UNITED STATES v. MCMULLEN ET AL., ADMINISTRATORS. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE No. 100. Argued December 13, 14, 1911.-Decided January 9, 1912. Under the provisions of the contract in this case for possible extensions of time, the sureties on the bond which was part of the contract were not discharged by reason of the extensions which were granted pursuant to the contract. Where there is a penalty for avoidable delay in performance of a government contract, sureties are not discharged because the Government does not take steps against the contractor to collect the penalties. Quare, whether where the contractor is given a right to extension of time if the Secretary of Navy approves, the Secretary is to be regarded as a third party or as representing the United States. Annulling a contract by the Government does not mean in this case that the Government rescinded or avoided it, but that it would proceed no further with the contractor and would charge him with the difference in cost caused by his default. When the Government relets a contract after default, the price for which it is relet must be assumed to be reasonable in absence of evidence to the contrary, and this is especially so when the difference is less than the sum stipulated as liquidated damages. When the Government relets a contract, the sureties are not relieved because there are differences in the terms which diminish the cost of the work as relet. A government contract is not unenforcible for want of certainty and mutuality because it allows changes by the United States, subject to provisions for change of compensation where proper. The amount of work to be done under a government contract depends upon the appropriations made by Congress for carrying on the work, and this is implied whether expressed in the contract or not. Where the answer does not deny that the contract was signed by the United States and the contract declares that it is, and it is signed by the Chief of Bureau of Yards and Docks, there is admission by implication that it was signed by the United States and is sufficient. 167 Fed. Rep. 460; 93 C. C. A. 96, reversed. 222 U.S. Argument for Defendants in Error. THE facts, which involve the liability of contractors and sureties upon a contract with the United States for dredging and a bond given for completion thereof, are stated in the opinion. The Solicitor General for the United States. Mr. Burke Corbet, with whom Mr. John R. Selby and Mr. Edward J. Lynch were on the brief, for defendants in error: The time of performance was extended without the consent of sureties, and thereby they are discharged. Miller v. Stewart, 9 Wheat. 680; Reese v. United States, 9 Wall. 13; Fed. Cas. No. 9591; Driscoll v. Winters, 122 California, 66. The only rule for the construction of a surety's obligation to perform a contract of suretyship is that of strictissimi juris. Guarantee Co. v. Pressed Brick Co., 191 U. S. 416; United States v. American Surety Co., 200 U. S. 197; see also A. T. & D. Co. v. Laurinburg, 163 Fed. Rep. 695; Henry v. Artona Ins. Co., 79 Pac. Rep. 42; Boppart v. Illinois Surety Co., 126 S. W. Rep. 771; Lonergan v. S. A. L. & T. Co., 104 S. W. Rep. 1067; Smith v. United States, 2 Wall. 235; United States v. McIntyre, 11 Fed. Rep. 597; United States v. Freel, 186 U. S. 309. A change in the time of performance of a contract is a material change, and will release sureties. Earnshaw v. Boyer, 60 Fed. Rep. 528; Rowan v. Sharp's Rifle Mfg. Co., 33 Connecticut, 1; United States v. Freel, 92 Fed. Rep. 299; S. C., aff'd 186 U. S. 309; United States v. Howell, Fed. Cas. No. 15,405; Lane v. Scott, 57 Texas, 367; United States v. De Visser, 10 Fed. Rep. 642; Whitcher v. Hall, 5 B. & C. 269; Samuel v. Howarth, 3 Merivale, 272; Todd v. School Dist., 40 Michigan, 294; Judah v. Zimmerman, 22 Indiana, 388; Barber v. Burrows, 51 California, 404; Fidelity Dep. Co. v. United States, 137 Fed. Rep. 866. It is the alteration of the contract, not the increase of Argument for Defendants in Error. 222 U.S. 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 222 U.S. 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. 222 U. S. 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 |