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decided: November 30, 1908.



Author: White

[ 211 U.S. Page 189]

 MR. JUSTICE WHITE delivered the opinion of the court.

This appeal is prosecuted to obtain the reversal of a judgment rejecting a claim of the Phoenix Bridge Company for $6,958.14. The bridge company based its right to recover upon the averment that, during the performance of a contract entered into by it with the United States for the partial reconstruction and remodelling of a bridge belonging to the United States, spanning the Mississippi River between Davenport, Iowa, and Rock Island, Illinois, the company had, under the orders of the United States officer in charge of the work, expended the amount claimed for work not specified in the contract, and for the value of which therefore the United States came under an obligation to respond. Not following the precise order in which the court below recited the facts by it found, we reproduce from such findings the statements made therein of such facts as are in anywise pertinent to the questions which we think the controversy involves.

In July, 1895, the Government of the United States issued a circular advertisement, signed by A.R. Buffington, Colonel of Ordnance, U.S. Army, inviting proposals for the construction of a new superstructure and making alterations in the abutments and piers of the Government bridge over the Mississippi River connecting Davenport, Iowa, and Rock Island, Illinois. The bridge company in answer to this advertisement submitted a formal proposition, and in addition addressed a letter to Colonel Buffington, dated August 10, 1895, which, among other things, contained the following:

[ 211 U.S. Page 190]

     "Col. A.R. Buffington, Col. Ord., Commanding Rock Island Arsenal, Rock Island, Ill.

"DEAR SIR: Appreciating the importance of finishing the proposed new bridge at Rock Island at the earliest possible date we have been making a very careful study of the best method of removing the present structure and erecting the new spans, and have finally decided upon a plan which will enable us to work on the structure regardless of floods and ice in the river, and thereby give you the work at least five or six months before the time mentioned in your letter of July 27th. Our plan of erection is shown in detail on prints 1 and 2 sent herewith.

"The erection of the drawspan of course must be done during the closing of navigation; between the 20th of November and the 15th of March of the following year, and this span will be removed in the ordinary manner, by placing false work in the river to support temporarily the old structure and the railway traffic during the removal of the present span, and for supporting the new work during erection, the various parts being put in position by the ordinary overhead traveler shown on plan 2. This particular part of the erection does not need any special explanation. As we have made a specialty of drawspan work and have every facility in our shops for building such a span, we have named a date of completion for the new drawspan of March 1st, 1896. The first small span, 'E,' we will erect in advance of the drawspan, and will have the same in position on Feb. 1st, 1896. We erect this small span in advance of the draw that we may bring these two spans up to the new grade together."

In August, 1895, the bridge company was notified of the acceptance of its proposition, such notification stating, however, that decision upon the character of the stone to be used and the form of the solid steel railroad floor was reserved. On October 2, 1895, the contract for the performance of the work was executed.

At the Rock Island end of the bridge there was a stationary

[ 211 U.S. Page 191]

     span, and next to that there was a drawspan, and beyond that there were several more stationary spans, extending to the Iowa end of the bridge.

The plan adopted for the erection of the bridge contemplated the substitution of new material for the old superstructure without interruption to the railroad traffic over the bridge, and the scheme adopted was to carry such traffic upon false work, consisting of timbers extending from the bed of the stream to the old superstructure, for the purpose of supporting the tracks for such traffic. This false work under the drawspan made a barrier across that portion of the stream, which would have rendered navigation impossible in case such false work was not removed prior to the opening of navigation.

The drawspan was intended for the convenience of navigation upon the river, and said draw was the only means that vessels and other craft on the river had of going from one side of the bridge to the other.

The specifications as originally prepared called for the erection of the drawspan by January 1, 1896, and the completion of the bridge on November 1, 1896. Subsequently the specifications were modified so as to fix March 1, 1896, as the date for the erection of the drawspan, ...

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