Archibald Hollerbach v. United States, 250
| Court | United States Supreme Court |
| Citation | 34 S.Ct. 553,233 U.S. 165,58 L.Ed. 898 |
| Docket Number | No. 250,250 |
| Parties | ARCHIBALD HOLLERBACH and Samuel L. May, Partners, Doing Business as Hollerbach & May, Appts., v. UNITED STATES |
| Decision Date | 06 April 1914 |
Messrs. William B. King, George A. King, and William E. Harvey for appellant.
Assistant Attorney General Thompson for appellee.
[Argument of Counsel from page 166 intentionally omitted] Mr. Justice Day delivered the opinion of the court:
This suit was brought to recover upon a contract between the appellants, doing business as Hollerbach & May, and the United States, for the repair of Dam No. 1, Green river, Kentucky. In the aspect in which it is now presented the question involved concerns the right of the claimants to recover because of certain damages alleged to have been suffered by them which would not have accrued had the dam been backed with broken stone, sawdust, and sediment, as was stated in paragraph 33 of the specifications attached to the contract.
The determination of this controversy requires reference to certain parts of the contract and the findings of the court of claims. The specifications provide, among other things:
'20. It is understood and agreed that the quantities given are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders, or their authorized agents, are expected to examine the maps and drawings in this office, which are open to their inspection, to visit the locality of the work, and to make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainty of weather, and all other contingencies.
* * * * *
'33. Work to be done. . . . The present dam, a wooden crib structure, is 528 feet long between abutments and about 52 feet wide at its base. The expected depth of concrete work is shown on the blue prints, but it may be made greater as the condition of the old timber may render it necessary. The work shall be carried out in sections, generally from 50 to 100 feet long, and no more of the old work shall be torn out than can be rebuilt in a few days in case of necessity. All the exterior surfaces of the concrete shall be faced with the facing described in paragraph 59, which shall be placed before the concrete below has set, and shall be smoothly finished off. The dam is now backed for about 50 feet with broken stone, sawdust, and sediment to a height of within 2 or 3 feet of the crest, and it is expected that a cofferdam can be constructed with this stone, after which it can be backed with sawdust or other material. The excavation behind the dam will be required to go to the bottom, and it is thought that a slope of 1 horizontal to 1.2 vertical will give ample room.
* * * * *
'60. Blue prints. Blue print drawings showing the method of construction may be seen at this office; they shall form a part of these specifications and shall not be departed from except as may be found necessary by the condition of the old timber encountered.
* * * * *
The court of claims found as a matter of fact, among other things:
'As the contractors proceeded with the work of removing the material behind the dam it was found that said dam was not backed with broken stone, sawdust, and sediment, as stated in paragraph 33 of the specifications, but that said backing was composed of a soft, slushy sediment from a height of about 2 feet from the crest to an average depth of 7 feet, and below that to the bottom of the required excavation said dam was backed by cribwork of an average height of 4.3 feet, consisting of sound logs filled with stones.'
The court of claims refused to enter judgment for the damages suffered by reason of the difference in the backing of the dam as found by the court, but estimated the damages for the matters in dispute in that respect to aggregate $6,549.23 (47 Ct. Cl. 236).
In the course of its opinion the court below said that if paragraph 33 stood alone it would be a warranty of the material backing the dam. 'It was,' said the court, 'a positive and material representation as to a condition presumably within the knowledge of the government, and upon which, in the absence of any other provision or warning, the plaintiffs had a right to rely.' But the court held that the cautionary provisions of paragraph 20 and 70 required the claimants to inform themselves of the condition of the backing of the dam, and that when those paragraphs were read with paragraph 33 the statements and representations of the last-named paragraph could not be regarded as a warranty upon which the claimants had the right to rely, and the court reached this conclusion upon the authority of certain cases of its own and Simpson v. United States, 172...
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