
    JACOB RICHTMAN v. THE UNITED STATES.
    [No. 28788.
    Decided May 13, 1912.]
    
      On the Proofs.
    
    This suit is to recover additional expenses caused by contradictory orders oí the engineer in charge in the construction of dams and shore protection on the banks of the Mississippi.
    I.A statement made by the engineer in charge, if it conflicts with the provisions of the contract, does not bind the Government.
    II.Where a contract provided for exigencies which might require work below a designated point on the river, the engineer’s statement, which caused the contractor to assemble more materials at another point than he otherwise would have done, did not make the work additional which was required at the first point during an exigency of high water. The cases relating to the mistakes and errors of engineer officers reviewed.
    III.Where an engineer made no mistake about the work nor interfered with the contractor but merely made a statement expressive of what he believed would be required, the contractor was bound to know that such a statement would not relieve him in case exigencies should arise for which the contract provided.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On July 17, 1899, claimant entered into a contract with the United States, through Capt. Curtis McD. Townsend, Corps of Engineers, United States Army, for building dams and shore protection on the Mississippi Eiver between Lansing, Iowa, and Cassville, Wis., a true copy of which, together with the specifications thereto attached and made a part thereof, is annexed to the third amended petition and made a part thereof.
    II. The dams and shore protection required to be built by the contract were composed of rock and brush, large quantities of each of which were needed. In order to arrange for the efficient prosecution of the work and the prompt procuring and delivery at the site of the quantities of rock and brush required, it was necessary that claimant be seasonably informed of the location of the work. In the fall of 1899 claimant, by his son and agent, James J. Richtman, applied for such information to the engineer in charge of work on this contract on behalf of the United States. Said engineer thereupon informed said James J. Richtman that about all the work which would be required under the contract would be done in Crooked Slough and Harpers Slough and in the vicinity of Lynxville.
    III. Relying upon the above information, claimant thereupon made a subcontract with David Martelle and William Truax whereby they agreed to furnish and he to receive at or near Harpers Ferry the rock required under the contract in suit at a price of 45 cents per cubic yard, and a subcontract with Charles Utt whereby Utt agreed to furnish and claimant to receive the brush required under the contract in suit between Lansing, Iowa, and Johnsons Port, Iowa, which was in the vicinity of Crooked Slough.
    IV. On or about April 10, 1900, claimant received the following order :
    “ United States Engineee Oeeice,
    “UppeR Mississippi River Improvement,
    
      “ Boole Island, III., April 10,1900.
    
    “ Mr. Jacob Richtman,
    
      “Elsberry, Mo.
    
    “ Sir : You are directed to commence work at once on either your £ Burlington to Montrose ’ contract or your £ Lansing to Cassville ’ contract.
    “ Very respectfully,
    “ C. MoD. Townsend,
    
      “Major, Corps of Engineers.
    
    “A true copy:
    “ C. S. Riché,
    “ Major, Corps of Engineers.”
    In obedience to said order and in accordance with the oral directions of the engineer officer set forth in the preceding finding on April 24, 1900, claimant began work upon his Lansing to Cassville contract, now in suit, at Harpers Slough, and continued at work there until about one-half the work had been done, when, on June 16, 1900, by reason of the exigency which then existed, he was ordered by the engineer in charge to proceed, and did proceed, to the construction and repair of dams in Guttenberg Channel, distant some Similes, on which work he was kept until the contract was completed on August 25, 1900, for which he was paid the contract price, and receipted for and accepted the same without objection or protest, and presented no claim therefor until filing his petition herein January 8, 1906.
    The work upon the dams at Guttenberg Channel was more exigent than at Harpers Slough or elsewhere; in fact, so urgent was the necessity for doing the work at Guttenberg Channel that unless done immediately it threatened to be the head of navigation of the river.
    There was no one except the claimant at that time whose services were available by the Govermnent to do the work required to be done at Guttenberg Channel.
    Guttenberg Channel is situate upon the Mississippi Eiver between Lansing, Iowa, and Cassville, Wis., the terminal points of the contract.
    Y. This change necessitated the transfer to Guttenberg Channel of claimant’s entire plant and force, and the removal to that point of all the rock and brush which was to have been and was delivered at or near Harpers Ferry and between Lansing and Johnsons Port by subcontractors under the subcontracts mentioned in Finding III. If all the work had been done in Crooked Slough and Harpers Slough and in the vicinity of Lynxville, it would have been unnecessary for claimant to run his steamboat engaged in towing rock and brush from the place of delivery .thereof to the site of the work except during the daytime, or to employ more than one crew thereon. But because of the greatly increased distance which materials had to be transported from the place of delivery under the subcontracts mentioned in Finding III, it was necessary for claimant to run his steamboat day and night and to employ a double crew thereon during the time work was in progress at Guttenberg Channel. The increased expense of so doing was at the rate of $645 per month for 2 months and 10 days, or $1,505 in all.
    VI. In order efficiently to carry on the 'work required to be done by him at Guttenberg Channel, it became necessary for claimant to purchase and he did purchase rock in that vicinity at a cost of 55 cents per cubic yard. The additional cost of such rock, over and above what it would have cost at the points of delivery under the subcontract mentioned in Finding III, was $494.83.
    
      Mr. Archbald King for the claimant. Messrs. George A. and William B. King were on the brief.
    
      Mr. F. W. Collins (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Peelle, Ch. J.,

delivered the opinion of the court:

This action is brought for the recovery of additional expenses alleged to have been incurred by the claimant, because of contradictory orders of the engineer in charge for work done under a contract dated July 17, 1899, for the construction of dams and shore protection of brush and rock in the Mississippi River, between Lansing, Iowa, and Cassville, Wis.

Paragraph 3 of specifications 36, made part of the contract, provides:

“Between Lansing and Cassville. — Amount available, $38,000. Probable operations, a series of dams above Harpers Slough and repair and reinforcement of the dams and shore protections in Harpers and Crooked Sloughs. Exigencies' may call for work below Lynxville, at Valley Crossing, or in Guttenberg Channel. Bids for this section will be canvassed on the basis of one (1) yard rock to one and one-half (1J) yards brush.”

After the execution of the contract in the fall of 1899 the claimant, having other contracts for like improvements between other points on said river, was, upon inquiry therefor, informed by the engineer in charge that about all the work which would be required under the contract between Lansing and Cassville would be done in Crooked Slough and Harpers Slough. Later, by letter dated April 10, 1900 (set forth in Finding IV), the engineer directed the claimant “ To commence work at once on either your ‘ Burlington to Montrose ’ contract or your ‘ Lansing to Cassville ’ contract.” . And thereupon the claimant began work at Harpers Slough, and continued there until about one-half of the work had been done, when, in June, 1900, the engineer in charge', by reason of the exigencies which then existed, directed the claimant to proceed to the construction and repair of dams between said Lansing and Cassville at a place called Guttenberg Channel, distant 32| miles from Harpers Slough. The claimant without protest or objection proceeded to Guttenberg Channel and was kept at work there until the contract was completed, when, without protest or objection, he accepted the contract price and presented no claim for additional work until the filing of his petition in this court January 8, 1906.

The claimant’s contention is that when the officer in charge informed him'that about all the work under the contract would be done at Crooked Slough and Harpers Slough in the vicinity of Lynxville, between Lansing and Cassville, it was in effect an irrevocable election, binding on the Government.

The officer was there as the agent of the Government to direct the work under the contract. That is to say, as provided in paragraph 1 of specification 36, he was to select the localities for the work, and if exigencies called for work below Lynxville at Guttenberg Channel, as it did in this case, it was the duty of the officer, under paragraph 3 of specification 36 above quoted, to direct the claimant to proceed thither to perform the work necessary to meet such exigencies. The claimant must be presumed to have made his bid with reference to exigencies so arising. He was informed that bids would “ be canvassed on the basis of one (1) yard rock to one and one-half (1|) yards brush.”

No statement made by the engineer in charge conflicting with the provisions of the contract can be held as binding on the Government. The contract made provision for exigencies that might call for work below Lynxville, of which the claimant was advised before making his bid. While the statement of the officer doubtless caused the claimant to assemble more materials at Harpers Slough than he otherwise would have done, still it can not be said that the work done at Guttenberg Channel as the contract provided was additional.

The claimant cites the cases of O'Hare v. District of Columbia (18 C. Cls., 646); Owen v. United States (44 C. Cls., 440); Becker v. New York (170 N. Y., 219); Moore v. United States (46 C. Cls., 139); District of Columbia v. Gallaher (124 U. S., 505); and Roettinger v. United States (26 C. Cls., 391).

In the O'Hare case the engineer made a mistake in giving the grade for the excavation of a water main, and the contractor was required to take up the main and, as stated by the court, page 679, to lower the grade “ a second time.” For this extra work the claimant was held entitled to recover by this court and on appeal the judgment was affirmed without an opinion (122 U. S., 640).

In the Owen case the contractor was to furnish the materials and labor — except the brick — and erect a building. The Government delayed in furnishing the brick, and when it did furnish the same, they were so irregular in shape, color, and size as to require sorting, while other brick subsequently furnished was of such unusual kind as to require additional expense in laying. For the delay and for the extra expense caused by the Government the claimant was held entitled to recover.

In the Becher case the engineer made a mistake in giving the center line of a street, thereby causing additional work and loss to the contractor, for which he was held entitled to recover.

In the Moore case the engineer directed work to be done under a defective plan, which caused loss to the contractor and he was held entitled to recover.

In the District of Columbia case both parties put a construction upon the contract at variance with its literal meaning and the court held that, the work being done, the construction so placed upon it by both parties would prevail over the language of the contract, and in the absence of any agreement for a different price the court held that the contract price only could be recovered.

In the Boettinger case the contractor was required to complete the substructure of a dam within a given time and then the superstructure within a given time. The engineer stopped the work when the substructure was about half done, and during the following winter the claimant’s materials were washed away by a freshet; and to add to his loss the enginer changed the work so as to require the contractor to use more stone on which there was no profit, and less brush on which there was a profit. The Government was held liable.

In the present case the engineer made no mistake alpout the work, nor was the claimant delayed or interfered with in the work, and while he was told that about all the work he would be required to do under the contract would be at Harpers Slough and Crooked Slough, the claimant was bound to know that such statement would not control in case of exigencies subsequently arising provided for by the contract; and, furthermore, assuming that the claimant had the right to rely on such statement, there was still a margin of work left to be done elsewhere. (Sample v. Upton, 42 N. W. R., 54.) But the court can not construe the statement of the engineer as a guaranty in the face of the contract, which provides for a change of work within the contract as exigencies might require. On the contrary, the claimant acquiesced in the performance of the work at Guttenberg Channel without protest or objection, and thereby in effect conceded the right of the engineer in charge to direct him as he did, notwithstanding he had previously informed him that about all of the work under the contract would be done at Harpers Slough.

For these reasons we must hold that the claimant is not entitled to recover, and his petition is dismissed.

Howry, J., was not present when this case was heard and took no part in its decision.  