Argument for Defendants in Error.

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risk, that discharges the surety. Victor Co. v. Scheffler, 61 California, 532.

The special language in United States v. Gleason, 175 U. S. 588, 603, distinguishes it from this case; see Davis v. La Crosse Assn., 99 N W. Rep. 351; Curry v. Olmstead, 59 Atl. Rep. 392; Stubbings v. World's Col. Exp. Co., 110 Ill. App. 210; Phoenix Bridge Co. v. United States, 38 Ct. Cl. 492.

The courts construe very strictly language claimed to be a consent in advance by the sureties to changes in the contract. Brandt on Suretyship, 3d ed., § 423; Miller v. Spain, 41 Oh. St. 376; United States v. Freel, 186 U. S. 309; Plunket v. Davis Sewing Machine Co., 36 Atl. Rep. 115; Lodge v. Kennedy, 73 N. W. Rep. 523.

In the cases relied on by appellant there was a distinct provision that the owner should have power to alter the plans and specifications, and that such alterations should not in any manner invalidate the contract. In none of the cases was there a provision, as there is in this case, that the changes should be made in writing and signed by the parties, where the sureties are such parties: such were the cases of Chester v. Leonard, 68 Connecticut, 495; Wehr v. St. Matthews Cong., 47 Maryland, 177; U. S. F. & G. Co. v. United States, 191 U. S. 416; Am. Sur. Co. v. San. Ant. Loan & Tr. Co., 98 S. W. Rep. 387; Reissaus v. White, 106 S. W. Rep. 607; Hayden v. Cook, 34 Nebraska, 670; 52 N. W. Rep. 165.

The United States, in so far as it contracts with private individuals, is subject to the same laws, and its contracts are to be construed as though made by private individuals. United States v. Boswick, 94 U. S. 66; Adle v. Metoyer, 1 La. Ann. 254.

The change of the time of performance amounted to a new contract on that point.

While part of the contract was yet to be performed, the parties by mutual agreement changed one of its terms

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Argument for Defendants in Error.

and substituted a new term on that point. See cases supra.

The original contract does not provide for extensions of time.

It is only where the original contract provides that one of the parties shall, not may, in certain cases make a change, or provides that no change made shall invalidate the contract, is the surety bound when the change is made. Such are the cases of Pascault v. Cochran, 34 Fed. Rep. 358; St. Louis Brewing Co. v. Hayes, 71 Fed. Rep. 110; Glass Co. v. Matthews, 89 Fed. Rep. 828; Mattingly v. Riley, 49 S. W. Rep. 799; Stevens v. Pendleton, 83 Michigan, 342; N. Y. Life Ins. Co. v. Loomis, 100 Wisconsin, 17; Stein v. Jones, 18 Ill. App. 543; Western Bldg. Co. v. Fitzmaurice, 7 Mo. App. 283; Standard Co. v. Stone, 35 N. Y. App. Div. 62; People's Lumber Co. v. Gilliard, 136 California, 55.

In every case on which the court below relied the contract contains a provision by which contractor binds himself to make change if desired. See Village v. Leonard, 68 Connecticut, 495; 37 Atl. Rep. 397; De Mattos v. Jordan, 15 Washington, 378; 46 Pac. Rep. 402; Northern Light Lodge v. Kennedy, 73 N. W. Rep. 524; Beers v. Wolf, 116 Missouri, 179; 22 S. W. Rep. 620; Hayden v. Cook, 34 Nebraska, 670; 52 N. W. Rep. 165.

The contract in the case at bar did not contemplate supplementary agreements extending the time for performance, within the meaning of the rule in these cases, nor within the meaning of any rule counsel has found. The liability of a surety is never to be extended by implication. Reese v. United States, 9 Wall. 14.

If the contract is construed so as to provide for changes as to time and other points, such changes could only be made by agreement signed by sureties. Beers v. Wolf, 22 S. W. Rep. 620, supra; Lodge v. Kennedy, 73 N. W. Rep. 524; Eldridge v. Fahr, 59 Mo. App. 44; Killoren v. Meehan, 55 Mo. App. 427, and other cases supra.

Argument for Defendants in Error.

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The contract was changed by the action of the Government in agreeing that no materials should be deposited on shore.

Very slight changes in the requirements of contracts have been held to release the sureties. United States v. Corwinne, Fed. Cas. No. 14,871; United States v. Tillotson, Fed. Cas. No. 16,524; United States v. Case, Fed. Cas. No. 14,743; Zeigler v. Hallahan, 131 Fed. Rep. 205. Cambridge Sav. Bk. v. Hyde, 131 Massachusetts, 77, does not apply.

Whenever it becomes the right of the owner to complete at expense of contractor it is not necessary that the strict letter of the contract be followed. In those cases, however, the work to be done was a certain specific construction and the changes were in details of the materials or methods to be used in the construction, and it was shown that the construction was actually substantially completed as contracted for. Where that is not the case, the surety is discharged; see Chesapeake Transit Co. v. Walker & Son, 158 Fed. Rep. 850; United States v. Corwinne, Fed. Cas. No. 14,871.

The United States, having annulled the contract without reservation of right to complete the work and charge the cost of completion to contract, such cost cannot be recovered as moneys expended.

When a contract proper and specifications attached thereto are in conflict, the contract proper, or signed portion of the whole, governs. Meyer v. Berlandi (Minn., 1893), 53 Minnesota, 59; Palladino v. New York, 10 N. Y. Supp. 66; Demarest v. Haide, 52 N. Y. Sup. Ct. 398.

Viewing the action as one for damages for breach of contract, the United States has failed to show amount of damages. 13 Cyc. 162, 192; 8 Am. & Eng. Encyc. of Law, 556. See also Insley v. Shepard, 31 Fed. Rep. 869; Goldboro v. Moffitt, 49 Fed. Rep. 273, reversed, 52 Fed. Rep. 560; Stillwell &c. Co. v. Phelps, 130 U. S. 520; Von

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Argument for Defendants in Error.

Dorn v. Mengedoht, 59 N. W. Rep. 800; Savage v. Glenn, 10 Oregon, 440; Anderson v. Nordstrum, 61 N. W. Rep. 1132.

The rule is not the difference between contract cost and the actual cost; but the difference between contract cost and the reasonable cost or necessary cost. This distinction is pointed out in State v. Ingram, 27 No. Car. (5 Ired.) 441; Cincinnati Ry. Co. v. Carthage, 35 Oh. St. 631; Fletcher v. Milburn Mfg. Co., 35 Mo. App. 321.

It has not been shown here whether or not the United States ever completed this work of construction. Chesapeake Transit Co. v. Walker & Son, 158 Fed. Rep. 850.

It cannot be said that because the accepted bid was the lowest obtainable by the advertisement made that it was reasonable for the completion of the work under the original contract, for it was not a bid to do the same or substantially the same work. Goldsboro v. Moffitt, 49 Fed. Rep. 213; New York v. Second Ave. Ry. Co., 55 Am. Rep. 839; Kidd v. McCormick, 83 N. Y. 391; Brown v. United States, 152 Fed. Rep. 964.

The contract with the New York Dredging Company was unenforcible against it for uncertainty and want of mutuality. 7 Am. & Eng. Encyc. of Law, 116; 9 Cyc. 248; Pulliam v. Schimpf, 19 So. Rep. 428; Davie v. Lumberman's Min. Co., 53 N. W. Rep. 625.

The United States is seeking to enforce a unilateral contract in which it is the promisee. One party to the contract cannot be liable in damages when the other is not. 7 A. & E. Encyc. of Law, 114; 9 Cyc. 327; Dorsey v. Packard, 12 How. 126.

An agreement is not binding on either party unless both are bound. In the case at bar the United States was not bound to anything whatever. Morrow v. Southern Express Co., 28 So. Rep. 998; Jordan v. Indianapolis Water Co., 61 N. E. Rep. 12; Vogel v. Pekoc, 42 N. E. Rep. 386; Crane v. Crane & Co., 105 Fed. Rep. 869.

There was no means whereby the burden on the VOL. CCXXII-30

Argument for Defendants in Error.

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Dredging Company could be ascertained at all, the quantity of dredging being left absolutely to be determined by United States. Harvester King Co. v. Mitchell Co., 89 Fed. Rep. 173; American Cotton Oil Co. v. Kirk, 68 Fed. Rep. 791; Dennie v. Slyfield, 117 Fed. Rep. 474.

The case at bar is easily distinguishable from cases cited in Crane v. Crane, 105 Fed. Rep. 869, where agreements to furnish such supplies as may be needed during a certain period for business or manufacture have been upheld.

In the case at bar the United States could vary the amount of work to be done to any extent, could vary the location of area to be dredged to any extent, and in fact, as is shown, decided to have performed only 149,000 cubic yards instead of one million, and claims that the contract is performed. Cold Blast Transp. Co. v. Kansas &c. Co., 114 Fed. Rep. 81.

The contract was void for uncertainty and want of mutuality.

The rule that where a contract on its face assumes to provide for all the work authorized by an appropriation, the contractor is bound to know the amount of the appropriation, Shipman v. United States, 18 Ct. Cl. 146, does not apply to this case.

It would be unconscionable to hold that United States could advertise for bids for a certain work of dredging approximately one million cubic yards, so as to form a deep water basin, thirty feet deep, on a marked area; accept a bid based on that amount of work; and then hold the contractor to a contract for dredging a very much smaller quantity at the same rate because the appropriation was not sufficient to pay for the work as originally planned, for which bid was submitted.

Plaintiff in error cannot now be heard on the question of the claim for liquidated damages urged in the Circuit Court, such claim having been disallowed by that court.