APPEAL FROM THE COURT OF CLAIMS.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Whether or not the United States is responsible in damages because of a refusal to permit the carrying out of an alleged contract made with a co-partnership, the Ellicott Machine Company, who are appellees, for the construction for the Isthmian Canal Company of six steel dump barges is the issue here required to be decided. From a judgment for ten thousand dollars entered in the Court of Claims, in favor of the Ellicott Machine Company, because of the refusal referred to, the United States took this appeal.
It will conduct to a clear understanding of the controversy to fully summarize the facts found below, and we proceed to do so.
After two unsuccessful attempts to procure satisfactory proposals for the construction and delivery of the six steel dump barges, the Isthmian Canal Commission, by advertisement and specifications, dated May 29, 1906, invited the proposals which culminated in the making of the alleged contract. One of the clauses of the advertisement reads as follows:
"Preliminary inspection will be made at the point of manufacture or purchase to determine whether the material meets the requirements set forth in the specifications and final inspection will be made at the point of delivery as above."
In the specifications, among other things, it was recited 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" free-board when loaded. They will be rectangular in plan, with rake at each end about 11" long. . . ."
As shown by an excerpt in the margin,*fn1 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, submitted herewith." The plan referred to, 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:
"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 ...