
    DAVID MYERLE, Executor, v. THE UNITED STATES.
    [Nos. 14547 and 14548.
    Decided January 25, 1897.]
    
      On the Proofs.
    
    The parties contract for the construction of the ironclad monitor Monad-nock. The beginning of work is delayed without the contractor's fault. After the beginning the Government causes further delay by failure to deliver material, by change of plans, and by ordering- the contractor to stop work. Some of the items of the claim antedate the bringing of the suit more than six years. .The Government fails to make payments due and demanded. The contractor is forced to borrow money to carry on the work. He seeks to recover the interest which he paid The claim is referred to the court by the Secretary of the Navy under Rev. Stat., § 1063.
    I.Where a contractor is delayed in completing his contract by the action of the Government, he need not begin suit till the work is finished; and items arising more than six years before suit will not be barred by the statute of limitations.
    II.When a Department sends a claim to this court under Revised Statutes 1063 the court has jurisdiction of demands for unliquidated damages, though the Department has not.
    III. Where a contractor does work of which Congress are cognizant, and for which payments are authorized hy legislative aqipropriations, it will he held that a contract oxisted.
    IV. Where service was performed under a general appropriation, the contractor is not hound to know the condition of the appropria- - tion account at the Treasury.
    
      Y. Though a contractor is forced, by the delay of the Government, to borrow money to carry on the work, for which he is compelled to pay interest, ho can not recover back the interest as an expenditure caused by the defendants. Eev. Stat., § 1091.
    YI. In a suit for damages, only those items can be recovered which are the proximate result of the action of the other party. There must be no intervening incident. The effect must be the inevitable result of the cause, and the damage such as might have been foreseen by the p&rties; and no condition or circumstance can be considered not of general application under similar conditions.
    
      The Reporters1 statement of the case:
    The folio wing are the facts of the case, as found by the court :
    I. The petition in this case was filed in this court April 10, 1880.
    At the time of the events stated in the petition, and until his death in 1884, Phineas Burgess, plaintiff’s testator, was a citizen of the United States and a resident of Kings County, N. Y.; he left a last will aud testament, duly admitted to probate, of which plaintiff is executor; letters testamentary thereon have been issued to plaintiff.
    II. Pursuant to duly advertised requests for proposals, which were accepted by Phineas Burgess, he being' the lowest bidder therefor, and at a time when the Bureau of Construction and Bepair, Department of the Navy, had sufficient moneys to pay the contract price hereinafter mentioned, the contract found annexed to the petition was made.
    ITT. This contract has been thus recognized by the Congress of the United States:
    “Act of June 6, 1874,18 Stats., 53, 57, general appropriation of $3,300,000 for Bureau of Construction and Bepair.
    “Act of June 23, 1874,18 Stats., 226, authorizing the Secretary of the Navy to use balance of appropriation ‘for the purpose of completing the repairs on such double-turreted monitors as the Secretary of the Navy may deem necessary for the public service.’
    “Act of January 18,1875,18 Stats., 296, general appropriation of $3,300,000 for the Bureau of Construction and Bepair.
    “Act of June 14,1878, 20 Stats., 123, appropriating moneys to said Phineas Burgess on account of delayed payments on said contract.
    “House resolution, December 10,1878, asking for a report from the Secretary of the Navy as to the delay in the completion of the Monadnock, and as to whether or not any damages had been or were being sustained.
    “Act of April 2,1880,21 Stats., 303, directing the Secretary of the Navy to organize a board to personally examine the double-turreted monitors to ascertain whether they should be completed, and the cost of their completion.
    “Act of August 5,1882, 22 Stats., 284, 291, 293, appropriating $400,000, a part of which was for the launching of the Monadnock.
    “Act of March 3, 1883,22 Stats., 472, 477, directing the Secretary of the Navy to take possession of the double-turreted monitors, and directing him to ascertain what amounts should be paid to the contractors severally for the use and occupation of their yards with said ships and for the care thereof, and directing him to report the same to Congress.
    “Act of August 3,188C, 24 Stats., 215, authorizing the President to compílete the Monadnock, and appropriating moneys therefor.
    “Act of March 3, 1887, 24 Stats., 581, 594, appropriating moneys for the completion of the Monadnock and other vessels.”
    IV. The following, among other reports of committees of Congress, has been made relating to the subject-matter of this action:
    “Beport No. 787, Forty-fifth Congress, second session (Appendix, page 50, Ex. F), dated July 12, 1875. Proposals for repairs of Monadnock having been invited, this fact was reported to Congress.
    “Beport committee, second session Forty-fifth Congress, 1877-78. '
    “Beport No. 787 of the House, Forty-fifth Congress, second session, dated May 10,1878. (Page 4, majority report; page 15, minority report.) The contract and the work done thereunder have been considered and approved by the Navy Department in the following reports :
    “ Beport dated February 15,1877, to the Bureau of Construction and Bepair, approving of the work upon the Monadnock, said report appearing upon page 22 of appendix to House Be-port 787, second session Forty-fifth Congress. •
    “Beport by Naval Inspector Much to the Secretary of.the Navy, dated July 21, 1877, stating that said Phineas Burgess was properly caring for the Monadnock.
    “ Beport of the Secretary of the Navy, dated November 20, 1877, to Congress, recommending that the Monadnock be speedily finished. Found in Beport of the Secretary of the Navy for 1877, pages 28 to 31, 270, 280.
    “Beport of Judge-Advocate to Secretary of the Navy, dated October 30,1878, holding that the contract was made in accordance with, law.
    “ Beport of the Secretary of the Navy, dated January 20, 1879, in response to House resolution, dated December 10,1878, showing delay of the Government and failure to pay approved bills on the Monadnock, and reporting that the contractor, Phineas Burgess, had suffered damages and was still sustaining damages.
    “Keport, February 21,1879,112 H. K., Forty-fifth Congress, third session.
    “Keport of the Secretary of the Navy to the chairman on Naval Affairs of the House, dated January 23,1880, showing what is needed to complete the- Monadnoek, stating that the work lias been well done, recommending appropriations therefor, and stating that the contract had thus far been executed according to law.
    “ Keport by Secretary of the Navy to Congress, dated May 20, 1880, recommending the completion of the Monadnoek. (Executive Document 82, Parts I, II, and III, House report, Forty-sixth Congress, second session.)
    “Keport of Secretary of the Navy, December, 1881, showing that the contractor, Phineas Burgess, was sustaining expenses by reason of the condition of the Monadnoek, and that these were a hardship to him.
    “Annual Keport of Secretary of the Navy for 1882, Vol. I, page 23, in which the Secretary states he has been authorized • by Congress to finish the Monadnoek, and that he has made contracts with the various contractors to furnish the balance of the materials and to launch the boat, without prejudice, however, to the contractor’s existing rights.
    “Keport of a board appointed by the Secretary of the Navy, dated February 14,1883, recommending that the said Phineas Burgess should receive for his damages under the contract of October 2, 1875, the sum of $192,436.56.
    “Keport of Chief of Bureau, January 7,1884.
    “Report of Secretary of the Navy, February 12,1884, recommending certain payments to builders of the Puritan, Amphi-trite, and Terror, which was adopted by Congress.”
    The following correspondence and documents are found as facts herein: Exhibits A, B, C, D, E annexed to the petition.
    V. The beginning of the work under the contract of October 2,1875, was delayed without the contractor’s fault until February 1,1876,through the following causes: Unavoidable delay in the finishing of the previous necessary work for the erection of the frame of said Monadnoek under the contract dated September 18, 1875, which is referred to in said contract of October 2,1875; by reason of delay in the Government’s delivery of materials for said former contract, and also deficiency of proper materials which the Government was to furnish. Phineas Burgess began the work under the contract of October 2,1875, on February 1, 1876, as soon as the former frame contract was finished.
    VI, After the beginning of the work, February 1,1876, the . Government long delayed the delivery to the contractor of certain material which was to be incorporated into the structure; much of the material delivered by the Government was delivered out of the proper order for use; some of it was faulty material; the Government also long delayed to deliver certain necessary plans, and also changed its plans in some respects after they had been already carried out; certain of the necessary plans were at first, and long remained, insufficient and unadapted for completion; the Government withdrew some needed specifications and delayed furnishing new ones; some of the specifications were deficient and inharmonious, causing delay to the contractor; consultations and conferences, consuming considerable time, became necessary between the contractor and the Government’s agents in respect to such inharmonious plans or specifications and the remedy therefor, and about the middle of July, 1876, the contractor stopped work by order of the Government.
    • VII. Phiueas Burgess suspended work, in accordance with said order of the Government, from about the middle of July, 1876, until on or ab'out December 20, 1876, when he received oral orders from the Navy Department to proceed with the work: said delay and stoppage, and all delays and stoppages in these findings appearing, were without any fault on the part of the contractor, and were due to the Government’s acts or omissions.
    VIII. Fhineas Burgess, under oral orders from the Navy Department, proceeded with the work under said contract on or about December 20,1876, and continued thereon until on or about December 20, 1877, when he was obliged to stop work because of lack of materials, which the Government had failed to deliver under said contract, and because of the fact that certain materials then on hand could not be incorporated into the vessel until other and additional materials should be received from the Government.
    IX. About December 20, 1877, when work under said contract so ceased, a large portion of the outer and inner skin and of the deck plating had not been put on, certain of the bulkheads were not in place, nor had the ventilators, battle hatches, deck lights, timberheads, cleats and sockets, ventilating and turret engines, been put on the vessel because the materials necessary to accomplish, this had not been delivered by the Government to the contractor.
    
      X. From about December 20,1877, to about March. 1, 1S83, defendants failed to deliver the materials which were lacking and were necessary in order that the contractor might finish said contract of October 2,1875, although he continually urged the Government to deliver tbe same in order that he might complete the contract, and although the officers of the Navy Department continually held out the hope that the necessary materials would soon be delivered.
    XI. The following letter was written Burgess by the Acting Secretary of the Navy:
    “Navy Department,
    “ Washington, November 8, 1882.
    
    “ Sir: The Department has had no reply from you to its two letters of August 21 and 28,1882, relative to the launching of the monitor Monadnoek. As it is desirable that there shall be no more delay in arranging for the launching of the vessel, the Department proposes (1) that you shall furnish the materials and do the work necessary to be done before launching (the same to be first specified in detail by the Department and the cost thereof agreed upon), and shall also launch the vessel at the earliest practicable day; and (2) that the Department shall pay you for such materials and work and for launching the actual cost thereof, as may be mutually agreed upon.
    “This arrangement shall have no effect whatever upon the existing rights or obligations of yourself or the Government, but shall be made and carried into effect without prejudice to any claim of either party.
    “You are requested to respond to this proposition without delay.
    “Very respectfully, “Ed. T. Nichols,
    
      “Acting Secretary of the Navy.”
    
    Pursuant to said request, to which he acceded, Phineas Burgess in 1883 furnished, and has been paid for, the materials necessary to be had before the contract of October 2, 1875, could be finished, and proceeded with the work under the contract of October 2,1S75.
    XII. Phineas Burgess, from March 1, 1883, until Novem--her 1,1883, proceeded with and finished the following work:
    Completed the placing of the outer and inner skin plating and deck plating, placing the remainder of the bulkheads, the ventilators, battle hatches, deck lights, timberheads, cleats and sockets, the ventilating and turret engines.
    XIII. All delays since the beginning of work were caused by the Government’s failure to deliver proper material, or by its delivery of material out of the order necessary for its proper and economical incorporation into the vessel, or by the delivery of faulty material, or by the Government’s delay in furnishing necessary plans, or by the insufficiency of some of the plans furnished, or because some of them were not adapted to the work because the Government changed the plans or withdrew certain of the specifications, or by the Government’s delay in furnishing new specifications, or by deficiency and lack of harmony in some of the specifications furnished, or by consultations and experiments due to defects and insufficiency of some of the plans furnished; thus without contractor’s fault, and through Government’s acts, the work on the Monadnock was delayed over seven years beyond tbe contract time of nine months. The contractor could have finished the work in nine months after work commenced February 1,1876, that is, November 1,1876, had it not been for the acts and defaults in these findings recited.
    XIV. Work on the contract of October 2,1875, was completed about November 1, 1883, and about November 10, .1883, the Secretary of the Navy accepted the work and took the vessel from the contractor’s yard. (22 Stats., 472,477.)
    XV. Defendants repeatedly delayed makingtothe contractor certain payments which, under the contract, were earned by him and were demanded and due. By reason of the Government’s delays in making payments to the contractor, after the times at which, by the contract, these payments were to be made, and in some part by reason of the delay in furnishing material under “ frame” contract, which preceded the contract which is Exhibit E of the petition, the contractor was forced to borrow money upon Government vouchers in order to carry on the work upon the vessel, which money he employed in carrying it on and in caring for and protecting the vessel during periods of delay and in paying interest on the loans which had thus been necessitated, being the loans stated in Exhibits G and L of the petition. Owing to the value of tlie partly finished vessel, this borrowing was necessary to enable the contractor to continue the construction of the Monadnock and also to care for her during the delay. The interest paid for these loans was an extra expense to the contractor, caused by the acts of the Government in these findings recited. For interest on these loans and for commissions in obtaining them, i. e., loans contracted up to June 27,1878, Burgess paid various sums, amounting to $20,300.14 in all, which expense was caused saicl contractor by the acts in these finding recited, and no part thereof has been repaid.
    XVI. Besides said loans the contractor was obliged to borrow further sums, which (through defendants’ failure to pay his bills and defendants’ course as in these findings shown) in order to protect the vessel and complete her, and also to pay interest upon the other loans before made by the contractor for these, purposes, being the loans for which'the expense shown in Exhibit L of the petition was incurred, for which further loans, to March 3, 1880, the expense to Burgess for interest amounted to $25,173.26, paid to the Tradesmen’s Bank of Neiv York City, and $9,730.70 to the Continental Bank of blew York City — in all the sum of $34,903.96 — in which further sum he was caused extra expense by defendants’ acts m the manner in these findings shown, and not otherwise, bio part of these sums has been repaid.
    XVII. At defendants’ request (which had not at that time its usual means of attending to the payment of certain freight at Vallejo on materials immediately necessary for the Monad-nock) the contractor, Burgess, paid this freight (from time to time), which amounted to $00,554.05. For this Burgess received Government vouchers, of which, however, only one or two were promptly paid, although payment was demanded, and, in consequence of the delay in payment of the remainder, Burgess became destitute of funds and could not pay the rest of the freight save by borrowing money upon such vouchers from time to time — which money he did so borrow, and paid it for said freight, paying interest for the money so borrowed. The principal sums so paid by the contractor were repaid him, but generally long after such payments were made by him, and not any of the interest which he had been obliged to pay for the use of the money has been paid him. The said interest amounted to $2,161.26, which sum was an extra expense caused as here-inbefore set forth; no part of this has been repaid. Certain of the loans hereinbefore referred to remained outstanding until January 22, 1887, to wit, $33,921,55, bearing interest from January 27, 1886; $6,785.97, bearing interest from February 10, 1886; $4,526.33, bearing interest from February 17,1886; $6,788.33, bearing interest from February 23, 1886; $4,526.33, bearing interest from February 26, 1886; $4,526.33, bearing interest from March 3, 1886; all loans from the Tradesmen’s Bank of New York City, bearing G per' cent interest, and $10,000 loaned by the Continental Bank of New York City, bearing 6 per cent interest from March 3, 1880 — in all $71,074.84, upon which sum the interest accrued up to January 22, 1887, was $4,011.95, in which further sum the contractor has been caused extra expense by the acts of the Government as in these findings set forth, no part of which has been repaid. The further accrued interest on the loans, referred to in the preceding findings, of $71,074.84, to the 13th day of March, 1888, was $4,850.78, in which further sum the contractor has been caused extra expense by the acts of the Government in the manner hereinbefore set forth, no part of which has been repaid.
    XVIII. During portions of the time while the work was in progress, but after the contract period for finishing, the Monad-nock, viz, from December 20, 1870, to December 20,1877, and from March 1, 1883, to November 1,1883, the contractor necessarily employed upon the work an engineer and a machinist, whose reasonable wages (which have been paid by the contractor) amounted to $3,002.25, and whose employment would, except for the facts set forth in these findings, have been unnecessary for this extra period — in which sum the contractor was caused extra expense, no part of which has been repaid.
    XIX. During the period of delay Burgess necessarily employed a superintendent of the said work, whose reasonable wages, paid him by the contractor, were $10 per day, and for the said period amount to $21,910, whose employment, except for defendants’ acts aforesaid, would have been unnecessary for the extended period, and whose employment was beneficial to the Government in the preservation of the incomplete structure and in protecting it; which sum was an extra expense caused to said contractor by defendants’ course, as in these findings set forth — no part of this has been repaid.
    XX. While the work was in progress, but after the contract period for finishing the same, viz, from December 20,1870, to December 20, 1877, and from March 1,1883, to November 1, 1883, Burgess employed an agent at Vallejo for various services in said work, whose reasonable wages were $10 per day, and amount to $5,040 in all for the said, extended period; and whose employment would not have occurred save for the acts of defendants; no part of which has been paid the contractor. The duties of this agent were those of a general agent and representative; be kept tlie time of tbe men, had charge of Burgess’s bank account, paid wages and bills, bought materials, aud had a general supervision of the yard.
    XXI. Upon suspensions of the work, either by order of defendants or from lack of materials intended to be furnished by them, and upon recommencing the work after these suspensions, Burgess transported thrice his agent between New York, said agent’s home, and California, in lieu of paying him wages. The fares of the agent, being three fares, at $186 each, or $558 in all, were paid by Burgess.
    XXII. In the period between nine months after the time limited for the finishing of the work and the time of finishing it in fact, Burgess necessarily employed a night watchman and a day watchman to guard the work and materials. Because of the value of the structure this employment was proper, and the reasonable wages of these men paid by Burgess were $8,600 (during the period when the work was suspended). Except for the aforesaid acts of defendants the employment of said watchmen for said extended period would not have been necessary and would not have occurred. This extra expense has not been repaid.
    XXIII. During the whole period of delay Burgess employed in New York City an agent to negotiate and from time to time renew the loans which Burgess was obliged to obtain, because of the Government’s neglect to pay at the proper times his approved bills, and to obtain money to carry on sometimes, and to protect always, the work. The reasonable wages of this agent, paid by Burgess, were $75 per month, being $6,300 in . all. Except for defendants’ acts in these findings incited, the said agent in New York need not have been employed during the extended periods. No part of this sum has been paid Burgess by defendants.
    XXIV. During the said delay in the work the Monadnock necessarily, without the contractor’s fault and owing to the conduct of the Government, remained in his yard at Vallejo unfinished, and occupied the same and its appliances. Meanwhile no other work was or could be carried on therein than that relating to the Monadnock. The yard and plant were during this time useful in this, that they furnished quarters for the Monadnock and maintained in readiness the appliances for completing her. The fair and reasonable rental value of said yard and plant during tbe said period of delay was $13,800. No part of this sum has been paid.
    XXV. As precaution against fire and for the Monadnock’s preservation Burgess did, during the delay aforesaid, use water and pay tax therefor of the value and to the amount of #564, which expenditure was useful to defendants, necessary, and wise, and which, except for the aforesaid acts of defendants, would none of it have been necessary. This sum was an extra expense to the contractor, no part of which has been repaid. The water was used on said vessel, and also was a protection against fire thereon.
    XXVI. Burgess was a skilled mechanic and shipbuilder. During the seven years of delay beyond the time in which the contractor, but for the acts in these findings recited, could have finished the work, he was, as hereinbefore recited, prevented from attending to other business as a shipbuilder. If free, he could have obtained other contracts or employment. The value of his time was at least $5,000 a year, and during the period of seven years of delay in question he was offered employment at that rate of compensation, which, because of the facts in these findings set forth, he was unable to accept. During this time he employed and paid a superintendent, as in these findings set forth.
    XXVII. By reason of the facts hereinbefore set forth the total damage to the contractor, through wear and tear of his machinery, was increased by the sum of $1,500 above that which would have resulted had the contractor been furnished with proper materials and plans and specifications in due course and in the usual order at the proper times. No part of this has been paid.
    XXVIII. Through the facts in these findings recited the contractor’s necessary expenditures for oil, coal, waste, felt, lard, and such substances in and about the work were increased in all $5,595.47 above those which would have been sufficient had Burgess been duly furnished with proper materials, plans, and specifications. No part of this sum (a.nd it was expended in protecting the vessel from the action of the elements) has been repaid.
    XXIX. The facts hereinbefore recited occasioned along cessation of the work and so caused an additional necessary expense for setting up fastenings of boilers, putting on “soft patches,” etc., made by contractor Burgess in preparing the machinery again for work, which otherwise would not have been necessary, amounting to $1,829.90, no part of which has been repaid.
    XXX. During the years that the Monadnock contract remained uncompleted, as hereinbefore set forth, the style of the machinery of thecontractor grew partly obsolete, the machinery thereby less valuable, and the market-for it became cheaper; but because of the pendency of the contract the contractor did not sell the machinery (as he probably might otherwise have done), nor use it by working it, as ho might otherwise have done; but the machinery was necessarily retained until the contract was finished; thereby the contractor.was caused some damage, the amount of which is not satisfactorily shown.
    XXXI. Because of the facts in these findings recited the contractor’s necessary expenditure for labor, incurred through the consequent disorganizing of his work and of his trained gangs of workmen (many of whom he deemed it unwise to dismiss), was increased, without his'fault, 20 per cent of the cost, to wit, $22,961.
    XXXII. None of certain necessary butt and seam straps were furnished to the contractor, which defendants under said contract should have furnished, and under orders from the authorized Government agents he furnished them to defendants made in a proper manner. A fair price and reasonable compensation to the contractor for so doing is $985, no part of which has been paid.
    XXXIII, Some of the streaks furnished by the Government were not wide enough, and “stealer” or extra streaks were found to be necessary. Under order from defendants’ authorized agents, the contractor made and furnished them to the Government.
    XXXIV. In putting on the “stealer” streaks there was extra riveting, fitting, and calking necessary over and above what, would have been necessary had the sheets or “streaks” been originally (as furnished by defendants) of the proper size, and the contractor did-the said riveting, fitting, and calking. The fair price and reasonable compensation to Burgess for making and for his extra labor in putting on the “ stealers,” as shown in these findings, was $237.58, no part of which has been paid.
    
      XXXV. Under order from defendants’ authorized agents, the contractor made in the after-frames necessary holes for the sleeves of the propeller’s shafts to go into; the fair price and reasonable compensation to Burgess for making the said holes ' is $1,532.37, none of which has been paid.
    XXXYI. Bivets of the right length for the keel, for the gar- ' board streaks from the stem and stern posts, and for the frame and intercostals for outside skin were not furnished to the contractor until after the outside and inside skins of the ship had necessarily been nearly riveted on. By reason thereof the rivets finally furnished could not be put in save at an additional necessary expense, arising from the- necessary difference in the method in which they must then be put in.
    Had the proper length rivets been furnished at the proper time the rivets could and would have been put in at an expense of $288, but in consequence of the said delay the necessary expense to the contractor in putting them in (which he did) was $1,378 in excess of that amount, all incurred without his fault, none of which has been repaid.
    XXXVII. The iron for the seam straps and angle iron for the top and bottom of the outer skin and backing w7as, by the Governments fault, not delivered to the contractor till long after the proper time. In consequence thereof the shops and works of the contractor had to be run by him for these purposes alone, necessitating an additional expense, at reasonable prices, to the contractor in and about the said straps and irons, of $1,086, caused by the acts of the Government, no part of which has been paid. A special need existed on the part of the Government for getting made at that time the said straps and iron, viz, in order that the Monadnock might be preserved safe from getting out of line during the subsequent suspension of the work. The making of the same was of benefit to defendants during the last suspension of five years’ duration.
    XXXVIII. Defendants changed the plan for certain bulkheads after the skin of the ship had been put on, and at defendants’ request the contractor drilled out by hand certain rivet holes in the material to which the bulkhead had to be riveted. The necessary extra expense to Burgess in this hand drilling was $980. The same is a reasonable compensation to him, no part of which has been paid.
    XXXIX. After the contractor had put up, in conformity with instructions furnished by defendants, the bulkheads between the engine room and tbe fire room, defendants directed the position of the lower part of said bulkheads to be changed by the contractor, and Burgess thereupon put up again the bulkheads in the new position.
    The necessary extra expense to the contractor of carrying out defendants’ new instructions as to the new position of the1 bulkheads, incurred in cutting off the former rivets, taking up angle irons on the skin, and altering and shifting the said irons, plugging holes and riveting, was $550, no part of which has been paid.
    XL. After Burgess had, in due course and in conformity with the plans furnished to him, made by machinery the holes in the inner skin for the rivets, whereby the plates for manholes were to be fastened to the inner skin, and after he had put on the inner skin, defendants changed the plans so as to omit the plates, and ordered rings in place of plates; thereby it became necessary that holes should be drilled again (by hand and at increased expense) in the said skin, for rivets, and the contractor thereupon, at defendants’ request, so drilled the said holes in the inner skin. The defendants’ change of plan required also the making of the manhole rings and the drilling of the holes therein for the rivets whereby they were to be riveted; the Government did not furnish the said rings, but, at the Government’s request, the contractor made and furnished them tb the Government and drilled the holes in said rings.
    A reasonable compensation for making these manhole rings and making the lióles therein, and for drilling holes in the inner skin corresponding thereto, is $780; the same was an extra expense to the contractor, no part of which has been paid.
    XLI. Among the attachments or fittings of the vessel it was necessary that the berth deck and the woodwork in it should be prepared for the capstan bed. At the request of defendants’ authorized agents the contractor made the said preparation. A reasonable compensation to the contractor for making this preparation is $266, and was the extra expense thereof to the contractor for the labor therein. No part of this has been paid.
    XLII. At the request of defendants Burgess prepared the heads and heels of 18 additional stanchions which defendants determined to put into the vessel, for which preparation a reasonable compensation to tlie contractor is $10 each, or $180 in all, the actual expense to the contractor for the labor thereon, no part of which has been paid,
    XLIII. At the request of defendants the contractor made and furnished to defendants certain angle irons and gussets on the skin back of the armor, to fasten the wooden armor to its place thereon. A reasonable compensation to him for making the same is $1,536, which sum was the actual extra expense to the contractor for the labor thereon, no part of which has been paid.
    XLIY. At the request of defendants the contractor made and furnished certain bulkhead doors for communication between the compartments of the said vessel. A reasonable compensation to him for making these doors is $1,018.37, no part of which has been paid.
    XLV; About November 10,1883,.defendants took and appropriated to their own use in the vessel, with plaintiff’s consent, sundry frames for hatches, of the value of $170, and certain timber, of the value of $207,60, and certain stairways, of the value of $150; in all, $527.60 in value, all belonging to the contractor, no part of which has been repaid.
    XLYI. Personal conferences and communications between Burgess, the contractor, w'hose temporary residence (because of this contract) was in California, and the Department of the Navy at Washington, as to the plans and specifications of the Monadnock and certain materials to be incorporated in her, became necessary through lack of sufficient plans, specifications, and materials. For this purpose Burgess necessarily visited Washington (traveling from California and returning there) at an expense for traveling of $200. Said expenditure was made for the benefit of defendants, and the Government availed of and accepted the contractor’s services therein and was benefited thereby. No part of this sum has been repaid.
    XLVII. At defendants’ request the contractor acted for the Government in receiving the material (on which freight was paid) from the transporting railroads which delivered the same at Yallejo, after transporting it from the East of the United States, and in examining the freight bills thereof. A reasonable compensation for these services, if any be due, is $500, none of which has been paid.
    XLYIII. Defendants had made a special and low rate of freight for the transportation to San Francisco of the materials which were to go into the Monadnock. The railroads, upon delivery of the iron, disregarded this rate and charged $8,000 over and above the special rate. Burgess was instructed by defendants that the railroads had stated that if Burgess paid the freight the difference would be refunded in the East. Burgess then advanced the money and paid the freight, and the bills were certified to the Department of the Navy.
    January, 1876, the Bureau of Construction and Repair directed Burgess to make up statements of the- amounts due for the various shipments and to recover the drawbacks. He did so, and recovered for the Government the said drawbacks. The amount recovered was $8,138.02. His disbursements in this matter, plus a reasonable fee for his services, amount to $1,800.
    XLIX. The contractor’s work has been satisfactorily completed, and his been accepted by the Government, the compensation of $216,900, including the reservation of 10 per centum agreed upon between the Government and the contractor, has been earned by the contractor: but so much of the reservation thereof as amounts to $12,190 has not been paid him, save that he received from railroad companies the sum of $8,138.02 belonging to the Government, which last sum he has retained on account of the said reservation, by defendants’ consent, leaving still unpaid to him, as the balance of the said reservation, the sum of $4,051.98.
    L. The contract of October 2,1875, was not completed until November, 1883. The petition herein was filed in this court April 10,1886.
    LI. No payment has been made by the United States to Burgess or the claimant (his legal representative) for or on account of any of the items of claim set forth in the petition and the foregoing findings.
    
      Mr. Walter 8. Logan for the claimant.
    
      Mr. John L. Oadwalader for the Continental'National Bank, intervening.
    ilir. Felix Brannigan (with whom was Mr. Assistant Attorney-General JDodge) for the defendants:
    No question of law has been more firmly decided by the courts than the proposition that a claim for unliquidated damages is not a subject for settlement in the executive branch of the Government, and that the reference of such a claim to the Court of Claims by tbe bead of a Department does not place it within the jurisdiction of the court. (Oarmielc v. United States, 2 O. Cls. B., 126; Winnisimmet Go. v. United States, 12 C. Cls. B., 319; McKee v. United States, 12 C. Gis. B., 556; Lip-pitt v. United States, 14 C. Cls. B., 148; Green v. United States, 18 C. Cls. B., 93; Power v. United States, 18 0. Gis. B., 275; McClure v. United States, 19 0. Cls. B., 25, 179; Dennis v. United States, 19 C. Cls. B., 121; Hart v. United States, 19 0. Cls. B., 427; Dunbar v. United States, 19 C. Cls. B., 493; Bran-non v. United States, 20 C. Cls. B., 223; Pitman v. United States, 20 C. Cls. B., 254; Day’s Administratrix v. United States, 20 0. Cls. B., 266; State of Illinois v. United States, 20 C. Cls. B.., 345; Hodge v. United States, 20 0. Cls. B., 354; Pope v. United States, 21 C. Cls. B., 52; Dennis v. United States, 23 C. Cls.B., 324; United States v. Lippitt, 100 U. S. B., 663; Ford v. United States, 116 U. S. B., 213; United States v. McDougall’s Administrator, 121 U. S. B., 89; Finn v. United States, 123 U. S., 231; Opinions of the Attorneys-General: Yols. IV., 327,627; Y, 29; VI, 516; XIII, 164; XIY, 24, 183; XY, 39.)
    Until the passage of the act of March 3,1887 (24 Stat. L., 505, chap. 359), the jurisdiction of claims against the United States for unliquidated damages was alone vested in -the Court of Claims, and before the establishment of that court there was no remedy in. such cases except by an appeal to Congress. (Bev. Stat., sec. 951 — set off; United States v. Barker, 1 Pa., 157; United States v. Lent, 1 Pa., 417; United States v. Martin, 2 Pa., 68; United States v. Collier, 3 JBL, C. C., 326; United States y. Duval, Gilp., 356; United States y.Lngersoll, Orabbe, 135; United States v. Giles, 9 Or., 212; Walton v. United States, 9 Wheat., 651; United States v. Robeson, 9 Pet., 319; United States v. Haiokins, 10 Pet., 125; Emerson’s Heirs v. Hall, 13 Pet., 409; United States v. Buohanan, 8 How., 83.)
    As the claims for damages in the case at bar were not filed in the Court, of Claims within six years after they first accrued, they are barred from its jurisdiction and should be dismissed.
    In addition to the foregoing objection to the maintenance of the present suit for damages, the defendant insists that the power of the Navy Department to enter into the contract of October 2,1875, has not been established by the claimant.
    It has not been shown that there was an adequate appropriation for the work, or a statutory authority to contract for it. The contract was therefore void for want of power to contract, and as against public policy. Ex pacto illicito non oritur actio. (Rev. Stat., 3679, 3732; Broom, Leg'. Max., 732, 742,8th ed.; Carmiok v. United States, 2 0. Ols. It., 126, 135; VI Op. Att’y Oen., 40, 99.)
    If the work on these monitors had been authorized in the regular annual appropriation of $3,300,000 for the Bureau of Construction and Repair for the fiscal years 1S75 or 1876 (18 Stat., 53, 57, 296, 300), this special appropriation would not have been made. It is in this special appropriation only that the monitors are mentioned. It is well known to the court that prior to this special appropriation, and for many years thereafter, Congress was in doubt as to the policy of building' these vessels.
    Defendant contends that, notwithstanding this special appropriation for the monitors, the contract of October 2, 1875, was without authority; because, after June 30,1875, the balance of that special appropriation, if any remained, would not be available as the basis for a contract.
    Even if it were admitted that this special appropriation remained available for that contract, there would still be no grounds for damages; because, in that view of the case, the claimant took the risk in respect to the sufficiency of the amount. The stoppage of work pursuant to the order of July 8, 1876, owing to the failure of appropriations, was therefore no improper interference with the contractor, because it is well settled that—
    
      u Where an alleged liability rests wholly upon an appropriation they must stand and fall together, so that when the latter is exhausted the former is at an end, to be revived, if at all, only by subsequent legislation of Congress. (Shipman v, United States, 18 O. Ols. R., 138, 147; McOullom v. United States, T7 0. Ols. R., 103; Trenton Go.v. United States, 12 O. Ols. R., 157.; Moline W. P. Oo. v. United States, 20 O. Ols. R., 331.)”
    The legislation can in no sense be regarded as validating a contract that was expressly forbidden to be entered into by the statutes. It can aid the claimant no further than as a recognition of work done for and accepted by the defendant. For the reasonable value of this work we might refer to the contract of October 2,1875, and the evidence offered by the claimant that the decedent would have realized a profit of 20 per cent of the contract price if the work had not been interrupted in tbe manner alleged, (United States v. MeDougall’s Admr., 121 U. S., 89, 98.)
    If tbis position in regard' to tbe illegality of tbe contract is sustainable, it follows that tbe claimant bas no foundation for tbe damages demanded in tbis suit. To Congress' alone can be looked for compensation. ■
    All tbe items of damages set fortli in tbe claimant’s requests for findings are without legal foundation. It can not. be said that they were tbe immediate and necessary result of any breach of contract, because in contemplation of law there was no contract.
    1. So far as these items resulted from a failure of appropriation, tbe defense is that no Executive Department could contract that Congress would make an appropriation for any ship.
    2. So far as tbe damages resulted from stoppage of work by the order of July 8,1876, tbe defense is:
    (1) Tbe order was a legal one, since tbe statutes forbid work to be done in tbe absence of an adequate appropriation for it, or a law authorizing it.
    (2) Tbe prosecution of tbe work thereafter was a wrong aud injury to tbe defendant. (Ciarle v. Marsiglia, 1 Denio, 317; Wilson v. Martin, 1 Denio, 602, 605; Shannon v. Gomstoeh, 21 Wend., 457; Hechscher v. McGrea, 24 Wend., 304, 310; McKee v. United States, 1 C. Ols. K>., 242.)
    3. With all the contract stipulations in respect to delays and failures, accidents and laches, tbe decedent agreed to do tbe work at a stipulated price, which, in effect, was fully paid in June, 1878.
   Davis, J.,

delivered tbe opinion of tbe court:

Plaintiff’s intestate made with tbe Government two contracts in- relation to' tbe monitor Monadnock; these contracts provided for building the framework and bull and for all ironwork except the armor. It was in the first contract provided, substantially, that tbe Government should furnish the plans and specifications and deliver all materials, freight paid, at Vallejo, Oak, where tbe vessel was to be built.

Tbe second contract was for tbe ironwork (except armor), and construction thereunder was to be begun so soon as tbe first contract bad been completed; to be finished within nine months, there being a penalty for delay. Tbis second contract is not important to tbis action.

Work on the vessel should have been finished by November, 1876. Through delays caused by defendants this became impossible; plans and specifications were not promptly furnished to the contractor, were often changed, and were often defective, all of which involved delay in the vessel and expense to the contractor; while materials were delayed in delivery, were often delivered out of regular order, and were delivered in such defective form as to' make alteration necessary, always at expense to the contractor.

In July, 1876, the Department of the Navy ordered all work on the vessel suspended until further order; this suspension was indefinite as to time, therefore the contractor felt himself obliged to remain in readiness to go on with the work when called upon, and did not deem it wise to disperse his force of trained and skilled mechanics.

In December, 1876, work was resumed and proceeded (with interruptions and delays, all caused by defendants) for about a year, when it was again stopped because of defendants’ failure to deliver materials as in duty bound. The contractor could not again proceed until May, 1883, and the work was not finished until the following November, more than seven years after the date first contemplaied by the parties.

There does not appear in the findings of fact anything tending to show neglect or default upon the part of the contractor; on the contrary, the very unusual delay was due to the defendants’ fault alone and was caused, as appears, by lack of money in the Navy Department.

As early as November, 1878, this claim was presented to the Department of the Navy, where it was held under consideration until February 17,1885, when the Secretary of the Navy referred the case to this court under section 1063 of the Eevised Statutes.

It is urged by defendants that the claims for damage under the contract of October 21, 1875, are barred by virtue of the limitation prescribed by section 1069 of the Eevised Statutes, unless the Secretary of the Navy had authority to refer them, as he did, under section 1063 of the Eevised Statutes; that section 1063 does not contemplate the reference of claims for unliquidated damages, but only of such claims as are within the jurisdiction of the Executive Department to settle; .that claims for unliquidated damage not being within that jurisdiction this claim yas not presented to a competent tribunal within six years from the date when it accrued. The work upon the vessel required of plaintiff’s testator was not entirely completed until 1883, but the cause of several items of claim herein occurred more than six years before the petition was filed in this court, and it is contended that the statute of limitations bars those items.

If this contention by defendants be correct, then any contractor with the Government must, to protect his right, sue upon every item of difference of fact and every item of difference of interpretation of the contract as each detail of his work is undertaken or completed, as the case may be.

There is no more complicated engine known than a completed vessel of war with its massive hull and.armor, its many varied and ingenious engines, its guns with their ammunition and appliances, and its provision for comfortably lodging and feeding a large body of men under all the possible conditions of weather and combat. In the construction of such a vessel it would be strange if there were not daily presented matters of detail involving dispute between the inspecting officer and the contractor, and requiring an immediate, final, and, indeed, arbitrary decision of points of detail as to which difference of opinion may well exist. If each' time such a point arises and is decided adversely to the contractor he must forthwith begin the prosecution of his remedy against the Government, the parties as well as the courts would be subject to great and unnecessary labor and expense in adjusting petty differences, which could more economically and advantageously be settled in a single action brought after completion of the work. Further than this, if an action be brought before all items of damage have occurred damages thereafter happening in the prosecution of the same work under the same contract would be held barred. The work in this case was in fact not completed until more thaii seven years after the contract period, and this not by reason of any fault of the contractor; for most of the time he was held in anxious readiness to proceed, being ignorant of the moment when an order to complete the vessel might be received. The contractor was not lacking in diligence, and if, under these circumstances, defendants’ argument as to the statute of limitations be correct great hardship to the contractor will result.

The claim was presented to the Secretary of the Navy in November, 1878, and afterwards was referred to this court. The Secretary bad jurisdiction to settle tbe amounts due under these contracts and the claim made for extra expenses and work agreed upon and incurred because of defendants’ action and of which defendants have received the benefit. Possibly, because of Government’s repeated and long-continued, delays, plaintiff might have elected to terminate his contract, but he was not forced to do so, as he was guiltless of fault or neglect in the matter and was free to go on, finish the work; and then sue.

We hold that Burgess had a right to wait until his contract was completed; that he was not forced to sue in 1877 and thus risk greater loss, aud that the .right of action herein became complete as to the items herein allowed when the work was finished, to wit, in 1883. This being so, and the claim having been presented to the Navy Department in 1878 and filed in this court April 10,1886, the action is not barred by the statute of limitations. (Dubois v. Del. and H. Canal, 4 Wend., 285; Allamon v. The Mayor, etc,, 43 Barbour, 33; Bendemagle v. Cooks, 19 Wend., 207; Badger v. Libcombe, 15 Pick., 409.)

When a department transmits a case to this court involving controverted questions of fact and law arising upon a claim under a contract which the department might have settled, and on the trial claims for unliquidated damages on either side which the department had no authority to settle are set up, this court may adjudicate upon all such claims the same as though they had been presented here on voluntary petition.

Was there a contract? In this case there was an advertisement aud Burgess was the lowest bidder. The contract was made in accordance with the then policy of the Government under which new vessels were constructed from the general appropriation for the Bureau of Construction and Bepair, and not, as now, under statutes explicitly authorizing the construction of vessels of specified classes. This practice was continued for several years, was public, and was known to Congress, and through appropriations was approved by that body. The course of Congress in relation to the contracts of which Burgess’s was one is indicated by the following citations:

June 6, 1874, general appropriation for 1875 of $3,300,000 for the Bureau of Construction and Bepair. (18 Stat. L., 53, 57.) June 23,1874 (18 Stat. L., 226), statute authorizing the Secretary of the Navy to use the balance of appropriations heretofore made to the Navy Department for the construction of a floating iron dock remaining unexpended for tbe purpose of completing tbe repairs on suob double-turreted monitors as tbe Secretary of the Navy may deem necessary for tbe public service.” January 18,1875 (18 Stat. L., 296), general approinflation of $3,300,000 for tbe Bureau of Construction and Repair was made. July 12,1875, proposals for tbe repair of tbe Monadnock were invited, and this fact was made known to Congress. (Appendix, p. 50, Ex. F., Rep. 787, 45 Cong., 2d sess.) Tbe general facts as to this vessel and others in course of construction or repair at tbe same time were from time to time reported to Congress, and very considerable appropriations for tbe Bureau of Construction and Repair were thereupon made by tbe Congress, with full knowledge of tbe facts as to tbe Monadnock, tbe Terror, and other vessels then being-built from these appropriations, but without more specific statutory authority. (Report 787, H. R., 45 Cong., 2d sess., vol. 4; Rep. Com., 2d sess., 45 Cong., 1877-78; act June 14, 1878 (20 Stat. L., 123); House Res. of December 10,1878, as to tbe delay in building Monadnock and damages, etc.) January 20, 1879, Report Secretary of tbe Navy. February 21, 1879, Report 112, H. R., 45 Cong., 3d sess. January 23,1880, report of tbe Secretary of tbe Navy to tbe Committee on Naval Affairs showing bow much was needed to complete the Monadnock, and which contains this statement: “So far as tbe Department is aware, the contractors for all tbe double-turreted monitors named in the bill have thus far executed their contracts as required by law.” (On tbe subject of legislative recognition, see Fremont's Case, 2 C. Cls. R., 1; Riley's Case, 1 C. Cls. R., 299; Adams’s Case, 2 C. Cls. R., 70; Behan’s Case, 110 U. S., 338.) Later (April 2, 1880, 21 Stat. L., p. 303), Congress authorized tbe Secretary to organize a board to examine tbe monitors for tbe purpose of determining whether tbe G-oveminent should finish them. This board reported that tbe vessels should be completed (the plans to be somewhat modified), and tbe Secretary of tbe Navy so informed tbe Congress. (Ex. Doc. 82, Parts I, II, and III, H. R., 46 Cong., 2d sess.) In December, 1881, tbe Secretary of tbe Navy reported to Congress that expense was continually accruing on tbe Monadnock and Burgess was suffering hardship. August 5,1882, followed tbe statute (22 Stat. L., 284,291,293) providing for a naval advisory board, appropriating $400,000 for building and fitting up tbe turret and pilot bouse of tbe Miantonomob, and for launching the Monadnock. December 1, 1882, the Greer Board was appointed, as appears in the petition. In his annual report (1882) the Secretary of the Navy (vol. 1, p. 23) states that he has been authorized by Congress to finish the ironclads, and that he has made contracts with the various contractors to furnish the balance of materials and to provide for the launching of the boats, these contracts having been made “ without prejudice to any existing rights of either the Government or the contractors.” On March 3,1883 (22 Stat. L., 472,477), the Navy appropriation act authorized the Secretary of the Navy to take possession of the double-turreted ironclads, to remove them to the Government yards if he should think best, and to ascertain the amounts which should be paid the contractors severally for the use and occupation of their yards and for the care of the ships. February 14,1883, the Greer Board reported to the Secretary, recommending as a payment to Burgess the sum of $192,430.56, and stating that there were monthly damages accruing amounting to $1,116.11. January 7,1884, the Chief of Bureau reported that there was due Burgess Of the contract price $12,190, or if he should be charged with the amount received when freight was. refunded, then the balance would be $4,051.98. February 12, 1S84, the Secretary of the Navy reported as to this board and recommended certain payments to the builders of the Puritan, Am-phitrite, and Terror for the use of their yards, and these recommendations were adopted by Congress (23 Stat. L., p. 459). Congress later (August 3,1886,24 Stat. L., p. 215) authorized the President to complete the double-turreted monitors, of which the Monadnock was one, at a total fixed cost. March 3,1887 (24 Stat. L., p. 594), appropriation was made toward the “construction and completion” (exclusive of armament) of the five double-turreted monitors and the four vessels authorized by the act of March 3,1885, and the vessels authorized by the act of August 3,1886.

From all this it appears that the contract, whether authorized in its inception or not, has been brought repeatedly to the attention of the Congress; that it has been recognized by the Congress as binding on the United States; that that body has authorized payments to' be made upon the contract, and the Navy Department has made payments upon it. The work was done under whatever authority the Secretary of the Navy bad; Congress was folly cognizant of tbe facts and ratified tbe Secretary’s course; tbe contractor honestly.and diligently, at a loss to himself and in tbe face of bardshij), competently completed bis work, and the Government has tbe vessel, which is an important part of tbe naval defense of tbe United States. Tbe contract, we bold, was made by competent authority and was binding upon the parties.

. Tbe service performed by this contractor was under general appropriations covering several vessels; be was not, therefore, chargeable with knowledge as to the Secretary’s apportionment of tbe appropriation between him and other contractors for other vessels built from the same fund. It has been heretofore decided that persons contracting with the Government for partial service under general appropriations are not bound to know the condition of the appropriation account at the Treasury or on the contract book of the Department. (Dougherty v. The United States, 18 C. Cls. R., p. 496. See also upon this point Trenton Company’s Case, 12 C. Cls. R., 147; McCollum’s Case, 17 C. Cls. R., 92; Shipman’s Case, 18 C. Cls. R., 138; Illinois Cent. R. R., 18 C. Cls. R., 118; Chicago and N. W. R. R. Co., 104 U. S., 680; N. Y C. and H. R. R. R., 21 C. Cls. R., 468.)

This case can not follow those of McKay et a.l. (27 C. Cls. R., p. 422), for those cases came to this court under special acts containing provisions peculiar to them as to the measure of damage, whereas this cause must be determined by the general rules of law.

As to the interest on borrowed money: The delay forced the contractor to borrow money to carry on his contract; for this' he was forced to pay interest, an extra expense. The recovery of this sum in this court is forbidden by statute: whether it be claimed in the guise of a damage caused by delay, or in some other form, it remains in fact a claim for interest, and such a claim we are prohibited from allowing. (Rev. Stat., § 1091). The distinction by plaintiff sought to be made, is one of terms only, not of substance. If plaintiff had used his own money and so lost the interest which it might have earned for him, the claim would have been as meritorious, but would not have differed in principle from that now made.

' In Fox and Another v. Harding and Another (7 Cush., p. 516), the court said (upon the question of damages): “The rule has not been uniform or very clearly settled as to the right of a party to claim a loss of profits as a part of the damages for breach of a special contract. But we think there is a distinction by which all questions of this sort can be easily tested. If the profits are such as would have accrued and grown out of the contract itself, as the direct and immediate results of its fulfillment, then they would form a just and proper item of damages, to be recovered against the delinquent party upon a breach of the agreement. These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a part of the damages occasioned by the breach of the contract in suit.” The court add that in the case then at bar jdaintiff's would be entitled to recover such sum in damages “as they would have realized in profits if the contract had been fully performed. To ascertain this it would be necessary to estimate the cost and expense of work and materials in completing the contract on their part, and to deduct this sum from the contract price. The balance would be the profit which would have accrued to them out of the contract itself if it had been fulfilled, and which they have a right to recover, in addition to such further sum as would compensate them for the labor and materials supplied toward the completion of the contract;” and the court add that if plaintiffs had offered to prove that in consequence of the breach of the contract they lost other profitable contracts which they had entered into for the purpose of fulfilling the contract then in suit, such evidence would have been inadmissible.

In Sutherland on Damages (p. 106) it is said: “In another class of cases the question of the certainty of damages is more distinctly involved. * * * The plaintiff’s right to recover for such a loss depends on his proving with sufficient certainty that such advantages would have resulted, and therefore that the act complained of prevented them.” (See also Taylor v. Maguire,12 Missouri, p. 313.) In Blanchard v. My (21 Wendell, p. 342) the Supreme Court of New York thus approves the rule of the civil law, as stated by Pothier: “In general, the parties are deemed to have contemplated only the damages and interest which the creditor might suffer from the nonperformance of the obligation in respect to the particular thing which is- the object of it, and not such as may have been accidentally occasioned, thereby in respect to his own affairs.” In Walker et al. v. Ellis et al. (1 Sneed, p. 515) the rule is thus stated by the Supreme Court of Tennessee: “In actions of contract, generally speaking, the damages are limited to the natural and proximate consequences of the breach complained of, and the damages remotely or consequentially resulting therefrom, or merely speculative damages, can not be claimed.” In the same State the Supreme Court (following Blanchard v. Ely, 1 Wend., 346) held (in action for breach of agreement to deliver castings) that plaintiff was not entitled to damages lor delay in business caused by the nondelivery, nor for expenses incurred in attempting to procure the castings, nor for speculative profits. Again (in Shaw v. Turnpike Co., 3 Penn., 445), it was decided that, while a party may have the right to declare the contract at an end, if he elects to treat it as still subsisting, “he thereby waives the consequences of such default, and can not afterwards allege the recission of the contract by the defendant and recover on a quantum meruit.”

We hold that the plaintiff can only recover those items of damage which are the proximate result of the acts of the Government. What those items are is somewhat difficult to determine. For a damage to be direct there must appear no intervening incident (not caused by the defaulting party) to complicate or confuse the certainty of the result between the cause ana the damage; the cause must produce the effect inevitably and naturally, not possibly nor even probably. The damage must be such as ivas to have been foreseen by the parties, who are assumed to have considered the situation, the contract, and the usual course of events; but eliminated from this consideration must be any condition of affairs peculiar to the contractor individually in the particular case and not of general application under similar conditions. There must not be two steps between cause and damage. We have followed this rule in the decision'as to the different items of claim shown in the Conclusion of Law.

On the whole case, judgment for plaintiff in the sum of $129,811.45.  