereof.
    V. In the absence of fraud or gross mistake such as would imply bad faith, the judgment of the engineer in charge of executing the provisions of a contract is conclusive and binding on both parties to the contract.
    
      The Reporter’s statement of the case:
    The following are the facts of the case as found by the court:
    I. Petitioner is a corporation duly organized under the laws of the State of Connecticut, and is located at Guilford, in that State.
    II. On the 2d day of January, 1902, petitioner entered into a contract in writing with the United States, through Lieut. Col. W. A. Jones, United States Army, engineer of the fifth lighthouse district, acting for and in behalf of the United States, for the furnishing by the petitioner of all the materials and labor necessary to completely construct the Point No Point Lighthouse, Md., within the period of one year from the date when all of the metal wort provided for in the contract should be offered for delivery to the United States on the wharf of the United States lighthouse depot, Lazaretto Point, Baltimore, Md. The contract and specifications were made part of the petition.
    III. Under the provisions of the contract requiring inspection of all material and workmanship, F. C. Arthur was appointed by the Lighthouse Board as inspector and superintendent of construction, with board and transportation.
    Said Arthur had been a Government contractor and had been inspector and superintendent of work done by claimant company under a prior contract for the erection of Hooper Island Lighthouse. Claimant protested against the appointment of said Arthur as inspector on the ground that he had shown himself to be biased, capricious, harsh, oppressive, and unfair toward claimant in connection with the work on said Hooper Island Lighthouse. Said charges were investigated by the engineer in charge and were found not to be substantiated. It does not appear that said inspector was biased or unfair toward claimant in the inspection of the work under the contract upon which this claim arises.
    IV. Claimant company entered upon the performance of the contract by the construction of a caisson at Solomons Island, about 18 miles distant from the site of the proposed lighthouse.
    In preparing said caisson to be sunk at the site claimants covered the bottom with a coat of concrete to a uniform depth of about 12 inches and also placed three courses of iron in the same before said caisson was towed out to the site where it was to be sunk. When this work had been done there appeared to be a lean or fist in the caisson of from one to two feet, and the Government inspector suggested to claimants while the caisson was still at Solomons Island to fasten the tow line to the upper or higher side of the caisson, which would cause it to be towed more easily to the lighthouse site.
    On the morning of April 3rd, 1903, the weather being fresh at the time and somewhat threatening, claimant company caused the caisson to be taken in tow and started for the location of the 'lighthouse. Said caisson reached the site of the work about 3 or 4 o’clock in the afternoon of the same day, by which time the water had become so rough as to make the sinking of the caisson extremely hazardous.
    Claimants had built a pier alongside the site of the proposed lighthouse for use in connection with the sinking of the caisson, filling it with concrete, and doing the preliminary work necessary in connection with the construction of the fight-house. Said pier was constructed of piling of about 40 feet in length driven into the bay, there being about 140 piles in said structure, and the dimensions of same were about 75 by 110 feet. Twenty-one of these piles were old ones, which had been used by claimants in a former pier at Hoopers Island. The pier on the day on which the caisson arrived was in a weak condition. It had upon it a hoisting derrick, boilers, engines, cement, concrete, outfit and equipment for machinist and blacksmith, and other tools and supplies, together with three shanties, and the day previous to the arrival of the caisson there had been brought down and deposited upon the pier 125 tons of crushed stone, which caused it to fist to one side and to shake and tremble.
    Y. Shortly after the arrival of the caisson an attempt was made to sink the same in place at the site of the pier. In order to expedite the sinking, claimant company let water into the caisson, which ran to the lower side and caused the caisson to lean against the pier, whereupon the pier collapsed and sank into the water, together with everything on it. The weather and the conditions of the water at the time of the sinking of said caisson were rough. Attempt was made to attach a fine to the caisson so as to bring it to an erect position before settling it at the site, but this was found to be impossible, and the caisson was left over night by claimant company on its side and partly sunk in the bottom of the bay.
    The next day, April 4, the caisson turned entirely over, causing its contents to be thrown into the river, after which it drifted down Chesapeake Bay. Some members of claimant company followed it in a tug chartered for the purpose, and after two days and one night they succeeded in capturing the caisson and towed it back to Solomons Island in a damaged condition. The caisson was upturned and repaired and afterwards taken and sunk at or near the first site of Point No Point Lighthouse.
    The loss to claimants, due to the sinldng of the pier and the recovery and repairs to the caisson, loss of machinery, tools, and other material, amounts to about the sum of $11,108.82.-
    YI. In May and June, 1903, on account of the delay caused by the loss of the pier and the damage to the caisson as aforesaid, claimants asked for an extension of the time in which to complete the work. Said requests were denied by the Government, and claimants were required to proceed with the work and complete the same in strict accordance with the plans, specifications, and contract.
    VII. In November, 1903, claimant company began the construction of a second pier and shanty thereon, and continued work on same when the weather permitted until toward the end of December, 1903, when same was practically completed. This pier, together with the shanty, tools, air compressor, engines, etc., on same, was carried away by ice and stress of weather about February 14, 1904. Said second pier was smaller than the first one, and, together with the machinery, tools, etc., upon it at the time it went down, was reasonably worth the sum of $4,550.
    The contract and specifications do not require that claimants should build a pier, and it appears that a pier was not necessary in order to perform the work under the contract.
    YIII. After the caisson had been repaired and taken to the lighthouse site, claimants, on October 22, 1903, began depositing concrete in it about 10 o’clock a. in., without previously wetting the concrete, but pouring water upon it after it had been placed in the caisson, and continued such deposit until 8 p. m. of that day. The inspector for the Government objected to this method as not being according to the specifications, and on October 25, 1903, reported the matter to the engineer officer at Baltimore. In reply to that letter the engineer officer wrote the inspector October 30, 1903, instructing him to inform claimants that no payments whatever would be made on the contract until he had an official statement in writing from said inspector that the work in all its details was in strict accordance with the terms of the contract and specifications. On November 6, 1903, said inspector wrote claimants as follows: “ In continuance of my formal protest made to you in person at the site and at the time of placing certain dry materials purporting to be concrete within the structure of the Point No Point Lighthouse from 10 a. m. until 8 p m., Oct. 22, 1903, you are hereby informed that the said materials are rejected.”
    In the meantime claimants had proceeded with the work, and in order to secure the safety of the caisson had deposited about 500 tons of properly mixed concrete on top of that deposited on October 22.
    On November 8, 1903, claimants wrote the engineer officer denying that any materials were placed in the caisson except in accordance with the specifications and formally protested against the action of the inspector in rejecting said concrete and stating that if required to take out and replace the work already done in order to complete the contract they would at least hold the inspector personally liable for any extra expense. To this the engineer officer replied by letter on November 14, 1903, that' the requirements of the letter of November 6 wrould be rigidly insisted upon.
    Claimants thereafter had several conversations with the engineer officer and tried to show him that the concrete was all right, and that it ought to be accepted. As a result, said engineer told claimants he would have a shaft sunk, and if upon examination he found it was good, sound concrete he would accept it. On December 15, 1903, claimants wrote to the engineer stating that they had a gang of men ready for about a week to start work on the foundation again, and asking how soon he expected to bore a hole to test the concrete according to agreement. The shaft was sunk the latter part of December and first part of January, 1904, and said engineer officer went down and examined the concrete complained of and found it was not in accordance with the specifications, but in the exercise of his judgment as to the best interests of. the Government be accepted the. concrete on January 11, 1904. This caused a delay of 55 days’ work on the caisson.
    During a portion of the time the work of concreting was suspended pending the decision of the engineer officer, as aforesaid, claimants were at work on the second pier referred to in Finding VII.
    IX. Inspector Arthur had left the work November 15, 1903, pending the settlement of the question as to the rejected concrete. On December 15, 1903, claimants wrote to the engineer officer that they needed an inspector. Thereupon Inspector Arthur went down to the work, arriving there December 17 and found claimants were not ready for an inspector at that time, as they were waiting to hear about the concrete. After the engineer officer decided to accept the concrete as it was, as set forth in Finding VIII, Inspector Arthur returned to the work January 12,1904, and continued his duties as inspector and superintendent of construction.
    X. The third course cylinder plates were lost in the bay at the time the caisson turned over and were never recovered.
    When claimants got ready to take the caisson down to the site a second time the plates designed for the fourth course were used on the third course.
    At the request of claimant Col. Jones, the engineer officer, while at the site on January 11, 1904, gave claimant permission verbally to use the plates intended for the 5th course on the 4th course, and it did so use them. When said engineer returned to his office at Baltimore and examined the drawings and specifications he found there was a difference in the thickness of the iron designed for the two courses. He thereupon directed claimant by letter of January 18, 1904, to use the 7th course plates on the 4th course and retain the 5th and 6th courses in their respective positions, leaving the 7th course to be replaced by any iron that might be recovered from the bay or by new castings. Claimants carried out the direction of the engineer officer and removed the 5th course, including the concrete, and substituted the 7th course in its place. The cost to claimants of removing the 5th course plates from the 4th course was $500.
    
      XI. The work was completed and turned over to and accepted by the United States in February, 1905, more than one year and four months after the time provided for its completion by the contract.
    In the final settlement with claimants the accounting officers of the Treasury deducted from the amount due claimants under the contract the sum of $2,004.21 as the cost of inspection paid by the United States after the expiration of the contract period, being one year and four months.
    
      Mr. L. T. Michener for the plaintiff. Perry G. Michener was on the brief.
    The contract required the completion of the work in twelve months, and it contained the following proviso:
    “Provided, however, that if the party (or parties) of the first part shall, by freshets, ice, or other force or violence of the elements, and by no fault of 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 second part, or his successors, shall be just and reasonable, any additional expense incurred by the United States on account of inspection or otherwise during the extension to be deducted from the contract price of the work.” (Italics ours.)
    This proviso permitted the Government, in case of freshets, ice, or other force or violence of the elements, to give additional time, “such additional time may, in writing, be allowed him or them,” etc., and as “shall be just and reasonable, any additional expense incurred by the United States on account of inspection or otherwise during the extension to be deducted from the contract price of the work.” The additional expense on account of inspection “during the extension” was to be deducted. It will be noticed that there is but one kind of extension specified or permitted — an extension in writing. The, words “the extension” can only relate or apply to an extension made according to the contract, and there could be no extension except one in writing. The parties contracted for no other form or manner of extension.
    The contract controls absolutely, because there is no statutory or constitutional provision fixing the rights and obligations of the parties as to costs of inspection. The responsibilities of the parties were fixed by their contract. No liability attached to either party save that which was set forth in the contract. That instrument measured the liability of each party.
    We thus summarize the rules of law so admirably set forth in the opinion of Atkinson, J., in N. J. Foundry & Machine Oo. y. United States, 44 C. Cls., 178, 186, where it was said:
    “The purpose of a contract in writing is to set out the intention of the parties, define their rights, and declare their responsibilities. That which is not within the contract is no part of it unless mutual mistake is shown. Whatever may have been said or done by the parties prior to the execution of a written contract must be treated as merged in it, and no liability by either party can attach, save that which is set forth in the writing. A contract having been reduced to writing and signed by the contracting parties, the liability of each party must be measured thereby.”
    We submit that the obligations of the proviso are mutual and dependent and that if the Government officials gave additional time in writing, then, and only then, the claimant was required to meet any additional expense incurred by the Government on account of inspection during the extended period.
    It seems to us that the proviso clearly falls within the rule stated by Mr. Justice Miller in Phillips v. Seymour, 91 U. S., 646, 650, where that great judge said:
    “Where a specified thing is to be done by one party as the consideration of the thing to be done by the other, it is undeniably the general rule that the covenants are mutual, and are dependent, if they are to be performed at the same time; and if, by the terms or nature of the contract, one is first to be performed as the condition of the obligation of the other, that which is first to be performed must be done, or tendered, before that party can sustain a suit against the other.”
    The language of the court in Loud v. Pomona Land & Water Oo., 153 U. S., 564, 576, is particularly appropriate. The court said:
    “The question whether covenants are dependent or independent must be determined in each case upon the proper construction to be placed on the language employed by the parties to express their agreement. If the language is clear and unambiguous it must be taken according to its plain meaning as expressive of the intention of the parties, and under settled principles of judicial decision should not be controlled by the supposed inconvenience or hardship that may follow such construction. If parties think proper, they may agree that the right of one to maintain an action against another shall be conditional or dependent upon the plaintiff’s performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condition precedent to the performance by the other. The question in each case is, Which intent is disclosed by the language employed in the contract 1 ”
    
    When an engineer or agent acts as set forth in this case he confers no legal rights on the United States, nor do such acts deprive the contractor of his legal rights. On the contrary, such acts confer a right of action in damages on the contractor against the United States.
    Mr. Arthur so conducted himself concerning the performance of the contract as to be guilty of interference with the contractor, thus fastening on the United States liability for all the loss and damage that occurred after the interference began and from that time until the job was finally completed and accepted. Smith’s case, 94 U. S., 214, 217; Collins & Farwell, 34 C. Cls., 294, 327; Ohio River Con. Co. case, 45 C. Cls., 542, 553; Roeitinger’s case, 26 C. Cls., 391.
    The acceptance of the concrete by Colonel Jones, in spite of the adverse decision' of Mr. Arthur, is binding and conclusive on the United States, and it deprived the Government of the right to question now the sufficiency of the concrete and.the method of laying or placing it in the job. Electric Fire. Co. case, 39 C. Cls., 307, 315.
    The item covering inspection charges is a lawful claim. The law of the contract does not justify the making of this deduction. The contract gives to the United States the right to deduct inspection charges only when the time for completing the contract has been extended in writing. Petitioner asked more than once for an extension but it was denied, and the completion of the contract was required peremptorily. The work went on and it was completed and accepted long after the time fixed for completion by the specifications. As the Government did not extend the time in writing it did not Have the lawful right to deduct inspection charges. This follows because there are no provisions in the contract or specifications giving the right to deduct costs of inspection upon a failure to complete the contract within the time required by its terms. As the Government did not save any rights in that way, or in those circumstances, none vested in it. N. J. F. & M. Go. case, 44 C. Cls., 178, 186, and cases cited.
    The facts established by the evidence show that the failure to complete the contract within the time specified caused the petitioner the loss of profits that it would have earned otherwise and, therefore, it follows that petitioner is entitled to recover the profits so lost. Myerle’s case, 31 C. Cls., 105; Monroe’s case, 35 C. Cls., 199.
    
      Mr. F. W. Collins, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
    It has been repeatedly held tha,t recovery can not be had in the Court of Claims for injuries to property occasioned by the tortuous acts of the Government’s agents or employees, and hence, if the court should find that Superintendent Arthur acted in an arbitrary, careless, malicious, or negligent manner and the caisson and pier were wrecked thereby, this would be a tort and there could be no recovery therefor in the Court of Claims.
    Thus it was held in the case of Morgan v. United States, 14 Wallace, 531, that recovery could not be had in the Court of Claims for injuries to a vessel, occasioned by the tortuous act of the officer of the Government in compelling the master, against his better judgment, to proceed to sea.
    This is exactly in point with the contention of the claimants herein, and even if their contention be correct, which it is not, the Government, as before stated, would not be liable.
    In the case of United States v. Kirnbal, 13 Wallace, 630, it was held that where a vessel under contract with the Government had proceeded to the place of destination, and tendered a delivery of the cargo to a quartermaster, who was the consignee, but who refused to accept it and ordered her to proceed to another port, and the master of the vessel refused to comply, on the ground that the state of the tide rendered it unsafe to depart, whereupon the vessel was towed by tbe Government tug and was injured by striking on tbe bar, tbe case was one of impressment of tbe vessel and not of an implied contract; and tbe Court of Claims bas no jurisdiction of a suit for damages.
    Tbe rules of law applicable to negligence are perhaps too well settled to demand extended reference.
    As stated in tbe case of Monte Allegre, 9 Wheaton, 616, when one of two innocent persons must suffer, be to whom is imputable negligence, or want of tbe employment of all tbe means within bis reach to guard against tbe injury, must bear tbe loss.
    And in tbe case of Baltimore and, P. R. R. Company v. Jones, 95 U. S., 439, it was held that negligence is tbe failure to do what a reasonable and prudent person would ordinarily have done under tbe circumstances of the situation; or doing what such a person, under the existing circumstances, would not have done. Tbe duty is dictated and measured by tbe exigencies of tbe occasion.
    Also, in tbe Union P. R. Company v. McDonald, 152 U. S., 262, it was held that negligence is tbe omission to do something that a reasonable, prudent man, guided by those considerations that ordinarily regulate tbe conduct of human affairs, would do, or doing something that a prudent or reasonable man would not do under all tbe circumstances of tbe particular transaction.
    Also, in tbe case of tbe National Savings Bank v. Ward, 100 U. S., 195, it was held that negligence, to be actionable, must occur in breach of a legal duty arising out of contract or otherwise owing to tbe person sustaining tbe loss.
    Likewise in the case of Charnock v. Texas and P. R. Company, 194 U. S., 432, it was held that negligence bas always relation to the circumstances in which one is placed and what an ordinarily prudent man would do or omit in such circumstances.
    And in Milwaukee and St. P. R. Company v. Arms, 91 U. S., 489, it was held that gross negligence is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term “ordinary negligence,” but, after all, it means tbe absence of tbe care that is necessary under tbe circumstances.
   ÁTKINSON, Judge,

delivered tbe opinion of the court:

The plaintiff company sues the United States to recover the sum of $39,938.54 growing out of the construction of a Government lighthouse at Point No Point, on the Patuxent Biver near its junction with the Chesapeake Bay in the State of Maryland.

On January 2, 1902, claimant company entered into a written contract with the United States, through Lieut. Col. W. A. Jones, engineer of the fifth lighthouse district, to furnish all the materials, labor, etc., necessary to completely construct the above-mentioned lighthouse within the period of one year for the sum of $38,880.

The specifications required the lower part of the structure to consist of a square wooden caisson, provided with a working chamber and air shaft. On the roof of this caisson was to rest a cast-iron foundation cylinder, trumpet-shaped on top, which, after being sunk to the proper depth below the bottom of the bay, was to be filled as follows: The working chamber of the caisson and a part of the air shaft with concrete, the four segmental parts of the foundation cylinder with sand and large stones, and the rest of the cylinder with concrete, except the spaces for cisterns and cellar. The caisson, after being moored over the correct place, the one staked out by the Lighthouse Board, was to be lowered by gradually extending the cylinder and the air shaft in the height and filling in with concrete, in manner and in detail described at length in the specifications.

The plaintiff company constructed a pier on piles extending out a considerable distance into the Patuxent River, where the lighthouse was to be erected, and early in April, 1903, the caisson was towed from Solomons Island, 18 miles distant, to the place of permanent location on the Patuxent River. When the caisson reached said pier, April 3, the water was very rough, which caused the caisson to tip and turn over, thereby crushing the pier and sending it to the bottom of the river with all the machinery, material, and other appliances thereon belonging to the plaintiff company, causing a loss to it of about $11,108.82, as shown by Finding Y. The caisson drifted down the river and into the Cheaspeake Bay, and after an effort extending over two days and one night, by means of a tugboat chartered by plaintiff, it was recovered in a damaged condition and returned to Solomons Island near the point from which it had drifted. On October 22, 1903, after it had been repaired, it was towed back to the lighthouse site and an effort was again made to place it in position. The work of filling the concrete in the caisson was stopped on November 16 by the Government superintendent, because, as he claimed, the concrete was not up to the standard required by the specifications, and a delay of 55 days in the work was occasioned thereby, viz, from November 16, 1903, to January 11, 1904. On said latter date Lieut. Col. W. A. Jones, engineer in charge, visited the site of the work, approved the concrete, although he stated that it was not fully up to the required standard, and accordingly allowed the work to proceed.

It was for a time believed by the contractors, that the caisson could be put in place without the aid of a pier, but during the 55 days’ delay occasioned by the rejection of the cement referred to above, a new and stronger pier was constructed; and, unfortunately for the contractors, it was, on February 14, 1904, carried away by a flood of water and ice in the Patuxent River, occasioning an additional loss to the plaintiff company of about $4,550, as set forth in Finding VII. It is contended by plaintiff that the refusal of the Government inspector to allow the use of concrete, which it maintains was in accordance with the specifications, causing the delay of 55 days in the prosecution of the work, as herein-before stated, resulted in an actual loss to it of $9,800.

The contract required the completion of the work in 12 months, and it is apparent that under ordinary circumstances and conditions that period of time would have been sufficient. The following provisions, however, were inserted in the contract to provide for the unforseen:

“Provided, however, that if the party (or parties) of the first part shall by freshets, ice, or other force or violence of the elements, and by no fault of 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 second part, or his successors, shall be just and reasonable, any additional expense incurred by the United States on account of inspection or otherwise during the extension to be deducted from the contract price of the work.
“It is further understood and agreed that in case of failure on the part of the party of the first part to complete this contract as specified and agreed upon, that the said United States shall have the right to recover any or all damages incurred by reason of said failure by the party of the first part, and shall also have the right to recover whatever sums may be expended by the party of the second part in completing the said contract in excess of the price herein stipulated to be paid to the party of the first part for completing the same.”

It is further shown by the findings that after the brealdng down of the first pier, plaintiff company saw the impossibility of completing the contract within the contract period of one year, and it thereupon made a request in writing, followed by additional verbal requests, for an extension; but these requests were denied by the defendants and the completion of the contract under its terms was peremptorily demanded by the engineer in charge. The work, however, went on, and it was finished one year and four months after the period for its completion fixed by the contract. It is, therefore, contended by plaintiff’s counsel that inasmuch as the Government did not extend the time provided by the contract, it did not possess the lawful right to charge against plaintiff inspection charges during the delay in completing the work. This, it contends, would follow, because there are no provisions in the contract or specifications giving the right to deduct such costs upon failure to complete the contract within the time required by its terms. On the other hand, counsel for the United States insists that inasmuch as plaintiff was allowed to go on and complete its contract, although not authorized in writing so to do, yet under the provision of the contract that any additional expense incurred by the United States on account of inspection or otherwise shall be deducted from the contract price of the work,” it was thereby authorized to charge to plaintiff the services of the inspector during the one year and four months overtime period in completing the lighthouse.

This case, in its most important feature, is identical with the, case of United States v. Gleason, 175 U. S., 588. That case contained the same provision as to granting an extension of time on account of ice, floods, etc., as we find in the contract involved in the case at bar. It was there held that “under a proper construction of the contract the right or privileges of the contractors, if they failed to complete their work within the time limited, to have a further extension or extensions of yime, depended upon the judgment of the engineer in charge when applied to to grant such extension, and that no allegation or finding is shown in this record sufficient to justify the court in setting aside the judgment of the engineer as having been rendered in bad faith, or in any dishonest disregard of the contracting parties.” It is also further stated in the opinion that it is not competent for the court to go back of the judgment of the engineer in an attempt to revise his action. This can only be done upon, proof of bad faith, or of mistake or negligence so great, so gross, as to justify an inference of bad faith; and we may add that nothing of this sort is shown in the case we are now considering. Hence, plaintiff can not be excused from carrying out the provisions of its contract by unforeseen difficulties, however great, unless performance is rendered impossible by the act of God, the law, or the other party. It is apparent, therefore, that the engineer acted within his rights when he refused to extend the time for the completion of the contract in this case, and consequently the Government can not be held liable for loss or damage that thereby resulted.

Risks were taken by the contracting company that perhaps could have been avoided, if it had not been for the time limit, of the contract. Rush work is always more or less hazardous. It proved to be so in this case. We, however, fail to see wherein blame for delay can be laid at the door of the defendants herein. It is true that there was a delay occasioned by the use of concrete which was pronounced by the inspector in charge of the work to be of an inferior quality, but under the existing conditions during that period of delay the caisson could not have been securely put in place so as to resist the ice flow and freshet in the Patuxent River, which shortly thereafter followed, on February 14, destroying practically everything that had been done up to that time, and which caused the plaintiff company to begin the work anew. During said delay work was being carried on in constructing the second pier, and it does not appear that it was entirely completed before it was destroyed by ice and unusual high water in the Patuxent River, as stated above. Nor is it shown that said delay caused by the defendants was, under all the circumstances, unreasonable in duration or unjust to the plaintiff.

Plaintiff’s claim for the recovery of $500 for the substitution of one cylinder plate for another of lesser strength in the caisson, which is fully explained in Finding X, we are of the opinion should be allowed, for the reason that when a plate of an inch and half in thickness was lost by the upturning of the caisson as it was being set in place, plaintiff was directed verbally to use another of lesser thickness, not by the superintendent of construction, but by the engineer in charge; and after the same was so used and a large amount of concrete had been placed upon it in the caisson, the engineer in charge of the work, seven days thereafter, rescinded his former order by directing the plate to be removed and one of greater strength to be substituted therefor, which was accordingly done at an expense to plaintiff of $500. In the absence of fraud or gross mistake such as would imply bad faith, the judgment of an officer in charge of executing the provisions of a contract by the Government is conclusive and binding on both parties to the contract. This is elementary, and does not need the citation of authorities to sustain such conclusion.

Our decision on the whole case is that but one of the allegations in plaintiff’s petition is sustained; that the Government was not responsible for the many accidents and mishaps that attended the construction of the lighthouse in controversy, except the claim which is set out in Finding X. On this item judgment is awarded in favor of the plantiff against the United States for the sum of $500, and all other claims mentioned in the petition are accordingly dismissed.

It is so ordered.

The claimant’s motion to amend the conclusion of law is overruled; the defendants’ motion to strike out certain expressions in the opinion is allowed; the former opinion is withdrawn and the foregoing opinion filed in lieu thereof.  