Jorgensen v. Tuolumne County, 205 F. 612

205 F. 612 | 9th Cir. | 1913

WOLVERTON, District Judge

(after stating the facts as above). Predicated upon this record, counsel for defendant urge that the contract entered into between Jorgensen Bros, and the county was single, entire, and indivisible, and that therein' the contractors engaged to go. down to bedrock with the piers at whatsoever distance it might he found; while, on the other hand, counsel for plaintiff insist that the work of extending the center pier below the profile delineation marked ‘‘bedrock” was extra service rendered the county, for which the plaintiff should recover, on quantum meruit, for labor performed and materials furnished at the instance and request of the defendant, or upon the warranty' of the defendant as to the position of the bedrock and a breach thereof in that bedrock was not found at the depth represented, and for fraud and deceit.

[1| As to which of these contentions is sound depends upon a proper construction of the contract. ()ne of the cardinal rules for the interpretation of contracts is that the court shall put itself in the place of the contracting parties as nearly as may he, and look from their viewpoint in entering into the contractual relations. From such a viewpoint the court will observe the situation of the parties, the facts and circumstances which surrounded them and attended their considerations, and necessarily influenced them in concluding the contract, and in this way it will he the better enabled to discover and give effect to the true meaning, intention, and purpose of the parties, which is the real purpose of interpretation. Accumulator Co. v. Dubuque St. Ry. Co., 64 Fed. 70, 74, 12 C. C. A. 37; Salt Lake City v. Smith, 104 Fed. 457, 462, 43 C. C. A. 637.

[2] The plans and specifications for the construction of the bridge are expressly made a part of the contract, and it is further stipulated that anything mentioned in the specifications and not shown on the drawings, and vice versa, must be done as though shown or mentioned in both. So that clearly the plans and specifications, and every part, of them, must be read into and constitute a part of the contract. The plans show by profile and delineation the position and location of bedrock, and it is provided that ‘‘the footings of piers, abutments, and wing walls will be thoroughly embedded in the bedrock.” It is further provided that the location of the bridge shall conform with the surrounding conditions as shown by the accompanying map, plans, section, and profile, which are all made a part of the specifications. With these charts and plans, the contractors were requested to view the proposed, work on the ground, which they did, and from observations there made they concluded, as they say, that bedrock existed about as delineated by the profile, but without drilling or making further independent investigation for themselves as to whether bedrock in reality existed as represented. The bedrock, or outcroppings of the same, was visible on each side of the river, but not, of course, where the center pier was to be located, as there was considerable depth of water in the stream at the time.

Under the specifications “it is assumed that the bedrock on each side of the river will be found at a depth shown on plans.” In the same relation it is further stipulated that, “should it be determined that it is necessary ■ to- go to a greater depth than this to reach bedrock, this work shall be done by the contractor without additional expense to either county.” And immediately following this comes the stipulation: “In any event, the contractor is to do all necessary excavation.”

From the context it would seem that the stipulation requiring the contractor to go to a greater depth to reach bedrock if it were determined to be necessary relates to the piers, abutments, and wing walls on each side of the river, and not to the center pier. The stipulation that “in any event the contractor is to do all necessary excavation” may have a broader’signification; but, whether it does or not, it does not vitally affect the interpretation of the contract. From the fact that evidence of the position of the bedrock was discernible on the sides of the river,- it was assumed that bedrock would be found at the depth as shown on the plans — that is, approximately — and, if it should be necessary to go to á greater depth for thoroughly embedding the piers, abutments, and wing walls upon each side of the river, then that the contractors should do that at their expense, and do all necessary excavation for the purpose. No assumption is-expressly indulged as to the presence of bedrock in the bed of the stream as indicated by the chart or map. The foundation of the center pier, like the rest, however, was to be embedded in bedrock. Now, either it was assumed that the bedrock existed as it /elates to this pier as shown on the map, or the specifications cohstituted a trap calculated to deceive the unwary contractor and induce him to believe that the county was aware of the approximate presence of the bedrock under the bed of the river as indicated, as they were aware of the approximate location of the strata upon the sides. Otherwise, why denote upon the map the presence of bedrock at the specific depth indicated? As a fact,, the county made no drillings in the bed of the stream, or other effort to ascertain or determine the real or exact depth to bedrock, and therefore if dealing in good faith, which we must accord to its action, it through its engineer and draughtsmen did in reality assume that bedrock existed under the bed of the stream 27 feet 6 inches below the spring line of the arch of the bridge, as denoted on the map; that is to say, that it existed approximately at the depth so denoted, not to be exact, but in that neighborhood, and the negotiations were consummated upon that basis. Such was undoubtedly the design and purpose of the county, if we attribute to it, as we should, just and fair motives in dealing with proposed bidders and contractors, believing that bedrock would be found approximately as represented. So that the obligation of the contractors to go to bedrock as it pertains to the center pier is not different from their obligation with reference to the footings of the piers, abutments, and wing walls upon each side of the river. In legal effect, therefore, the representation on the map as to the presence and location of bedrock at the center pier was intended and designed to denote approximately its true location; and, considering such representation to be an approximation, the contractors consented and obligated themselves to go to a greater depth if found to be necessary to obtain secure footing in bedrock. As illustrative of this interpretation, see Salt Lake City v. Smith, supra, and Cook County v. Harms, 108 Ill. 151, 158.

We cannot agree with counsel that, because it is expressly stipulated that it is assumed that the bedrock on each side of the river will be found at a depth as shown on the plans, the contract should be construed as though nothing was assumed as to the position of bedrock in the bed of the stream, and that, therefore, the contractors took their chance as to its real position, and bound themselves to go to any depth to find it. The maxim “Expressio unius est exclusio alterius” can have no application in such a case. Thorn v. Mayor, L. R. 1 App. Cas. 120.

The case of Stuart v. Cambridge, 125 Mass. 102, and other cases cited of that character, cannot apply here. In that case there was a positive stipulation that the contractor was to commence with the basement walls 14 inches below the basement floor “and as much deeper as necessary to guarantee a firm and solid foundation,” and it was'held that by the stipulation the contractor bound himself to do all the work necessary to secure a solid foundation, although it extended below a distance of 14 inches below the basement floor.

In the case at bar, as we cotistrue the contract, viewed in the light of the attending circumstances and conditions existing at the time of its execution, there is no such positive or express undertaking requiring the contractors to go to bedrock, at all events, at their own expense, to secure a footing for the center pier. Nor do we think that the representations made by the map constituted a warranty on the part of the county as to the position and locality of bedrock. We think, as we have indicated, that the parties assumed that bedrock existed as delineated, and that it was tacitly understood that the delineation was approximately correct, and it was in that view that the minds of the parties met. Within the terms of the contract, therefore, Jorgensen Bros, were not required to sink and construct an additional 24 feet of the center pier to bedrock as it was found to exist.

[3] N. J. Pickle, the county surveyor of Tuolumne county, was the county’s superintendent of the work, having supervision over the construction of the bridge, and, according to the testimony of H. H. Will Jorgensen, he requested and directed him (Jorgensen) to continue all excavations to bedrock, saying in effect that they had to get to bedrock to get a solid foundation. Ordinarily this might well be construed to be a request to continue the work beyond the requirements of the contract, for which an action would lie as upon quantum meruit for the reasonable value of the extra services performed. It is suggested that a contract could not be so implied as it pertains to counties; they not being municipalities in the sense that towns and cities are regarded. But, however this may be, it is further urged that section 4073 of the California Political Code is restrictive of counties becoming so bound. The section reads:

“Whenever the board of supervisors shall enter into a contract for the erection, construction, alteration, or repair of any public building, bridge, or other structure, such contract shall not he altered or changed in any manner, unless they shall, by a vote of two thirds of their number, and with the consent of the contractor, first so order. And, whenever any such change or alteration is so ordered, the particular change or alteration shall he specified, in writing, and the cost thereof agreed upon between the board and the contractor-. In no case shall the hoard pay or become liable to pay for any extra work done on, or extra material furnished for, such building or structure.”

This statute, it seems to us, was designed to cover just such a case as is here presented. The work done in sinking and constructing the center pier to bedrock, a distance of 24 feet below the point as designated on the map, should be regarded as extra work, but for that work the board of supervisors would not become liable except in the manner prescribed in the section. The statute, we think, is preclusive of the county’s liability in the present case.

This conclusion renders it unnecessary to consider the defense that the cause was not instituted in time.

A word as to the alleged warranty as insisted upon by plaintiff. The theory of a warranty presupposes that under the terms of the contract the contractors éngaged to go to bedrock at whatsoever depth it might be found; but in our interpretation of the contract the parties entered into it upon the assumption that the map showed approximately the location of bedrock, and the contractors’ obligation in constructing the piers is to be measured accordingly. What was done by the contractors beyond this obligation was extra, and beyond the requirements of the contract, and not in pursuance of it.

The judgment of the District Court should be affirmed.