Transcript of Record — United States v. United Engineering & Contracting Co.

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_TRANSCRIPI OF RECORD.

SUPREME COURT OF THE UNITED STATES.

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a No. gat. £81.

3 THE UNITED STATES, APPELLANT,

va.

THE UNITED ENGINEERING AND CONTRACTING

COMPANY.

APPEAL FROM THE COURT OF CLAIMS,

FED NOVEMBER 22, 1919.

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SUPREME COURT OF THE UNITED STATES.

OcTOBER TERM, 1912.

No. 852.

THE UNITED STATES, APPELLANT,

Vs.

THE UNITED ENGINEERING AND CONTRACTING

COMPANY.

APPEAL PROM THE COURT OF CLAIMS.

INDEX. Original. Print.

No a wah ese ew eas ae eN ches MOR ENE ROR SOE EN ER RIERS AUS |

Appendix to petition............... 502 e eee eens 13

Exhibit A.--Contract No. 876, September 15, 1900...............-- 13

B.—Agreement No, 876-A, January 21, 1901.............-. 40

©. Supplemental Agreement No. 876-B, February 16, 1908. 44

DD. Supplemental Agreement No. 876-C, March 7, 1903... 46

NR Be, cc aK GS RNKESDECREN TS CREDA DRC EEA RASS RASS aN 53

Argument and submission... ..... 2... 2.02.2. eee ee eee neces 54

PRN OE ORE Sink ac cs nena cn enatunesscantencsecentsnectaees 55

INE NE ck eis yak ec kw odes 4k ce yee sha Nawe sy howe KEREAS SESE SS 61

PRIOR ccpadeatns sac5lsakbaN soni se hier sche aso eann cheeky bree yecke 61

eS EES PELE TET COCT TE TETAS TE ee CER Ch 78

Motion to amend findings and for a new trial............-.------------ 79

rr Ps Oh CNN, oo ac ccc ac ncbane sen sbevs sve eaeenSaksneceee 84

Application for appeal........ 2... 2... ec ence e eee e teen eee eee eeecs &5

Clerk’s certificate. ........... GES eOCuL RSNA ENGRAEREEARAMS AC EMR OMS RES 86

N3533—13——1 I

> = age

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 1

1 I.—Petition.

Filed December 9, 1907.

In the Court of Claims of the United States.

Tue Uniren ENGINEERING AND Conrractine Company, ,

claiment.

oR.

Tue Unirep Srates.

No. 30072.

To the honorable the judges of the United States Court of Claims:

The petition of The United Engineering and Contracting Com-

pany. a corporation, respectfully shows as follows:

I. Your petitioner is a corporation, duly created and existing

under the laws of the State of New York, for the purpose of carry-

ing on a general engineering, construction, and contracting business,

and has its principal office and place of business in the city and State

of New York. Your petitioner has at all times borne true faith and

allegiance to the Government of the United States, and has not in any

way aided or abetted or given encouragement to rebellion against the

said Government.

II. That on or about the 15th day of September, 1900, vour peti-

tioner entered into and executed a contract in writing with the

United States, which was represented in the making and execution

thereof by Mordecai T. Endicott, Chief of the Bureau of Yards and

Docks, Navy Department, acting under the direction of the Secretary

of the Navy, in and by which it agreed, for the sum of seventy-

2 nine thousand four hundred and_ thirty-five dollars ($79,-

435.00) to furnish all necessary materials, labor, tools, and

appliances for the construction and completion, in all respects, of a

pumping plant for dry dock numbered three (3) at the United States

navy vard, in the city and State of New York, in accordance with

and subject to the conditions and requirements of the plans and

specifications attached to and forming a part of said contract. Said

contract was known as No, 876, and a true copy thereof is hereto

attached, marked * Exhibit A.” and is hereby referred to and made a

part hereof.

IIT. That subsequently and on or about January 21, 1901, your

petitioner entered into and executed with the United States, which

was represented in the making and execution thereof by Mordecai

T. Endicott. Chief of the Bureau of Yards and Docks, Navy Depart-

ment, acting under the direction of the Secretary of the Navy, a

further and supplemental contract, in writing, in and by which it

agreed, for the additional compensation therein stipulated of forty-

two thousand eight hundred and eighty-five dollars ($42,885.00), to

make certain changes and alterations in the work which it was called

upon to perform and the materials which it was called upon to

furnish under the provisions of said original contract No. 876. Said

2 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

supplemental contract was numbered 876-A. and a true copy thereof

is hereto attached. marked * Exhibit B.” and is hereby referred to

and made a part hereof.

IV. That subsequently and on or about February 16, 1903, your

petitioner entered into and executed with the United States. which

Was represented in the making and execution thereof by Mordecai

T. Endicott, Chief of the Bureau of Yards and Docks, Navy —

ment, acting under the direction of the Secretary of the Nay y.2

further and second supplemental contract. in writing. in and by

which it agreed, for the additional compensation therein stipulated

of nine hundred and fifty-nine dollars and eighty cents

3 ($959.80). to furnish all of the material and labor for and to

construct three (3) hatches in the roof of the pump well being

constructed under said original contract No. S76. in accordance with

specifications and plans attached to said second supplemental con-

tract and forming a part thereof. Said second supplemental contract

was No, 876-B. and a true copy thereof is hereto attached, marked

* Exhibit C.” and is hereby referred to and made a part hereof.

V. That subsequently and on or about the 7th day of March, 1903,

your petitioner entered into and executed with the United States,

which was represented in the making and execution thereof by

Mordecai T. Endicott, Chief of the Bureau of Yards and Docks,

Navy Department, acting under the direction of the Secretary of the

Navy, a further and third supplemental contract in writing. in and

by which it agreed, for the additional compensation therein stipu-

lated of six thousand seven hundred and eight dollars and five cents

($6,708.05), to modify the work being done under said original con-

tract No. 876 as indicated and illustrated by a copy of the report of

the board and plans attached to said third supplemental contract

and forming a part thereof. Said third supplemental contract was

No. 876-C, and a true copy thereto is hereto attached, marked

“Exhibit D,” and is hereby referred to and made a part hereof.

Your petitioner avers that it fully and completely performed, in

accordance with the provisions of all of the aforesaid contracts and

the specifications and plans forming a part thereof, said pumping

plant, and said plant was duly accepted by the defendant. acting

therein through its duly authorized officers and agents in charge of

said work; whereupon your petitioner became entitled to the amount

of compensation fixed and agreed upon in and by the aforesaid

contracts, to wit. the total sum of one hundred and twenty-nine

thousand nine hundred and eighty-seven dollars and eighty-five

cents ($129,987.85); but your petitioner avers that it has been

q paid at various times between the date when said original con-

tract No. 876 was executed up to and including the 10th day of

August, 1906, when the last payment was made, only the sum of one

hundred and twenty-three thousand nine hundred and eighty-seven

dollars and eighty-five cents (123.987.85) for the work done and

materials furnished under said contracts. and the sum of six thou-

_

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 3

sand dollars ($6,000.00) was then and ever since has been withheld

from your petitioner by the defendant, acting through its duly

authorized officers and agents, as a penalty improperly imposed by

the officers and agents of the defendant for two hundred and forty

(240) days of alleged delay in the completion of said pumping

plant, at the rate of twenty-five dollars ($25.00) per day.

And your petitioner avers that after the execution of the supple-

mental contract No. 876-A, which extended the time for the comple-

tion of said pumping plant, which had been fixed by the original

contract. both your petitioner and the officers and agents of the

defendant in charge of said work found that, owing to the many

changes. alterations. and modifications that had been made and were

necessary to be made in the plans for the construction of said plant,

no date of completion could be fixed or determined upon in advance,

and in the supplemental contracts No. 876-B and 876-C, which

were thereafter executed. the date of completion which had thereto-

fore been fixed was ignored and waived and no further formal

extension of time for completion was mentioned.

This petitioner further avers that whatever delay there may have

been in the completion of the work was due primarily to the experi-

mental and impractical character of the design, to the mistaken

location of the pumping plant, to errors made in the plans and speci-

fications therefor prepared by the officers and agents of the de-

fendant, and to the interruption and interference with this peti-

tioner’s work caused by the defendant using said dock, in which

said pumping plant was being constructed, while said work was in

progress.

5 Wherefore your petitioner claims that there is still due to

it by the defendant and that it is entitled to recover from the

United States the sum of six thousand dollars ($6,000.00) on account

of the work done and material furnished under the previsions of the

contracts hereinbefore set forth.

VII. Your petitioner further avers that during the progress of

said work the officers and agents of the defandant in charge and

control thereof, in addition to the work and materials called for by

the aforesaid contracts, ordered and required your petitioner to fur-

nish the work and materials ‘temized below in order to make altera-

tions in and additions to said pumping plant which were not speci-

fied in nor contemplated by the aforesaid contracts and the plans

and specifications forming a part thereof, but which alterations and

additions were deemed necessary and essential by the officers and

agents of the defendant in charge of said work to cure errors in their

original designs and to fit the plant for the purpose for which it was

intended; and this petitioner, pursuant to said orders, made such

alterations and additions, all of which were accepted by the defend-

ant, acting through its officers and agents authorized to accept the

same. and the defendant received and has ever since enjoyed the bene-

fit thereof.

4 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO.

And this petitioner avers that said alterations and additions and

the fair and reasonalle value of the work and material necessarily

entering into the same are as follows, to wit.

1. For furnishing and setting. in or about June, 1902. one additional

sixteen-inch valve for by-pass between drainage pumps, in addi-

tion to the one called for by contract No. ST6-A_~_~-------__-- $442. 20

2. For furnishing and setting. on or about July 11, 1903, one sixteen-

inch Ludlow foot valve not called for by any of the afore-

said contracts. __. ~~~ en Ray SE et La 114. 40

6 3. For substituting in or about June. “1902, two new

forty-tive-inch Rensselaer valves to replace

two old Southwark valves with wedge gates. —-----_- $1. 385. 00

Less allowance agreed upon between petitioner and the

chief engineer in charge of said work for old valves_ 450. 00

—_———— $935. 00

4. For furnishing and fitting, in or about November, 1901, covers

or gear casing for valves to protect the men engaged in oper-

ating the same, which were not covered by the aforesaid con-

SSS a REE es Se ee art AS ee AE eae 479. 05

. For furnishing and placing in position during the months of May,

June, September, and October, 1902, piles to support pipes for

the connection to Dry Dock No. 2. and furnishing and placing of

hew piles to support the altur-bearers of Dry Dock No.3. in addi-

tion to the piling provided for in contract No. ST6-A__------~ 1,139.50

6. For furnishing. in or about September, 1902, materials and labor

for sheet piling to remedy a leak in the dock, which was not

contemplated or provided for in any of the aforesaid coutracts_ $25. 84

. For amount paid during the month of September. 1902, for addi-

tional compensation for night work of excavators. boiler-

makers, dock-builders, and other workmen employed in and

about said work in the construction of the new suction chamber,

being work net contemplated or called by the aforesaid con-

Gn eR A IE ARES Ppa mre ne rege eens eee 636. 44

8. For labor and materials furnished between the months of January

and June, 1903, in the reconstruction of the old suction cham-

ber, which work was not included in or provided for in any of

a

the aforesaid contracts..................... ——se

7 . For materials and labor furnished i in 1 Oc tober, 1904, in renew-

ing and putting in condition the electrical operating de-

vices on two valves in pits connected with Dry Dock No, 2_—- 21. 73

10. For making changes in designs of lubricating devices in May,

1944. caused by changes made in the pipe line by the engineers

in charge of SR SSR Gr a ER eet EE 11.02

11. For altering and modifying. during the month of November. 1M,

the system of operating electrical devices for opening and clos-

ing the valves_._---_--- OTT io a NN LL ES oes 91. 20

12. For labor and material furnished between October 1, i908. and

January 1, 1904, in supplying and installing prcoelt wiring, in

niddition to and different from that required by the afore-

I I ie arin ect cre ernie ee

2S Rd fe ee Ee | Se EET eee ae | ey

Wherefore your petitioner claims that an obligation arose upon

the part of the defendant to pay to it the sum of ten thousand six

hundred and thirty-eight dollars and seven cents ($10,638.07), the

fair and reasonable value of the work and material above itemized;

but your petitioner says that no payment has ever been made to it

by the defendant for or on account of any of said items, and it is

justly entitled to recover of the United States the total amount

thereof. to wit. the sum of ten thousand six hundred and thirty-eight

dollars and seven cents ($10,638.07).

ee

al

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 5

VIII. Your petitioner further avers that during the progress of

said work upon said pumping plant the officers and agents of the

defendant in charge and control thereof, in addition to the work and

materials called for by the aforesaid contracts, ordered and required

your petitioner to furnish the following work and materials in order

to make certain repairs and alterations in and additions to said

pumping plant which were not specified in or contemplated by

8 the aforesaid contracts and the plans and specifications forming

a part thereof, but were made necessary by and grew out of

delays resulting from changes and modifications in the design and

location of said plant and by changes and alterations in the work and

materials which this petitioner was ‘alled upon to furnish under the

aforesaid contracts, and this petitioner was thereby subjected to great

loss and damage in the following particulars, to wit:

1. For labor and materiel] furnished during the months of October

and November, 14. to repair the volute of drainage pipe No.

1, which burst as the result of excessive pressure which the

officers and agents of the defendant had allowed to accumulate

in the water-supply system of the navy yard, to which your

petitioner had been ordered to connect its priming system --- $385. 00

2. For furnishing labor and materials on or about October T, 1904,

for a reducing valve to be placed in position in the priming

system to prevent a recurrence of the break last above men-

Py Ae a a gta eT) Fe cicreiuitaecieeeee 32. 72

3. For furnishing. on or about November 11. 1904, labor and mate-

rials to repair elbow on drainage pipe No. 2. broken on that

day as the result of excessive pressure in the priming system,

caused as described in item 1 ebove...---=-----=+---—-+--——-— 282. 25

4. For furnishing labor and material on or about February 3, 1%,

for a new valve and suction pipe in Dry Dock No. 3. which was

cracked by the freezing of water in Dry Dock Xo. 3. which had

been flooded by the officers and agents of the defendant in

charge thereof without notice to petitioner_----------------- 604. 00

. For labor and material furnished in and about May. 1904, to repair

and restore the pumps and pump shafts. which had become

rusted and damaged while waiting for the electrical machinery

to be placed in position, the installation of which was delayed

by the officers and agents of the defendant in charge of said

Sa cs ek oe tice vomcto ns nt ncmrina o 1, 560. 87

9 6. Cost of insurance upon the electrical machinery stored

in the yard during the aforesaid period of delay------ 217. 80

. Expenses of erector of electrical machinery in coming

qu

1

the same. which installation was postponed by delays

caused by the officers and agents of the defendant in

charge of sald work---------------------- $104. 66

Repairing motor to keep pump well free from water while

awaiting the decision of the officers and agents of the

defendant in charge of said work in regard to re-

pairing the bottom of the pumping Ce ie A 110, 15

Cost of renovating and restoring electrical apparatus after

it had become rusted and damaged by the long period

of storage in the yard, caused by the delay in the

work, occasioned by the officers and agents of the

defendant in charge of said work._----------------- 3. 841.98

4,056. 79

S. Cost of extra superintendence and for watchmen and for materials

and supplies required to keep the pump pit clear of water dur-

ing the long period of delay aforesaid and during the installa-

tion of the electrical machinery, which wits retarded by the

frequent docking of SEENON nnn enews enone sesweseenennnnn 9, 182. 66

Se en eae en acess _ 16,322. 09

6 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

And your petitioner charges that the defendant has received the

benefit of all of said repairs, alterations, and additions and was and

is solely responsible for all the damages and additional ex-

10 penses to which this petitioner was subjected, as above item-

ized, whereby and by reason whereof an obligation arose upon

the part of the defendant to pay to it the reasonable value of said

repairs, alterations, and additions, and to reimburse said petitioner

for its said damages and additional expenses; but your petitioner

says that no payment has ever been made to it by the defendant for

or on account of any of said items and it is justly entitled to recover

of the United States the total amount thereof, to wit. the sum of

sixteen thousand three hundred and twenty-two dollars and nine

cents ($16,322.09).

IX. Your petitioner says that no assignment or transfer of its

aforesaid claim or any part thereof or interest therein has ever been

made, and your petitioner is entitled to the several amounts above

stated after allowance of all just credits and off-sets.

Wherefore your petitioner prays judgment against the United

States for the total sum of thirty-two thousand nine hundred and

sixty dollars and sixteen cents ($32,960.16).

Tue Unrrep ENGINEERING AND ContrractinG Company,

By Davin L. Hoven, President.

{Seal The United Engineering and Contracting Company, city

of New York, 1899. ]

Attest : Freperick Woo ey.

Secretary.

State or New York, City of New York, ss:

I, David L. Hough, being first duly sworn. do depose and say that

I am the president of the United Engineering and Contracting

Company, a corporation, which corporation is named as party claim-

ant in the foregoing petition. I have read the said petition and know

the contents thereof, and the facts therein stated are true to the best

of my knowledge, information, and belief.

Daviv L. Hoven.

11 Subscribed and sworn to before me this 27th day of Novem-

ber, A. D. 1907.

E. S. Rue,

Notary Public, 163, N. Y. County.

[Seal E. S. Rue, Notary Public, New York County.]

McKenney & FLannery,

Hibbs Building, Washington, D. C.,

Attorneys for Claimant.

(Endorsed :) Original. In the Court of Claims of the United

States. No.30072. The United Engineering and Contracting

Company, claimant, vs. The United States. Petition. The clerk will

UNITED STATES vs. U

please file.

Wayne MacVeagh. Frederic

nery, William Hitz, Hibbs

Washington, D. C.

The motion of claimant's at

printed petition filed Dee.

J. Ranxpo.pn,

Ass’t C1. C. C.

13 I1.—.1 pp ndia

CLAIMA

Contract No. 876, dated Se]

Engineering & Contracting

. of the Bureau of Yards

Filed December

Con

This contract. made

14

first part.

under the direction of the Sec

part.

Witnesseth. That for and

inafter specified the party

agrees to and with the party

First. That the said party

and deliver,

Yard. New York, N. Y., all t

appliances

pumping plant for dry dock

and will construct

Re oe OF ag ene

with. and subject to, all the c

NITED ENGINEERING AND CONTRACTING CO.

Filed Dec. 9, 1907.

10,

Filed Dec. 9. 1907.

and Docks.

ing plant for Dry Dock No.

and concluded

fifteenth day of September, A. D. 1900, by and bet»

Engineering and Contracting

with offices at 13-21 Park

itself, its successors. and legal representatives. party of the

and the United States, by Mordecai T. Endicott,

Chief of the Bureau of Yards and Docks.

of the first part hereby covenants

at its own risk and expense,

for the construction

and completely

calendar months from the date of this contract.

7

Court of Claims. Law offices of

D. McKenney, John Spalding Flan-

Building, 728 Fifteenth St. NW..

MEM.

torneys for leave to omit exhibits from

1907, was allowed Dec. 15, 1907.

By roe Court.

to Claimant's Petition.

nt’s EXxuIbit A.

tember 15, 1900, between the United

Co. and the United States, by the Chief

Navy Department. for pump-

3 at New York Yard.

9, 1907, Court of Claims.

tract No. 876.

at Washington, D. C.. this

en the United

mn of New York,

N. Y.. acting for

Company, a corpora’

2ow, New York,

Navy Department, acting

retary of the Navy, party of the second

payments here-

and

in consideration of the

of the second part as follows, viz:

of the first part will provide, furnish,

at the United States Navy

he necessary materials, labor, tools, and

and completion, in all respects. of a

numbered three (3) at said navy yard,

install the same within seven

in strict accordance

onditions and requirements of the plans

and specifications appended hereto and forming a part of this con-

8 UNITED STATES Vs. UNITED ENGINEERING AND CONTRACTING CO,

tract, for the sum of seventy-nine thousand four hundred and thirty-

five dollars (S79.435.00).

Second. The party of the first part further covenants and agrees

to forever protect and defend the party of the second part in the

full and free vse and enjoyment of any and all rights to any inven-

tion, machine, or device which may be applied as a part of the work

herein specified and contracted for, either in its construction or use

after completion, against the demands of all persons whomsoever.

Third. The party of the first part further agrees that if during

the progress of the work it shall be deemed, by the party of the

second part, necessary or desirable to make any changes or modifica-

tions in the said plans and specifications, affecting the cost of the

work to be done hereunder, said changes or modifications, and the

amount of the inereased or diminished compensation to be paid

the party of the first part in consequence thereof, shall be

15 stipulated and agreed to in writing by the parties to the con-

tract before the work contemplated by such changes or modi-

fications is begun: and such increased or diminished compensation

shall, when exceeding $300, be assessed by a board of naval officers

appointed for the purpose. and shall be based upon the actual cost.

And this contract further witnesseth,

Fourth. That the party of the second part, for and in considera- *

tion of the foregoing, and for and in consideration of the faithful

performance of this contract by the party of the first part. duly

certified to by the inspecting officer appointed for that purpose, and

the acceptance of the work as satisfactory on the part of the United

States, do hereby covenant and agree, to and with the party of the

first part, that there shall be paid to the said party of the first part,

for the full and entire completion of the said pumping plant. the

sum of seventy-nine thousand four hundred and thirty-five dollars

($79.435.00), upon approved bills certified and drawn in the usual

manner, and payable through such navy pay office as the party of

the first part may elect, within ten days after warrants for the same

shall have been passed by the Secretary of the Treasury. in the fol-

lowing manner, viz.. as provided in paragraph twenty-nine (29) of

the specifications aforesaid.

Fifth. It is mutually understood and agreed that no payment or

allowance to said party of the first part will or shall be made by the

United States for or on account of this contract, except those pay-

ments herein specified, and that, when not otherwise specifically pro-

vided, ten per cent. will be withheld from the amount of each of such

payments as security for the full completion and performance of the

covenants and agreements hereof by the said party of the first part,

and that the final payment made hereunder shall include the amounts

so withheld.

Sixth. It is further mutually and expressly covenanted and

16 agreed, and this contract is upon the express condition that

no Member of or Delegate to Congress, nor any officer of the

_————

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING co. g

United States, naval, military, or civil, is. or shall be, admitted to

any share or part of this contract or to any benefit to arise therefrom ;

that any transfer of this contract, or of any interest therein, to any

person or party by the said party of the first part, shall annul this

contract so far as the United States are concerned ; that if said party

of the first part shall fail or neglect in any respect to perform this

contract or any part thereof as provided, it may at the option of the

United States be declared null and void, without prejudice to the

right of the United States to recover for defaults herein, or violations

hereof, and for such default the United States may demand and

recover of said party of the first part, as liquidated damages, a sum

of money equal to the penalty of the bond attached to and forming

a part of this contract.

In witness whereof the said parties hereto have hereunto set their

hands and seals the day and year first above written.

Tur Unrrep ExGixbertine AND ContractinG CoMPANY,

D. L. Hoven, President.

[Seal The United Engineering and Contracting Company, city of

New York, 189. |

Attest:

F. Woorry, -1ssf See.

Tue Unrrep States,

By Morpecat T. Expicorr.

Chief of Bureau of Yards and Docks,

Acting under the direction of the Secretary of the Navy.

Signed and sealed in the presence of—

Wa. M. Suiru,

As to M. T. E.

7 (Copy.)

H. Y. D.

The United Engineering & Contracting Company. Consulting & Con-

tracting Engineers, 1-21 Park Row.

New York, September ith, 1909.

Admiral Morvecar T. Expicott,

Chief of Bureon of Yards and Docks,

Navy Department, Washington, D.C.

Sin: We have the honor to refer to our proposal, made this day,

for providing and installing a pumping plant for Dry Dock No. 3

at the navy yard, New York, and to refer especially to paragraph No.

69 of that specification, under the terms of which we would say:

We propose to attain the end sought for by the method outlined

in a letter which we are informed is submitted to you by the General

Electric Company. or by the use of some modification of such

method as may be developed to be of equal or better ‘service (in ac-

Aine.

pe ete

10 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO.

cordance with the views of your burean during the designing and

construction of the apparatus which we furnish), should we be

awarded the contract.

Very respectfully, your obedient servants,

Tur Unxeren Excineerine & Conrrverina Co.

D. lL. Hoven, President.

Sealed proposals endorsed “ Proposals for pumping plant ~ will be

received at the Burean of Yards and Docks, Navy Department,

Washington, until b o'clock September 8, 1900. and then and there

publicly opened, for providing and installing a pumping plant for

Dry Dock No. 3 at the navy yard, New York. For plans. specifica-

tions, and forms of proposal address “ Commandant, Navy Yard,

New York.”

Morpecar T. Expieorr,

Chief of Burean,

Angust 9, 1900, |

1s Specification No. LOST. for a pumping plant for Dry Dock

No. Sat the United States navy yard, New York, under appro

priation “ Navy yard. Brooklyn, N.Y... pumping plant, Dry Dock

No. 3.

Act approved June 7, 1900,

Cleneral conditions.

1. Intention. Tt is the declared and acknowledged intention and

meaning to provide and secure a complete and substantial pumping

plant, according to the general plans and specification, to the entire

satisfaction of the Chief of the Burean of Yards and Docks and

the civil engineer in charge. Any details omitted from either plans

or specification, or from both, the performance of which is necessary

to the construction, of which the civil engineer in charge shall be

the judge. shall be supplied by the contractor as though fully de-

seribed and shown, and withont additional expense to the Govern-

ment.

2. Contract The contract to cover the work to be done will be

based upon this specification, which will be attached to and form a

part thereof.

3. Omissions and misdeseriptions.. The omission from the contract,

or from the plans, specification, or other papers attached thereto and

forming a part thereof, or the misdescription of any details of work,

the proper performance of which is necessary to fully carry out the

intention above expressed, shall not operate to release the contractor

from performing such work, but the same shall be fully and properly

performed in the same manner as though fully and correctly shown,

described, and required in and by the contract, and withont expense

to the United States in addition to the contract price.

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UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO, 11

4. Diserepancies. Should any discrepancy exist between plans

and specification, or any parts of either, or should the

1 language of any part of the contract be ambiguous or doubt-

ful. the civil engineer or other officer or agent of the United

States in charge of the work chall decide as to the true intent and

meaning. subject only to appeal to the Chief of the Burean of Yards

and Docks.

5 Control of work. -The United States, hy its officer in charge of

the work or other authorized representative, shall at all times have

full control and direction of all werk under the contract, and all

questions, disprites, er differences as to any part or detail thereof

chall be decided: by such officer or representative, subject only to ap-

peal to the Chief of the Burean of Yards and Docks.

G. Faeilities. ‘The contractor will he allowed reasonable space at

the site of the work and access to the same for receiving, handling,

storing. and working material, but he shall confine both employees and

material to the space assigned. Upon the completion of the work,

and before final payment on accent of the same. the contractor shall

remove all of his surplus material machinery. tools, ete., from the

naval station.

4. Employees. “The contractor chall employ only competent, care-

ful. orderly persons upon the work, and if, at any time, it shall

appear to the officer in charge that any persen employed upon the

work is incompetent, careless, reckless, or disorderly, or dhisebevs or

evades orders or instructions, er shirks his duty, such person shall

be immediately discharged from and net again employed pen the

work.

& Time of commencement of work. The contractor shall com-

mence work immediately after the execution of the contract and

continue without interruption, unless otherwise directed by the

United States by its officer in charge of the work or other authorized

representative, or otherwise hereinafter provided.

0. Delays and suspensions. The United States reserves the right

to reasonably delay the commencement of the work, and to

20 suspend operations at any time and for any period. Should

such delay or suspension cause a change in the cost of the

work, such change shall be determined as provided in paragraph 17

of this specification.

10. Time of completion. The entire work shall be completed in

every respect and particular within seven calendar months from the

date of the contract.

11. Extension of time.—-Extension= of time for the completion of

the work can only be allowed and made, in writing, by the Chief of

the Bureau of Yards and Docks. Any and every extension of time

must be specifically made and shall not be implied from any cause

under any circumstances.

12. Damages for delay.—In case the work is not completed within

the time specified in the contract, or the time allowed by the Chief

of the Bureau of Yards and Docks under paragraph 11 of this speci-

12 UNITED STATES VS. UNITED ENGINEERING 4 ND CONTRACTING CO,

fication, it is distinctly understood and agreed that deductions at the

rate of $25 per day shall be made from the contract price for eacl

and every calendar day after and exclusive of the date within which

completion was required up to and including the date of completion

and acceptance of the work, said sum being specifically agreed upon

as the measure of damage to the United States by reason of delay

in the completion of the work; and the contractor shall agree and

consent that the contract price, reduced by the aggregate of damages

so deducted, shall be accepted in full satisfaction for all work done

under the contract.

13. Unavoidable delays.—Unavoidable delays are such as result

from causes which are undoubtedly, or may reasonably be presumed

to be, beyond the control of the contractor, such as acts of Providence,

unusual storms, fires (not the result of negligence), fortuitous events,

inevitable accidents, ete. Should the progress of the work be, or seem

likely to be, delayed at any time by such causes, the contractor shall

at once notify the officer in charge. in writing, of the occur-

21 rence, in order that a record of the same may be made. Should

it be decided that the delay was unavoidable, a corresponding

extension of time for the completion of the work may be allowed,

but it is distinctly understood that should the contractor fail or neg-

lect to notify the officer in charge as above provided, such omission

shall be construed as a waiver of all claim and right to an extension

of time for the completion of the work on account of such delay.

14. Avoidable delays.—Avoidable delays are such as result. from

causes which the contractor might, by care, prudence, or foresight,

have guarded against or prevented. Should the progress of the

work be delayed at any time by such causes, the contractor distinctly

and specifically agrees and consents that the amount of any and every

expense to the United States, caused by such delay, may be deducted

and withheld from any payment due or becoming due to him on

account of the work, and that the contract price, reduced by such

amount, shall be accepted by him as full compensation for the work

done under the contract.

15. Progress of work.—If at any time the progress of the work

shall, in the opinion of the officer in charge. appear to have been such

as to indicate that the work is not likely to be completed within the

time allowed, he shall report such opinion to the Chief of the Bureau

of Yards and Docks, who may, in his discretion, declare the contract

null and void, without prejudice to the right of the United States to

recover for defaults or violations thereof.

16. Annulment of contract.—Should the contract for any reason

be declared null and void, the contractor shall thereupon become

indebted to the United States as for ascertained and liquidated dam-

ages in a sum equal to the aggregate of all payments made to him

on account of the contract, and undertakes and promises to refund

the same to the United States on demand. And the contractor shall

further agree that the United States may hold all material delivered

and work done under the contract and all machinery, tools, ap-

a

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UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 13

22 pliances, ete., upon the site of the work or used in connection

therewith pending the completion of the work covered by the

contract. Upon the annulment of the contract, a board of officers,

or other representatives of the United States, shall be appointed,

which shall ascertain and determine the value of all material deliv-

ered and work done, including a fair and reasonable margin of

profit thereon, and upon the approval of the findings of said board

by the Chief of the Bureau of Yards and Docks, he may proceed to

complete the work according to the contract in such manner and by

such means as he may deem advisable, and may, in his discretion, use

or employ any material, tools, machinery, appliances, etc., belonging

to or furnished by the contractor for use in connection with the work

covered by the contract. Upon the completion of the work, should

the total cost thereof exceed the contract price, the difference shall

be charged to the contractor who undertakes and promises to pay

the same upon demand; and the contractor shall be entitled to receive

the amount found due by the board above mentioned, including any

10 per cent reservation from payments previously made, but no

allowance shall be made for profit which the contractor might have

made by completing the work, nor for any excess of the contract price

over the total cost of the work.

17. Changes.—The United States reserves the right to make such

reasonable changes in the contract, plan. or specification as may

be deemed necessary or advisable by the Chief of the Bureau of

Yards and Docks. Should any change in the contract. plans, or

specification affect the cost of the work, the amount of the increase

or decrease in cost shall be estimated by the officer in charge, and, if

estimated to be more than $300, shall be determined by a board of

not less than three oflicers to be appointed under the direction of the

Chief of the Bureau of Yards and Docks: and the contractor shall

agree and consent that the contract price, increased or decreased

by the amount of the increase or decrease in cost caused by

23 any change, estimated or determined as specified, shall be

accepted in full satisfaction for all work done under the con-

tract : Provided, however, That any changes to be made shall, before

being made, be stipulated and agreed to, in writing, by the parties

to the contract.

18. Extras.—The contract price shall cover all expenses, of what-

ever nature or description, connected with the work to be done under

the contract. No allowance whatever will be made for additional

or extra work or material except under the provisions of paragraph

17 of this specification.

19. Patents.—The contractor shall forever protect and defend the

United States in the full and free use and enjoyment of any and all

rights to any invention, machine, or device which may be applied as

a part of the work, either in its construction or use after completion,

against the demands of all persons whomsoever.

20. Contractor’s responsibility.—The contractor shall be respon-

sible for the entire work and every part thereof, and for all tools,

14 UNITED STATES VS. UNITED ENGINFERING ANP CONTRACTING CO,

apphances, and property of every description used in’ connection

therewith. He shall specifically and distinctly assume all risks of

damage or injury from any cause to property or persons used or em-

ployed on or in connection with the work, and of all damage or

injury to any person or property. wherever located, resulting from

any action or operation under the contract or in connection with

the work, and undertakes and promises to protect and defend the

United States against all claims on account of any sueh damage or

injury.

21. Contractor's supervision. The contractor shall give his per

sonal attention to the work at all times. and shall be present. either

in person or by a duly authorized representative, on the site of the

work continually during its progress, to receive directions or

instructions from the officer in charge.

22. Verbal modifications. It is distinetly understood that no

verbal statement of any person whomsoever shall be allowed

24 in anv manner or degree to modify or otherwise affect the

terms of this specification or of the contract for the work,

Changes shall be made only and strietly acording to paragraph 17

of this specification.

SPRATAL CONDITIONS,

23. Deseription and location. The work to be dene will consist

of the erection, complete, ready for operation, of a pumping plant

for Dry Dock No. 3. New York Navy Yard. and will include the

construction of a well or chamber of the dimensions shown, located

near the entrance of the dock: all necessary machinery as provided

herein. including pumps, motors, piping. and connections, as shown

on the plan. The chamber under the ends of the suction pipes must

be sufficiently enlarged to admit of water flowing freely to the pipes,

both old and new.

24. Work.—The contractor must furnish all engineering skill. all

labor, skilled and common, all tools, machines. and materials to

construct the same, and all labor, tools, and material required to

make trials of the efficiency and sufficiency of any and all parts of

the work. on completion. The entire work is to be carried on and

completed in each and every detail in the most thorough, substantial,

and workmanlike manner, according to the full intent and meaning

of this specification and accompanying plans, to the entire satisfac-

tion, approval, and acceptance of the civil engineer in charge, and

of the Bureau of Yards and Docks.

25. Inspection.—The Government shall at all times, by the civil

engineer in charge. have full and free access to the work in progress

for the purpose of inspection. and all the work and material de-

scribed in this specification and shown on the plans shall be executed

to his entire satisfaction. All orders for material or finished work

shall be endorsed “ Inspection by Burean of Yards and Docks, Navy

Department.” The contractor or his agent shall promptly notify

a

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO, 16

the civil engineer in charge and the Chief of the Bureau of

yh Yards and Docks of the placing and location of orders for

material or finished work, and shall, at the time of placing

euch orders, forward to the bureau three copies of the same, and also

three sets of all working drawings or other matter pertaining to the

work,

26, Inspection at mills and) shops. The contractor or his agent

shall promptly notify the Bureau of Yards and Docks, or its author-

ized representatives, of the manufacture of materials in mills or

finished work in shops. and of the readiness of the same for

inspection and test. The bureau's inspectors shall be furnished by

the contractor or his agents with copies of all orders. manifests. plans,

or other data required by them for the complete inspection of mate-

rial or finished work and shall be given every facility for inspecting

all material and workmanship and all processes and operations affect-

ing the material without additional charge. ‘The acceptance of mate-

rial and workmarship is provisional on its compliance with the

specification and plans: and should any material or workmanship

prove defective at any time before final acceptance, it shall be rejected

and at once replaced ina satisfactory manner by the contractor with-

out additional cost.

97. Inspection during erection. During the work of reception and

erection the civil engineer in charge shall have authority to cause

any inferior or unsafe work to be taken down and altered at the

contractor's expense: and it is distinetly understood that the civil

engineer in charge shall have full power to reject any material he

may deem unsuitable for the purpose intended or which is net in

strict conformity to this specification.

98, Schedule of prices. After signing the contract. and before

the first payment is due, the contractor will submit to the civil engi-

neer in charge for approval a schedule of prices for material worked

into place.

29, Payments. At the end of each month the civil engineer

26 in charge will make an estimate of the amount of work done

under this specification during that month, based upon the

approved schedule of prices. A voucher for this estimate will be

submitted to the commandant for his approval. and after the ap-

proval of the Chief of the Bureau of Yards and Docks the contractor

will be paid the amount of the voucher, less 10 per cent reserved until

the completion and acceptance of the plant. Before any payment

is made the contractor shall furnish satisfactory insurance on the

material for which payment is desired, with loss. if any. payable to

the Chief of the Bureau of Yards and Docks for the United States.

DATA.

30. Drawings.-The general design and details of construction are

shown upon the plans which accompany this specification and are

to be considered*a part of it. Before any work is done, the con-

93333—13——2

a

16 ~=UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING Co,

tractor must furnish accurate drawings of all shop work and all

details not here included. These must be approved, in writing, by

the civil engineer in charge. Approval of drawings will be of a

general nature and will not relieve the contractor from the respon-

sibility for errors or omissions that may oceur therein, which shall

be remedied and made good whenever discovered. These plans sub-

mitted must show all details of steel and iron work, glass construe-

tion, brick, cement, ete.. and when approved are to be considered an

integral part of this specification. The contractor must furnish one

full set of drawings upon tracing linen, the same to be retained in

the office of the civil engineer at the New York Navy Yard. and as

many prints of these drawings as may be required in the course of

the work. Suggestions as to acceptable details can be obtained at

the office of the civil engineer at the New York Navy Yard. Should

a conflict exist between the plans and specification, the civil engineer

in charge shall be the judge as to the true intent and meaning, sub-

ject to appeal to the Chief of the Bureau of Yards and Docks.

27 31. Grades and lines.—All necessary grades and lines will

be furnished by the civil engineer in charge. to enable the con-

tractor definitely to locate the position and elevation of his structures,

but he must furnish the required engineering skill to properly erect

them. No work will be begun until the civil engineer in charge has

definitely located all necessary points, but thereafter the contractor

will be held responsible for them. Should any such be disturbed

through carelessness. the cost of replacing the same will be charged

against the contractor and be deducted from any money found due

at final settlement.

MATERIAL,

32. Round piles.—All piles are to be of spruce, at least 6 inches

in diameter, exclusive of the bark. at the point: 12 inches, exclusive

of the bark, 3 feet from the butt, and of sufficient length to show a

final penetration not exceeding 1 inch under the last blow of a 3.000-

pound hammer falling 15 feet. The piles must be entirely satisfactory

to the civil engineer in charge.

33. Sheet piles.—Sheet piles are to be of long-leaf yellow pine,

sound, free from all knots, except small sound knots. 6 feet from butt

or driving end, which will be allowed; free from dope or soft spots

and injurious shakes. Piles are to be beveled on contact sides to suit

the radius of curvature; the piles shall be driven until a satisfactory

depth shall have been reached, in the opinion of the civil engineer

in charge, said depth, however, not to be less than 40 feet.

34. Sand.—All sand must be clean and sharp, of uniform texture,

free from sewage, mud, clay, mica, paper, leaves, chips, and all other

foreign matter, and not show, when shaken with water and after

subsidence, more than 5 per cent, by volume, of silt. It must be

specially freed from such material by screening and washing, if so

ordered by the civil engineer in charge, and must be entirely satis-

factory to him.

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UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 17

28 35. Gravel.—All gravel must be clean, sea-washed, silica

gravel of best quality. It must not contain pebbles larger than

2 inches in greatest dimension, and none of it shall pass a screen hav-

ing 100 meshes per square inch. It must be specially freed from all

foreign material by screening and washing, if so ordered by the civil

engineer in charge. The gravel must be entirely satisfactory to him.

36. Broken stone.—All broken stone used must be of granite, hard

gneiss, or other material proved to be of good quality and acceptable

to the civil engineer in charge. It must be of such size as to pass

through a ring 2 inches in diameter and be held upon a ring one-half

inch in diameter. It must consist of angular fragments of stone,

and must be specially freed from all foreign materials by screening

and washing. if so ordered by the civil engineer in charge.

37. Water.—All water used shall be fresh and clean, free from

earth. dirt. or sewage. and shall be used in such quantity as the civil

engineer in charge may direct.

38. Cement.—All cement used will be tested by the Government

as soon as delivered, and only such will be accepted as conforms to the

following specification: Except where otherwise specified, it must be

the best grade slow-setting Portland cement. showing no change of

volume in setting. and no warping, checking, or cracking of edges or

curface. Neat briquettes must develop a tensile strength per square

inch of 200 pounds in twenty-four hours and 550 pounds in seven

days. The cement must be delivered long enough before time for use

to allow of the required tests being made and acceptable cement pro-

vided should the first prove unsatisfactory. It must be packed in

strong, well-coopered barrels. lined with moisture-proof paper. weigh-

ing at least 400 pounds, or in strong, cotton-duck bags holding one-

fourth or one-third of a barrel by weight. The contractor must give

n certificate from the manufacturers to the effect that the cement has

been seasoned for at least thirty days before leaving the works.

29 39, Concrete.—All concrete must be made of cement, accept-

able sand, and acceptable gravel or broken stone. The ingre-

dients must be measured by volume in the condition ordinarily han-

dled. These ingredients must be mixed in such proportions that the

cement exceeds the voids in the sand about 25 per cent and the dry

mixture of cement and sand exceeds the voids in the gravel or broken

stone about 25 per cent. These proportions will be determined for

the given articles of sand and gravel or stone used, and the proper

proportions for use made known. With the materials commonly

employed at the navy yard, New York, these proportions are about

1 to2 tod. The methods of mixing and placing the concrete must

be acceptable to the civil engineer in charge, and will be constantly

subject to inspection and change if found unsatisfactory. All un-

satisfactory work must be removed and replaced by the contractor.

40. Bricks.—All bricks used will be best quality selected red, well

and evenly burned, of uniform color and size. They must not absorb

more than 10 per cent by weight of water.

—_

18 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

41. Mortar—All mortar used must be mixed of sand and cement

in the proportions ordered by the civil engineer in charge, depend-

ing upon the character of the work. No cement mortar must be used

after it has begun to set.

42. Glass.—All window glass used is to be first-quality double-thick

American glass, free from irregularities and blisters, clear and true.

Skylight glass must be }-inch ribbed glass, uniform and true.

43. Galvanized iron.—All galvanized iron used must be of the

gauge shown upon the drawings. The black plate must be of soft

open-hearth steel, and each sheet must be evenly and thoroughly

coated, showing no imperfect or uncoated spots. Each sheet. in what-

ever shape or position, must be thoroughly fastened to its supports,

to the entire satisfaction of the civil engineer in charge.

30 44. Builders’ hardware. Builders’ hardware and fittings will

be of first-quality bronze and satisfactory to the civil engineer

in charge, to whom samples must be submitted before such articles

are used,

45, Steel.—AIL structural steel will be made by the open-hearth or

Bessemer process with not more than five one-hundredths of one per

cent of phosphorus for basic steel, and not more than one-tenth of

one per cent of phosphorus for acid steel.

46. All tests and inspection of steel will be made by a Government

inspector at the place of manufacture before shipment. Every

piece will bear the inspector's mark.

47. The tensile strength, limit of elasticity, and ductility shall be

determined from standard test pieces, cut in the presence of the

inspector from the finished material of each heat, and planed, milled,

or turned parallel, and have a cross section of at least one-half square

inch; and the elongation shall be measured upon an original length of

8 inches, except when the thickness of finished material is five-six-

teenths of an inch or less, in which case the elongation shall be meas-

ured in a length equal to sixteen times the thickness. Two test

pieces shall be taken from each blow, one for tension and one for

bending.

48. Finished bars, plates, and shapes must be free from injuries,

seams, flaws, or cracks, and have a workmanlike finish. A variation

in weight or cross section of more than 2} per cent from that specified

will be sufficient cause for rejection.

49, The structural steel used (except for rivets) shall have an ulti-

mate tensile strength of from 55,000 to 65,000 pounds per square inch;

an elastic limit of one-half the ultimate strength, and a minimum

elongation of 23 per cent in 8 inches, and must stand bending 180

degrees without sign of fracture, to a curve, the inner radius of

which equals the thickness of the piece tested, both cold and after

being heated to a cherry-red color, and then quenched in water of

60° F., and have a reduction in area of not less than 40 per cent at

the point of fracture.

31 50. All rivets must be ef steel having an ultimate tensile

strength of 52,000 to 62,000 pounds per square inch, an elastic

oni

—

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 19

im

limit of not less than 30,000 pounds per square inch, an elongation

of not less than 25 per cent in 8 inches. with a reduction of area

of not less than 50 per cent at point of fracture. It must stand bend-

ing 180 degrees and close flat. upon itself without sign of fracture.

Specimens must stand cold hammering to one-third the original

thickness without flaying or cracking.

51. Rods in tension must have threaded ends upset, so that the

diameter at the base of thread will be greater than that of the bar

before upsetting.

32. The workmanship must be first class in every respect. Rivets

must completely fill holes, have full heads of approved form, concen-

trie with rivet, and in full contact with the surface. The rivet hole

will not exceed the diameter of the rivet more than one-sixteenth of

an inch, All holes must be clean-cut, without torn or ragged edges,

or fracture of material. Rivet holes must be accurately spaced in

order that the several members will come together without the use

of driftpins, which will not be allowed for the purpose of bringing

parts together when the holes are inaccurately punched, Where

holes do not perfectly mateh they will be made to match by reaming,

in which case a rivet of a larger diameter will be used, Built mem-

bers when finished must be true and free from twists, kinks, buckles,

or open joints between component pieces. All abutting surfaces of

compression members must be planed or turned to even bearings so

that they shall be in such contact throughout as may be obtained by

such means. All field connections must be made by rivets.

33. Paint.—All -teel work, immediately on completion and before

exposure tothe weather, shall be cleaned from all mill scale. rust.grease,

dirt. and foreign matter by scraping. hammering. and brushing

32 with wire brushes, and to the catisfaction of the officer in charge,

and given one coat of pure red lead in pure raw linseed oil,

freshly mixed before application, in the proportion of 25 pounds of

lead to 1 gallon of oil. Contact surfaces shall be cleaned as above and

each shall receive one coat of the above mixture of lead and oil before

assembling. After the steel work is erected, all surfaces that will

be covered by walls or floors shall receive a thick coat of pure

asphaltum.applied hot. All other surfaces of steel work, not otherwise

specified, shall receive two coats of Dixon's siliea graphite paint No.

9 delivered at the building site in original packages and applied

without addition of other materials, or a paint composed of graphite,

pure linseed oil, and driers in proportions to make a paint equal in

quality thereto and approved by the civil engineer in charge. All

exposed steel shall receive two coats of pure white lead in linseed oil,

tinted as directed. AIL surfaces of architectural iron requiring the

same. in the opinion of the civil engineer in charge, shall receive two

coats of approved paint after erection.

4. Protection of material—All material used in the construction

must be delivered upon the ground ina condition for thorough inspec-

tion. It must be properly protected from the weather and from

injury, to the satisfaction of the civil engineer in charge. Any

20 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

injured material must be immediately removed and replaced with

satisfactory material.

PUMPING PLANT.

55. The general arrangement of machinery and appliances consti-

tuting the pumping plant are shown on the accompanying plan.

Slight variations due to details of machinery accepted may be made

by the civil engineer in charge.

56. Pump well.—There will be a continuous row of tongued and

grooved sheet piling completely surrounding the pump well.

33 These piles must be driven between guide wales, cut to proper

curvature, and properly bolted to a sufficient number of guide

piles. Bearing piles must be driven in the location shown, properly

cut off, and covered with concrete, forming the bottom of the pump

well, Upon this foundation must be constructed the brick wall in

the manner shown, The outside of the wall must be thoroughly

plastered with cement mortar and the space between the wall and

sheet piling filled with clay puddle, so placed as to be impervious

to water, The inside courses of the wall must be laid in properly

colored mortar and have two coats of linseed oil applied. The pump

house will be floored over with steel girders, beams, and concrete

arches; the concrete filling over arches will extend above the floor

beams 3 inches, well rammed and troweled. Over this concrete deck

will be laid, in the very best manner known to the trade, a 1-inch

coating of Kosmocrete or granolithic covering. The concrete floor

in the pump house will be overlaid with a 1l-inch coating of Kosmo-

crete. A waterproof ventilator is to be installed as shown. An

entrance house of steel frame with corrugated galvanized steel cover-

ing will be constructed in the very best manner and of the very best

material and workmanship, as shown on the plan. Two steel chan-

nels will form the stair stringers, and 12-inch channels will form

the treads for the stairway. Treads are to be secured with three rivets

at each end to 3 by 25 by ;y inch angle clips. A galvanized iron rail-

ing will be put up around stair well hole and on the outside of the

stairway: well fastened.

57. Pumps.—The capacity of the pumping plant operating at its

average safe efficiency shall not be less than 150,000 gallons per

minute.

58. There will be three main pumps of the vertical centrifugal

type, directly connected to three independent electric motors by

suitable couplings. Each pump shall have an average capacity of

not less than 50,000 gallons per minute, and shall be of a nominal

size of not less than 42 inches.

59, The pumps shall have balanced suction pipes. and the

34 pump cases shall not be less than 1} inches thick, suitably

ribbed and braced and pointed in such manner as to admit of

easy erection and taking down for examination and repairs. The

shafts shall be of forged steel, fitted with proper high-speed bearings

i

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 21

and stuffing boxes. The suction elbows are to be made in halves,

to provide for removal in case repairs are necessary. The suction

and discharge pipes shall be made of steel plates not less than one-

half inch in thickness. and the discharge pipe shall be of not less

than 45 inches internal diameter. All piping shall be fitted with suit-

able gate valves located inside the pump-house wall where directed.

The valves shall have double gates fitted with bronze faces and seats,

and with bronzed fitted stems and stuffing boxes, made to operate

hydraulically and by hand power.

GO. There will be one drainage pump of the vertical centrifugal

tvpe clirect connected to an independent electric motor by a suitable

coupling. It shall have an average capacity of not less than 6,000

gallons per minute.

61. The drainage pump shall have balanced suction pipes, and

the pump case shall not be less than three-fourths of an inch thick,

suitably ribbed, braced, and jointed in such manner as to admit of

easy erection and taking down for examination and repairs. The

suction and discharge pipes shall be made of steel plates not less than

three-eights of an inch thick, and the discharge pipe shall not be less

than 16 inches internal diameter. The drainage pump and piping

shall be fitted and equipped ina similar and corresponding manner

to the main pumps and piping.

62. An auxiliary pump of a make and type approved by the civil

engineer in charge and operated by an electric motor shall be in-

stalled in the pump well and arranged for draining the suction well,

operating valves. and priming the centrifugal pumps with fresh

and salt water from yard system and overboard, with valves,

piping, ete.

63. The auxiliary pump shall have a maximum capacity of

not less than 75 gallons per minute. Its discharge shall

35 connect with a main discharge pipe outside the gate valve,

and all its connection pipes shall have suitable stop valves

near the outlets. For the purpose of collecting drainage water a well,

° feet in diameter and 2 feet 6 inches deep. will be formed in the

bottom concrete; said well to be in the lowest part and to have a

3-inch plank covering over it.

64. Air pump.—A suitable air pump must be installed direct con-

nected to a proper motor, for priming all pumps. The same must

be approved by the civil engineer in charge.

6d. Ventilating fan.—The contractor will furnish and put in place.

as may be directed, an acceptable exhaust: fan, direct connected to a

proper motor, with all necessary piping for ventilating pump pit.

(4. Motors.—The design, material. workmanship, and finish of

all electrical machinery and appliances must be equal to the best

quality of similar machinery and appliances made by the Westing-

house Electric and General Electric Manufacturing Companies.

67. Main pump motors are to be wound for a constant potential

of 500 volts, direct current, to be of the open type, multipoler, with

22) UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

a field coi! for each magnetic pole. Field frame is to be east in two

parts, for ready separation in ease of repairs. Field coils are to he

interchangeable, and. if componnd wonnd. series and shunt coils

are to be separate, Armatures sre to be built up of thin sheet step]

and slotted for the enils. They must be well ventilated and perfectly

balanced. Armatnre coils are te be ba reowornd and are to be insulated

in the most perfect manner pessible in order te obtain a motor which

will be proof against dampness. Armatures sre to he two-cirenit or

cross connected, so that a brush ean be removed for cleaning or

inspection withont disturbing the electrical balance. Commnitators

must be large so as to give » small potential difference between adja

cent segments: they must have sufficient neck se that connections will

he above the brush surface. Brushes are to be carbon and are

Be not to exceed in density 30 amperes per sqnare ineh. Brush

holders are to be fitted with <hunt connections or must clamp

brush firmly. Brush helders of the reaction type will not he accepted,

Commutation must be perfect without change in position of brushes

from no load to 50 per cent overload. Bearings must be self-otling

and self-aligning. Insulation resistance must be not less than two

megohms, and must stand a test of not lese than 1.500 volts alternat

ing current botween windings and the frame. Motors must be able to

operate for twenty-four hours continuously at fall load without a

rise in temperature of more than 10° C. in any part of machine above

the surrounding air. Following the full load test. they must he able

to run for twe

rise of more than 35° C. in any part of the machine above the sur

‘ : ‘ i

rounding air. They shall be able to ron for thirty socands an a

j

hours with 50 per cent overload withent producing 4

1 per cent overload withont MjNrions heating or sparking, EM.

ciency at full lord must be not less than Of per cent and at one

fourth load not less than 82 per cent.

68. A snitable mea satisfaet rv switehhoard. af 224) ch white mar

ble. supperted by angle and tee irons. supphed with cirenit breakers,

hnonarcing lightning arresters, illuminated dial. Westen ampere and

voltmeters, switches. lamp brackets, and all other necessary and cde

sirable appliances, shal! he installed and ‘annected as directed by

the civil engineer i; charge. Eleetrie power will be delivered at the

switehboard by the CG: vernment, and all other connections must be

made by the contractor.

69. The starting apparatus shenld he preferably in the <hane of a

street railway controller, with magnetic blow-ont. and havit @ resist-

ance of iren and mica: vil to be mounted conveniently with reference

to the switchboard. The regulation of the motors to attain the <peeds

necessary for the economical operation of the pump at litferent

heads is to be obtained br seme method af Seld control or compound

winding. er beth together. A water rheostat. properiv in-

37 stalled and connected, may be used as a starting and regulat-

ing device. The same must be equivalent to the controller and

winding spevitied above. Bidders must present with their bid a de-

UNITED STATES VS. UNITED ENGINERRING AND CONTRACTING CO. 23

scription of the method they propose fo use in attaining the end

songht foro as well as full data in regard to capacity of pumps at

different lifts and horsepower of motors at the varions speeds and

ander the varions conditions of Tift.

70. ‘The auxiliary apparatus shall be of a make and type satis-

factory to the officer in-charge. The general specifications for pump

motors is to apply to ansibary motors,

71. Discharge culvert. “The discharge culvert must be built of

timber, supported on piles as chown. Each thickness of plank must

be ealked from the inside, 3-strand work, so as to make a water-tight

job. and the connection of the enlvert and the pump well and of the

entvert and the face of the wing wall, where the culvert empties over-

hoard. must be made water-tight. “The pavement must be replaced

above the discharge culvert in oa satisfactory manner and all rub-

hish and dirt removed. During the construction of the culvert

proper sheet piling: mst he emploved and sufficient shoring done to

prevent accident to neighboring land and strietures upon same.

72. Suetion pipes. One new 42 inch snetion pipe of finch steel

plate with a flaring shoe and proper bends must be installed as

chown, Snflicient piles must he driven to support this pipe, and

cross braces and siddles put in phice to hold the pipe in tts proper

position, AN joints in this pipe must be calked inside and out and

rust be tested te 88 inches van hefore acceptance. This pipe

must be installed and connected mp ready for use before the other

pipes are diseonnected. "The present: [6-ineh suction pipe and two

inch pipes must be disconnected at the elhows shown, and new

lengths of proper size and thickness put in place between the present

straight pipes and the pumps te he installed by the contractor. This

work of disconnecting and conneeting tp must not he done until

after the pumps have heen completely installed ready for work.

as One pipe at a time. as the exigencies of the case will permit,

must be disconnected: and replaced. se that the dock is put out

ef commission during the shertest possible intervals of time.

73. Suetion chamber. “The present) suction chamber in the dry

dock must be enlarged seas to prey ide room for the new suction pipe

to be installed. “Phe Government iH not be liable for damage to the

contractor's plant and work if it heeomes necessary to flood the dock

during this reconstruction. Thic will, however, not happen, except

ander the greatest exigencies, but the contractor must enploy

methods suitable and sufficient to protect himself and the adjacent

property from accident, Sufficient exeavation must be done to en-

large the chamber as shown, and proper sheet piles and bearing piles

mnet be driven if required by the civil engineer in charge. The

brick retaining walls and invert arches must be rebuilt as shown in

a satisfactory manner. ‘The contractor must do all necessary cutting

of timber, piles, brick, concrete, ete.. to accomplish the required

result, and must supply and install sufficient wire screening. similar

24 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING co,

to that at present in use, to cover the enlargement of opening in dock

floor and abutment.

v4. Crane track.—Suflicient piles must be driven where crane

track crosses the line of the suction pipes and of the discharge culvert

to properly support it. Foundation piers and box girders must. be

supplied and properly installed to carry the crane track across the

discharge culvert, and proper cribbing and string pieces must be

employed to carry the tracks over the suction pipe. This cribbing

must be of sound creosoted vellow pine or of oak.

75. Test—On completion of the plant. and before acceptance, a

full duty test is to be made by the contractor under the supervision

of the civil engineer in charge.

76. Alternate design.—Designs for this work, other than those

herein specified, will be considered, but must be accompanied by fully

detailed drawings and complete specifications covering the same.

The attention of such bidders is called to paragraph No. 79 of this

specification,

39 PROPOSALS.

77. Proposals.—Each proposal must be accompanied by a certified

check, payable to the Chief of the Bureau of Yards and Docks, for the

sum of $1,000, as a guaranty that the bidder will, within ten days after

notice of the acceptance of his proposal, execute the required contract

and give bond in a penal sum equal to 20 per cent of the contract

price, conditioned for the faithful performance of the contract. No

bond is required with the proposal.

78. Return of certified checks..—Checks of unsuccessful bidders will

be returned to them immediateiv on the awarding of the contract.

Check of the successful bidder will be returned to him immediately

upon the execution of the contract.

79 Rejection of bids—The Government reserves the right to reject

any or all bids, to waive defects or informalities in bids, or to accept

any bid, irrespective of price, as its interests may require,

80. Bids.—Bids must be itemized as follows:

Proposition No. 1: Pump well, house, machinery, piping, ete., com-

plete. as per plans and specification.

Proposition No. 2: Pump well, machinery. and piping, furnished

complete and installed, Government to furnish discharge culvert and

install new suction pipe from shoe to first elbow.

Proposition No. 3: Pump well, house, machinery, discharge cul-

vert of greater length. three entirely new 45-inch suction pipes, with

shoes and 16-inch drainage pipe, installed complete, with entirely

new suction chamber in dry dock, and increased work connected with

crane tracks. The alternate location to be as shown upon the plans.

81. Information.—Further information can be obtained in the office

of the civil engineer, navy yard, New York.

Navy DreprarTMeENT,

Burea of Yards and Docks, July, 1900.

—

NITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 25

) CLAIMANT'S EXHIBIT B.

Agreement No, 876-. 1.

This agreement made and concluded this twenty-first day of Jan-

ary. A. D. 1901, by and between the United Engineering and Con-

racting Company, & corporation of New York City. party of the

rst part, and the United States, by Mordecai T. Endicott, C hief of

he Bureau of Yards and Docks. Navy Department, acting under the

lirection of the Secretary of the Navy, party of the second part.

Witnesseth, that whereas it has been deemed advisable to make cer-

fain changes and additions under the provision of the contract be-

tween the parties hereto, dated the fifteenth day of September, A. D.

1900, for a pumping plant for Dry Dock No. 3.

Now, therefore, in consideration of the premises and of the mutual

covenant and agreement hereinafter stated, it is mutually covenanted

and agreed as follows:

Ist. The party of the first part shall change the location of pump-

ing pit twenty-five (25) feet further inland and toward the head of

the dock and shall enlarge the same from fifty-five (55) feet diame-

ter outside of the sheet piling to sixty-six (66) feet outside diameter,

the brick wall to be laid up to within one (1) inch of the sheet piling,

and the one (1) inch space between the sheet piling and brick walls

to be filled with hot asphalt as the work upon the wall progresses.

od. The location of the discharge culvert shall be changed so as

to pass outside of the ineasing sheet piling of Dock No. 3. and out

beyond the cofferdam sheet piling. discharging into the dock slip,

as shown on the plan hereunto attached, making an inereased length

of the discharge culvert of one hundred and fifteen (115) feet, more or

less. with necessary foundation piling, ete.

41 3d. The voltage of all electric motors for pumps and valves

shall be changed from 500 to 220 volts. and all valves shall be

operated by elect rie motors and hand power, instead of by hydraulic

power, as required by the original contract.

4th. The main pump suction pipes for Dock No. 3 shall be changed

from forty-two (42) inches diameter to forty-five (45) inches diam-

eter. and be 3” thick and shall be put in place complete and inde-

pendent of the old suction pipes that now lead to the pump house.

The pipes will be fitted with bell-mouths. similar to pipes in Dock

No, 2. The suction chamber in Dock No. 3 shall be enlarged and

encased in sheet piling with sufficient bearing piles. brick vault, and

concrete bottom, similar to the suction chambers now in Dock No. 3:

the bottom of the suction chamber will be on the same level as the

bottom in the chamber now in place. The brick walls and bottom

to be connected with the old chamber and the present end wall in the

old chamber will be removed so as to admit the free and full flow

of water to either the new or old suetion chamber; the new or en-

—

SR Sw

» aed

26 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING Co,

larged suction chamber will have a large opening for admission of

water to the chamber in the side of the dock opposite the new cham.

ber covered by wire grating similar to the opening opposite the old

chamber, allowance in size being made for increased size of the

new pumping plant. The suction pipes from the pump pit will be

supported on piles and cross caps. as may be found necessary, well

balanced and firmly chocked. After the suction pipes have been

put in place the side of the dock shall be restored to its former con-

dition and similar to the sides of the dock over the old suction pipes,

5th. The suction pipes for Dry Dock No. 2 shall be intersected at

the point back of the concrete wall at Dry Dock No. 2, as shown on

the plan hereunto attached, and conveyed on the same level to the

pump pit for Dry Dock No. 3: the new pipe, turns, and bends will

be of one-half (4) inch steel, and rest on the old cross cap piles of

Dock No. 2, which will be cut off and capped with sound timber from

the old cross caps at the proper level; on these caps the pipes

will be properly chocked. The old and new suction pipes

42 at Dock No. 2 will be fitted with valves operated electrically,

as shown on the plan. The Government will furnish two

forty-five (45) inch valves, which will be installed and fitted with

electric motors by the contractor: all other valves shown on the

plan will be furnished and put in place by the party of the first part.

Over and around the valves at Dry Dock No. 2 will be constructed

concrete and brick chambers, with proper manholes at the top: these

chambers must be water-tight and dry for the proper working and

preservation of electric motors that operate the valves.

6th. The party of the first part shall change the castings on the

pumps for Dry Dock No. 3 so as te properly connect the same with

the suction pipes from Dry Dock No. 2. and shall furnish one addi-

tional sixteen (16) inch centrifugal pump with suetion pipe from

intersection with drainage pump suction pipe at Drv Dock No. 2, this

pipe to be of three-eighths (2) inch steel. The two drainage pumps

in pump pit to be connected with a by-pass pipe and valves in such

manner that either dock can be pumped by either one of the drainage

pumps, «es shown on the plan herewith.

ith. The party of the first part to furnish all material and labor

necessary to carry out a’ first-class and workmanlike manner all

the changes and additions to the original contract. as above quoted;

to do all necessary exeavation and back fill and furnish in place,

complete, a substantial pumping plant of capacity as specified, capable

of pumping out and draining Dry Docks Nos. 2 & 3. as specified.

All the work shall be done in the most substantial and workmanlike

manner and to the entire satisfaction of the civil engineer in charge

of the work and the party of the second part.

Sth. The contract time shall be extended six (6) calendar months

in which to complete work under the original contract and this

agreement.

_

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 27

oth. For and in consideration of the changes and increase in the

pumping plant, as herein quoted, the party of the second part

43. shall pay unto the party of the first part the sum of forty-

two thousand eight hundred and eighty-five (42,859) dollars

as additional to the original contract price, payments to be made as

originally specified.

Provided, further, that this agreement shall be held and regarded

as and be supplemental to the aforesaid contract, dated September

§fteen, 1900, and shall be subject to all the requirements and condi-

tions thereof, except as herein provided, and shall in no manner affect

the validity and effect or action thereof or of the bond attached there-

to: and

Provided, further, that this agreement shall be accepted, signed,

and sealed by the surety on the bond attached to the aforesaid con-

tract. and said surety Is hereby made a party to this agreement for the

purpose of extending the obligation of said bond to cover the changes

herein provided for.

In witness whereof the respective parties hereto have set their hands

and seals the day and year first above written.

Signed and sealed in the presence of—

[seau.| ‘Tur Uxrrep ENGINEERING AND ConTRACTING COMPANY,

D. S. Hoven, President.

Attest:

Freperrck Wootry, -1ss"t Sec.

Tue Unirep Srates,

By Morpecat T. Enpicort,

Chief of Bureau of Yards and Docks,

Acting under the direction of the Secretary of the Navy.

Wa. M. Serre.

As to M.T.E.

Tue Union SURETY AND Guaranty Co.,

Everenr VAN SCHAICK, Chairman,

Attest:

[seaL.| Jed. Mason, Secretary.

(Endorsed :) Filed Dec. 9, 1907. Court of Claims.

44 Cramant’s Exumir C.

Supplemental Agreement No. 876-B.

This supplemental agreement, made and concluded at Washington,

D. C.. this 16th day of February, A. D. 1903, by and between the

United Engineering and Contracting Company, a corporation of

AES SOS IE Be

28 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING (9,

New York, with offices at 13-21 Park Row, New York, N. Y., acting

for itself, its successors, and legal répresentatives, party of the first

part, and the United States, by Mordecai T. Endicott, Chief of the

Bureau of Yards and Docks, Navy Department, acting under the

direction of the Secretary of the Navy, party of the second part,

Witnesseth, that whereas it is deemed necessary and desirable to

make certain changes in the provisions of the contract between the

parties hereto, dated September 15, 1900, for the construction and

completion, in all respects, of a pumping plant for dry dock numbered

three (3), at the United States Navy Yard, New York, N. Y.,

Now, therefore, in consideration of the premises, and for and in

consideration of the covenants and promises hereinafter stated, one

for the other, it is mutually covenanted, agreed, and promised as fol-

lows, that is to say:

First. That the party of the first part shall construct three hatches

in the roof of the pump well being constructed under said contract

as shown upon blue print of drawing No. C36-276, hereto attached

and forming a part hereof, and to the satisfaction of the officer in

charge of the work:

Second. That there shall be paid to the party of the first part, in

addition to the compensation agreed to be paid on account of said

contract, and in the manner of making payments on account thereof,

the sum of nine hundred and fifty-nine dollars and eighty cents

($959.80), which shall constitute full payment on account of this

agreement.

45 And it is further mutually understood, promised, covenanted,

and agreed that this agreement shall be held and regarded as

and be supplementary to and amendatory of the aforesaid contract,

plans, and specifications: that it shall in no manner or degree affect,

modify, alter, omit, or vitiate any provision or requirement of said

contract, plans, or specifications, except as specifically stated; that

each and every provision and requirement of said contract, plans,

and specifications shall remain in full force and effect and shall

be applicable to and govern all actions, operations, and transactions

on or in connection with the construction and completion of said

work, except as otherwise specifically stated and provided: that noth-

ing contained or stated in this agreement and nothing done or re-

quired under its terms shall operate or be held to annul, release,

reduce, or otherwise affect the bond attached to the aforesaid contract,

but the same shal] be and remain in full force and virtue in the same

manner and with like effect as though the modifications herein pro-

vided for had been included in and made a part of the aforesaid con-

tract at the time of the execution of the same: Provided, however,

That this agreement shall be accepted. signed, and sealed by the

_Surety on the bond attached to the aforesaid contract, and said surety

is hereby made a party to this agreement for the purpose of extending

the obligation of said bond to cover the changes herein provided for.

——

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 29

In witness whereof the said parties have hereunto set their hands

and seals the day and year first above written.

Tue Unrrep Enerneertnc & ConTRaACTING Co.,

D. L. Hoven, Pres’t, Party of the first part.

Tur Union Surety anp Gvaranty Co.,

Evoerne Van Scnaicn, Chairman.

46 Attest:

W.S. Macketiar, Secretary.

[Seal of the Union Surety and Guaranty Company, Incorporated,

1809. |

Tue Unirep Spares,

By Morpecar T. Enpicorr,

Chief of Bureau of Yards and Docks,

Acting under the direction of the Secretary of the Navi.

Signed, sealed, and delivered in the presence of—

Jouxsron Livineston, Jr. See’y,

For party of the first part.

Wo. M. Sirs,

As to M.T.E.

Ciamant’s Exuipir D.

Supplemental laree ment No. 876-C.

This supplemental agreement, made and concluded at Washington,

D. C.. this 7th day of March, A. D. 1905, by and between the United

Engineering and Contracting Company, a corporation of New York,

with offices at 13-21 Park Row, New York, X. Y., acting for itself,

its successors and legal representatives, party of the first part, and

the United States, by Mordecai T. Endicott, Chief of the Bureau of

Yards and Docks, Navy Department, acting under the direction of

the Secretary of the Navy, party of the second part,

Witnesseth, that whereas it is deemed necessary and desirable to

make certain changes in the provisions of the contract between the

parties hereto, dated September 15, 1900, for the construction and

completion, in all respects, of a pumping plant for Dry Dock Num-

bered Three (3), at the United States Navy Yard, New York,

N. Y.,

47 Now, therefore, in consideration of the premises, and for and

in consideration of the covenants and promises hereinafter

stated. one for the other, it is mutually covenanted, agreed, and

promised as follows, that is to say:

First. That the party of the first part shall modify the work being

done under said contract as indicated and illustrated by copy of the

report of the board and plan attached hereto and forming a part

hereof, and to the satisfaction of the engineer in charge of the work;

30 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING Co,

Second. That there shall be paid to the party of the first part, in

addition to the compensation agreed to be paid on account of the

aforesaid contract. and in the manner of making payments on aecount

thereof, the sum of six thousand seven hundred and eight dollars and

five cents, which shall constitute full payment on account of said con.

iract and this agreement.

And it is further mutually understood, promised. covenanted. and

agreed that this agreement shall be held and regarded as and be

supplementary to and amendatory of the aforesaid contract, plans,

and specifications: that it shall ino ne manner or deeree atfect,

modify, alter, omit, or vitiate any provision or requirement of said

contract. plans, or specifications, except as specifically stated: that

each and every provision and requirement of said contract, plans. and

specifications shall remain in full force and effect. and shall be

applicable to and govern all actions, operations. and transaetions on

or in connection with the construction and completion of said work,

except as otherwise specifically stated and provided: that nething

contained or stated in this agreement and nothing done or required

under its terms shall operate or be held to annul. release. reduce. or

otherwise affect the bond attached to the aforesaid contract. but the

same -hall be and remain in full force and virtue in the same manner

and with like effect as though the modifieations herein provided for

had been included in and made a part of the aforesaid contract at the

time of the execution of the same: Provided. however. That

47 this agreement shall be accepted, signed. and sealed by the

surety on the bend attached to the aforesaid contract. and

said surety is hereby made a party to this agreement for the pur-

pose of extending the obligation of said bond to cover the changes

herein provided for.

In witness whereof the said parties have hereunto set their hands

and seals the day and vear first above written.

Tue Unirep Excineerine & Conrractine Co..

D. S. Hoven. Prest.

Signed, sealed. and delivered in the presence of-

Francis L. Pruyy, .iss’t See’y.

Ture Union Sturety snp Guaranty Co.,

Evcent Vax Scnaick, (Chairman,

Attest :

(seaL.]| W. S. Mackennar, Secretary.

Tue UNrrep States.

By Morpecar T. Expicorr.

Chiet of Bureau of Yards and Docks,

Acting under the direction of the Secretary of the Vary.

Wma. M. Sauru.

Asta. M. T: E.

sat

-

UNITED STATES VS, UNITED ENGINEERING AND CONTRACTING CO, 81

(Copy—E. B.S.)

Navy Yaro, New Yor,

February 16th, 19023.

Sin: Complying with instructions contained in letter from

49 the Burean of Yards & Docks No, 7822. dated January 17th,

1903, and your Ist endorsement ordering a board, copies of

which are attached, marked “A.” we have the honor to report: as

follows:

» (9) We are of the opinion that it| will not be necessary to

remove the entire floors that the concrete should be removed down to

the head of the piles, as shown on drawing No, 1052 ACCOM pany ing

this report.

(h) The above referred to drawing shows the location and method

of waterproofing. Specifications for waterproofing are as follows:

Remove all concrete above the concrete marked “ Present concrete ”

on plan No, 7052. The old conerete is to be brought to a sufficiently

even surface to allow waterproofing to be placed on it: after the

surface of the old conerete is prepared, it is to have a thin binder

coat of asphalt dissolved in gasoline in proportions as directed by

the officer in charge and a coat of hot asphalt, then alternately layers

of felt and hot asphalt until six coats of felt have been applied and

even conts of hot asphalt. The felt is to be equal to the “ Beaver 7

brand roofing felt, weighing not less than fifteen pounds per 100

square feet. Waterproofing is to be put on by experienced workmen

and the coats of felt so applied and smoothed out that no air bubbles

or wrinkles will appear. This waterproofing is to join on to the

waterproofing already in back and under the brick wall.

(c) On the waterproofing is to be placed new concrete and Clinton

wire cloth, approximately as shown on drawing No. 7052, and to a

height as shown on that drawing, which is 6°’ above the height shown

on the original plans and called for in the original specifications.

SPECTFICATIONS,

The conerete is to be the same as originally specified: there are to

be four courses of Clinton wire cloth of #4 and #6, located as shown

on the above referred to drawing.

aD) (d) Owing to the fact that there are errors in design, as

stated by the bureau in the 3rd paragraph of its above referred

to letter, and also to the fact that there is no evidence before the

board that the work was not done according to the specifications

and that the material complied with the specifications, we are of the

opinion that none of this work is properly chargeable against. the

contractors for improper work or procedure.

(e) In regard to item #6 of the contractors’ claim, mentioned in

the Sth paragraph of the above referred to bureau's letter, we are of

=><p0p09 9 ‘

93333—13——3

32 UNITED STATES VS, UNITED ENGINEERING AND CONTRACTING co,

the opinion that there is nothing to prevent the contractors from

using such old pipe as is suitable, this old pipe being at least as good

as that which has remained in the ground and has not been touched.

The contractors have presented the original bills for work in con-

nection with item #6 of their claim, amounting to $459.99, which

with 10% added would make their claim $505.99, to which we think

they are entitled.

(f) Referring to item #11, referred to in the 5th paragraph of

the bureau’s above referred to letter, we are of the opinion that there

was nothing in the specifications compelling test of the pipe under

pressure. The contractors stated before the board that they did

not wish to test the pipe under pressure and objected to doing so,

but offered to test the pipe with the vacuum called for in the specifi-

cations when the proper time arrives. While being required to test

the pipe under pressure, the valves broke. The contractors have

furnished the board with original receipted bills for repairs to the

valves, amounting to $950.00; labor on the same, they stated to the

board, amounted to $81.88, total, $1,031.88, to which is added 10%

for contractor’s profit, making a total charge of $1,135.06.

3. We estimate the increased compensation due the contractors as

follows:

51 Excavation for concrete around and under walls, 70 cu. yds.

NN Ase ee a in ns ie ais eee mera $350. 00

Excavation for concrete floor of chamber, 200 cu. yds. at $2.50________ 500. 00

New concrete in place, 324 cu. yds. at $8.00___.---_-_--_ 2,592.00 |

Waterproofing, 360 sq. yds. at $1.S4______________-_____________-___- 662. 40

BE tig a a eee TOS. 00

Removing machinery, jointing, ete___.._.__.-_________----_--__-____- 254. 60

ie SG, Coniractorw Claim. .......<.. 2-22. cue. 2... DOD. 99

11, 6 Tiida ies et sae ein Si ck een te ni a 1, 135. 06

$6, 708. 05

4. Drawing #7052 is herewith forwarded under separate cover.

Very respectfully,

(Signed) P. F. Harrineron,

Captain, U.S. N.

S R. C. Hotiypay,

Civil Engineer, U.S. N.

* E. W. Eserce,

Lieutenant, U.S. N.

vas O. W. Koester,

Lieutenant, U.S. N.

The ComMANDANT,

Navy Yard, New York.

Approved, Feb. 26, 1903.

(Signed ) Morpecai T. Enpicort,

Chief of Bureau.

re

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 33

Bu. No. 7822—H. L. T. “A.”

Bureau or Yarps anp Docks,

Navy DepartMeNT,

Wasninoron, D. C., Jan. 17, 1903.

Sir: Be pleased to appoint a board of officers to report what modi-

fication in construction of the present bottom of pump well of Dry

Dock No. 3, being constructed under contract No. 876, with the United

Engineering and Contracting Company, should be made to remedy

existing defects and furnish a tight and substantial floor.

52 2. The board will state whether in its opinion the entire

floor should be removed or if a portion only; and if so, how

much.

8 The bureau desires to waterproof the floor in an effective man-

ner. Some disputes and misunderstandings have occurred between

the contractors and the Government officers as to the causes of the

present defects in the pump well floor. The bureau is clear that

whatever defects there may have been in construction, there are

errors in design, and desires to know what part of the present de-

fective condition is properly chargeable to improper work or pro-

cedure, and what to improper design.

4. In estimating the increased cost due to changes, the board exer-

cising its best judgment, will recommend as to what proportion of

increased cost is, taking all these matters into consideration, properly

chargeable to the contractors.

5. Items 6 and 11 of the contractors’ statement (copies enclosed)

should be referred to the board, and the board will recommend the

amount of compensation due the contractors under these two items.

6. Extracts from the correspondence between the bureau and the

contractors are enclosed herewith for the information of the board.

Very respectfully,

(Signed) Morpecat T. Enpicorttr,

Chief of Bureau.

The ComMANDANT,

Navy Yard, New York, N.Y.

(Enclosures. )

ist endorsement: Navy Yard, New York, Jan. 19, 1903. Respect-

fully referred to Captain P. F. Harrington, Civil Engineer R. C.

Hollyday, Lieutenant E. W. Eberle, Lieutenant O. W. Koester, who

are hereby constituted a board to carry out the instructions of the

bureau, as contained in the within letter. (Signed) A. S. Barker,

Rear Admiral, U. S. N., Commandant Navy Yard & Station.

(Endorsed :) Filed Court of Claims, Dec. 9, 1907.

84 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

53 IIT.— 7 rawerse.

Filed February 20, 1912.

In the Court of Claims of the United States. December Term,

A. D, 1911,

Tue Unrrep ENGINEERING AND Conrract Co,

UR. No. 30072,

Tue UNIrep Srares.

And now comes the Attorney General, on behalf of the United

States, and answering the petition of the claimant herein, denies each

and every allegation therein contained: and asks judgment that the

petition be dismissed.

Joun QQ. THompson,

Assistant Attorney General,

54 LV.—Arqument and submission of case,

On February 20, 1912, this case came on to be heard. Mr. John S.

Flannery was :ras heard for the claimant. Mr. Philip M. Ashford

was heard for the defendants. On February 21. 1912. Mr. Ashford

was heard further for the defendants: Mr. Flannery replied, and the

case was submitted.

55 V.—Findings of fact. as amended, and conclusion of law and

opinion of the Court.

Filed as of May 13, 1912.

Tue Unirep ENGINEERING AND CONTRACTING COMPANY }

v.

Tue UNITED STATEs.

This case having been heard by the Court of Claims. the court.

upon the evidence, makes the following

FINDINGS OF FACT:

I.

The claimant is a corporation organized under the laws of the State

of New York for the purpose of carrying on a general construction

and engineering business, with its principal office and place of busi-

ness in New York City.

IT.

On September 15, 1900, the claimant. in response to the advertise-

ment therefore, entered into a contract with the United States, through

UNITED STATES VS, UNITED ENGINEERING AND CONTRACTING CO. 385

Mordecai T. Endicott, Chief of the Bureau of Yards and Docks of

the Navy Department. by which it agreed for the sum of $79,435

to furnish all the necessary labor and materials for and to complete

within seven calendar months from the date thereof, in strict com-

plianee with and subject to all the conditions and requirements of the

plans and specifications forming part thereof, a pumping plant for

Dry Dock No. 3 at the New York Navy Yard, to be operated elec-

trieally, which contract and specifications made a part thereof are

cet forth in the petition herein as Exhibit A.

The claimant assembled its men and materials and began the con-

struction of said pumping plant in accordance with said contract.

After “he work was started and an excavation had been made for

the pump pit. driving some piles in and around same, and making

drawings for the pumps and motors necessary to install the plant,

the Navy Department concluded to connect Dry Dock No. 2 with Dry

Dock No. 3 and to build a single pumping plant for both docks,

5G to be operated wholly by electricity, to accomplish which the

claimant, through the same officers, on July 21, 1901, in aceord-

ance with paragraph 17 of the specifications, entered into the supple-

mental contract with the United States, No. 876A, made part of the

petition herein as Exhibit B. whereby the claimant agreed for the

cum of $419.885 additional to the original contract price to furnish

all of the material and labor necessary to earry out the changes in

and additions to the pumping plant contracted for in said original

agreement, and to complete the same on or hefore October 15, 1901,

to which date said original contract was extended.

IV.

While the work was progressing under the original and supple-

mental contracts a controversy arose between the claimant and the

civil engineer in charge as to the proper method of designing and

constructing the floor of the pump well, as to the correct interpreta-

tion of the requirements of the specifications concerning the construe-

tion of the suction chamber and other matters, which controversy

resulted in considerable delay and cessation of work without the fault

of the contractor.

JInuary 13, 1903, the Chief of the turean of Yards and Docks

appointed a board to consider changes in the bottom of the pump

well and the compensation to be paid therefor, of which the claimant

was advised by letter, in which the contractor was informed that it

| would be expected to immediately restime work under its contract

and push the same to completion with the utmost dispatch, otherwise

the bureau would annul the contract and take over the entire work

thereunder. The claimant thereupon promised to push the work to

completion as rapidly as possible. With this promise the bureau

appears to have been satisfied.

86 UNITED STATES VS, UNITED ENGINEERING AND CONTRACTING (C0,

Vv

After the date fixed for the completion of the work under the origi-

nal and supplemental contracts 876 and 876A, the claimant, on Feb.

ruary 16, 1903, through the same officers, as authorized by paragraph

17 of the specifications, entered into a second supplemental contract

with the United States, No. 876B, which is attached to the petition

herein as Exhibit C, whereby the claimant agreed to construct three

hatches in the roof of the pump well for the sum of $959.80 addi-

tional to that named in the aforesaid contracts. Nothing was said

in said last-named contract as to the time of completion or as to

delays under prior contracts.

VI.

The board of officers appointed to consider the sufficiency of the

design of the floor of the pump well and other matters in contro-

versy between the claimant and the civil engineer, as set forth in

Finding IV, reported February 16, 1903, in substance that there

were, as conceded by the Bureau of Yards and Docks, errors in the

design of the pump-well floor; that the work done and materials

furnished by the contractor complied with the specifications, and that

therefore the contractor was not chargeable with improper

57 work or procedure. The board estimated the increased com-

pensation due the contractor for the new work at $6,708.05, and

also made certain allowances to it for extra work.

Thereafter, on March 7, 1903, in conformity with said paragraph

17 of the specifications, the third supplemental contract with the

same parties was entered into, being contract 876C, which is attached

to and made part of the petition as Exhibit D. Said contract

embodied the changes found necessary in the original plan for the

construction of the floor of the pump well, and in which also it was

stipulated that the claimant should be paid, in addition to the com-

pensation agreed upon in the original contract, said sum of $6,708.05

in full of said contract. In said third supplemental agreement no

mention was made as to the date of the completion of either the

original or additional work nor as to the subject of delays prior

thereto.

VII.

The claimant proceeded under the contracts with reasonable dis-

patch and without delay on its part until May 1, 1903, when the

work was ready for the installation of the machinery. Up to this

date the claimant was delayed by the Government in making changes

and alterations in the work and in the use of the docks for docking

vessels while the work was going forward. No forfeitures or delays

were charged to the claimant to October 15, 1901, the time fixed for

the completion of the work, nor thereafter to May 1, 1903. During

this period, by reason of the delays of the Government aforesaid, the

claimant incurred additional expenses for superintendence and main-

~~

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 37

tenance of the plant amounting to $3,000, which sum is reasonable

if the claimant is entitled to recover therefor.

Vill.

During the period from May 1, 1903, to about April 21, 1904, the

work was delayed by the claimant's subcontractors in not getting the

pump castings in place, for which the Government was in no way

responsible, The claimant was also delayed for a few days during

said period by the Government while using the docks for docking

vessels.

At the request of the Bureau of Yards and Docks a civil engineer

made a review of the matter of delays, and in February, 1905,

reported in effect that notwithstanding the increased work required

by the supplemental agreements and the restrictions placed upon the

work the claimant was “ up to time * on its contracts to May 1, 1908,

but that subsequent to that date and up to said April 21, 1904, the

claimant had taken seven calendar months more time than was neces

sary to perform the work. After the plant was completed a board

was appointed to pass Upon the same, and it recommended the accept-

ance of the plant and certain deductions from the contract price for

failure to strictly comply with the specifications, amounting in all to

gs50. On Mareh 24, 1905, the civil engineer in charge t ‘ansmitted

to the claimant a supplemental agreement (S76D) covering such

deductions, which agreement contained a reservation “ that nothing

herein contained and no action taken hereunder shat! in anv manner

or degree affect the rights of either party hereto in the matter

D8 of delay and the completion of the work or otherwise except as

specifically stated.” which supplemental agreement the claim-

ant refused to execute; and thereafter in February, 1906, long after

the plant had been accepted, the bureau held the claimant responsible

for 240 days’ delay at the rate of $25 per day, or $6,000, as liquidated

damages and deducted the same from the balance due under the con-

tract, Which balance the claimant accepted under protest, and subse-

quently filed with said bureau a written protest against said dedue-

tion for delays and disallowances.

The court finds that notwithstanding the delays of the Govern-

ment the claimant with reasonable diligence could have completed

the plant for tests during said period by about September 21, 19038,

The time consumed by the claimant from that time to April 21, 1904,

a period of 210 days, or seven calendar months, was unreasonable, by

reason of which delays the Government was damaged, if measured

by the liquidated-damage clausewf paragraph 12 of the specifications

at $25 per day, in the sum of $5250; otherwise there is no evi-

dence as to the actual damage sustained: and if only actual damages

are recoverable, then the claimant is entitled to recover the whole

amount of $6,000 so deducted, otherwise the difference between the

amount so deducted and the amount found by the court, $750, as

hereinbefore set forth.

88 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

IX,

The work was completed and accepted for tests by the Government

about April 21, 1904; and after tests of the plant in different parts,

the docking of vessels by the Government, and incidental repairs, the

plant was finally accepted by the Government April 5, 1905.

During said period the claimant was required by the officers in

charge to maintain and ‘operate at its own expense the pumping

station, of which time two months were ample for testing the ma-

chinery. The residue of the time, about ten months, the claimant

without its fault was delaved by the Government in the use of the

docks for docking vessels at an extra expense to the claimant of

$3,562.35, including 10 per*cent profit, which amount is reasonable

if the claimant is entitled to recover therefor.

X.

In the performance of the work under the contracts the claimant

was directed and required by the officer in charge to furnish for the

benefit of the Government (and which it received) additional work,

labor, and materials as follows:

(Items 1, 2, and 3, averred in the petition, are abandoned for want

of proof.)

Item 4. Gear casing.—The contractor had purchased and installed

standard valves which. in accordance with the custom of the trade,

were not supplied by the manufacturers with casing or covering.

The valves so installed were intended by the claimant to be opened

and closed by motors operated from a switchboard so arranged

that workmen need not be in close proximity thereto, This method

was abandoned. After the plant was designed and while the work

Was progressing under the contract the defendants built a

59 plank walk across the top of the pipe in the pumping plant

for the more convenient use of their workmen: and to protect

them from the high-speed gearing the claimant was required to and

did inclose said machinery with a casing at an extra cost to it of

$479.05, which is reasonable if the claimant is entitled to recover

therefor.

The expense was necessitated by the plank walk so built across

the top of the pipe as aforesaid by the defendants.

Item 5. Extra piles——When the claimant was preparing its bid for

connecting Dry Dock No, 2 with Dry Dock No. 3 under the specifica-

tions and supplemental agreement 876A there was exhibited to it

by the engineer in charge a working plan dated March, 1892, show-

ing the details of a proposed timber dry dock, subsequently built by

John Walsh, and known as Dry Dock No. 2, which working plan, ap-

proved by the Chief of the Bureau of Yards and Docks, had been

used in the construction of said dry dock. The engineer in charge

at the time expressed to the claimant his belief, which appears

to have been honest, that the piles indicated on the plan were sufficient

UNITED STATES VS, UNITED ENGINEERING AND CONTRACTING CO. 39

to support their work, and relying thereon the claimant, in suggest-

ing a price to the board on such changed construction, without fur-

ther investigation, estimated for a less number of piles than it was

subsequently required to furnish. The additional piles were made

necessary by reason of the defective piles theretofore driven. These

piles were covered with asphalt, and the claimant could not have

made any examination to determine their condition without destroy-

ing the asphalt and the piles themselves. In the course of its work

on the pumping plant the claimant was required to drive 78 piles

additional to those estimated for in its bid to replace old piles,

which were in bad condition or insufficient in length, which it did,

without protest or objection, at an expense to it of $1,139.50, which is

reasonable, if the claimant is entitled to recover therefor.

Item 6. Sheet piling—While the claimant was engaged in the con-

struction of the suction chamber, the engineer in charge, to enable

the Government to use the dock for docking vessels, as well as to

enable the claimant to proceed with the work, required the claimant

to drive a number of sheet piles around the suction chamber to stop

a leak which had developed in the old piling theretofore driven by

the Government, for which the claimant was not responsible. The

cost of this work was $323.84, which is reasonable. if the claimant

is entitled to recover therefor.

Item 7. Night work on new suction chamber.—In the month of

September, 1902, to enable the Government to dock the U. S. 8.

“ Maine ” and other vessels, the claimant agreed with the Chief of the

Bureau of Yards and Docks to keep its men, who were engaged in

the construction of the new suction chamber, on night duty, which it

did at an additional cost of $636.44, which is reasonable, if the

claimant is entitled to recover therefor.

Item &. Reconstruction of old suction chamber.—Prior to entering

into supplemental contract A, the engineer in charge told the claim-

ant that the old suction chamber was not to be rebuilt, but that the

end walls thereof were to be knocked out. In the performance of the

work the civil engineer in charge construed the original contract,

No. 876, and supplemental contract, No. 876.4, to require the con-

tractor to build a new suction chamber and also to completely re-

construct the old chamber, which construction of the contracts

60 on appeal thereto was sustained by the Bureau of Yards and

Docks, and the contractor was required to perform the work,

which it did under protest, and completed the same at an expense

to it of $2,609.73, which is reasonable, if the claimant is entitled to

recover therefor.

Items 9, 10, and 11 are abandoned for want of proof.

Item 12. Additional electric wiring —During the progress of the

work of installing the machinery in the pump pit, a dispute arose

between the contractor and the civil engineer in charge in respect to

connecting the motors with the switchboard. The claimant proposed

to furnish a copper wire of the size called for by the regulations and

standard of the Fire Underwriters’ Association and the custom and

40 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

practice of the trade of building wiring, which would have been

effective for the purpose and would have cost about $1,375. The wire

so proposed to be furnished was rejected, and the contractor was

required by the engineer in charge to furnish a copper wire of the

size prescribed by the Standard Underground Cable Co., of from

two and one-half to three times larger in cross-sectional area and

proportionately more expensive, which the contractor did under

protest at an increased cost to it of $3,833.96. which is reasonable if

the claimant is entitled to recover therefor.

XI.

Breakage in drain pipes.—During the construction of the pumping

plant there were in said navy yard two systems of water pipes, one

a fresh-water system connected with the water system of the city of

Brooklyn, and the other a salt-water system belonging to the navy

yard, with both of which systems of supply in the navy yard, as

required by the contract, the claimant's system of priming the pumps

in the pumping well was connected. The pressure of these respective

systems was subject to sudden increase forfire purposes in the salt-

water system and to a cessation of use at times of the fresh-water

system for city purposes.

In the month of October, 1904, the volute of drain pipe No. 1,

being a part of claimant's priming system, burst as the result of

sudden pressure caused by the Government in one or the other of said

water systems without notice to the claimant and without its fault.

The claimant immediately repaired said break, and to forestall

against accidents of a like nature in the future placed a reducing

valve in said priming system, Notwithstanding this precaution the

elbow of drain pipe No. 2 was subsequently broken by pressure in

one or the other of said water systems. The claimant immediately

repaired this break, the cost of all which to the claimant was $699.97,

which is reasonable if the claimant is entitled to recover therefor.

XII.

Replacing broken valve.—In the winter of 1904-5, while the pump-

ing plant was in course of construction, the Government installed on

its own account an electric heater in the pump pit so near to a valve

that the valve itself became heated, and on one oceasion when this

condition existed a particularly high tide and a western storm oc-

curred in conjunction, endangering the caisson of Dry Dock No. 3.

As a precautionary measure the civil engineer caused said dry dock

to be partially flooded so as to equalize the pressure on the

61 ‘aisson. This filled the suction pipe leading to said valve

with cold water, thereby causing the valve to crack, as was

subsequently discovered.

In the construction and installation of said valve no provision had

been made to take care of expansion and contraction due to changes

—_—

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 41

in temperature. To replace said broken valve cost the claimant

the sum of $604, which amount is reasonable if the claimant is en-

titled to recover therefor.

NITI.

Renovating electrical machinery.—The electrical machinery was

delivered at the navy yard some time prior to May, 1903, when the

work was being delayed by the Government, but the same could not

be installed then, as claimant well knew, because the pumps were not

in place. The installation of the pumps was delayed for about 11

months after May 1, 1903, because the claimant’s subcontractor was

unable to get certain castings necessary for the installation of the

pumps.

During most of the period of delay the electrical machinery was

stored by the claimant under a shed covered with weather or tar

paper, which was not sufficient to protect said machinery from the

elements, and it became rusted. As a result of inefficient storage, for

which the Government was not responsible, the claimant was dequired

by the engineer in charge to overhaul and renovate the machinery

before installing the same. This was done by the claimant at a cost

to it of S8.841.98. which is reasonable if the claimant is entitled

to recover therefor.

CONCLUSION OF LAW,

Upon the foregoing findings of fact the court decides, as a con-

clusion of law. that the claimant is entitled to recover on Findings

VII. VIET, IX. XI, XU, and items 4, 7, and 12 of Finding X in

the sum of S18.815.77.

OPINTON,

Peete, Ch. J.. delivered the opinion of the court:

The Government by motion seeks a new trial on the assigned

ground of error of fact and of law, and also asks that Findings X and

XI be amended in certain particulars. We will, therefore, review

the case.

This action arises out of delays of the Government and for deduc-

tions as liquidated damages from the contract price for delays of the

claimant in the performance of contracts in the construction of a

pumping plant to be operated by electricity for dry docks at the navy

yard in New York and for extra additional work.

The original contract was entered into through the Chief of the

Bureau of Yards and Docks September 15, 1900, whereby the claim-

and agreed. for the consideration of $79.435, to furnish all necessary

labor and materials and to complete within seven calendar months,

in accordance with the plans and specifications made part of the

contract. a pumping plant for Dry Dock No. 3 at the New York

Navy Yard,

—

——

42 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

In accordance with the contract the claimant began work, and after

_ it had excavated for the pump pit, driven some piles in and

62 around same, made drawings for the pumps and motors neces-

sary to install the plant, the Navy Department concluded to

connect Dry Dock No. 2 with Dry Dock No. 3 and to build a single

pumping plant for both docks, to be operated wholly by electricity.

To this end a supplemental contract (A) was entered into, whereby

the claimant, for the additional consideration of $42,885, agreed to

furnish all necessary labor and materials to carry out the changes so

agreed upon and to complete the same on or before October 15, 1901,

to which date the original contract was extended.

After the date agreed upon for the completion of the work under

the original and supplemental contracts, and while the work there-

under was progressing, the claimant. on February 16, 1903, entered

into a second supplemental contract (B) with the United States,

whereby the claimant agreed to construct three hatches in the roof of

the pump well for the additional sum of $959.80, nothing being said

therein as to the time of the completion of the work or as to delays

under prior contracts.

During the progress of the work a controversy arose between the

claimant and the civil engineer in charge as to the method of design-

ing and constructing the floor of the pump well and also as to the

requirement of the specifications respecting the construction of the

suction chamber. which disagreement resulted in the appointment

of a board by the Chief of the Bureau of Yards and Docks to consider

changes in the bottom of the pump well and the compensation to

be paid therefor. The board reported that the work had been done

by the claimant in accordance with the specifications, and that it was

chargeable with no improper work or procedure. The board esti-

mated the increased cost of the new work at 86,708.05, for the doing

of which a third supplemental contract (C) was entered into March

7, 1903, in which no mention was made as to the time of completion

of either the original or supplemental contracts nor as to the subject

of delays prior thereto.

By reason of the changes so made by the Government and the use

of the dock for docking vessels. as set forth in Finding VIT. the

claimant was delayed in getting the work ready for the installation

of the machinery until May 1. 1903, during which time the claimant

incurred extra expenses of superintendence and maintenance of the

plant amounting to $3.000, for which amount. being due to the delays

of the Government, the claimant is entitled to recover.

During the period from May 1, 1903, to April 21, 14. when the

plant was completed ready for tests. the claimant unreasonably

delayed the work, as set forth in Finding VIII. for about 210 days,

by reason of which the Government was damaged. if measured by

the liquidated damage clause of the contract, 35.250: otherwise there

is no evidence as to the actual damage sustained: and if only actual

damages are recoverable then the claimant is entitled to recover the

a~~

whole amount of the deduction. $6,000; otherwise $750, the difference

soar

Se ee ’ ¥ eee :

-

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING Co. 43

between said deduction and the amount found by the court, as set

forth in Finding VIII.

And in respect of this branch of the case the claimant’s contention

is that as the work was not completed within the extended contract

time by reason of the delays of the Government, and no other time

was fixed in the second or subsequent supplemental contracts, the

time limit was thereby waived, and the claimant was therefore

63 entitled to a reasonable time within which to do the work;

and if not done within a reasonable time and the Government

was thereby damaged, then actual damages only can be recovered, to

be shown by evidence independent of the provision of the liquidated

damage clause of the contract. In support of this contention the

claimant cites the cases of District of Columbia v. Camden Tron

Works, 181 U. S. 453; King v. United States, 37 C. Cls., 428; and

United States ex rel. The International Contracting Co. v. Lamont,

155 U. S., 803; United States v. Gleason, 175 U. S., 588, 609.

That the claimant was, for the reasons stated, entitled to a reason-

able time within which to do the work is in effect conceded by the

defendants, but they insist that the liquidated damage clause of the

contract was continued in force and furnishes the measure of dam-

ages without other proof.

The provision of the contract, being paragraph 12 of the specifica-

tions relied upon, provides:

“12. Damages for delay.—In case the work is not completed within

the time specified in the contract, or the time allowed by the Chief

of the Bureau of Yards and Docks under paragraph 11 of this speci-

fication, it is distinctly understood and agreed that deductions at

the rate of $25 per day shall be made from the contract price for

each and every calendar day after and exclusive of the date within

which completion was required up to and including the date of com-

pletion and acceptance of the work, said sum being specifically agreed

upon as the measure of damage to the United States by reason of

delay in the completion of the work: and the contractor shall agree

and consent that the contract price, reduced by the aggregate of dam-

ages so deducted, shall be accepted in full satisfaction for all work

done under the contract.”

It is true that as a general rule the courts—not regarding forfeitures

with favor—incline to construe the damage clause of contracts,

where not clearly expressed otherwise, as a penalty where the same

can be accurately ascertained.

The sum so specifically agreed upon in the paragraph of the speci-

fications quoted as the measure of damages, it is therein provided,

shall be deducted from the contract price, and the amount so reduced

“ shall be accepted in full satisfaction for all work done under the

contract.” While neither the word “ penalty ” nor “ liquidated ” dam-

ages is mentioned in the contract, the intention of the parties, from a

fair construction of the language, is clear. Globe Refining Company

vy. Landa Cotton Oil Company, 190 U. S., 540: Sun Printing and Pub-

lishing Co. v. Moore, 183 U. S., 642.

a

5

a

44 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

But from the tenor of the claimant’s argument we infer that no

question would be raised as to the character of the damages had it

failed through its own fanlt to complete the work within the extended

contract time. The contention is. as before stated, that the work not

having been completed within a reasonable time the loss to the

Government. if any. became a penalty. snbject to proof as to the

actual damages sustained.

Now. «lid the Government by its conceded delays in preventing the

completion of the work within the contract time thereby waive the

time limit so as to disable itself from thereafter claiming the benefit

of the liemidated damage clanse of the contract for failure to perform

within a reasonable time’ That is to sav. within a reasonable

v4 time measnred by the cirenmstances-existing at the date the

contract time ceased. Lyle Shipping Co. v. Cardiff Corporation

(1900), 2 0). BL. 638,

In view of the insistence of connsel for the Government that the

derision in this case is “se clearly and emphatically a reversal of all

previons decisions of this court.” we will review. among others the

decisions te which he refers.

Counsel for the Government contends that the cases of the District

of Columbia v. The Camden Tron Works. 181 0) S.. 453. and Tttner v.

United States, 42. CIs. 336, are not applicable, because the claimants

in these cases were prevented from performance by the Clovernment

and thereafter they completed the work within a reasonable time.

However, in the case of the District of Colombia v. The Cambria

Tron Works (supra, p. 464) the conrt ruled that where strict perform-

ance was prevented or waved there conld he no recovery for fines or

penalties for delav or faire.

In the [ttner case, 42 C. (Us.. 536. the clarmant. bv reason of the

delav of the (roevernment in signing the contract. was unable to com-

plete the work within the contraet time. and in his reanest that the

time lint be waived agreed that. if granted, “all other provisions

of the contract shall remain in force ~ and that he would complete

the work within 0 davs’ additional time. The engineer in charge

recommended the approval of his application. but he was atlowed

a reasonable time and within that time hie completed the work. and

vet liquidated damages were deducted as thongh the time limit had

not been waived. The claimant recovered judgment in this court

for the whole amount of <neh deduction. from which judgment no

appeal was taken. This case lias since heen followed by the Comp-

troller of the Treasurr, 14 Comp. Der.. +19, 524: 15 Comp. Dee.. 362.

368. These deetsions also are in line with Hudson on Bmilding and

Engimeermg Contracts. 3d ed.. vol. 1. p. 524. and cases there cited.

In the Ellicott Machine Co. case. 43 C. Cls.. 232. the claimant had

failed to complete the work within the contract time. and the onlv

question was whether the contract provided for liqnidated damages:

and the court held that it did. and hence no proof otherwise of the

amount of such damages ‘was necessary.

a —

—

UNITED STATES VS. UNITED ENUINEERING AND CONTRACTING CO. 45

In the case of United States v. Bethlehem Steel Co. 2905 UL S.. 105,

the claimant had made four bids based on different dates of delivery,

the highest bid being for the shortest time. and on failure to deliver

agreed that there should be deducted an amount per day equivalent

to the difference between the short and the long time for delivery.

The court construed the language as evidence that time was of the

essence of the contract and that therefore the amount so stipulated to

he deducted was liquidated damages and that as the claimant had

failed to perform within the agreed time tue amount was properly

deducted, though credit was given to the claimant for the delays

subsequently cansed by the Government. Hence, independently of

the agreed domages, to have held otherwise would have been giving

the contractor the highest price for the longer time tn delivery, con-

trary to its bid.

Resides, the delay in performance was mainly and in the first

instance cansed by the claimant. and being mn defantt when the delays

of the Government occurred he was tn no condition to say that its

delavs had prevented him from performance within the con-

6) tract time. thongh it had delayed him from performance there-

after, for which he was entitled to credit.

Tt was doubtless for this reason that the question whether the time

limit: had been waived was not raised and. hence, the date from

which to assess damages was not eliminated. though the period for

which damages conld be assessed was shortened by the delay of the

Government, lerving the single question whether the language of the

contract could be construed as liquidated damages or a penalty.

The court therein refers to the case of the Sun Printing & Puab-

lishing Association vo Moore, 183 US. 642. There the question was

as to the payment by a charter party of a stm agreed upon as the

value of a vessel if he failed to return it. The question of time was

not essentially involved and therefore the amount to be paid was

rather in the nature of a covenant giving the charter party the elee-

tion to return or not: and if not, to pay the value agreed upon and

not some other value. Smith v. Bergengren, 152 Mass.. 226.

True the vessel was wrecked and lost, but, savs the court, “the

risk was hence cast upon him of loss, even be it without his fant,”

20 the price of the vessel, the court held, should be paid. not because

the vessel was wrecked and lost, but because it was not returned.

The transaction is akin to a conditional sale to a charter party for

an agreed price on failure to return instead of the value of the ves-

sel at the happening of an event upon which payment is to be made.

The damage on failure to return was the price agreed upon for the

vessel. but if the vessel had not been so valued in the charter party

the damage recoverable would have been the valne of the vessel

shown by the evidence. See Walls v. Comors. 115 U. S., 353, 360,

and cases there cited.

The court in effect held that though the actual damages could

readily have heen ascertained, nevertheless, as the parties had agreed

— : AKT TERR

46 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

upon the value of the vessel as the measure of damage on failure to

return, the contract was upheld.

In referring to that case this court in the Phoenix Iron Co. v.

United States, 39 C. C., 526, 542, said, “it is true that in the above

case it was not a question of penalty or liquidated damages, but the

transaction is akin to a stipulation as to the damages in case of the

nonperformance of an agreement within a specified time.”

In the Morse Dry Dock and Repair Co. v. Seaboard Transportation

Co., 161 F. R., 99, 100, the court held that while a default by the

defendants would have constituted a waiver of the time limit, the

delay was not due to the defendants, but was caused by a strike,

and therefore the claimant was liable for damages. The court,

however, said that the case followed the decision in McGowan v.

American Press Tan Bark Co., 121 U. S.. 575, in which only actual

damages were involved.

The numerous cases cited by counsel for the Government in his

reply brief on a motion for a new trial are, as he concedes, cases in

which the court was required to determine whether “certain provi-

sions of certain contracts were for penalties or for liquidated dam-

ages: and as to the case of the Phoenix Iron Co. v. United States,

supra, there was no question of waiver involved, apparently for

the reason that the delays of the Government, as shown by para-

graph 2 of Finding VIII, were of such a character as to indicate that

they were prior to the extension of the contract shown in find-

66 ing II: but the question as to whether the Government had

waived the contract time was not raised, and therefore the

effect of such waiver was not passed upon: that it to say, a waiver by

operation of law arising out of the delays of the Government in pre-

venting a contractor from the performance of his contract within

the contract time.

Now let us notice some of the cases which clearly sustain the deci-

sion of the court as heretofore announced and as herein adhered to:

It was early held in England that the amount of penalty stated in

the contract was not conclusive on either party, as the actual damages

proven might be more or less, but that liquidated damages bind both

parties. Winter v. Trimmer, 1 H. B. L., 343. Later, in the case

of Wilbeam v. Ashton, 1 Campbell, 78, it was held that the damages

could not exceed the amount of penalty. However that may be,

liquidated damages bind both parties and to be enforceable as such

must have a definite date from which to run. Dodd v. Churton,

1 Q. B., 562; Kemp v. Rose, 1 Giff., 258. If, however, such contract

provides for an extension of time for completion, and such extension

be granted, that will fix a different date from that named in the origi-

nal contract.

Here, however, while specification 11, made part of the contract,

provides that an extension of time for the completion of the work

can only be granted in writing by the Chief of the Bureau of Yards

and Docks, no such extension was granted except by the terms of the

first supplemental contract; nor, as therein provided, shall an exten-

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 47

sion of time “be implied from any cause under any circumstances.”

Hence as the work was not completed within the contract time by

reason of the delays of the Government, the time limit was thereby

waived and the claimant had a reasonable time within which to per-

form. Moore, Receiver. v. United States, 46 C. Cls.. 139. See also

Dodd vy. Churton, supra. This being true, the definite date from

which the liquidated damages were to accrue was eliminated. Drown

v. Ingalls, 3 Wash., 424.

In the case of King Iron Bridge & Mfg. Co. v. City of St. Louis,

43 Fed. Rep.. 768. 769, where the claimant had contracted for the

construction of a bridge on piers to be prepared by the defendant,

with a provision for a fixed sum as penalty per day for delay, and

where the defendant had prevented the contractor from performance,

the court said:

“ The result is that the provision awarding damages in a given sum,

should there be delay in completing the contract, was as effectually

eliminated from the contract as if the parties had canceled it by

express agreement, and it is wholly immaterial whether we say the

provision in question was waived or that the defendant is estopped

from insisting on the provision. It either event the result is the

same. The city, by its own default, having rendered performance

impossible within the time limited, has lost its right to claim the

deductions specified in the contract. The law to this effect is well

settled and fundamental. Stewart v. Keteltas. 36 N. Y., 388: Weeks

v. McCarthy, 89 N. Y.. 566; Starr v. Mining Co.. 13 Pac. Rep., 195;

Mansfield v. Railroad Co., 6 N. E. Rep.. 386: Navigation Co. v. Wil-

cox, T Jones (N. C.). 481; Dumke v. Puhlman (Wis.), 21 N. W. Rep.,

820: Jones v. Railroad Co., 14 W. Va.. 523.7

“For an unreasonable delay in erecting the superstructure after

the piers were fully completed, whereby the city sustained

67 injury, it might perhaps be entitled to recoup damages on a

counterclaim, but it has not framed its answer on that theory,

and no decision on that point is necessary. It has planted itself

squarely on the contract and insists upon the penalty nominated in

the bond, which. for reasons above stated. it is not entitled to.”

In the case of Jefferson Hotel Co. v. Brumbaugh et al., 168 Fed.

Rep., 867, 874, where there was a contract providing a penalty for

delay in the construction of a building, the performance of which

was prevented by the owner through other independent contractors,

the court said:

“ It must be conceded, also, that the entire completion by plaintiff

of his contract work was dependent upon these other contracts or

some of them being completed first. For these conditions the hotel

company must be held responsible. The enforcement of penalties are

not favored in equity, and they are so enforced only after the de-

mandant therefor has shown that he himself has strictly complied on

his part with all the contract requirements prerequisite to such

enforcement. It is vigorously urged that the plaintiff contractor in

93333—13——4

48 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

this case, however. was responsible for a large number of the days

of delay and the defendant company for only a few of the days

thereof. and that the court. under sneh cirenmetances, should attempt

to“ appertion ” sueh delay between the two ind hold the contractor

liable in penalty for those days that it in its indement. deems he may

be chareeable with. This ix just what the courte can not, with any

degree of certainty, «lo. and therefore refnse to doe © * *

Therefore the courts have laid down a very salntary rule to the offect

that thev vill not atfermpt to ipportion neh delaves where (he canses

thereof have been mutual. but will refese under cneh crretmetances

te enforce the penalty. The law on this matter iv well lard down in

a series of New York cases, sneh as Stewart Keteltas, 36 N.Y

388 Hectoman Pinkney. <1 N. } tl. and Weekes Lattle. <9

N. Y.. 568

Phat ‘Se ‘TAS follower inc iplhert n the ease of Velter Vite, i‘o

v. Tvgarts Valley Brewing Co 8% bed. R wre Loon “ea alan

Holme iinnnpy. 3 Meecon & \Welsbw | 1838). O87. Findlay (‘am-

eron (1878). 4 Viet. LI FR... 191

fn the case of Melrowan \meriean Presser Tan Derk Comnany

isiipra)d a contractor ndertoek to install maehinenm nm 2 team.

wat within OO daws ‘rom the cate of he contract ut es »pe-

vented oF he ovener net furnishing the borat until ofter the time had

expired. after vhieh he contractor itheut hrertion sroreceded

with the work: and he conmrt jetd. notwithstanding onceh seta, that

the -ontractor was wmmed to io the work wtthim 60 dave from the

ime the boat was tarnished. helding. iowever, that the vivre of

the owner te have the coat ready -xensed he comtracter fram ~triet.

performance. the court -aving:

-It os. therefore. -farmed ov the olamtif that ne damages vere

imeinded in the verciet on aecount of the detav on net erecting rhe

machinerr within “© javs from -inne v2. S81 date. f the contract},

This appears to De i come pronesttion. Vo en na errar in the

charge of the court. chat :f (he defendants oreceeded under (he con-

trnet rhev were bound to compete the cork oothm the leneth of tune

entemmlated bv the original ogreement ond -oeh additienal (ome

us was lost bv the telay on the constrnetion of the boat Chere

7 3 nothmg in the titl of excentions to «how that the rnaeninery

onid not have been erected within 00 (avs after the boat was

renciy to recerve it. The parties treated the contract as on Tull force.

except as to the time in whieh it was to he performed. and the ccark

was dome and the payments were made iinder the contract as (us

extended ntime. [he defendants made no claim before the =ait was

brought that the contract was resetnded by reason of the nonreadiness

of the boat until che [Oth of November. 1381. or that there wos anv

reasen nm that faet ‘which prevented them trom comniving with ther

part of the contract within the +6 avs after the detivery of the beat,

Ye sueh defense is set up ov them in therr answer. and thee intro-

dmeed no evidence to that «tfeet. -o tar as the bill of exceptions shows.

These views are in accordance with the ruling of this eourt ia Phillips

wns ee ee eats

VRIVTED STATES VS. UNITED PNOTNPRPRING AND CONTRACTING Co, 49

Conv. Sevmonr OF ES. 816 The plaintiff went on paving the

defendants on aeconnt for the machiners. ond the defendants pro-

ceeded in erecting i without complaining of the delay in the farnish-

ingoof the boat and withont anv ecloim that they cere not reqitired to

furnish the machinery within the 600 dave after the furnishing of

the heat Ne question of Hiqnidated damages was involved,

That ene was followed be the Cirenit Court of Appeals. Second

Cirenit. i the eae of Mpoe Pre Doel & Repair Co. v. Seaboard

Transp. Coo Conprad) recersing the Distriet Court, Southern District

of New York. ot Bed Rep 00) There a contractor engaged to

make oterations ina ship and agreed to pay a certain cnn as Hiegeri

dated damages Hohe failed te complete the work cithin the contract

tie Phe comteaet. as fomnd be the Dictriet Conrt. was cnbee

quently modified bya trifling change in the epectiicontions tnvobving

Jess than S200. and the comet held that the time fised for doing the

work wae not thereby watced. bat that the contract time for com-

pletion was oeetended far a coffictont length of time te perform thé

work. Phe comrt. among other things. cand:

Phic elanee vas Hot portant. and i ts manifest that the parties

inmaking i died net intend te modify the time precision in the con

troet Vhe Hhelont. having: agreed te make the chanee without re

quiring olditvonal time. can not mor urge it as an excuse for the

delay Phe este work ordered might hace heen done at the same

hime as the contract work and invelced no delay in the latter. And

the fart that thie estra work was clone im me way reheved the hhelant

from its obligation toe complete the cescel within the stipulated time.

But the question whether the respondent fulfilled its part of the

contrac and isin pesition to claim damages for the delay is a more

zerrons one THowas the duty of the respondent to frrnish the wind

lass toy he installed in the cessel The installation of the windlass

required about emaht dave time And vet the respondent only far-

nished Hoon Oetoher Th 1906. the day before the time limit for the

completion of the work. Whatever may then have been the =tate of

the work. Wo was obviensthy impossible te complete if in time.”

It was contended that the delay, however. was not by the respond-

ent but by reason of a strike at the libelant’s yard: and the court

answermy this contention said

“ The respondent's contention is based upon an assumption which

it had no nght to make. The respondent, seeking to enforce the

damage clause in the contract, must show that it lived ap to the con-

tract itself. Tt can not assume that its failare to perform ite

59 obligations made no difference. Tt is inypossible to say what

might have happened had the conditions been different. Ft

can not be said that, if the libelant had received the windlass earlier,

it would not have made greater efforts to hasten the work. The re-

spondent. seeking to enforce the contract can not recover damages

for delay which may have been occasioned by its own default.

“ Fad the failure of the respondent to deliver the windlass been

the cause of all the delay- had the work been waiting for the instal-

— amen “ : ones ee eet ee ee ee eee

an

50 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

lation of the windlass when it was delivered—the default of the

respondent would undoubtedly have constituted a complete waiver of

the time provision in the contract. * * * Consequently, while

the circumstances are not such that the, delay of the respondent

operated as a waiver of the time provision in the contract, it did

operate as an implied agreement extending the time sufficiently to

permit the installation of the windlass.” No question of liquidated

damages was involved therein.

Here the delays due to the Government were not before but after

the work began, and thereby the time limit of the contract was

waived; and as some of the work was done during the period of

delay, there is no basis other than a reasonable time within which to

perform. This being true, there is no definite date upon which the

liquidated-damage clause of the contract can operate.

Of course where strict performance of a contract is prevented by

the Government no claim for penalty or liquidated damages can arise,

as the contractor is without fault; and this is the effect of the decision

in the case of the District of Columbia v. Camden Iron Works, 181

UL S., 453, 461, 464, where, in this respect, the court, quoting from the

case of Williams v. Bank, 2 Pet., 102, said:

“ If a party to a contract who is entitled to the benefit of a condi-

tion, upon the performance of which his responsibility is to arise,

dispense with, or by any act of his own prevent the performance, the

opposite party is excused from proving a strict compliance with the

condition. Thus, if the precedent act is to be performed at a cer-

tain time or place, and a strict performance of it is prevented by

the absence of the party who had a right to claim it, the law will not

permit him to set up the nonperformance of the condition as a bar

to the responsibility which his part of the contract has imposed

apon him. * * * If strict performance by plaintiff was pre-

vented or waived by the defendant as contended on the facts, then

the claim for fines or penalties for delay or failure to deliver the pipe

could not be sustained.”

In the case of Dannat et al. v. Fuller, 120 N. Y. R., 550, cited and

relied upon by this court in the Ittner case, 48 C. C. Cls., 336, 351,

in respect of failure to perform a contract within the specified time,

the court said:

“It consequently appears to use that the failure of the plaintiffs

to perform on their part operated as a waiver of the performance

of the contract as to time, and the defendant consequently had the

right to perform his part of the contract within a reasonable time

after the plaintiffs had completed their part. The allowing of the

defendant 30 days additional time in which to complete the contract,

as was done in this case by the referee, does not restore the provi-

sions of the contract which had been waived * * *.”

70 In the later case of Mosler Safe Co. v. Maiden Lane S. D.

Co., 199 N. Y., 479, 489, among other things, the court said:

“Where the parties are mutually responsible for the delays,

because of which the date fixed by the contract for completion is

UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO. 51

passed, the obligation for liquidated damages is annulled and, in the

absence of some provision under which another date can be sub-

stituted, it can not be revived. If the respondent failed to complete

within a reasonable time after crediting the appellant’s delays, then

the latter had a cause of action for the former's neglect and the

measure of damages would be the actual loss proved to have been

sustained.”

The court quotes from the case of Willis v. Webster, 1 App. Div.

(N. Y.), 301-805, with approval, saying where “ liquidated damages

are to be sustained after a given date, the plaintiff [contractor] is

entitled to know with precision when he is laboring under such an

obligation, and not be required to leave it to the judgment of a jury

as to what is a reasonable time. It is impossible under the contract

to apportion liquidated damages. Either the liability for the liqui-

dated damage exists, or it does not. It can not half exist and half

be waived. In the case at bar there was a definite contract. which was

abrogated by the acts of both parties; and it requires equally concerted

action to breathe life into it again.”

If such be the rule where both parties have contributed to the delay

in completion, how much stronger should the rule be where the con-

tractor has been hindered by the other party; and if that party be

the Government its rights must be determined under the contract

according to the rules of law applicable to individuals.

Here the delays of the Government prevented the claimant from

a strict performance, and thereby it waived the contract time within

which to perform, and that waiver operated to eliminate the definite

date from which to assess liquidated damages; and though the claim-

ant in continuing the work was thereby obligated to complete the

same within a reasonable time the liquidated-damage clause was not

thereby restored and made applicable to an unreasonable time.

It would doubtless be competent for parties to a contract to agree

that in case of the waiver of a stipulation as to time. the liquidated-

damage clause might be continued and made applicable to an un-

reasonable time. Mosler Safe Co, v. Maiden Lane S. D. Co. (supra).

Nor can the court look to the liquidated-damage clause to deter-

mine the actual damages sustained. Sometimes where contracts

fail and recovery is sought on quantum meruit for work done or arti-

cles of merchandise furnished, the consideration or price fixed in

such contract may be considered in determining the reasonable value

of the work done or articles furnished, Salomon v. United States,

19 Wall., 17, 20; but can the liquidated damages so agreed upon

in this case be considered as the actual loss or damages for non-

performance within a reasonable time when the same were expressed

and intended as liquidated damages for the nonperformance of the

contract within a designated time? We think not.

The views here expressed are in harmony with the contract itself,

as, by specification 14 thereof, provision is made for deduction from

the contract price of “the amount of any and every expense to the

United States, caused by such delay ”; that is to say. such “ avoidable

52 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

71 delays ~ as the claimant “might by care, prudence, or fore-

sight have guarded against or prevented.” And whether the

amount of such deduction be regarded as additional to the liquidated

damages agreed upon is immaterial since the provision is independent

thereof and applicable to delays beyond a reasonable time as well as

to delays beyond the contract time.

Though after September 21, 1903, as set forth in Finding VIII, the

claimant unreasonably delayed the work, the Government did not

avail itself of the provisions of paragraphs 15 and 16 respecting an-

nulment of the contract. On the contrary, the Government recog-

nized, as found, that the delays had, in the first instance, been caused

by the additional work made necessary under the first and second

supplemental contracts and the use of the dock for docking vessels

while the work was in progress. Doubtless for these reasons the

Government did not elect to annul the contract; and while the claim-

ant was permitted to continue the work to completion, it was never-

theless bound to do so within a reasonable time.

Whatever loss the Government may have suffered by reason of the

claimant's breach to perform within a reasonable time must be re-

duced to actual damages, if any, susceptible of proof. This has not

been done, and for the reasons stated the claimant is entitled to re-

cover the $6,000 so deducted.

The findings (IX) show that the work was completed and accepted

by the Government for tests April 21, 1904, and that. after tests

of the plant, the docking of vessels, and incidental repairs, the plant

was finally accepted by the Government April 5, 1905.

Under specification 75, made part of the contract, the plant, before

being accepted, was to be subjected to “a full duty test by the con-

tractor under the supervision of the civil engineer in charge.” This

obligated the claimant to maintain the plant or pumping station at

its own expense during the time necessary to make the test. The

reasonable time in which to make the test, however, we have found

was only two months, whereas by reason of the use of the dock by

the Government for docking vessels and incidental repairs the tests

were not completed until April 5, 1905, or about 10 months beyond

the reasonable time necessary therefor. °

As a result of this delay in making tests the claimant, without its

fault, necessarily incurred in maintaining and operating the plant

or pumping station, so required by the Government for its benefit,

the additional expense of $3,562.55, including 10 per cent profit. for

which the claimant is entitled to recover unless the prior delay of

the claimant thereby necessitated the delays of the Government, in

respect to which the defendants contend that it operated to postpone

the time for testing the plant until after April, 1904. by reason of

which the Government was compelled during said period to use the

docks for docking vessels; that but for the delay of the claimant

the machinery could have been installed and the necessary tests and

remedies incident thereto made and completed before April, 1904.

UNITED STATES VS, UNITED ENGINEERING AND CONTRACTING CO. 53

From this premise the defendants in effect argue that the addi.

tional expense incurred by the claimant in maintaining the plant

beyond the time within which the tests could have been made was

through its own fault. for which the Government should not be held

responsible. We are unable to see the force of this argument. The

same reasoning might be applied to the delays of the Govern-

v2 ment from October 15, 1901, to May 1, 1903, and but for which

the claimant might have completed the work for tests by the

latter date: and so but for the delays of the claimant thereafter the

work would have been completed earlier, but neither delay can be

held to justify the Government in requiring the claimant to main-

tain at its own expense the pumping station for the benefit of the

Government beyond the time reasonably necessary for making such

tests. To so hold would be subjecting the claimant to an indirect

servitude or penalty without proof of loss.

As the claimant’s loss resulting from the Government's breach

requiring the claimant to maintain and operate at its own expense,

for the benefit of the Government. the pumping station for tests

bevond a reasonable time is shown by competent proof to have been

$3,562.35, the claimant is entitled to recover therefor.

This brings us to the items of extra and additional work not aban-

doned by the claimant for want of proof.

Item 4. Gear casing.-There is no provision in the specifications

or contract providing for such casing, and, as unde: the custom then

prevailing such casing or covering was not supplied by the manufae-

turer, the claimant purchased and installed standard valves without

such cases. The valves so installed were intended by the claimant

to be opened and closed by a motor operated from a switchboard,

so arranged by the claimant that workmen need not be in close

proximity thereto. After the installation of these valves and while

the work was progressing the defendants built a plank walk across

the top of the pipes in the pumping plant for the more convenient

use of its workmen, and then, to protect them from the high-speed

gearing, the claimant incased the machinery at an extra expense to it

of $479.05.

The casing for protection was necessitated by the plank walk built

by the Government, for which the claimant was in no way responsible,

and the Government having received the benefit thereof, the claimant

is entitled to recover the amount so expended,

Item 5. Extra piles—Prior to the claimant’s proposal respecting

the price to be paid for the work of connecting Dry Dock No, 2 with

Dry Dock No. 3, under supplemental contract S7T6.A, the engineer in

charge exhibited to the claimant and its subcontractors a working

plan dated March, 1892. upon which was indicated the piles thereto-

fore driven by the Government under another contract, the officer

expressing to the claimant and its subcontractors at the time his

belief that the piles driven were in place and sufficient to support

the work. The claimant, relying on the working plan so exhibited

54 UNITED STATES VS. UNITED ENGINEERING AND CONTRACTING CO,

and on the belief of the officer so expressed, and without seeking

further information, estimated as a basis for its bid for a less number

of piles than it was subsequently required to furnish. The piles so

driven were covered with asphalt. and for that reason contd not be

examined by the claimant to determine their sufficiency without

destroying the asphalt. as well as the piles themselves.

Though the number, position, length, and character of the piles so

driven were known to the Government. or should have been, the

officer, in expressing his belief that the piles driven were sufficient to

support the work, does not appear to have acted in bad faith, thongh

the claimant may have relied thereon.

Uniess the piles so driven by the claimant are embraced in the

contract as necessary to the full and complete performance

73 thereof, the claimant, independent of the belief of the officer

so expressed, will be entitled to recover therefor on the ground

that they were additional to those required by the contract.

The defendants’ contention is that they are embraced in the con-

tract, and in support thereof they rely upon that provision of para-

graph 4+ of supplemental contract 876A which reads:

“The suction pipes from the pump pit will be supported on piles

and cross caps, as may be found necessary, well balanced and firmly

chocked. After the suction pipes have been put in place the side of

the dock shall be restored to its former condition and similar to the

sides of the dock over the old suction pipes, :

While the number of piles driven may not have been contemplated

by the claimant when making its bid. nevertheless the provision of

the supplemental contract referred to was evidentiv intended to cover

the number found necessary for support as well as to complete the

work as an entirety.

For these reasons we must

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Transcript of Record — United States v. United Engineering & Contracting Co. · 234 U.S. 236 | Frix