Davis v. Commissioners of Sewerage
| Decision Date | 20 February 1936 |
| Docket Number | No. 598.,598. |
| Citation | 13 F. Supp. 672 |
| Parties | DAVIS et al. v. COMMISSIONERS OF SEWERAGE OF CITY OF LOUISVILLE, KY., et al. |
| Court | U.S. District Court — Western District of Kentucky |
COPYRIGHT MATERIAL OMITTED
Bruce & Bullitt, of Louisville, Ky., for plaintiffs.
Rowan Hardin and William T. Baskett, both of Louisville, Ky., for defendants.
This suit was brought by the plaintiffs to recover additional compensation for services rendered under a contract which they had with the defendants, commissioners of sewerage of the city of Louisville, for the construction of a combined storm and sanitary monolithic, concrete sewer, designated Highland Park-Beechmont sewer in the city of Louisville, approximately 8,555 linear feet, located on Southern parkway south of Woodland avenue and extending along the parkway to Wellington avenue, thence eastwardly with it to First street; thence northernly to Wentworth avenue; thence eastwardly with Wentworth and Hiawatha avenues to Louisville avenue; one branch thereof thence northernly with this avenue to Ottawa street and another branch southernly along Louisville avenue to Pocahontas avenue.
The plaintiffs are citizens of the state of Oklahoma, and the defendant, commissioners of sewerage of the city of Louisville, is a quasi corporation created under the laws of the commonwealth of Kentucky. Its sole business is the construction, maintenance, and operation of a system of sewerage in the city of Louisville. The other defendant is a city of the first class under the laws of the commonwealth of Kentucky. More than $3,000, exclusive of interest and costs, is involved in this action, the requisite diversity of citizenship exists, and the court has jurisdiction of the subject-matter.
The court appointed a special master to hear proof, make findings of fact, conclusions of law, and a report thereof, with the right reserved to review all the findings and conclusions of the master.
The case is now pending before me on ten exceptions to the master's report, findings of fact and conclusions of law. The exceptions are so drawn as to require a review by the court of all the evidence in the case, and I have done so.
The plaintiffs are partners, and, before the letting of the contract involved in this action, had a number of years' experience in public contracting, all of which involved excavating materials and the construction of stone and concrete masonry in sewers, drains, reservoirs, and highways. Neither of them had done any work in Louisville, Ky., previous to the execution of the contract involved in this action, and they were not familiar with subsoil conditions in the vicinity where the sewer was constructed.
The defendant, the sewer commission, had built many miles of sewers in the city and its vicinity. The work carried on by it included all types of sewer construction. In letting bids and making contracts, it used a printed form bound in one cover containing information for bidders, form of proposal, bidders' bond contract, bond and specifications for the construction of sewers. Parts of the form were stricken out, interlineations made and blanks filled to meet the conditions under which the commission desired to construct a particular sewer project. It also prepared detailed plans, specifications, and blueprints of its contemplated work for its own use and convenience and that of bidders in preparing and executing contracts. It also made borings to determine subsoil conditions and the location of the sewer line before asking for proposals or entering into contracts for construction, and this information was made available to prospective contractors before lettings.
On July 1, 1928, the commission advertised in trade papers and otherwise, that it would, on July 20, 1928, receive at its office in Louisville, Ky., bids or proposals for the construction of the sewer heretofore outlined. It stated in its advertisement that it would receive bids for the following work:
On request, it furnished to bidders information as to the form of proposal. In this information, each bidder was advised that he would make his bid on the blank form prepared by the commission. It was also stated that locations and results of borings or soundings made near the line of the sewer were shown on the drawings. Samples obtained from the borings had been marked for identification and were on display in the commission's office for examination by prospective bidders. It also stated that these samples approximately represented the material obtained from the borings, but the commission did not guarantee their true character or that they were approximately correct.
All reference to rock excavation was stricken out of the proposal and contract. There was left therein "earth excavation and backfill." Earth was defined "the word earth, when used in these specifications, shall mean all kinds of materials, including old masonry excavated or which are to be excavated." There was stricken out of this paragraph "except rock, as hereinafter defined."
In information furnished the bidders, it was stated that the quantities set out to be removed and used were stated with as much accuracy as was practical in advance, but that they were only approximations, and that it was the duty of the bidders to satisfy themselves by personal examination of the location of the proposed work and by such other means as they preferred as to the actual conditions and requirements of the work and the accuracy of the estimates of the engineer. It was stated that, after the submission of the estimate, no dispute or complaint could be asserted by the contractor of any misunderstanding in regard to the nature of the work. It was also stated that after the bid was submitted, no claim could be filed by the contractor based on the fact that the plans were impractical under conditions encountered in the work or insufficient, or that there was any lack of information or data.
The plaintiffs made a proposal to the sewer commission on the form provided by it. They agreed to make earth excavation and backfill on a linear foot basis, depending on the size of the sewer at $15, $12, $10, and $6 per linear foot, and for earth excavation and backfill for outlet structures $1.50 per cubic yard, and for earth excavation below the sewer drain, or underdrain, $1.50 per cubic yard.
Their proposal was accepted and a contract entered into on August 24, 1928, in accordance with the plans, specifications, and drawings. They agreed to complete the work within 270 days, excluding Sundays and legal holidays. Additional time was to be allowed if delay was caused by acts of God, of the government, strikes directly affecting the work, extreme cold weather, floods in the Ohio river, or extra work ordered near the completion of the job.
The plaintiffs commenced construction on the date provided in the contract and had no difficulty so far as subsoil conditions were concerned until May 10, 1929, at which time they struck a hard material which required wedging, sledging, or blasting to remove, and a great deal of it was encountered during the balance of the work. Shortly after striking difficult subsoil conditions, the plaintiffs complained to the defendant commission and asked for extra compensation on account thereof, insisting they did not expect such conditions when they entered into the contract.
The work was finally completed and accepted by the commission and immediately thereafter the plaintiffs presented a claim to the defendants for $233,218.25, all of which was disallowed. Thereupon the plaintiffs filed a statement of a lien for labor and materials against the defendants as provided under the laws of the commonwealth of Kentucky, and thereafter instituted this action.
It was claimed in the petition that the defendants committed a fraud, either actual or constructive, on the plaintiffs by representing to them that there would be no quantities or items of rock excavation or backfill involved in the construction of the sewer, and that this was accomplished by deleting from the proposal, information to bidders, and contract the word "rock" wherever it appeared therein, and that the word "earth" as used was a representation by the defendants to the plaintiffs that no substance requiring wedging, sledging, or blasting would be encountered in making the excavation.
It was also alleged that the borings were not made as represented by the defendants and the samples thereof were not properly labeled; that the use of the word "shale" in naming the samples misled the plaintiffs into believing that the substance to be encountered was of such material as could be removed without wedging, sledging, or blasting.
It was also alleged that the plaintiffs knew nothing about the geological formation or the nature of materials underlying the surface of the earth around Louisville and where the sewer was to be erected, and that the plaintiffs did not have sufficient time to make an investigation to ascertain these facts from the date of the advertisement...
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