
    McCORD’S CASE. Charles P. Chouteau, survivor, &c., v. The United States.
    
      On the Proofs.
    
    
      A contract for the construction of a monitor provides that alterations in the plan may he ordered hy the Government. If they cause additional expense the Gov-
      
      eminent is to pay for them ; if they effect a reduction of the cost, they are to he subtracted from the contract price. The Government, without unreasonable delay, orders alterations, which necessitate extra work and delay. For the former the Government pays ; as to the latter, the cost of labor and materials rises so as to throw a loss upon the contractor. Sait is brought in his name, on his own behalf, and for the use of a party alleged to have become the equitable owner of one-third interest in the contract, before the performance. The assignment of this interest is not produced.
    
    I. There is a distinction between the assignment of a Government contract and an assignment of a claim for money duo under a contract. The former is void under the Act VHhJuly, 1863, (13 Stat. L., p. 596,) and passes no title, legal or equitable; the latter passes title to the money due, as though it were the sale of a chattel.
    II. Where suit is brought on a contract and the petition alleges that a third person became the owner of one-third interest in the contract before performance, and seeks to recover to his use, but the transfer is not produced on the trial, it will be held that the assignment related to the contract itself, and not to moneys due under it, and hence that it was void under the Act 17th July, 1862, (12 Stat, L., p. 596.)
    III. Where a contract provides that alterations may be ordered by the Government in the construction of a war-vessel, and that if they cause extra expense they shall be paid for by the Government, but that, if they effect a reduction of the cost they shall be subtracted from the contract price, it must be deemed that the right to order alterations is a privilege secured to the Government by the contract and covered by the contract-price. Therefore, where the Government exercises its privilege, without abusing it, it cannot be held liable in damages, though the alterations occasioned delay, and during the period of delay the cost of labor and materials rose, throwing a loss upon the contractor.
    
      The Reporters’ statement of the case:
    In this case the original petition was brought by Charles W. McCord, for the use of William A. Steel, and Charles P. Chou-teau, James Harrison, and Jnles Yalle.
    In February, 1873, an amendment of the petition was filed by Paul Fusz, administrator of Charles W. McCord, stating that Charles P. Chouteau, survivor of Charles P. Chouteau, James Harrison, and Jules Valle, was, or claimed to be, the equitable owner of the interest of said McCord in the claim, and by virtue of certain proceedings and a sale of such claim in bankruptcy.
    • At the hearing of the case a question was made whether the suit was prosecuted by the proper parties, and it was arranged that the petition might be amended so as to present the parties tbe counsel for tbe claimant considered proper, and on this understanding tbe ease was heard on its merits.
    Since tbe bearing, the proposed amendment has been filed. It states the death of Charles W. McCord, James Harrison, -and Jules Valle, and presents as petitioners Charles P. Chouteau, surviving partner of the firm of Chouteau, Harrison & Valle, and William A. Steel.
    The petitioners claim under a contract made on the 9 th of July, 1863, between the United States and Charles W. McCord, for the construction, at Saint Louis, in the State of Missouri, of au iron-clad steam-battery called the Etlah.
    The court found the facts to be:
    That the contract was made between the United States and Charles W. McCord.
    That the vessel specified in said contract was built and completed at Saint Louis, Missouri, in November, 1865, by the said Charles W. McCord, and has been accepted, and the contract-price therefor paid, by the United States.
    The completion of the vessel within the time specified in said contract-was prevented by changes and alterations from her original plan and its specifications made by the United States, and was thus delayed till November, 1865.
    These changes and alterations extended from July, 1863, to near the time of the completion of the vessel; and from the 15th of June, 1864, to September 19,1864, the work upon the vessel was substantially suspended, for the purpose of increasing her depth and making the other changes incident to that.
    These changes and alterations increased the size, weight, and draught of the vessel, and the amount of materials and labor required for her construction; and during the various delays above stated the prices of labor and materials increased, and skilled labor became difficult to be procured at Saint Louis, because men were drafted into military service, or left the locality to avoid being drafted.
    From these circumstances the work required and done under the original contract was enhanced in cost to the contractor $122,166 beyond the contract price, less deductions for labor and materials saved by changes and alterations, $3,882.80, leaving a balance for increased cost of work required by the contract of $118,283.20.
    
      And from tbe same circumstances tbe cost to tbe contractors of tbe extra materials and labor on tbe vessel required by tbe changes and alterations made, exclusive of special contracts paid, was $172,273.55, of wbicb $116,111 were paid, leaving a balance for extra material and labor of $56,162.55.
    Tbe gun-carriages for one Dablgren gun aud a 150-pounder gun contemplated by the original contract were, by order of the United States, changed into an arrangement of gun-carriages for 11-inch Dablgren guns, which carriages cost contractor $7,500.
    The alterations and changes from the original plan and specifications for the construction of the Etlah, made by tbe United States and hereinbefore referred to, were incident to the novelty of the undertaking, and were from time to time suggested by the experience of iron-clads under fire in tbe naval service, and they were made by the United States without unnecessary delay.
    On tbe 29th of August, 1868, Charles W. McCord and George JEL Garrett were decreed and declared bankrupts by tbe district court of the United States for the eastern district of Missouri. And on the 2Sth day of September, 1868, Leonard Wilcox was appointed their assignee in bankruptcy. And on'the 16th day of October, 1869, tbe said Leonard Wilcox, as such assignee, aud under order of said court, assigned and conveyed to Chouteau, Harrison & Valle, co-partners, the title and interest of Charles W. McCord, on tbe 15th of August, 1868, to a claim described as follows : u A certain claim against tbe United States Government for extra work performed and materials furnished to said Government by said Charles W. McCord, in tbe building and construction of the iron-clad monitor Etlah, under a contract with said Government.”
    Subsequently to said proceeding in bankruptcy, Charles W. McCord, and James Harrison, and Jules Valle died, and Charles P. Chouteau is tbe surviving partner of the said firm of Chou-teau, Harrison & V alie.
    The title of said William A. Steel individually to any interest in tbe claim sued was not shown.
    
      Mr. James B. Doolittle and Mr. A. L. Merriviaji for tbe claimants :
    On the 9th day of July, 1863, Charles W. McCord entered into a contract with John Lenthall, Chief of the Bureau of Construction and Repair, acting in the name of the Secretary of the Navy, for and on behalf of the United States, for the construction of an iron-clad steam-battery, which was to be completed and delivered at Cairo, Ill., within eight months from that date, for the agreed price of $386,000. Section 16 of said contract reads as follows: “ It is further agreed, that the parties of the second part shall have the privilege of making alterations and additions to the plans and specifications at any time during the progress of the work, as they may deem necessary and proper, and if said alterations and additions shall cause extra expeuse to the parties of the first part, they will pay for the same at fair and reasonable rates; and should said changes cause less work and expense to the parties of the first part, a corresponding-reduction to be made from the contract price; and in each case the cost of the alterations to be determined when the changes are directed to be made.” McCord commenced work under hisv<" contract immediately after the making of the same, and were it not for the various delays occasioned by the Government, would have had it completed within the period specified in the contract. Upon this point A. 0. Stimers, the general, inspector, says: “ In my opinion, if the contractor had known that he was to have completed his vessel in accordance with the contract and specifications, without any changes whatever, he could have had it done before the expiration of his contract, and I have no reason to suppose that he would not have it done.” John Birkbeck says: “In my opinion, she could and would have been finished.” It will also be noted that the contract provides that in case the vessel should be completed prior to the stipulated time the contractor should receive at the rate of $1,500 per month in addition to the agreed price, and in case of delay beyond that period, a like deduction was to be made from the contract price. The contractor, however, had hardly commenced his vessel, to which was given the name of Etlah, when the Government began to order changes in the same, and the changes so ordered were so frequent and of so material a character, that Chief Engineer Stimers wrote to McCord á letter of apology, bearing date August 31,1863, which is referred to and made part of the deposition of David Gordon Wells, the substance of which is contained in the testimony of Stimers, as follows: “ I think that to give you a clear understanding of the acts I performed, which affect these aud other claimants of a similar character, I ought to give you a narrative of my connection with the whole matter from the commencement. When I went to the Navy Department at Washington to receive my instructions for superintending, on the part of the Government, the construction of the iron-clad steamer Monitor, I found that she was being built under the direction of the Chief of the Bureau of Yards and Docks, Commodore Smith, instead of under the Chief of the Bureau of Construction, as was usual; I, therefore, received my instructions from that officer. He told me that, as this was a very new plan of vessel, it was more than 7 likely Captain Ericsson would find, during its construction, the advisability of making changes from the original plan and in watching its construction. I might also observe the advantages of making certain changes. Now he says: ‘ When you find anything of that kind, I want you to look fully into-the matter, and anything that you and Captain Ericsson can mutually agree upon you are authorized to adopt without writing to me for instructions, as you will be a much better judge whether to do it, being on the spot, and familiar with the subject.’ In the performance of my duty, I found frequent occasion to act upon this instruction; and the vessel, as completed, had a great many changes from the original, described in the specifications and drawings on which the contract was based. Afterwards, when we came to build more vessels, we found the same necessity of making changes from the original intention; partly because as ^ detailed plans were developed, we could see where we could improve matters, and partly because we had vessels in battle that would be injured in some of their weaker parts, giving us constant lessons with regard to the construction of vessels that could not be injured by shot. Just about the time the contracts were being made out for the class of vessels to which the Etlah belongs, I went, by direction of the President, to the South Atlantic squadron, which was about to make an attack on the city of Charleston, ray duty there being to describe, to the admiral and his officers, the character of the vessels of the monitor class which had been sent to his fleet; how he could best take advantage of their peculiar qualities; how they could best be repaired in case of injury, and to superintend these repairs. He made the attack ou the 7th of April, 1863; bat instead of sending his vessels into the harbor, as was expected, he kept them going around in a circle between the two forts, Moultrie and Sumter, until they were bruised in a great many places, and a great many parts were struck with heavy shot, that had not been touched before in that class of vessels. Weaknesses that could be remedied by changes of construction were developed in many parts in consequence of this action; and when I returned to Washington the matter was discussed at the Department as to whether we had better build our vessels in strict accordance with the letter of the contracts which we were giving out, without any change whatever, or had better take advantage of every such fight and make improvements as we went along. It was decided that we should make improve- ✓ ments as we went along, although we fully appreciated that it would delay their completion and add to their cost. Assistant Secretary Fox made the remark that he thought following this course would probably entail an extra cost of a million dollars for each battle where the monitors were engaged. Well, it was decided that that course should be followed. The contracts for the light-draught monitors, of which the Etlah was one, had already been drawn, specifications, general drawings, &c., of the original plans; but we went immediately to work to make changes on them, in accordance with what I have already explained as the policy to be pursued. You will understand, therefore, why it was that I should send constant instructions to Mr. McCord, directing him to make his vessel different from what he had contracted to do; why I sent him drawings that differed from those specified in his contract. You will find, too, that these might be very material, as they certainly were. The acts, therefore, which I performed, which affected, Mr, McOord and affect this case, were to direct him to make a different vessel from the one he contracted to doP
    
    The case may be stated in few words. The contract is clear in its terms; nothing is left to implication. The contractor agreed to build and deliver at Cairo, Ill., a vessel of certain dimensions, quality, and materials, within a specified time. The Government agreed to pay for it a certain sum of money; but it reserved control of the construction and the right to order changes and additions, and in express terms agreed to pay to the contractor all extra expense by reason of such changes. The Government expressly promised to do what the 
      J law would have implied if the contract were silent. The power thus reserved was exercised by the Government to the fullest extent. It directed frequent and material changes and additions. Not a step could be taken without plans and drawings by the officers of the Government; and they were so changed from time to time that a new vessel was demanded at the hands of the contractor; and they were so delayed and withheld, that less than one-fourth of the vessel was, or by any possibility could be, completed within the contract-time. Beyond question, but for the act of the Government, it would have been completed within that time; and it is equally certain that the Government, by its own acts, in making the changes, delays, and additions, madeit impossible to complete the work and deliver the vessel until late in the year 1865. By every principle known to judicial tribunals, the increased expense, by reason of the delay, for which the contractor was in no way responsible, which he had no power to prevent, and for which the Government was wholly responsible, is a just and legal claim against the United States, which the court will not fail to recognize and will lend its power to enforce.
    As to the increase of the cos t of labor and material upon the main body of the vessel, beyond their price during the contract-time, incurred by the contractor, in consequence of the delays occasioned by the Government or its officers, whether by positive order or by their neglect, the rule of damages is fixed by contract, which expressly provides for the payment of such extra expense. During the contract-time the contractor assumed the risk of a rise of prices; but on all of the vessels constructed after that time expired the risk of such rise was assumed by the Government, by its own act of hindering its completion, and thereby subjecting the contractor to extra cost. But, in the absence of such express provision, the general principles governing contracts would establish the same rule of damages. “ If, by the fault of the defendant,” says the United States'Supreme Oourt, in the case of McDermott v. Jones, (2 Wall., p. 1,) uthe cost of the work and material has been increased, in so far the jury will be warranted in departing from the contract-prices.” (See also Adams v. United States, 1 O. Gis. R., p. 106; Merrill v. Ithica & Oswego li. Ii. Company, 15 Wend., p. 556; 2 Smith’s Lead. Oases, 6th Am. ed., § 2, p. 48; Ohitty on Contracts, p. 612.)
    
      
      Mr. Assistant Attorney-General Goforth and Mr. Alexander Johnston for tbe defendants:
    As to the first item claimed, there was a settlement. Payment for extra work was made as the work progressed; and when the vessel was completed, and everything done, a Ufull and final payment” was made on all extras, which payment was uin full for all claims and demands” for work done on the vessel. The payments for expenses incurred by changes and alterations seem to have been made according to contract; and so far as appears in the case, such payments were satisfactory to the contractor. As to the second item, the same remark will apply. The contractor was required, by the terms of his contract, to furnish gun-carriages, and did so; but, for some reason which does not appear in the case, the sum of $3,400 extra was paid on this account. So far from anything being due the contractor for gun-carriages, nothing is shown which would entitle him to what was paid.
    As to the third item. This is made up from what is alleged to have been the appreciation of material and labor after the time fixed by the contract for the completion of the vessel. It, is a claim for damages for breach of contract by the United States, the breach being twofold: First, by unreasonable delays, in furnishing plans and specifications; and, second, by making, such changes in the plans as prevented the contractor from doing the contract-work for a long time aftr the expiration of the time within which it was required to be done. To prove the amount of these damages two witnesses are called. One of them (Birkbeck) makes the amount $122,166, by calculating a certain per centum of increase in cost of material and labor during the building of the battery upon the contract-price} the the other (Wells) makes it $125,000, by comparing the average-cost of material and labor during the eight months within which the vessel was to be built with the average cost of the same after the expiration of the eight months. The bases upon which these witnesses calculate the per centum of increase are not divulged.
    To this claim we answer :
    1st. It does not appear that any delay was caused by the action of the officers of the Government at any time prior to the expiration of the eight months within which the vessel was. to be completed. The changes, alterations, or delays prior to that time were not of such a character as to materially delay or interfere with the construction of the vessel; and
    2d. The contractor was paid the contract-price in full for building the vessel, and received the money as in full. This will appear by his several receipts, to be found in the report of the Treasury Department iu this case. If settlement has not been made for the building of this vessel, it would seem impossible for the Government to have a final settlement for anything.
   Loring, J.,

delivered the opinion of the court:

The facts found and the petition present two principal claims:

1st. For extra work; that is, for labor and materials furnished for work not required by the original contract, but by the alterations of it made by the United States.

2d. For the increase in the price of labor and materials for work required by the contract, the cost of which was enhanced during the delay consequent on the alterations made.

And the petitioners claim on different grounds. William A. Steel claims on an assignment made to him by Charles W. McCord, after the execution and before the performance of the original contract for the construction of the Etlah.

Charles P. Chouteau claims as surviving partner of Chouteau, Harrison & Yalle, on an assignment made to that firm by the assignee in bankruptcy of Charles W. McCord, of all his title and interest, on the 15th August, 1868. The rights of the two petitioners must, therefore, be considered separately.

The assignment made in the proceedings in bankruptcy to Chouteau, Harrison & Yalle, under which Charles P. Chou-teau claims as the surviving partner of that firm, was of the claim first stated, and of that only. The assignment states it in these words: “A certain claim against the United States Government for extra work performed and material furnished to said Government by said Charles W. McCord in the building and construction of the iron-clad monitor Etlah, under a contract with said Government.” Thus the claim assigned by the proceedings in bankruptcy was the claim for extras only; and that the parties understood this at the time is proved by the fact that, in the original petition filed by George W. McCord on the ,25th October, 1869, for the use of Chouteau, Harrison & Valle, no other claim was made than that for extras.

Then the assignment in bankruptcy expressly conveyed the title and'interest which Charles W. McCord had in such claim for extras on the 15th of August, 1868. And the fact is found that Charles W. McGprd was paid for these extras, in all, $210,991, and that of t<is sum the last payment, of $31,111, was " made on the 11th of May, 1866, and that then Charles W. McCord receipted for the extras expressly in full.

‘And there is nothing in the evidence to suggest that Charles W. McCord then claimed more, or gave the receipt in full under duress or pressure of any kiud, or in any ignorance or mistake of the facts, and the words of the receipt informed him fully of its nature. Such a receipt, so given, thereupon discharged the debt it specified, for it declared that intention of the parties. And as the claim for extras was thus discharged before the assignment in bankruptcy, Chouteau, Harrison & Valle took nothing thereby, and Chouteau, as surviving partner of that firm, is entitled to nothing here.

All that remains to be considered are the claims of William A. Steel, and he claims an interest*of one-third in all the claims sued, under an assignment made to him by Charles W. McCord after the execution and before the performance of the contract for the construction of the Etlah.

But Steel’s claim as to the extras is barred by the final settlement for them made between Charles W. McCord and the United States, on the 11th May, 1866, by the payment of $31,111, and the receipt in full stated above, because that settlement was made without notice or knowledge on the part of the United States of the assignment claimed by Steel.

And this disposes of the claim for extras altogether.

As to the other items of claim, Steel’s title is rested on the averment made in the original petition by Charles McCord. After stating the contract for the construction of the Etlah, the petition proceeds as follows: a Petitioner further states that, after such contract was executed, he made a subcontract for the construction of said steam-battery with the firm of McCord & Co. and William A. Steel, in which subcontract the said McCord & Go. had an interest of two-thirds and the said Steel an interest of one-third in the original contract.” This is an averment that Charles McCord, by the subcontract mentioned, assigned bis contract for tbe construction of tbe Etlab to McCord & Co. and William A. Steel, in tbe proportions of two-tbirdsto tbe former and of one-third to the latter; and Steel’s title is more distinctly stated in the amendment to the original petition, filed by tbe present petitioners since tbe hearing of tbe case. In that amendment the words of. the present petitioner are as follows: “They state and aver the-fact to be, as was alleged in the original petition of said Charles W. McCord, filed in this case in his life-time, that the said William A. Steel, during the performance of said contract to build said steam-battery, and before the bankruptcy of said Charles W. McCord, became an equitable owner of the one-third interest-in said contract with said Charles W. McCord, and was, and still is, and ever has been, the equitable owner of the one-third part of the' said claim against the United States herein set out.” This extract distinguishes between the contract with Charles W. McCord “to build said steam-battery” and the claim against the United States for money due for the performance of that contract; audit founds Steel’s claim to a proportion of the money due on the assignment to him of one-third of the contract. And in the same amendment the petitioners state distinctly Steel’s ownership in the contract for the construction of the Etlah, as follows : “ That by the terms of said contract said steam-battery was to be completed on or before the 24th day of February, 1864; that after the execution thereof your petitioner, William Steel, became the owner of one-third interest in said contract.”

Upon averments like these, which are the petitioner’s own statement of his title,’ it must necessarily be held that the assignment alleged was of the contract for the construction of the Etlah, as distinguished from an assignment of the claim ’ for the money due on the performance of the contract.

If this alleged assignment of the original contract for the construction of the Etlah were proved, then, under the Act 17th July, 1862, (12 Stat. L., p. 596,) which prohibits the assignment of contracts made with the United States, the assignment would be utterly void, and convey no title or interest to the as-signee ; and, moreover, by the other provisions of the statute, the contract assigned would be anulled as against the United States, so that it could not be a ground of action here for any one.

In the jurisdiction of this court there is a wide difference between the assignment of a contract made with the United States and an assignment of the claim for the money due from them for the performance of the contract. For the former, being prohibited by statute, is illegal, and the assignment is a mere nullity, and passes no title, either legal or equitable, to the assignee, while the assignment of a claim for money due from the United states is lawful, and provided for by the statutes constructing this court; and, therefore, here the title of an assignee of a claim for money due from the United States is not merely equitable, but, by force of those statutes, is strictly a legal title, and as much so as the title of the vendee of a chattel; for the statutes make such claim for money due as transferable as a chattel, and, therefore, the assignee of such a claim may sue it here in his own name.

But in this case, whether the assignment was of the contract itself or of the claim for the money due for the performance of the contract, it is denied by the defendants, and put in issue by the general traverse “ of each and every allegation” of the petitioners, and it is not proved. The averment is that the assignment.was made in a subcontract for the construction of the Etlah. And where a contract is alleged it must be proved, because its effect is a matter for legal construction, and not for averment by parties. And in this case the subcontract, if proved, might show that the assignment was of the claim for the money sued for, which the parties must have intended, and that the averment in the petition that the assignment was of the contract itself was a mere mistake in statement by the client in the case. But the subcontract, by which it is averred the. assignment was made, if in writing, is not produced, and whether it was in writing or by parol, not a witness testifies to it, and there is nothing in the evidence from which such assignment or any contract with Steel individually can be inferred.

All that is shown by the evidence is that the hull of the Etlah was built at the ship-yard of the firm of McCord, Steel & Bastor, and that sometimes the clerk and sometimes Mr. Steel paid the workmen employed there; that iron-work was done at McCord & Co.’s foundery and machine-shop, and other work elsewhere; that Chouteau,Harrison & Yalle furnished to McCord & Co. iron for the Etlah, and that Charles W. McCord, and sometimes Mr. Steel, ordered iron; that iron was at first charged to the firm of McCord, Sanger & Steel, and then to McCord & Co., who paid Chouteau, Harrison & Yalle $109,000 to $110,000 for iron, excepting $12,725.48, for which McCord & Go. gave their notes.

These dealings with the various firms mentioned may show that they were resorted to in the construction of the Etlah, as were other persons at other places, or this evidence may tend to show subcontracts with those firms for the construction of the Etlah; but it does not show or tend to show any assignment to or contract with William A. Steel individually, or that he individually furnished or paid for labor or materials for the Etlah, or has any ground of claim against the United States.

The other items of claim, viz, for gun-carriages, insurance, protection of the Etlah against ice-gorge, <&c., were not proved at all.

As to the claim for guu-carriages, $7,500, the contract provided for two gun-carriages, which were not furnished; but two others were substituted for them, which cost $7,500; and as extras Charles W. McCord could only claim that arnouut, less the cost of the gun-carriages contracted for and not furnished. He received the full contract price, and over and above that, for two gun-carriages, $3,400, and he receipted for this as the amount due, “ less the gun-carriages contracted for; ” and there was nothing to show that what he received for gun-carriages in the contract price and the $3,400, taken together, left anything due.

As to the claim for extra insurance, $2,400, for protection of the ship against ice-gorge, &c., $2,812.88. These related to the detention of the vessel at Saint Louis after her completion. The fact of the detention was shown, but its duration was not shown, and no evidence whatever was given of the expenditures made or incurred. The court, therefore, had no means of making any allowance for these items, and it was not to supply evidence which is or ought to be in the possession of the claimants.

But we think that in this case, apart from the considerations previously stated, no ground of action against the United States is shown, for they are not shown to have been in default.

The contract for the construction of the Etlah provided that alterations might be made from the original specifications, and that, if they caused extra expense, that should be paid for ; and if they effected a reduction of the cost, that should be subtracted from the contract price.

This privilege of the United States to make alterations on the terms stated being expressly provided for in the contract, the contract price related to that privilege as much as to any other provision in the contract, and therefore it must be taken as included in that price, and paid for in it. And the United States cannot be held liable in damages for exercising a privilege they had purchased, but only for abusing it; and the fact ^ is found that they did not abuse it, but made the alterations shown without unreasonable delay. And this has reference, as the parties must have had, to the nature of the undertaking.

When the contract for the construction of the Etlah was made, the specifications were doubtless as perfect as the knowledge of the subject then permitted, and it was then uncertain whether any alterations would be made, and therefore the time fixed by the contract for its performance was the time required for the construction of such a vessel as was then designed; and the evidence is that the time fixed was sufficient for that purpose. But an iron-clad steam-battery was then a novelty in . naval construction, for the battle of the monitors in Hampton Koads, in the previous summer, had made, as has been truly said, as sudden and complete a revolution in naval warfare as was made by the introduction of gunpowder; and this revolu- / tion required changes in almost every particular of that multifarious combination without parallel, which now makes a ship of war and fits her to struggle with the elements and with adversaries; and the effect of any change could be but imperfectly ascertained beforehand by science and forethought, and the evidence shows that changes from plans elaborated by naval engineers and constructors were continually demanded by the experiences of iron-clads under fire in the service; and this accounts for the changes shown, that, according to the testimony, resulted in a different vessel from that originally designed.

And it was these changes which produced the extras which make the first claim considered, and for which Charles W. McCord in his life-time receipted in full, and for which he re-ceivecl altogether $210,991 over and above the contract price of $386,000, which was also paid him in full.

And as to the second claim, of an addition to the contract price, it is for labor and materials required by the contract and furnished under it; and it is rested solely on the ground that the prices of these rose during the delays experienced from the changes in the currency and political events, which increased the prices of everything. But the United States, as a contractor, not being in fault for the delays, is no more liable for such. increase of prices than any individual contractor would be.

On the whole case the judgment of the court is that the petition be dismissed.

Nott, J., did not sit in this case, and took no part in the decision.  