
    HAWKINS’S CASE.
    Philemon B. Hawkins v. The United States.
    
      On the Proofs.
    
    
      A contract made by the Supervising Architect of the Treaswry provides for the delivery of 1,000 cubic yards of “ rubble-stone ’’for the court-house at Raleigh, at $5 a yard “ net measurement in the building.” The superintendent there without authority builds the walls of “ ranged rubble ” or “ broken ashlar,” a better but more expensive wall. Some of the rubble-stone delivered the superintendent dresses down for a ranged-rubble wall. Tie then rejects rubble-stone and requires the claimant to deliver ranged rubble. The claimant objects but performs without notifying the Supervising Architect that he shall demand payment for ranged rubble. The Architect remains in ignorance of the change until it is too late to return to the original design. The claimant brings his action for ranged rubble-stone ivorth $12.50 a yard and for his losses on the rubble-stone rejected and dressed down.
    
    I. Where a superintendent of a building rejects the stone designated in a contract made by his official superiors, and compels the contractor to furnish a stone materially different and more expensive than that called for by the agreement, the contractor must in due time notify the principal with whom his contract is that he shall demand a higher price for the more expensive stone. If he keeps silence until "the walls are partially erected, so that the style of masonry cannot be changed, he will be bound by the contract-price.
    II. Where the stone designated in a contract is rejected by the superintendent of the work, and the contractor is compelled to furnish a different and more expensive kind, be may recover his damages on that rejected, viz, the contract-price, less what he sold the rejected stone for.
    III. Where a contract calls for “ rubble-stone ” at $5 a yard “ net measurement in the building,” and the superintendent of the building, without authority of his principal, dresses down the rubble-stone delivered and builds a“ ranged-rubble” or “broken-ashlar” wall with it, the contractor is not bound by the “net measurement in the building,” and the principal is liable for such quantity as would have been contained in a “rubble wall” of undressed stone.
    
      
      The Reporters7 statement of the cáse:
    The court found the following facts:
    1. In May, 1874, the claimant began to deliver rubble-stone, and had delivered fifty cubic yards of such as came within the description and standard of the smaller-sized stone required by the contract, when Mr. D. B. Thomas, the assistant superintendent of the work, in immediate charge thereof for the defendants, rejected these stone, refused to receive any of the same description, and informed the claimant of the kind which must be furnished to make such a wall as he wanted, and which was in fact a ranged-rubble or broken-ashlar stone of a more expensive kind than that called for by the contract, and which would make a wall superior in appearance to that contemplated by the specifications. At this time the claimant had quarried and ready for transportation and delivery 230 cubic yards more of rubble-stone, the quarrying of which was worth .$805.
    2. The claimaut, while maintaining that he thought the stone he had delivered was up to the contract, expressed a willingness and a desire to furnish such material as would give perfect satisfaction to the Government and its agents. Thereupon he got out, and at different times, almost weekly, between June 1 and November, 1874, delivered in all 958f- cubic yards of ranged-rubble or broken-ashlar stone, different from that called for by the contract, and worth $12.50 per cubic yard as delivered. These stone were cut, trimmed, and squared by defendants’ workmen, so as to fit them for such a wall as said Thomas desired to make, and thereby lost one-fourth part in measurement, and .in the wall measured only 767 cubic yards.
    3.From time to time said claimant,in the presence of said assistant superintendent and of the superintendent, asserted that he was required to furnish a superior stone to that required by the contract. In August, 1874, one. Mr. Oakshot was sent by the Supervising Architect of the Treasury Department to examine the work and put the superintendents right on it. . The claimant then, in presence of said Oakshot and of the superintendent and assistant superintendent, protested that he was required to furnish stone sujierior to that required by the contract, and announced his intention to make claim for extra allowance. Mr. Oakshot compared the work done with, the plans and speci-fictaions, pronounced it superior to that contemplated, being, he said, in fact ranged-rubble or broken-ashlar walls, but suggested that it would perhaps be necessary then to complete the work as begun. Subsequently Mr. Oakshot officially visited the work several times, once in company with the Supervising Architect, and always referred to the foundation-walls as being of a superior class of work, to which fact he called the attention of the Supervising Architect, and to which that officer assented.
    4. The market-value of the 50 yards of rubble-stone rejected and of the 230 yards quarried and not received by the defendants, as set forth in the second finding, was 1456.80.
    5. Four payments were made to the claimants, amounting in all to $3,825, upon vouchers made out upon estimates, generally in excess of the work actually done at the time, copies of which said vouchers, with the certificate of the superintendent thereto, and the receipts of the claimant, are as follows. The stone was designated therein by the superintendent as “rubble-stone” because he “ had no room for any other designation under the specifications. ”
    “ The United, States to Philemon B. Hawkins, Dr.
    
    “ On account of the appropriation for construction of the U. S. c. h. and post-office, Raleigh, N. C.:
    
      
    
    “I certify that the articles above enumerated have been received and the services performed; that they were necessary for, and have been, or will be, applied to the construction of the U. S. c. h. and p. office at Raleigh, if. G., and that the prices paid were just and reasonable.
    “WM. A. HE ARNE,
    “ Superintendent.
    
    
      “Received, Raleigh, this 4 day of June, 1874, from Jno. 0. Blake, disb’g agfc., the sum of thirteen hundred & fifty dollars, in full payment of the above account.
    “ $1,350.
    “ (Signed in duplicate.)
    “PHILEMON B. HAWKINS.
    “ Paid by check on Ral. Nat. Bank, No. 41, dated June 4,1874.
    “ The United States to Philemon B. Hawkins, Dr.
    
    “On account of the appropriation for construction of the U. S. court-house & p. o., Raleigh, N. 0.
    
      
    
    “ I certify that the articles above enumerated have been received and the services performed; that they were necessary for, and have been, or will be, applied to the construction of the U. S. p. office & c’t ho., Raleigh, N. O., and that the prices paid were just and reasonable.
    “WM. A. HEARNE,
    “ Superintendent.
    
    “Received, Raleigh, N. O., this 6 day of August, 1874, from Jno. O. Blake, disb’g agt., the sum of nine hundred dollars, in full payment of the above account.
    “$900.00
    “ (Signed in duplicate.)
    “PHILEMON B. HAWKINS.
    
      “ The United States to P. B. HaivMns, Hr.
    
    “ On account of the appropriation for construction of the U. S. c. h. & p. o. at Raleigh, N. 0.
    
      
    
    “I certify that the articles above enumerated have been received and the services performed; that they were necessary for, and have been', or will be, applied to the construction of the U. S. c. h. & p. office at Raleigh, N. C., and that the prices paid were just and reasonable.
    “WM. A. HEARNE,
    “ Superintendent.
    
    “Received, Raleigh, N. C., this 4 day of August, 1874, from Jno. O. Blake, disb’g agent, the sum of six hundred and seventy-five dollars, in full payment of the above account.
    ‘ “$675.00
    “(Signed in duplicate.)
    “PHILA. B. HAWKINS.
    “Paid by check pn Raleigh Nat. Bk., No. 76, dated Aug. 4, 1874.
    “ The United States to P. B. HawMns, Dr.
    “ On account of the appropriation for construction of the U. S. c. h. and post-office at Raleigh, N. O.
    
      
    
    
      <lI certify that the articles above enumerated have been received and the services performed ; that they were necessary for, and have been, or will be, applied to c onstruction of the U. S. court-house and post-office at Raleigh N. C., and that the prices paid were just and reasonable.
    “WM. A. HEARNE,
    “ Superintendent.
    
    “Received, Raleigh, N. 0., this 2d day of Sept., 1874, from John 0. Blake, disb’g agent, the sum of nine hundred dollars, in full payment of the above account.
    “$900. .
    “ (Signed in duplicate.)
    “PHILA.B. HAWKINS.”
    7. The payments indicated by the foregoing vouchers were made by the officers of the United States as the delivery of stone progressed, and were made simply “on account.”
    8. Of the fifty cubic yards of rubble-stone delivered by the claimant, and rejected by the defendants, no appreciable part was used in the wall, and the whole was hauled away and sold by the claimant, and the value thereof is included in the sum specified in the fifth finding.
    9. The advertisement and proposal referred to in' said contract, and forming part thereof, were as follows:
    
      “Advertise mint for proposals.
    
    “OeEICE OE SUPERINTENDENT
    “United States (Jourt-House and Post-Oeeice,
    
      liAt Raleigh, N. G., July 21, 1873.
    “ One thousand cubic yards, more or less, rubble-stone, which may be of granite, limestone, or other suitable stone, which is flat on the bed, sound, durable, and which breaks with a clean, square fracture; one-quarter to be bond-stones, of a length equal to the thickness of the walls, and to contain not less than 10 cubic feet. No stone containing less than one and one-half (1¿) cube feet, or less than twelve (12) inches thick, will be received.
    “S. P. 0ARROW,
    “ Superintendent.
    
    
      “October 19, 1873.
    “ We propose to furnish the ‘ rubble-stone’ necessary in building the court-house and post-office above mentioned, for five dollars per cubic yard, in accordance with the specifications issued by the superintendent.
    “Very respectfully,
    “PHILIP B. HAWKINS.”
    
      Mr. Enoch Totten for the claimant:
    By the departure from the terms of the contract the materials of the plaintiff of much greater value than was contemplated have gone into the defendants’ building, and have rendered it more “valuable, permanent, and useful” * * * and, upon the “ plainest principles of natural justice and commou equity, the United States are bound to pay the fair aud reasonable value” of such materials. (Grant v. The United States, 5 0. 01s. B>., 71, and cases there cited; Salomon v. The United States, 19 Wall., 17.)
    The word “rubble,” when applied to stone, means a small, rough stone of irregular shape. (Webster; Worcester.)
    
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The rule underlying all the cases where general assumpsit has been brought on contracts that had been departed from with the knowledge of defendant is, that unless the defendant knew that the departure increased the expense, and that the plaintiff expected the increased expense to be paid for, the plaintiff could not recover.
    The estoppel, which between private parties results from knowledge on the part of the defendant of the increased expense and from subsequent acceptance, cannot arise here, because there was no such knowledge on the part of the Secretary, and the plaintiff had agreed that the Secretary alone should have the power of modification. The knowledge of any agent who was without power in the premises cannot be construed into knowledge by the Secretary. The contract showed plainly the source and manner of any modification, and if plaintiff allowed it to be altered by persons he knew were unauthorized,- his loss ‘was damnum absqu,e injuria.
    
   Riohakdson, J.,

delivered the opinion of the court:

On the 15th day of May, 1874, the claimant entered into a written contract with the defendants to furnish and deliver 1,000 cubic yards, more or less, of rabble-stone for building a courthouse and post-office at Raleigh, F. 0., at $5 per yard net measurement in the building. In pursuance of his agreements he delivered 50 cubic yards of such stone at the site for the building, and he had quarried, ready for delivery, 250 cubic yards more, when the assistant superintendent, who had the immediate charge of the work for the defendants, rejected the stone delivered and refused to receive any more of the same kind, not because, it was not up to the staudard called for by the contract, but because he desired to make a wall superior to that specified, and he described to the claimant the kind of stone which he should require, and which was in fact an altogether different class of stone, a ranged rubble or broken ashlar, worth $12.50 per cubic yard.

Rubble-stones are rough, irregular stones, such as are found in quarries that furnish small and inferior stone only, or are the remains in ledges from which dimension or other large stones have been taken; and when used for constructing walls they are not dressed, hewn, or cut, and so lose none of their measurement in laying. Ranged rubble or broken ashlar are ordinarily a larger stone, which, wlieu cut, trimmed, and laid, make a wall of coursed masonry as if constructed of squared stone of different sizes, somewhat like that produced by dimension-stone ; and in cutting they are reduced in size, and measure much less in the wall than when first quarried. Such a wall is a more expensive one than that made of rubble-stone, and it was such a wall that the assistant superintendent desired to construct, notwithstanding the contract and specifications.

This was a clear departure from the terms of the contract, and the claimant might then have declined to follow the directions of the assistant superintendent; and, if they were persisted in, he might have maintained an action against the defendants for breach of contract in preventing him from going on with his work, or he might have notified the defendants that if he furnished such stone as the assistant superintendent required — a stone materially different and more expensive than that called for by his agreement — he should not deliver it under the contract at contract-price, but should claim such compensation as the material was worth. Had he thus promptly notified the defendants, they would have had an opportunity to determine whether they would overrule the directions of the assistant superintendent or would go on according to his wishes and construct a more expensive wall than had been contemplated. But this opportunity was lost to them by the claimant’s ready submission to the wishes of the assistant superintendent and by his long silence as to auy claim for greater compensation. It was his duty, when he was requested to deliver stone of a higher grade and more expensive kind than that contracted for, before he had delivered any such stone and before the defendants had acted upon the change, to have given notice and asserted his intention to demand a higher price therefor. He could not lie by and allow the defendants to go on upon the supposition on their part that they were incurring no extra expense until it was too late for them to recede, and then successfully spring upon them a claim for other and different and greater compensation than had been agreed upon. (Merrill et al. v. The Ithaca & Owego R. R. Co., 16 Wend., 587.)

This change in the character of the wall to be constructed, and consequently of the stone required, appears to have been instituted by the assistant superintendent of his own motion, without the knowledge of the Supervising Architect of the Treasury Department until the work was nearly done, and without the knowledge or approval of the Secretary of the Treasury, whose written consent was required by an express provision of the contract to any departure from its condition. This change the claimant at once submitted to, and expressed a willingness and a desire to furnish such material as would give perfect satisfaction to the Government and its agents, only maintaining that he thought the stone he delivered Aas up to the contract, and afterward, from time to time, asserting no more than that he was required to furnish a stone superior to that called for by the contract. These declarations did not necessarily imply that he intended or expected to charge a higher price, but merely that, to meet the wishes of the defendants’ officers, he was doing better than he agreed to do.

It was not until August, more than two months after he had begun to deliver the higher class of stone, which he had been furnishing almost every week in the mean time, and when his work was nearly half clone and the building so far advanced with a ranged-rubble or broken-ashlar wall that it could not be altered, and must be finished as begun, that he first announced to the superintendents, and a special ageut of the Treasury Department sent to inspect the work and set them right on it, his intention to make claim for an extra allowance, and it does not appear that this intention was ever communicated to the Secretary of the Treasury, for whom the contract was entered into, nor to the Supervising Architect, although at a later date the latter officer visited the work and was shown that the wall was superior to that contemplated by the specification; but nothing was said that would lead him to suppose the contractor was expecting larger compensation for the stone than the price agreed upon.

■ Besides, the claimant signed four vouchers for payments made on account, while delivering these stone, three of them apparently before the announcement of his intention to claim an extra allowance, and one afterward, in all of which the stone delivered is called “ rubble-stonethe price charged is the contract-price of $5 per cubic yard, and in the last three vouchers the contract is expressly referred to. These vouchers, thus made out and signed by the claimant, must have been forwarded to the Treasury Department, and there fallen under the inspection of the Architect’s Office, and, constructively, under the eye of the Secretary of the Treasury.

Under these circumstances the Secretary and the Supervising Architect had no reason whatever to suppose that the claimant was delivering stone for which he claimed any other or greater price than that specified in the contract, nor. had the superintendent and special agent any reason for such a supposition until it was too late to make other arrangements.

By his iown acts, therefore, the claimant led the defendants to believe, while the work was going on, that he was delivering the stone at the contract-price, and he is estopped from setting up, after the work is completed, any greater rate of compensation.

On the other hand, the claimant is entitled to recover the contract-price for all the stone actually delivered by him in good faith and in the fulfillment of his agreements. Whatever stone he delivered which the defendants’ Officers unwarrantably rejected, wasted, or misused, and applied to purposes not contemplated by the contract, they must pay for, as well as for those that went into the walls of the building. And so the claimant is entitled to payment for the 50 cubic yards of rubble-stone first delivered and rejected, and which the facts find to have been such as came within the description of those required, deducting therefrom the market-value thereof, because they were taken away by the claimant, and to that extent he has been compensated; and for the 230^ yards quarried, and refused by the defendants, he is entitled to the amount found as the worth of the quarrying, less the market-value.

He furnished also 958| cubic yards of ranged-rubble or broken-ashlar stone, and had those been laid as oontemplated by the specifications in such manner as to have constructed a “rubble wall” he would have been entitled to recover according to their net measurement in the wall, such being the express provision of the contract; but in that case the stone would not have been cut away, and they would have measured substantially the same after as before they were laid. The defendants’ officers, in order to construct a wall of different kind and superior appearance to that originally designed and specified, with their workmen so cut, trimmed, and squared the stone delivered, that they lost 25 per cent, in measurement when laid in the wall. This was manifestly not warranted by the contract, and was a violation by the defendants of their plain obligation. It was done after the claimant had fulfilled his agreements, was not assented to by him, and was beyond his control to prevent.

The “net measurement” mentioned in the contract, by which the claimant was to have been paid, had reference to the “rubble wall” contemplated therein, in the construction of which the claimant’s stone would have lost little or nothing from the quantity delivered. When the defendants changed the character of the wall to be constructed, and cut, trimmed, and squared the stone contrary to the intent of the contract, and then wasted or deprived the claimant of the net measurement in the wall of 25 per cent, thereof, they became liable to pay for the wasted or unused material as well as for that which they did use, and the claimant is entitled to recover for the whole 958| cubic yards delivered by him, at the contract-price.

The account between the parties, as allowed to claimant, is thus stated:

And judgment will be entered for the claimant for the balance, $1,566. 95, thus found due him.

Peck, J., was absent when this case was heard, and took no part in the decision.  