Furton v. City of Menasha, 8635.
| Decision Date | 17 July 1945 |
| Docket Number | No. 8635.,8635. |
| Citation | 149 F.2d 945 |
| Parties | FURTON et al. v. CITY OF MENASHA. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jacob Kaiman and William B. Rubin, both of Milwaukee, Wis., for appellants.
Melvin Crowley, of Menasha, Wis., and Harvey C. Hartwig, of Milwaukee, Wis., for appellee.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Plaintiffs, a Michigan firm of contractors, built (or partially built) a "pre-settling basin" (a water reservoir) for the defendant, which was to be used as a part of its waterworks system. Out of its construction, disputes arose which resulted in this litigation. By this action plaintiffs seek to recover $100,994.71 for alleged extra and additional services rendered and expenses incurred under circumstances which plaintiffs assert made defendant liable therefor. The damages were traceable, for the most part, to alleged misrepresentations in the specifications submitted by the defendant and upon which plaintiffs assert they made their bid. They were in reference to the depth at which bed rock (to which excavations were to be made, and of which the contractors expected to make use) was to be found.
The court held the first complaint filed by plaintiffs failed to state a cause of action. An amended complaint was filed, which set forth verbatim the contract and the specifications upon which the contract was entered. The specifications and drawings were in fact made a part of the contract. Also made a part of the record were the instructions to bidders. A motion to dismiss the amended complaint was denied after the court had filed its opinion. The defendant then filed its answer and supported it by affidavits of the engineers who personally supervised and directed the construction. Plaintiffs, in turn, filed counter-affidavits. Attached were drawings of the plan for the construction of the basin.
On the pleadings and affidavits defendant moved for a summary judgment which was granted. This appeal followed.
Broadly speaking, plaintiffs base their claim on a misrepresentation appearing in the specifications, which they allegedly relied on, when they submitted their bid. This error in the specifications lay in the statement of the depth at which bed rock would be found. As a matter of fact, bed rock was not found at the depth stated on the map, or in the specifications. At some places plaintiffs stated, "There was no bed rock at or near the elevation specified in the contract as represented by defendant." The plaintiffs claim they made their cost estimate for the work on the assumption that with bed rock at the high level stated in the specifications, they could easily excavate to the proper depth because their equipment would have a solid foundation on said bed rock. As the condition actually turned out, they had no foundation for their equipment. Plaintiffs were compelled to get different and heavier equipment and to make special bases for its operation; all of which required additional cost and expense. Plaintiffs also assert that the defendant's engineer ordered this additional work when the error in the specifications as to the location of bed rock was discovered. In brief, this is the basis of the plaintiffs' claim.
On this motion for summary judgment we must accept the allegations of complaint as true.
Defendant's position is likewise simple.
It contends: (a) The elevation of bed rock underlying the area to be excavated was uncertain and so known to plaintiffs, and indications in specifications and plan were approximations only; (b) there was no actionable representation as to conditions to be encountered in the performance of the work; (c) plaintiffs were lacking in diligence in the performance of the contract and resultant non-completion thereof; (d) failure to pay a large amount of mechanic lien claims justified defendant's declaration of default; (e) there being no genuine issue as to any material fact and no warranty being established, the summary judgment was properly entered dismissing the complaint.
We quote herewith from the contract.1
There is controversy as to the completeness of the work. Plaintiffs allege they substantially completed the entire work, although they admit they failed to pay the bills for material and labor, which was a part of their performance. Their excuse was that defendant failed to pay them what was due on their contract.
Likewise, the time for completion of the work is in dispute. Defendant contends that the contract called for completion of the work on June 30, 1942; that time was the essence of the contract; that work was not completed by February 1, 1943. Plaintiffs charge the delay and expense to the fact that there was no bed rock as represented by defendant. Delay on that account was unavoidable and excusable.
The settling basin in question was approximately seven feet in depth, and on one side was 725 feet long, and on the other three sides, for a length of approximately 1900 feet, it was bounded by a body of water, an outlet creek of the Fox River and a dredged channel.
The blue print plan (a part of the specifications ("9605") was a drawing of the "Plan of the Settling Basin." It contained several sectional drawings. That of the "Dike" showed it resting on rock and had the word "Rock 87.2±"; that of the "baffle walls" had them resting on rock stating ; another wall resting on rock at an "El. 87.2±"; the drawing of the "Head House" shows it resting on...
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