Bd. of Water Com'rs of City Of New London v. Robbins & Potter

• Decision Date: 04 January 1910
• Citation: Bd. of Water Com'rs of City Of New London v. Robbins & Potter, 74 A. 938, 82 Conn. 623 (Conn. 1910)
• Court: Connecticut Supreme Court
• Parties: BOARD OF WATER COM'RS OF CITY OF NEW LONDON v. ROBBINS & POTTER et al.

74 A. 938

82 Conn. 623

BOARD OF WATER COM'RS OF CITY OF NEW LONDON

v. ROBBINS & POTTER et al.

Supreme Court of Errors of Connecticut.

Jan. 4, 1910.

[Copyrighted material omitted.]

Appeal from Superior Court, New London County; Silas A. Robinson, Judge.

Action by the Board of Water Commissioners of the City of New London against Robbins & Potter and others.Verdict in favor of all the defendants, and that the defendants Robbins & Potter recover $8,000 damages.Motion for a new trial for verdict against evidence denied.Judgment in conformity to the verdict, and an appeal by the plaintiff.No error.

The plaintiff, having determined to construct a dam and reservoir, having selected a site, and having caused a blueprint plan therefor to be prepared by or "under the supervision of its engineer and superintendent, invited proposals for the execution of the work, to be presented within 15 days after the date of invitation.The invitation stated that the amount of various kinds of work to be done was approximately 193,000 square yards grubbing, 2,000 cubic yards spoil, 5,000 cubic yards fill in reservoir bed, 23,000 cubic yards embankment, 375 cubic yards masonry, 2,000 cubic yards concrete, 230 cubic yardsdry rubble, 6,000 cubic yards excavation, 5,000 square yards paving, and 10 tons of casting to set.At the same time copies of instructions for the information of prospective bid-bers were prepared and furnished to such bidders, and among them the defendants Robbins & Potter.This paper was entitled "Notice to Contractors."It contained sundry information as to the preparation and presentation of proposals.Among other things, it required that the bids should include all of the various kinds of work, and that they should be in the form of a stipulated price for each denned unit.It further provided that the estimate by which the bids would be tested would be based upon a table appended, which was like that contained in the notice, except that 100 cubic yards of concrete and 2,500 square yards of plastering were added, and the items for excavation and paving were subdivided into classes as follows: Excavation, 5,000 cubic yards 6' to 8'; 700 cubic yards 8' to 10'; 200 cubic yards 10' and below, and paving 800 square yards 15"; 4,200 square yards 12".There were in all 15 items.To this table was added the following: "The above-estimated quantities are approximate, and the board of water commissioners reserve the right to increase or diminish the same as may be necessary in the judgment of the engineer."Both the invitation and notice were signed, "W. W. Richards, Engineer."Richards was the superintendent and engineer of the plaintiff.

Robbins & Potter were the successful bidders.Their proposal conformed to the terms of the notice, in that there was affixed to the statement of the quantity of each class of work, as set out in the notice to contractors, the unit price at which it was proposed to do that work.A form of contract was thereupon prepared by the plaintiff, and submitted to them for signature, and signed by them July 30, 1901.The bond in suit was executed and delivered at the same time.By the terms of the contract the contractors undertook to furnish all the labor and material except, as provided, and to do all the work therein specified in accordance with the plans and directions furnished and to be furnished from time to time, and the connections therewith as shown on the drawings, and appurtenances of every kind complete, and of the dimensions, in the manner and under the conditions specified.No plan or drawing was referred to.Specifications were embodied in it, but it nowhere appears in the instrument what the project is upon which the work was to be done, or what the completion of the work was to bring into existence, save as its title designates it as "Contract and Specifications for Dam and Reservoir Located in the Towns of Montville and Salem."No other measure of the total of the work required, or means of measure is contained in it.The compensation to be paid was fixed, as in the proposals, as an amount determined upon the basis of certain prices per unit of the various kinds of work, but there was no statement of the actual, estimated, or approximate number of any of these units as in the invitation and notice to contractors, proposals, or otherwise.There was the customary provision for an arbiter in cases of dispute, and Richards was made that arbiter.It was also provided that, if he was of the opinion that there was unnecessary delay in the prosecution of the work, he might notify the contractors in writing to that effect, and that if the contractors did not, within 5 days thereafter, take such measures as would in his judgment insure the satisfactory completion of the work, he might, with the consent of the board, notify the contractors to discontinue work under the contract, and thereafter cause the work to be completed, and charge the expense thus incurred to the contractors.

The contractors immediately began the work, and it was considerably advanced when, on October 30th, Richards notified them in writing that in his opinion there was unnecessary delay in it, and that, unless such measures as would in his judgment insure the satisfactory completion of it were taken within 5 days, they would be required to cease work.November 7th Richards, by and with the consent of the board, took action discontinuing work by the contractors, for the reasons outlined in the notice of October 30th.

The defenses and counterclaim described in the opinion set out, in substance, the above undisputed facts, except such as were averred in the complaint Further than this these pleadings alleged, and the defendants offered evidence to prove, that the plaintiff, during the progress of the negotiations, represented to Robbins & Potter that the specification of quantities of the different kinds of work and materials necessary to complete the construction of the dam and reservoir, which was embodied in the preliminary "notice to contractors," had been made by its engineer, an expert competent to make them, and that they were approximately correct.That they represented that the contract as prepared and presented for signature did not differ, in its requirements as to the kinds and quantities of labor and materials called for, from the specification of the invitation and notice.That said representations were false, and the figures embodying the specification of quantities thus given grossly incorrect and misleading, in that the quantities of several of the classes of work specified, as required to be done in the execution of the enterprise according to the plans, drawings, and directions of the engineer, as later furnished and given, were as follows: Spoil, 25,000 cubic yards; fill, 9,200 or more cubic yards; excavation, 8 to 16 feet, 2,000 or more cubic yards; excavation below 16 feet, 1,500 or more cubic yards; and concrete, 4,000 or more cubic yards.That the plaintiff furnished the figures thus incorrectly given, and made said representations concerning them knowing that they were false, incorrect, and misleading, and with the intent thereby to induce Robbins & Potter to make a bid and proposal for the construction of the dam and reservoir, and to defraud them.That Robbins & Potter, being ignorant of the facts to which these figures and representations related, were misled thereby, and thereby induced to make their bid and proposal, which they otherwise would not have made, and to sign said contract, which otherwise they would not have signed.That in October, during the progress of the work, Robbins & Potter definitely ascertained that the plans, drawings, and directions of the engineer, as they were then presented, necessitated the doing of the amount of work last specified, of the several kinds stated.That they thereupon complained of the imposition which had been practiced upon them, notified the board that they did not hold themselves obligated to perform such excess of work, but did not refuse, and never refused, to perform said work, and furnish said materials in quantities approximating those stated in the notice and proposals.And that they thereafter continued to prosecute said work properly, and with reasonable rapidity, until compelled to desist by the action of Richards.Those pleadings also alleged, and the defendants claimed to have proved, that Richards, in giving his notice of October 30th and in making his order of discontinuance of November 7th, acted in bad faith, well knowing that there was no unnecessary delay in the prosecution of the work, and with the intent to embarrass the defendants and render it impossible to continue in the performance thereof.

The defendants also offered evidence to prove, and claimed to have proved, the following facts: Richards was and for many years had occupied the official position, provided for by charter, of engineer and superintendent of the board.In that capacity there was intrusted to him by the plaintiff everything relating to maintenance and construction.The entire matter of the preparation of plans for the dam and reservoir, the determination of the methods of construction, and the execution of all the details involved in the procuring of proposals, and the preparation of specifications and contract were committed to him.The quantities and kinds of work incident to the construction of a work of the character of that in question will vary more or less according to the amount of expense the owner decides cur, and it would have been practice not contrary to custom to buildn and reservoir within the limit quantities and kinds of "notice to contractors." custom among engineers and contractors the quantities of labor and materials as stated in said invitation and notice would, without further explanation, be taken as showing approximately the quantities of work and materials to be required in constructing the completed dam and...