The appellee's testator contracted with the United States in
1863 to construct war vessels. Owing to changes in plan and
additional work required by the government, the time of the
completion of the work was prolonged over a year, during which
prices for labor and materials greatly advanced. Full payment of
the contract price was made, and also of an additional sum for
changes and extra work. In 1890, Congress authorized the
contractor's executor to bring suit in the Court of Claims for
still further compensation. The act authorizing it contained this
proviso:
"Provided, however, that the investigation of said claim shall
be made upon the following basis: the said court shall ascertain
the additional cost which was necessarily incurred by the
contractors for building the light-draught monitors
Squando and
Nauset and the side-wheel steamer
Ashuelot in the completion of the same, by reason of any
changes or alterations in the plans and specifications required and
delays in the prosecution of the work, provided that such
additional cost in completing the same, and such changes or
alterations in the plans and specifications required and delays in
the prosecution of the work were occasioned by the government of
the United States, but no allowance for any advance in the price of
labor or material shall be considered unless such advance occurred
during the prolonged term for completing the work rendered
necessary by delay resulting from the action of the government
aforesaid, and then only when such advance could not have been
avoided by the exercise of ordinary prudence and diligence on the
part of the contractors."
Held that the petitioner's right of recovery for
advance in prices was limited to the prolonged term, and the Court
of Claims could not consider advances which took place during the
term named in the contract.
If a party neither pleads nor proves what has been decided by a
court of competent jurisdiction in some other case between himself
and his antagonist, he cannot insist upon the benefit of
res
judicata, and this although such prior judgment may have been
rendered by the same court.
On August 22, 1863, Donald McKay contracted with the United
States for the construction of the gunboat
Ashuelot, the
contract to be completed in eleven months from that date. On
account of changes and additional work required by the government,
and other details for which it was responsible,
Page 172 U. S. 322
the completion of the vessel was delayed from July 22, 1864, to
November 29, 1865, a period of sixteen months and seven days beyond
the contract term. Full payment of the contract price was made, and
also of an additional sum for changes and extra work. On August 30,
1890, Congress passed an act, 26 Stat. 1247, c. 853, submitting to
the Court of Claims the claims of the executors of Donald McKay for
still further compensation. Such act contains this proviso:
"Provided, however, that the investigation of said claim shall
be made upon the following basis: the said court shall ascertain
the additional cost which was necessarily incurred by the
contractors for building the light-draught monitors
Squando and Nauset and the side-wheel steamer
Ashuelot in the completion of the same, by reason of any
changes or alterations in the plans and specifications required and
delays in the prosecution of the work, provided that such
additional cost in completing the same, and such changes or
alterations in the plans and specifications required, and delays in
the prosecution of the work were occasioned by the government of
the United States; but no allowance for any advance in the price of
labor or material shall be considered unless such advance occurred
during the prolonged term for completing the work rendered
necessary by delay resulting from the action of the government
aforesaid, and then only when such advance could not have been
avoided by the exercise of ordinary prudence and diligence on the
part of the contractors."
Under this act, this suit was brought. Upon the hearing, the
Court of Claims, in addition to the facts of the contract,
performance, time of completion, and payment, found that:
"During the contract period of eleven months, and to some extent
during the succeeding sixteen months and seven days, the government
made frequent changes and alterations in the construction of the
vessel, and delayed in furnishing to the contractor the plans and
specifications therefor, by reason of which changes and delay in
furnishing plans and specifications the contractor, without any
fault or lack of diligence on his part, could not anticipate the
labor, nor could he know the
Page 172 U. S. 323
kind, quality, or dimensions of material which would be made
necessary to be used in complying with said changes."
"While the work was so delayed during and within the period of
the contract as aforesaid, the price of labor and material greatly
increased, which increased price thereafter continued without
material change until the completion of the vessel, sixteen months
and seven days subsequent to the expiration of the contract period.
The increased cost to the contractor as aforesaid was by reason of
the delays and inaction of the government, and without any fault on
his part."
And rendered judgment in favor of the petitioner for, among
other things, the increased cost of the labor and material
furnished by him, consisting of two items of $12,608.71 and
$14,815.66. From this judgment the United States appealed to this
Court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
No question is made except as to so much of the judgment as is
for the increased cost of labor and material. The allowance for
that is challenged under the clause of the act of 1890,
"but no allowance for any advance in the price of labor or
material shall be considered unless such advance occurred during
the prolonged term for completing the work rendered necessary by
delay resulting from the action of the government aforesaid."
The finding is that there was an advance in the price of labor
and material during the contract term of eleven months, and that
such increased price continued thereafter without material change
during the sixteen months and seven days between the close of the
contract term and the actual completion of the vessel. Of course,
but for the Act of August 30, 1890, no action could be maintained
against the
Page 172 U. S. 324
government. The statute of limitations would have been a
complete defense. The petitioner's right, therefore, is measured
not by equitable considerations, but by the language of that
statute. Beyond that the court may not go. If equitably the
petitioner is entitled to more compensation, it must be sought by
direct appropriation or further legislation of Congress.
It seems to us clear that the Court of Claims was not permitted
to consider any advance in the price of labor or material during
the term named in the contract, to-wit, eleven months. Evidently
Congress thought that the contractor took the risk of such advance
when he signed the contract. The contract term is one thing, the
prolonged term another. If Congress intended to allow for all
advances in the price of labor or material at any time between the
execution of the contract and the completion of the work, the
proviso quoted was unnecessary. The fact that the proviso
discriminates as to the term an advance during which entitles to
allowance is conclusive upon the question. There are no terms to be
distinguished except the contract term of eleven months, and the
subsequent prolonged term of sixteen months and seven days. Of
course no change in the price of labor and material after the work
was finished could have been considered, and if Congress intended
to either permit or forbid an allowance for any advance in the
price of labor and material during the entire progress of the work,
it was easy to have said so. That it qualified such a general
provision by limiting it to a particular term, and that term one
created by the action of the government, excludes all doubt as to
the meaning of the words "prolonged term." Obviously the petitioner
himself understood that they refer to the period commencing at the
time fixed in the contract for the completion of the work, for in
his petition it is said that
"during the term specified by the contract and also through the
prolonged term, there was a continuous rise in the prices of all
labor and material entering into said vessel and machinery."
He did not then doubt the meaning of the statute, and the only
difficulty is that, according to the findings of the Court of
Claims, his proof did
Page 172 U. S. 325
not establish all his allegations. We deem it unnecessary to
follow the investigation made by counsel of the various proceedings
before Congress to see if there cannot be disclosed some
unexpressed intent on its part to authorize payment for every
advance in the cost of labor and material. The language of the act
is too plain to justify such investigation.
One other matter requires consideration: attached to the record
certified to us by the Court of Claims is a stipulation signed by
the counsel for both parties, which stipulation commences in these
words:
"It is hereby agreed by and between the parties to this cause
that the following facts appear in the records of the Court of
Claims, and that they may be added to the record in this cause, and
be treated upon the hearing with the same effect as if they had
been included in the facts found by the Court of Claims."
This stipulation seeks to introduce into the record of this case
the proceedings of the Court of Claims in another suit brought
under the same act of 1890 by the same petitioner to recover
additional compensation for the construction of a vessel other than
the one described in the present suit, and this notwithstanding
that this Court is, at least in other than equity cases, limited to
a consideration of the facts found by the Court of Claims. This
additional record contains the findings of facts in that case, the
conclusion and judgment, which was in favor of the petitioner, and
states that such judgment was not appealed from by either party.
The tenth finding of fact reads as follows:
"The cost to the contractor because of the enhanced price of
labor and material which occurred during the prolonged term for
completing the work is $61,571.67. Said prolonged term resulted
from the delays of the defendants. The exercise of ordinary
prudence and diligence on the part of the contractor would not have
avoided said enhanced price of material and labor."
The final clause in this stipulation of counsel seeks to explain
this tenth finding in this way:
"The $61,571.67 set forth in the tenth of the final findings
Page 172 U. S. 326
in the
Nauset case (
see tenth finding above)
was composed of $24,634, enhanced cost after February 10, 1864, the
expiration of the contract term for the construction of the
Nauset, and the remainder, $36,937.67, was enhanced cost
of labor and material furnished by Donald McKay within the contract
term (June 10, 1863, to February 10, 1864), but the court did not
separate the allowance in its findings."
Upon this the doctrine of
res judicata is invoked to
uphold the judgment. A sufficient answer is that neither by
pleadings nor evidence were the proceedings in this other case
brought before the Court of Claims in the present suit. If a party
neither pleads nor proves what has been decided by a court of
competent jurisdiction in some other case between himself and his
antagonist, he cannot insist upon the benefit of
res
judicata, and this although such prior judgment may have been
rendered by the same court.
Southern Pacific Railroad v. United
States, 168 U. S. 1,
suggests nothing contrary to this, for there the prior judgment was
offered in evidence, and the only question considered and decided
by this Court was the effect of an alleged failure to fully plead
res judicata.
But further, not only did the petitioner fail to either plead or
prove the former judgment, but also the record, when produced,
disclosed that the court found that the advance in price was during
the prolonged term. Counsel propose by stipulation to change that
finding so as to make it show that part of the sum named therein
was for the advance during the contract term, and the other part
for the advance during the prolonged term. In other words, counsel
seek, without pleading or proof, to use a prior judgment as
res
judicata, and also by stipulation to change the findings of
fact which were made in that case. It is clear this cannot be
done.
The judgment of the Court of Claims will be reversed and the
case remanded to that court with directions to enter a judgment for
the claimant, less the two amounts of $12,608.71 and $14,815.66,
the increased cost of labor and material.
