Foundation Co. v. State

• Decision Date: 18 April 1922
• Citation: Found. Co. v. State, 233 N.Y. 177, 135 N.E. 236 (N.Y. 1922)
• Court: New York Court of Appeals Court of Appeals
• Parties: THE FOUNDATION COMPANY, Appellant, v. THE STATE OF NEW YORK, Respondent.

233 N.Y. 177

135 N.E. 236

FOUNDATION CO.

v.STATE.

Court of Appeals of New York.

April 18, 1922.

Action by the Foundation Company against the State of New York. From a judgment of the Appellate Division (193 App. Div. 513,184 N. Y. Supp. 720,amended, in 196 App. Div. 912,186 N. Y. Supp. 939), reversing a judgment of the Court of Claims in favor of the plaintiff, and dismissing its claim against the State, the plaintiff appeals.

Affirmed, on condition that the parties stipulate as to the fair value of such work; otherwise, the cause will be reversed, and new trial granted.

Cardozo, Hogan, Pound, and Crane, JJ., dissenting in part.

Appeal from Supreme Court, Appellate Division, Third Department.

E. D. Worcester and Henry G. Seipp, both of New York City, for appellant.

Charles D. Newton, Atty. Gen. (C. D. Davie, of Albany, of counsel), for the State.

ANDREWS, J.

The state designed a dam across the Mohawk river at Scotia with a canal lock at its south end. At this point a layer of gravel underlay the bed of the stream. Upon it the dam could not safely rest. Nor might cofferdams be used in its construction. It was determined, therefore, to sink caissons under compressed air to bedrock for the whole distance. The final result would be solid concrete cut-off wall, on top of which would be placed the other structures necessary to complete the dam. The caissons were to be 24 in number. Three of them were to extend beyond the others a considerable distance up and down the current, to support the piers of a bridge from which the dam gates were to be operated. For various reasons the expense of building caissons very rapidly increases with the increased depth to which they are to be lowered. It would become important, therefore, to any one undertaking this work to ascertain the situation of the bedrock. Investigation of this question had previously been made by the state, apparently for its own information. Its borings showed that everywhere bedrock would be reached above elecation 148, with one exception, where above that level it found ‘rock or boulders.’ The lock was also to be built of concrete. To accomplish this work it would be necessary to screen the site by sheathing, or in some other way so as to make it water-tight and to pump the water therefrom. The cost of this pumping item depended largely upon the method to be adopted.

The appellant entered into a unit price contract with the state to build this dam and lock. The claims it now makes, are based on two propositions. It says that when it made its bid it and the state both understood that bedrock would be found not lower than level 148. The state so represented and warranted. As a fact under three caissons it was obliged to excavate 556 cubic feet below this level. Against its protest the state compelled it to do this work-a work never contemplated by either party when the contract was made. It says also that while for the lock no more water was lifted than was always supposed to be necessary, the state so changed its plans that the method necessarily adopted was far more costly than that at first designed. Consequently, the bid for pumping did not fairly measure the actual cost. For the first of these items the Court of Claims awarded the appellant $11,417; for the second $62,272.21. The Appellate Division, however, reversed as to both on the law and the facts, and dismissed the claim. But there is little or no dispute as to the circumstances surrounding the transaction.

Originally an attempt was made by another corporation to build this dam. It tried to use cofferdams for that purpose. The attempt was a failure, and the contract was canceled. It seemed that the caisson method was necessary. The state had, as we have seen, bored a number of holes near the site of the proposed work with a wash drill. This is not always satisfactory. A diamond drill is more accurate, but more expensive. The state officials believed that they had found bedrock everywhere above level 148. In this, however, they were mistaken. In 1912 plans were prepared and bids were invited by four advertisements published between June 6th and June 26, 1912. Proposals would be received until July 2d. When this advertisement came to the notice of the appellant does not appear. In his opening before the Court of Claims, however, its counsel seems to assume that it saw it at the time of its first insertion. Prospective bidders were told that various papers and plans and other information might be had at the office of the superintendent of public works. The claimant applied for this information. It was given, among other things, a sheet of drawings showing the plan and elevation of the caissons which represented them as resting on bedrock, but which contained no figures showing the depth at which bedrock would be found. It was told that the excavation lines and base of the structure as shown were but approximate. No statement was made as to the borings made by the state, nor did the boring sheet on which its results were recorded accompany the plans. In the course of its investigations, however, before presenting its bid, the claimant learned that such borings had been made, and at its request this boring sheet was furnished to it. On its face it did not purport to be one of the plans on which bids were asked, but stated that it was made ‘to accompany supplemental report of board of consulting engineers.’ The claimant made no borings of its own, although there is some evidence that would justify the conclusion that it would have been enabled to check up the results obtained by the state in two weeks. It seems to have known how the borings had been made by the state, and it was aware that borings obtained by a wash drill were not always accurate. At the same time there was also handed to the claimant a paper called ‘information for bidders,’ a preliminary estimate of quantities and costs made by the state, a form of itemized proposals to be executed by the bidder, a proposed form of contract and the specifications which were made a part of it. The preliminary estimate of quantities and costs contained an item called a ‘contingent item’ for 200 cubic yards of concrete pneumatic caisson work below elevation 148, and an estimate by the state engineer that this would cost $40 per cubic yard. The information for bidders stated that the estimate of quantities is to be accepted as approximate only, and the bidders are required to form their own judgment as to quantities and character of the work by personal examination upon the ground and on the specifications and drawings relating thereto, or by such other means as they shall choose, and their attention was specifically called to paragraph 10 of the contract (an error for paragraph 11). This paragraph is to the effect that the contractor agrees that he has satisfied himself by his own investigation and research regarding all the conditions affecting the work to be done and labor and material needed, and that his conclusion to execute the contract is based on such information and research and not on the estimate of quantities or other information prepared by the state engineer, and ‘that he shall make no claim against the state because any of the estimates, tests, or representations of any kind affecting the work made by any officer or agent of the state may prove to be in any respect erroneous.’

Under these circumstances the claimant bid, among many other items, for 200 cubic yards of caisson work below elevation 148 at $25 a cubic yard. It received the contract to build the dam, and to do all the work necessary therefor. The work to be done is described as building three concrete pneumatic caissons, each 64 by 14 feet, with tops at elevation 209, and bottom of foundation on bedrock at about elevation 166 for the southerly pier; at about elevation 156 for the middle pier; and at about elevation 149 for the northerly pier; and as building concrete pneumatic caisson cut-off walls between the piers and to shore, extending up to elevation 209 and down to bedrock. Payment was to be made at one price for work between levels 209 and 148 and at another for that below 148. If any item in the contract exceeds the quantity of the engineer's estimate by more than 15 per cent. the engineer shall certify this fact to the canal board, and the canal board shall thereupon determine whether the work shall be completed by the contractor under the terms and at the price specified in the contract or whether it shall be done by the superintendent of public works, or whether a special contract shall be made for such excess.

It is clear that this was not a contract to build three piers with foundations at a certain depth. It was a contract to rest these foundations on bedrock. It cannot be argued, therefore, that in any event the doctrine stated in Borough Const. Co. v. City of New York, 200 N. Y. 149, 93 N. E. 480,140 Am. St. Rep. 633, is applicable. Indeed, we do not understand that any such position is taken by the appellant.

Having received its contract, the claimant began to sink its caissons. It commenced not far from the north bank of the river. It was soon found that under three of these caissons, to reach bedrock or to reach hard pan, which was equally satisfactory to the state, it was necessary to go a...