Christie v. United States
237 U.S. 234 (1915)

Annotate this Case

U.S. Supreme Court

Christie v. United States, 237 U.S. 234 (1915)

Christie v. United States

No. 204

Argued March 16, 17, 1915

Decided April 12, 1915

237 U.S. 234

APPEAL FROM THE COURT OF CLAIMS

Syllabus

Where there is a deceptive representation in the specifications as to the material to be excavated which actually misleads the bidder who obtains the contract, and it is admitted by the government that time did not permit borings to be made by the contractor to verify the representations, the latter is entitled to an allowance for the actual amount expended over what would have been the cost had the boring sheets been accurate, notwithstanding there was no sinister purpose whatever.

The legal aspects of such a case are not affected by the fact that the

Page 237 U. S. 235

omissions amounting to misrepresentations did not have a sinister purpose.

Under the contract involved in this case, all that is cast upon the government in establishing the "angle of repose" for the slopes of the banks on each side of the excavation is an honest exercise of judgment by the engineers, and the contractors are not entitled to damages by reason of the sloughing of the banks on account of too sharp an angle.

In this case, the findings do not support claimants' contention that the "angle of repose" was arbitrarily selected and adhered to.

The contractor, in this case, held not entitled under the terms of the contract to recover the cost of recovering buried concrete forms which, according to the findings, was done voluntarily so a to reuse the forms.

The government is not responsible to the contractor for a promise of additional compensation for cofferdams to protect the work made by an officer not having authority and whose promise is subsequently revoked before the work of construction commences.

In this case, held that the paragraph in a government contract providing for extra work did not supersede the paragraph requiring work to be done by the contractor himself, and that, as the conditions contemplated by the contract required the use of cofferdams to protect the work to the height ordered by the engineers, the contractor was not entitled to extra compensation therefor.

48 Ct.Cl. 293 reversed on account of error as to one item claimed and disallowed.

The facts, which involve the rights of a contractor for compensation for work done under a contract with the United States for the construction of locks and dams on the Warrior River, are stated in the opinion.

Page 237 U. S. 238

MR. JUSTICE McKENNA delivered the opinion of the Court.

Action for damages in the sum of $207,304.50 brought by appellants against the United States, growing out of a contract with the United States on the 19th of February, 1900, for the construction of three locks and dams on the Warrior River in Alabama.

The work was completed and accepted in November, 1903.

The items of damage were delay in permitting commencement of the work, for construction of wagon roads, greater expense of excavation and pile driving, due to misrepresentation of the materials in the specifications and drawings, increase in excavation, due to the "angle of repose" fixed by the officer in charge, extra work in the construction of additional cofferdams, and other items.

The court rendered judgment for claimants upon two items, based on findings 2 and 3, to-wit, $9,391.57 for "delays in permitting the commencement of work" and $100 for "construction of wagon roads," making a total of $9,491.57.

Page 237 U. S. 239

This appeal was then prosecuted, and three errors are assigned -- (1) in refusing to allow for the extra expense due to the increased difficulty in pile driving and excavation on account of misrepresentation of the materials to be penetrated and excavated; (2) in refusing to allow $45,000 for excavation of material caused by defect in the "angle of repose," and in refusing to allow the further sum of $1,183 for excavation of material under which certain concrete forms were buried, and (3) in refusing to allow the cost of cofferdams built on the order of the officer in charge.

We shall take these items up in their order.

(1) This item is based on a charge of erroneous and deceptive borings and misrepresentations in the specifications and drawings.

By paragraph 48 of the specifications, it is, among other things, provided:

"The material to be excavated, as far as known [italics ours], is showing by borings, drawings of which may be seen at this office, but bidders must inform and satisfy themselves as to the nature of the material."

It is upon this paragraph the contention turns.

The allegations of the petition of claimants are to the effect that, invited by the above provision, claimants examined the drawings and they "showed gravel, sand, and day of various descriptions, and showed no other materials."

That the material actually to be excavated

"consisted largely of stumps below the surface of the earth, buried logs, of cemented sand and gravel (none of the sand or gravel being described in the said drawings as cemented), and of sandstone conglomerate,"

and that such materials were far more difficult and expensive to penetrate and excavate than ordinary sand and gravel such as was described in the drawings.

That the existence of the more difficult and expensive

Page 237 U. S. 240

material was known to the persons who made the borings and to the resident engineer of the United States under whose supervision they were made, and that the statement in the specifications was untrue in fact and misleading, causing the claimants to propose to do the work upon the basis shown by the drawings, and not upon the basis of the more difficult and expensive work, which, in point of fact, existed and was known to the officers of the United States. That claimants were forced to rely wholly upon the information furnished them, the time not being sufficient to permit them to make their own borings, and they believed the information furnished them to be accurate and reliable. That the erroneous and deceptive drawings misled claimants, and they were compelled to spend $10,510.30 over and above the rates named in their proposal and contract, which rates were based upon the materials shown by such drawings.

We think the findings substantially sustain the allegations. They establish that borings were made, and that the drill met "obstructions which from the particles broken off and floating to the surface would indicate they might be logs." These obstructions, though in some instances noted because of the formation, were not indicated on the drawings.

And this was found:

"When such obstructions were met, the apparatus was moved elsewhere until a place was found where the drill would penetrate, and the result was recorded as if taken at the place staked out."

And further:

"The boring sheets referred to in paragraph 48 of the specifications contained only the record of completed borings, and do not show any record of sunken logs, or of cemented sand and gravel, or conglomerate impenetrable by the drill."

The indications of buried logs were called to the attention of the resident engineer, and he was asked if they should be noted in the record of borings, to which he replied

Page 237 U. S. 241

that he did not consider them of enough importance to be noted. It was, however, found that the evidence did not establish to the satisfaction of the court that the statement of the engineer was other than an honest expression of his opinion, nor was it made to induce the omission from the records of the borings of any logs actually encountered, or for the purpose of concealing the same from or misleading subsequent bidders.

It would seem as if there could be only one conclusion from these findings. There was a deceptive representation of the material, and it misled. In opposition to the seemingly irresistible conclusion that claimants were justified in their reliance upon the drawings, it is contended that the river was alluvial, and its character warned claimants of the possible conditions which existed, and that, besides, the court found "they admitted they had reason to, and did expect to, encounter some logs."

The contentions are attempted to be supported by the alluvial character of the river, as we have said, its tortuosity, its fluctuations between high and low water in winter and summer, and that, for twenty years, the United States had operated snag boats for the removal of stumps and sunken logs from the channel of the river. But inferences from such facts could only be general and indefinite, and were not considered by the government as superseding the necessity of special investigations and special report. It assumed both were necessary for its own purpose and subsequently would be to those whom it invited to deal with it. Knowledge of the result of such investigations would protect the government, it might be, against an extravagant price based on conjecture of conditions, and enable contractors confidently to bid upon ascertained and assured data. And how important it was to know the conditions is established by the finding that claimants were put to an expense of $6,150 over what would have been necessary "if the borings sheets

Page 237 U. S. 242

had represented the character of the ground with respect to logs."

It makes no difference to the legal aspects of the case that the omissions from the records of the results of the borings did not have sinister purpose. There were representations made which were relied upon by claimants, and properly relied upon by them, as they were positive. Hollerbach v. United States,233 U. S. 155. Besides, it was admitted at the argument that time did not permit borings to be made by claimants. We think it was error, therefore, to have disallowed the damage resulting therefrom.

(2) The "angle of repose" is dealt with in the specifications as follows:

"The limits of the excavation and quantities to be excavated will depend upon the ascertained angles of repose. The limits shown on the drawings and the amounts herein given are approximate, and may be greater or less as the local conditions may demand or justify."

The finding as to the "angles of repose" is that, at the outset of the work, under direction of the engineer officer, "the slopes of all temporary excavation at the lock sites were staked out on an angle of 1 on 1, or 45

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