112 Misc. 29 | New York Court of Claims | 1920
This claim arises out of the performance by claimant of barge canal contract 20-B. The con
The claim as filed specifies ten items of complaint upon each of which it asks judgment. In considering these items I shall refer to them as described and numbered in the state’s brief, as they are not separately stated and numbered in the formal claim as filed.
Upon the trial item 2, alleged in the 8th paragraph of the claim as “ Excavation flattening slopes, etc., 9893 cu. yds.,” amounting to $6,311.63; item 3, alleged in said 8th paragraph as “ Excavation necessary for placing 4th class rip-rap, etc., 5820 cu. yds.,” amounting to $3,713.16; item 4, alleged in said 8th paragraph as “ Excavation necessary for placing cobblestone protection, etc., 8085 cu. yds.,” amounting to $5,158.23; item 5, alleged in paragraph 9 of the claim and being for fourth class rip-rap not allowed by the state amounting to $66,609.38; and item 6, alleged in the 10th paragraph of the claim for cobblestone protection not allowed by the state, amounting to $39,626, were abandoned and withdrawn by claimant, and as all of these items are for work not called for by the contract and not embraced in any alteration contract or extra and unspecified work order as required by section 6 of chapter 147, Laws of 1903, they should be dismissed.
Upon the trial claimant also abandoned and withdrew that part of item 7, alleged in the 11th paragraph of the claim, which claims damages for the alleged “increased cost of excavation and disposal of
This leaves the following items to be considered, viz., item 1, part of item 7, and items 8, 9 and 10.
Item 1 is, as alleged in the 8th paragraph of the claim for “ excavation of siltration, 365,210 cu. yds.,” which at the contract price, sixty-three and eight-tenths cents per cubic yard, would amount to $233,033.98.
It was conceded upon the trial that the word “ siltration ” should have been “ siltation,” and that the term “ excavation of siltation ” means the excavation of silt and other loose material which has been washed into the excavated area after the original excavation of that area.
With that understanding of the meaning of the item, there is no evidence in the record to support it. In fact, it was frankly admitted by claimant on the trial that it did not claim to recover under this item as excavation of siltation, but for excavation below the grade line shown on the plans made unavoidably necessary by the presence at and above the grade line of a large number of boulders and a considerable quantity of rock, conditions which it is claimed were not disclosed by the plans, as to which, claimant claims, the plans misrepresented the conditions to be encountered in excavating to the grade line, which made excavation to the grade line more troublesome and more expensive, and that a measure of the damage caused thereby might be the cost at contract price of the excavation below grade.
Claimant cannot recover for this excavation at the contract price as excavation, because the material, if any, so excavated was outside of the excavation lines as shown on the plans, and it does not appear that the work was the subject of any alteration contract or
It is a sufficient answer to claimant’s contention that it should recover on account of this item as damage for the alleged misrepresentation of the plans as to the character of material to be encountered to note that the item is not so pleaded in the claim, in addition to which there is another item in the claim for damages alleged to have resulted from such alleged misrepresentations and from breach of warranty as to the character of material to be encountered (item 9), which damages, it was conceded by claimant, include the damages claimed in item 1.
The state moved upon the trial, at the close of claimant’s case, for dismissal of item 1 on the ground that claimant had not proven, with reference to it, facts sufficient to constitute a valid claim against the state. Decision of that motion was reserved. For the reasons indicated above, the motion should be granted and the "item disallowed and dismissed, and an exception on behalf of claimant noted.
The part of item 7 which remains undisposed of is alleged in the 11th paragraph of the claim and is for damages claimed as the result of the state’s breach of its contract to complete the construction of the Fort Plain dam during the year 1909, as a result of which claimant was obliged to dredge a channel for the flotation of a part of its plant from the St. Johns-ville bridge westerly to Mindenville, to claimant’s damage in the sum of $17,752.75. The state claims
The Fort Plain dam was not completed until about October 1, 1911, and claimant did, in the late fall or early winter of 1910, excavate a channel to float a part of its plant from St. Johnsville bridge to Mindenville lock to store it there for the winter.
The state did not warrant or agree that the Fort Plain dam would be completed during the year 1909. It expressed a hope or expectation merely that it would be so completed. Had a positive agreement or warranty been intended, the words “ agreed ” or “ Avarranted ” Avould have been used. The construction of the dam was, as it was required by law to be, the subject of another contract, liable to the delays, hindrances and interruptions which frequently disappoint expectation with respect to construction work. The word “ expected ” Avas, therefore, used advisedly and intelligently and expressed exactly the understanding of both parties.
Acting upon this understanding of the provision in question, Mr. Japp, claimant’s director and managing engineer, prior to signing the contract, visited the site of the dam contract, observed the state of progress thereon and concluded that its completion during the year 1909 was within reasonable expectation. Why it Avas not completed does not appear, hence it does not appear that the failure to complete it Avas due to any act or omission of the state.
Moreover the excavation for Avhich it is here sought to charge the state was done for the benefit of claim
Item 8 is for damages resulting from interference with claimant’s work by the wires of the Mohawk Hydro-Electric Company. This item is alleged in the 12th paragraph of the claim and the damages, as stated in the claim, amounted to $5,445.79. The amount claimed on the trial was reduced to $1,320.79. The Hydro-Electric Company had strung its high tension Avire across the site of the contract after claimant had taken possession thereof, without the consent of either claimant or the state. It was established that these wires hindered and delayed claimant and compelled it for a time to use part of its plant unprofitably. The first interference caused by the wires was on August 1, 1913. The wires had been removed by August 11, 1913. During this period the No. 2 dipper dredge was engaged at unproductive work for an aggregate of thirty-six hours and the tugboat for
Adopting the method and values used by claimant in computing the damage caused by the presence of the wires, the amount of claimant’s damage is found to be $502.48, and I think it should recover that amount. The state urges that this interference was one of the risks which claimant assumed by virtue of paragraph 23 of the specifications. I do not think so. It was the duty of the state to furnish the contractor with the site upon which the latter’s work was to be performed, and I think also to keep it furnished and available at least in the circumstances here disclosed. Lane Brothers Co. v. State of New York, 16 Court of Claims Rep. 238; Del Genovese v. Third Ave. R. R. Co., 13 App. Div. 412.
Item 9 is for damages occasioned by increased cost of excavation resulting from alleged misrepresentation and breach of warranty as to the character of the material to be encountered in performing the work of excavation called for by the contract, and is for $388,592.51. It is alleged in the. 13th paragraph of the claim. The allegation is that claimant was compelled to excavate large quantities of boulders, hard material and rock within the contract lines, but not called for in the contract or specifications or designated on the plans, not provided thereunder or contemplated therein; that at the time of entering into the contract the character of material to be encountered was particularly represented by the state upon the plans for the work; that claimant entered into the contract relying upon such representations; that the representations were not true in that the boulders,
Upon the trial the charge , of deliberate and willful misrepresentation was withdrawn by claimant and the candor and good faith of the state officers in the preparation of the plans was conceded. The allegation that the state possessed information concerning boulders and hard material which it neglected to exhibit on the plans is not established by the evidence. On the contrary, the evidence establishes the fact that the information as to the character of material to be excavated which had been obtained by the state in the course of its preliminary investigation and exploration of the site of the contract was fairly exhibited with reasonable accuracy by the plans. The methods and manner adopted by the state in conducting its preliminary investigation and exploration were intelligent and suitable in view of the character and extent of the work to be done.
It is unquestioned that more definite information as to sub-surface conditions would have resulted from more frequent borings, and the substitution of core boring and wash drill methods for the driven rod soundings, but in view of the magnitude of the entire
There remains then of this item the claim that claimant encountered and excavated a.large quantity of boulders, hard pan and quicksand and an old crib stone filled dam, when their presence was not noted on the plans, and when the presence of material easier and less expensive to excavate was noted on the plans, and the claim that the quantity of rock actually excavated exceeded considerably the quantity of rock indicated by the plans. It is claimed that the plans and dhe legends and notations thereon as to the materials to be excavated, as revealed by the soundings made by the state, constituted positive statements, representations and warranties, for the inaccuracy, misdescription and error of which the state is liable. In support of this contention, Hollerbach v. United States, 233 U. S. 165, and Christie v. United States, 237 id. 234, are cited.
There oan be no recovery for this item for the
Before inviting bids an estimate of the cost of the work was prepared by the state and submitted to bidders. In this estimate there is no subdivision or classification of the excavation item. The item reads: “ 1,428,000 cu. yds. Excavation, Per Cu. Yd. 58 cts., $828,240.”
In the information for proposers, submitted to claimant before bidding, were these provisions, viz.: “ The estimate of quantities is to be accepted as approximate only, proposers being required to form their own judgment as to quantities and character of the work by personal examination upon the ground where the work is proposed to be done; and on the specifications and drawings relating thereto, or by such other means as they shall choose.
“The attention of persons intending to make proposals is specifically called to paragraph ten of the form of contract which debars a contractor from pleading misunderstanding or deception because of estimates of quantities, character, location or other information exhibited by the State.”
Paragraph 10 of the formal contract provides:1 ‘ The contractor agrees that he has satisfied himself by his own investigation and research regarding all the conditions affecting the work to be done and labor and material needed and that his conclusion to execute this contract is based on such investigation and research and not on the estimate of the quantities or other information prepared by the State Engineer, and that he shall malee no claim against the State
With these provisions of the contract and specifications before it and well understood, claimant agreed to excavate all material, wet or dry, of every name and nature, necessary to be removed for sixty-three and eight-tenths cents per cubic yard, and it thereby waived all right to make a claim for damages for any misdescription of material as to either character or quantity. Unless such is the meaning of the provisions quoted from the information for proposers, specifications and contract, it is difficult to discover any reason for their use. The language is simple and unequivocal and upon the facts of this case can have no reference or application except to the information, notations and legends appearing upon the plans.
The case differs from the Hollerbach and Christie Cases, supra, in important particulars. Neither of these cases considered the effect of contract provisions similar to those involved here with reference to erroneous entries, notations or data appearing on contract plans. The Hollerbach Case, supra, involved a contract for the construction of a dam, including excavation. In the specifications this statement appeared: “ The dam is now backed for about 50 feet with broken stone, sawdust, and sediment to a height of within 2 or 3 feet of the crest.” The statement was not true. Instead of the stone, sawdust and sediment were found in the cribwork of an old dam of solid logs filled with large stones. The Supreme Court held that the positive and unequivocal statement in the specifications as to the material backing the dam 'constituted a warranty and relieved a prospective bidder of the duty of investigating for
In the instant case whatever of representation it may be said the notations on the plans accomplished was1 qualified by the specifications and expressly waived by the contract. The parties -by their contract have
Claimant claims it had not sufficient time to make its own investigation as to the sub-surface materials to be excavated. The evidence is to the effect that claimant’s representatives were investigating conditions on the site of this contract about one year before the date of the contract, and it cannot be held that there was not ample time to make the sufficient investigation which by the contract it has agreed it did make.
Moreover, claimant has failed to sustain the burden of establishing by a fair preponderance of the evidence that the plans, considered in connection with the plainly observable surface indications, did not fairly show the conditions actually encountered, and that the conditions encountered were more burdensome and expensive than those "fairly indicated by the plans. There is some controversy concerning the amount of rock excavation indicated by the plans and the amount actually excavated. Witness Watt for claimant computes the former at 75,038 and admits it might be as much as four per cent greater or 78,039 cubic yards, while witness B elding for the state computes the same item at 77,425 cubic yards. Both figures are of course approximations and the variance in result is negligible in the circumstances of this case. Witness Watt for claimant computed the amount of rock actually excavated at 94,666 cubic yards, while Mr. Belding for the state computed the item at 78,664. The variance here is 16,002 cubic yards. This variance is accounted for, or at least- rendered unimportant by the fact, testified to by claimant’s witness Watt,
Upon all the evidence I am forced to the conclusion that on examination of surface conditions upon the site of the contract, the bed of the river and the adjoining lands together with the notations on the plans showing location of rock and other materials penetrated by the sounding rod must have indicated with practical certainty that an abundance of boulders and other large stones would be encountered in excavating
It follows that the claim, as to item 9, should be dismissed.
Item 10, alleged in the 14th paragraph of the claim, is for increased cost of plant made necessary, as claimed, by the alleged misdescription of material to
Webb and Cunningham, JJ., concur.