81 F.2d 118 | 6th Cir. | 1936
The United Dredging Company entered into a contract with the United States to widen a part of the channel of St. Mary’s river. The specifications required the dredging out of a strip about 200 feet wide on the southwest side of the river at a designated point so that the channel at that point would be 500 feet wide at the bottom, with a minimum depth of 22 feet below water datum. The material to be removed consisted of sand, gravel, boulders, hardpan, and ledge rock. The work was divided into sections and was to bd paid for on a cubic yardage basis of material removed, measured in place by means of soundings or sweepings made before and after dredging. The contract provided that as soon as possible after the completion of the work on any section, the section would be examined.by such soundings and sweeping as were deemed advisable by the contracting officer for the government, and should any shoals, lumps, or lack of contract depth be disclosed, the contractor would remove them by dragging the bottom or by further dredging until the work was found to be satisfactory to and was accepted by the contracting officer.
The United Company sublet parts of the work to the appellee, Sullivan Dredging Company, under written contracts. One of these contracts was made August 17, 1929. Under that contract the appellee bound itself to do the work in section B, course 6, Middle Neebish Channel, St. Mary’s river, for stipulated prices according to the terms, conditions, and specifications of the contract between the United Company and the United States. On the same day a supplemental agreement was executed by the parties which provided that the United Company .would do the “final sweeping” after the dredging. The appellee proceeded to perform the contract. In October of 1929 the United Company discovered that the work was not being done according to its view of the contract and wrote to the appellee demanding that it dredge full width and depth of channel as the work progressed, that is, mark out sections to be completed each month to grade, full width of channel, and advising it that before payment would be made for October work it would be required to dredge the excavated areas so that they
The controversy between the parties on the trial was over the meaning of the phrase “final sweeping” in the contract of August 17, 1929. The appellants contended that it meant the running over of the bottom of the excavation, after the appeh lee had reported that a 22-foot depth had been reached, of a steel rail, and that the purposes of doing this were to level off any shoals of sand or gravel by pushing them down into hollows and to find out whether the appellee had failed to remove any ledges or rocks protruding above the required depth. They further contended that if it was found that there were such ledges or rocks, it was then the duty of appellee to remove them and complete its work according to contract. The appellee contended that the phrase meant the removal of all rocks and ledges protruding above the 22-foot level, and that the duty of performing this service devolved upon the United Company under the contract. The appellee evidently left many of such ledges and rocks which had to be removed. The trial court being in doubt as to the meaning of the phrase left it to the jury to determine whether it was understood by the parties, at the time the contract was made, to include the removal of rock and ledges protruding above the 22-foot level, and charged the jury that if it should find that it was so understood by the parties and should further find that the appellee did the work upon the order and at the request of the United Company, it should return a verdict in favor of the appellee for the reasonable value thereof.
By motions for directed verdicts, the appellants raised the question of the sufficiency of the evidence to submit the case to the jury. We think there was substantial evidence to support the appellee’s position with reference to what the parties meant by “final sweeping”; but on the other feature of the case, whether the appellee did the work on the order and at the request of the United Company though not bound to do it under the contract, there was, we think, no question for the jury. The facts on that point are not in dispute. There was a controversy between the parties as to the meaning of the contract. The United Company demanded that appellee do the work, insisting that it was bound to do it under the contract. The appellee, taking a different view, refused. The United Company then withheld payment on estimates for prior work. A con
The situation is similar to that presented in Doyle v. Rector, etc., Trinity Church, 133 N.Y. 372, 31 N.E. 221, where it was held that after the contractor had apparently acquiesced in the employer’s view of his duty under the contract, he could not recover for extra services. Compare Forster v. Green, 111 Mich. 264, 69 N.W. 647. The Supreme Court cases upon which the appellee relies are inapplicable. The basis of the decision in United States v. L. P. & J. A. Smith, 256 U.S. 11, 17, 41 S.Ct. 413, 65 L.Ed. 808, was misrepresentation. In Freund v. United States, 260 U.S. 60, 43 S.Ct. 70, 67 L.Ed. 131, there was evidence of duress and misrepresentation, and the work was done under protest. There is no question here of legal duress or misrepresentation, nor any fact or circumstance disclosed in the evidence from which the United Company could reasonably have expected that it would be asked to pay.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.