Chris Nelsen & Son, Inc. v. City of Monroe, 33

• Citation: 60 N.W.2d 182,337 Mich. 438
• Decision Date: 05 October 1953
• Docket Number: No. 33,33
• Parties: CHRIS NELSEN & SON, Inc. v. CITY OF MONROE.
• Court: Supreme Court of Michigan

Page 182

60 N.W.2d 182

337 Mich. 438

CHRIS NELSEN & SON, Inc. v. CITY OF MONROE.

No. 33.

Supreme Court of Michigan.

Oct. 5, 1953.

Dell and Heber, Royal Oak, for appellant.

Victor H. Weipert, City Atty., William J. Weipert, Monroe, of counsel, for appellee.

Before the Entire Bench, except BOYLES, J.

REID, Justice.

Plaintiff sued defendant for cost of removal of 1,876 cubic yards of rock excavation over and above the amount claimed by plaintiff to be indicated by drawings and evidence furnished by defendant to plaintiff to procure plaintiff's bid for construction of water main. On trial before the court without a jury, the court found for the defendant and rendered judgment accordingly. Plaintiff appeals.

The contract in the obtaining of which bids were publicly requested by the city, covered the installation of a water main approximately 8 miles long, from Stony Point to the city of Monroe, much of the course being alongside of the Pointe Aux Peaux road. The city furnished plaintiff company all the data known and available to the city except that the plaintiff claims the indication of total rock excavation necessary was misinformative and faulty evidence.

Neither the pleadings nor the testimony of any witness for the plaintiff alleges any bad faith on the part of the city or its agents. The action is in assumpsit and is based solely upon the furnishing of faulty and incorrect information. The plaintiff, in the instant case, seeks only to recover that which will compensate it for the damages suffered as a direct result of the breach of the city's implied warranty of the accuracy of the data furnished.

The city made no computation of the total rock yardage to be removed, and was under no obligation to furnish any such computation; it was simply under obligation to make no false statement to plaintiff, and the claimed inaccuracy and falsity of the soundings made by the city hereinafter mentioned is the sole basis for plaintiff's claim. Plaintiff offered no proof that any one or more of the soundings shown on the diagram relied on by plaintiff in making its bid and entering into the contract, was false or incorrect, as a sounding at the very point or points indicated on the diagram.

Plaintiff's witness Korneffel (who as subcontractor did the explosive work on the job in question) testified:

'If you insist on 3, 4, and 5 feet from that particular spot as the actual sounding I have nothing in the way of evidence to show that the sounding as taken by the engineers employed by the city of Monroe where taken were incorrect.'

Mr. Goodwin, engineer employed by the city on the contract in question, was present at most of the soundings and testified as to the manner of making the topography survey and the test soundings in question, as follows:

'We drove the 5/8ths tool steel bar into the ground with 8 and 10 pound sledges until we encountered an obstacle. We pulled it up and moved a couple of feet and drove it again; if we stopped at about the same point we call that rock; if we went down farther we surmised that it was a free boulder. We didn't do the same as Mr. Nielsen [vice president and secretary and engineer for plaintiff company] if we hit a hard object the first time. After a pattern had been established on the rock formation, we didn't always put the second, third or fourth; sometimes we drove five or six of them in a circle, but we didn't always do that. After rock had been established in a plane we would then move 200, 300 or 400 feet. The initial ones were made some 900 feet apart, maybe even farther, and then if we encountered rock we came back in between and tried to pattern the rock formation.'

In all 103 soundings were thus taken, all in general proximity to the proposed water main, but few if any, on the precise line of the water main, all of which was indicated on the plan and drawings seen and relied on by plaintiff's engineer before bidding.

Mr. Goodwin further testified:

'When I made these soundings the topography was done, location of the water main and its profile was already drawn up. There was one change after the soundings were made; the line was shifted from the north side of the Pointe Aux Peaux road to the south side; not entirely all that, but quite a portion of it. The actual plans and specifications showed that shift.

'The soundings were made in the ditch adjoining the side of the road in which the water main was to be laid. I would say that ditch is an average of 8 or 10 feet from the location of the water main itself. We used the ditch for the purpose of making soundings to save a little work; it was already down, excavated about 3 to 5 feet below road level, so it meant that we didn't have to go through the fill material of the road. * * * If we showed in any given case that rock was found a definite number of feet below the surface, that would mean the center of the ditch; and the plans and specifications so indicated.'

Mr. Goodwin further testified on cross-examination as follows:

'I attempted to make my soundings more accurate than within one foot of the level at which the rock would actually be found when the contractor excavated; I do not believe the soundings were accurate within 1/10th of a foot. I think the soundings are accurate probably plus or minus a foot. The first instruction to bidders that says that they are required to make their investigation, warns the contractor that these soundings are accurate only to within plus or minus one foot; I think anybody would realize that the determination of an underground rock structure from soundings and the condition of the rock here to a degree more accurately than plus or minus a foot would be impossible.'

Mr. Goodwin further testified that the depth of rock below the surface varied in the 8 mile course of the water main, in one location 2 1/2 feet in 50 feet; in another locality, the variation was 2.8 feet in 180 feet; that in one 3,000 foot stretch there would be approximately a variance of 7 feet; in one locality a variance of 3 feet in 65 feet; that at Sandy Creek there is a variance of 3 1/2 feet over a space of 85 or 90 feet; that the soundings are indicated on the chart or map by a small blue or black dot; telephone or telegraph poles (from which distances and directions to the sounding are shown) are indicated by a circle with a line projecting out on each side; that the symbols are not drawn to a scale, you would not be able to see them on a scale of one inch to 100 feet, and that the soundings were made in January and February, 1947.

Plaintiff's engineer (in at least practical effect) for this job, Robert Nielsen, who is also plaintiff's vice president and secretary, had seen the advertisement for the letting of the contract in question about one month before the letting, August 23, 1948; but plaintiff did nothing during that month to obtain more detailed information as to rock depths along the line of the water main instead of near it. Nielsen testified it would have taken him and two men two weeks to make the same number of soundings indicated on the city's drawings. He said:

'We didn't make any test borings because we assumed the blue-prints to be correct, the cost was prohibitive, and there wasn't sufficient time before the bidding.'

The plans and specifications were sent plaintiff...