318 Mass. 88 | Mass. | 1945
This is a petition under G. L. (Ter. Ed.) c. 258 to recover damages for an alleged breach of warranty by the metropolitan district water supply commission that it was honestly and truthfully disclosing to the petitioner all of the information in its possession to be used by the petitioner as a basis for the bid upon which it was awarded a contract for the construction of an embankment for the dike of Quabbin Reservoir in Enfield and Ware. The petitioner contends that the commission concealed information in its possession as to the nature of the subsoil in certain borrow pits from which the material was to be obtained for the construction of the embankment. If damages may not be recovered on this ground, then it alleged that the petitioner is entitled to rescind the contract and to recover by way of quantum meruit. The case was referred to an auditor whose findings of fact were not final. Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347. He found for the petitioner in the sum of $285,139.56. The evidence in the Superior Court consisted of the auditor’s report, numerous exhibits, and the testimony of witnesses, many of whom had not testified before the auditor. The judge found for the respondent. The case is here on various exceptions taken by the petitioner.
The commission in October, 1934, advertised for bids for the construction of the embankment of the dike, and notified bidders that bids would be received up to two o’clock on the afternoon of November 13, 1934. In response to a request of the petitioner, the commission sent it a printed booklet which contained (a) three printed pages of information for bidders, (b) a form for submitting a bid, (c) the form of the proposed contract, (d) the form of the bond, and (e) fifteen reduced-size plans, and also a mimeographed booklet entitled “Studies of Construction Methods.” The information for bidders, among other things, stated that materials for constructing the embankment were available
There was evidence that the commission, in order to determine the type of construction of the main dam on the Swift River and the dike in question at Beaver Brook, had a geological survey made of the surrounding territory. The dam and dike might be constructed of masonry, or they might be built with a concrete core and earth embankments on the sides if an adequate supply of suitable material for the embankments could be found in the vicinity. The geological survey disclosed that the territory was of glacial origin and that certain hills or ridges, including the four borrow areas mentioned, were composed of ground moraine or glacial drift. This drift composed the overburden and covered the rock in this region. There were deposits or pockets of sand, gravel, clay or other material known as modified or assorted drift, and the rest of the overburden was comprised of unassorted or mixed materials such as sand, gravel, clay, rock flour and boulders, known as glacial till. Borrow area C “was made up of all sorts of fragments, boulders, pebbles, sand, clay and flour mixed together, sizes varying from fine material on the one hand to boulders several feet across as the largest.” This type of material was described by the one who made the survey as mixed materials. Besides the two shovel cuts, the commission had test pits and borings made in this area. The boring inspector recorded that hardpan had been found in the first hole which had been drilled in borrow area C. Hardpan could be found to be a heterogeneous mixture of rock flour, sand, gravel and boulders which is more or less cemented together of varying degrees of density and cohesiveness. Ml of the boring records except those of this first hole used the term mixed materials. The boring plans which were furnished to the petitioner classified the materials taken from the bore holes as muck or peat, loam, boulders and rocks, and also divided the material into nine classes, to wit: (1) gravel, uniform; (2) coarse sand, uniform; (3) coarse sand, variable; (4) medium sand, uniform; (5) medium sand, variable; (6) fine sand, 'uniform;
The contention of the petitioner is that the boring plans represented that the borrow area was composed of rock flour, sand and gravel — materials that could be easily excavated — but that the area contained a large amount of hardpan, as the commission knew but did not disclose to the petitioner. It is plain that the nature of the subsoil in the borrow area was important for the commission to ascertain because, unless there was a sufficient supply of suitable fill for the embankment for the dike, some other type of. construction would be necessary. It was also important for the petitioner to know the character of the subsoil as it bore directly on the cost of excavating, and, unless the material was suitable for the construction of the embankment, the petitioner would not be paid for the excavation of such material, as the proposal called for a unit price per cubic yard for material excavated and placed in the embankment.
This is a proceeding under G. L. (Ter. Ed.) c. 258 against the Commonwealth. If the only cause of action the petitioner has is one in tort for deceit, then its claim is not within c. 258 and the Superior Court had no jurisdiction to entertain the proceeding. Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28. Burroughs v. Commonwealth, 224 Mass. 28. Glickman v. Commonwealth, 244 Mass. 148,
The auditor found and the judge ruled without objection by the respondent that the commission impliedly warranted that it had disclosed all the material information in its possession relative to the subsoil conditions in the borrow area C to the petitioner before it submitted its bid. The case was tried before the auditor and the judge on the theory that there was such an implied warranty. We take the case as presented by the parties. In view of the conclusion we reach, we need not decide whether, in the face of repeated warnings to the petitioner that it must draw its own conclusions about the character of the soil, there could be such an implied warranty in the instant case. See Christie v. United States, 237 U. S. 234; United States v. Atlantic Dredging Co. 253 U. S. 1; Hersey Gravel Co. v. State Highway Department, 305 Mich. 333; Jackson v. State, 210 App. Div. (N.Y.) 115.
We now turn to the findings of the judge. The judge adopted certain findings of the auditor, and upon all the evidence found that the boring plans were true and accurate portrayals of the borrow areas and were drawn according to well recognized and approved engineering practice; that
It could be found that the boring plans set forth correctly and accurately the composition of the materials obtained from the borings, and that the classification of these materials with reference to their granular content and in accordance with the numbers appearing upon the plans was true. And the words “mixed materials” were. undoubtedly the correct geological description of masses of different materials mixed together in compact formation commonly found in glacial deposits like the borrow area in question! This is what the. petitioner contends should have been described as hardpan. There was much evidence that these plans did not indicate that the material could be easily excavated. The plans were to be interpreted in accordance with the matters appearing upon them considered in the light of what those matters would commonly mean to one who was familiar with the subject matter to which they related. In this respect there was evidence that an experienced contractor, like the petitioner, would reasonably understand that the excavation would be difficult not only on account of the number of boulders but also on account of the presence of material classified as 7 and 9; that the fine gradation of materials designated by these numbers and boulders would indicate quite hard compact material, and that the soil might be cemented around the boulders. The judge could accept this evidence as true, although this evidence was considerably shaken on cross-examination. It also appeared in evidence that as a rule the presence of rock flour indicates a cemented material in this glacial country. The judge could find that these plans indicated the same thing to the petitioner. It was expressly found that they “were true and accurate portrayals of the area concerned” and that a careful exam
The petitioner filed sixty-seven exceptions to the rulings and findings of the judge. The first thirteen exceptions were to the refusal to rule that certain paragraphs of the auditor’s report or particular sentences in some of these paragraphs were not contradicted or controlled by any evidence introduced at the trial. The judge had ruled that each and every finding of the auditor was conclusive evidence in the absence of any evidence that would warrant a contrary finding. Cook v. Farm Service Stores, Inc. 301 Mass. 564, 566. An examination of the entire testimony, including all the rational inferences of which it was susceptible, given by several witnesses, many of whom had not appeared before the auditor and some of whom were experts, shows that the action of the judge was right in denying all of these requests except in one instance. This was the denial of the requested ruling that there was no evidence that controlled the findings contained in the twenty-ninth paragraph of the auditor’s report. This paragraph dealt' with the work to be done under the contract and one of the purposes for which the borings were made. No harm resulted to the petitioner from the refusal to give this request because the judge upon ample evidence expressly found the purpose of making the drill holes, which in fact was one of the purposes found by the auditor, and it is too obvious for discussion that the judge fully understood the work required to be done by the petitioner under the contract. It is to be noted that some of the findings included in these paragraphs were substantially followed by the judge in his findings. It is also to be noted that several of these requests related to the subject of damages which have now become immaterial. The last one was based upon facts not found. It would unduly lengthen this opinion
The petitioner was not entitled to a ruling that upon all the evidence there was a breach of an implied warranty by the respondent, because on the evidence this was at most a question of fact. The fourteenth exception, which was to the denial of this ruling, cannot be sustained. The fifteenth and sixteenth exceptions, which were to the refusal to grant requests which were based upon fraud, became inapplicable when no fraud was found.
The judge adopted a finding of the auditor to the effect that the petitioner in submitting its bid was compelled to rely and did rely, and the commission knew it must and would rely, in large part on the assumption that the boring plans represented the subsoil conditions in the borrow area as truthfully and accurately as. they could be presented by the commission in such plans. The-seventeenth, eighteenth, nineteenth, twentieth, twenty-first and thirtieth exceptions were to the refusal to grant requests which in some instances called for findings and in others for rulings and which in substance were that hardpan was encountered in making the borings, that the amount of dynamite used and the rate of progress should have been stated on the plans, that the absence of such information constituted fraud, and that the petitioner had the right to assume that all material information was disclosed by these plans. There was evidence that these plans would indicate the existence of hard-. pan to an experienced engineer. The judge found that these plans and the shovel cuts as well furnished full information that the overburden was a glacial till containing boulders and that the excavation would be fairly difficult, and that the difficulty experienced by the 'petitioner in excavating the area was due to the presence of boulders in the glacial till and not to the fact that the term hardpan did not appear on the plans. It would almost seem to be common knowl
The twenty-second exception was to the denial of a request for a ruling that the respondent, having admitted in its answer that the borings were made to determine the subsoil conditions, must be held to have admitted that they were made to determine the looseness or compactness of the soil. The respondent, as all parties understood, was not interested in the removal of a hill or ridge but was interested only in obtaining fill for an embankment. It was interested in the composition rather than the formation of the subsoil. There was nothing in the answer that precluded the respondent from showing that the primary purpose of the borings was to disclose the granular nature of the material and not the looseness or compactness of the soil. Furthermore, this request became immaterial in view of the findings that the plans were prepared in accordance with good engineering practice, that a careful examination of them by an experienced engineer would disclose that the borrow area was glacial till containing boulders, and that excavation of this area would be fairly difficult.
The twenty-third, twenty-fourth, twenty-fifth and twenty-sixth exceptions were to the denial of requests for rulings which were to the effect that the plans should have disclosed that “mixed materials” were used as a synonym for “hard-pan”; that as the plans showed that the material obtained from the drill holes was sand, gravel, rock flour and silt — words that were well known and commonly understood, Brown v. Brown, 8 Met. 573; Hatch v. Hawkes, 126 Mass. 177 — the plans constituted a misrepresentation of the subsoil. No one contends that the materials removed were not found in the places designated on the boring plans. But as already pointed out, the presence of such materials could be found to indicate to experienced engineers, like those in the
The twenty-seventh and twenty-ninth exceptions were to the denial of requests which were based upon a selected group of parts of the testimony dealing with subject matters concerning which there was other and conflicting testimony. Furthermore, it is apparent that the judge adopted the other and conflicting testimony as true, as he had the right to do.
The plans showed that the boring materials were classified into nine groups. It was immaterial that the petitioner did not know the name of the system in accordance with which such classification was made. The twenty-eighth exception, which was to the denial of a requested ruling that the petitioner had never heard of this system of classification, cannot be sustained. The thirty-first exception to the refusal of a request for a ruling in reference to interest has also become immaterial.
Exceptions 32 to 67, inclusive, purport to challenge the correctness of findings of fact made by the judge and his failure to make other and additional findings. None of these exceptions raises any question for review. Federal National Bank v. O’Connell, 305 Mass. 559. Sreda v. Kessel, 310 Mass. 588. Matter of Loeb, 315 Mass. 191, 194.
At the beginning of the trial the petitioner presented a motion to confirm the auditor’s report. The petitioner contended that the report should be considered as a master’s report in so far as it pertained to the rescission of the contract. The reference to the auditor was in the usual form and it did not provide that his findings should be final. The respondent seasonably filed a reservation to introduce further evidence at the trial. Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347. The judge ruled that the case was before him for trial on the merits, denied the petitioner’s request that the hearing proceed on the motion fco treat the auditor’s report as a master’s report and to confirm the report, and stated in substance that he would consider the report as one where the findings of fact of an
The auditor found that the petitioner has been paid all the contract price except $1,000. The petitioner contends that it refused to accept this balance because to do so would under the terms of the contract constitute a release of the Commonwealth and that, therefore, the judge was in error in finding for the respondent. The recovery of this sum was not within the scope of the petition. The finding for the respondent must be presumed to have been based on the pleadings. There was no error. Spritz v. Brockton Savings Bank, 305 Mass. 170, 171. Glynn v. Blomerth, 312 Mass. 299, 302. Manning v. Loew, 313 Mass. 252, 254. Payne v. R. H. White Co. 314 Mass. 63, 67.
Exceptions overruled.
