Bar Harbor & Union River Power Co. v. Found. Co.

• Decision Date: 04 April 1930
• Parties: BAR HARBOR & UNION RIVER POWER Co. v. FOUNDATION CO.
• Court: Maine Supreme Court

149 A. 801

BAR HARBOR & UNION RIVER POWER CO

v. FOUNDATION CO.

Supreme Judicial Court of Maine.

April 4, 1930.

Report from Supreme Judicial Court, Penobscot County.

Action by the Bar Harbor & Union River Power Company against the Foundation Company. On report for final decision by the full court.

Judgment for defendant.

Argued before DEASY, C. J., and DUNN, STURGIS, BARNES, PATTANGALL, and PARRINGTON, JJ.

Sherman N. Shumway, of Bangor, Leonard A. Pierce, of Portland, Ryder & Simpson, E. M. Simpson, all of Bangor, and D. E. Hurley, of Ellsworth, for plaintiff.

W. B. & H. N. Skelton, of Lewiston, Geo. F. Eaton, of Bangor, Harry L. Crabtree, of Ellsworth, and Vermont Hatch, of New York City, for defendant.

DUNN, J.

The trial judge reported this case, plaintiff and defendant consenting, for final decision by the full court. By the report, it is understood that the parties waive all matters of form and process, and desire this court to rule the law and decide the facts, on consideration of the legal, admissible, and relevant evidence. R. S., c. 82, § 46; Pillsbury v. Brown, 82 Me. 450, 19 A. 858, 9 L. R. A. 94; Dansky v. Kotimaki, 125 Me. 72, 130 A. 871.

The suit is for the failure of a storage reservoir dam. The dam had been across the Union river, above Ellsworth. Primary inquiry is whether the facts give rise to action. If yes, there must be assessment of direct or general damages; remote or indirect damages, stipulation reserves for referees. On negative decision of the main problem, judgment will go for the defendant.

In 1922, an hydraulic engineer, on plaintiff's office staff, made plans and specifications, and selected a site, for the dam, expecting to supervise its erection. But, on the engineer's accepting employment elsewhere, plaintiff chose to have the dam built by contract.

After examining and approving the plans, defendant bid. Its bid was accepted. Defendant brought to Bangor a draft of written agreement already signed in its behalf, which plaintiff's president executed. One Phifer Smith, an employee of the plaintiff corporation, "attested," or witnessed, execution of the document. Mr. Smith signed his name above the typewritten word, "Engineer."

Defendant's contractual obligation was to construct the dam, as agent of the plaintiff, on a designated site, conformably to the plans and specifications, for the fee or reward, net to it, of $17,000. Defendant agreed to render "engineering services"; supply the necessary plant; employ and discharge forces; organize and direct the work; submit estimates, and, on previous authorization, to buy materials. Opportunity should be afforded plaintiff's representatives, the contract expressly provided, to inspect both materials and work, and to verify accounts and charges.

Corresponding counter obligation bound plaintiff to pay defendant's fee, and to furnish and bear the cost of all materials, wages, transportation, salaries, and the like, aside from any within the inclusion of the fee. Besides, plaintiff promised, for extra or incidental work which it might require defendant to perform, the payment of an additional fee, proportionate to the labor charged.

Upon the "Engineer," the contract imposed high duties. Bog must be removed to his satisfaction; he should determine, preliminarily to founding the dam, that excavation had extended to and exposed ledge; he should see to the proportioning and mixing of cement. Additional decisions, too, were to be by him.

Other provisions of the contract are not of present moment.

The plans outlined a concrete spillway, ninety feet, long, with three twenty-foot gates for discharging water. There were two log sluices at the east end of the spillway, each eight feet wide. Under one sluice was a drainage sluice. Concrete abutments supported the spillway section. A concrete core tied to each abutment extended through a bank of earth to high ground. Downstream, for some forty-two feet, was an apron. The plan showed the whole dam on ledge or bedrock, at slightly varying elevations.

On July 5, 1922, defendant began work.

In August, at lower than plan level, there was no ledge. The dam was founded on that kind of soil known as hardpan. 92 per cent. of the dam had been built, when, on March 15, 1923, invoking contract power, plaintiff forbade completion of the work by defendant; the reason assigned being want of diligence in performance. After this, plaintiff did the work.

In April, while snow was yet on the ground, the impounding of water was begun. Late in the month heavy rain fell. At normal elevation, the pond had an erea of eighteen square miles, and capacity for six billion cubic feet of water. The pond filled to overflowing. Efforts to avert danger by opening the gates in the dam, and attempting to regulate the flow of the ponded water, proved unavailing. On May 2, the dam blew out. The loosed waters, raging to the sea, did much damage.

Plaintiff contends that defendant, in disregard of its contract, and of the duty which the contract cast, erected a dam, not reasonably efficient, but structurally weak; wherefore the dam was lost.

Evidence points in such direction, but it does not point so far. Concrete may not have been properly mixed; laitance, that pulpy gelatinous fluid which exudes from cement, may not always have been sufficiently cleared away; there may have been, to use an engineering term, improper bondings. But vital defect is not shown to have been in the dam itself.

Plaintiff contends further that the failure to extend sheet steel piling alongside the dam, upstream, to the east abutment, and into the east core wall, permitted seepage or percolation beneath the structure, to its immediate loss. Also, that, a concrete floor, which, insistence is, the plan delineates in a sluice, not having been laid, this omission became, in natural and continuous sequence, the cause of the disaster.

Defendant denies responsibility for not driving the piling; denies call in the plan for a concrete floor in the sluice; and insists that, to the time of its dismissal from the job, it had substantially performed its contract under the direction and to the approval of the "Engineer."

The meaning of the contract phrase, "engineering services," is the subject of much argument.

Plaintiff argues that the contract meant such services in designing the dam and in constructing it as well. Objection is made that, within the reasonable scope of the contract, defendant's undertaking was to erect a dam, agreeably to the plans plaintiff had made, or such modifications thereof as, under the reserved power to require defendant to do incidental work, plaintiff might make; erection to be on the site plaintiff had selected.

It is fundamental, in construing written contracts, that valid intention, as deduced from the language of the whole instrument, interpreted with reference to the situation of the parties at...