
    CROCKER, DAVIDSON & CO. v. THE UNITED STATES.
    [No. 14341.
    Decided April 12, 1886.]
    
      On the Proofs.
    
    Shipwrights agree to make designated repairs on a vessel at schedule rates; hut the total cost ‘ ‘ shall not in any ease exceed ¡¡¡9,929.” ‘ ‘ Materials and labor not provided for in the foregoing schedule to he furnished at current market prices.” Additional work is ordered and furnished; hut the contractors keep only one general account, so that as regards the disputed items in suit it is impossible to say which were properly chargeable to the contract and which to the extra work.
    I. Where it is impossible to determine what are the rights of the parties and whether work performed by the claimants came within or was in excess of the obligations of their contract, the presumption of law is that it was required by the contract.
    II. The defendants cannot recover upon a counter-claim damages caused by the contractors’ failure to complete their work within the period designated by the contract if the delay resulted from time necessarily employed in doind extra work ordered by the defendants, each party contributing to the delay.
    
      The Reporters’ statement of the case:
    The following are the findings referred to in the opinion of the court:
    I. In June, 1881, the claimants entered into a contract with the defendants for the repair of a light-ship owned by the defendants. The substance of the contract is embraced in the following correspondence:
    “Oefice oe Crocker, Davidson & Co.,
    
      uPort Neele, New London, Oonn., June 15th, 1881.
    “ Dear Sir : We have examined your specification for repairs on light-ship No. 23, and propose as follows:”
    [Then follows a long and minute list of the items of repair to be put on the vessel.]
    
      “We will do whatever we nave named in a thorough manner, and use first-quality materials and make no claim for the old materials. Our price will be nine thousand four hundred and twenty-nine dollars ($9,429). If done by day’s work we will agree that the labor and materials as specified, or that are necessary to make the ship’s repairs complete, shall not exceed the sum of nine thousand nine hundred and twenty-nine ($9,929). "The time to do the repairs will occupy two months.
    “Crocker, Dayidson &-Go.”
    “ U. S. Light-House Depot, “Office of Light-House Inspector,
    “Third District,
    “ Tomyldnsmlle, Staten Island, N. Y., June 21si, 1881.
    “ G-entlemen : Your proposal of 'the loth instant, of Which a summary is given below, is hereby accepted, subject to the conditions following the statement of 3rour bid. On receipt of these presents you will acknowledge the same, and signify your final and obligatory acceptance.
    “1. You agree to thoroughly repair light-ship No. 23 according to the specifications hereunto annexed and forming part of this agreement, providing and furnishing first-class labor and the best materials of all kinds necessary to make the ship’s repairs complete.
    “ 2. You undertake to complete the repairs of the vessel, and to return her to her berth at the light-house depot, New London, in two months from the 25th instant.
    “ 3. There is to be no charge for the use of ways, tools, freight, cartage, or other implement or convenience of your trade, other than ■ those provided for in the specifications and your repetition of them in your bid.”
    [Then follows schedule of prices.]
    “7. You accept the contract with the clear understanding that all the repairs necessary to put the vessel in perfect condition, according to the specifications and the orders of the superintendent, including "labor, materials, and facilities of all and every kind, shall be done by day’s work, and that while it may be less (according to the work and the materials required by the superintendent), it shall not in any case exceed the sum of nine thousand nine hundred and twenty-nine dollars ($9,929).
    “The materials used and the labor employed must have the approval of the superintendent. His rejection will be final, and no bills not approved by him will be paid. Cases of misunderstanding may be referred (to the inspector of the third light-house district, whose agent in this work the superintendent is.
    “Your books and those of the superintendent must be compared and made to agree daily. In case of difference bis account will be preferred.
    “The bill for the work complete will be rendered in the aggregate of labor and materials according to their kinds and-signed as correct by the superintendent.
    “ Materials and labor not provided for in the foregoing schedule will be furnished at the current market prices of your vicinity.
    “The right to waive technical defects is reserved, as also the right to solve any doubts that may arise as to the proper understanding of any part of this mutual agreement or open contract.
    1 ‘ Yery respectfully,
    “Geo. Brown,
    “ Gwpt. TJ. S. N., Inspector 3rd L. H. Dist.
    
    “ Mess. Crocker, Dayidson & Co.,
    
      “Ship-Builders, Neto London, Conn.”
    
    “Crocker, Dayidson & Co., uJFort NecJ, New London, Conn.. June 23d, 1881.
    “ Captain George Brown,
    
      u L. IIo. Inspector 3d, dist., Tomplcinsville, S. I. :
    
    “Dear Sir: We this morning received your-that we had accepted contract to repair light-ship, and that we would mail you ohr acceptance to-day. Now this is our formal acceptance: That we will repair light-ship No. 23 as per our proposal of June loth (see schedule.of prices), as embodied in your proposal of June 21st, which we have this day accepted and signed and handed to Supt. Berry. Upon receiving instructions to proceed we will immediately commence to carry out our jiart of the contract.
    “Respectfully, yours,
    “Crocker, Dayidson & Co.”
    YII. An amount of extra, work was ordered by the superintendent, acting under the orders of Captain Brown, who had instructed him to have the work done, and that everything must be done to make the repairs thorough. The claimants called the attention of Captain Brown to the work ordered by Superintendent Berry, which they were not required to do by their agreement, and were assured by him that they would be paid for any work done not called for in. the specifications, and that they should do whatever Mr. Berry instructed them to do, and he would protect them.
    VIII. Accounts of labor and material were kept by the claimants and superintendent, which were compared and made to agree daily, so far as labor and material were concerned. This itemized account amounted on the completion of the work to $16,979.04. On the 15th day of April, 1882, during the progress of the work, the claimants were paid $5,000 on account, and on the 6th day of September, 1882, they were paid the further sum of $4,929 for labor and materials in repairing ship No. 23, as per agreement aud specifications, and executed a receipt “in full of the above account.”
    IX. On the completion of the work, Captain Brown paid the claimants $4,929, the balance of the consideration of the agreement under the specifications; but refused to pay the balance of the account as extra compensation for the additional work and material. He made an account for extra work, aggregating $2,246.77 of such items as could be separated from the general repairs of the vessel.
    X. The delay in finishing the work resulted from the time necessarily employed in doing extra work, and the acts of the claimants and the agents of the defendants, each contributing to the delay of the work.
    
      Mr. J. T. Power for the claimants:
    (1) This is an action brought by the claimants to recover the value of services rendered, work and labor performed, and materials furnished to the defendants in the repairs of light ship No. 23, belonging to the Duited States and under the control and custody of the Light-House Board of the Treasury Department, in accordance with an agreement of t,he parties.
    The claimants agreed to repair this vessel according to the specifications for $9,929, in day’s work and materials, at specified rates for labor and prices for materials. In the agreement is the following clause:
    “The bill for the work complete will be rendered in the aggregate of labor and materials according to their kinds and signed as correct by the superintendent.”
    The claimants commenced the repairs on June 24, 1881, but almost immediately the specifications were disregarded, and a large amount of work and materials in excess thereof were ordered by the defendants and performed and furnished by the claimants.
    The agreement required an account to be kept by both parties in labor by the day for mechanics and in the stated prices for materials, which was compared daily and found to agree.
    
      On the completion of the repairs this account aggregated $16,979.04, upon which the claimants demanded settlement for the balance due them, having been advanced on account $5,000 during the progress of the work.
    Captain Brown, the inspector, refused to settle by this account. He paid the balance of the $9,929, under the agreement and specifications, and $2,246.77 for certain items of repairs which he was willing to admit as extra work outside of the agreement. This action is to recover the balance on the account.
    (2) The mode of settlement adopted by Captain Brown was not only illegal, but unjust to the claimants. It was a complete surprise to them. It was an impossibility for them to go through the vessel and designate the extra work performed outside of the specification.
    (3) If this is not a contract binding on the parties, the claimants are entitled to recover for the labor actually performed and the materials furnished upon the implied assumpsit. (Dough-erty’s Case, 18 C. Cls. B., 496; MiteheWs Case, 19 id., 39; Bur-chiell’s Case, 4 id., 549; HeathfielWs Case, 8 id., 213; Salomon’s Oase, 19 Wall., 17.)
    The subsequent performance by the claimants and acceptance by the defendants authorizes a recovery on a quantum meruit. (Slater v. Emerson, 19 How., 239; Dermott v. Jones, 23 id., 233; 2 Parsons on Cont., 660.)
    
      Mr. Lewis Cochran for the defendants.
   Weldon, J.,

delivered the opinion of the court:

In June, 1882, the claimants and the defendants entered into a contract for the repair of light-ship No.'23, which contract is set forth in finding i.

The compensation to be paid for the work specifically provided for by the agreement is $9,929, which has been paid; and the controversy arises out of a claim made by the petitioners for additional work done under said agreement beyond said compensation.

It is specified in the contract “ materials and labor not provided for in the foregoing schedule will be furnished at the current market prices of your vicinity.” Under that provision and the general terms of the contract it is alleged that $7,050.04 of additional work was performed.

Parties agree that the sum of $19,979.04 was expended in doing what work was done, either as belonging to the original schedule or as additional work ; but a contention arose as to how much beyond the sum named in the agreement ought to be charged.

The findings show that, in addition to the sum of $9,929, there has been paid the claimants the sum of $2,354.05, making in the aggregate the sum of $12,283.04, leaving a balance of $4,696; and for that balance this suit is brought. By the terms of the acceptance of the proposition of the claimants the work specified was to be done by day’s work; and while the comi.iensation might fall below the sum of $9,929, it was in no event to exceed that sum. The cost of the labor and material did exceed that sum, but still the petitioners are only entitled to that amount for the schedule work and materials.

The contract is very singular in its provisions, but, such as it is, it must be enforced in determining the rights of the par- • ties. The averments of tin? petition would seem to indicate that the claimants sought to recover against the United States because’of additional work done under that provision of the agreement contained in the acceptance of the proposition of the claimants embraced in the letter of Captain Brown, as set forth in the first finding; but in the trial of the cause it was argued that the petition declared on the obligations of the contract with reference to the work embraced in the terms of the proposition.

It may be that the allegations oí the petition are sufficiently broad to- comprehend both branches of claim. By the terms of the agreement, for certain schedule work the sum of $9,929 was to be paid in case the labor performed and the material furnished amounted to that sum, according to the basis of compensation provided by the agreement, and we find that for the work done and materials furnished the defendants have paid the claimants the sum of $12,283.04.

By the further terms of the contract both parties were required to keep books showing the am ount of labor and material furnished, and in case of any disagreement the books of the defendants were to be ■ preferred. The bill for the work com-píete was to be rendered in the aggregate, and no distinction was to be made between schedule and additional work. The books of the claimants and defendants agreed in every particular, making the aggregate of the work and material$16,979.04, being an excess of $7,050.04 over the $9,929. For that excess the claimants hare-been paid the sum of $2,354.04, and the question for us to determine is, whether they are from the facts and the law entitled to recover the balance of said amount. It It will be seen by the findings that the agent of the defendants paid the claimants the sum in excess of the $9,929 upon the ground that such amount was due them for work not embraced in the schedule of the contract. The parties agreed on 4he amount and value of such work, and it does not appear that any mistake was made by them in adjusting the amount or value of the same.

It is impossible to determine from the schedule contract what are the rights of the parties upon the question whether the work was in excess of the obligation of the claimants, as it does not appear what was done by them beyond what was allowed by the agents of the defendants not falling within the schedule.

The burden of proof on this issue rested on the claimants, and as the facts do not show the amount and value of such excess, if any existed, the presumption of law fixing the extent of the labor and material as coincident with the requirement of the agreement compels us to find that issue for the defendants.

In the contract it is stated u the time to do the repairs will occupy two months.” The time occupied was a little over fourteen, and upon the basis of those facts the United States have filed a counter-claim, alleging damages to the extent of $1,500 for money paid to a superintendent during the time occupied by the work. The record shows that the delay was occasioned by the act of both parties ; and it is a familiar principle of law, applicable alike to contracts and torts, that where a party by his neglect or negligence contributes to an injury he cannot recover unless his negligence is slight as compared with the other party. (Milton v. Hudson River Railroad Company, 37 N. Y., 210; Sedgwick on Measure of Damages, 172, note a; Shearman & Bedfield, 50.)

It was contended by the claimants’ counsel that the wages of a superintendent are not such damages as the defendants have a right to recover because of a delay in finishing the work; but the findings do not make that question material.

.Upon the whole case it is the judgment of the court that the claim and counter-claim be-dismissed.  