CJ Langenfelder & Son, Inc. v. United States

• Decision Date: 09 November 1967
• Docket Number: No. 291-63.,291-63.
• Citation: 384 F.2d 1005,181 Ct. Cl. 407
• Parties: C. J. LANGENFELDER & SON, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

181 Ct. Cl. 407, 384 F.2d 1005 (1967)

C. J. LANGENFELDER & SON, INC. v. The UNITED STATES.

No. 291-63.

United States Court of Claims.

November 9, 1967.

J. Roy Thompson, Jr., Washington, D. C., attorney of record, for plaintiff; Howard H. Conaway, Thompson, McGrail & O'Donnell and Frank, Bernstein, Gutberlet & Conaway, Baltimore, Md., of counsel.

James A. Pemberton, Jr., Washington, D. C., with whom was Acting Asst. Atty. Gen. Carl Eardley, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

DAVIS, Judge.

In C. J. Langenfelder & Son, Inc. v. United States, 341 F.2d 600, 169 Ct. Cl. 465 (1965), we held that plaintiff was entitled to recover additional compensation, at six dollars per cubic yard, for unsuitable soil removed from pipe trenches dug under a contract for grading, drainage, and paving work at the Dulles Airport, including not only such material taken from below the excavation depths shown on the drawings but also within those limits. The case was remanded to the trial commissioner to determine the amount of recovery under Rule 47(c).¹ The trial commissioner has now found that plaintiff removed 25,337 cubic yards of unsuitable soil from the trenches, amounting, at $6 a cubic yard, to $152,022. Plaintiff wholly accepts this finding. Defendant does not dispute the figures as such, but raises several legal defenses which it says would eliminate or reduce the recovery.

1. The Government first argues that the contractor should have done much more to use the excavated unsuitable soil as backfill even though it might have been more convenient to employ other materials as plaintiff did. The point sought to be made is that the contractor did not do all that it reasonably could to utilize the shale and other unsuitable material found in the trenches.² The answer is that the trial commissioner properly found (findings 4(b) and 4(c)) that the Langenfelder company employed "standard and acceptable construction practices" in drilling, and that in the circumstances it would have been "impracticable", "expensive", and "uneconomical" to use other means which would have enabled the unsuitable material to be made suitable. These findings are adequately supported,³ and the legal standard embodied in them is the appropriate one. Where the contract expressly indicates that unsuitable material is not to be used for backfill, a contractor is certainly not held to a duty to "mitigate damages" or to "cooperate with the Government" — as defendant puts it — by taking impractical and uneconomic steps to turn concededly unsuitable soil into useful material. Such a standard would be unreasonably burdensome and unanticipated. No contractor reading the agreement in advance would suppose that he would be required to use such impractical and uneconomic measures.

2. Another defense is that plaintiff did not notify the defendant of the claim for removal of unsuitable material, or keep records of the amounts involved, or arrange for the Government to keep such records. This is a point which could and should have been made when the case was earlier before us. All the facts on which defendant relies were known at that time, and the defense, if valid, would have averted a trial on damages (and made unnecessary any ruling on the merits of the issue of liability under the contract). Because of this belatedness, we shall not set forth in detail our reasons (in addition to the untimeliness) for rejecting the argument. Suffice it to say that the Government was properly notified and that in the circumstances records of actual excavation are not a prerequisite to recovery; calculation on the basis of the paylines (as was done here) is an acceptable substitute.

3. The third of the Government's points is that plaintiff should not be allowed the full contract figure of $6.00 for each cubic yard of unsuitable material removed but only that sum less the component of the "contract unit price" (which has already been paid) representing payment for excavation and removal.⁴ In other words, defendant insists that the $6.00 figure is a substitute for the normal excavation cost, not an addition to it. Although our opinion on liability does not delve into this question, it assumes that the $6.00 price is additional, rather than alternative.⁵ The Administrator of the Federal Aviation Agency, when he first held for plaintiff on liability, also seems to have proceeded on the same assumption.

This is the reading which best fits the contractual terms and purpose. The various "contract unit prices" for pipe (Item 702-5.1) did not cover excavation alone; they were over-all figures "per linear foot", constituting "full compensation" for a large number of components, including "furnishing, hauling, and installing the pipes; for excavation; for bedding; backfill and compaction; for jointing; for connections to drainage structures; for cleanup and for all material, labor, equipment,...