George Christie v. United States

• Decision Date: 12 April 1915
• Docket Number: No. 204,204
• Citation: 237 U.S. 234,59 L.Ed. 933,35 S.Ct. 565
• Parties: GEORGE B. CHRISTIE, Jesse Lowe, and James O. Heyworth, Surviving Partners of the Firm of Christie, Lowe, & Heyworth, Appts., v. UNITED STATES
• Court: U.S. Supreme Court

237 U.S. 234

35 S.Ct. 565

59 L.Ed. 933

GEORGE B. CHRISTIE, Jesse Lowe, and James O. Heyworth, Surviving Partners of the Firm of Christie, Lowe, & Heyworth, Appts.,

v UNITED STATES.

No. 204.

Argued March 16 and 17, 1915.

Decided April 12, 1915.

Messrs. George A. King, Frank Boughton Fox, and Duane E. Fox for appellants.

[Argument of Counsel from pages 235-236 intentionally omitted] Assistant Attorney General Thompson for appellee.

[Argument of Counsel from page 237 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Action for damages in the sum of $207,304.50 brought by appellants against the United States, growing out of a contract with the United States on the 19th of February, 1900, for the construction of three locks and dams on the Warrior river in Alabama.

The work was completed and accepted in November, 1903.

The items of damage were: delay in permitting commencement of the work; for construction of wagon roads; greater expense of excavation and pile driving, due to misrepresentation of the materials in the specifications and drawings; increase in excavation, due to the 'angle of repose' fixed by the officer in charge; extra work in the construction of additional cofferdams, and other items.

The court rendered judgment for claimants upon two items, based on findings 2 and 3, to wit, $9,391.57 for 'delays in permitting the commencement of work' and $100 for 'construction of wagon roads,' making a total of $9,491.57.

This appeal was then prosecuted, and three errors are assigned——(1) in refusing to allow for the extra expense due to the increased difficulty in pile driving and excavation on account of misrepresentation of the materials to be penetrated and excavated; (2) in refusing to allow $45,000 for excavation of material caused by defect in the 'angle of repose,' and in refusing to allow the further sum of $1,183 for excavation of material under which certain concrete forms were buried; and (3) in refusing to allow the cost of cofferdams built on the order of the officer in charge.

We shall take these items up in their order.

(1) This item is based on a charge of erroneous and deceptive borings and misrepresentations in the specifications and drawings.

By paragraph 48 of the specifications it is, among other things, provided: 'The material to be excavated, as far as known [italics ours] is showing by borings, drawings of which may be seen at this office, but bidders must inform and satisfy themselves as to the nature of the material.'

It is upon this paragraph the contention turns.

The allegations of the petition of claimants are to the effect that, invited by the above provision, claimants examined the drawings and they 'showed gravel, sand, and clay of various descriptions, and showed no other materials.'

That the material actually to be excavated 'consisted largely of stumps below the surface of the earth, buried logs, of cemented sand and gravel (none of the sand or gravel being described in the said drawings as cemented), and of sandstone conglomerate,' and that such materials were far more difficult and expensive to penetrate and excavate than ordinary sand and gravel such as was described in the drawings.

That the existence of the more difficult and expensive MATERIAL WAS KNOWN TO THE PERSONS WHO MADe the borings and to the resident engineer of the United States under whose supervision they were made; and that the statement in the specifications was untrue in fact and misleading, causing the claimants to propose to do the work upon the basis shown by the drawings, and not upon the basis of the more difficult and expensive work, which, in point of fact, existed and was known to the officers of the United States. That claimants were forced to rely wholly upon the information furnished them, the time not being sufficient to permit them to make their own borings, and they believed the information furnished them to be accurate and reliable. That the erroneous and deceptive drawings misled claimants, and they were compelled to spend $10,510.30 over and above the rates named in their proposal and contract, which rates were based upon the materials shown by such drawings.

We think the findings substantially sustain the allegations. They establish that borings were made and that the drill met 'obstructions which from the partieles broken off and floating to the surface would indicate they might be logs.' These obstructions, though in some instances noted because of the formation, were not indicated on the drawings.

And this was found: 'When such obstructions were met, the apparatus was moved elsewhere until a place was found where the drill would penetrate, and the result was recorded as if taken at the place staked out.' And further: 'The boring sheets referred to in paragraph 48 of the specifications contained only the record of completed borings and do not show any record of sunken logs, or of cemented sand and gravel, or conglomerate impenetrable by the drill.'

The indications of buried logs were called to the attention of the resident engineer, and he was asked if they should be noted in the record of borings, to which he replied that he did not consider them of enough importance to be noted. It was, however, found that the evidence did not establish to the satisfaction of the court that the statement of the engineer was other than an honest expression of his opinion, nor was it made to induce the omission from the records of the borings of any logs actually encountered, or for the purpose of concealing the same from or misleading subsequent bidders.

It would seem as if there could be only one conclusion from these findings. There was a deceptive representation of the material, and it misled. In opposition to the seemingly irresistible conclusion that claimants were justified in their reliance upon the drawings, it is contended that the river was alluvial and its character warned claimants of the possible conditions which existed, and that, besides, the court found 'they admitted they had reason to, and did expect to, encounter some logs.'

The contentions are attempted to be supported by the alluvial character of the river, as we have said, its tortuosity, its fluctuations between high and low water in winter and summer, and that for twenty years the United States had operated snag boats for the removal of stumps and sunken logs from the channel of the river. But inferences from such facts could only be general and indefinite, and were not considered by the government as superseding the necessity of special investigations and special report. It assumed both were necessary for its own purpose and subsequently would be to those whom it invited to deal with it. Knowledge of the result of such investigations would protect the government, it might be, against an extravagant price based on conjecture of conditions, and enable contractors confidently to did upon ascertained and assured data. And how important it was to know the conditions is established by the finding that claimants were put to an expense of $6,150 over what would have been necessary 'if the borings sheets had represented the character of the ground with respect to logs.'

It makes no difference to the legal aspects of the case that the omissions from the records of the results of the borings did not have sinister purpose. There were representations made which were relied upon by claimants, and properly relied upon by them, as they were positive. Hollerbach v. United States, 233 U. S. 155, 58 L. ed. 898, 34 Sup. Ct. Rep. 553. Besides, it was admitted at the argument that time did not permit borings to be made by claimants. We think it was error, therefore, to have disallowed the damage resulting therefrom.

(2) The 'angle of repose' is dealt with in the specifications as follows: 'The limits of the excavation and quantities to be excavated will depend upon the ascertained angles of repose. The limits shown on the drawings and the amounts herein given are approximate, and may be greater or less as the local conditions may demand or justify.'

The finding as to the 'angles of repose' is that at the outset of the work, under direction of the engineer officer, 'the slopes of all temporary excavation at the lock sites were staked out on an angle of 1 on 1, or 45° from horizontal.' This angle, it was further found, was adopted by the engineer officer from his experience in similar work on the Mississippi river, and was 'an angle at which the banks would stand for the time necessary to complete the work when not submerged from rises in the river or when in a dry condition. There was no angle or slope which could have been adopted by which the banks would remain stable when subjected to such rises of the river as were liable to happen in times of flood.' And, further, that the conditions actually encountered during the work were abnormal; floods, freshets, and unlooked-for rises of the river were more numerous and of greater height and longer duration than theretofore disclosed by the official records of the engineer's office relating to the river.

Other findings are as follows:

'To have sloped the banks to a flatter angle would have reduced the sloughing, but the evidence does not show to what extent. When the river rose the material in the banks became saturated and heavy with water, and as the river receded, such material, being deprived of the support afforded by the water while up, sloughed or caved off into the lock pits below, where it had to be and was removed by claimants in a wet and slimy condition at a higher cost than if excavated from its natural position in the bank. The slopes of the excavation were not flattened by the engineer officers because, in their opinion, there was no practical angle at which the banks could have been sloped which would have caused them to remain stable under the abnormal conditions to which they were subjected, or have prevented the banks from...