the word parties as meaning the contractor and the United States. But we do not delay upon this, as the case must be decided on the provisions dealing expressly with extension of time, and we have referred to the other clauses simply to show that in other particulars, as well as time, the sureties were going into an undertaking which was subject to contingencies of several sorts. It was limited by the appropriations available. It might be modified in plan. The limits of dredging might be changed. Necessity or convenience might require an extension of time.

We should be inclined to suppose that the extension was allowed as an unavoidable delay. But if it was allowed as an avoidable one, it does not appear that the Government did not enforce the condition as to the costs to be borne by the contractor, and if it took no steps to collect them the sureties were not concerned. The contract was not altered, and insistance by the United States would have done them no good.

The construction that we adopt is fortified by the provision for deductions of $50 per day for delay beyond the period fixed for the end of the work. For even though this fell only on the contractor it created a necessity for extension in possible cases, to which the sureties must be deemed to have assented rather than expose their principal to such a risk. Manifestly if the construction now contended for by them had been written in it would have created a strong motive against relaxations that would have let them off. We deem what we had said sufficient to justify our conclusions without considering the argument of the Solicitor General that the contractor was given a right to the extension of time if the Secretary of the Navy decided for it, and that the Secretary of the Navy is to be regarded as a third party and stranger to the contract rather than as representing the United States. See United States v. Gleason, 175 U. S. 588. Of course if the Secre

tary be so regarded the contractor's right is made out, as the extension would be independent of the will of the other party to the contract, the United States.

The next argument that seems to us to need a word is on the effect of the election of the United States to annul the contract, as it was said. The infelicity of the word annul has been adverted to and its meaning explained heretofore. If notice had been given before the final breach and abandonment, it would have meant simply that the United States would proceed no further with the contractor under the contract, not that it rescinded or avoided it. Philadelphia, Wilmington & Baltimore R. R. Co. v. Howard, 13 How. 307, 340. United States v. O'Brien, 220 U. S. 321, 328. At the time when the notice was given it was merely a ceremony to mark the point of default as a preliminary to employing some one else. The obligations of the contract, so far as applicable to a case of default, remained in full force. The United States had a right to get some one else to complete the work and to charge the defendants with the reasonable difference in cost. Indeed this right was expressly stipulated in the specifications, if during the progress of the work a board should recommend that the contract be 'annulled' on the ground that it would not be completed in time. The cost to the United States was the least for which it could get the work done under the conditions upon which the Government was bound to contract, and must be assumed to have been reasonable in the absence of any evidence to the contrary. New York v. Second Avenue R. R. Co., 102 N. Y. 572. Baer v. Sleicher, 153 Fed. Rep. 129. 82 C. C. A. 281. It was less than the sum stipulated as liquidated damages. Sun Printing & Publishing Association v. Moore, 183 U. S. 642. United States v. Bethlehem Steel Co., 205 U. S. 105, 119.

The objection that the second contractor does not appear to have completed the work intended to be accomplished

by the first, that is to have made a channel of a certain depth, does not impress us. The first contract was for certain work for a certain object, but limited and subject to change as the appropriations might require. The second was for the same on the same plans and specifications, the only difference being in the parties, the price, and the liberty given to the second contractor to dump in deep water, which diminished the cost. In the first contract the Government reserved an absolute right of choice in this regard. Whether the object of the contract was attained is immaterial, so long as the work done towards it was work that the first contractor had agreed to perform.

As little need be said in answer to the argument that there was no enforcible contract for want of certainty and mutuality. The power to change details reserved by the United States did not make the contract any the worse, and there were full provisions for ascertaining a change in compensation where any such change was proper. There was nothing warranting an enlargement of the plan beyond the channel of Beaufort River, or the purpose indicated. The contract estimated the amount of material to be removed, and as there were different prices per yard for earth and rock, this amount was expressly made subject to the appropriations, as without expression would have been implied. See Rev. Stat., § 3733. There was some suggestion at the bar that the contract was not signed by the United States. The answer does not deny it, but by implication admits it. The contract says that it is made by the United States by E. O. Matthews, Chief of the Bureau of Yards and Docks, and it is signed by E. O. Matthews, Chief of the Bureau of Yards and Docks, which is enough. The matter does not seem to us to need discussion at greater length.

Judgment of Circuit Court of Appeals reversed.
Judgment of Circuit Court affirmed.

222 U.S.

Argument for Petitioner.

CUBA RAILROAD COMPANY v. CROSBY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 124. Argued December 18, 1911.—Decided January 9, 1912.

In dealing with rudimentary contracts, or torts made or committed abroad, courts may assume a liability to exist if nothing to the contrary appears, but they cannot assume that the rights and liabilities are fixed and measured in the same manner in foreign countries as they are in this.

With rare exceptions, the liabilities of parties to each other are fixed by the law of the territorial jurisdiction within which the wrong is done and the parties are at the time of doing it.

The extension of hospitality of our courts to foreign suitors must not be made a cover for injustice to defendants of whom they may be able to lay hold.

There is no general presumption that the law of Cuba as inherited from Spain and as since modified is the same as the common law. While as between two common-law countries the common law may be presumed to be the same in one as in the other, a statute of one would not be presumed to be the statute of the other.

A trial court of the United States cannot presume that the same obligation rests upon an employer in Cuba as in this country to repair defects in machinery called to his attention, or in case of failure to repair to be deprived of the fellow-servants defense. Such a rule of law, if existent in a foreign jurisdiction, must be proved.

170 Fed. Rep. 369; 95 C. C. A. 539, reversed.

THE facts are stated in the opinion.

Mr. Howard Mansfield for petitioner:

The courts of the United States should not take cognizance of an alleged cause of action for a foreign tort where the rights of the parties under the foreign law cannot be certainly and definitely ascertained, and where

Argument for Petitioner.

222 U.S.

the foreign tribunal is equally available to both parties. Slater v. Mexican National R. R. Co., 194 U. S. 120, 129.

The rule is that the lex loci delicti determines whether or not there is a cause of action. Machado v. Fontes (1897), L. R. 2 Q. B. 231; Phillips v. Eyre (1876), L. R. 6 Q. B. 1; Coyne v. Southern Pac. Co. (1907), 155 Fed. Rep. 683; Minor's Conflict of Laws, § 202; Dicey on the Conflict of Laws; Moore's Notes, 659, 667; Cooley on Torts, 3d ed., 900; Mexican Central Ry. Co. v. Chantry, 136 Fed. Rep. 316; Mexican Cent. Ry. Co. v. Eckman, 205 U. S. 538.

The last two cases dispose of the dictum in Scott v. Lord Seymour, 1 H. & C. 219, relied on by the Circuit Court, and by the majority of the Circuit Court of Appeals.

Federal courts will not take cognizance of a common tort which arose in a civil law jurisdiction, unless the acts complained of gave rise to an obligation in the jurisdiction where the alleged cause of action arose.

There can be no presumption that the common law extends to Cuba.

In the case of a country not settled by England or English colonists there is no presumption that the common law prevails there or that rights given by the common law exist in such country; and our courts must take judicial notice that Cuba was not settled by England or her colonists, but that it formed part of the Spanish possessions and that the civil law obtains there, and that that law is wholly statutory. Davison v. Gibson, 56 Fed. Rep. 443; Savage v. O'Neil, 44 N. Y. 298; Aslanian v. Dostumian, 174 Massachusetts, 328; Mex. Cent. Ry. Co., Ltd., v. Chantry, 136 Fed. Rep. 316.

There can be no presumption, nor any ruling in the absence of pleading or proof, that the act alleged gave rise to a cause of action in the foreign country. Evey v. Mexican Cent. R. R. Co., 81 Fed. Rep. 294; Slater v. Mexican Natl. R. R. Co., 194 U. S. 120; Stewart v. Baltimore &