
    THOMAS H. LYONS v. THE UNITED STATES.
    [No. 16619.
    Decided May 13, 1895.]
    
      On the Proofs.
    
    A contract provides that the claimant shall “furnish, deliver, and deposit around the base of the Washington Monument 850,000 cubic yards of earth filling.” The specifications show that a topographical map has been made, “showing the horizontals of the surface, or differences of level,” which is to he “used in determining the amount of filling deposited,” the calculations to ho made “under the direction of the officer in charge, and the quantities determined to be the quantities to be paid for by the United States.” Partial measurements are made during the progress of the work “as for embanTcment work," without any allowance for shrinkage.
    
      I.When a government enters into a contract with an individual it deposes, as to the matter of the contract, its constitutional authority and exchanges the character of a legislator for that of a moral agent with the same rights and obligations as an individual.
    II.If a contract is silent on the subject of an allowance for shrinkage, and the general custom prevailing among ordinary contractors is applicable to contracts with the Government, the contractor is entitled to recover, nothwithstanding that the general law has been modified as to public contracts by the Aot %d June, 186% (12 Stat. L., p. 411). The cases relating to Government contracts reviewed.
    III.Where a contractor is to furnish, deliver, and deposit 250,000 cubic yards in a designated place of earth filling, more or less, the price is not for so many cubic yards of finished embankment, but for so many yards of earth filling actually furnished; and the method prescribed by the contract for ascertaining the quantity furnished does not constitute an agreement to build an embankment. Hence the contractor in a proper case may recover for shrinkage.
    
      The Reporters’ statement of tbe case:
    Tbe ’following are tbe facts of tbis case as found by tbe court:
    I. February 19,1887, tbe following was issued as an advertisement':
    “Sealed proposals for eavtb filling around tbe terrace at tbe base of tbe Washington Monument will be received at tbis office until 12 m. on Thursday, tbe lOtb day of March, 1887,_ and opened immediately thereafter in tbe presence of bidders.'
    “Specifications and other information may be obtained at tbis office.
    “Thos. Lincoln Casey,
    “ Colonel, Corps of Engineers.”
    Tbe specifications therein referred to are set forth in tbe opinion of tbe court.
    II. Pursuant to tbe advertisement thus made and in conformity with tbe specifications aforesaid, divers persons bid, some for 60,000 cubic yards, some for 120,000 cubic yards, and some for 125,000 cubic yards, and for various amounts, but tbe claimant was tbe accepted bidder, and a contract was prepared and furnished by tbe defendants and entered into with tbe claimant, of which, the material parts are set forth in the opinion of the court.
    The claimant executed a bond as required for the faithful performance of his contract.
    III. In doing the work the earth deposited was much driven over by the teams. The work extended over a period of eighteen months. Partial estimates were made from time to time as the work progressed, upon which payments were made, and after the work was finished a final measurement was made, as for embankment work, fixing the quantity of earth deposited at 224,572.3 cubic yards, without any allowance for shrinkage.
    Upon the basis of the final measurement thus made payment was made to the claimant, he at the time reserving the right to claim a proper allowance for shrinkage.
    IV. At the time of the execution of the contract set forth in finding ii, and long prior thereto, there existed a general custom, well known, i. e., that when the contract is silent- on the subject an allowance for shrinkage is made to the contractor in the measurement of an embankment of the magnitude of the work covered by the claimant’s contract herein.
    V. The shrinkage of the earth deposited by the claimant in the performance of his contract was about 10 per cent of the quantity set forth in finding hi, or 22,457 cubic yards.
    VI. The claimant furnished the material and performed the work as required by the contract, which were accepted, by the defendants.
    VII. For the quantity of shrinkage embraced in finding v no allowance was made, nor has any payment been made to the contractor therefor.
    
      Mr. W. P. Lyons and Mr. Jere Wilson for the claimant:
    1. We invoke the doctrine laid down by the Supreme Court of the United States in the case of Robinson v. United, States (13 Wallace, 366), as follows: “Parties who contract on a subject-matter, concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary.” (See also cases of Puci v. Barney, 21 N. T. S., 1099; Ohateaugay Iron Oo. v. Blalce, 144 U. S., 476 j Lowe v. Lehman, 5 Ohio Stat., 179,180.)
    2. The evidence in this case discloses the following: That it was, at the time this contract was entered into, a general and well-known custom, known to both contracting parties, in work of this character, where the contract is silent on the.subject, to allow for “ shrinkage ” in making measurements. That is to say, where earth deposited is measured in the embankment allowance is made for what is technically known as “shrinkage.” In other words, to the amount found in the embankment after deposit a certain percentage, in addition to the amount there found, is added, dependent upon the character of the material, for the purpose of ascertaining the quantity that was actually furnished, delivered, and deposited.
    3. We respectfully submit that the evidence above alluded to conclusively establishes that that custom existed and was well known, and on the principle of the cases above cited must be deemed to be incorporated in this contract, unless, by the terms of the contract,’ it is excluded.
    4. Thus we are brought to the question of the method of ascertaining the quantity of earth deposited, and that method, as we have before seen, is, according to universal custom and accepted authority known to both parties, to allow the contractor, when the earth is measured after deposit, a certain percentage on account of what is known as shrinkage.
    5. In answer to this it may be urged that the measurement made by the engineer officer is final as to the quantity. The contract contains the following provision: “The decision of the engineer officer in charge as to the quality and quantity shall be final.” '
    Our contention, as above indicated, is that the contract provides for the payment of every cubic yard furnished, delivered, and deposited, and properly interpreted allows shrinkage, and that the universal usage or custom above referred to is, by operation of law, incorporated into the contract; and in reply to any contention that the decision of the engineer officer as to quantity is final, we state the following proposition:
    If the engineer officer proceeded upon a wrong interpretation of the contract, or excluded from his calculations a factor of which the contractor was entitled to the benefit, the court will give him relief, notwithstanding the provision that the decision of the engineer officer shall be final.
    This proposition is thoroughly sustained by the following authorities: Robertson v. Franh Brothers Go., 132 U. S., 17; Leiois v. Chicago, etc., R. R., 49 Fed. Bep., 708; Alton R. R. Go. V. Northcott, 15 Ills., 49; Starhey v. JDeGroff, 22 Minn., 431; 
      M. & G. B. jR. Go. v. Veeder & Go., 17 Obio, 385; MoAvoy v. Long, 13 Ills., 147.
    We submit that tbe engineer officer, in making tbe measurement referred to, obviously proceeded upon a wrong principle — wrong because be proceeded upon tbe theory that this contract provided for tbe filling of a definite space, tbe cubical contents of which were to be measured, and not tbe cubical contents of the earth filling furnished, delivered, and deposited, and wrong because he ignored that most important provision of tbe contract, to wit, tbe custom above alluded to, which by law is incorporated into and became a part of tbe contract between tbe parties, and having proceeded upon a wrong principle and upon a wrong interpretation of tbe contract, bis decision is not final, but is subject to revision by this court, as is shown by tbe authorities above cited.
    6. It is obvious that tbe prices that might be awarded to different individuals might be different, from tbe fact that tbe earth might be taken from different places, and consequently tbe cost of transportation might be higher from one place than from another. One man might have a lot from which he desired to have the earth removed within a convenient distance of the place of this filling, another at a more remote distance, and so on. And it was open to the contracting officer to accept bids from any and all persons who might desire to deposit earth in this place, and to make contracts with these persons for so much earth as might be delivered.
    This being so, it necessarily follows that it was in contemplation that the earth furnished, delivered, and deposited was to be measured to the person so furnishing, delivering, and depositing, not as it would appear in the embankment when finished, but as' it was delivered at the time of such deposit. If left to different parties there could be no other mode of measuring than that just indicated; and no other mode of measurement could have been contemplated if the contract were let to one individual. If the contract were let to more than one the division between them, by measurement after the work was completed, would be impossible, and it seems to us, therefore, to irresistibly follow that our contention that it was not the cubical contents of a space that was to be measured, but the cubical contents of the earth as deposited, is sound.
    
      7. If there is any doubt that the contract should be construed to entitle the claimant to shrinkage, that doubt should be resolved in his favor.
    The contract was prepared and furnished by the defendant. {Gants’s Case, 18 C. Cls. K., 569.)
    Before the contract was signed claimant called attention to the fagt that the contract contained nothing on the subject of shrinkage, but he was assured that whatever was fair and customary he would get.
    The engineer officer in charge knew that at the time of the execution of the contract claimant construed and understood the contract to allow shrinkage, and this interpretation must be adopted. White v. Hoyt, 73 N. Y., 505; Potter v. Barthelet, 20 Fed. B.., 240; Goulding v. Hammond, 49 Fed. B., 443.)
    And it is quite apparent, from the evidence, that it was the understanding of the Government engineers that shrinkage was to be allowed not only at the time the contract was made, but also during the time the work was in progress. This was the construction of both jjarties, and that construction must prevail. (See Davis v. Shafer, 50 Fed. B., 764; Garrison’s Case, 7 C. Cls. B., 78; 7 Wall., 764; Potter v. Berthelet, 20 Fed. B., 240; Henderson Bridge Go. v. McGrath, 134 U. S., 275.)
    The construction given to the contract by the Government engineer that shrinkage should not be allowed can not operate to deprive the claimant of shrinkage. {McGowan’s Case, 20 C. Cls. B., 476.)
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Dodge) for the defendant:
    The contract is plain and unambiguous in its terms. The claimant agreed to provide earth of a certain quality, and to do a certain piece of work with that earth. He undertook to extend the earthen terrace then surrounding the Washington Monument outward in every direction with earth filling, so as to make a gradual slope of its surface down to the surrounding grounds, under the direction of the engineer officer in charge of the work; and he agreed that in determining the amount of filling deposited a certain topographical map of the grounds surrounding the terrace, showing the horizontals of the surface for differences of level of 6 and 12 inches over the area to be filled in, would be used in making calculations of the contents of the masses deposited upon the surface so mapped; and the specifications required bidders to state the price per cubic yard they would put the filling in for, -and not merely the price of the loose earth delivered. This was clearly an undertaking to make an embankment of earth, and an agreement that in determining the amount of work done the measurements should be of embankment, and not of loose earth excavated, hauled to, and placed in the embankment.
    An attempt has been made to prove, in support of the claim, that in measuring embankment work it is usual to allow a percentage for shrinkage. In the absence of an express contract such proof might be admissible for the purpose of determining the number of cubic yards of loose earth put into work if payment was to be made for loose earth. But as a thousand cubic yards of loose earth will not make a thousand cubic yards of filling in embankment work, it would be unreasonable, in a case of express contract to pay for embankment work, to require the party for whom the work is done to pay for more embankment than was made. We say that an attempt has been made to prove that an allowance for shrinkage is'usual in measuring embankment work, but such practice, even if established by competent proof, can have no application here or in any case where the contract calls for a number of cubic yards of earth embankment to be made, and the embankment itself is to be measured and paid for at a fixed price per cubic yard. If the question was merely as to the quantity of earth excavated and delivered, and the excavation measurements were lost, then, in such case, measurement of the earth put into the embankment, plus a reasonable percentage for shrinkage, might be resorted to in order to determine the number of yards of loose earth delivered. JBut such a question does not arise on the contract in suit, which is clearly an agreement for embankment work, for measurement of embankment made, and payment for embankment accepted at a fixed price per cubic yard.
    It is now alleged by claimant that he expected to be allowed for loose earth delivered instead of for embankment made. If he so expected he shouid have changed his bid and made a different contract; for he admits that he understood the contract as not allowing for any shrinkage of earth; and that he acted on that understanding throughout is clear from the fact that he kept no record of the number of yards of loose earth delivered.
    Testimony to vary the terms of a written instrument is of course inadmissible, and hence the alleged custom has no relation whatever to the contract in suit.
   Peelle, J.j

delivered the opinion of the court:

This is an action on a contract entered into by and between the claimant and the defendants on the 19th day of March, 1887, whereby the claimant agreed to “furnish, deliver, and deposit around the base of the Washington Monument, in the city of Washington, District of Columbia, 250,000 cubic yards of earth filling, more or less, for the sum of 39 cents per cubic yard, to be paid to the said party of the second part in lawful money of the United States, said filling to extend over the pond just north of said Monument.”

The specifications show that a topographical map had been made, “showing the horizontals of the surface for differences of level of 6 and 12 inches,” and that such map would be “used in determining the amount of filling deposited by the contractor by calculations of the contents of the masses deposited upon the present existing surface,” and that such calculations should be made “under the direction of the officer in charge, and the quantities determined shall be the quantities to be paid for by the United States.”

The contract further provided that “all material furnished and work done under the contract shall, before being accepted, be subjected to a rigid inspection by an inspector appointed on the part of the Government, and such as do not conform to the specifications set forth in this contract shall be rejected.”

“The decision of the engineer officer in charge as to the quality and quantity shall be final.”

The work was commenced and completed within the time and in the manner provided in the contract.

During the progress of the work, which extended over a period of eighteen months, partial estimates were made from time to time, upon which payments were made, and when the work was finished a final measurement was made as for embankment work, fixing the quantity of earth filling deposited at 224,572.3 cubic yards, without any allowance for shrinkage.

Upon the basis of such final measurement the claimant was paid, be reserving at the time tbe right to claim, a proper allowance for shrinkage.

The claimant contends that by the terms of the contract he was to “furnish, deliver, and deposit” 250,000 cubic yards of earth filling, more or less, and that the contract being- silent on the subject, he is entitled under the general custom, well known and prevailing at the time, to an allowance for shrinkage in the measurement of the earth deposited.

The defendants contend that the topographical map “ showing the horizontals of the surface for differences of level 6 and 12 inches over the area to be filled in” was to be “used in making calculations of the contents of the masses deposited upon the surface so marked.”

And that the bidders, being required to state what they would “put the filling in for,” show that the undertaking was “to make an embankment of earth,” and that in determining the amount of work done the measurement should be of embankment and not of loose earth excavated, hauled to, and placed in the embankment, and therefore the terms of the contract exclude usage and custom in such measurement, even if applicable to Government contracts.

The question, narrowed down, as we understand it, therefore is that if the contract is silent on the subject of an allowance for shrinkage — and the general custom then prevailing with reference thereto is applicable to contracts with the Government — the claimant is entitled to recover; otherwise not.

Are contracts made with the United States controlled by the same general law that controls contracts between individuals'?

Of course, where the general law applicable to contracts has been modified by statute, as by the Act of June 2, 1862 (12 Stat. L., 411), contracts with the Government must be made in conformity therewith, as was held in the case of the United States v. Clark (95 U. S., 539-542), which was followed by this court in the Calvary Cathedral Case (29 C. Cls. R., 269-285).

But this act goes only to the manner of the execution of contracts and the mode of preserving the same; and the purpose doubtless was for the information and guidance of thé accounting officers in the settlement of accounts.

The law, as we understand it, was stated by Hamilton in these words: “When a Government enters into a contract with an individual it deposes, as to the matter of the contract, its constitutional authority and exchanges the character of a legislator for that of a moral agent with the same rights and obligations as an individual.” (3 Hamilton’s Works, p. 518.)

The general principle there stated ivas adhered to in the case of the United States v. Bank of the Metropolis (15 Peters, 377-392), where the Postmaster-General had accepted a draft, the court say, “When the United States, by its authorized officer, become a party to negotiable paper, they have all the rights and incur all the responsibility of individuals who are parties to such instruments. We know of no difference, except that the United States can not be sued.”

Such was the holding of this court, in effect, in the Deming Case (1 C. Cls. R., 191, cited with approval in the Wilson Case (11 C. Cls. R., 520) and the Southern Pacific Case (28 C. Cls. R., 77-105.)

And, except as stated, we are not aware of any authority to the contrary and none have been cited.

Nor are we aware of any statute or judicial decision which excepts known usage or custom from contracts made with the Government, not that usage is incorporated into such contracts when inconsistent with their terms, but, as was said in the case of Thompson v. Riggs (5 Wall., 663-679), “Customary rights and incidents universally attaching to the subject-matter of the contract in the place where it was made are impliedly annexed to the language and terms of the contract, unless the custom is particularly and expressly excluded.” (See also Smoot Case, 8 C. Cls. R., 96; affirmed, 15 Wall., 36.)

And this we understand to be the general doctrine on the subject.

In speaking of a contract with the Government in the case of Robinson v. The United States (13 Wall., 363-366), it was said: “Parties who contract on a subject-matter concerning which known usage prevails by implication incorporate them in their agreement, if nothing is said to the contrary.” This case with others are cited with approval in the case of Grace v. American Central Insurance Company (109 U. S., 278-283).

Here the general rule applicable to contracts as between individuals, in respect to known usage, is announced as applicable to contracts made with the Government; and the defendants, through their officers so authorized to contract, are presumed to have had knowledge thereof. (Chateaugay Iron Company v. Blake, 144 U. S., 486.)

So, applying the general rules referred to. we must hold (1) that a contract made with the Government, unless in conflict with some statute, is controlled by the same general law that controls as between individuals; (2) that if at the time of the execution of such contract there exists a well-known general custom such custom is by implication incorporated into the agreement, “if nothing is said to the contrary.”

The findings in the present case show that “ at the time of the execution of the contract, * * * and long prior thereto, there existed a general custom, well known, i. e., that when the contract is silent on the subject an allowance for shrinkage is made to the contractor in the measurement of an embankment of the magnitude of the work covered by the claimant’s contract herein.”

We will therefore consider the question as to whether or not the contract, including the advertisement and specifications incorporated therein, is silent on the subject of an allowance for shrinkage, or whether the language of the contract excludes such usage or custom.

The defendants’ contention is that the claimant’s undertaking was “ to make an embankment of earth and an agreement that' in determining the amount of work done the measurements should be of embankment and not of loose earth excavated, hauled to, and placed in the embankment,” and that therefore and thereby usage is excluded from the contract, and in support of this contention they rely upon the language of the specifications:

“Specifications for earth filling around the hose of the Washington Monument.
u The filling required is for the extension of the earthen terrace now surrounding the base of the Monument; which extension is to be carried outward in every direction and by a gradual slope of its surface down to the surrounding grounds. It will also extend over the pond just north of the Monument.
“The filling is to be good, sound earth, consisting of clay, sand, loam, or all three combined. ' No refuse material, such as street sweepings, offal, ashes, garbage, or vegetable or animal organic matter will be allowed in it.
“For the present the filling will be confined to the west and northern sides of the Monument, and including the said pond, but the contractor will be guided and directed in the prosecution of his work by the officer in charge, whose orders with reference to the filling must be strictly observed.
“An accurate topographical map of tbe grounds surrounding the terrace has been made, showing the horizontals of the surface for differences of level of six and twelve inches, which map can be seen in the office of the Washington Monument, where it will be filed permanently. This map will be used in determining the amount of filling deposited by the contractor by calculations of the contents of the masses deposited upon the present existing surfaces. These calculations shall be made in the office of the Washington Monument under the direction of the officer in charge, and the quantities determined shall be the quantities to be paid for by the United States.
“ The quantity of filling expected to be put in under this contract is about 125,000 cubic yards, subject to an increase of one hundred per centum (100 %) at the option of the officer in charge, but no contract or contracts will be made for a sum exceeding the amount appropriated by Congress.
“ Bidders will state distinctly—
“First. The price per cubic yard they will put the filling-in for.
“ Second. The number of cubic yards they can supply.
“ Third. The time they will consume in putting in the amount of earth they will furnish.
“ Fourth. The exact place or places from which they propose to procure the filling.
“ Fifth. The route or routes by which they propose to transport the material and the means of transportation to be employed. Each bid must be complete in every particular, positive and unconditional.”

Under these specifications it was doubtless intended that different persons might bid to furnish different amounts, and as matter of fact divers persons did bid to furnish different amounts, as set forth in the findings; so that if contracts had been made with two or more persons to furnish and deliver the amounts bid by them respectively, and perhaps at different prices depending upon the distance of the haul, the quantities so furnished by each could not have been ascertained by measuring the embankment when the work was finished, but each would have been assigned a separate dumping place, and then in conformity with the specifications, in the use of the map, the amount of filling furnished by each would have been determined “ by calculations of the contents of the masses deposited upon the present existing surfaces.”

Under the language there used, this course, it seems to us, would necessarily have followed had there been contracts with two or more persons to furnish the material required for the work; and when this is considered in connection with the language used in tbe contract proper, i. e., that tbe claimant was to “ furnish, deliver, and deposit around tbe base of tbe Washington Monument * # * 250,000 cubic yards of eartb filling, more or less, for tbe sum of 39 cents per cubic yard,” tbe intention of tbe defendants officers thus authorized to contract is not difficult to ascertain.

Tbe specifications, wbicb according to tbe advertisement were submitted to tbe bidders for tbeir information, show that tbe topographical map therein referred to had been made at the time of receiving the bids, yet the quantity of earth filling-had not then been determined upon, but, as stated in the specifications, “the quantity of filling expected to be put in under this contract is about 125,000 cubic yards, subject to an increase of 100 per centum at the option of the officer in charge, but no contract or contracts will be made for a sum exceeding the. amount appropriated by Congress.”

With this map “showing the horizontals of the surface for differences of level of 6 and 12 inches,” the defendants could have reckoned or estimated the probable amount of earth filling necessary at a given or fixed height for the ultimate contour or surface of the terrace.

And if the contract had obligated the claimant to furnish all tbe material and make 250,000 cubic yards of embankment tbe case would then come within the opinion of the court in Clark's Case (6 Wall., 543-547) concerning the construction or building of an embankment on dry laud.

But the claimant’s contract was “to furnish, deliver, and deposit around the base of the Washington Monument * * * 250,000 cubic yards of earth filling more or less,” for which he was to be paid “39 cents per cubic yard.” Not 39 cents per cubic yard of embankment built, but 39 cents per cubic yard for the earth filling furnished, delivered, and deposited.

While the quantity of earth filling so dejmsited was to be determined “by calculations of the contents of the masses deposited upon the present existing surfaces,” shown by the map, the manner of so ascertaining the quantity can not be construed to constitute an agreement to build 250,000 cubic yards of embankment.more or less.

If it were so construed there would be some conflict between the specifications and the contract proper, for the consideration of 39 cents per cubic yard clearly has reference to the quantity furnished, delivered, and deposited, and not to the cubic contents of an embankment.

When the contract was entered into there existed the general custom set forth in the findings, and there being nothing-in the contract expressly excluding such custom the same was incorporated therein, and this being so it follows that the action of the engineer officer in charge refusing to make an allowance for shrinkage was erroneous.

The provision in the contract that “the decision of the engineer officer in charge as to the quality and quantity shall be final,” refers only to his measurement in point of fact, and not to the principle of law on which it is made, as it is the province of the court to determine the law of the contract. (King Iron Bridge v. St. Louis, 43 Fed. R., 768; cite with' approval, Lewis’s Case, 49 Fed. R., 708-710.)

The work extended over a period of eighteen months, though completed within the time specified in the contract; and during the progress of the work the earth deposited was much driven over by the teams, so that at the time of the final measurement the shrinkage was about 10 per cent of the quantity ascertained by the engineer officer in charge, or 22,457 cubic yards, for which the claimant is entitled to 39 cents per cubic yard, amounting to $8,758.23, for which amount judgment will be rendered.  