dissenting:
I cannot agree with the majority opinion.
We are dealing with a lump-sum contract. The three cases cited in the majority opinion as upholding the custom of the Government in dealing with contracts of this nature are not apposite because the contracts in those cases were not lump-sum contracts. They specifically provided for payment of rock excavation as an extra, not to be included in the amount bid. The contract under consideration provided for payment for “extra rock excavation” which plainly showed that some rock excavation was included in the amount in the contract. Double payment for the same work was not intended and, in my judgment, cannot be allowed. To permit recovery is allowance of double payment.
In July 1938 plaintiff entered into a contract with the Department of the Interior, National Park Service, to construct an apartment building, a powerhouse, pump house, interceptor building, and a radio compass station complete with plumbing, heating and electrical systems, a complete water supply system and certain electric service lines, for a lump sum of $123,160.00.
These buildings were to comprise a Naval Radio Station on Big Moose Island at the southern tip of Schoodic Peninsula, on the coast of Maine. The coastline of this island consisted mostly of rock formation. Outcroppings of ledge rock are common to Big Moose Island and fragments of ledge rock were exposed on the surface of the ground at and near the radio station site.
The contract required that plaintiff visit the site and make its own examination before bidding. The site was visited by the plaintiff and it found shallow pits, which defendant had dug, appearing to be test holes but plaintiff did not find any ledge rock disclosed therein. The drawings did not indicate whether or not there was ledge rock. The specifications clearly and distinctly notified plaintiff that there was certain information given on the drawings, specifications, and accompanying plans, which had been obtained by the Government and which was believed to be reasonably correct but that the Government did not warrant its complete*469ness or accuracy and the prospective bidders were warned to make their own examinations.
This was a lump-sum contract containing, under article 41 of the specifications, a provision requiring plaintiff to submit specific prices which it would charge for the removal of extra earth excavation and rock excavation.
Paragraph (b) of Article 41 of the specifications above provided:
Such prices will be used as a basis for correlation with articles 3 and 4 of the Standard Government Form of Contract.
Article 3 provides for an equitable adjustment where changes are made and for the contract to be modified accordingly.
Article 4 provides for “changed conditions.”
The specifications for the excavation for the apartment building provided:
9. Eemove all vegetable matter (topsoil) from the area occupied by the building and stack at the site where ’ directed.
10. Remove all rook to depths as shown, in all cases at least 6 inches below the existing grade of ledge rock, to provide level, clean beds to support the foundations, and 5 inches below finished floors of the Basement.
11. In case the actual conditions of rock differ from those shown on the drawings, an adjustment in the contract price will be made, based on a unit price basis to be submitted with the estimate. [Italics mine.]
The specifications with respect to the powerhouse, pump house, and interceptor building provided for excavation “to the required depths, as shown on drawings,” and for the radio compass station, “remove the topsoil and excavate the rock to dimensions and depth as shown.”
The difference between these two expressions is simply that with respect to the powerhouse, pump house, and interceptor building the depths shown are those on the drawings; with respect to the apartment house and the radio station, the words “on the drawings” are lacking.
The only place that the depths could be shown would be on the drawings and the drawings provided that the excava*470tions to be made by the plaintiff under its lump-sum contract were from 6 inches to 5% feet below the natural surface of the ground for the buildings and from 3 feet to 14 feet for certain sewer trenches.
. There was no test pit data nor was there on the drawings any reflection of the subsurface conditions or the material which existed below the ground.
During the course of the work in August 1933, plaintiff encountered ledge rock in excavating the foundations of the various buildings and requested of the contracting officer in writing extra pay for this work. In September the contracting officer advised the plaintiff that the specifications required him to “remove all rock to depths as shown” and “in all cases at least six inches below the existing grade of the ledge rock.” Plaintiff was advised that, if the excavations had to be made to a greater depth than shown on the drawings, an adjustment would be made according to the provisions of Article 11 of the specifications.
Practically all of the total quantity of rock herein involved was removed prior to February 3, 1934, and on March 1934 an extra work order was issued by the defendant allowing payment for extra work in accordance with Articles 27 and 29 of the specifications at the unit rate of $7.00 per cubic yard, an estimated total of approximately $3,570.00. This extra work order was approved by the Assistant Secretary of the Interior. Defendant’s survey of the rock excavation on November 27,1934, showed a total of 507.9 cubic yards.
Plaintiff was paid the sum of $3,555.30 by the disbursing officer and, when the contract was completed and the final settlement applied for to the General Accounting Office, the Comptroller General deducted the amount which had been paid under the Extra Work Order on the ground that the plaintiff had a lump-sum contract and no work had been done which was not included in the amount of plaintiff’s bid; and that the Extra Work Order was for the identical work which was required by plaintiff’s contract.
There is nothing to show in the agreed facts that the plaintiff excavated below depths shown on the drawings.
The dispute in this case is not on any question of fact but on the validity and effect of the so-called “Extra Work *471Order” issued by the contracting officer. Defendant claims that it is invalid. This is the sole issue.
The only difference between the specifications and the Extra Work Order is that the specifications provide “remove all rock to depths as shown” and the Extra Work Order provides “remove all rock to depths as shown on drawings.”
The only place that the depths are shown is on the drawings and when plaintiff made its bid it had the drawings and knew, or should have known, that the drawings required that excavation should be at least six inches to 5% feet below the natural surface of the ground for the buildings and from 3 feet to 14 feet for certain sewer trenches. The adding of the words in the Extra Work Order “on the drawings” did not clarify or make more plain the specifications which provided that the excavations should be made “as shown.”
Any contractor of experience or engineer of even limited experience would have naturally gone to the drawings to ascertain the depths to which the excavations would have to be made.
Therefore, there was no difference between the Extra Work Order and the contract specifications as to the work involved. The work described was identical.
Article 11 of the Specifications, quoted in Finding No. 7, providing that in case the actual conditions of rock were different from those shown on the drawings the contract would be adjusted, is not important because the drawings did not show the rock-conditions. The Government made no representations as to subsurface conditions. It specifically required that the plaintiff should make its own examination and notified it that the data which the Government possessed was not, and should not be taken as, a warranty of the subsurface conditions. There was no agreement as to whether they would encounter earth or rock except in the specifications, where under Article 10 there is mention of “existing grade of ledge rock,” and the existing grade was to be ascertained by the plaintiff in his own examination of the site.
In my opinion, insofar as Extra Work Order No. 2 is concerned, it attempts to increase the contract price, and is plainly without consideration, for it was a duplication of the *472work which the plaintiff was required to do under the contract and included in the lump-sum bid. To allow payment on this Extra Work Order would constitute double payment for the same work performed by the contractor.
Whether or not it was a mistake to issue this Extra Work Order, it could not create a liability. In the case of Bausch & Lomb Optical Co. v. United States, 78 C. Cls. 584, 607, the court said:
In these circumstances the contract of March 8, 1919, was one the contracting officer, Major Hawkins, had no authority to make and the United States was not bound by it. William Tod Wilcox v. United States, 56 C. Cls. 224. If the plaintiff’s claim against the War Department for one-fourth part of the cost of the extra guards was based on a contract, express or implied, the contract of March 8,1919, added nothing to plaintiff’s legal rights. If the claim was not based on such a contract it was invalid and unenforcible against the United States and could not be vitalized into a legal claim by a subsequent contract. Agénts and officers of the Government have no authority to give away the money or property of the United States, either directly or under the guise of a contract that obligates the Government to pay a claim not otherwise enforcible against it.
In my judgment the petition should be dismissed.
JoNes-, Judge, took no part in the decision of this case.