Bates & Rogers Const. Co. v. Board of Com'rs of Cuyahoga County

• Decision Date: 16 July 1920
• Docket Number: 10275.
• Parties: BATES & ROGERS CONST. CO. v. BOARD OF COM'RS OF CUYAHOGA COUNTY, OHIO.
• Court: U.S. District Court — Northern District of Ohio

274 F. 659

BATES & ROGERS CONST. CO. v. BOARD OF COM'RS OF CUYAHOGA COUNTY, OHIO.

No. 10275.

United States District Court, N.D. Ohio, Eastern Division.

July 16, 1920

Squire Sanders & Dempsey, of Cleveland, Ohio, for plaintiff.

Samuel Doerfler, County Prosecutor, of Cleveland, Ohio, for defendant.

WESTENHAVER District Judge.

This cause is before me on general demurrer of defendant to the first cause of action in plaintiff's petition. This cause of action is based on alleged breaches of a written contract for the construction of approaches to the Detroit-Superior bridge in the city of Cleveland, Ohio. The breaches complained of, and as a result of which plaintiff seeks to recover damages, are two: (1) That defendant failed in a reasonable time to deliver possession to the plaintiff of the sites upon which the approaches were to be constructed, as by its contract it was required to do. (2) That the plans and specifications for the work to be done which defendant was required to furnish, and which were on file at the time the contract was entered into, were during the progress of the work modified, changed, and altered, thereby causing great delay, to the damage of plaintiff. Defendant's main contentions are that for injuries of this character, no action can be maintained against the county commissioners of an Ohio county, and that, even if such an action may be maintained, the defendant is not liable for damages due to a delay caused by the wrongful neglect or default of the county commissioners.

No doubt is entertained by me that the contract required the defendant to deliver the site upon which the plaintiff was to do the work within at least a reasonable time, nor that the defendant was required to furnish completed plans and specifications whereby the contract work might be done either at or before the time the plaintiff undertook to do the work, and that consequently, if defendant were a private corporation, plaintiff would have a right to recover such damages as resulted from the wrongful delays thereby occasioned, unless its right so to recover is prevented by other provisions of the contract, later to be noted.

A few only of the important facts set forth in the petition need to be now stated. The work to be done consisted in the construction of subways and approaches to the bridge in question, with appropriate underground waiting stations, of reinforced concrete, so as to allow traffic access to the bridge at either end, and to permit the flow of pedestrian and vehicular traffic on an upper level, and street railway traffic on a lower level. These approaches were to be constructed in public highways, which were, at the time the contract was made, incumbered by buildings, lines of street railway, with poles and trolleys, lines of telephone and telegraph, and substructures, such as water mains, sewers gas mains, and telephone and telegraph conduits. All these had to be removed before full possession of the site for the approaches could be delivered and the construction work could begin and progress. The petition alleges, and the fair interpretation of the contract is, that plaintiff was not obliged to remove any of these obstructions, but that all this work was to be done by the defendant. Time, it is alleged, was of the essence of the contract. The contractor was given 175 days after an order to start the work was given by the engineer within which to complete the work, and liquidated damages were imposed in the sum of $500 for the first day, and increased $25 for each additional day of delay beyond the 175 days allowed for completing the work. Plaintiff, it is alleged, was assured before entering into the contract that full possession of the east approach would be given December 1, 1916, with the right to proceed with the work before this formal order to start was given, and that full possession would be given of the west approach not later than March 1, 1917, as of which date the formal order to start work would be given, and the 175 days would begin to run from the last-named date. These respective dates, it is alleged, were in fact a reasonable time within which the defendant should remove all obstructions and deliver full possession.

That an implied, if not express, covenant is contained in this contract, requiring defendant to furnish and deliver the site in a condition to permit the work to be done, and that a failure so to do is a wrongful breach of the contract for which the contractor may recover damages, is well settled by numerous cases. See Guerini Stone Co. v. Carlin Construction Co., 248 U.S. 334, 340, 39 Sup.Ct. 102, 63 L.Ed. 275; Mansfield v. N.Y. Central, etc., Co., 102 N.Y. 205, 6 N.E. 386; Blanchard v. Blackstone, 102 Mass. 343; Allamon v. Mayor of Albany, 43 Barb. (N.Y.) 33; King Bridge Co. v. St. Louis (C.C.) 43 F 768, 10 L.R.A. 826. Assuming, without deciding, as is contended by the defendant, that the assurance given as to the date when possession of the site would be delivered cannot be proved, because, even though the written contract was silent with respect thereto, it must nevertheless control, then the law implies either that the site should be ready for delivery upon execution of the contract or at least within a reasonable time thereafter. See same authorities, and Elliott on Contracts, Sec. 3713. Plaintiff has elected to adopt the theory that, if the assurances given do not control, then the rule of a reasonable time should prevail, and alleges the respective dates at which defendant assured plaintiff the site would be delivered is a reasonable time. I shall dispose of the demurrer upon the rule adopted by plaintiff.

That defendant was also required by its contract to furnish the necessary plans and specifications sufficient to permit the performance by plaintiff of its contract, either at the time the contract was entered into or within a reasonable time thereafter, and that the plans and specifications on file and made a part of the contract are warranted to be sufficient and adequate for that purpose, is equally well-settled law. See the authorities above cited. The written contract obliges the plaintiff to construct the approaches in conformity with specifications and plans now on file in the office of the engineer. Plaintiff alleges that, after the work had progressed to the level shown on these plans, certain of the plans were changed by defendant to meet certain new conditions and improvements not in contemplation of the parties at the time the contract was made, which changes required excavation to a greater depth and modification of design of certain parts of the work to be done, and thereby caused great delay in the completion of the entire contract.

Plaintiff further alleges that, had full possession of the sites been delivered as contemplated and as was required, and had not the changes and modifications been made in the plans and designs of the work, the plaintiff could and would have been able to complete the work as originally contemplated, by July 31, 1917; that in consequence of this failure to deliver possession until approximately four months later than the date when such possession should have been delivered, and of these changes and modifications in the plans and specifications, plaintiff was so delayed that it was not able to complete the work until October 30, 1918, and that plaintiff was, as a result of these delays, obliged to do the work during two winter seasons, under adverse weather conditions, at great disadvantage, and during a period of time when, owing to war conditions, there was a shortage of labor, and wages and prices of material were constantly and rapidly rising. This increased cost and expense, it is alleged, amounts to $199,000.

As already said, upon the principles and authorities above noted, a good cause of action, it seems to me, is thereby stated, if defendant is subject to the same legal responsibilities under its contract as is a private corporation. Defendant's contention that it is not so liable, and that, on the other hand, no legal right exists to sue a county in this situation, and even that, if it may be sued, it is not responsible for damages arising by reason of delays thus caused, is not, in my opinion, sustainable. All the cases cited in support of this contention have been given due consideration, and do not, it seems to me, when rightly understood, support it.

Full power to contract for the construction of bridges is conferred upon county commissioners by certain provisions of the Ohio statutes. General Code, Secs. 2333-2361. True certain formal requirements are provided, such as preparation of plans and specifications, the previous making of an estimate of the cost of the work to be done, the letting of the contract to the lowest bidder after due advertising, approval by the prosecuting attorney, etc.; but the petition alleges, and so far as appears, all these conditions precedent to the making and entering into a valid and binding contract were complied with. I am not overlooking defendant's contention that the damages which plaintiff seeks to recover are outside and in excess of the estimates thus made, and are not within the express language of these sections, and shall make some observations later on with respect thereto. For the present, the point I wish to emphasize is that full authority is conferred by law on county commissioners to make the contract sued on, and that the statutory requirements in so doing, it is averred, were complied with. This being so, no doubt exists that county commissioners may be sued to enforce any liability created thereby in favor of the other contracting party, and that the language of section 2408, G.C., authorizing the county commissioners to bring, maintain, and defend all...