
    SANGER AND MOODY v. THE UNITED STATES.
    [No. 18920.
    Decided December 5, 1904.]
    
      On the Proofs.
    
    The advertisement and proposals, constituting the preliminary contract, are for furnishing stone for two loclss on the Illinois River, but contemplate only one contract. The formal contracts divide the subject-matter and relate to each lock separately, though the price and conditions remain the same. The claimants do not object to the severance of the preliminary contracts. As to the first lock, one contract is executed; as to the second, there are a series of contracts running through several years, each for as much stone as may be required during each year. Before the second lock is completed the defendants reduce its dimensions. At the time of final settlement no claim is made for losses growing out of the reduction of the quantity of stone required for the second lock.
    I. Where the advertisement and proposals, constituting the preliminary contract, are followed by formal contracts severing the work, without objection by the contractors, the written contracts determine the liability of the defendants. The severance can not be held to have been a mutual mistake entitling the contractors to a reformation of the contract.
    
      II.Persons entering into contracts with Government officers are bound to know the restrictions imposed by statute (Rev. Stat., §§ 3732, 3679) ; and the preliminary advertisement and bid, though sufficient to constitute a contract between individuals, do not in such cases constitute a contract with the Government.
    III. Where the dressing of stone prescribed by the contract required that a deviation from a true plane should not exceed one-eighth of an inch, the engineer officer in charge might exact it, though such exactitude could not be attained by the tools specified in the contract. .
    IV. Where several contracts were entered into for furnishing stone for a public work, the statute of limitations began to run when work on any one was completed, although the preliminary contract contemplated a single contract for the entire work.
    V.Where there is no written contract for work done or material furnished, the claimant may recover in quantum meruit; but where there is an express contract, the defendant’s liability must be measured thereby.
    VI.Where the plans for a public work are changed after the preliminary agreement, but before the execution of the formal contract, whereby the dimensions of the work are diminished, the voluntary execution of the contract without objection or reservation will preclude the contractor from seeking damages.
    VII.Where delays were caused by the failure of Congress to make the necessary appropriations for the work, and without fault on the part of the administrative officers, the Government is not liable.
    VIII.Where at the time of final settlement the contractors expressly reserve a claim for “ extra work ” and for losses occasioned by the Government delaying their work, all other claims will be deemed to have been waived and settled.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On March 20, 1883, the United States, through Maj. W. H. H. Benyuard, of the Corps of-Engineers, U. S. Army, advertised for proposals for furnishing stone for the construction of two locks on the Illinois River, near Lagrange and Kampsville, Ill. Accompanying this advertisement was general instructions to bidders and specifications, which are set forth in the claimants’ petition and marked “ Exhibit A.”
    
      In answer to this advertisement the claimants herein submitted the following bid:
    1883.
    “ Major W. H. II. Benyuard,
    “ Corps of Engineers, U. S. Army,
    
    “ Chicago, Ills.
    
    “ SiR: In accordance with your advertisement of March 20, 1883, inviting proposals for furnishing stone for the construction of two (2) locks in the Illinois River, near La Grange and Kampsville, Illinois, and subject to all the conditions and requirements thereof, and of your specifications of the same date, copies of both of which are hereto attached, and so far as they relate to this proposal, are made a part of it, we propose to furnish and deliver the stone required for the said locks at the following prices, to wit:
    “For cut stone, dressed face ($16.70), per cubic yard. Sixteen and 70/100 dollars.
    “For cut stone, quarry face ($15.25), per cubic yard. Fifteen and 25/100 dollars.
    “ For squared stone ($10.35) per cubic yard. Ten and 35/100 dollars.
    “ For backing stone ($9.00) per cubic yard. Nine dollars.
    “ For special stone ($26.35) per cubic yard. Twenty-six and 35/100 dollars.
    “ We make this proposal with a full knowledge of the kind, quality, and quantity of the stone required, and if it is accepted will, after receiving written notice of such acceptance, enter into contract within fifteen days with good and sufficient sureties for the faithful performance thereof.”
    The aforesaid bid was accepted by the Chief of Engineers on April 25, 1883, in the following communication:
    “ WashingtoN, D. C., April <B5', 1883.
    
    “ Maj. W. H. IT. Benyuard,
    
      “Corps of Engineers, Chicago, Ills
    
    
      ■ “Sir: Your letter of the 23d>inst., transmitting abstract with copies of the bids received in response to your' advertisement dated March 20,1883, inviting proposals for furnishing stone for the construction of two locks in the Illinois Riyer, near La Grange and Kampsville, Illinois, has been received.
    “ Your recommendation that the bid of Messrs. Sanger & Moodjq being the lowest, and the bidders responsible, be accepted is approved, if in your judgment the bid is a reasonable one.
    “ It must be understood, however, that the contract should not be entered into until the title to the land required for the site of the locks, etc., has been secured by the United States and approved by the Attorney-General of the United States.
    “ By command of Brig. Gen.' Wright:
    “ Very respectfully, your obedient servant,.
    “ John G. Paeke,
    
      “Lieut. Gol. of Engineers, Bvt. Maj. Gen., U. S. A.”
    
    Upon the receipt of the foregoing letter from General Parke, Major Benyuard read the same to the claimants, and explained to them the condition of the title to the land therein referred to, and that no contract could be entered into until the title to said land had been acquired, to' which the claimants made no objection.
    II. After the acceptance of the claimants’ bid in the manner set forth in the letter in the preceding finding, and prior to the execution of the first contract of August 29,1883, hereinafter referred to, the claimants, of their own volition and without any request therefor on the part of the United States or any of their officers, but in contemplation of the making of the contract provided for in paragraph 12 of the general instructions to bidders, made part of the contract, stripped their quarries and purchased at large expense an equipment and plant sufficient for the production and delivery of the stone for both of said locks, and of their own volition, other than in contemplation of the making of the contract as aforesaid, proceeded to cut rock from their quarries for the purpose of supplying the same in said works.
    The claimants repeatedly requested'the United States engineer officer in charge to send them an inspector to examine and inspect the rock which they had cut, but that officer repeatedly declined so to do, claiming that he had no authority to furnish them an inspector for that purpose until the contract provided for as aforesaid had been executed according to law. But by reason of their repeated requests the engineer officer in charge finally sent a person (Mr. Brown) to look over the stone that had then been cut and to make note of the operations being conducted at the quarry by the claimants. Mr. Brown was not directed by the engineer officer in charge to make an inspection of the stone or to accept it. He went through the quarry and examined the rock that had been cut, and of bis own volition indicated by certain marks thereon that 1,435.43 cubic yards of stone cut would be ac- ' ceptable, and others he indicated by certain marks which would not be acceptable under the specifications. After said stone had been so marked by Brown, and before the first contract of August 29, 1883, had been executed, the claimants, of their own volition, delivered the- same at the site of the Lagrange lock.
    III. The title to the site having been acquired by the United States, as required in the letter from Chief of Engineers, above mentioned, contracts with the claimants were made for supplying the stone for these two locks from time to time, as the appropriations therefor became available, as follows, to wit:
    On August 29, 1883, for the stone required for the construction of the lock on the Illinois Liver near Lagrange, Ill., a copy of which said contract is made part of the petition and as Exhibit A'. All the stone contracted for in this contract was, after the time for the completion of the same had been extended at the request of the claimants, and without any fault on the part of the United States other than the delays in the making of appropriations for said work, duly supplied to and paid for by the United States, the last payment being made on August 1, 1885.
    On November 8, 1884, a contract was made with the claimants for the supply of certain stone required for two courses for the construction of the lock on the Illinois Liver near Kampsville, a copy of which said contract is made part of the petition, marked “ Exhibit B.” All the stone contracted for under this contract was, after the time for the completion of the same had been extended at the request of the claimants,"and without any fault on behalf of the United States, other than the delay in making .appropriation for said work, duly supplied to the United States by the claimants and paid for by the United States, the final payment being made on July 2, 1887.
    On September 15, 1886, a contract was entered into with the claimants for the supply of certain other stone required for several courses of the lock to be constructed on the lili-nois River near Kampsville, a copy of which said contract is made part of the petition, marked “ Exhibit C.” All the stone contracted for under this contract was, after the time for the completion of the same had been extended by the United States at the request of the claimants, and without any fault on behalf of the United States, other than the delay in making appropriation for said work, duly supplied by the claimants and paid for by the defendants, the last payment being made on April 29, 1888.
    On the 25th day of September, 1888, a contract was entered into with the claimants for the supply of certain stone required for several other courses of the lock to be constructed on the Illinois Kiver near Kampsville, for backing stone, a copy of which said contract is made part of the petition, marked “ Exhibit D.” All the stone contracted for in this contract was, after the time for the completion of the same had been extended-by the United States at the request of the claimants, and without any fault on behalf of the United States, other than the delay in making appropriations for said work, duly supplied by the claimants and paid for by the United States, the last payment being made on October 31, 1889.
    On the 10th day of February, 1891, a further contract was entered into with the claimants for the supply of stone for several other courses of the lock to be constructed on the Illinois River near Kampsville, a- copy of which said contract is made part of the petition, marked “ Exhibit E.” All the.stone contracted for in this contract was, after the time for the completion of the same had been extended by the United States, at the request of the claimants, and without any fault on the part of the United States, other than the delay in making appropriations for said work, ’duly supplied by the claimants and paid for by the United States, the last payment being made on the 8th day of September, 1892.
    The amount of stone contracted for in- the various contracts set forth was all the- stone that was required and used in the construction of the Lagrange and Kampsville locks, no stone having been purchased from any person other than the claimants. At the time the first contract named abové was entered into, nor at any subsequent period, did the claimants claim or demand the right to contract for the entire work of both locks in the same contract.
    Prior to the claimants’ bid contained in their letter set forth in Finding I they had been contracting with the United States at different points at various times whereby they had made bids for an entire work or building, and thereafter entered into two or more different contracts for such portion of the work thereon as was required by the engineer officer in charge, dependent upon the appropriations available therefor.
    IY. The 1,435.43 cubic yards stone so marked by Brown and delivered at the Lagrange lock, as set forth in Finding II, before the execution of the first contract (August 29, 1883), was, after the execution of said contract, inspected, under the direction of the engineer officer in charge, by P. J. Kearns, who rejected said .stone as not being cut in accordance with paragraph 21 of the specifications, which rejection was approved by the engineer officer in charge, of which the claimants were notified, and they were required to recut said stone to a higher grade of finish, to conform to said specifications.
    The stone marked by Brown as aforesaid was so cut as to deviate more than one-eighth of an inch from a true plane. In dressing the stone a deviation from a true plane not exceeding one-eighth of an inch could not be attained .by the tools specified in paragraph 21 of the specifications. To attain that nicety of dressing other tools were necessary.
    The claimants accordingly recut and dressed said stone to a higher grade of finish in accordance with the specifications, as construed by the engineer officer in charge, at the cost to them additional to the cost of cutting before the execution of said contract of $12,703.55.
    All the cut stone and special stone used in the Lagrange lock was required by the engineer officer in charge to be likewise cut and dressed, the cost of which, over and above what the cost would have been had said stone been cut as the 1,435.43 cubic yards were cut before the execution of said contract, was'more than $3,000.
    
      The recutting to a higher grade as aforesaid ivas, in the opinion of the engineer officer in charge, required by the contract and specifications, and while the inspection, in terms required by the contract, was rigid, the decision of the engineer officer in' charge in requiring the stone to be cut and dressed appears to have been in the exercise of an honest judgment.
    The claimants at the time objected to recutting the 1,435.43 cubic yards of stone, claiming that the same had been accepted by said Brown before the execution of said first contract, and that such acceptance was final and conclusive. Nothing was said by the claimants at the time about making an additional charge for such recutting, nor does it appear that they made any claim therefor to said engineer.
    V. By the terms of paragraphs 30 and 31 of the specifications the stone was to have been delivered on the right bank of the Illinois River at the site of the locks, under the direction of the assistant engineer, and it was to be so arranged in the piling as to be readily accessible, each class to be piled separately and not to touch the ground. The assistant engineer required the stone to be piled parallel to the river shore at the Lagrange lock in such a way as to be readily accessible and in order as the Avork progressed. The claimants did not so pile the rock. On the contrary, they piled it at right angles to the river shore and in such an indiscriminate manner as to impose extra handling upon the United States to get at the particular stone in the order in which it was required to go into the locks. After some delay and controversy about the manner of delivery and piling of the stone the claimants and the defendants verbally agreed that the .stone should be delivered directly into the lock site by means of cars, the defendants furnishing, without expense to the claimants, 2,000 feet of track and four cars therefor, so that the stone could be transported, when unloaded from the barges, directly into the lock site. This latter method of delivery was mutually arranged and agreed upon between the parties to their mutual advantage and without objection from the claimants.
    VI. By the terms of the specifications the estimated amount of stone for both locks was 30,000 cubic yards, and the vouchers paid show that 27,871 cubic yards were delivered. The amount of squared stone and backing stone required for the. Kampsville and Lagrange locks was 9,000 cubic yards each, and there was actually used in the Lagrange lock about 4,500 cubic yards of rough backing stone in addition to a like quantity of squared stone.
    After the acceptance of the claimants’ bid, as set forth in finding i, and before the execution of the contract of September 25, 1888, the claimants, in the process of quarrying for the Kampsville lock, had gotten out about 4,186 cubic yards stone, which was intended for squared backing stone in said lock, but the plans of that lock were, before the execution of said contract, changed by reducing the width of the walls, thereby requiring a less quantity of backing stone.
    The contract as signed provided for 6,174 cubic yards of backing stone in lieu of 9,000 squared and backing stone, and that quantity of rough backing stone was used in said Kampsville lock, or about 1,674 cubic yards more rough stone than was used in the Lagrange lock.
    To quarry the 4,186 cubic yards stone cost the claimants $1 per cubic yard. The stone so quarried, not being required for iise in the Kampsville lock, was sold at $2.50 per cubic yard. The claimants were relieved from the expense of cut-' ting, $1.50 per cubic yard, and of transporting the stone from the quarry to the place of delivery, $3.35 per cubic yard, leaving $4 per cubic yard as their loss upon the 4,186 cubic yards so quarried before receiving notice of the change in the dimensions of the lock. What the claimants’ profit was on the rough stone used does not appear.
    . The claimants did not object to the substitution of rough ■stone for squared stone, but did object to the reduction of the quantity of stone from 9,000 cubic yards to 6,174 cubic yards. The loss to the claimants upon the 2,826 cubic yards of squared stone (being the difference between the 9,000 cubic yards squared and backing stone and 6,174 cubic-yards of rough backing stone), which they were not allowed to furnish because of the reduction in the width of the walls as aforesaid, was $4 per cubic yard, amounting to $11,304.
    VII. By reason of the long delay in the completion of the locks, without any fault on the part of the United States other than the failure of Congress to make the necessary appropriations to carry on said work, the claimants’ plant and equipment deteriorated in value more than $3,000; but what the deterioration thereof was within the six years next preceding- the filing of the petition herein is not shown.
    VIII. During the progress of the Avork under the several contracts betAveen the claimants and the United States there was no agreement in -writing or otherAvise betAveen the claimants and the engineer officers in charge, with or Avithout the approval of the Chief of Engineers, as to payment for extra or other work done or omitted to be done in the construction of said íavo locks, other than as set forth in the contracts under which the work was done.
    IX. On September 8, 1892, at the time the claimants signed vouchers for the final payment under the last contract of February 10, 1891, they addressed to the engineer officer in charge a letter, as folloAvs:
    “ Joliet, III., September 8, 189%.
    
    “ Capt. W. L. Marshall,
    “ U. S. Engineer Corps, Chicago, III.
    
    “Dear Sir: You will kindly notice that in signing the vouchers and receipts this day surrendered to you, for work heretofore done under our contract, Ave do nor thereby Avaive or surrender our right to an accounting and payment for extra work heretofore performed bj’’ us; also, for losses occasioned us by delay of work, and of which Ave will soon present a statement to you.
    “ Yours, respectfully, “ Sanger & Moody.”
    Upon the foregoing findings of fact the court decided as conclusions of laAV:
    First. That the claimants are not entitled to have the contract re-formed so as to include the entire Avork in the first contract of August 29, 1883.
    Second. That whatever claims the claimants may have had, growing out of the work under their contracts of August 29, 1883, November 8, 1884, and September 15, 1886, ' are barred by the statute of limitations. •
    Third. That the claimants are not entitled to recover on their claim for stone omitted in the Kampsville lock under their contract of September 25, 1888.
    
      
      Mr. J. M. Yale and Mr. John O. Fay for the claimants. Mr. F. 8. Bright was on the brief:
    Making the advertisement and specification a part of the contract essentially made the proposal in response to that advertisement a part thereof. The several writings embraced in the advertisement, specifications, proposal, and acceptance, and the several ancillary contracts executed to carry out the intent of the advertisement, proposal, and acceptance, must therefore be construed together to the end that all shall stand. The doctrine upon which this theory of the construction of contracts rests is fundamental and has been affirmed by the Supreme Court of the United States and by the courts of last resort in most of the States of the Union. It is notably reaffirmed by the Supreme Court of the United States in HawMns v.' United States (96 U. S., 689), in which Mr. Justice Clifford said, in delivering the opinion of the court: “Aid in the construction of the contract may be derived from the advertisement .under which the bids were received, as the advertisement is expressly referred to in the written contract.” The principle is here plainly laid down that the advertisement, the bids thereunder, and the written contract are to be construed together. In the case of Garfielde v. United States (93 U. S., 242) Mr. Justice Hunt said, in delivering the opinion of the court: “ The Court of Claims holds that the proposal on the part of Garfielde, and the acceptance of the proposal by the Department, created a contract of the same force and effect as if a formal contract had been written out and signed by the parties. Many authorities are cited to sustain the proposition. We believé it to be sound, and that it should be held in the present case.” • This was a case familiar to this court, growing out of an accepted proposal in response to an advertisement for carrying United States mails, the acceptance being subsequently withdrawn by the Government. The case at bar differs from the Garfielde ease in that the acceptance of the proposal in response to the advertisement in the case at bar was never withdrawn; on the contrary, five written contracts were made from time to time to carry out the original contract as defined by the advertisement, specifications, pro-posai, and acceptance thereof, and at no time until the execution of the last written contract, February 10, 1891, were the claimants informed of a violation of the terms of the proposal and acceptance under the advertisement and specifications by the elimination of backing, and at no time until the completion of their contract, as'proposed and accepted in 1883, could they have instituted proceedings in this court for damages incident to loss on account of the elimination of that backing or on account of the delays in the completion of the contract, for, until it was finally completed, the measure of damages was not full and the cause of action had not accrued.
    That the United States regarded the original advertisement, specifications, proposal, and acceptance in as full force and operation at the date of the execution of the last written contract as at the time of the execution of the first thereof, is directly shown in the fact that no new advertisement was ever made, no new proposal invited, or other action had by the Government in repudiation of the original action under which the several written contracts were made.
    But the special attention of the court is invited to the ruling in the Harvey case (15 Otto, 671) that: “ The written bid in connection with the advertisement and the acceptance of that bid constituted the contract between the parties.” That ruling applied here makes claimants’ position impregnable.
    The defendants have said that the jiroposal to furnish said stone .was made by claimant, and accepted by the United States, with the understanding that the necessary contracts for supplying the stone would be made as soon as condemnation proceedings for the acquirement of the site, which were then pending in the proper court in Illinois, were terminated, and the United States vested with the title of the land. This is an erroneous proposition. No question of condemnation arose until after the proposal was made. The condemnation proceedings appeared as a condition coincident with the acceptance, but the ability on the part of the Government to “ contract ” ivas not affected by the condemnation proceedings. There never was any question that condemnation would be perfected.
    
      It'is further said: “The claimants seek to avoid the bar of the statute of limitation, as well as to create a cause of action against the United States, by making the contention that the contract in this case is to be found in the original advertisement for proposals,' the proposal, and its acceptance, in utter disregard of the several contracts that were entered into for the supply of this stone, and under which the material was received and paid for.” This is vital error. The contention of plaintiffs distinctly is that the transaction is incorporated in and evidenced by all the writings and not in any one of them. They must all be treated as parts of one instrument and the meaning determined from these paper writings when taken and construed as one instrument.
    Defendants have also said: “ It is true that the original advertisement and specifications were referred to in these subsequent contracts, but only for the purpose of providing the necessary measurements, character of payments, and conditions of the work. The Government never at any time became a guarantor that the approximated quantity of stone set forth in the original advertisement would, at all events, be used in these locks.”
    The reply l>y plaintiffs is that the contrary was the case. The Government contracted for this approximate quantity of stone, one-half for each lock, supplying specifications with the dimension of each stone required for both the locks. One -half was contracted for at Lagrange and delivered, and the other half was curtailed after it had been prepared by claimant.
    It is the contention of the defendants that section 3744 requires that the contracts shall be in writing, signed by the parties with their names at the end, etc. This has been complied with. Section 3709, Revised Statutes, page 733, which requires that there shall be proposals, bids, and the acceptance of bids for all contracts for supplies and for services rendered to the Government, has also been complied with. The two sections must be construed together. Both sections relate to the same subject-matter.
    It is further contended bjr defendants that the claim is barred by the statute of limitations. The answer is that the contract is continuing, having its inception in the proposal made oil the 21st day of April, 1883, and the acceptance of that proposal; the proposal was to supply stone for two locks; all of the “ formal ” contracts refer to the proposal, and make the same a part of such formal contracts, and the proposal, acceptance, and formal contracts must be construed as one document. The claim is not for extra work, but to recover for the extra expense thrown upon the contractors; no action could have been maintained by claimants while the contract was executory. (Gibson v. United States, 15 C. Cls. R., 174-196; Mulletfs case, 25 C. Cls. R., 413; Meyerle, Executor, 33 C. Cls. R., 20; New Brunswick and Ganada R. R. Co. v. Uhuler da Co., 12 Fed. Rep., 377; Kennedy v. Bavrier, 36 Mo., 128.)
    It is not contended that the item for backing cut out is barred. Supportive of contention that the contract had its inception of the proposal and its acceptance, see Adams case (I C. Cls R., 192) ; Ingle, Executor of Dermott, v. Jones (69 U. S.,1).
    • But the discriminations or arguments as to whether or not this is a contract-in its entirety, or a series of segregated contracts, will be put an end to by reforming them to comply with the terms of the advertisement, proposals, and acceptance.
    The Supreme Court of the United States, in the well-known case of Harvey and Livesey (105 U. S-, 671), determined that, notwithstanding the provisions of section 3744 of the Revised Statutes, requiring contracts to be reduced to writing and signed at the end thereof, a contract made with the War Department, and coming under the provisions of this very section, may be, and ought to be, re-formed to conform with the provisions and agreements contained in the proposal and acceptance. Section 3744 did not do away with the rule of law that made the proposal and acceptance the contract, by providing for a signature at the end of the formal written contract, as decided by the Supreme Court of the United States in the case of Garfielde v. The United States (91 U. S., 242). This court has followed that rule in numerous cases, and has, where the contract differs from the proposal and acceptance, made it conform thereto, and well it might. There was no consideration for the change. The terms being agreed upon, and being within the law, the officer might well be compelled by mandamus to carry out the provisions of section 3744, without deviating a line or a syllable. If contract is found different, it is either contributable to mistake and entitled to be reformed, or it is a fraud and deceit on the part of the officer, and the contract, as made, ought thereupon to be set aside for fraud and the claimant admitted to his right to recover upon a quantum meruit for work and labor done and materials provided, under the authority of the Supreme Court of the United States in the case of GlarJe v. The United States (95 U. S., 539), where there was no eontract at all, but the claimant was allowed to recover as upon a quantum meruit. The Supreme Court held that the United States could not take the materials and labor of the claimant, and then refuse him compensation because the formality of section 3744 had not been complied with. So upon either horn of the dilemma the claimants are certainly entitled'to recover for the gains prevented by the elimination from the contract for the materials they were prevented from delivering by the action of the United States.
    
      Mr. Assistant Attorney-General Pradt for the defendants. Mr. George H. Gorman was on the brief.
   Peelle,J.,

delivered the opinion of the court:

This action is for the reformation of a contract and damages for alleged breaches thereof. The facts are these: In March, 1883, the United States, through Major Benyuard, Corps of Engineers, U. S. Army, advertised for proposals for furnishing stone for the construction of two locks in the Illinois River near Lagrange and Kampsville, Ill. Accompanying the advertisement were the general instructions to bidders and specifications as to quality and dimensions of stone required.

In response to the advertisement the claimants made a bid offering to furnish the stone required for the two locks at the bids named by them, as set forth in finding i. The claimants’ bid being the lowest the same was submitted to the Chief of Engineers, United States Army, who accepted the same, if, in the opinion of the engineer officer in charge, the bid was a reasonable one. The Chief of Engineers, however, in the same letter, directed “ that the contract should not be entered into until the title to the land required for the site of the locks had been secured by the United States and approved by the Attornej^-General.” The contents of the letter' were made known to the claimants on its receipt and they made no objections thereto.

As soon as the title to the land had been acquired the claimants and the United States, through the engineer officer in charge, entered into the contract of August 29, 1883, in which was included only the stone for the Lagrange lock, whereas the claimants in their amended petition aver that the entire stone required for the two locks should have been included in said contract in conformity with the advertisement for proposals, the specifications, and the claimants’ bid, and for that reason it is averred in said amended petition, inter alia, that they are “ entitled to have said contract of August 29, 1883, reformed, so as to make it conform to the intention and agreement of the parties thereto, as expressed in the said invitation for proposals, the bid of claimants submitted in response thereto, and the acceptance thereof as communicated to the defendants or their agents, and to have the same judgment and relief as if the said contract had conformed to the said preliminary agreement and had contained the necessary provisions for all the stone required for the Kampsville lock as well as for the Lagrange lock.”

The facts found fail to disclose any mistake on the part of the United States in thus entering into the contract, while on the part of the claimants the facts set forth in finding hi show that neither “ at the time the first ’contract named above (August 29, 1883) was entered into, nor at any subsequent period, did the claimants' claim or demand the right to contract for the entire work of both locks in the same contract.”

The mere fact that said contract of August 29, 1883, embraced only the stone for the Legrange lock, when the bid accepted covered the stone for both locks, can not be held to have been a mutual mistake, especially when the claimants knew that such was the course of the Government in making contracts for such works, and no demand or claim otherwise was made at the time of signing said contract. This being so, we need not consider the question raised by the defendants as to whether the court, under its general jurisdiction, has the equitable power to enter a decree re-forming the contract..

The claimants, however, further contend, by the averments in their original petition and in their brief, that -when their bid was accepted in response to the advertisement for proposals, a contract was thereby formed for the entire work and that therefore the several contracts subsequently entered into should be considered as one document or instrument embodying the whole work so covered by their bid, and this contention, they claim, finds support in the cases of Garfielde v. United States (93 U. S., 242, 244); Hawkins v. United States (96 U. S., 689, 694), and Harvey v. United States (105 U. S., 671).

In the first of the cases cited, which was a contract made through the Post-Office Department for conveying the mails, the court, respecting the contract, said: “ The Court of Claims holds that the proposal on the part of Garfielde, and the acceptance of the proposal by the Department, created a contract of the same force and effect as if a formal contract had been written out and signed by the parties. Many authorities are cited to sustain the proposition. We believe it to be sound, and that it should be so held in the present case.”

In the Hawkins case, which arose under a contract made by the Secretary of the Treasury under a special act of Congress (17 Stat. L., 390), the court said: “Aid in the construction of the contract may be derived from the advertisement under which the bids were received, as the advertisement is expressly referred to in the written contract.”

In the Iiaroey ease, which was a contract made through the War Department for the construction of a bridge at Rock Island, Ill., a claim for which, was referred to the court under a special act (19 Stat. L., 490), the court said: “ The written bid in connection with the advertisement, and the acceptance of that bid, constituted the contract between the parties so far as regards the question whether the contract prices embraced the cofferdam work.”

In the case of South Boston Iron Co. v. United States (118 U. S., 37-42) a letter had been addressed to the Secretary of the Navy proposing to construct new boilers for certain vessels of the Navy, which offer was accepted by the Navy Department by letter and the proposed contractor was informed that drawings and specifications would be furnished as soon as possible. But a few days later he was notified to discontinue all work contracted for by him Avith the Department. The action Avas sought to be founded upon the letters as constituting a contract, but in respect thereto the court, speaking by Chief Justice Waite, said: “In Clark v. The United States (95 U. S., 539) it Avas decided that, to bind the United States, contracts by the Navy Department must be in writing and signed by the contracting parties. Such, in the opinion of the court, was the effect of the act of June 2, 1862 (12 Stat., 411, ch. 93), uoav in force as sections 3744-3747 and sections 512-515 of the BeAdsed Statutes. An effort has been made in this case to sIioav a contract in Avriting, but Ave agree entirely with the Court of Claims (hat the papers relied on for that purpose are nothing more in laAv or in fact than the preliminary memoranda made by the parties for use in preparing a contract for execution m the form required by law. This Avas never done, and therefore the United States never became bound. Within a A^eiy feAv days after the memoranda were made the Avhole matter was abandoned bjr the Department, and the iron company has neither performed any of the Avork Avhich Avas referred to, nor has it eA^er been called on to do so.” Such also Avas the decision of this court in the case of Chapter of Calvary Cathedral v. United States (29 C. Cls. R., 269).

Undoubtedly the first element essential to the formation of a contract is a distinct communication between the parties — i. e., an offer by one and acceptance thereof by the other. This done the question is as to the form and con-, sideration of the contract the parties have outwardly constituted, as the written instrument is the evidence of the contract the parties have thus formed; but in respect to contracts made with the Government through the War, Navy, and Interior Departments that rule was changed by the act of June 2, 1862, supra, Eevised Statutes, section 3T44 of which provides: “ It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof; * *

It is further provided in that act that the officer making such contract shall file a copy thereof, after verification by his oath, in the returns office in the Interior Department, and for his failure to make such return he is declared to be guilty of a misdemeanor.

It will thus be noted that the terms agreed upon between the parties by their offer and acceptance, though sufficient to constitute a contract as between individuals, are not sufficient to charge the Government under the act of June 2, 1862. Hence, to bind the Government, the terms so agreed upon must be embodied in a written contract and be signed b)r the parties. The written instrument thus signed becomes the contract between the parties and is as well the evidence thereof.

In construing that act the court, in the case of Clark v. United States (95 U. S., 539, 541), said: “The Court of Claims' has heretofore held the act to be mandatory and as requiring contracts made with the Departments named to be in conformity with it. The arguments by which this view has been enforced by that court are of great weight, and, in our judgment, conclusive.” And in speaking of the purpose of the act, the court further said: “ Perhaps the primary object of the statute was to impose a restraint upon the officers themselves and prevent them from making reckless engagements for the Government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this. And we think that the statute in question was intended to operate as such. It makes it unlawful for contracting officers to make contracts in any other way than by writing, signed by the parties. This is equivalent, to prohibiting any other mode of making contracts. Every man is supposed to know the law. A party who makes a. contract with an officer without having it reduced to writing is knowingly accessory to a violation of duty on his part. Such a party aids in the violation of the law. We are of the opinion, therefore, that the contract itself is affected, and must conform to the requirements of the statute until it jiasses from the observation and control of the party who enters into it * *

The ruling in that case seems decisive of the present case. However, if we should consider that the advertisement with the specifications, the proposal and its acceptance constituted the contract between the parties entitling the claimants to furnish all the stone thereunder or to have all the stone embraced in the first-written contract, still we would have to hold that, within the terms of the accepted proposal, it was competent for the parties to sever the work to be done into two or more contracts, and that course having been pursued by the parties without objection from the claimants, the court holds that the written contracts entered into between the parties must be looked to in determining the liability of the United States.

The findings show that neither at the time the first contract [August 29, 1883] was entered into, nor at any subsequent time, did the claimants demand or claim the right to contract for the entire work of both locks in the same contract. On the contrary, it is shown by the findings that prior to the claimants’ bid for the work embraced in the contracts in this case the claimants had been contracting with the United States at different points at various times, whereby they had made bids for an entire work or building, and thereafter entered into two or more separate contracts for such portion of the work as was required by the engineer officer in charge, dependent upon the appropriations available therefor.

The claimants were bound to know that no contract for the construction of public works on behalf of the United States could be made unless the same was authorized by law or was under an appropriation adequate to its fulfillment. (Rev. Stat., sec. 3732.) And further, that “ No Department of the Government shall expend, in any fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract, for the future payment of money in excess of such appropriations.” (Rev. Stat., sec. 3679.)

Turning iioav to the claims arising under the contract of August 29, 1883, for the cutting and recutting of stone for the Lagrange lock to a higher grade of finish, as the claimants contend, than was required by the specifications, we must examine the contract and specifications.

The specifications, paragraphs 5 to 9, inclusive, classify the stone to be used and prescribe what each class shall cover, while paragraph 21 of the specifications provides:

“ 21. The beds and joints of all cut stone and special stone will be cut smooth with pick point or stone ax; and no deviation from a true plane exceeding one-eighth of an inch will be allowed.”

Under the heading of “ Inspection,” the specifications material to this case provide:

“ 34. The United States have the right and privilege to appoint an inspector to examine and to report upon any material, work, or workmanship pertaining to the work, who will receive instructions from the assistant engineer. The inspector shall have the power to object to any material, work, or workmanship, and any material, work, or workmanship objected to by the inspector shall be kept out of or removed from the place of delivery, unless in each particular case the objections of the inspector shall be overruled by the assistant engineer or engineer officer in charge; and unless the objections be so overruled, no estimate or payment shall be made until such material, work, or workmanship be so removed.
35. The decision of the United States engineer officer in charge shall be final and conclusive upon all matters relating to the work and upon all questions arising out of these specifications, and from his decision there shall be no appeal.”
The contract entered into between the parties makes the advertisement and specifications a part thereof, and after describing the stone to be used and the price to be paid therefor, further provides:
“All materials furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the Government, and such as does not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.”

It will thus be noted that before being accepted the materials furnished and work done under the contract shall “ be subject to a rigid inspection ” by a Government inspector, and such materials and work as do not conform to the specifications “shall be rejected;” and in respect thereto the contract further provides: “ The decision of the engineer officer in charge as to quality and quantity shall be final.” In respect to similar provisions of contracts the courts have held that in the absence of fraud or of such gross error as would necessarily imply bad faith, the decision of such officer is final and not subject to review. (Ogden v. United States, 60 Fed. Rep., 127; Kihlberg v. United States, 97 U. S., 398; Sweeney v. United States, 109 U. S., 618; Mart-insburg and Potomac R. R. Co. v. United States, 114 U. S., 549; Chicago, etc., R. R. Co. v. Price, 138 U. S., 185; United States v. Gleason, 175 U. S., 588; United States v. Barlow, 184 U. S., 123-134.)

As the findings show that the decision of the engineer officer in charge appeal’s to have been in the exercise of an honest judgment, no fraud can be attributed to him, nor do we think it was gross error on the part of such officer in requiring the stone to be cut as required by the specifications, though it required other tools than those mentioned in the specifications with which to do it. But we need not go further on this branch of the case as the findings show that all the stone contracted for under the contract for the Lagrange lock was furnished to and paid for by the United States, the last payment therefor having been made August 1, 1885, more than six yuars before the filing of the petition herein, and hence all claims arising under that contract are barred by the statute of limitations.

As to the claim for the squared stone omitted from the Kampsville lock, as set forth in finding vi, there can be no recovery, for the reason that while the amount of squared and backing stone estimated for in the specifications was 9,000 cubic yards, the plans were changed by reducing the width of the walls, thereby necessitating a reduction in the quantity of stone required before the execution of the contract of September 25, 1888, under which the work was performed, so that when the contract ivas executed it provided only for 6,171 cubic yards rough stone, and that amount the findings show was furnished, used, and paid for.

The claimants in effect contend that notwithstanding the quantity of stone was approximated in the specifications, still on the basis of the original plans the Kampsville lock would have required the full amount of 9,000 cubic yards so estimated, and that as the reduction in the quantity was by reason of the change in the plans made subsequent to their bid, they are entitled to recover.

This contention is based on the theory that when the claimants’ bid was accepted a contract, binding on the United States, was thereby formed. But the answer to this is, as we have before stated, that the act of June 2, 1862 (supra), requiring cohtracts to be reduced to writing and signed by the contracting parties, is mandatory. (Clark v. United States, 95 U. S., 539-541.) 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. (Simpson v. United States, 172 U. S., 372-379; Brawley v. United States, 96 U. S., 168-173; De Witt v. Berry, 134 U. S., 306-315, and authorities there cited; Oelricks v. Ford, 23 How., 49-64.)

If, however, we were to assume that the advertisement, the specifications, and the claimants’ bid and acceptance thereof constituted the contract, as the claimants contend, still when they thereafter entered into the formal written contract the presumption is that the provisions contained therein superseded all previous negotiations and contracts relating to the same subject. (Northern Assurance Co. v. Building Association, 183 U. S., 308-318, and authorities above cited.)

The claimants having furnished the stone and the United States having paid therefor according to the contract, the ruling in the case of United States v. Garlinger (169 U. S., 316-323) appears applicable. In that case, where payments had been .made to an officer for a series of years without objection or protest, the court said:

“ We do not want to be understood as saying that the mere fact of receiving money in payment will estop a creditor. But where, as in this case, the payments were made frequently, through a considerable period of time, and were received without objection or protest, and where there is no pretense of fraud, or of circumstances constituting duress, it is legitimate to infer that such payments were made and received on the understanding of both joarties that they were in full. Such a presumption is very much strengthened by the lapse of two years before the appellee thought fit to make any demand.”

In the present case, notwithstanding the claimants’ contention that the work on the two locks was delayed through the fault of the Government for nine years, and that most of their claim arose under the first and only contract for the construction of the Lagrange lock between August, 1883, and August, 1885, they delayed bringing any action until March, 1895, or more than two years after the last payment was made to them under their last contract.

The contract having been discharged bjf performance by both parties no further liability arises thereunder, and as the change in the plans necessitating the reduction .in the quantity of stone occurred before the execution of the contract, which was made with reference thereto, no liability arises on an implied contract for a quantum meruit for the stone that was excluded from the contract and not used by the Government.

In the case of Clark v. United States (supra), relied upon by the claimants for a recovery, on quantum meruit there was no written contract and for that reason the court held in substance that where the property or services of an individual were taken, and the United States received the benefit thereof, such individual would be entitled to recover the fair value thereof as upon an implied contract for a quantum meruit. In other words, where the Government receives the benefits of the property or services of an individual the party so furnishing should not be denied the right of reasonable compensation therefor, because the- formalities of the act of June 2, 1862, had not been complied with. But that'decision does not apply where the quantity of material, determined by the engineer officer in charge, is made part of the written contract as in the present case. The contract having been reduced to writing and signed by the contracting parties the liability of the Government must be measured thereby.

There is no contention here that after the execution of the contract there was any oral agreement entered into between the ¡parties as to any matter about which the contract was silent, and hence the. ruling in reference thereto announced in the case of Seitz v. Brewing Co. (141 U. S., 510-517), to the effect that the existence of a separate oral agreement as to any matter on which a written contract is silent and which is not inconsistent with its terms may be proven by parol, does not apply.

Had the plans been changed and the quantity of stone reduced after the execution of the written contract a different question would then be presented, but such is not the present case.

Nor is the Government liable for the deterioration of machinery by reason of the delays in the transaction of the work, even if such deterioration occurred within six years from the date of the filing of the petition herein, as such delays were without the fault of the United States other than the failure of the Congress to make the necessary appropriations of money with which to pay for the work, and for such delays the United States can not be held liable.

By reference to finding vi it will be noted that the claimants in their letter of September 8, 1892, when they signed the vouchers for the final payment under the last contract of February 10, 1891, claimed only for “ extra work ” theretofore performed and for losses occasioned “ by delay of work.” These were the only claims asserted by the claimants when the final payment was made under said last contract, and what was not then claimed the court may fairly presume was waived. No claim was then asserted or reserved for losses growing out of the omission of the squared stone' from the Kampsville lock.

For the reasons we have given the claimants are not entitled to recover and their petition must be dismissed.  