Transcript of Record — United States v. Barlow

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BYRON BARLOW, .

Neck

BYRON BARLO’

M. DOUGAN, |

APPELLANTS, .

—

SUPREME COURT OF THE UNITED STATES.

OcTOBER TERM, 1900.

THE UNITED STATES, APPELLANT,

Vs.

BYRON BARLOW, JAMES FE. BLACK WELL, AND JAMES M.

DOUGAN, PARTNERS AS BYRON, BARLOW & CO,

No. 377.

BYRON BARLOW, JAMES FE. BLACKWELL, AND JAMES

M. DOUGAN, PARTNERS AS BYRON, BARLOW & CO.,

APPELLANTS,

Vs.

THE UNITED STATES.

APPEALS FROM THE COURT OF CLAIMS.

INDEX.

Original, Print.

Communication from the Secretary of the Treasury, referring claim. ... 1 1

Petition, Department case No. 50, filed January 4, T8872. .....++-++++- 2 1

Traverse, tiled May 21, 1900... 22.222. ee eee eee eee eee eee eee es 12 8

Petition, general case No. 20, 698, tiled January 13, ISW0 2.2.2... - ese 13 8

Traverse, tiled May 21, 1900... 2.2.22... 22 ee eee eee eee eee eee ee eee 2 15

Motion to consolidate, filed July DE. LRT on war cncacecvanecevasscuscs 26 1

Findings of fact and conclusion of law, filed May 21, 1900 .......------ 27 15

Opinion of the court, filed May 21, 1900. 0.0... sess ee eee eee eee eee eee a4 46

Final judgment, filed May 21, 1900 2.02... 2-2. eee ee eee eee creer eee 60 a2

Defendant’s application for and allowance of appeal, tiled June 11,

Ta eau bae hs RkGhRGhSGeRdh cst RAERRSDRAOS EERE S AES 61 a2

Claimants’ application for and allowance of Cross appeal, filed June

BE POD ics ca cxce pn nnaecncectancchessntsbeetheanceeesehGeenscsses 62 52

Certificate of chief clerk .......-.----- co nh ts §navbssctn bh seen kenene S)

9350 1

cama OS TTT

ae en SAS

THE UNITED STATES VS. BYRON BARLOW ET AL. 1

1 [. Communication from the Secretary of the Treasury referring

claim.—Filed February 20, 1896,

Treascry DrEPARTMENT,

OFFICE OF THE SECRETARY,

Washington, D.C, February 19, 1896.

Th: Honorable the ( hie Justice and Judges of the ( ourt of ( Vaims:

Pursuant to the provisions of section 2 of the act of March 3, 1883

(22 Stat., 485—the Bowman Act), and as requested by the Comptroller

of the Treasury in his letter of the 15th instant, I have the honor to

transmit herewith the claim of Byron Barlow & Co. for extra work in

connection with the dry dock at Puget Sound Naval Station, amounting

to $1,156.76, which was disallowed by the Auditor for the Navy Depart-

ment on January 12, 1895, and transmitted to the Comptroller of the

Treasury, at the request of the Secretary of the Navy, for a revision of

the Auditor's settlement, as provided by section 8 of the act of July 31,

1894 (28 Stat., 207).

The Comptroller says, “the principal questions at issue in the case are

whether the Secretary had authority by oral direction to vary the terms

of a written contract wherein was provided a formal method for varying

stich contract, and whether, under the action taken by the Secretary, any

elaim arose in favor of claimants for extra compensation,” and that “ the

elaiin invelves controverted questions of fact and law.”

ATL vouchers, papers, proofs, and documents pertaining to the claim

are herewith transmitted, together with a list of said documents,

Respectfully, vours,

S. WIKE,

Acting Seerctary.

2 In the Court of Claims, December term, 1896,

Byron Bartow, James FE. Buackwenr, )

and James M. Dougan, partners doing

husiness under the firm name and style of |

Byron Barlow & Co., |

Department case No. 50.

THe Unirep Srares.

I. Petition.—Filed January 9, 1897,

To the Honorable the Court of Claims:

The claimants, Byron Barlow, James E. Blackwell, and James M.

Dougan, respectfully represent:

The claimants, Byron Barlow, James E. Blackwell, and James M.

Dougan, as co-partners in business under the firm name and style of

Byron Barlow & Company, all of the city of Tacoma, in the State of

Washington, did on the 29th day of October, in the vear 1892, enter

into a contract with the United States as the accepted bidders under

advertisement for the construction of a dry dock at the United States

naval station on Puget Sound, in the State of Washington, for particu-

lars of which contract reference is made to the contract itself, a copy of

which is embraced in the papers transmitted to this court: by the Seere.

tary of the Treasury in this cause, and certain material provisions of

which contract are as follows:

“Seventh. The construction of the said dry dock and its accessories

and appurtenances herein contracted for shall conform in all respects to

and with the plans and specifications aforesaid, which plans and <pecifi-

cations are hereto annexed, and shall be deemed and taken as

3 forming a part of this contract, with the like operation and

effect as if the sume were incorporated herein, No omission in

the plans or specifications of any detail, object, or provision necessary

to carry this contract into full and complete effect, In accordance with

the true intent and meaning hereof, shall operate to the disadvantage of

the United States, but the same sh: Ube satisfactorily supplied, performed,

and observed by the contractors, and all claims for extra compensation

by reason f, or for or on account of, such extra performance, are hereby,

and in cor ideration of the premises, expressly waived; and it is he reby

further provided, and this contract is upon the express condition, that

the said plans and specifications shall not be changed in any respect,

except upon the written order of the Burcau of Yards and Doe ‘ks; and

that if at any time it shall be found advantageous or necessary to make

any change or modification in the aforesaid plans and specifications, such

change or modification must be agreed upon in writing by the parties to

the contract, the agreement to set forth fully the reasons for such ch: ange

and the nature thet eof, and the inereased or diminished compensation,

based upon the estimated actual cost thereof which the contractors shall

receive, if any: Provided, That whenever the said changes increase or

decrease the cost by a sum exceeding five hundred dollars (8500), the

actual cost thereof shall be determined by a board of naval officers

appointed for the purpose, and the contrac ‘tors shall be bound by the

determination of said board, or a majority thereof, as to the amount of

increased or diminished compensation they shall be entitled to receive in

consequence of such change or changes: And provided also, That no

further payment shall —e made unless such supplemental or modified

agreement shall have been signed before ihe obligation arising from such

change or modification was incurred, and until after its approval by the

party of the second part: And provided further, That no change herein

provided for shall in any manner affect the validity of this contract.”

~ * * x * cs a

2 THE UNITED STATES V8. BYRON BARLOW FT AL.

“Fourteenth. It is e xpressly understood, covenanted, and agreed, by

and between the parties to this contract, that if any doubts or

4 disputes arise as to the meaning or requirements of anything in this

contract, or if any discrepancy appear between the aforesaid

plans and specifications and this contract, the matter shall be at once

referred for the consideration and decision of the Chief of the Bureau

of Yards and Docks, and his decision thereon shall be final, subject,

however, to the right = the contractors to appes ‘al from such deci ‘ision to

the Secretary of the N avy, Who, in case of such appeal, shall be fur-

nished by the contractors with a full and complete statement of the

grounds of their appeal, in writing, and shall therenpon take such action

in the premises as, in his judgment, the rights and interests of the

DIED ETN ETS AREER AOI —

THE UNITED STATES Vs. BYRON BARLOW ET AL. 5

respective parties to this contract shall require, and the parties of the

first part hereby bind themselves and their heirs and assigns, and their

wrsonal and legal representatives, to abide by his, the said Seeretary’s,

decision in the premises,”

Said contract was accompanied by plans and specifications, certain of

the provisions of which specifications, material to the present case, were

as follows:

“The eontractor shall furnish all necessary facilities, should it be

deemed advisable by the engineer to make an examination of any work ©

already completed. Tf the work is found defective in any respect, he ©

shall defray all expenses of such examination and of satisfactory recon- —

struction. Tf the work is found perfect, such expenses will be allowed

for.”

“All piles in the bottom of the dock shall be accurately spaced and :

driven vertically until a satisfactory depth has been reached and the ©

penetration is not more than one-quarter (1) inch under the last blow of ©

a huumer weighing three thousand (3,000) pounds falling twenty-five ©

(25) feet, or the equivalent thereof, unless the Bureau shall authorize a

modification hereot after examination and tests are made,”

The claimants thereupon proceeded with the execution of said con- ©

tract in strict aceordanee with the terms thereof, and, among other

things, drove all piles in the bottom of the dock until a depth bad been

reached at which the penetration was not more than one-quarter

5 ({) of an inch under the last blow of a hammer weighing three

thousand (3,000) pounds falling twenty-five (25) feet, and until ©

more than half of such piling had been completed to the satisfaction of ©

the engineer in charge and under the direct: personal orders of the ©

inspectors acting under the direction of such engineer, and until such

inspectors were personally satistied as to cach and every pile so driven.

Ou orabout the 16th day of February, in the year 1894, the claim-

ants were notified by the engincer in charge of a direction of the Navy

Department requiring that said piles should be put in by water jet, and

further notifving them to provide the necessary plant for that method of

putting in the piles, Whereupon the claimants called the attention of

said engineer to the paragraph of the specification hereinbefore cited

providing for the driving of such piles by means of a hammer, specifying

the weight and drop of the same, and the fact that they had provided

hammer pile drivers amply sufficient in all respects for driving all the

piles, and that such piles were being driven in strict accordance with the

terms of the specifications to the satisfaction of the inspectors on the

work and of said engineer himself, and demanded that if it was decided

on the part of the United States to make so radical a change in the mode

of driving the piles, it should be done by the appointment of a naval

board, as provided in paragraph 7 of the contract, and at the cost of the

United States, and further stated that in the opinion of the claimants an

attempt to jetty the piles into the sandy foundations underlying said dry

dock would disintegrate and destroy the bottom, and insisted that the

Government should assume all responsibility for the damage that might

be thereby caused, Thereupon, and in consideration of the objections

so raised by the claimants, they were allowed to proceed with the driving

4 THE UNITED STATES Vs. BYRON BARLOW ET AL.

of piles by the hammer as before, and their work in se doing was

6 passed and approved by the inspector on the work and hy the

engineer in charge and regularly paid for on duly certified voueh-

ers until the 13th day of April, ISM4, when, | Ww te legraphie dlixpateh

received from the Navy Department, work on such pile driving was

temporarily —s and opm to be so stspe nded until the See

retary of the Navy, Hon. Hilary A. Herbert, in the month of May,

1X4, personally visited the site of the work for the purpose of ins spect.

ing the driving of piles by the hammer, and personally directed, on or

about the 21st day of May, in the vear ISO4, that as an expe riment the

contractors should) provide a plant for using the water jet, whieh they

did, and) proceeded to drive said) piles by the use of said water jet until

about the Sth dav of June, I894, when, as the apprehensions — pre.

viously expressed by the claimants in regard to disintegrating the foun-

dations of said dry dock by the use of said water jet appeared to be veri-

fied, the same was suspended by direetion from the civil engineer of

the United States Navy in charge of the work until a direetion could

be obtained by telegraph from the Seeretary of the Navy, which diree-

tion was on the Oth day of June, 1894, given by said Seeretary by tel-

egraph to the commanding officer at the Puget Sound Naval Station, as

follows;

“Use jet with least amount of water to get piles down, and hammer to

set them firm.”

Whereupon the use of said water jet was resumed in the manner

required by said telegram, but with such unsatisfactory results that the

commanding officer at said Puget Sound Naval Station thus advised the

Department by telegram dated June 12, 1804:

“Obeving Department telegram of 9th inst., resumed driving piles

with water jet. Engineer reports results worse than first trial. Piles

can not be made to remain in’ place, and water injuring bottom

7 seriously, Contractors protest: against further procedure with

water jet and ask for board of engineers to pass on same. Work

stopped pending decision, Report by mail.”

Whereupon, upon the demand of these claimants as contractors, a

naval board, of which Captain P.C. Asserson, United States Navy, was

president, was convened to examine, among other questions relating to

said contract, that of the manner of driving piles in the bottom of said dry

dock; and said) board, after: thorough examination of the questions

involved and experime nting with both the water jet and driving by the

hammer, reported to the Secretary of the Navy, among other things, as

follows, ‘wader date of June 30, 1894:

“Board unanimously recommends foundation piles twelve to fourteen

inches diameter, pointed, and driven with drop hammer six feet minimum

depth below bottom of concrete. All further sheet piling and cut-offs in

bottom to be omitted and conerete cut-offs thirty inches thick by six feet

depth below foundations substituted theretor under entrance works and

on sides in advance of finished floor. Additional foundation piles to be

interpolated between those now sunk by water jet.”

Thereupon, on the 2d day of July, 1894, the Secretary of the Navy

telegraphed to the commanding officer at Paget Sound Naval Station as

follows:

v: —

BNI AEA SAE AE AES es FRAG TET ay Puig RENO ty oe at rey

—eEEEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeESe eee

THE UNITED STATES Vs. BYRON BARLOW ET AL. 5

«Recommendations of Asserson Board as per telegram of June 30th

approved. Direct board to estimate increase or decrease of cost in aceord-

ance with seventh clause of contract. Show estimate to contractors ;

final re~istance to piling as per specifications ; let work proceed.”

Thereafter the remainder of the piles in the bottom of said dry dock

were driven in the manner employed previously to the experimental use

of the water jet, to the satisfaction of the inspectors on said work and of

the engineer in charge, and were approved by said inspector and

8 engineer and by the Department, subject only to the requirement

that the same should be driven toa depth of not less than six feet,

which depth was readily reached by the use of the hammer and without

the employment of the water jet or any means of a similar character,

The claimants, on or about the 24th day of July, in the vear TSM, at

the request of the board hereinbefore referred to, of which Captain PLC.

Asserson Was president, submitted to said board a full and correet state-

ment showing the amount of expense incurred by them growing out of

the experiments with said water jet, as follows:

“Por labor and materials in experimenting jetting and pulling piles

and making tests for Asserson Board of Engineers, and previously.

May 23. To] force PUMP ... cece cceececcccceseececees S700,00

“piping and connections for pump... eee ees 187.00)

“hose lines and tackle. .....0 cece ee eee eee ee 60, 00

* Jabor setting up plant .......-- Dniester a we Ah 106.70

“ blacksmithing, staples, tongs, and evebolt-.... 16.55

July 5. To 2,732 lin. ft. round piles used from May 27th

to July 5 in experiments, Se... eee eee 16. 60

“ Jaborin driving piles by water jet from May 27th

ty Fees (Gen owas eccesssscevenswerss Ish. 35

* Jabor testing and pulling piles for Asserson

Board from June 25th to July Sth... 2... BHO, VD

“pumping for water jet... 26... eee eee ee eee 7.0")

“ general pumping during construction, one-fourth

of total cost, 15 days, at 87.50 00.0... .00 65 112.50

“ extra cutting off of piles raised by use of water

Dies ats covenants a ieee awenD Meas 5.00)

S1, 972.65

Profit, 10 percent 2.22666 eee ete eee eee eee inv eee does 197. 26

S2,169. 91

4 Said board, upon consideration of stid account, made the fol-

lowing recommendation by report to the Secretary of the Navy,

dated August 1, 1894:

“The board reecmmends that additional compensation be allowed and

paid for cost of experimenting in jetting piles, May 27th to June 12, and

in driving and pulling test piles, June 25 to July 5 as follows:

May 27 to June 12—

2,508 lin, ft. round piles, driven, at 15c.....---++++- . $376. 20

Labor in setting up plant, ironwork, &e .....-.--- —«. ED

Use of special pumping plant, appliances, Ke. ....++- 150. 00

ety

—— ee

yet net ent hse

Lo bal E ol ETN:

BES pS LEDER G tes Le,

6 THE UNITED STATES VS. BYRON BARLOW ET AL.

June 25 to July 5th—

224 lin. ft. round piles used to replace those pulled by

ROME OE Gn c anda cchwsdavnswetbcdsavencce seca” ORE

Labor, use of machinery, appliances, Ke oo... 6 ee es B90, 98

WU Sb wa WWa Ue gh AKU sawadgnnes sckeduse cannes pe

Add for protit 10 per cent 6.6.6... Ri SRR GRR 105, 16

$1, 156. 76

Said board, though expressing the opinion that the contractors were

eguitably entitled to a reasonable compensation for any additional

expense incurred by them in the prosecution of the work in consequence

of unusual delays that may be found to have been eaused by the Goy-

ernment, vet held that they were unable to properly consider that hes.

tion, in view of their having no means of verifving the claim for such

additional compensation, and for that reason the voucher issued jp

accordance with their recommendation, as hereinbefore stated, did not

include any consideration of such delay, and ne question in’ regard

thereto has been referred by the Seeretary of the Treasury to this court

in this proceeding, and the claimants reserve all rights of action in that

particular,

Thereupon, and after the submission of the report of said board, the

following voucher was issued by the Navy Department :

10 * Special rouche yr.

“Navy DeparrMent,

“Bereav or Yarps ANp Docks,

“The United States to Byron Barlow & Co., Dy.

“*Appropriation: Dry dock, Puget Sound.’

IS.

Sept. 25th. Extra allowance for cost of experimenting in jetting piles, ete,

as recommended by the ‘Asserson board? August 1, 1804, viz:

2,008 lin, ft. round piles, jetted, at 15 cents.......... 8376.20

Labor, setting up jetting plant, ironwork, ete. .... see 123, 25

Use of special pumping plant and appliances... 2... 150.00

Cost of experimenting by board. ..........06605 er 390, 95

224 lin, ft. round piles to replace those pulled by board,

WES he okb in ead cknccieatecsns Pua sSecthanwns 11. 20

S1.051. 60

Add 10 per cent profit............. BR Re pam Ae 8 105, 16

Pe OTE Re Pea scerecsces Oa SOEE

“NAVY DEPARTMENT,

The work covered by this bill was verbally authorized by me on May

21, 1894.

“HH. A. Hernerr,

os eretary of the Navy.

“Oct. 11, 1894.

THE UNITED STATES VS. BYRON BARLOW ET AL. 7

“Paving fully examined the above charges, | certify that they are in

all respects in_ conformity with the written findings and report of the

Asserson board, dated August 1, 1894.

“F.C. PRINDLE,

“Cieil Rngineer, US. N,

«Ptoceived the above as charged at Puget Sound Naval Station, this

25th day of September, 184,

“SC. PRINDLE,

“SC iril Bugincer, U.S, N,

11 “ULS. Navy-Yarp,

“Pucer Sounp U.S. NAVAL STATION,

Ath Nepal mber, ISI 4.

“Approved for the sum of one thousand one hundred fifty-six dollars

and seventy-six cents,

, Joun ©. Monona,

“Comdr., US. N Commandant,

“Navy Department, Bereat of Yarps axnp Docks,

= 11th Opetoly f. ISU,

ws Approved in quadraplicate for eleven handred and fifty-six dollars

and seventy-six cents, for settlement by the accounting officers of the

Treasury from the above appropriation,

“BE. O. Marrirws,

bate Chit of Bureau?’

The claimants hereby expressly reserve all other or additional rights

of action growing out of this contract, the present reference by the Seere-

tarv of the Treasury being wholly contined to the single claim or matter

of the work connected with the water jet, and for which the voucher in

question was issued,

No other action than as aforesaid has been had on this claim in Con-

gress or by any of the Departments.

The claimants are the sole owners of this claim and the only persons

interested therein; and no assignment or transfer of this claim, or of any

part thereof or interest therein, has been made.

The claimants are justly entitled to the amount herein claimed from

the United States, after allowing all just eredits and offsets. The claim-

ants are citizens of the United States, and have at all times borne true

allegianee to the Government thereof, and have not in any way volun-

tarily aided, abetted, or given encouragement to rebellion against the

«tid Government; and the claimants believe the facts as stated in this

petition to be true, And the claimants pray that the facts may be found

as hereinbefore stated, and that the court will find as a conclusion of

law that they are entitled to be paid the value of the work done by

them in connection with said dry dock, and that the court will report

its findings of fact and conclusions of law to the Secretary of the Treas-

ury, as provided in section two of the act approved March 3, 1883.

Grorce A. KING,

Rurvus H. THayer,

Attorneys for Claimants.

_—_

Ts Raia y arn ak s — ee

8 THE UNITED STATFS VS. BYRON BARLOW ET AL. 4

District or CoLUMBIA, sx:

James E. Blackwell, being duly sworn, deposes and says: I am one

of the claimants in this case. IT have read the above petition, and the

matters therein stated are true, to the best of my knowledge and belief,

Jas. KE. BLackwent.

Subscribed and sworn to before me this 8th day of January, 1897,

Marrua M. Beck,

[SEAL. ] Conmissioner of the Court of Clarins,

12 LIT. General Traverse.—Filed May 21, 1900,

And now comes the Attorney-General, on behalf of the United States,

and answering the petition of the claimants herein, denies each and every

allegation therein contained ; and asks judgment that the petition be

dismissed.

And as to so much of the said petition as avers that the said claimants

have at all times borne true faith and allegiance to the Government of

the United States, and have not in any way voluntarily aided, abetted,

or given encouragement to rebellion against the said Government, the

Attorney-General, in) pursuance of the statute in such case provided,

denies the said allegations, and asks judgment accordingly.

I. A. Prapt,

Assistant Alorney-Ce neral,

13 In the Court of Claims, December term, 1896.

Byron Bartow, James EL BuackweLb, AND JAMES )

M. Dougan, partners doing business under the firm |

name and stvle of Byron Barlow & Co, » No. 20698,

r, |

Tuer Unxirep Srares. }

IV. Petition. —Filed January 13, 1897,

To the Honorable the Conrt of Claims:

The claimants, Byron Barlow, James E. Blackwell, and James M,

Dougan, respectfully represent :

The claimanis, Byron Barlow, James E. Blackwell, and James M.

Dougan, as copartners in’ business under the firm name and style of

Byron Barlow & Co,, all of the eity of ‘Tacoma, in the State of Washing-

ton, did, on the 29th day of October, in the vear 1892, enter inte a con-

tract with the United States as the accepted bidders under advertisement

for the construction of a dry dock at the United States naval station on

Puget Sound, in the State of Washington, for particulars of which con-

tract reference is made to the contract itself.

Said contract was accompained by certain plans and specifications, as

to the particulars of which reference is made to the originals, which, or

certified copies of which, will be duly filed in this cause,

The claimants thereupon proceeded with the execution of said contract

in strict accordance with the terms thereof.

THE UNITED STATES VS. BYRON BAKLOW ET AL,

14 Claim I. Betra cost of other sandstone required,

In pursuance of that clause of the specifications which provides, under

the head of “Stone masonry, that “the ashlar must be of granite or sand-

ctone, of quality appreved by the engineer,” the claimants in submitting

their proposals under the advertisement for said contract had submitted

one bid based upon the use of sandstone for the ashlar, aud another, of

larger uount, based upon the use of granite, and the acceptance of their 4

proposal by the Navy Department was of the lower bid, based upon the :

use of sandstone, :

The claimants thereupon submitted to the engineer in charge a sample 4

of certain sandstone, known as Tenino sandstone, in all respects in accord= ::

anee with the specifications, and suitable for use upon the work, and the 4

sume Wils approved lw the engineer in charge, 4

Thereupon, on the 4th day of May, in the vear 1893, the claimants ‘

entered inte a contract with George N, Vantine, Wesley D. Fenton, and 4

Charles A. Billings, doing business under the firm name and stvle of f° 4

The Tenine Stone Quarry Company, whereby said) company agreed to q

furnish and deliver to the claimants all of the sandstone required for the ©

work under their contract. bi

Said company thereupon proceeded to furnish the sandstone required, ;

and did, on the 20th day of June, 1893 furnish a considerable quantity,

which was delivered by the claimants at the site of the work, and was

in all respects suitable for use under their contract with the United

eens:

States, and was inspected and accepted by the civil engineer of the &

United States Navy in charge of eaid work, and for whieh said) civil é

engineer issued a voucher for payment, which voucher was approved by 5

the commanding officer of the Puget Sound Naval Station and torwarded z

to the Navy Department for payment, e

ie Shortly after the delivery of said stone at the site of said dry ©

dock, to witlon the 28th day of June, in the vear 1893, the claimants K

entered into a contract with Albert Beaudette and Louis Beaudette, stone "

cutters, doing business under the firm name and style of Beandette —

Brothers, to cut saidl stone, and all of the stone required under their con- &

tract for the construction of said dry doek, to the dimensions required by ;

the contract, the claimants to. pay for the same at the rate of seven dol- :

lars (87) per stone, But before any of the stone had been cut under =

cal contract, to wit on the 8th day of September, in the vear TS, the i

claimant« were notified by the civil engineer of the United States Navy :

incharge of said work that ina letter dated August 31, 1893, the chief

of the Bureau of Yards and Docks, referring to the Tenino sandstone, ©

“declined to aecept the same as proper material for the stone masonry :

for the dry doek construction,” and requested the claimants to furnish 5

him, said engineer, with samples of such other sandstone as they might

select, in order that the same might be subjected to test and analysis, —

Said engineer, however, did not at that or any other time express any

disapproval on his part of said Tenino sandstone, but was then and 3

at all times satisfied with the same, and would have continued the 3

acceptance of the same, stating as late as the 14th day of June, I894,in |

a letter toa member of the firm constituting said Tenino Stone Quarry —

Company that— :

“When T accepted the stone from your quarry for use in the dry dock i

On Ears

‘i or tthe “ — ene: .

iat Sa Dette SE a er Ree a ine SAG A oe et a oat Wie ne ok ec th we

kas eet

3 Aire,

ee eee

esirns. SEE SIENA LEONE

32 PM TOE KS Pe IRM BB

10 THE UNITED STATES VS. BYRON BARLOW ET AL.

her ST considered it entirely suited for the work. Since then I have had

no reason for changing my views. [still consider the product of vour

quarry a mest excellent stone, and suitable for the work.” ;

Upon being notitied, however, of the requirement made by tie

16 Bureau of Yards and Docks that other stone be furnished, the

claimants, though protesting against such ruling, entered into a eon.

tract with John A. Soderberg, lessee trom E,W. Johnston of a certain

quarry Known as the Dog Fish Point Quarry, and furnished stone from

the same, whieh stone was accepted, Said quarry, however, was soon

exhausted, as te its capaeity to furnish stone of so large al size as was

required for said dry dock,

The claimants having then exhausted all means of obtaining <tone of

suitable size by private contract, earefolly inquired as to where SIN stone

could be obtained of suitable quality, eapable of being cut into the

required size for lise in the entrance of sid dry dock, sun the civil

engineer ot the United States Navy in charge of said work also made

careful inquiry in regard therete, and ina report addressed to the eom-

mandant of said Paget Sound Naval Station, and by him transmitted to

the Navy Department, stated that the only suitable stone was a hard

sandstone to be found on Sucia Tstand, which iskind constituted a Gov.

ernment reservation for light-house purposes.

Thereupon the claimants applied to the Secretary of the Treasury for

permission to quarry stone on said: iskind, and after obtaining the

required permission opened at great expense a quarry on said: iskind,

wid brought from San Franeiseo all the foree of stonecutters required

te cut snd stone to the dimensions required tor the work on sd drv

deck, and at an expense greatly exceeding that which would have been

necessary in the ease of the Tenine sandstone,

The claimants were alse sued by the aforesaid Beaudette Brothers in

an action claiming damages amounting to five thousand two hundred and

two dollars (85,202) tor breach of their contract by failing to furnish

stone for them, said) Beaudette Brothers, to eut, as was required

17 by their contract, whieh action is still pending in the ~Uperior

courtot Kitsap County, in the State of Washington.

The claimants therefore claim as follows:

lL. Reimbursement tor Tenino sandstone furnished and quar-

SOE $ cba 05445554 6 os MRR EC Eea ee teen Le 85, 995, 45

2. Reimbursement for damage suit by Beandette Brothers for

Ee, ERECT E Oe capenaclc chbute eee 5, 202.00

3. Reimbursement for cost of tarnishing and cutting other

sandstone in exeess of what Tenino stone would have

i ed a ee ae ee ey eee ee kA Ads kere Ke ROR e 19, 178. 98

jn re ee gee ere EA Ce PR a He AN S30, 376, 43

CVaim TI. | DO tonndations for hoiler house and hoik we,

In the construction of the boiler house and boilers the claimants laid

the foundations for the same ander the direction and to the aeceptance of

the civil engineer of the United States Navy in charge of said work on

behalf of the United States, who embraced all the items thereof’ in his

a : nS EU PR RP NO RPP ET CORN ARLE Pp RILULORENNRS E PQOAIRY

3 e

THE UNITED STATES VS. BYRON BARLOW ET AL, 11

monthly estimate which he transmitted to his superior officer for payment.

The successor, however, of the engincer first in charge objected to said

foundations, and required that the foundations of the boilers be entirely

removed and renewed and that those of the boiler house be strengthened.

The claimants protested against being required to do over again any

work already once done to the satisfaction and acceptance of the engineer

in eharge, and insisted that if done, it be at the expense of the Govern-

ment, and proceeded to do the work as ordered aceording]y.

The reasonable value of said work, and which the claimants hereby

claim, was as follows:

}. Extra foundations for boiler house... 6.6... 66. eekee .. $312.12

9 Extra foundations for boilers .. 0... 66.6 e eee eee eee B84. 56

(i> eee are ee wee ee ea eee ee et ee ee eae rir S96. 68

1s Claim Fri. Kertra work at evit of hrvel discharge culvert,

In the original drawings for the werk at the exit of the brick dis-

charge culvert the concrete and timber work forming the foundations at

the brick arch were shown as stopping ata certain vertical line given on

aid drawings. It was subsequently determined by the Bureau of Yards

and Docks, in order to prevent the washing out of the material under

said foundation, to pat ino a row of sheet piling across the exit of said

eaivert, and this was afterwards embodied in oa separate contract under

which the claimants were paid for the same.

It was afterwards decided by the Bureau of Yards and Docks that a

concrete toe should be put against said sheet piling to prevent the same

from being destroved by the teredos, and the civil engineer of the Navy

in charge of said work on behalf of the Government informed the

claimants, they not having time to submit an estimate and have the

price agreed upon, that they might do the work and afterwards put in

their bill tor the same, and he would transmit it to the Bureau of Yards

and Docks with his recommendation for payment, which he did on the

2th of July, 1895. Phe Bureau of Yards and) Docks, however, on or

about the Tst day of August, in the vear 1895, refused to recognize

any extra charge for said conerete toe, insisting that both the sheet

piling and the conerete toe were required in order te prevent the

teredos from attacking the timber which was laid on the piling, and

which timber was required te be se laid in consequence of the piles

having been, by mistake of the claimants, cat off too low ; whereas, in

point of thet, neither the sheet piling nor the conerete toe was required

in aby manner as a consequence of said mistake, but: said sheet piling

would have been equally required to protect the piles and timber

hy work had said work been constructed: as originally designed, and

said sheet piling had in accordance with this view, therefore,

been made the subject of a separate contract and) paid tor as such, and

said conerete toe was required only to protect the same,

The reasonable value of the extra work on said concrete toe amounted

to 850.55, which amount the claimants hereby claim.

NNR GRE

STATES Vs. BYRON BARLOW ET AL.

Claim IV. Reimbursement Jor being required by civil engineer to ray “

sluice all filling, when not called for by contract and xpecificutions,

In the specifications accompanying the contract for said rv dock

there was no requirement that the filling around the drv dock should be

rammed, or sluiced, the only reference to the refilling of earth contained

in said specifications being as follows:

“All earth excavated, and not required for refilling or grading withip

the limits of structures, is to be deposited within the limits of the station,

at reasonable distances from the dock, where indicated by the comman.

dant, not to exceed 1,000 fect from the dock, and brought up to the grade

of the station as established.”

* * < * < 2 *

* Upon completion of the work, the surtice is to be evenly graded

from coping back to the line of sheet piling and around the pumnp-house,

to correspond with the grade of the station adjoining, as the eivil engi-

neer or cther officer in charge may direct.”

In refilling the dirt after the altars were in place, under the direetion

of the civil engineer of the United States Navy then in charge of said

work, no part of the filling was rammed or <lnieed exeept the clay

paddling, as under his interpretation of the specifications and) contrac

the same was not required and had not been done on the dry

20 dock shortly before that constructed at the navy-vard at Norfolk,

Virginia. Subsequently, however, the successor of the ciyil

engineer first in charge raised the question of ramming the back filling

behind the altars and, upon the claimants objecting thereto, referred the

question to the Bureau of Yards and Docks, and on the 13th day of

November, in the vear 1894, informed the claimants that said Burean,

on the 3d day of November, 1894, held that the contractors were required

under their contract to ram the back fillings to whatever extent was

required for the satistietion of the inspector in charge. The elaimants

protested that this was not required by the specifications, and that no

ramming or sluicing of the filling was ever required in railroad or other

similar work by the custom of contractors in work of this character

unless distinctly specified. The claimants, though thus protesting that

the same was not required by the specitications and in accordance with

the demand made on behalf of the Government, sluiced with water all

of the material inside of the sheet piling surrounding the dock.

By reference to the specitications it will be seen that the claimants

Were required, in making proposals for the work, to submit a classifiea-

tion of the cost at schedule prices to aggregate the total contract price,

In accordance with this requirement the claimants submitted a schedule

of prices, which was approved and incorporated in the contract, and

under whieh, among other items, was contained one “ For filling and

grading, per cubie vard, thirty cents,” but such schedule contained no

mention of ramming or sluicing the fillings. Subsequently the claim-

ants entered into a supplemental contract for adding wing and approach

walls to the entrance of the dock, under which they were allowed by a

board of naval officers, of which Captain PLC. Asserson, civil engi-

neer, United States Navy, was president, at the rate of forty-

21 five cents per cubic vard for all filling which was to. be rammed,

besides a profit thereon of. ten per cent, thus showing that the

OS ETE IN OI RE AY GUE. RAP

RELA RAE TET PO PAG IE

me THE UNITED STATES VS. BYRON BARLOW ET AL.

rawming of fillings was regarded by said board as extra and additional

to the work of filling itself.

The claimants therefore claim ten cents per cubie yard for 37,227

eubic vards of filling, rammed or sluiced, amounting to $3,722.70,

Clean V— Damages for delay caused by Government in driving piles.

From the 13th day of April, in the vear 1894, to the 5th day of July,

1804, being seventy (70) days, exclusive of Sundays, the claimants were

delayed in the work of driving piles in the foundations of said dock by

the order of the Navy Department suspending the same on the forwer

date tor the purpose of experimenting with the method of driving piles

by water jet, as is more fully and at large set forth in the petition of

these claimants in the case ¢ already entered on the docket of this court us

Department cise No. 50. In said ease, referred to as De spartment case

No. 50, the Secretary of the Treasury has referred to this court: for

adjustment the claim for the expense in making the experiments to jetty

anid piles, or piling, and testing the same for the board during its visit

in June, IS94, and for the ade litions i expense of interpolating new piles

between those already driven in order to repair the damage thereby done

to the bottom, In regard to the question, however, of the damage for

delay, the Asserson board of civil engineers, Whose report has been here-

inbefore referred to and is more particularly mentioned in the petition

of these claimants in Department case No, 50, reported as follows :

22 “ArricLe 2665. The board is of the opinion that the con-

tractors are equits ably entitled to a reasonable compensation for

any additional expense incurred by them in the prosecution of the work,

in consequence of unusual delays that m: w be found to have been e: atau

by the Government, but having no means of verifving the claim sub-

mitted for such addition: tl compensation the board is unable to properly

consider this question,”

The claimants being delaved from the date of the order suspending

work on the 13th of April, 1894, till the 5th day of July, 1894, the date

on Which they were able to resume work after being properly notified,

therefore elaim the actual cost to them of such delay, computing therein

only the actual and necessary daily expense of the men actually and per-

manently employed, and the material necessary for use, and excluding

therefrom all who were laid off without pay during this period. Thus

computed such expense amounts to seventy-five dollars ($75) per day, a

total for the seventy (70) days of suspension of 85,250,

RECAPITULATION,

Claim T. Extra cost of other sandstone after Tenino stone

had heen accepted and then condemned :

Item 1. Reimbursement for Tenino stone furnished

and quarried... 6.6 sees eee e ee eee eee reece eee ees 85,995, 45

Item 2. Reimbursement for damage suit by Beaudette

Bros, for cutting ......... peacaesescaveccessse 6,203.00

Item 3. Reimbursement for cost of furnishing and cut-

ting other sandstone in excess of what Tenino stone

We PO ES Sic cccneccnceanssacacsssdess: Uh ER

Amount carried forward. .............+..ee008- $30, 376. 43

pe ES ee LEE PS PENT RES INO ET IN EI

Se RS a Ee bas ie ah She $

PRR GALLO ALLE ELS SCE

PEGA ID EA SEBO Se

Dt ete

SFL TT PRE

;

WwW

Be PRN OE

Pircsnrecican Spi bBeties ia cab Sepa SPR

TT THE UNITED STATES VS. BYRON BARLOW ET AL.

23 Amount brought forward. ............... 830, 376, 43

Claim IL:

(¢) Extra foundations for boiler house....... 312. 19

(6) Extra foundations for boilers ........... OS4. 56

Claim [1]. Extra work at exit of brick discharge culvert. 59, 35

Claim IV. Reimbursement for being required by civil

engineer to ram or sluice all filling, when not called for

RP)

by contract and specifications ...........-- iescen ene 3, 722. 70

Claim V. Damages for delay caused by Government in

driving piles ......... Ped a iid ee EE eee A

DOG LAAINIB 6.602% digs caw ss ao ne arene sessscee O40, 105, 16

The claimants submitted this claint to the Secretary of the Navy on

the 11th day of March, in the year 1896, but said Secretory, without

passing upon the merits thereof, held on the 28th day of April, in the

year 1896, in a communication in writing addressed to the claimants,

“that the nature of said claims is such that the Department is wholly

without authority, under the statutes, to consider the same with a view

to their adjustment and payment, and that it will therefore be necessary

to their settlement that you submit them to the Court of Claims for its

determination.”

In the final settlement made and release given in pursuance of the

terms of section 6 of article 12 of the contract, and given under the signa-

ture of the claimants the 20th day of September, 1896, the ciaims herein-

before set forth, and which had on the 11th day of Mareh, 1896,

D4 as just hereinbefore stated, been presented to the Secretary of the

Navy, were expressly excepted and excluded therefrom, without

prejudice,

No other action than as aforesaid has been had on this claim) in Con-

gress or by any of the Departments.

The claimants are the sole owners of this claim) and the only persons

interested therein; and no assignment or transfer of this claim, or of any

part thereof or interest therein, has been made, ;

The claimants are justly entitled to the amount herein claimed trom the

United States, after allowing all just eredits and offsets. The claimants

are citizens of the United States, and have at all times borne true alle-

giance to the Government thereof, and have not in any way voluntarily

aided, abetted, or given cneouragement to rebellion against the said Gov-

ernment; and the claimants believe the facts as stated in this petition to

be true. And the claimants claim forty thousand one hundred and five

dollars and sixteen cents (840,105.16),

Gborce A, KING,

Rerces TH. Thayer,

Attorneys for claimants,

Disrrier oF COLUMBIA, ss:

James EF. Blackwell, being duly sworn, deposes and says: Tam one of

the claimants in this ease. T have read the above petition, and the mat-

ters therein stated are true, to the best of my knowledge and belief.

Jas. EK. BLACKWELL.

Subseribed and sworn to before me this 13th day of January, 1897,

[SEAL.] ‘Marrua M. Beck,

Commissioner of the Court of Claims,

me THE UNITED STATES VS. BYRON BARLOW ET AL. 15

25 V. General traverse—Filed May 21, 1900.

And now comes the Attorney-General, on behalf of the United States,

and answering the petition of the cl: simants herein, denies each and every

allegation therein contained ; and asks judgment that the petition be

dismissed.

And as to so much of the said petition as avers that the said claimants

have at all times borne true faith and allegiance to the Government of

the United States, and have not in any way voluntarily aided, abetted,

or given encouragement to rebellion against the said Government, the

Attorney-Gener: al, » pursuance of the statute in such case provided,

denies the said alle ar and asks judgment accordingly.

L. A. ‘PRapt,

Assistrnt Attorney-General,

26 VE. Motion to consolidate coses: for trinI—Filed July 24, 1897.

Byros Bartow, James FE. Buackwenn, AND |

James M. Dougan, partners doing business | General jurisdiction

under the firm name and stvle of Byron Bar- | No. 20698,

low & Co,, Department case No,

rx, 50,

THE UNITED STATEs. |

Now come the claimants in these causes and move the court that these

causes he consolidated for trial.

GEORGE A. KING,

Rervs H. THayer,

Attorneys for Claimants,

I assent.

G. H. Gorman,

Assistant Attorney.

Allowed subject to exceptions if any are filed.

Crarces B. Howry, Judge.

27 VIL. Findings of fact and conclusions of law—Filed May 21, 1900,

This case having been heard by the Court of Claims, the court, upon

the evidence, makes the following

FINDINGS OF FACT.

On the 29th of October, 1892, the following contract was entered into

between the claimants and the United States:

“Contruet for the construction of a dry dock to be located at the U.S. naval

station, Puget Sound, Washington.

“This contract, of two parts, made and concluded this twenty-ninth

day of October, 4 D. 1892, by and between Byron Barlow, James E.

4530:

Fs a ones, © Ene ESE EG

THE UNITED STATES VS. BYRON BARLOW ET AL. ae

Blackwell, and J. M. Dougan, all of the city of Tacoma, Pierce County

State of Washington, copartners in business under the firm name of

Byron Barlow & Company, and hereinafter designated as the contractors

parties of the first part, and The United States, represented by Commo.

dore N. H. Farquhar, U.S. Navy, Chief’ of the Bureau of Yards and

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

the Navy, party of the second part. :

“Whereas, by advertisement, dated August 8, 1892, proposals were

invited by the Chief of the Bureau of Yards and Docks, Novy Depart

ment, for the construction, by contract, of a dry dock of the general

dimensions, and to be located at the place therein specified; and

“Whereas the proposal of the said contractors, dated September 3,

1892, to construct a dry dock to be located at the United States naval

station, Puget Sound, Washington, has been duly accepted by the Seere-

tary of the Navy:

“Now, therefore, this contract witnesses: That, in consideration of

the premises, and for and in consideration of the payments to be made as

hereinafter provided for, the parties of the first part, for themselves, their

heirs, and assigns, and their personal and legal representatives, do

hereby covenant and agree to and with the United States as follows—

that is to say:

“First. The contractors will, within sixty days after the date of the

notice to them that they are given the possession and oceupancy of the

site by the party of the second part, which possession wnd oecupaney of

the said site during the period of construction, and until: the completion

and delivery of the work hereinafter mentioned, shall be secured. to the

contractors by the party of the second part, commence, and within thirty-

six calendar months from the expiration of said sixty days, construct and

~ complete, ready to receive vessels, a dry dock, to be located at the place

% shown on a plan accompanying this contract, at the naval station,

S 628 Puget Sound, Washington; and will, at their own risk and

3 expense, furnish and provide all labor, materials, tools, imple-

ments, and appliances of every deseription—all of which shall be of the

best kind and quality adapted for the work as deserbied in the specifica-

tions—necessary or requisite in and about the construction of said dry

dock and the caisson, pumping machinery, pump house, culverts, and all

other accessories and appurtenances, in accordance with the aforesaid

plans and specifications, subject to the approval of the civil engincer, or

such other competent officer or person or persons as may for that purpose

be designated by the party of the second part; it being further mutually

stipulated and agreed that the officer or officers, person or persons, thus

— work, inspeet all material furnished and all work done under this eon-

which he or they may deem unsuitable for the purpose or purposes

intended, or not in strict: conformity with the spirit and intent of this

~ contract and with the aforesaid plans and specifications, and to cause any

inferior or unsafe work to be taken down, by and at the expense of the

contractors; and that all such rejected material shall be at once removed

from the station and replaced by material satisfactory to such inspector,

and that all such inferior or unsafe work shall be replaced by satisfactory

work, by and at the expense of the contractors. Such inspectors shall at

RISD RI NUP CI RN ARIE OE OD : ; =

THE UNITED STATES VS. BYRON BARLOW ET AL. 13

all times during the progress of the work have full access thereto, and

the contractors shall furnish them with full facilities for the inspection

and superintendence of the same.

“Tt is further mutually stipulated and agreed that at and upon the

request of the civil engineer, or other officer in charge, any disorderly,

arcless, or Incompetent person or persons employed by the contractors,

in or about the work to be done under this contract, shall be at once dis-

charged and not again employed therein; and that all necessary and suit-

able precautions shall be taken by the contractors, during the progress

and until the final completion of such work, to avoid or prevent aecci-

dent-, and that the contractors will indemnify and save harmless the

party of the second part from all claims against the United States, and

from all actions and proceedings at law, and from all costs and damages

for or by reason of any injury to person or property, resulting from, or

directly or indirectly attributable to, any accident or accidents which

may occur in or during the prosecution of the work and in connection

therewith or any part thereof, or to. any carelessness or negligence, wil-

ful or otherwise, of any person or persons employed by the contractors,

or to the use of improper or defective materials, or to any act or omis-

sion of the contractors prior to the final aeceptance of the said dry dock.

“second, The contractors will at all times during the progress of. the

work give their personal supervision and attention to the same and to

every part and detail thereof, and in case of their absence will have a

competent representative or foreman present, authorized to act for them

in all matters connected with the work, and to receive and follow diree-

tions relating thereto when given by the civil engineer, or other officer

in charge; and for all aets and omissions of such representative or fore-

man in the premises the contractors shall be responsible,

“Third. The contractors will, from time to time, as the same may

accumulate daring the progress of the work, remove all refuse material

and rubbish connected therewith, and any portion of such refuse material

or rubbish which the contractors may agree to deposit within the limits

of said) station shall be so deposited by the contractors, at their own

expense, Where the commandant may direct, within reasonable

29 distance from the work. On the completion of the work the sur-

roundings shall be thoroughly cleaned up, filled, and graded to the

establi ied level or levels of the station as the civil engineer, or other

officer in charge, may direct, and all plant and surplus material, inelud-

ing the cofferdam and its filling, shall be removed, by and at the expense

of the contractors, without unnecessary delay,

“Fourth, The contractors stipulate and agree to remove any and all

obstructions at and in front of the entrance of the said dry dock ocea-

sioned by the construction of the cofferdam without extra charge.

“Pitth. Insurance to the amount of fifty thousand dollars (850,000)

shall be effected in such manner and in sueh companies as shall be

approved by the Chief of the Bureau of Yards and Docks, whieh insur-

ance shall be renewed from time to time at the expense of the contract-

ors; the loss, ifany, to be stated in the policies as payable to the United

Mates, for whom it may concern,

“Sixth. The contractors shall hold and save the United States harm-

less from and against all and every just and legal demand or demands of

any imture or kind, for or on account of the adoption of any plan, model,

CREF SEM AR

18 THE UNiTED STATES VS. BYRON BARLOW ET AL. 4

design, or suggestion, or for or on account of the use of any patented

invention, article, or appliance, which has been or may be adopted or

used in or about the construction of the said dry dock, its accessories

and appurtenances, or any part thereof, under this contract, or its use

after completion, and to protect and discharge the Government from al]

liability on account thereof by proper releases from patentees or other.

wise, and to the satisfaction of the Secretary of the Navy, before final

payment under this contract shall be made, excepting in the ease of such

methods, constructions, and appliances for which the Government owns

the right, or has received license.

“Seventh. The construction of the said dry dock and _ its accessories

and appurtenances herein contracted for shall conform in all respects to

and with the plans and specifications aforesaid, which plans and_ specifi.

‘ations are hereto annexed, and shall be deemed and taken as forming a

part of this contract, with the like operation and effect as if the same

were incorporated herein, No omission in the plans or specifications of

any detail, object, or provision necessary to carry this contract into full

and complete effect, in accordance with the true intent and meanin

hereof, shall operate to the disadvantage of the United States, but the

same shall be satisfactorily supplied, performed, and observed by the

contractors, and all elaims for extra compensation by reason of, or for

or on account of, such extra performance, are hereby, and in consid-

eration of the premises, expressly waived; and it is hereby further

provided, and this contract is upon the express condition, that the said

plans and specifications shall not be changed in any respect, except

upon the written order of the Bureau of Yards and Docks; and that

if at any time it shall be found advantageous or necessary to make

any change or modification in the aforesaid plans and specifications,

such change or modification must be agreed upon in writing by the

parties to the contract, the agreement to set forth fully the reasons

for such change, and the nature thereof, and the increased or dimin-

ished compensation, based upon the estimated actual cost thereof

which the contractors shall receive, if any: Provided, That whenever

the said changes inerease or decrease the cost by a sum exceeding five

3 hundred dollars (8500) the actual cost thereof shall be determined

by a board of naval officers appointed for the purpose, and the con-

€ tractors shall be bound by the determination of said board, or a

30 majority thereof, as to the amount of increased or diminished

4 compensation they shall be entitled to receive in consequence of

such change or changes: And provided also, That no further payment

~ shall be made unless such supplemental or modified agreement shall have

~ been signed before the obligation arising from such change or modifica-

~ tion was incurred, and until after its approval by the party of the second

"part: And provided further, That no change herein provided for shall in

& any manner affect the validity of this contract.

“Eighth. The aforesaid dry dock and its accessories and appurte-

nances and each and every part thereof, shall be constructed of approved

materials and in a thoroughly substantial and workmanlike manner, in

accordance with the true intent, meaning, and spirit of the contract,

plans, and specifications, to the satisfaction of the party of the second

part.

ie eg akieaiE

nh CNTED SraTEs VS. BYRON BARLOW ET AL.

“Ninth. In case the completion of the said dry dock, its accessories

and »ppurtenances shall be delayed beyond the said period of thirty-six

(36) calendar months, deductions of fifty dollars ($50) per day during

the first three months following the expiration of said period, and of one

hundred dollars ($100) per day for each and every day beyond the

expiration of the said three months, may, in the discretion of the Seere-

tary of the Navy, be made from the contract price of said dry dock ; all

such deductions to be made, from time to time, from any payment or

payments falling due under the contract: Provided, however, That such

delays shall not have been caused by the act of the United States or its

officers or agents, or by fire or water, or by any strike or stand out of

workmen employed in or about the work, or by other circumstances

beyond the control of the contractors: And provided further, That in

ease of such alleged delay the contractors shall give immediate notice

thereot to the Secretary of the Navy.

“Jn case any question shall arise under this contract concerning pen-

alties, such question, with all the facts relating thereto, shall be sub-

mitted to the Secretary of the Navy for consideration, and his decision

thereon shall be conclusive and binding upon all the parties to this con-

tract. All delays which the Seeretary of the Navy shali find to be

properly attributable to the Navy Department, or to its authorized

officers or agents, or any or either of them, and to have been a delay

operating upon the final completion of the dry dock within the times

hercin specified therefor, shall entitle the contractors to a corresponding

extension of the period herein prescribed for the completion of said dry

dock: Provided, however, That no delay, attributed by the contractors

to the Department, its officers or agents, or the alleged cause or causes

thereof, shall be considered by the Secretary of the Navy unless the con-

tractors shall, at the time of the occurrence of such delay, notify him in

writing of the facts and circumstances in cach ease, and of the extent to

which they claim that the final completion of the dry dock is thereby

delaved,

“Tonth. It is mutually understood, covenanted, and agreed, by and

between the parties hereto, that the said dry dock shall not he accepted

and that the contractors shall not be entitled to the final payment or to

reservations previously made until twenty days after a complete test of

said dock shall have been had under the direction of such officers as

may be designated by the party of the second part, such test to consist

of a full test of the pumping machinery in pumping out the dock, and

the docking of such vessel as the party of the second part may direct ;

the emptying of the dock, the refilling of the dock, and the removal of

such vessel, without any indication whatever of any defect,

31 weakness, or settlement, due to faulty material or workmanship,

in said dock or either of its accessories, and the results of such

test to be, in all respects, to the full) and complete satisfaction and

approval of the officers designated to superintend the same. Such test

shall be made within thirty days after the contractors shall have notified

the party of the second part of the completion of the dock, and a deei-

sion upon the question of acceptance made within twenty days there-

after; it being understood and agreed, nevertheless, that prior to the

said test, the party of the second part shall, at their own expense, remove,

;

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CPOE IER

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20 THE UNITED STATES VS. BYRON BARLOW ET AL,

by dredging or other process, all obstructions of earth, clay, or other

materials necessary to be removed in order to obtain free ingress for yes.

sels to the entrance of) said dry dock; said removal to be effected jy

sixty days from the date of removal of the front cofferdam, and notifies.

tion thereof by the contractors that the said dam is removed, and that

they (the contractors) are ready for the party of the seeond part to pros

ceed and continue with the removal of the said obstructions.

* Eleventh, [tis further mutually understood, covenanted, and agreed

that in ease of the failure or omission of the coutractors, at ANY stage

of the work prior to final completion, from any eause or eauses other

than those specified in the ninth clause of this contract, to go forward

with the work and make sutisfictory progress towards its completion

within the preseribed period, it shall be optional with the Secretary of

the Navy to declare this contract forfeited on the part of the contractors

by giving notice in writing to that effect to them; and upon the giving

of such notice, the contractors shall be indebted to the United States as

for liquidated and ascertained damages ina stm equal to the aggregate

of all advance payments made to them for or on account of the work

done under the contract, and agree to refund the same on demand,

within sixty davs, and the United States shall hold as collateral for such

refund the dock and its appurtenances, or such part or parts and materials

as shall have been furnished. Saeh further steps shall then be taken

tewards the completion of the deck and its appurtenances, and the

adjustment of the rights of the contractors and the Government there-

under, as are provided in the specifications forming a part of this contract,

“Tn case the said Seeretary shall, under the provisions of this clause,

declare this contract forfeited, such forfeiture shall not affect. the right

of the United States to recover for defaults which may have occurred

hereunder, and as liquidated damages, a sum of money equal to the

penalty of the bond accompanying the same: Provided, however, That

if the contractors shall, by any of the clauses specified in the ninth

clause of this contract, be prevented cither from) commencing or com-

pleting the work at the time agreed upon in this contract, such addi-

tional time may, in writing, be allowed them for such commencement or

completion as, in the judgment of the Secretary of the Navy, shall le just

and reasonable; but such allowanee and extension shall in) ne manner

affect the rights or obligations of the parties under this contract, but the

same shall subsist, take effect, and be enforceable precisely as if the new

date for such commencement or completion had been the date originally

herein agreed Upon,

“Twelfth, The covenants, conditions, and provisions relating to pay-

ments under this contract are hereby mutually understood and agreed

upon by and between the respective parties as follows, that is to say:

“1. The contract price to be paid for the dry dock and its accessories

and appurtenances to be constructed in accordance with this contract

shall be four hundred and ninety-one thousand four hundred and sixty-

five dollars ($491,465.00) United States currency,

32 “2. The amount of material provided and of work performed

by the contractors, monthly, shall be taken as a basis for making

payments under,

THE UNITED STATES VS. BYRON BARLOW ET AL,

“3. The officer in charge shall, on or before the fifth day of each

month during the progress of the work, prepare an estimate of the work

done and materials furnished and delivered during the month preceding

the first day of the month then current, according to the rates specified

in the schedule aforesaid, and certify as to the amount properly payable

thereunder, which estimate shall be submitted to the commandant of the

station where such dock is in course of construction for his approval,

“4. When such estimates shall have been approved by the com-

mandant as aforesaid, the respective amounts thereat, less ten per cent,

shall be paid through the issuance and delivery to the contractors of bills

in triplicate, duly certified by the officer in charge, and approved by said

commandant and the Chief of the Bureau of Yards and Docks, and

every such payment shall be deemed a payment on account of the afore-

said contract price: Provided. That no payment shall be made except as

funds are available under appropriations made by Congress, for the con-

struction of the work, from time to time,

“3. The reservation of ten per cent on each monthly payment as above

provided for shall be held until this contract shall have been fully per-

formed by or on the part of the parties of the first part, and the said dry

dock, its decessorics and appurtenances, shall have been finally accepted

by the party of the second part; and no monthly or other payments shall

be minde under this contract, except upon approval by the officer in charge

of all work done and material furnished at the rates specified in. the

schedule of prices up to the first of the month previous to the date of

such payment, nor without satistietory evidence, such as a county clerk’s

certificate, furnished by the contractors to said officer, that there are no

existing liens other than that of the United States upon such work or

materials at the date of such approval.

“6. When all the conditions, covenants, and provisions of this con-

tract shall have been performed and fulfilled by and on the part of the

contractors, they shall be entitled, within ten days after the filing and

acceprinee of their claim, to receive the said) reserve, and any sum or

stms not covered by the monthly estimates and payments, or so much

thereof as they may be entitled to, on the execution of the final release

to the United States, in such form as shall be approved by the Chief of

the Bureau of Yards and Docks, of all claims of any kind or description

under or by virtue of this contract,

“Thirteenth, It is hereby mutually and expressly covenanted and

agreed, and this contract is upon the express condition, that no Member

of or Delegate to Congress, officer of the Navy, or any person holding

any office or appointment under the Navy Department, shall be admitted

to any share or part of this contract, or to any benefits to arise there-

from; that this contract shall not, nor shall any interest therein, be

transferred by the contractors to any other person or persons, and that

any such transfer shall subject the contractors to a forfeiture of their

rights hereunder, all right of action to recover for any breach of this

contract being, however, reserved to the United States.

Fourteenth, It is expressly understood, covenanted, and agreed, by

and between the parties to this contract, that if any doubts or disputes as

to the meaning or requirements of anything in this contract, or if any

: SRA AL RAK ARO OLED ETRIEM

22 THE UNITED STATES VS. BYRON BARLOW ET AL. .

discrepaney appear between the aforesaid) plans and specifications and

this contract, the matter shall be at once referred for the consid.

33 eration and decision of the Chief of the Bureau of Yards and

Docks, and his decision thereon shall be final, subject, however,

to the right of the contractors to appeal from such decisiou to the Secre.

tary of the Navy, who, in case of such appeal, shall be furnished by the

contractors with a full and complete statement of the grounds of their

appeal, in writing, and shall thereupon take such aetion in the premises

as, in his judgment, the rights and interests of the respective parties to

this contract shall require, and. the parties of the first: part hereby bind

themselves and their heirs and assigns, and. their personal and legal

representatives, to abide by his, the said Secretary's, decision in the

premises,

“Tn witness whereof the respective parties have hereunto set their

hands and seals the day and vear first above written,

; “Byron Bartow anp Company. [ios.

a “Brron Barniow, i:

% “Jas. EL Buackwen. ae

y «5. M. Deraean, Lim

4 “N. H. Farquviar, Ls

3 Ohi for Bureau of Yards and Docks?

bY Il.

23 The following specifications were prepared at the Bureau of Yards

~ and Docks of the Navy Department and were exhibited to bidders

: prior to the awarding of the contract, and are the specitications therein

+ referred to:

4 er ‘ : et

7 $6 Speemmentons fora dry dock for the United States Govrcernme vt,

: & Location.—This dry dock shall be Joeated at the United States

~ naval station, Puget Sound, Washington, upon a site shown on a plan

j accompanying these specifications.

: “GENERAL CONDITIONS.

the several kinds, where not otherwise specified,

proper space at the station for landing and storing materials to be used

in the construction,

* After completion of the dock and before acceptance of the work by

the Government, the contractor shall be required to remove the operat

ing machinery, tools, surplus materials, ete., from the station,

* Tours of work—TVhe contractor shall not be restricted to the hours

of labor established for Government employees, and shall be permitted

to prosecute the work night and day, if desired, and on Sundays, if

deemed necessary by the contractor for the protection of the work.

the construction of the doek is to be included in the contract without

any additional charge or expense to the Government.

Ag aa hows ee

On,

™

65 AL. IRN EO OF mR NNT FI IETS EIRP ES A IE NE OO EIS IO ORE rr 2 ase |

THE UNITED STATES Vs, BYRON BARLOW ET AL, 23 §

wes

to obtain, complete, a substantial dry dock, according to the general &

plans and specifications, to the entire satisfaction of the Bureau of Yards |

and Docks. Should there be any omissions in the plans or specifications

of anv work or material required to seeure this result, such work or

material is to be regarded as embodied in the plans and specifications

and to form a part of the contract.

24 * Poymeuts.—The contractor shall submit a fair schedule of

prices for materials delivered, materials worked and in place, and

for excavation, ete, previous to the commencement of the work, which

shall upon approval by the Burean, govern during the construction of the

dock. ‘Phere shall also be submitted a classification of the eost, at. the

schedule prices, to aggregate the total contract: price, under the following

heads, viz:

“Plans, specifications, and superintendence,

* Cofferdams.

- Boiler house,

“Culverts,

“Pilling, grading, puddling.

*Capstins, gvpsies, ete,

* Pumping plan, complete,

* Pumping during construction.

* (Caisson.

* Removal of cofferdam,

* Drv-dock structure proper,

“The amounts under the heads of Plans, ete. and Pumping during

construction Will bea sum per month, extending over the time trom the

beginning of the work in question until the time fixed in the contract

for completion of the work, which the Bureau may reduce when ia its

opinion satisfactory progress is not being made, or the time for comple-

tion Is extended,

“Previous to the first monthly estimate the engineer in charge shall

make an-estimate, upon the basis of the schedule of prices, of the proba-

ble cost of the entire work under the plans and specifications, and if’ it

shall appear chat such probable cost, at the prices specified, will exceed

the contract price with reference to any item under the classification of

prices, then there shall be such pro rata reduction in the said prices as

may be necessary inorder that the limit of expenditure, under any head

of said classification, shall not be exceeded: Provided, That the above

condition shall not operate to reduce the total contract price to be paid

for the complete performance of the contract.

“Payments are to be made monthly upon bills duly certified, from

Which ten per cent will be reserved, to he paid on the full and tinal eom-

pletion of the contract.

“No payments are to be made except upon materials delivered,

materials worked in place, and work performed, at the rates in the

schedule of prices,

“The prices for materials delivered shall represent, as nearly as pos-

sible, the actual cost of the same to the contractor, delivered on the

site,

* Miseellaneous.—The contractor shall begin work within 60 days

from the date of the notice to him that he is given possession and

24 THE UNITED STATES VS. BYRON BARLOW ET AL. i

occupaney of the site, and he shall progress therewith so as to complete

his contract, in all respects, in thirty-six (36) calendar months from the

expiration of the said sixty (60) days.

* All delays which the Bureau of Yards and Docks may find properly

attributable to the Government or its authorized agents, and to haye

been delays affecting the final completion of the works, shall entitle the

contractor to a corresponding extension of the time for completion:

Provided, The contractor shall give to the engineer in charge immediate

notice, In writing, of the cause of detention, and of the extent of time he

claims to be thereby delayed.

“The whole of the works are to be executed in accordance

35 with the plans which are exhibited for proposals, and) such other

plans which may be supplied from time to time during the

progress of the work, further illustrating the same,

“All work shown only in parton the drawings, or not fully described

in the specifications, or in the proposal, wd all details omitted, all of

which are necessary to the complete: and perfect: construction, shall be

considered as covered lw this specification and the contract entered inte

for the construction of the dock,

* The works ineluded in the contract will be carried out by the con-

tractor, under the inspection and) supervision of the civil engineer

detailed tor the purpose, whe will inspect all materials and) workman.

ship, and will have full authority to reject any which in his opinion are

hot in fall accordance with the true spirit, intention, and meaning of the

contract, plains, and specifications.

Phe contractor shall be responsible for the entire line of works until

completion, and acceptance by the Bureau of Yards and Docks. He is

required to give his personal attention to the faithful prosecution of the

work, and not to sublet or assign the same, but to keep it under his con-

trol, and in ease of his absence, to have a duly qualitied person to look

after the works and to receive and follow directions relating thereto,

given by the engineer in charge.

“The contractor shall furnish all necessary fieilities, should it be

deemed advisable by the engineer to make an examination of any work

already completed. If the work is found defvetive in any respect, he

shall defray all expenses of such examination and of satistactory recon

struction. If the work is found perfect, such expenses will be allowed

for.

“The contractor must furnish at his own expense all labor and

materials necessary for the complete execution of his contract in the best

manner,

He will also assume all risk from storms, fire, floods, damage to per-

sons and properties, and casualties of every description, and maintain the

works at his own risk until their final acceptance, without additional

compensation.

“Tnsurance in the amount of fifty thousand dollars shall be effected

in such manner and in such companies as shall be approved by the Chief

of the Bureau of Yards and Docks, which insurance shall be renewed

from time te time at the expense of the contractor: the loss, if any, to

he stated in the policies as pavable to the United States, for whom it

may concern,

’

;

Re EN TN ER gd Need Si ee OEE nn

THE UNITED STATES VS. BYRON BARLOW ET AL. 25

“He is required to employ only competent and orderly persons, and

will discharge from his employ any who are not so, upon the request of

the engineer in charge.

“Tf at any stage of the work, the contractor shall fail to go forward

with the same, or to make satisfactory progress towards its completion

within the specified time, from causes within his control as decided by

the Chief of the Bureau of Yards and Doeks, it shall be optional with

the Secretary of the Navy to declare the contract forfeited on the part

of the contractor, The contractor shall, upon receiving notice of such

forteiture, be indebted to the United States as for liquidated and ascer-

tained ciamages ina sum equal to the aggregate of all advance payments

made to him for or on account of work done under the contract, and

agree to retund the same on demand, within sixty days, and that the

United States shall hold) as collateral for such refund, the doek and. its

appurteminees, or such part or parts as shall have been constructed. or

furnished. “Phe Sceretary of the Navy will thereupon appoint

36 a board of competent persons, Which shall ascertain and deelare

a fair market value of all work done, and materials on hand,

including a reasonable and customary margin of profit upon the werk

done sttistactorily,

“Upon the approval of the findings of said) board by the Secretary

of the Navy, he may proceed to complete the said dock and appurte-

nances in accordance with the contract, plans, and specifications, and the

title te the dock and appurtenances, or such parts as shall have been

completed, and all materials, shall forthwith west ino the United States,

and the contractor shall surrender the same, together with the use of’ the

works or plant, and all machinery, tools, and appliances theretofore used

or neeesstry to be used in the completion of the work ; any increase in

cost Incurred by reason of the failure of the contractor to be at the eon-

tractors expense. Tf, however, any balance shall appear in favor of' the

contractor, It shall be paid te and accepted by him in’ full discharge of

all claims under the contraet.

“Th case the completion of the dry doek, its accessories, and appur-

tenanees shall be delayed bevond the said period of 36 calendar months,

deductions of fifty dollars per day during the first three months tollow-

ing the expiration of said) period, and of one hundred dollars per day

for each and every day bevond the expiration of the said three months,

may, in the descretion of the Seeretary of the Navy, be made from. the

contract price of said dry dock; all such deductions to be made from

time to time from any payment or payments falling due under the con-

tract; provided, however, that such delays shall not have been caused

by the aet of the United States or its officers or agents, or by fire or

water, or hy any strike or stand-out of workmen employed in’ or about

the work, or by other circumstances bevond the control of the contractor;

and provided: further, that in ease of such alleged delay the contractor

shall give immediate notice thereof to the Secretzry of the Navy.

“Tn case any question shall arise under the’ contract concerning

deductions from the contract price of said dry dock, such question, with

all the thets relating thereto, shall be submitted to the Secretary of the

Navy for consideration, and his decision thereon shall be conclusive and

binding upon all the parties to the contract.

OL < AAPED SEPP SOR LO oS SOB!

THE UNITED STATES Vs. BYRON BARLOW ET AL,

“All proposals must be in duplicate, upon forms provided for the pur.

pose by the Bureau of Yards and Docks.

* Proposals must be signed by the bidder submitting them, with his

- usual signature in fall. When a firm is a bidder, the member of the

firm or agent who signs the firms name to the proposal shall state, in

addition, the names of all the individuals comprising the firm. Any

one signing the proposal as the agent of another, or of others, must file

with it legal ike of his authority so to do,

“The place of residence of every bidder must be given,

“Prices must be written in words as well as expressed in figures,

“Tf a bidder wishes to withdraw his proposal, he may do so betiore

the time fixed for the opening, by stating his purpose in writing to the

Chiet of the Bureawof Yards and Docks, who holds it, and when his

proposal is reached it shall be handed to him, or his authorized agent,

unread,

“The bidder must satisfy the Government of his ability to furnish the

materials and perform the work,

“Reasonable grounds for supposing that any bidder is interested in

more than one bid will be cause for the rejection of all bids in which he

is interested,

4 “The Government reserves the right to waive any informality, to

reject the bid of any failing bidder or contractor, and to reject any or all

q bids as may be for its interests,

. 3 “No M mber ofor Delegate to Congress, nor any person belong.

> ing to or emploved in the military, naval, or civil service of the

United States, will be permitted to have any share in the contract for

this work,

3 “The attention of bidders is invited to the acts of Congress which

— — prohibit the importation or immigration of foreigners and aliens under

contract or agreement te perform labor in the United States or ‘Territo.

ries, or the District of Columbia.

“Each proposal must be accompanied by satisfactory surety or cer.

tified check, in the penal sum of 825,000, to: the effect that the bidder

ROR Randy

3 will, within 15 days after the notice of the acceptance of his proposal,

~ execute the required contract, and give a bond, with satisfactory surety,

— ina penal sum equal to twenty (20) per cent of the contract price, con-

4 ditioned for the faithful performance of the contract,

| “ Bids received atter the time of opening will not be considered,

3 GENERAL DESCRIPTION,

4 * The dry dock will be built of timber and concrete from the abut-

4 ments inward, and the remainder, forming the entrance works, of con-

5 crete and stone masonry, The entire structure will be founded upon

~ piles, as shown in the plans, unless during the progress of the work it

~ is found better to substitute a mass of concrete for the piling under the

: fioor, In the event that the Government decides to so modify the con-

struction, the cost of the work as affected by it shall be determined and

fixed by a board of civil engineers appointed for the purpose, upon a fair

basis of prices, whose decision, upon approval by the Bureau of Yards

and Docks, shall become binding.

THE UNITED STATES Vs. BYRON BARLOW ET AL.

“The engine, pump, and boiler house shall be one story, of brick with

stone trimmings, and steel roof trusses covered with a slate roof,

“The ealverts and pump well shall be of good hard-burned brick laid

in cement mortar and conerete, as shown,

“The pumps, 3 in number, are to be of the centrifugal type, balanced,

and driven by vertical high-pressure noncompound engines, The boilers E

are of steel, of the horizontal return tubular pattern, six in number, *

©The caisson, a floating gate, is of boat form, constructed of steel, and

fitted with engine, pump, and boiler. ix

“Tenders must be for the dry doek completed with pump well and —

culverts, caisson, pumps, boilers, and engines, with house, capstans, ©

bollards, cofferdam, and other temporary works, and all parts of the PS

works herein specified and any not enumerated which are necessary to —

render the dock complete, a

“Character aud cleration of ground. —Sections of the ground are shown &

by borings made upen the site by the Government, but it is desired that —

bidders make examinations for themselves, as the materials are very

irregular in arrangement, and the Government does not guarantee that

the borings made indicate the true character of the ground in the entire

site. “The levels show the general contour of the ground on the center

line, but bidders are desired to make examination for themselves as to

the amount of excavation and filling.

* Moun high water —The mean high water referred to herein is that ©

found by the tidal observations made at the station, and corresponds with

of the tide gauge, trom which the bench mark is established, a

“ Fuecilities for labor and woterials.—Persors intending to tender for

this work are requested to visit and examine the locality and inform

themselves in regard to materials and Jabor in the vieinity and the

facilities for obtaining them. A

38 “Ceneral dimensions, e

Length on coping from head to outer end of table... 625 feet 3 inches.

Length on coping from head to outer gates... 6.6... 605 feet 9 inches, —

Length on floor from head to inner abutment...... 529 feet 38> inches,

Width on coping at body .............005 weeeee 130 feet 1} inches,

Width on coping at abutment..............02... 92 feet TE inches, —

Width on floor in body .......0e.ee2 seeeeeeees 67 feet 1} inches, —

Depth from coping to mean high water........... 7 feet.

Depth from coping to floor in body .............. 39 feet 3. inches.

Draught at mean high water over sill .......... .. 30 feet.

“GENERAL CONSTRUCTION, .

* Eereavation and qrading.—All earth excavated and not required for

refilling or grading within the limits of structures is to be deposited

within the limits of the station, at reasonable distances from the dock,

where indicated by the commandant, not to exceed 1,000 feet from the

dock, and brought up to the grade of the station as established,

* Materials dredged and deposited in scows may be disposed of by the

contractor as he desires, provided no damage is done to the channel in

‘J

LEROY TL

PSEA ANI PRI

SONS, ants BEAL TAL I REL DAE HERE

oo H NITED STATES VS. BYRON BARLOW ET AL.

front of or leading to the station, and in accordance with the harbor reg.

ulations in relation thereto.

“Upon completion of the work the surface is to be evenly graded from

coping back to the line of sheet piling and around the pump house, to

correspond with the grade of the station adjoining, as the civil engineer

or other officer in charge may direct. |

“No exeavation or dredging for the purpose of deepening the channel

bevond the cofferdam of the dock shall be required of the contractors

unless for the removal of material deposited by them,

** Piles.—All_ piles are to be of Douglas fir, pot less than twelve (12)

inches in diameter at the butt and six (6) inches in diameter at the top,

and of such lengths as may be required to drive to a firm bearing.

“All piles which are to be in contact with concrete or clay puddle must

have the bark removed from such surfaces of contact.

“AIL piles in the bottom of the dock shall be accurately spaced and

driven vertically until a satisfactory depth has been reached and the pene-

tration is not more than one-quarter (}) inch under the last blow of q

hammer weighing three thousand (3,000) pounds, falling twenty-five (25)

feet, or the equivalent thereof, unless the Bureau shall authorize a modi-

fication hereof after examinations and tests are made.

“AIL other piles shall be driven to a like firm bearing and until a pene-

tration and a resistance are obtained whieh shall be to the satistietion of

the engineer in charge and in accordance with these specifications.

“Any piles broken or injured in driving shall be replaced,

“AIL piles are te be sound and straight.

“The spacing and number of the foundation piles, brace piles, cross.

cap piles, ete., shall be as shown on the drawings.

“Piles are to be shod with iron, if found necessary in the opinion of

the engineer.

“No pile driving shall be accepted as satisfactory in the side construe

tion work which does not secure a penetration of at least eighteen (18)

feet, and if necessary the earth shall be first exeavated sufficiently to give

this limit of length when refilling is done. :

“A less number than shown may be driven under the keelway if found

impracticable to get all of them down to a satisfactory permanent

bearing.

39 “Sheet piling is to be of sound Douglas fir, five (5) inches in

thickness, about ten (10) inches wide, grooved and fitted with one

and a quarter (1}) inches by two (2) inehes cedar tongues, and driven

close, to depths shown or as required by the engineer in charge to make

good work,

“At intersections of rows of sheet piling square piles twelve (12)

inches by twelve (12) inches, properly grooved, are to be driven.

“The lines of sheet piling are to be as shown on the plans.

“The sheet piling in the bottom of the dock must. be driven with

special care to insure good and tight work, and to the depth shown, if

possible,

“ Subdrains,—After the piles in the dock bottom, inside the abutment

floors, are driven and exeavations made tor the conerete, subdrains are

to be made of two (2) ineh plank, with inside dimensions of. six (6)

inches by six (6) inches, and laid both longitudinally and_ transversely

in the positions shown. They are to be connected at all intersection

TRS A ARTS

Be THE UNITED STATES VS. BYRON BARLOW ET AL. 29

The transverse subdrains are to be laid between every third and fourth

transverse rows of piles. The longitudinal subdrains are to be laid

between the longitudinal rows of piles where shown. The sides of the

subdrains are to be perforated with three one and a half (13) inch holes

yer lineal foot. ATL joints and intersections are to be well and care-

fully made. The longitudinal subdrains are to empty into the drains

leading into the pump well and have flap valves at their outlets.

“The subdrains are to be filled around with small-sized broken stone

or gravel. The conerete filling above is to entirely cover the subdrains,

* Coverete.—The heads of the foundation piles are to be surrounded ~

by a continuous bed of concrete, three (3) feet least thickness, and —

extending up the sides in the body of the dock to the foot of the eighth

altar, as shown,

“From the outer end of the table to the inner end of the inner abut-

ment concrete of depths shown is to be laid. :

“The bottom for a distance of six (6) feet beyond the table end is to :

be covered with a bed of concrete, sloped as shown. f

“Drainage gutters three (3) feet wide, with a fall of twenty (20) .

inches toward tran’verse drain for under floor drainage, are to be formed —

as shown on the drawings.

“The conerete at tran’verse drain is to extend five (5) feet lower than

in the body of the dock.

“All concrete is to be composed of one (1) part Portland cement, two x

(2) parts sand, and four (4) parts gravel, all by measure. It is believed :

that sufficient gravel of suitable size and quality can be obtained within —

the limits of the naval station. The contractor shall have the privilege —

of using from such of this gravel as the engineer in charge may decide

te be in every way suitable. There may be substituted for it broken

stone of approved quality, should the contractor prefer to furnish it. If,

in the opinion of the engineer in charge, the gravel upon the station is

not of proper quality to be used, to the exclusion of broken stone, then

such proportions of gravel and broken stone shall be used as he may

direct. ;

“The conerete shall be formed in the following manner: The sand

and cement shall be thoroughly and evenly mixed dry on close piatformes,

after whieh water will be added untill the paste assumes a proper and

uniform consisteney. This mortar will then be spread uniformly over

the gravel, which shall have been previously thoroughly moistened and

spread in-aneven layer upon the platform. The mass shall then be ©

thoroughly mixed by being turned over three (3) times previous to being

conveyed to the place of deposit.

40 “Tt shall be deposited in lavers of not more than nine (9)

inches in thickness, and thoroughly rammed until water appears ©

upon the surface. The surface of each layer is to be thoroughly mois-

tened before the succeeding layer is deposited upon it, and if’ it has Z

been exposed long it must be dusted with neat ecrment after it has been

watered,

eres

“No conerete shall, under any cireumstanees, be deposited in place

after it has commenced to set. b

“When in place and rammed, all wheeling, working, or walking on ©

it must be prevented until at least twelve hours after being deposited. iq

—_ - ' -_ - ae .

ene BET SO ET IN Bek eas Sn TSR TES je a ae SESE

30 THE UNITED STATES VS. BYRON BARLOW ET AL. a

“All dirty or dusty stone or gravel is required to be screened op

thoroughly washed before it can be used; otherwise it shall be rejected

and must be removed from the work,

“The cement used must be Portland, with a tensile strength of not

less than four hundred (400) pounds per square inch at the end of seven

days, one (1) day in air and six (6) days in water, It must be delivered

fresh and in good condition, and kept perfectly dry after delivery, Tt

will be tested before use by the engineer in charge, kept dry, and

blocked up if placed upon the ground,

“All concrete shall be mixed in the presence of an inspector, and the

contractor or his agent shall give notice to the engineer when mixing is

to be proceeded with, The engineer may reject any concrete mixed when

such notice has not been given.

Sfone masonry.—The masonry of the dock is to be ashlar, in contin-

uous courses of two feet rise, patent hammered on the face, six cuts to

one inch, or sawed, If sawed, any roughness left by the saw must be

removed by rubbing with grit or sandstone. Beds and joints are to be

smoothly dressed to form 4-inch joints. The whole is to be laid, bedded,

and jointed in Portland cement mortar, made of one part of Portland

cement and two parts clean, sharp sand, by measure ; and all joints

between the ashlar and the conerete backing are to be thoroughly filled

with this mortar and grouted up at every course. The face joints are to

be neatly pointed with Portland cement mortar made of one part Port-

jand cement and one part clean, sharp sand, after being picked out toa

depth of at least } inch ; the mortar to be pressed well and securely

into the joints and finished off with such tools as may be required,

“If the pointing is done in hot weather, shelter shall be provided to

protect the masonry from the direct rays of the sun,

“The coping stones are to be not less than two feet in thickness, four

fect wide, and not less than four feet in length, and are to have a smooth

top surface. They are to be laid to break joints with the course below,

The coping stones forming the top of the caisson meeting face must be

of large size, accurately fitted, and seeured by dowels. The coping

stones are to be rounded on the upper edge to a radius of three inches,

“The meeting faces for the caisson formed by the quoins will be

dressed perfectly true, so as to make perfectly water-tight joints with

the caisson, and must be of the best quality of granite.

“There will be no joint in the an where the seat and meeting face

for the caisson meet, the stones being worked out to form the angle,

“Stones in the invert are to be cut and dressed to the full depth on

planes at right angles to the surface of the intrados, unless otherwise

shown.

“The ashlar must be of granite or sandstone, of quality approved by

the engineer. All stones must be hard, clean, and free from seams and

imperfections, and of good bed and build, They must be laid trae on

their natural beds, and without pinning.

“No masonry is to be laid on a concrete foundation until it has thor-

oughly set.

41 “The Portland cement must be of the same quality as that pre-

scribed for use under the head of Concrete.

“The sand must be the best quality, clean and sharp.

SG VER MG OK ie 5 MLE CE OEY Nt BUR MEN ie PN RS RT aS tale

IE UNITED STATES VS. BYRON BARLOW ET AL. 31

« Culverts.—The culverts are to be constructed in accordance with the

lans, of the best quality of concrete and sewer bricks. No soft bricks

of any kind will be allowed.

“The brickwork will be laid in Portland cement mortar, made of one

part Portland cement and three parts of clean, sharp sand, All joints

will be thoroughly flushed, and the outer surface to be well cemented to

prevent leakage. .

“The Portland cement concrete to be of the same quality as that speci-

fied under the head of Conerete,

“The emptying culvert is to be of the cross section and length shown

in the plans. It is to be constructed upon a foundation of Portland

cement conerete of the dimensions shown, unless upon excavating it is

found necessary to substitute a pile foundation, in whieh case it will rest

upon the pile heads embedded in concrete, This culvert will be enlarged

at the pump house to form a well, into which the suctions of the main

and drainage pumps will enter,

“ Crating.—Cast or wrought iron gratings are to be provided and set

over the inlets to the emptying drain,

“ Dock floor.—In the body of the dock the floor system will be formed

as follows: Upon the piles, spaced as shown, will be fitted and secured

longitudinal timber of Douglas fir, 12 x 12 inches, Upon these, lunning

transversely, will be fitted and secured Douglas fir timbers, 14 x 16 inches,

spaced as shown, generally four feet from center to center, Upon the

transverse timbers the working floor of 3-inch Douglas fir will be laid

with open joints. All of the traverse timbers are to be in one length.

* Braces aud cross caps.—Brace timbers of Douglas fir, 10x 14 inches,

are to be seeured to the tops of the piles driven in the sloping sides of

the dock in the body with serew bolts, and bolted to the transverse

timbers in the floor system and the cross caps, as shown.

*Cross-cap timbers of Douglas fir, 12 x 12 inches, will be fitted and

bolted to the heads of the piles outside the coping on every transverse

row,

* Ais.—AItar timbers of Douglas fir, of the form shown, are to be

fitted and bolted to the brace timbers in the manner shown, forming

altars of TT inches rise and 9 inches tread, diminishing from the lower

angles to the abutment,

“Coping.——S timber coping, of Douglas fir, formed of three timbers,

arranged and bolted as shown, will be constructed and surround the body

of the dock at the top of the altar system,

* Diagonal tiex.—Vhe tie timbers, 5 x 10 inches, shall be serew bolted

to the eross caps, piles, and braces at every bent, as shown,

“Slidex,—Slides for materials, from the coping to the floor, are to be

constructed of oak, in the positions shown on the plans, the floor of the

slide to be three inches thick,

Vicinity, shall he thoroughly rammed down behind the altars, following

closely the securing of the latter, in the best manner, and extending to a

depth of at least two feet from the lower side of the braces, measured at

right angles tothe slope. The different lavers shall be thoroughly incor-

porated. It shall be free from all surface soil, sods, roots, and stones,

469 Q mann}

.. BOK PER Bhs OR CIA WS MIE ERS ARE

$2 THE UNITED STATES VS. BYRON BARLOW ET AL. ‘am

“ Keel and bilge blocks, —WKeel blocks, bilge blocks, and hilge-

42 block slides are to be of oak. They will be spaced as shown

on the plans, and properly fitted with racks, keys, pawls, slides,

chains, ete., in the best manner,

« Bollards, —Twenty (20) bollards, or mooring piles, shall be supplied

and fixed in place and surrounded by a bed of concrete flush with the

grade, located as directed.

“ee upstans.—The contractor shall furnish and set five (5) power cap-

stans of proper size, to be set in a body of Portland cement concrete,

with proper holding down bolts, located as directed,

“ Kastenings.—All timbers, piles, planks, ete., shall be carefully titted

and secured in the very best manner to the satisfaction of the engineer,

with the best quality of refined American iron bolts, spikes, ete., neces

sary to make strong and substantial connections.

& Viseellaneouxs.—The whole of the timber used in the dock works shall

be of the best merchantable quality, sound and straight, free from shakes,

splits, unsound Knots, or any imperfections, and of the full lengths and

dimensions either specitied or required,

“The connection between the stone and conerete entrance work and

the timber work in the body of the dock is to be made by means of an

extension of the conerete in the abutments, and suitable iron tiebars, to

embrace not less than three of the altar brace timbers. This work is to

be thoroughly grouted, in addition, as the altars are laid up.

“The boiler and pump house. Phe boiler and pump house shall bea

brick structure, located as shown on the plans, and of the dimensions

there stated. It will have stone trimmings. A brick chimney, of the

dimensions shown, will be constructed and connected with the boiler

plant as shown.

“The bricks are to be the best quality, red, hard burned, straight and

uniform in size, and free from soft bricks.

“The best and most suitable are to be selected for the face work. The

bricks in the house above the water table are to be well and solidly laid

in mortar, made of fresh-burned lime and sand in the proportions of one

of lime to three of sand, by measure. All brickwork below the top of

i the water table is to be laid in cement mortar composed of one part Port-

land cement and three parts sand, The brickwork of the chimney is to

be laid in mortar composed of one part hydraulic cement and three parts

of sand. The briekwork throughout is to be laid in the very best man-

ner, all joints to be completely flushed and walls kept true, No part of

the walls is to be carried up more than six. feet in advance of the

remainder, and when so carried up to be racked back, Bricks are to be

clean and Jaid damp. Every fifth course is to he a heading course,

“The lime must be of the best quality afforded by the market in the

vicinity of the works, freshly burnt lump, and must be slaked in a tight

wooden box at least ten days before being used,

“The Portland cement must be of the same quality as that preseribed

for use in the conerete,

“The hydraulic cement must be of the best quality, subject to test, and

show a tensile strength of fifty (50) pounds per square inch on specimens

set thirty (30) minutes in air and twenty-four (24) hours under water.

THE UNITED STATES VS. BYRON BARLOW ET AL. 33%

“The chimney will be lined for a height of fifty-four (54) feet with

well-burnt fire bricks, of best quality, laid in best quality fire clay.

“The roof trusses will be of steel, of the form shown, and rest Upon Cast.

or wrought iron plates set for the purpose. The purlins will be of timber,

secured as shown, and dressed. The sheathing to be of’ fir or.

43 other suitable wood, as directed by the engineer, one and a half’

(1!) inches thick, and of the best quality; that portion over the.

engine room shall be not more than four (4) inches wide, tongued and

grooved, closely laid, nailed to purlins, and dressed on the under side.

It is to be laid on an angle, as directed, and properly oiled and shellacked. -

The portion over the boiler room is to be not more than eight (8) inches

wide, tongued and grooved, dressed on under side, and painted, Upon

this sheathing will be laid heavy roofing paper. The whole will be

covered with the best quality of slate. of approved size, and uniform in

color, Slates will be secured by galvanized nails, with a lap not less

than three (3) inches. ATL flashing and counter flashing to be done with

five (5) pound sheet lead. ft will be eapped with six (6) pound lead,

fourteen (14) inches wide, clamped by galvanized iron clamps twelve (12)

inelies apeert. .

“The boiler room and engine rooms will have concrete floors, as shown,

that in the engine room to have an elevated working floor covered with

planks.

“The gallery in engine reom is to be constructed according to the

plans, having a wooden floor, iron-pipe railing, and iron stairway. The

walls to be wainseoted four (4) fect in height from the gallery floor; the

wainscoting to be of narrow selected wood, oiled and shellacked, to be

finished with baseboard and rail. The remainder of the engine-room

walls, above the gallery, is to be lathed and plastered, two coats well

troweled,

“All the ironwork, and woodwork not otherwise specified, must be

painted as directed by the engineer,

“Sashes will be one and three-quarter (1) inches thick, hung in double

box frames, allof No. 1 redwood, and glazed with double-thick American

glass. Double doors will be two and one-quarter (21) inches thick, and

siigle doors one and three-quarter (1%) inches thiek, all to be thoroughly

framed, and made of No. 1 redwood. ALL hardware for doors, windows,

ventilators, ete, must be of plain but substantial character, and approved

of by the engineer,

* The gutters and down spouts are to be of copper, fourteen (14) ounces

per square foot, Down spouts to be securely fastened to walls at inter-

vals of about six (6) feet. All to be well locked, riveted, and soldered,

"The stone trimmings will be set in the walls where shown in the plan,

and well and properly bedded in mortar, The beds and builds to be

brought to plane surfaces, so as to make close joints, The exposed sur-

faeces to be dressed six (GO) cut,

“The entire building is to be erected complete in every respect, in the

best manner, according to the general plan, notwithstanding any omissions

: the drawings or specifications of any provisions necessary to secure

this result,’

34 THE UNITED STATES VS. BYRON BARLOW ET AL.

II,

In compliance with the provisions of the seventh paragraph of the

foregoing contract, and in manner and form as therein required, the fol-

lowing supplemental contracts were made from time to time during the

progress of the work, the increased or diminished cost having been first

ascertained and reduced to writing, as required by said seventh clause of

the original contract, to wit:

On Mareh 15, 1893, for the extension of the dock from 600 to 65

feet the sum of $23,771.32 additional being paid for the inereased labor

and material necessary to perform the same, and the time for the

ht conrprettian off thre eontere@ estendeed rent Marve wena ort el veceritltes

on account thereof,

On the 25d day of November, 1893, for the improvement in the

strength and dryness of the pump room of the pump and boiler house,

the sum of 86,982.20 additional being paid therefor,

On the 28th of December, 1893, for a change in the laying of the con-

erete immediately about and contiguous to the suction pipes of the drain-

age pumps in the pump room of the pump and boiler house, the sum of

S17 additional being paid therefor.

On the 4th day of August, 1894, for the substitution of concrete for

sheet piling along the sides of the floor and under the entrance works,

and for the construction of wing walls to reenforce the transverse lines of

the outer wall, ete., the sum of 816,000.27 being paid therefor,

On February 21, 1895, for increased faeilities for cleaning out the back

connections of the boilers te be ereeted in the boiler room of the pump

and boiler house, the sum of S18 additional being paid therefor,

On the 28th of February, 1895, for additional protection to the outer

end of the brick discharge culvert, the sum of S115 additional being paid

therefor.

On the 24th day of August, 1895, to provide a means of draining the

bottom of the pump house, the sum of S1E9 additional being paid therefor,

On the 30th day of September, 1805, to provide a means for protect

ing the top of the Bollard: piles, the sum of S100 additional being paid

therefor,

On the 11th day of November, 1895, for the placing of 1 inch of plas-

ter on the walls of the upper floor to the bottom of the pump house, the

sum of S410 additional being paid therefor,

On the 20th day of August, 1896, for the omission of the cast-iron

grating on the floor of the pump house, the sum of 8200 being deducted

from the contract price on account of such omission,

Except as stated in this finding, no other or different contract or agree-

ment was ever made concerning any work, labor, material, construction,

or design in connection with this dry dock,

IV.

At the inception of the building of this dock certain standstone, known

as Tenino sandstone, was submitted by the contractors to the defendants’

civil engineer in charge of said work, and was by said engineer accepted

as a suitable and proper stone for use in said dry dock, under that clause

pe rh a ee ye ee oe te re Oe ae

THE UNITED STATES VS. BYRON BARLOW ET AL.

of the specifications that “the ashlar must be of granite or sandstone of

quality approved by the engineer.” ~The claimants had submitted two

such bids. The first of these, based on the use of sandstone, was much

the lower and was accepted,

From the beginning of work under the contract until the 29th of

August, 1894, when a large portion of the same had been completed,

U.S. G. White, civil engineer, United States Navy, was the engineer in

charge of the work on behalf of the Government. Shortly after the =

which they stated they proposed to use in the ashlar of the dry dock.

They at the same time offered to exhibit to said engineer the quarry

from Which said stone was taken. In pursuance of this offer said engi-

neer, ently in the spring of 1803, visited said quarry, whieh was situated

at Tenino, in the State of Washington, in order to inspect the same and

to learn therefrom whether its stone was suitable for use in the dry

15 dock construction, He there found a quarry open from 300 to

100 feet along the ledge and faced about 40 feet in depth and

equipped with proper appliances for taking the stone out and working it.

He made a careful examination of the fee and satisfied himselfas to its

uniformity and freedom: from sand, mica, and clay pockets and pebbles

or bowlders; noted: the reaction of the stone under the channelers then

in operation; visited the work where the stone was being sawed to dimen-

sions, and noted the reaction under the saws; noted carefully the abrading

power of the stone when used as a grindstone; took hand tools and

tried the stone; examined unused blocks of the stone that had been x

exposed to the weather fora long time to detect any signs of disintegration t

or deterioration from sueh exposure; visited the boiler room of the works

and examined the stone which was in use as lining to the furnaces under k

the boilers that supplied power for the works, and found no evidences of .

any breaking down or disintegration from the heat to which the stone ed

had been and was being subjected; made numerous examinations with a :

glass magnitving 6 or 8 diameters, looking to the detection of any mica ;

or other substances in its composition, and found none, the texture —

appearing uniform and good under the glass, and he subsequently made

atest to determine the percentage of absorption, .

As the result of this examination he approved the sandstone from the :

Tenino quarry and informed the claimants that the same would be

accepted for all work under the contract, 4

Tenino sandstone had in faet been used as a lining in the fire bex of *

the boilers at the Tenino quarry for some time; also in the piers of a i

bridge over the Chehalis River, on the Northern Pacific Railroad, where —

it Was exposed to the action of salt water, and had been so for a number

of vears without deterioration, and had also been used with success ina

number of buildings in western Washington and Portland, Oreg., some

of them verv high ones,

Shortly after this examination, to wit, on the 4th day of May, 1893,

the claimants, relying upon the assurances thus given’ by the engineer

that stone from the Tenino quarry was approved and would be accepted,

entered into a contract with the owners of the quarry to furnish them

from said quarry all of the sandstone required for the work,

Se v

THE

UNITED STATES VS. BYRON BARLOW ET AL. we

Said contract is as follows:

Copu of contract with Tenino Stone Quarry Co.

This agreement made and entered into this 4th day of May, 1893, by

and between the Tenino Stone Quarry Co., party of the first part, and

Byron Barlow & Co., of Tacoma, Wash., parties of the second part,

Witnesseth, That the party of the first part covenants and agrees to

furnish and deliver fio. b. on wharf at the U.S. dry dock all of the

sandstone required for the stone entrance of the U.S. dry dock, Puget

Sound, Washington, according to drawings and schedules of courses,

numbers, and sizes furnished by the parties of the second part, and which

form a part of this contract, for the sum of forty (40 cts.) cents per cubie

foot, and all of the stone for the boiler and pump house trimmings for

the sum of fifty-five (55 cts.) cents per cubic foot.

It is further understood and agreed that the stone shall be ‘Tenino blue-

stone of good, even, regular texture, of quality approved and acceptable

to the civil engineer, U.S. Navy, in charge of construction, and that

the stones shall be split or channeled to dimensions on two sides, as near

as it is practicable to make them, and that the other sides and ends shall

be channeled or split even and true so as to have not over 2" projections

to be cut off any squared size,

It is further covenanted and agreed that the delivery of the stone shall

commence between April 15th and May Ist, 1803, and delivered trom

time to time as fast as needed by the parties of the second part, and the

delivery completed on or before October Pst, 1803,

The parties of the second part covenant and agree to pay unto the

party of the first part the sum of forty (40 ets.) cents per eubie foot for

all stone for dock entrance and fifty-five (55 ets.) cents per eubie foot

for all stone for boiler and pump house trimmings.

Payments of 90 per cent to be made monthly for all stone delivered

the previous month upon acceptance, approval, and estimate of the civil

engineer, U.S. Navy, in charge of construction, and as soon as payment

is received therefor from the Government by the parties of the second

part, and the remaining LO per cent upon completion of the setting of

the stonework and upon the approval and acceptance of the stone by the

said civil engineer, U.S. Navy,

It is further covenanted and agreed that in ease delay is caused to the

parties of the second part on account of nondelivery of the stone, then

the party of the first part shall pay to the parties of the second part the

sum of twenty (820,°°\) dollars per day for each and every day of such

delay, and the parties of the second part shall have the right to retain in

their hands, out of any money due to said party of the first part, a suffi-

cient amount to cover the penalty for time delayed.

(Signed) TENINO STONE COMPANY.

By Citas, A. BILLincs.

Gro, N. Van Tine.

S. W. Fenron,

Byron Bartow & Co,

Byron Barnow,

Jas. Ey BLACKWELL,

EPR T RNR UROL MELE ALOMAR RAITT PUNT FY HL

THE UNITED STATES VS. BYRON BARLOW ET AL, 37

46 Afterwards, and on the 28th day of June, 1893, they entered

into a contract with Albert and Louis Beaudette, stonceutters, to

eut the stones.

Thereafter a carload of stone was furnished by the owners of said

quarry under their contract, which arrived at the site of the dock on or

about the 20th of June, 1893. The amount of this stone, 2,377 cubie

feet, at 65 cents per foot, $1,545.05, was included in the vouchers ren-

dered by the claimants in the month of June, 1893, to which the follow-

ing certificates were annexed ;

“Having fully examined the labor and materials above charged, I

certify that they are of good quality and in all respects in conformity —

with the written contract of date October 29, 1892, |

“U.S. G. Warre, Civil Engineer, UL S. N., 3

“In ch’g ? of const n of dry doe’.” ‘

Naval Station this Ist day July, 1893. ;

“UL S. G. Warren, Civil Engineer, 1S. N., .

Tn el’ ge of conste’n of dry dock.” 5

“US. Navy-Yarp, Pucer Sounp Navan Srarion, f

“July Sth, 1892. e

"| 7” =

one dollars and fifty-seven cents,

“Joun C., Monona, Commandant.” :

Said voucher was forwarded July 8, 1893, by the commandant at —

Puget Sound Naval Station, Licut. Commander John C, Morong. ;

The item for stone was, however, stricken out of the voucher, at the —

Burean of Yards and Docks, Navy Department, and the total amount of ~

the voucher was thus reduced to the sum of 812,741.03.

This action of the Navy Department originated in the receipt by that

Departnent of a communication froma libor organization, the Tacoma |

Trades Council, of the State of Washington, complaining of the quality —

of the stone, €

The Department, upon receipt of this complaint, called upon the com- |

mandant of the Puget Sound Naval Station for a report on the quality —

of said stone, Tle in’ turn ealled for a report from the engineer in >

charge, who reported favorably on the quality of said stone, aceompany-

ing his report with letters from the chief engineer of the Northern Pacifie

Railroad and others acquainted with the use of said stone, and his report

Was adopted as his own by the commandant of the Puget Sound Naval

Station and was forwarded to the Navy Department.

On the lth of June, 1893, the elaimants addressed the following let-

ter to the commandant of the Puget Sound Naval Station :

Dassen ee eats a Og

ala

RPE AIT GNI:

“Licut, Commander J.C, Monona, U.S. N,,

“Commandant Puget Sound Naval Station, Woshington,

“Sin: It having come to our knowledge that statements have been

made against the use of Tenino sandstone in the entrance of the U. 8,

dry dock, we beg leave to submit the following:

* The questions to be considered in connection with selecting stone for

TAS PEG Nee ba be ital,

THE UNITED STATES Vs. BYRON BARLOW ET AL. sii

the dry dock are strength, durability, and dimensions, or sizes, of stones

which can be obtained for the purposes intended.

“There ean be no question to any unprejudiced, competent authority

as to the strength being sufficient for the purpose in view.

“The extreme height of stonework resting on top of another stone js

39’ 6”, multiplied by the. weight per cubic foot, 150 Tbs. — 5,925 Ibs. on

square toot of stone, While there has been to our knowledge no authen-

tie test of the crushing strength of Tenino sandstone, vet the stre ngth of

the weakest: sandstone ever tested is 2,200 Tbs, per square ine hand of

common brickwork 500 to 1,000 Ibs, per square inc h.

“Tn our judgment the Tenino stone is similar in texture and strength

to the well-known Amherst, Ohio, sandstone, which stands a test of

5,000 Ibs. per sq. inch, but taking the strength of the lowest known,

2,000 Ibs. per <q. in., < 144 sq. UL 316,800 Ths. per square toot of

strength, against a load of only 5,925 Ibs. per square foot.

to state what its durability is. The Tenino stene has been used from

6 to & vears, and in not one instance has it shown any deterioration

from the action of the elements or from fire, and it is a well-known,

indisputable fact that the stone hardens with age ; besides anvone can see

now for themselves where the Tenino stone has been in use for 18 months

as a lining for the fire box for the boilers of the Tenino company instead

of fire brick, and in not one place could we discover any cracks or dis-

integration from the heat.

47 “We know of no stone on this coast having been used in con-

tact with salt water, and we have as good reason to think Tenino

stone will withstand such action as well as any other untried stone.

are very hard and e Xpe ‘nsive to get in any quarry, and in our examina-

tion of quarries the ‘Tenino is the only one we felt any assurance that the

sizes required could be obtained, or the quantity within the time needed,

“We feel sure that the charges against us and this stone are prompted

by that spirit of boveotting now being resorted to so frequently by labor

unions.

* The Seattle Stone Cutters’ Association has repeatedly written us, tell-

ing us of their having enlarged the Seattle district in order to include

the dry dock, and what prices and rules would govern here. We have

not replied to such letters beeause we believe that we have a right, so

long as we obey the laws of the land, to manage our own business to suit

ourselves, and we do not think any association of men, outside of a leg-

islative body, has any right or power to make rules to hamper or injure

our business.

* The Tenino Stone Co, has received two blank contracts to sign, pledg-

ing themselves to sell no stone to contractors who would employ anyone

except union stonceutters, which they refused to sign, hence these charges

against the stone,

* Very respectfully,

“Byron Bartow & Co.”

The Chief of the Bureau of Yards and Doeks, on the 30th of June,

1893, wrote as follows to the commandant of the Puget Sound Naval

Station :

THE UNITED STATES VS. BYRON BARLOW ET AL. 39

“Bereau or Yarps axnp Docks, Navy DeparTrMENnt,

* Washington, D.C, June 30, 1892.

“To the Commandant, Puget Sound Naval Station, Washington:

“Sin: * * * The Bureau desires to say now, however, that the

selection of the quarries from which the stone is to be obtained can not

be made by the contractors to restrict the Government officers to the

acceptinee of any sandstone of which they do not approve,

“Under the specifications the stone must be of quality approved by

the engineer without regard to locality, and the contractor must select or

open a quarry to furnish stone which will meet with such approval,

“Tf the contractor has exercised any other supposed right of selection

under the contract, limiting the approval of the engineer to a sands‘one

from a particular quarry, it is one to which he is not entitled, and by

which the engineer was not bound.

“The Bureau thinks that the sandstone for the dock should be one of

the best to be obtained.

“Tn the further consideration of the matter the Bureau desires that it

may be understood that it decides the contract and specifications to give

to the engineer the decision as to the standard of quality, and he is fully

authorized thereunder to fix upon the quality of sandstone he requires,

by sample or otherwise, and require material equal to it,

i * Very respectfully,

“N. H. Farquiuar,

“Chief of Bureau”

4s On the 21st of August, 1893, the claimants addressed the fol-

lowing letter to the engineer in charge :

* Port Orcuarp, WASHINGTON,

elugust 21, 1893.

“Mr. U.S. G. Wurrse,

“Ciel Bugineer, U..8. Naru,

“Tu Charge Construction US, Dry Dock,

* Puget Sound Naval Station, Washington,

“Sir: We enelose herewith our bill for sandstone, the payment of

Which has been neglected by the Government for two months,

“We have heard unofficially that there was some question about the

acceptance of this stone (Tenino sandstone) by the Navy Department,

“We have had such confidence that this stone would finally be accepted

that we have thought best not to annoy the Bureau for an immediate

decision; but this has been hanging fire now for two months, and we think

we are justified in demanding payment for same for the following reasons:

“Neither in the specifications or contract do we find any authority for

the Bureau to pass any opinion on the quality of materials, except by the

civil engineer,

“Paragraph 13 of page 5 of the specifications reads: ‘The ashlar must

be of granite or sandstone of quality approved by the engineer,’

“This clearly leaves the question of acceptance solely with the engi-

neer in charge, Our bid aceepted was for sandstone, which establishes

the fact that the ashlar must be sandstone, approved by the engineer. To

make sure that this stone was suitable, both as to quality and quantity

required, we had the engineer visit the quarry with us, and the stone was

aecepted by him.

“The specification makes the engineer the agent of the Government in

this matter, and it is a well-known fact in common law that the agent

binds the principal whether the Bureau sees fit to disapprove of the action

of the engineer (its agent) and condemn the stone or not. This stone

which has been delivered we claim is accepted by the Government and

must be paid for. We make the bold assertion most positively that there

is no other quarry in the State which can furnish the sandstone of the

quality required and of the sizes shown on drawings, and there is no other

quarry having the facilities, machinery, derricks, &e., capable of quarry.

ing stones the sizes required,

“We think it also a great hardship, in view of the great stringency jn

money, both to us as well as the quarrymen, to withhold this pay ment so

long solely on the complaint of stonecutters, disgruntled because we would

not let them dictate terms, wages, etc., to us—in fact, let them run our

business.

“Tt is also a great hardship to the stonecutters we have engaged, who

have now been waiting here two months at expense, ready to begin cut-

ting stone which is on the ground.

“The action of the Bureau will also delay us in finishing our contract

within the time specified, and we now give notice we shall claim this delay,

“We desire also to inform you that the quarry has gotten out most of

the stone required for the dock,and demands that we receive the same as

provided in our contract with them; also that they will claim) payment

for said stone.

“We therefore must insist on immediate payment for said stone, and

the Bureau’s decision as to the remaining stone,

* Very respectfully,

“Byron Bartow & Co.”

49 AvG. 21.

ON, H. Farquhar, Chief of Bureau of Yurds and Docks, Navy Dept, to

Byron Barlow & Co., Dr.

“June 20. To 2,377 cubic ft. sandstone, at 65e 2.2.2... .. $1,545.05”

On the 31st day of August, 1893, the Chief of the Bureau of Yards

and Docks announced by letter to the commandant of the Puget Sound

Naval Station that the Tenino stone would not be accepted as material

for construction, and on the ath of September, 1893, the engineer in

charge notified the claimants of this decision.

On the 9th of September, 1893, the claimants wrote as follows to said

engineer :

“Port Orcnarp, WASHINGTON, Sept. 9, 1892.

“Mr. U.S. G. Wurre,

“(tril Engineer, US. Navy,

“In Chg. Construction Puget Sound Dry Dock.

“Dear Str: We beg leave to acknowledge the receipt of your letter

of the 8th inst., notifving us of the rejection by the Bureau of Yards

SS PRESALE FI RY RE TRIER

een csirep STATES VS. BYRON BARLOW ET AL,

and Docks of the Tenino sandstone offered by us to be used in the con-

struction of the dock. In this connection, we beg leave to ask if you

have had any official instructions to govern you in the inspection and

approval of materials to be used in the construction—especially the

stone—other than those contained in the specifications and contract.

« Very respectfully,

“Byron Bartow & Co.”

Upon being notified by the Navy Department that the Tenino sand-

stone would not be accepted, the claimants—protesting against such

requirement—offered stone from Sueia Island and also from Dog Fish

Point, which was accepted and used in the construction of the dock.

Upon their tendering such stone to the civil engineer in charge, he

wrote them under date of March 29, 1894:

“Messrs. Byron Bartow & Co.,

“ Charleston, Washington.

“GENTLEMEN: The receipt of your favor of yesterday is acknowledged,

and in reply would say that the stones referred to therein, having been

approved by the Bureau, will be accepted by me, subject: to inspection

under such specifications as T may be furnished with by the Bureau.

“2. The specifications forming a part of vour contract being of no

effect under existing circumstances, I have asked for such specifications

as will doubtless be furnished therewith before any stone will be deliv-

ered here.

* Very respectfally,

“ULS.G. Wurre,

“Cir Engineer, US. Nary, in Charge of Construction.”

When the attention of the Bureau of Yards and Doeks was called to

the alleged unfitness of this stone for the purposes required, the Navy

Department, through the Chief of the Bureau of Yards and Docks,

instituted an examination and inquiry for the purpose of determin-

ing the chemical ingredients, geological formation, the tensile

50 strength, the porosity, the crushing strength, and the absorbent

qualities of the said Tenino sandstone, and to this end a number

of experiments, tests, and observations were had at the bureau of medi-

cine and hygiene at the Watertown Arsenal and at other scientific places

by officers in charge of scientific institutions and persons skilled and

learned in their respective professions, with the result that said Navy

Department, through the Chief of the Bureau of Yards and Docks,

reached the conclusion that said Tenino sandstone was not fit and suit-

able for the purposes to which it was proposed to use said stone ; that

sid stone did not fulfill the requirements of the contract and specifi-

cations as above recited ; that it was not a hard stone, nor a clean stone,

nor free from imperfections ; that its absorbent qualities were too high ;

that its crushing strength was too low, and that it was in many essential

particulars totally unfit and unsuitable and undesirable for the use in the

ashlar of this dry dock; and thereupon, to wit, on the 29th day of

August, 1894, the contractors were notified of this decision of the Bureau

WER REISE ATS IER SIS ALE POMONA POOL

ai taryimy

AERP I TEL SS EE PLE NUYS NS a NR

42 THE UNITED STATES VS. BYRON BARLOW ET AL, on

of Yards and Docks and were required to furnish other and better sand.

stone. From this decision of the Chief of the Bureau of Yards and

Docks the claimants appealed to the Secretary of the Navy, who cop.

curred in the opinion of the said Chief of the Bureau of Yards and

Docks, and concurred in his order requiring a different and better sand.

stone. The tests and analyses of said Tenino sandstone were made from

samples furnished to the Bureau of Yards and Docks by the contractors

and by the commandant of the Puget Sound station. The delay jn

arriving at the ultimate determination to require a better quality of

sandstone, which was reached on the 24th of August, 1894, was partly

eaused by the fact that the claimants were in’ correspondence with the

Secretary of the Navy in an endeavor to persuade him’ to accept said

Tenino sandstone, The tests and analyses of said stone, as above recited,

were made promptly.

VII.

The amount of Tenino sandstone quarried, cut, and delivered was

2,349 cubic feet, amounting, at 65 cents a cubic foot, to $1,526.85,

The claimants had also, before receiving notice of the rejection of the

Tenino sandstone by the Bureau of Yards and Docks, caused to be

quarried and cut, but not transported, 7,280 cubic feet, amounting, at

65 cents a foot, less the cost of transportation, LO} cents a foot, 544 cents

a foot, to 33,967.60, making a total for stone actually quarried and cut,

and part of which was delivered, of 85,494.45. That sum, however,

has not been paid by the claimants to the owners of the said Tenino stone

quarry, nor does it appear that uny action or suit has ever been brought

against the said claimants for said sum of money.

The total amount expended by the claimants for furnishing, deliver-

ing, and cutting the stone which actually went into the construction of

said dry dock from Sucia Island and Dog Fish Point, as aforesaid, was

$33,996.23.

If they had been allowed to furnish Tenino stone they could have

done so at a cost of S1I7,948.80. The additional cost, therefore, to the

claimants of furnishing the stone which they did furnish, over and above

what it would have cost them to furnish the Tenino stone, is the differ-

ence between the two sums last named, amounting to $15,607.43.

VIII.

The plans for the foundations of the boilers and boiler house were

submitted to the civil engineer in charge of the work and approved by

him, and the work was then done on said foundations in accordance

51 with the directions of said engineer. The foundation for the

boiler house was completed and accepted by said engineer and

ineluded in his monthly estimate and paid for. The foundations for the

boilers were made in accordance with the drawings so submitted to said

engineer, and were completely laid at about the time the engineer first

in charge of said work was detached therefrom, Subsequently another

engineer was placed in charge of the work. In his opinion the founda-

tions were imperfect and insecure because of defective construction on

the part of the claimants and he required that they be relaid. The

claimants, protesting that it was not competent to require them to change

the foundations after they had laid the sume to the acceptance of the

engineer in charge at the time of the original construction, relaid the

same in accordance with the direction of the engineer thus subsequently

in charge. The matter was subsequently referred to the Chief of the

Bureau of Yards and Docks, and he decided that the work was required

to be done by the terms of the contract. It does not appear that the

claimants appealed to the Chief ot the Bureau before doing the work, or

that it was ordered by him.

The total additional cost of said work to the claimants was—

For the extra foundations for the boiler house. .......

$312.12

And for the extra foundations for the boilers... ..

ieee sa Sei ee

Making a total of....... Tt rr ree,

IX.

In the execution of the contract the claimants drove a line of sheet

piling transversely across the brick discharge culvert at the end of the

brick work, They then went on and drove the round piling forming the

foundations for the brick work of the discharge culvert. In cutting off

this round piling, however, they made a mistake and cut the piling off 32

inches below the point where it should have been. As soon as this error

was discovered they reported it to the engineer, and suggested two meth-

ods of remedying the mistake. One was to start the brick work 32

inches lower than it was originally shown, and to carry up the excess of

height of 32 inches in brick work. The other remedy was to build up

with timbers on top of the piles according to the height where they had

heen cut off too low, and then start the brick work on top of the addi-

tional 32 inches of timber work. The Department accepted the latter

plan and also required that they put in a concrete toe to prevent the

teredo trom attacking the sheet piling and timber work. The claimants

putin the timber work as required, and made no charge for the same.

They also put ina conerete toe, as required by the Navy Department.

This concrete toe had no relation to the error which had been made in

the original construction of the sheet piling, but would have been required

irrespectively of any such error having been made. The additional cost

to the contractors amounted to $59.35,

». €

In refilling the dirt after the altars were in place no part of the filling

was rammed or sluiced except the clay puddling. This was in aceord-

ance with the instructions of the engineer in charge of the work. The

claimants discussed the matter with him, and he informed them that it

Was not required to be rammed or sluiced. He embraced the work done

in that way in his monthly estimates, and the claimants received

52 payment for a large portion of the work done in that way at the

contract rate of * Filling and grading per cubie yard, 30 cents.”

Tn the latter part of August, 1894, however, there was a change in the

office of engineer in charge of the work for the United States. The new

Spat

Tete any eS

hep

SORE TARTS

44 THE UNITED STATES V8. BYRON BARLOW ET AL.

engineer then placed in charge required the claimants to ram or sluice al}

back fillings. The claimants protested, insisting that the contract did not

require anything more than depositing the material and evenly gradin

the surface to correspond with the grade of the station. The Hew engi

neer, however, required all the work to be thoroughly sluiced with Water

and all but a ee part thoroughly rammed, and the claimants did the

work in that way under protest.

The additional cost to the claimants of doing this work, over and aboye

what would have been required had they not been required to ram op

sluice the same, would be 10 cents a yard, making, for 37,227 yards

$3,722.70. The engincer who ordered the work to be done in the man.

ner stated referred the question of so requiring it at the request of the

claimants to the Chief of the Bureau of Yards and Docks, and the lat.

ter informed said engineer that the Department approved his require.

ment, for the reason, as shown by the Bureau, that the contract plainly

required it. j

XI.

During the progress of this work it was discovered that the soil at the

bottom of the dock was of a very tenacious and unyielding character,

so as to be difficult of penetration for piles driven by the ordinary drop.

hammer process, and was so reported by the contractors. On the 15th

of February, 1894, it was stated that the round piles which were then

being driven penetrated to a depth of from 8 to 10 feet. It was stated

by the Bureau of Yards and Docks, on February 27, 1894, in answer

to this statement, that while round piles penetrating from 8 to 10 feet,

as now stated, may be satisfactory, depending upon the resistance

shown by the first blow, yet the Bureau thought that these piles should

be driven to a depth of 15 feet below the bottom of the excavation, if

possible, A copy of this letter was furnished to the contractors, but

When the report for piles driven in February was received it was found

that the average of 76 piles driven on the 15th of February was 5 fect 0.77

inch, none going to 8 feet, and of the 57 piles driven on the 16th the average

Was 9) feet 0.60 inch, none going to 8 feet; and the average depth of the

891 piles driven in’ February was only 6 feet 0.82 inch. The general

average for February was much reduced by the piles driven in the latter

half of the month, after the attention of ‘the contractors, as well as the

civil engineer, had been called to the unsatisfactory depth reached by

these piles. This report called forth from the Bureau other letters in

March and April urging that the piles be driven to a greater depth and

reiterating the instructions contained in the Bureau’s letter of February

27. There was no claim made at this time by the contractors that they

could not reach a greater depth than that hitherto reported. —There-

upon the Bureau telegraphed definite instructions on the 13th of April

to accept no piles driven to a less depth than 15 feet. The contractors

made no attempt to show that they could not drive piles to that depth

or to a greater depth than had been obtained, but employed experts to

give an opinion after tests upon the piles driven to show that the Bureau

was wrong. In view of these facts, the Secretary of the Navy, on the

21st day of May, 1894, and upon the occasion of a visit to said dock b

that official, verbally authprized and directed’ the contractors to sin

BS ESE Ni a EE Ee

THE UNITED STATES VS, BYRON BARLOW ET AL,

the piles by a method known as the water-jet system; that is to say,

by forcing water into the ground by means of a sink pipe operated by

the hydraulic system, thus forming a hole into which the pile is set.

“The contractors objected to and protested against this method of

53 driving the piles upon the ground that it destroyed and weakened

the bottom of the pit, and subsequently a board of naval experts

was convened for the purpose of reporting upon the advisability of sink-

ing the piles by this system. The board reported adversely to. this

eystem, and recommended that the piles be driven in accordance with

the provisions of the contract and by the ordinary drop-hammer process,

the piles to be driven to a minimum of 6 feet. The remaining 696 piles,

which were driven after this report by the drop-hammer process, reached

an average depth of 10 feet 4 inches. The aforesaid board of naval

experts, under the direction of the Secretary of the Navy, passed upon

the expense to which the contractors had been put on account of this

verbal order of the Secretary of the Navy to the contractors, requiring

them to sink said piles by said water-jet system, and recommended an

allowance to said contractors therefor in the sum of $1,156.76. The

amount thus recommended by this board of engineers was approved by

De a=

SMS ST Ah PE MTR HOR RRA ROP IE

the Secretary of the Navy and a voucher therefor was drawn, but when 2

the same came betore the Auditor for the Navy Department for audit E

and before the Comptroller of the Treasury for payment, it was refused, =

upon the ground that the services required were not extra and addi- —

tional, but that they were such as the contract contemplated, and upon =

the further ground that the Secretary of the Navy, under the specific fs

requirements of section 7 of the original contract, had no power or bs

authority to authorize or direct the incurring of this expense unless &

the cost of the same was first ascertained by a board of officers pro- :

vided for that purpose before the expense was incurred, and reduced ;

to writing, as required by the seventh clause of the contract. Where- :

upon the Seeretary of the Navy procured the reference of this item to ws

this court under and pursuant to the provisions of Revised Statutes,

section 1063.

The reasonable value of the work set forth and deseribed in this

finding is $1,156.76.

SPN GE, wos my TO

XII.

The delay incident to the experimentation with the water jet in driv-

ing piles, as stated in the last finding, extended from April 13, 1894, to

July 5, 1894, a period of seventy days, exclusive of Sundays. The

expense caused to the claimants by the defendants’ ofticers in the sus-

pension of the work was $2,625.

The board named in the last finding reported in regard to the elaim

for these expenses as follows:

“The board is of the opinion that the contractors are equitably

entitled to a reasonable compensation for any additional expense incurred

by them in the prosecution of the work in consequence of unusual delays

that may be found to have been caused by the Government, but having

no means of verifying the claim submitted for such additional compen-

sation the board is unable to properly consider this question.”

as nee nceers ————— : .

: tre i ic AE TD Sm a CA rae ES Becta he aia 3 5 PER OE IFO CC BAS

bei

Pe hi nan Metal tie LNCS a Tesla gO a ee ae

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Panik wlsalitiate las

46 THE UNITED STATES V8. BYRON BARLOW ET AL,

CONCLUSIONS OF LAW,

The court, upon the foregoing findings of faet, decides as conclusions

of law,

The claimants should recover upon the subject-matters set forth jp

Findings VII, IX, XI, and NIT the sam of 824,942.99,

Il.

The claimants should not recover upon the subject-matters set forth

in Findings VIIT and X.

54 VITL—Opinion of the court.—Deiivered May 21, 1900,

Nort, Ch. J., delivered the opinion of the court:

The contract in this case, bearing date the 29th of October, 1892, pro-

vides “that if'at any time it should be found advantageous or necessary

to make any change or modification in the aforesaid plans and ~peeiti-

eations, such changes or modifications must be agreed Upon in writing,”

The parties acted under this provision no less than eleven times. There

are eleven supplemental contracts, in one of whieh the trivial sum of

S17 is the total consideration.

The defendants now contend that the claimants can not recover upon

some of their causes of action beeause this provision of the contract was

not complied with. It is manifest, however, that neither of the parties

to the contract considered the provision as applicable to most of the

matters now in issue. The Chief of the Bureau of Yards and Docks

certainly did not. He did not seek to make any change or modification

in the *atoresaid: plans and specifications’? which would involve addi-

tional expense. On the contrary, he regarded everything that was done

under his direction and requirements as an obligation resting upon the

contractors under the original contract. The one party maintained that

the contractors were bound by the contract; the other party maintained

that they were doing extra work or furnishing better material under

requirements which were not contained in the contract,

The contract also provides that “Sno omission in the plans or speciti-

eations of any detail, object, or provision necessary to carry this contract

into full and: complete effect, in’ accordance with the true intent and

meaning hereof, shall operate to the disadvantage of the United States,

but the same shall be satisfactorily supplied, performed, and observed

by the contractors, And all claims for extra compensation by reason

of, or for, or on account off such extra performance are hereby in con-

sideration of the premises expressly waived.”

To the court it seems plain that this provision applies only to “omis-

sions,” tomatters of “detail,” and only to such “omissions”? and “ matters

of detail” as shall be * necessary to carry the contraet into full and com-

plete effeet, in aceordance with the true intent and meaning thereof.”

It can net be held, in the opinion of the court, that the things which

the Chief of the Bureau compelled the contractors to do were “ omis-

sions”? on “matters of detail,” or “necessary? -to carry the contract into

eww |

THE UNITED STATES VS, BYRON BARLOW ET AL. 47

effect. On the contrary, they were clearly changes or additions whieh

the Chief of the Bureau had or had not the right to require within the

true intent and meaning of other provisions of the contract,

the meaning or requirements of anything in this contract, or if any dis-

erepaney occurs between the aforesaid plans and specifications and this

contract, the matter shall be at once referred for the consideration and

decision of the Chief of the Bureau of Yards and Docks, and his decision

thereon shall be final, subject, however, to the right of the contractors

to appeal from such decision to the Secretary of the Navy, who, in

ease of such appeal, shall be furnished by the contractors with a full

and complete statement of the grounds of their appeal, in writing, and

shall thereupon take such aeton in the premises as, in his judg-

55 ment, the right= and interests of the respective parties to this

contract shall require, and the parties of the first part hereby bind

them-elves and their heirs and assigns, and their personal and legal rep-

resentative, to abide by his, the said Sceretary’s decision in the premises,”

But here it must be noted that this fourteenth provision of the con-

tract is grounded upon “doubts and disputes,” which are to be at once

referred for the consideration of the Chief of the Bureau, whose decision

is to be final unless appealed from to the Secretary, The doubts and

disputes are manifestly those which might arise between the contractors

and the engineer in charge. Tn other words, the contract provided that

hefore the provision should become practically binding, it would be nee-

essary that the engineer in charge, the Chief of the Bureau, and the See-

retary of the Navy should all decide dgainst the contractors, and that

two of the three should) be disinterested. As regards some of the mat-

ters in CONTPOVETSY there was no “doubt” or “dispute” on the part of

the engineer in charge—his decision was on the side of the eontractors—

the controversy was begun by the Chief of the Bureau.

Ifthe full intent and effect be given to this provision which the

defendants now aseribe te it, the contractors might as well have written

anagreement on half ofa sheet of paper, binding themselves to perform

Whatever work and furnish whatever material the Chief of the Bureau

might require, and aceept therefor whatever remuneration the Seeretary

of the Treasury might be pleased to give them,

Tn Douglas's Case (2. C. Cls. RL, 347), this court said “there are agree-

ments to abide by the decision of a third: person, reciprocally obligatory

upon both the parties, whieh are always to be upheld—as an agreement

that wagons to be manufactured shall be examined and approved by a

certain inspector (Albert) Brown's Case, 1 C. Cls. R., 307), or that the

title to an estate to be conveyed shall be approved by the Attorney-

General (Merehant’s Exchange Company's Case, Ib. R., 332), but a de-

cision under this contract by the referee, made after the contract has

expired, and when the rights of the parties had become settled and fixed

thereunder, ean not preclude them from appealing toa court of justice.

In Hurts v. Litchfield (39 N.Y. Ro), where a contract provided that

“in ease any question arises under such contract in relation to the work,

both as to value of work added or deducted, the same shall be adjusted

by the architect,” the court of appeals held that the provision was not

1530-——-4

EGE

438 THE UNITED STATES VS. BYRON BARLOW ET AL,

binding, being against the policy of the common law and having a tend.

ency to exclude the jurisdiction of the courts, provided with ampler

means to entertain and decide legal controversies.” The court also said

that such stipulations “do not deprive the party of his action, cither at

law or in equity to enforce his rights.” Many cases are cited, English

and American. The court of appeals recognized as valid such stipula.

tions as have always been aohal in this court, cases “where an agree.

ment makes the procurement of one architect’s certificate a condition

precedent to any right of action; then,” says the court, “the rule is as

claimed by the defendant in this case, but such is not the agreement

between these parties.”

In the many cases in whieh it has been held that where a contract

provides that the architect or the engineer in charge shall determine the

quantity or the fitness of the material or the sufficieney of the work his

eshien is ordinarily final, it has been the reference of a matter of fret

to the arbitrament of a person peculiarly fitted by his own knowledge

concerning the subject of dispute to determine a simple fret. But since

the decision of the Supreme Court in Clark’s Case (6 Wall. R.,

56 548) it has never been supposed that even the engineer's system

of measurement was conclusive of the contractor's rights. Col-

lins and Farwell (34 C. Cls. R., 294). In the cases of all building

contracts there are matters to be determined as the work progresses,

Some one must pass upon the fitness of the material, the sufficiency of

the workmanship, the amount of work performed, ete. These are mat-

ters which ean not be left until a building is completed ; it is for the

interest of both parties that they be settled as the work proceeds. The

architect or engineer in charge being the person most familiar with

the work and professionally fitted to pass upon such questions is ordi-

narily designated as the referee or arbitrator: to determine them. Such

agreements for such arbitraments must be upheld. But the agreement

now under consideration is a very different thing. It goes far beyond

anything that has come before the court since the case of Douglas, for it

sets up the Seeretary of the Navy, having no personal knowledge of the

matter in dispute, as being in effect an appellate court of justice—the

court of last resort. It in effect binds one party to abide as to every

matter of fact, and as to every question of legal right, by the decision

of the other party. Lord Coke said centuries ago that it becomes no

man te be both judge and party in the same case,

Certain statutes have been interposed as a defense (Rev. Stat., sees,

8744, 3697, 3722, 3733), Some of these are mandatory ; some merely

directory. In Clark v. United States (95 U.S. R., 539) the Supreme

Court held that the statute which requires contracts to he reduced to

writing is mandatory, but at the same time expressly held that “ where,

however, a parol contract has been wholly or partly executed on one

side, the party performing will be entitled to recover the fair value of his

yroperty or service as Upen an implied contract for a quantum meruit.”

Phe Supreme Court also held about the same time that “ the principal's

which govern inquiries as to the conduct of individuals in’ respect to

their contracts are equally applicable where the United States are a

party,” and that where an individual contractor would be liable for hay-

ing ordered the suspension of the work, “the United States must answer

SER RETRY WIERD BENT BEY EIN AIS TH RELI IY SET NN ee

THE UNITED STATES VS, BYRON BARLOW ET AL, 49

accordingly to the same rule,” United States v. Smith (94 U.S, R., 214-

217), In Semmes & Barbour (26 C, Cls, R., 119), seetions 3679 and

8732 of the Revised Statutes were interposed as a defense, and there was

also a statute relied upon which forbade contracts to: be made for build-

ings “to be used for the purposes of the Government in the Distriet of

Columbia ;” but the court held that these provisions of law “ undoubtedly

applied to express contracts,” and “ have no a plication to that class of

implied contracts which arise from acts of public officers in the perform-

ance of their duties in carrying on the business of the Government.”

In many eases it has been held that though Congress may limit the

expenditure to the amount appropriated, the contractor “is bound to

know the condition of the appropriation account at— the Treasury,”

(Mverle’s Case, 33: C. Cls. R., 1, and cases cited.)

in the ease now before us it was also supposed by the accounting offi-

cers that the provisions of the contract requiring new or additional work

to be ordered in writing, bound the Seeretary of the Navy, himself, and

that he could neither order such work to be done in any other way than

that provided by the contract, nor pay for it when it had been done.

As such provisions in contracts are constantly eausing disputes and

controversies, we now formulate the principles governing them, which

we regard as well settled :

57 1. Where additional work or better material than the contract

requires was ordered by a subordinate officer having no such

authority, the compliance of the contractor must be regarded as volun-

tary service, and no contract can be implied, even though the defendants

acquired a benefit by the change; that is to say, the Government can

not thus be compelled to build a better building than was intended by

its responsible contracting officer, (Driscoll’s Case, 34 C. Cls. R., 508,

and cases cited, p. 524.)

2. Where, on the contrary, the alterations or additions were ordered

by an officer clothed) with responsibility and wuthority to contract, a

contract Will be implied to the extent of the benefit which the defend-

ants have received, and the claimant will recover in quantum meruit.

(Hawkins v. United States, 96 U.S. R., 689.)

3. Where a contract expressly provides that alterations or additions

must be ordered in writing, and the cost be agreed upon before the work

be done, the principals to the contract in ordinary cases between indi-

viduals may waive the requirement ; so in the ease of Government con-

tracts, the officer who has authority to order or agree in writing must be

considered pro hae viee as the principal, and if he orders a change orally,

and the contractor acts on the order and performs the extra work, the

parties WHT be deemed to have mutually waived the requirement, — (Ford’s

Case, 17 C. Cls, R., 75.)

In a few words, it may be said that the statutes and these contractual

provisions must be construed for the protection of the Government and

not for the embarrassment of contractors; and that they can not be

used by public officers to cloak breaches of contract or justify improper

interference with the work, or to acquire in any way an unfair adyan-

tage over the other party. It is for the interest of the Government that

its good faith and business responsibility shall be upheld. A policy which

precludes legal redress will drive every prudent and responsible con.

tractor gut of the field of competition,

The principal item in controversy is for the sandstone of which the

dock was constructed, The specifications, whieh are a part of the con.

tract and upon which the claimants predicated their bid, provide: “Phe

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