Edward De V. Tompkins, Inc. v. City of Bridgeport
| Decision Date | 14 April 1920 |
| Docket Number | 11635. |
| Court | Connecticut Supreme Court |
| Parties | EDWARD DE V. TOMPKINS, Inc., v. CITY OF BRIDGEPORT. |
Appeal from Superior Court, Fairfield County; Frank D. Haines Judge.
Action by Edward De V. Tompkins, Incorporated, against the city of Bridgeport. Judgment for plaintiff, and defendant appeals. No error.
On May 16, 1916, the parties contracted with each other for the building of a bridge by the plaintiff over the Pequonnock river at Grand street, in the city of Bridgeport work to commence within 15 days thereafter, and the bridge to be completed by September 1, 1917. The detailed plans and specifications, which form a part of the contract, were prepared by the city's consulting engineer, Joseph B Strauss, whose business headquarters were in Chicago, Ill and in both their preparation and the making of the contract the defendant was represented by a commission duly constituted for the purpose. Any dispute over the scope, meaning, or requirements of the plans and specifications was referable for determination to the consulting engineer as " the sole interpreter of the drawings and specifications," and the duty of deciding questions so arising was specifically cast upon him.
The plans called for an approach to the bridge on each side of the river, and for four piers to be built in the river to support the superstructure, each to consist of two cylindrical columns of reinforced concrete of specified dimensions. In their construction the specifications imposed these restrictions upon the contractor: (1) All forms must be pumped dry, and " no concrete will be allowed to be deposited through the water" ; (2) the concrete composition of each cylinder must be poured " in one continuous operation" ; (3) the wooden piles on which the piers were to rest " must project six feet into the concrete at the base of the pier."
While the last of these conditions was an important one, it could not be carried out by any method of construction other than one involving the use of a cofferdam, and borings in the river bottom at the points where the piers were to rest showed that there was no bottom hard enough at any practicable depth to resist the pressure of the water. Unless rock or some substance impervious to water was reachable at a practicable depth in driving the sheathing for the cofferdams, it became necessary to construct an artificial bottom, or " seal," for each of them, before it was possible to pump them dry of water. The situation called for a seal of concrete 10 feet thick, to meet existing conditions, and permit the safe and effective pumping out of the water, and the plaintiff proposed and was ready to construct a seal of that thickness.
The necessity of supplying this artificial bottom or seal also made impossible of fulfillment the condition that all the concrete be poured in a continuous operation, and, since the seal must be in place before the cofferdam could be pumped out, it was obviously necessary to deposit the concrete composing the seal either in or through the water. The objection to so depositing concrete was that the mixture of sand, stone, and cement would be more or less disintegrated by the water before reaching its resting place, and to avoid this the plaintiff proposed to use a tremie-a pipe through which the concrete is passed to its final place of deposit, so that the mixture does not come in actual contact with the water until it reaches the place designed for it to lie.
The specifications were ambiguous or inconsistent in all the respects suggested, and various conferences were had between the plaintiff and the commission, and between the plaintiff and the consulting engineer, before the plaintiff submitted its plan for the construction of the piers. Such a plan was called for by the contract within 10 days after its execution, but was not actually submitted until June 2, 1916. It was followed on June 14, 1916, by a detailed plan and sketch, submitted by the plaintiff to the consulting engineer, and after examination returned by him twelve days later with his approval of the general cofferdam method-which was in fact contemplated by his own original plans-but disapproving the precise method submitted, and with suggestions as to the depth to which the cofferdams should be driven, and the thickness of concrete required for the seal; for while he conceded that a seal was necessary, he advised trying a thickness of less than 10 feet. He further proposed that if the plaintiff would excavate within the cofferdams to a depth of 4 feet below the designed bottom of the piers, and fill in the excavation with concrete, all at its own expense, he would then permit the plaintiff to deposit on this mass 2 feet more of concrete as a part of the actual pier construction before pumping dry the cofferdams. This was no less a violation of the strict requirement that the concrete composition be poured in one continuous operation than would have been the deposit of a seal 10 feet thick, as the plaintiff had proposed.
While the consulting engineer's attention was called many times to the ambiguity and inconsistencies in the specifications, he refused to assume any responsibility or determine any questions arising therefrom, but referred the matter to the commission, which in turn refused either to adopt his recommendation to them that a seal of 8 or 10 feet be laid, as he was " convinced that it will be necessary to place this amount of concrete in the wet," or to permit him to authorize that plan of construction. The commission had no engineer among its members, and its insistence that the plaintiff carry out the ambiguous and contradictory requirements of the specifications, together with the position taken by the consulting engineer on the subject of the construction of the piers, the frequent impossibility of reaching him seasonably because of his absence from Chicago, and his refusal to pass upon matters submitted for his decision until after discussion by him with the commission, carried on by mail between Chicago and Bridgeport, all delayed the plaintiff, without fault of its own, for many months in the prosecution of its work under the contract.
Finally, early in 1917, the plaintiff, in order to solve the difficulty, offered to attempt the pumping out of a cofferdam which it had constructed, without first sealing it, but warned the commission that the operation would endanger the workmen's lives, and that the plaintiff would assume no responsibility for the consequences. The commission then directed the plaintiff not to attempt pumping without a seal, but to await the advice of the city's advisory engineer; and Prof. William H. Burr was in April, 1917, retained in that capacity, and represented to the plaintiff as thenceforth the " voice of the commission." He made many and radical changes in the Strauss plans which had caused the controversy and disagreement. The important requirement that the piles supporting the piers should project into the base of the concrete cylinders was entirely done away with. This permitted the substitution for cofferdams of open caissons, in the use of which the projection of the piles into the concrete was impossible, and Prof. Burr actually substituted this method of construction for the two piers nearer the center of the river which were to support the draw. The cofferdam method was retained for the two end piers, but a seal 14 feet thick was prescribed, the concrete composing which was to be deposited through a tremie-the method long before proposed by the plaintiff, but not approved by the commission. The diameter of the piers was increased, and a required anchorage of a large mass of concrete was added for the support of the western abutment. The substitution of the open caisson method for the center piers, of course, made useless all work already done on the cofferdams for their construction; it also added the new requirement of a large amount of dredging, wholly uncalled for by the Strauss plan which it superseded. During all the time that the difficulty over the pier construction was under discussion the plaintiff was using due and proper diligence in the prosecution of other work required by its contract.
There were other causes of delay, operating in greater or less measure and through no fault of the plaintiff, to hinder and prolong its prosecution of the work. These are specified in the court's finding with a detail unnecessary to repeat here.
About August 1, 1916, the plaintiff had begun to build the forms for casting the concrete wing-piles and slabs called for in the construction of the two approaches to the bridge. The building of the approaches and abutments was then started, and, before the questions concerning the pier construction had been determined, work on the cofferdams for the pier cylinders was started.
The substructure included a concrete abutment on each side of the river, and two parallel lines of so-called wing-piles, which made the retaining walls of the approaches, and were to extend from each abutment toward the upland. The space between them was to be filled to make a roadway at grade. The contract called for the completion of the substructure by January 31, 1917, and on that date the walls and abutment on the east side of the river were nearly completed, but no filling had been made; the west abutment was completed, and a part of the wing-piles of the western approach had been driven. Nothing more had been done on that side of the river. Sheet piling for four cofferdams was in place, and some excavating had been done. None of the piers had been constructed.
The consulting engineer estimated the value of the work done at that time at $29,917.50, and on the 1st of July following the value of...
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