The dredging contract entered into between Colonel Heuer, of the Corps of Engineers, for and on behalf of the United States, and Rudolf Axman, on November 21, 1902, provided, among other things, in paragraph 1, that:

In paragraph 3 of the agreement it was provided: .

In paragraph 4 of the agreement it was provided:

It was provided in paragraph 6 of the agreement that:

The specifications referred to in the agreement provided in paragraph 31 that:

In paragraph 35 it was provided that:

*912 In .paragraph 36 it was provided:

In paragraph 38 it was provided:

In paragraph 33 it whs provided:

in paragraph 40 it was provided:

In paragraph '46 it was provided:

In paragraph 48 it was provided:

In-paragraph 49 it was provided:

On January 3, 1903, Colonel Heuer notified Axman that his contract had been approved by the Chief of Engineers, U. S. Army, and that, in accordance with its terms, work must be commenced within 60 days from the date of the notification. This was March 3, 1903. *913 Axman actually began work on February 24, 1903, but he did not dredge and remove the minimum of 100,000 cubic yards as required by paragraph 46 of the specifications. On December 24, 1903, Colonel Heuer sent Axman the following notice:

On the same day a similar notice was sent to the plaintiff in error. On June 21, 1904, Colonel Heuer entered into a contract with the North American Dredging Company to—

Paragraph 36 (b) of the specifications referred to in the agreement with the North American Dredging Company provided as follows:

Paragraph 39 provides as follows:

Paragraph 4-0 provides as follows:

Paragraph 41 provides as follows:

Paragraph 42 provides as follows:

The complaint set forth the provisions of the dredging contract entered into by Colonel Heuer with Axman and the guaranteeing o£ the contract by the plaintiff in error.

It is alleged that Axman failed to prosecute faithfully or diligently, or at all, the work in accordance with the specifications and requirements of said contract, and did refuse to complete and perform the *914 same, or any part thereof, and did abandon said contract and refuse to do the woi'k in said contract provided, or any part thereof; that, by reason of Axman’s violation of the provisions of the contract, Colonel Heuer annulled the same; that after the annulment the woi'lc was readvertised, and a contract was made with the Noi'th American Dredging Company “to do the woi'k left undone” by Axman; that the North American Dredging Company carried out the work and completed the contract at the cost of $311,991.29, while the cost of the same work at the price for which Axman contracted to do it would .have amounted to $246,490.35, or a difference of $65,500.94; that by reason of Axman’s failure to carry out his contract the United States was compelled to pay and did pay the sum of $65,500.94 more than it would have cost had Axman carried out his contract according to its terms and conditions. Judgment was asked against Axman in the sum of $65,500.94, and against the American Bonding Company in the sum of $50,000. .The plaintiff in error interposed a demurrer to this complaint on the grounds, among others, that the complaint did not state facts sufficient to constitute a cause of action, and that the complaint was uncertain in the following particulars; among others, that it did not appear therefrom: (1) Whether any of the sums alleged to have been paid said North American Dredging Company were expended by said Heuer in the completion of said contract of November 21, 1902, between Axman and Heuer. (2) Whether the work alleged in the complaint to have been done by the North American Dredging Company was done under the same specifications attached to said Axman contract and in said complaint referred to.

The demurrer was overruled, and thereupon the plaintiff in error filed its separate answer, in which it denied generally the allegations of the complaint, and specifically denied that Axman abandoned his contract, and denied that a contract was made with the North American Dredging Company “to do the work left undone” by Axman as provided in his contract, and by way of a further answer and defense it was alleged that:

For a further answer and defense, it was alleged that Colonel Heuer was openly hostile and unfriendly to Axman, and specific acts are alleged which it is chai'ged had for their purpose the impeding and delaying of the work with the intent to prevent Axman from carrying out his contract and performing the work as required in the specificatipns. The substance of these charges is that Colonel Heuer acted arbitrarily and without just cause in the-conditions and requirements imposed upon Axman during the progress of the woi'k and in finally annulling the contract.

The case was tried before the court and a jury, and among other instructions given to the jury was an instruction to.the effect that Ax- *915 man had excavated 196,000 cubic yards for which he should be allowed a credit of $22,432.40. The verdict was for the United States for the sum of $39,903.59.

No evidence was introduced tending to show that Axman abandoned his contract, or that he refused to do the work in said contract provided. The defense that Colonel Heuer acted arbitrarily and without just cause in imposing conditions and requirements upon Axman in executing the work, and in finally annulling the contract, involved questions of fact which we think were submitted to the jury with proper instructions. A number of assignments of error relate to the action of the court in admitting evidence concerning the contract with the North American Dredging Company, and the instructions of the court with respect thereto. They all present the single question whether, in the contract entered into by Colonel Heuer with the North American Dredging Company “to do the work left undone” by Ax-man, there was a material departure from the contract.

This is not a suit to recover generally whatever damages the United States would have sustained had Axman abandoned his contract, but a suit for damages under the express stipulations of the contract, which are set forth in the complaint and made the basis of the action. These stipulations are:

The allegations of the complaint are that Axman had failed to prosecute the work faithfully and diligently, and that Colonel Heuer thereupon annulled the contract, and entered into a contract with the North American Dredging Company “to do the work left undone” by Axman, and that the North American Dredging Company carried out the work and completed the contract.

In the Axman contract it was provided that:

In the contract with the North American Dredging Company it was provided that:

In the Axman contract the place for the deposit of the material was designated as follows:

In the contract with the North American Dredging Company the place for the deposit of the material is designated as follows:

. Evidence was admitted, over the objection of the plaintiff in error, tending to show that it would cost less to deposit the dredged material at the place designated in the contract with the North American Dredging Company than it would cost to deposit it at the place designated in the Axman contract. It was thereupon contended on the part of the United States that the departure from the Axman contract was immaterial, but- it was provided otherwise in the specifications accompanying the Axman contract. It is provided in paragraph 38 that:

Colonel Heuer in his testimony said Mr. Axman was not allowed to deposit material elsewhere than behind the bulkheads. Axman testified that after the place designated for him to deposit the dredged material behind the bulkheads had filled up so that he could only get in at high tide he applied to Colonel Heuer to allow him to deposit the dredged material anywhere else than behind the bulkheads. He also asked permission to be allowed to dump either on the north side of the channel or down at “The Sisters” (the latter place being the place subsequently designated in the contract with the North American Dredging Company for the deposit of the dredged material), but Colonel Heuer refused to allow Axman to deposit the material anywhere else than that specified in the contract. He said to the witness:

Colonel Heuer also testified:

Axman testified that Colonel Heuer would not permit him to bring the dumped material up too high. He only wanted it up to the low-water mark. Colonel Heuer testified in explanation of this requirement:

It thus appears from the contract and from this testimony that the depositing of the dredged material at the place designated in the contract was, under the express terms of the contract: and the requirements of' Colonel Iieuer, the engineer in charge, an independent and material feature of the contract, so material, indeed, that a failure to comply with its terms would deprive the contractor of all compensation for his work. But it is contended on behalf of the United States that, as the contract itself provided that a change, might be made in the project, during the prosecution of the work, with the consent of the contractor, the same thing might be done by the government, after the annulment of the original contract, without the consent of the original contractor. But the contract also provided that:

No such agreement was ever entered into by the original contracting parties in writing or otherwise, and therefore no provision or agreement for a change or modification of the contract ever went into effect; but this provision of the contract supports the contention of the plaintiff in error that, in completing the contract and in doing the work Axman left undone, there could be no departure from the terms of the original contract without such an agreement, and, further, that the surety could not be held liable unless it also agreed in writing to the change.

It is contended on behalf of the United States that the plaintiff in error was not injured by the change in the project made in the contract with the North American Dredging Company, and that it is therefore no ground for complaint. But the plaintiff in error objects that it did not guarantee the contract with the North American Dredging Company under any conditions; that its guaranty was that Ax-man would perform the conditions of his contract, and in case of failure its liability extended to the completion of the Axman contract and in doing the work he left undone; but it did not agree to become liable for any other contract, or for doing any work other than that left undone by Axman under his contract. A contract similar to the one under consideration was the subject of controversy in the case' of American Surety Co. v. Woods, 105 Bed. 741, 45 C. C. A. 282 . In that case the contractors abandoned the contract, and the work was never completed. The action was to recover of the contractors the difference between the amount the employer would have paid the contractors under the contract for the completion of the work and the *918 amount it would cost the employer to complete the work left undone by the contractors. The Circuit Court of Appeals for the Fifth Circuit stated the question for determination, as follows:

Referring to a provision of the contract providing that, in the event the contractor was delayed or failed to do the work, the employer could take charge of the work and finish it, the court said:

It was accordingly held Slat the surety was not liable under the contract. So, in this case, the suit is upon the contract, which provides the conditions of its fulfillment, and the measure of damages for its nonfulfillment, and if, under its terms, the United States has not' completed its contract with Axman and has not completed the work he left undone in a substantial particular, no liabilities have been established against the surety. In American Bonding & Trust Co. v. Gibson County, 127 Fed. 671 , 62 C. C. A. 397 , the Circuit Court of Appeals for- the -Sixth Circuit had before it a contract for the completing of a courthouse. The contract provided that if the contractor failed in any respect to prosecute the work with promptness and diligence, or failed in the performance of any of the agreements contained in the contract, such failure being certified by the architects, and if the architects further certified that the failure was sufficient ground for the action, the county might terminate the contract and enter upon the premises and take possession for the purpose of completing the work. It was further provided that, if the contract was terminated and com *919 pleted by the county, the excess paid by the county to other contractors over the contract price should be paid by the contractors and his surety, and that such expense for finishing the work and any damage incurred through such default shall he audited and certified by the architects, whose certificate thereof shall he conclusive upon the parties. The architects notified the building committee of the county that the contractors had failed to prosecute the work with promptness and diligence, and certified that the failure, refusal, and neglect was such as to warrant the termination of the contract. Accordingly, after notice, the employment of the contractors was terminated, possession taken, and the building completed by the county. The contractors did all of the work except that covered by the final payment. The action was brought to recover the expense incurred by the county over the contract price in completing the courthouse, but it was not alleged or proved that the architects had audited and certified the expense for the damage incurred by the county in completing the contract. Notwithstanding the lack of this certificate, the lower court directed a verdict against both the contractors and their surety, the bonding company. In this action the Circuit Court of Appeals held that the lower epurt was in error, saying:

*920 ■ The recent case of United States v. Freel, 186 U. S. 309, 22 Sup. Ct. 875, 46 L. Ed. 1177, is more in point, and is authority upon all the questions involved in this case. The action was against the principal and sureties on a contractor’s bond, given to secure the performance of-contract to construct a dry dock at the Brooklyn Navy Yard. The contract was between the contractor and the Chief of the Bureau of Yards and Docks in the Navy Department. It provided for the construction of a dry dock—

The seventh paragraph of the contract provided (substantially as in the contract before the court) that:

It was further provided:

It was further provided:

A supplemental contract in writing was entered into between the contractor and the Chief of Yards and Docks, providing that the location of the dry dock should be—

This supplemental contract provided full compensation to the contractor for the additional work, and it recited that it was under the provisions of and in accordance with article 7 of the original contract, but the surety was not a party to the supplemental contract. The contractor proceeded with the work under the original and supplemental contract, but so slowly, negligently, and unsatisfactorily that the Secretary of the Navy, under the option and right reserved to him by the said contract, declared the contract forfeited on the part of' the contractor, and thereafter, under the provisions of the contract, the Secretary of the Navy proceeded to complete the dry dock and appurtenances in accordance with the contracts, plans, and specifications, at a cost to the United States of the. sum of $370,000. The sum of $72,414.16 represented the damage sustained by the plaintiff in completing the contract. The suit was brought to recover from the contractor and his sureties the damages alleged. The sureties interposed a demurrer, on the ground that the plaintiff did not state facts sufficient to constitute a cause of action, and the question was whether a surety on a contractor’s bond conditioned for the performance of a *921 contract to construct a dry dock was released by subsequent changes iu the work made by the principals without the consent of the surety. It was claimed on behalf of the United States that the change made in the original contract by the supplemental agreement was within the contemplation of that contract, and must be deemed to have been assented to in advance by the surety. The trial court held that this change was not within the scope of the original contract, but was such a change that exonerated the surety from liability for the subsequent dereliction of his principal. This view of the contract was affirmed by the Supreme Court, which, after citing authorities relating to the liabilities of sureties, said:

It will be observed that, unlike the case before this court, the change in the original contract was made in accordance with the terms of the contract and the change agreed to by the parties to the contract in writing, but, like the present case, the consent of the surety to the change was not obtained, and it was upon that fact that the silrety was held not liable. It will be observed further that the contractor was to be compensated for the additional expense in making the change, so that the surety was in no way injured by the change iu the contract. The surety was, nevertheless, held discharged from liability. This case is a sufficient answer to the contention of the United States iu the present case, that the change in the contract was not material to the plaintiff in error. It is not necessary to review the cases bearing upon this last question. They are numerous, and the law has been authoritatively determined. The surety has the right to stand upon the very terms of his contract. If the conditions of the liability have not accrued under the terms of the contract, the surety is not liable, and if a change is made iu the contract without his consent his liability is at an end, even though it may appear that the change is for his benefit. The law as declared by the Supreme Court in Miller v. Stewart, 9 Wheat. 680, 701 , 6 L. Ed. 189 , is clear and distinct upon this question. It says:

In Reese v. United States, 9 Wall. 13, 21 , 19 L. Ed. 541 , the same court said:

In the present case .there was a substantial change in the work required to be done under the original contract. The North American Dredging Company did not under its contract complete the Axman contract, and did not do the work he left undone. The surety did not consent to this change, and is, therefore, not liable for the additional cost arising out of the contract for work done in lieu of that provided for in the Axman contract.

The judgment of the Circuit Court is reversed, and the case remanded for a new trial.