Arthur A. Johnson Corp. v. Commonwealth

• Decision Date: 30 March 1945
• Parties: THE ARTHUR A. JOHNSON CORPORATION v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 88

60 N.E.2d 364

THE ARTHUR A. JOHNSON CORPORATION v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1945

December 27, 1944.

Present: FIELD, C.

J., QUA, DOLAN RONAN, & WILKINS, JJ.

Warranty. Contract Building contract.

Evidence, Extrinsic affecting writing. Practice, Civil, Auditor: findings Exceptions: whether saved.

No express warranty relating to materials to be found in borrow pits from which material was to be taken for the building of an embankment for a dike could be added by extrinsic evidence to a contract in writing between the Commonwealth and a builder which showed on its face that it contained the entire agreement between the parties.

Even if it be assumed that, in making a certain contract for the building of an embankment for a dike, the Commonwealth through the metropolitan district water supply commission impliedly warranted that it had disclosed to the builder before he made his bid all the material information in its possession relative to subsoil conditions in a borrow area, the question, whether there had been a breach of such implied warranty, was one of fact, and the evidence warranted findings by the judge that plans showing borings "were true and accurate portrayals of the area concerned," that a careful examination of them, shovel cuts and other data by an experienced engineer would have revealed a condition which caused the builder great difficulty in excavation, and that there had been no breach of the implied warranty.

Upon evidence set out in a bill of exceptions, no substantial error appeared in action by a judge who, after he had ruled that every finding of an auditor, whose findings were not to be final, was conclusive evidence in the absence of any evidence that would warrant a contrary finding, denied requests for rulings that certain paragraphs of the report and certain particular sentences therein were not contradicted or controlled by any evidence at the hearing.

An exception to an interlocutory order made at the beginning of the trial of a proceeding against the Commonwealth under G. L. (Ter. Ed.) c 258, not saved until the trial had ended and a finding had been made, was too late and was ineffectual, although purportedly incorporated in a bill covering the exceptions saved at the trial. A contractor with the Commonwealth, petitioner in a proceeding under G. L.

(Ter. Ed.) c. 258 for damages based solely on an alleged breach of a warranty of full disclosure to him of facts upon which he was asked to bid for the contract, was not entitled to recover a portion of the contract price still unpaid.

PETITION, filed in the Superior Court on April 6, 1938. The case was heard by Hammond, J.

In this court the case was submitted on briefs.

F. T. Leahy & G.

I. Kellaher, for the petitioner.

R. T. Bushnell, Attorney General, & J.

G. Bryer, Special Assistant Attorney General, for the Commonwealth.

RONAN, J. This is a petition under G. L. (Ter. Ed.) c. 258 to recover damages for an alleged breach of warranty by the metropolitan district water supply commission that it was honestly and truthfully disclosing to the petitioner all of the information in its possession to be used by the petitioner as a basis for the bid upon which it was awarded a contract for the construction of an embankment for the dike of Quabbin Reservoir in Enfield and Ware. The petitioner contends that the commission concealed information in its possession as to the nature of the subsoil in certain borrow pits from which the material was to be obtained for the construction of the embankment. If damages may not be recovered on this ground, then it alleged that the petitioner is entitled to rescind the contract and to recover by way of quantum meruit. The case was referred to an auditor whose findings of fact were not final. Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347 . He found for the petitioner in the sum of $285,139.56. The evidence in the Superior Court consisted of the auditor's report, numerous exhibits, and the testimony of witnesses many of whom had not testified before the auditor. The judge found for the respondent. The case is here on various exceptions taken by the petitioner.

The commission in October, 1934, advertised for bids for the construction of the embankment of the dike, and notified bidders that bids would be received up to two o'clock on the afternoon of November 13, 1934. In response to a request of the petitioner, the commission sent it a printed booklet which contained (a) three printed pages of information for bidders, (b) a form for submitting a bid, (c) the form of the proposed contract, (d) the form of the bond, and (e) fifteen reduced-size plans, and also a mimeographed booklet entitled "Studies of Construction Methods." The information for bidders, among other things, stated that materials for constructing the embankment were available on lands of the Commonwealth in the vicinity of the work; that the locations of these borrow areas, which from then present indications were expected to yield suitable materials, were shown on the plans but that each bidder must inspect these areas carefully to form his own opinion as to the amounts and character of the materials likely to be encountered and the conditions affecting their excavation, transportation and disposition; that borings and test pits had been made with reasonable care and at substantially the places shown on the plans; that shovel cuts had also been made so as to permit the further examination of the materials in the prospective borrow areas; and that records of bore holes, test pits, shovel cuts, samples of materials taken from them and laboratory analyses of them could be seen at the office of the commission. "There is, however, no expressed or implied guarantee as to the accuracy of such borings, test pits, shovel cuts, sluicing tests, laboratory analyses or studies, or of records or of interpretations of them." Each bidder was to form his own opinion of the character of the materials to be excavated and make his own interpretation of the borings, test pits and shovel cuts, and must satisfy himself by his own investigations and research "and make his bid in sole reliance thereon." The proposal submitted by the petitioner stated that "this proposal is based solely on . . . [its] own investigation and research and not in reliance upon any plans . . . borings, test pits, shovel cuts . . . or representations of any employee, officer or agent of the Commission." Four available borrow areas were shown on one of the fifteen plans above mentioned. As only about ten per cent of the material was excavated from area G and the remainder from area C, we are principally concerned with the nature of the subsoil in area C. Two cuts had been made in area C by power shovels before the contract was advertised. One cut, C, was one hundred forty feet long and had a maximum depth of twenty feet, and the other cut, F, was one hundred thirty feet long and had a maximum depth of twenty-eight feet. The side walls of these cuts were vertical in a rough sense. The floor of each cut was level and the greatest depth of the cuts was at the end as the shovels excavated into this borrow area, which was a hill or ridge.

There was evidence that the commission, in order to determine the type of construction of the main dam on the Swift River and the dike in question at Beaver Brook, had a geological survey made of the surrounding territory. The dam and dike might be constructed of masonry, or they might be built with a concrete core and earth embankments on the sides if an adequate supply of suitable material for the embankments could be found in the vicinity. The geological survey disclosed that the territory was of glacial origin and that certain hills or ridges, including the four borrow areas mentioned, were composed of ground moraine or glacial drift. This drift composed the overburden and covered the rock in this region. There were deposits or pockets of sand, gravel, clay or other material known as modified or assorted drift, and the rest of the overburden was comprised of unassorted or mixed materials such as sand, gravel, clay, rock flour and boulders, known as glacial till. Borrow area C "was made up of all sorts of fragments, boulders, pebbles, sand, clay and flour mixed together, sizes varying from fine material on the one hand to boulders several feet across as the largest." This type of material was described by the one who made the survey as mixed materials. Besides the two shovel cuts, the commission had test pits and borings made in this area. The boring inspector recorded that hardpan had been found in the first hole which had been drilled in borrow area C. Hardpan could be found to be a heterogeneous mixture of rock flour, sand, gravel and boulders which is more or less cemented together of varying degrees of density and cohesiveness. All of the boring records except those of this first hole used the term mixed materials. The boring plans which were furnished to the petitioner classified the materials taken from the bore holes as muck or peat, loam, boulders and rocks, and also divided the material into nine classes, to wit: (1) gravel, uniform; (2) coarse sand, uniform; (3) coarse sand, variable; (4) medium sand, uniform; (5) medium sand, variable; (6) fine sand, uniform;

(7) fine sand variable; (8) rock flour or silt, uniform; and (9) rock flour or silt, variable. There was one other class designated "M. M.," that is, mixed materials, which was stated in general to consist of "class 7 or class 9 -- average about 6 or 7 per cent under the .01 mm. [millimeter] size." These plans also bore the legend that the "geological data shown on this sheet is [are] an interpretation of...