
    BYRON BARLOW ET AL. v. THE UNITED STATES.
    [No. 20798.
    Decided May 21, 1900.]
    
      On the Proofs.
    
    The contract sued oil provides that if it should be found necessary to make any change or modification of its provisions they must be agreed on in writing, and that no omission in the plans or specifications of any detail necessary to carry the contract into complete effect shall operate to the disadvantage of the United States, but shall be supplied, performed, and observed by the contractors. Also, that if any doubts or disputes arise as to the meaning or requirements of any provision, the questions shall be at once referred to the Chief of the Bureau of Yards and Docks, his decision to be final, with the right on the part of the contractors to appeal to the Secretary of the Navy. The specifications provide: “The ashlar must be of granite or sandstone, of quality approved by the engineerThe claimants tender a sample of the stone and the engineer in charge examines it, visits the quarry, satisfies himself as to the quality of the stone, and, after tests and examination, approves it. Claimants contract with the owners of the quarry for that stone and they excavate and deliver it. But the Chief of the Bureau makes another examination and rejects the stone and orders the engineer in charge to provide the best sandstone which can be obtained.
    I. Where a contract provides that the architect or engineer in charge shall determine the quantity or the fitness of the material or the sufficiency of the work, it is the reference of a matter in dispute to a person fitted by special knowledge to determine the facts; and it is for the benefit of both parties that such facts be settled as the work proceeds. Agreements for such arbitrament will be upheld.
    II. An agreement which binds one party to abide as to every matter of fact and every legal right by the decision of the other party is contrary to well-settled principles and can not be upheld by courts of justice. An agreement which makes the head of ‘an executive department, having no personal knowledge of a matter in dispute, the final judge of a contractor’s legal rights is such an agreement.
    
      III. Additional work or better material than that required by the contract, ordered by a subordinate without authority to do so, must be regarded as voluntary service and no contract for it can he implied.
    IY. Where alterations or additions are ordered by an officer or agent of the Government authorized to contract, a contract will be implied to the extent of the benefit which the Government has received, notwithstanding a provision in the original contract that such orders must he in writing.
    Y. Where a contract provides that alterations or additions must be ordered in writing, and the cost thereof agreed upon before the work is done, the principals may waive the requirement. In Government contracts the officer who has authority to contract or order changes must be regarded as a principal.
    YI. Under a contract which provides that stone to be furnished by the contractor must be “sandstone of quality approved by the engineer,” the decision of the engineer binds the Government as well as the contractor.
    VII. Where a contract prescribes “sandstone of a quality approved by the engineer,” and the superior officer who entered into the contract requires “the best sandstone which can be obtained, ’ ’ the stone required is not the stone contracted for, and the contractor can recover for the difference.
    
      The Reporters’ statement of thé case:
    The following are tbe material facts of the case:
    I. On the -29th of October, 1892, the following contract was entered into between the claimant and the United States:
    “Whereas, by advertisement, dated August 8, 1892, proposals were invited by the Chief of the Bureau of Yards and Docks, Navy Department, for the construction, by contract, of a dry dock of the general dimensions, and to be located at the place therein specified; and
    “Whereas the proposal of the said contractors, dated September 3, 1892, to construct a dry dock to be located at the United States naval station, Puget Sound, Washington, has been duly accepted by the Secretary of the Navy:
    “Now, therefore, this contract witnesses: That, in consideration of 'the premises, and for and in consideration of the payments to be made as hereinafter provided for, the parties of the first part, for themselves, their heirs and assigns, and their personal and legal representatives, do hereby covenant and agree to and with the United States as follows, that is to say:
    “ Rvrst. The contractors will, within sixty days, after the date of the notice to them that they are given the possession and occupancy of the site by the party of the second part, which possession and occupancy of the said site during- the period of construction, and until the completion and delivery of the work hereinafter mentioned, shall be secured to the contractors by the party of the second part, commence, and within thirty-six calendar months from the expiration of said, sixty days, construct and complete, ready to receive vessels, a dry dock, to be located at the place shown on a plan accompanyingthis contract, at the naval station, Puget Sound, "Washington; and will, at their own risk and expense, furnish and provide all labor, materials, tools, implements, and appliances of every description — all of which shall be of the best kind and quality adapted for the work as described in the specifications — necessary or requisite in and about the construction of said dry dock and the caisson, pumping machinery, pump house, culverts, and all other accessories and appurtenances, in accordance with the aforesaid plans and specifications, subject to the approval of the civil engineer, or such other competent officer or person or persons as may for that purpose be designated by the party of the second part; it being further mutu-alty stipulated and agreed that the officer or officers, person or persons, thus designated shall and may, from time to time during the progress of the work, inspect all material furnished and all work done under this contract, with full power to reject any material or work, in whole or in part, which he or they may deem unsuitable for the purpose or purposes intended, or not in strict conformity with the spirit and intent of this contract and,with the aforesaid plans and specifications, and to cause any inferior or unsafe work to be taken down, by and at the expense of the contractors; and that all such rejected material shall be at once removed from the station and replaced by material satisfactory to such inspector, and that all such inferior or unsafe work shall be replaced by satisfactory work, by and at the expense of the contractors. Such inspectors shall at all times during the progress of the work have full access thereto, and the contractors shall furnish them with full facilities for the inspection and superintendence of the same. * # «- «- *
    
      “Seventh. The construction of the said dry dock and its accessories and appurtenances herein contracted for shall conform in all respects to and with the plans and specifications aforesaid, which plans and specifications are hereto annexed, and shall be deemed and taken as forming a part of this contract, with the like operation and effect as if the same were incorporated herein. No omission in the plans or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect, in accox*dance with the true intent and meaning hereof, shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the contractors, and all claims for extra compensation by reason of, or for or on account of, such extra performance, are hereby, and in consideration of the premises, expressly waived; and it is hereby further provided, and this contract is upon the express condition, that the said plans and specifications shall not be changed in anj’- respect, except upon the written order of the Bureau of Yards and Docks; and that if at any time it shall be found advantageous or necessary to make any change or modification in the aforesaid plans and specifications, such change or modification must he agreed upon in writing by the parties to the contract, the agreement to set forth fully the reasons for such change, and the nature thereof, and the increased or diminished compensation,, based upon the estimated actual cost thereof which the contractors shall receive, if any: Provided, That whenever the said changes increase or decrease the cost by a sum exceeding five hundred dollars ($500), the actual cost thereof shall be determined bj*' a board of naval officers appointed for the purpose, and the contractors shall be bound by the determination of said board, or of a majority thereof, as to the amount of increased or diminished compensation they shall be entitled to receive in consequence of such change or changes: And provided aluo, That no further payment shall be made unless such supplemental or modified agreement shall have been signed before the obligation arising from such change or modification was incurred, and until after its approval by the party of the second part: And ¡¡provided further, That no change herein provided for shall m any manner affect the validity of this contract.
    
      “Eighth. The aforesaid dry dock and its accessories and appurtenances and each and every part thereof, shall bo constructed of approved materials and in a thoroughly substantial and workmanlike manner, in accordance with the true intent, meaning, and spirit of the contract, plans, and specifications, to the satisfaction of the party of the second part.
    
      “Ninth. In case the completion of the said dry dock, its accessories and appurtenances, shall be delayed beyond the said period of thirty-six (36) calendar months, deductions of fifty dollars ($50) per day during the first three months following the expiration of said period, and of one hundred dollars ($100) per day for each and eveiy day beyond the expiration of the said three months, may, in the discretion of the Secretary of the Navy, be made from the contract price of said dry dock; all such deductions to be made, from time to time, from any payment or payments falling due under the contract: Provided, hoxoever, That such delays shall not have been caused by the act of the Unitbd States or its officers or agents, or by fire or water, or by any strike or stand out of workmen employed in or about the work, or by other circumstances beyond the control of the contractors: And provided further, That in case of ■ such alleged delay the contractors ''shall give immediate notice thereof to the Secretary of the Navy.
    “In case any question shall arise under this contract concerning penalties, such question, with all the facts relating thereto, shall be submitted to the Secretary of the Navy for consideration, and his decision thereon shall be conclusive and binding upon all the parties to this contract. All delays which the Secretary of the Navy shall find to bo properly attributable to the Navy Department or to its authorized officers or agents, or any or either of them, and to have been a delay operating upon the final completion of the dry dock within the times heroin specified therefor,-shall entitle the contractors to a corresponding extension of the period herein prescribed for the completion of said diy dock: Provided, however, That no delaj1-, attributed by the contractors to the Department, its officers or agents, or the alleged cause or causes thereof, shall be considered by the Secretary of the Navy unless the contractors shall, at the time of the occurrence of such delay, notify him in writing of the facts and circumstances in each case, and of the extent to which they claim that the final completion of the dry dock is thereby delayed.
    •X- * * * *
    “Eleventh. It is further mutually understood, covenanted, and agreed that in case of the failure or omission of the contractors, at any stage of the work prior to final completion, from any cause or causes other than those specified in the ninth clause of this contract, to go forward with the work and make satisfactory progress towards its completion within the prescribed period, it shall be optional with the Secretary of the Navy to declare this contract forfeited on the part of the contractors by giving notice in writing to that effect to them; and upon the giving of such notice the contractors shall be indebted to the United States as for liquidated and ascertained damages in a sum equal to the aggregate of all advance payments made to them for or on account of the work done under the contract, and agree to refund the same on demand, within sixty days, and the United States shall hold as collateral for such refund the dock and its appurtenances, or such part or parts and materials as shall have been furnished. Such further steps shall then be taken towards the completion of the dock and its. appurtenances, and the adjustment of the rights of tne contractors and the Government thereunder, as 'are provided in the specifications forming a part of this contract.
    “In case the said Secretary shall, under the provisions of this clause, declare this contract forfeited, such forfeiture shall not affect the right of the United States to recover for defaults which may have occurred hereunder, and as liquidated damages, a sum of money equal to the penalty of the bond accompanying the same: Provided, however', That if the contractors shall, by any of the clauses specified in the ninth clause of this contract, be prevented either from commencing or completing the work at the time agreed upon in this contract, such additional time may, in writing, be allowed them for such commencement or completion as, in the judgment of the Secretary of the Navy, shall be just and reasonable; but such allowance and extension shall in no manner affect the rights or obligations of the parties under this contract, but the same shall subsist, take effect, and be enforceable pre-cisety as if the new date for such commencement or completion had been the date originally herein agreed upon.
    “Twelfth. The covenants, conditions; and provisions relating to payments under this, contract are hereby mutually understood and agreed upon by and between the respective parties as follows, that is to say:
    “1. The contract price to be paid for the dry dock and its accessories and appurtenances to-be constructed in accordance with this contract shall be four hundred and ninety-one thousand four Imndred and sixty-five dollars ($491,465.00),United States currency.
    “2. The amount of material provided and of work performed by the contractoi*s, monthly, shall be taken as a basis for making payments under.
    “3. The officer in charge shall, on or before the fifth day of each month during the progress of the work, prepare an estimate of the work done and materials furnished and delivered during the month preceding -the first day of the month then current, according to the rates specified in the schedule aforesaid, and certify as to the amount properly payable thereunder, which estimate shall be submitted to the commandant of the station where such dock is in course of construction for his approval.
    “4. When such estimates shall have been approved by the ‘ commandant as aforesaid, the respective amounts thereof, less ten per cent, shall be paid through the issuance and.’ delivery to the contractors of bills in triplicate, duly certified by the officer in charge, and approved by said commandant and the Chief of the Bureau of Yards and Docks, and every such payment shall be deemed a payment on account of the aforesaid contract price: Provided, That no payment shall be made, except as funds are available under appropriations made by Congress, for the construction of the work, from time to time.
    “5. The reservation of ten per cent on each monthly payment as above provided for shall be held until this contract shall have been fully performed by or on the part of the parties of the first part, and the said dry dock, its accessories and appurtenances, shall have been finally accepted by the party of the second part; and no monthly or other payments shall be made under this contract, except upon approval by the officer in charge of all work done and material furnished at the rates specified in the schedule of prices up to the first of the month previous to the date of such payment, nor without satisfactory evidence, such as a county clerk’s certificate, furnished by the contractors to said officer, that there are no existing liens other than that of the United States upon such work or materials at the date of such approval.
    “6. When all the conditions, covenants, and provisions of this contract shall have been performed and fulfilled by and on the part of the contractors, they shall be entitled, within ten days after the. filing and acceptance of their claim, to receive the said reserve, and any sum or sums not covered by the monthly estimates and payments, or so much thereof as they may be entitled to, on the execution of the final release to the United States, in such form as shall be approved by the Chief of the Bureau of Yards and Docks, of all claims of any kind or description under or by virtue of this contract.
    * * *X- *X* -X-
    
      “ Fourteenth. It is expressly understood, covenanted, and agreed, by and between the parties to this contract, that if any doubts or disputes as to the meaning or requirements, of anything in this contract, or if any discrepancy appear between the aforesaid plans and specifications and this contract the matter shall be at once referred for the considei’ation and decision of the Chief of the Bureau of Yards and Docks, and his decision thereon shall be final, subject, however, to the right of the contractors to appeal from such decision to the Secretary of the Navy, who, in case of such appeal, shall be furnished by the contractors with a full and complete statement of the grounds of their appeal, in writing, and shall thereupon take such action in the premises as, in his judgment, the rights and interests of the respective parties to this contract shall require, and the parties of the first part hereby bind themselves and their heirs and assigns, and their personal and legal representatives, to abide by nis, the said Secretary’s, decision in the premises.
    
      II. The following specifications were prepared at the Bureau of Yards and Docks of the Navy Department and were exhibited to bidders prior to the awarding of the contract, and are the specifications therein referred to:
    
      “Location. — This dry dock shall be located at the United States naval station, Puget Sound, 'Washington, upon a site shown on a plan accompanying these specifications.
    “GENERAL CONDITIONS.
    
      “Materials. — All materials are to be of good merchantable quality of the several kinds, where not otherwise specified.
    
      “Intention.■ — It is the declared intention and meaning of ' the contract to obtain, complete, a substantial dry dock, according to the general plans .and specifications, to the entire satisfaction of the Bureau of Yards and Docks. Should there be any omissions in the plans or specifications of any work or material required to secure this result, such work or material is to be regarded as embodied in the plans and specifications and to form a part of the contract.’
    “The works included in the contract will be carried out by the contractor under the inspection and supervision of the civil engineer detailed for the purpose, who will inspect all materials and workmanship, and will have full authority to reject any which in his opinion are not in full accordance with the true spirit, intention, and meaning of the contract, plans, and specifications.
    “The contractor shall be responsible for the entire line of works until completion and acceptance by the Bureau of Yards and Docks. He is required to.give his personal attention to the faithful prosecution of the work, and not to sublet or assign the same, but to keep it under his control, and, in case of his absence, to have a duly qualified person to look after the works and to receive and follow directions relating thereto given by the engineer in charge.
    “The contractor shall furnish all necessary facilities, should it be deemed advisable by the engineer to make an examination of any work already completed. If the work is found defective in any respect, he shall defray all expenses of such examination and of satisfactory reconstruction. If the work is found perfect, such expenses will be allowed for.
    “The contractor must furnish at his own expense all labor and materials necessary for the complete execution of his contract in the best manner.
    “If, at any stage of the work, the contractor shall fail to go forward with the same, or to make satisfactory progress towards its completion within the specified time, from causes within his control, as decided by the Chief of the Bureau of Yards and Docks, it shall be optional with the Secretary of the Navy to declare the contract forfeited on the part of the contractor. The contractor shall, upon receiving notice of such forfeiture, be indebted to the United States as for liquidated and ascertained damages in a sum equal to the aggregate of all the advanced payments made to him for or on account of work done under the contract, and agree to refund the same on demand, within sixty days, and that the United States shall hold as collateral for such refund the dock and its appurtenances, or such part or parts as shall have been constructed or furnished. The Secretary of the Navy will thereupon appoint a board of competent persons, which shall ascertain and declaro a fair market value of all work done and materials on hand, including a reasonable and customary margin of profit upon the work done satisfactorily.
    “Upon the approval of the findings of said board by the Secretary of the Navy, he may proceed to complete the said dock and appurtenances in accordance with the contract, plans, and specifications, and the title to the dock and appurtenances, or such parts as shall have been completed, and all materials, shall forthwith vest in the United States, and the contractor shall surrender the same, together with the use of the works or plant, and all machinery, tools, and appliances theretofore used or necessary to be used in the completion of the work; any increase in the cost incurred by reason of the failure of the contractor to be at the contractor’s expense. If, however, any'balance shall appear in favor of the contractor, it shall bo paid to and accepted by him in full discharge of all claims under the contract.
    “In case any question shall arise under the contract concerning deductions from the contract price of said dry dock, such question, with all the facts relating thereto, shall be submitted to the Secretary of the Navy for consideration, and his decision thereon shall be conclusive and binding upon all the parties to the contract.
    ‘ ‘ The dry dock will be built of timber and concrete from the abutments inward, and the remainder, forming the entrance works, of concrete and stone masonry. The entire structure will be founded upon piles, as shown in the plans, unless during the progress of the work it is found better to substitute a mass of concrete for the piling .under the floor. In the event that the Government decides to so modify the construction, the cost of the work as affected by it shall be determined and fixed by a board of civil engineers appointed for the purpose, upon a fair basis of prices, whose decision, upon approval by the Bureau of Yards and Docks, shall become binding.
    
      
      “Piles.- — All piles are to be of Douglas fir, not less than twelve (12) inches in diameter at the butt and (6) inches in diameter at the top, and of speh lengths as maj^ be required to drive to a firm bearing.
    “All piles which are to be in contact with concrete or clay puddle must have the bark removed'from such surfaces of contact.
    “All piles in the bottom of the dock shall be accurately spaced and driven vertically until a satisfactory depth has been reached and the penetration is not more than one quarter (i) inch under the last blow of a hammer weighing three thousand (3,000) pounds falling twenty-five (25) feet, or the equivalent thereof, unless the Bureau shall authorize a modification hereof after examinations and tests are made.
    “All other piles shall be driven to a like firm bearing and until a penetration and a resistance are obtained which shall be to the satisfaction of the engineer in charge and in accordance with these specifications.
    “Any piles broken or injured in driving shall be replaced.
    “All piles are to be sound and straight.
    “The spacing and number of the foundation piles, brace piles, cross-cap pil'es, etc., shall bo as shown on the drawings.
    “Piles are to be shod with iron, if found necessary in the opinion of the engineer.
    “No pile driving shall be accepted as satisfactory in the side construction work which does not secure a penetration of at least eighteen (18) feet, and if necessary the earth shall be first excavated sufficiently to give this limit of length when refilling is done.
    “A less number than shown may be driven under the keel-way if found impracticable to get all of them-down to a satisfactory pei'manent bearing.
    “The ashlar must be of granite or sandstone, of quality approved by the engineer. All stones must be hard, clean, and free from seams and imperfections, and of good bed and build. They must be laid true on their natural beds, and without pinning.
    “The entire building is to be erected complete in every respect, in the best manner, according to the general plan, notwithstanding any omissions in the drawings or specifications of any provisions necessary to secure this result.”
    III. In compliance with the provisions of the seventh paragraph of the foregoing contract, and in manner and form as therein required, the following supplemental contracts were made from time to time during the progress of the work, the increased or diminished cost having been first ascertained and reduced to writing, as required by said seventh clause of the original contract, to wit:
    On March 15, 1893, for the extension of the dock from 600 to 650 feet the sum of $23,771.32 additional being paid for the increased labor and material necessary to perform the same, and the time for the completion of the contract extended for three and one-half months on account thereof.
    On the 23d day of November, 1893, for the improvement in the strength and dryness of the pump room of the pump and boiler house, the sum of $6,982.20 additional being paid therefor.
    On the 28th of December, 1893, for a change in the laying of the concrete immediately about and contiguous to the suction pipes of the drainage pumps in the pump room of the pump and boiler house, the sum of $17 additional being paid therefor.
    On the 4th day of August, 1894, for the substitution of concrete for sheet piling along the sides of the floor and under the entrance works, and for the construction of wing’ walls to reenforce the transverse lines of the outer wall, etc., the sum of $16,000.27 being paid therefor.
    On February 21, 1895, for increased facilities for cleaning out the back connections of the boilers to be erected in the boiler room of the pump and boiler house, the sum of $18 additional being paid therefor. ■
    On the 28th of February, 1895, for additional protection to the outer end of the brick discharge culvert, the sum of $115 additional being paid therefor.
    On the 24th day of August, 1895, to provide a means of draining the bottom of the pump house, the sum of $119 additional being paid therefor.
    On the 30th day of September, 1895, to provide a means for protecting the top of the Bollard piles, the sum of $100 additional being paid therefor.
    On the 11th day of November, 1895, for the placing of 1 inch of plaster on the walls of the upper floor to the bottom of the pump house,' the sum of $410 additional being paid therefor.
    On the 20th day of August, 1896, for the omission of the cast-iron grating on the floor of the pump house, the sum of §200 being deducted from the contract price on account of such omission.
    Except as stated in this finding, no other or different contract or agreement was ever made concerning any work, labor, material, construction, or design in' connection with this dry dock.
    IY. At the inception of - the building of this dock certain sandstone, known as Tenino sandstone, was submitted by the contractors to the defendants’ civil engineer- in charge of said work, and was by said engineer accepted as a suitable and proper stone for use in said dry dock, under that clause of the specifications that ‘ ‘ the ashlar must be of granite or sandstone of a quality approved by the engineer.” The claimants had submitted two such bids. The first of these, based on the use of sandstone, was much the lower and was accepted.
    From the beginning of work under the contract until the 29th of August, 1894, when a large portion of the same had been completed, U. S. G. White, civil engineer, United States Navy, was the engineer in charge of the work on behalf of the Government. Shortly after the inception of work the claimants tendered to him a sample of sandstone which they stated they proposed to use-in the ashlar of the dry dock. They at the same time offered to exhibit to said engineer the quarry from which said stone was taken. In pursuance of this offer said engineer, early in the spring of 1893, visited said quarry, which was situated at Tenino, in .the State of Washington, in order to inspect the same and to learn therefrom whether its stone was suitable for use in the dry-dock construction. He there found a quarry open from 300 to 400 feet along the ledge and faced about 40 feet in depth and equipped with proper appliances for taking the stone out and working it. He made a careful examination of the face and satisfied himself as to its uniformity and freedom from sand, mica, and clay pockets, and pebbles or bowlders; noted the reaction of the stone under the channelers then in operation; visited the work where the stone was being sawed to dimensions, and noted the reaction under the saws; noted carefully the abrading power of the stone when used as a grindstone; took hand tools and tried the stone; examined unused blocks of the stone that had been exposed to the weather for a long time to detect any signs of disintegration or deterioration from such exposure; visited the boiler room of the works and examined the stone which was in use as lining to the furnaces under the boilers that supplied power for the works and found no evidences of any breaking down or disintegration from the heat to which the stone had been and was being subjected; made numerous examinations with a glass magnifying 6 or 8 diameters, looking to the detection of any mica or other substances 'in its composition, and found none, the texture appearing uniform and good under the glass, and he subsequently made a test to determine the percentage of absorption.
    As the result of this examination he approved the sandstone from the Tenino quarry, and informed the claimants that the same would bo accepted for all work under the contract.
    Tenino sandstone has in fact been used as a lining in the fire box of the boilers at the Tenino quarry for some time; also in the piers of a bridge over the Chehalis River on the Northern Pacific Railroad, where it was exposed to the action of salt water, and had been so for a number of years without deterioration, and had also been used with success in a number of buildings in western Washington and Portland, Oreg., some of them very high ones.
    Shortly after this examination, to wit, on the 4th day of May, 1893, the claimants, relying upon the assurances thus given by the engineer that stone from the Tenino quarry was approved and would be accepted, entered into a contract with the owners of the quarry to furnish them from said quarry all of the sandstone required for the work.
    Afterwards, and on the 28th day of June, 1893, they entered into a contract with Albert and Louis Beaudette, stonecutters, to cut the stones'.
    Thereafter a carload of stone was furnished by the owners of said quarry under their contract, which arrived at the site of the dock on or about the 20th of June, 1893. The amount of this stone, 2,377 cubic feet, at 65 cents per foot, $1,545.05, was included in tbe vouchers rendered by the claimants in the month of June, 1893, to which the following certificates were annexed:
    “ Having fully examined the ’labor and materials above charged, I certify that they are of good quality and in all respects in conformity with the written contract of date October 29, 1892.
    “U. S. G. White,. u’Gwil Engineer, TJ. 8. JJ., ílIn clüge of constr’n of dry doclc.
    
    “Received the above labor and materials in good order at Puget Sound Naval Station this 1st day July, 1893.
    “U. S. G. White, Gvoil Engineer, TJ. 8. N.,
    
    “ In clüge of constr’n of dry dock.
    
    “U. S. Navy-Yard, Puget Sound Naval Station,
    “ July 8th, 1893.
    
    “Approved for the sum of fourteen thousand one hundred and thirty-one dollars and fifty-seven cents.
    “John C. Morong, Gommcmdant.”
    
    Said voucher was forwarded July 8, 1893, by the commandant at Puget Sound Naval Station, Lieut. Commander John C. Morong.
    The item for stone was, however, stricken out of the voucher, at the Bureau of Yards and Docks, Navy Department, and the total amount of the voucher was thus reduced to the sum of $12,741.03.
    This action- of the Navy Department originated in the receipt by that Department of a communication from a labor organization, the Tacoma Trades Council, of the State of Washington, complaining of the quality of the stone.
    The Department upon receipt of this complaint called upon the commandant of the Puget Sound Naval Station for a report on the quality of said stone. He in turn called for a report from the engineer in charge, who reported favorably on the quality of said stone, accompanying his report with letters from the chief engineer of the Northern Pacific Railroad and others acquainted with the use of said stone, and his report was adopted as his own by the commandant of the Puget Sound Naval Station and was forwarded to the Navy Department.
    
      On the 14th of June, 1893, the claimants addressed the following letter to the commandant of the Pug'et Sound Naval Station:
    “Port Orchard, Washington, JuneUh 1893.
    
    “Lieut. Commander J. C. Morong, U. S. N.,
    “ Commandant Puget Sound Naval Station, Washington.
    
    “Sir: It having come to our knowledge that statements have been made against the use of Tenino sandstone in the entrance of the U. S. dry dock, we beg leave to submit the following:
    “The questions to be considered in connection with selecting stone for the dry dock are strength, durability, and dimensions, or sizes of stones which can be obtained for the purposes intended.
    “There can be no question to any unprejudiced, competent authority as to the strength being sufficient for the purpose in view.
    “The extreme height of stonework resting on top of another stone is 39' 6", multiplied by the weight per cubic foot, 150 lbs. =5,925 lbs. on square foot of stone. While there has been to our knowledge no authentic test of the crushing strength of Tenino sandstone, yet the strength of the weakest sandstone ever tested is 2,200 lbs. per square inch, and of common brickwork 500 to 1,000 lbs. per square inch.
    “In our judgment the Tenino stone is similar in texture and strength to the well-known Amherst, Ohio, sandstone, which stands a test of 5,000 lbs. per sq. inch, but taking the strength at the lowest known, 2,000 lbs. per sq. in., X144sq. in.=316,800 lbs. per square foot of strength, against a load of only 5,925 lbs. per square foot.
    
      i<Pural)iliPy. — There has been no stone on this coast used long enough to state what its durability is. The Tenino stone has been used from 6 to 8 years, and in not one instance has it shown any determination from the action of the elements or from fire, and it is a well-known, indisputable fact, that the stone hardens with age; besides anyone can see now for themselves where the Tenino stone has been in use for 18 months as a lining for the fire box for the boilers of the Tenino company instead of fire brick, and in not one place could we discover any cracks or disintegration from the heat.
    “We know of no stone on this cost having .been used in contact with salt water, and we have as good reason to think Tenino stone will withstand such action as well as any other untried stone.
    “ Dimensions. — The very large sizes of the stones for the dock entrance are very hard and expensive to get in any quarry, and in our examination of quarries the Tenino is the only one we felt any assurance that the sizes required could be obtained, or the quantity within the time needed.
    “ We feel sure that the charges against us and this stone are prompted by that spirit of boycotting now being resorted to so frequently by labor unions.
    “ The Seattle Stone Cutters’ Association has repeatedly written us, telling us of their haying enlarged the Seattle district in order to include the dry dock, and what prices and rules would govern here. We have not replied to such letters because we believe that we have a right, so long as we obey the laws of the land, to manage our own business to suit ourselves, and we do not think any association of men, outside of a legislative body, has any right or power to make rules to hamper or injure our business.
    “The Tenino Stone Co. has received two blank contracts to sign, pledging themselves to sell no stone to contractors who would employ anyone except union stonecutters, which they refused to sign, hence these charges against the stone.
    “Very respectfully,
    “ByroN Barlow & Co.”
    The Chief of the Bureau of Yards and Docks on the 30th of June, 1893, wrote as follows to the commandant of the Puget Sound Naval Station:
    “Bureau oe Yards AND Docks, Navy Departmeht,
    “ Washington, D. O., Jv/ne 30, 1893.
    
    “ To the Gommcmdcmt, Puget Soimd Naval Station, Washington.
    
    “Sir: * * * The Bureau desires, to say now, however, that the selection of the quarries from which the stone is to be obtained can not be made by the contractors to restrict the Government officers to the acceptance of any sandstone of which they do not approve.
    “Under the specifications the stone must be of quality approved by the engineer, without regard to locality, and the contractor must select or open a quarry to furnish stone which will meet with.such approval.
    “If the contractor has exercised any other supposed right of selection under the contract, limiting the approval of the engineerYo a sandstone from a particular quarry, it is one to which he is not entitled, and by which the engineer was not bound.
    “ The Bureau thinks that the sandstone for the dock should be one of the best to be obtained.
    “In the further consideration of the matter, the Bureau desires that it may be understood that it decides the. contract and specifications to «give to the engineer the decision as to the standard of quality, and be is fully authorized thereunder to fix upon the quality of sandstone he requires, by sample or otherwise, and require material equal to it.
    £ £ Yery respectfully,
    ££N. H. Farquhar,
    “ Chief of Bureau.”
    
    On the 21st of August, 1893, the claimants addressed the following letter to the engineer in charge:
    “Port Orchard, Washington,
    
      “August %1,1893.
    
    “ Mr. IT. S. G. White,
    “ Oi/vil Migi/iieer, IT. B. Wavy,
    
    
      “In Olian'ge Constouction TI. S. Dry Doeh,
    
    
      iiP'aget Bov/nd Waval Station, Was/migton.
    
    “Sir: We enclose herewith our bill for sandstone, the payment of which -has been neglected by the Government for two months.
    “We have heard unofficially that there was some question about the acceptance of this stone (Tenino sandstone) by the Navy Department.
    “'We have had such confidence that this stone would finally be accepted that we have thought best not to annoy the Bureau for an immediate decision; but this has been hanging-fire now for two months, and we think we are justified in demanding payment for same for the following reasons:
    “ Neither in the specification or contract do we find any authority for the Bureau to pass any opinion on the quality of materials except by the civil engineer.
    “Paragraph 13 of page 5 of the specifications reads, ‘the . ashlar niust be of granite or sandstone of quality approved by the engineer. ’
    “This clearly leaves the question of acceptance solely with the engineer in charge. Our bid accepted was for sandstone, which establishes the fact that the ashlar must be sandstone, approved by the engineer. To make sure that this stone was suitable, both as to quality and quantity required, we had the engineer visit the quarry with us, and the stone was accepted by him.
    “The specification makes the engineer the agent of the Government in this matter, and it is a well-known fact in common law that the agent binds the principal whether the Bureau sees fit to disapprove of the action of the engineer (its agent) and condemn the stone or not. This stone which has been delivered we claim is accepted by the Government and must be paid for. We make the bold assertion most positive^ that there is no other quarry in the State which can furnish the sandstone of the quality required and of the sizes shown on drawings, and there is no other quarry having the facilities, machinery, derricks, &c., capable of quarrying stones the sizes required.
    “We think it also a great hardship, in view of the great stringency in money, both to us as well as the quarrymen, to withhold this payment so long solely on the complaint of stonecutters, disgruntled because we would not let them dictate terms, wages, etc., to us — in fact, let them run our business.
    “It is also a great hardship to the stonecutters we have engaged, who have now been waiting here two months at expense, ready to begin cutting stone which is on the ground.
    “The action of the Bureau will also delay us in finishing our contract within the time specified, and we now give notice we shall claim this delay.
    “We desire also to inform you that the quarry has gotten ■ out most of the stone required for-the dock and demands that we receive the same as provided in our contract with them; also that they will claim payment for said stone.
    “We therefore must insist on immediate payment for said stone, and the Bureau’s decision as to the remaining stone.
    “Very respectfully,
    - ByroN Barlow & Co.”
    “Aug. 21.
    
      “N.. FT. Far quhar, Chief of Bureau of Yards and Bocks, Navy Dept., to Byron Barlow .& Co., Dr.
    
    “ June 20. To 2,377 cubic it. sandstone, at 65c. 11,545.05”
    On the 31st day of August, 1893, the Chief of the Bureau of Yards and Docks announced by letter to the commandant of the Puget Sound Naval Station that the Tenino stone would not be accepted as material for construction, and on the 8th of September, 1893, the engineer in charge notified the claimants of this decision.
    Y. On the 9th of September, 1893, the claimants wrote as follows to said engineer:
    “Port Orchard, Washington, Sept. 9, 1893.
    
    “Mr. ü. S. G. White,
    “ Oiml Engineer, JJ. S. Wamy,
    
    “ In Ohg. Construction Puget Sovmd Pry Pock.
    
    “Dear Sir: We beg leave to acknowledge the receipt of your letter of the 8th inst., notifying us of the rejection by the Bureau of Yards and Docks of the Tenino sandstone offered by us to be used in the construction of the dock. In tbis connection we beg leave to ask if you have had any official instructions to govern you in the inspection and approval of materials to be used in the construction — especially the stone — other than those contained in the specifications and contract.
    “Very respectfully,
    “Byron Barlow & Co.”
    Upon being notified by the Navy Department that the Tenino sandstone would not be accepted, the claimants — pi'OT testing against such requirement — offered stone from Sucia Island and also from Dog Fish Point, which was accepted and' used in the contraction of the dock.
    Upon their tendering such stone to the civil engineer in charge he wrote them under date of March 29, 1894:
    “Messrs. BryoN Barlow & ComraNY,
    “ Charleston, Washington.
    
    “GeNtlemeN: The receipt of your favor of yesterday is acknowledged, and in reply would say that the stones referred to therein, having been approved by the Bureau, will be accepted by me, subject to inspection under such specifications as I may be furnished with by the Bureau.
    “2. The specifications forming a part of your contract being of no effect under existing circumstances, I have asked for such specifications as will doubtless be furnished therewith before any stone will be delivered here.
    ‘ ‘ Very respectfully,
    “ü. S. G. White,_
    “ Civil Migioieer, IT. S. Namy, m Charge of Construction.”
    
    VI. When the attention of the Bureau of Yards and Docks was called to the alleged unfitness of this stone for the purposes required, the Navy Department, through the Chief of the Bureau of Yards and Docks, instituted an examination and inquiry for the purpose of determining the chemical ingredients, geological formation, the tensile strength, the porosity, the crushing strength, and the absorbent qualities of the said Tenino sandstone, and to this end a number of experiments, tests, and observations were had at the Bureau of Medicine and Hygiene at the Watertown Arsenal and at other scientific places by officers in charge of scientific institutions and persons skilled and learned in their respective professions, with the result that said Navy Department, through the Chief of the Bureau of Yards and Docks, reached the conclusion that said Tenino sandstone was not fit and suitable for the purposes to which it was proposed to use said stone; that said stone did not fulfill the requirements of the contract and specifications as above recited; that it was not a hard stone, nor a clean stone, nor free from imperfections; that its absorbent qualities were too high; that its crushing-strength was too low, and that it was' in many essential particulars totally unfit and unsuitable and undesirable for the use in the ashlar of this dry dock; and thereupon, to wit, on the 29th day of August, 1894, the contractors were notified of this decision of the Bureau of Yards and Docks, and were required to furnish other and better sandstone. From this decision of the Chief of the Bureau of Yards and Docks the claimants appealed to the Secretary of the Navy, who concurred in the opinion of the said Chief the Bureau of Yards and Docks, and concurred in his order requiring a different and better sandstone. The tests and analyses of said Tenino sandstone were made from samples furnished to the Bureau of Yards and Docks by the contractors and by the commandant of the Puget Sound station. The delay in arriving at the ultimate determination to require a better quality of sandstone, which was reached on the 24th of August, 1894, was partly caused by the fact that the claimants were in correspondence with the Secretaiy of the Navy in an endeavor to . persuade him to accept said Tenino sandstone. The tests and analyses of said stone, as above recited, were made promptly.
    VIL The amount of Tenino sandstone quarried, cut, and delivered was 2,349 cubic feet, amounting, at 65 cents a cubic foot, to 11,526.85.
    The claimants had also, before receiving notice of the rejection of the Tenino sandstone by the Bureau of Yards and Docks, caused to be quarried and cut, but not transported, 7,280 cubic feet, amounting, at 65 cents a foot, less the cost of transportation, 10£ cents a foot, 54i cents a foot, to ■ $3,967.60, making a total for stone actually quarried and cut, and part of which was delivered, of $5,494.45. That sum, however, has not been paid by the claimants to the owners of the said Tenino stone quarry, nor does it appear that any action or suit has ever been brought against the said claimants for said sum of money.
    
      The total amount expended by tbe claimants for furnishing, delivering, and cutting the stone which actually went into the ■ construction of said dry dock from Sucia Island and Dog Fish Point, as aforesaid, was $33,556.23.
    If they had been allowed to furnish Tenino stone they could have done so at a cost of $17,948.80. The additional cost, therefore, to the claimants of furnishing the stone which they did furnish, over and above what it would have cost them to furnish the Tenino stone, is the difference between the two sums last named, amounting to $15,607.43.
    YHI. The plans for the foundations of the boilers and boiler house were submitted to the civil engineer in charge of the work and approved by him, and the work was then done on said foundations in accordance with the directions of said engineer. The foundation for the boiler house was completed and accepted by said engineer and included in his monthly estimate and paid for. The foundations for the boilers were made in accordance with the drawings so submitted to said engineer, and were completely laid at about the time the engineer first in charge of said work was detached therefrom. Subsequently another engineer was placed in charge of the work. In his opinion the foundations were imperfect and insecure because of defective construction on the part of the claimants, and he required that they be relaid. The claimants, protesting that it was not competent to require them to change the foundations after they had laid the same to the acceptance of the engineer in charge at the time of the original construction, relaid the same in accordance with the direction of the engineer thus subsequently in charge. The matter was subsequently referred to the Chief of the Bureau of Yards and Docks, and he decided that the work was required to be done by the terms of the contract. It does not appear that the claimants appealed to the chief of the Bureau before doing the work or that it was ordered by him.
    The total additional cost of said work to the claimants was—
    For the extra foundations for the boiler house.§312.12
    And for the extra foundations for the boilers.. .. 384. 56
    Making a total of. 696. 68
    IX. In the execution of the contract the claimants drove a line of sheet piling transversely across the brick discharge culvert at tbe end of tbe brickwork. They then went on and drove tbe round piling forming tbe foundations for tbe brickwork of the discharge culvert. In cutting off this round piling, however, they made a mistake and cut the piling off 32 inches below the point where it should have been. As soon as this error was discovered they reported it to the engineer and suggested two methods of remedying the mistake. One was to start the brickwork 32 inches lower than "was originally shown, and to cany up the excess of height of 32 inches in brickwork. The other remedy was to build up with timbers on top of the piles according to the height where they had been cut off too low, and then start the brickwork on top of the additional 32 inches of timberwork. The Department accepted the latter plan and also required that they put in a concrete toe to prevent the teredo from attacking the sheet piling and timber-work. The claimants put in the timberwork as required, and made no charge for the same. They also put in a concrete toe, as required by the Navy Department. This concrete toe had no relation to the error which had been made in the original construction of the sheet piling, but would have been required irrespectively of any such error having been made.
    The additional cost to the contractors amounted to $59.35.
    X. In refilling the dirt after the altars were in place no part of the filling was rammed or sluiced except the clay puddling. This was in accordance with the instructions of the engineer in charge of the work. The claimants discussed the matter with him, and he informed them that it was not required to be rammed or sluiced. He embraced the work done in that way in his monthly estimates, and the claimants received payment for a large portion of the work done in that way at the contract rate of “filling and grading-per cubic yard, 30-cents.” In the latter part of August, 1894, however, there was a change in the office of engineer in charge of the work for the United States. The new engineer then placed in charge required the claimants to ram or sluice all back fillings. The claimants protested, insisting that the contract did not require anything more than depositing the material and evenly grading the surface to correspond with the grade of the station. The new engineer, however, required all' the work to be thoroughly sluiced with water, and all but a small part thoroughly rammed, and the claimants did the work in that way under protest.
    
      The additional cost to the claimants of doing this work, over and above what would have been required had thejr not been required to ram or sluice the same, would be 10 cents a yard, making, for 37,227 yards, $3,722.70. [The engineer who ordered the work to bé done in the manner stated referred the question of so requiring it, at the request of the claimants, to the Chief of the Bureau of Yards and Docks, who informed him that the Department approved his requirement, for the reason, as shown by the Bureau, that the contract plainly required it.] (Inserted by stipulation after judgment.)
    XI. During the progress of this work it was discovered that the soil at the bottom of the dock was of a very tenacious and unyielding character, so as to be difficult of penetration for piles driven by the ordinary drop-hammer process, and was so reported by the contractors. On the 15th of February, 1894, it was stated that the round piles which were then being driven penetrated to a depth of from 8 to 10 feet. It was stated by the Bureau of Yards and Docks, on February 27, 1894, in answer to this statement, that while round piles penetrating from 8 to 10 feet, as now stated, may be satisfactory, depending upon the resistance shown by the first blow, yet the Bureau thought that these piles should be driven to a depth of 15 feet below the bottom of the excavation, if possible. A copy of this létter was furnished to the contractors, but when the report for piles driven in February was received it was found that the average of 76 piles driven on the 15th of February was 5 feet 0.77 inch, none going to 8 feet, and of the 57 piles driven on the 16th the average was 5 feet 0.64 inch, none going to 8 feet; . and the average depth of the 891 piles driven in February was only 6 feet 0.82 inch. The general average for February was much reduced by the piles driven in the latter half of the month, after the attention of the contractors,- as well as the civil engineer, had been called to the unsatisfactory depth reached by these piles. This report called forth from the Bureau other letters in March and April urging that the piles be driven to a greater depth and reiterating the instructions contained in the Bureau’s letter of February 27. There was no claim made at this time by the contractors that they could not reach a greater depth than that hitherto reported. Thereupon tbe Bureau telegraphed definite instructions on the 13th of April to accept no piles driven to a less depth than 15 feet. The contractors made no attempt to show that they could not drive piles to that depth or to a greater depth than had been obtained, but employed experts to give an opinion after tests upon the' piles driven to show that the Bureau was wrong. In view of these facts, the Secretary of the Navy, on the 21st day of May, 1894, and upon the occasion of a visit to said dock by that official, verbally authorized and directed the contractors to sink the piles by a method known as the water-jet system — that is to say, by forcing water into the ground by means of a sink pipe operated by the hydraulic system, thus forming a hole into which the pile is set. The contractors objected to and protested against this method of driving the piles upon the ground that it destroyed and weakened the bottom of the pit, and subsequently a board of naval experts was convened for the purpose of reporting upon the advisability of sinking the piles by this system. The board reported adversely to this system, and recommended that the piles be driven in accordance with the provisions of the contract and by the ordinary drop-hammer process, the piles to be driven to a minimum of 6 feet. The remaining 696 piles, which were driven after this report by the drop-hammer process, reached an average depth of 10 feet 4 inches. The aforesaid board of naval experts, under the direction of the. Secretary of the Navy, passed upon the expense to which the contractors had been put on account of this verbal order of the Secretary of the Navy to the contractors, requiring them to sink said piles by said water-jet system, and recommended an allowance to said contractors therefor in the sum of $1,156.76. The amount thus recommended by this board of engineers was approved by the Secretary of the Navy and a voucher therefor was drawn, but when the same came before the Auditor for the Navy Department for audit and before the Comptroller of the Treasury for payment, it was refused, upon the ground that the services required were not extra and additional, but that they were such as the contract contemplated, and upon the further ground that the Secretary of the Navy, under the specific requirements of section 7 of the original contract, bad no power or authority to authorize or direct the incurring of this expense unless the cost of the same was first ascertained by a board of officers provided for that purpose before the expense was incurred, and reduced to writing, as required by the seventh clause of the contract. Whereupon the Secretary of the Navy procured the reference of this item to this court under and pursuant to the provisions of Revised Statutes, section 1063.
    The reasonable value of the work set forth and described in this finding is $1,156.76.
    XII. The delay incident to the experimentation with the water jet in driving piles, as stated in the last finding, extended from April 13, 1894, to July 5, 1894, a period of seventy days, exclusive of Sundays. The expense caused to the claimants by the defendants’ officers in the suspension of the work was $2,625.
    The board named in the last finding reported in .regard to the claim for these expenses as follows:
    “The board is of the opinion that the contractors are equitably entitled to a reasonable compensation for any additional expense incurred by them in the prosecution of the work in consequence of unusual delays that may be found to have been caused by the Government, but having no means of verifying the claim submitted for such additional compensation the board is unable to properly consider this question.”
    
      Mr. George A. Kvng for the claimant. Mr. Rufus 11. Thayer was on the brief.
    
      Mr. George 3. Gormam, (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    It is not the decision of the engineer in charge that is made final by this contract, but the decision of the Chief of the Bureau of Yards and Docks, subject to an appeal to the Secretary of the Navy, and the decision of that officer that the stone which was offered, to wit, the Tenino stone, was not of the quality and character required by the contract and specifications, and the.requirement of that officer to furnish other and better sandstone is, in the absence of fraud or such gross error as would necessarily imply bad faith, final and conclusive. (Ogden v. United States, 60 Fed. Rep., at p. 727; 
      Sweeney v. United States, 109 U. S., 618; Railroad Company v. March, 111 U. S., 549-553; RaAVroad Company v. Price, 138 U. S.., 185; Kennedy v. The United States, 24 C. Cls. R., 139; Elliott v. Railroad Compcmy, 74 Fed. Rep., 707-711; Gilmore v. Coiurtney, 158 Ill., 432, 437.) The contract in this case required that the stones for this ashlar should be hard, clean, and free from imperfections; that they should be of the very best kind and quality adapted for the work; that they should be free from all imperfections; that they should be entirely satisfactory to the Chief of the Bureau of Yards and Docks, and further provided that his decision upon that, as well as upon all other questions concerning the execution of this contract, was to be a finality. This and only this has been required, and there is and ought to be an end to the controversy.
    When the dispute arose over the suitableness of this sandstone, the claimants exercised the contractual right given to them by the above-quoted provision of the contract and obeyed the covenant therein contained to submit this matter to the • decision of the Secretary of the Navy. His decision coincided with that of the Chief of the Bureau of Yards and. Docks, and we submit that there is now no standing in court for claimants who, under a contractual obligation, have submitted a dispute to an arbitrator and seek to avoid that decision. If it be conceded that a mere agreement to submit a contractual claim to arbitration will not, at common law, oust the jurisdiction of the commondaw court, yet it has never been questioned that if, pursuant to such contractual covenant, the matter is actually submitted to arbitration, and the arbitrator passes upon it, it is a finality and is binding upon the parties and his award can not be in any wise interfered with by a court, unless it is proven to have been fraudulently brought about, because, of course, fraud vitiates everything. (Bwrchell v. Marsh, 17 How., 344; Kathand v. Ferrar, 1 Pet., 222.) Nor can a suit on the original cause of action be maintained on the ground that he had not proven before a referee all the damages that he had sustained, or that his damages exceeded the amount awarded. (Kendall v. Stokes, 3 How., 87-97; Runner. Murray, 9 Barn, and Ores., 780.) And it has been held that a covenant of this sort to submit a question to the decision of the person named in the contract as a condition precedent, and that no suit can be entertained in a court until it be shown that such submission has been made to the party named in the contract, and that when made the referee either failed or refused to decide the question submitted, or else rendered a fraudulent decision. (.Perkins v. The Electric Lighting Company, 16 Fed. Rep., 514; see also New England Trust Company v. Abbott, 162 Mass., 148; O’ Donnell v. Forrest, 44 La. An., 845.) It is argued for the claimants that even if it be conceded that the Chief of the Bureau of Yards and Docks or the Secretary of the Navy had a right to supervise the judgment of the engineer in charge and to require other sandstone, that the decision came too late and that it must have been exercised within a reasonable time and that in this instance it was not so exercised. Even if this contention were true, it would only result in an obligation on the part of the Government to pay the claimants for whatever work was done, or material actually furnished prior to the rendition of such a decision, and would not result in what the claimants demand, to wit, the difference between the cost of Tenino sandstone and the sandstone actually furnished for the whole dock. The decision, therefore, would be that, if the court should take this view of the case, the most that judgment could be rendered for would be the cost to the claimants of the Tenino sandstone which had actually been quarried and used at the time of the rendition of the decision of the Bureau of Yards and Docks, and this, as a matter of fact, is nothing, as will be shown further on in this brief.
    There is nothing in the contract which limits the exercise of this right of decision on the part of the Bureau of Yards and Docks as to time, and we submit that it is a continuing and subsisting right, and that at any stage in the progress of the work where the fact is brought to the attention of that officer that anjr material used nrthe construction of the work does not conform to the contract and specifications, the right abides in him to require proper materials to be furnished in lieu of the improper ones which have been used. The case of Spicer v. The United States (1 C. Cls. R., 316) is instructive upon this point.
    As to the charge made for extra foundations for the boiler bouse and boilers, the extra work at the exit of the discharge culvert, and to tbe charge for ramming' and sluicing the fillings behind the altar walls there manifestly can be no recovery under the provisions of this contract and the decisions of this court upon precisely similar provisions in Ferris’s Oase (28 C. Cls. R., 882) and /Simpson’s Oase (31 C. Cls. R., 217, 243).
    The work and labor sued upon in the items under consideration were not regarded bjr the parties as extra, but were demanded by the Government because they were required to be done under the provisions of the contract. But whether so regarded or not, there can be no recovery had upon them, because of their failure to comply with the provisions of the contract. (Ferris Oase, 28 C. Cls. R., 332); Simpson v. The United States, 31 C. Cls. R., 217. See, in accord, Dales’ Oase, 14 C. Cls. R., 533; Kennedy’s Oase, 24 C. Cls. R., 144; Flridge v. Fwr, 59 Mo. App., 144.)
    It is admitted that no supplemental agreement was ever had covering the articles here sued for, and that no attempt was made to comply with the requirements of the contract in this regard; and it follows, therefore, from the terms of the contract and from the above-cited decisions that no recovery can be had for these alleged extras.
    Manifestly there could be no semblance of an implied con-. tract or agreement- for the payment of extra for the work here charged for, because “the party of the second part expressly repudiated the idea that it was extra, and a man can not be held to impliedly promise to do a thing which he expressly refuses to do.
    The Secretary of the Navy was not the maker of this contract and had no authority or control over it whatsoever. He was not the agent of the United States for the making of this contract and had no more right to incur an obligation for the payment of money by the Government in and about its construction, contrary to the terms of that contract, than the merest stranger in the land. Nor would any other person, even the Chief of the Bureau of Yards and Docks, who was the party of the second part to the contract, and who executed it on behalf of the Government, have any right to' incur such obligation except in strict accord with its terms. The principle bere involved is precisely the same as that which was before the court in the Ferris Gase (28 C. Cls. R., 332), and in the Simpson Gase (31 C. Cls. R., 217), and in the Mawhvns Gase (96 IT. S., 689). ' The authority of these decisions negative all notion of the right of the Secretary of the Navy to incur such an obligation. Not only is the Secretary of the Navy inhibited from incurring such an obligation by the specific provisions of the contract itself, but he is likewise commanded not to do so by the provisions of the statute law. (§ § 3679, 3732, 3733, 3744, Revised Statutes.) -
    This act has been held to be a statute of frauds as clearly as that of 29th Car. II, and contracts not made in conformity with its provisions are absolutely void. (Ciarle v. The United States, 95 IT. S., 541; South Boston Iron Go. v. United States, 118 IT. S., 37,42; Chapter of Calvary Oathecbral v. United States, 29 C. Cls. R., 269.)
    A public officer is limited in the exercise of his capacity as agent of the Government by the positive commands of statute law, and can onty bind the Government when he has express authority to do the very identical thing and make the very identical promise that he did make. In the one case the authority is inclusive, and in the other it is exclusive. This distinction is nowhere better stated than by Mr. Justice Clifford in the case of Whiteside et al. v. The United States (93 IT. S., at pp. 256, 257). See, in accord, Story on Agency, 6th ed., sec. 307a; Lee^r. Monroe, 7 Cranch, 376; Mayo7'v. Eseh-bacla, 17 Md., 282; State v. Mayes, 52 Mo., 578; Delafield't. The State, 26 Wend., 238; Mayor v. Reynolds, 20 Md., 10.
    It was early settled that the promise of a Cabinet officer, or any other agent of the Government, to pay money or to obligate the Government for the payment of money, if made without authority of law, is absolutely void. (Stambury, 8 Wall., 33.)
    Decisions of like import have been rendered in this court and in the Supreme Court of the United States for the last half century, the latest decision on the subject being that of the case of Ga/rlanger v. The United States (169 U. S., 316).
    See also case of United States v. Kvng (147 U. S., 676)-and Mulletts, administratrix, v. United States (150 U. S., 566, 570), wherein are collected many cases bearing upon this subject.
   Nott, Ch. J.,

delivered the opinion of the court:

The contract in this case, bearing date the 29th of October, 1892, provides “ that if at any time it should be found advantageous or necessary to make any change or modification in the aforesaid plans and specifications, such changes or modifications must be agreed upon in writing.” The parties acted under this provision no less than eleven times. There are eleven supplemental contracts, in one of which the trivial sum of $17 is the total consideration.-

The defendants now contend that the claimants can not recover upon some of their causes of action because this provision of the contract was not complied with. It is manifest, however, that neither of the parties to the contract considered the provision as applicable to most of the matters now in issue. The Chief of the Bureau of Yards and Docks certainly did not. He did not seek to make any change or modification in the “aforesaid plans and specifications” which would involve additional expense. On the contrary, he regarded everything that was done under his direction and requirements as an obligation resting' upon the contractors under the original contract. The one party maintained that the contractors were bound by the contract; the other party maintained that they were doing extra work or furnishing better material under requirements which were not contained in the contract.

The contract also provides that “ no omission in the plans or specifications of any detail, object, or provision necessary to carry this contract into full and complete effect, in accordance with the true intent and meaning hereof, shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the contractors. And all claims for extra compensation by reason of, or for, or on account of, such extra performance are hereby,'in -consideration of the premises, expressly waived.”

To the court it seems plain that this provision applies only to “omissions,” to matters of “detail,” and only to such “omissions,” and “matters of detail” as shall be “necesscury to carry the contract into full and complete effect, in accordance with the true intent and meaning thereof.” It cannot be held, in the opinion of the court, that the things which the Chief of the Bureau compelled the contractors to do were “omissions” on “matters of detail,” or “necessary” to carry the contract into effect. On the contrary, they were clearly changes or additions which the Chief of the Bureau had or had not the right to require within the true intent and meaning of other provisions of the contract.

The contract also pi’o vides “ that if any doubts or disputes arise as to the meaning or requirements of anything in this contract, or if any discrepancy occurs between the aforesaid plans and specifications and this contract, the matter shall be at once inferred for the consideration and decision of the Chief of the Bureau of Yards and Docks, and his decision thereon shall be final, subject, however, to the right of the contractors to appeal from such decision to the Secretary of the Navy, who, in case of such appeal, shall be furnished by the contractors with a full and complete statement of the grounds of their appeal, in writing, and shall thereupon take such action in the premises as, in his judgment, the rights and interests of the respective parties to this contract shall require, and the parties of the first part hereby bind themselves and their heirs and assigns, and their personal and legal representative, to abide by his, the said Secretary’s, decision in the premises.”

But here it must be noted that this fourteenth provision of the contract is grounded upon “doubts and disputes,” which are to be at once referred for the consideration of the Chief of the Bureau, whose decision is to be final unless appealed from to the Secretary. The doubts and disputes are manifestly those which might arise between the contractors and the engineer in charge. In other words, the contract provided that before the provision should become practically binding, it would be necessary that the engineer in charge, the Chief of the Bureau, and the Secretary of the Navy should all decide against the contractors, and that two of the three should be disinterested. As regards some of the matters in controversy there was no “doubt” or “dispute” on the part of the engineer in charge — his decision was on the side of the contractors — the controversy was begun by the Chief of the Bureau.

If the full intent and effect be given to this provision which tbe defendants now ascribe to it, the contractors might as well ■ have written an agreement on half of a sheet of paper, bind-, ing themselves to perform whatever work and furnish whatever material the Chief of the Bureau might require, and accept therefor whatever remuneration the .Secretary of the Treasury might be pleased to give them.

In Douglas’s Case (2 C. Cls. B., 347) this court said “there are agreements to abide by the decision of a third person, reciprocally obligatory upon both the parties, which are always to be upheld — as an agreement that wagons to be manufactured shall be examined and approved by a certain inspector (Albert Droion’s Case, 1 C. Cls. B., 307), or that the title to an estate to be conveyed shall be approved by the Attorney-General {H&rchamts1 Exchange Company's Case, lb. B., 332), but a decision under this contract by the referee, made after the contract has expired, and when the rights of the parties had become settled and fixed thereunder, can not preclude them from appealing to a court of j ustice. ” In Hurts v. Litchfield (39 N. Y. R.), where a contract provided that “in case any question arises under such contract in relation to the work, both as to value of work added or. deducted, the same shall be adjusted by the architect,” the Court of Appeals held that the provision was not binding, being against the policy of the common law, and having a tendency to exclude the jurisdiction of the courts, provided with ampler means to entertain and decide legal controversies.” The court also said that such stipulations “do not deprive the party of his action, either at law or in equity, to enforce his rights.” Many cases are cited, English and American. The Court of Appeals recognized as valid such stipulations as have always been upheld in this court, cases “where an agreement makes the procurement of an architect’s certificate a condition precedent to any right of action; then,” says the court, “the rule is as claimed by the defendant in this case, but such is not the agreement between these parties.”

In the many cases in which it has been held that where a contract provides that the architect or the engineer in charge shall determine the quantity or the fitness of the material or the sufficiency of the work his decision is ordinarily final it has been the reference of a matter of fact to the arbitrament of a person peculiarly fitted by his own knowledge concerning- the subject of dispute to determine a simple fact. But since the decision of the Supreme Court in Glarlds Case (6 Wall. R., 543) it has never been supposed that even the engineer’s system of measurement was conclusive of the contract- or’s rights. (Collins and Farwell, 34 C. Cls. R., 294.) In the cases of all building contracts there are matters to be determined as the work progresses. Some one must pass upon the fitness of the material, the sufficiency of the workmanship, the amount of work performed, etc. These are matters which can not bo-left until a building is completed; it is for the interest of both parties that they be settled as the work proceeds. The architect or engineer in charge being the person most familiar with the work, and professionally fitted to pass upon such questions, is ordinarily designated as the referee or arbitrator to determine them. Such agreements for such arbitraments must be upheld. But the agreement now under consideration is a very different thing. It goes far beyond anything that has come before the court since the case of Douglas, for it sets up the Secretary of the Navy, having no personal knowledge of the matter in dispute, as being in effect an appellate court of justice' — the court of last resort. It in effect binds one party to abide as to every matter of fact, and as to every question of legal right, by the decision of the other party. Lord Coke said centuries ago that it becomes no man to be both judge and party in the same case.

Certain statutes have been interposed as a defense (Rev. Stat.,secs. 3744, 3697, 3722,3733). Some of these are man-dator y; some merefy directory. In Clark v. United States (95 U. S. R., 539) the Supreme Court held that the statute which requires contracts to be reduced to writing is mandatory, but at the same time expressly held that “where, however, a parol contract has been wholly or partly executed on one side, the party performing will be entitled to recover the fair value of his property or service as upon an implied contract for a quantum meruit.” The Supremo Court also held about the same time that “the principles which govern inquiries as to the conduct of individuals in respect to their contracts are equally applicable where the United States are a part3r,” and that where an individual contractor would be liable for having ordered the suspension oBthe work “the United States must answer according to the same rule.” (United States v. Smith, 94 U. S. R., 214-217.) In Semmes (& Barbour (26 C. Cls. B., 119), sections 3679 and 3732 of the Bevised Statutes were interposed as a defense, and there was also a statute relied upon which forbade contracts to be made for buildings “to be used for the purposes of the Government in the District, of Columbia;” but the court held that these provisions of law “undoubtedly applied to express contracts,” and “have no application to that class of implied contracts which arise from acts of public officers in the performance of their duties in carrying on the business of the Government.” In many cases it has been held that though Congress may limit the expenditure to the amount appropriated, the contractor “is not bound to know the condition of the appropriation account at the Treasury.” (Myerles Case, 33 C. Cls. R ., 1, and cases cited.)

In the case mow before us it was also supposed by the accounting officers that the provisions of the contract requiring new or additional work to be ordered in writing bound the Secretary of the Navy, himself, and that ho could neither order such work to be done in any other way than that provided by the contract, nor pay for it when it had been done.

As such provisions in contracts are constantly causing disputes and controversies, we now formulate the principles governing them, which we regard as well settled:

1. Where additional work or better material than the contract requires was ordered by a subordinate officer having no such authority, the compliance of the' contractor must be regarded as voluntary service, and no contract can be implied, even though the defendants acquired a benefit by the change; that is to say, the Government can not thus be compelled to build a better building than was intended by its responsible contracting officer. (.Driscoll’s Case, 34 C. Cls. R., 508, and cases cited, p. 524.)

2. Where, on the contrary, the alterations or additions' were ordered by an officer clothed with responsibility and authority to contract, a contract will be implied to the extent of the benefit which the defendants have received, and the claimant will recover in quantum meruit. (Hawkins v. United States, 96 U. S. R., 689.)

3. Where a contract expressly provides that alterations or additions must be ordered in writing and the cost be agreed upon before the work be done, the principals to the contract in ordinary cases between individuals may waive the requirement; so in the case of Government contracts, the officer who has authority to order or agree in writing must be con-sideredyw hoto vice as the principal, and if he orders a change orally, and the contractor acts on the order and performs the extra work, the parties will be deemed to have mutually waived the requirement. (Ford's Case, 17 C. Cls. R, 75.)

In a few words, it may be said that' the statutes and these contractual provisions must be construed for the protection of the Government and not for the embarrassment of contractors; and that they can not be used by public officers to cloak breaches of contract or justify improper interference with the work, or to acquire in any way an unfair advantage over the other party. It is for the interest of the Government that its good faith and business responsibility shall be upheld. A policy which precludes legal redress will drive every prudent and responsible contractor out of the field of competition.

The principal item in controversy is for the sandstone of which the dock was constructed. The specifications, which are a part of the contract, and upon which the claimants predicated their bid, provide: “The ashlar must be of granite or sandstone of quality approved by the engineer. All stone must be hard, clean, and free from seams and imperfections, and of good bed and build. ” Two bids were submitted by the claimants, one for granite and one for sandstone. The defendants’ officers accepted the bid for sandstone. The claimants then tendered a sample of the stone and the engineer in charge examined it and visited the quarry from which it was taken. He made a careful examination and satisfied himself as to the quality of the stone, its uniformity, its freedom from sand and mica pockets, from pebbles and boulders; he noted the reaction of the stone under channelers then in operation; ho visited the works where the stone was being sawed and noted the reaction under the saw; he examined unused blocks of stone which had been exposed to the weather for a long time, and he examined it in many other ways. After these tests and examinations the engineer approved the stone so tendered by the claimants, which was known as the “Tenino stone,” and informed the claimants that it would be accepted for all work under the contract. The claimants thereupon proceeded to contract with the- owners of the quarry for that stone, and the owners of the quarry proceeded to excavate and deliver stone. A carload was furnished and delivered at the site of the dock, consisting of 2,377 cubic feet, which was accepted by the engineer in charge and the usual voucher for payment given, to wit: That it was “of good quality and in all respects in conformity with the written contract.” The voucher was approved by the commandant of the navy-yard.

Before this voucher was paid an organization known as the “Tacoma Trades Council of the State of Washington” complained to the Navy Department of the bad quality of the stone. It is asserted by the claimants that this was a malicious act in retaliation for the refusal of the claimants and the' owners of the quarry to employ - union labor. With this charge the court has nothing to do; the “Tacoma Trades Council ” is not now on trial. But any person has a right to lodge a complaint with the proper authorities where there is a public work that is not being properly carried out, and the executive authorities in charge of the work would be wanting-in vigilance if they did not look into the complaint.

In this case the Chief of the Bureau did examine the stone which the claimants furnished, and he caused tests to be made more or less satisfactory to himself; and he examined stone from other quarries, and he decided to reject the-stone which the claimants had agreed to furnish, and compelled them to procure stone from another quarry, which he designated, at a greatly increased price. The claimants, after protesting and appealing to the Secretary of the Navy, who affirmed the decision of the Chief of the Bureau, complied with the requirement. They seek to recover the additional cost which they were subjected to by this action of the Department.

On the part of the defendants it is said that by the fourteenth paragraph of the contract the claimants bound themselves to abide in all cases of doubts or disputes by the decision of the Chief of the Bureau, subject only to an appeal to the Secretary of the Navy, and that the contract also provided that the work to be done under it should be entirely satisfactory to the Chief of the Bureau. It is true that the Chief of the Bureau was the contracting officer, and it is true that it was his duty to secure a public work of the best character. It is also true that if ho found that the work which had been done was not going to secure all that was needed or intended for the public welfare it was his duty to have the work done over again. But it is also true that when he invited bids ho described to the bidders the work which they should do and the materials which they should famish, and among other things he told them that the stone which they should furnish should be subject to the approval of the engineer whom he might select to bo the agent of the Government in chai’ge of the work. He imposed no other condition. Furthermore, it is also true that he made that proposition a part of the contract, and that he allowed the engineer in charge to examine the quany and select the stone, and notify the claimants that this stone was accepted and approved, who consequent^, on the faith of the approval, proceeded to bind themselves to their subcontractors, the owners of the quarry, for the procurement of the stone, and he allowed the parties to proceed to excavate and prepare and deliver stone. Finally, it is also true that he and not the engineer in charge rejected the stone; and that he and not the engineer in charge selected the other stone which the claimants were required to furnish. In a word, he departed from the terms of the contract both positively and negatively, bjr himself deciding a question which it was agreed another person should decide, and by not cany-ing out that which the engineer in charge (who was on the ground and could give his personal investigation to the stone and the quarry from which it was taken, and the works and edifices in which it had been tested by actual use) had in effect determined. To hold that the Chief of the Bureau could do this would be to hold that he could tear the contract to pieces at an}7 time during the performance of the work, and require the work to be done according to a contract into which the parties had never entered. The Chief of the Bureau did right in making changes conducive to the public interest, but he could not make these changes at the cost of the other contracting party. On the 30th of June, 1893, he decided “that this sandstone for the dock should be out of the best to be obtained.” That may have been a judicious and necessary decision, and it is not for the court to question it, but the best sandstone which could be obtained was not the stone prescribed by the contract.

The court does not intend to pass upon the issue whether the one stone was better than the other, or whether either or both were sufficient for the uses and purposes to which the stone might be put. It is incontrovertible that either the engineer in charge or the Chief of the Bureau was the person to determine this question, and the resulting question as to which was the proper person is one of law. In the absence of fraud, collusion, or gross mistake the decision of the proper arbitrator was final and conclusive. There is no fraud or collusion in the case, and the court is entirely satisfied that the engineer in charge acted with due care and caution, and that his decision was the exercise of his best judgment.

The contracts between the claimants and their subcontractors have been brought into the case by both parties, and the defendants rely upon them as being to some extent a defense to the claimants’ demand for damages.

But since the decision in the'leading American case of Masterton v. Mayor of Brooklyn (7 Hill N. Y. R.., 61), it has been held generally and also by this court that such subcontracts can not “be taken into the account, or become the subject-matter of consideration at all in settling the amount of damages to be recovered for a breach of the principal contract.” The defendants certainly were not a party to them and can neither be injured by them nor obtain an advantage from them. The rule for the measure of damages for breach of contract in such cases, where the contractor is not allowed to perform according to the terms of the contract, is too well settled to be either questioned or discussed.

The causes of action set'forth in Findings vix, ix, xi, and xii are sufficient, in the opinion of the court, to entitle the claimants to recover. As to the causes of action sot forth in Findings vm and x, the court is of the opinion that the claimants should have submitted the requirements of the engineer in charge to the Chief of the Bureau before proceeding with the work. They were required to do so by the terms of the contract, and authority to compel them to do additional work was thereby reserved to the Chief of the Bureau.

The judgment of the court is that the claimants recover of the defendants $24,942.99.  