9 F.2d 538 | 2d Cir. | 1925
(after stating the facts as above).
Upon the verdict we must assume that the defendant had not performed its promise to excavate to the solid ledge, and this was unquestionably a breach which it must excuse. It seeks to eicuse the breach because of the representation in the plans and specifications that piers of the prescribed dimensions would reach to solid ledge and that it need not excavate further. The towns retort that the plans represented nothing of'the kind, -and that, if they did, the defendant had undertaken to be responsible for the foundations and had no right to rely upon the plans.
The last position of the towns.is certainly untenable under the most recent decisions of the Supreme Court. If the plans and specifications were in fact a representation as to the character of the foundation at that depth, the general engagement of the defendant to be responsible for foundations does not excuse the towns for the misrepresentation, but, on the contrary, the misrepresentation itself excuses the defendant from the performance of its promise to excavate to solid ledge.
These cases are Hollerbach v. U. S., 233 U. S. 165, 34 S. Ct. 553, 58 L. Ed. 898; U. S. v. Spearin, 248 U. S. 132, 39 S. Ct. 59, 63 L. Ed. 166; U. S. v. Atlantic Dredging Co., 253 U. S. 1, 40 S. Ct. 423, 64 L. Ed. 735. The contractor’s undertaking was different in each one, and in none was it exactly like the defendant’s agreement in ’ the present ease. However, the result depended in no instance upon the exact language used, though at least in U. S. v. Atlantic Dredging Co., this was as broad in effect as here. All the contracts attempted to put upon the contractor the duty of. satisfying himself as to the physical conditions surrounding his work; all were held insufficient in the face of a representation made by the public authorities, who must be understood to have had a better opportunity to know.
The case of Christie v. U. S., 237 U. S. 234, 35 S. Ct. 565, 59 L. Ed. 933, is akin; but there the United States kept back information which would have disclosed the truth, and the result apparently depended upon that feireumstanee. It is not quite apparent why that should not have been taken as the ground of decision in U. S. v. Atlantic Dredging. Co.; but, though it is mentioned in the opinion, we read the case as falling within the general doctrine most broadly laid
Therefore, as we view it, we have only to consider the question whether the plans and specifications, taken together, constituted a representation that, at the depths indicated on sheet 2 of “Scheme B,” solid ledge would be found. We believe that this was undoubtedly the meaning, quite independently of what was said at the time of the execution, of the contract, or whether the plans alone would so read to an engineer.
That in fact the engineer supposed that he had reached solid ledge can admit of no doubt. He was preparing plans for the erection of a bridge meant to be built upon nothing else. His plans were to fit upon his specifications, and it is, of course, incredible that he should not have believed that they were sufficient. We do not see how the defendant could have read them otherwise, or have failed to understand the engineer in that sense. So much for the general situation.
The language used in the specifications fully bears out this general conclusion. The excavation was to be done to the “line shown.” We know of no line shown anywhere, except those upon sheets 1 and 2, and we cannot imagine what else the clause means, if it does not incorporate the lines by reference. But the specifications go further. They provide that the plans show the size of the main members, which the contractor must follow, and that the piers were to be built to the lines and elevations given in the plans. The only thing which showed the size of the piers or their elevation was the sheets in question, and these did. The cofferdams were to conform to the lines shown on the plan. We find none but the lines indicating the bottom. No work was to be done outside the lines, except with the engineer’s consent, or it . would not be paid for. If there were errors in the dimensions given, and surely an error of 15 or 35 feet was substantial, the work must stop and the engineer must change them. All this inexorably referred to the figures given on the plans, and meant that they should control.
But, if there could be any further doubt, the contract itself resolved it, because it provided that the contractor admitted by execution that the plans and specifications were sufficient for the work. It is incredible that the contractor should be compelled to admit the adequacy of plans presented by the authorities, and yet that the authorities should not themselves be understood to assert the same thing. Plainly the meaning of the plans and specifications was that, if the defendant built the piers at the prescribed depths, the rock which he would find, and which he did find at just those depths, was the solid lodge to which he must excavate. To throw upon the contractor the risk involved in its solidity would be a perversion of the parties’ intention.
Therefore it seems to us unnecessary to consider whether the learned District Court was wrong in excluding all evidence of any collateral understanding between the parties as to the meaning of the base lines on sheets 1 and 2. Nor shall we consider whether the expert evidence of engineers as to their meaning should have been admitted. All this proof was adduced by the defendant, and the defendant did not need it. It could stand upon the contract as it read, and a verdict should have been directed in its favor.
Judgment reversed and new trial ordered.