
    THE BOWERS HYDRAULIC DREDGING CO. v. THE UNITED STATES.
    [No. 22895.
    Decided March 12, 1906.]
    
      On the Proofs.
    
    Tlie claimant is to be paid by the cubic yard for dredging. The quantity excavated is to be determined by measurements made by the engineer in charge before the work begins and after it is completed. “ WorJo done outside of the designated lines of ■excavation or below the specified depth will not be paid for.” The engineer in making measurements treats the channel as a prism with vertical sides and horizontal bottom and the vertical sides as the “ designated lines of excavation,” and refuses to allow for “ slope measurements.” The contractor protests. The decision is made “ in conformity ivith the instructions received from the Ohief of Engineers.”
    
    I.A provision in a contract that the decision of the engineer in charge is to be final entitles the contractor to the decision of the engineer, but does not inhibit him from seeking information from his superior officer upon which to base his decision, provided, only, that the decision rendered by him is his own. And when the facts do not indicate that the engineer’s decision was not his own the court must regard it as final.
    II.When the contract provides that the material removed by dredging “ will be paid for by the cubic yard, measured in place by sivrveys made before dredging is commenced and after it is completed,” it prescribes the method by which the quantity excavated is to be determined.
    III. Under such a. contract material falling within the designated lines during the work from the sides of the excavation can not be measured in place by the surveys prescribed by the contract and consequently is not to be paid for.
    IV. Where the contract prescribed the basis and method of measurement, another method, though customary, can not be the basis of recovery; and expert testimony is not admissible to explain language which needs no explanation.
    V.When the advertisement to the contractors says that the bidders shall be expected to examine the drawings and to make estimates of quantities for themselves, it is their duty to do so before making their bids, and a misunderstanding growing out of their neglect to do so can not prejudice the defendants.
    
      
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The petitioner is a corporation existing under the laws of the State of New Jersey, and is a citizen of that State.
    II. On September 18, 1899, the United States engineer office at Wilmington, Del., through and by William F. Smith, United States agent, invited proposals for dredging and .removing about 900,000 cubic yards of material from the Christiana River and Wilmington Harbor, Delaware.
    In the advertisement inviting said proposal it was,stated that “ specifications, blank form, and all available information will be furnished on application to this office.”
    Specifications for said dredging work were prepared and furnished for the inspection and examination of bidders. In said specifications it was provided as follows:
    “ 32. It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim will be made against the United States on. account of any excess or deficiency, absolute or relative, in the same. Bidders are expected to examine' the . drawings, and are invited to make the estimate of quantities for themselves. It is not expected that the actual quantities will vary more than 10 per centum from the estimates.
    “ 37. The project, for the completion of which contracts are authorized in the law above quoted, requires the dredging. of the Christiana River to a depth of 21 feet at mean low water from the 21-foot curve in the Delaware River to the upper line of the pulp works; thence to the draw pier of the Shellpot branch, No. 4, of the P., W. & B. R. R., so as to give a depth which gradually diminishes to 10 feet at mean low water at the latter-named place and the removal of shoals having less than seven (7) feet of water over them; thence to Newport — the width to be 250 feet to the mouth of the Brandywine, 200 feet thence to the upper line of the pulp works, and 100 feet above. Work is now in progress under contracts for dredging to a depth of 18 feet up to the pulp works, the width to be made being 200 feet, ancDfor all above-described dredging above the pulp works. The Work required under these specifications is the dredging that remains to complete the project additional to that done or to be done under the contracts above referred to until their termination or completion. It is estimated that about 900,000 cubic yards will have to be removed.
    
      “ 41. No guarantee is given as to the nature of the bottom, but as far as it is known it is sand, mud, clay, and gravel. Bidders are requested to satisfy themselves upon this point and to examine all other local conditions, as it will be assumed that their bids are based upon personal information. No extra allowance will be made for excavating material different from that herein described.
    “ 43. The amount of material rerpoved will be paid for by the cubic yard measured in place, and shall be determined by surveys made before dredging is commenced and after it is completed. All surveys and measurements are to be made under the direction of the engineer in charge by persons employed by him for that purpose. The decision of the engineer in charge as to the amount of material excavated and removed, as well as to its location and deposit, shall be final and without appeal on the part of the contractor.
    “44. Payments will be allowed for actual dredging to twenty-one (21) feet below mean low-water level. Work done outside of the designated lines of excavation or below the specified depth will not be paid for, and any material deposited otherwise than specified and agreed upon must be removed by the contractor at his own expense.
    “ 45. The location of the work shall be plainly located by stakes and ranges. The level of mean low water as established by the engineer in ’charge shall not be changed during the progress of the work. The contractor shall be required to supply the lumber for the necessary stakes and ranges, and shall at all times when called upon furnish men and boats to set them and keep them set under the direction of the inspector, the expense thereof to be included in the contract price for the dredging.” .
    A channel was being excavated in said .river by the New York Dredging Company under a contract entered into prior to said advertisement. There were at this time certain maps or drawings in the office of the United States engineer, in addition to the sj)ecifications heretofore referred to, which showed the condition of the channel prior to any work being done thereon by the New York Dredging Company; also showing the progress of the work done by the New York Dredging Company; also showing the location of the proposed channel to which said advertisement referred. The drawing showing the proposed channel indicated the shore lines of said river by black irregular lines. The location and limits of the proposed channel were indicated by hatched parallel black lines. The depth of water was indicated by feet and tenths. So far as the- New York Dredging Company had proceeded with its contract, the condition in which the channel was left by it was shown on said drawings by cross sections, indicated by transverse irregular black lines.
    The president of the claimant corporation received from the Government blank proposals and a copy of the specifications heretofore referred to some time prior to the date on which the bids were opened. Said president also visited the office of the United States engineer at Wilmington, Del., prior to the opening of the bids, and had an interview with the assistant engineer in charge and with the United States agent. He also acknowledges himself familiar with the specifications, having examined the work under the specifications for the work being done by the New York Dredging Company, which specifications were identical with the specifications in the case at bar so far as relates to the matters in dispute. It does not appear that said president actually examined any or all of the maps then in the office of said United States engineer, but it does appear, and the court finds as a fact, that said maps and drawings were in said office, subject to inspection and examination by prospective bidders or other interested parties. Thereafter, to wit, on the 18th day of October, 1899, claimant submitted a bid for said work.
    III. On the 20th day of November, 1899, claimant entered into a contract, in writing, with the United States, through Gen. William F. Smith, United States agent, for the execution of the dredging operations, in conformity with the advertisements and specifications referred to in the preceding finding. The contract, among other things, contained the following provision:
    “ That the said Bowers Hydraulic Dredging Company shall furnish all labor, machinery, and appliances necessary or proper for the faithful execution of this contract, and shall do the work called for by, and in all respects carry out and comply with, the said specifications for dredging in Wilmington Harbor and Christiana Hi ver, Delaware; that it shall dredge and remove at the rate of not less than four thousand (4,000) cubic yards daily, and that the dredged material shall be properly and securely placed above high water, behind banks along the line of the Christiana River, in accordance with its proposal, dated October 18, 1899, and that in consideration thereof it shall recerfe 10-g- cents for each and every cubic yard of material dredged, measured in place, the said price including removal and redeposit.”
    IV. On the 21st day of June, 1901, by a contract in writing entered into by the petitioner and Lieut. Col. C. W. Raymond, Corps of Engineers, U. S. Army, acting for and on behalf of the United States, the aforesaid contract of November 20, 1899, was modified as follows: The quantity of material to be excavated, removed, and deposited should be about 1,300,000 cubic yards, measured in place, instead of about 900,000 cubic yards measured in place, as provided for in the contract aforesaid; that the petitioner should receive in full payment for all additional work done under the supplemental agreement, and subject to all the conditions and requirements of the specifications attached to and forming a part of the original contract, as above modified, the sum of ten and seven-eighths cents (.10£) per cubic yard, measured in place. The additional work provided for by this supplemental agreement should be completed on or before September 30, 1901.
    V. Petitioner entered upon the performance of the Contracts aforesaid in .accordance with their provisions- and faithfully performed the same to the satisfaction and acceptance of the United States, but in connection with such performance thereof, differences arose between the petitioner and the engineer in charge of the work with relation to the meaning of the words “ measured in place ” used in the contracts and specifications, and as to whether or not the specifications and contracts included and gave the petitioner the right to demand pay for material dredged, which was derived from the sides or slopes of the excavated channel. Before commencing the work the petitioner addressed a letter to the engineer in charge, Gen. William F. Smith, asking what construction would be placed on the specifications referring to the quantity of material to be paid for. General Smith forwarded this request to the Chief of the Corps of Engineers, U. S. Army, asked for instructions, and that officer instructed him, with the approval of the Secretary of War, to pay only for the material included within the designated line of excavation, and not for such material as should be drawn into the cut as a result of the dredging.
    Thereupon and pursuant to such instructions, Gen. William F. Smith, the engineer in charge of the work, wrote to the petitioner the following letter :
    “ ÜNixed States ENGINEER Oeeice,
    
      Adams Street, Wilmington, Del., April $3,1900.
    
    “ FraNK C. Somers,
    
      í¡,Prest. Bovjers Hydraulic Dredging Go.,
    
    
      1Hamden, N. J.
    
    “ Sir : In reply to your communication of the 17th inst. asking what construction will be placed upon that part of the specifications attached to your contract which refers to the .quantity of material to be paid for, you áre respectfully informed that payment will be made for the quantity _ of material removed within the designated lines of excavation as determined by measurements before and after the dredge, and that such measurement does not include material which ■ comes in from the sides during the progress of dredging.
    
      “ I deem it proper to add that this is in conformity with the instructions received from the Chief of Engineers on the subject.
    “ Very respectfully, Wm. F. Smith,
    
      “United States Agent P
    
    To this letter the petitioner replied at length in a letter to Gen. William F. Smith, dated May 4, 1900, which acknowledged the receipt of his letter, and then said:
    “ We desire to state that such a construction of the contract was not conveyed to us through the specifications for the work, or through any information obtained from jmur office prior to the submission of our proposal of September 18, 1899, or through any source of information previous to our signing the contract for the work herein referred to. But we would further state your construction of the specifications only came to us through the recent proceedings and action taken by your office in the matter of the claims of the New York Dredging Company upon the same issue as that which has been raised by us. _
    _ “ We further desire at this time to place on record our protest against the construction which has been given by your letter of April 23,1900, to that part of the specifications referring to the quantity of material which is to be paid for, and to further state that the act of our entering upon and prosecuting the work to be done under our contract shall not be construed as an acceptance on our part of the interpretation of the specifications which is given by your letter herein referred to. Neither shall such acts on our part in any manner operate to the prejudice of such proper claims as we may hereafter make in this connection.”
    Thereafter, and on the occasion of the receipt of each payment made by the Government, the petitioner in returning the receipted voucher wrote a letter placing on record its formal protest against the exclusion from the estimates of materials derived from the proper excavation of the side slopes of the channel, stating that the receipt by the petitioner for the amount of work covered by the vouchers being returned, or others of like tenor, should not be considered as an acknowledgment on its part of the propriety and equity of excluding material from the slopes of the channels under that or future estimates; and saying that such receipts should be without prejudice to its claims in the matter, as set forth in its letter of May 4, 1900, aforesaid. Such written protests were made so long as payments were made and on each occasion thereof.
    The United States did not pay the claimant the contract price aforesaid, or any other sum, for the execution, removal, and deposit of any material whatever which came into the rectangular prism from outside the vertical lines thereof, but has steadfastly refused, although demand has often been made therefor, to pay anything for material excavated from outside the vertical lines of the rectangular prism or cut, or for material falling or slipping into said rectangular prism from outside said vertical lines. No other action than this has been taken on this claim in the Departments or in the Congress of the United States.
    VI. The amount of material that fell or slid from the sides or slopes.of the vertical walls in front of the dredge and that Avas removed thereby along with the excavated material within the designated lines for dredging as pro Added by the contract, was more than 30,000 cubic yards, which, at the contract price of 10$ cents per cubic yard, would amount to over $3,000.
    VII. Petitioner is the sole owner of the claim, and no other corporation, person, or persons are interested therein, and no assignment or transfer of the claim, or any part thereof, or interest therein, has been made.
    
      Mr. Louis T. Michener, for the claimant.
    
      Messrs. Dudley c& Michener were on the brief:
    It was competent for the claimant to prove the trade meaning of the words “ measured in place ” by the evidence of persons who understood their proper meaning. (1 Green-leaf on Evidence, 14th ed., sec. 280, and numerous cases cited in the notes.)
    It is well settled that if a contract refers to principles of science or art, or uses the technical phraseology of some occupation or common words in a technical sense, their exact meaning may be shown by the testimony of experts, persons possessing the peculiar knowledge and skill requisite for the interpretation of the contract. (2 Parsons on Contracts, 7th eel., 555, 556, and cases .cited.)
    For instance, experts may testify as to the technical meaning of the words “on margin.” (Hatch v. Douglas, 48 Conn., 116.) The phrase “ actual stone measured in the wall ” has been held to have no necessary legal signification, and that therefore parol evidence of its trade meaning was admissible. (Brenneman v. Bush (Tex.), 30 S. W. Kep., 699.)
    In a contract for masonry at a specified price per foot, “ the face of the work that shows to be measured and none else,” evidence was admitted to show in what sense the words were used and understood in the trade. (Martin v. Thresher, 40 Vt., 461.)
    Under a contract to do mason work the contractor may introduce experts in the trade to show that mason work does not include “ plastering and whitewashing.” (Highton v. Dessau, 19 N. Y. Supp., 395; Oassidy v. Fonthan, 14 N. Y. Supp., 151.)
    In a contract to deliver marble “ furnished and ready for setting ” the meaning of these worcls as used by marble cutters was proved by witnesses. (Myers v. TibbaTls (Cal.), 13 Pac. Kep., 695.)
    
      The words “ grading, excavating, and filling ” have been held ambiguous as used in a contract to make a street grading, and evidence was admitted to show their meaning. (Atlanta v. Schmeltzer (Ga.), 10 S. E. Rep., 543.)
    Evidence has been admitted to show what deduction shall be made for hollow and pecky logs in measurement of inch board measure (Destrehan v. Louisiana Cyprus Lumber Company (La.), 13 So. Rep., 230) ; and it was held in the same case that evidence was admissible to show how to measure a log for its board measure, whether by its average diameter or by taking the diameter of the smaller end.
    It has been held admissible to introduce evidence to show what “ timber 12 inches heart and up ” includes. (McKenzie v. Wimberly (Ala.), 5 So. Rep., 465.)
    As a general rule, the judge is to interpret the meaning of the contract; but the rule is frequently departed from when ambiguity ^ exists or the contract relates to science or mechanical arts. In such cases it is common and prudent to admit the opinions of experts to explain the contract. The opinions of. witnesses who are familiar with such work and in the habit of making and executing such contracts are almost indispensable to assist the court in the proper construction of the contract. (Reynolds v. Jordon, 6 Cal., 108.)
    If the contract has relation to a trade or business of a technical character and is expressed in words having a technical or peculiar sense in such trade or business, resort must be had to the testimony of experts or those acquainted with the particular art or business to which the words relate. (Rdilroad Company v. Rust, 19 Fed. Rep., 239.)
    It is clear, therefore, that it was competent for the claimant to prove the technical or trade meaning of the words “ measured in place.”
    The surveys and measurements were to be made under the direction of the engineer in charge. No other officer had anything to do with such questions, matters, or official acts. (Spec. 43, p. 72.)
    This question arose in McLaughlin c& Co. v. United States .(34 C. Cls., 150, 197), where it was held that the architect could 'not order changes unless an agreement setting forth the reasons and stating the quantities and prices was first approved by the Secretary of the Navy. Extra work was done on the order of a subordinate who had no authority under the contract to give the order. The court held that there could be no recovery for the value of such extra work.
    We submit that the principle of King's case is conclusive of the case at bar.
    The power vested in the engineer in charge by the contract was of such a character that he could not delegate it to anyone else, neither could it be assumed by anyone else, no matter how high his position, nor could it be discharged by a subordinate. It was the decision of the engineer in charge which was contracted for, not his obedience to the orders of a superior officer. The parties contracted for the decision, and for the performance of every duty which might be essential to the rendition of the decision by the officer who had charge of the work, one who could make himself thoroughly familiar with all the conditions and facts. It is easy to see why the decision of an officer of that kind would be preferable to the decisions or orders of an officer at a distance whose time and mind were fully occupied with a thousand official cares. At any rate, it was written in the contract that the engineer in charge should make this decision, and that a decision made by him, within ■ the scope of 'the contract, should be final and conclusive upon the contractor.
    But to make such decision binding, it must prooeed upon the right interpretation of the contract and include every factor to which the contractor might be entitled.
    If the engineer officer proceeded upon a wrong interpretation of the contract, or excluded from his calculations a factor of which the contractor was entitled to the benefit, the court will give him relief, notwithstanding the provision that the decision of the engineer officer shall be final.
    This proposition is thoroughly sustained by the following authorities: Robertson v. Frank Brothers Co., 132 U. S., 17; Lewis v. Chicago, eto., R. R., 49 Fed. Hep., 708q Alton R. R. Go. v. Northoott, 15 Ill., 49; Starkey v. De Groff, 22 Minn., 431; M. & G. R. R. Co. v. Veedor c& Co., 17 Ohio, 385; McAvoy v. Long, 13 Ill., 147.
    
      In the case at bar the engineer in charge, acting under the instructions of his superior officers, the Chief of the Corps of Engineers and the Secretary of War, interpreted the con- - tract so as to exclude payment for the material that came into the cut from the slopes, despite the fact that the understanding in the trade made it obligatory upon the Government to pay therefor. The Secretary and Chief of the Corps of Engineers seem to have been of the opinion that the engineer in charge, under their directions, had paramount authority over the contract and the work to be done under it, and that everything had to be clone exactly as he required. They erred.
    In the case of Fontana v. Bobbins (31 Washington Law Reporter, 487) the architect had the same view of his powers. He testified that he had the usual authority of the architect and was supposed to have charge of the work; to direct the contractors when to begin and how to do tlieir work; the order in which they should do it, and when to start or stop. In passing on the question involved, Chief Justice Alvey, of the Court of Appeals of the District of Columbia, said:
    “ The general or usual powers of an architect are not, by any means, of an unlimited ’ character. Building contracts generally make the architect the agent of the owner in the matter of deciding whether the work done is according to the requirements of the drawings and specifications. But, apart from an agreement to that effect, an architect is not the general agent of the owner, and has no power to change lilans of the work, and especially not to the detriment of the contractor. He can not change the terms of the contract, and either omit or insert provisions that the parties have not agreed to, unless expressly authorized by the parties. The terms of the contract, that the contractor, under the direction and to the satisfaction of the architects, will provide all the materials and perform all the work mentioned in the specifications and drawings made by the architects, and. made parts of the contract, only mean such supervision and direction, looking to the execution and completion of the work according to plan and specifications, as may be proper to be given to effect that end. Such provision makes it the duty of the architect to see that the contract is complied with, not violated. The authorities in support of this proposition are clear and numerous. (Levorone v. Arando, 61 Ñ. E. Hep., 46 (Mass.); Acllard v. Muldoon, 45 Ill., 194; Burke v. City of Kannas, 34 Mo. App., 510; McIntosh v. Hastings, 156 Mass., 344; Stewart v. Cambridge, 125 Mass., 209; Glacius v. Black, 50 N. Y., 145. See cases collected in 2 vol. Am. & Eng. Enc. of Law (2 ed.), p. 820.)”
    The cases we have cited are in harmony with the well-established rule that, in performing the functions conferred by this stipulation, the engineer must have strict regard to the terms of the contract. His duties are to be-ascertained from it, and his powers are limited to what it confers, or may be clearly implied from its terms. He can not go beyond it nor behind it. He must act strictly within its terms. His powers are not to be enlarged by implication beyond the plain words used. (Launman v, Younge, 13 Pa. St., 306; Sawtelle v. Howard (Mich.), 62 N. W. Rep., 156; Williams v. Chicago Ry. Co., 112 Mo., 466.)
    In the case at bar the engineer went beyond the contract and asked his superior officers to instruct him how to decide, although the sole power of decision was vested in him by the terms of a contract and specifications written, printed, and required to be signed by the United States and therefore to be taken most strictly against the Government, liberality of construction being in favor of the contractor, who did nothing more than sign it. (Edgar & Thompson Works v. United States, 34 C. Cls., 205, 219; Garrison v. United States, 7 Wall., 688; Chambers v. United States, 24 C. Cls., 387.)
    It follows, therefore, that the actions and decisions of the engineer in charge, the Chief of the Corps of Engineers, and the Secretary of War were absolutely without authority of law, null and void.
    The subject-matter of the controversy must be clearly within the contract or specifications to take away the rights of the court or jury, and the engineer’s determination will be conclusive only as to that part of those items clearly within the powers conferred upon him. (Sanders v. Hutchinson, 26 Ill., 633; Mills v. Weeks, 21 Ill., 596; Laumnan v. Younge, 13 Pa. St, 306.)
    The engineer’s decision or estimate is a conclusive adjudication only upon the condition that it is made according to the contract. (Drehew v. Altoona, 121 Pa. St., 401.) Such arbitrary powers can not be implied and must be so clearly expressed as to leave no doubt as to the evident intention of the parties. . (M. & L. R. Co. v. Wilcox, 48 Pa. St., 161.)
    The rule that if the officer proceed upon a wrong interpretation of the contract the contractor is not bound thereby, finds its parallel in ¡principle and in justice in the general rule that the valuation of merchandise made by a customs appraiser is conclusive if no apiieal.be taken, therefrom, subject to the qualification that if the appraiser proceed upon a wrong principle, or contrary to law, and this be made to appear, his appraisement may be impeached. (Roherston v. Frank Bros. Co., 132 XT. S., IT.)
    
      Mr. P. M. Ashford (with whom was Mr. Assistant Attorney-General Van Orsdel) -for the defendants.
   Atkinson, J.,

delivered the opinion of the court:

The claimant entered into the contract with the United States November 20, 1899, for the excavation of a channel 200 feet -wide and 21 feet deep at mean low-water mark in Wilmington Harbor and Christiana River, Delaware, described in the thirty-seventh paragraph of the specifications, which contract ivas amended by a supplemental agreement dated June 21, 1901, increasing the quantity of material to be dredged and extending the time for the completion of the work. The contractor was to receive 10$ cents per cubic yard for the material removed and deposited as provided in the contract! The amount of material removed was to be determined by measurements or surveys made before the dredging operations were commenced and also after they were completed. The measurements and surveys necessary to determine the quantity were to be made by the engineer in charge, or by persons employed by him for that purpose, and the decision of the engineer in charge as to the amount of material excavated and removed was to be final and without appeal on the part of the contractor.

Before entering upon the performance of the contract the claimant called upon the engineer in charge for information witli reference to the manner and method of making the measurements in question, asking specifically whether or not it was the intention of the engineer in charge to include in the material to be paid for “ slope measurements.” , The engineer in charge duly advised the contractor that in measuring the material to be paid for no account would be taken of the material dredged from outside the designated lines of excavation, and further that in measuring the material to be removed the channel Avould be treated as a prism with vertical sides and horizontal bottom, and that these vertical sides would be regarded as the “ designated lines of excavation.”

Upon receipt of this information the. contractor filed a written protest with the engineer in charge before entering upon the execution of the contract, and subsequently, at the date of each payment for services performed, protest was duly entered on the ground that the payments so made did not include material from outside the designated lines of excavation as above defined.

Claimant alleges that in the process of the execution of the contract it actually dredged and removed material from the sides of the channel outside of the vertical lines thereof to the amount of 260,430 cubic yards, for which it claims it was entitled to compensation under the contract at the contract price of 10$ cents per cubic yard.

The defendants contend that they were not obligated by the terms of the contract to pay the contractor anything for material outside of the vertical sides of the channel to be cut, or below the bottom thereof at the required depth, even though the same was actually and necessarily dredged and deposited by the contractor. In other words, that the material to be excavated was to be “measured in place.”

This suit, therefore, hinges on the phrase “measured in place." Section 43 of the specifications, which are made a part of the contract, reads:

“ 43. The amount of material removed will be paid for by the cubic yard, measured in place, and- shall be determined by surveys made before dredging is commenced and after it is completed. All surveys and measurements are to be made under the direction of the engineer in charge by persons employed by him for that purpose. The decision of the engineer in charge as to the amount of material excavated and removed, as well as to its location and deposit, shall be final and without appeal on the part of the.contractor.”

The decision of the engineer in charge in respect of the quantity of material to be paid for is contained in his letter, set out in finding v, xvherein he says:

“ Payment will be made for the quantity of material removed within the designated lines of excavation as determined by measurement before and after the dredge, and that such measurement does not include material which comes in from the sides during the progress of dredging.
“ I deem it proper to add that this is in conformity with the instructions received from the Chief of Engineers on the subject.”

The claimant contends that because the engineer in charge submitted the question to the Chief of Engineers and then advised the claimant that his decision was in conformity with the instructions of that officer, therefore it was not the decision of the engineer in charge. The language of the specification, “ The decision of the engineer in charge as to the amount of material excavated and removed, as well as to its location and deposit, shall be final and without appeal on the part of the contractor,” entitled the claimant to the decision of that officer, but he was not thereby inhibited from seeking information from his superior officer upon which to base his decision, provided only after he obtained such information the decision rendered ivas his own. We think the findings' show that it was, notwithstanding the statement that the decision was in conformity with the instructions of the Chief of Engineers on the subject. The decision being in conformity with such instructions adds force to the ruling, as b}f the language it does not appear that such instructions were not also in harmony with the decision of the engineer in charge. That is to say, from the facts found the court can not conclude that the decision was not that of the engineer in charge, and if not, then the claimant had the benefit of the decision of the engineer in charge in respect of the quantity of material to be paid for, and such decision, it must be held, was final, unless clearty in violation of the terms of the contract.

Referring to the specifications, which are made part of the contract, paragraph 43, quoted above, provides that: “The amount of material removed will be paid for by the cubic yard measured in place,” such amount to be determined under the directions of the engineer in charge, “ by surveys made before dredging is commenced and after it is completed.”

Here we have the method by which the quantity of material to be excavated is determined, as well as the method of verifying the amount of material removed after the dredging is completed.

Paragraph 45 of the specifications provides that: “ The location of the work shall be plainly located by stakes and ranges; ” and in order that there should be. no mistake about the location from the beginning to the end of the work, the same paragraph continues: “ The level of mean low water as established by the engineer in charge shall not be changed during the progress of the work; ” and then, as if to make it still clearer what was meant by “ measurement in place,” paragraph 44 provides:

“ Payments will be allowed for actual dredging to 21 feet below mean low-water level. Work done outside of the designated lines of excavation or below the specified depths will not be paid for.”

Keeping in mind that the amount of material to be paid for was to be determined within the designated lines by means of surveys made before -dredging commenced and verified within those lines after the dredging was completed, makes it clear that the measurements made were not to include any material outside of the designated lines. It necessarily follows that the material falling within the designated lines from the sides or slopes outside of the designated lines during the progress of the work, could not have been measured in place by the surveys so authorized by the contract to bo made.

We are therefore of the opinion that the specifications, which are made part of the contract, are plain and unambiguous, and that they not only furnish the basis' of measurement in place of the material to be excavated, but that the measurements made by the engineer in charge were in strict accord therewith. This being so, any other method of measurement m place, even though customary, is excluded by the terms of the contract, and therefore expert testimony is not admissible to explain language that needs no explanation.

Nor is the claimant excused for the failure of its officers and agents to familiarize themselves with the project and the work to be done before making its bid and entering into the contract, for, at the time of making its bid, there were in the office of the engineer, in addition to the specifications, drawings showing the location of the proposed channel by various lines drawn thereon, as set forth in finding n; and by paragraph 32 of the specifications bidders were expressly notified that they would be “ expected to examine the drawings,” and they were therein “ invited to make the estimate of quantities for themselves; ” while by paragraph 37 the amount of materials to be removed was estimated at 900,000 cubic yards.

The attention of the claimant’s officers and agents being called to the drawings by the terms of the specifications, it was their duty to have examined such drawings before making their bid; and if they failed so to do, it was, so far as appears from the findings of fact, their'own fault. Had they exercised reasonable foresight in response to the advertisement and the specifications containing-directions to bidders, they could readily have ascertained from the drawings that the material estimated did not include any material outside of the lines indicated thereon as provided by the specifications.

It follows from what we have said that the claimant is not entitled to recover, and its q>etition is therefore dismissed.  