
    BYRON BARLOW & CO. v. THE UNITED STATES.
    [35 C. Cls. R., 513; 184 U. S. R., 123.]
    
      On doth parties' Appeals.
    
    The contract sued on 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, iierformed, 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 engineer.” The claimants tender a sample of the stone and the engineer in charge examines it, visits the quarry, satisfies hhnself 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.
    The court below decides:
    1. 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.
    2. 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.
    3. 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 be implied.
    4. 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 be in writing.
    5. 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.
    6. 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.
    
      7. Where a contract prescribes “ sandstone. of a quality approved by the engineer,” and the superior officer who entered into the contract requires ‘1 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 decision of the court below is affirmed, with a reduction of the amount allowed the claimant for difference between the cost of sandstone rejected and other stone required to be furnished in its place, on the ground that a general inspection of the quarry was not final and binding- and that every stone furnished was subject to inspection and rejection.
   Mr. Justice McKenna

delivered the opinion of the Supreme Court February 24, 1902.

Mr. Justice Brewer and Mr. Justice Peckham dissented.

Mr. Justice Harlan took no part in the decision of this case.  