dissenting in part: I concur in the opinion allowing plaintiff compensation under the Special Act at contract rates (1) for excavation and concrete because of materials that caved in at the side of the tunnel wall and the lowering of the “B” line, (2) for dry packing certain areas of the caved-in space over the tunnel arch, and (3) for grouting such dry-packed space, but I cannot concur in the conclusion *519that the special jurisdictional act does not assume an obligation for and does not authorize the court to allow plaintiff compensation at the contract rate “for the work of excavating materials which caved in over the tunnel arch,” to the extent the proof shows the amount of such caved-in material.
Sec. 1 of the Special Act (56 Stat. 1122) confers jurisdiction to hear, determine, and render judgment upon the claims of Allen Pope against the United States, “as described and in the mammr set out in section 2 hereof.” [Italics supplied.]
Sec. 2 proceeds to describe the claims and states that the compensation determined to be allowable under the obligation assumed as to the claims mentioned shall be at contract rates.
A study of the language of sections 1 and 2 shows, I think, that Congress authorized and directed the court to hear and determine, on the basis of the evidence, and to allow at contract rates such compensation as should be determined, on the basis of quantity, on all four claims, as follows:
* * * namely, [at contract rates] for the excavation and concrete work found by the court [in the previous case] to have been performed by the said Pope in complying with certain orders of the contracting officer * * *; and [at contract rate] for the work of excavating materials which caved in over the tunnel arch, and [at contract rates] for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method as described by the court and based upon the volume of grout actually used, and the amount of grout to be as determined by the court’s previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing. [Italics supplied.]
It will be seen that the language of the act separates each claim by the provision “and for” and impliedly repeats as to each claim the provision “at contract rate.” The fact that the work of excavating the caved-in material and the work of dry packing and grouting the caved-in space over the tunnel arch were to some extent related items, because the dry pack and grout replaced some of the caved-in material, is not sufficient in view of the language of the act to warrant the *520exclusion of compensation for the work of excavating such materials. The character of the work on each item was different. Each item involved independent labor and separate expense, and it was not necessary for the act to mention the excavation work in order to provide compensation for dry packing and grouting. Since there was a separate contract rate for each of these three items, and since Congress knew this from plaintiff’s petition for relief, it would seem obvious that if Congress had not intended that the work of excavating the caved-in material be compensated for, as a separate item, it would not have mentioned that work at all. Since this item of excavation work was described as one of the claims to be compensated for in the manner, i. e., at the contract rate specified, the court has no alternative but to allow it to the extent of the amount of material excavated, since it is admitted that such material was removed.
A very large amount of material caved in from over the tunnel arch because of the geological formation encountered, which material had to be excavated from the tunnel in addition to the material which caved in from the spaces dry packed and grouted for which claim is made, but no measurement of the total amount of caved-in material was made at the time, and plaintiff claims, because of the impossibility of proof, compensation as for excavation for only such material as caved in from the space dry packed and grouted, the amount of which can be measured with reasonable accuracy by the “liquid method.” Plaintiff’s petition to Congress shows, as hereinafter stated, that he was claiming therein compensation only for the work of excavating the material which caved in from the space dry packed and grouted, which material, according to the undisputed record, was a great deal less than the total amount of material which actually caved in and was removed. It seems reasonably clear that plaintiff’s reason for so limiting his claim to Congress for compensation for this excavation work was because that amount of material was susceptible of proof, whereas the total amount of material which caved in could not be proven.
The committee report, hereinafter mentioned, on the special act is consistent with the above-mentioned interpretation in accordance with the ordinary and natural meaning of the *521language used in the act, but the reasoning in the majority opinion against this interpretation requires that certain additional matters be discussed.
While sec. 2 does not specifically state that the amount of excavated material which caved in over the tunnel arch is to be measured by the “liquid method” specified for measuring the space dry packed and grouted, neither does it prohibit its use. The method of determining the amount of caved-in material excavated is left open for determination by the court upon the evidence, since the court had not previously determined this one way or the other. In the previous case the court denied the claim for damages in which practically all, if not all, the extra cost of removing the caved-in material was included. The matter of measuring the amounts of dry pack and grout put into the caved-in space was specifically specified by Congress, because the court in deciding this claim for dry pack and grout had previously rejected the only method available for determining the amount of dry pack and grout. The provision that the court shall also determine the amount of compensation due at the contract rate for the work of excavating the caved-in material leaves the court free to determine the amount thereof by the use of the method specified for measuring the space dry packed and grouted, or some other method which it may find satisfactory for measuring the number of cubic yards of caved-in material. The important thing is that the act provides for the determination of this claim and the amount due thereon at the contract rate. Under the act the court may, if necessary, measure the cubic yardage of the caved-in material removed and to be paid for by applying thereto the exact number of cubic yards of caved-in space (liquid measurement) determined to have been dry packed and grouted; but it is not required to do this if there is in the record sufficient evidence to enable the court more accurately or satisfactorily to determine the cubic yardage of material which caved in from such space, either by using the liquid method or otherwise. The contract between the parties discloses they contemplated that due to normal over-breakage of rock there would probably be not more than *522approximately 300 to 500 cubic yards of space outside the “B” line to be concreted or dry packed and grouted, but the handling of the material from such overbreakage was not to be paid for as excavation since it was contemplated that, except for about 500 feet at the end of the tunnel, the entire length of the tunnel of 3,540 feet would be in solid rock, and that rock sufficient to dry pack such space would not have to be removed from the tunnel and brought back. As a matter of fact very little, if any, of the roof of the tunnel was in solid rock that would hold without considerable cave-ins. The removal of such material was not, therefore, considered an item of expense of any importance. Cave-ins were not contemplated or mentioned. Par. 58 of the specifications simply stated that “No excavation removed beyond the £B’ line will be paid for.” Plaintiff did not “excavate” beyond the “B” line and the court so held in K-366 — the material caved in because of its character and unstable condition.
Par. 48 of the specifications required the contracting officer to keep a record of the measurement of such spaces as were caused by such overbreakage which were to be paid for, as refilled, at the contract rates for concrete, dry packing and grouting. The Government did not measure the caved-in space over the tunnel arch, other than by the liquid method which the contracting officer adopted. Since it was impossible after all of the caved-in material had been excavated from the tunnel and the space from which some of the caved-in material had come had been dry packed and grouted to prove by any other method the number of cubic yards in such space which would equal the number of cubic yards of material which caved in from such space, the Government is not now in a very favorable position to object under the special act to the use of the liquid method of measurement. That the liquid method of measurement is a recognized and reasonably accurate method of measuring, under normal conditions, the number of cubic yards in a particular space dry packed and grouted and of measuring the number of cubic yards of earth or rock that came out of such space is not denied by anyone. If it appears from the evidence that all or substantially all of the grout used in a caved-in space dry packed and grouted filled only the dry-packed voids in the space from *523which material caved in and did not go elsewhere, or beyond such space, then the cubic yardage of such space measured by the liquid formula, or method, would accurately represent the cubic yardage of material that caved in therefrom. The contracting officer suggested, adopted, and used that method for determining the number of cubic yards contained in the caved-in space which was dry packed and grouted to the extent to which he made payment therefor, and the only question now for determination under the item of the claim under the special act for excavating the caved-in material (if such claim is within the authority conferred by the terms of the act) is whether the cubic yardage of the space dry packed and grouted determined by the liquid method reasonably or fairly represents the cubic yardage of the caved-in material removed. The matter of measuring the amount of such caved-in material from the dry-packed space will be further discussed later herein.
Defendant argues that sec. 2 of the Special Act is ambiguous, but I do not think it is when its language is given its natural and ordinary meaning as Congress appears to have intended; and it is further contended by defendant that “This claim [for excavating caved-in material] is completely untenable for the reason that payments made (or to be made) for the area thus dry packed and grouted also cover the work of excavation, and nothing in the Special Act requires dual payment for this item.” This claim of ambiguity only arises if an attempt is made to read out of the act one of its provisions which, according to its language, calls for an allowance at the contract rate for excavating caved-in materials; and the claim that payment for the work of excavating such material is not authorized by the special act can find support only on the view that Congress did not mean what the act said; that it was intended by Congress that the court should compensate plaintiff only for those items of work for which he might have been, but was not, paid by the contracting officer under the terms of the contract, and that the claims of Pope for excavating the caved-in materials and for dry packing and grouting the caved-in space were all one claim for compensation at contract rates of $3 a cubic yard for dry pack*524ing and $3 a bag for cement grout only, and not for the additional work of excavating or removing the large and unexpected amounts of caved-in materials. If the Special Act did no more than to grant or direct a new trial and specify the basis of payment on claims which could be compensated for under the strict provisions of the contract between the parties, these contentions of defendant that plaintiff should not be compensated for the work of excavating the caved-in materials would carry weight, but the Supreme Court held that the act did not intend to grant or direct a new trial but assumed an obligation to compensate plaintiff for certain claims as to which no obligation then existed.
It is, of course, admitted that there was a contract rate for excavation, and it is also admitted that with respect to the first claim of plaintiff this rate of $17 a cubic yard for excavation must be applied to the removal of material that caved in from the sides of the tunnel in addition to $17 a cubic yard for concreting such caved-in space. It is further admitted that if the work of excavating the material which caved in over the tunnel arch is to be compensated for, the contract rate of $17 a cubic yard must, under the terms of the act, be paid therefor. For the work of excavating the caved-in material and concreting the caved-in space at the side of the tunnel, plaintiff receives $34 a cubic yard, whereas for the excavating, dry packing and grouting, which was no less difficult and important and caused more expense for labor and material than was anticipated, and of which work the Government also received the benefit, plaintiff will receive a total of $23 a cubic yard.
The Supreme Court in Pope v. United States, 323 U. S. 1, said that “The Special Act did not purport to set aside the judgment or to require a new trial of the issues as to the validity of the claims which the Court had resolved against petitioner. * * * the Act’s purpose and effect seem rather to have been to create a new obligation of the Government to pay petitioner’s claims where no obligation existed before.” In other words, the provisions of the act show that Congress named the claims to be considered and determined, and specified the rates to be applied in measuring compensation on the claims so described for which it *525was assuming an obligation independent of the previous decision of the court, as well as the technicalities of the contract provisions. In doing this Congress authorized and directed the use of a certain method of measurement which the court had previously rejected for the purpose of fixing the allowable compensation for dry packing and grouting certain of the caved-in space over the tunnel arch. Since the court had not passed upon the matter, as a separate item, of measuring the amount of caved-in material excavated, it was not deemed necessary for the act to specify the basis, or method, of measurement thereof. The approval by Congress of this method of measurement for the purpose specified permits its use to the extent applicable for measuring the amount of caved-in material removed and to be paid for, since, as to that claim, Congress not only recognized but stated in section 2 that the Only material for which plaintiff was to be compensated as for excavation was that amount of the material which caved in from the space over the tunnel arch which was dry packed and grouted. As above stated, large amounts of material other than that which came from the space dry packed and grouted were also removed, but that material is not included in the terms of the act. The proof of record shows, and it is admitted, that at more than two places over considerable areas great amounts of material caved in from over the tunnel arch all the way to the surface of the earth which was from 40 to 100 feet above the tunnel arch; that caved-in material had to be removed from the tunnel, and, in addition, these caved-in spaces had to be refilled with earth from above. The material that came from the space dry packed and grouted was only a very small part of the material which caved in and had to be excavated. Plaintiff included his extra excavation costs and expenses in the claim made by him in Section XY of the petition in K-366, but in his petition to Congress limited his claim for compensation for excavation not paid for to the amount of material which caved in from the space over the tunnel arch which was dry packed and grouted.
The only difference between the method of measuring the space dry packed and grouted by the liquid formula and the method of measuring the caved-in space at the side of the *526tunnel by the concrete method is that all the concrete used filled completely the caved-in space, whereas, in the case of grouting, some of the grout found its way under pressure into rock fissures or seams, or into a test hole, from which spaces there was no caved-in material to be removed. Because of this and because the Government had the benefit of the work, the liquid method of measuring dry pack and grout to be paid for at contract rates was specified. But the direction in the act that the amount of dry pack and grout to be paid for be so measured does not prove that Congress intended that plaintiff was not also to be allowed compensation at the contract rate for the specified work of removing the material which caved in from such space, for which work the Government also received the benefit, and which was directed by the contracting officer. By providing that the court determine plaintiff’s claim “for the work of excavating materials which caved in over the tunnel arch” and compensate him therefor at the contract rate, the act leaves the court with no alternative in the circumstances other than the use of the liquid method, for measuring as accurately as possible the amount of material which caved in from the space dry packed and grouted, but, as hereinbefore stated, the court is left free by the act to apply its best judgment to the question whether, in all the circumstances and under all the evidence originally submitted and later submitted under sec. 3 of the act, that method, or some modification of the number of cubic yards shown by it, fairly and reasonably shows the amount in cubic yards of the caved-in material removed. As hereinafter shown, the amount of the material which caved in over the tunnel arch can, under the evidence of record, be ascertained with reasonable accuracy by the liquid method of measurement.
I do not think that payment for excavating the comparatively small amount of caved-in material results “in dual payment” for this item, as defendant contends, but whether it does or not, if Congress has provided for it, as I think it has, the propriety or wisdom of that action may not be questioned by the court. It is true, and Congress evidently knew that the original contract did not provide for payment as for excavation of material which fell in from over and beyond the *527“B” or “pay” line of the tunnel, either at the sides or over the tunnel arch, but the evidence of both parties shows they contemplated that only a small amount of material outside the “B” line would fall into the tunnel from normal overbreak-age in blasting or in excavating, and that the rock material beyond the “B” line over the tunnel arch could and would be kept in the tunnel as the work progressed and later would be used as dry packing and would not, therefore, have to be removed from the tunnel and later be brought back at considerable extra expense. When more than ten times the expected amount of material caved in solely from the space dry packed, which was mostly earth and rotten or soft rock, and, by direction of the contracting officer, had to be removed and hard rock suitable for dry packing later brought back, there was considerable extra expense incident thereto.
The fact that the act, as the Supreme Court said, was “in-artistically drawn,” may not be availed of to exclude allowance on a claim which reasonably appears to be within its terms. The way in which the act is drawn makes it necessary, I think, to read the first clause of sec. 2, i. e., “The Court of Claims is hereby directed to determine and render judgment at contract rates upon the claims of the said Allen Pope,” into each of the four claims described following the word “namely.” When this is done the item for excavating the material which caved in over the tunnel arch from the space dry packed and grouted stands out as one of the claims. That this is necessary is shown, I think, by the language of section 2 naming the claims to be determined and paid for.
As to the first claim, the act says, following the word “namely,” “for the excavation and concrete work;” following this it says “and for the work of excavating materials which caved in over the tunnel arch;” it then says “and for filling such oared-in spaces with dry packing and grout.” [Italics supplied.] Thus, it will be seen that the claims to be determined and compensated for at the “contract rates” were separately described and the court must give effect to all the provisions of the act. If Congress had intended that the court should compensate plaintiff at contract rates only for excavation and concrete work at the sides of the tunnel and for dry packing and grouting the caved-in space over the arch, it *528would have had no occasion to mention the work of excavating the material which caved in from over the tunnel arch, and I think, if it had so intended, that matter would not have been mentioned or included in the act.
As I understand the majority opinion, the reason or ground for denying the right of plaintiff to recover on the item of his claim for excavating the caved-in material is, in substance, that plaintiff did not make or intend to make such a claim to Congress, and that although the act states that he is to be compensated “for the work of excavating materials which caved in over the tunnel arch,” the history of the act, as disclosed by the committee report and the “Statement of Allen Pope,” set forth in the committee report, does not show that Congress intended by this language that an allowance should be made as compensation for this work in addition to compensation at $3 a cubic yard for dry packing and $3 a bag for cement grout placed in caved-in space over the tunnel arch.
I do not think the act should be so interpreted under the well-established rule that a statute is to be interpreted and applied in accordance with the ordinary and natural meaning of the language used where the provisions of the statute are plain and unambiguous, and I think we have such a case here. Scott v. Ben, 6 Cranch 3, 7; Garter’s Heirs v. Cutting, 8 Cranch 251, 252; Kirk v. Smith, ex dem. Penn., 9 Wheat. 241, 272; Gardner v. Collins, 2 Pet. 58, 92; Merchants’ Insurance Co. v. Ritchie, 5 Wall. 541, 545; Lake County v. Rollins, 130 U. S. 662, 670, 671; Bate Refrigerating Company v. Sulzberger, 157 U. S. 1, 37; United States v. Riggs, 203 U. S. 136, 139; Pennsylvania Railroad Company v. International Coal Mining Co., 230 U. S. 184, 190; St. Louis, Iron Mountain & Southern Railway Company v. Graft, 237 U. S. 648, 661; Gaminetti v. United States, 242 U. S. 470, 490; Thompson v. United States, 246 U. S. 547, 551; Standard Fashion Co. v. Magrane-Houston Company, 258 U. S. 346, 356; Takao Ozawa v. United States, 260 U. S. 178, 194.
Since the act shows by the language used that plaintiff, as he claimed in his petition to Congress, is to be compensated at the contract rate for excavation, for the work of excavating *529only tlie material which caved in from the space over the tunnel arch which was dry packed and grouted, and not for the work of excavating all the material which actually caved in from other spaces over the tunnel arch, I think we should give full effect to the specific direction given in the act.
Plaintiff pointed out in his petition or statement to Congress, which is quoted in the committee report, that there were unit-price contract rates for excavation, for concrete, for dry pack and for grout. I do not therefore see how the court can allow compensation at contract rates for the three claims — (1) excavation and concrete, (2) dry packing, and (3) grout, — named in the act and decline to allow any compensation “for the work of excavating materials which caved in over the tunnel arch” without, in effect, reading this provision out of the statute or holding that Congress did not mean what the act plainly said. Plaintiff further pointed out in his statement to Congress that all the claims, which were subsequently mentioned in the act, were before this court in his original case and had been denied, and that was true. He also pointed out at length the difference between the materials as recorded on the contract drawing and those encountered, and the large amount of caved-in material that had to be excavated from the tunnel by direction of the contracting officer. Plaintiff also included in his petition to Congress, as hereinafter shown, a claim that he had not been fully compensated for timbers used in the tunnel, which was a contract item for which he was entitled to payment, but this item of the claim for timber was not included in the Special Act. Neither did the act include anything for delays and prolongations of the work which plaintiff also pointed out to Congress. Plaintiff had claimed originally in K-366 an additional amount of $5,236.30 for 52,36'3 feet of lumber, b. m., at 10 cents a foot, and the court allowed $2,500.
Plaintiff originally made claim in this court for compensation on all four items of work named in the Special Act, as he pointed out to Congress, and these are the claims which, under the act, the court is directed to determine and upon which it is to render judgment at contract rates; the claim for work of excavating or removing the total amount *530of material which caved in over the tunnel arch, which could not under the terms of the contract be made in the original, case as a contract item, was included by plaintiff in the claim originally made in this court for breach of contract through alleged misrepresentations as to the character of materials to be encountered in excavating for the tunnel.
In this claim made in Section XY of the petition in K-366 plaintiff asserted and attempted to prove that because of the changed and unexpected conditions as a result of which the cave-ins occurred, for which he claimed the defendant was responsible, he was delayed 200 days and incurred extra costs for labor, etc., in the net amount of $85,915. In his first motion for a new trial in K-366, filed May 6, 1932, after discussing the disallowance of this claim by the court, plaintiff insisted as follows:
The net additional cost to the contractor for excavation, on account of the geological formations being different than represented, was $85,915.
DAMAGES CHECKED — ANOTHER BASIS FOE CLAIM
_ A check on this figure, and a basis upon which plaintiff might reasonably make claim, in lieu of upon the basis of misrepresentation, is for that excavation which fell into but was excavated only from within the “B” line. * * * The proof discloses that 5,561 cubic yards of space were dry packed and that this space was created by the materials falling into the space within the “B” line. It is established that not any of this material was excavated outside the “B” line. So that in addition to the material which originally occupied the space within the “B” line, and which has been paid for, 5,561 cubic yards more were actually excavated within the “B” line and have not been paid for. At the price bid by the contractor, namely, the contract price of $17.00 per cubic yard, this amounts to $94,537.
Both of these bases for damages, i. e., (1) damages because of misrepresentation, and (2) excavation actually made within the “B” line, grow out of the same cause, namely, that the ground was loose and fell in. The latter explanation comes strictly within the letter of the specifications.
It seems clear enough to me that in plaintiff’s statement which the Claims Committee incorporated in its report on *531the special act, plaintiff, in his petition to Congress for relief, adopted and asked compensation on account of the caved-in material on the second basis above mentioned in his motion for a new trial after pointing out the changed and unexpected conditions encountered, and the special act, which provides for compensation at the contract rate for excavating this material, is in accord and consistent with this claim of plaintiff in his petition for relief.
I think it must therefore be held from the history of the Special Act that plaintiff did make claim to Congress that he be compensated through a special act for this excavation work. It would seem from the representations made by plaintiff in his written statement, as set forth in the committee report, and by the language used in the act, that Congress concluded plaintiff should at least receive compensation for this work of excavating the material which caved in from the space dry packed and grouted, and therefore specified the contract rate for excavation as the basis for such payment. It would seem that Congress would not have provided in the act for compensation for excavating this material unless it understood from Pope’s petition for relief, through a Special Act, that he was claiming compensation for this work.
As to the work of excavating or removing the caved-in material, the majority opinion says that “plaintiff intended that his compensation for removal of these cave-ins should come in his payment for filling the spaces” and makes reference to certain excerpts from plaintiff’s testimony quoted in 100 C. Cls. 375, 386, with reference to his claim in the original case (76 C. Cls. 64) for compensation under the contract items of dry packing and grouting. But I do not think those excerpts are helpful or important in interpreting the Special Act. Any consideration of plaintiff’s testimony in the original case in connection with what he was claiming in his petition to Congress should include all of his testimony, and not merely excerpts. It must be remembered, when considering the testimony referred to, that in the original case plaintiff had other and separate claims which he was pressing, and which included compensation for extra costs and expenses for removing the large amount of caved-in *532material and other unanticipated expenses in connection with and by reason of the extensive cave-ins and on account of delay amounting in one instance to $66,782.45 concerning interferences with dry packing and grouting, and, in another, to $85,915 for extra costs and damages because of the cave-ins. Plaintiff’s original testimony concerning what his prices for dry packing and grouting were intended to cover was obviously, as he now urges, with respect to the original estimated “overbreakage” of rock of not more than 500 cubic yards throughout the tunnel, of which amount less than 200 cubic yards would, in any event, have had to be ultimately disposed of other than by its use as dry packing; and, if the spaces vacated by the timbers had to be dry packed, as they were, practically none of the original estimated “overbreak-age” of rock would have had to be handled extra or removed from the tunnel. Obviously, therefore, there were no cave-ins nor excavation expenses anticipated by or intended by plaintiff to be included in his bid prices for dry packing and grouting. There were many items of expense in connection with dry packing and grouting other than the cost of the cement used. Moreover, in view of what occurred with reference to the large amount of caved-in material, most of which was earth, as compared to what the parties expected with reference to the small amount of “overbreak-age” of rock, and in view of the over-all time of 200 additional days consumed and the expenses incurred, the bid prices for dry packing and grouting cannot be regarded, and, evidently, they were not regarded by Congress as having been intended to cover the unanticipated and excess costs incurred. Plaintiff so testified in the original case in connection with the item of his claim for $85,915 in which these extra excavation expenses, except a portion for extra and unnecessary handling of rock used for dry pack, were included, and that testimony is not refuted.
As hereinafter pointed out in more detail, plaintiff, in his petition to Congress for relief, set forth under the third heading thereof that “During excavation, the ground caved in over the crown of the tunnel arch, such caved-in spaces wei'e to be filled with stones packed in place, called dry *533packing,” and, under the fourth heading, that “The roof of the excavation caved in for the full length of the tunnel, 3,533 feet. * * *. Thus, more excavation resulted than had been expected. Next, the caved-in spaces had to be refilled with dry packing and grout, * * *. The items of expense which the contractor did incur had not been anticipated to such an extent by the Government or by the contractor; these items were the cost of removing all caved-in material from the tunnel, * * * and the cost of replacing the caved-in spaces with the specified dry packing and grout.” Under the sixth heading, he stated that “As a result of this condition [unstable material] he was required to excavate material which caved in over the tunnel arch, and then to refill the caved-in spaces with dry packing and grout.”
Congress evidently considered in connection with the Special Act that in all the circumstances, which were not expected by either party as plaintiff pointed out in his petition for relief, and in view of plaintiff’s claims in that petition, there was a sufficient moral obligation to justify the assumption of a legal liability for certain extra work performed and expense incurred on account of this additional excavation, and concluded to measure the compensation to be allowed plaintiff by the court at the contract rate for excavation with respect to such of the caved-in material as came from the space dry-packed and grouted.
The majority opinion also makes reference to sec. VI of plaintiff’s petition in the former case, K-366, quoting item (g) thereof, and also quoting a part of finding 5 of the court in that case (76 C. Cls. 64, 70) in support of the position that plaintiff in his petition to Congress did not make, or intend to make, a claim for compensation for the work of excavating caved-in materials.
I think, first, that in view of plaintiff’s claim in his petition to Congress and the language of the act this reference to the record in the prior case is not important or necessary in interpreting and applying the Special Act according to its provisions; second, I think the quoted references when analyzed fall far short of indicating that which they are said to establish; third, the record in the original case *534satisfactorily shows that plaintiff was not claiming in item (g) compensation or expenses for excavating caved-in materials, as such, but only for extra expenses incident to interferences with the work of certain dry packing which resulted in needless extra handling of stone necessary for this particular portion of the space dry packed; fourth, it does not appear from finding 5 and the opinion of the court in the prior case that the stone referred to represented caved-in material, or what amount, if any, was allowed on account of extra handling of this stone used in dry packing only 2,191 cubic yards of space over the tunnel arch; or, whether, if the court did allow any amount on account of this item, the extra expense of removing it from and bringing it back into the tunnel was included.
In the original petition plaintiff, in section IV, entitled “Cement grout,” claimed $56,715; in section V, entitled “Dry packing,” he claimed $14,304, as contract items at contract rates; and in section VI, entitled “Government’s interferences with dry packing and grouting,” plaintiff claimed $66,845.12 under nine separate items; the seventh, or item (g), is quoted in the majority opinion. Under this claim plaintiff alleged and proved, among other things, the following: “The contracting officer gave five (5) different orders with respect to the performance of the work of dry-packing and grouting. He changed the requirements with each order. He prevented performance within the contract period and required performance after expiration of the contract period, thus involving additional expense that would not have been incurred nor necessary had he permitted performance within the contract period, when plaintiff was ready and able and demanded to be allowed to perform in the manner agreed upon in the contract and which manner was the method ultimately used.”
The commissioner of this court made finding 5 in which he listed the nine items and the amounts allowed by him in respect thereof, totaling $44,290.22. The court substantially adopted finding 5, except the tabulation of the items and the amount allowed as to each. The commissioner’s tabulation in his finding and the amounts asked by plaintiff *535under section VI of the petition in the former case, are as follows:
Allowed Claimed
Items by Commissioner by Plaintiff
945 extra grout pipes, actual cost, $1,159.95 with 15 percent added £or overhead, etc_$1,333.22 $1,333. 22
Third or smaller set of grout pipes, material only, with 15 percent-138.00 138.00
Drilling out old grout pipes, restoring tracts, etc., with 15 percent added-4, 769. 00 4,769.00
Additional cost of grouting after February 11, 1927_ 9,000.00 14,686. 00
Extra grout pumps_ 800.00 800.00
Extra cost of handling cement and sand for grout (loss of sacks)_ 750.00 750. 00
Extra handling of stone in dry pack_ 7,000.00 12,598.00
Other fixed expense after December 24,1926, not included in foregoing items, no part of which would have been necessary except for the contracting officer’s orders needlessly prolonging the work after said date- 18,000. 00 28,109.47
Cost of so-called waterproofings, etc- 2, 500. 00 3, 598.76
Total extra cost of interference_ 44,290.22 66, 782.45
Item (g) related'to extra costs due to ten extra and needless handlings of rock used for dry packing only 2,191 cubic yards of space in the “rock section,” and about one-half of these extra and needless handlings were shown to have related to the needless handling of the dry-packing stone because of the requirements and the conflicting and changed orders and directions by the contracting officer about the dry-packing work. The other half of the extra handlings of this stone appears to have related to taking the stone out of the tunnel and bringing it back. Plaintiff proved fifty cents a cubic yard for each handling, or a total of five dollars a cubic yard, which, with 15 percent added for overhead and incidentals, amounted to $12,598. The commissioner allowed the round figure of $7,000 on account of this item, which, it appears, was the cost of approximately one-half of the extra handling of this stone by hand, plus 15 percent. A study of the petition and the record in K-366 shows that this item (g) related only to extra expenses with reference to dry packing and, on its face, it did not relate and there is *536nothing in the record to show that it related to or included any of the extra costs of the work of excavating the caved-in material from over the tunnel arch. Those costs were included by plaintiff in his claim for damages under sec. XV of the petition. Plaintiff’s plan, with which the contracting officer unreasonably interfered, contemplated the use of sufficient stone from rock excavation within the “B” line, or from normal overbreabage to dry-pack whatever space was necessary without needless extra handling of such dry-packing stone, and item (g) referred to this unnecessary extra expense resulting from such interference, rather than the extra costs and expenses of removing cavecl-in material, as such extra costs were included in the claim made in sec. XV of the petition. The commissioner (and the court, if it allowed any amount on account of this item) appears to have made the allowance on that basis, inasmuch as approximately one-half of extra handling cost was excluded. No assertion or claim was ever made that plaintiff was making a double claim in sec. VI, par. (g), and sec. XV of his petition, in K-366, on account of extra work and expenses incident to and caused by the caved-in material.
In addition to this disallowance by the commissioner of $5,598.29, claimed by plaintiff under item (g), the record shows that this particular dry-pack stone, assuming that it was caved-in material, was only a very small portion of the caved-in material excavated, and was much less than the amount of caved-in material from the earth sections of the tunnel, which caved-in material was also excavated. Those earth sections were dry packed with stone from rock excavation as the work progressed, and amounted to 3,370 cubic yards. All costs resulting from the extra work and time on account of the large amount of caved-in material were included and claimed by plaintiff in sec. XV of the petition entitled “Misrepresentation.” Under this section plaintiff claimed increased daily costs for delay and extra work due to cave-ins and unexpected conditions encountered of $433 a day, including his own time and equipment rental, and which also included proven labor costs of $242 a day. Outside of allowance for plaintiff’s time and equipment rental, his actual proven daily costs under sec. XV were $283 a day, *537or $56,660 for 200 days’ delay in completion of the work. With such allowances his costs for that period were $99,590, from which amount he deducted $13,865 to coyer the amount included elsewhere in the petition on account of delay incident to the cave-ins and the amount which defendant had paid him for some extra work during the delay period.
From the above it will be seen that, even if the court in its finding 5 and the opinion in 76 C. Cls. 64,70, 86, 87, allowed the $7,000 found by the commissioner (and it does not specifically appear from the court’s findings and opinion what amounts made up the $13,290.22 allowed), plaintiff got only a little more than one-half of its extra costs due to the extra handling of this amount of dry-pack material. When we look at finding 5 and the opinion of the court in K-366, supra, we find that the court substantially adopted the commissioner’s finding 5, except the tabulation listing the items and the amounts allowed as to each and, in lieu of that tabulation, made an ultimate finding of a lump-sum allowance in respect to the nine items of only $13,290.22, which was $53,492.20 less than plaintiff claimed and exactly $31,000 less than the commissioner had found and allowed. An examination of the court’s opinion at pp. 86-90 (76 C. Cls. 64) shows that the court disallowed the item of $18,-000 which the commissioner had allowed as damages for delay, and the item of $2,500 for waterproofing. These two items amount to $20,500.
For the reasons above stated I fail to see how it can be said from finding 5 in K-366 that plaintiff did not intend to make claim in his petition to Congress for compensation for excavating the caved-in materials. Instead, the foregoing analysis of finding 5, K-366, and sec. XY of the original petition would seem to show when considered in the light of plaintiff’s statements in his petition to Congress, that he intended to and did make claim to Congress on account of the work of removing the material which caved in over the tunnel arch. In his original petition in this court plaintiff claimed, as indicated above, compensation on account of the cave-ins under sec. XY of his petition, and in his petition to Congress he stated that he had not been paid anything on account of the work of excavating the caved-in *538material. From the language of the Special Act Congress appears to have agreed with him in this and also in his claim that he ought to be paid something therefor. As I have hereinbefore pointed out, the question whether such an allowance should have been made in the Special Act is a legislative rather than a judicial question.
Plaintiff’s petition to Congress and the wording of the act show, I think, that the provision in the Special Act for compensating plaintiff at the contract rate for the work of excavating the material which caved in over the tunnel arch was not carelessly or inadvertently placed in the act.
The claims committee of the House, as appears from the Attorney General’s letter of April 28, 1941, set forth in the committee report, asked the Attorney General for a report on the bill. In his letter the Attorney General stated his views on sec. 2 of the bill to be that it directed the court to determine and render judgment on certain claims of Pope for work performed for which he had not been paid, but of which the Government had recevied the use and benefit, and that “This work is described as certain excavation and concrete work performed pursuant to change orders and the excavation of caved-in spaces and the filling of such caved-in spaces with dry packing and grout.” Thus, it seems that the view of the Attorney General from his reading of the bill was that by the language thereof plaintiff would be entitled to compensation thereunder at the contract rate “for the work of excavating materials which caved in over the tunnel arch.” The Attorney General stated to the committee that he preferred not to make any suggestions since the question “whether or not the bill should be enacted is a question of legislative policy.”
The written statement of plaintiff, entitled “Statement of Allen Pope,” which is also included in the committee report, and on the basis of which statement the bill apparently was drafted and introduced, contained seven headings.
Under the first heading, “Necessity of Legislation,” plaintiff set forth that he was asking Congress, “which alone has jurisdiction,” to direct the court “to consider the case again and grant him relief as was denied him heretofore, and give him judgment whereby he can, in a measure at least, be re*539imbursed for expenditures to which he was put in building the tunnel * * *, and for which the Government has received the benefit, but for the greater part of which claimant has never been paid.”
Under the second heading, “The Contract,” plaintiff set forth the nature of the work and stated that the contract was a unit-price contract; that the work to be done was divided into ten different items, and that “payments were to be made on the basis of the unit prices bid for the various items and for as many units of work as were required to complete the project, irrespective of the quantities estimated in the specifications.”
Under the third heading, “The Contract Project,” the nature of the work and the size of the tunnel were described, and it was set forth that:
The Government prepared the contract plans and indicated thereon certain representations as to the character of underground geological formations disclosed by the test borings made by the Government. The specifications warranted the descriptions given. The specifications also provided that when, during excavations, the ground caved in over the crown of the tunnel arch, such caved-in spaces were to be refilled with stones packed in place, called dry packing, and that the voids or spaces between such stones should be thoroughly filled with liquid cement mortar pumped into place. This cement mortar was to be made of specified proportions of sand, cement, and water, and was termed “grout”. The 5 principal items which subsequently became involved in the issue of Pope’s case in the Court of Claims were (1) excavation, (2) timber, (3) concrete, (4) dry packing, and (5) grout.
Under this heading, “Contract Project,” plaintiff further set forth that the Government’s estimate of quantities, upon which the contract was predicated, and bids were compared for award, was based on the geological representations given on the contract drawing which showed that the ground throughout the tunnel length would be substantially solid rock; that the Government, in addition to warranting its description of the geological formations disclosed by its test borings drilled on the site, obligated itself to give all lines and grades for performance of the work, to measure and *540make a record of all completed work, and to pay therefor on the basis of the contract unit prices.
Under the fourth heading, “Conditions in performance giving rise to claims,” plaintiff set forth in this statement that:
During performance of the excavation the character of the geological formation actually encountered by the contractor proved to be much different from that described on the Government’s plans. Instead of solid rock, as thereon depicted, standing in place when tun-nelled into, the ground was wet, running earth, or soft, seamy, loose, unstable formation which caved in. The roof of the excavation caved in for the full length of the tunnel, 3,543 feet. This is in striking contrast to the contract drawing prepared by the Government, which shows the entire tunnel lying in a region of rock with more than 95 percent of it designated on the drawing as “hard rock.”
As a consequence of such conditions, which could not have been anticipated from the contract drawings, it was necessary for the contractor to perform far more units of work than the Government had anticipated. For example, large portions of the excavation haa to be timbered, and this meant that the cross-section had to be enlarged to accommodate the timbers. Thus, more excavation resulted than had been expected. Next, the caved-in spaces had to be refilled with dry packing and grout, which meant the use of more rock and more concrete than had been anticipated. In fact, the amounts of timber, dry packing, and grout employed by the contractor, as directed, amounted to more than ten times the Government’s contract estimate.
This seems to be a clear assertion of a claim for excavation, as well as for the items of dry packing and grout.
Plaintiff’s statement continued, and said:
Obviously, therefore, the items of expense which the contractor did incur had not been antipicated to such an extent by the Government or by the contractor; these items were the cost of removing all ca/oed-in materials from the tunnel, the cost of bracing and supporting the excavation with timber, and the cost of refilling the caved-in spaces with the specified dry packing arid grout, together with the expense caused by prolongations or by changes of methods of operations imposed by errors, and *541reversals of decisions by the contracting officer. That, in a single sentence, is the substance of claimant's case.
Insofar as the Government failed to pay for the contract work which was necessary, which was directed to be done, and the benefit of which the Government has received, and insofar as its errors and interferences caused damage or otherwise unnecessary expense to the contractor, he now asks redress through such relief as the court may grant him. [Italics supplied].
From the above-mentioned portions of plaintiff’s statement to Congress, which are consistent with the provisions of the special act and the committee report, it seems clear that plaintiff was making claim and that the committee and 'the Congress understood that he was making claim for compensation at contract rates, not only for the other claims mentioned but for the cost of excavating or removing all caved-in material from the tunnel as directed by the contracting officer. The provisions of the act substantially followed plaintiff’s statement of his claims, except as to timbering and prolongations of the work. This court had previously in its findings and opinion (76 C. Cls. 64) made certain allowances to plaintiff for timber and interferences with the work, and it was doubtless for that reason that the special act did not include these items.
The claims committee in its report on the bill seems to have understood that under the terms of the act plaintiff would be compensated by the court for all excavation work performed by him at the direction of the contracting officer, along with other items mentioned, of which work the Government received the benefit, and for which plaintiff had not been paid.
Under the fifth heading of plaintiff’s statement as set forth in the committee report, entitled “Court exhibits establishing claim resulting from changes in contract plans,” plaintiff explained and asserted the first item of the claim specified in sec. 2 of the act, namely, for excavation and concrete work through the omission of timber lagging from the side walls of the tunnel, and the change of plans as to the “B” or “pay” line.
*542Under the sixth heading of plaintiff’s statement, entitled “Other items of work for which claimant has not been paid,” he set forth that:
The court further found that the cost of excavating the tunnel was materially increased to the contractor, because he encountered much material that was soft, seamy rock and running earth, “materials contrary in formation from what he expected to encounter.” As the result of this condition be was required to excavate materials which caved in over the tunnel arch, and then to fill the caved-in spaces with dry packing (stones put into place) and grout (liquid cement mortar which was pumped into the spaces between the dry packing;, thus consolidating the whole into a solid mass). This was done at the direction of the contracting officer.
Under this heading the statement proceeds to set forth quotations from the findings of the court as to the extent to which the tunnel arch caved in, and as to the caved-in space over the arch outside of the “B” line being filled with dry packing and grout, for which no payment was made, and concluded such quotation from the court’s findings, under the sixth heading, with a statement that “The pending bill would enable the court to determine the amount of dry-packing by the so-called liquid method as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court’s previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing.” This last-quoted statement, which was made only with reference to dry packing and grout, should not, in the light of other statements by plaintiff as to the claims which he was making, be treated as intending to exclude the claim for compensation for excavation.
From the statement set forth by plaintff under the sixth heading and other headings above-mentioned, it seems clear enough to me that he was claiming as one of the items of work for which he should be compensated, and for which he had not been paid, the excavation of caved-in materials as a result of the unstable sub-surface conditions mentioned, as a result of which he was required by direction of the contracting officer to excavate materials which caved in over the *543tunnel arch, as well as for excavation of material that caved in from the side of the tunnel.
Under the seventh heading, entitled “Conclusion,” plaintiff concluded his petition with the statement that:
Reference of this matter again to the Court of Claims is, therefore, only just and equitable in order to obviate a hardship which has been imposed upon the contractor. Only in this way can the Congress enable the court to rectify its own mistake and compensate the contractor for the materials and labor which he furnished to the Government, which were necessary in the construction of the tunnel, which the contracting officer directed to be supplied, of which the Government has received the benefit and use these many years, and yet for which Pope has not been paid.
This “Conclusion” of plaintiff’s statement included all four claims which had previously been set forth in his petition to Congress.
If we look therefore to the history of or the reasons for the Special Act introduced and passed for the relief of plaintiff we find that the provisions of the bill are in accordance with the claims which he made in his statement to Congress. The provisions in the act specifying the claims for which plaintiff is to be compensated accord with the claims made, and substantially use the language which plaintiff used more than once in his petition for relief.
In addition to the above-quoted statements from plaintiff’s statement to Congress, the statements made by the claims committee in its report, not in form of quotations, indicate that the committee understood and interpreted the bill as plaintiff now claims, and show, also, that the committee was advising Congress that the bill provided for rendition of judgment by the court at the contract rates upon the four claims specified, one and a part of another of which were for “excavation” of caved-in materials. The committee said:
The purpose of the bill is to confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon certain claims of Allen Pope arising out of his construction of the tunnel * * *. The bill limits the jurisdiction of the court to certain items of *544work performed by the said Allen Pope in complying with orders of the contracting officer, for which items he has not been paid, but of which the Government has received the use and benefit, namely, certain excavation and concrete work and filling in of caved-in spaces with dry packing and grout. Payment to the said Pope by the court would be at the rates provided in the contract.
I think, therefore, that denial of judgment in favor of plaintiff at the contract rate “for the work of excavating materials which caved in over the tunnel arch,” fails to carry out the authority and intention of Congress as set forth in the Special Act. Such denial of this claim seems to me to be contrary to the plain and unambiguous language of the act, to the petition of plaintiff to Congress, and to the statements of the Attorney General and the claims committee as to their understanding of the items of the claim which were to be compensated for under the act.
In order to justify the conclusion that full effect should not be given to the provision of the act providing for compensation at the contract rate for the work of excavating the caved-in materials, it would be necessary to show that it was the clear intention of Congress that this excavation work should not be compensated for at the contract rate as a separate item of the claim but that it was clearly intended to be embraced in and covered by such compensation as might be allowed at contract rates of $3 for each unit of dry packing and grout. All the evidence as to what the act intended seems to me to be opposed to such a conclusion. The history of the act as disclosed by the committee report is not consistent with such an interpretation of the language of the act, but, instead, this history as disclosed by the written statement of plaintiff, the report of the Attorney General to the committee, and the report of the claims committee are all consistent with plaintiff’s interpretation of the provision of the act that he should be paid, as on other specified claims, at the contract rate for this excavation work. I would, therefore, give plaintiff judgment on this item of his claim.
The only question remaining is whether plaintiff should be paid at $17 a cubic yard, fixed by the act, for 4,781 cubic yards as the amount of the caved-in material removed, or for some smaller amount. He claims compensation for the *5454,781 cubic yards. This amount is determined by the liquid method, hereinbefore mentioned, on the basis of the amount of grout used, which, by using the full amount of 22,928 bags of cement, shows a total of 5,561 cubic yards; of this amount, 57 cubic yards of caved-in material excavated are included and paid for at $17 a cubic yard under item one of the claim, due to the lowering of the upper “B” or “pay” line. In addition, the evidence shows that 723 cubic yards of material were previously allowed by the court and paid for. The deduction of these two amounts, totaling 780 cubic yards, leaves 4,781 cubic yards. As has been herein-before stated, the liquid method of measurement is the only method now available which can be used for reasonably measuring the amount of caved-in material over the tunnel arch; that method is reasonably accurate for measuring the number of cubic yards in a space dry packed and grouted. However, there is some evidence in the record which shows that all of the grout used, which is the basis of measurement, did not go entirely into the 40 percent dry-pack voids in the caved-in spaces, but that some of the grout found its way into rock fissures or seams, and into a test hole bored above the caved-in spaces before the construction work was commenced. In view of this, and the extent to which grout Avent into spaces other than the space from which material caved in and had to be removed from the tunnel, the liquid method of measurement does not measure Avith absolute accuracy the number of cubic yards of caved-in material. There is in the record, however, credible and convincing evidence to show that the amount of such extra grout OA-er the amount which was necessary, and Avhich did go to fill the dry-pack voids, was not more than 300 bags of cement. By deducting 300 of the 22,923 bags of cement actually used in grouting, as representing the amount of grout forced into voids other than in the actual caved-in dry-packed space, we have 22,623 bags of cement used to grout the space from which it is shown and admitted material actually caved in and was excavated. The liquid method of measurement based on 22,623 bags of cement shoAvs 5,488.17 cubic yards of caved-in material which were removed. The deduction from this amount of the 780 cubic yards, above *546mentioned, leaves 4,708.11 cubic yards. At the contract rate specified in the act of $17 a cubic yard for the work of excavating this amount, 4,708.17 cubic yards, plaintiff is entitled to judgment of $80,038.89 on this item, and I think judgment should be entered accordingly.
Whitakek, Judge, concurs in the foregoing opinion.