
    THE HOUSTON CONSTRUCTION CO. v. THE UNITED STATES.
    [No. 21279.
    Decided June 1, 1903.]
    
      On the Proofs.
    
    The contract is for the reconstruction of a pier of the Aqueduct Bridge across the Potomac. In April, 1898, while the evork is goihg on of'removing the old pier, the Secretary of War orders “Hie temporary suspensionof the removal of the pier until the present crisis is over’’ (the war with Spain); and he directs that the bridge be blocked up at the pier “to make it as firm asqwssible for the great traffic to which it will be subjected.” The contractor is asked to bear the expenses incident to suspension but refuses to do so, and the work is then discontinued, he protesting against it.
    I.It is well settled that for an improper interference with the work of a contractor the Government, like an individual, is liable.
    II.The Government is not exempt from an ordinary contractor’s liability because it suspends the contractor’s work from motives of public consideration — the war with Spain and expectation that a bridge across the Potomac at Washington would consequently be needed for greatly increased traffic.
    III.When a contractor injured by the stoppage of his work elects to rescind the contract, he can recover only for the work actually performed in quantum meruit. When he elects to seek damages for the breach of the contract, he can recover for his expenditures upon the faith of the contract, including an allowance for his own time and services, and for anticipated profits, if any. But the defendants may show that the expenditures were extravagant or unnecessary.
    
      The Reporters' statement of the ease:
    
    The following are the facts of the case as found by the court:
    I. The claimant is a corporation incorporated under the laws of the State of New Jersey, having its principal place of business in Philadelphia, Pa.
    II. On April 1, 1899, the Acting Secretary of War transmitted to the court the claim in this case under the provisions of the Revised Statutes, section 1069.
    III. On May-17, 1897, the claimant entered into a contract with the defendants, through their agent, Lieut. Col. Charles G. Allen, Corps of Engineers U. S. Army, which was approved by the Chief of Engineers May 28, 1897, whereby the claimant agreed to furnish all necessary material, labor, machinery, and appliances and reconstruct pier No. 4 of the Aqueduct Bridge, across the Potomac River, at Georgetown, D. C., at the following piices, viz:
    For pumping out cofferdam, including all items specified for the same, five thousand dollars ($5,000).
    For removal of false work and cofferdam, including all the work specified for the same, three thousand dollars ($3,000).
    For the removal of old masonry, not including the removal of coping, fourteen hundred and seventy (1,470) cubic yards, more or less, one dollar and fifty cents ($1.50) per cubic yard.
    For excavation, including the removal of debris, three hundred (300) cubic yards, more or less, two dollars ($2) per cubic yard, measured as specified.
    For removal of rock projecting above grades established for the base of the new masonry of the pier, if required, actual cost to the contractor plus ten per centum.
    For interior cofferdam, if required, actual cost (o the contractor plus ten per centum.
    For two hundred and ten (210) cubic yards, more or less, of concrete, seven dollars and seventy-five cents ($7.75) per cubic yard in place.
    For four hundred and sixty (460) cubic yards, more or less, quarry-faced ashlar masonry, fifteen dollars ($15) per cubic yard, measured as specified.
    For forty-five (45) cubic yards, more or less, interior header masonry, twenty-three dollars ($23) per cubic yard in place.
    For six hundred and twenty (620) cubic yards, more or less, rabble masonry, six dollars ($6) per cubic yard in place.
    For removing and resetting coping, twenty-one (21) cubic yards, more or less, ten dollars ($10) per cubic yard.
    For repair of iron trusses, including all work specified therefor, two hundred dollars ($200).
    It was further provided therein that “all materials furnished and work done under this contract shall, before being accepted, be subject 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 quality and quantity shall be final.
    
      ‘1 The said The Houston Construction Company shall com menee .the work on or before the thirtieth (30th) day of May, eighteen hundred and ninety-seven (1897), and shall complete the same on or before the first (1st) daj^ of November, eighteen hundred and ninety-seven.”
    The work so contracted for was to be done in accordance with the specifications therefor, which contract and specifications are made a part of the petition herein.
    Paragraph 35 of said specifications, among other things, provides:
    “35. Should the time for the completion of the contract bo extended, all expenses for inspection and superintendence during the period of the extension, the same to be determined by the engineer officer in charge, shall be deducted from payments due or to become due to the contractor * *
    IV. On or about June 1, 1879, the claimant assembled a plant adequate for the purpose, and between that day and November 1, 1897, proceeded with the contract work. The cofferdam and false work were repaired, part of the stone for the ashlar masonry was quarried and cut, and the bridge was suspended on false works preparatory to the removal of the old pier.
    V. Under date of October 11, 1897, the claimant applied for an extension of from ninety to one hundred and twenty days’ time within which to complete the contract, and to avoid having any of the masonry and concrete work done during the frosty weather the claimant, on October 27, 1897, was, with the approval of the Chief of Engineers, granted an extension of time from November 1, 1897, to June 1, 1898, of which the claimant was duly notified.
    The letter notifying the claimant company of said extension contained these words:
    “This extension of time is, of course, subject to provisions of paragraph 35 of the specifications forming part of your contract; that is, we shall have to charge to you the expenses for superintendence and inspection during the period of the extension, or during the portion of the period from November 1 that it takes for you to complete the work.” .
    VI. On November 9, 1897, in obedience to an.order by the Government engineer in charge forbidding claimant to proceed with any part of the contract work which would require the bridge to be suspended on false work during- the winter months, all work of that kind was stopped. The effect of this .stoppage was to require that the bridge be.lowered from the false work and to prevent the claimant from proceeding with any branch of the work except that of quarrying and cutting-stone, which latter work was continued during the winter months when the weather would permit.
    
      VII. On March 14, 1898, the condition of the weather and that of the Potomac River permitting, the claimant was allowed tq resume work at the bridge. The cofferdam ivas repaired; the bridge was suspended on false works again and tested, and all necessary and proper preparations were made for the removal of the old pier.
    On April 15, 1898, the removal of the old pier was commenced, and this, together with the other branches of the contract work which were necessary to be taken up in connection therewith, were proceeded with until April 27, 1898, when the work of removing the old pier was temporarily suspended for the reason set forth in the next succeeding finding.
    At that time the claimant was prepared to proceed with and complete the work within the time agreed upon in the contract of extension. It then had on hand completed and inspected about 75 p"er cent of the amount of cut stone required for the ashlar masoniy of the new pier, of which about one-fourth thereof had been completed since March 1, 1898. This is exclusive of any stone which had been quarried but not completed or inspected.
    VIII. On April 23 the claimant’s engineer in charge of the work on its behalf was requested to notify the claimant’s officers to hold, themselves in readiness for an interview with the Government engineer respecting the temporary suspension of the work, and thereafter, on April 27, 1898, the Government engineer in charge of the work addressed to the Chief of Engineers a letter of which the following is a copy:
    ' “United States Engineer Office,
    “601 Eighteenth Street NW.,
    ‘ ‘ Washington, D. 0., April 87,1898.
    
    “Brig. Gen, John M. WilsoN,
    
      “Chiefof Engineers, TJ. 8. Army, Washington, D. O.
    
    “General: Under the contract of the Houston Construction Company for the reconstruction of pier No. 4 of the Aque-ductBridge, dated May 17,1897, the removal of the oldmasonry of the pier was commenced about a week ago. The removal of this pier, the preparation of the new foundation, and the reconstruction of the pier will • probably occupy the entire working season of 1898. During this period the ends of the two bridge spans which rest on pier Wo. 4 will be supported by a wooden false work resting on the cofferdam surrounding the pier. While this false work is strong enough to cany these ends of the bridge spans and the load coming to this pier, it is nevertheless found desirable to limit the travel to one lino of vehicles, many at a walk, so as to avoid the vibration which would result from unlimited travel on these spans.
    “In view of the fact that war has been declared against Spain by the United States and that our troops may occupy ground at and contiguous to Washington for mobilization, etc., it is regarded as of the greatest importance that this line of communication between Washington and Fort Myer be kept fully open for the maximum traffic of which the bridge is capable. There is the possibility that in spite of the fact that watchmen are on duty at the pier the wooden false work might take fire or that some injury might be done to it to cause the adjoining spans to be precipitated into the river, and thus interrupt for a considerable period this line of traffic and communication, leaving only Long Bridge (a wooden structure) and Chain Bridge, about three miles above Georgetown, as means of communication between the District of Columbia and Virginia shores. A panic amongst certain of the population of the city, owing to reported advance of the enemy or from untoward acts of secret hostile enemies, would be apt to result in a rush of people across the bridge, unless it was strongly guarded, that would at least try the endurance of the spans in question to their utmost.
    “Should the work be suspended at its present stage, when only a few feet, comparatively, in height of the top of the pier have been removed, solid blocking should be placed on the piers under the shoes and the bridge lowered from the false-work support and rest again on the pier. The pier, with the cofferdam around it, would be secure and in no danger of undermining or injury from the river currents or freshets during such suspension of work.
    “ The suspension of work would undoubtedly be attended with some expense to the contractors, as they would be obliged to remove their plant, allow the cofferdam to refill, and then when the work w'as resumed, be obliged to replace their plant, repair and repuddle the dam, as well as meet other expenses incidental to a suspension and subsequent resumption of operations. It is believed, however, that the appropriation for the reconstruction of the pier is sufficient to meet such extra expense.
    In view of the foregoing, I would recommend that the contract work on the pier (No. 4) of the Aqueduct Bridge be at once suspended, as a war contingency, and that I be authorized to fully confer with the contractors in the matter. The words “ at once” are used because at the rate at Avhich the contractors are taking down the pier two or three days from now may be too late.
    “Very respectfully, Chas. J. Allen,
    
      i( Lieut. Col., Corps of Engineers.”
    
    The following indorsement was made thereon by the Chief of Engineers:
    “Office Chief of Engineers, U. S. Army,
    “ April <B7, 1898.
    
    “ .Respectfully submitted to the Secretary of War for his information and consideration.
    “ While Colonel Allen’s apprehensions are not fully shared by me, I have the honor to recommend that the matter be brought to the attention of the Major-General Commanding the Army.
    “John M. Wilson,
    
      “Brig. Gen., Chief of Engineers, U. 8. Army.”
    
    The following indorsement was made thereon by direction of the Secretary of War:
    “Office Chief of Engineers, U. S. Army,
    “ April %8, 1898.
    
    “Respectfully returned to Lieut. Colonel Allen.
    “The Secretary of War authorizes the temporary suspension of the removal of the pier until the present crisis is over.
    “Colonel Allen is directed to co'nfer with the contractors at once and arrange accordingly, and is directed to block up the bridge at the pier and to make it as firm and stable as possible for tfie great traffic to which it will be subjected during the next few months.
    “ To be returned.
    “By command of Brig. Gen. Wilson: -
    “A. Mackenzie,
    “ Lieut. Col., Corps of Engineers.”
    
    On April 29, at the request of the Government engineer in charge, the officers of the claimant had an interview with him respecting the terms of such suspension and the rebuilding of the old pier to its former height. The claimant was asked to assume responsibility and do the work without compensation, which the claimant’s officers declined to do, but offered to consent to the suspension and perform the extra work involved upon the paj'ment to it of a sum equal to the disbursements which it had already made on account of the contract work, and payment for the extra work to be done in the future at the actual cost plus 10 per cent, which offer was declined by the engineer officer; and then the engineer officer proposed to the claimant to enter into a supplemental agreement consenting to such extension and relying upon the War Department or Congress to make adequate compensation, which the claimant’s officers declined to do, and no further proposals were made. At the close of the interview the defendants’ engineer addressed to the claimant a letter as follows:
    “WASHINGTON, D. C., April 29, 1898
    
    “Ti-ie HoustoN Construction Company,
    “Philadelphia, Pa.
    
    “Gentlemen: On account of the existence of a state of war between the United States and Spain, and the probability that the Aqueduct Bridge across the Potomac Biver at Georgetown may need to be kept fully open for the maximum traffic of which it is capable, it is considered advisable to temporarily suspend the work of removal of pier No. 4, under your contract, until the present crisis is over. 1 am directed by the Chief of Engineers to confer with you and arrange accordingly.
    “The bridge seats will need to be blocked up at the pier and the bridge made stable as posible for the traffic to which it will be subjected for the next few months.
    “Will you please answer me in writing, and in the meantime suspend the tearing down of the pier?
    “ Very respectfully,
    “ Chas. J. Allen,
    ‘ ‘Lieutenant- Colonel of Engineers. ”
    Which letter was responded to by the claimant as follows:
    [The Houston. Construction Co., Philadelphia, Pa.]
    “1420 F Street, Washington, D. C.,
    ‘ April 80, 1898.
    
    “ Contract on pier No. 4, Aqueduct Bridge.
    “Charles J. Allen,
    
      “Lieutencmt- Colonel of Engineers. TJ. 8. A.,
    
      Washington, D. C.
    
    
      “ Sib: We are in receipt of yours of the 29th inst., in which you say that it is considered advisable, for reasons therein stated, to temporarily suspend the removal of pier No. 4 under our contract until the present crisis is over, and that you are directed by the Chief of Engineers to confer with us and arrange accordingly.
    “A few days ago our engineer in charge of the work on pier No. 4 was verbally instructed, by your direction, to suspend work under the contract, notwithstanding the fact that the company was proceeding to fulfill all the requirements of the contract, had prepared or was preparing all the material needed in the work, and was ready and willing to complete the contract on or before June 30th next. The verbal orders above referred to and your letter of the 29th instant, we are advised by our attorneys, constitute an abrogation by the United States of the contract of May 17,1897, made by yourself, representing the United States, and this company, and we hereby protest against your said action, and give notice that we consider ourselves entirely absolved from performing anj^ further work under the said contract, and we shall look to the United States for full payment for all expenses heretofore incurred, profits prevented, and damages arising out of the breach of the contract by the United States.
    “ We hereby give notice that we have withdrawn all of our employes from the care and maintenance of the cofferdam and the false work of the bridge.
    “ With regard to the bridge seats that need to be blocked up at the pier, etc., to which you refer, we are prepared to perform the necessary work, under a new agreement, by which the expenses of doing the work, with ten per cent added, shall be paid to us.
    “Very respectfully,
    “The Houston Constbuction Company,
    “By C. B. HoustoN, President.”
    Thereupon the claimant discontinued the preparation of stone and withdrew its employees and plant from the site of the bridge.
    IX. The suspension of this work prevented the claimant from taking up in their order and completing these branches of the contract work: (1) The taking down and removal of the remainder of the masonry of the old pier; (2) the removal of debris from the foundation area for the new pier and the leveling of the rock bed of the river by cutting off projecting points of rock and laying concrete; (3) the conversion of the stone in the old pier into rubble for backing in the new pier; (4) the construction of the new pier, including the resetting of the coping; (5) the repairing of the iron work of the trusses of the bridge; (6) the removal of the false work and cofferdam.
    So long as any part of the old pier remained standing the claimant could not proceed with any part of the contract work, except tho cutting of the balance of the stone required to make up the entre amount needed for the ashlar masonry. If the work had proceeded without interruption, Smith & Sons and Clarke could have furnished the balance of the stone as fast as it would have been needed for use in the construction of the new pier.
    Tho cofferdam and false work wore temporary structures, subject to deterioration and damage from freshets or heavy traffic. The suspension would have imposed upon the claimant large expense and risk, in addition to those contemplated by the contract, for the care and maintenance of the cofferdam and false work, and for the care and maintenance of the claimant’s plant, consisting of engines, boilers, derricks, and other machinery'and tools and materials which the claimant would have been obliged to keep in the vicinity of the bridge so that it might be ready to proceed with the contract work when ordered to do so by the War Department.
    X. Between May 18,1897, and April 30, 1898, the claimant expended in the prosecution of the work under his said contract various sums for labor, superintendence, and materials, as follows:
    For labor.. §16,945.98
    For materials. 9,285.52
    For machinery and tools. 3,234. 76
    For foreman and superintendent. 1,462. 50
    For blacksmith, hauling, boat hire, and freight. 799.00
    Total paid out. 3!, 727. 76
    All of which expenditures were necessarily incurred in the prosecution of said work, and the prices paid therefor were reasonable.
    Prior to the suspension of the work, as aforesaid, the defendants had paid to the claimant for a small item of extra work the sum of. §507.36
    During the period of the extension of said contract, from November 1,1897, to June 1,1898, the defendants paid out for inspection and superintendence. 914.17
    
      After the suspension of the work April 30, 1898, the claimant realized from the sale of part of the material, machinery, tools, and supplies which he had furnished, as aforesaid, in the prosecution of the work the sum of.$11,293.74
    The claimant also has on hand, which it is unable to sell, the remainder of the materials, machinery, tools, and supplies, of the reasonable value of. 1, 306. 00
    Making in all the sum of. 14, 021.27
    Leaving due the claimant for his said expenditures, over and above the credits as aforesaid, the sum of $17,706.49.
    XI. Counterclaim. — During’ the progress of the work bjr the claimant the defendants paid out for inspection and other services and material in connection therewith the sum of $4,684.46; and after the claimant ceased work by reason of the suspension thereof, as aforesaid, the defendants relet the work to the Central Construction Company, of New York, and the cost to the defendants for completing said work was §35,225.62, or $5,228.12 in excess of the claimant’s bid for said work. In addition thereto the defendants paid out for inspection during the prosecution of the contract with the Central Construction Company for inspection and superintendence the sum of $640.69, or in all so paid out and expended in excess of the claimant’s bid for said work, $10,553.27.
    
      Mr. James TI. Hayden for the claimant. Messrs. Me Gammon cé Hayden were on the brief.
    
      Mr. George II. Walker (with whom was Mr. Assistant Attorney- General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

Ity its contract with the defendants under date of May 18, 1897, the claimant entered into a covenant to “ furnish all the necessary materials, labor, machinery, and appliances, and reconstruct pier No. 4 of the Aqueduct Bridge, across the Potomac .River at Georgetown, D. C.,”in accordance with the specifications made part of said contract, at and for the aggregate consideration of $29,997.50, the work thereon to commence on or before May 30, 1897, and to be completed on or before November 1, 1897.

Pursuant to the terms of the contract, claimant on or about June 1, 1897, assembled a plant adequate for the purpose and proceeded to the execution of the contract, first repairing the cofferdam and false work, upon which latter the bridge was suspended preparatory to the removal of the old pier. While that work was in progress the claimant also caused to be quarried and cut a part of the stone for the ashlar masonry. By the provisions of paragraph44of the specifications “thestone for all masonry other than concrete, coping, and bridge seats” was required to be “the best quality of hard and compact Potomac River gneiss, to be strong and durable and free from flaws, loose seams, cracks, or any other defects.” In consequence of the requirement of the specifications for stone of large dimensions, it was difficult to procure the same free .from such flaws and defects, and for that reason, in part, the work was prosecuted more slowly than would otherwise have been.

The claimant foreseeing that it would be impossible to complete the work within the time agreed upon, asked the engineer in charge for an extension of from ninety to one hundred and twenty days’ time, and after some correspondence between the parties, and to avoid the laying of masonry or concrete in freezing weather, the claimant was granted an extension by authority of the Chief of Engineers from November 1,1897, to June 1, 1898, subject, however, to paragraph 85 of the specifications, which provides, that “should the time for the completion of the contract be extended all expenses for inspection and superintendence during the period of the extension, the same to be determined by the engineer in charge, shall be deducted from payments due or to become due to the contractor,” of all which the claimant’s officers were notified, and two days later they acknowledged the receipt of such notice.

At that time, or a little prior thereto, the claimant had quarried and dressed about 45 per centof the total of cut stone required.

On November 1, 1897, in obedience to an order previously given by the engineer in charge, forbidding the claimant to proceed with any part of the work which would require the bridge to be suspended on false works during the winter months, all work of that kind was stopped. The suspension of work necessitated the lowering of the bridge from the false work, and consequently prevented the claimant from proceeding- with any branch of the work except quarrying and cutting of stone, which latter work was continued during the winter months whenever the condition of the weather permitted.

On March 14, 1898, the condition of the weather and the river permitting, the claimant resumed work on the bridge, first suspending the same upon false work and testing it as required by the terms of the specifications preparatory to the removing of the old pier. On April 15 the claimant began the removal of the old pier and proceeded with that and the other necessary branches of the work until April 27. At that time the claimant had on hand, exclusive of work done on stone quarried but not yet completed, about 75 per cent of the stone required for the completion of the work, and which had been inspected by the Government officer, of which about one-fourth had been completed since March 1, 1898.

Prior thereto, on April 23, the engineer in charge of the work on behalf of the claimant had been requested to notify the claimant’s officers to hold themselves in readiness for an interview with the Government engineer in charge, to be held in Washington, to discuss terms for a temporary suspension of the work, which notice was transmitted to the claimants.

Thereafter, on April 28, on the application of the Government engineer in charge therefor, based on the possibilities of danger to traffic and travel over the bridge on account of the war with Spain, which the Congress, by the act April 25,1898 (30 Stat. L., 364), declared had existed since April 21, 1898, the Secretary of War authorized “the temporary suspension of the removal of the pier until the present crisis is over,” and directed the engineer in charge to confer with the contractor and to at once arrange accordingly. The engineer was further ‘: directed to block up the bridge at the pier and to make it as firm as possible for the great traffic to which it will be subjected daring the next few months.”

The claimant was duly notified of the order of suspension and the company was asked to bear the expenses incident to the suspension, which it declined to do, but offered to do the necessary work at cost plus 10 per cent if the defendants would reimburse the company for its outlay, which they declined to do, and the work was then discontinued.

True, the general rule is that where one undertakes to do an entire work for a fixed sum, no recovery can be had unless the work be done; but this imposes upon the other contracting party the corresponding duty of doing- whatever may be necessary on his part to enable the contractor to perform his contract.

It is well settled that, for any improper intei'ference with the work of a contractor, the United States, like individuals, are liable. (United States v. Speed, 8 Wall., 77, 84; United States v. Smith, 94 U. S., 214, 217.)

Nor should the United States be held exempt from liability in this case by reason of the existence of war between them and the Kingdom of Spain at the time the work was suspended, though that was assigned as the cause, for the reason that while from patriotic motives every citizen, for the mutual good of all others, should be held to such reasonable sacrifice of personal interests as may be necessary for the public welfare, the rule should not be held to impose unjust or unequal burdens, nor do the facts and circumstances of this case require it, even though the claimant company may have undertaken a losing contract, from the performance of which it would rather have been relieved.

Had the work not been discontinued the claimant, who was willing to continue to perform the contract, would have been able to complete the work within the time provided. Against the order suspending the work the claimant protested and elected to treat the suspension as absolving it from any further performance of the contract, and notified the defendants that it would look to them “for full payment for all expenses theretofore incurred, profits prevented, and damages arising out of the breach of the contract by the United States.”

The order of the Secretary of War temporarily suspending the work “ until the present crisis is over,” necessarily operated to indefinitely suspend the further prosecution of the work, and thereby prevented the claimant company from the performance of the contract, against which its officers protested. The claimant company therefore had the right to treat the contract as at an end and to seek damages for their outlay, as well as for anticipated profits under the ruling in the case of United States v. Behan (110 U. S., 338, 345), where a similar breach of contract was under consideration and the court laid down the rule thus:

“When a party injured by the stoppage of a contract elects to rescind it, then, it is true, he can not recover any damages for a breach of the contract, either for outlay or for loss of profits; he recovers the value of his services actually performed as upon a quantum meruit. There is, then, no question of losses or profits. But when he elects to go for damages for the breach of the contract, the first and most obvious damage to be shown is the amount which he has been induced to expend on the faith of the contract, including a fair allow-' anee for his own time and services. If he chooses to go further, and claims for the loss of anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed. It does not lie, however, in the mouth of the party who has voluntarily and wrongfully put an end to the contract, to say that the party injured has not been damaged.at least to the amount of what he has been induced fairly and in good faith to lay out and expend (including his own services), after making allowance for the value of materials on hand; at least it does not lie in the mouth of the party in fault to say this unless he can show that the expenses of the party injured have been extravagant and unnecessary for the purpose of carrying out the contract.”

As no profits are proven or claimed we will dismiss that branch of the case, leaving to be considered the question of damages arising from the expenditures which the claimant was induced to make on the faith of the contract, together with the reasonable expenses for care and superintendence during the progress of the work.

That the claimant in good faith “laid out and expended” the amount found, on the faith of the contract, there can be no question, as the expenditures were incurred in the prosecution of the work and are found to have been necessary and reasonable, so we have included in the judgment the sums' expended for labor and materials, machinery and tools, for foreman and superintendents, and certain expenditures for blacksmith work, hauling, boat hire, and freight, amounting in the aggregate to $31,727.76, from which we have deducted the amount paid claimant by the defendants and the amount they paid out for inspection during the period of the extension of the contract from .November 1, 1897, to April 30, 1898, as provided by paragraph 35 of the specifications set forth in finding hi, which extension was granted on condition that the claimant pay the expenses of inspection and superintendence during said period or until the work was completed if sooner done; we have also deducted the amount the claimant realized from the sale of a part of its material, machinery, tools, and supplies, together with the reasonable value of the remaining portion of the material, machinery, tools, and supplies on hand, amounting in the aggregate to $14,021.27, as set forth in said finding m, leaving due the claimant, after deducting the one from the other, the sum of $17,706.49, for which amount judgment is ordered to be entered.

It follows from what we have said that there can be no recovery by the defendants on their counterclaim, and as to that the petition is dismissed.  