Venable Const. Co. v. United States

• Citation: 114 F. 763
• Decision Date: 11 February 1902
• Docket Number: 1,543.
• Parties: VENABLE CONST. CO. v. UNITED STATES.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

114 F. 763

VENABLE CONST. CO. v. UNITED STATES.

No. 1,543.

United States Circuit Court, N.D. Georgia.

February 11, 1902

Hoke Smith and H. C. Peeples, for plaintiff.

E. A Angier, Dist. Atty., and Geo. L. Bell and W. L. Massey, Asst Dist. Attys., for defendant.

NEWMAN District Judge.

This is a suit brought by the Venable Construction Company against the United States to recover $9,981.07. The suit grows out of a contract entered into by the plaintiff with the United States, through O. M. Carter, the engineer officer in charge, for the construction of certain fortifications called 'gun emplacements,' on Tybee Island, near Savannah, Ga. The contract for this work was entered into on November 30, 1896. The character of the contract, so far as material here, will appear in the discussion of the several items embraced in this suit. The case involves a claim for certain work done which is said to have been extra work. The items set out in the plaintiff's declaration and relied on here are as follows:

For additional work upon cut stone	$2,650 00
For 38,649 pounds of conduit pipe, at 4 cents per pound ...	1,545 96
For change in plan of doors and extra work thereon ..........	900 00
For cottage .................................................	949 95
For change in sand ........................................	3,935 16
	---------
Total ..................................................	$9,981 07

The United States having filed an answer denying liability for the several items of extra work claimed, the case was, by consent of counsel for the respective parties, referred to an auditor. The auditor made a thorough investigation of the case, and apparently heard the evidence of every one who could throw any light on the transaction, except Capt. O. M. Carter. His testimony was not taken. After hearing the testimony thus presented, the auditor made a report finding in favor of the plaintiff as to each of the items in controversy. The separate claims are here considered in the order in which they can be most conveniently disposed of.

Findings of Fact.

At and before the contract was entered into, on November 30, 1896, plaintiff had only seen what are called 'typical plans' of the work to be done; that is, a general outline and plan of the proposed fortification. The detailed plans and specifications by which the work was to be done were furnished later. As to only one of the items involved does any indication appear to have been given as to precisely what would be required. It does appear, so far as can be gathered intelligently from the testimony in this case, that samples of sand such as was to be used in the construction of the battery were furnished, and that an agreement was reached between the engineer officer in charge and the president of the construction company, by which it was understood that the construction company might use one-fourth sharp river sand from the river above Savannah, and three-fourths beach sand, to be obtained from the beach below Savannah, properly mixed and combined. Samples of the sand proposed to be used were furnished by the representatives of the construction company to the engineer officer in charge, and there is sufficient evidence to justify the auditor's conclusion that there was an acceptance on the part of the officers of the government of the proposal to use sand in the proportions above referred to. There was some correspondence on the subject of the character of sand to be used, and a letter from Capt. Carter to the Venable Construction Company of June 9, 1897, shows that the construction company was required to use all river sand from the river above Savannah. But in a letter written June 16, 1897, this requirement was changed, and the construction company was allowed to use one-fourth sand obtained from above the city, and three-fourths beach sand obtained below the city. After this, and during the time that Capt. Carter was in charge of the work, the construction company was allowed to use sand in these proportions.

On the 20th day of July, 1897, Capt. C. E. Gillette superseded Capt. Carter in charge of the work, and he directed and required that all the sand to be used should be taken from the river above Savannah. The evidence is undisputed that the additional expense of bringing this three-fourths of the sand from the river above Savannah, instead of obtaining it down near where the battery was being constructed, was considerable. The finding of the auditor on this item is as follows:

'Sand: Paragraph 44 of the specifications provides as follows: 'The sand shall be clean, first-class quality building sand, containing a suitable mixture of fine and coarse, sharp grains, free from dirt, organic matter, and other impurities. Bidders will submit with their proposals a sample representing the particular sand they propose to furnish, and will state in their proposals the location of the bank or banks from which it is to be obtained.' Plaintiff's bid contains the following statement: 'Sand, samples of which are furnished, to be of like quality, and acceptable to the engineer; sample came from Savannah river.' I find that plaintiff furnished samples,-- one sample coarse, sharp sand, known as 'river sand,' which came from up the Savannah river; and another sample of finer sand, which came from the Savannah river along Tybee Island, and known as 'beach sand.' I find that plaintiff, through its president, W. H. Venable, contracted with Captain O. M. Carter, engineer officer in charge, to furnish and use in the work to be done under the contract in suit a combination sand, composed of one-fourth of said sand known as 'river sand,' and of three-fourths of sand known as 'beach sand.' I find that under this contract the plaintiff proceeded with the work about six months commencing under Captain Carter, and continuing same under Captain Gillette, engineer officer in charge, who succeeded Captain Carter in July, 1897, until December, 1897. I find that this combination sand was clean, first-class quality building sand, containing a suitable mixture of fine and coarse, sharp grains, free from dirt, organic matter, and other impurities and that the sand used in the work was of like quality to the samples, and complied with the conditions of the contract. I find that in December, 1897, Captain Gillette, engineer officer in charge, who had authority, under paragraph 58 of the specifications, ordered the plaintiff to stop using the combination of sand contracted for, and required him to use exclusively the coarse, sharp sand, known as 'river sand,' from up the Savannah river. The change made in the sand was beneficial to the defendant, the river sand making a better cement than the combination sand contracted for. The plaintiff protested against the change of sand, and furnished the same under protest. The river sand was much more expensive than the beach sand, for the reason that it was several miles distant from the work, and the beach sand was near at hand. Plaintiff was put to additional expense and cost in furnishing the river sand as required by Captain Gillette, engineer officer in charge, to complete the contract, over and above what he has been paid for same by the defendant, the sum of $3,935.16. The defendant was benefited by the change of sand to the extent of said sum of money. It was apparent to the engineer officer in charge who ordered the change in sand that such change would result in large additional expense, and extra expense to the plaintiff.'

This finding is adopted as stating substantially and fairly the facts as to this part of plaintiff's claim.

The next item which will be considered is that of ventilating pipe, conduit pipe, 20-inch sewer pipe, and flat iron plates for drains. The auditor's finding of the facts on this subject is as follows:

'Cast-Iron Pipe and Plates: I find from the evidence that plaintiff furnished and put in place 10,261.90 pounds of ventilating pipe; also 8,038 pounds of conduit pipe; also 3,752 pounds of twenty-inch pipe; also 11,915 pounds of cast-iron flat plates for drains. I find that these items were not called for in the specifications or in the contract. I further find that the defendant paid for these items 5c. per pound, the same rate that was paid for drain pipes. I find that these items were not even contemplated by the contract, and that they are extra materials, and putting them in place was extra work, for which the plaintiff is entitled to extra compensation. I find that the ventilating pipe was reasonably worth at current rates, over and above the price paid therefor by the defendant, the sum of $951.16. This sum includes $827.10, the actual cost of furnishing and putting said ventilating pipe in place, and $124.00, the fifteen per cent. profit claimed by the plaintiff. The conduit pipe was reasonably worth, at current rates, over and above the price paid therefor by the defendant, the sum of $511.24. This sum includes $444.56, the actual cost of furnishing and putting said conduit pipe in place, and $66.68, the fifteen per cent. profit claimed by the plaintiff. The twenty-inch pipe was reasonably worth, at current rates, over and above the price paid therefor by the defendant, the sum of $345.00. This sum includes $300.00, the actual cost of furnishing and putting said twenty-inch pipe in place, and $45.00, the fifteen per cent. profit claimed by plaintiff. The cast-iron plates were reasonably worth, at current rates, over and above the price paid therefor by the defendant, the sum of $274.04. This sum includes $238.30, the actual cost of furnishing and putting said plates in place, and $35.74, the fifteen per cent. profit claimed by

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