City of Lima, Ohio v. Farley
| Decision Date | 08 June 1925 |
| Docket Number | No. 4253.,4253. |
| Citation | 7 F.2d 40 |
| Parties | CITY OF LIMA, OHIO, v. FARLEY. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Paul T. Landis and J. J. Weadock, both of Lima, Ohio, for plaintiff in error.
J. Henry Goeke, of Lima, Ohio (Wheeler & Bentley, of Lima, Ohio, on the brief) for defendant in error.
Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
John W. Farley entered into a contract with the city of Lima, Ohio, on October 28, 1919, by which he agreed to construct a sewer about 3 miles in length, varying in size from 84 inches at the beginning to a much smaller dimension at the end, for $528,000. He completed the work in the early part of 1922, and shortly thereafter brought this action in damages for breach of an implied warranty arising from false representations as to borings made by the city preparatory to letting the work, upon which, as he averred, he relied in entering into the contract. In addition to denying liability under the general issue, the city interposed 10 separate affirmative defenses to the action. All of these, except the ninth, were withdrawn from the jury, as they were either unavailable in law or included in the general issue submitted. The jury returned a verdict for plaintiff in the sum of $153,579. A remittitur of all in excess of $124,598 was ordered, upon penalty of a new trial for nonacceptance. It was accepted, and judgment rendered against the city for the latter sum.
Defendant did not request a directed verdict on the evidence, or except to the charge. It did, however, demur to the petition, and at the conclusion of the trial statement asked for a directed verdict, excepting to the court's refusal to grant it. This exception was waived. So on the record here the questions available to defendant are the sufficiency of the petition as tested by the demurrer and the competency of certain evidence to the admission of which defendant objected and excepted.
The essential averments of the petition as simplified are: That prior to entering into the contract of December 28th defendant stated to plaintiff that borings had been made along the route of the proposed sewer, and furnished to him blueprints and specifications purporting to show the depth to which they were made; that it represented to him that samples of the subsoil were taken at various depths in the borings, examined by representatives of the city, and the character thereof correctly shown on the blueprints; that plaintiff had no knowledge of the subsoil along the route of the sewer, as defendant well knew, but, relying upon and believing in the representations of defendant and the statements on the blueprints as to the results of the borings, entered into the contract; that after entering upon the work he discovered that defendant's representations of the underground soil were untrue, and that much of it consisted of large areas of quicksand and other substances, which required open cut work where tunnel work was intended, and which was more difficult and expensive, and necessitated expenditures much in excess of what would have been made, had the soil been as represented. It was further alleged that defendant knew the real character of the subsoil, and deliberately misrepresented it on the blueprints, thereby inducing plaintiff to enter into the contract and perpetrating a fraud upon him.
That the petition on its averments stated a cause of action is not an arguable question. But it is contended that the provisions in the specifications attached to the contract, that "the profiles are reasonably correct, but are not guaranteed to be absolutely so," and the results shown by the borings are "plotted on the profiles for the information of the contractor but are not guaranteed," together with the statement in plaintiff's bid that he had made such investigation as was necessary ...
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...situation in which the plans contain representations that certain specified conditions exist are to be found in City of Lima, Ohio v. Farley, 6 Cir., 7 F.2d 40, and other similar cases. 6. The evidence in the case at bar, viewed as a whole, demonstrates that the owner's actions in furnishin......
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