
    GILBERT H. FERRIS v. THE UNITED STATES.
    [No. 12814.
    Decided November 28, 1892.]
    
      On the Proofs.
    
    The claimant agrees to dredge 100,000 yards of material within one year. The work is to he done at places to he designated hy the engineer in charge. It is stopped hy his orders in December, and he does not order it to he again begun until June. In July he stops it finally because the appropriation therefor is exhausted.
    I.Though a contract requires the contractor to complete his work hy a day named, he is nevertheless entitled to an extension of the time if his work was suspended hy the acts or orders of the other party.
    II.Where a contractor is n<ft permitted to complete his work, and sufficient time remains for him to do so within the period designated hy the contract, he is entitled to recover all the profits which he might have made.
    III.The fact that a* appropriation is exhausted justifies an officer in stopping a contractor’s work, hut does not constitute a defense in a suit for breach of contract.
    IY. A contractor who is one of several persons to he paid out of an appropriation is not chargeable with knowledge of its administration or maladministration, nor are his rights affected hy its diversion to other objects.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. On the 15th day of August, 1879, J. N. Macomb, colonel of engineers, U. S. Army, advertised for sealed proposals for continuing the improvement of the channel of the Delaware Biver, at Mifflin Bar, by dredging; which advertisement is annexed to and forms part of the petition.
    II. The claimant was a bidder for said work and the contract was awarded to him; and thereupon, on the 16th day of September, 1879, a contract in writing was entered into between claimant and said J. N. Macomb, chief engineer, U. S. Army, on the part of the United States, which contract is annexed to and forms part of the petition.
    III. At the date of the execution of said contract there was allotted for the payment of the work to be performed under it, out of tbe money appropriated by Congress for tbe improvement of tbe Delaware Biver for tbe fiscal year 1879-’80, tbe sum of $37,000, of wbicb $17,000 was diverted to tbe construction of a tramway at Fort Mifflin and tbe purchase of a plant for removing tbe dredged material to tbe shore.
    IY. In order to enable tbe claimant to perform tbe work specified in tbe said contract it became necessary for him to remove bis dredging machine, scows, tugboat, and tools, and bis employés from Currituck Sound, North Carolina, at a cost to tbe claimant of $1,025.
    Y. Tbe claimant was ready to begin work at tbe appointed time, to wit, tbe 22d September, 1879. He continued in tbe performance of bis work, subject to the interruptions and delays hereinafter set forth, until tbe 27th December, when work was stopped for tbe winter by direction of tbe engineer in charge. Tbe claimant recommenced work on the 31st May, 1880, and continued until tbe 2d July, when tbe work was closed by tbe engineer in charge because tbe appropriation bad been exhausted. Tbe work might have been recomm enced as early as 1st March, similar work at another place being in fact then begun under tbe same engineer. It does not appear why tbe claimant’s further work under this contract was deferred until tbe 31st May. Tbe work was then resumed pursuant to an order of tbe engineer in charge. No objection to tbe manner in which tbe claimant performed bis work appears to have been made by tbe engineer in charge, nor did be ever allege or decide that tbe claimant bad failed “to prosecute faithfully and diligently tbe work in accordance with tbe specifications and requirements of the contract.” Tbe claimant lias been paid for all tbe work wbicb be performed, viz, $9,494,04 for tbe excavation and removal of 35,494 cubic yards of material. Tbe work which tbe claimant was not allowed to complete would have amounted to 64,506 cubic yards. He was at tbe time ready and willing to proceed and excavate tbe same.
    YI. During tbe two periods in wbicb tbe claimant was prosecuting tbe work above referred to, to wit, from 22d September, 1879, to tbe 27thDecember, and from tbe 31st May,1880, to tbe 2d July, there wereone hundred and twelve working days. The largest quantity of material excavated and removed on any one day was 698 yards, but tbe average for both periods was only about 317 yards. Tbe reasons for this small average quantity were, first, that the defendant’s officers in charge neglected to designate the specific place where the claimant should begin dredging, thereby causing him to lie idle during a period of four days; and, second, to breakages of claimant’s machinery; to the tides running too fast for the dredge to work; to the absence of the claimant’s tugboat for coal; to the violence of the wind. The number of days when the work was interrupted in whole or in part by these last-named causes was sixty-four. During the remaining forty-four days the claimant was hindered and delayed in the prosecution of his work by the neglect or inability of the defendant’s officers to keep the water of sufficient depth for the claimant’s scows to float in the basin which was designated as the place where the materials should be deposited. The delay attributable to this cause and to the neglect to designate the place where dredging should begin was equivalent to one-sixth of the time when the claimant was uninterruptedly at work, namely, one-sixth of forty-four days.
    YII. The losses suffered by the claimant in the prosecution of the work were as follows :
    The actual expenses of the claimant in the prosecution of the work were $4,346 per month, or for 4£ months. $5,832
    Of this there was due to the delays caused by defendant’s officers.. 379
    Leaving as the cost proper of excavating and removing 35,494 yards........ ai lO TÜ
    And giving as profits on that portion of the work_......._ 1 — ) -rfi O
    The losses which the claimant sustained hy reason of the delays above referred to were.:. 379
    And the profits which he would have made if allowed to complete the removal of the remaining 64,506 yards of material would have been. 7,331
    Amounting to.... 7,710
    Prom which, under the rule in Speed’s Case (8 Wall., B. 77), should he deducted for the time he would have been employed in excavating the remaining 64,506 yards.... 1,200
    Leaving as the amount of his damages... 6,510
    
      Mr. Benjamin B. Butler and Mr. O. B. Barrett for the claimant.
    
      Mr. W. J. Bannells) with whom was Mr. Assistcmt Attorney-General Ootton) for the defendants.
   Nott, J.,

delivered tbe opinion of tbe court:

Tbe contract upon wbicb tbis action is brought required the claimant to dredge and remove 100,000 cubic yards of material from and to places to be specifically designated by tbe engineer in charge of tbe work, within a period of substantially one year. At tbe end of ten months be bad removed 35,494 yards. During these ten months be bad been hindered and delayed by tbe defendants to tbe extent of about seven days. There is an hiatus in tbe evidence concerning a period of three months, from tbe 1st March to tbe 1st June, when the contractor might have worked, but did not, wbicb leaves it doubtful whether tbe cessation was for bis convenience or tbe defendants’.

But it appears that the work stopped on tbe 27th December, 1879, in pursuance of an order from tbe engineer in charge, and that it began again on tbe 1st June, 1880, in pursuance of another order from tbe same authority; and, inasmuch as tbe work could not go on until tbe engineer should designate a time as well as place, it must be inferred that tbe condition of things wbicb tbe order of suspension caused in December continued until tbe order to again begin work was issued in May; and that this condition of things, brought about by tbe defendants, was continued for their convenience and certainly with their assent. If tbe contractor bad wished to commence work at an earlier day be would have been bound, probably, to give notice and demand that tbe time and place be designated; but his acquiescence in tbe action of tbe other contracting party waived no other right and certainly did not work a practical forfeiture of tbe stipulated time wherein he might carry on and complete bis work.

The contractor therefore was entitled on tbe 2d July, when he was ordered to stop work, to a period of about five months within which to remove the remaining 64,506 feet of material. He was then proceeding at the rate of about 11,000 cubic yards a month. In other words, it was not impossible or improbable that he would have completed the work within a period equivalent to that assured to him by the contract if he had been permitted to do so.

The action is brought to recover the profits which he would have made upon the unperformed portion of the work if he bad been allowed to complete it; and tbe Chief defense is that bis recovery must be restricted to tbe two months that remained of tbe twelve prescribed by bis contract. But tbe facts above stated demonstrate that be was entitled to five months and that five months constituted a sufficient period for bim to accomplish all that be bad undertaken to do. It is therefore thought by tbe court that bis profits can not be restricted to two-fifths of tbe unfinished work and that tbe defendants are bable for all tbe profits which he might have made.

Tbe reason why the work was stopped was that tbe appropriation under which it was prosecuted had been exhausted. The reason justified the officer in charge, but does not justify tbe defendants in not providing funds for carrying out and discharging tlieir legal obligations. A contractor who is one of several jmrsons to be paid out of an appropriation is not chargeable with knowledge of its administration, nor can his legal rights be affected or impaired by its maladministration or by its diversion, whether legal or illegal, to other objects. An appropriation per se merely imposes limitations upon the Government’s own agents; it is a definite amount of money intrusted to them for distribution; but its insufficiency does not pay the Government’s debts, nor cancel its obligations, nor defeat the rights of other parties. (Dougherty's Case, 18 C. Cls. R., 496.)

The contract now before the court contains the usual clause of contracts relating to public works, viz, that if the contractor u shall fail, in the judgment of the engineer, in charge, to prosecute faithfully and diligently the work in accordance with the specifications and requirements of the contract,” the engineer shall have power to annul the contract. It also contains another clause, likewise usually found in such contracts, that, if the contractor shall be prevented, with no fault of his own, from completing his work at the time agreed upon in the contract, “such additional time may be allowed him as in the judgment” of the engineer “ shall be just and reasonable.”

It appears that there were natural causes which retarded the work (the tides, the wind, the ice) and that it was performed to the satisfaction of the engineer in charge, who apparently made no complaint of the contractor’s delay and certainly paid him in full for that which was performed. This being tbe condition of affairs wben tbe work was stopped, it mnst be inferred tbat if it bad not been stopped it would bave been prosecuted in a satisfactory manner and tbat tbe time of tbe contractor would bave been extended by tbe engineer in charge. In sucb a case a contractor can not be deemed in fault; be is entitled to atbe gains prevented,” wbicb constitute tbe measure of damages in sucb cases.

Tbe judgment of tbe court is tbat tbe claimant recover from tbe defendants tbe sum of $6,510.  