
    (Not reported in C. Cls. R.;
    99 U. S. R., 30.)
    Jane Quinn, administratrix, appellant, v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      A contract binds the contractor to complete his work within thirteen months from a specified date, at a place to be designated by the defendants. The defendants neglect for five months to designate the place. But there is no evidence that the contractor demanded or desired that this should be done earlier. At the end of nine months from the time they designate the place they take away the 
      
      contract. It contains this provision'. “If the contractor shall delay or he unahle to proceed with the work in accordance with its terms, the engineer officer in charge shall have full right and authority to take away the contract and employ others to complete the work, deducting the expenses from any money that may he due and owing him, he to he responsible for any damages caused to others hy his delay.” The work is completed at less than the contract price. The conlractm' sues for 10 per cent, withheld from installments paid Mm and for the profits which he might have made if allowed to perform, or for the money saved hy the defendants in consequence of letting the work to another party.
    
    The court helow, being equally divided upon the claimant's right to rocover, renders judgment for the defendants. The claimant appeals.
    The judgment of the court helow is reversed. The Supreme Court now holds: (1) That as to whether the engineer in charge was made the judge of the existence of “delay or inability to proceed with, the work in accordance with the contract” qucere; (2) That the claimant not having shown that he was delayed hy the defendants’ delay in designating the place, and not having completed the work within the prescribed period, the engineer might rightfully take the contract away from him; (3) That if the contract was rightfully terminated, the claimant was entitled to nothing growing out of its performance hy others; (4) That the 10 per cent, withheld from installments due him was as security for the completion of the work, and it being completed at less than the contract price, the claimant was entitled to the 10 per cent, withheld.
   Mr. Justice Miller

delivered tbe opinion of tbe Supreme Court, January 20, 1879.  