Dissenting Opinion.

of the representation that they "believed" the material to be of a certain character.

To maintain his action the plaintiff must not only show a positive representation which misled him, but a representation upon which he had a right to rely and did rely. Unless no effect be given to the language of the specifications, there could be no reliance placed by the plaintiff upon the defendants' representation, if it can be so called. The rule announced in the Simpson case, 172 U. S., 372, is a salutary one that should not be lightly passed over. It controls the instant case.

With full knowledge of the character of the material to be dredged, the plaintiff continued at work for more than a year and then made a supplemental contract whereby the price he was to receive was reduced on account of the fact that he was relieved from handling the heavier material in the manner prescribed by the original contract. He thereafter continued under the supplemental contract the work for many months. So far from making a positive representation as to the character of material to be dredged, the defendants excluded that idea by the most positive terms, in that they said that "the United States does not guarantee the accuracy of this description."

This condition, as we have stated, is recognized by the petition in paragraph 10 thereof. The specifications informed the bidders that the work to be done would include the removal of all obstacles to navigation, and by section 8, that no claim whatever should be made on account of extra work unless it was required in writing by the contracting officers. The facts fall far short of showing that the plaintiff had any right to rely upon the alleged representations. It requires no citation of authority to show that if the representation was an expression of opinion, it can not form the basis of an action, unless it be shown, as it is not in this case, that the opinion was expressed with the purpose or intention of misleading the bidder. This case is materially different from the Hollerbach case, 233 U. S., 165, and the Christie case, 237 U. S., 234. In the Hollerbach case there was a positive representation as to the character of the filling back of the dam, and the plaintiff had to go through that

Dissenting Opinion.

filling in order to perform the work which he undertook to do. In the Christie case there was a positive statement that the material to be excavated, "as far as known," was shown by probings, and it developed that all the information which the defendants had from the probings was not communicated to the claimant. The statement, however, was positive. In that case also there was not time for the plaintiff to make an independent investigation, and in the instant case there was such time. The material encountered in both of the cases was an incident to the general work to be performed under the contract, and therefore the going through a filling in the dam or the removal of logs in the river were things that had to be done in order to perform the contract. In the instant case there was no positive representation as to what the material would be, and when it is borne in mind that the probings were 10 in number, about a thousand feet apart, and therefore extending over an area of nearly 2 miles, that the material to be dredged was of that length, and 600 or more feet in width, it seems impossible to conclude that those probings or borings should be taken as representations by the defendants that the material to be dredged was of the character shown by the probings. Groton Bridge Co. v. A. & B. Ry. Co., 31 So. Rep., 739.

Nor is this case ruled by Atlantic Dredging Co., 35 C. Cls., 463. In that case there was a positive representation as to the character of material. The plaintiff suspended work and the Government brought suit in the Circuit Court for the Eastern District of New York, after finishing the work, to recover the difference between what plaintiff had agreed to do the work for and the Government had paid to have it done. The contractor prevailed in that suit, and later brought an action in this court to recover a retained percentage held by the Government and also damages. The court treated the question as res adjudicata, and held that the Government was estopped to make certain defenses. The plaintiff was allowed to recover the profits he alleged he would have made if the material had been as represented. The court treated the representation as a warranty and applied the rule of damages applicable in suits upon warranties. The measure of damages thus adopted is open to

Dissenting Opinion.

question. Sigafus v. Porter, 179 U. S., 116, 123; Huganir v. Cutter, 102 Wis., 323. In a subsequent case, Lewman, 41 C. Cls., 470, which is much more like the instant case than the Atlantic Dredging Company case, 35 C. Cls., is, the latter is distinguished. Burgwyn case, 34 C. Cls., 348. See also Ferris case, 28 C. Cls., 332.

Another question appears to arise in this case if it be asumed that the plaintiff, if his action were between individuals, would have a cause of action. While three of the judges concur in the view that the plaintiff is entitled to recover, three of the judges agree that by the petition as well as the facts relied upon there is presented an action ex delicto, one of the judges holding the view that whether the action be ex delicto or not it can be manitained as being for a claim founded upon a contract, express or implied. The question therefore arises as to whether this court has jurisdiction. Section 145 of the Judicial Code confers jurisdiction to hear and determine claims founded "upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable."

It being the duty of all courts to recognize the limits of their authority (Reid's case, 211 U. S., 529), it is essential that the court observe the line of demarcation between cases of which it has jurisdiction and those of which it has not jurisdiction, because "judicial duty is not less fitly performed by declining ungranted jurisdiction that in exercising firmly that which the Constitution and the law confer." Ex parte McCardle, 7 Wall., 506, 515.

In Gibson's case, 29 C. Cls., 18, where the court considers the Tucker Act (sec. 145), it is said:

"The restriction of the jurisdiction of the court to contracts, express or implied, has, in the judgment of the Supreme Court, recognized the well-understood distinction between matters ex contractu and those ex delicto, and has excluded from the consideration of the court cases which are founded upon wrongs and such as can be adjudicated only in the form of an action ex delicto." Lanman's case, 27 C. Čls.,

260.

Dissenting Opinion.

In Langford's case, 101 U. S., 341, 345, the question is considered, and it is said:

"And it would ill become us to fritter away the distinction between actions ex delicto and actions ex contractu, which is well understood in our system of jurisprudence."

In Hill's case, 149 U. S., 593, 598, the cases are reviewed and the doctrine of the Langford and the Jones cases, 131 U. S., 1, is repeated, the court saying:

"The United States can not be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed in their name by their officers. Nor can the settled distinction, in this respect, between contract and tort, be evaded by framing the claim as upon an implied contract."

See also Bigby's case, 188 U. S., 400, 406.

"Nor is the difference merely formal or technical between actions founded in tort and in contract." Garland v. Davis, 4 How., 131, 144.

In Dooley's case, 182 U. S., 222, the action was sustained not upon the theory of any contractual relation but because the action was founded upon a law of Congress. That case was considered in Basso's case, 239 U. S., 602, where the court adheres to the principles announced in Schillinger's case, 155 U. S., 163. In the latter case concession was made by the appellant that the cause of action sounded in tort, and he contended that this court has jurisdiction under the Tucker Act over claims ex delicto founded upon the Constitution of the United States. He relied upon the Dooley case, but the court recognized that to carry out that contention would involve, by implication at least, the overruling of the Schillinger case, and said:

"We are not disposed to overrule the case, either directly or by implication.'

It is to be observed that the statute forbids jurisdiction of "cases sounding in tort." The Supreme Court has held that in order to give the Court of Claims jurisdiction under the Tucker Act, the demands sued upon must be founded on "a convention between the parties"-a coming together of minds-and that there is excluded as not meeting this condition those contracts or obligations that the law is said to

Dissenting Opinion.

imply from a tort. Russell's case, 182 U. S., 516, 530; Harley's case, 198 U. S., 229, 234; Juragua Iron Co. case, 212 U. S., 297, 309. In this court a party may not waive a tort and sue in assumpsit. Bigby's case, 188 U. S., 400, 409, citing Cooper v. Cooper, 147 U. S., 370, 373.

I take the rule, therefore, to be that if the case made by plaintiff be one ex contractu at common law the court has jurisdiction, and if the case made by the plaintiff could only be maintained at common law by an action ex delicto, the court has not jurisdiction.

A test of whether the case is one of contract or tort under the form of declaration at common law has been said to be that "if specific breaches are assigned, sounding ex delicto, it is case on the tort." New Jersey Co. v. Merchants' Bank, 6 How., 344, 433. The latter seems to be the character of plaintiff's case, assuming that he has one.

The claim of damages in the petition is clearly the measure of damages which obtains in actions for deceit, and is not the measure of damages in actions for breach of contract. Smith v. Bolles, 132 U. S., 125, 129. In other words, the plaintiff claims all that he expended in and about the work, notwithstanding he agreed in the first instance to do the dredging at a fixed price, and thereafter, with full knowledge of the conditions, made a supplemental contract by which he voluntarily reduced the price fixed in the original contract, and as I understand the court's judgment, the plaintiff is awarded judgment for what he actually expended in the prosecution of the work. The "loss" thus ascertained is the measure of damages for deceit. And it is to be remembered that the plaintiff is compensated, not upon the theory of the value of his work to the defendant, nor upon the theory of what the reasonable cost would have been if he had had a plant reasonably adapted to the work. He con-. cedes that he had a plant that was inefficient for the work as it actually developed, and he seeks judgment for what the work with that kind of a plant cost, and is awarded judgment accordingly.

The facts rebut the idea that what it cost the plaintiff to do the work is even measurably a basis for a judgment, be