58 Ct. Cl. 671 | Ct. Cl. | 1923
delivered the opinion of the court.
Under the terms of a written contract the plaintiff company assumed obligations to dredge and dispose of 4,177,110 cubic yards of material, scow measurement, in Newark Bay and Passaic Biver for the sum of 16¿ cents per cubic yard. The dredging work provided for in the contract was intended to secure for the defendant a channel 16 feet deep at mean low water, extending 10.8 miles from Staten Island Sound to the Montclair & Greenwood Lake Bailroad bridge. It was to be 300 feet wide for a distance of 9.7 miles and 200 feet from there on, a distance of 1.1 miles, and the contract so provided. Work was to commence within a month after the contractor received notice of the approval of the contract, and was to be prosecuted faithfully and diligently. The specifications, which are made a part of the contract, contained a provision for the retention by the defendant of 10 per cent of all payments made thereunder until half of the work was completed, a fact to be determined by the engineer, and thereafter the plaintiff was to receive payment in full. The work under the contract progressed without any undue friction, and in a manner satisfactory to both parties, until January 1, 1910. As a matter of fact, there was no complaint lodged against the contractor, and none could have been. Subsequent to this time trouble began to develop. The plaintiff fell far below its theretofore efficiency, until at last on September 24,1912, it ceased work entirely, ascribing its difficulties to a distinct change in the character of the material encountered, a difference so violent as to amount, according to the allegations of the petition, to misrepresentation upon the part of the defendant in its specifications. On November 1, 1912, the plaintiff wrote the Secretary of War asking to be relieved from its contract, and predicating its request upon the substantial difference between the character of the material to be dredged, as shown in the specifications, and that actually encountered in the performance of the work, stating the difference to be such as to make the cost of removing the same inequitable and unjust to the contractor. The Chief of Engineers declined to accede to plaintiff’s request, notified the company to proceed with the work, and upon its failure to do so annulled the contract on March 14,
If the facts in this case correspond with the facts in the cases of Christie v. United States, 237 U. S. 234, and Hollerbach v. United States, 233 U. S. 165, the plaintiff is entitled to judgment. Of course, such a result might follow, even though there be no such similarity. Inasmuch, therefore, as the contention made indispensably involves a discussion of the facts, the court has endeavored to find them from a record not especially contradictory nor involved.
The contract sued upon was the result of a public advertisement for bids to do the contemplated work. As usual, the defendant made public and available to bidders such information respecting the work as it possessed, which bidders might call for. The plaintiff company was manifestly anxious and deeply concerned in its efforts to procure the contract, for its bid for the same was so decidedly beneath all others that it is inconceivable that experienced engineers would have dreamed of the undertaking at such a figure, unless some other and outside consideration inspired it. The plaintiff company, prior to submitting its bid, had before it subdivision (c) of paragraph 19 of the specifications, as follows :
“ Character of Material. The material to be excavated is believed to be mud, sand, and gravel, but bidders are expected to examine the work and decide for themselves as to its character and make their bids accordingly, as the United States will not guarantee the accuracy of this description. The price per cubic yard will cover the removal of all material encountered except ledge rock.”
Fraud and misrepresentation is frequently difficult to prove, but in this class of cases, wherein it most generally is to be deduced from printed documents, maps, and blue prints, and the influential effect of the same upon bidders, the conclusion as to its existence or nonexistence is not quite so involved as the reconciliation and analysis of oral testimony, keeping in mind, of course, that we are speaking of constructive rather than actual and intended deceit. However, the rule is not to be relaxed. The court must not only find the representations to have been false, but, being so, did actually mislead the bidder who obtained the contract. Christie, v. United States, sufra.
The burden of proving misrepresentation rests upon the party making the allegation. It is not to be presumed, and one may not, either under the Christie or Hollerbach case, simply show a different condition in some respects from that which the chart or blue prints of borings discloses, and rest his case upon the theory that the court must infer a mis
The plaintiff had in its employ as manager and superintendent of its dredging plant Mr. John A. Seeley, an exceedingly competent man. Mr. Seeley made the estimate upon which the company made its bid, and had entire charge of the dredging operations. Mr. Seeley had been for 11 years engaged in dredging over this identical area; he was thoroughly familiar with all local conditions, and while he had not dredged a channel deeper than 12 feet over this same course, he had completed one to that depth, and in so doing it is incredible that he was unfamiliar with the common character of the material to be dredged. Doubtless it was he who wrote into the plaintiff’s proposal that the company was familiar “ with the kind, quantity, and quality of the work required.” Was Seeley, and thereby the plaintiff, deceived by the blue pxúnts? It might well be argued that one of his long experience would not commit the monumental blunder of doing the work called for at such a reduced price unless he was misled as to the character of the material to be removed and the difficulties to be apprehended in performing the contract. The force of such a contention is effectually dispelled when Seeley’s relation to the contract and those interested in the venture, as shown by the record, discloses itself. The origin and organization of the plaintiff company and its affiliation with the Newark Meadows Improvement Co. is fully set forth in Finding VI. The ownership of the two companies was identical, and it was the indisputable purpose and intention, as a part of a large and important enterprise, to secure this contract — hence the obviously low bid — in order to secure a sufficient quantity of material to fill in and fill up a large area — about 3,500 acres — of swamp lands adjoining the lower reaches of the area to be dredged, acquired by the Newark Meadows Improvement Co., and at
There is no proof here that the borings did not show exactly what the officers taking them found. While they may not have shown clay as present at each point where the boring were made, they do disclose the presence of clay where clay was found, and in addition show clay present at a sufficient number of places to put the contractor on notice of its presence in the bottom of the channel, and thereby warn him of difficulties to be anticipated. It is not disputed, and may not be, that whenever the steel rod ran upon a bowlder the fact was recorded and the boring apparatus moved to another place for another boring. The record confirms the statement that the material dredged conformed generally to the material indicated by the borings, and no more could be done and no more is required. The facts are totally unlike the record in the Christie case. In the latter case bor-ings were made, and if a log was encountei'ed the officer moved the boring apparatus to a point free from logs and then recorded it as having been made at exactly the point where the log was found, thus leading the contractor to believe that no logs had appeared at this point, when, as a matter of fact, the log was there; had been found but not recorded at all. There can be no misrepresentation in bor-ings recorded as in this case where the record shows beyond doubt that what the borings indicate was correctly and honestly stated on the boring sheets. It would be difficult, even under circumstances a little more favorable to the plaintiff,
The plaintiff is suing only for the retained percentages and underpayment, and while it seeks to justify .its procedure and positively disclaims any intent to an actual voluntary abandonment of its contract, and charges the defendant with a breach thereof, no claim is made for damages other than as stated above. This claim we believe to be untenable. The findings show the true state of facts as we view them from the record, with respect to the underpayment claim, and we do not think it necessary to further discuss this item of the claim. It does appear from the evidence that the plaintiff was paid for all the material he was entitled to be paid for under the contract.
It is somewhat doubtful, in view of the facts, whether this suit may be maintained at all under the present status of the corporation. The testimony reveals the fact that before the plaintiff refused to proceed with the contract all stock in the corporation, including the dredging plant, was sold to Frank A. Barnaby for $1,000, including this claim. The charter of the company was forfeited for nonpayment of taxes and the facts incident thereto appear in Finding XII. It may be that the reorganization of the corporation and the election of officers was not in all respects legal. At any rate, there is not sufficient evidence in the record to hold otherwise. The defendant was content to rest the issue on this meager showing of fact, and we are not convinced that we would be warranted in dismissing the case
The petition will be dismissed. It is so ordered.