
    JOHN H. DIALOGUE v. THE UNITED STATES.
    [No. 13384.
    Decided April 4, 1887.]
    
      On the Proofs.
    
    The claimant agrees to make cértain repairs and alterations according to specifications on the old frigate Constitution, “ to the full satisfaction of the superintending officer, the vessel to he completed as provided in the specifications before June 1,1876.” “Work upon sails, rigging, boats, and outfit not to be considered as included in the work to be done.” While the work is in progress the superintendent orders extra work. Bills therefor are approved by him and certified to by a subsequent, superintendent. The claimant furnishes a wharf at which the Constitution lies during the repairs, and other Government vessels bringing materials for her repairs.
    I. Where there is nothing in the record to impeach the good faith of a superintendent, and the contract provides that the work shall be done to his satisfaction, he must be regarded as the responsible and authoritative agent of the Government, both as to the character of the work and as to the necessity for extra work ordered by him.
    II. Where ship-builders agree “to do the work” of repairing a vessel, and there is no general custom for charging wharfage for the ship, it will beheld that the contractors were to furnish it free of cost; and that Government vessels bringing material to be used in the repairs might remain at the wharf a reasonable time to discharge their froight.
    
      The Reporters’ statement of the case:
    The controversy in this case was chiefly one of fact, and rested upon the counter-claim of the Government. The following are the facts as found by the court:
    
      I. John B. Wood, Bandolph Wood, and John H. Dialogue were copartners, doing business in Camden, N. J., in the year 1875, under the firm name of Wood, Dialogue & Co.; that on the 17th day of February, 1876, John B. Wood retired from the firm, leaving Bandolph Wood and John H. Dialogue successors, who continued the business under the firm name of B. Wood & Dialogue until April 29,1876, when Bandolph Wood, deceased, leaving the claimant, John IL Dialogue, sole surviving partner.
    II. On the 1st day of March, 1876, the then Chief of the Bureau of Construction and Bepair of the Navy Department accepted the proposal of claimant’s firm to do the work of the repairing of the U. S. S. Constitution, a vessel of the United States Navy, as follows:
    “Navy Department,
    “Bureau op Construction and Bepair,
    
      “March 1,1876.
    “Messrs. Wood, Dialogue & Co.,
    “ Camden, N. J.:
    
    “ Gentlemen : Tour offer of the 12th January last to do the work required to complete the U. S. frigate Constitution for the sum of $39,450 is hereby accepted, with the understanding that the work is to be done by you in accordance with the specifications, a copy of which is herewith forwarded; that it shall be in workmanship to the full satisfaction of the superintending officer or officers and of the Bureau, and that the vessel is t.o be completed in all respects as provided in the specifications and turned over to the Government on or before June 1, 1876.
    “Bills maybe made monthly, as the work progresses, for such proportion of the whole amount as, in the opinion of the superintending officer, you are then entitled to, taking into consideration the condition of the work at the time, and bearing his certificate to the effect that the work has sufficiently progressed to entitle you to the amount named, and that it is in all respects satisfactory, but payments must not be expected prior to July next.
    “Upon your notifying the Bureau of your readiness to commence the work of completing the Constitution in accordance with your offer and the terms of this letter, instructions will be given to turn the vessel over to you.
    “ Eespectfully, your ob’d’t serv’t,
    “I. Hanscom,
    “ Chief of Bureau.”
    
      “Nayy Department,
    “Bureau oe Construction and Repair,
    “ March 3rd, 1876.
    “Messrs. Wood, Dialogue & Co.,
    “ Camden, N. J.:
    
    “ Sir : Referring to the Bureau’s letter of the 1st instant, accepting your offer to do the work required to complete the U. S. frigate Constitution, work upon sails rigging, boats, and outfits is not to be considered as included in the work to be done by you upon that vessel.
    “Respectfully, your ob’t serv’t,
    “I. Hanscom,
    “ Chief of Bureau.”
    III. Pursuant to said proposal and acceptance the said claimant, who is the survivor of Wood, Dialogue & Co., performed the work mentioned in said letters and extra work, in the manner hereinafter stated, under the superintendence of Naval Constructor Hartt, as hereinafter stated, said Hartt being an officer of the defendants, and who was placed in charge of said work by the defendants as superintendent of the same. The work said Hartt superintended, after he was detailed, was approved by him and accepted as done in accordance with the-contract. While the work was being performed on the Constitution, before referred to, the said superintendent officer of the defendants gave orders to the said claimant for said extra work, which work was fully performed by claimant, and bills therefor were rendered by said claimant and were approved by the said superintendent, and the work so done and performed and the materials furnished amounted in the aggregate to and were reasonably worth the sum of $10,226.24. Approved bills, $1,287, $254.26, $270.65, $216.98, $346:70,. $410.85, $277.55, $149.25, $134.75, $210.85, $167.90, $360.10, $28.70, $470.75, $102.86, $509.36, $3,948.55, $1,000. A portion of said work was done on said ship before the 11th day of November, 1876,. when the said naval officer was ordered to take charge of such work, but the same was certified to by Hartt in the same manner as work done after he took charge of the work on said ship.
    IY. During the time the said vessel, the Constitution, was being repaired as aforesaid, the said claimant, survivor of and successor to the said Wood, Dialogue & Co., was the owner of a-certain wharf, which was used and occupied for wharfage purposes for the said vessel, the Constitution, during the repairs,, and also during the time aforesaid the defendants used and occupied the said wharf for a certain other vessel of the defendants, viz, the receiving ship Potomac. Said last-mentioned vessel was used by the defendants in delivering material to the wharf of the claimant, to be used by claimant in the repairs on the Constitution. The Constitution was at the wharf of the claimant aboutsix months; thePotomac was there three months. It is not shown what wharfage was worth at the place where said ships were; it is not shown that it was customary for the owners of vessels to pay wharfage during the time of repairs, to the person doing the repairs, for the use of the wharf; it is not shown that the defendants were notified by claimant that wharfage would be charged, for the time it is charged. No agreement on the part of defendants to pay wharfage was proven.
    V. That heretofore, to wit, in the month of December, 1875, the said Wood, Dialogue & Go. were the owners .of the steam ferry-boat Burlington, and being so the owners thereof, on the — day of December, 1875, sold and caused the same to.be conveyed to the defendants, by a bill of sale duly executed, for the consideration of $40,000, to be paid to them by the defendants, on account of which there has been paid to the said Wood, Dialogue & Co. the following sums of money, to wit, $27,000 and $2,000, aggregating $29,000; that the said Wood, Dialogue &t Co., on the 21st of April, 1873, purchased at public auction from the defendants a certain dry-dock at League Island for the sum of $35,400, all of which they paid in cash, excepting the sum of $10,000, and on the 9th day of December, 1874, executed their note, payable seven' months after date, to the defendants for the said sum of $10,000, being the balance due of the purchase-money of said dry-dock, which said note is yet held by the said defendants, and which the said Wood, Dialogue & Go. and defendants agreed at the time of the purchase of the said Burlington should be treated as a payment by the defendants of the purchase-money of the latter to the said amount of $10,000, thus leaving a balance of $1,000 due on this transaction.
    COUNTER-CLAIM.
    VI. That the firm of Wood, Dialogue & Co., of which the claimant is surviving partner, constructed for the defendants, under contract made in the months of October and November, 1874, six steam-boilers.
    “ Camden, N. J., 10 Mo., 16.1874.
    "Wi. W. W. Wood,
    
      “Engineer in Chief XT. S. Navy, Washington:
    
    “Dear Sir: We will agree to construct a pair of boilers, in conformity to the drawings and specifications furnished by you, of the best material and workmanship, subject to inspection of an engineer officer, and deliver the same on board vessel or lighter for the sum of 20 cents per pound.
    “The boiler to be subjected to hydrostatic test and painted with two coats of red lead and oil and be completed in from two to two and a half months.
    “You will notice I have extended the time a little, but find we have taken orders for two boilers since I left home.
    “Yours, very respectfully,
    •“Wood; Dialogue & Co.”
    “Navy Department, “Bureau oe Steam Engineering,
    “ Washington, October 17,1874.
    “Gentlemen: Your offer, contained in letter of the 16th inst., to construct a pair of boilers, in conformity to drawings and specifications furnished from the Bureau, for the sum of 20 cents per pound, the same to be of the very best material and first-class workmanship, &c., is hereby accepted.
    “ Chief Engineer H. Newellhas been appointed to superintend the work.
    “ Respectfully,
    “ W. W. W. Wood,
    “ Chief of Bureau.
    
    “Wood, Dialogue & Co.,
    “ Camden, N. J".”
    “ Washington, D. C., November 7,1874. “Wm. W. W. Wood,
    “ Chief Engineer XT. 8. N., Bureau Construction:
    
    “Dear Sir: We would propose to furnish you four (4) additional boilers, according to plans and specifications furnished by you , and deliver same on vessel or lighter at our wharves, for the sum of twenty cents per pound, you to furnish the brass tubes and we to put them in.
    “ The same to be completed in not exceeding four months from date of acceptance.
    “Respectfully, yours, &c.,
    “Wood, Dialogue & Co.”
    
      “Navy Department,
    “Bureau oe Steam Engineering,
    “ Washington, November 7,1874.
    “Gentlemen: The Bureau hereby accepts the offer contained in your letter of this date, to furnish four (4) additional Boilers, according to drawings and specifications furnished, deliverable on board vessel or lighter at your wharf, for the sum of twenty cents per pound, the Bureau to furnish the necessary tubes and you to put them in.
    “The material to be of the very best quality, and the workmanship first-class.
    “ Respectfully,
    “W. W. W. Wood,
    “ Chief of Bureau.
    
    “Wood, Dialogue & Co.,
    “ Camden, N. J.”
    That said boilers were completed in or about the month of August, 1875, and were paid for by the defendants at contract price. It is not shown that the boilers mentioned and described in the plea of set-off were the boilers made by Dialogue & Co. for the defendants, as alleged.
    
      Mr. J. C. Nay, Mr. Jere Wilson, and Mr. 8. H. Grey for the claimant..
    Jlr. Lewis Cochran (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

In the commencement of this suit a petition was filed claiming for other and different causes of action than those embraced in the petition which is to be considered for the purposes of the case as now developed. In the amended petition (and which performs on the part of the claimant the function of the entire pleading), while several causes of complaint are alleged, the scope of the claim, as now made by the petitioner, relates, first, to the performance of extra work arising out of the rebuilding of the United States frigate Constitution; and, second, wharf-age for the Constitution and Potomac while berthed at the wharf of the claimant$ and, third, the claim of $1,000 set forth in the fifth finding.

To the case made by the pleading the defendants file, the general issue, and, by way of counter-claim that at and before the institution of this suit the firm of Wood, Dialogue & Oo., of which the claimant is surviving partner, became indebted to the defendants in the sum of $8,070.31; that said indebtedness has not been paid; that in October and November, 1874, the said firm entered into certain agreements with the defendants; that said firm agreed, for the certain consideration therein named, to construct six iron boilers for steam vessels, in good and workman-like manner and of the best materials; that they did not construct the said boilers in a workman-like manner and of the best material; that they were paid for the same on the faith and assurance that they were of good workmanship and of good material; that in consequence of the defective construction of the boilers and the use of imperfect material the defendants were subjected to the expense of $8,070.31 in attempting to bring said boilers to the standard recognized and required by the agreement.

The facts found by the court show, that in the month of March, 1876, the parties, by correspondence, made a contract to do the work required to complete the United States frigate Constitution for the sum of $39,000, in accordance with specifications, and to the full satisfaction of the superintending officer or officers of the defendants and of the bureau. Work upon sails, rigging, boats, and outfits was not to be considered as included in the work to be done upon the vessel.

There is no controversy as to the payment of the $39,000. The contention upon the part of the plaintiff is, that in the execution of the work under said contract and at the instance and request of the superintendent, the firm of which the claimant is the surviving partner performed a large amount of extra work beyond the requirement of the contract; that while engaged in the work under the agreement, and beyond the requirements of the same, the wharf of the claimant was used by the frigate Constitution and the Potomac, the latter being engaged in the delivery of material by the defendants, to be used by the claimant in rebuilding the Constitution.

The theory of the claim for wharfage is, that by the usage of the trade or business it is customary to charge for the use of the wharf beyond a certain time; and that by the neglect and delay of the defendants both ships were required to remain much longer than was necessary to perform the contract and' extra work.

The findings show that on the 11th day of November, A. D. 1876, Naval Constructor Hartt was detailed by the Department to superintend the work on the Constitution; that the most of the work was performed under his immediate supervision and by his express direction. By the designation of the agreement and his relation to the performance of the work he passed in judgment upon all the work performed by the claimant after his appointment, and by inspection and observation determined the quality and quantity of work performed prior to his connection with the contract.

It will be observed that the agreement is silent upon the subject of wharfage for the ship during the progress of the work; but it is insisted by the claimant that there was unnecessary delay upon the part of the United States in furnishing the material for the repair of the vessel, and because of such delay the claimant is entitled to recover for wharfage; that it was a custom in the trade of ship-repairing to pay for wharfage during the time the wharf was occupied by the vessel being repaired, and the vessel engaged in the transportation of the material used for such repair. The custom, if established, is not contradictory of the terms of the contract, as it does not provide as to the wharfage..

It seems, from the allegations of the petition and the facts of the record, that the firm of Dialogue & Co. were ship-builders at Camden, N. J., and as such engaged with the defendants to do certain work on a vessel of the United States, which, from the magnitude of the repairs, amounted to a substantial reconstruction of the ship. Without a wharf or waters in which the ship could float it would be impossible for the claimant to perform his agreement; and the wharf, in the execution of the contract, is as much a part of the machinery to perform the agreement as any part of the claimant’s shop or yard. The responsibility to perform the agreement (beyond the material which was to be furnished by the Government) included a liability upon the part of the claimant to provide his own means and facilities; and no additional Compensation is to be allowed for such means, unless a well-established custom recognizes and requires such allowance.

All other matters being eliminated, the controversy is narrowed to the extra work, the wharfage, the $ 1,000 set out in the fifth finding, and damages alleged by the counter-claim. No contention arose between the parties as to the extra work until the completion of the contract, and then only as to whether the amount certified to as extra by the naval constructor was included in the original agreement for which $39,000 were to be paid.

The Department insisted that much less than the amount certified was due the claimant for extra work. Much of the discussion of counsel was devoted to the findings of a naval board, organized by the Department, and to which the claimant was not a party; but the result of the investigation of that board is not material in this proceeding under our view of the law. There is nothing in the record to impeach the good faith of the agent of the Government in his superintendence of the work; and from his experience in that particular class of labor we must presume he had the capacity to guard the interests of the United States both as to the quality of the work, and in the determination of the question as to what was or was not extra work, under the specifications of the undertaking of the claimant.

The findings show that Naval Constructor Hartt was detailed on the 11th day of November, 1876, and from that time supervised and superintended the execution of the contract and directed from time to time what extra work should be performed by the contractor. Hartt became and was from the time of his detail the responsible and authoritative agent of the United States, and as such ordered and directed the claimant not only in the performance of the agreement as to the work specially provided by the contract, but also in the addition of such extra work as they might agree from time to time to attach to the original undertaking. It was a contemporaneous construction of the parties, which determined and fixed the liability beyond the power of repudiation upon the part of either. (Scott v. United States, 12 Wall., 444, and 7 Ct. Cls. R., 226; Eastern Railroad Go. v. United States, 20 Ct. Cls. B., 45.)

The evidence showed how difficult it is in some instances to determine the line dividing contract from extra work; that naval constructors and experts would often disagree in opinion and judgment on that question ; that the board, organized by the Department to investigate and determine the amount of extra labor, was not harmonious in the result of its examination. Taking that condition of proof, in connection with some of the established rules of construction, the court in the findings has adopted the certified bills of the superintendent as the basis of the value of the extra work.

Upon the question of wharfage the court does not find, that at the place where the labor was performed, there was a general custom to charge wharfage for the ship;, and without such a finding no liability can attach to the United States. The contract not providing for such compensation, there can be no recovery on that item of the petitioner’s claim. As to the Potomac, it is not shown that the delay was wholly the neglect or fault of the United States, nor is it shown that the defendants were notified that wharfage would be charged for the receiving-ship. The vessel had a right to remain at the wharf a reasonable time to discharge its freight for the use of the claimant in rebuilding the ship Constitution. That item of the petition must be disallowed.

The contention on the counter-claim involved the question of fact whether the boilers upon which it is alleged the United States expended $8,070.31 were in fact the boilers which had been manufactured for the defendants. We have examined the testimony relating to that question, and have concluded that the testimony does not establish by a preponderance the fact, that the boilers sold to the defendants and the boilers upon which was expended the sum alleged in the counter-claim are identical. Upon the whole case the court finds in favor of the claimant on the item of extra work and the claim of $1,000 in fifth finding, against him on the wharfage, and against the defendants on their counter-claim. The judgment of the court is that the claimant recover the sum of $11,226.24.

At the same time with the foregoing, the court decided No. 12843, a suit between the same parties. The only item in controversy was for work likewise done upon the Constitution and under the same agreement set forth in the preceding findings dated March 1, 1876. The claimant produced an ordinary voucher for the item, given by the superintendent.

The following is the decision:

Weldon, J.,

delivered the opinion of the court:

There is no dispute in this case except as to one item in the claim of petitioner, to wit, the sum of $1,450, and as that item comes within the principle of case No. 13384, between the same parties, it is not necessary to discuss it in this connection.

The judgment of the court is that the claimant recover the sum of $21,764.51.  