This is an appeal from a judgment of the Court of Claims, sustaining a general demurrer to and dismissing the amended petition.
The allegations of this amended petition, admitted by the demurrer and essential to be considered, are:
The appellant, a corporation organized under the laws of New York, and engaged in the general building and construction business, entered into a written contract with the United States for the construction of a post office and courthouse building in New Orleans, dated September 30, 1909, for which it was to be paid $817,000, but its bond for performance was not approved until 9 days later, on October 9; on the day after the contract was signed the United States 'ordered and directed' appellant to delay ordering limestone (as specified in the contract) for the exterior of the street fronts of the building 'for the reason, as stated, that a change was contemplated in said exterior face stonework, which would require an additional appropriation by Congress'; the appellant assented to a delay of two weeks only, but, although protesting that further delay would result in its damage, it refrained from purchasing limestone until August 19, 1910, when, the required appropriation by Congress having been obtained, a supplemental agreement was entered into by the parties to the contract, by which marble was substituted for limestone for the street fronts of the building, the compensation of the appellant was increased $210,500, and the time for completion of the building was extended from April 1, 1911, to February 5, 1912; during this delay the contractor proceeded with other work under the contract, and prior to August 19, 1910, it had completed all the required excavation, foundation, and structural steel work; after the 'modification and addition of August 19, 1910, to the contract work' the appellant so proceeded with the performance of the contract that by February 1, 1912, the building was substantially completed except the interior partitions, and thereupon the United States, again over the protest of appellant, 'ordered and directed' a delay, which continued to August 24, 1912, until congressional legislation was obtained authorizing the parcel post, whereupon the plans for the interior arrangements of the building were adapted to that service and the building was completed.
The claim is wholly for damages occasioned by the two delays thus described, and the question for decision is whether the terms of the contract authorized the government to require such delays without becoming liable to the contractor for damages which may have been caused to it thereby.
The contract involved contains this provision:
'It is further covenanted and agreed that the United States shall have the right of suspending the whole or any part of the work herein contracted to be done, whenever in the opinion of the architects of the building, or of the supervising architect, it may be necessary for the purpose or advantage of the work, and upon such occasion or occasions the contractor shall, without expense to the United States, properly cover over, secure and protect such of the work as may be liable to sustain injury from the weather, or otherwise, and for all such suspensions the contractor shall be allowed one day additional to the time herein stated for each and every day of such delay so caused in the completion of the work, the same to be ascertained by the supervising architect; and a similar allowance of extra time will be made for such other delays as the supervising architect may find to have been caused by the United States, provided that a written claim therefor is presented by the contractor within ten days of the occurrence of such delays; provided, further, that no claim shall be made or allowed to the contractor for any damages which may arise out of any delay caused by the United States.'
The contract further declares that the contractor—
'will make any omissions from, additions to or changes in the work or material herein provided for whenever required by said first party * * * and that no claim for damages on account of such changes or for anticipated profits shall be made or allowed.'