Franklin A. Snow Co. v. Commonwealth
| Decision Date | 07 July 1939 |
| Citation | 303 Mass. 511,22 N.E.2d 599 |
| Parties | FRANKLIN A. SNOW COMPANY v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 15, 16 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, & DOLAN, JJ.
Contract, What constitutes, Construction, Building contract.
Under provisions of "information for bidders" for a contract for a public work that the "party to whom the contract is awarded" must furnish the usual public contractor's bond and execute the contract and bond within a specified time, no contract was made until execution and delivery of the bond and the contract.
A contractor performing a public work was not entitled to recover for extra expense caused by his being unable to use as a source of rock a quarry which had been approved by the engineer in charge and was believed by both the engineer and himself to be available for use before he submitted his bid accompanied by his certified check which was subject to forfeiture if he failed to execute the contract, where it appeared that the contract did not warrant that quarries approved by the engineer would be available to the contractor, and that both he and the engineer learned twenty days before the contract was executed that such quarry was not available and that another source for rock would have to be found.
Where a contract for a public work provided that "the planimeter shall be considered an instrument of precision adapted to the measurement of" areas, that earth excavation should "be measured in place before excavation," and earth embankments should be "measured in position after compacting," an acceptance by a judge of planimeter measurements instead of a computation by an auditor, whose findings were to be final, in accordance with a count of truck loads found by him to be a method more accurate than that by planimeter, was warranted.
PETITION, filed in the Superior Court on March 5, 1937. The case was heard by T J. Hammond, J.
J. F. Morgan, for the petitioner. E. O. Proctor, Assistant Attorney General for the Commonwealth.
This is a petition under G.L. (Ter. Ed.) c. 258 by a contractor which constructed the east branch baffle at the site of Quabbin Reservoir in the towns of Greenwich and Hardwick in 1936 and early in 1937. It was referred to an auditor whose findings of fact were to be final.
G.L. (Ter. Ed.) c. 258, Section 2. Upon his report the judge ordered a final decision in favor of the petitioner for only $7,554.72, exclusive of interest. The only questions now raised concern items K and L of the petition, in which the petitioner claimed $136,625 and $31,535.69 respectively, and upon which the auditor reported that the petitioner was entitled to $118,131.76 and $15,676.70 respectively, but upon which the judge decided for the respondent. The case comes here on the petitioner's appeal under G.L. (Ter. Ed.) c. 231, Section 96. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446 , 449. Robinson v. Lyndonville Creamery Association, 284 Mass. 396 , 398. Kamberg v. Springfield National Bank, 293 Mass. 24, 25. Edinburg v. Allen-Squire Co. 299 Mass. 206 .
Item K is for "additional expense incurred over the original estimates, figures and bid prices caused by a change in the quarry site from the original designated quarry site to the site chosen after the award of bids together with damages caused by delay in getting stone from the second quarry $136,625.00."
The essence of the claim is that the contract contemplated the use by the petitioner of the Parker quarry, located within the territory to be flooded by the dam, as a source of broken stone or riprap which the contract required the petitioner to procure and use in large quantities, but that the use of that quarry proved impossible because the Commonwealth did not own it and failed to take it by eminent domain, and the petitioner had to resort to another quarry where the cost of procuring and transporting the material was very much greater.
An important point is the date of the contract between the petitioner and the Commonwealth, the latter acting by its metropolitan district water supply commission.
A form of contract was presented to prospective bidders, preceded by "information for bidders," which stated among other things that the sealed bids or proposals would be publicly opened and read on May 14, 1936. "As a guaranty of the good faith of the bidder, each bid must be accompanied by a certified check acceptable to the commission and payable to the Commonwealth of Massachusetts, for ten thousand dollars ($10,000), such check to be returned to the bidder unless forfeited under the condition herein stipulated." The "party to whom the contract is awarded" was to furnish a bond with surety for the faithful performance of the contract and the payment for all labor performed or furnished and for all materials used or employed in the carrying out of the contract. "The party to whom the contract is awarded will be required to present forthwith to the commission the name of the surety to be offered, and to execute the contract and the bond" within ten days after being notified that the contract is ready for execution; "and, in case of his failure or neglect to do so, the commission at its option may determine that the bidder has abandoned the proposed contract, and thereupon, if it so determines, the proposal and acceptance shall be null and void, and the check accompanying the proposal shall be forfeited to the Commonwealth as liquidated damages."
The form of contract which followed the "information for bidders" and the "proposal" containing the bid, signed by the petitioner, described the work and the terms upon which it should be done. Section 10 provided "Land and rights of way of the Commonwealth are provided by the commission for the purposes of this contract to the extent shown on the plans, or on other plans on file in the office of the engineer; and the contractor will not be required to enter or build upon any other land, until the necessary additional land or rights of way have been provided." Section 14 provided: "The contractor may, without charge therefor, open quarries, gravel, sand, soil, or other borrow pits on the lands controlled by the commission at any places permitted by the engineer, but unless shown on the plans or specifically permitted may not borrow from any area above" elevation 530. The work required both "stone fill" (Item 8), estimated at ten thousand cubic yards, and "riprap" (Item 9), estimated at fifty thousand cubic yards. The petitioner's bid for each was $1 a cubic yard, for furnishing "all materials, equipment and labor required to construct" the stone fills and riprap called for by the plans. In general, the same sorts and sizes of stones may be used for both. Section 8.2 of the contract provided that "satisfactory rock from open quarries located as approved may be used in the construction of stone fills." The word "approved" means "approved by, or acceptable or satisfactory to, the engineer . . . ." The "engineer" means "the person holding the position or acting in the capacity of chief engineer of the metropolitan district water supply commission with respect to the work covered by this contract, acting either directly or through properly authorized agents, such agents acting within the scope of the particular duties entrusted to them." No similar provision appears as to obtaining rock from quarries...
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