Alpert v. Com.

• Decision Date: 27 April 1970
• Parties: Earl ALPERT, trustee in bankruptcy, v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 755

258 N.E.2d 755

357 Mass. 306

Earl ALPERT, trustee in bankruptcy, v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1970.

Decided April 27, 1970.

John E. Sheehy, Asst. Atty. Gen., for the Commonwealth.

George Michaels, Lawrence H. Adler, Fred B. Wilcon and Ruth R. Budd, Boston, for petitioner.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This petition against the Commonwealth was brought under G.L. c. 258. The original petitioners were three individuals who were doing business as a partnership under the name of Golden & O'Brien (hereinafter referred to as Golden). They sought to recover damages in the sum of $11,481.36 for 'extra expenses and costs' in performing a highway and bridge construction contract with the Commonwealth. Subsequently, one Earl Alpert, trustee in bankruptcy of the partnership, was substituted as petitioner. Alpert (hereinafter referred to as petitioner) on motion, was allowed to amend the petition. The amendment, in essence, alleged that Golden 'performed the work * * * provided for' under the contract and that 'final payment * * * has not been made' because the 'amount due * * * is in dispute.' Later, the petitioner, on motion, was allowed to further amend the petition by adding certain clauses stated in rather extended detail. The Commonwealth excepted to the allowance of this motion. The case was referred to an auditor whose findings of fact were not to be final. The auditor found for the petitioner on nine of his claims totaling $485,422.61 plus 'interest from the date the Commonwealth accepted the work as completed.' The Commonwealth filed a motion to recommit the auditor's report and a motion to strike a certain paragraph from the report. The trial judge denied each motion subject to the Commonwealth's exceptions. At the trial, without jury, the evidence comprised the auditor's report, the testimony of witnesses and numerous exhibits. The Commonwealth filed forty-two requests for rulings of law. The judge made extensive findings and ruled on each of the requests. He found for the petitioner on seven of the nine claims in the total sum of $486,737.06 plus interest 'from the date of the petition at the rate of five * * * per cent per annum.' The Commonwealth excepted to a number of findings and rulings of the judge. The case is here on an outline bill of exceptions. 'We disregard exceptions to the judge's findings. See Stella v. Curtis, 348 Mass. 458, 461, 204 N.E.2d 457 * * * (and) determine whether the judge's decision can be supported in law or must as matter of law be reversed.' State Line Contractors, Inc. v. Commonwealth, Mass., 249 N.E.2d 619. ^a

We summarize the judge's findings. On May 31, 1958, the Commonwealth acting through its Department of Public Works (hereinafter referred to as D.P.W.) issued a notice to contractors requesting '(s)ealed proposals for State Highway and Bridge Construction (relocation of Route 202 * * *) in the Municipalities of Holyoke and South Hadley.' Proposals on the construction had to be received by 2 P.M. on Tuesday, June 24, 1958, twenty-one working days later. 'The notice also stated that 'complete information' could be had at the office of the * * * (D.P.W.) and that 'plans (were) on display at the * * * (D.P.W.'s) (d)istrict (o)ffice in Greenfield" (emphasis supplied). On June 4, 1958, Golden mailed the D.P.W. a check for $35 and requested information to enable it to submit a proposal. The D.P.W. responded by sending Golden 'an invitation to bid which contained plans, specifications and detailed sheets including 16 pages of 'quantity sheets' containing detailed estimates of the work to be done, including estimates as to the cubic yardage of the roadway earth excavation that would be necessary, and estimates as to how much of the excavated material to be derived therefrom would be suitable for use on the job site as fill and how much (material) would be unsuitable for such use and would have to be hauled off the job site and dumped elsewhere as waste.' The quantity sheets also gave an estimated amount of the borrow ¹ that would be necessary to supplement the suitable material excavated. After Golden 'visited the job site insofar as it could,' and relying on 'the information given to it by the * * * (D.P.W.), and believing that information to be approximately correct,' Golden submitted a proposal to the D.P.W.

On August 12, 1958, the D.P.W. awarded Golden the contract to construct 9,761 linear feet of State highway which was to be a minimum of eighty-five feet wide, divided by a median strip with roads on each side. The contract was duly executed and the total amount to be paid for the job was $2,828,035.20. The D.P.W. allocated $3,731,152.73 from the proceeds of a 1954 and 1956 bond issue for the relocation of Route 202. '(T)he total paid to Golden on the project was $2,998.826.75, which sum included money paid directly to Golden,' including sums for extra work, and money paid 'for Golden's account.' The contract included the 'Notice to contractors, the Proposal and Special Provisions, Standard Specifications for Highways and Bridges (the Blue Book) ² and the plans referred to therein.' The Blue Book contains provisions governing the contractual relationships between the Commonwealth and contractors. ³

The petitioner makes nine claims for damages.

Claim One. This relates to extra work performed by Golden under Item A2--1 of the contract, 'Roadway Earth Excavation.' The D.P.W. informed Golden and the other bidders that under Item A2--1 there would be 626,000 cubic yards of material to be excavated 'of which only approximately material.' The parties initially contemplated material.' The parties initially contemplated roadway earth excavation 'in a ratio of about 17 cubic yards of suitable to one (1) cubic yard of unsuitable' and that the unsuitable material was located in the area of the northwest ramp. However, Golden, under the direction of the D.P.W.'s engineer or his representatives, removed 165,015 cubic yards of unsuitable material. This amount was 130,280 cubic yards in excess of the D.P.W.'s estimate. 'Thus, Golden removed almost four hundred (400%) per cent more of that type of material than was stated would be present in the information given to Golden by the * * * (D.P.W.).' Whereas suitable material is of a granular nature, usable for 'embankment purposes' and capable of being 'excavated by the ordinary bulldozer and scraper method,' unsuitable material is muddy and watery; excavation thereof 'requires a crane, a drag-line, dump trucks, the maintenance of * * * roadways and much more labor.' It is obvious that '(t)he cost of excavating, hauling and dumping 'unsuitable' material greatly exceeds the cost of so doing with suitable material.' Furthermore, the contract explicitly provided that all of the unsuitable material be removed from the construction site, 'while most importantly from the economic point of view, suitable materials may be utilized elsewhere on the job as fill (borrow).'

The D.P.W., even after Golden's request, failed to reveal or make available to Golden the information concerning various boring reports, boring logs, soil samples, and boring report analyses which it had previously caused to be made. The D.P.W. also 'failed to apprise Golden that only seven (7) boring along the proposed roadway had been taken and that those borings were confined to about a 400 foot square area of the Northwest ramp.' The borings and other tests conducted by the D.P.W. were 'inadequate in number and were improperly confined to the comparatively small area * * * in the Northwest ramp.' Good engineering practice would have required test borings to be made along the length of the proposed roadway at 'intervals of no more than a few hundred feet.' Only in this manner would 'adequate data * * * be available for a valid approximation of the nature of the sub-soils to be excavated or built upon.' The twenty-one day bid period precluded Golden from making adequate soil analyses and test borings. Such tests would have 'taken at least 2 and 1/2 to 3 months,' a fact known by the D.P.W. When Golden submitted its proposal it 'was compelled to rely and did rely reasonably * * * (as the D.P.W. knew Golden) would rely, almost entirely, on the information it furnished Golden as to the location and maximum amount of 'unsuitable' material and (the belief) that it would be approximately accurate.' The information regarding the unsuitable material 'was not merely inaccurate, but grossly understated the actual quantity and was totally in error in confining same to the area of * * * (the) Northwest ramp.' Had Golden known that there were only seven borings taken on the roadway, all in the area of the northwest ramp, it 'would not have bid the job.'

The cost of excavating the 130,280, cubic yards in excess of the D.P.W.'s estimate is to be computed in accordance with art. 80 ⁴ of the Blue Book and the petitioner is entitled to receive the sum of $290,518.55.

Claim Two. The petitioner seeks compensation under contract Item A6--1 for Golden's hauling 107,188 cubic yards of borrow to the job site so as to have enough fill 'to make the required level of the highway.' The D.P.W., by erroneously computing the amount of unsuitable material, also underestimated the amount of borrow 'necessary to be hauled onto the job' to reach the proper highway level. Golden, relying on the D.P.W.'s estimate that 150,700 cubic yards of borrow would be necessary to complete the project, 'arranged to procure that quantity of borrow from the 'Bemis Pit' in Holyoke, a distance of about 1.3 miles from the job site.' However, when the borrow from the 'Bemis' pit proved inadequate in quantity to complete the job, 'Golden had to procure other pits for the necessary borrow.' The nearest pits Golden 'could procure' were in Granby, Massachusetts, about five miles from the construction...