Opinion of the Court 113 C. Cls. reservation. They were jealous of their rights, and prompt to complain about what was done on their lands. It does not seem to us that an operation as extensive as would have been necessary could have taken place without their knowing of it and knowing which one of the relatively small number of operators capable of such an operation was doing it. Several old members of the bands testified in this case, whose boyhood would have been during the period in question, yet they named no one who was supposed to have wrongfully cut timber, and not been made to account for it. Our second question is whether, assuming that there was some trespassory cutting of timber, the Government failed in its duty as a guardian by neglecting to prevent or recover for the tort. The evidence seems to us to show that the Government was diligent in its care of the Indians' property. It was consistent and uncompromising in its position that the school lands belonged to the Indians, though the legal question was by no means clear. So far as appears, it pursued and recovered compensation from those who had, by mistake or legal uncertainty as to the title or otherwise, cut logs without authority. Its failure to detect and pursue in time to recover from casual trespassers does not prove lack of diligence. There was no duty to constantly patrol these large and wild areas, especially when it was known that the wards themselves were hunting over them and were not reluctant to complain of intruders. The tone of the correspondence between the Government's agents on the reservations and their superiors in Washington indicates interest and diligence in protecting the rights of the Indians. The plaintiffs' suggestion that large quantities of illegally cut logs were floated past the Indian agency, without the agent doing anything about it, or the Indians complaining of it or knowing or remembering who did it, seems to us impossible of belief. We have found that the Government did not fail in its duty as a guardian. The plaintiffs' petition must, therefore, be dismissed. It is so ordered. HOWELL, Judge; WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur. Syllabus F. H. McGRAW AND COMPANY v. [No. 47291. Decided February 7, 1949] On the Proofs Government contract; delay in completion by defendant's failure to supply drawings on time.—Where plaintiff on August 3, 1944, entered into a contract with the Government for the installation of outside steam and air lines at the Badger Ordnance Works, in Wisconsin, the work to be completed by December 1, 1944; and where the contract provided that the defendant or its agents were to furnish the drawings for the several piers and poles and were to determine their location from time to time; and where the drawings were not furnished and the locations not designated in time for plaintiff to complete its work by the contract completion date, December 1, and as a result plaintiff was compelled to erect some of the piers and poles in frozen ground at an increase in cost; it is held that plaintiff is entitled to recover. Same. In the instant case, where December 1, 1944, had been set as the completion date, it was undoubtedly the duty of defendant or its agents to furnish the necessary drawings in time for plaintiff to complete its contract by that date (see George A. Fuller Company v. United States, 108 C. Cls. 70, 94, et seq.), and if plaintiff's costs were increased by defendant's failure to do so, plaintiff is entitled to recover the excess, unless additional facts excuse such failures. Same; time for completion of original contract not extended by supplemental contracts; intention of parties.-Upon the evidence adduced it is found that, where the original contract was modified by several supplemental contracts which extended the completion date to September 1, 1945, it was not the intention of the parties that the time for the installation of the piers and poles covered by the original contract should be extended. See Henry Ericsson v. United States, 104 C. Cls. 397, 428. Or if it was the intention to extend the time for completion of the work under the original contract, then the defendant breached it by requiring the plaintiff to complete earlier and during the winter season. Same; excess costs by defendant's delay.-Where plaintiff based its bid on doing the work prior to December 1, 1944; and where defendant prevented plaintiff from completing the job by that date, and it cost the plaintiff more to do it thereafter; plaintiff is entitled to recover the excess costs. Reporter's Statement of the Case 113 C. Cls. Same; failure of defendant to supply temporary electric power as agreed in specifications as interpreted by defendant's authorized representative; increased costs.-Where it was provided in the specifications that temporary electric power would be made available at no cost to the contractor in the immediate vicinity of the contemplated work; and where it is shown that electric power was not at all times made available to the plaintiff in accordance with the interpretation given to plaintiff by the Government's authorized representatives as to the meaning of the phrase "immediate vicinity of the contemplated work"; and where it is shown that on account of defendant's failure to supply electric power for the use of plaintiff's electric welding machines it was at times necessary for plaintiff to use gasoline welding machines, at increased cost; it is held that plaintiff is entitled to recover. Same; defendant bound by its authorized representatives.-A representation made to plaintiff, preliminary to submission of its bid, by defendant's representative who had prepared the plans and who was on the site, and to whom plaintiff had been referred by defendant for information, was binding on defendant. See Max J. Kuney v. United States, 95 C. Cls. 512, et seq. The Reporter's statement of the case: Mr. Joseph Lotterman for the plaintiff. Messrs. Lotterman and Tepper were on the brief. Mr. Grover C. Sherrod, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. The court made special findings of fact as follows: 1. Plaintiff is a corporation duly organized and existing under and by virtue of the laws of the State of New Jersey, with its principal place of business at Hartford, Connecticut. 2. Plaintiff and defendant entered into a contract on August 3, 1944, designated contract No. W-47-013-eng-664, for the installation by plaintiff, at the Badger Ordnance Works, Baraboo, Wisconsin, of outside steam and air lines, excluding N. G. Area and Re-Work Area. The work was to be performed in accordance with certain plans and specifications for a consideration of $466,975.30 and was to be completed on or before December 1, 1944. 3. The work required under plaintiff's contract was in connection with additional facilities for manufacture of 29 Reporter's Statement of the Case rocket powder and consisted of the erection of certain outside steam and air lines, including excavation for and the erection of various pole structures and excavation for and preparation of concrete piers as supports for piping to carry steam and air to various buildings. The larger 20-inch and 18-inch pipe were supported by concrete piers set in the ground; the smaller 16-inch to 10-inch pipe were supported by single, double, or four-pole structures, depending upon the size and weight of the pipe to be supported. The contract performance also required extensive welding of pipe. Under the contractual relationship between the parties, the defendant either directly or through its supervising representative, Mason and Hanger Company, was to furnish to plaintiff poles, cement, pipe, and hardware, and plaintiff was to excavate holes for the various poles and prepare concrete supporting piers and perform the work of installation. 4. The General Provisions of the specifications provide: 1.02. (b) This contract is collateral is collateral with Contract W-47-013-eng-600 which is an Architect-EngineerConstruction Management contract between the War Department and the Mason and Hanger Company, in which the Mason and Hanger Company is referred to as the A-E-M. When the term A-E-M is used in this contract and specification it shall mean the Mason and Hanger Company acting as A-E-M on contract W-47-013-eng-600. 1.03. Work to be Done. (a) The work to be done under these specifications consists of furnishing all plant labor, tools and services and performing all work for the installation of Outside Steam and Air Lines excluding N. G. Area and Re-Work Area, all in accordance with these specifications and the drawings referred to in paragraph 1-04. * * * 1.04. Drawings. (b) The work shall also conform to such other drawings and addenda to these specifications as may be published or exhibited in the office of the Contracting Officer prior to the opening of quotations, and to such drawings or explanations of details or modifications as may be furnished by the Contracting Officer from time to time during construction, Reporter's Statement of the Case 113 C. Cls. 1-05. Commencement, Prosecution and Completion: The Contractor will be required to commence work under the contract within 3 calendar days after date of receipt by him of notice to proceed, to prosecute the said work with faithfulness and energy, and to complete the work under the contract on or before December 1, 1944. It is the intention of the Government to commence manufacturing operations in certain units as they are completed. The Contractor will be required to adjust his work to conform to this situation and as directed by the A-E-M. 1-12. (b) The work shall be carried on at such places and also in such order of precedence as may be found necessary by the Contracting Officer, and shall be constructed in every part in strict accordance with the drawings and specifications and in exact conformity with the location and limit marks established by monuments, stakes, and otherwise. Work under the various subcontracts shall be properly coordinated with all other subcontracts. Before concealing the work of any subcontractor, the Contractor shall ascertain that all such work has been inspected and approved. (e) Failure of the Contractor to comply with the requirements of the Contracting Officer or his authorized representative under this provision shall be grounds for the determination of the Contracting Officer that the Contractor is not prosecuting the work with such diligence as will insure completion within the time specified; and when such determination has been made, the Contracting Officer may terminate the Contractor's right to proceed with the work or such part of the work as to which there has been delay, pursuant to Article 9 of the contract. ARTICLE 1. Statement of Work.-The Contractor shall furnish the materials, and perform the work for installation of Outside Steam and Air Lines, Excluding N. G. Area and Re-Work Area for the consideration of the unit prices set forth in Schedule A, sheets (a), (b), (c), and (d) and Schedule B, sheets (e) and (f) in strict accordance with the specifications, schedules and drawings, all of which are made a part hereof and designated as follows: "Specifications for Installation of Outside Steam and Air Lines, Excluding N. G. Area and ReWork Area," dated July 19, 1944. 4 2 |