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moved should be paid for by the cubic yard, measured in place, and shall be determined by surveys made before dredging is com

260,430. The motion for a new trial and the motion to amend the findings were overruled. The court, in its reasons for denying the motion, while stating that certain ex-menced and after its completion, clearly in pert testimony had been offered as to the meaning of the words "measured in place," further stated that it had declined to consider the same and make a finding thereon, as it concluded, as said in its previous opinion, that the import of the words "measured in place," as used in the contract, was so free from ambiguity that it did not consider the testimony relevant. This was based upon the opinion that, whatever might be the commercial signification of the words, that meaning could not be imported into the contract for the purpose of destroying its plain and obvious intendment when the terms of the entire contract and the specifications forming part of the same were given their proper weight.

and of itself established a method for fixing the amount of material which might be excavated, and which was to be paid for, absolutely incompatible with the contention that the contract contemplated that payment should be made for excavated earth which might slide into the channel from the slopes of the same during the progress of the work. And this is fortified by the requirement as to the location of the stakes and the keeping of them continually in place during the performance of the work under the contract. It is, moreover, additionally sustained by the provision, "that no extra allowance will be made for excavating material different from that herein prescribed," and by the stipulations, "that

The errors complained of are all embraced work done outside of the designated lines under the following headings:

a. The refusal of the court to receive and consider testimony offered as to the trade meaning of the words "measured in place" and its refusal to make a finding on the subject. It being contended that the action of the court in refusing to amend its findings and the statement, in its opinion, that it declined to consider such testimony, adequately preserves the question for review. b. The refusal of the court to find the precise amount removed of earth which slid in from the sides or slopes, thus leaving the finding uncertain on that subject.

c. The attributing of conclusive efficacy to the action of the officer in charge. And finally,

of excavations or below the specified depth will not be paid for," and "that any material deposited other than that specified and agreed upon must be removed by the contractor at his own expense." When these provisions are read in connection with the specification stating that "no guaranty 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 as to this point, and to examine all other local conditions, as it will be assumed that their bids are based upon personal information," in connection with the statement of the approximate quantity, and the further condition that "no claim will be made against the United States on ac

d. The construction given by the court to count of any excess or deficiency, absolute the contract.

or relative in the same," we think the con

It is apparent that the question of conclusion is beyond reasonable controversy that struction last stated lies at the foundation of all the assignments, and therefore first commands consideration. We say this be cause, if it be that the court below was correct in its conclusion that the contract gave to the words "measured in place," as therein used, a plain and unambiguous signification, it is obvious that the abstract or commercial meaning of those words, upon the hypothesis that they have such meaning, was rightly held to be irrelevant. And it is equally plain that, if the court below rightly construed the contract in the particular mentioned, it will be unnecessary to consider the effect which was given to the action of the officer in charge, since that action was in accordance with the meaning which the court gave to the contract.

Coming to consider the contract, we are of opinion that the court below correctly enforced its self-evident meaning. The requirement that the amount of material re

the contract, by its express terms and without ambiguity, excludes the possibility of holding that earth which might slide from the slopes during the excavation was to be paid for by the United States. To separate the words "measured in place" from all the other provisions of the contract, in order to give them an assumed or proven abstract trade meaning, repugnant to their significance in the contract, would be to destroy, and not to sustain and enforce, the contract requirements. Lest our silence upon the subject may give rise to misconception, we deem it well to observe that even if the original contract was susceptible of a different construction from that which we hold arises from its plain import, such result could have no possible influence on the asserted claim of the dredge company, in so far as that claim is based upon excavation done under the supplementary contract. We say this because that contract was made

189

with the full knowledge of the meaning affixed by the United States to the terms of the contract, and which had been insisted upon in the carrying on of the previous dredging operations.

Affirmed.

(211 U. S. 188)

PHOENIX BRIDGE COMPANY, Appt.,

V.

UNITED STATES.
CONTRACTS (§ 232*)-EXTRA WORK-PUB-
LIC IMPROVEMENT.

and Rock Island, Illinois, the company had, under the orders of the United States officer in charge of the work, expended the amount claimed for work not specified in the contract, and for the value of which therefore the United States came under an obligation to respond. Not following the precise order in which the court below recited the facts by it found, we reproduce from such findings the statements made therein of such facts as are in anywise pertinent to the questions which we think the controversy involves.

In July, 1895, the government of the The erection, pursuant to the direction of United States issued a circular advertisethe government officer in charge, of a temporary liftspan, which was the most feasi- ment, signed by A. R. Buffington, Colonel of ble and least expensive substitute which Ordnance, U. S. Army, inviting proposals could be employed after an accident dur- for the construction of a new superstructure ing the performance of a contract to recon- and making alterations in the abutments struct and remodel a government bridge over and piers of the government bridge over the the Mississippi river had carried away a Mississippi river connecting Davenport, substantial part of the unfinished draw- Iowa, and Rock Island, Illinois. The bridge span, together with the false work support company, in answer to this advertisement, ing the old structure, was contemplated by submitted a formal proposition, and, in adthe contract, so as to preclude extra compensation therefor, where the immediate dition, addressed a letter to Colonel Buffingopening of navigation, which would have ton, dated August 10, 1895, which, among been seriously interrupted by the restoration other things, contained the following: of the false work, was imminent, and the contract, although containing many minute, stipulations looking to uninterrupted railway service across the bridge, with no express requirement as to the navigability of the river, had fixed a date for the completion of the drawspan sufficiently early ordinarily to insure noninterruption of navigation.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1071-1097; Dec. Dig. § 232.*] [No. 26.]

Col. A. R. Buffington, Col. Ord., Commanding Rock Island Arsenal, Rock Island, Illinois.

Dear Sir:

Appreciating the importance of finishing the proposed new bridge at Rock Island at the earliest possible date, we have been making a very careful study of the best method of removing the present structure and erecting the new spans, and have finally decided upon a plan which will enable us to Decided work on the structure regardless of floods and ice in the river, and thereby give you the work at least five or six months before the time mentioned in your letter of July 27th. Our plan of erection is shown in detail on prints 1 and 2 sent herewith.

PPEAL from the Court of Claims to review a judgment rejecting a claim of a public contractor to compensation for extra work. Affirmed.

See same case below, 38 Ct. Cl. 492.
The facts are stated in the opinion.
Messrs. John Spalding Flannery and
Frederic D. McKenney for appellant.

Assistant Attorney General Thompson and Mr. A. C. Campbell for appellee.

The erection of the drawspan of course must be done during the closing of navigation, between the 20th of November and the 15th of March of the following year, and this span will be removed in the ordinary manner, by placing false work in the river to support temporarily the old structure and the railway traffic during the removal of the

*Mr. Justice White delivered the opinion present span, and for supporting the new of the court:

This appeal is prosecuted to obtain the reversal of a judgment rejecting a claim of the Phoenix Bridge Company for $6,958.14. The bridge company based its right to recover upon the averment that, during the performance of a contract entered into by it with the United States for the partial reconstruction and remodeling a bridge belonging to the United States, spanning the Mississippi river between Davenport, Iowa,

work during erection, the various parts being put in position by the ordinary overhead traveler shown on plan 2. This particular part of the erection does not need any special explanation. As we have made a specialty of drawspan work and have every facility in our shops for building such a span, we have named a date of completion for the new drawspan of March 1st, 1896. The first small span, "E," we will erect in advance of the drawspan, and will have the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 29 S. C.-6.

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happened, the drawspan would have been completed by March 15, 1896, to such an extent that it could have been swung so as not to impede navigation. The claimant did not proceed with the erection of the drawspan as expeditiously as it might have done, particularly in that it did not procure the necessary material in the order necessary for the erection of the drawspan. Said span might have been completed a considerable time before February 25, 1896, although the claimant was not bound to have it completed until March 1, 1896, by its contract. The United States was in no way responsible for any delays in the fulfilment of said contract, and was in no wise in default.

to that date. Navigation on the river at this point is heavy and continuous from the opening of navigation. In case navigation had been interrupted up to the date when the drawspan could have been ready to swing, the damage to persons engaged in such navigation would have been greater than the expense of the erection and operation of such liftspan.

"The erection of the liftspan was necessary in order to provide for railroad traffic and the navigation on the river, and was the most feasible and the least expensive method of so doing.

"After the accident on February 25, 1896, the claimant proceeded to erect the drawspan, in accordance with the contract, and said drawspan was ready to swing June 1, 1896."

"After said accident Col. A. R. Buffington, United States ordnance officer in charge of the construction, together with several of After the completion of the work, a his assistants, had a conference with the voucher was drawn for the final payment representatives of the claimant at the site under the contract. This voucher recited of the bridge, and it was determined that the total sum agreed to be paid by the conthe most feasible way of repairing the dam- tract, deducted the previous payments made age and going on with the construction of to the bridge company, and stated the balthe drawspan was to erect said span upon ance, it being explained that this balance the pivot pier running up and down the constituted the full and final payment to river, so that the erection of said drawspan the contractor. The amount thus stated to should not interfere with navigation, which be the sum finally due under the contract was likely to open at any time after March was received by the company and a receipt 1. It was further determined that the most was signed on December 11, 1896, declaring feasible way of providing for railroad traffic that the amount received was "acknowlduring the erection of said drawspan was to edged as the final and full payment for all put in place a temporary liftspan, which the material furnished, and for all the work could be so operated as to allow the passage performed under the said contract, and in of vessels. Thereupon Colonel Buffing full for all charges, claims, adjustments, ton ordered the claimant to erect such lift- differences, or other alleged indebtedness span, which the claimant did, at the ex-incident to the work, or related to it in any pense of $6,683.59. manner whatever."

"Colonel Buffington's order was intended to meet an exigency caused by the imminence of an immediate opening of navigation, and to avoid the consequent large damage which would have been done to the shipping of the river and the property interests employed therein by the obstruction which would have been caused by work under the contract if navigation had opened about March 1, as might have been apprehended upon February 26.

"At the time of the conference representatives of the claimant demurred to the erection of such liftspan. They claimed that the bridge company could proceed to repair the damage done by the accident and erect the drawspan on false work across the channel of the river prior to the opening of navigation. Colonel Buffington and his assistants maintained that this could not be done.

"Navigation opened in the season of 1896, on March 27. At the time of the accident it could not have been foreseen that navigation would not open several weeks prior

"At the time of signing this paper the claimant made no protest and understood that it covered all claims it had against the United States growing out of the erection of the said bridge. The final completion of the work provided for in the contract was several months later than the time limited in said contract, and, at the time said instrument was presented to plaintiff's agent for his signature, he objected to signing it. Buffington then informed him if he did not so sign it as a final release of all claims, his instructions were to refer the whole matter, including claims for delay in the completion of the work, to the Department. Claimant's agent then advised directly with his principal, after which he signed the instrument and received the final payment, at the same time, in reply to an inquiry by Colonel Buffington whether he signed without reservation, replied, 'You have our signature to the release as you handed it to me.' Before that time there had been dispute between the parties, both as to the liability of defendant for the lift

span and the plaintiff for delay in the com- | contract must be construed as having aupletion of the work. No damages for delay thorized the bridge company to continue the were afterwards claimed or sought to be en- use of the false work after the accident, forced against the claimant." even across the navigable channel, despite the injurious consequences to navigation which would have resulted. And from this right to use the false work to the destruction of navigation it is contended that there was no authority to direct the erection of the liftspan, and consequently an implied and contract liability on the part of the United States to pay the cost of the same when the span was erected under the order of the officer of the United States in charge. But we are of opinion that the interpretation of the contract upon which this proposition must rest is unsound, because it is not supported by the text of the instrument, and is not consonant with the intention of the parties as manifested by the text, and as established as a necessary result of the findings below made.

Upon these findings it is insisted that the court below erred in holding that the bridge company was not entitled to recover the amount by it expended for the erection of the temporary liftspan, because that work, done by the direction of the officer representing the United States, was not within the contemplation of the contract, and no duty rested upon the bridge company to do such work. In other words, the contention is that, as the contract provided for supporting the old structure across its entire length, including the drawspan, by false work which was to hold the old structure until the new was completed, when the false work should be removed, that the bridge company, when the damage caused by the melting of the ice took place, was entitled to continue the use of the false work for supporting the drawspan, although in so doing the navigation of the river would be entirely obstructed. And, upon the assumption that such is the true interpretation of the contract, it is urged the final receipt which was given did not constitute accord and satisfaction for the expenditure made concerning the liftspan. In logical order the question of accord and satisfaction resulting from the giving of the receipt when the final payment was made would first arise for solution. As, however, the contention that accord and satisfaction did not result from the giving of the receipt rests upon the assumption that the work done in the temporary erection of the liftspan was not with-pleting the drawspan within such nonin the contract, and therefore was not embraced by the receipt, it follows that we must, in order to dispose of the controversy as to accord and satisfaction, consider and determine the nature and character of the obligations which the contract imposed concerning the work done as to the liftspan. For this reason, to avoid repetition, we come at once to the fundamental question, that is, the interpretation of the contract, for the purposes of ascertaining whether the work referred to was within the purview of the contract; for if it was, that will dispose of the whole controversy, including the claim of accord and satisfaction.

The argument by which it is sought to support the contention that the bridge com. pany was entitled, after the accident, to continue the construction of the drawspan by the erection of false work which would entirely bar the navigable channel, insists that, as the contract alone provided for the method of construction by means of false work as a support for the old structure during the performance of the contract, the

In considering the text of the contract at tention is at once attracted to the important stipulations as to the period in which the work should be carried on and com. pleted, and to the difference between the time fixed for the completion of the work as to the drawspan and that as to the remaining spans. When the fact that the bridge spanned a great navigable river, and the duty of the government to protect that navigability, is borne in mind, moreover, when the facts found by the court below as to the period when navigation would be suspended as the result of natural causes is also considered in connection with the obligation which the contract imposed of com

navigable period, we are of opinion that the contract must be interpreted as exacting that the means employed in constructing the drawspan should be such as would not operate to impede navigation. We think, therefore, that the contract must be held to have *empowered the bridge company to use and retain the false work in the navigable channel only during the time expressly stipulated in the contract, and therefore to have imposed the duty after that period, if the exigencies of the situation required it, to perform the work on the drawspan in some other suitable manner consistent with the noninterruption of the navigation of the river.

This interpretation, which we think the contract requires, as we have said, is directly in accordance with the finding below, that the object of fixing March 1, 1896, for the completion of the drawspan, was that navigation, which was likely to open at that place in the middle of March, should not be interrupted by the work of construction upon the bridge, and that this object was