Appellants Brief — William Frye White, Receiver of Cowardin, Bradley, Clay, & Co., Appt. v. United States

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Supreme Court of the United States.

October Term, 1915—No. 309.

WHITE, Receiver,

vs.

THE UNITED STATES.

1. Table of Cases Cited, ‘ . ; ; . Mi

2. Statement of Facts, . ; : ; I

3. Specification of Errors, 6

4. Argument, ‘ : , , ; : , 7 i

I. Work on the road was within the contract, 9

II. If any doubt remain as to the correct interpretation

of the contract the practical construction by the

parties prevails, . : > , a8

III. Claimant, apart from rights under contract, can recover

in quantum meruit, . : ; ' ; ee

IV. Summary, ; . ; " ; ; ; . 4!

SE a ON ee a

pee

iii

Supreme Court of the United States.

October Term, 1915—No. 309.

WHITE, Receiver,

vs.

THE UNITED STATES.

TAPLE OF CASES CITED.

Ackeston, Livingston v., 5 Cowen, 531, . : . 40

Attorney General v. Drummond, 1 Dru. & Wal., 353, 38

Banks, Paige v., 13 Wall., 608, : : 37

Belt v. United States, 15 C.C., 92, . . 40

Brooklyn Life Insurance Co. v. Dutcher, 95 U. S., 269,

29, 31, 35, 36

Carazos v. Trevino, 6 Wall., 773, _ - , . 2

Chicago v. Sheldon, 9 Wall., 50, ' ; > xe

Chicago Great Western Railway Co. v. Northern Paci-

fic Railway Co., ror Fed., 792, . , : :

PAGE.

District of Columbia v. Gallaher, 124 U. S., 505,

28, 32, 34, 35) 37) 42

Drummond, Attorney General v., 1 Dru. & Wal., . 38

Dutcher, Insurance Co. v., 95 U. S., 269, . 29, 31, 35, 36

Gallaher, District of Columbia v., 124 U. S., 505,

28, 32, 34, 35) 37) 42

Garrison v. United States, 7 Wall., 688, . . 28, 38, 42

Gibbons, United States v., rog U. S., 200,

28, 32, 33, 34, 38, 42

Hawaii, Lowry v., 206 U. S., 222, ; ‘ . 28, 36

Hickam v. Hickam, 46 Mo. App., 496, . “ : 40

Insurance Co. v. Dutcher, 95 U. S., 269, 29, 31, 35, 36

Livingston v. Ackeston, 5 Cowen, 531, ‘ - 40

Lowry v. Hawaii, 206 U.S., 222, . ; . 28, 36

Merchants’ Mutual Life Insurance Co., Reid V., 95

U. S., 23, ‘ . ‘ , : . ‘ ree:

PAGE.

Northern Pacific Railway Co., Chicago Great North-

ern Railway Co. v., 101 Fed., 792, ‘ , -

Old Colony Trust Co. v. Omaha, 230 U. S., 118, . 36

Omaha, Old Colony Trust Co. v., 230 U. S., 118, . 36

Paige v. Banks, 13 Wall., 608, . : ; a

Philadelphia R. R. Co. v. Trimble, ro Wall., 337, . 37

Plumley v. United States, 226 U. S., 545, ; ,

Reid v. Merchants’ Mutual Life Insurance Co., 95 U.

my OS, ; . : ‘ ‘ , : » 37

Ss.

Simpson v. United States, 199 U. S., 399, ‘ .

Sheldon, Chicago v., 9 Wall., 50, ; ‘ ‘ 29, 37

Topliff v. Topliff, 122 U.S., 121, . : ; oe

Trevino, Carazos v., 6 Wall., 773, — - . io ie 37

Trimble, Philadelphia R. R. Co. v., 10 Wall., 337, - 37

Turner & Otis v. Webster, 24 Kans., 38, . ‘ > 2

United States, Belt v., 15 C.C., 92, . : ; P 40

United States, Garris-n - , 7 Wall., 688, . 28, 38, 42

United States, Plumley v., 226 U. S., 545, : » “2

United States, Simpson v., 199 U. S., 399, , ~

United States v. Gibbons, 109 U. S., 200,

28, 32, 33, 34, 38, 42

Ww.

Webster, Turner & Otis v., 24 Kans., 38, . , + 52

Supreme Court of the United States.

October Term, 1915. No. 309.

Witt, Receiver, vs. Tuk Unrrep States.

BRIEF FOR APPELLANT.

STATEMENT OF FACTS.

On March 19, 1903, Lieutenant-Colonel A. M. Miller,

Corps of Engineers, United States Army, issued an adver-

tisement inviting proposals for work and materials for a

filtration plant to be constructed in Washington, District

of Columbia, for the purification and filtration of the entire

water supply of the city.

The plans and specifications, which were prepared by the

War Department and issued on the same date as the adver-

tisement for bids, consisted of 23 numbered plans showing

the plant generally and in detail, and elaborate printed speci-

fications containing 294 numbered paragraphs describing

the method of work, the kind of materials, together with

the system of Government supervision, inspection, and so

forth.

Under the method of bidding proposed by the United

States the whole work was divided into seven classes, known

respectively as Class A, B, C, D, E, F and G. Bids could

be submitted for any or all of the classes, but under the

method prescribed separate prices had to be submitted for

each class and for each item under each class.

MERA

The present appellant's firm, on the 6th day of April,

1903, entered into a contract “to furnish all the materials

(except cement)” and “ do all the work necessary under

Class A and Class B of the attached plans and specifications,

in full accordance with the terms of said plans and specifi-

cations.”

It will be noticed that the contractor under this contract

had no duties in reference to the other five classes of work

to be done, although the plans and specifications covering

them became a part of his contract with the United States.

By the terms of the contract the United States agreed to

pay, “as specified, the following sums for materials fur-

nished and work done, all quantities being more or less :—

“Class A—

“ for 880,000 cubic yards excavation,

“for 65,400 cubic yards embankment under filters,

“for 46,700 cubic yards other embankment, and

“ for 123,400 cubic yards filling over filters,

“all at 30 cents per cubic yard;

“for 2,000 cubic yards puddle at $1.00 per cubic yard,

“for 31 acres seeding at $75.00 per acre,

“for 9,700 square yards sodding at 25 cents per square

yard.”

Class B covered concrete in floors, walls, piers and vault-

ing, granolithic pavement, and for placing materials in

masonry and drainage of roofs, No question arises under

class B, and it is therefore not set forth in detail.

The plans showed as a feature of the work a road or

driveway to be constructed about the reservoir, at a con-

siderable height above the filter beds. There were other

streets and roadways already existing, which crossed or

bordered on the plant. These were to be left in existence,

and nothing was to be done on them; nothing was done on

them, and no question arises in reference to them.

The driveway or road which was to be constructed by

thc contractor constituted the western boundary of the space

occupied by the filters. This roadway was shown on all the

plans, except those consisting of details of the filters, etc,

It appears on the general plan of the works (General

Plan No. 1). It appears on sheet No. 4, which was a

general plan showing finished surfaces. It appears like-

wise on sheet No. 2, which showed the work in sections;

and on sheet No. 16. It appears in detail also in plan No.

1 of June 14, 1904, and No. 2 of June 14, 1904, the last two

being working plans showing in detail the grades to which

the road was to be constructed.

The road was thus clearly shown by the plans, and the

specifications incorporated the plans as follows:

“The general extent, location and character of the

work are shown by a set of 23 plans, numbered from

1 to 23 consecutively, which plans are made a part of

these specifications.”

Under the head of

“ EMBANKMENT. Items Nos. 2, 3, AND 4,”

the specifications read :

57. The work under this heading includes the fill-

ing of low places under filters and other structures, the

filling of central courts, the embankment about the

filters and all other fills and embankments shown by

the plans or directed to be made by the Engineer Offi-

cer in charge.

“58. Classification —Embankments shall be divided

into three classes :

“1. Embankment under filters,

“2. Embankments about the walls of filters and

in courts,

“3. Filling over filters.

“Material placed below the dam, in the roadways

and at other low places for the purpose of disposing of

it, and material disposed of off the ground shall not

be paid for as embankment. When waste embank-

ments come against the walls of filters or the pure-

water reservoir the usual section shall be built and paid

for as embankment and all materials outside shall be

treated as waste.”

There was no further reference to any road to be con-

structed by the contractor, and the only other mention of

“ roadways” of any kind occurs in paragraphs 293 and 294,

which read :

“993. Work Done by the United States —The

United States will construct the gate-houses, sand

washers, pumping station, macadam roadways and

other structures not included in these specifications and

necessary for the completeness of the plant and the

work to be done under these specifications shall be car-

ried on so as to facilitate and not discommode the

prosecution of that and other adjoining and contiguous

work, whether done by the United States or by another

contractor.

“294. Roadways——The United States shall cause

to be maintained by the contractor reasonable pas-

sageways and roadways, leaving the necessary clear

space, and the work under each class shall at all times

be so carried on as not to interfere with any other

work done in connection with this plant.”

The road for the building of which the contractor claims

compensation is a permanent elevated driveway extending

-around the reservoir of the filtration plant. (Findings |,

II, Ill, IV.)

The contractor made this road, and nearly completed it.

He was paid as the work on it progressed, to the total amount

of $12,000.00, The Engineer Officers of the United States

supervised the work, inspected it, and it was accepted and

paid for as work done in accordance with the plans which

were embodied in the contract. Supplemental plans of the

road giving details were also furnished by the United States

to the contractor, according to the terms of the contract.

Payment for the road work was made in the manner pro-

vided for by the specifications, and vouched for as “ other

embankment,” by the engineer officer in charge. (Findings

V, VI.)

Then on February 14, 1905, after the road had been prac-

tically completed (all but about 6,000 cubic yards), the

United States officer in charge told the contractor that no

more would be paid for on account of work on the road.

The contractor soon ceased work on it.

In the final payment, the $12,000 already paid to the

contractor on account of the road was deducted by the

United States.

Consequently the contractor has received nothing for his

work,

There were 67,578 cubic yards of inspected material

which he had used for the construction of the road. He

claims $20,275.40, which is at the contract price of 30

cents a cubic yard, and damages. (Findings IX.)

The contractors’ receiver brought suit in the Court of

Claims July 25, 1906. On October 14, 1907, the death

of the receiver was suggested and the appellant was substi-

tuted as party claimant. On October 16, the Attorney

General filed a denial of “ each and every allegation” of the

petition. On June 3, 1912, the case was submitted. On

November 21, 1912, the Court remanded the case for oral

argument. On the same day, after being argued, the case

was submitted. February 10, 1913, the Court of Claims

found the facts as above substantially stated, and dismissed

the petition. From this judgment, a motion for a new trial

having been overruled, claimant duly appealed to this Court.

SPECIFICATION OF ERRORS.

The Court of Claims erred:

1. In holding that the work of building the road was

work done outside of the contract.

2. In holding that the plaintiff's claim was based on a

single item of the specifications, and not on the contract

as a whole.

3. In ignoring and failing to give any force to those parts

of the agreement shown by the following provisions °

“The general extent, location ana character of the

work are shown by a set of 23 plans, which plans are

made a part of these specifications.” (Spec., 45;

Transcript of Record, 6.)

“The plans and specifications are intended to be

explanatory of each other, but should any discrepancy

appear, or any misunderstanding arise, as to the import

of anything contained in either, the explanation of the

Engineer Officer in charge shall be final and binding

on the contractor; and all directions, explanations, and

detailed or corrected plans, required or necessary to

complete any of the provisions of these plans and speci-

fications and give them due effect will be given by the

Engineer Officer in charge.” (Spec., 285; Transcript

of Record, 9.)

“The said party of the second part agrees to fur-

nish all the materials (except the cement) and do all

the work necessary under Class A and Class B of the

attached plans and specifications in full accordance with

the terms of said plans and specifications.”

“ And the said party of the first part [Lieut.-Col.

Te Seaia re oe

* " Ste 72 Oe aig I FORT IN Eo vin . 3 4

sieceapeasiasiaiidaiaiiation ED eR Tee a ee Me eo ee

A. M. Miller, United States Army] agrees to pay to

the said party of the second part [the contractor], as

specified, the following sums for materials furnished

and work done, all quantities being more or less

* * * for forty-six thousand seven hundred (46,-

700) cubic yards other embankment * * ¥* 30

cents per cubic yard.”

4. In so construing the contract as to render meaning-

less the provision of Specification 57 as to “all other fills

and embankments shown by the plans or directed to be made

by the Engineer Officer in charge.”

5. In holding this road to be a “ low place,” and ignoring

the obvious fact that it was, on the contrary, a high place.

6. In mistaking and misprinting part of specification 58,

so as to change its meaning, viz:

“ Material placed below the dam, in the roadways

and at other low places for the purpose of disposing

of it, and material disposed of off the ground shall not

be paid for as embankment.”

This is misprinted in the opinion by changing ‘“‘ roadways”

to “ roadway” and by inserting a comma:

“ Material placed below the dam, in the roadway,

and at other low places * * *.”

and the opinion is re-misprinted in the transcript of record,

so that it now reads:

“* * * the dam, in the roadways, and at other

low places * * *%,”

7. In concluding upon the findings of fact that claimant

is not entitled to recover.

8. In holding that the roadway was a “ so large part of

the work” and a work of “ magnitude” when it was only a

piece of work involving the payment of $20,273.40 out of a

contract involving the expenditure of $3,468,405.00.

9. In making a finding meaningless by trying to state

comparative costs, without the mention of any standard or

positive base of comparison, or any amount in money, viz:

“The roadway in question was just as convenient

a place as any to dispose of waste material, and the

cost to the contractor was no more than it would have

been to place it in the Soldiers’ Home grounds.”

So that no fact is found or stated thereby.

10. In not making a reasonable and coherent construction

of the contract, under which both parties acted, which gives

force to all its provisions, and adopting instead a forced in-

terpretation, which no one had thought of, which ignores

the plain meaning of the instrument.

11. In holding that the interpretation put on it by them-

selves is the only one of which the contract is susceptible,

and not considering that the construction by Colonel Miller,

under which claimant was paid $12,000 on account of the

road work, was a construction of which said contract was

susceptible; and that the work done by the claimant in good

faith and the money paid therefor relied on a practical con-

struction of ihe contract which cannot now be reversed, espe-

cially where the work done and the materials provided under

said construction have been used by the United States to

its benefit.

12. In not applying to the case at bar the rule of such-

cases as Gibbons v. United States, 109 U. S., 200, and Dis-

trict of Columbia v. Gallaher, 124 U. S., 505, which hold

that where the terms of a contract are not clear the practi-

cal construction of the parties should prevail.

13. In holding that claimant could not recover upon

quantum meruit even if the work, though not within the con-

tract, was of advantage to the Government, on the ground

that the findings show that said work involved no extra

expense to the contractors.

ARGUMENT.

I. The work done on the road was in pursuance with and

within the contractor's contract with the United States.

II. If any doubt remain as to the correct interpretation

of the contract, the practical construction of the parties

should prevail.

The work done on the road was in pursuance with and

within the contractor’s contract with the United States.

The above proposition, appellant submits, can be estab-

lished from the face of the instrument itself, taking the

instrument as a whole by demonstrating:

a. That the instrument by its language and diagrams

includes this road as work to be performed.

b. That the instrument provides for the payment for

this work.

c. That no contradiction exists in the instrument,

naturally construed.

d. That, on the contrary, if the theory of the United

States attorney be adopted the language of some parts

of the instrument becomes inappropriate, and ceases to

be relevant.

ce. That the alleged discrepancy in quantity be-

tween the 46,700 cubic yards of other embankment

contemplated by the original contract and the

amount of 67,578 cubic yards actually put in is ex-

plained by reference to the terms of the contract

itself, coupled with the conduct of the parties there-

under.

SLOPE ANNETTE RE ENS EE REIN VPE NPT STELLATE RG

The instrument evidencing the contract between the

United States and appellant consists of a paper-writing

dated April 6, 1903, which reads:

“Form 19a.

“4. This agreement, entered into this sixth day of

April, nineteen hundred and three, between Lieut.-

Colonel A. M. Miller, Corps of Engineers, United

States Army, of the first part, and S. P. Cowardin,

James F. Bradley, S. P. Clay, Thos. E. Stagg, and

M. Kelly, partners composing the firm of Cowardin,

Bradley, Clay & Company, of Richmond, in the County

of Henrico, State of Virginia, of the second part:

Witnesseth that in conformity with the advertisement

and specifications hereunto attached, which form a

part of this contract * * *.”

Turning to the advertisement and specifications, we find

the following, among other provisions :

“45. Plans—The general extent, location and

character of the work are shown by a set of 23 plans,

numbered from 1 to 23, consecutively, which plans

are made a part of these specifications, and which

plans are on file at the office of the Washington

Aqueduct.”

Thus we see that the plans are incorporated in the speci-

fications and thereby become a part of the agreement of

April 6, 1903.

It is determined by the Court of Claims that the plans

showed a roadway bordering the reservoir west of the filter

beds. (Finding IV.)

Accordingly the legal effect of the beginning of the written

contract is the same as if it had read:

“This agreement * * * witnesseth that in con-

formity with the advertisement and specifications which

show a roadway bordering the reservoir west of the

filter beds, * * * [and other things] which form

a part ot this contract * * *,”

The sentence proceeds :

"eo * eee. * 9 »* eee

* * * and the said Cowardin, Bradley, Clay &

Company do covenant and agree to and with each other,

as follows:

“The said party of the second part [the firm] agrees

to furnish all the materials (except the cement) and

do all the work necessary under Class A and Class B

of the attached plans and specifications in full accord-

ance with the terms of said plans and specifications ;”

We naturally inquire what Class A and Class B are, and

on turning to paragraph 24 of the specifications we find:

“Class A. Excavation, embankment, puddle, seeding

and sodding.

“Class B. Concrete masonry, granolithic pavement,

placing materials in masonry, and drainage of roofs.”

Now that we know what Class A and Class B are we see

that this part of the sentence quoted previously is the same

as if it read thus:

“ [The firm] agrees to furnish all the materials (ex-

cept the cement) and do all the work necessary, of ex-

cavation, embankment, puddle * * * — [ete.]

* * * to fulfill the attached plans and_ specifica-

tions,-which (among other things) show a roadway

bordering the reservoir west of the filter beds.”

eter DH

At this point we look at the plans, and see that the pro-

posed road bordering the reservoir west of the filter beds

is a road projected to run at a considerable elevation above

the original surface of the ground, on an embankment.

(.\ppellant’s counsel begs to say parenthetically that it

would comfort him greatly if he felt sure that every reader

of this brief will actually consult the plans which are before

the Court as a part of findings IV and V, and thus see, in

visible form, the road laid out as a part of the work.)

We notice nothing on the plans to distinguish this pro-

posed road from any other part of the work to be done. :

We see readily that this road is to be constructed by making

an embankment.

The Government will admit that the only way to build

the proposed road is by first making an embankment. With

such permission as may be allowed us by the learned counsel

for the Government, we will call this proposed road what in

fact it was, a road-embankment, and, as it is the only one

of its kind shown on the plans or involved in the contract

we will take the further liberty of calling it “the road-

embankment,” and of paraphrasing the written contract as

follows:

“(The firm] agrees to furnish all the materials (ex-

cept the cement) and do all the work necessary of

excavation, embankment, puddle * * * [ete]

* * * to fulfil the attached plans and specifications

which show (among other things to be made) the road-

embankment.”

Or in short form:

“The firm] agrees to furnish all the materials (ex-

cept the cement) and do all the work necessary of

* * * the road-embankment.”

SBR Pe ELA FA Pe

Counsel for the Government undoubtedly will admit the

justice of this paraphrase, their position being that the con-

tractor was obliged to build the road-embankment.

It is denied, however, that the Government is under a

liability to pay for this work.

The liability of the Government to pay rests upon the

next clause of the written contract, which reads:

“ And the said party of the first part [Lieut.-Colonel

Miller for and in behalf of the United States] agrees

to pay to the said party of the second part [the firm],

as specified, the following sums for materials fur-

nished and work done, all quantities being more or

less: Class A. For eight hundred and eighty thousand

(880,000) cubic yards excavation, for sixty-five thou-

sand four hundred (65,400) cubic yards embankment

under filters, for forty-six thousand seven hundred

(46,700) cubic yards other embankment, and for one

hundred and twenty-three thousand four hundred

(123,400) cubic yards filling over filters, all at thirty

(30) cents per cubic yard * * * [ete.].”

By this language the United States agrees to pay for

46,700 cubic yards of other embankment than that under

filters at 30 cents per cubic yard, the quantity being stipu-

lated as “ more or less.”

The road-embankment was without doubt “ other em-

bankment.”” Then and there is an end of this case and the

claim is clearly good, except for two considerations raised

by the Government which must be weighed at this point.

The first consideration raised by the Government is that

some embankment other than the road-embankment is meant

by the words “ other embankment.” Of course, if some-

thing else than the road-embankment is intended it will be

“ce

oe — , pags o* Bit ° HOS iSeASe

Be. i ia e a a

‘

shown in the plans, or clearly stated and explained by the

specifications, or the other findings of the Court of Claims

based on the evidence.

No “ other embankment” is shown by the plans, unless

it be the road-embankment.

No “ other embankment” is mentioned in the findings of

fact set out by the Court of Claims, nor is any part of the

work pointed to which involved any “ other embankment”

unless it be the road-embankment.

No “ other embankment” is stated in the specifications

except it be the road-embankment.

The natural place to look in the specifications is at Speci-

fication 57, the first paragraph under the section headed

“A. Embankment. Item Nos. 2, 3, and 4.”

The “ A” refers to the work under Class A, which we

have seen consists of excavation, embankment, etc. “ Item

Nos. 2, 3, and 4” refer to the embankment to be paid for

under the contract, which we have seen was:

“ 65,400 cubic yards * * * under filters,

46,700 cubic yards other embankment,

“423,400 cubic yards filling over filters.”

By consulting the plans it is clear that all the “ embank-

ment” (or “ filling,’ the words being used interchangeably ),

except the road-embankment in suit, was embankment under

or over filters.

With this condition in mind let us read Specification 57,

which says:

“A. Embankment. Items Nos. 2, 3, and 4.

e-w

57. The work under this heading includes the fill-

ing of low places under filters and other structures, the

filling of central courts [these were the spaces over

and between the filters], the embankment about the

filters, and all other fills and embankments shown by

the plans or directed to be made by the engineer officer

in charge.”

In other words, the “ other embankment” is, if anything,

“all other fills and embankments shown by the plans

or directed to be made by the engineer officer in charge.”

Now, the road-embankment is the only “ other embank-

ment” shown by the plans, and is clearly indicated by this

language. If there were nothing further there could be

no excuse for contending that the Government had not

promised to pay for the road embankment.

But the Government points to this specification next fol-

lowing :

“58. Classification —Embankments shall be divided

into three classes:

. Embankment under filters,

. Embankments about the walls of filters

and in courts,

3. Filling over filters.

“Material placed below the dam, in the roadways

and at other low places for the purpose of disposing

of it, and material disposed of off the ground shall not

be paid for as embankment. When waste embank-

ments come against the walls of the filters or the pure-

water reservoir the usuai section shall be built and paid

for as embankment and all materials outside shall be

treated as waste.”

The Government's argument is that, as no provision

is made under this classification for the road-embankment,

that it cannot have been contemplated by the phrase “ other

embankment” in the contract; and it is also urged that the

road-embankment falls within the terms of the provision

respecting “ material placed below the dam, in the road-

ways and at other low places.”

Each of these arguments would have force, taking Speci-

fication 58 alone, and looking at it without regard to its

relations to the other parts of the contract plans and specifi-

cations, and each has impressed the court below as of great

importance. Undoubtedly, if well founded, these argu-

ments would show that a conflict exists between paragraph

58 and the rest of the contract. Nevertheless, a careful

study of 58 in its relations to the rest of the agreement

of which it is a part can_ only lead inevitably to the follow-

ing conclusions :

1. The classification undertaken in 58 relates to the items

of 65,400 cubic yards embankment under filters and the

123.400 cubic yards filling over filters, and was not intended

to relate at all to the 46,700 cubic yards of other embank-

ment which were planned to go into the road-embankment,

and had been recognized by 57.

2 The road-embankment was not referred to as “ below

the dam” or by the words “ roadways and other low places.”

nor as “all materials outside”; and none of this paragraph

refers to the road-embankment at all.

To take the second subject first, as it can be more

quickly treated.

“ Material placed below the dam, in the roadways

and at other low places for the purpose of disposing of

it, and material disposed of off the grounds shall not

be paid for as embankment.”

These words are capable of two constructions. If the

clause “in the roadways and at other low places” is sub-

ordinate to the clause “material placed below the dam,”

then the sentence refers to two distinct dispositions of ma-

terial, the first being that of material placed below the

dam, in roadways and at other low places (all being be-

| low the dam), and the second “ material disposed of off the

ground.”

| Should this construction be adopted no question can arise

about the road-embankment, for, as can be seen readily

| from the general plan, no part of the road-embankment in

| question is below the dam.

But it is possible that the sentence means something si it-

| ly different. It is possible that the phrases “ below the dam.”

| “in the roadways and at other low places” are codrdinate,

| the words “ material placed” being omitted by ellipsis, but

. understood as if repeated before the words “ in the roadways

and at other low places.” In that case the sentence means :

“ Material placed below the dam, material placed in

the roadways and at other low places for the purpose

of disposing of it, and material disposed of off the

ground shall not be paid for as embankment.”

If this be the proper construction, it is clear that the

“ roadways” in mind, whatever they are or wherever they

may be, are “low places.” ‘‘ Roadways and other low

places” can only mean “ roadways which are low places and

other places which are low also.”

The road-embankment proposed was not, nor was its site

a “ low place.” It was, on the contrary, very much higher

than the filters. and even before any embanking had begun

its site was many feet higher in level than the level shown

by the plan for the finished tops of the filters, as can readily

be seen by consulting the plans which are a part of finding

IV. It is very strange that if the road-embankment was

meant, it should be called “ low.”

It should further be borne in mind that the name “ the

roadway” is only applied to the road-embankment by the

Court of Claims in its findings as a convenient substitute

for the expression “ driveway about the Washington City

reservoir.” (See second paragraph of Finding III.)

Thus it seems clear that the “ roadways” spoken of in con-

nection with “ other low places” were not the same as the

road-embankment around the reservoir, which the findings

call “the driveway” and afterwards the “ roadway,” but

we cannot be sure of this, perhaps, unless we find some

other roadways in the work which would fulfil the descrip-

tion.

On referring to paragraph 294 of the specifications we

find the roadways which were intended. They are men-

tioned appropriately enough under the heading ‘‘ Roadways”

and are evidently what the writer of paragraph 58 had in

mind, if the second construction of that paragraph be the

correct one.

“294. Roadways.—The United States shall cause to

be maintained by the contractor reasonable passageways

and roadways, leaving the necessary clear space, and

the work under each class shall at all times be so car-

ried on as not to interfere with any other work done

in connection with the plant.”

The site of the plant was excavated to a considerable

depth and covered about 30 acres (Specification 46). Hence

this provision for the maintenance of reasonable roadways,

which would be, of course, “low places,” just as the roads

in any great excavation work would be.

There were also other roadways not shown by the plans.

to which 58 may have had reference. These roadways

were the macadam roadways mentioned in Specification 295.

“993. Work Done by the United States—The

United States will construct the gatehouses, sand

washers, pumping station, mecadam (sic) roadways

and other structures not included in these specifications

LENORE LG ERO ITS

Pp oy tie pital Tach oo PL I mur es Qeew —— . ,

; SPOTS BOONES 7H PT AS ERB OT EE EE REN BUGLE re mgevs

and necessary for the completeness of the plant and

the work done under these specifications shall be car-

ried on so as to facilitate and not discommode the

prosecution of that and other ad joining and contiguous

work, whether done by the United States or by another

contractor.”

Is it not likely that it is the “ roadways” of 294 or the

macadam roadways of 293 which are in contemplation in

58? And is not this conclusion irresistable when we realize

that the road-embankment was never the vuught of or referred

to as the “roadway” in the construction of the plant or by

the contract ?

There remains to be taken up the other question raised

on Specification 58. The United States insists that the

classification therein stated relates to the item of 46,700

cubic yards of “ other embankment” as well as the 65,400

cubic yards of embankment under filters and the 123,400 -

cubic yards of filling over filters.

Appellant does not so construe the paragraph. On the

contrary, he asserts that the classification of 58 only applies

to “embankment” as distinguished fiom “ other embank-

ment.” There was no occasion to classify “ other embank-

ment.” It had already been set apart by paragraph 57,

and was not capable of being further classified.

Paragraph 58 merely deals with the embankment which

is not called “ other embankment” and classifies it. The

occasion for classifying it is that there will be set forth in

later paragraphs the methods of building this embankment.

“ Other embankment” has been dropped, as it is suffi-

ciently shown in the plans. As there is no occasion for

mentioning it further it is not mentioned.

The specifications thus follow a perfectly logical sequence

of thought.

First, in 57 the work under the heading “ Embankment”

is defined, generally, to be the filling of low places under

filters, the filling of central courts, the embankment about

the filters and all other fills and embankment shown by the

plans or directed to be made by the Engineer Officer in

charge. :

Then in 58, discarding “ all other fills and embankments

shown by the plans” as being thereby sufficiently specified,

the embankments which are to be further discussed are

classified as

1. Embankment under filters.

2 Embankment about the walls of filters and in

courts.

3. Filling over filters.

It will be noticed that each of these is worded differently

from 57.

Now, why is “ other embankment” not mentioned ? Simply

and solely because there is nothing peculiar about it. It is

just plain embankment which can be readily made by

following the plans.

59, 60, 61, 62 give the elaborate details for embankment

under filters. It is clear now why a classification was made

in 58. It is so that “embankment under filters” may be

distinguished from other kinds of embankment. It is also

obvious why “ other embankment’’—. ¢., the road embank-

ment—was not mentioned in 58. To do so would have

done no good and might have caused confusion. It would

be at best repetition, and, the specifications being a practical

document, avoid repetition.

The reason for classification is to point out that the type

of embankment to be put under filters is to be a special

kind. The ground is to be specially prepared by the re-

moval of all loose fill and soft material (59). The ground

shall then, after the removal of loam and top soil, “ be

furrowed or picked up to make a bond” with the filling or

embankment “and on sloping ground shall be steeped as

directed by the Engineer Officer in charge.”

61 and 62 proceed with further particulars which need

not be stated.

When the special mode of embankment under filters has

been set forth, then in 63 come the provisions for embank-

ment about the walls of filters and in courts, which is one

division of the filling or embankment over filters, mentioned

in the contract.

Nowhere are special directions laid down for ordinary

embankment, as it was naturally assumed that the plans plus

ordinary common sense were a sufficient guide.

It would appear that the classification made in 58 was

a classification of embankment by method and not by

location.

If 57, 58, 59, 60, 61, and 62 are read consecutively it is

seen that no contradiction is involved, with our theory that

58 has no reference to the 46,700 cubic yards of “ other

embankment.”

By the Government's theory the “ other embankment”

is the same as “ embankment about the walls of filters and

in courts.”

Under that theory the words

“all other fills and embankments shown by the plans”

are totally disregarded.

It should be noted that in 59 Embankment under filters is

specified as “Item 2.” 63 specifies Embankment About

‘

Walls of Filters and in Courts as “ Item 3. These desig-

nations, which appellant hereby calls to the due attention

of Government counsel and of the Court, have been pre-

viously overlooked.

So far as these designations have any bearing, the use

of the latter accords with the Government’s theory of the

meaning of 57 and 58.

It is submitted, however, that this is too slender and nice

a point on which to hinge a construction of the contract

rN eae

which leaves 57 still standing in consistency with the rest of

the contract and the plans, but without any force, as a sort

of misrepresentation to trap the contractor.

Indeed, the adoption of such a view is equivalent to

striking out Specification 57 altogether.

Other incidents of the work done under the contract

were such as to confirm our belief that the road-embank-

ment was part of the work to be paid for as “ other embank-

ment.”

A part of the road-embankment was sodded (Finding

. VI, paragraph 1), in accordance with the contract provi-

sions for sodding. If the road-embankment did not come

within the contract how very curious it is that it should

be sodded under the contract provisions.

If the road-embankment work was not to be paid for,

one would suppose that that fact would have been made

clear by some definite words of exclusion. No such words

exist. On the other hand, 44,000 cubic yards were put into

the road-embankment and paid for under the terms of the

contract. ‘Twenty-three thousand more cubic yards had

been put in, and had not been paid for. The action of the

Engineer Officer in charge in furnishing detailed plans and

in paying for the 44,000 cubic yards, resolved any doubt

which might have arisen under the original provisions or,

consequent on the increased yardage necessitated by the

change in the part of the road near the pumping station.

(Compare the maps of June, 1904, Finding V, with those

of March, 1903, Finding IV.) This is covered by the

following provisions :

“All directions, explanations and detailed and

corrected plans required or necessary to complete

any of the provisions of these plans and specifica-

tions and give them due effect, will be given by the

Engineer Officer in charge.”

That provision cannot be acted on and then the conse-

quent responsibility shirked.

See also this clause:

“The plans and specifications are intended to be ex-

planatory of each other, but should any discrepancy

appear or any misunderstanding arise, as to the import

of anything contained in either, the explanation of

the Engineer Officer in charge shall be final and bind-

ing on the contractor.”

It would be hard to think of a more complete explanation

than that involved in handing to the contractor detail plans

of the road-embankment, and payment for the work done

in accordance therewith.

How was it possible to imagine that the road-embankment

was not “ other embankment” when it was being paid for

as such? ‘The contractor had also agreed to these provi-

sions :

“28. The contractor will not be allowed to take ad-

vantage of any error or omission in these specifications

as full instructions will always be given should such

error or omission be discovered.”

If there were any error, and instead of “ full instruc-

tions” being given, the contractor was simply told that no

more would be paid for a certain feature of the work, and

a sum of money already paid to him was deducted from

what afterwards was due him, it is clear that the contractor

has done no wrong, but that the United States failed in its

duty, on discovery of the error, to give him full instruc-

tions.

The following provision also was a part of the agreement :

“29. The decision of the Engineer Officer in charge

shall be final.”

The construction of the contract made by the Engineer

Officer in charge when he furnished detail plans of the

road-embankment, gave grades, lines and slopes, required

the sides of the completed part to be sodded, and confirmed

this construction of the contract by paying $12,000 on ac-

count of work done on the road-embankment, was a decision

of the Engineer Officer in charge. By 29 it should have

been final. Reversal of this decision, especially after the

work had been done, was a breach of this provision of the

contract.

“The decision of the Engineer Officer in charge shall be

final”—yet the Engineer Officer in charge, not Colonel

Miller, who had drawn the contract and knew its provisions,

ventured to reverse a decision which by the terms of the

contract was final.

Another provision of the contract broken by the United

States was this:

“39. Once in every month the Engineer Officer in

charge will make an estimate of the work done and

materials delivered and will pay the contractor the

amount due, less ten (10) per cent., which will be re-

tained until the completion and final acceptance of the

work done and materials delivered under these speci-

fications.”

By virtue of this clause the payment of $12,000 on ac-

count of work done on the road-embankment was a payment

of an amount due the contractor and as such, if there were

any doubt about the contract provisions, involved a decision

of the Engineer Officer in charge. If these monthly esti-

mates were not binding on the United States and payments

under them were not binding on the Engineer Officer in

charge and his successor, there would be a breach of the

terms of 39.

If the natural construction of the instrument be adopted,

there is no contradiction in it, and full force is given every

part of it, except the figure 3 in the first line of paragraph

63. All the language is given full force. All the plans

are given full force. Everything is consistent, and all the

parts of the agreement form a consistent whole.

But if the present theory of the Government be adopted

we encounter many contradictions. The whole of Specifica-

tion 57 must be discarded, part of it being directly contrary

to the Government's present theory, and the rest being

surplusage. Certain features of four of the plans—every-

thing in them showing the road-embankment—must be dis-

carded or regarded as contradictory. All the references

to the plans and the several provisions making the plans

a part of the contract must be explained away or regarded

as contradictory. This might be a possible feat of con-

struction if the work under Class C, D, FE, F or G could

possibly have reference to the road-embankment shown on

the plans. But these classes all provide for work and ma-

terials which do not have the slightest relation to the con-

struction of a road-embankment.

Under the Government's present theory, what possible

explanation can be made of the detail plans furnished the

contractor and mentioned, in finding V? How can 285 of

the “ General Clauses” be explained, taken in connection

with the furnishing of these detail plans ?

How can 28, 29 and 39 of the “ General Conditions”

be reconciled with the action of the Engineer Officer in

charge ?

How can the present attitude of the Government be

squared with its attitude prior to February 14, 1905?

How can the sodding of this work he made consistent

with the theory that the road-embankment was not a part

of the contract work? How explain the giving of lines and

grades? Or the inspection of the embankment ?

One more section of the specifications seems strongly

contradictory of the present theory of the Government.

Under the head of

“ Work to be Done under These Specifications”

it is provided :

“53. Disposal of Excavated Material—Al\ materials

suitable for use for puddles, or the requisite amount

thereof, shall be set aside and reserved for this pur-

pose; and other select materials shall be reserved

and used for embankments, filling, and for covering

the filters.”

Then follows the only specific mention of deposit of

surplus material, which, under the rule of expressio unius

exclusio alterius, would clearly imply that the road-embank-

ment could not be contemplated as a place for the disposal

of surplus material. It is this:

“A part of the surplus material shall be deposited

on the south slope of the dam and carried to such lines

and slopes as the Engineer Officer in charge shall

direct. All trees, bushes and rubbish shall be cleared

from the slope and adjacent ground at the foot of the

dam before the material is deposited. The contractor

must make all arrangements for the disposal of sur-

plus material and hold the United States harmless

against all claims whatever relating thereto.”

If the road-embankment was to be another such place

and was not “other embankment” under the contract we

Bc a eta te ak ian eRe ee

should expect it to be mentioned here. But there is no

word of it.

This Specification 53 is diametrically opposed to the

Government's present theory.

Thus appellant claims that it is only fair to construe the

agreement in accordance with its natural and consistent

meaning, and insists with more confidence as he believes

that construction is in accord with the intent of the parties

and is the same construction for which he has always con-

tended, on the basis of which his firm made its bid, and on

which the United States acted until February 14, 1905.

On the faith of such an agreement the appellant's firm

performed the work called for, and it is, he submits, un-

becoming and contrary to the agreement itself to deny him

his wage.

é.

The only other argument against the appellant’s con-

struction of the contract is that the amount of cubic

yards actually put into the road as determined by the

Court of Claims was 67,578 cubic yards. Defendant's

counsel argues that it is not possible that the contract

provision for the payment for “ 46,700 cubic yards more

or less,” of other embankment can apply because the

discrepancy between the two figures amounts to nearly

21,000 cubic yards.

This discrepancy, however, is explained by the fact

that the original plans provided for a road which was

to consist of only a single right of way in the neighbor-

hood of the Pumping Station. Subsequently the plan

was adopted of having a road which ran around the

pumping station on each side, so that it became a road

which divided and went around the pumping station on

either side and united again after passing it. This

divided roadway is for the first time shown in the de-

tailed plans which the Engineer Officer in charge gave

IDE MORONS ORES pI IY ryy SOT STAR

to the contractor, as found by the Court of Claims in

Finding V, of which the plans have been made a part.

The amount of yardage necessary to build such a road

as shown by these supplementary detailed and cor-

rected plans was as determined by the United States

67,578 cubic yards. See Finding IX. The contractor

accepted these plans and proceeded to work under them.

He was justified in doing this by the provision of the

contract found under the heading of General Clauses, in

Specifications 285, which reads as follows:

“ All directions, explanations, and detailed and

corrected plans required or necessary to complete

any of the provisions of these plans and specifica-

tions and give them due effect, will be given by the

Engineer Officer in charge.”

The action of the parties in proceeding with the work

under the detailed and corrected plans which called for a

larger quantity of other embankment than the 46,700 cubic

yards set forth in the original contract was justified by

the clause of the contract quoted above, and the United

States so proceeded and thereby accepted liability there-

under to pay for 67,578 cubic yards in accordance with

the terms of the contract.

This intention of the United States was manifested

by the actual payment for 44,444 cubic yards at the

contract rate.

Il.

If any doubt remain as to the correct interpretation of

the contract, the practical construction of the parties pre-

vails.

Garrison v. United States, 7 Wall., 688.

District of Columbia v. Gallaher, 124 U. S., 505

United States v. Gibbons, 109 U. S., 209.

Lowry v. Hawaii, 206 U. S., 222.

There is no surer way to find out what parties meant

than to see what they have done.

Insurance Company v. Dutcher, 95 U. S., 269.

The practical construction given to this contract by the

parties was that the road was included in the work to be

done and to be paid for at the contract price as “ other em-

bankment.”’

In Chicago v. Sheldon, 9 Wall., 50, the question arose on

a stockholders’ suit to enjoin an assessment by the city of

Chicago on a street railway company for street paving im-

provements, the charter of the company providing that the

company should “ as regards the grading, paving, macadam-

izing. filling, or planking of the streets’ upon which the

tracks were laid, keep a certain number of feet “ in good

repair and condition” in accordance with orders “ respect-

ing the ordinary repairs thereof” adopted by the common

council. The city assessed the company $26,677 for a new

grading, curbing and paving. pe

The Supreme Court said that the contract related only

to repairs, and that a fair and reasonable interpretation

favored such a view; and that the clause concerning re-

pairs was present to the minds of the parties.

“ What adds great weight to this point of view is,

it accords with the practical construction given to the

contract by both parties. * * * In cases where

the language used by the part'vs to the contract is

indefinite or ambiguous and, hence, of doubtful con-

struction, the practical interpretation by the parties

themselves is entitled to a great, if not controlling

influence. The interest of each generally leads him

to a construction most favorable to himself, and when

the difference has become serious and beyond amicable

adjustment it can be settled only by the arbitration of

the law. But in an executory contract, and where its

execution necessarily involves a practical construction,

if the minds of both parties concur, there can be no

great danger in the adoption of it by the Court as the

true one.”

Applying this rule to the present situation, the intent of

the parties as illuminated by their practical construction

of the contract was clearly that the road-embankment was

work payable under the contract. The test of a practical

construction is not that of a unilateral construction, but of

a mutual construction. The Court of Claims in the case at

bar took a narrow view of the rule of the practical con-

struction of the parties, saying :

“ The plaintiff contends that the allowance for a time

by the engineer in charge for the fill on the roadway

as coming within the provision for fill or embankment

for which the contractors were to be paid, was a prac-

tical construction of the contract which must now pre-

vail. ‘The answer to this contention is that such con-

struction was afterwards and during the progress of

the work reversed; also that the rule invoked prevails

only where the contract is susceptible of more than one

interpretation.”

With deep respect to the Court of Claims, it is submitted

that the rule of practical construction by both parties can-

not in this case be so easily disposed of. If the Court

meant to rule that the present contract is only susceptible

of the interpretation adopted by the Court, I must humbly

protest that to my mind it seems very strange that if the

contract was only susceptible of that one interpretation that

Mr. McClennan and Col. Miller should both have inter-

preted it as including the roadway, and never dreamed of

any other construction. They were both men of usual

mental ability, used to the drawing and practical construc-

tion of contracts, Col. Miller being the author of this con-

tract, and they both thought the contract meant something

diametrically opposite from the interpretation of the Court

of Claims. Yet the Court of Claims must have considered that

practical construction as conceivable, for it is only after a care-

ful analysis and exposition of the contract of over 2,000

words that it arrived at a different construction. If the

contract is susceptible of only one consruction, is it not

strange that none of the persons who had to do with making

the contract ever thought of it? And is it not conceivable

that the construction which they put upon the words “ all!

work shown by the plans,” considering that the plans showed

the roadway, was one which the contract was susceptible

or bearing? Assuming for the moment that it was not

the correct one, or the only correct one, I strongly urge

that it was a possible interpretation. And if the interpre-

tation which these gentlemen with one accord took, even

though it appear to a Court an unreasonable one, was a

conceivable one (and the fact that they took it shows that

it was conceivable to them), I humbly submit that this con-

tract cannot be said to be capable of only one interpretation.

It is to be noted also that the Supreme Court in the Shel-

don case does not lay down the rule that the practical con-

struction of the parties prevails only when the court thinks

the contract ambiguous. It is to prevail when the parties

themselves find the contract susceptible of more than one

meaning.

“In an executory contract,” says Mr. Justice Nel-

son, “and where its execution necessarily involves a

practical construction, if the minds of both parties con-

cur, there can be no great danger in the adoption of it

by the Court as the true one.”

But the Court of Claims says that the practical construc-

tion made by the parties “ was afterwards and during the

progress of the work reversed.” That refers to the fact

Soot a

that after the work was done a new mind in charge for the

War Department refused to pay any more for work done

on the road. ‘This new mind did not reverse the practical

construction of both sides, but did interpret the contract

differently for the United States. At that time, 44,444

cubic yards had been put in and paid for under the original

practical construction; a good deal more had been put in

because the contractor did not suspect that it would not be

paid for. ‘That work was done, and had been done under

a clear understanding on both sides of what the contract

meant.

Does the rule of practical construction of contracts apply

only when the entire performance contemplated by the con-

tract is completed under it? Such a rule cannot be found

in the cases. It would lead to outrageous results. Sup-

pose A engages in writing B to paint his house three coats

of paint at one cent a square yard, payable weekly. The

work takes four weeks. For the first three weeks A pays

B at the rate of one cent a square yard per coat, which both

understand is the contract price. At the end of the fourth

week B comes for his pay, but A says: “ Oh, I don’t owe

you anything. In fact you owe me a good deal, because

our contract appears to me to mean one cent a square yard

painted with three coats.”

The cases cited by the opinion below to support such a

proposition (which seems to have a tendency to result in

hardship) are

Gibbons v. U. S., 109 U. S., 200, and

D.C. v. Gallaher, 124 U. S., 505.

The Gibbons case turned on the construction of a con-

tract with the United States for rebuilding on a navy yard

some brick buildings that had been destroyed by fire. The

specifications provided :

“The foundation and the brick walls now standing

that were uninjured by the fire will remain and be car-

ried up to the height designated in the plan by new

work,”

After the claimant had begun work it was discovered that

a part of the walls still standing had been so injured by fire

as to be useless. The commandant of the navy yard then

ordered the buildings further torn down, which was done

| by claimant and new brickwork built by him at a cost of

$4,500. No agreement in writing varying the original con-

| tract was entered into.

The Justice of the Supreme Court, who wrote the opinion,

| observed :

“ The language of the specifications is, perhaps, sus-

ceptible of two meanings.”

“ According to one, it is as if it read that ‘the founda-

tions and brick walls now standing so far as they were

uninjured by the fire, will remain’; according to the

other, that the foundations and brick walls now stand-

ing ‘being such as were uninjured by the fire,’ will

remain.”

“But (continues the opinion), without going into

any refinements of merely verbal interpretation, we

think the meaning of the parties, explained by the cir-

cumstances attending the transaction, is sufficiently

plain.”

The decision, as to what wall was fit to remain, should

be made by the proprietor at the outset.

“ To require the claimant to determine the fact for

himself provisionally, subject at any time before com-

pletion of the work to have his judgment reversed, and

to be required in consequence to perform work which

he could not and did not provide for in his estimates,

would be unreasonable and unjust.”

Does this case uphold the proposition that a reversal of

the practical construction of the parties during the progress

of the work deprives claimant of his right to recover in ac-

cordance with the original construction of the contract? To

me it seems to hold directly against that proposition.

The other case cited by the Court of Claims, in ruling

that the practical construction of the parties cannot avail

the present claimant, is D. C. v. Gallaher, 124 U. 5S., 505.

In this action the claimant was the contractor for buildin

the Tiber Creek sewer in the City of Washington.

The principal item at issue was a deduction made dur-

ing the course of the work for a failure to observe the

specifications.

The Supreme Court said :

“The whole controversy between the parties as to

this item and also for a portion of the claimant's de-

mand on account of extra work and material arises out

of the fact that the letter of the contract and specifica-

tions does not correspond with the plan of the work

furnished by the District engineer and the sample of

the work which had been done previously by other

contractors, and with which that of the present claim-

ant was to connect. The work as actually done was

under the direction and supervision of the ‘District engi-

neer and was performed in accordance with the plan

and sample which was supposed and understood to he

what was required by the contract, and to be paid for

at the contract price. We think that the practical con-

struction which the parties put upon the terms of their

own contract, and according to which the work was

done must prevail over the literal meaning of the con-

tract, according to which the defendant seeks to obtain

a deduction in the contract price.”

So the Supreme Court upheld the practical understanding

of the parties in spite of the fact that the contract literally

construed was contrary to it. Furthermore, the practical

construction so far as defendant was concerned, was re-

versed, just as in the case at bar, after some of the work

was done, but before it was all finished, by a different inter-

pretation of the District engineer, and a deduction in pur-

suance with his interpretation.

D.C. v. Gallaher does not seem to sustain either of the

propositions for which it is cited*in the opinion of the Court

of Claims, but to sustain rather the position of the claimant

that, whether or not the contract is susceptible of more than

one interpretation, if the parties practically construe it,

their understanding prevails, and that after the work is

started, a new interpretation by one of the parties cannot

affect the status of work which has been finished so that

by reacting it deprives the laborer of the benefit of the origi-

nal practical construction.

Even if the contract is, as the Court of Claims says, not

susceptible to any construction other than that arrived at

by the Court of Claims (which claimant does not admit)

under the authority of the cases cited judgment should be

given for claimant.

“The practical construction of an agreement by a party

to it is always a consideration of great weight,” says the

Supreme Court in /nsurance Co. v. Dutcher, 95 United

States, 269.

“The construction of a contract is as much a part

of it as anything else.”

(There is no qualification of the rule of practical con-

struction, It is always a consideration of great weight.)

“Tt was competent for the company, under proper

circumstatices, at any time to change its rule with re-

spect to the future; but it could not affect vested rights

acquired in the past while a different rule prevailed.

NEY

SURF P PER

OE ERT, NOS OME LEN DOG LION ALY RATES BD ale”

Prior contracts must be carried out as they were when

they were entered into. Neither party in invitum

as respects the other can make any change. When it

was proposed by the assurer to apply the new rule and

practice in this case, the assured might well say, ‘non

in haec federa veni,’ and insist upon the interpretation

which prevailed in other like cases when the parties

became bound to each other and continuously for two

years later.”

Insurance Co. v. Dutcher, 95 United States, 273.

In Old Colony Trust Co. v. Omaha it was said:

“ Generally speaking the practical interpretation of

a contract by the parties to it for any considerable

period of time before it comes to be the subject of con-

troversy is of great if not controlling influence.” |

230 U. S., 118, citing Chicago v. Sheldon, Ins. Co.

v. Dutcher, D. C. v. Gallaher, and two Nebraska

cases.

In Lowry v. Hawaii, 206 U. S., 222, Mr. Justice Me-

KENNA, discussing whether an agreement evidenced by

writing between a mission and the Kingdom of Hawaii

in the year 1849, relating to the transfer of a

mission school to the Crown, should be construed

strictly, or whether extrinsic evidence might be admitted to

show the real purpose of the transfer as disclosed by the

surrounding circumstances and the subsequent conduct of

the parties, said:

“In Brooklyn Life Insurance Co. v. Dutcher, 95

U. S., 269, it was said: ‘There is no surer way to find

out what parties meant than to see what they have

, al e . .

done.’ So obvious and potent a principle hardly needs

AEE EE LORIE SRO LE

the repetition it has received. And equally obvious

and potent is a resort to the circumstances and con-

ditions which preceded a contract * * *. The con-

ventions of parties may change such circumstances and

conditions or continue them, but it cannot be separated

from them, and this makes the value of contempo-

raneous construction. It is valuable to explain a stat-

ute where disinterested judgment is alone invoked and

exercised. It is greater to explain a contract where

self-interest is quick to discern the extent of rights or

obligations and never yield more than the written or

spoken word requires. See, for further illustration,

the following :

Reid v. Merchants’ Mutual Insurance Co., 95 U. S.,

23;

District of Columbia v7. Gallaher, 124 U. S., 505;

Topliff v. Topliff, 122 U. S., 121;

Paige v. Banks, 13 Wall., 608;

Philadelphia R. R. Co. v. Trimble, 10 Wall., 337:

Chicayo v7. Sheldon, 9 Wall., 50:

Cavasos v. Trevino, 6 Wall., 773;

Simpson v. United States, 199 U. S., 399;

Chicago Great Western Railway Co. v. Northern

Pacific Railway Co., 101 Fed., 792.

The opinion in Chicago Great Western Railway Company

v. Northern Pacific Railway Company, 101 Fed., p. 795,

contains an interesting discussion on this point, in which it is

said :

“Tt is a canon in the interpretation of contracts that

the practice of the parties under them may furnish a

solid basis on which their construction may rest.‘ Tell

me,’ says Lord Chancellor Sugden, * what you have

done under a deed and I will tell you what that deed

means.”

Attorney Gen. v. Drummond, 1 Dru. & Wal., 353,

366;

Affirmed by Drummond v. Atty. Gen., 2 House of

Lords Cases, 837.

The contract now in question was drawn by Col. Miller

in the War Department of the United States, and, of course.

the rule of construction which construes a contract most

strongly against the draftsmen should be applied.

The words of a contract should be taken most strongly

against the Government where it has been drawn by a Gov-

ernment officer and where an officer has given the contract

a contemporaneous construction unfavorable to the Govern-

ment.

Garrison v. U. S., 7 Wall., 688;

In Gibbons v. United States, 109 U. S., 204, it is said:

“The foundation and walls themselves, as left

standing by authority of the proper officers, con-

stituted under the circumstances a representation on

the part of the United States that they had been

adjudged to be so far uninjured by fire that they

were to remain, upon the faith of which the intend-

ing contractor was entitled to rely for the purpose

of estimating the probable cost of the work to be

done.”

Cannot appellant say here with equal justice that, by

analogy, the plans showing a road to be built constituted

under the circumstances a representation on the part of the

United States that such a road was to be built and paid for

at 30 cents per cubic yard, on which the intending con-

tractor was entitled to rely for the purpose of estimating

the probable cost of the work to be done ?

Was not this representation confirmed by the contem-

poraneous construction put on the contract by the United

States; by the giving of grades, lines, and detail plans for

the work; by the sodding required on the completed part

of the work; by the supervision, inspection and acceptance

of the work by the United States; by the allowance and

payment of $12,000 on account of it; and by the continuance

of the United States in this representation until the work

was substantially complete ?

As a result, the United States has an excellent road built

under its plans for which it has paid nothing.

IIL.

Apart from any rights under the contract, the claimant

is entitled to recover upon quantum meruit.

The rule for recovery in quantum meruit is that the value

of the services to the person who has been benefited should

he paid for, considering the question solely as one of bene-

fit and of the value of the services rendered. The law of

the present case attempts an entirely new test, to wit: What

is the cost to the person rendering the services? The Court

of Claims is of opinion that as the building of the road “ in-

volved no extra expense to the contractors,” it is not within

the rule of quantum meruit, and accordingly refuse any

recompense to the contractor for his labor.

Is it not a great mistake tc consider only the question of

cost to the contractor? This road could not have been

made on separate contract, except for a much greater sum

than $20,273.40. It was because the material was available

that it was possible to do it at what was perhaps a cost to

the contractor of less than $20,273.40.

The question in quantum meruit, however, is not what

the services cost, but what it is fair to pay for them. ‘To

say that the contractor could only recover what he has given

up at cost price, loses sight both of the element of reasonable

profit, and of the essential element of the benefit to the

United States. It is the value of the services rendered

that should be considered.

Thus in Belt v. U. S., 15 C. C., 92, the value of the goods

was recovered; similarly Livingston v. Ackeston, 5 Cowen.

531, a leading case on the subject of quantum meruit, lays

down this rule:

“No doubt the services cf the plaintiff having been

performed for the benefit of defendant with his knowl-

edge and approbation the law will imply a promise

to pay for them, unless it appears they understood no

compensation was to be made. Jacobson v. Executors

of LeGrange, 3 John., 201.”

See also the curious case of Hickam v. Hickam (former

slave working in ignorance of the Emancipation proclama-

tion), 46 Mo. App., 496.

The correct rule is laid down in Turner & Otis v. Webster,

24 Kans., 38, where it is said:

“Justice is done to all parties by ignoring any

promise or understanding about compensation

(where the parties had made no contract as to com-

pensation but the services had been performed) and

giving to the laborer reasonable compensation for

the werk done and requiring the pariy receiving the

benefit of such work to pay a just and reasonable

price therefor.”

It is contrary to human experience to suppose that the

work done on this road cost nothing, and we respectfully

ask that the benefit of the United States be regarded accord-

ing to the ordinary rule of quantum meruit recovery.

The Court of Claims cited Plumley v. U.S. as an authority

constraining the denial of a recovery in this action. A

careful reading of that case shows no reference to any ques-

tion of quantum meruit.

The case was that Plumley was working on a contract

which contained a clause that in the event of questions rising

under the contract the matter should be referred to the

Secretary of the Navy, Plumley agreeing in that event to

abide by his decision in the premises. The Secretary hav-

ing decided against him, it was held that the decision was

conclusive.

Certain extra work was done of considerable value, but

no attempt had been made to get any order for the extra

work or to have it approved by the Secretary, as the contract

required. It was held that, although it might be a hard

case, yet Plumley could not recover for that which, though

extra, was not ordered by the officer and in the manner re-

quired in the contract. Plumley v. United States, 226

United States, 545.

Such a case differs entirely from the present one, in that

the present one has no question of extra work, and no sug-

gestion of any violation or disregard by the contractor of

any contract provision.

IV.

SUMMARY.

The appellant's firm built the greater part of a road

for the United States, which was understood by the

parties to have been contracted for to be paid at the

price of 30 cents per cubic yard.

When the road was nearly complete, and, after the

United States had paid $12,000 to the contractor on ac-

count of his work, the United States notified the con-

tractor that he should be paid no more, and took back

the $12,000 already paid by retaining that sum from

payments due for other work.

TORE Te Oe

The United States has thus obtained an embanked

road without cost. (Statement of facts.)

The contractor claims that under his contract the

United States was liable to pay for the road, as work

within the terms of the contract (1.).

And that even if the literal meaning of the contract could

be construed so as not to include the road work, that

the practical construction by the parties under which

the work was done and in part paid for must prevail.

United States v. Gibbons;

District of Columbia v. Gallaher.

United States v. Garrison, 7 Wallace, 688 (IT.).

And that in any case, the contractor, having confered

a benefit on the United States by supplying the work

and materials for th road embankment, should be paid

for the value of his s». vices (III.).

Respectfully submitted,

Cuauncey Hackett,

Attorney for the Appellant.

Service of the foregoing brief accepted this 17th day

of February, A. D. 1916.

Huston THOMPSON,

Attorney for Appelice.

R. P. W.

Inthe Supreme Gourt of the United States,

OcToBerR TERM, 1915.

WiiuiaM Frye Waite, RECEIVER or Cow-

ardin, Bradley, Clay & Company, ap-

pellant, No. 309.

THe Unirep Srares.

API '" PROM THE COURT OF CLAIMS.

BRIEF FOR THE UNITED STATES.

STATEMENT.

This is an appeal from a judgment dismissing the

petition.

The suit arose over a contract for the construction

of a filtration plant in the city of Washington, D. C.

On April 6, 1903, Cowardin, Bradley, Clay &

Company executed a contract with Lieut. Col.

Miller, representing the United States, for the fur-

nishing of labor and materials in the construction of

said plant. The plans indicated a roadway beginning

at the superintendent’s house at a point northwest

31852—16——1 .

BO PII

of the piant, thence running along the west side there-

of between the plant and the reservoir, and passing

the pumping station in a southwesterly direction

around the east side of the reservoir to the south dam

of the Washington City Reservoir. Said plans con-

tained no detail whatsoever as to the exact location

or dimensions of the roadway; they merely marked

where it was to be placed.

On August 27, 1903, John D. McClennan was

appointed receiver for the original contractors, and

was subsequently replaced by William Frye White.

In January and February of 1904 material exca-

vated irom the filter plant was deposited on the said

roadway. In June and November of 1904, supple-

mental plans relating to the roadway (Finding V, Ree.

14) and giving details as to grades were furnished, and

appellant, who had been depositing excavated ma-

terial on parts of said roadway, thereafter deposited

it along the whole roadway. Several payments,

amounting in the aggregate to $12,000, had been

made by the Government on yoadway estimates of

its engineers. On February A isak Col. Leech, the

successor of Col. Miller, as engineer officer in charge,

notified the receiver that he refused to allow further

pay for work on the roadway. In the final

sett] it there was deducted from the balance due

appellant (Finding VIII, Rec. 16) a sum equal to

the cost of the fill in the roadway, already paid at the

rate of 30 cents a cubie yard, amounting to about

$12,000.

The following paragraphs of the specifications and

proposals in this case are pertinent (Rec. 5-11):

29. The decision of the engineer officer in

charge shall be final.

43. Work.—The work to be done under

these specifications consists in making, fur-

nishing, building, and placing the excavation

and embankment and fill, the concrete ma-

sonry, the filter sand and gravel, the granoe

lithic pavement of the courts required for the

construction of a system of filters and pure-

water reservoir, and the pipes and drains per-

taining thereto. The cement for the concrete

and certain other materials shal! be supplied

by the United States,

44. These specifications do not include the

sand-washing apparatus, regulator houses, and

fixtures above the substructures, the track

system, pumping station and appurtenances,

and other parts of the complete plant to be

otherwise or subsequently supplied.

45. Plans.—The general extent, location,

and character of the work are shown by a set

of 23 plans, numbered from 1 to 23 consecu-

tively, which plans are made a part of these

specifications and which plans are on file at

the office of the Washington Aqueduct.

53. Disposal of excavated material.—-A}| ma-

terials suitable for use for puddle, or the requi-

site amount thereof, shall be set aside and

reserved for this purpose and other select ma-

terials shall be reserved and used for em-

bankments, filling, and for covering the filters,

A part of the surplus material shall be de-

5 4 ey

DER ASSET NLE RNIN OE

posited on the south slope of the dam and

carried to such lines and slopes as the engineer

officer in charge shall direct. All trees, bushes,

and rubbish shal! be cleared from the slope and

adjacent ground at the foot of the dem before

the material is deposited. The contractor

must make all arrangements for the disposal

of surplus material and hold the United States

harmless against all claims whatever relating

thereto.

57. Work.—The work under this heading in-

cludes the filling of low places under filters and

other structures, the filling of central courts,

the embankments about the filters, and all

other fills 1nd embankments shown by the

plans or directed to be made by the engineer

officer in charge.

58. Classification —Embankments shall be .

divided into three classes:

(1) Embankment under filters.

(2) Embankments about the walls of filters

and in courts.

(3) Filling over filters.

Material placed below the dam, in the road-

ways, and at other low places for the purpose

of disposing of it, and material disposed of off

the ground shall not be paid for as embank-

ment. When waste embankments come

against the walls of the filters or the pure-water

reservoir the usual section shal! be built and

paid for as embankment, and all material out-

side shall be treated as waste.

63. Embankments about walls of filters and

in courts—Item 3.—These embankments shall

be made as embankments under filters, except

that materials may be taken as they come in

excavation without seiection, except that soil

or any manifestly unsuitable material shall be

excluded, and may be placed in 6-inch layers

instead of 3-inch layers, and the finished sur-

face shall be left as nearly as possible at the

desired grade, which, in the embankment

about the filters, shall be approximately level

within the springing line, and under courts

shall be the required grade for the foundation

of the pavement. Exposed surfaces shall be

covered with soil and smoothed to the re-

quired surfaces.

293. Work done by United Staies.—The

United States will construct the gatehouses,

sand washers, pumping station, macadam

roadways, and other structures not included

in these specifications and necessary for the

completeness of the plant, and the work to be

done under these specifications shall be car-

ried on so as to facilitate and not to diseom-

~ mode the prosecution of that and other ad-

joining and contiguous work, whether done by

the United States or by another contractor.

Section 1 of the proposal provides, in part, as

follows:

Class A.—¥or eight hundred and eighty

thousand (880,000) cubic yards excavation,

for sixty-five thousand four hundred (65,400)

cubic vards embankment under filters, for

forty-six thousand seven hundred (46,700) cubie

yards other embankment, and for one hundred

and twenty-three thousand four hundred

(123,400) cubic yards filling over filters, all at

thirty (30) cents per cubic yard; * * *.

Appellant sues to recover for 67,578 cubic yards

of material deposited on said roadway at a contract

price of 30 cents per cubic yard, amounting to the

sum of $20,273.40.

His claim is that the fill on the said roadway

was required of him by the contract; that the

Government in making the said payments so con-

strued the contract and estopped itself from other-

wise interpreting the same; that aside from the con-

tract appellant should recover on a quantum meruit

for the material supplied and work performed.

The Government’s position is that the face of the

contract excludes the claim of damages for the fill

on the roadway; that the decision of the engineer

officer in charge at the time of final settlement was

binding on the contractor; and that appellant could

not recover on a quantum merwit for the reason

that the work on the roadway was never requested

by the Government and was to be performed at the

expense of appellant.

BRIEF OF ARGUMENT.

Hirst.—The contract on its face forecloses appel-

lant’s claim.

Second.—Appellant is not entitled to recover upon

a quantum meruit.

FIRST.

The Contract on its Face Forecloses Appellant’s Claim.

Appellant’s contention is that because a roadway

was indicated on tlie drawings and because paragraph

57 of the specifications required him to do the work

included in the phrase ‘all other fills and embank-

ments shown by the plans”’ he should be paid for the

material placed upon said roadway. Such an appli-

cation would put into practice that which this court

has inveighed against, namely, the carving of a

phrase out of a context and reading it independently

of the rest of the contract.

The purpose of the contract, so far as appellant

was concerned, was the construction of embankments

and fills relating to the filtration plant proper. Sec-

tions 57 and 58 and paragraph 1 of proposals indicate

this very clearly.

Section 57 enumerates three kinds of fills, con-

eluding as follows: “and all other fills and embank-

ments shown by the plans or directed to be made by

the engineer officer in charze.”’

Appellant arzues that this concluding phrase in-

cludes work outside of the filtration plant proper,

as, for example, the work on the roadway. The

languace, however, which precedes this phrase relates

exclusively to work upon the filtration plant and in-

dispensable to its construction and operation. Hence,

“all other fills and embankments shown by the plans”

must refer to fills and embankments necessary to the

filtration plant and such as had been previously

enumerated, to wit, the three kinds of fills thereto-

fore described. Therefore the phrase is ejusdem

generis of that which precedes it. This view is sus-

tained by the classification in paragraph 58, wherein

specifying in particular as to embankments it di-

vides them into three classes, corresponding to the

kind set forth in paragraph 57:

Paragraph 57:

1. Filling under filters and other struc-

tures.

2. Filling of central courts.

3. Embankments about the filters.

Paragraph 58. Classification —Embankments

shall be divided into three classes.

1. Embankment under filters.

2. Embankments about the walls of fil-

ters and in courts.

3. Filling over filters.

The three classes in paragraph 58 relate to work

on the filtration plant proper. Moreover, the use of

the word “shali’”’ indicates that the classification is

mandatory. Unless, therefore, the fill on the road-

way is comprehended within one of the three desig-

nated classes it does not come within the terms of

the contract affecting appellant. Obviously the

maxim, Expressio unius est exclusio alterius is appli-

cable, and hence the description of the different

kinds of “embankments” enumerated in paragraph

58 excludes every other kind from consideration. If

under this clause it was contemplated that appellant

was to fill the roadway, why was it necessary to

make any classification whatsoever? The reasonable

thing would have been for the contract to have con-

tained one general clause requiring appellant to make

all fills and embankments. If he was to fill over,

under, and around the filters and also the roadways

and to be paid for all of them, then it was wholly

unnecessary to define “fill” and “embankments” as

in paragraph 58. The definition there set forth

would have been superfluous.

But the language following the classification in

paragraph 58 clearly excludes payment for the fill on

the roadway when it says:

Materia! placed below the dam, in the road-

ways and at other low places for the purpose

of disposing of it, and material disposed of off

the ground shall not be paid for as embank-

ment.

Finally, a fatal objection to appellant’s position is

that neither the “proposals’’ nor the contract proper

provided for this road fill, either expressly or by im-

plication. By their silence they sustain the con-

struction urged by defendants. Thus the specifica-

tions divided the work into seven items:

No. 1, excavation; Nos. 2, 3, and 4, embankment

(which the specifications in terms subdivided into (1)

embankment under filters, (2) embankments about

the walls of filters and in courts, (3) filling over filters) ;

No. 5, puddle; No. 6, seeding; No. 7, sodding. These

terms were carried forward into the “proposals”

(Specifications, p. 17), except “embankment around

the walls of filters and in courts.” Item No. 3 of the

proposals was designated “other embankment.’’ No

new items were added, but approximate estimates of

the amount required under the several items were

given.

The contract proper, in terms, embodied the terms

of the “proposals,” without change. Obviously the

31852—16——2

ORO NESE Wet AE ate eT RPOR SL AON ap tet ER TE of

item “other embankment”’ was here employed synon-

mously with “embankment about the walls of

filters and in courts,’’ and was not intended to cover

the road. The approximate estimate of 46,700 cubic

yards for the item “other embankment” forces this

conclusion. This estimate is so small as to be

utterly inconsistent with an intention to provide for

the road fill, as the yardage claimed for filling the

roadway alone is more than double that amount.

Assuming a rough estimate to have been possible, it

is inconceivable that in calculating the amount of

road fill and the amount of fill required around the

walls of filters and in courts the Government engi-

neers would have found a total of only 46,700 cubic

yards. The clear presumption is that no road fill

was intended to be included. Its deliberate exclu-

sion must have been due to the fact that the specifi-

cations made no provision for such work as a part of

appellant’s contract.

Furthermore, the substitution of the heading

“other embankment” in item 3 of the “proposals,”

for “embankments about the walls of filters and in

courts,” in item 2 of paragraph 58 of the specifica-

tions, strikingly illustrates the point that the term

“all other fills and embankments,” etc., in paragraph

57, is ejusdem generis as the preceding matter in that

paragraph, and the items given under the classifica-

tion in paragraph 58, and lends a meaning to the

phrase “all other fills and embankments” consistent

with the language in paragraphs 57 and 58, and

proposal 1.

OOS BION fat NTS oe SIT ELE ARH EIR PES FSM IN ENS LAK NERS MOTE EONS

An examination of the plans shows that the details

with regard to the roadway were wholly lacking.

Referring to sheet No. 2 presenting four cross sections

of the natural surfaces upon which the filters were

constructed, and indicating the relationship of the

filters to said natural surface, the upper right-hand

corner of each section shows a slight depression over

which is the word “road.’”’ This is the road in ques-

tion. It will be seen that there are no details as to

direction, depth, width, ete.

Despite the fact that the road is far below the

natural surface and is therefore a low place as com-

pared with said surface and thus fitly described in

the clause “roadways and at other low places,”

counsel says:

The road embankment proposed was not,

nor was its site, a “low place.” It was, on

the contrary, very much higher than the

filters, and even before any embanking had

begun its site was many feet higher in level

than the level shown by the plan for the fin-

ished tops of the filters, as can readily be seen

by consulting the plans which are a part of

Finding IV. It is very strange that if the

road embankment was meant it should be

called “low.’’ (App. brief, p. 17.)

The language in the specifications upon which ap-

pellant was bidding was, in its comparative and

usual sense, descriptive of the conditions as repre-

sented on the plans and as they were before the work

was undertaken. In this sense the road was low com-

pared. with the natural surface of the filter land, so

that it comes well within the descriptive phrase “ ex-

cluding payment for material placed in the road-

ways and at other low places.”

Mr. Justice Barney said (Ree. 18):

An examination of the plans submitted with

the proposals for the work shows that the

roadway was indicated thereon, but contained

no detail whatsoever as to exact location or

dimensions. They m>rely mark where a road-

way is to be placed.

It is more than passing strange, if appellant was

to construct said road, that the plans should have

done nothing more than indicate the roadway,whereas

the very same plans in other details affecting appel-

lant’s work were profusely illustrative “as to exact

location or dimensions.” _ It is stil! more strange that

if appellant company believed at the time the con-

tract was signed that it was to do this work that it

should have required detailed drawings of all other

embankments and fills and yet been willing to bid

without accurate or detailed information of this road.

It is apparent that appellant company’s failure to

request information was due to the fact that the com-

pany was not to construct the road. It may clarify

the situation to know that there was only one road

to be constructed. Appellant’s brief, page 2, says:

The plans showed as a feature of the work

a road or driveway to be constructed about

the reservoir at a considerable height above

the filter beds. There were other streets and

roadways already existing which crossed or

bordered on the plant. These were to be left

. —— — Pe OR ag PONE, WIDE 43

SOILS sf OE TITEL TM ANT Shea PSE I ERS PAT RI NO IOM EG TOIL Pea

in existence and nothing was to be done on

them; nothing was done on them and no

question arises in reference to them.

Paragraph 293 of the specifications states that:

The United States will construct the gate-

houses, sand washers, pumping station, mac-

adam roadways, and other structures not included

in these specifications and necessary for the

completeness of the plant * * *. [Italics

ours. |

The roadway in question was macadamized. This

was the only roadway to be built, and it was to be

constructed by the United States. Hence the Gov-

ernment did not deem it necessary on the maps or

in the specifications to give details to appellant.

The company’s action in accepting the plans and

specifications without such details would indicate

that it so understood.

Again, it is not customary for the Government to

pay twice for one removal of earth unless it specifi-

cally provides for the same. The material taken

out of the filters and placed on the roadway was

paid for at the rate of 30 cents a cubic yerd. This

was a reasonable price. It included not only the

excavating but the removing. When the Govern-

ment paid for embankments under filters and in

courts it paid for handling earth a second time.

Thus in making the excavation for a filter and build-

ing up a concrete wall the earth removed had to be

again handled in order to put it against the wall and

in 6-inch layers. (Par. 63.) For example, earth

might have been excavated from a filter site, carried

to a point for 30 cents per cubic yard, and subse-

quently the same earth carried back, put up against

a wall in layers, and an additional 30 cents per cubic

yard paid for it. But where earth is taken directly

from an excavation and dumped, for which 30 cents

per cubic yard is paid, as in this contract, an addi-

tional 3G cents per cubic yard should not be paid

because the dirt, for convenience sake, happened

to be thrown upon a roadway which the Govern-

ment itself was to build. From sheet 2 of the

drawings it is evident that the fill on the road-

way came from the natural high surface above the

site. The material was deposited upon the roadway

without its being moved a second time. It must be

- kept in mind that appellant was paid 30 cents for every

cubie yard that was deposited on the roadway dur-

ing some stage of the construction of the plant.

He is now apparently actuated to claim an additional

30 cents simply on the theory that the Government

was able to make use of this dump in building its

roadway. ‘The placing of the material on the road-

way did not cost appellant anything more than it

would have cost to have removed it from the prem-

ises. In fact, sheet 2 of the drawings would indicate

that as the filters were immediately contiguous to

the roadway appellant could uot have found a more

inexpensive place to put the excavated earth. He

had an opportunity to remove it to another place, of

which he did not avail himself. It is said (Finding

VI, Ree. 15) that ‘the roadway in question was just as’

a PORN ESE ON ENE LR

convenient a place as any to dispose of waste mate-

rial.” As Judge Barney says (Rec. 19):

It thus appears to have been a privilege

rather than otherwise for the contractors to

have been allowed the right to deposit ma-

terial excavated from the filter beds upon this

road way.

The findings show that while the Government

engineers never ordered the contractor to build the

roadway (Finding VI, Ree. 15), after the work was

commenced the engineers “gave him the line of the

toe of the slope” and from time to time furnished

him the lines showing the direction of the road and

the stakes showing the grade, and the depositing of

the material was under the engineers’ inspection.

Appellant argues that these facts, together with

the indication of the road on the drawings, sustains

his contention that the fill was provided for by the

contract. But paragraph 293 required the Gov-

ernment to build » roadway and to so facilitate the

work under the specifications as not to diseommode

the prosecution of the rest of the work. If «ppellant

had had carte blanche in dumping the excavated

material, without any guide or direction from the

Government, he might have interfered with the rest

of the work. It was therefore necessary to indicate

where the materia! was to be deposited.

The fact that Col. Miller, the first engineer in

charge, misunderstood the situation «nd allowed

appellant company payments to the amount of

- 16

$12,000 on estimates for work done on this road

does not’ bind the Government, as the United States

can not be bound by its officials acting outside the

contract where its terms are susceptible of only one

interpretation.

As paragraphs 29, 57, and 285 give the engineer

officer the final decision in the interpretation of the

contract, it is maintained that the ruling of Col. Leech,

the engineer officer in charge when the project was

completed (as he had previously notified appellant he

would rule), that the fill on the roadway was not to

be paid for under the terms of the contract, hie-deet-

eren was final, in view of the fact that he was not

charged with conduct implying bad faith. (United

States v. Gleason, 175 U.S. 588-605.)

SECOND.

Appellant is Not Entitled to Recover Upon a Quantum

Meruit.

Appellant should not recover upon a quantum

meruit for the reason that the work upon the said

road was not done at the request of the engineer

officer in charge (Rec. 18) nor required of appellant

by the drawings or the specifications. Moreover,

it appears that the roadway was as convenient a place,

and was less expensive than any other place, for the

disposal of the waste material. As appellant was

already paid 30 cents per cubic yard at some stage of

the moving of the material to the roadway, it is

maintained that he can not show loss, but on the

contrary a benefit. Unless appellant can show loss

to himself he is estopped from an action upon a

quantum meruit. (See Plumley v. United States, 226

U. 8. 545-547.)

CONCLUSION.

It is respectfully submitted that the judgment of

the court below should be sustained.

Huston THOMPSON,

Assistant Attorney General.

osu? ie i han ha Rte as a a as i a ne es a ae CR Ci Peta ASV OS

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