
    JOHN R. GLEASON AND GEORGE W. GOSNELL v. THE UNITED STATES.
    [33 C. Cls. R., 65; 175 U. S. R., 588.]
    
      On the defendants' Appeal.
    
    Claimants enter into two contracts for enlarging the Louisville and Portland Canal. Both are extended. During the period of the last extension the condition of the Ohio River is unusual and unprecedented, in consequence of which the working season is limited to ' about thirty-five days, and the claimants, without fault on their part, are prevented -from completing the work within the time fixed by the last extension. They therefore apply to the engineer . in charge for an allowance of additional time; it is refused on the ground that they failed to complete the work within the times agreed upon prior to the last extension.
    The court below decides:
    Where extensions of time are granted to complete a contract, all prior delays or defaults are waived and can not be revived.
    Where performance is prevented by the act of God, no breach can be assigned, although no reference thereto was made in the contract. Where a contract provides that such additional time may be allowed, if delay is caused “ by freshets,ice, or other force or violence of the elements,” as in the judgment of the engineer in charge “shall be just and reasonable,” there is no discretion left in the engineer except as to the amount of time to be allowed, and that must be just and reasonable. In such a contract the word “may” must be construed tornean “shall.”
    
    ■1. Where the engineer in charge reports from month to month that delays have been caused by freshets, preventing the contractors from completing their work within the time agreed upon, he concedes that the conditions call for an extension; and in the absence of fraud or gross error the defendants will be bound thereby.
    5. Where a contract for excavation is annulled by the Government, an element of damage will be the value of the material which, by the terms of the contract, was to belong to the contractor when'excavated.
   The decision of the court below is reversed on the ground that the contractors, if they failed to complete the work within the time limited, had no right to further extension of time, except as approved by the engineer,

The part of the decision allowing judgment for retained percentages is affirmed.

Mr. Justice Si-iiras

delivered the opinion of the Supreme Court January 8, 1900.

Mr. Justice HarlaN, Mr. Justice Brown, and Mr. Justice White

dissented from the construction of the contract on the subject of the power of the engineer officer.  