United States v. Gibbons

The principal question in this case relates to the proper construction of a building contract betwwen the parties, entered into May 22, 1866, the United States acting by Joseph Smith, chief of the bureau of yards and docks, under the authority of the navy department, for the repair of the entrance buildings and carpenter-shop at the Norfolk navy-yard, which had been destroyed by fire in 1861, at the outbreak of the eivil war. The contract required the appellee to furnish, at his own risk and expense, all the materials and work necessary for the repairs of the buildings, according to the plans and specifications annexed; and entrance buildings to be entirely completed and delivered within 120 days, and the carpentershop within 30 days, from the date of the contract. A gross sum was to be paid for the work on each, partial payments to be made during the progress of the work upon the certificate of the superintendent, and final payment when the work should be entirely completed, according to the plans and specifications, 'and to the satisfaction of the party of the second part.' It was declared in the contract that 'no extra charge for modifications will be allowed unless mutually agreed upon by the parties, and no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity.' The specifications for the entrance buildings contained the following clause, upon which the case turns: 'The foundations and the brick walls now standing that were injured by the fire will remain, and be carried up to the height designated in the plan by new work.' The contract was made in pursuance of proposals, invited by an advertisement, in which it was stated that 'persons desiring to bid must necessarily visit the yards and examine the present condition of the works, and can there see the plans and specifications to enable them to bid understandingly.' The findings of fact by the court of claims bearing on this point are as follows:

'(3) At the outbreak of the late rebellion these buildings     mentioned in the contract were burnt, but portions of the      walls were left standing. Prior to the proposals for work an     inspection of these fragmentary walls, so left standing, had      been made by the officers of the government in charge of the      works, and those portions of them deemed unfit to form a part      of the permanent structure were taken down, and those parts      which were considered uninjured and proper to be built upon      were left standing for that purpose. After the agents of the government     had prepared the walls, retaining the portion which the civil      engineer of the navy-yard in charge of the work supposed      might be used in the new structure, the chief of the bureau      of yards and docks invited the examination of bidders by the      advertisement annexed to the petition, and the claimant, by      his agent, visited and saw the walls so standing. At the time     the claimant, by his agent, so visited the yard he was shown      the walls by a quarterman acting under the civil engineer of      the yard. The claimant's agent asked if those walls were to     stand. The quarterman replied that they were, so far as he     knew, and that Mr. Williams, the master mason of the yard,      and Mr. Worrall, the civil engineer of the yard, had said      that they were to stand. (But it does not appear that the     quarterman was authorized to make such representations to the      claimant's agent.) And the civil engineer likewise      represented to the claimant's agent that the portion of the      walls then standing would remain and be used in the new work. After the claimant's agent had so visited the yard and been     shown the the walls the claimant made his bid.

'(4) After the claimant had begun work under his contract it     was discovered that a portion of the walls still standing had      been so injured by the fire as to be unfit for building a      superstructure thereon. Commodore Hitchcock, commanding the     naval station, thereupon ordered that the walls be further      razeed, and, pursuant to his orders, about one-third of the      portion then standing was taken down by the claimant before      proceeding to build. The effect of this second razeeing was     that the claimant had to substitute new brick-work for that      so removed; and the additional cost of construction thereby      thrown upon him was the sum of $4,050; and for it he has      received no remuneration additional to the price named or      consideration expressed in the contract. It does not appear     that at the time Commodore Hitchcock ordered the walls to be      further razeed the defendant's oflicers made any pretense or      claim that the increased expense was to be borne by the      claimant as work required by the contract; nor does it appear      that the claimant made any objection to the taking down of      the walls as ordered by Commodore Hitchcock.'

The appellee claimed compensation beyond the contract price for the additional cost of construction rendered necessary by rebuilding that portion of the walls torn down by order of Commodore Hitchcock. The United States contended that it was covered by the terms of his contract.

Asst. Atty. Gen. Maury, for appellant.

Enoch Totten, for appellee.

MATTHEWS, J.