# Transcript of Record — United States v. Barlow > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0779%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1902 - **Citation:** 184 U.S. 123 ## Text BYRON BARLOW, . ae 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. r. 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 ay . 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 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. Oo 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 Q 3 iz a 3 & kas eet z 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 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.” * * 7 4 : 5 z. ae i é Ss ie e ¥ bie MSY ae CPOE IER PORES er. #23 —- rest x pemesctee nes CRORE ES OTE ROO act Lay na 3 om YY 5 ¥ > Bite Ya: o Sift eta aR as: bs 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, GQ 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. © Meteried’s.—AIL materials are to be of good merchantable quality of the several kinds, where not otherwise specified, © Fucilities.—The station authorities are to allow the contractor 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. © Patents—The use of all patented articles and methods emploved in the construction of the doek is to be included in the contract without any additional charge or expense to the Government. © Tntention,—It ts the declared intention and meaning of the contraet Ag aa hows ee On, § i 4 & na ™ S x sn ag e = Oy 65 AL. IRN EO OF mR NNT FI IETS EIRP ES A IE NE OO EIS IO ORE rr 2 ase | 9 THE UNITED STATES Vs, BYRON BARLOW ET AL, 23 § ns 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 e 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 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, z 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, © Pudding, —A ‘lay puddle, of the best quality to be obtained in the 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. ae 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 = inception of work the claimants tendered to him a sample of sandstone © 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’.” ‘ © Received the above labor and materials in good order at Puget Sound 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 © Approved for the sum of fourteen thousand one hundred and thirtv- — "| 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 Ee ala RPE AIT GNI: © Porr Orcuarn, WAsHIneTon, June 14, 18923. “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 Nos. 20, 698, and 50, Department. Tur UNrrep STATES. I, Archibald Hopkins, chief clerk of the Court of Claims, do hereby certify that the foregoing are true transcripts of the pleadings in the above-entitled cause, of the findings of fact by the court, and the con- clusions of law thereon, of the opinion of the court, of the judgment of the court, of the application of the defendants for and the allowance of an appeal to the Supreme Court of the United States, of the application of the claimants for and the allowance of a cross-appeal to the Supreme Court of the United States. In testimony whereof, I have hereunto set my hand and aftixed the seal of said court at Washington, this 17th day of July, 1900. [SEAL ] ARCHIBALD Hopkins, Chief Clerk Court of Claims, 64 (Indorsement on cover:) File No. 17861. Court of Claims. Term No, 376. The United States, appellant, vs. Byron Barlow, James EF. Blackwell, and James M. Dougan, partners, as Byron Barlow & Co. File No, 17862.) Term No. 377. Byron Barlow, James E. Blackwell, and James M. Dougan, partners, as Byron Barlow & Co., appellants, vs. The United States. Filed August 4th, 1900, 0 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0779%3A1. Public record. Not legal advice.