United States v. Smith
| Decision Date | 11 April 1921 |
| Docket Number | No. 253,253 |
| Citation | 256 U.S. 11,41 S.Ct. 413,65 L.Ed. 808 |
| Parties | UNITED STATES v. L. P. & J. A. SMITH |
| Court | U.S. Supreme Court |
Mr. Assistant Attorney General Davis and Mr. Wilford Hearn, of Washington, D. C., for the United States.
[Argument of Counsel from pages 12-14 intentionally omitted] Messrs. John E. Morley, of Cleveland, Ohio, Rufus S. Day, of Washington, D. C., and Roscoe M. Ewing, of Cleveland, Ohio, for appellees.
April 14, 1919, the Court of Claims rendered a judgment against the United States in favor of L. P. & J. A. Smith (appellees and we shall so refer to them) for the sum of $119,304.27. To review that judgment this appeal is prosecuted.
The appellees were a partnership doing business at the times herein stated under the firm name of L. P. & J. A. Smith.
In response to an advertisement and after the submission of proposals for work at the mouth of the Detroit river, a contract in writing was entered into December 31, 1892, by O. M. Poe, Colonel, Corps of Engineers, U. S. Army, and appellees, by which the latter agreed to excavate a ship channel 20 and 21 feet deep, located in section 8 of the Detroit river, in accordance with specifications attached to the contract and made a part thereof. They were to receive in full compensation for their work the sum of 18 cents per cubic yard of excavation, scow measure.
The material to be removed was specified to consist 'of sand, gravel, and boulders, all in unknown quantities.'
In the season of 1894 there was discovered a natural bed of limestone rock within the boundaries of the excavation called for by the contract, which was not provided for by the contract. For the removal of this limestone the United States advertised for bids.
The L. P. & J. A. Smith Company, a corporation of Ohio, and a successor in interest to L. P. & J. A. Smith, bid on the work. The bid was accepted and a contract was entered into November 9, 1894, by which that company agreed to remove the rock and other material at the price of $2.24 per cubic yard of excavation, bank measure. The contract was completed on or about June 16, 1895.
The contract of December 31, 1892, was extended from time to time by Col. Lydecker, the engineer in charge of the work, he having succeeded Colonel Poe, to July 1, 1897. In that year he ordered appellees to work at particular spots toward the northerly end of section 8, at certain designated shoals which had been excavated under the contract of November 9, 1894, with the L. P. & J. A. Smith Company.
And certain other officers, one an assistant engineer, another a subinspector, in charge of the work, insisted upon locating for appellees the points where dreding was to be done.1
The material or a large part of the material to be removed from those points was limestone rock or limestone bed rock. Appellees protested and asked for the fixing of an extra price for doing the work. This was refused and they were told that if they did not remove the same they would be declared defaulting contractors; that the work would be taken from them, done and charged to them, and be paid for from the retained percentages for work already performed, and if the percentages were not sufficient for that purpose they, appellees, and their bondsmen, would be proceeded against. No other officer or officers so told appellees or insisted that all the material to be removed was clay, gravel and boundlers.1
A large part of the material arbitrarily stated to be clay, gravel, sand and boundlers, was in fact limestone rock and limestone bed rock, and was not the material specified in the contract.
The quantity of material excavated as thus required, and that required by the contract, the findings...
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