533

⚫532

In the specifications, among other things, |mitted herewith." The plan referred to, it was recited as follows: as so submitted, showed the outline of a barge 101 feet 4 inches long, 30 feet wide, and 10 feet 6 inches in height, and a note on it read as follows:

"The following specifications and requirements are general only as indicating the class of construction desired.

"Barges of heavy construction for rough service, built in accordance with best modern marine practice, are desired.

"Bidders will be required to submit with their proposals plans in sufficient detail to show the proposed size of members and details of construction.

"The breadth of the barges should not be less than 25 feet nor more than 32 feet. They should have sufficient depth and length to carry a full load of sand on a draft of not more than 8 feet, and with not less than 30" freeboard when loaded. They will be rectangular in plan, with rake at each end about 11" long. . . ."

As shown by an excerpt in the margin,t the weight and dimensions of the structural materials were prescribed with much detail under the head of "Framing." In reply to this advertisement, appellee submitted a proposal to construct the desired barges, "subject to specifications of circular 310-C, with such modifications as are here shown on drawing No. 2105, dated June 7, sub

+Framing.

Floor beams forward and aft of the hoppers and in the rake should not be less than 10" deep, and extended in one piece to the turn of the bilges. They will be spaced 24" center to center. Frames to be not less than 3" x 5", angles overlapping the floors not less than 18", and connected with them and to floor beams with proper gusset plates. Bilges to be of as short radius as it is practicable to bend the angles and plates.

"Capacity of bins-350 cu. yards. Maximum loaded draft when carrying 350 cu. yds. of material weighing 3240 lbs. per cu. yard, not to exceed 8'-0"."

After examination of the bids by F. B. Maltby, division engineer on the Canal Zone, that official returned the bids to the general purchasing officer of the Commission in Washington, accompanied by a letter dated June 26, 1906. Therein, among other things, Mr. Maltby said: "It is noted that the drawing submitted by the Ellicott Machine Works does not show any detail, as required by the specifications. It is assumed, however (and we should insist on it), that the framing will be in strict accordance with our specifications." A sketch was inclosed "showing the desired arrangement of the hinges on the hopper doors and the method of securing timber lining to hoppers," and various suggestions were made explanatory of the details shown on this sketch. There upon D. W. Ross, purchasing officer, prepared and transmitted to the Ellicott firm a draft of contract for the construction and angles, riveted to each floor and deck beam, lattice bars to be 3" x 3" x fs" angles made in double panels, and joined top and less than 3 rivets in each landing. These bottom with proper gusset plates with not trusses will extend from the hoppers to the rake.

In the rake there should be a 3" x 3" "angle stanchion secured to each deck beam and floor timber on line with the said trusses.

Deck beams to be of 5" x 1" Z bars In addition to the transverse bulkheads spaced one to each frame, each beam to be mentioned above, there will be a water-attached to its frame by " gusset. Gunwales to be not less than 41" x 4" x tight bulkhead at each end of each rake. Transverse water-tight bulkheads will be" angle running inside the side plating made of 10.2 pound plate with double- and below the deck. riveted lap joints, stiffened with vertical angle bars 3" x 3" x 5", spaced 2" apart, except that the plates forming the ends of the hoppers will be of 21-pound plate, stiffened with 4" x 4" x "angle bars, spaced 2' apart.

The hull plating should be 21 pound on the bottom; bilges should be 21 pounds; the side plating may be of 18-pound plate and in no more than 2 streaks.

All plating to be worked "in" and "out" on longitudinal streaks, longitudinal laps to be double-riveted. All girth seams to be double-riveted to butt straps.

The deck should have a checkered stringer streak on each side 30" wide and about In the space forward and aft of the hop-" thick; remaining deck may be of 15pers there should be a central longitudinal pound plating. bulkhead of 10.2 pound plate, fastened at the top of the floor beams and deck beams by 4" x 4" x " angle; it will be stiffened by vertical 3" x 3" x 5" angles, spaced 2 apart. This bulkhead should extend from the hoppers to each end of the barges. In addition to this bulkhead there will be 2 longitudinal lattice trusses, one on each side, midway from the center bulkhead to the side of the hull. They will have top and bottom cord of 3" x 3" x "

There should be a nosing or fender streak of 8" x 8" yellow pine supported by 4" x 4" x " angles top and bottom. This nosing should extend entirely about the barge. On each side of the full length there should be a second fender streak of the same section about 3' below the deck.

delivery of the barges, but it was returned | No. 2105, dated June 7th, 1906, and revised with the suggestion that article 1 thereof July 27th, 1906, outlined in letter of Elli be rewritten, so as to provide for the construction of

"six steel dump barges in accordance with specifications contained in circular No. 310-od of securing timber lining to hoppers C of the Isthmian Canal Commission, dated May 29, 1906; with such modifications as are shown on drawing No. 2105, dated June 7, 1906, and subject to such amendments as to details of hinges, hoisting gear, and method of securing timber lining to hoppers as are described by letter of F. B. Maltby, division engineer, dated June 26, 1906, with the accompanying sketch, a copy of which specifications, drawing, letter, and sketch are attached herewith and form part of this contract."

In the letter returning said draft of used, or to be used, in said construction, contract, it was stated that

article of the contract was inserted, read-be completed in accordance with the speci"The barges herein contracted for shall ing as follows:

989.

*538

⚫537

1911.

UNITED STATES v. ELLICOTT.

It was provided in the last article of the contract as follows:

"Article 12. If, at any time during the prosecution of this work, it shall be found advantageous or necessary to make any change or modification in said barges, or either of them, and this change or modification should involve such alteration in the specifications as to character, quantity, and quality, whether of labor or material, as would either increase or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices both of material and labor thus substituted for those specified in the original contract, and before taking effect must be approved by the chairman of the Isthmian Canal Commission: Provided, that no payment shall be made unless such supplemental or modified agreement was signed and approved before the obligations arising from such modification were incurred."

337 time

| ing reasonable deduction of the less engaged and release from the care, cost, risk, and responsibility attending a full execution of the contract, the court decides that claimants are entitled to recover as profits the sum of $10,000, and accordingly judgment against the defendants for said amount is hereby ordered." [43 Ct. Cl. 479.]

A motion to dismiss the appeal first requires attention. The facts are as follows: The judgment against the United States was entered on May 18, 1908. Eightyfour days afterwards, on August 10, 1908, defendant filed a motion for a new trial. This motion was argued and submitted on November 23, 1908, and was overruled on January 4, 1909, in the term which began on December 7, 1908. Seventeen days afterwards, on January 21, 1909, the United States filed a motion to amend the findings of fact; on February 8, 1909, the motion was argued and submitted; and on February 15, 1909, the motion was overruled in part and allowed in part. Ten days afterwards, on February 25, 1909, the United States made application for and gave notice of an appeal "from the judgment rendered in the above-entitled cause on the 4th day of January, 1909."

'The grounds for the motion to dismiss are these: (a) that the appeal was not taken within ninety days after judgment (Rev. Stat. § 708, U. S. Comp. Stat. 1901, p. 575), and (b) that the appeal prayed for and allowed was not from the judgment of January 4, 1909, "but was merely from the order overruling the motion for a new trial."

Two days after the execution of the contract, claimants presented to the government inspector of dredges a list of materials intended to be used by them in the construction of said barges, but upon examination of said list it was found by said inspector of dredges that the dredges which the claimants proposed to construct were different from those described in circular letter and specifications 310-C, set forth in the petition, the principal component parts or members being reduced in weight, size, and power of resistance, and thereupon the same was disapproved by the officers of the government. Demand was thereupon made The motion is without merit. The generthat the claimants should adhere to the orig- al rule governing the subject of prosecuting inal specifications, which they refused to error or taking appeals from final judgdo, and, as a result, the United States abro-ments or decrees is, we think, applicable gated the contract.

Soon afterwards this suit was commenced. By the petition judgment for $30,000 was demanded as the "gains and profits which claimants would have made had they constructed the barges in accordance with the contract, as the terms of that instrument were construed by the contracting firm." The court of claims, as already stated, gave judgment against the United States for the sum of $10,000. There is no statement in the findings as to the loss sustained by the claimants. Evidently, however, the conclusion to award the sum stated was based upon the hypothesis mentioned in the closing paragraph of the opinion of the court below, reading as follows:

to judgments or decrees of the court of claims, and that rule treats a judgment or decree properly entered in the cause as not final for the purposes of appeal until a motion for a new trial or a petition for rehearing, as the case may be, when entertained by the court, has been disposed of; and the time for appeal begins to run from the date of such disposition. Kingman & Co. v. Western Mfg. Co. 170 U. S. 675, 680, 681, 42 L. ed. 1192, 1194, 18 Sup. Ct. Rep. 786. It is, we think, also manifest that the appeal was taken upon the hypothesis just stated, that the judgment entered did not become a final judgment for the purposes of appeal until the motion for a new trial had been disposed of. Texas & P. R. Co. v. Murphy, 111 U. S. 488, 28 L. ed. 492, 4 Sup. Ct. Rep. 497.

"In consideration of all of the facts in the case, and in view of the difference between the cost of doing certain work and Coming to the merits. The claimant in what claimants were to receive for it, mak-effect reiterates in the argument at bar the

32 S. C.-22.

*539

541

position taken by the court below in the opinions by it rendered, reported in 43 Ct. Cl. 469 and 44 Ct. Cl. 127. We shall therefore dispose of the case by reviewing the opinions of the court below.

gated, it inevitably follows that the alleged contract should have been held void for uncertainty.

It is, we think, in reason, impossible to construe the "modifications" referred to in the first article of the contract as having relation to the dimensions, etc., of the material so specifically described in the portions of the specifications embraced under the heading "Framing," since in that event a clear inconsistency would arise between the terms of that article and the terms of the specifications, also constituting part of the contract. And although this conclusion is, we think, so certain as to require no additional demonstration than the mere consideration of the terms of the two provisions, its conclusiveness is an addition convincingly shown by an analysis of the contract as a whole. The provision of article 3 in regard to the right of the government at any time during the progress of the work on the barges to inspect all the material furnished clearly imports that the contract had precisely settled the character of such material. So also does the provision in the same article in regard to final inspection, wherein it is provided: "Such inspection being for the purpose of determining whether the same, or either of them, meet the requirements set forth in the letters, specifications, and blue prints mentioned in article 1 hereof, and all of said inspections, whether preliminary or final, the party of the first part, by its duly authorized agent, shall have the right to reject any and all material used, or to be

In the opinion delivered upon the original hearing it was observed that "the litigation in this case resulted from what seems to have been an apparent misunderstanding by the agents of the defendants, as to certain changes in the terms of an original advertisement for bids for the construction of the said six steel dump barges of a specified size, strength, and weight," etc. It was, however, held that the contract was clear and unambiguous in terms, and that the evidence "revealed a degree of negligence on the part of the agents of the defendants from which they could not be allowed to extricate themselves by the abrogation of a duly executed contract in order to shift from themselves responsibility." The claimants, it was said, in their second bid, made part of the contract, had in detail specifically set forth the strength, weight, and measurement of the barges, and that "the only difference in the barges which the claimant proposed in its contract to construct under its bid was a difference in weight of framing and plates from those contained in the advertisement of the defendant's circular No. 310-C." The claimants, however, it was further observed, had called the attention of the defendant to the great difference between its then bid and the prior bid, and before the execution of the contract had noted on the blue print submitted by them and attached to the con-used, in the construction of said barges, tract "the net weight of the barges," and stated that "this weight was to be distributed in such manner as the defendants might instruct." The printed specifications, it was held, although made part of the contract, could not govern, since the letter oftioned." Again, prominence is given in claimants of July 27 and the blue print would have to be entirely ignored. It was also said that the materials proposed to be used by the claimants in the construction of the barges, although "reduced in weight, size, and power of resistance" from those prescribed by the specifications, did not constitute "a substitution of different strength and material for those provided in the specifications of the defendant as to the manner of constructing the barges, but was "rather a modification thereof."

or either of them, or in the workmanship thereon, when, in the judgment of the party of the first part, by its duly authorized agent, the same or any part thereof does not conform to the requirements above men

article 8 to the fact that, in the construc-
tion of the barges, the specifications are to
be given effect, the provision being that
"the barges herein contracted for shall be
completed in accordance with the* specifi-
cations, letter, and blue print annexed here-
to and made a part hereof.
" So,
also, in article 9, payment is to be made
only when the barges have been constructed
and delivered “in accordance with the terms
of this contract and the papers attached
hereto," of which papers the specifications
formed a part. Article 12 also clearly ne-

We have, however, reached the conclusion, as well from the fact that the specifica-gates the conception that it could have been tions were expressly made part of the con- intended by the parties that material parts tract as from various provisions of the con- of the specifications should be treated as tract which we have excerpted, that it can- not forming a portion of the contract, alnot in reason be held that the specifica- though declared by its terms to be a part tions must be ignored, and as they cannot, thereof, since the binding efficacy of the therefore, be treated as having been abro-specifications as to material is therein em.

(223 U. 8. 639.)

PANY et al., Petitioners.

APPEAL AND ERROR (8 73*)—CONTEMPT. ing suit in equity guilty of contempt of its A judgment finding defendants in a pendauthority in violating an interlocutory injunction previously granted in a suit for the benefit of the complainant, and ordering the payment of specified fines, three fourths of which when paid should go to the complainant "as compensation in part for the expenses incurred in prosecuting these contempt proceedings," is punitive instead of remedial, and reviewable on writ of error without awaiting a final decree in the suit in equity.

phasized. The article, in substance, provid- | RE MERCHANTS' STOCK & GRAIN COMed that no change or modification "involving an alteration in the specifications as to character, quantity, and quality, whether of labor or material, as would either increase or diminish the cost of the work," should be made unless "agreed upon in writing by the contracting parties, the agree ment setting forth fully the reasons for such change, and giving clearly the quan tities and price both of material and labor thus substituted for those specified in the original contract," etc. Manifestly, this article was drawn upon the conception, not that the contract did not, but that it did specifically, provide as to what material should be furnished for the work, and no other source could be resorted to for light as to the material contracted to be supplied than the specifications which it is now urged ought by construction to be removed from the contract.

Thus viewing the contract as a whole and

determining that the specifications, so far
as the "framing" schedule is concerned,
should have been treated as unaffected by
the provisions of article 1, it is evident that
there was a conflict so irreconcilable between
essential provisions of the assumed contract
as to render it impossible to enforce it as
an agreement between the parties. This
result of the absolutely antagonistic and de-
structive character of essential provisions
of the contract, one upon the other, can only
be escaped by indulging in one of two hy-
potheses; either that the terms of the adver-
tisement and specifications as incorporated
in the assumed contract overshadowed and
virtually destroyed the proposals result-
ing from the bid of the claimant, which also
was incorporated in the contract, or, con-
versely, that the proposals which the bid
embraced had the effect of setting at naught
the provisions of the specifications. But
if the first assumption were indulged in,
it would clearly result that there was
no right to recover, since that right is based
upon the theory that the specifications are
not binding and need not be complied with;
and if the second were indulged, the same
result would follow, since it would then
come to pass that the contract was so ir-
responsive to and destructive of the adver-
tised proposals as to nullify them, and
therefore cause it to result that the
tract was one made without the competitive
bidding which was necessary to give it
validity.

con

Under the circumstances, therefore, the court erred in treating the contract as a valid agreement, and in awarding judgment against the United States. Judgment reversed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 8 402-408, 412, 413, 415; Dec. Dig. § 73.]

[No. 10, Original.]

Submitted December 11, 1911. Decided
March 4, 1912.

PETITION for a writ of mandamus to re-
quire the Circuit Court of Appeals for
the Eighth Circuit to reinstate and take
jurisdiction of a writ of error dismissed by

it. Granted.

The facts are stated in the opinion. Messrs. Chester H. Krum and Henry S. Priest for petitioners.

Mr. Henry S. Robbins for respondents.

*Mr. Justice Van Devanter delivered the

opinion of the court:

This is a petition for a writ of mandamus commanding the circuit court of appeals for the eighth circuit to reinstate and take jurisdiction of a writ of error dismissed by it. The facts are these: During the pendency, in a circuit court of the United States, of a suit in equity to which the petitioners were parties defendant, they were charged by the complainant with having wilfully violated an interlocutory injunction theretofore granted in the suit at the instance and for the benefit of the complainant, and at the hearing upon that complaint were by the court adjudged guilty of contempt of its authority, and ordered unconditionally to pay into its registry, within five days, fines of $1,000, $2,000, and $500, respectively, each fine, when paid, to go three fourths to the complainant, “as compensation in part for the expenses incurred in prosecuting these contempt proceedings," and one fourth to the United States. With the purpose of securing a review of the order, the petitioners sued out a writ of error from the circuit court of appeals, and when the writ came on for hearing, that court dismissed it, upon the ground that the order, rightly considered, was remedial, not punitive, and

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

*640