
    AMERICAN DREDGING CO. v. THE UNITED STATES.
    [Nos. 30538 and 30539.
    Decided February 16, 1914.]
    
      On the Proofs.
    
    The plaintiff originally brought two actions to recover certain sums deducted by the defendants in final settlements on two separate contracts as well as for reimbursement for expenses incurred for the benefit of the defendants. The contracts were for dredging work in the Delaware River and were identical in terms except as to the location of the work. Under both contracts the work was to be completed by June 30, 1908. The delay in completion under one contract was 50 days, under the other 60 days, >and the deductions made by the defendants were for the eost of superintendence and inspection during these delays.
    I.Where time is the essence of a contract and the Government by its delay prevents performance within the contract time, such delay will operate to waive the time limit and give the contractor a reasonable time within which to perform. An extension of time coaxtensive with the period of delay will be assumed reasonable in the absence of proof to the contrary.
    II.Where the Government official takes an unreasonable time, after the receipt of the contract duly executed by the contractor, • to approve the same, the time limit will be extended for such time.
    III.Section 3744 of the Revised Statutes and -the practice of the departments to which it is applicable makes the kind of contract here involved sm generis, and the ordinary rules of law as to waiver of rights by signing the contract and beginning work thereunder should not be applied.
    
      The Reporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. Claimant is a corporation organized and existing under and by virtue of the laws of the State of Pennsylvania.
    II. On October 17, 1907, the .United States, by and through the United States Engineer office at Philadelphia, Pa., advertised for and invited sealed bids and proposals for the performance of certain dredging in the Delaware Diver in sections 4 and 5, ás therein named, such bids to be opened at noon, November 15, 1907, and such work to be done in accordance with specifications therefor prepared and issued by the Government.
    In its description and requirements of the work to be performed the Government gave notice that, to facilitate bidding, section 5 had been divided into two subsections, denominated 5A and 5B, and bidders were requested to submit bids on said subsections separately.
    III. Pursuant to said advertisement and requirements the claimant made a proposal for doing said dredging, and all of the bids therefor were opened said November 15, and by a letter dated Philadelphia, Pa., December 4, 1907, and received by claimant December 6, 1907, the claimant was notified that its said proposal to do the dredging upon said subsections 5A and 5B had been accepted. Separate contracts for the work on each of said subsections were afterwards executed ; and separate suits were brought in this court by the claimant upon each of said contracts; but by order of the court, upon motion of the claimant, said suits were consolidated, and in these findings they will be considered substantially as one contract. A copy of each of said contracts and the specifications thereto belonging were attached to the petitions in each of said suits and made a part thereof, and the said contracts are the same in every respect, except that one directs the work to be done upon subsection 5A and the other upon subsection 5B.
    The bid of the claimant was accompanied by the usual guaranty bond to enter into a formal contract for the completion of the work if its bid was accepted.
    IV. On January 2, 1908, the claimant received contracts for the work from Maj. Sanford, the Army engineer in charge locally in Philadelphia, signed by him for the Government, and claimant executed them on its part and together with the necessary bonds required to be executed in connection therewith returned them to said Maj. Sanford at Philadelphia on January 6, 1908. They were finally approved by the Chief of Engineers on January 23, 1908, and on January 27, 1908, the claimant received notice of such approval.
    V. On January 28, 1908, the claimant submitted to the engineer officer in charge plans for a proposed dumping basin and requested approval thereof and authority to use the same, and on February 26, 1908, said plans were approved by said engineer and the necessary permission given.
    VI. On March 19,1908, the claimant, in order to facilitate the operation of its dredges during cloudy and foggy weather, requested of Maj. Sanford, engineer officer in charge, permission to place range buoys and piles along the lines of the areas wherein the work was being done. In a letter dated March 26, 1908, Maj. Sanford informed the claimant that their proposal was unobjectionable, but that the permission requested could not be granted until the exact location of the buoys and piles had been charted and approved by the lighthouse inspector. Nothing further was done in this matter by the claimant until April 20 following, when it wrote to the Lighthouse Establishment to get information as suggested by Maj. Sanford, and on May 6 thereafter, through a telephone conversation with the lighthouse authorities, was informed that they had no jurisdiction in the matter; but the claimant was given said permission very shortly thereafter by the engineer officer in charge.
    VII. June 23,1908, the claimant addressed a letter to Maj. Herbert Deakyne, then the Government engineer officer in charge of the work, saying, in substance, that it would not be able to complete the work by June 30,1908, and requesting an extension of time for completing the contracts until August 31, 1908. June 27, 1908, said Maj. Deakyne addressed letters to the claimant waiving the time limit for the completion of such contracts for a reasonable period, but stating that the contractor must bear such expenses due to such waiver as were properly chargeable under the terms of the contracts. The work under the contract for subsection 5A was completed August 19, 1908, and on subsection 5B August 31, 1908, on which dates, respectively, said work was accepted by the United States.
    VIII. In making final settlement with claimant for the work done under said contracts the defendants deducted from moneys otherwise due the claimant under the contract for work on subsection 5A the sum of $1,207.82 and on account of subsection 5B the sum of $2,100.01, such sums so deducted representing the additional expenses to the defendants for the superintendence and inspection to which the Government had been put during the period of extension mentioned in the previous finding.
    TIT. During the period from July 1, 1908, to August 31, 1908, the claimant furnished the defendants’ employees a total of 1,652 meals and 503 lodgings, as provided by article 39 of the specifications, and for which no payment has been made.
    X. In normal years no dredging work is possible in the Delaware River during the latter part of December, the months of January and February, and the early part of March, but during the winter of 1907-8 dredging work could have been done during the whole months of December and January but none in the month of February, nor during the first ten days in March.
    XI. The dumping basin heretofore referred to had been formerly used by the claimant under other contracts and as late as the preceding autumn, and required very little preliminary work to prepare it for use under the contracts in question, and work for its preparation could have been begun by the claimant February 27 and completed by March 10.'
    XII. The delay in granting permission to claimant to place extra and close-range piles and buoys delayed the claimant only during thick and foggy weather and not more than three or four days.
    XIII. The court finds, as an ultimate fact, so far as it is a question of fact, that the defendants took 30 days more time than was reasonably necessary in getting the contracts to the claimant with notice of approval, and that in consequence the time for the completion of the contracts was thereby extended for the period of 30 days; from which it follows that the claimant should only have been charged the sum of $386.14 for damages on account of its failure to complete the contract on subsection 5A within the time limit specified in the contract, and on account of its failure to complete the work on subsection 5B within the time limit specified in the contract the sum of $1,146.23, making in all the sum of $1,532.37; and that the claimant is entitled to compensation for the meals and lodgings furnished the defendants during said 30 days extension of time, amounting to $162.62; and that the other delays in the prosecution of the work under the contracts in question were not occasioned by any fault on the part of the defendants.
    CONCLUSION OE LAW.
    Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to judgment of and from the United States in the sum of one thousand nine hundred and fifty-four dollars and eleven cents ($1,954.11).
    
      
      Mr. G. G. Galhoun and Mr. F. L. Newbech for the plaintiff. Mr. John Mason Brown was on the brief.
    The negotiations in these cases were with the War Department and therefore the provisions of section 3744, Revised Statutes, were not only applicable but controlling. By said section 3744, R. S. it is expressly provided that:
    “It shall be the duty of the Secretary of War, * * * to cause and require every contract made by them severably on behalf of the Government or by their officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties, with their names at the end thereof * * (Italics mine.)
    This statute is imperative and mandatory in its requirements, and not merely directory to the contracting parties. Steele v. United States, 19 0. Cls., 181; also, 22 Opp. Atty. Gen., 98.
    As between the Government and the contractor it is a statute of frauds. It does not prohibit the making of contracts, but regulates the manner of making them Ganoid's case, 5 C. Cls., 68. A contract not so reduced to writing and signed as required by 3744, R. S., is absolutely void. (Mark v. United States, 95 U. S., 539.
    In Monroe v. United States, 184 U. S., 527, it was held:
    “It is the final written instrument that the statute contemplated shall be executed and signed by the parties and which shall contain and be the proof of their obligations and rights.
    “To bind the United States a contract by the Navy Department must be in writing and signed by the contracting parties. The preliminary memoranda made by the parties for use in preparing a contract for execution in form required by law are not sufficient.
    “The negotiations, correspondence, proposals, acceptance, etc., in writing, signed in part by one party, and in part by the other, do not constitute sufficient compliance with the provisions of this section to constitute a valid contract.”
    To the same effect is the case of McLaughlin v. United States, 36 C. Cls., 177, wherein this court held that:
    “The preliminary advertisements, specifications, and proposals and acceptance of proposals must be viewed as becoming a part of the statutory contract when the contract was executed as required by this statute, but until then only as a part of the negotiations looking to a formal contract case.”
    In view of the statute above quoted and the cases just cited, surely it will not be seriously argued that the “acceptance of the bid” constituted and completed a binding contract between claimant and the Government.
    
      Mr. L. G. Bissell, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   BarNey, Judge,

delivered the opinion of the court:

This suit was originally brought in two separate actions to recover, respectively, the sums of $1,207.82 and $2,100.01, which were deducted by the defendants in its final settlement with the claimant on two separate contracts, as well as for meals and lodgings furnished the defendants’ employees during the delay period hereinafter mentioned. These deductions were made for the cost of superintendence and inspection during the period of delay on one of the contracts for 50 days and on the other for 60 days.

Both of the contracts were for dredging work on the Delaware River on sections adjoining each other, one called “ subsection 5A” and the other “ subsection 5B.” The contracts were identical in every particular except as to the location of the work to be performed. Copies of these contracts were attached to the petition in these suits and made a part of the same. They both provide that the work was to be completed by June 30, 1908. These two suits have been consolidated by order of the court and, except as to the date of final completion of each of them, are treated in this opinion as one contract.

The bids for this work .were submitted by the claimant pursuant to advertisement theretofore published on the 16th day of November, 1907; on the 6th of December following the claimant received notice from Maj. Sanford, the Government engineer, and who is located in the city of Philadelphia, Pa., in charge of the work, that its bid had been accepted. January 2, 1908, the claimant received from Maj. Sanford the contracts for the performance of this work signed by him for the defendants and dated December 31, 1907; the claimant executed them on its part and returned them to Maj. Sanford on January 6, together with the bonds required. They were approved by the Chief of Engineers at Washington on January 23, and on January 27 the claimant received notice of such approval.

June 23, 1908, the claimant addressed a letter to Maj. Deakyne, the Government officer then in charge of the work, stating in substance that it would not be able to complete the contracts within the time limit and requested an extension of time for such completion till August 31, 1908. On June 27 Maj. Deakyne addressed letters to the claimant waiving the time limit for a reasonable period, but stating that the claimant must bear such expenses due to such waiver as were properly chargeable under the contracts. The work under the contract for subsection 5A was completed August 19, 1908, and on subsection 5B August 31, 1908, and accepted by the defendants. Upon final settlement with the claimant the defendants deducted all of their expenses for superintendence and inspection during the whole of such delay period under one contract for 50 and the other for 60 days.

It is contended by the claimant that no such deductions should have been made, as it claims that the extension of time above noted was required to complete the work under the contracts because of delays on the part of the defendants which retarded the work more than the period of extension.

The court has found as an ultimate fact that the defendants took 30 days more time than was reasonably necessary in getting the contracts to the claimant with notice of approval.

The statement of the case hereinbefore made gives the history of this whole question from the submission of the bids till the final approval of the contracts, and the decision upon the point in question is doubtless one of law rather than of fact. It seems, however, proper to call attention to some of the admitted facts in the case, which have led the court to make the ultimate finding of fact mentioned. The bids were opened November 15, 1907, but the contract, duly approved, never reached the claimant before January 27, 1908, or 73 days thereafter. None of this delay was chargeable to the claimant. On the contrary, the findings show that it was unusually diligent in doing its part in expediting matters, as it received the contracts executed on the part of the Government January 2, 1908, and within four days executed them on its part and forwarded them to the proper officer of the Government, together with the bonds required. Time was of the essence of the contract, and there is nothing in the record showing any lack of diligence on the part of the claimant in executing the contracts after it was permitted under their terms to begin the work, which shows that it needed every day allowed to complete the work within the time limit. Taking these facts into consideration, we think that the finding that the defendants took 30 days more time than was reasonably necessary to get the contracts to the claimant, with notice of approval, is justified.

The findings show that dredging work in the Delaware River can not usually be done in the month of January, and the Government contends that this fact excused it for its delay, though the findings show that in the winter of 1907-8, when this work should have been in progress, dredging work on the Delaware River could have been done during the whole month of January. We do not think this contention is sound. If Providence favored the claimant by bestowing an open winter, during a part of which this work could have been carried on, we do not think the Government could by its negligence deprive it of this advantage. The claimant had the time limit named in the contracts, which was some time between November 15, 1907, and June 30, 1908, within which it was to do this work, and not of some other year or the average of years. How would the case stand if the opposite contention was made? Suppose the findings showed that in normal years dredging work could be done on the Delaware River during the whole winter, but that the winter in question was an abnormal one and the river was frozen so solid that no work of this kind could be done during the months of January and February. In such a case would the .Government not rightfully contend that the unnecessary time taken in approving the contracts did not delay or injure the claimant ?

Some evidence was introduced by the Government tending to show that the claimant was not so situated as to begin work under these contracts before it actually did, because of the fact that it had its dredges employed elsewhere. While such evidence was so obscure as to hardly justify a finding upon that subject, we do not think such evidence was material under the circumstances of this case. A similar question was involved in Pickney v. United States, 46 C. Cls., 77, 90, and this court said: “ What right have we to assume that if the notice had been given in time to require completion within the terms of the contract the claimant would not have employed a sufficient force for that purpose? ”

A similar question arose in the case of Morse Dry Dock & Refair Co. v. Seaboard, &., Co., 161 Fed. Rep., 99, and the court said: “ The respondents’ contention is based upon an assumption which it had no right to make * * *. It can not assume that its failure to perform its obligations made no difference. It is imposible to say what might have happened had the conditions been different.” In the case at bar what right have we to assume that the claimant would not have purchased or hired other dredges even if all it then owned were employed elsewhere®

It is now settled, at least in this court, that when time is of the essence of the contract and the Government by its delay prevents performance within the contract time such delay will operate to waive the time limit and give the claimant a reasonable time within which to perform. Ittner v. United States, 43 C. Cls., 336; Little Falls Knitting Co. v. United States, 44 C. Cls., 1; Callahan Construction Co. v. United States, 47 C. Cls., 229; Laidlaw-Dunn-Gordon Co. v. United States, 47 C. Cls., 271. And an extension of time coextensive with the period of delay will be assumed reasonable in the absence of proof to the contrary. Callahan Construction Co. v. United States, supra.

In the Callahan Construction Co. case, as well as the Laidlaw-Dunn-Gordon Co. case, the delays caused by the Government, and for which an allowance was given, were identical in character with those in this case.

It might, perhaps, be urged that by signing the contracts January 6, 1908, the claimant thereby waived any right to take advantage of the delay of the Government; also, that by undertaking the completion of the work after the contracts had been approved January 23, 1908, it waived such right. In answer to this it may be said that the claimant had the right to assume that if the Government was reasonably diligent after the contracts were sent to it January 6, 1908, in notifying it of their approval it would still have had nearly the whole month of January within which to begin the work. Further than that, the claimant was under bonds to sign the contracts and was also under bonds after the contracts were signed to perform them. It would have been a hazard which we do not think the claimant was bound to incur, if it had either refused to sign the contracts when they were received or to perform them after receiving notice of their approval. We believe rather it had the right to assume that the time limit for their execution would be reasonably extended.

Had it not been for section 3744, Eevised Statutes, requiring contracts with the War Department to be in writing, signed by the parties at the end thereof, the bid of the claimant and its acceptance by the Government would have constituted a valid contract. Harvey v. United, States, 105 U. S., 671. In lieu of that manner of making contracts, the statute cited provides that contracts with certain departments of the Government shall be executed in the manner stated, and the Supreme Court has held that that statute is mandatory and that contracts made with such departments are absolutely void unless so executed. The Government secures itself, however, by compelling the party bidding to enter into a bond to execute the contract as provided by section 3744, if his bid is accepted. The bidder is without any remedy in the event the Government should refuse so to do. He must bide his time till the Government sees fit to act, and when it does act he must acquiesce or take his chances to have his bond sued. The statute referred to and the practice of the departments to which it is applicable makes this kind of contract sui generis, and the ordinary rules of law as to waiver of rights by signing and beginning the work under a contract should not be applied. That to do so would be harsh, oppressive, and unjust needs no argument to show. We do not think the Government demands, or has any right to demand, any such construction.

If the contract in this case was to have been performed within a stated time designated as a certain number of days, months, or years after the. execution of the contract, it would present a different question, but it was to be performed before a certain day named. In cases arising under the first class of contracts mentioned, it might well be said that by undertaking to perform the contract the contractor had waived any delay in its execution. Where, however, as in this case, the contract is to be performed before a certain day stated, it would seem reasonable that where there is unreasonable time taken by the Government in its execution and approval after the acceptance of the bid, the day before which performance was required should be set forward for a time corresponding with this delay. In other words, when a contractor has made a bid to perform work before a certain day, he has a right to presume that the contract will be executed and approved within a reasonable time, and if this is not done, that the time limit will be correspondingly extended:

It may be both interesting and important to note that in the Callahan Construction Co. case, supra, the work was to be performed before a day certain; and in the record in that case it appears that the Government engineer in charge of the work recommended that the time limit be extended, in the following language: “As a matter of justice, also, the time of completion of the contract should be extended to compensate for delay in approval of the contract,” and accordingly the time was extended.

No distinction between delays on the part of the Government occurring during the execution of a contract, as in this case, and delays occurring during its performance, has ever been made by either party in the presentation of these cases. That question has been presented for the first time in conference upon this case, and we realize its seriousness and importance, but do not feel called upon at this time to overthrow the doctrine of so many cases in this court, especially in view of the fact that the Government has never appealed from our decision in any of them.

We shall enter into no extended discussions of the other delays complained of by the claimant. We believe the findings clearly show that they did not impede the claimant to any appreciable extent in the. prosecution of the work. Some unforeseen circumstances causing obstruction are to be anticipated in any considerable undertaking and particularly in work of this character. We do not think the Government officers in charge of the work were properly chargeable with any neglect or unreasonable conduct of which the claimant can complain.

It follows from the foregoing that the claimant is entitled to recover for the deductions made from the contract price on account of cost of inspection and superintendence for a period of 30 days, together with the agreed price of meals and lodgings furnished during that time, being in all the sum of $1,964.11, and it is so ordered.

Campbell, Chief Justice,

dissenting:

If the rule announced in the opinion in this case should be regarded as stare decisis in this court, I would hesitate to express a dissent, but it seems to me that the rule is contrary to former decisions of the court and that therefore it may more accurately be said that there is a conflict caused by the rule now announced.

In the Jones case, 11 C. Cls., 733; 96 U. S., 24, full effect is given to a provision that time is of the essence, and the principle was applied against the defendants in Roettinger’s case, 26 C. Cls., 391. Other cases could be cited.

The opinion of the majority in this case declares that “ time is of the essence of the contracts ” involved.

Both contracts are dated December 31, 1907, and provide that they are made subject to the approval of the Chief of Engineers, United States Army; and they were not approved until some time in January, 1908. According to these contracts the work was to be completed on or before June 30. The approval of the contracts was a condition precedent to the validity of the agreement. Monroe's case, 35 C. Cls., 199; 184 U. S., 524.

There is a special provision in the contracts looting to an extension of time, and in that event it is provided that the contractor would pay the cost of supervision and inspection during the extension, if it be granted. An extension was granted at the request of the claimant, made before the expiration of the time limit, and upon settlement the accounting officers charged the claimant with the cost of inspection and supervision during the period of the extension; and one element of the suit is to recover this amount from the defendants.

The court finds that there was delay in approving the contracts beyond a reasonable time, and it proceeds to ascertain what was a reasonable time within which the contracts should have been approved, and having ascertained that reasonable time, adds the same to the period fixed in the contracts for performance; and finding that the work was done within the time thus extended, holds that the cost and expense of supervision and inspection, though expressly provided for in the contracts, could not properly have been deducted by the accounting officers from the amount due the claimant, and that the claimant may recover the same.

If there had been a provision in the contracts that the cost and expense of suprevision and inspection of the work should be borne by the claimant, no reason is apparent why such a stipulation would not have been valid if agreed to by both parties; and similarly no reason is apparent why the parties may not agree that a part of the cost and expense of supervision and inspection shall be borne by the claimant; nor why, if the parties do so agree, the claimant should 'not be chargeable with the cost and expense of supervision and inspection in case it seeks and is granted an extension of time as provided for in the contracts.

When the contracts were signed they contained said provision together with the undertaking that the work should commence within 30 days after the date of notification of approval of the contracts by the Chief of Engineers, United States Army, and be completed by June 30, 1908; and when the contracts were approved and the claimant notified of the approval they contained the stipulation that the work should be completed by June 30, 1908.

The majority of the court ascertains what in its judgment was a reasonable time within which the contracts, after being signed by the contractor, should have been approved by the Chief of Engineers, and, having ascertained that reasonable time, has added the same to the period fixed by the contracts for performance, and now makes the contracts, which by their terms declare “work shall be completed by June 30, 1908,” to read in effect that it should be completed by July 30, or such other date to which the reasonable time so ascertained would carry it. The contracts say the work shall be performed by the 30th of June, but the court says that means, under the facts of this case, it should be performed by some date in July or August. There was no contract in this case until it was signed and approved. The bids or acceptance of them did not have the effect of making a contract. Clark v. United States, 95 U. S., 953; Monroe and Richardson v. United States, 35 C. Cls., 199; 184 U. S., 524. When, therefore, the claimant signed the instruments which had been prepared and tendered on December 31, it knew that by signing them and upon their approval it bound itself to complete the work therein mentioned. It is no answer to this proposition to say that it was under bond to execute the contracts. If its obligation to execute the contracts was conditioned upon the preparation of them within a reasonable time, and if there was undue delay in their preparation, claimant might have declined to sign them, protesting if need be that the delay had rendered its performance within the time fixed therein impossible; and assuming such to be the fact, it would have been a complete answer to any suit upon the bond for failing to execute the contracts. But having signed the contracts as written, and having entered upon their performance without objection when they were approved, and having failed to make any complaint or otherwise avail itself of the objection to signing or performing the contracts because of the delay, it can not be allowed by facts preceding the execution or delivery of the contracts to excuse its performance according to the terms of the contracts and within the time which, according to the majority opinion, was of the essence of the contracts. The rule may appear harsh in particular cases, but the court can not protect the claimant against its own improvidence.

Courts of law may hesitate to declare that in certain contracts time is of their essence, and courts of equity do hesitate to declare it; but where it is declared in either of these courts that time is of the essence of the contract there is unanimity in the decisions to the effect that the party complaining must be left where he has placed himself unless he can show that his performance has been prevented by some act of the other party affecting the time of performance rather than the time of execution of the contract. The contract as executed is presumed to express the terms to which the parties have agreed and by which they are willing to be bound.

As above stated, the contracts in this case make provision for an extension of the time of completion by agreement of the parties, and in case of extension that the claimant would bear the expense of supervision and inspection during the period of the extension. The time was extended by virtue of this stipulation at the request of the claimant before the expiration of the period fixed for complete performance. The effect, therefore, of the opinion is not only to extend the time by an act of the court beyond the date named in the contracts, but also is to relieve the claimant from the express terms of the contracts whereby it agreed to pay the cost of inspection and supervision if an extension were granted. The length of the extension is the period which the court determines was a reasonable time within which the contracts should have been approved. This, it seems to me, is making a new contract for the parties, and the effect of the rule announced goes even further than stated above, because, where the parties have agreed upon liquidated damages in case of nonperformance within the time limited, the ruling removes that feature entirely from the. contracts and remits the defendants to actual damages, thereby depriving them of a valuable feature of the contracts themselves. It is difficult, and in many cases impossible, for the Government to prove the amount of actual damages in cases of this sort, and it is perfectly competent to stipulate in advance for liquidated damages to be paid in case of breach instead of leaving the question to the uncertainty incident to proving actual damages. This uncertainty of proof, or the impossibility of it, furnishes a strong reason for allowing liquidated damages and construing clauses in certain contracts as providing for liquidated damages instead of a penalty. Sun Printing & Publishing Association v. Moore, 183 U. S., 642.

The consequences therefore of the rule announced in the majority opinion may be far-reaching and, as it seems to me to conflict with the current of well-established cases, I am constrained to dissent.

“ If there is an express provision making time of the essence of the contract, full effect must be given to it.” (2 Page Contr., sec.1162.) “And the statement that time is of the essence of a contract means that the provision fixing the time of performance is looked upon as a vital term of the contract, the breach of which may operate as a discharge of the entire contract.” Ibid., sec. 1159.

At common law the rule was inexorable. In Miller v. Phillips, 31 Pa. St. Repts., 218, 224, it is said: “Where parties choose by clear and explicit terms to make time of the essence of a contract, performance to be entitled to compensation must be within it, and nothing but the act of God rendering compliance physically impossible will excuse a failure.” Where the parties had made time of the essence of their contract it was said: “However harsh or exacting its terms may be as to the appellee they do not contravene public policy and, therefore, a refusal of the court to give effect to them according to the clear intention of the parties is to make a contract for them which they have not chosen to make for themselves.” Chaney v. Libby, 134 U. S., 78; Railroad Co. v. Smith, 21 Wall., 255, 263; Dermott v. Jones, 2 Wall., 1; The Harriman, 9 Wall., 161, 172.

In an extended note to Jones v. Robbins, 50 Am. Dec., 593, Mr. Freeman collates the authorities and states the rules relative to the effect of making time of the essence of a contract. He there says: “At law time is always of the essence of the contract,” and points out that it may be so in equity where the contract evinces a real intention on the part of the parties to make it so. Quoting from Hipwell v. Knight, 1 You. & C., 401, 416, he adopts the language of Alderson, B., as follows: “I do not see, therefore, why, if the parties choose even arbitrarily, provided both of them intended so to do, to stipulate for a particular thing to be done at a particular time, such stipulation is not to be carried literally into effect in a court of equity. That is the real contract; the parties had a right to make it. Why, then, should a court of equity interfere to make a new contract which the parties have not made %

In Carter v. Phillips, 10 N. E. Rept., 500, the Massachusetts court says: “ In applying this doctrine to any contract a court of equity seeks to look through the language used to the real intention and purpose of the parties, and if a time for performance is stipulated in the contract and it appears that the parties intended to make such time an essential element of their agreement the court will carry it into effect. To do otherwise would be to enforce a different contract from that which the plaintiff made.”

In Moot v. Business Men's Association, 35 N. Y. Sup., 737, it' is held that where parties make time of the essense of a contract they must perform it within the limitation. To the same effect also is Thornton v. S. & B. R. R. Co., 84 Ala., 109; 5 Am. St. Rept., 337, where the rule was applied in a court of equity. In Underwood v. Wolf, 131 Ill., 425; 19 Am. St. Repts., 40, it is' declared that one who contracts to complete certain work within a certain time is liable for not completing it within such time unless prevented by the act or fault of the other party. See also Shinn v. Roberts, 1 Spenc., N. J., 435; 43 Am. Dec., 636; McGrath v. Gegner, Md., 39 Am. St. Repts., 415; Wells v. Smith, 7 Page Chy., 22; 31 Am. Dec., 274; Miller v. Cox, 96 Cal., 339; Slater v. Emerson, 19 How., 224; McGowan v. American Tan Bark Co., 121 U. S., 575; Dermott v. Jones, 23 How., 220.

In The Harriman, 9 Wall., 161, 172, it is said: “The principle deducible from the authorities is that if what is agreed to be done is possible and lawful, it must be done. Difficulty or improbability of accomplishing the undertaking will not avail the defendant. It must be shown that the thing can not by any means be effective. Nothing short of this will excuse nonperformance. The answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation. It is the province of the courts to enforce contracts — not to make or modify them. When there is neither fraud, accident, nor mistake, the exercise of dispensing power is not a judicial function.” See also Boyden v. United States, 13 Wall., 17, 22.

In Phillifs v. Seymour, 91 U. S., 646, there was a contract providing that the work should be done by a day certain, and the court said: “There is no doubt that in this class of contracts, if a day is fixed for performance the party whose duty it is to perform or tender performance first must do it on that day, or show his readiness and willingness to do it, or he can not recover in an action at law for nonperformance by the other party.”

From these authorities it is manifest that the claimant could not have recovered upon its original contracts, and that having procured an extension provided for in the contracts and having completed the work under such extensions its action, if upon the contracts, should be based upon the contracts as modified. But the modification of the contracts provided that claimant should bear the expense of supervision and inspection, and this it has undertaken to do in the original contract, and I think the court may not relieve it from this undertaking where it is not shown that its performance was prevented by an act of the defendants done after the execution of the contracts. It frequently happens that work is suspended at the request of one party or that such party fails to perform some condition precedent required by the contract before it can be performed by the other party, and in such cases such other party is relieved from performing within the stipulated time, not, however, by something done anterior to the execution or delivery of tbe contract, but by something which is done during the period fixed for its performance. It is readily conceded that the defendants could not prevent the performance of the contracts by the claimant and yet hold the claimant to its performance, but that is not to concede that delay in the execution or delivery of a contract would justify the court in relieving the claimant from the express term of its own undertaking.

The cases in this court relied upon in the majority opinion are the Ittner, Little Falls Knitting Co., Callahan Construction Co., and Laidlaw-Dunn-Gordon Co. cases. The last three practically follow the Ittner case, and as I read the cases relied upon in- that case to sustain the proposition under consideration they fail to sustain it. The principal case relied on in that of Dannat v. Fuller, 120 N. Y., 554, which was decided by a divided court, one of the judges dissenting upon the proposition that the point was not made in appellant’s brief, was not argued orally, and does not appear even to be raised in the case. It will be noted that the plaintiff in that case brought suit ágainst the contractor upon his contract, wherein it was agreed to complete certain work within a specified time. It appears that the plaintiff by the terms of the contract had to perform certain work before the defendant could do the work stipulated to be done by the latter. The court says: “ The performance of this part of the contract on the part of the plaintiffs was required before the defendant could proceed and complete the contract on his part. It is a well-settled rule that where one party demands strict performance as to time by another party he must perform on his part all the conditions which are requisite in order to enable the other party to perform his part, and a failure on the part of the party demanding performance to do the preliminary work required in order to enable the other party to complete his within the time limited operates as a waiver of the time provision in the contract.” It is apparent that the court is here referring to an act which the plaintiff was required to do in the performance of the contract and not something which he may have done or failed to do with reference to the execution of the contract,, because the court proceeds to say: <£ It consequently appears to us that the failure of the plaintiffs to perform on their part operates as a waiver of the performance of the contract as to time and the defendant consequently had the right to perform his part of the contract within a reasonable time after the plaintiffs had completed their part.” And proceeding to discuss the conclusions of the referee in that case, which were declared to be unsound and unjust to the defendant, the court said: “The allowing of the defendant 30 days additional time in which to complete the contract, as was done in this case by the referee, does not restore the provisions of the contract which had been waived. It was, in effect, the making of a new contract for the parties by the refree. The defendant having contracted to do this work within a specified time was bound to have his servants and employees on hand ready to perform within that time. * * * They could not prevent his performance by delays on their part for even a greater period than that specified in the contract in which he was to perform, and then require him to proceed immediately, for this would require him to do the work at another time than that named in the contract, and when he might be under obligations to other parties.” In that case the defendant, had made an agreement to erect a mill within 30 days after April 20. The referee found that the foundation which the plaintiff was to erect was not ready for the mill, which delayed defendant 30 days. The mill was never completed according to contract, and on August 26 plaintiff gave notice to the defendant that it rejected the mill. The lower court finding in favor of the plaintiff, the judgment was reversed, and it seems from the opinion that the court proceeded upon the theory that the parties having acquiesced in the delay and proceeded to do the work the defendant should have been held to do it within 30 days from the time he was allowed to begin. However this may be, it is clear that this case does not sustain the theory that time taken to complete the execution of a contract can be added to the time stipulated for its performance.

In District of Columbia v. Camden Iron Works, 181 U. S., 453, it was held that where strict performance by plaintiff is prevented or waived by defendant a claim by defendant of penalties for delay or failure can not be sustained. The facts of that case show that the suspension occurred after the performance of the contract was begun by the plaintiff, and it is pointed out in the opinion that the contract did not provide that the work was to be completed “within 136 days after its date,” but within 136 days after the “date of the execution of the contmet ”/ and it was said (p. 461) to be important to show that the date of execution (delivery) was subsequent to the date in the face of the paper.

In the case at bar the contractor was required to commence work not within 30 days after the date of the signing of the contract but within 30 days after the date of notification of its approval by the Chief of Engineers. And so in the last-named case the court said: “ If a party to a contract who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispense with, or by any act of his own prevent the performance, the opposite party is excused from proving a strict compliance with the condition. Thus, if the precedent act is to be performed at a certain time or place, and a strict performance of it is prevented by the absence of the party who has a right to claim it, the law will not permit him to set up the nonperformance of the condition as a bar to responsibility which his part of the contract has imposed upon him.” And thus again it appears that the ruling turned upon the fact that the party insisting upon the performance had failed to perform on his part a condition precedent, or had dispensed with complete performance by a waiver of it. In the case of Dodd v. Churton, 1897, 1 Q. B., 562, relied on to sustain the citation from 1 Hudson on Building Contracts, it appears that D contracted to erect certain buildings for C for a price and to pay liquidated damages for delay after a fixed date; the contract gave power to order additional works, and additional works were ordered by C. Action was brought by the contractor, the owner made a claim for the liquidated damages provided for, and it was held that C had disentitled himself to claim the damages by reason of having ordered additional works which involved a delay in completion. It is manifest that this case does not affect the question under discussion, because, as stated above, a party can not after performance begun do something under the contract a natural effect of which extends the time necessary for performance by the other party and then insist that the party should have performed according to the strict letter of the contract.

Standard Gas Light Co. v. Wood, 61 Fed., 74, was also cited in the Ittner case. But in that case plaintiff contracted to do work for defendant and complete it “ by November 15, under a penalty of $100 per day, provided you have foundation ready by June 15,” and it was accordingly held that the completion of the foundation was a condition precedent, in default of which defendant could not claim the penalty as liquidated damages for plaintiff’s delay. The court said: When the condition upon which the promise depended was unperformed, through the default of the gas company, the promise to complete by a certain day was no longer obligatory; but, if the contractors entered upon the work, they were under an obligation to finish within a reasonable time. The gas company had, by its own default, waived or abandoned the right to call upon the contractors for strict performance as to time, who, if they entered forthwith upon the work, had the right to a reasonable time for performance.” And to this proposition the court cites Dannat v. Fuller, supra. But it will be borne in mind that the condition which was unperformed by the gas company was its failure to provide the foundation, thus showing that it was a matter of performance of a part of the contract on its part, or a condition precedent in which it failed, which gave the contractors the right to defend against the stipulation.

In Morse Dry Dock Co. v. Seaboard Trans. Co., 161 Fed., 99, an action was brought by a contractor upon a contract whereby he agreed to make alterations in a ship and to complete the work in 35 days from the time of the delivery of the ship at his yard or pay her owners liquidated damages at the rate of $50 a day thereafter. The ship was delivered at the yard September 7, and on September 16 the parties agreed to modify the contract by a change in certain specifications, and the respondent also ordered certain extra work. According to the contract, the work should have been completed on October 12, but was not completed until November 15, 34 days thereafter, and the respondent deducted from the libellant’s bill $1,700, being liquidated damages stipulated in the contract at $50 per day for 34 days’ delay. The court held the change in the contract to have been of an immaterial nature, agreed to by both parties, and thereby as not affecting the time limit, saying that “libellant having agreed to make the change without requiring additional time, can not now urge it as an excuse for the delay.” It appears that the respondent was under obligation to furnish a windlass to be installed in the vessel, and did not furnish it until October 11, the day before the time limit for the completion of the work, and the installation of the windlass would require eight days’ time. The respondent in reply pointed out that the boiler to be connected with the windlass was not obtained by the libellant until some 10 days after the delivery of the windlass and therefore that its failure to deliver the windlass did not affect the situation. The court, however, said in reference to this contention that it was “based upon an assumption which it had no right to make. The respondent, seeking to enforce the damage clause in the contract, must show that it lived up to the contract itself. * * * It can not be said that if the libellant had received the windlass earlier it would not have made greater efforts to hasten the work. The respondent, seeking to enforce the contract, can not recover damages for delay which may have been occasioned by its own default.” It was therefore held that whilst this delay did not operate as a waiver of the time provision in the contract, it operated as an implied agreement extending the time sufficiently to permit the installation of the windlass. The court came to the conclusion in that case that the cause of the delay was a strike in the libellant’s yards, for which the respondent could not be held responsible, and consequently the libellant was charged with 27 days’ delay. Here, again, we have a case affecting the performance of a contract after its performance was begun by the contractor, but it is not an authority upon the question as to whether or not delay in the execution of the contract can be used to defeat the terms of tbe contract after it is executed and performance begun.

In one of the cases relied upon in the majority opinion the case of McGowan v. American Tan Bark Co., 121 U. S., 575, 598, is cited to the proposition that where there has been delay in the approval of the contract the time of the delay may be added to the time fixed for performance, but that case does not appear to sustain that view.

The contract there provided that the work was to be completed within 60 days of the delivery of the boat, while it was not, in fact, delivered until after the 60 days had expired. When it was delivered the defendants proceeded without objection with the work, and it was said that the parties treated the contract as in full force except as to the time in which it was to be performed, and the work was done and the payments were made under the contract, as just stated, in time. This case did not, therefore, turn upon the question of adding a “ reasonable time ” to that fixed by the contract, but upon the fact that the time having expired, and the parties proceeding, it was assumed, in the absence of any other provision, that the undertaking would be completed within the time the original contract contemplated that it would be completed. This is made clear by the statement of the court: “ These views are in accordance with the rulings of this court in Phillips v. Seymour,” 91 U. S., 646, from which we have quoted above, to the effect that where time is of the essence of the contract it must be performed within the time stipulated. From the above analysis of them it seems that the cases cited do not sustain the majority view.

I think the authorities justify the conclusion that the claimant here can not be relieved from the cost of supervision and inspection under the extension of time agreed upon, and, further, that they justify the distinction attempted to be made that delay in the signing or execution of a contract can not be held to so affect the terms of a contract as to the time of its performance as to justify the adding of what the court may determine to be “ a reasonable time ” to that which the parties in their agreement have fixed.

The court has found in this case that time was of the essence of the contracts. It also appears that the parties could and did agree upon an extension of time, and if there had been no such provision in the original contracts as that relative to an extension of time, and the parties had agreed upon an extension, that fact would have been evidence that they deemed time material. Wiswall v. McGowan, 2 Barb., 270.

A departure from the rule announced in the foregoing cases may lead to many difficulties in rendering uncertain contracts which parties have deliberately made. The ruling adds to the terms of the contracts one which the parties have not made; it eliminates by construction a provision fixing the time, while at the same time it declares that time is of the essence of the contracts; it assumes that the court will fix a reasonable time for the extension, which, of course, may vary with the circumstances of different cases. It therefore practically destroys the rule that where time is of the essence of a contract the party must perform in that time. And it goes further in practically eliminating the clause in the contracts providing for an extension and prescribing the terms upon which it will be granted, and thus treating, the action of the parties in providing for an extension upon certain terms as unusual and unnecessary. And its effect may go still further, in that it apparently “ turns loose ” the clause providing for liquidated damages in case of nonperformance within a stipulated time, though the parties have expressly stipulated for it, and it remits defendants to a proof of actual damages which often it may be impracticable to prove. Where a contract provides that the work shall be done within a time fixed, and if not done that the contractor shall pay liquidated damages, the term is clear; but to provide for liquidated damages unless the work be completed within a reasonable time is to leave the matter open to be settled by the exigencies and circumstances of each particular case. The certainty of the law and the freedom of parties to agree and have their agreements construed by the courts according to the intention of the parties is of graver importance than the relief of an individual claimant from the effects of an improvident contract on his part can possibly be.

In Sun Printing and Publishing Ass’n v. Moore, 183 U. S., 642, the court, in an opinion by Mr. Justice White, goes fully into the question of the right of parties to stipulate as to liquidated damages, and on page 669 he uses this apposite language:

“ From a critical examination of all these cases and others that might be. referred to, it will be found that the business of the court, in construing this clause of the agreement, as in respect to every other part thereof, is to inquire after the meaning and intent of the parties; and when that is clearly ascertained from the terms and language used, it must be carried into effect. A court of law possesses no dispensing powers; it can not inquire whether the parties have acted wisely or rashly in respect to any stipulation that they may have thought proper to introduce into their agreements. If they are competent to contract within the prudential rules the law has fixed as to parties, and there has been no fraud, circumvention, or illegality in the case, the court is bound to enforce the agreement. Men may enter into improvident contracts where the advantage is Imowingly and strikingly against them; they may also expend their property upon idle or worthless objects, or give it away if they please without an equivalent, in spite of the powers or interference of the court; and it is difficult to see why they may not fix for themselves by agreement in advance a measure of compensation, however extravagant it may be, for a violation of their covenant (they surely may after it has accrued) without the intervention of a court or jury.”

For the above reasons I think the claimant should not recover the expense and cost of inspection and supervision.

Howry, Judge,

dissenting:

Never having participated in any decision declaring the rule that an extension of time for the completion of public work must be coextensive with the period of delay caused by the Government in the signing of a contract for such public work, and believing that the judicial function can not be invoked to legislate anything by way of an amendment to the provisions of section 3744 of the Eevised Statutes, I concur in the views set forth, in the foregoing dissent. The conceded obiter dicta in the Little Falls Knitting Co. case, 44 C. Cls. R., 1, does not establish the court’s right to interfere; and as to the other three cases upon which the majority opinion rests, the files of the court establish that there was no part taken by me in the views expressed in those cases on the rule announced.

The gravity of the conclusions reached by the majority in the announcement of a rule for court interference (for delay in signing) with the terms of Government contracts with private parties constrains me briefly to make these comments.

In superseding some of the provisions of the contract as made by this contracting company and the Government and practically injecting into the agreement a new term supplementary to that which both parties were satisfied to conclude, the court exercises dispensing power — the power to modify, abridge, and change the terms of an agreement which the parties themselves were satisfied with when the work was begun and which neither party to the agreement had any idea of altering or discharging when the work provided for was actually undertaken. This courts can not do in the absence of fraud, accident, or mistake.

There is no suggestion of anything of the kind. And without the existence of one or the other of these conditions of sufficient force for a court of equity to take hold and reform the contract which the parties have already made, there is no room for the application of any judicial rule to take from or add to the terms of the agreement. The books are full of cases to the effect that courts can not do for parties what they themselves have not attempted to do for their respective interests.

The rule declared is an impossible rule when bids have been accepted in response to departmental proposals, because of the consequences of putting into the contract something that the parties did not express, and taking out of the contract something that the parties did express. The court is without authority to prevent them from making lawful contracts in such way and on such time as to completion as they have seen fit to do.

The rule announced ignores Government necessity in those provisions common to nearly all contracts for the completion of public work in a given time and providing for payment of liquidated damages to insure progress, not only for emergency work, but for tbe work of construction generally. Hindrances to Government work sometimes arise from insufficient appropriations, and sometimes from delay in the passage of expected appropriation bills which cause temporary executive inaction. The rule announced also disregards the well-known fact that the services of inspectors, supervising architects, and directing engineer officers can not be obtained promptly, and that necessity frequently arises for summoning suitable officials from distant parts of the country (engaged in work of a similar character) to begin duties on new undertakings. These considerations are as well known to bidders as to the executive departments when these contracts are , made and are taken into the calculations of bidders and acted upon by them when bids are made responsive to Government proposals.

The accuracy of the general proposition stated in the majority opinion, that when time is of the essence of the contract and the Government by its delay prevents performance within the contract time such delay will operate to waive the time limit and give successful bidders a reasonable time within which to perform, is not denied. But this general rule is without application for any delay in the consummation of the negotiations leading up to and ending in the written agreement. There may be instances of neglect on the part of the Government to become an actual signatory after a contractor has himself signed the proposed agreement. In such case every bidder can readily protect himself against the contingency of having to pay damages as liquidated for failure to perform by notifying the department that he can not do the work within the proposed time. If the delay in signing on the part of the defendants be such as to justify the bidders to refuse to proceed, it is not only their privilege but likewise their right to refuse to proceed. • In the present case the rule is inapplicable because the contractor made no complaint, entered no protest, nor raised objection of any kind when with the Government’s signature to the contract it proceeded with the work. The prospective profit on this contract was probably sufficient to induce the contractor to proceed with the undertaking when the notice was given to him to proceed. Whatever the reason for going on without objection, protest, <or complaint, there is nothing to indicate that this contractor was injured by any delay on the part of the defendants in closing the negotiations and notifying the contractor to proceed in accordance with the terms of the agreement as executed.

Finding XIII states the ultimate fact to be, so far as it is a question of fact, that defendants took 30 days more time than was reasonably necessary in getting the contracts to the claimant with notice of approval, and that in consequence the time for the completion was thereby extended for a like period. The majority makes of 'any delay for defendants not signing promptly unreasonable delay, thereby automatically moving up the time for completion regardless of the terms of the agreement. There is not enough in the other findings to admit of the stated ultimate fact that defendants took 30 days more time than was reasonably necessary to get the contract to the contractor with the departmental notice of approval. The conclusion contained in the thirteenth finding is less a matter of fact than a conclusion of law, and should not influence the decision in a matter that not only decides this case but goes far beyond it in the statement of a proposition likely to cause great embarrassment to the executive departments of the Government in making contracts for public work.  