U.S. Supreme Court
Clark v. United States, 73 U.S. 6 Wall. 543 543 (1867)
Clark v. United States
73 U.S. (6 Wall.) 543
1. Where a party who, by contract, has a right to have and takes security to have work finished by a certain day -- no penalty nor any right to terminate to contract for noncompletion being reserved -- permits the other side, after breach, to go on in an effort to complete the contract, he has no right to compel him to complete it in a manner which necessarily involves him in loss.
2. Where one party agrees to build an embankment for a certain sum per cubic yard at such place as he shall be directed by another, and the place selected by this other is such that there is a natural settling of the batture or foundation while the embankment is building, and a consequent waste and shrinkage of the embankment, any system of measurement which does not allow for the embankment which supplies the place of the settling is not a correct one.
The case was thus:
Clark entered into a contract with the United States to furnish all the material and make 221,000 cubic yards of embankment at the Navy Yard at Memphis, Tennessee, the embankment to be made in such manner and places as should be directed by the engineer and finished on or before the 15th of July, 1847. The United States engaged that for the materials and embankment made &c., according to the contract, there should be paid, on account of all bills presented for the aforesaid materials and work delivered and executed, "eighteen cents for every cubic yard." Ten percent was to be withheld from the amount of all payments as collateral security, and a bond given to secure performance.
Clark having brought suit in the Court of Claims to recover a balance which he asserted to be due on this contract, that court found:
"1. That he built 128,913.55 yards of the embankment, for which he had been paid."
"2. That the system of measurements pursued by the officers of the United States, and by which the said quantity of yards was computed, consisted in measuring from a fixed base monthly, and that the claimant at the time objected to the system, contending
that he should be paid for the quantity of earth actually deposited by him on the embankment."
"3. That there was a waste and shrinkage of the embankment while building, and a natural settling of the batture on which the embankment was built, and that the loss occasioned thereby necessarily was borne by the claimant under the system of measurements adopted."
"4. That this system was the one customarily used on the public works of the government, and that there was no competent evidence offered to show a contrary custom."
"5. That the officers of the government interfered with the claimant in the execution of his work, compelling him to dump loose earth where it was exposed to the direct currents of the river, and that they also used the embankment as a roadway, to the loss and injury of the claimant, but that all of such acts of which there was sufficient evidence, occurred subsequent to the 15th day of July, 1847, and when the claimant was in default in not having performed his said agreement and completed the said embankment."
And the court decided:
"That the contract was entire and not severable, and that by the terms thereof the claimant could only recover for the embankment completed and not for the quantity of earth deposited by him therein, and that as a necessary and legal consequence thereof, all loss by settling, shrinkage and the action of the currents of the river was to be borne by the claimant and not by the United States."
"That the claimant was not entitled to recover for the interference of the defendants or their officers subsequent to the 15th July, 1847, the time when the work under his said contract was to have been completed by the terms of his agreement."
From this decision Clark appealed. chanrobles.com-red