
    THE CALLAHAN CONSTRUCTION COMPANY v. THE UNITED STATES.
    [No. 28772.
    Decided February 12, 1912.]
    
      On the Proofs.
    
    It is conceded by tlie defendants’ counsel that the interpretation given to one provision of the contract by the engineer in charge of the work is not tenable.
    I.Where a oontraetor made timely protests against being compelled to do work which the true construction of the contract did not compel him to do, he is entitled to recover his reasonable compensation.
    II.Where a contract did not require a contractor to pave the approaches to certain culverts, he was not obliged to clean out sand and slush which had accumulated in the culverts during the winter.
    III. Where a contractor was required to do work superior in quality to that specified in the contract, and the work was not done voluntarily but under the order of the engineer in charge, the contractor may recover its reasonable value.
    IV. Where the defendants’ officers delay a contractor in the performance of his work, he will be entitled, to additional reasonable time. An extension of time, coextensive with the period of delay, will be assumed reasonable in the absence of proof to the contrary.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. On the 8th day of May, 1899, a contract was entered into by and between the claimant and the United States, the latter acting by Maj. W. L. Marshall, Corps of Engineers, United States Army, for certain construction work in connection with the construction of the Illinois & Missis-sipi Canal, in the State of Illinois, which contract was approved by the Chief of Engineers on the 19th day of June, 1899. This contract and the specifications and advertisement forming a part of the same are attached to the petition and made a part thereof.
    The contract wprlc having been only about one-third performed at the expiration, on December 1, 1899, of the contract period, the claimant on that date wrote Maj. Marshall requesting an extension of the contract time for the completion of the work. In response to this request Maj. Marshall notified the claimant that he would not approve a request for an extension of time unless the claimant would submit a new application for extension agreeing to do certain work of other contractors, at their contract rates therefor, which might be prevented or interfered with by the claimant’s delay; and pursuant to such notification the claimant, under date of December 11, 1899, submitted an application in accordance with the suggestion contained in Maj. Marshall’s said notification. This application for extension was approved by Maj. Marshall, but was refused by the Chief of Engineers on the ground that under the decisions of the Comptroller of the Treasury the contract time could not be extended after the date of its expiration. However, the Chief of Engineers allowed the claimant to go ahead and complete the work on the basis of an implied contract, at the rates of compensation provided in the original contract, and the work was so continued and completed on that basis.
    II. The neces&ary work to complete the seven arch culverts ■ referred to in the contract and in paragraph 36 of the specifications consisted of four parts: The excavation of the pits, construction of foundations, erection of the superstructure, and the back filling and paving of the approaches to the arch culverts. The superstructure could not be built until after the foundations were completed and the approaches could not be completed and paved until the completion of the superstructure. The claimant excavated the pits and constructed the foundations, and the United States then erected the superstructure of each arch culvert under the supervision of its own officers.
    After the completion of the seven arch culverts in the manner before stated the claimant was called upon by the assistant engineer in charge of the work to pave the approaches to the same, but the claimant denied its obligation to do this under the contract and specifications. Notwithstanding its objection, it was required, however, by the engineer in charge of the work to pave the approaches to the arch culverts, although frequently objecting to such requirement. The claimant was threatened by the engineer in supervision of the work that unless it performed this work and made more satisfactory progress with the whole work it would be in danger of being declared a failing contractor and of forfeiting all sums that might be due and lose the position of contractors for any work under the United States.
    III. The amount of paving in the approaches to said arch culverts was as follows:
    Arch culvert Square yards.
    No. 1__. __ 872. 0
    No. 2_ __ 172. 7
    No. 4_ __ 172. 0
    No. 5_ _ 1C9.4
    No. 6 — . __ 477. 4
    No. 8 __ 315. 2
    No. 9 — . __ 219.1
    1, 897. S
    The claimant was paid for such work at the rate of $2.50 per square yard, the rate fixed by the contract for paving the approaches to the pipe culverts. "
    The cost of paving the approaches to the arch culverts Avas considerably more than that of the cost of paving the Approaches to the pipe culverts and was reasonably worth the sum of $5 per square yard, making a total of $9,489, deducting from which the amount paid at the rate of $2.50 per yard, leaves a balance of $4,744.50.
    IV. The claimant completed the work of excavating the pits and constructing the foundations of arch culverts 5, 6, and 9 in 1900 and the United States completed the superstructures in the same year, but owing to the lateness of the season the claimant was unable to pave the approaches to the same during that working season. On returning in the following spring to do this paving as required by the United States authorities, the claimant found said culverts filled with sand and slush, and had to clean them out, before it could begin the work of paving the approaches, at a cost of $500.'
    
      V. The claimant proceeded and paved the approaches of the pipe culverts, amounting to 874.28 square yards, and was paid therefor at the contract rate of $2.50 per square yard. The grade of paving required for this work by the engineer officer in charge was higher than that called for by the contract and cost the claimant about $1 per square yard more than the paving called for by the contract would have cost, amounting to the sum of $874.28.
    VI. All the work except the paving of the approaches to the arch culverts was completed by the close of the working season of 1900. The paving of the approaches to the arch culverts was completed in the season of 1901 and the entire work was accepted on September 17, 1901.
    The failure to finish the work in the time fixed in the contract was due to the following causes:
    
      (a) The failure of the Chief of Engineers to approve the contract until June 19, 1899.
    (b) The requirement by the officers of the United States that the claimant should pave the approaches to the arch culverts as a part of this contract work.
    
      (c) The failure at times of the claimant to prosecute the work diligently and with a sufficient force.
    Upon the completion of the work and in the final settlement therefor a deduction of $806.40 was made by the Government from the amount due the claimant as the cost of inspection during the period of delay chargeable to the claimant. In computing this deduction the Government allowed the claimant two months’ extra time for the completion of the contract on account of the delay in approving the contract before mentioned, and made no deduction for the cost of inspection for the season of 1901, for the reason that during that season the work was all back filling and slope paving of the arch culverts, but charged the claimant for the balance of the delay period. The court finds that the allowance to the claimant of two months’ extra time on account of the delay in approving the contract was reasonable in extent.
    The claimant accepted payment of the final voucher under protest and without intent to waive its right to a claim for further compensation.
    
      
      Mr. William B. King for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. Charles F. Kincheloe (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Barnet, J.,

delivered the opinion of the court:

This suit arises upon a claim for balances due upon a contract for work on the Illinois and Mississippi Canal under the engineering department of the Army. The several items of the claim as shown in the findings will be considered in their order.

ITEM I. PAVING ARCH CULVERTS.

The second paragraph of the contract, and which controls in the decision of this item, is as follows:

“ That the said party of the second part, for and in consideration of payments to be made as hereinbefore provided, agrees to
“furnish all labor and material and excavate pits and construct foundations only of seven (7) arch culverts;
“ excavate pits and back fill around the pipes;
“ construct foundation and head walls
“ and pave approaches and lay (or deliver when not laid) pipes for ten cast-iron culverts along and under the feeder of the Illinois and Mississippi Canal;
“ deliver 48-inch cast-iron pipe at one bridge approach;
“deliver, prepare trenches, and lay 48-inch and 24-inch cast-iron pipe under approaches to three highway bridges, and back fill around the pipes.”

The specifications contained a similar description of the work to be performed.

The findings show that early in the progress of the work the plaintiff insisted that under the contract it should not be required to pave the approaches to the arch culverts, but nothwithstanding its objections was required to do so by the Government officers in charge of the work, receiving in payment therefor the sum of $2.50 per cubic yard, which was the contract price for slope paving. We do not deem it necessary to enter into any analysis of the above quotation from the contract to show that the paving of the approaches to the arch culverts ivas not thereby required. It is so plain that no construction is required and it can hardly be conceived how any other interpretation could ever have been given. Indeed, upon the argument, Government counsel frankly conceded that the interpretation given by the Government engineers in charge of the work to the provision relating to this work was hardly tenable. The plaintiff made timely protests against being compelled to do this work, and it necessarily follows that it is entitled to recover the difference in the reasonable compensation for this work and the price which was paid, which the findings show to be $4,744.50, and this item is allowed in that sum.

ITEM-II. CLEANING OUT ARCH CULVERTS.

The decision as to this item depends largely upon the conclusion of the court as to Item I. The findings show that the plaintiff completed the work of excavating the pits and constructing the foundations of three of the arch culverts in 1900, and the Government completed the superstructures the same year, but owing to the lateness of the season the plaintiff was unable to pave the approaches to these culverts during the working season. On returning the following spring the plaintiff was compelled to clean out the sand and slush which had accumulated in these culverts during the winter in order to pave the, approaches as required-by the United States authorities.

If the plaintiff was not required under the contract to pave the approaches to these culverts, it follows that it was not required to do the work necessarily preliminary thereto. The findings show that the cost of this work was $500, and this item is allowed in that sum.

ITEM III. PAVING AT PIPE CULVER’fS.

The findings show that the work required of the plaintiff in paving the approaches to the pipe culverts was of a higher grade than that required by the contract. Much time was consumed upon the argument in court and considerable space has been occupied in the printed briefs in discussing the technical meaning among civil engineers of the term “rubble stone,” as used in tlie specifications. From the authorities cited and consulted the term seems to be a somewhat flexible one, but we do not think it necessary to enter into a discussion of that question. It is conceded by the Government engineers that the work done in paving the approaches to the pipe culverts was superior in quality to that required by the contract, contending, however, that this was voluntarily done by the plaintiff. The court has found from the evidence, however, that it was required to do this work in- this superior manner at an increased cost of $1 per square yard. There being 874.28 square yards of this work, it would make this item $874.28, and it is allowed in that sum.

ITEM IV. DEDUCTION ROE DEDAY.

The findings show that all of the work which properly fell under the contract was completed in the season of 1900, and the paving of the arch culverts was done in the season of 1901. The failure to finish the work within the time limit was due to the following causes: (a) The delay in approving the contract; (b) the requirement of the paving of the arch culverts; (c) the failure of the plaintiff to prosecute the work diligently and with sufficient force. The findings also show that upon the final settlement a deduction of $806.40 was made from the contract price for the cost of inspection during the delay period. In computing this deduction, however, the Government allowed the plaintiff two months’ extra time on account of the delay in approving the contract and made a deduction for the season of 1901, during which time the approaches to the arch culverts were paved.

It has been settled by numerous decisions of this court and of the Supreme Court that where the Government has delayed a contractor in the performance of his work he will be allowed reasonable extra time to make up for such delay. (Weeks v. United States, 45 C. Cls., 409; Little Falls Knitting Co. v. United States, 44 C. Cls., 1; Ittner v. United States, 43 C. Cls., 336; District of Columbia v. Camden Iron Works, 181 U. S., 453.) In this case the plaintiff was delayed somewhat less than two months on account of the delay of the Government in approving the contract, and it was relieved for that length of time from paying cost of inspection. In the absence of proof to the contrary, an extension of time coextensive with the period of delay appears to be reasonable, and the court has so found.

As before stated, no deduction for delay was made for inspection charges during the time the plaintiff was employed in paving the approaches to the arch culverts.

It appears from the foregoing that the plaintiff was only charged with cost of inspection for such period of delay as arose from its own fault. Hence this item is disallowed.

' Judgment is therefore ordered for the plaintiff in the sum of $6,118.78 under Findings III, IY, and Y.  