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� from horizontal." This angle, it was
further found, was adopted by the engineer officer from his
experience in similar work on the Mississippi River, and was
"an angle at which the banks would stand for the time necessary
to complete the work when not submerged from rises in the river or
when in a dry condition. There was no angle or slope which could
have been adopted by which the banks would remain stable when
subjected to such rises of the river as were liable to happen in
times of flood."
And further, that the conditions actually encountered during the
work were abnormal; floods, freshets, and unlooked-for rises of the
river were more numerous and of greater height and longer duration
than theretofore disclosed by the official records of the
engineer's office relating to the river.
Page 237 U. S. 243
Other findings are as follows:
"To have sloped the banks to a flatter angle would have reduced
the sloughing, but the evidence does not show to what extent. When
the river rose, the material in the banks became saturated and
heavy with water, and as the river receded, such material, being
deprived of the support afforded by the water while up, sloughed or
caved off into the lock pits below, where it had to be and was
removed by claimants in a wet and slimy condition at a higher cost
than if excavated from its natural position in the bank. The slopes
of the excavation were not flattened by the engineer officers
because, in their opinion, there was no practical angle at which
the banks could have been sloped which would have caused them to
remain stable under the abnormal conditions to which they were
subjected, or have prevented the banks from sloughing and caving as
the floods and rises in the river receded."
Claimants present a definition of an "angle of repose" from
lexicons of authority as follows: "The maximum angle with the
horizontal at which a mass of material, as in a cut or embankment,
will lie without sliding." In addition to the definition reports of
work on the Panama Canal are quoted from to show the efficacy of
the proper angle and the necessity of varying it to meet
conditions. This and the correctness of the definition may be
conceded, but the question is, what were the demands of claimants'
contract in the situation described by the findings? Or, to make it
more special: was the act of the engineering officer in prescribing
the slope of the work as 1 on 1 or 45� from horizontal a violation
of the contract?
As we have seen, the findings show that such angle had been
selected from experience in other work of like kind, that it would
have been adequate but for the extraordinary conditions which
developed, and no angle under such conditions would have been
sufficient, and therefore
"the
Page 237 U. S. 244
slopes of the excavation were not flattened by the engineer
officers because, in their opinion, there was no practical angle at
which the banks could have been sloped which would have caused them
to remain stable under the abnormal conditions to which they were
subjected, or have prevented the banks from sloughing and caving as
the floods and rises in the river receded."
And this judgment was honestly exercised.
We are brought, therefore, to the question whether such judgment
was precluded by the contract, or did the contract impose an
absolute duty on the government to anticipate and provide for all
conditions to which the banks of the excavation might be
subjected?
Claimants insist upon an affirmative answer, and rely upon
paragraph 48 of the specifications, which provides that
"all dredged or excavated materials, of whatever nature, will be
classified as 'excavation.' All excavations shall conform to such
lines, slopes, and grades as may be given by the engineer officer,
and anything taken out beyond such given limits will not be paid
for by the United States. The price for excavation shall include
the removal of the material to its place of deposit. . . . The
limits of the excavation and quantities to be excavated will depend
upon the ascertained angles of repose."
There is nothing in this of definite obligation, or which
prevented an exercise of judgment. The excavations, it is true,
were required to conform to the lines, slopes, and grades, and
their limits and quantities made to depend upon the ascertained
angles of repose; but how the angles of repose were to be
ascertained was not expressed. According to the findings, they
would depend upon the conditions, and of this a judgment had to be
exercised, and the specifications pointed out by whom. "These
specifications," it is provided in paragraph 89,
"are intended to be full, clear, and complete. Any doubt as to
their meaning, or any obscurity in the wording of them, will be
explained by the
Page 237 U. S. 245
engineer officer, who shall also have the right to correct any
errors or omissions in them whenever such errors or omissions
become apparent."
Paragraph 78 declares: "In all cases of dispute, the decision of
the United States engineer officer in charge will be accepted as
final and without appeal."
Claimants were therefore admonished that the judgment of the
officers would necessarily be exercised throughout the work, and
they were specially informed as to what angle of repose would be
selected. Mr. Justice Howry, speaking for the Court of Claims,
said:
"The letting plans did not show the slopes of the excavation.
But the original cross-section sheets, from which the estimated
quantities of excavation in the specifications had been calculated,
show in pencil the different angles of all slopes at 1 on 1 behind
structures for temporary work, and a flatter slope of 1 on 1 1/2 to
1 on 2 during the period of the contract for all permanent work.
Both angles of repose were constructed accordingly. These
cross-section sheets, although not made part of the letting plans,
were on file in the office of the resident engineer and were open
to examination by bidders prior to submitting proposals, and were
in fact examined by at least one of the prospective bidders. There
was no concealment, and plaintiffs do not say there was."
We do not think, therefore, that there is anything in the
contract which cast upon the government a prophecy and anticipation
of abnormal conditions, or which relieved claimants from the risks
of their occurrence or of whatever they might encounter in the
work. It is to be supposed that contemplation and judgment were
exercised not only of certainties but of contingencies, and
allowance made for both at the time of bidding, with provision in
the bid. Subsequent conditions could not lessen the obligation then
incurred, but, we may say, in order that all of the facts bearing
on the claimants' contention may appear,
Page 237 U. S. 246
that the findings show that claimants, in July, 1900, prior to
the time when any sloughing had occurred, in a letter to the
resident engineer, suggested the use of sheathing to protect the
slopes, and in 1902 complained that the government had not complied
with the suggestion as provided for in paragraph 51 of the
specifications. But it is further found that the suggestion was not
yielded to because, in the opinion of the engineer officer,
paragraph 51 was not intended to provide for protecting the
slopes.
The paragraph reads as follows:
"51. Sheathing. -- Curbing of rough planks and scantlings or
poles shall be used to reduce excavation as directed by the
engineer officer, and shall be paid for as 'sheathing,' poles being
estimated by standard log measure. It shall be left in the
excavation or taken out at the option of the engineer officer, and,
when used again, shall be paid for at half price."
It is further found that claimants made verbal protests and
complained to the resident engineer in regard to the adoption of
flatter slopes, but no written protest or objection was made during
the progress of the work, and no appeal from the decision of the
engineer concerning the same. Such an appeal seems to be provided
for. It is to be observed that the protest was made to the resident
engineer, but he was subordinate to the engineer officer in charge,
and it is provided in paragraph 78 that "in cases of dispute, the
decisions" of that officer "will be accepted as final without
appeal."
These findings therefore but exhibit the variant judgments of
the resident engineer and the claimants of what action should be
adopted in view of the conditions, and, we repeat, we see nothing
to cast inevitable obligation upon the government for every
exercise of judgment by its officer to whom was given the direction
of its works and whose decision, honestly exercised, its contracts
made final.
Page 237 U. S. 247
It is true, it is said that the "angle of repose" was
arbitrarily selected and arbitrarily adhered to, but the findings,
as we have seen, do not support the charge.
It follows that the court committed no error in rejecting the
item. Nor, for the same reason, in refusing to allow the sum of
$1,183.41, the cost of recovering certain buried concrete forms. It
is found that this "was done voluntarily by claimants for the
purpose of recovering the forms to be reused by them."
(3) The amount claimed for additional cofferdams is
$8,520.24.
It is said by the court in its opinion that claimants did not
claim that this part of their demands was within the contract, but
that they were "entitled to recover therefor on
quantum
meruit." The item was disallowed. This action, we have seen,
is assigned as error, and, to support the assignment, paragraphs 45
and 88 of the specifications are invoked. They are, respectively,
as follows:
"45.
Cofferdams. -- All pumping, bailing, and temporary
works needed to protect the permanent work from water during the
construction shall be done by the contractor at his own expense,
the cost of same to be included in his prices for concrete, timber,
etc. It is probable that the sheet piling entering into permanent
construction can, with proper banking and shoring, be made to serve
the purpose of cofferdams, but the contractor must rely upon his
own judgment in regard to this. Should additional cofferdams be
needed, they shall be built on plans approved by the engineer
officer, and, where liable to interfere directly or indirectly with
navigation, shall be removed when no longer needed, the building,
maintaining, and removal of same to be without cost to the United
States."
"88.
Purchases Made or Work Done, Not Specified. -- If
at any time it should become necessary, in the opinion of the
engineer officer in charge, to do any work or to make any purchases
not herein specified for the proper
Page 237 U. S. 248
completion of this contract, the contractor will be required to
furnish the same at the current rates existing at the time of said
purchases or work. The current rates to be determined by the
engineer officer in charge."
The findings state that certain hydrographs showing the gauge
readings of the river, taken at Tuscaloosa, were shown claimants,
and that the slope of the river indicated the duration of the
winter and spring floods, and the effect of such floods upon the
continuity of the work; that floods pass off rapidly at Tuscaloosa,
but their duration is several days longer at the locations of locks
4, 5, and 6. The hydrographs did not show the readings at those
places, nor were claimants informed of them, though the resident
engineer knew of them, as they had been copied in a memorandum kept
in his office at Tuscaloosa. In the court below, a charge of
fraudulent representation was based on those facts, but the court
found adversely to it, and it is not repeated here. We shall pass,
therefore, to contentions based on other considerations.
The facts found by the court may be stated narratively as
follows: in order that the work might be continued during the
winter, the resident engineer, on November 17, 1900, directed
claimants to build cofferdams at locks 4, 5, and 6, in accordance
with plans furnished them, and informed claimants that they would
be paid for the same at their contract price for sheet piles, and
$3 per thousand feet board measure for such parts of the cofferdams
as they might be required to remove when no longer needed. The
order was accepted by claimants in writing on November 18, 1900,
and the materials ordered for the same. Three days after the
receipt of the order, and before the construction of the dams had
been commenced, the river rose and remained at such height that it
was not possible to build them that winter. It is found that doubts
subsequently came to the officer as to his authority to pay for the
cofferdams, as the emergency for which they were
Page 237 U. S. 249
intended to provide had passed -- that is, their construction
during the winter -- and he expressed those doubts in a letter to
claimants dated May 4, 1901. Claimants protested, and the matter
was referred to the Chief of Engineers, who referred it to the
Secretary of War, and the latter officer submitted it to the Judge
Advocate General of the Army for opinion. That officer decided that
the Secretary of War had no authority to modify the contract. This
view was approved by the Secretary, and claimants were notified
accordingly.
It will be observed that, by paragraph 45, cofferdams are
represented as temporary work to protect the permanent work, and
the probability is expressed that the sheet piling entering into
the permanent construction could serve the purpose of cofferdams,
but as to this the claimants were to rely upon their own judgment.
And it is also to be observed that, if additional cofferdams should
be needed, they were to be built on plans approved by the engineer
officer, and to be built, maintained, and removed without cost to
the United States.
By paragraph 46, the probability is again expressed that the
dams could be built without cofferdamming, but as to this the
claimants were to rely on their own judgment, and if cofferdams
proved to be necessary, they were to be furnished by claimants
without cost to the United States.
It seems very clear, therefore, that all cofferdams necessary
for the protection of the permanent work were to be built by
claimants at their own expense, and it is found that, in figuring
on their bid, they allowed $2,000 for cofferdams for each of the
three locks, or, in all, $6,000.
It is further found that "the cofferdams were afterwards
constructed by the claimants to the heights necessary to protect
the work against floods," and that their cost was $11,456.91,
"of which amount the portion necessary to protect the work
against a rise of more than 8 feet was $8,520.24. . . . And if
claimants are entitled to
Page 237 U. S. 250
recover therefor on
quantum meruit or otherwise,"
that amount would be due.
Claimants, however, contend that they are entitled to this cost
as extra work, and invoke paragraph 88 against paragraphs 45 and
46. The paragraphs accord, or rather, each has its purpose. The
extra work provided for in paragraph 88 was not intended to
supersede the work provided for and contracted to be performed by
claimants at their expense by paragraphs 45 and 46. Nor can we
yield to the contention that claimants had a discretion to use or
not use cofferdams which was taken away from them by the order of
the engineer officer, and to comply with which they incurred
expense that they otherwise would have not incurred.
The findings demonstrate that the flood conditions made
cofferdams necessary, and to the height that they were constructed.
The promise of payment made by the engineer officer was
subsequently revoked before construction was commenced, and its
revocation left the original contract to prevail. The Court of
Claims therefore did not commit error by disallowing the
demand.
For the error in not allowing the demand of the greater expense
of excavation and pile driving, due to the misrepresentation of
materials in the specifications and drawings, the judgment is
reversed and case remanded for further proceedings in accordance
with this opinion.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.