51 Ct. Cl. 155 | Ct. Cl. | 1916
Lead Opinion
delivered the opinion of the court:
On February 7, 1905, the claimant, George B. Spearin, entered into a written contract with the defendants to furnish the materials and do certain construction work which was intended to finally result in the completion of a dry dock at the New York Navy Yard. All the work incident to the undertaking was provided for by plans and specifications prepared by the Bureau of Yards and Docks, and the contract itself was signed by Mordecai T. Endicott, chief of said bureau, as the representative of the United States.
Congress by the act of June 7, 1900, had authorized the building of the dry dock and made an appropriation therefor. Previous to the advertisement for bids the Government officers in charge of the proposed work had agreed upon a location for the dry dock that embraced within its territorial limits a 6-foot intercepting brick sewer, and the same
The contract provided for what was obviously indispensable, i. e., that the contractor should first divert the 6-foot sewer around the head of the dock upon the arc of a circle, thus removing it from interference with the building of the dry dock and as a menace to the completed work. The work to be done on the sewer was provided for by the defendants in plans and specifications prepared and furnished the contractor by the defendants. The sewer work was done by the plaintiff in strict accord with the contract, was inspected, accepted, and paid for by the defendants in the manner pro-id ded in the contract. The plaintiff assembled his plant and necessary materials and began work on the construction of the dry dock proper. The contract work proceeded in the usual way until August 7,1906, on which date a sudden and heavy downpour of rain occurred, which, in conjunction with a high tide, caused the 6-foot sewer previously constructed by the plaintiff to burst, the disaster being of sufficient consequence to flood that portion of the excavation already completed by the plaintiff and endanger future work if the sewer remained in its present condition. The plaintiff immediately stopped work and notified the defendants that he would not resume until the Government made some provision for caring for or assuming the responsibility for damages that had been or might hereafter be occasioned by said sewers. An investigation of the surroundings disclosed the following indisputable facts: It was a matter of knowledge, known generally by persons living in the navy yard and territory immediately adjacent thereto, that the sewerage system in this particular locality was seriously inefficient. For a number of years preceding this occasion, under exactly similar circumstances, these very sewers in the navy yard
Inside the 7-foot sewer, heretofore described as to location, a brick dam 5 or 5| feet high had been built several years before the contract for the dry dock was let, which, in conjunction with some small drain pipes installed at its mouth, diverted a large volume of sewage into the 6-foot intercepting sewer, reducing its capacity at least one-third and taxing its resisting strength beyond the maximum. This dam was not shown on any of the blue prints or plans exhibited to the contractor and appears to have been unknown to any of the parties to the contract. It was, of course, beneath ground and unobservable and had doubtless been constructed by the defendants to do the very thing it did do, divert the sanitary sewage which should have passed through the 7-foot sewer into the 6-foot sewer. Governmental surroundings in close proximity to the mouth of the 7-foot sewer sustains an inference that the dam and the small drain pipes were designedly prepared to take care of the offense likely to be occasioned by the great amount of sewage certain to be deposited in Wallabout Basin. Both sewers were built of brick, and brick sewers are not designed to resist internal pressure. The plaintiff made no inquiries respecting the efficiency or inefficiency of the sewers or sewerage system, nor was he informed by anyone at the navy yard or in any wise connected with this contract about the same; he visited the site of the work and made an examination of the same; there was nothing from external appearances to warn him of this condition of overflow. Whether Admiral Endicott knew of this condition does not appear, as he was not called as a witness. Other bidders had been so informed. The defendants declined to care for the broken sewer or amend the contract in any way. They insisted upon its strict performance, and after a most voluminous
The court is not in agreement, objection being made to both the conclusion and the findings of fact. Particular objection is made to the last paragraph of Finding X and all of Finding XIII. The task of deducing findings of fact from a voluminous and contradictory record is not only a difficult one, but an extremely important function of this court. It is said that the last paragraph of Finding X states a conclusion and not a fact. The distinction between an ultimate fact and a conclusion is frequently a very narrow one where the court is charged with the necessity of reporting the former and omitting the latter. The rules of the Supreme Court expressly exclude the appearance of any testimony in the findings and require the court to report the facts established by the evidence, in the nature of a special verdict. The finding objected to states a fact; it is true that it is the statement of a fact arrived at from the record. The testimony of witnesses introduced, the detail condition of
In the case of Ripley v. United States, 220 U. S., 491, and 222 U. S., 144, two orders of remand were entered by the Supreme Court directing this court to find specifically upon the question of good or bad faith—not bad faith in the sense of purposed wrongdoing, but bad faith as a fact deducible from the record before us. It is extremely important in this case to know as a fact whether the contractor could have proceeded with his work with safety to his property and the Government’s property in his care and custody. Any verdict rendered in this case ignoring this fact would fall of its own weight, and unless the record in all its detail is to be reviewed it seems an indispensable proceeding to set forth as a fact that which the record convinces the court sitting as a jury is a fact. De Groot v. United States, 5 Wall., 419; United States v. Adams, 6 Wall., 101; Mundy v. United States, 35 C. Cls., 265; Atlantic, Gulf Pacific Co. v. United States, No. 25293.
The Supreme Court of California in Levins v. Rovegno, 71 Cal., 273, concludes a discussion upon the question of ultimate facts with this very significant statement: “ Where, in legal proceedings, from the facts in evidence, the result can be reached by an exact process of rational reasoning adopted in the investigation of proof, it becomes an ultimate fact, to be found as such.”
It is not by this finding intended to ascribe liability to any of the parties for the event which brought on this condition, nor does the court undertake to say that plaintiff could not
As to Finding XIII, it is asserted that the same deals with facts irrelevant and inadmissible because ex post facto in their relation to the issue involved. It is manifest that the finding is predicated wholly upon what occurred in reference to the construction of the dry dock after plaintiff’s contract had been annulled by a different contractor under another contract. With a most singular inconsistency the defendants call the members of this contracting company as witnesses to prove by them that the plaintiff could not have possibly constructed the dry dock called for in his contract under the plans and specifications furnished him by the defendants in any other manner than the way employed by it in completing the dock. Every witness so called predicates his opinion from personal experiences gained in the execution of this contract of the Holbrook, Gabot & Rollins Co., and unhesitatingly ascribes a great money loss to the undertaking as assumed by the plaintiff jn his contract. Yet when what the defendants did in taking care of the sewers and the detail of place and specification with reference to this most important feature of the whole undertaking is offered, it is insisted upon that the transaction is entirely disconnected with the former contract. The plaintiff’s contract was annulled, his plant and property seized, and the reason assigned for the annulment was his unwillingness to proceed with the work. His unwillingness to proceed is ascribed wholly to the broken sewer and the circumstances causing its break. This constitutes the gist of the whole case. The right of annulment is not an arbitrary one; it can not be exercised capriciously, and courts have the right to investi
In Ceballos & Co. v. United States, 214 U. S., 47, the Supreme Court considered, although not set forth in the findings of this court, what was done and what construction was given to an earlier contract of similar terms and subject matter to the one involved by the officers of the Government, and a substantial judgment was awarded the plaintiffs. In the Ceballos case the same inconsistencies appeared as here. Upon one contract one course was pursued by the defendants ; under another affecting similar interests in a like manner another method was adopted.
The first paragraph of the specifications expresses in plain terms that the intention of the defendants in making the contract is to secure the construction of a dry dock complete in all its parts. It is elementary that the intention of the parties to a contract and the work that is required thereunder is to be gathered from the instrument as a whole. The verbiage employed in one section can not standing alone determine this question if from an examination of the entire agreement the language of said paragraph contradicts other provisions. The contract in suit was intended to secure in
“ Where the builder performs his work strictly in conformity with the plans and specifications, he is not liable for defects in the work that are due to faulty structural requirements contained in such plans and specifications, and may recover under the contract; nor is he under any responsibility, in the event of the subsequent destruction of completed work, whether that destruction is caused by its own inherent weakness or from extraneous causes * *
In Bentley v. State, 73 Wis., 416, a case strikingly similar to this is exhaustively treated by the court. In that case the contractor engaged to construct two new wings to the State capitol building at Madison, Wis. The work was to be done in strict accord with plans and specifications prepared by an architect employed by a board of commissioners provided for in an act authorizing the contract. The contractor had partially completed his work; all that he had done had been inspected, accepted, and paid for, when suddenly the wall collapsed and fell. The commission thereafter employed additional architects, modified the plans and specifications, and the contractor finished in a satisfactory manner the work at the request of the State. It was shown that the plans and specifications were inefficient. The State declined to pay the contractor for the fallen wall. In giving the contractor a judgment for the full amount claimed, the court said:
“Under the contract it is very manifest that, had the plaintiffs departed from such plans and specifications and refused to follow the directions of the architect, there could have been no recovery for the building of the south wing, even had they in the first instance built it as they were finally directed by the architect to do. On the contrary, they could only recover by furnishing materials and doing the work according to such plans, specifications, and directions as they allege they did. The fall was not the result of inevitable accident, as in several cases cited by counsel.”
The case of Moore, Receiver, v. United States, 46 C. Cls., 139, is the nearest approach to an exact condition with the case at bar. In the Moore case a break occurred in a cofferdam constructed by the contractor under plans and specifica
“Numerous cases to the same effect might be cited, and we believe the rule in cases of this character to be that where a contractor constructs a work under a contract which provides that it shall be done under the direction and supervision of an engineer appointed by and under the employ of the owner, and loss occurs to such contractor by reason of defects in the plans directed to be followed by such engineer, of a character which ordinary skill would have foreseen, the owner should pay for such loss.”
The defendants accepted a substantial judgment against them on this item of the claim, no appeal from the decision was taken, and the judgment was paid. It is true that in the Moore case the contractor reconstructed the cofferdam and finished his work, contenting himself with suit after the conclusion of the contract. In this case, however, the situation was the opposite. The contractor interposed no objection to a mere repair of the sewer; that in itself was comparatively insignificant. What he asked for, and what was refused him, was an assurance that the defendants would assume responsibility for damages to a continuing menace, an apparent, open, and notorious danger to property of great money value, a loss which might ruin him. In the Moore case the contractor could well repair the cofferdam and proceed, for it was an indispensable adjunct to doing the subsequent work prescribed by the contract. In this case the menace remained a source of danger to all the contractor might subsequently do, notwithstanding the fact that he might repair or rebuild the same. The defendants in this case not only declined to suggest a method or propose plans and specifications for averting the danger by reconstruction but positively asserted a liability upon the contractor not only for all that had happened but for all future loss as well.
In MacKnight Flintic Co. v. Mayor, 160 N. Y., 72, the court, in passing upon a suit to recover for work done according to plans and specifications furnished by the defendant, wherein a warranty appeared that the construction would produce certain water-tight floors, the court said: “The reasonable construction of the covenant under con
This principle of law is fully affirmed in Horgan v. Mayor, etc., 160 N. Y., 516; McRitchie v. City of Lake View, 30 Ills. Appellate, 393; Filbert v. City of Philadelphia, 181 Pa. State, 530; 1 Parsons on Contracts, 587.
The defendants assail the applicability of the above citations and predicate their criticism upon a difference in the relative situation of the parties, it being insisted that all the cases cited were suits to simply recover for work and labor done and materials furnished in accord with the contracts and specifications, conceding in the argument that an action could be maintained by the contractor in this case for the full cost of building the 6-foot sewer even after the break. It will be impossible to cite a case on all fours with the one in suit, and no such citation is to be found in the briefs of counsel. The issue must be determined by resort to fundamental principles of law abstracted from judicial determinations wherein the facts come within the range of similarity. If the contractor can recover the contract price for constructing the sewer, he must do so on the theory that he has complied with his contract, and it is difficult to perceive a distinction in law which rewards the contractor for his contract work and at the same time holds him responsible for damages occasioned by a defective design of the work he has admittedly performed in the only possible way he could do it and get pay therefor.
Again, it is insisted that the peculiar situation here removes this case from the rule above stated. The contractor not only assumed the risk to be anticipated from the location of the sewer, but from breakage and disaster as well; that he was given ample warning by the terms of the contract to investigate conditions for himself, and having assumed an obligation to do the work he must perform it, no matter how difficult, expensive, or dangerous it may be to complete his
Knowledge as a factor in fixing liability under contractual relations is not to be alone imputable to the contractor. The duty of both parties to the contract under a clause directing the contractor to visit the site and see for himself is mutual. The defendants can not withhold important information or mistakenly state what they do know and acquit themselves of liability under this precautionary clause usual in all Government contracts. Hollerbach v. United States, 233 U. S., 165; Christie et al. v. United States, 237 U. S., 234.
“ When a person has not actual notice he ought not to be treated as if he had notice unless the circumstances are such as enable the court to say not only that he might have acquired but also that he ought to have acquired it but for his gross negligence in the conduct of the business in question. The question, then, when it is sought to affect a purchaser with constructive notice is not whether he had the means of obtaining and might by prudent caution have obtained the knowledge in question, but whether not obtaining was an act of gross or culpable negligence.”
What was there upon the site visible to inspection and open to investigation to charge the contractor with knowledge of an abnormal condition with respect to the sewers or suggest to him the pertinency of public inquiry in reference thereto? The site itself was more or less covered by buildings, which the contractor was to remove. Practically every description of interference beneath the surface of the earth was to be cared for by the contractor himself upon his responsibility except the building of the 6-foot sewer. The sewers were beneath the ground, there was absolutely nothing apparent, and nothing except an immediate occurrence of a rain similar to the one which did occur to even remotely suggest the subsequent disaster. All these interferences suggested, of course, difficulties in the skill and workmanship required to remove them and the cost thereof, but nothing as to the inherent structural weakness of a sewer the defendants would only allow him to remove and construct in a fixed and certain way.
What contractor would have gone among the native population making inquiry as to the internal capacity of sewers in the face of these express provisions in his contract, viz:
“ 5. Control of work.—The United States, by its civil engineer in charge of the work or other authorized representa*178 tive, shall at all times have full control and direction of the work under the contract, and all questions, disputes, or differences as to any part or detail thereof shall be decided by such civil engineer or representative, subject only to appeal to the Chief of the Bureau of Yards and Docks.
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u 159. Back fill for sewer.—No back filling shall be deposited upon the sewer until after the coat of cement mortar has been allowed twelve hours in which to set. In depositing back fill in the sewer trench care shall be taken not to injure this coating in any way. No material shall be dumped from buckets or otherwise directly over the arch except as directed by the civil engineer in charge. Ashes and cinders, together with dry earth and loam from the line of the trench, may be used for back filling. It is believed that such material may be obtained in the vicinity free of cost to the contractor, but the Government does not assume any responsibility in connection therewith.
ijs # # # if: *
SEWER.
“ 196. Sewer.—The intercepting sewer in Dock Street, which now crosses the dock site, shall be diverted around the head of the dry dock, as shown on sheet 3. The new sewer shall have a uniform grade. Should either of the manholes now in the sewer be tom out in rebuilding it, they shall be rebuilt in the new sewer in a manner to correspond with the present manholes. All transverse sewers and drains that now empty into the present sewer on Dock Street and which are disturbed shall be rebuilt so as to empty into the new sewer, as directed. Those portions of streets torn up for constructing the sewer shall be refilled and rammed, as specified herein.
“ 197. Platform.—The piles shall be capped transversely with 8 by 12 inch sound spruce timbers, secured to each pile by one f by 20 inch galvanized steel driftbolt. On these «ball be laid 4 by 12 inch spruce planking, close together, and fastened to each cross cap by two 9-inch wharf spikes to each plank.
“198. Curves.—Whenever the sewer deviates from a straight line such deviations shall be true arcs of circles. The templets for the inverts shall be so arranged and the centers so constructed as to conform accurately to the given radii.”
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The court can not indulge a presumption, in the face of numerous decisions to the contrary, that the defendants in
As Mr. Justice Day said in the Hollerbach case, sufra, p. 172:
“ We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no*180 doubt. If tbe Government wished to leave the matter open to independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.”
No loss followed from the mere location of the sewer; it was properly constructed and supported; the record finds the loss ascribable wholly to inherent defects in engineering, inefficient plans and design, a fact fully corroborated by the subsequent conduct of the defendants in caring for this same sewer. Sundstrom v. State of New York, 213 N. Y., 68.
The defendants by their plans and specifications warranted their efficiency and the contractor had a right to rely upon them as correct representations of good and sufficient engineering skill and ability without an independent investigation of previous local conditions which might have warned him otherwise. He can not be held to have assumed the risk in any event for an obstruction in a sewer entirely outside the lines of his contract work, and which he had no means of discovering in the ordinary discharge of his contractual duty. The defendants were bound to furnish him workable plans to accomplish the desired end. They were likewise bound to furnish plans that allowed him to prosecute his work without loss, damage, or delay due to their mistake; and if by reason of their error the contractor could not proceed without the danger of not only loss of all his profits, but destruction of his and Government property as well, he may, upon the defendants’ absolute refusal to correct the same or refusal to assume responsibility therefor, abandon the contract and recover his loss.
It is conceded by the defendants that a breach of contract by them entitles the claimant to a judgment, and that if the bursting of the sewer and their subsequent conduct in reference thereto is found by the court to constitute a breach, liability attaches.
In Anvil Mining Co. v. Humble, 158 U. S., 540, Mr. Justice Brewer, speaking for the court, said:
“ It is insisted, and authorities are cited in support thereof, that a party can not rescind a contract and at the same time*181 recover damages for his nonperformance. But no such proposition as that is contained in that instruction. It only lays down the rule, and it lays that down correctly, which obtains when there is a breach of a contract. Whenever one party thereto is guilty of such a breach as is here attributed to the defendant the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform; in other words, he may abandon it and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrongdoing of the other party has brought about. Generally speaking, it is true that when a contract is not performed the party who is guilty of the first breach is the one upon whom rests all the liability for the nonperformance. A party who engages to do work has a right to proceed free from any let or hindrance of the other party, and if such other party interferes, hinders, and prevents the doing of the work to such an extent as to render its performance difficult and largely diminish the profits, the first may treat the contract as broken, and is not bound to proceed under the added burdens and increased expense. It may stop and sue for the damages which it has sustained by reason of the nonperformance which the other has caused.”
We have set forth the above quotation in extenso not alone because it is a most just and salutary exposition of the law, but because of the applicability of the language to the case at bar. The bursting of the 6-foot sewer occurred on August 7, 1906; the claimant immediately gave notice and preferred his claim under the contract; a board was convened, its report going alone to the cost of repairing the sewer, and it was not until November 14, 1907, more than a year after the break, that the defendants decided to annul the contract. The claimant advocated persistently for a decision as to responsibility for damages; a mere repair of the sewer brought no relief; the menace remained if a brick sewer was to remain in close proximity to his work upon which he had expended large sums of money and near which he had placed a costly plant. The defendants declined to submit plans and specifications structurally sufficient to care for the broken sewer; under the contract then the contractor could do no more than repair the old brick sewer, he was absolutely without authority to rebuild the bursted sewer in the manner the
Surely this contract is not unilateral, imposing upon the contractor not alone the physical duty of skillfully putting together the material in the way specified by the defendants, but the greater responsibility of warranting that this way will produce the contemplated result without loss, let, or hindrance. The defendants can not escape all responsibility for their part of the undertaking. No matter how precise the language of the scrivener, it has been universally held by the courts that the full measure of implied warranty attends the written undertaking and weighs with equality the reciprocal rights of the parties to the agreement, though it may not be found in the positive language of the written paper. A warranty does not hav.e to be in every instance expressed in the contract, and the fact that methods are provided for
We are unable to see any application of section 3744, Revised Statutes, to this case. The contract was in writing and met the requirement of the statute. The liability, if any exists, grows out of the written contract. It is just as much a part of the undertaking as any other feature of the work. It would be a rather novel proceeding to hold that the parties to this agreement, both claimant and defendant, could only be charged with such legal responsibility as the exact and limited language óf the contract expressly states. Contractual relations bring certain legal responsibilities—some ascertainable from the language used, others which the law implies from the relationship of the parties—and if the written instrument meets the requirements of a statute intended to prevent fraud, the contract is enforceable in law in all its legal aspects. We need not emphasize this assertion by a citation of authorities, for few, if any, contracts have ever been construed by the courts wherein the language used has been held to limit actions for their breach to a mere ascertainment of the meaning of the words. In this case there follows from the contract an implied obligation assumed by the contractor to do the contract work in a skillful and work
The question of the sufficiency of the pleadings in this case was raised in this court by demurrer, and after mature deliberation the demurrer was overruled and the parties put upon their proof. This is not a case of attempted escape from difficulties attending the performance of a contract. These, of course, the contractor assumed and must abide his obligations. It is a case where the circumstances of the transaction disclose a condition ascribable to the defendants’ conduct, a condition brought about by the defendants which did not create difficulties but rendered the performance of the contract impossible unless the contractor would willingly assume immeasurable responsibilities for damages, a risk and responsibility not imposed upon him by the contract or fairly deducible from its express terms.
A suggestion of a defense was predicated upon section 21 of the specifications, entitled “ Contractor’s responsibility.” We do not believe it necessary to prolong the discussion of the case by adverting thereto. The clause has no application to a loss due entirely to the fault of the defendants. The wording of the stipulation limits its applicability to loss occasioned by some default of the contractor and is in no way involved in this case. The defendants do not emphasize the contention; in fact, concede, as before observed, liability in the event of a breach of the contract.
The damages recoverable follow the principles laid down in United States v. Behan, 110 U. S., 338. The record does not sustain a judgment for the entire sum of profits claimed in the petition. The court, sitting as a jury, from the whole record is convinced that the plaintiff under his contract could have completed the work and earned profits. Taking the testimony as a whole, we believe the contractor is entitled to $60,000 profits.
The rule as to damages taken from the Behan ease confines the judgment in that case to the reasonable expenditures made by claimant in the performance of the contract up to the time of the breach. In ascertaining this amount from a conflict in the testimony the court must look to the record as a whole, making its deductions in the form of a special verdict after deliberative consideration of all the testimony in the record. In the allowance of profits the court has followed the whole line of authorities cited with approval in the Behan ease. The claimant goes for profits lost as well as for sums expended. As we understand the rule, the profits recoverable are to be determined by the difference between the cost of performance and the contract price, and this must be shown with sufficient certainty to remove the contention from the domain of speculation or remoteness. The defendants challenge the possibility of anticipated gains by testimony in the main from the officers and employees of the succeeding contractors. In this respect they are at an apparent disadvantage by reason of their conduct subsequent to the annulment of the contract. The contract work which the contractor here involved obligated himself to perform was never performed by him or any other contractor. The testimony offered, necessarily hypothetical, is rested upon a false basis. The cost of a proceeding involving an undertaking enlarged at least to more than twice the work required of the claimant, and for which the defendants paid over two millions of dollars, is incomparable to the claimant’s work under his contract. It affords no just criterion by which to judge the possibilities of gain which the claimant, an experienced contractor, undoubtedly contemplated in entering into his contract, which indeed was materially less in extent and comparatively insignificant in price when compared with the final work and gross expenditure. It is sedulously advanced, however, that claimant’s own figures of expenditure, when viewed with reference to the amount of performance accomplished at the time of the breach, absolutely
Judgment is awarded the plaintiff under Finding XII for $141,180.86. It is so ordered.
Barney, Judge, and Atkinson, Judge, concur.
not having heard this case, took no part in the decision thereof.
Dissenting Opinion
dissenting:
As suggested in the majority opinion, all of the members of the court did not agree upon the findings of fact. The discussion of some objections to the findings will appear without a detailed reference to them, but the last paragraph
The material facts necessary to a full understanding of the questions involved are simple, and practically undisputed.
Advertisement having been made for proposals “ for the construction by contract of a dry dock of the general dimensions, and to be located at said navy yard at the place shown by the plans and specifications therein referred to,” the plaintiff, as the successful bidder, entered into a contract to construct and complete said dry dock according to the plans and specifications attached to the contract and with modifications as contemplated by paragraph 268. A copy of the contract is attached to the petition.
The site of the proposed dry dock having been selected at a place in the navy yard which had upon it buildings and structures, pipes and tracks, and, among other things, what is described in paragraph 196 of the specification as “the intercepting sewer in Dock Street which now crosses the dock site,” the plans and specifications provided for the removal of said structures and the diversion of the said sewer, which will hereafter be called the 6-foot sewer, “ around the head of the dry dock, as shown on sheet 3.” The evident purpose in this removal of structures and diversion of the 6-foot sewer was to clear the dry-dock site of impediments to the construction at said place of the dry dock. It will be noted here that paragraph 196, referring to the 6-foot sewer, is under the general heading in the plans of “ Tem
The said structures were removed, the 6-foot sewer was diverted in accordance with said map 3 within the stipulated time, and the sewer work was accepted and paid for by the defendants. The plaintiff then proceeded with the work of constructing the dry dock. On the 7th day of August, 1907, a year after the said diversion of the 6-foot sewer, “ a sudden and heavy downpour of rain occurred, and coincident with it was a high tide, which forced water a considerable distance up the sewer to a depth of 2 feet or more,” and the 6-foot sewer cracked in the part of it which had been diverted, and through the cracks water flowed into the dry-dock prism. Finding IX states that said break was caused by internal pressure of water from the sudden and heavy downpour of rain in conjunction with said existing high tide, which the sewer was not of sufficient size to carry away. This 7-foot sewer was intercepted by the 6-foot sewer a short distance from the dry-dock site, and both of them were parts of and main outlets to the Brooklyn sewer system. Some years prior to said contract a dam or obstruction 5 feet high had been placed in the 7-foot sewer, which diminished its capacity and increased the burden on the 6-foot sewer. The existence of said dam was not known to any of the parties concerned with said contract or plans nor to the superintendent of sewers of the city of Brooklyn. Said sewers had overflowed in the past “ at sundry times as the result of sudden and heavy downpours of rain” and flooded portions of the navy yard and contiguous portions of said city. These conditions of overflow were matters of common knowledge in the said neighborhood and were
Though bidders were admonished by the plans and specifications, sections 271 and 274 above, to visit the site and inform themselves thoroughly of the actual conditions and requirements before submitting proposals, and that application should be made to the chief of the bureau or commandant at said navy yard for any further information needed by bidders, the plaintiff did not call upon either of said officers, but as shown by Finding VII, he visited the site of the proposed work and made a superficial examination thereof. The finding also states that he sent one or two representatives to the civil engineer’s office at the navy yard to obtain what information they could concerning the conditions and probable cost of the work. Whether these representatives actually called upon said officer or made any inquiries “concerning the conditions” is left to inference. There is no proof that they did so. It is entirely clear that the plaintiff personally did not see any of the said officers or seek information relative to the conditions, present or past, surrounding the sewers, because when questioned while he was testifying he not only answered, “ I believe I did make a superficial examination of the site. The site was pretty well covered with buildings and very little could have been determined by an examination of the site,” but also that he knew there was a seven-foot sewer running down on the east side of the dock and a transverse six-foot sewer crossing it near the head of the dock, that he had no information as to their overflows, and that he did not make any inquiries to find out what were the capacity and results of these sewers, because, he says, “ that would have been checking up the engineering of the work, and I assume that the engineering of the work had been properly done.” The plaintiff thus ignored the reasonable requirement of paragraph 274 of the plans to seek information before making his bid, as well as the provisions of paragraph 25, requiring the contractor to “check all plans furnished him.” In view of these facts and of the language of Finding VI that plaintiff was not informed by the officer in charge that the sewers
When the said break in the sewer occurred the plaintiff had been working on the dry-dock prism for a year without any interference from the sewer.
Immediately after said break the plaintiff addressed a communication to the officer in charge relative to the same, “stating his purpose to suspend operations and not to resume until the Government had made provision for caring for or assuming the responsibility for the damage that had been or might be occasioned by the said sewer, its insufficient capacity, and location” (Finding X). This was on August 10, 1906, and the annullment of the contract did not occur until November, 1907, some 15 months later. In the meantime work under the contract was suspended. It appears that each party acted upon legal advice. On January 14, 1907, and again on January 25, the Secretary of the Navy addressed to plaintiff the communications mentioned in Finding X. In the first of these letters the Secretary, inclosing a copy of the opinion, said:
“ In view of the Attorney General’s opinion the department holds you responsible for the completion of the work required by your contract, and it is accordingly requested that you proceed without further delay with the fulfillment of your operations in the premises. If you conclude, as your attorney said you probably would, not to proceed with the*192 work, it is requested that you notify the department immediately to that effect.”
Under date of January 29, 1907, the plaintiff replied, and, besides stating his unwillingness to resume work, said:
“ You must recognize that the main point at issue is not as to who is responsible for what has occurred, but what is to be done for the future. Unquestionably a grave blunder has been made in the design of this sewer, and again in locating it where it is around the head of this dry-dock structure within the line of the natural slope of the excavation. Such conditions render it impossible for me to comply with your demand that I proceed with the work without modification of the sewer plan.”
The matter did not stop here, but thereafter a board of investigation was appointed, as stated in Finding X. This board convened on March 30 and “heard many witnesses, including those called by the claimant, who appeared before the board and was represented by counsel during its investigation. The board made its report, to which the contractor filed a number of exceptions” (Finding X). The board’s report reviewed the whole matter relative to the sewer and a drainpipe complained of and set forth their conclusions, to which exceptions were filed by the plaintiff and considered. On June 13, 1907, the Secretary again requested plaintiff to resume operations under the contract without further delay. More correspondence ensued, and on November 14 the contract was annulled under the provisions of the contract. The plaintiff did not demand the repair of the sewer. He did not predicate his refusal to resume work upon “ its then condition,” but he demanded a change in its “ design and location,” an assumption by the Government of all responsibility for the damages that had been or might be “ occasioned by the said sewer, its insufficient capacity, and location.” In short, he demanded a new contract. At no time was the issue between the parties reduced to the question of which of them should repair the sewer. The real issue presented by the plaintiff was as has been stated, and while said Finding X may show it, the fact may be emphasized by the admission of plaintiff when testifying in his own interest before said board, “ I believe to-day that the menace
Considering the magnitude of his claims put in jeopardy, the profits he stood to lose, and the damages he now claims to have suffered, the cause of his failure to resume work can not be found in the fact of the break or the alleged internal pressure of the sewer or the failure of the Government to repair it. He had made a contract to construct the dry dock for a stipulated sum, with the sewer as constructed in the position it was. True, he was to divert said section of it, and did so satisfactorily, but when he bid upon said work, and preliminary to his bid examined the plans and specification, he knew exactly where the diverted section of the sewer was to be located, its size, its construction of brick; that it was merely a segment of the sewer which drained a considerable area and was one of the outlets of the sewerage system of Brooklyn. As a bidder he must be presumed to have understood the plans, Clark v. Pope, 70 Ill., 128, and he could visualize, so to speak, the sewer in its new location. The case is not different from what it would be if the sewer had been diverted by some other contractor or had originally, before the contract was made, been located at that place. And so plain is this proposition that counsel for plaintiff argued and state on their brief in this court that the claimant assumed the risk of said location of said sewer. Such being the case, he manifestly can not complain of “the Joss ascribable wholly to inherent defects in engineering, inefficient plans and designs.” These, if they existed, should have been considered before he made his contract, and they afford him no cause of action based upon an abandonment of his con
Where, then, is there any basis for a recovery by plaintiff of damages, including profits, as upon a prevention by defendants of performance? He abandoned his work and refused to proceed. His right to abandon the contract needs a more substantial basis than the refusal of the defendants to accede to his demand. He examined and studied the plans and specifications; he knew the location of the diverted section of the sewer; he had means of knowledge, which is often equivalent to knowledge itself, of the occasional overfipws of said sewers. Information, if called for, could have been had from the officer in charge or from the city engineer or anyone living in the vicinity. He made a bid to do the work, and upon its acceptance entered into a contract to
The rule thus announced is peculiarly applicable to certain Government contracts which by statute (sec. 3744,11. S.) are required to be in writing. That statute is mandatory in its requirements, and its policy excludes the idea that an implied warranty not within the implications of the language used in the express contract can be charged against the Government in the Navy Department’s engagements. Sanger’s case, 40 C. Cls., 47; South Boston Iron Co. case, 118 U. S., 37; St. Louis Hay & Grain Co. case, 191 U. S., 159; Monroe case, 184 U. S., 524.
In Sanger’s case, 40 C. Cls., 47, 69, the court considered a contract in which some changes in the plans had been made prior to its execution, and considered also section 3744, Devised Statutes, relative to the necessity for certain contracts to be in writing; and, speaking through Judge Peelle, said: “Hence the liability of the United States must be determined, not by the preliminary negotiations between the parties, but by the written contract into which the preliminary negotiations, including the change in the plans and the reduction of the quantity of stone, were merged,” citing Simpson’s case, supra; Brawley’s case, 96 U. S., 168, 173, and other cases.
But what are the inherent defects in the plans or designs? A properly located, constructed, and supported sewer is not bad engineering, and the bursting of a sewer under unusual conditions would not support the contention that it was de
The cases cited by the court do not, it seems to me, sustain the conclusion reached in the court’s opinion. They will be referred to in their order: The Sickles case, 1 C. Cls., 214, is cited, and the rule of damages applied there has not been applied here. The assurance given in that case to the contractor that “ the bottom of the knoll consisted of hard sand ” when it developed to be soft mud, and the limited responsibility imposed by the terms of his contract, relieved the contractor in that case from performing an undertaking which both parties practically abandoned because it was found to be a “physical impossibility.” He was allowed to receive the value of his materials assembled and used for the purposes of the undertaking, but no profits were allowed.
Bentley v. State, 73 Wis., 416, is said to be a case strikingly like this, but a radical difference exists between the two cases in that Bentley fully performed his contract and Spearin positively refused to perform at all. The one relied upon an executed contract; the other sues upon an executory contract. In the Bentley case the contractor, working under direction of the State’s architect and conforming to the plans provided by the architect, built a wall which fell. Then, proceeding under a new architect and new plans, he replaced ,the fallen wall and completed the entire structure. He sued
“ The fact that he contracted to construct a building after certain plans, drawings, and specifications implies that he does understand them. The undertaking itself is upon the condition that he has that skill that will enable him to comprehend them, and the law will not permit him to escape liability on the ground he has exercised ordinary care and skill in that regard.”
The other cases cited—MacKnight Flintic Stone Co. v. Mayor, 160 N. Y., 72; Horgan v. Mayor, Ib., 516; McRitchie v. City, 30 Ill. App., 393; and Filbert v. City, 181 Pa. St., 530—are likewise inapplicable. The New York case is declared in the opinion therein to be “ a similar case ” to the Filbert case, 181 Pa. St., and in the latter it is made quite plain that the case turned upon the construction of the con
If the principle of guaranty or implied warranty of plans is applicable in any case, a court must hesitate to apply it in a case where the right of modification of the plans is reserved in the contract, as it is in the instant case. Kinser Cons. Co. v. State, 204 N. Y., 381; Kingsley v. City, 78 N. Y., 200, 211. Eeliance is placed in the opinion on the case of Moore, Receiver, 46 C. Cls., 139.
In connection with the rule stated in the Moore case when it is sought to extend it beyond the question decided, the language of the Supreme Court in Atlantic, Gulf & Pacific Co. v. Philippine Islands, 219 U. S., 17, 23, should be noted:
“It is suggested that the reason for the Government undertaking was that the plan was made by the Government engineers. It may have been. But the plaintiff was content to work upon that plan; it, not the Government, was doing the work, and it took the risk so far as the contract did not make a change. The Government could not be charged by it with negligence or with causing the first break. That was only something for repairing which the Government had promised to pay. Whatever the Government had not promised to pay for the contractor had to do in order to offer the completed work which it had agreed to furnish.”
The cases cited do not sustain the conclusion that the defendants made an implied warranty. They are responsible, as other parties, for the reasonable implications of the language of their contract. Under the contract in question no warranty can be implied. Simpson’s case, 172 U. S., 372; Seitz v. Brewing Co., 141 U. S., 510.
The objection to Finding XIII is not confined to its irrelevancy, but to the application made of it as well. The record shows that after the annulment of plaintiff’s contract and the reletting of it “under practically the same conditions in so far as sewers were concerned,” to the Williams Co., that company proceeded with the work. This contract was annulled October 1, 1909, nearly two years after plaintiff’s contract was annulled. The work was relet November 12, 1909, to Holbrook, Cabot & Rollins Co., whose bid on the basis of the dry dock as changed under the Williams con
It remains to be said that the plans and specification for the dry dock had no connection with the sewer, and their
If the action is on account of a failure to disclose the existence of said dam in the 7-foot sewer it would, under the foregoing cases, “ sound in tort,” and this court would not have jurisdiction.
The plaintiff sues upon an executory contract. He does not aver or show any impossibility of performance. There is nothing in the findings which shows that the defendants prevented performance or interposed any objection to his resumption of work. Their insistence was that he proceed. The findings show, inferentially at least, the great patience with which the plaintiff was dealt with and his continued refusal to resume. If under the circumstances after delaying for 15 months and the plaintiff’s repeated refusals to resume work except upon conditions stated by him the de
The rule applicable to contracts generally is thus stated in Dermott v. Jones, 2 Wall., 1, which was twice before the Supreme Court and is a leading case on the subject: “It is a well-settled rule of law that if a party, by his contract, charges himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties-, however great, will not excuse him.”
In Dermott v. Jones, the contractor, Jones, contracted with Miss Dermott to build a certain house for her upon her land according to detailed plans and specifications prepared by her architect and made a part of the contract. He covenanted to supply all requisite material for the execution of the work in all its parts and details and for the complete finish and fitting for use and occupation of the building to be erected pursuant to the said plan of the work, and that the work should be executed and finished ready for occupation, and be delivered over “so finished and ready” at a date fixed. The contractor built the house according to the specifications. Owing to latent defect in the soil the foundation sank, the building became badly cracked, and so dangerous to passers-by that the owner, Miss Dermott, was compelled to take it down, renew the foundation, and rebuild that part of the structure which had given way. She did this at large expense, but made a good building. The contractor sued for the price of the original structure, and the owner sought to recoup the amount she had necessarily expended in order to render the cracked part of the house fit for use and occupation acording to the plan and specification. The trial court refused to instruct the jury that said expense was a proper matter of recoupment in said action, and that refusal made the important question in the appellate court.
In the Supreme Court’s opinion it is said:
“The defendant in error [the contractor] insists that all the work he was required to do is set forth in the specifications, and that, having fulfilled his contract in a workman*207 like manner, he is not responsible for defects arising from a cause of which he was ignorant and which he had no agency in producing.”
Referring to the signed instrument and the specifications as forming the contract it is said:
“ In that instrument the defendant in error made a covenant. That covenant it was his duty to fulfill, and he was bound to do whatever was necessary to its performance. Against the hardship of the case he might have guarded by a provision in the contract. Not having done so, it is not in the power of this court to relieve him.”
The court refers to a number of adjudicated cases, and says:
“ The principle which controlled the decision of the cases referred to rests upon a solid foundation of reason and justice. It regards the sanctity of contracts. It requires parties to do what they have agreed to do. If unexpected impediments lie in the way and a loss must ensue, it leaves the loss where the contract places it. If the parties have made no Srovision for a dispensation, the rule of law gives none. It oes not allow a contract fairly made to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated.”
It was accordingly held that the recoupment could be made.
It is declared in Smoot's case, 15 Wall., 36, that the impossibility which releases a man from his obligation to perform must be real, and not a mere inconvenience.
In The Harriman, 9 Wall., 161,172, the rule is stated to be that if what is agreed to be done is possible and lawful it must be done. Difficulty or improbability of accomplishing the undertaking will not avail the defendant. “ It must be shown that the thing can not by any means be effected. Nothing short of this will excuse performance.” See also Railroad Co. v. Smith, 21 Wall., 255.
These principles were applied in Jacksonville Railway v. Hooper, 160 U. S., 514, 527, where the impossibility relied on arose subsequent to the making of the contract.
In Thorn v. Mayor, 1 L. R. App. Cases, 120, the declaration alleged that defendants guaranteed and warranted to the plaintiff that Blackfriars Bridge could be built accord
In Bottoms v. Mayor of York, reported in Hudson on Bldg. Contrs., Vol. II, p. 220, it appeared there was a contract to build certain sewers under specifications, with the right reserved to the defendants’ engineers to change the same. The plaintiff agreed that the works should be carried out in all respects with the specifications and drawings and to the satisfaction of the engineer. The contractor commenced his work, and as he proceeded his difficulties increased, because of the condition of the soil. Having appealed to the engineer without avail, he appealed to the city authorities. He claimed the work could not be done according to said plans in that soil, and asked, as claimant here in substance asked, for a modification of his contract. The authorities refused it, as stated in the opinion of the Queen’s Bench Division, from which court the appeal was prosecuted: “The corporation heard, through their committee, his application and refused to grant it,” as was done
These principles are applicable here. Plaintiff’s undertaking was that he would build and complete the dry dock with the sewer located as it was and built of brick as it was. He suspended work and refused to proceed—he abandoned his contract and has shown no legal or valid excuse for his action.
There is nothing in the Hollerbach case, 238 U. S., 165, or the Christie case, decided lately, that contravenes the position taken in this dissenting opinion. In the former, effect was given to a positive statement in the specifications, and in the latter to a failure to communicate, when applied to, the information in possession of the Government. Neither of them qualify the principle announced in the Simpson case, and neither holds that a contractor can fail, to seek information, when notified he must do so, and then complain that he did not get information which more attentive bidders did get. Both cases admit “the rule that the contract is the law of the case.” Simpson’s case, supra; Atlantic Co. v. Philippine Islands, 219 U. S., 17, 23.
If it can be said that the condition which arose was not one that was in contemplation of either party to the contract, Chicago, Milwaukee, etc., R. R. v. Hoyt, 149 U. S., 1, 15, the utmost that the plaintiff can claim is a right to quit work and remove his plant. He can not under such circumstances recover profits. I think, however, that the plaintiff should have judgment for the amount for which his plant was sold and some smaller items, aggregating $7,967.98.