
    THE WILLIAM CLAMP AND SONS SHIP AND ENGINE BUILDING COMPANY v. THE UNITED STATES.
    [No. 20858.
    Decided January 29, 1906.]
    
      On the Proofs.
    
    The contract is for building the Indiana within three years, with provisions that the Secretary of the Navy shall decide whether delays are attributable to the defendants’ officers, and if so, that they “ shall entitle the party of the first part to a corresponding extension of the period herein prescribed for the completion of the vessel.” The Secretary so decides, and the time is accordingly extended. But the contractor suffers damages by the delays. The contract also provides that before the final payment the contractor shall give “ a final release ” “ of all claims of any hind or description under or by virtue' of this contract; ” and the release so given is “ on account of the construction of said vessel under the contract aforesaid.” During the period of construction the parties agree to a modification of the contract, the purpose being to enable the contractor to receive certain money which, by the terms of the contract, was to be withheld from him until the completion of the vessel. By the terms of the modification a release is to be given “ from all and every claim for loss or damage hitherto sustained by reason of any failure upon the part of the party of the second part to'comply* with its contract on 
      
      account of any delay hitherto occasioned by the action of said party of the second part.” There are numerous items of damage caused by the delay, which the court rules upon specifically.
    I.A provision in the contract that an extension of the period for the completion of a vessel shall be given, equivalent to any delay caused by the defendants, does not preclude the contractor from recovering damages caused by the defendants’ delay.
    II.Neither can the granting and acceptance of such additional time operate as an estoppel. The contractor’s consent to waive damages caused by the other party can not be inferred from the mere granting of additional time where there was no fault on his part.
    III.The doctrine of expressio unius est cxclusio alterius is not of universal application and is always subject to the intention of the parties, as evidenced by the contract-
    IY. A provision that before final payment a release shall be given by the contractor “ of all claims of any hind or description under or by virtue of this contract,” followed by such release, is not equivalent to a release for a new and valuable consideration and will not preclude the contractor from seeking redress for a breach by the defendants.
    Y. But where the contractor before the completion of the work entered into a modification of the contract whereby he was to receive certain reserved money not yet due, “and in consideration of such advance payment the party of the first part hereby releases the party of the second part from all and any claim for loss or damage hitherto sustained by reason of 'any failure on the part of the party of the second part to comply %oith its contract or on account of any delay hitherto occasioned by the action of said party of the second part,” the release must be deemed to extend to all manner of claims relating to the work up to that time, and will preclude the contractor from seeking redress for the defendants’ breach of the contract.
    VI. One who accepts the terms of a contract in part must accept the contract as a whole.
    VII. Where the contractor without reservation entered into a new agreement to waive all damages in consideration of certain moneys to be advanced, his acceptance of the benefits of the agreement will estop him from questioning the authority of the Secretary of the Navy to enter into such an agreement; and he can not for that reason attack a release given by him on the faith of which the other party parted with money not then due.
    
      VIII. The court passes upon various items making up the total of tlie claimant’s damages, such as wharfage, the use of the yard, the possession of the vessel during the increased period of construction, etc., etc.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant herein is a corporation incorporated under the laws of the State of Pennsylvania, and carries on the business of ship and engine building, with its yards and plant and works located in the city of Philadelphia, in said State.
    II. On November 19, 1890, the claimant entered into a contract with the United States, through their Secretary of the Navy, whereby, in consideration of the sum of $3;063,000, to be paid as provided in said contract, it agreed to construct and complete within three years from said date as ■in said contract provided, a seagoing, coast-line, battle ship, designated as No. 1, and subsequently named the Indiaifa, all in accordance with the specifications attached to and made a part of said contract, which contract, marked “Exhibit W. C. & S. No. 1,” is annexed to and made a part of the petition herein.
    III. Immediately after the making of said contract the claimant arranged and systematized a working programme for the construction of said vessel by organizing its working-force so as to cooperate with each other in harmony on coordinate work, and to secure economy in the construction of the vessel within the contract time and to escape the penalties imposed thereby for delays. The claimant would have completed the vessel within the contract period if it had not been for the failure of the United States to furnish materials within the time and in the order to properly carry on the work which by the terms of the contract they had agreed to furnish.
    By reason of the failure of the defendants to furnish the materials, which by the third clause of the contract they had agreed to furnish, within the time and in the order as aforesaid, the completion of the vessel was delayed for two years beyond the contract period.
    
      The armor to be furnished in accordance with said clause of the contract was obtained by the defendants from other contractors, who, without any fault on the part of the claimant, failed to complete the manufacture thereof in time for the defendants to deliver the same, to the claimant as they had agreed to do.
    The various kinds of armor, including the necessary bolts, nuts, etc., were delivered as fbllows:
    Diagonal armor, beginning June 6, 1892, and ending July 3,1892.
    Casemate armor, beginning March 16, 1898, and ending May 1, 1893.
    Conning tower tube, May 1, 1893.
    Barbette armor, beginning July 10, 1893, and ending September 23, 1893.
    Sponson armor, beginning December 2, 1893, and ending March 24, 1894.
    Ammunition tubes, beginning April 24, 1894, and ending May 22, 1894.
    Eight-inch turret, beginning September'22, 1894, and ending December 7,1894.
    Conning tower shield and covers, complete, October 5,1894.
    . Side armor, beginning August 13,1894, and ending August 6,1895.
    Thirteen-inch turrets, beginning May 16, 1895, and ending September 5, 1895.
    IV. On December 4, 1895, and after the completion and delivery of the vessel at the time hereinafter stated, the Secretary of the Navy decided that the cause of delay for the period of two years in the completion of the vessel was due to the failure of the United States to furnish the claimant the materials contracted to be furnished by them within the time and in the order to properly carry on the’work; and for that reason the time within which to complete the vessel, and thereby release the claimant from the penalties provided for in the 19th paragraph of the contract, was on said date extended by the Secretary of the Navy a corresponding length of time, to wit, to November 19, 1895, on which latter date the vessel so contracted for was completed and delivered.
    V. On May 10,1894, before the Secretary of the Navy had finally- decided the cause of delay, as aforesaid, and before there had been a preliminary or conditional acceptance of the vessel, owing to the failure of the defendants to furnish, in the order required, the material which they had agreed to furnish, the contract was modified, which modification is made a part of the petition herein and marked “ Exhibit W. C. & S. No. 2,” by the terms of which modification the defendants agreed to pay the1 claimant a portion of the reservations of installments, which, under the original contract, were not payable, as therein set forth, until after a preliminary or conditional acceptance of the vessel; and $234,830, being the amount of the reservations of the first 23 out of the 21 installments earned by the claimant, were paid on or about June 20, 1894. The claimant, as provided in the modification aforesaid, furnished security against any loss to the defendants on account of such payment, but no demand for any refund was ever made upon it. In consideration of the payment aforesaid, the claimant, as recited in said modification, released the defendants “ from all and every claim for loss or damage hitherto sustained by reason of any failure on the part of the ” defendants to comply with its contract, “ or on account of any delay hitherto occasioned ” by them.
    To the modification of the contract and the release as aforesaid, the claimant at the timé does not appear to have made objection or protest.
    VI. On May 18, 1896, after the completion and delivery of the vessel, in accordance with the sixth paragraph of the nineteenth clause of the contract, the balance of the money due thereunder, but withheld in accordance therewith until the final acceptance of the vessel, was paid to the claimant and the same Avas accepted and a release and receipt was executed therefor by it in the term following:
    “ Whereas by the eleventh clause of the contract dated November 19, 1890, by and between the William Cramp and Sons Ship and Engine Building Company, a corporation created finder the laws of the State of Pennsylvania, and doing business at Philadelphia, in said State, represented by the president of said company, party of the first part, and the United States, represented by the Secretary of the Navy, party of the second part, for the construction of a seagoing coast-line battle ship of about ten thousand tons displacement, which, for the purpose of said contract is designated and known as ‘ Coast-line battle ship No. 1,’ it is agreed that a special reserve of sixty thousand dollars ($60,000) shall be held until the vessel shall have been finally tried; provided that such final trial shall take place within five months from and after the date of the preliminary or the conditional acceptance of the vessel; and
    “ Whereas by the sixth paragraph of the nineteenth clause of said contract it is further provided .that when all the conditions, covenants, and provisions of said contract shall have been performed and fulfilled by and on the part of the party of the first part, said party of the first part shall be entitled, within ten days after the filing and acceptance of its claim, to receive the said special reserve or so much thereof as it may be entitled to on the execution of a final release to the United States in such form as shall be approved by the Secretary of the Navy of'all claims of any kind or description under or by virtue of said contract; and
    “ Whereas the final trial of said vessel was completed on the eleventh day of April, 1896; and
    “ Whereas all the conditions, covenants, and provisions of said contract have been performed and fulfilled by and on the part of the party of the first part;
    “ Now, therefore, in consideration of the premises, the sum of forty-one thousand one hundred and thirty-two dollars and eighty-six cents ($41,132.86), the balance of the aforesaid special reserve ($60,000), to which the party of the first part is entitled, being to me in hand paid by the United States, represented by the Secretary of the Navy, the receipt whereof is hereby acknowledged, The William Cramp and Sons Ship and Engine Building Company, represented by me, Charles H. Cramp, president of said corporation, does hereby for itself and its successors and assigns, and its legal representative, remise, release, and forever discharge the United States of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or in equity, for or by reason of, or on account of, the construction of said vessel under the contract aforesaid.
    “ In witness whereof I have hereunto set my hand and affixed the seal of The William Cramp & Sons Ship and Engine Building Company this eighteenth day of May, A. D. 1896.
    “ [seal.] Chas. H. Cramp, President.
    
    “Attest:
    “ John DohgheRtt, Secretary.” to the giving of which release and receipt the claimant does not appear at the time to have objected or protested.
    VII. Before and during the period of delay, as aforesaid, the claimant’s business was so large that in order to obtain more room for materials for the vessels under construction at the claimant’s yard, of which the Indiana was one, it purchased additional ground at a cost of $121,756.03, and erected thereon temporary shops, in which to handle and rehandle material, at 'an additional cost of $3,000. It is not shown that the purchase of said real estate was necessary to the construction of the Indiana, or that any portion of the outlay therefor was attributable to the vessel during the period of delay.
    VIII. After the expiration of the contract period and during the two years that the vessel was delayed in completion, as hereinbefore found, the reasonable value for the use of the claimant’s yard, machinery, and tools, and for superintendence in the construction of the vessel, including the general upkeep of the yard chargeable to the Indiana, was $3,000 per month, or $72,000 for the two years’ delay.
    The proportion of said expenses chargeable to the Indiana from May 10,1894, the date of the release set forth in finding vi, being for one year six months and nine days, was $54,887.67.
    IX. For the proper care and protection of the vessel during the two years’ delay, including expense of cleaning the bottom, furnishing material and painting, temporary awnings and tents over caps left for the introduction of turrets, additional scaling to remove rust before painting, electric lighting, keeping up steam to prevent freezing of valves, wetting down decks, going over machinery, and keeping vessel free from snow, dust, ice, and debris, the reasonable cost was $48,000.
    The proportion of said expenses for the period from May 10, 1894, being for one year six months and nine days, was $36,591.78.
    X. The customary rate of wharfage of merchant vessels at the port of Philadelphia during the time the Indiana was being constructed was 1 cent per net registered ton, and upon tliat basis, if allowed, the wharfage on the Indiana, with a net tonnage which we find was 3',203.58, during said two years’ delay was $32 a day, or $23,360.
    The proportion of expense during the period from May 10, 1894, being for one year six months and nine days, was $17,808, inclusive of the dredging of the basin or bed in which to accommodate the vessel.
    The claimant also incurred an expense of $5,783 for tug service in removal of the vessel from time to time. Such expense is not shown to have been necessary to the construction of the vessel during the period of delay. It appears to have been for the benefit and convenience of the claimant.
    XI. During the two years’ delay the claimant was required to and did keep the vessel insured for the benefit and protection of the United States, and the reasonable cost thereof aggregated during said period the sum of $34,463.55.
    The proportionate expense for the period from May 10, 1894, being one year six months and nine days, was $26,272.55.
    XII. March 23, 1894, the claimant notified the Secreta^ of the Navy that the vessel, other than the fitting of the armor, had reached a stage of completion ready for an official trial and proposed to offer said vessel therefor between May 1 and 10 following.
    Seven other vessels built by the claimant for the United States had been permitted to go on trial trips before their completion. The Indiana was the first battle ship constructed, and before the armor was completed thereon the claimant proposed an official trial.
    March 9, 1894, the Secretary of the Navy addressed to the claimant the following letter:
    “ Wasi-iiNgtoN, March 9,189J¡..
    
    “ Gentlemen : In view of the fact that the trial of the Indiana will take place at an early date, and as you are probably now making preparation therefor, your attention is invited to the tenth clause of the contract for the construction of that vessel, which provides that the expenses of a successful trial of the vessel shall be borne by the Government.
    “ With a view to an expeditious settlement of the bill for the trial expenses of the vessel after the trial shall have taken place, the Department has to-day directed Chief Engineer J. W. Thomson and Naval Constructor J. F. Hanscom, United States Navy, to inform themselves as to what expenses you incur in preparing the vessel for trial, on the trial, and in furnishing the supplies of all kinds to be used, in order that they may be able to report to the Department after such examination, if any, as they may be required to make of your bill as to whether the items included therein are properly chargeable to the Government, and as to whether the prices charged therefor are proper and reasonable.
    “ The Department requests that you will confer with the above-named officers in regard to the expenses necessary to be incurred in the trial of the Indiana, and afford them such information as will enable them to fully comply with the Department’s instructions, as above stated.
    “ Very respectfully,
    “ H. A. Herbert,
    “ Secretary of the Navy.
    
    “ The William Cramp & SONS
    “ Ship ahd ENGINE BtjildiNG Company,
    “ Philadelphia, PaP
    
    The expense so incurred was verified by such officers and no objection was found to the amount thereof. But in the meantime the Secretary of the Navy was in doubt as to whether the vessel was ready for such official trial, and to ascertain that fact did, on April 12, 1894, appoint a board, consisting of three naval officers, to inquire into the matter.
    The board made such inquiry, and on April 18, 1894, reported to the Secretary that the hull of the vessel was about . eighty-four one-hundredths completed, and that but one-half of the armor had been fitted in place. The board unanimously reported that the vessel was not then and would not be by May 1, 1894, ready for the official trial trip in accordance with the tenth article of the contract, and that such trial should not, in the interest of the Government, take place until the vessel was fully completed and ready for de-liverjL
    Upon that report the Secretary acted, refusing to give his approval to the proposed trial, and the same was not made.
    If the claimant is entitled to recover the expense so incurred in the preparation for the preliminary trial of the vessel, the amount as verified by the officers of the Navy and which we find reasonable was $17,514.94.
    
      XIII. The items of cost and expense set forth in the several findings herein, both upon the basis of two years’ delay and of one year, six months, and nine days’ delay, are as follows :
    
      
    
    
      Mr. John 0. Fay (with whom was Mr. Efpa Eunton) for the claimants :
    It is not claimed that the failure of the United States to perform her part of the contract was in any way brought about by the act of the claimant, nor is her default sought to be excused by anything that the claimant, did, but it is contended that her own act in extending the time of the completion of the vessel for two years, made necessary by her own default, is to be taken as a complete exoneration to her' for the breach of her contract. This proposition is somewhat- startling, but unless some artificial and abstruse rule of law has taken the place of and superseded natural justice and fair dealing,- it is as unsound and untenable as it is original and ingenious. The defendant pleads the breach of her contract as a bar to the recovery of damages for the breach.
    When parties enter into contract obligations and violate them, it is the law that fixes the right to recover damages for the breach, and not by reason of some provision inserted in the contract; it is not a right conferred by the contract; it is a liability imposed upon the defaulter by natural justice, and exists irrespective of any expression in the contract on the subject, so that it is quite immaterial whether there' was or not any provision in the contract on the subject, the claimant’s right of action exists just the same, nor can the claimant accept the conclusion that it is “strictly true ” that there was “ no delay ” whatever in the completion of the vessel, und unless, outstripping Joshua of old, the learned counsel for the United States can turn back the hands of time from November, 1895, to November, 1893, we must contend that there was a delay of two years, and that, too, attributable to the default of the Government.
    The contract did fix a measure of damages that the claimant should'pay and the United States should receive for a breach of 'contract on the part of the claimant, but it will hardly be seriously contended that if no such provision had been inserted in the contract the United States would not have been entitled to recover such damages as it might'have sustained bjr reason of such a breach, and if that be true, upon what rule would the claimant be debarred from like recovery by reason of a breach on the part of the United States? When the United States enters into contract relations she is liable to the same extent as an individual. (U. S. v. Bostwiclc, 94 U. S., 66.)
    The reason, and the only reason, that the law gives to the 'injured party a right of action for a breach of contract is to compensate him for his losses. The damages it awards are in no sense punitive. How, then, could the claimant be compensated for losses sustained by it by being relieved of penalties that it had never incurred ?
    Whether the contract said so or not,' if .the delay was caused by the United States no penalty could be imposed upon the claimant; it is not necessary to argue such a proposition. The whole scheme and purport of Paragraph IX was to increase the recovery of the United States beyond the legal measure of damages. It fixed an arbitrary amount, greatly in excess of any possible loss; it made the Secretary of the Navy the arbiter to decide questions of liability, and it undertook to hold on to penalties by an extension of time proportioned according to exact number of days the United States was in default, a method that could not be fair and which,'but for the contract, no court would adopt. •
    Every official expression from beginning to end by all officials has been to the' effect that the United States was liable, and the agreement of May 10, 1894, relied on as a release of the very claim we are now pursuing, fully concedes it. If no liability existed, why require a release? That paper, if of any value at all, certainly puts upon the contract a contemporaneous construction by the parties to it at war with the present contention of the counsel for the United States; but to further emphasize this contemporaneous construction, the United States actually paid to the Union Iron Works the cost of the care and preservation of the Oregon, built under an identical contract. If the language of the contract was doubtful, these contemporaneous constructions would have controlling weight. {Topliff v. Topliff, 122 U. S., 121; Chicago v. Sheldon, 9 Wall., 50; Philbrich v. U. S., 120 U. S., 52;- Sill v. ü. S., 120 U. S., 169.)
    The receipt prepared in a form exacted by the Secretary of the Navy can not and does not estop the claimant from recovering such compensation for the damages as accrued to it by reason of the delays caused by the failure of the. United States to fulfill its part of the contract. It was not given in compromise or settleinent of a disputed claim. It was nothing-more than a receipt for the balance of the contract price, ascertained by deducting the partial payments from the. contract price. The Secretary of the Navy had neither the authority nor the jurisdiction to entertain, adjust, or pay any claim for unliquidated damages growing out.of losses by reason of delay. No such claim was before him, nor Was any such claim considered by him, nor was there any consideration flowing to the claimant for such a release. It can not be pleaded either as an estoppel or a release.
    Was the position of the United States in any way changed by the receipt? She paid exactly the balance of the contract price as ascertained and certified by the bureau chiefs, and as to that she was just as fully discharged as if no receipt had been given. It is clear that the claimant is not estopped by it. It is equally clear that there was no consideration for it, and it resolves itself to the question of whether such a paper exacted by the Secretary, or even voluntarily, given to one wlio had no power to adjust the claim now sued for, and which was not before him and which he did not pretend to adjust, or settle, is binding and obligatory. In the case of The Pneumatic Gun Carriage Co. v. Z7. S. (36.C. Cls. K.., 71) this identical question Avas before the court, upon a receipt in the exact form, and upon a claim arising from delays on the part of the Government in supplying material, and the court there held that it Avas no bar to the suit.
    In May, 1894, the vessel had been delayed something over five months beyond the contract time, and this is the utmost to which this release could apply, even though it was a valid, enforceable release and could be pleaded as such, but in fact it Avas utterly without consideration; no money AAras in point of fact paid. The consideration insisted upon was the substitution of a bond, Avith surety, for the claimant’s cash money. The contract called for payments for the work as it progressed and the retention of a guarantee fund to insure completion of the contract. The retained percentage Avas the money belonging to the claimant for work actually done, and Avas in the nature of a bond to secure performance of the balance of the work. Instead of holding this security in currency, the claimant gave another and just as effective security. The Government’s position did not change, nor did the liability of the claimant change, by the substitution of one security for another. All that has been said about the jurisdiction of the Secretary of the Navy to adjust claims for unliquidated damages is applicable here. The Secretary had neither the authority nor the jurisdiction to pay the damages accruing to the claimant, and, having no such power, he could not, by demanding a release, obtain an effectual one. It >vas only by coercion and duress that such a paper could be procured.
    The whole action of the Department in assuming the unprecedented position that it could refuse the vessel a trial trip when offered for trial, when the expense of an unsuccessful trial AAras at the contractor’s cost; the overturning the Avhole course of business that had obtained on that subject theretofore; the confession that it was impossible to determine when the armor would be furnished, thereby postponing indefinitely any more payments on account of the vessel; the very large amount of money then earned and withheld, with bankruptcy staring the company in the face, with no authority to pay and adjust these losses already incurred, and greater ones impending and imminent, was as effectual coercion and duress as if the Department had turned the guns of the Navy on the claimant’s shipyard and secured the release by a bombardment. The claimant at such odds was helpless to contend with the United States.
    The doctrine of duress is not limited to threats of physical force or personal danger, but, by the more modern decisions, to such a condition of affairs as destroys free agency. In the case of Earle v. Norfolk (36 N. J. Eq., 192) it was held “ that wherever a contract is made under and because of a pressure that destroys free agency, whether such pressure be exercised by physical force, threats, importunity, or any other species of physical or mental coercion it may be avoided for duress.”
    If the claimant had a valid claim for compensation on account of delay, which the Secretary of the Navy had no authority or power to discharge, the requirement to release that claim as a condition to the payment of money then earned and belonging to the claimant, and without which great loss would accrue to it, was, we confidently submit, such duress as the law takes cognizance of and avoids the release.
    There was nothing in the contract that fixed any particular method of how the amount of the current payments should be ascertained. The claimant was entitled to be paid for work actually done, and the mere fact that a voucher had been made up did not conclude the party from further payment on account of work performed if it was less than the actual work done, that did not debar the claimant from receiving the correct amount.
    The defendant seeks to avoid the effect of the judgment of the Secretary of the Navy by assuming that the claimant’s right of action is founded upon the adjudication of the Secretary. We have hereinbefore undertaken to show that we are not here by the grace either of the Secretary or the grace of the contract, and it is unnecessary to repeat what has already been said on that subject. The Secretary did not undertake to decide that the delay “ was due to causes which would justify a liability for damages oil the part of the United States.” He was authorized to decide whether the delajr was due to the default of the United States, and, if he found that it was' not, no one would be more eager to have pleaded such a finding as a bar to this action than the learned counsel for the Government, and such a defense would have been most effectual. It was not his finding that warrants this suit; it is the delay that was caused that is its foundation. His finding is the only evidence of it, and under the terms of the contract the conclusive evidence, whether it is called res judicata or estoppel, is immaterial. It is the conclusive proof that neither party to the contract is at liberty or permitted to deny. It is not to be impeached except for fraud or for such gross error as to imply bad faith. This doctrine has so frequently been invoked .by the United States and is so familiar to the court that it would seem to be superfluous to cite authorities to sustain it.
    The claimant should not be called upon to support this “ contract designated ” measure of proof. Not only is the party named who shall pass on this question, but conditions precedent are imposed upon the claimant in order to have it acted upon by the arbiter. After he has made his decision it is conclusively presumed to be right and needs no bolstering up on the part of the claimant to give it full force and effect; but as the evidence of its correctness is ample and at hand, it may not be inappropriate to call attention to some of the facts in the record that vindicate it.
    It would, indeed, be a travesty of justice if the claimant’s efforts in good faith, in the interests of fair dealing, to minimize the damage should be used to its loss and detriment. There is no pretense and no attempt to deny the fact that in order to complete the vessel within three years the diagonal armor ought to have been delivered as early as January. 1892; nor is there any attempt to show that by the use. of reasonable efforts on the part of the Government it could have been gotten ready by that time, nor that the claimant was not pressing its work so as to be ready to install it then. When the claimants found, in December, 1891, that the armor contractor had not even commenced to erect a plant for the manufacture of the armor, tbey were not only justified but Avere required by every dictate of fairness to slow up the work upon the vessel. This did not excuse the fault of the ' Government, but simply lessened the resulting damages. The real question is, Ought the armor, under the terms of the Government’s contract obligation, to have been delivered 'when called for, to wit, about January, 1892? The whole record both of the claimant and the defendant answers this question in the affirmative. The delay in the delivery of the other armor was primarily caused by the decision of the NaAiy Department to submit it to the Harvey process. This' not only caused such delay as was consumed in the additional time necessary to subject it to the process, but it twisted the armor so much that it required specially made bolts to put it on with — that is to say, bolts of standard size could not be used, but the holes had to be measured and bolts of special lengths had to be made for the purpose. The claimant does not criticise the Department for employing this process. It Avas proper and Avise administration to get the very best and most effective armor that could be had, but if this delay enabled the Government to get a more valuable and effective vessel of Avar, the United States, being the gainer, should pay for the ■ benefit, and the claimant should be recompensed for. the additional cost it was put to in order to thus benefit the United States.
    
      Mr. Charles 0. Binney (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    The contract fully provided for precisely such delays as the contractor complains of. It provided that if the Government was chargeable with any delays then the contractot should be relieved of liability for penalty for such delay and tne contract time should be extended. The contract, in other words, called for completion in three years or in such longer period of time as might be required by delays for which the Government was responsible, When an extension was made, then, by the operation of the terms of the contract itself, it ceased to be a contract for building a vessel in three years, and became a contract for building it in a longer period — in the present instance, five years. Hence, in consequence of this provision of the contract, requiring an •extension of time in the contingency which happened in this case, it is strictly true to say that under the contract as ultimately amended there was no delay in the completion of the vessel whatever.
    The present claim could only be justified under one or other of two circumstances, either that the contract had made no provision whatever for the event of delays chargeable to the Navy Department, or else that the contract gave a right to damages for such delays. Neither of those circumstances, however, exists here. The contract has expressly provided for the event of delays chargeable to the Navy Department, and the provision is that such delays “ shall entitle the party of the first part to a corresponding extension of the period herein prescribed for the completion of the vessel,” such extension necessarily relieving the contractor of all liability for deductions on account of delay for the period covered by the extension. By the doctrine of expressio unius est exelusio alterius the extension of time and consequent freedom from liability for deductions constitute the relief to which the contractor is entitled, in the event of delays chargeable to the Navy Department, and it is not entitled to any other relief. Such are the terms of the contract itself. Had the contractor desired other relief in the event of such delays, it should not have executed such a contract. Having-executed it, it must be bound by it.
    This contract, which the claimant certainly entered into with its eyes open, can -not reasonably be understood as meaning anything else than that an extension of the contract term should have the same effect as if the date to which the time for completion was extended had been originally fixed in the contract as the date of completion, so that the Government should not be liable for delay any more than it would have been had the vessel been completed .within the time originally fixed. There was a very good and a very evident reason for so protecting the Government from liability. A very important part of the structure, the armor, had to be supplied by other contractors, who had never done precisely this kind of work before. The Indiana was, in a very real sense, “ Battle ship No. 1,” and, in view of the novelty and difficulty of the work, delay was almost inevitable, and as such delay would not be due to any fault of the Government, it was reasonable that the latter should not be liable to the claimant for it. Hence this provision was introduced in order to prevent any such liability.
    It appears that, in accordance with the ninth clause of the contract, the time for completion was actually extended to the date of delivery, and the contractors relieved of all liability for deductions on account of delay. Had the contractors been held liable for the delay, the deductions would have been $111,600. That the contractors understood perfectly well, at the time the delays occurred, that this extension of time was the only relief to which the contract entitled them, is seen from the fact that although their president, Mr. Cramp, referred in some of the -letters to the loss which his company would sustain by the delay, he did not hint at any claim on this account, but merely asked for the extension which the contract provided for.
    The provision above referred to, for an extension of the time for completion, in case of delays chargeable to the Navy Department, was supplemented by the provision for the execution of a release of all claims against the United States, on the final payment of all moneys due under the contract. In fact the provision for an extension furnishes the reason for the release, and the two provisions are practically one in ultimate effect. Owing to the extension of time in the event of the delays chargeable to the Navy Department, there could be no legal claim against the United States on account of such delays, and, therefore, it was perfectly proper that the contract should provide for a final acknowledgment by the contractor that no claim of any kind against the United States existed. The release did not ’involve any surrender of any right on the part of the contractor. It was simply a final acknowledgment that the terms of the contract, as amended in accordance with the provisions of the contract itself, had been carried out by the United States. In view of the provision for an extension of time, the release may perhaps be regarded as superfluous, but it was no more superfluous than many time-honored provisions and expressions in deeds for the conveyance of real estate, some of which provisions and expressions are in use even to the present day. The release was a formal confirmation of all that had been done under the contract, including the extension of time.
    It can not be contended that this release was given without consideration. The release was required by the contract itself. It was one of the terms of the contract that there should be a release, and the payment of the money which was due under the contract was just as much a consideration for the release as it was for the construction of the vessel itself. The contract can not be cut up into separate parts and one of the claimant’s obligations declared to be without consideration, as distinguished from other obligations for which a consideration existed. The consideration must necessarily extend equally to everything which the claimant contracted to do, one of which things was, on receipt of the final payment of all funds reserved, to execute “ a final release to the United States in such form as shall be approved by the Secretary of the Navy of all claims of any kind or description under or by virtue of this contract.”
    Neither can it be contended that this release was given under duress, in order to secure a payment of money to which the claimant was lawfully entitled. Under the express terms of the contract the claimant was 'not entitled to receive the “ special reserve, or any part of it,” except on “ the execution of a final release.” The contract may have turned out to be less profitable than the claimant expected, but the time for objecting to its terms was before it was signed. There is no such thing, in the eye of the law, as duress in merely insisting upon the performance of what a man has freely contracted to do.
    Had Congress seen fit to send the claim to this court by special act, setting aside the effect of the extension of time and of the release, this court could then have properly proceeded to consider the grounds of liability; but it is submitted that under the terms of the contract which the claimant entered into, and in accordance with which it executed a final release “ of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or equity, for or by reason of, or on account of, the construction of said vessel under the contract aforesaid,” the present claim can not be sustained.
    Apart from the effect of the extension of time, and of the final release, there is still another defense to this claim as regards all delays prior to May 10, 1894. By that date it was evident that the vessel could not be completed for some time yet, and therefore the claimant company wished to receive some of the money which the contract required should be reserved to be paid on final completion. Accordingly an agreement for a change in the contract in this particular was made, and the sum of $234,830 was paid on or about June 20, 1894.
    In consideration of this payment the agreement provided that—
    “ the party of the first part hereby releases the party of the second part from all and- every claim for loss or damage hitherto sustained by reason of any failure on the part of the party of the second part to comply with this contract, or on account of any delay hitherto occasioned by the action of said party of the second part.”
    This' release, given for a new and valuable consideration, viz, the payment of a large sum of money nearly eighteen months before it was due under the terms of the contract, is necessarily binding. - It was reasonable that it should be given at that time, both 'because the full extension of the time for completion had not yet taken place, and also because it ivas the only consideration which the claimant company could offer for the change in the contract and the advanced payment of this sum of money. Even if it were possible to conceive that the extension of the time for completion and the final release did not constitute a bar to the present claim, certainly this release, given for a valuable consideration, must of necessity prevent any claim on account of delays occurring before May 10, 1894.
    The petition states that the money paid in pursuance of this agreement was “ then justly due to your petitioner,” and that the Secretary of the Navy “ unconscionably, unreasonably, and unlawfully, and taking an advantage of the financial necessities of your petitioner,” required the execution of this agreement and release as a condition of paying the money. No real evidence has been produced in support of this averment, and the suggestion of duress is really preposterous. The claimant may, it is true, have expected when the contract was made that the money would be paid to it before the date of this agreement, or, at least, that it would then be due, if llot already paid. As a matter of fact, though, tile money in question, being a part of the reserve fund, was not due at all until after the acceptance of the vessel, and its payment before that acceptance was a distinct concession on the part of the Secretary of the Navy and a waiver in favor of the claimant of the terms of the contract. This being so, the'Secretary hád a right to require some consideration for this advanced payment, and the requirement of a release was perfectly reasonable. As already explained above, the contract itself provided that all that the claimant ivas entitled to, in the event of delay, was an extension of the time for completion, and consequently there could be no claim for delay when once the time was extended.
    The fact that this agreement required security to be given against loss or injury, by reason of the payment, does not affect the point that the money was paid before it was due under the contract, and that it constituted a consideration for the release. A payment, to constitute a consideration, does not have to be absolute, and the fact that the defendant might, under certain conditions which never arose, have called for a refund of the money paid does not overcome the fact that the claimant received $234,830 some sixteen months earlier than it was entitled to receive it under the terms of the contract, or the further fact that the claimant agreed to make the release in consideration of such advanced payment.
    The contract gave the Secretary no authority, however, over the question of liability in damages for delay on the Government’s part, and he never undertook to pass upon such a question. “ His grant of exclusive jurisdiction by the terms of the contract,” to quote the words of claimant’s counsel, extended only to the question of whether the cause of delay was such as to subject the claimant to penalties in the shape of deductions from the contract price, and he had no jurisdiction over the question of whether the delay, or any part of it, was due to causes which would justify a liability for damages on the part of the United States. Presumably he held that the provision for extending the time prevented any such question from arising, so that when he approved the report stating that “ the delay in the completion of said vessel was due to failure on the part of the Government in delivering her armor within the times and in the order to carry on the work pro£)erly,” he had no idea that his action could possibly furnish a warrant for claiming damages from the Government. Certainly the chief constructor, one of the two chiefs who riiacle the report which the Secretary approved, had no idea that that report was in any way conclusive against the United States as to liability for delay, for he himself subsequently reported to Congress that the Government was liable for only eighteen months of the delay.
    The' question before the Secretary, and the only question which he had authority to decide in this connection, was whether the contractors were entitled to an extension of time and to consequent exemption from deductions on account of delay, and he decided (it matters not whether rightly or wrongly, because his decision was final on that point) that they were so entitled as regards the whole period of delay. The question of the liability of the United States in damages was not before him, and to make his decision an admission of such liability is to give it an effect which it is impossible that he could ever have contemplated.
    As a matter of law, however, it is wholly immaterial whether the Secretary meant to admit a liability on the part of the United States or not, for it is well settled that the United States is not bound by any admissions of its. officers or agents unless Congress has expressly or impliedly authorized them to make admissions of that precise character. As this court has said, “ Neither the heads of Departments, nor any other executive officers, constitute the United States as a political organization and power, and their acknowledge-ments and promises are not binding on the defendants except where they are made under express or implied authority of Congress.” (Leonard v. United States, 18 C. Cls. E.., 382.) In that case, for instance, it was held that a Government officer could not make an acknowledgment of indebtedness which would take a case out of the statute of limitations.
    In another case it was said, “ The United States are not subject to the same rule of responsibility as attaches to individuals in relation to admissions and declarations. They are represented by agents, and the power of an agent to bind his principal by admissions and declarations is much more limited than the power of an individual to bind himself.” (Allen v. United States, 28 C. Cls. R., 148.)
    To the same effect are Waters v. United States, 4 C. Cls. R., 389, 391; United States v. Martin, 2 Paine, 68; Lee v. Mun-roe, 7 Cranch, 366; The Floyd Acceptances, 7 Wall., 666; Whiteside v. United States, 93 U. S., 241, 257.
    The question of whether the delay in the delivery of the armor imposed any liability upon the United States at all is a question of law, and the further question of what particular delays the United States is liable in damages for, supposing it to be liable at all, is a mixed question of law and fact. These are not such questions as the head of an Executive Department is authorized to decide in the ordinary course of his duties, nor does the contract give any authority to decide such questions. As already stated, the action of the Secretary in connection with the extension of time can not be construed as an admission of a liability on the part of the United States, but even if it could be so construed, the Secretary would have been powerless to bind the Government by any such admission.
    That the matter can not be res ¡judicata is clear; but it may be as well to point out that the contention of estoppel is also without foundation. There can be no estoppel unless the party who sets up the estoppel has in some way changed his position in consequence of some act or statement of the other party, so that tbe former would in some way be injured but for the estoppel. In the present case the contractors did not alter their position disadvantageous^ in the slightest degree in consequence of the Secretary’s letter of December 4, 1895, approving the report, which stated that the delay was due to the Government’s failure to deliver the armor at the proper time. The only consequence of that letter was to insure immediate payment to the contractors of the money then due them, without any deduction on account of delay, a result which was clearly for their advantage and not for their disadvantage. Had the report been silent on the question of responsibility for delay, simply stating that under the circumstances no penalties would be imposed, the consequences would have been precisely the same as they actually were. The claimants have not shown that in consequence of the statement in the Secretary’s letter in regard to the causes of delay they have taken a single step which they would not otherwise have taken, and hence to talk of an estoppel is simply a misuse of legal terms.
   Peelle, Ch. J.,

delivered the opinion of the court:

The claimant alleges, and the findings show, that through the fault of the officers and agents of the United States it was delayed two years in the execution of its contract for'the construction of the coast-line battle ship Indiana, by reason of which, notwithstanding a corresponding extension of time was allowed, it suffered great damage; hence this action.

A contract was entered into November 18, 1890, by the terms of which the claimant was, for the consideration of $3,063,000, to construct and complete within three years from that date, in accordance with the specifications made a part of the contract, a seagoing coast-line battle ship, designated as No. 1, and subsequently named the Indiana.

On December 4, 1895, and after the vessel had been completed and delivered, the Secretary of the Navy decided that the cause of the delay for the two years in the completion of the vessel was due to the failure of the United States to furnish the materials which by the terms of the contract they had agreed to furnish, in the order required, to properly carry on the work; and. for that reason the claimant was granted a corresponding extension of time for the completion of the vessel.

On May 10, 1894, before the Secretary of the Navy had determined the cause of the delay and before the vessel had been preliminarily accepted, the contract had been modified, as set forth in finding v, by which the United States had agreed that, in consideration of the claimant releasing them “ from all and every claim for loss or damage hitherto sustained by reason of any failure ” on their part or “ on account of any delay hitherto occasioned by ” their action, and giving security against any loss on account thereof, they would pay or advance to it the sum of $234,880, said sum being the amount of the reservations of the first twenty-three installments which, under the terms of the original contract, were not payable until after the preliminary acceptance of the vessel;

On June 20, 1894, the installments as agreed upon had been paid to the claimant, who had executed the required release and given security against loss as aforesaid; but no demand for any refund of the sum so paid, or any part thereof, was ever made upon the claimant, nor was any objection or protest made by it to the release so required as a condition of such payment.

Subsequently, May 10, 1896, and in accordance with the sixth paragraph of the nineteenth clause of the contract, the balance of the money due, but which, pending the decision of the Secretary as to the cause of the delay, had been withheld, was paid to the claimant, who, without protest or objection, executed, as required by said paragraph and clause of the contract, a release as follows:

“The William Cramp & Sons Ship and Engine Building Company, represented by me, Charles H. Cr^mp, president of said corporation; does hereby, for itself and its successors and assigns and its legal representatives, remise, release, and forever discharge the United States of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or in equity, for or by reason of, or on account of, the construction of said vessel under the contract aforesaid.”

The vessel, as stated, was to have been completed within three years from the date of the contract, but was not completed or delivered until two years thereafter, or until November 19, 1895. In view of the penalties provided for in case of delay, as set forth in the ninth clause of the contract, it became important to determine the' cause of such delay. That question, as required by the same clause of the contract, was submitted to the Secretary of the Navy, whose decision, as before stated, was that the two years’ delay had been caused by the failure of the Government to furnish the materials in the order required as agreed upon. Iiis decision under that clause of the contract, it was provided, “ shall be conclusive and binding upon the parties.”

The ruling of the Secretary, coupled with the corresponding extension of time for the completion of the vessel, operated to release the claimant from the penalties otherwise provided for by the contract. But while this is conceded by the defendants, they contend that the Secretary had no authority over the question of the liability of the United States for damages for such delay. That is to say, when the Secretary decided that the delay was caused by the fault of the Government, and for that reason granted the claimant a corresponding extension of time, his authority under the contract was exhausted; that while by the terms of the contract all questions arising thereunder concerning deductions from the contract price of the vessel were to be submitted to the Secretary and his decision thereon was to be “ com elusive and binding upon the parties,” still he had no jurisdiction to consider or determine whether the cause of delay so decided by him would form the basis of a liability for damages against the Government for breach of contract.

On the other hand, the claimant contends that as by the terms of the contract the Secretary was given exclusive jurisdiction to determine the-cause of delay, and as he had decided that question in its favor, and thereby released it from the penalties provided for under the contract, the question was res juclioata, and being res judicata, was conclusive on the Government in respect of the cause of delay, whether such delay be made the basis for damages for breach of contract or for the release of penalties thereby imposed.

But whether the decision of the Secretary in respect of the cause of delay be conclusive on the Government in this action for breach of contract we need not now decide, as the findings otherwise show that the delay -was caused by the Government.

The more important question arising on the facts is as to the effect of the' extension of the contract, and in this respect the defendants contend that when the Secretary extended the' contract for the period equal to the delay caused by the Government, and thereby relieved the claimant from any penalties, it was thereby granted the full measure of relief contemplated by the contract.

That contention is based on the ninth clause of the contract, which, after reciting the various penalties to be imposed in case of the claimant’s failure to complete the vessel within the contract time, and of the finality of the decision of the Secretary in respect to the cause of delay, provides:

“All delays which the Secretary of the Navy shall find to be properly attributable to the Navy Department, or to its authorized officers or agents, or any or either of them, and to have been a delay operating upon the final completion of the vessel within the time specified therefor in this contract, shall entitle the party of the first part to a corresponding extension of the period herein prescribed for the completion of the vessel.”

In- support of the contention arising under that provision of the contract the defendants cite the case of Haydnville Mining and Manufacturing Co. v. Art Institute (39 Fed. Rep., 484), which arose in the Circuit Court for the Northern District of Illinois. That was an action to recover a balance claimed to be due for extra work over and above that required by the contract. The contract in that case, among other things provided that the plaintiff would do all the fireproofing work to be done on the .building known as the Art Institute, in the city of Chicago, according to the drawings and specifications; and, further, that should “ delay be caused by other contractors to the positive hindrance of the contractor hereto, a just and proper amount of extra time shall be allowed by the architects, provided it shall have given written notice to said architects at the time of such hindrance or delay.”

From the case it appears that the’ plaintiff was one of several contractors doing different portions of work on the same building, and that if he should be delayed in his work by the other contractors then he should have a “ just and proper amount of extra time ” within which to complete his work.

In construing that provision of the contract the court said:

“ Taking this clause of the contract and the specifications together, I construe them to mean this: That if the plaintiff was delayed by reason of the tardiness or want of dispatch on the part of the contractors doing the other classes of work upon the building, it should .be entitled to such further time for the completion of the work as the architects should allow him; but I do not see that there is any provision that it is entitled to pecuniary damages by reason of said delay. Evidently the parties anticipated that this contractor doing only a part of the work and that which was largely dependent upon the completion of other classes of the work by other contractors, must await the movements of these other contractors; and it seems to me that the stipulation for further time to complete the work in case of delay by other contractors implies that there is to be no pecuniary compensation for such delay.”

The evident purpose of that provision of the contract, it seems to us, was to relieve both parties- from any liability for delays caused by other contractors. That is to say, the plaintiff was not to be held responsible to the defendant for delays caused by other contractors, nor was the defendant to be held responsible to the plaintiff for such delays, both parties being equally blameless. In other words, as betiveen the parties to the contract there was no breach, and hence no right of action accrued to either.

The defendants also cite the case of Richard v. Clark (88 New York Supplement, 242), decided at an appellate term of the Supreme Court of that State in May, 1904. The action arose under a contract to construct a model of the defendant’s residence, alleging that damages had been sustained by reason of the delay of the defendant’s architect to furnish within the proper time the plans of the building. The contract, among other things, provided that—

“ Should the contractor be obstructed or delayed in the prosecution or completion of his work by the act, neglect, delay, or default of the owner or the architect, or of any other contractor employed by the owner upon the work, or by any damage which may happen by fire, lightning, earthquake, or cyclone, or by the abandonment of the work by the employee through no fault of the contractor, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid * *

The court, in construing that provision of the contract, said:

Nor am I satisfied that any damages in the case are recoverable either for a delay or for extra work. The claim for delay was necessarily based upon the failure of defendant’s architects to furnish the detail plans in time, as to which the contract provided that if the contractor, ‘ be delayed in the prosecution or completion of his work by the act, neglect, delay, or default of the owner or the architects,’ etc., £ then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid.’ The contract, therefore, explicitly contemplated a situation such as has here arisen, and the intention of the parties as evidenced by the agreement evidently ivas that the time clause affected plaintiff alone and that he might be absolved therefrom to the extent and in the manner-provided in the contract.”

In neither of the cases cited did the contract provide for a penalty for delay caused by the contractor; .but in the case of Nelson v. Pichwick Associate Company (30 Appellate Court Ill., 338) the contract did provide for a penalty for delay. The provision respecting additional time for such delfty was identical with that, in the case of the Manufacturing Company v. The Art Institute, supra, and the court held that the granting of additional time for delay caused by other contractors did not preclude the recovery of damages resulting from such delay. The decision was based upon the theory that it was incumbent upon the one who was having the building erected to keep the work in such a state of forwardness as to enable the contractors to complete their respective work within the contract time.

That case differs from the present one in this, that there contracts had been entered into with various contractors to do certain portions of the work on the same building, while in the present case the claimant was the only contractor bound to do work on the vessel, though the Government was to furnish some of the materials therefor.

The claimant could have completed the vessel within the time agreed upon but for the default of the Government; and to hold that the granting of additional time for such default precludes the claimant from the recovery of damages, if. otherwise entitled thereto, would, it seems to us, be reading into the contract a provision not in the minds of the parties when the contract was entered into.

From the language of the ninth clause of the contract it is evident that what was in the minds of the parties was that if, through the fault of the claimant, the vessel was not completed within the contract time, then the penalties by way of deduction from the contract price might be imposed; but if delayed by the fault of the Government, then additional equivalent time should be allowed, not in lieu of compensation for damages for such delay, but to enable the claimant to proceed to complete the vessel. But for that provision in the contract for additional time, the delay caused by the Government (the claimant having performed its part) would have discharged the claimant from further performance and left it with a right of action for damages on the obligation growing out of the breach. Or the claimant might have continued to perform, reserving to itself the right to sue for such damages as it may have sustained. On the other hand, as the claimant by the terms of the contract agreed that additional time should be allowed, equivalent to such delay, it thereby waived its right to terminate the contract for that cause; but the question of waiving- its right to damages growing out of such delay was certainly not in the minds of the parties at the time the contract was entered into.

Nor was the granting of such additional-time intended by the parties to operate as an estoppel against the claimant from seeking redress for damages it may have sustained by reason of the default of the Government. Certainty is an essential element in all estoppels, and the rule should not be applied unless the recitals in the contract are clear and conclusive against the claimant. Courts will not suffer a party to be deprived of a right without his consent, and such consent can not be inferred .from the mere granting of additional time without any fault on the part of the claimant.

The claimant being without fault in the delay, no penalty could have been imposed upon it without gross error akin to fraud, from which relief would have been granted by the courts. The granting of such additional time was clearly for the benefit of the Government, as it thereby prevented the termination of the contract and saved it the expense of reletting the work to other contractors. Any other construction of the contract, it appears to us, might result in irreparable damage to the claimant, for if the Government is not to be held responsible in damages for its delay by reason of a corresponding extension of time, then it may delay the work indefinitely and exonerate itself by the mere granting of additional time in which to enable a contractor to complete his work.

But this objection, the defendants say, should have been considered by the claimant at the time of entering into the contract, and that if not satisfied therewith it could have declined to so contract. This would be true if the contract clearly so recited, or if the language used was susceptible of no other conclusion. We do not think the language used can be construed to exclude claims for damages arising out of such a breach; and if not, then the extension of time would not operate to deprive the claimant of its right to a recovery therefor.

Nor does the doctrine of ecopressio unius est exclusio alterius apjfiy- That doctrine is not of universal application, and is always subject to the intention of the parties, evidenced by the contract.

It was ntit necessary to write into the contract that in case of breach the party injured should be entitled to redress for the damages thereby sustained. That right accrued when the default took place, and it would be no answer to say that because additional time is provided for in the contract therefore no breach occurred, for the extension of time is dependent upon a breach — that is to say, delay cause by the Government in the prosecution of the work.

On this branch of the case, therefore, we reach the conclusion that a corresponding extension of time for the delay caused by the Government was not intended by the parties to. conclude the claimant or deprive it of the right to maintain an action for any damages it may ha've sustained by reason of such delay.

The defendants further contend that the final release set forth in finding vi was intended by the parties as a full and final discharge of the United States from any and all' claims of whatever character growing out of the construction of the vessel under the contract.

That contention is based on the sixth paragraph of' clause 19 of the contract, ivhich reads:

“When all the conditions, covenants, and provisions of this contract shall have been performed and fulfilled by and on the part of the party of the first part, said party of the first part shall be entitled, within ten days after the filing and acceptance of its claim, to receive the said ‘ special reserve,’ or the surplus, if any, of the said ‘ reserve fund,’ or so much of either as it may be entitled to, on the execution of a final release to the United States, in such form as shall be approved by the Secretary of the Navy, of all claims of any kind or description under or by virtue of this contract.”

The release which was sighed by^ the claimant May 18, 1896, under that provision of the'contract is as follows:

“The William Cramp & Sons Ship and Engine Building Company, represented by me, Charles H. Cramp, president of said corporation, does hereby, for itself and its successors and assigns, and its legal representatives, remise, release, and forever discharge the United States of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or in equity, for or by reason of, or on account of, the construction of said vessel under the contract aforesaid.”

In support of their contention the defendants cite the case of Coulter v. Board of Education, etc. (68 N. Y., 865). That case arose under a contract to do the carpenter work on a school building in the city of New York. The contract, among other things, provided in substance that the last payment thereunder should not be made until a certificate had been filed by the contractor to-the effect that all claims and demands for extra work or otherwise under or in connection with the contract had been presented to the Board of Education and the amount to be paid therefor agreed upon, and that such last payment was to be in full of every claim or demand whatsoever in the premises, except the amount agreed upon for extra work.

The contractor was delayed in the prosecution of his work by the contractor doing the mason work. After the expiration of the time and during such delay the price of labor and materials advanced so that the cost of completing the carpenter work was materially increased. For this increased cost the contractor brought suit, but in the certificate which he had previously filed he had omitted to include this item.

On the facts stated the court said:

“A material question is, whether the certificate, given by the plaintiff upon receiving the last payment, precludes him from recovering the damages claimed in the complaint. It is quite clear that the certificate alone, regarded as a release or receipt, would not have that effect. It does not in terms release such damages, and the general words employed would, within established principles, be limited to the items specified. (1 Edw. Ch., 34; 1 Cow., 122, and cases there cited.) But the certificate, taken in connection with the contract, presents a different question.- * * * By this provision the parties evidently contemplated that all claims arising out of or in consequence of the contract should be presented and liquidated before the final payment was made. If the plaintiff had declined to give -the certificate, he could not have enforced the payment. By giving the certificate he induced the defendant to make the payment, and is, I think, precluded from afterwards setting up other claims. Under the agreement the certificate amounts to a waiver of other demands. The language of the contract is broad and comprehensive, ‘ that such payment is in full of everjr claim or demand whatever in the premises,’ whether for extra work or otherwise. It must be borne in mind that this language was used in advance, and we must give it effect according to the intent of the parties, and it seems most rational to suppose that when the certificate was given and the last payment made, together with the amount of other claims, which had been liquidated, they designed that the transaction should be closed. Parties have a right to make contracts for themselves, and it is the duty of courts to enforce them as made,- even though a hardship may be worked. Fraud or mistake may entitle a party- to relief, but if neither of these elements exists the contract must be carried out according to its terms. We think the plaintiffs were required to present this claim and make an effort to have it adjusted according to the contract; failing in that, they had the option to bring an action or sign the certificate and waive the claim.”

That case is quite different from the present one. There the contractor was required before receiving the last payment to file a certificate setting forth “ all his claims and demands for extra work or otherwise under or in connection with the contract,” and as he failed to set forth any claim for damages growing out of the increased cost of labor and materials during the period of delay he thereby concluded himself from thereafter asserting such claim.

Here the provision of the contract is that “ when all the conditions, covenants, and provisions of this contract shall have been performed or fulfilled ” by the contractor, then it “ shall be entitled, within ten days after the filing and acceptance of its claim, to receive the £ special reservation,’ or the surplus, if any, of the said £ reserve fund,’ or so much of either as it may be entitled to, on the execution of a final release to the United States, in such form as shall be approved by the Secretary of the Navy, of all claims of any kind or description under or by virtue of this contract.”

The final payment was made dependent upon the performance by the claimant of all the conditions, covenants, and provisions of the contract, and those it had performed, and therefore upon the presentation of its claim therefor it was, under the terms of the contract, entitled to final payment, upon the execution of a release as therein provided.

But while the form of the release was subject to the approval of the Secretary his act is qualified by the words “ of all claims of any kind or description under and by virtue of this contract,” and therefore unless the claim for damages growing out of the delay caused by tbe Government was embraced in the language “ all claims of any kind and desorption under or by virtue of this contract,” then such' claim was not embraced in the release.

Whatever damages the claimant suffered grew out of the breach by .the Government and not by. the claimant • in its performance and fulfillment of ‘the “ conditions, covenants, and provisions ” of the contract. The claim, therefore, having arisen out of such breach was not the subject of release contemplated by the contract, nor ivas it embraced in the final release. The receipt given by plaintiff did not include the release of claims not considered. This question was before the court upon a receipt in almost the exact form arising upon a claim growing out of delays on the part of the Government in supplying material, and the court there held that it was no bar to the suit. (Pneumatic Gun-Carriage Co., 36 C. Cls. R., 71). In our view of the case the question respecting the power and authority of the Secretary of the Navy to settle an unliquidated claim does not arise.

The case of Phelan v. Mayor, etc. (119 N. Y. R., 86, 90), is also cited in support of the defendants’ contention. That case arose under a contract for grading a street. The contract in substance provided that the work should be completed in 320 days, and in case of failure so to do the contractor was to pay the wages of inspectors for the excess of time employed in the work. In computing the time the contract provided in substance that the total timé during which the work of completing the contract is delayed by the defendants — such time to be determined and certified by the commissioner of public works — should be excluded.

The work not having been completed within the contract time, the defendants retained the inspectors’ fees for the extra time. The suit ivas brought to recover the amount-so retained, the contractor claiming that the delay in excess of 320 days was caused by the defendants leaving obstructions in the street. In construing the contract the court, among other things, said: “ There was no determination by the commissioner of public works applied for or made under the provision. The inspectors’ fees were a proper charge under another provision of the contract, unless, according to the provision quoted, the delay was occasioned by the act or omission of the city. But by the terms of this clause it was a condition precedent to any right of the plaintiff, to be relieved from the allowance. of inspectors’ fees, that the matter should have been submitted to and determined by the commissioner of public works, and this was not done. It was a lawful provision, and is an answer to the claim in the first count of the complaint. If the commissioner had neglected or refused to act when called upon to do so, a different question would be presented.”

The analogy between that and the present case is hardly perceptible. There no determination by the commissioner of public works was applied for or made, and as such determination was made a condition precedent, to the contractor’s right to be relieved from the expense of inspector’s fees, no recovery could be had therefor. The logical result of that decision is that if the contractor had applied for said defe?’-mination he would have been allowed to recover.

In the present case the claimant was, when it had performed and fulfilled “ all the conditions, covenants, and provisions ” of the contract, entitled “ within ten days after the filing and acceptance of its claim, to receive ” final payment, upon the execution of a release to the United States “ of all claims of any kind or description under or by virtue of this contract.”

As no damages grew out of the performance of the contract by the claimant, no claim was predicated thereon; and as the contract does not provide for the release of claims for damages arising-out of a breach by the Government, the signing of the final release does not, for the reasons above stated, conclude the claimant from a recovery, if otherwise entitled.

The defendants further contend that by signing the release of May 10, 1894, referred to in finding v, the claimant thereby concluded itself as to all claims for damages for delay caused by the Government prior thereto. On the other hand, the claimant contends that at the time of the execution of said release it had been delayed by the Government in the performance of its contract, thereby preventing it from receiving the payments it would have received but for such delay; and further, that the Secretary of the Navy had no authority or jurisdiction to settle the claim for damages growing out of a breach of contract, and that therefore the release respecting the claim for damages was without consideration.

At the time stated the cause of the delay had not been decided by the Secretary, though the time for the completion of the vessel had expired nearly six months before.

The claimant, in order to receive certain .payments in advance of the preliminary acceptance of the vessel, entered into the modification of the contract, made a part of the petition and referred to in finding v, whereby the contract was modified.

The cost of the vessel was three million and sixty-three thousand dollars ($3,063,000), to be paid in “thirty equal installments, as the work progresses, with the reservation of ten per cent from each payment.”

. The tenth clause of the contract provides for a preliminary trial trip “ to test the hull and fittings, the machinery, including engines, boilers, and appurtenances, the equipment, and the speed of the vessel, and that such vessel shall be accepted only on fulfillment and subject to the conditions and agreements hereinafter set forth.” Then follow the. conditions, among which is the guarantee by the claimant that the speed “ shall be not less than an average of fifteen (15) knots per hour, maintained successfully for four (4) consecutive hours,” etc.

The eleventh clause of the contract provides, in substance, that if upon such trial trip the requirements relating to the hull, machinery, and the fitting and securing of her armor shall be fulfilled and the speed of fifteen knots guaranteed as aforesaid shall be developed and maintained, “ then and in such case the vessel shall be preliminarily accepted and payment of the last three installments of the contract price of the vessel and of all reservations shall be made, subject, however, to a special reserve of sixty thousand dollars ($60,-000) from and out of the reservation hereinafter provided for; but if the speed developed and maintained by said vessel during such trial shall fall below the speed (15 knots) guaranteed as aforesaid she shall be conditionally accepted, subject to deductions, as aforesaid, from the contract price of the vessel on account of her failure to reach the speed (15 knots) guaranteed as aforesaid,” provided the conditions relating to the hull, machinery, and fittings of the armor shall have been fulfilled.

In case of such conditional acceptance it is therein provided that the twenty-eighth, twenty-ninth, and thirtieth installments of the contract and, the reservation of payments under the contract “ shall constitute a reserve fund which shall be applicable to or toward the satisfaction of such deductions from the contract price,” to be retained by the Government for that purpose.

The further provision of that clause is that “ in case of a preliminary acceptance of the vessel the said special reserve of sixty thousand dollars ($60,000), or in case of a conditional acceptance of said vessel, the said reserve fund, or so much thereof as may, in the judgment of the Secretary of the Navy, be necessary, shall be held until the vessel has been finally tried after being fully equipped, armed (or weighted correspondingly), and in all respects complete and ready for sea under conditions prescribed or approved by the Secretary of the Navy: Provided, That such final trial-shall take place within five months from and after the date of the preliminary or conditional acceptance of the vessel.”

Then follow the provisions to the effect that if upon such final trial, or if not then taken place, any time within five months after the preliminary or conditional acceptance, any weakness or defect in the hull, fitting, or equipment, due to defective workmanship or defective materials, or in the placing and securing of the armor, due to defective workmanship, develops, the same shall, at the expense of the claimant, be corrected and repaired to the satisfaction of the Secretary of the Navy.

At the time of the execution of the modification of the contract, and of the release hereinbefore referred to, the vessel had not been sufficiently advanced to put her upon her trial trip to test her hull, machinery, and speed, and the placing of the armor as aforesaid, and therefore the vessel had not been preliminarily accepted.

We have thus referred at length to the provisions of the contract respecting the trial trip of the vessel to test her hull, machinery, speed, and the placing of her armor, coupled with the condition of the vessel respecting the work then done, in order to get more clearly before us the force and intended effect of the modification or amendment of May 10, 1894, in conformity with which the release referred to was executed.

Under the conditions stated, the contract was modified to the effect that in lieu of the payment of the last three installments and of the amount reserved from the previous payments “ only after a trial trip and a preliminary or a conditional acceptance of the vessel,” there should be paid to the claimant so much of the aggregate amount of the last three installments of the contract price and of the amount of the reservations from previous payments as will leave in the hands of the party of the second part an amount sufficient, in the judgment of the Secretary of the Navy, to cover the special reserve of sixty thousand dollars ($60,000) provided for in the eleventh clause of the contract, the cost of all unfinished work and all deductions likely to be made on-account of deficiencies in speed and all contingencies that are liable to arise.

“ But such payment shall nót be made until the party of the first part has given bond with approved security conditioned for the return to the party of the second part of the amount so paid, upon demand being made by the Secretary of the Navy therefor, for indemnity of the party of the second part against loss or injury by reason of such payment, and in consideration of such advance payment the party of the first part hereby releases the party of the second part from all and every claim for loss or damage hitherto sustained by reason of any failure on the part of the party of the second part to comply with its contract or on account of any delay hitherto occasioned by the action of said party of the second part.”

In conformity with the modification, the claimant was paid $234,830, for which it executed the release and gave the required bond. The security exacted was to indemnify the Government against “ loss or injury by reason of such payment.” That is to say, if upon the trial trip the speed of the vessel should fall below 15 knots per hour and for that reason be conditionally accepted, deductions were to be made from the contract price of the vessel as provided in the eleventh clause of the contract; and to that end the sum paid was to be restored to the reserve fund and applied to the satisfaction of such deduction.

As before stated, at the time of the modification of the contract and the payment of the money thereunder the question of responsibility for the delay had not been determined nor was such delay at the time conceded to have been caused by the Government, as no extension of time had then been granted by it, and as the vessel had not been preliminarily accepted nor the work thereon sufficiently advanced to determine whether the materials and workmanship were in conformity with the contract, we think the modified contract and the payment of money thereunder was supported by sufficient consideration, and further, that the modification of the contract as made was within the authority of the Secretary of the Navy.

By virtue of the modification the Government parted with the money it might otherwise have kept until the vessel had been preliminarily accepted, and it is no answer to say that but for the delay caused by the Government up to that time the vessel would have been preliminarily accepted or that the materials and workmanship would have been in all respects in conformity with the contract.

The claimant executed the modified contract and the release thereunder required without protest or objection, and by the execution of the bond indemnifying the Government “ against loss or injury by reason of such payment ” it thereby conceded that the money was not then due, even though the delay up to that time had been caused by the Government.

Again, it is a familiar principle of law that one who accepts the terms of a contract in part must accept the contract as a whole. The claimant accepted the money under the contract before it was in fact due, and in consideration thereof executed the release whereby it released the Government “ from all and every claim for loss or damage hitherto sustained by reason of any failure ” on the part of the Government “ to comply with its contract or on account of any delay hitherto occasioned ” by it.

It is insisted that the court can give no force or effect to that release, though authorized by the modified contract, because the modification itself was without consideration in this that but for the delay caused by the Government the vessel would have been sufficiently advanced toward completion to entitle the claimant to receive the money it did receive; and that in so far as the modified contract seeks to release the Government from loss or damage caused by such 'delay, the Secretary of the Navy was acting outside of his powers.

We have endeavored to show that under the circumstances of this case the modified contract was supported by sufficient consideration and that the claimant, having accepted the contract in part, is bound to accept it as a whole.

At that time no claim for loss or damage resulting from delay caused by the Government had been presented to the Secretary of the Navy, nor was any such claim asserted when the modified contract was entered into, hence the provision of the contract requiring a release “ from all and every claim for loss or damage hitherto sustained” by reason of any delay caused by the Government must be treated as a precautionary measure by the Secretary to prevent the claimant from thereafter asserting such claim. Such provisions are common, especially in the modification of contracts where one party seeks to obtain a benefit thereunder in advance of the time specified therefor in the contract, and it would not do to say that such precautionary measures by executive officers are not within their jurisdiction or that such contracts are in their nature the settlement of unliquidated claims.

Clearly the purpose of that provision of the contract was that in consideration of the money paid the claimant would not thereafter assert any claim from which it had released the Government, and this the claimant was bound to know.

Having accepted a part of the contract, tlie question, therefore, is not whether the Secretary of the Navy had authority to settle such claim, but whether the claimant is not bound to accept the contract as a whole. The recitals therein are clear and particular, and we must hold that the claimant, for the reasons stated, is estopped from now asserting any claim for loss or damage resulting from delay prior to May 10, 1894, though it was subsequently decided by the Secretary of the Navy that the delay for the whole period of two years had been caused by the Government. While we are not free from doubt on this branch of the case because of that decision, still, as the whole matter was within the breast of the claimant and its officers at the time it executed, without protest or objection, the modified contract and release, we are inclined to hold claimant to the contract it entered into and on the faith of which the Government at the time parted with the money.

This brings us to the items of damage caused by the delay. We have found and set out the damage for the two years’ delay and then apportioned it for the period subsequent to May 10, 1894 — that is to say, we have found the actual or compensatory damages resulting immediately from the acts of the Government. As the claimant was permitted to complete the contract, no question of profits or gains prevented is involved.

Respecting the expense growing out of the purchase of additional ground, as set forth in finding vii, it is sufficient to say it is not shown that the purchase of the real estate and the improvements thereon were necessary to the construction of the Indiana, nor that any portion of said outlay was attributable to the vessel. It was incumbent upon the claimant under the contract to provide at its own expense the yard and ground, shops, machinery, tools, and appliances necessary to enable it to perform the contract.

We have, however, in finding vm, found the reasonable .value of the use of the yard, including said real estate, machinery, tools, superintendence, and general upkeep of the yard equitably chargeable to the Indiana during the period of delay, at $3,000 per month, or for the period of delay subsequent to November 10, 1894, at $54,887.67. Similar items were allowed in tlie case of Myerle (31 C. Cls. R., 105-120), while in the McKay ease (27 C. Cls. R., 422) they were disallowed for the reason, stated in the Myerle ease (page 137), that “ those cases came to this court under special acts containing provisions peculiar to them as to the measure of damáge, whereas this case must be determined by the general rules of law applicable to such cases.” So in the present case the damages must be determined by the general rules of applicable law.

In finding ix we have found the reasonable cost for the care and protection of the vessel during the period of delay, including the cleaning of the bottom, furnishing material and painting (except the last or final coat), electric lighting, keeping up steam to prevent valves from leaking, and every other expense connected therewith for the whole period of delay to be $48,000, and for the period from May 10, 1894, $36,591.78, all of which items of expense we find were reasonable and necessary to the care and protection of the vessel.

Regarding the expense for wharfage set forth in finding x we are not free from doubt, as the claimant was not a wharf-inger, and allowance has been made for the use of the yard, but as the ordinary wharfage at the port of Philadelphia for merchant vessels is found to have been 1 cent per net registered ton during the period of delay, we have, in the absence of any contract, concluded to allow that rate in the present case as reasonable. (Ex parte Easton, 95 U. S. R., 68-73.) The net registered tonnage of the Indiana, we find, was 3,203.58, and at the rate stated would be $32 a. day, or $23,360 for the whole period of delay, and for the period subsequent to May 10, 1894, $17,808, which sum includes the dredging of the basin in which to accommodate the vessel, and also the expense of watchmen — that is to say, wharfage being allowed, the claimant must be regarded as a wharfinger to that extent and therefore chargeable as a bailee for hire with ordinary care. Upon that theory we have made the allowance, in which is included the expense of watchmen.

No allowance is made for the tug service in the removal of the vessel from time to time for the reason that the Gov-eminent, being charged with continuous wharfage during the period of delay, any removal of the vessel that took place during that period must be held to have been for the benefit-of the claimant and not for the benefit of the Government.

Respecting the claim for $34,468.55 for insurance on the vessel during the whole period of delay, or for $26,272.55 for the delay subsequent to May 10, 1894, we find that to have been the reasonable amount paid out by the claimant during that period, and we therefore allow the same.

The last item of damage is $17,514.94, for expense incurred in preparing the vessel for her trial trip. This expense has no connection whatever with the delay caused by the Government in failing to furnish the armor.

In March, 1894, the claimant, assuming that the work on the vessel had reached a stage of completion entitling her to a trial trip, so notified the Secretary of the Navy, and that officer called the claimant’s attention to the tenth clause of the contract, respecting the payment of the expense therefor by the Government in case such trial should be successful, and, without otherwise approving the proposed-trial of the vessel, directed certain naval officers to inquire into such expense and see if the same was reasonable. They verified the same and found no objection to the amount thereof.

The claimant, in proposing the trial trip it did, seems to have acted upon the theory that because other vessels built by it for the United States had been sent on trial trips before their completion, therefore the Indiana, with only eight-tenths of her hull and equipment completed and half of the armor fitted, was also subject to such trial trip.

The tenth clause of the contract provides that “ when the vessel is completed and ready for delivery to the United States, as required by the drawings, plans, and specifications, she shall be subjected to a trial trip, in the open sea, under conditions prescribed or approved by the Secretary of the Navy, to test the work and fittings, machinery, including engines, boilers, and appurtenances, the equipment and the speed of the vessel, and that such vessel shall be accepted only on fulfillment of; and subject to, the conditions and agreements hereinafter set forth.” Then follows the statement of the conditions as to the working of the machinery, the speed developed and maintained, materials and workmanship of the hull, fittings, machinery, etc. And by the •eleventh clause of the contract it is provided that if.the vessel and her equipment and the fitting of her armor shall meet the requirements, and the speed of 15 knots guaranteed shall be developed and maintained, then and in such case the vessel shall be preliminarily accepted. But manifestly the vessel was not then in condition for such trial trip.

It may be that the claimant suffered loss because the Secretary directed the verification of the expenses incident to the preparation of the vessel for trial, but it was bound to know whether under the contract the vessel was in readiness for such trial trip, and therefore .it can not be held that it was misled by the action of the Secretary, even if his act in directing the verification of the expense so incurred should be regarded as giving his tacit assent to such trial.

It is well settled, both by this court and the Supreme Court, that the Government can not be held liable for the promises and acts of its officers and agents unless made and done pursuant to law. Leonard's case (18 C. Cls. R., 382); Allen's case (28 id., 141-146); Whiteside et al. v. United States (93 U. S. R., 247-257), wherein, respecting the rules that should govern in such cases, the court in the last case said:

“ Different rules prevail in respect to the .acts and declarations of public agents from those which ordinarily govern in the case of mere private agents. Principles, in the latter category, are in many cases bound by the acts and declarations of their agents, even where the act or declaration was done or made without any authority, if it appear that the act was done or declaration was made by the agent in the course of his regular employment; but the Government or public authorit}'' is not bound in such a case, unless it manifestly appears that the agent was acting within the scope of his authority, or that he had been held out as having authority to do the act, or was employed in his capacity as a public agent to do the act or make the declaration for the Government. Story’s Agency (6th ed.), sec. 307a; Lee v. Munroe, 7 Cranch, 376.”

But we need not rest the case on that theory, for while the act of the Secretary may in fact have been relied upon as bis assent to such trial trip, still the claimant can found no right thereon for a recovery in the' case, because it was bound to know that under the terms of the contract the offer of the vessel for trial at that time was premature.

The result of our investigation of the whole case is that the claimant is entitled to recover for the loss it sustained by reason of the delay of the Government to furnish the armor for the period subsequent to May 10, 1894, being for one year six months and nine days, as set forth in finding xm, the sum of $135,,560.

BaRNEy, J., had not been appointed when this case was tried, and took no part in the decision.  