
    GEORGE B. SPEARIN v. THE UNITED STATES.
    [No. 30509.
    Decided April 13, 1916.]
    
      On the proofs.
    
    
      Contract; dry dock; Sewer.—Plaintiff contracts with the United States to build a dry dock at the New York Navy Yard, the plans and specifications for which are prepared by the Navy Department. It is also provided that the contractor should first divert a 6-foot brick sewer around the head of the proposed dock site where it was to intercept a 7-foot sewer outside the lines of operation fixed by the contract for the dry dock. The sewer work, the plans and specifications of which were also prepared by the United States, is completed by plaintiff, inspected, accepted, and paid for by defendants. Plaintiff then assembled his plant and necessary materials and began work on the construction of the dry dock proper. During the course of the work a heavy downpour of rain, in conjunction with a high tide, caused the 6-foot sewer to burst from internal pressure, resulting in the flooding of that portion of the excavation work completed and endangering the future work. Plaintiff thereupon stopped work and notified the Government that he would not resume until some provision for caring for the work or assuming responsibility for the damages caused, was made. The defendants declined tu care for the sewer or amend the contract in any way upon the failure of the contractor to continue the work under existing conditions, annulled the contract, took possession of the plant and materials of plaintiff, and subsequently awarded the work to another contractor. Plaintiff sues for damages for the annulment of the contract and profits.
    
      
      Plans and specifications.—The sewer work being included in the contract work for the dry dock, and the plans and specifications therefor prepared by the defendants being precise and definite, the plaintiff could not depart therefrom, and it was encumbent upon defendants to provide an adequate sewer, and if the plans and specifications are defective it is the fault of the party proposing them, and not the contractor who executed them.
    
      Same; warranty.—Defendants by their plans and specifications warranted their efficiency, and the contractor had a right to rely upon them as correct without an independent investigation of previous local conditions, and he can not be held to have assumed the risk of the dam in the 7-foot sewer, outside the lines of his contractual work, which he had no means of discovering in the performance of the work required.
    
      Defective plans; abandonment of contract.—The defendants were bound to furnish plans that would allow the contractor to prosecute the work without loss, damage, or delay, and if by reason of defective plans the completion of the work was made impossible without danger of loss of profits and destruction of his property, he may, upon the defendants’ refusal to correct the same or assume responsibility therefor, abandon the contract and recover his loss.
    
      Damages; profits.—The principles announced in United States v. Behan, 110 U. S., 338, followed in awarding damages and profits.
    
      The Reporter's statement of the case:
    The following are the facts as found by the court:
    I. On the 7th day of February, 1905, the claimant, George B. Spearin, entered into the contract with the United States, a copy of which, marked “ Exhibit A,” is annexed to the petition herein and a copy of the material parts of the plans and specifications mentioned in said contract is hereto attached, marked “Exhibit B,” and made a part hereof.
    II. The site of said dry dock was upon low ground, nearly on the level of tidewater. To the south of said site and closely contiguous thereto was a paved street called Morris Avenue. To the eastward of said site was another paved street known as Fifth Street. Beneath the surface of said streets were numerous supply pipes for water, gas, heat, etc. Lying to the eastward about 150 feet, generally parallel with the axis of the dry dock, was a 7-foot sewer, while intercepting said sewer near the head of said site and passing between the same and Morris Avenue was a 6-foot sewer. There were numerous valuable and important buildings belonging to the Government, in which shops and workrooms of various kinds were located at distances from said site ranging from 150 to 300 feet. There was a 30-inch saltwater intake pipe extending from the water front at Wall-about Basin to the power house, passing for some distance within about 150 feet of the head of the site for said dry-dock.
    III. At the time of the advertisement for proposals for the construction of said dry dock, and for many years prior thereto, there was a 7-foot sewer lying eastward of the proposed dry dock upon the property of the defendant and outside of the space set aside by the defendant for the performance of claimant’s work. Said sewer emptied through four 24-inch vitrified sewer pipes into Wallabout Basin at a point near the entrance of the dry dock where hospital ships were frequently anchored and a Government hospital located at least one-half mile distant. There was also at said time a 6- foot intercepting sewer made of brick which intersected the 7- foot sewer at a point southeast of the dry dock and extending across the site of the proposed dry dock near the head thereof, emptying into the East River at a point near the northwest corner of the navy yard, several hundred yards from the site of the dry dock, said point of intersection being also outside the limits of claimant’s inclosure and upon the property of the defendant. Both of said sewers were of brick construction and were main outlets for the sewerage system of the city of Brooklyn and drained a considerable part of the territory of that city, as well as the territory within said navy yard. Brick sewers are not designed to resist internal pressure.
    About the year 1900 the course of the said 6-foot sewer as it then ran through the navy yard was changed so as to permit of its emptying into the East River as aforesaid. The expense incident to changing its course was borne by the city of Brooklyn and the United States together.
    IY. In the 7-foot sewer a dam from 5 to 5J feet high had been built several years (probably about the year 1900) before the signing of the contract which diverted the water into the 6-foot sewer until it rose high enough in said 7-foot sewer to pass over said dam. The presence of said dam and said four 21-inch pipes in the outlet of said 7-foot sewer reduced the combined capacity of said 6 and 7 foot sewers. This 7-foot sewer if left free and unobstructed had a capacity of about 123 cubic feet per second. The 6-foot sewer had a capacity of about 121 cubic feet per second, and the combined capacity of the two sewers was therefore about 517 cubic feet per second. The damming up of the 7-foot sewer threw practically all of the flow of water in both sewers into the 6-foot sewer. Said dam did not appear on the plans or any blue prints exhibited to the contractor.
    V. The specifications provided (pars. 8 and 9, 196 to 198) that said 6-foot sewer extending across the site of the dry dock should be diverted by the contractor immediately after the signing of the contract around the head of the dock upon the arc of the circle, as shown on the plans annexed thereto, and that it should be completed within a period of six months, the character of construction provided for said diverted section being identical with that of the old 6-foot sewer, both as to its size and material.
    Said location of the diverted section of the sewer placed it at a distance varying from 37 to 50 feet from the proposed excavation of the dry dock and a large part of it within the area set aside for the space within which the contractor’s operations were to be carried on.
    VI. For a number of years prior to the date of the advertisement inviting proposals for the construction of said dry dock said 6 and 7 foot sewers had overflowed at sundry times as the result of sudden and heavy downpours of rain, causing the water to flow out from the manholes, catch basins, and other outlets of each of said sewers and flooding the lower portions of the navy yard and contiguous portions of the city of Brooklyn. Said conditions of overflow were generally known to persons living in the vicinity of said area and were known to Mr. Hollyday, the officer in charge of said work at the navy yard, to his subordinates, and other persons in and about the navy yard, as well as to the civil engineer in charge of the Brooklyn sewer system.
    
      The claimant had no knowledge of nor did he or his representatives make any inquiry concerning said sewers or the overflowing or capacity of or internal pressure in either of them. He was not informed of the fact that said sewers had overflowed by said officer in charge or anyone else. Some other bidders were so informed. Prior to the date of said contract and for a year or more thereafter, the existence of said dam in the 7-foot sewer was not known to the city’s civil engineer and was not shown on any city maps, nor was its presence actually known to any of defendants’ officers or agents concerned with said contract or the making of said plans until after the break in the sewer hereafter mentioned. The sewer was underground and the dam was invisible.
    VII. Prior to submitting the proposal upon which the contract was subsequently awarded the claimant, who was not a civil engineer, personally visited the site of the proposed work and made a superficial examination thereof. The claimant also sent one or two representatives to the civil engineer’s office at the navy yard to obtain what information they could concerning the conditions and probable cost of the work.
    VIII. Immediately after the contract was signed the claimant began and completed within the time specified the construction of the diverted section of the 6-foot intercepting sewer according to the plans and specification, and the same was approved, accepted, and paid for by the United States, and the claimant proceeded with the construction of the dry dock.
    IX. Said intercepting 6-foot sewer was at no time disturbed or in any manner affected by the excavation for the dry-dock prism, and remained in constant use for about a year after its completion without injury or accident of any kind.
    On the 7th day of August, 1906, a sudden and heavy downpour of rain occurred and coincident with it was a high tide, which forced water a considerable distance up the sewer to a depth of 2 feet or more; and during that period the sewers in the vicinity of the navy yard overflowed and the said 6-foot sewer broke in the part constructed by the claimant, causing longitudinal cracks in three places in its top for a total length of 35 feet at a point opposite the head of the dry dock and about-.50 feet therefrom, through which cracks water flowed into the excavation for the dry dock. Said break in the sewer was caused by internal pressure of water from the sudden and heavy downpour of rain in conjunction with said existing high tide, which the sewer was not of sufficient size to carry away, and because said dam in the 7-foot sewer greatly reduced its capacity.
    X. Immediately after said cracks in the sewer occurred it was inspected by the contractor, who thereupon wrote the defendants’ officer in charge, notifying him of its condition and stating his purpose to suspend operations and not to resume until the Government had made provision for caring for or assuming the responsibility for the damage that had been or'might be occasioned by the said sewer, its insufficient capacity, and location.
    The chief of the bureau replied to said notification that the contractor was responsible for remedying the existing conditions and that he should make good the injuries which had been caused, guard against the repetition, and proceed with his work under the contract.
    Thereafter much correspondence was had between the claimant and the Chief of the Bureau of Yards and Docks, and finally an appeal was taken by claimant to the Secretary of the Navy, who, on January 14, 1907, called upon the claimant to proceed with his work under his contract and if he proposed to decline to so notify the department that it might take such steps as it deemed advisable. On January 25, 1907, the Secretary asked for a reply to said letter and stated that before annulling his contract the department would give him further opportunity to show cause why that action should not be taken.
    On January 29, 1907, the plaintiff, acknowledging receipt of said two letters from the Secretary, stated, among other things, as follows:
    “ You must recognize that the main point at issue is not as to who is responsible for what has occurred, but what is to be done for the future. Unquestionably a grave blunder has been made in the design of this sewer, and again in locating it where it is around the head of this dry-dock structure within the line of the natural slope of the excavation. Such conditions render it impossible for me to comply with your demand that I proceed with the work without modification of the sewer plan.
    “We know now beyond a shadow of a doubt that this sewer is insufficient in size and strength for the work that it must do, and that it will be a constant menace to my plant, to the dry dock itself, and to the Government’s surrounding property. I have no power to change the plan or location of the sewer, even if I would, nor can I bring myself to believe that it is the desire of your department to perpetuate this blunder by leaving this sewer as it is and where it is— a constant menace to the final success of this important work. Whatever your attitude may be I desire to say at this time that I believe it to be extremely dangerous and unwise to continue this work until proper provision has been made for the proper control of this large flow of water, and in this I am borne out by the best engineering opinion that I can obtain. I am therefore unwilling to resume work until this menace has been removed, and I again call on your department to make such changes in the design and location of this sewer as will make it possible to resume work with safety to my men, to my plant, and to the surrounding Government property, and this dry dock.”
    Thereupon, on February 7, 1907, a board of investigation was appointed by the Secretary of the Navy under provisions of the specifications, which heard many witnesses, including those called by the claimant, who appeared before the board and was represented by counsel during its investigation. The board made its report, to which the contractor filed a number of exceptions. The estimated cost of restoring the sewer in as good condition as it was at the time it was completed and accepted, as aforesaid, was $3,875, according to an estimate made by an officer of the Navy appointed by the chief of the bureau.
    It was unsafe to the contractor’s and the Government’s property for the contractor to proceed with the contract work with the 6-foot sewer in its then condition.
    XI. On the 14th of November, 1907, the Secretary of the Navy declared the claimant’s contract null and void in accordance with the fifteenth and sixteenth clauses of the specifications and other provisions contained therein, and due notice thereof was served upon the claimant upon the same day. On the following day the defendants took formal possession of the plant and materials of the claimant and of the dock site.
    XTT. The claimant paid, laid out, and expended in and about the performance of the work specified in said contract the following, sums, to wit:
    Value of work and materials incorporated in the permanent structure---------------------------------------$75, 491.65
    Value of materials on hand to be placed in the permanent structure____________________________________________ 10, 895.90
    Value of plant_________________________________________ 124, 551.63 Making a total amount of $210,939.18, exclusive of interest.
    The claimant received from defendants on account of such performance the sum of $129,758.32, leaving a balance of $81,180.86 actually expended by him in and about the performance of said contract over and above the amounts received by him from defendants on account thereof.
    The claimant, if permitted to finish his contract work, would have earned a profit of $60,000.
    Included in these items of expenditure as part of the plant is the sum of $38,138.80 for 1,028 steel sheet piles driven in place. Said steel sheet piles were of no use or value whatever in the work of completing the construction of said dry dock and possessed no salvage value.
    XIII. Subsequently, on April 14, 1908, the contract without change was relet to the Williams Engineering & Contracting Co. for $764,400. Sluice gates were thereafter erected in both the 6 and 7 j^pot sewers, which tended to reduce the leakage therefrom. On August 31, 1908, the plans and specifications were changed and a supplemental agreement was entered into with the Williams Engineering & Contracting Co., increasing the amount of their contract by $442,782.16, the dock being increased in length under this change to 585 feet from the coping to the outer sill and 601 feet from the coping over all. The width of the dry dock was also changed, and the lining of the dry dock was changed from concrete to granite, quarry faced. The amount paid to said company on account of work performed was $65,738.06, and on October 1, 1909, the contract was canceled. The contract with this company provided that this company should have the use of the claimant’s plant and materials.
    The work was then relet on November 12, 1909, to the Holbrook, Cabot & Eollihs Co., and their bid, on the basis of the dry dock as changed under the Williams Engineering & Contracting Co. contract, was $1,389,000. On September 1, 1910, another change in the plans and specifications was made, increasing the size of the dry dock to 723 feet, as against 554 feet originally in the Spearin contract, and increasing their bid by $1,189,309.78. They had then been paid $1,072,863.46. The last change involved the omission of piles under the dock and the substitution of piers and anchors sunk in pneumatic caissons, and also involved the omission of the se' .rer around the head of the dock and certain miscellaneous items. The damaged 6-foot sewer was removed from the site and its exposed ends made as nearly water-tight as possible by the erection of sluice gates therein and reinforced concrete bulkheads and the flowage of water through the same entirely stopped during the continuance of the work under this contract, the dam having been previously removed from the 7-foot sewer. Again, on January 7, 1911, certain increases in the contract price were made, among others for the sewer around the head of the dry dock, $7,200. The total cost, excluding payments made under other contracts to v.he Holbrook, Cabot & Eollins Co., was approximately $2,480,000.
    After the completion of the dry dock the 6-foot sewer, which had been removed as aforesaid, was reconstructed by the said Holbrook, Cabot & Eollins Co., according to plans and specifications prepared by defendants. The sewer as finally constructed was made of reinforced concrete 5 feet wide and 6 feet high, rectangular in shape, the concrete being reinforced by twisted steel rods three-quarters of asi inch square, placed both longitudinally and transversely 18 inches apart on the sides and 36 inches at the top and bottom. The side wails were 6 inches thick, the bottom 8 inches, and the top 10 or 12 inches—a detailed construction designed to resist internal pressure.
    
      XIV. Said Holbrook, Cabot & Rollins Co. completed the construction of said dry dock, and from time to time as the items of plant, tools, and appliances furnished by claimant became of no further use in the work of completing the construction of said dry dock they were returned to the possession and control of the Navy Department. Subsequently, after notice to claimant to remove said items of plant, etc., and upon his failure so to do, the same were duly advertised and sold at public auction, the net proceeds of said Sale amounting to $4,407.98, which amount was deposited with the assistant United States treasurer at New York and credited to the fund for “Miscellaneous receipts, proceeds of sale.” At the time of the closing of the testimony in this case there were still some items of said plant in use by said corporation. The reasonable value of these items at the time was $3,500.
    
      Mr. Alfred 8. Brown for the plaintiff. Messrs. F. TP. Haelcett and O. E. Littlefield were on the briefs.
    
      P. M. Ashford, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Booth, Judge,

delivered the opinion of the court:

On February 7, 1905, the claimant, George B. Spearin, entered into a written contract with the defendants to furnish the materials and do certain construction work which was intended to finally result in the completion of a dry dock at the New York Navy Yard. All the work incident to the undertaking was provided for by plans and specifications prepared by the Bureau of Yards and Docks, and the contract itself was signed by Mordecai T. Endicott, chief of said bureau, as the representative of the United States.

Congress by the act of June 7, 1900, had authorized the building of the dry dock and made an appropriation therefor. Previous to the advertisement for bids the Government officers in charge of the proposed work had agreed upon a location for the dry dock that embraced within its territorial limits a 6-foot intercepting brick sewer, and the same appeared in the plans and specifications. This brick sewer extended clear across the site of the dock near the head thereof and was a part of the sewer system of the city of Brooklyn. Alongside the eastern limits of the site as fixed by the contract was another brick sewer 7 feet in diameter, the two sewers intersecting each other at a point southeast of the proposed dock entirely outside the contractor’s lines of operation fixed by the contract.

The contract provided for what was obviously indispensable, i. e., that the contractor should first divert the 6-foot sewer around the head of the dock upon the arc of a circle, thus removing it from interference with the building of the dry dock and as a menace to the completed work. The work to be done on the sewer was provided for by the defendants in plans and specifications prepared and furnished the contractor by the defendants. The sewer work was done by the plaintiff in strict accord with the contract, was inspected, accepted, and paid for by the defendants in the manner pro-id ded in the contract. The plaintiff assembled his plant and necessary materials and began work on the construction of the dry dock proper. The contract work proceeded in the usual way until August 7,1906, on which date a sudden and heavy downpour of rain occurred, which, in conjunction with a high tide, caused the 6-foot sewer previously constructed by the plaintiff to burst, the disaster being of sufficient consequence to flood that portion of the excavation already completed by the plaintiff and endanger future work if the sewer remained in its present condition. The plaintiff immediately stopped work and notified the defendants that he would not resume until the Government made some provision for caring for or assuming the responsibility for damages that had been or might hereafter be occasioned by said sewers. An investigation of the surroundings disclosed the following indisputable facts: It was a matter of knowledge, known generally by persons living in the navy yard and territory immediately adjacent thereto, that the sewerage system in this particular locality was seriously inefficient. For a number of years preceding this occasion, under exactly similar circumstances, these very sewers in the navy yard had overflowed, blowing the iron tops off catch basins and manholes and flooding the yard itself with water to a considerable depth. The officers and men of the navy yard and the officers of the city of Brooklyn in charge of sewers knew it and had known it for years. The officer in charge of the dry-dock construction work knew it and had known of it for a considerable time before this contract was let.

Inside the 7-foot sewer, heretofore described as to location, a brick dam 5 or 5| feet high had been built several years before the contract for the dry dock was let, which, in conjunction with some small drain pipes installed at its mouth, diverted a large volume of sewage into the 6-foot intercepting sewer, reducing its capacity at least one-third and taxing its resisting strength beyond the maximum. This dam was not shown on any of the blue prints or plans exhibited to the contractor and appears to have been unknown to any of the parties to the contract. It was, of course, beneath ground and unobservable and had doubtless been constructed by the defendants to do the very thing it did do, divert the sanitary sewage which should have passed through the 7-foot sewer into the 6-foot sewer. Governmental surroundings in close proximity to the mouth of the 7-foot sewer sustains an inference that the dam and the small drain pipes were designedly prepared to take care of the offense likely to be occasioned by the great amount of sewage certain to be deposited in Wallabout Basin. Both sewers were built of brick, and brick sewers are not designed to resist internal pressure. The plaintiff made no inquiries respecting the efficiency or inefficiency of the sewers or sewerage system, nor was he informed by anyone at the navy yard or in any wise connected with this contract about the same; he visited the site of the work and made an examination of the same; there was nothing from external appearances to warn him of this condition of overflow. Whether Admiral Endicott knew of this condition does not appear, as he was not called as a witness. Other bidders had been so informed. The defendants declined to care for the broken sewer or amend the contract in any way. They insisted upon its strict performance, and after a most voluminous correspondence, annulled the plaintiff’s contract, took possession of his plant and materials, and subsequently turned them over to another contractor. The dry dock was finally constructed by the Holbrook, Cabot & Rollins Co. Congress subsequently enlarged the appropriation very materially and a structure of larger proportions resulted. The 6-foot sewer which had caused all the controversy was finally cared for by plans and specifications proposed by the defendants; it was removed from the site of the work; its exposed ends made water-tight by reinforced concrete bulkheads and sluice gates, and no water passed through it during the construction of the dry dock. After the completion of the dock it was rebuilt in the manner set forth in Finding XIII, from new plans and specifications, which resulted in a new sewer of entirely different materials and construction designed to overcome and forestall the recurrence of a disaster similar to the one of which plaintiff complained. This suit is to recover damages for the annullment of the contract, alleged in the petition as amounting to $250,767.73, two items being involved, a balance of $144,839.56 due on account of funds actually expended in the conduct of the work over and above all sums received therefor, and $105,928.17 profits.

The court is not in agreement, objection being made to both the conclusion and the findings of fact. Particular objection is made to the last paragraph of Finding X and all of Finding XIII. The task of deducing findings of fact from a voluminous and contradictory record is not only a difficult one, but an extremely important function of this court. It is said that the last paragraph of Finding X states a conclusion and not a fact. The distinction between an ultimate fact and a conclusion is frequently a very narrow one where the court is charged with the necessity of reporting the former and omitting the latter. The rules of the Supreme Court expressly exclude the appearance of any testimony in the findings and require the court to report the facts established by the evidence, in the nature of a special verdict. The finding objected to states a fact; it is true that it is the statement of a fact arrived at from the record. The testimony of witnesses introduced, the detail condition of affairs disclosed after the break in the sewer, the amount of water in the excavation, and the damages caused by the break were all considered in making up what we find to be a fact, an ultimate fact—i. e., “ it was unsafe to the contractor’s and the Government’s property for the contractor to proceed with the sewer in its then condition.” We might have recited in detail the manifold results of the break and set forth with particularity the depth of the water projected into the excavation, the movement of the piles and sheeting installed to sustain the banks, and given the evidence in the record, but one fact insisted upon as established by the record is the fact found in Finding X.

In the case of Ripley v. United States, 220 U. S., 491, and 222 U. S., 144, two orders of remand were entered by the Supreme Court directing this court to find specifically upon the question of good or bad faith—not bad faith in the sense of purposed wrongdoing, but bad faith as a fact deducible from the record before us. It is extremely important in this case to know as a fact whether the contractor could have proceeded with his work with safety to his property and the Government’s property in his care and custody. Any verdict rendered in this case ignoring this fact would fall of its own weight, and unless the record in all its detail is to be reviewed it seems an indispensable proceeding to set forth as a fact that which the record convinces the court sitting as a jury is a fact. De Groot v. United States, 5 Wall., 419; United States v. Adams, 6 Wall., 101; Mundy v. United States, 35 C. Cls., 265; Atlantic, Gulf Pacific Co. v. United States, No. 25293.

The Supreme Court of California in Levins v. Rovegno, 71 Cal., 273, concludes a discussion upon the question of ultimate facts with this very significant statement: “ Where, in legal proceedings, from the facts in evidence, the result can be reached by an exact process of rational reasoning adopted in the investigation of proof, it becomes an ultimate fact, to be found as such.”

It is not by this finding intended to ascribe liability to any of the parties for the event which brought on this condition, nor does the court undertake to say that plaintiff could not have repaired the sewer and proceeded with his contract. The paragraph is limited exclusively to a fact which goes alone to the question of the right to cease work after the break—the right to abandon the contract—and is of paramount importance in this respect. That the finding is supported by the record seems quite beyond dispute; in fact it is so apparent that no officer of the Government thought of such a thing as a continuance of the contract work without the sewer being fully repaired or rebuilt. It would be utterly absurd to have done otherwise.

As to Finding XIII, it is asserted that the same deals with facts irrelevant and inadmissible because ex post facto in their relation to the issue involved. It is manifest that the finding is predicated wholly upon what occurred in reference to the construction of the dry dock after plaintiff’s contract had been annulled by a different contractor under another contract. With a most singular inconsistency the defendants call the members of this contracting company as witnesses to prove by them that the plaintiff could not have possibly constructed the dry dock called for in his contract under the plans and specifications furnished him by the defendants in any other manner than the way employed by it in completing the dock. Every witness so called predicates his opinion from personal experiences gained in the execution of this contract of the Holbrook, Gabot & Rollins Co., and unhesitatingly ascribes a great money loss to the undertaking as assumed by the plaintiff jn his contract. Yet when what the defendants did in taking care of the sewers and the detail of place and specification with reference to this most important feature of the whole undertaking is offered, it is insisted upon that the transaction is entirely disconnected with the former contract. The plaintiff’s contract was annulled, his plant and property seized, and the reason assigned for the annulment was his unwillingness to proceed with the work. His unwillingness to proceed is ascribed wholly to the broken sewer and the circumstances causing its break. This constitutes the gist of the whole case. The right of annulment is not an arbitrary one; it can not be exercised capriciously, and courts have the right to investigate the exercise of the right. Surely it is of extreme importance to know what the defendants did with reference to the sewer, especially so when the work is being done with plaintiff’s plant and constructed in part out of his material. Can it be that the defendants in one contract can seek refuge under an express right of forfeiture exercised because of certain conditions, and then subsequently, in dealing with the identical subject matter under exactly similar conditions with property and materials in which the first contractor has an interest, repudiate and reverse the injurious course first pursued to the benefit and advantage of the later contractor? If it was right in the final instance to design a sewer impervious to internal pressure after the stoppage in the 7-foot sewer had been removed, is it not a matter of vital import to a court or jury to have before it some explanation for this inconsistent conduct in not a disconnected but a continuous dealing with the same subject matter mentioned in this plaintiff’s contract, and which is the sole issue upon the point of liability in the case?

In Ceballos & Co. v. United States, 214 U. S., 47, the Supreme Court considered, although not set forth in the findings of this court, what was done and what construction was given to an earlier contract of similar terms and subject matter to the one involved by the officers of the Government, and a substantial judgment was awarded the plaintiffs. In the Ceballos case the same inconsistencies appeared as here. Upon one contract one course was pursued by the defendants ; under another affecting similar interests in a like manner another method was adopted.

The first paragraph of the specifications expresses in plain terms that the intention of the defendants in making the contract is to secure the construction of a dry dock complete in all its parts. It is elementary that the intention of the parties to a contract and the work that is required thereunder is to be gathered from the instrument as a whole. The verbiage employed in one section can not standing alone determine this question if from an examination of the entire agreement the language of said paragraph contradicts other provisions. The contract in suit was intended to secure in the end the construction of a dry dock complete in all its parts, but it also included within its terms the construction of a new 6-foot sewer, not as an independent undertaking to be paid for separately, but out of the lump sum fixed by the terms of the contract for all the contractor was to do. The construction of the 6-foot sewer was just as much a part of the contract as any other work designed by its terms, and the obligations resting upon the contractor were just as great with reference thereto as they were to any other part of the work. The defendants made express provisions whereby the contractor assumed the task of removing all other obstructions from the site of the work. They might well have included the 6-foot sewer; not having done so, but expressly providing by exact and precise plans and specifications from which the contractor could not depart under peril of forfeiture and annulment of his contract, together with the withholding of his pay, it became incumbent upon defendants to provide for an adequate sewer. This proposition seems obvious. If the defendants had failed in the plans and specifications provided by them for the dry dock proper, and the contractor in following them could not have completed a work they were designed to accomplish, surely the responsibility for the failure would not rest upon him. The contractor is obligated to do what the plans and specifications direct him to do, and when he has done so in a good and workmanlike manner he has discharged his responsibility under the contract. If the plans and specifications are deficient, if they are inadequate and structurally wrong, it is the fault of the parties proposing them and not the contractor executing the same. The judgment and skill of the contractor is relied upon by the defendants to the extent only of executing the plans as they design them. Neither the contractor’s previous experience nor his general knowledge with reference to the character of the work is sought by the defendants in laying out the scope or detail of the same. He is expected to do the work in the manner and form prescribed by his employers, and if he fails, innumerable provisions of the very strictest character reserve ample protection for such failure to the defendants. In 6 Cyc., 63, the relationship between builder and architect employed by the building owner is most concisely stated as follows :

“ Where the builder performs his work strictly in conformity with the plans and specifications, he is not liable for defects in the work that are due to faulty structural requirements contained in such plans and specifications, and may recover under the contract; nor is he under any responsibility, in the event of the subsequent destruction of completed work, whether that destruction is caused by its own inherent weakness or from extraneous causes * *

In Bentley v. State, 73 Wis., 416, a case strikingly similar to this is exhaustively treated by the court. In that case the contractor engaged to construct two new wings to the State capitol building at Madison, Wis. The work was to be done in strict accord with plans and specifications prepared by an architect employed by a board of commissioners provided for in an act authorizing the contract. The contractor had partially completed his work; all that he had done had been inspected, accepted, and paid for, when suddenly the wall collapsed and fell. The commission thereafter employed additional architects, modified the plans and specifications, and the contractor finished in a satisfactory manner the work at the request of the State. It was shown that the plans and specifications were inefficient. The State declined to pay the contractor for the fallen wall. In giving the contractor a judgment for the full amount claimed, the court said:

“Under the contract it is very manifest that, had the plaintiffs departed from such plans and specifications and refused to follow the directions of the architect, there could have been no recovery for the building of the south wing, even had they in the first instance built it as they were finally directed by the architect to do. On the contrary, they could only recover by furnishing materials and doing the work according to such plans, specifications, and directions as they allege they did. The fall was not the result of inevitable accident, as in several cases cited by counsel.”

The case of Moore, Receiver, v. United States, 46 C. Cls., 139, is the nearest approach to an exact condition with the case at bar. In the Moore case a break occurred in a cofferdam constructed by the contractor under plans and specifications furnished him by the United States. In rendering judgment for the damages occasioned the contractor because of the break, the court said:

“Numerous cases to the same effect might be cited, and we believe the rule in cases of this character to be that where a contractor constructs a work under a contract which provides that it shall be done under the direction and supervision of an engineer appointed by and under the employ of the owner, and loss occurs to such contractor by reason of defects in the plans directed to be followed by such engineer, of a character which ordinary skill would have foreseen, the owner should pay for such loss.”

The defendants accepted a substantial judgment against them on this item of the claim, no appeal from the decision was taken, and the judgment was paid. It is true that in the Moore case the contractor reconstructed the cofferdam and finished his work, contenting himself with suit after the conclusion of the contract. In this case, however, the situation was the opposite. The contractor interposed no objection to a mere repair of the sewer; that in itself was comparatively insignificant. What he asked for, and what was refused him, was an assurance that the defendants would assume responsibility for damages to a continuing menace, an apparent, open, and notorious danger to property of great money value, a loss which might ruin him. In the Moore case the contractor could well repair the cofferdam and proceed, for it was an indispensable adjunct to doing the subsequent work prescribed by the contract. In this case the menace remained a source of danger to all the contractor might subsequently do, notwithstanding the fact that he might repair or rebuild the same. The defendants in this case not only declined to suggest a method or propose plans and specifications for averting the danger by reconstruction but positively asserted a liability upon the contractor not only for all that had happened but for all future loss as well.

In MacKnight Flintic Co. v. Mayor, 160 N. Y., 72, the court, in passing upon a suit to recover for work done according to plans and specifications furnished by the defendant, wherein a warranty appeared that the construction would produce certain water-tight floors, the court said: “The reasonable construction of the covenant under consideration is that the plaintiff should furnish the materials and do the work according to the plans and specifications, and thus make the floors water-tight, so far as the plans and specifications would permit.” The case is apropos, and the opinion collects and cites with discriminating care all the authorities upon the subject.

This principle of law is fully affirmed in Horgan v. Mayor, etc., 160 N. Y., 516; McRitchie v. City of Lake View, 30 Ills. Appellate, 393; Filbert v. City of Philadelphia, 181 Pa. State, 530; 1 Parsons on Contracts, 587.

The defendants assail the applicability of the above citations and predicate their criticism upon a difference in the relative situation of the parties, it being insisted that all the cases cited were suits to simply recover for work and labor done and materials furnished in accord with the contracts and specifications, conceding in the argument that an action could be maintained by the contractor in this case for the full cost of building the 6-foot sewer even after the break. It will be impossible to cite a case on all fours with the one in suit, and no such citation is to be found in the briefs of counsel. The issue must be determined by resort to fundamental principles of law abstracted from judicial determinations wherein the facts come within the range of similarity. If the contractor can recover the contract price for constructing the sewer, he must do so on the theory that he has complied with his contract, and it is difficult to perceive a distinction in law which rewards the contractor for his contract work and at the same time holds him responsible for damages occasioned by a defective design of the work he has admittedly performed in the only possible way he could do it and get pay therefor.

Again, it is insisted that the peculiar situation here removes this case from the rule above stated. The contractor not only assumed the risk to be anticipated from the location of the sewer, but from breakage and disaster as well; that he was given ample warning by the terms of the contract to investigate conditions for himself, and having assumed an obligation to do the work he must perform it, no matter how difficult, expensive, or dangerous it may be to complete his contract. Defendants’ contention would be forcible, if not unanswerable, if the disaster here complained of was the result of inevitable accident. The cause of the break in the 6-foot sewer is the pertinent inquiry in the first instance. The court concedes the contractor’s obligation to do the work irrespective of difficulties encountered, unless prevented from so doing by the act of God, the law, or the other party, and inevitable accident does not come within the exceptions. The findings disclose positively, and from them an irrefutable inference follows, that the break in the sewer was not an inevitable accident; it was, in fact, not an accident at all in the legal signification of the term. The condition of the sewerage system of the navy yard was known to the defendants’ officers to be seriously inefficient for years before the contract was let. Actual knowledge of this condition is brought directly home to Mr. Hollyday, the defendants’ officer in charge of this work. The rain and the tide which caused the overflow were not unusual in the sense of a flood; it was to be expected and not out of the ordinary for that season of the year. There was no engineering difficulty in the way of caring for the volume of water which burst the 6-foot sewer and nothing in the surroundings which could possibly divert the attention of a prudent man with knowledge from anticipating the events which did happen. The 5-foot dam in the 7-foot sewer, a factor to which we might well ascribe the cause for the whole disaster, does not appear to have been known to any of the parties directly concerned with this contract. Who put it there must be left to inference also. It was not shown on any of the plans, specifications, or blue prints exhibited to the contractor, and was located entirely outside the territorial limits prescribed by the defendants for the contractor’s work, and aside from connecting the 6-foot sewer with the 7-foot sewer the contractor had nothing to do therewith. The contractor himself visited the site of the dock and supplemented his personal visit by sending two of his representatives to do likewise. Neither the contractor nor his representatives was ever informed as to the inefficiency of the sewerage system, although the defendants knew of it. The defendants say that it was the duty of the contractor to see for himself whether he could perform the contract, and that in the exercise of common prudence he should have informed himself of all the particulars connected with the contract, and that where the means of knowledge is open and at hand and nothing is done to prevent him from using them, especially if he undertakes a personal examination, he can not be heard to complain. It is said that the Government did not guarantee the integrity of the sewers. In support of these contentions, among other cases cited, reliance is had upon the case of Simpson v. United States, 172 U. S., 372. There is a plain distinction between the Simpson case and this one. In the former case the contractor obligated himself by the terms of the contract to do the work which resulted so injuriously because of quicksand beneath the surface of the soil to be excavated, i. e., the Government selected the site and on this site he agreed to construct a dock. Whatever difficulties he encountered in the way of natural conditions were, of course, to be anticipated. The Government did not guarantee the character of the soil, and made no provisions in the contract with respect thereto, simply designating the same as available. In the case at bar the defendants specifically undertook the responsibility for diverting and rebuilding the 6-foot sewer and prescribed in detail the exact way in which the contractor should proceed. This case is more like the case of Sickels v. United States, 1 C. Cls., 214. The contractor here was not allowed to suggest the plan; the difficulty in the way of proceeding was obvious; the situation was apparent, and, as before observed, the defendants might have imposed the burden of obviating it upon the contractor, but they chose to assume it themselves.

Knowledge as a factor in fixing liability under contractual relations is not to be alone imputable to the contractor. The duty of both parties to the contract under a clause directing the contractor to visit the site and see for himself is mutual. The defendants can not withhold important information or mistakenly state what they do know and acquit themselves of liability under this precautionary clause usual in all Government contracts. Hollerbach v. United States, 233 U. S., 165; Christie et al. v. United States, 237 U. S., 234.

The findings show that the defendants did know of the condition of the sewers, for they disclosed the same to some bidders and withheld it from the plaintiff. In Wilson v. Wall, 6 Wall., 83, the Supreme Court, in speaking of constructive notice sought to be imputed to a bona fide purchaser of lands for value, cited approvingly from Sugden on Vendors the following quotation:

“ When a person has not actual notice he ought not to be treated as if he had notice unless the circumstances are such as enable the court to say not only that he might have acquired but also that he ought to have acquired it but for his gross negligence in the conduct of the business in question. The question, then, when it is sought to affect a purchaser with constructive notice is not whether he had the means of obtaining and might by prudent caution have obtained the knowledge in question, but whether not obtaining was an act of gross or culpable negligence.”

What was there upon the site visible to inspection and open to investigation to charge the contractor with knowledge of an abnormal condition with respect to the sewers or suggest to him the pertinency of public inquiry in reference thereto? The site itself was more or less covered by buildings, which the contractor was to remove. Practically every description of interference beneath the surface of the earth was to be cared for by the contractor himself upon his responsibility except the building of the 6-foot sewer. The sewers were beneath the ground, there was absolutely nothing apparent, and nothing except an immediate occurrence of a rain similar to the one which did occur to even remotely suggest the subsequent disaster. All these interferences suggested, of course, difficulties in the skill and workmanship required to remove them and the cost thereof, but nothing as to the inherent structural weakness of a sewer the defendants would only allow him to remove and construct in a fixed and certain way.

What contractor would have gone among the native population making inquiry as to the internal capacity of sewers in the face of these express provisions in his contract, viz:

“ 5. Control of work.—The United States, by its civil engineer in charge of the work or other authorized representative, shall at all times have full control and direction of the work under the contract, and all questions, disputes, or differences as to any part or detail thereof shall be decided by such civil engineer or representative, subject only to appeal to the Chief of the Bureau of Yards and Docks.
****❖&#
u 159. Back fill for sewer.—No back filling shall be deposited upon the sewer until after the coat of cement mortar has been allowed twelve hours in which to set. In depositing back fill in the sewer trench care shall be taken not to injure this coating in any way. No material shall be dumped from buckets or otherwise directly over the arch except as directed by the civil engineer in charge. Ashes and cinders, together with dry earth and loam from the line of the trench, may be used for back filling. It is believed that such material may be obtained in the vicinity free of cost to the contractor, but the Government does not assume any responsibility in connection therewith.
ijs # # # if: *
SEWER.
“ 196. Sewer.—The intercepting sewer in Dock Street, which now crosses the dock site, shall be diverted around the head of the dry dock, as shown on sheet 3. The new sewer shall have a uniform grade. Should either of the manholes now in the sewer be tom out in rebuilding it, they shall be rebuilt in the new sewer in a manner to correspond with the present manholes. All transverse sewers and drains that now empty into the present sewer on Dock Street and which are disturbed shall be rebuilt so as to empty into the new sewer, as directed. Those portions of streets torn up for constructing the sewer shall be refilled and rammed, as specified herein.
“ 197. Platform.—The piles shall be capped transversely with 8 by 12 inch sound spruce timbers, secured to each pile by one f by 20 inch galvanized steel driftbolt. On these «ball be laid 4 by 12 inch spruce planking, close together, and fastened to each cross cap by two 9-inch wharf spikes to each plank.
“198. Curves.—Whenever the sewer deviates from a straight line such deviations shall be true arcs of circles. The templets for the inverts shall be so arranged and the centers so constructed as to conform accurately to the given radii.”
*******

The court can not indulge a presumption, in the face of numerous decisions to the contrary, that the defendants in embarking on a great and expensive enterprise like the one here involved designed an important and integral part of the great work with careless disregard of the structural capacity of its plans and specifications, leaving to a contractor the ascertainment of latent defects by asking for information he has every reason to believe the defendants knew and considered. Is nothing to be taken for granted by the contractor from the terms of an agreement that designates in minute particulars what he shall do and how it shall be done? Are Government plans and specifications prepared by its efficient and experienced engineering corps to be treated as so generally precarious that they must be substantiated as to good or bad engineering by inquiries as to local atmospheric conditions and rainfall? Is gross carelessness and imprudence to be charged against a contractor in his dealings with the United States because he accepts without inquiry the engineering skill and ability of Government engineers ? Who was in the best position to know of local conditions—the defendants or the plaintiff? There can be but one answer. Who was at fault in the premises? The defendants knew, as before observed, and while perhaps not intentionally withholding the knowledge, the effect is the same. The dam in the 7-foot sewer, like the sewer itself, was on Government property, with which the plaintiff had but temporary concern, and that was to attach the 6-foot sewer to the 7-foot one. It was placed there for the benefit of Government interests, viz, to preserve healthful conditions near Wallabout Basin. There was no way open for the plaintiff to detect its presence unless called upon to do absurd thing's. It was carelessly omitted from any record of the sewerage system, and its entire absence from the records of the general sewerage system of the city of Brooklyn sustains an inference that it could not have been the work of said city.

As Mr. Justice Day said in the Hollerbach case, sufra, p. 172:

“ We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If tbe Government wished to leave the matter open to independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.”

No loss followed from the mere location of the sewer; it was properly constructed and supported; the record finds the loss ascribable wholly to inherent defects in engineering, inefficient plans and design, a fact fully corroborated by the subsequent conduct of the defendants in caring for this same sewer. Sundstrom v. State of New York, 213 N. Y., 68.

The defendants by their plans and specifications warranted their efficiency and the contractor had a right to rely upon them as correct representations of good and sufficient engineering skill and ability without an independent investigation of previous local conditions which might have warned him otherwise. He can not be held to have assumed the risk in any event for an obstruction in a sewer entirely outside the lines of his contract work, and which he had no means of discovering in the ordinary discharge of his contractual duty. The defendants were bound to furnish him workable plans to accomplish the desired end. They were likewise bound to furnish plans that allowed him to prosecute his work without loss, damage, or delay due to their mistake; and if by reason of their error the contractor could not proceed without the danger of not only loss of all his profits, but destruction of his and Government property as well, he may, upon the defendants’ absolute refusal to correct the same or refusal to assume responsibility therefor, abandon the contract and recover his loss.

It is conceded by the defendants that a breach of contract by them entitles the claimant to a judgment, and that if the bursting of the sewer and their subsequent conduct in reference thereto is found by the court to constitute a breach, liability attaches.

In Anvil Mining Co. v. Humble, 158 U. S., 540, Mr. Justice Brewer, speaking for the court, said:

“ It is insisted, and authorities are cited in support thereof, that a party can not rescind a contract and at the same time recover damages for his nonperformance. But no such proposition as that is contained in that instruction. It only lays down the rule, and it lays that down correctly, which obtains when there is a breach of a contract. Whenever one party thereto is guilty of such a breach as is here attributed to the defendant the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform; in other words, he may abandon it and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrongdoing of the other party has brought about. Generally speaking, it is true that when a contract is not performed the party who is guilty of the first breach is the one upon whom rests all the liability for the nonperformance. A party who engages to do work has a right to proceed free from any let or hindrance of the other party, and if such other party interferes, hinders, and prevents the doing of the work to such an extent as to render its performance difficult and largely diminish the profits, the first may treat the contract as broken, and is not bound to proceed under the added burdens and increased expense. It may stop and sue for the damages which it has sustained by reason of the nonperformance which the other has caused.”

We have set forth the above quotation in extenso not alone because it is a most just and salutary exposition of the law, but because of the applicability of the language to the case at bar. The bursting of the 6-foot sewer occurred on August 7, 1906; the claimant immediately gave notice and preferred his claim under the contract; a board was convened, its report going alone to the cost of repairing the sewer, and it was not until November 14, 1907, more than a year after the break, that the defendants decided to annul the contract. The claimant advocated persistently for a decision as to responsibility for damages; a mere repair of the sewer brought no relief; the menace remained if a brick sewer was to remain in close proximity to his work upon which he had expended large sums of money and near which he had placed a costly plant. The defendants declined to submit plans and specifications structurally sufficient to care for the broken sewer; under the contract then the contractor could do no more than repair the old brick sewer, he was absolutely without authority to rebuild the bursted sewer in the manner the defendants subsequently constructed it, to the advantage and benefit of his successors. It is no answer to this contention to say that sunshine and drought might have succeeded the rain and tides and no further trouble occurred and the contractor finished his work. In fact, the contrary presumption obtains; rains did fall and storms come. The damage had been done; a physical demonstration of the inefficiency of the defendants’ plans and specifications was before the contractor; the defendants knew it as well as he, and yet in the face of a situation so obviously perilous, a condition that made the execution of the contract impossible without the loss of all profits, no attempt was made by the defendants to correct this error and thereby enable the contractor to proceed in safety. To say that the contractor might have gone on and finished his contract work is the assertion of a conjecture which the defendants themselves by their subsequent conduct negative and deny, for just as expeditiously as they possibly could at their own expense they made impossible a recurrence of the disaster by changing the design in both material and workmanship for the construction of this sewer, thus again demonstrating that it was not impossible engineering to care for this condition in the first instance. The old brick sewer was torn out, its exposed ends made water-tight, and the contractor furnished a safe place to perform his contract work. Hoe v. Sanborn, 21 N. Y., 552.

Surely this contract is not unilateral, imposing upon the contractor not alone the physical duty of skillfully putting together the material in the way specified by the defendants, but the greater responsibility of warranting that this way will produce the contemplated result without loss, let, or hindrance. The defendants can not escape all responsibility for their part of the undertaking. No matter how precise the language of the scrivener, it has been universally held by the courts that the full measure of implied warranty attends the written undertaking and weighs with equality the reciprocal rights of the parties to the agreement, though it may not be found in the positive language of the written paper. A warranty does not hav.e to be in every instance expressed in the contract, and the fact that methods are provided for changes in the contract, changes designed to produce with exactness the structural identity required by the plans and specifications, is a most potent argument in favor of the principle that the contractor is bound only to execute the plans of the defendants as he finds them, the defendants alone having the right to make the changes. The reason for the insertion of such a clause in the contract is a distinct recognition by the defendants that by their plans and specifications they impliedly warrant the structural sufficiency of the same and can not change, alter, or amend them unless the right to do so is reserved in the contract. The change, alteration, or amendment though made during the course of performance does not change the contractual rights of the parties except as to increased or decreased compensation. It does not affect the question of an implied warranty as to engineering sufficiency of the plans and specifications one way or the other. If liability attaches in the first instance it is equally potent under the changed condition.

We are unable to see any application of section 3744, Revised Statutes, to this case. The contract was in writing and met the requirement of the statute. The liability, if any exists, grows out of the written contract. It is just as much a part of the undertaking as any other feature of the work. It would be a rather novel proceeding to hold that the parties to this agreement, both claimant and defendant, could only be charged with such legal responsibility as the exact and limited language óf the contract expressly states. Contractual relations bring certain legal responsibilities—some ascertainable from the language used, others which the law implies from the relationship of the parties—and if the written instrument meets the requirements of a statute intended to prevent fraud, the contract is enforceable in law in all its legal aspects. We need not emphasize this assertion by a citation of authorities, for few, if any, contracts have ever been construed by the courts wherein the language used has been held to limit actions for their breach to a mere ascertainment of the meaning of the words. In this case there follows from the contract an implied obligation assumed by the contractor to do the contract work in a skillful and workmanlike manner; another that he assumes all risk for damages occasioned by any faulty construction due to his erroneous interpretation of the plans or unskillful workmanship. These obligations may or may not be expressed in the contract. The responsibility follows regardless of any express stipulation in the agreement, and the contractor could not escape it by a defense predicated upon section 3744, Revised Statutes.

The question of the sufficiency of the pleadings in this case was raised in this court by demurrer, and after mature deliberation the demurrer was overruled and the parties put upon their proof. This is not a case of attempted escape from difficulties attending the performance of a contract. These, of course, the contractor assumed and must abide his obligations. It is a case where the circumstances of the transaction disclose a condition ascribable to the defendants’ conduct, a condition brought about by the defendants which did not create difficulties but rendered the performance of the contract impossible unless the contractor would willingly assume immeasurable responsibilities for damages, a risk and responsibility not imposed upon him by the contract or fairly deducible from its express terms.

A suggestion of a defense was predicated upon section 21 of the specifications, entitled “ Contractor’s responsibility.” We do not believe it necessary to prolong the discussion of the case by adverting thereto. The clause has no application to a loss due entirely to the fault of the defendants. The wording of the stipulation limits its applicability to loss occasioned by some default of the contractor and is in no way involved in this case. The defendants do not emphasize the contention; in fact, concede, as before observed, liability in the event of a breach of the contract.

The damages recoverable follow the principles laid down in United States v. Behan, 110 U. S., 338. The record does not sustain a judgment for the entire sum of profits claimed in the petition. The court, sitting as a jury, from the whole record is convinced that the plaintiff under his contract could have completed the work and earned profits. Taking the testimony as a whole, we believe the contractor is entitled to $60,000 profits.

The ascertainment of the figures appearing in Finding XU upon which we predicate the amount of judgment herein was made comparatively simple by the report of the naval board appointed by the defendants, and bearing date May 29,1907. This board, composed of competent engineers, made a detailed report covering the value of practically each and every item, including material on hand, in place, and all the tools and machinery necessarily employed upon the work. The court, in reconciling the adverse contentions respecting the amount involved, adopted this report as the best evidence of the facts stated therein; it eminates from an impartial tribunal composed of men in every way qualified to speak upon the subject; it preceded the annulment of the contract; claimant was represented, and the board confined its efforts alone to the ascertainment of values irrespective of the contentions of the parties respecting their rights under the contract. Taking the amounts found by the board and comparing them with the sums testified to by the claimant’s bookkeeper will forcibly demonstrate the accuracy of the results reached in Finding XII as to profits allowable. The claimant asserts that he actually expended in and about the performance of his contract up to date of annulment the sum of $274,597.88. In summing up this total many items of expense are included not properly chargeable to the defendants. Expenses incident to the attendance of witnesses and appearance of attorneys before the naval board are outside the ligitimate zone of recovery for the breach of the contract. The total cost of the plant necessary to perform the contract work is also included, and no account whatever is taken of its necessary depreciation or salvage value had the claimant been permitted to complete the contract. A plant which the board found to be reasonably worth the sum of $124,551.63 at the time of the claimed breach, and which amount is already included in the judgment of the court, would beyond question, as the record discloses, be worth at the completion of the contract at least 40 or 50 per cent of its value, thus saving to the claimant upon his total outlay the sum of $62.275.81, or about one-fourth of the amount heretofore alleged to have been expended, and when this sum is deducted from the alleged total outlay it will confirm rather than dispute the accuracy of the court’s finding respecting profits and approximately harmonize the result as to the conflicting claims.

The rule as to damages taken from the Behan ease confines the judgment in that case to the reasonable expenditures made by claimant in the performance of the contract up to the time of the breach. In ascertaining this amount from a conflict in the testimony the court must look to the record as a whole, making its deductions in the form of a special verdict after deliberative consideration of all the testimony in the record. In the allowance of profits the court has followed the whole line of authorities cited with approval in the Behan ease. The claimant goes for profits lost as well as for sums expended. As we understand the rule, the profits recoverable are to be determined by the difference between the cost of performance and the contract price, and this must be shown with sufficient certainty to remove the contention from the domain of speculation or remoteness. The defendants challenge the possibility of anticipated gains by testimony in the main from the officers and employees of the succeeding contractors. In this respect they are at an apparent disadvantage by reason of their conduct subsequent to the annulment of the contract. The contract work which the contractor here involved obligated himself to perform was never performed by him or any other contractor. The testimony offered, necessarily hypothetical, is rested upon a false basis. The cost of a proceeding involving an undertaking enlarged at least to more than twice the work required of the claimant, and for which the defendants paid over two millions of dollars, is incomparable to the claimant’s work under his contract. It affords no just criterion by which to judge the possibilities of gain which the claimant, an experienced contractor, undoubtedly contemplated in entering into his contract, which indeed was materially less in extent and comparatively insignificant in price when compared with the final work and gross expenditure. It is sedulously advanced, however, that claimant’s own figures of expenditure, when viewed with reference to the amount of performance accomplished at the time of the breach, absolutely preclude the possibility of gain. The record discloses, and the testimony concedes the fact, that the preliminary work preceding excavation and the work of excavating itself is the most expensive portion of the contractor’s performance. This particular feature of dry-dock construction involves the greatest hazard and expense. It would be manifestly unjust to find that the claimant with respect to this work was not in a favorable situation. On the contrary, except for the sudden and unexpected break in the 6-foot sewer, the work was progressing under circumstances comparatively free from unusual obstacles and in a manner indicating its expeditious completion without unusual expense. In fixing the total amount of profits allowable we have given full consideration to the “circumstances and subject matter of the contract.” Every item of expense viewed from every angle of competency has been deliberately charged to the contractor’s cost of performance, in addition to the sums set forth in Finding XII, his relief from the cares and risks incident to full performance have been considered, and from the whole record, taking into account the testimony of the witnesses, favorable and unfavorable, the allowance is proven to the satisfaction of the court. The claimant was entitled under the law to complete his contract; he has proven he could have completed it at a gain well within what the record indisputably discloses as a fair and reasonable profit under all the circumstances of the undertaking.

Judgment is awarded the plaintiff under Finding XII for $141,180.86. It is so ordered.

Barney, Judge, and Atkinson, Judge, concur.

Downey, Judge,

not having heard this case, took no part in the decision thereof.

Campbell, Chief Justice,

dissenting:

As suggested in the majority opinion, all of the members of the court did not agree upon the findings of fact. The discussion of some objections to the findings will appear without a detailed reference to them, but the last paragraph of Finding X was dissented from because it is manifestly a conclusion and its pertinency to the issues in this case is denied, notwithstanding the explanation in the opinion that “the paragraph is limited exclusively to a fact which goes alone to the question of the right to cease work after the break—the right to abandon the contract—and is of paramount importance in this respect.” Whether the recovery, authorized by the court, rests upon “the right to abandon the contract” or the supposed warranty by the defendants of the plans and specification, must be determined from the opinion itself, but because I dissent from the reasoning and conclusions of the court as well as from some of the findings, it becomes necessary to state more at length my views of the entire case.

The material facts necessary to a full understanding of the questions involved are simple, and practically undisputed.

Advertisement having been made for proposals “ for the construction by contract of a dry dock of the general dimensions, and to be located at said navy yard at the place shown by the plans and specifications therein referred to,” the plaintiff, as the successful bidder, entered into a contract to construct and complete said dry dock according to the plans and specifications attached to the contract and with modifications as contemplated by paragraph 268. A copy of the contract is attached to the petition.

The site of the proposed dry dock having been selected at a place in the navy yard which had upon it buildings and structures, pipes and tracks, and, among other things, what is described in paragraph 196 of the specification as “the intercepting sewer in Dock Street which now crosses the dock site,” the plans and specifications provided for the removal of said structures and the diversion of the said sewer, which will hereafter be called the 6-foot sewer, “ around the head of the dry dock, as shown on sheet 3.” The evident purpose in this removal of structures and diversion of the 6-foot sewer was to clear the dry-dock site of impediments to the construction at said place of the dry dock. It will be noted here that paragraph 196, referring to the 6-foot sewer, is under the general heading in the plans of “ Temporary works and preparation of site.” It was accordingly provided that the contractor should divert the sewer, and map 3 showed the location of the diverted section of it. There was no change to be made in its size or construction, brick being used in the latter as they were in the balance of the sewer. “ The construction of the intercepting sewer and the removal of those structures to be torn down ” were to be completed within six months from the date of the contract, and the entire work was required to be completed within 42 months from the date of the contract.

The said structures were removed, the 6-foot sewer was diverted in accordance with said map 3 within the stipulated time, and the sewer work was accepted and paid for by the defendants. The plaintiff then proceeded with the work of constructing the dry dock. On the 7th day of August, 1907, a year after the said diversion of the 6-foot sewer, “ a sudden and heavy downpour of rain occurred, and coincident with it was a high tide, which forced water a considerable distance up the sewer to a depth of 2 feet or more,” and the 6-foot sewer cracked in the part of it which had been diverted, and through the cracks water flowed into the dry-dock prism. Finding IX states that said break was caused by internal pressure of water from the sudden and heavy downpour of rain in conjunction with said existing high tide, which the sewer was not of sufficient size to carry away. This 7-foot sewer was intercepted by the 6-foot sewer a short distance from the dry-dock site, and both of them were parts of and main outlets to the Brooklyn sewer system. Some years prior to said contract a dam or obstruction 5 feet high had been placed in the 7-foot sewer, which diminished its capacity and increased the burden on the 6-foot sewer. The existence of said dam was not known to any of the parties concerned with said contract or plans nor to the superintendent of sewers of the city of Brooklyn. Said sewers had overflowed in the past “ at sundry times as the result of sudden and heavy downpours of rain” and flooded portions of the navy yard and contiguous portions of said city. These conditions of overflow were matters of common knowledge in the said neighborhood and were known to defendants’ officer in charge, as well as to said superintendent of sewers.

Though bidders were admonished by the plans and specifications, sections 271 and 274 above, to visit the site and inform themselves thoroughly of the actual conditions and requirements before submitting proposals, and that application should be made to the chief of the bureau or commandant at said navy yard for any further information needed by bidders, the plaintiff did not call upon either of said officers, but as shown by Finding VII, he visited the site of the proposed work and made a superficial examination thereof. The finding also states that he sent one or two representatives to the civil engineer’s office at the navy yard to obtain what information they could concerning the conditions and probable cost of the work. Whether these representatives actually called upon said officer or made any inquiries “concerning the conditions” is left to inference. There is no proof that they did so. It is entirely clear that the plaintiff personally did not see any of the said officers or seek information relative to the conditions, present or past, surrounding the sewers, because when questioned while he was testifying he not only answered, “ I believe I did make a superficial examination of the site. The site was pretty well covered with buildings and very little could have been determined by an examination of the site,” but also that he knew there was a seven-foot sewer running down on the east side of the dock and a transverse six-foot sewer crossing it near the head of the dock, that he had no information as to their overflows, and that he did not make any inquiries to find out what were the capacity and results of these sewers, because, he says, “ that would have been checking up the engineering of the work, and I assume that the engineering of the work had been properly done.” The plaintiff thus ignored the reasonable requirement of paragraph 274 of the plans to seek information before making his bid, as well as the provisions of paragraph 25, requiring the contractor to “check all plans furnished him.” In view of these facts and of the language of Finding VI that plaintiff was not informed by the officer in charge that the sewers had overflowed and that some other bidders were so informed, it is manifest that the just inference from the facts is that some bidders got information which the plaintiff did not get because they sought it and gave opportunity to the officer in charge to communicate it, while the plaintiff neither sought it nor gave such opportunity to the officer. “ On the 7th day of August, 1906, a sudden and heavy downpour of rain occurred and coincident with it was a high tide, which forced water a considerable distance up the sewer to a depth of 2 feet or more; and during that period the sewers in the vicinity of the navy yard overflowed, and the said 6-foot sewer broke in the part constructed by the claimant, causing longitudinal cracks in three places in its top for a total length of 35 feet at a point opposite the head of the dry dock and about 50 feet therefrom, through which cracks water flowed into the excavation for the dry dock.”

When the said break in the sewer occurred the plaintiff had been working on the dry-dock prism for a year without any interference from the sewer.

Immediately after said break the plaintiff addressed a communication to the officer in charge relative to the same, “stating his purpose to suspend operations and not to resume until the Government had made provision for caring for or assuming the responsibility for the damage that had been or might be occasioned by the said sewer, its insufficient capacity, and location” (Finding X). This was on August 10, 1906, and the annullment of the contract did not occur until November, 1907, some 15 months later. In the meantime work under the contract was suspended. It appears that each party acted upon legal advice. On January 14, 1907, and again on January 25, the Secretary of the Navy addressed to plaintiff the communications mentioned in Finding X. In the first of these letters the Secretary, inclosing a copy of the opinion, said:

“ In view of the Attorney General’s opinion the department holds you responsible for the completion of the work required by your contract, and it is accordingly requested that you proceed without further delay with the fulfillment of your operations in the premises. If you conclude, as your attorney said you probably would, not to proceed with the work, it is requested that you notify the department immediately to that effect.”

Under date of January 29, 1907, the plaintiff replied, and, besides stating his unwillingness to resume work, said:

“ You must recognize that the main point at issue is not as to who is responsible for what has occurred, but what is to be done for the future. Unquestionably a grave blunder has been made in the design of this sewer, and again in locating it where it is around the head of this dry-dock structure within the line of the natural slope of the excavation. Such conditions render it impossible for me to comply with your demand that I proceed with the work without modification of the sewer plan.”

The matter did not stop here, but thereafter a board of investigation was appointed, as stated in Finding X. This board convened on March 30 and “heard many witnesses, including those called by the claimant, who appeared before the board and was represented by counsel during its investigation. The board made its report, to which the contractor filed a number of exceptions” (Finding X). The board’s report reviewed the whole matter relative to the sewer and a drainpipe complained of and set forth their conclusions, to which exceptions were filed by the plaintiff and considered. On June 13, 1907, the Secretary again requested plaintiff to resume operations under the contract without further delay. More correspondence ensued, and on November 14 the contract was annulled under the provisions of the contract. The plaintiff did not demand the repair of the sewer. He did not predicate his refusal to resume work upon “ its then condition,” but he demanded a change in its “ design and location,” an assumption by the Government of all responsibility for the damages that had been or might be “ occasioned by the said sewer, its insufficient capacity, and location.” In short, he demanded a new contract. At no time was the issue between the parties reduced to the question of which of them should repair the sewer. The real issue presented by the plaintiff was as has been stated, and while said Finding X may show it, the fact may be emphasized by the admission of plaintiff when testifying in his own interest before said board, “ I believe to-day that the menace from that sewer is not from internal pressure; I believe that the sewer can he repaired or the internal pressure removed, and in either case that the sewer itself is all right, but I am convinced in my own mind that the foundation has been damaged,” as wrell as by the said statement in his letter of January 29. An estimate made at the instance of said board (Finding X) showed that to restore the sewer in as good condition as it was when completed and accepted would cost $3,875, and it is not conceivable that the expenditure of this or a greater sum would have deterred the plaintiff or the defendants if this had been the difference between them.

Considering the magnitude of his claims put in jeopardy, the profits he stood to lose, and the damages he now claims to have suffered, the cause of his failure to resume work can not be found in the fact of the break or the alleged internal pressure of the sewer or the failure of the Government to repair it. He had made a contract to construct the dry dock for a stipulated sum, with the sewer as constructed in the position it was. True, he was to divert said section of it, and did so satisfactorily, but when he bid upon said work, and preliminary to his bid examined the plans and specification, he knew exactly where the diverted section of the sewer was to be located, its size, its construction of brick; that it was merely a segment of the sewer which drained a considerable area and was one of the outlets of the sewerage system of Brooklyn. As a bidder he must be presumed to have understood the plans, Clark v. Pope, 70 Ill., 128, and he could visualize, so to speak, the sewer in its new location. The case is not different from what it would be if the sewer had been diverted by some other contractor or had originally, before the contract was made, been located at that place. And so plain is this proposition that counsel for plaintiff argued and state on their brief in this court that the claimant assumed the risk of said location of said sewer. Such being the case, he manifestly can not complain of “the Joss ascribable wholly to inherent defects in engineering, inefficient plans and designs.” These, if they existed, should have been considered before he made his contract, and they afford him no cause of action based upon an abandonment of his contract. The plaintiff’s cessation of all work under the contract and his refusal during 15 months thereafter to resume work can not he predicated upon the theory that defendants would not repair the broken sewer, but should be ascribed either to his realization that he had not protected himself, as he later thought he should have done, in his contract, or that his bid had been too low. The latter seems to me not improbable, because the consideration of his contract was $757,800, which included the expense of diverting the sewer and removing buildings from the proposed site. He had consumed 18 months out of the 42 months stipulated as the time for completion, one year of this being used in excavation alone. The findings are silent as to the amount of work actually done when plaintiff suspended operations, but I think the record shows that he had not done one-fourth of the work required. The plaintiff’s bookkeeper, testifying from his books of original entry, stated that there had been expended by plaintiff on account of the contract for said dry dock, exclusive of interest, the sum of $274,597.88. The plaintiff in his requests for findings asks the court to find the sum expended to be $274,597.88, exclusive of interest. The expenditure shows that with less than 25 per cent of the work done the plaintiff had expended nearly 85 per cent of his contract price. But when the work was relet under the same contract the lowest bidder’s proposal was to complete the work for $764,000, “under practically the same conditions, in so far as sewers were concerned, as prevailed at the time of the cancellation of claimant’s contract; ” and in addition to said sum the new contractor was to have the use of plaintiff’s plant and materials, amounting in value, as shown by Finding XII, to $97,308.73, allowing nothing for the item of sheet piling. If the new contractor had not the use of these materials and plant, his bid would have been correspondingly increased. As it was, the new contractor was, in effect, to receive the sum of said two items, making $861,308.73 to complete work upon which one year’s time had been consumed and over $220,000 had been expended by plaintiff, with at least three-fourths of the work remaining to be done. On this basis the later contractor would originally have bid approximately $1,000,000 to do work which the plaintiff undertook to do for $757,800, or nearly $250,000 less. The finding is silent as to whether any officer connected with or making said plans and specification or contract had any knowledge or information relative to said overflows. Any knowledge imputable to them because of the general notoriety in the vicinity of the navy yard as to the fact of overflows of the sewers would be equally chargeable by the same fact to plaintiff. And it may be here said that said overflows had occurred at rare intervals. So far as the record discloses none of them had occurred during the 18 months in which plaintiff was at work, and hence the statement of plaintiff’s counsel on his brief: “ Therefore it could not have been a matter of common knowledge that they had a habit of frequently overflowing, as it was not the fact.” The findings show that none of the parties knew of the dam in the 7-foot sewer. The rule which charges the principal with the knowledge or notice his agent may have is not alike applicable to public and private agents. Hawkins v. United States, 96 U. S., 689, 691. Judge Lurton, in a case involving fraudulent representations by an agent, declared the rule to be that notice of facts to an agent is constructive notice to his principal only when it comes to the agent while concerned for the principal and in the course of the very transaction, or so near before it that the agent must be presumed to recollect it. Alger v. Keith, 105 Fed., 105, 117.

Where, then, is there any basis for a recovery by plaintiff of damages, including profits, as upon a prevention by defendants of performance? He abandoned his work and refused to proceed. His right to abandon the contract needs a more substantial basis than the refusal of the defendants to accede to his demand. He examined and studied the plans and specifications; he knew the location of the diverted section of the sewer; he had means of knowledge, which is often equivalent to knowledge itself, of the occasional overfipws of said sewers. Information, if called for, could have been had from the officer in charge or from the city engineer or anyone living in the vicinity. He made a bid to do the work, and upon its acceptance entered into a contract to build and complete a dry dock. The majority opinion declares that “ no loss followed the mere location of the sewer; it was properly constructed and supported; the record finds the loss ascribable wholly to inherent defects in engineering, inefficient plans and design, a fact wholly corroborated by the subsequent contract of the defendants in caring for this same sewer,” and cites a number of cases, which will be considered later. The question of location, construction, and support being thus removed, the opinion holds that “the defendants by their plans and specifications warranted their efficiency ” and that “ the contractor had a right to rely upon them as correct representations of good and sufficient engineering skill and ability without an independent investigation of previous local conditions which might have warned him otherwise.” This view is open to serious question because of sections 271 and 274 of the specifications requiring the plaintiff to investigate and seek information as well as because of the general rule of law affecting contractors. Clark v. Pope, 70 Ill., 128, 133; Simpson's ease, 172 U. S., 372. The court holds that the defendants are liable in this case upon an implied warranty, the “inherent defects in engineering, inefficient plans and design ” constituting the breach. These defects antedated the contract, and the general rule is that all prior negotiations and agreements are merged in the written contract. “We look in vain for any statement or agreement, or even intimation, that any warranty, express or implied, in favor of the contractor was entered into ” (Simpson’s case, 172 U. S., 380) in that case concerning the character of the underlying soil or in this case concerning the design or plans. “And when the writing itself upon its face is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing.” Seitz v. Brewers’ Co., 141 U. S., 510, 517. An implied warranty can not be raised up where there is an express contract. Simpson’s case, 172 U. S., 372, 379, where it is said: “ Considering the facts above stated, it is at once apparent that the claim against the United States can only be allowed upon the theory that it is sustained by the written contract, since if it be not thereby sanctioned it is devoid of legal foundation. The rule by which parties to a written contract are bound by its terms, and which holds that they can not be heard to vary by parol its express and unambiguous stipulations, or impair the obligations which the contract engenders, by reference to the negotiations which preceded the making of the contract, or by urging that the pecuniary result which the contract has produced has not come up to the expectations of one or both of the parties, is too elementary to require anything but statement.” See also Brawley v. United States, 96 U. S., 168, 173.

The rule thus announced is peculiarly applicable to certain Government contracts which by statute (sec. 3744,11. S.) are required to be in writing. That statute is mandatory in its requirements, and its policy excludes the idea that an implied warranty not within the implications of the language used in the express contract can be charged against the Government in the Navy Department’s engagements. Sanger’s case, 40 C. Cls., 47; South Boston Iron Co. case, 118 U. S., 37; St. Louis Hay & Grain Co. case, 191 U. S., 159; Monroe case, 184 U. S., 524.

In Sanger’s case, 40 C. Cls., 47, 69, the court considered a contract in which some changes in the plans had been made prior to its execution, and considered also section 3744, Devised Statutes, relative to the necessity for certain contracts to be in writing; and, speaking through Judge Peelle, said: “Hence the liability of the United States must be determined, not by the preliminary negotiations between the parties, but by the written contract into which the preliminary negotiations, including the change in the plans and the reduction of the quantity of stone, were merged,” citing Simpson’s case, supra; Brawley’s case, 96 U. S., 168, 173, and other cases.

But what are the inherent defects in the plans or designs? A properly located, constructed, and supported sewer is not bad engineering, and the bursting of a sewer under unusual conditions would not support the contention that it was defectively designed. The findings show that the sewer broke from internal pressure superinduced by a heavy downpour of rain and a rising tide. It hence follows that the warranty is made to extend to the strength or size of the sewer, the plans and design being regarded as faulty in that they did not “ provide for an adequate sewer ”—one large enough or strong enough to have resisted the forces which caused it to crack. But there was no such warranty stated in the contract ; and if there was a duty resting upon the defendants to have planned otherwise than they did, it could not be enforced in an action ex contractu and, therefore, could not be enforceable in this court at all. If the 5-foot dam in the 7-foot sewer “ be a factor to which we might well ascribe the cause for the whole disaster” and was unknown to any of the parties, its presence would not constitute a cause of action.

The cases cited by the court do not, it seems to me, sustain the conclusion reached in the court’s opinion. They will be referred to in their order: The Sickles case, 1 C. Cls., 214, is cited, and the rule of damages applied there has not been applied here. The assurance given in that case to the contractor that “ the bottom of the knoll consisted of hard sand ” when it developed to be soft mud, and the limited responsibility imposed by the terms of his contract, relieved the contractor in that case from performing an undertaking which both parties practically abandoned because it was found to be a “physical impossibility.” He was allowed to receive the value of his materials assembled and used for the purposes of the undertaking, but no profits were allowed.

Bentley v. State, 73 Wis., 416, is said to be a case strikingly like this, but a radical difference exists between the two cases in that Bentley fully performed his contract and Spearin positively refused to perform at all. The one relied upon an executed contract; the other sues upon an executory contract. In the Bentley case the contractor, working under direction of the State’s architect and conforming to the plans provided by the architect, built a wall which fell. Then, proceeding under a new architect and new plans, he replaced ,the fallen wall and completed the entire structure. He sued afterwards for the loss incident to the falling of the wall. The case went to the Supreme Court of Wisconsin upon the ruling on a demurrer to the complaint, and its allegations were, of course, taken as true. “According to the allegations of the complaint, it (the fall) was in consequence of insufficient and defective plans and specifications for a building of that magnitude.” The plaintiff here built the diverted section of the sewer according to plans furnished him, and if, when the cracks appeared, he had repaired it and were here claiming the expense of the repairs, some similarity to the Bentley case might appear. True, the Bentley case seems to hold that the State guaranteed the plans, but that holding was not at all necessary to the conclusion reached, because under the averments of the complaint the contractor had to comply with the plans and the architect’s directions as well, and as he did both it was declared by the court that “ what was thus done or omitted to be done by the architect must be deemed to have been done or omitted by the State.” It can not be affirmed that if when the wall fell Bentley had abandoned the work that court would have authorized a recovery upon his unexecuted contract, but it can be said that the views expressed as to the relative positions of the architect and plaintiff as “ an ordinary mechanic ” are not in harmony with other decisions, notably with Clark v. Pope, 70 Ill., 128, cited in the Bentley case, wherein the Illinois court says (p. 133) :

“ The fact that he contracted to construct a building after certain plans, drawings, and specifications implies that he does understand them. The undertaking itself is upon the condition that he has that skill that will enable him to comprehend them, and the law will not permit him to escape liability on the ground he has exercised ordinary care and skill in that regard.”

The other cases cited—MacKnight Flintic Stone Co. v. Mayor, 160 N. Y., 72; Horgan v. Mayor, Ib., 516; McRitchie v. City, 30 Ill. App., 393; and Filbert v. City, 181 Pa. St., 530—are likewise inapplicable. The New York case is declared in the opinion therein to be “ a similar case ” to the Filbert case, 181 Pa. St., and in the latter it is made quite plain that the case turned upon the construction of the contract and its performance by Filbert. No question was raised or decided as to the city’s guaranty or warranty of the efficacy of its plans, except the implied holding that the contractor did not warrant the plans furnished him, and if he conformed to them he was not liable for defects in the structure after its completion. It is one thing to say that a contractor does not guarantee the stability of work done according to the plans and specifications by which he must work, and an entirely different thing to say that the owner impliedly warrants such plans. The real question in each of said cases was whether the contractor had performed his contract according to the court’s construction of it, and he was found to have done so. In none of them was a recovery predicated upon alleged defects in the plans. While there are expressions in the New York case relative to the guaranty of the efficiency of plans by the owner, they are evidently used arguendo, because in a later case, where the proposition was argued that the State “was the guarantor of its own plans” the court declined to so decide. Kinser Construction Co. v. State, 204 N. Y., 381, 396.

If the principle of guaranty or implied warranty of plans is applicable in any case, a court must hesitate to apply it in a case where the right of modification of the plans is reserved in the contract, as it is in the instant case. Kinser Cons. Co. v. State, 204 N. Y., 381; Kingsley v. City, 78 N. Y., 200, 211. Eeliance is placed in the opinion on the case of Moore, Receiver, 46 C. Cls., 139.

In connection with the rule stated in the Moore case when it is sought to extend it beyond the question decided, the language of the Supreme Court in Atlantic, Gulf & Pacific Co. v. Philippine Islands, 219 U. S., 17, 23, should be noted:

“It is suggested that the reason for the Government undertaking was that the plan was made by the Government engineers. It may have been. But the plaintiff was content to work upon that plan; it, not the Government, was doing the work, and it took the risk so far as the contract did not make a change. The Government could not be charged by it with negligence or with causing the first break. That was only something for repairing which the Government had promised to pay. Whatever the Government had not promised to pay for the contractor had to do in order to offer the completed work which it had agreed to furnish.”

It would have been useless, apparently, to have enlarged the short diverted section unless all that portion of the sewer below such section and to its point of discharge hundreds of feet away was also enlarged. The defendants were dealing with a sewer that drained a large area of said city and formed a part of the city’s sewer system, and it is to be presumed that the diversion of it was done under proper authority. No such conditions had previously presented themselves, but the sewers had overflowed and remained intact. The warranty, then, is made to extend to the requirement that the diverted section would not break, because, if it does break, the contractor, upon the theory suggested, could abandon his contract and recover losses and profits as though prevented from completing his contract by the act of the defendants. It seems to me that such a conclusion goes back of the contract itself, considers what is termed inherent defects in engineering plans and designs, determines that the “ defendants by their plans and specifications warranted their efficiency,” and inferentially that they warranted that said sewer would not break. Plaintiff’s action in such case must be founded upon a breach of this implied warranty and not upon the terms of the contract, which not only is silent as to any such warranty but excludes in the most comprehensive language any idea of the assumption of the responsibility here placed upon the defendants. That the supposed implied warranty—a collateral undertaking—can not be thus imported into the contract is clear. Seitz v. Brewing Co., 141 U. S., 510. To sustain the doctrine announced Anvil Mining Co. v. Humble, 158 U. S., 540, is cited, which states the familiar rule that a party, engaging to do work, has a right to proceed free from any let or hindrance of the other party, and where such other party does prevent performance the first may treat the contract as broken. The facts showed a serious interference with the prevention of plaintiff’s operations after the contract was made and the said rule was applied. The court did not go outside of the contract obligations, but enforced them. In the instant case the plaintiff committed a breach of the contract by suspending work and refusing to proceed, and a supposed dereliction of the engineers committed before the contract was made is put in the same category as the affirmative act of defendants preventing the performance of the contract was placed in the Humble case. Hoe v. Sanborn, 21 N. Y., 552, is also cited.' It involved questions relating to sales of manufactured products and of warranties implied in sales. Certain rules applicable to sales and the right of purchasers are stated and need not be discussed because not applicable here. It may be suggested, however, that Hoe v. Sanborn points out that “ implied warranties do not rest upon any supposed agreement in fact. They are obligations which the law raises upon principles foreign to the actual contract, principles which are strictly analogous to those upon which vendors are held liable for fraud. It is for the sake of convenience merely that this obligation is permitted to be enforced under the form of contract.” Such an action, as for a deceit, sounds in tort and is not within the jurisdiction of this court. Harley's case, 198 U. S., 229. The doctrine of Hoe v. Sanborn, as to actions upon the warranty, finds its application in matters of sales. It is not extended even to an exchange of chattels. Vail v. Strong, 10 Vt., 457. The views of the Supreme Court as to implied warranties in sales where there is a written contract are stated in Seitz v. Brewing Co., supra.

The cases cited do not sustain the conclusion that the defendants made an implied warranty. They are responsible, as other parties, for the reasonable implications of the language of their contract. Under the contract in question no warranty can be implied. Simpson’s case, 172 U. S., 372; Seitz v. Brewing Co., 141 U. S., 510.

The objection to Finding XIII is not confined to its irrelevancy, but to the application made of it as well. The record shows that after the annulment of plaintiff’s contract and the reletting of it “under practically the same conditions in so far as sewers were concerned,” to the Williams Co., that company proceeded with the work. This contract was annulled October 1, 1909, nearly two years after plaintiff’s contract was annulled. The work was relet November 12, 1909, to Holbrook, Cabot & Rollins Co., whose bid on the basis of the dry dock as changed under the Williams contract was $1,389,000. The Holbrook Company surrounded the site with a cut-off wall of concrete sunk in pneumatic caissons and excavated inside of the wall. The plaintiff had steel sheet piles and the Williams Co. timber piles. It is agreed that the record does not show the impossibility of performance by plaintiff, “ nor does the court undertake to say that the plaintiff could not have repaired the sewer and proceeded with his contract.” But it is added that there was produced “ a condition that made the execution of the contract impossible without the loss of all profits”; or “impossible unless the contractor would willingly assume immeasureable responsibilities for damages.” There being no impossibility of performance, how does the question of expense tend to relieve the contractor ? As has been shown, the objections made to the plans or design go to something that preceded the contract and about which the parties in terms did not stipulate. If it could be said to be allowable to consider these as a basis for recovery, it can not be said that what was done four or five years subsequently by the last contractor under his contract to build the sewer around the head of the dry dock when substantially completed can be resorted to as proof of how the original sewer when diverted should have been constructed, nor to prove that there were inherent defects of engineering in the first instance. It is not permissible to imply a warranty of plan and design made before the contract and support it by what transpired between other parties long after the contract and give damages including profits as upon a breach of the contract. The subsequent alteration of the sewer is not evidence that its original construction or location was faulty. Columbia, etc., Co. v. Hawthorn, 144 U. S., 202, 208; Clark case, 96 U. S., 37, 40. In the Ceballos case cited in the opinion the court looked to a former contract between the same parties and to their conduct in giving effect to their subsequent contract. How this can authorize a court in determining the rights of parties under this contract to look to another contract made subsequently with another party is not apparent.

It remains to be said that the plans and specification for the dry dock had no connection with the sewer, and their efficiency was untried by plaintiff. The sewer was not part of the dry-dock design any more than the houses and structures which were also removed from the dry-dock site. It was diverted to clear the dock site, so that the plans and specification for the dry dock could be used. It is quite true that the contractor agreed to divert the sewer, as provided by paragraph 196 of the plans and specification, but his contract was to build and complete the dry dock, and the intercepting sewer mentioned in said paragraph is under the heading of “Temporary Works and Preparation of Site.” He was given six months in which to remove the structures and divert the section of the sewer, and he covenanted to complete the dry dock within 36 months thereafter. If the theory be that the defendants should be made to respond in damages because of “inherent defects in engineering inefficient plans and designs to which the loss is ascribed, when there is no stipulation in the contract upon that subject, we would overlook the long-established rules that the Government does not guarantee to any person the fidelity of any of its officers or agents whom it employs, Gibbons case, 8 Wall., 269, that it is not responsible, outside of its contracts, for the misfeasances or wrongs or negligentes or omissions of duty of its officers or agents, Bigby case, 188 U. S., 400, and cases there cited, and that parties entering into contracts with the United States are presumed to do so with a full knowledge of said principle and to consent to be dealt with accordingly. Hart's case, 95 U. S., 316. The record does not show that the sewer was the property of the United States, though furnishing an outlet and constituting a part of the Brooklyn sewer system it passed through Government property. If it was the property of the said city, as it must have been, since it served the city, and if it was allowed by the city to be or remain in a defective or dangerous condition, an action for damages caused thereby would be based upon negligence and sound in tort. Similarly, if it belonged to the defendants, and they owed the duty of keeping it in a proper or safe condition, their liability for a breach of such duty in the absence of contractual obligations to do so would rest upon negligence and sound in tort. The material difference in the two illustrations is that the city could be made to respond for the tort, if liable, while the United States is not suable for torts. Bigby's case, 188 U. S., 400. In the Sundstrum case, 213 N. Y., 106, cited in the majority opinion, it is said that the liability of the State to its contractors for defects in its canal does not go so far as its liability to adjoining owners, and that “ there is certainly no liability to contractors in the absence of negligence.” Nor can a party by calling a wrongful act an implied warranty or guaranty convert it into a contract right. A claimant can not by the device of waiving the tort make a case of implied contract against the Government. Bigby's case, 188 U. S., 407, 409. There is accordingly excluded from the jurisdiction of the Court of Claims those claims or obligations which the law is said to imply from a tort. Harley's case, 198 U. S., 229. Juragua Iron Co. case, 212 U. S., 297, 309. Whether the case is rested upon the supposed inherent defects in engineering and design or a supposed duty on the Government to repair and maintain the sewer (and I do not' agree that there was any such defect or duty) the result must be that the action can not be maintained, no matter by what name the supposed obligation be called. “A right of action in contract can not be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them upon which assumpist can be maintained.” Cooper v. Cooper, 147 Mass., 373, quoted approvingly in Bigby's case, supra.

If the action is on account of a failure to disclose the existence of said dam in the 7-foot sewer it would, under the foregoing cases, “ sound in tort,” and this court would not have jurisdiction.

The plaintiff sues upon an executory contract. He does not aver or show any impossibility of performance. There is nothing in the findings which shows that the defendants prevented performance or interposed any objection to his resumption of work. Their insistence was that he proceed. The findings show, inferentially at least, the great patience with which the plaintiff was dealt with and his continued refusal to resume. If under the circumstances after delaying for 15 months and the plaintiff’s repeated refusals to resume work except upon conditions stated by him the defendants were not authorized to annul the contract, the provision in the contract giving that right must be ignored and treated as useless. It is, however, a valid provision. Graham’s case, 231 U. S., 474.

The rule applicable to contracts generally is thus stated in Dermott v. Jones, 2 Wall., 1, which was twice before the Supreme Court and is a leading case on the subject: “It is a well-settled rule of law that if a party, by his contract, charges himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties-, however great, will not excuse him.”

In Dermott v. Jones, the contractor, Jones, contracted with Miss Dermott to build a certain house for her upon her land according to detailed plans and specifications prepared by her architect and made a part of the contract. He covenanted to supply all requisite material for the execution of the work in all its parts and details and for the complete finish and fitting for use and occupation of the building to be erected pursuant to the said plan of the work, and that the work should be executed and finished ready for occupation, and be delivered over “so finished and ready” at a date fixed. The contractor built the house according to the specifications. Owing to latent defect in the soil the foundation sank, the building became badly cracked, and so dangerous to passers-by that the owner, Miss Dermott, was compelled to take it down, renew the foundation, and rebuild that part of the structure which had given way. She did this at large expense, but made a good building. The contractor sued for the price of the original structure, and the owner sought to recoup the amount she had necessarily expended in order to render the cracked part of the house fit for use and occupation acording to the plan and specification. The trial court refused to instruct the jury that said expense was a proper matter of recoupment in said action, and that refusal made the important question in the appellate court.

In the Supreme Court’s opinion it is said:

“The defendant in error [the contractor] insists that all the work he was required to do is set forth in the specifications, and that, having fulfilled his contract in a workmanlike manner, he is not responsible for defects arising from a cause of which he was ignorant and which he had no agency in producing.”

Referring to the signed instrument and the specifications as forming the contract it is said:

“ In that instrument the defendant in error made a covenant. That covenant it was his duty to fulfill, and he was bound to do whatever was necessary to its performance. Against the hardship of the case he might have guarded by a provision in the contract. Not having done so, it is not in the power of this court to relieve him.”

The court refers to a number of adjudicated cases, and says:

“ The principle which controlled the decision of the cases referred to rests upon a solid foundation of reason and justice. It regards the sanctity of contracts. It requires parties to do what they have agreed to do. If unexpected impediments lie in the way and a loss must ensue, it leaves the loss where the contract places it. If the parties have made no Srovision for a dispensation, the rule of law gives none. It oes not allow a contract fairly made to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated.”

It was accordingly held that the recoupment could be made.

It is declared in Smoot's case, 15 Wall., 36, that the impossibility which releases a man from his obligation to perform must be real, and not a mere inconvenience.

In The Harriman, 9 Wall., 161,172, the rule is stated to be that if what is agreed to be done is possible and lawful it must be done. Difficulty or improbability of accomplishing the undertaking will not avail the defendant. “ It must be shown that the thing can not by any means be effected. Nothing short of this will excuse performance.” See also Railroad Co. v. Smith, 21 Wall., 255.

These principles were applied in Jacksonville Railway v. Hooper, 160 U. S., 514, 527, where the impossibility relied on arose subsequent to the making of the contract.

In Thorn v. Mayor, 1 L. R. App. Cases, 120, the declaration alleged that defendants guaranteed and warranted to the plaintiff that Blackfriars Bridge could be built according to certain plans and a specification then shown by defendants to plaintiffs, without tide work and in a manner comparatively inexpensive, and that certain caissons shown on the said plans would resist the pressure of water during the construction of the bridge, whereby the plaintiff was induced to contract with defendants for a certain sum of money, far less than he otherwise would have done, and then there was alleged the failure of the plans and specification and of the caissons, whereby he was obliged to expend large sums of money in an effort to build the bridge according to such plans and in afterwards completing it. “ The cause of the failure was that the caissons would not resist the external pressure of the water, so that the piers of the bridge had to he built independently of them and much of the preceding work was wasted, and the piers were built as the tide permitted the work to go on, which occasioned great delay.” The Lord Chancellor stated the question to be “whether there is any, and if any, what, implied warranty on the part of the defendants to the effect stated in the declaration, or so as to give plaintiff a cause of action against defendants.” Speaking of the consequences which would flow from a holding that the furnishing of plans and specification by the owner to a contractor implies a warranty, he says in his opinion: “The proposition which would be affirmed would not go merely to the present case, but would go to nearly every bind of work in which a contractor is employed and in which, for convenience, specifications of the details of the work are issued by the person who desires to employ the contractor. In those specifications and in the contracts founded upon them an elasticity or latitude is always given by provisions for extra additional and expected work; but if it were to be held that there is with regard to the specification itself an implied warranty on the part of the person who invites tenders for the contract, that the work can be done in the way and under the conditions mentioned in the specification, so that he is to be liable in damages if it is found that it can not be so done, the consequences, I say, my Lords, would be most alarming. They would be consequences which would go to every person who, having employed an architect to prepare a plan for a house, afterwards enters into a contract to have the house built according to that plan. They would go to every case in which any work was invited to be done according to a specification, however unexpected might be the results from that work when it came actually to be executed.” There was an express contract in the Thorn case, and it was not contended for plaintiff that there was any express warranty of the plan. The Lord Chancellor says the question may readily be asked, Is it natural to suppose that any warranty can have been intended or implied between these parties? He then proceeds with a supposed condition, which may be paraphrased and applied here as follows: Suppose the contractor had gone to the chief of the bureau or other officer and said, You want a dry dock built according to a certain plan and specification. Will the United States warrant that it can be built according to that plan with the diverted sewer where it is located on the plan? “Can any person for a moment entertain any reasonable doubt as to the answer he would have received ? ” It was held that no implied warranty was made, and that damages as for a breach of warranty the plaintiff was in no respect entitled to.

In Bottoms v. Mayor of York, reported in Hudson on Bldg. Contrs., Vol. II, p. 220, it appeared there was a contract to build certain sewers under specifications, with the right reserved to the defendants’ engineers to change the same. The plaintiff agreed that the works should be carried out in all respects with the specifications and drawings and to the satisfaction of the engineer. The contractor commenced his work, and as he proceeded his difficulties increased, because of the condition of the soil. Having appealed to the engineer without avail, he appealed to the city authorities. He claimed the work could not be done according to said plans in that soil, and asked, as claimant here in substance asked, for a modification of his contract. The authorities refused it, as stated in the opinion of the Queen’s Bench Division, from which court the appeal was prosecuted: “The corporation heard, through their committee, his application and refused to grant it,” as was done in the instant case, “ and they came to the resolution to give him notice under the terms of the contract to go on with the work. That notice was accordingly given. The plaintiff refused to go on with the work, and immediately after-wards, on the expiration of the notice, the corporation seized the plant and took the work out of his hands.” All these things were done in the instant case. Bottoms sued to recover for work he had done, and it was held that in the absence of any specific guaranty or definite representation as to the nature of the soil in which the works are to be executed a contractor is not entitled to abandon the contract on discovery of the nature of the soil, nor because the engineer declines to give written orders entitling him to extra payment in consequence of difficulties in executing the work which had not been foreseen by the contractor. It was further held that the corporation was within its rights, after the contractor’s refusal to proceed, in seizing his plant, which they did as authorized by the contract. The conclusions there accord with the conclusions in Dermott v. Jones, supra.

These principles are applicable here. Plaintiff’s undertaking was that he would build and complete the dry dock with the sewer located as it was and built of brick as it was. He suspended work and refused to proceed—he abandoned his contract and has shown no legal or valid excuse for his action.

There is nothing in the Hollerbach case, 238 U. S., 165, or the Christie case, decided lately, that contravenes the position taken in this dissenting opinion. In the former, effect was given to a positive statement in the specifications, and in the latter to a failure to communicate, when applied to, the information in possession of the Government. Neither of them qualify the principle announced in the Simpson case, and neither holds that a contractor can fail, to seek information, when notified he must do so, and then complain that he did not get information which more attentive bidders did get. Both cases admit “the rule that the contract is the law of the case.” Simpson’s case, supra; Atlantic Co. v. Philippine Islands, 219 U. S., 17, 23.

After plaintiff had notified the officer in charge that he would not resume work except upon conditions stated by him 15 months’ time was consumed before the Secretary of the Navy exercised the right reserved in the contract of annulling it. Every reasonable effort was made to induce the plaintiff to proceed with his contract. Finding X shows this. But by his language and conduct he evinced a purpose to stand by the determination formed on the day he notified the department of his intention to suspend and not resume. If, after all the correspondence, discussion, investigations, and report by a board of officers during said period of 15 months the Secretary did not have the right to annul the contract and relet it, it is difficult to see what course he could have pursued consistent with the contract. He rightfully annulled it. Graham case, 231 U. S., 474; Bottoms v. Mayor, supra; Roehm v. Horst, 178 U. S., 1.

If it can be said that the condition which arose was not one that was in contemplation of either party to the contract, Chicago, Milwaukee, etc., R. R. v. Hoyt, 149 U. S., 1, 15, the utmost that the plaintiff can claim is a right to quit work and remove his plant. He can not under such circumstances recover profits. I think, however, that the plaintiff should have judgment for the amount for which his plant was sold and some smaller items, aggregating $7,967.98.  