vantage of a judgment in favor of the other. Fed. 850; United States v. Weisberger, 124 C. C. A. 429, 206 Fed. 645; Mundy v. United States, 35 Ct. Cl. 265; American Surety Co. v. Woods, 45 C. C. A. 282, 105 Fed. 741. Assistant Attorney General Thompson argued the cause, and, with Mr. Charles F. Jones, filed a brief for the United States: United States v. Bethlehem Steel Co. Moses v. United States, 166 U. S. 571, 41 L. ed. 1119, 17 Sup. Ct. Rep. 682; Drummond v. Prestman, 12 Wheat. 515, 6 L. ed. 712; Berger v. Williams, 4 McLean, 577, Fed. Cas. No. 1,341; Union Guaranty & T. Co. v. Robinson, 24 C. C. A. 650, 49 U. S. App. 148, 79 Fed. 420; Lowell v. Parker, 10 Met. 309, 43 Under the terms of the contract the Am. Dec. 436; Willey v. Paulk, 6 Conn. 74; Stearns, Suretyship, $ 303; Hare v. forfeited. Appellee thereby became ingovernment lawfully declared the same Grant, 77 N. C. 203; Snider v. Great-debted to the United States for the difhouse, 16 Ark. 72, 63 Am. Dec. 54; Bone ference between the cost under its conv. Torrey, 16 Ark. 83; Clark v. Carring-tract and the Concannon contract, and ton, 7 Cranch, 308-322, 3 L. ed. 354-358; for liquidated damages. Lovejoy v. Murray, 3 Wall. 1, 18 L. ed. 129; Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564; Lawrence v. Stearns, 79 Fed. 878; Konitzky v. Meyer, 49, N. Y. 571; McFall v. Dempsey, 43 Mo. App. 369; Duffield v. Scott, 3 T. R. 377, 100 Eng. Reprint, 630; Jones v. Williams, 7 Mees & W. 493, 151 Eng. Reprint, 860, 9 Dowl P. C. 252, 10 L. J. Exch. N. S. 120; Parker v. Lewis, L. R. 8 Ch. 1059, 43 L. J. Ch. N. S. 281, 29 L. T. N. S. 199, 21 Week. Rep. 923, 928, 23 Cyc. 1270; Featherston v. Newburgh & C. Turnp. Road, 71 Hun, 111, 24 N. Y. Supp. 603; Hill v. Bain, 15 R. I. 75, 2 Am. St. Rep. 873, 23 Atl. 44. In a government contract, the advertisement, proposals, and acceptance, which are preliminary steps required by law, are a part of the contract. Garfielde v. United States, 93 U. S. 242, 23 L. ed. 779; Harvey v. United States, 105 U. S. 671, 688, 26 L. ed. 1206, 1212; United States v. Mueller, 113 U. S. 153, 28 L. ed. 946, 5 Sup. Ct. Rep. 380. The site first selected was definitely fixed by the representations made by the stakes. United States v. Gibbons, 109 U. S. 200, 201, 27 L. ed. 906, 3 Sup. Ct. Rep. 117. Claimants could not be required to build on the second site, and are therefore entitled to judgment. United States v. Freel, 186 U. S. 309, 46 L. ed. 1177, 22 Sup. Ct. Rep. 875; United States v. Peck, 102 U. S. 64, 26 L. ed. 46, affirming 14 Ct. Cl. 84; Smith v. Salt Lake City, 83 Fed. 784, 43 C. C. A. 637, 104 Fed. 457. 205 U. S. 105, 51 L. ed. 731, 27 Sup. Ct. The contracting principal was not in privity with the surety. Bigelow, Estoppel, 137, 138; Pritchard v. Hitchcock, 6 Mann. & G. 151, 134 Eng. Reprint, 844, 6 Scott, N. R. 851, 12 L. J. C. P. N. S. 322, 27 Am. & Eng. Enc. Law, 455; Sheehy v. Mandeville, 6 Cranch, 253, 3 L. ed. 215. It is inconceivable that the judgment relied upon could be held to be an estoppel in any sense or to any extent; but admitting, for the sake of argument, and for no other purpose, that it does create an estoppel, the bar would be limited to that which was actually litigated and determined, because the action in this case is upon a different claim and demand. Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252-257, 54 L. ed. 179– 184, 30 Sup. Ct. Rep. 78; Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Northern P. R. Co. v. Slaght, 205 U. S. 122, 51 L. ed. 738, 27 Sup. Ct. Rep. 442. The work performed by the second contractor (Concannon) would have been required of appellee under its contract. had it completed the same. United States v. McMullen, 222 U. S. 460, 56 L. ed. 269, 32 Sup. Ct. Rep. 128; Simpson v. United States, 172 U. S. 372, 43 L. ed. 482, 19 Sup. Ct. Rep. 212. Mr. Justice Clarke delivered the opinion of the court: These two cases are appeals from the court of claims which were heard and will There can be no recovery on the coun- be decided together, the second being a terclaim, even if the contract was valid-cross appeal from the judgment denying ly forfeited. recovery on the government's counterclaim. United States v. Axman, 234 U. S. 36, 58 L. ed. 1198, 34 Sup. Ct. Rep. 736; The California Bridge & Construction Chesapeake Transit Co. v. Walker, 158 Company, hereinafter referred to as the Bridge Company, on December 21, 1898, with the American Surety Company of New York, Albert Brown and Thomas Prather as its sureties, entered into a written contract with the United States to furnish the materials for and to completely construct, within six months from the date of the contract, a sawmill, boiler house, and steel chimney "at the United States Navy Yard, Mare Island, California." [339] On January 2, 1901, claiming to act under an option therein contained, the government declared the contract void, and the Bridge Company was notified that the work would be completed at its expense. Under a second contract the work was completed by another contractor. dent of the Bridge Company visited the Navy Yard before the contract was signed, he was authoritatively informed "that the site of the structure was not definite," and that "the location was liable to be changed to some other place within the limits of the Navy Yard." The correspondence, appearing in the finding of facts, which passed between the parties before the contract was annulled, makes it clear beyond controversy that the Bridge Company, when it executed the contract, fully understood that another location than the one pointed out might finally be selected. Not long after the contract was signed, as if concluding that it was an improvident one, which it wished to modify, the Bridge Company, for various reasons, In its amended petition the Bridge some with and more without merit, deCompany claimed that the government layed in going forward with the work, had terminated the contract without war- with the result that after much discussion, rant, and sought to recover for materials on January 2, 1901, in a letter addressed furnished, expenses incurred, and antici- to the Bridge Company, the government, pated profits. The government denied all asserting that it was acting under the opliability to the plaintiff, and in a counter- tion reserved in the contract, declared it claim prayed for a judgment for the dif- void and gave notice to the Bridge Comference between the amount of the plain-pany that the work would be completed at tiff's contract and the cost of completing the work, plus liquidated damages. The substance of the Bridge Company's first claim is: That when, for the purpose of informing itself with a view to bidding on the proposed work, its president and secretary visited the Navy Yard, a location for the construction, hereinafter designated the "first location," was shown to them, duly staked out, and that its bid was based upon this representation; that after the contract was executed, without the consent of the Bridge Company, this location was changed to another, hereinafter designated the "second location," still within the Navy Yard, but one upon which it was much more difficult and expensive to construct the work than upon the first location; and that the government refused to agree to make a reasonable allowance for such increased expense, and wrongfully annulled the contract, to the damage of the claimant. its expense. The contract contained a provision giving to the government the option to declare it void if the parties of the first part should fail in any respect to perform their obligations under it, and we agree with the court of claims in concluding that this action by the government, taken upon the recommendation of a board of three naval officers, was entirely justified. The Bridge Company further relies upon a judgment rendered in the Federal circuit court for the eastern district of Pennsylvania in favor of its surety, the American Surety Company of New York, as estopping the government from claiming, either in defense or in aid of its counterclaim, that it had the lawful right to require the company [341] to erect the structure contracted for on the second site. As a general proposition, the claim that the principal and surety in a contract of To this branch of the case the defense suretyship are in such privity that a judgis that, at the time the officials of the ment in favor of the latter works an esplaintiff visited the Navy Yard and also toppel in favor of the former arrests atwhen the contract was signed, the precise tention more by its novelty than by its location of the plant had not been official-difficulty, having regard to the several ly determined upon, that they were then so informed, and made their bid with that understanding, and that the contract was lawfully annulled for delay in going forward with the performance of it. [340] The case is here for review on a finding of facts by the court of claims, in which it is stated that when the presi defenses which a surety may have on its contract which the principal may not have. Especially is this true in such a case as we have here, in which the contract of suretyship consists simply in the signing of the construction contract by the Surety Company "as surety," so that the rights and obligations of the parties to it must be derived wholly from the law of, suretyship. In dealing with this contention of the Bridge Company, it will not be necessary for us to enter into the refinements of the decisions with respect to privity and privies. Surety Company, and judgment was entered accordingly." No writ of error was procured to review this judgment. Obviously, the finding and judgment thus described by the court of claims must be understood as deciding that the government was not justified in requiring the construction to be on the "second location" was the only defendant served or appearing in that action, but not as so holding as against the Bridge Company, which was a stranger to it, and therefore the judgment in that case cannot serve as an estoppel in this one unless the issue relied upon by the Surety Company in the circuit court case to defeat the claim of the government for damages was precisely the same as is relied upon in this case by the Bridge Company for the same purpose, and a brief discussion of the record will show that such is not the fact. The doctrine of estoppel by judgment, or res judicata, as a practical matter, pro-as against the Surety Company, which ceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he repre- | sents the same legal right, precisely the same question, particular controversy, or issue which has been necessarily tried and finally determined, upon its merits, by a court of competent jurisdiction, in a judgment in personam in a former suit. Hopkins v. Lee, 6 Wheat. 109, 113, 5 L. ed. 218, 219; Washington, A. & G. Packet Co. v. Sickles, 24 How. 333, 16 L. ed. 650, the same case, 5 Wall. 580, 18 L. ed. 550; It is to be noted that the contract proLovejoy v. Murray, 3 Wall. 1, 18, 18 L. vides for the completing of the required ed. 129, 134; Litchfield v. Goodnow, 123 construction "at the United States [343] U. S. 549, 31 L. ed. 199, 8 Sup. Ct. Rep. | 210; Southern P. R. Co. v. United States, 168 U. S. 1, 48, 42 L. ed. 355, 376, 18 Sup. Ct. Rep. 18; Fayerweather v. Ritch, 195 U. S. 276, 49 L. ed. 193, 25 Sup. Ct. Rep. 58; Bigelow v. Old Dominion Copper Min. & Smelting Co. 225 U. S. 111, 127, 56 L. ed. 1009, 1021, 32 Sup. Ct. Rep. 641, Ann. Cas. 1913E, 875; Bigelow, Estoppel, chap. 3. Navy Yard, Mare Island, California," without designation of the precise location in the Navy Yard, and therefore since the "first" and "second" locations were both within the limits of the Yard, it was necessary to determine from evidence aliunde the writing whether the "first location" was represented to either the Surety Company or to the Bridge Company as having been finally determined upon before they executed the contract, and the information which each received as to this fact would determine its legal rights with respect to the claim of the government for damages. The suit in which this judgment claimed as an estoppel was rendered was commenced by the government against the American Surety Company and others, as ureties of [342] the Bridge Company on the building contract, to recover the dif- The defense in the former case turned ference between the amount which the on the information which the Surety Comgovernment was compelled to pay for the pany received as to the precise location completed work and the amount for in the Navy Yard of the proposed conwhich the Bridge Company had construction before it executed the contracted to complete it. The Surety tract, whether it was informed as to the Company was the only defendant which "first location" and as to whether that was served or appeared in the suit. With respect to this judgment the court of claims finds that in the circuit court the Surety Company pleaded non assumpsit and a special plea based on the action of the United States "in assuming to change the contract by changing the site of the buildings to be erected, to which change the surety had not assented." And also that the circuit court "submitted to the jury the question whether, under the contract and the circumstances attending its execution, the United States could require claimants to erect the structure contemplated by the contract at a site other than as stated, and that the jury brought in a verdict for the location had been finally or only tentatively determined upon, and the claim of the Bridge Company in this case turns on the information, also with respect to the "first location," which that company received before signing the contract. But since there was no relation between the two companies such that either was or is chargeable with the knowledge which the other had on this disputed subject, and since the notice which one of them had may have been entirely different from that which the other received, clearly the Surety Company may have been informed that the "first location" had been definitely determined upon and may have executed the contract with that under ject. standing, as the judgment in its favor in | difference in cost between the two under the circuit court implies, while, at the the familiar rules applicable to the subsame time, as the government claims in this case, the Bridge Company, prior to and at the time of the signing of the contract, may have been informed that the "first location" was tentative only and subject to change, as the court of claims has found to be true. The history of the negotiation between the Bridge Company and the government before the first contract was annulled, as it appears in the finding of facts, makes it highly inequitable that the claim of liquidated damages should be allowed. Thus, since the legal liability of the The recovery of the Bridge Company, limSurety Company and the Bridge Com-ited as it was to the value of the materials pany depends as to each upon peculiar delivered by it and used by the govern[344] facts of each case, and as one ment, is approved. It results that the could very well be liable and the other judgment of the Court of Claims is afnot, it is plain that the issue determined firmed. in the circuit court case was not the same as that which was presented in this case, and that therefore the claim of estoppel PEOPLE OF THE STATE OF NEW YORK by former judgment is without merit and must be denied. There remains to be considered the cross appeal of the government. After the contract with the Bridge Company was annulled, the government entered into a contract with another contractor, identical with the former one, except for some unimportant additions to the specifications. But, in the progress of the work, four supplemental contracts were deemed necessary by the government, and were entered into in writing with the second contractor and his surety. pay EX REL. NEW YORK & QUEENS GAS 1. A writ of error to the supreme court of the state of New York will not be dismissed on the ground that the application for it came too late, where the delay is excused by reason of the retention by the court of appeals of that state of practical control over the record and judgment in the case while the motion for reargument in [For other cases, see Appeal and Error, 3930– that court was pending. scope of review 3935, in Digest Sup. Ct. 1908.] - 2. While the Federal Supreme Court court to substitute its judgment for that has no authority on writ of error to a state Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. The first of these supplemental contracts related to change in the length and size of the foundation piles to be used, involving an estimated reduction in ment to be, made of almost $3,000; the second provided for an addition to the number of piles provided for in the second contract; the third covered changes in the character of various parts of the foundation to be constructed; and the fourth provided for changes in walls, doors, stairways, and for the adding a foundation for a bulkhead wall. While the additional cost involved in the changes provided for in three of these supplemental contracts is less than the reduction in cost of the changes provided for in the other one of them yet, since they constitute a deviation from the original contract, involving a cost of about 6 per 998. cent of the total contract price, and On what adjudications of state courts since each of these supplemental con- can be brought up for review in the Sutracts required an agreement with the preme Court of the United States by new contractor which involved an esti-writ of error to those courts-see note mate of the expense of making the to Apex Transp. Co. v. Garbade, 62 changes contemplated by them, we agree L.R.A. 513. with the court of claims in concluding that it cannot be said that the work performed under the second contract [345] was so substantially that which the Bridge Company contracted to perform as to permit the recovery of the On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. dence which was before the Commission for the purpose of determining whether it preponderates for or against the conclusion arrived at, it will enter upon such an examination of the record as may be necessary to determine whether there was such a want of hearing, or such arbitrary or capricious action on the part of the Commission, as to deny the invoked constitutional right to due For other cases, see Appeal and Error, 2227 process of law. of an administrative body, such as a state | Rep. 334, 388, 1191; Chicago, M. & St. Public Service Commission, as to the wis-P. R. Co. v. Minnesota, 134 U. S. 418, dom or policy of an order complained of, 458, 33 L. ed. 970, 981, 3 Inters. Com. and will not analyze or balance the evi- Rep. 209, 10 Sup. Ct. Rep. 462, 702; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 397, 38 L. ed. 1014, 1023, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smyth v. Ames, 169 U. S. 466, 526, 527, 42 L. ed. 819, 842, 18 Sup. Ct. Rep. 418; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 697, 43 L. ed. S58, 864, 19 Sup. Ct. Rep. 565; San Diego Land & Town Co. v. National City, 174 U. S. 739, 753, 43 L. ed. 1154, 1159, 19 Sup. Ct. Rep. 804; Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. Rep. 336; Cotting v. Kansas City Stock Yards Co. (Cotting v. Godard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. 30; Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 523, 530, 56 L. ed. 863, 868, 870, 32 Sup. Ct. Rep. 535; Northern P. R. Co. v. North Dakota, 236 U. S. 585, 595, 598, 59 L. ed. 735, 741, 742, L.R.A. 1917F, 1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1. 2256, in Digest Sup. Ct. 1908.] Courts - relation to other departments of government-regulation of public utility extension of gas distributing system. 3. An order of a state Public Service Commission requiring a gas company to ex tend its distributing system to a rapidly growing community 1 miles beyond the then terminus of the company's mains, but within the area in which it alone had franchises, cannot be said to be arbitrary or capricious so as to justify the Federal Supreme Court in substituting its judgment for that of the Commission as to what was reasonable under the circumstances of the case, there being every prospect that the return upon the investment involved, though low at first, will soon become ample, and there being no claim that the comparatively small initial loss will render the business as a whole unprofitable. [For other cases, see Courts, 202-219, in Di gest Sup. Ct. 1908.] [No. 407.] The question of reasonableness is a judicial question. Louisiana & A. R. Co. v. State, 85 Ark. 12, 106 S. W. 960; Chicago, M & St. P. R. Co. v. Minnesota, 134 U. S. 418, 458, 33 L. ed. 970, 981, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362379, 38 L. ed. 1014-1019, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Wiscon Argued November 6 and 7, 1917. Decided sin, M. & P. R. Co. v. Jacobson, 179 U. IN December 10, 1917. N ERROR to the Appellate Division of the Supreme Court of the State of New York, First Department, to review a judgment entered pursuant to the mandate of the Court of Appeals of that state, which reversed a judgment of such Appellate Division, annulling an order of the Public Service Commission of the state, requiring a gas company to extend its distributing system. Affirmed. See same case below, in appellate division, 171 App. Div. 580, P.U.R.1916D, 91, 157 N. Y. Supp. 707; in court of appeals, 219 N. Y. 84, P.U.R.1917A, 533, 113 N. E. 793, Ann. Cas. 1916E, 1042. The facts are stated in the opinion. Mr. John A. Garver argued the cause and filed a brief for plaintiff in error: Regulation of public utilities must be reasonable. Southern P. Co. v. Railroad Comrs. 78 Fed. 260; Railroad Commission Cases, 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. S. 287, 301, 45 L. ed. 194, 201, 21 Sup. Ct. Rep. 115; Smyth v. Ames, 169 U. S. 466, 527, 42 L. ed. 819, 842, 18 Sup. Ct. & Nav. Co. v. Fairchild, 224 U. S. 510, Rep. 418; Washington ex rel. Oregon R. 56 L. ed. 863, 32 Sup. Ct. Rep. 535; Forster v. Scott, 136 N. Y. 584, 18 L.R.A. 543, 32 N. E. 976. The burden was on the Commission to show the necessity of the so-called extension. Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 530, 533, 56 L. ed. 863, 870, 871, 32 Sup. Ct. Rep. 535. That the order of the Commission under review was not a reasonable order will be evident from a consideration of the undisputed facts; and this court will examine the facts to ascertain whether or not the order was reasonable, as it has invariably done in all the rate and regulation cases which it has been called to pass upon. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 297, 45 L. ed. 194, |