Henry Ripley v. United State

Messrs. William H. Robeson, Benjamin Carter, and F. Carter Pope for ripley.

Assistant Attorney General Thompson and Mr. Philip M. Ashford for the United States.

Statement by Mr. Justice Lamar:

Appeal and cross appeal from a judgment by the court of claims for $14,732.05 in favor of Henry C. Ripley against the United States, in a suit for the recovery of damages in connection with the construction of a public work, consequent upon the action of the agent in charge.

By the act of June 13, 1902 (32 Stat. at L. 340, chap. 1079), Congress appropriated $250,000 for the completion of the work of improving the harbor of Aransas Pass, Texas. The contract was awarded to Henry C. Ripley. It provided for the completion of a jetty, having a brush foundation, to be covered with a layer of stone, on which was to be built a superstructure, with sloping sides and a top width of 10 feet. This superstructure was to be formed of a core or mound of riprap, 'and when, in the judgment of the United States agent in charge, this mound has become sufficiently consolidated, its gaps shall be filled and its crest leveled;. . . large blocks shall then be bedded in the crest of the mound.'

It was provided that—

'Where the contract contemplates the placing of the materials in the work, the material shall be placed securely and carefully where directed by the U.S. agent in charge. . ..

'All material furnished and work done under this contract shall, before being accepted, be subject to a rigid inspection by an inspector appointed on the part of the government, and such as does not conform to the specifications set forth in this contract shall be rejected. The decision of the engineer officer in charge as to quality and quantity shall be final.'

The contract also provided that the work should be executed under the supervision of the engineer officer in charge or his duly authorized agent. The United States was to employ one or more inspectors, and the contractor, without additional compensation, was bound to furnish facilities for the inspection of work and material. The contractor was to furnish extra labor at cost prices, as determined by the engineer, and should furnish board and lodging to government employees at reasonable rates satisfactory to the engineer. If the work was not diligently prosecuted, the contract might be annulled, or the engineer in charge, 'with the prior sanction of the Chief of Engineers, may waive for a reasonable period the limit originally set for the completion of the work, and remit the charges for the expenses of superintendence and inspection for so much time as, in the judgment of the engineer officer in charge, may actually have been lost on account of. . . violence of the elements, or by epidemic, or local or state quarantine restrictions, or other unforeseeable causes of delay arising from no fault of the contractor, and which actually prevented him from commencing or completing the work within the period required by the contract.

Claimant entered upon the performance of the contract August 18, 1903, and completed 2,100 feet of jetty when operations ceased about September 17, 1904, owing to the exhaustion of the appropriation.

About the time work began, without fault on the part of the contractor or of the United States, there was a delay of about thirty days, due to the fact that the contractor's tug, while in charge of a licensed pilot, was grounded on a sand bar. The government apparently incurred expenses for inspection during this period and deducted that amount from Ripley's account.

Owing to an epidemic of yellow fever the force of the contractor was disorganized, and work was necessarily suspended for thirty days. The government did not charge him with inspection expenses during the fifteen days the quarantine was in force, in a city through which the cars hauling the material were prevented from passing. And the court held also that Ripley was not chargeable with the inspection expenses for the other fifteen days, during which his force was scattered as a result of the epidemic.

During the progress of the work, a large number of blocks were rejected by the inspector as not conforming to specifications. 'Many of those so rejected were afterwards accepted, but ninety of the stones offered as crest blocks were rejected as such, and were accepted and used as riprap and paid for as such. The difference in the amount paid claimant for said stones used as riprap and the amount he would have received if they had been used as crest blocks' was allowed him by the court of claims. It found that 'he was compelled to furnish other crest blocks to take the place of those rejected, which caused a delay of ten days to claimant in the completion of the work.'

It appears that the rejection of these blocks was due to a difference in the method of measurement, the inspector insisting that the blocks should be measured at the narrowest, thinnest, and shortest points. The contractor contended that mean or average measurements should be taken, claiming that this was the understanding of himself and the officer who drew the specifications. The engineer at Galveston thereupon suggested that the matter should be referred to the Chief of Engineers in Washington; and later a supplementary agreement was drawn, which permitted the use of blocks 'which would make the work as stable, or more stable, than if the dimensions conformed strictly to the letter of the specifications. In consideration of which change the contractor agrees to accept $5 per ton for all blocks received under the supplementary agreement which would have been rejected under the original specification.'

The plaintiff's claim for additional compensation for extra labor furnished the government and for board and lodging furnished its employees was rejected by the court, as also his claim for damages for double handling caused by the inspector's refusal to permit him to unload certain material on the jetty.

The contractor's principal claim, however, was for damage caused by the delay resulting from the refusal of the inspector in charge to permit crest blocks to be laid after the core had fully consolidated. As long as the jetty was uncovered by these blocks it was subject to the rough action of the waves, and the plaintiff's employees were deprived of the advantage of working in still water on the lee side of the jetty. The work began August 18, 1903, and the court found as a fact 'that in December, when plaintiff had completed 200 feet of the core, he requested permission to lay the blocks. This was refused, on the ground that the core had not been consolidated. By the end of December he had completed 500 feet, and again requested permission to lay the blocks. The inspector refused and continued to refuse permission to lay the blocks until May 1, 1904, at which time 1,500 feet of the core had been repaired and completed.'

'Commencing in October, 1903, the contractor began to lay the slope stones, and from December, 1903, until May, 1904, it was manifest that large parts of the work done by him were fully settled and consolidated. If the claimant had been permitted to lay the crest blocks from that time on, as the work progressed, there would have resulted an additional protection, which would have enabled him the work sixty days more within the period between that time and May 7, 1904, when the first crest block was laid.'

'The total cost to claimant of performing the contract, exclusive of the cost of the granite and the cost of transport and fitting up and repairs to barges, was $63,780. The total number of days from the beginning to the completion of said work was three hundred and ninety-two, making an average daily cost to the contractor of $162.70. The work was completed on September 17, 1904. The number of days of actual work performed was one hundred and thirty-one, of which fifty-eight was subsequent to the 30th day of April, 1904.' 'Claimant, under the requirements of the specification, personally superintended the work for the whole time. The value of his personal services while so doing was $750 per month, but it does not appear that at this particular time he had any other enterprise under way or any other employment.'

The court entered judgment for plaintiff for $14,732.05,-made up of damage for difference between price of large blocks and riprap, delay caused by such rejection, value of ten days' services of plaintiff during the delay, remission of expenses for additional fifteen days during yellow fever epidemic, remission of expenses while tug was grounded on a sand bar, value of contractor's time during sixty days' delay occasioned by refusal to permit crest blocks to be laid, $1,500, and average daily expense, $162.70, and remission of inspection charges during the sixty days' delay.

After the case was argued here it was twice remanded (220 U.S. 491, 55 L. ed. 557, 31 Sup. Ct. Rep. 478, 222 U.S. 144, 56 L. ed. 131, 32 Sup. Ct. Rep. 60), and the court of claims made the following additional findings of fact:

'When denying permission to the claimant and to lay the crest blocks, as stated in finding 7, the assistant engineer, who was an experienced officer of the government in such work, and who was acting as inspector in immediate charge of the work, knew that large parts of the core theretofore completed by the claimant had fully settled and consolidated and were ready for the crest blocks to be laid thereon.

'2. The refusal of said assistant engineer, as inspector in immediate charge of the work, to allow crest blocks to be laid when he knew that parts of the core had settled and consolidated as aforesaid, was gross error and an act of bad faith on his part.

'3. There was no protest made to the engineer in charge, whose office was in Galveston, or to the Chief Engineer, whose office was in Washington, respecting the refusal of said assistant engineer to permit the laying of crest blocks as aforesaid. The claimant made frequent complaints to said assistant engineer about the delays so caused by his refusal to permit the laying of crest blocks.

'Claimant visited the office of the engineer in charge at Galveston about once a month, and while there complained generally that said assistant engineer, as inspector in immediate charge of the work, was too strict with him in construing the specifications and contract. No appeal, either written or otherwise, was taken or asked by the claimant to either the engineer in charge or to the Chief of Engineers, because of the said refusal to permit the laying of crest blocks.'

Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court: