In re Hibbard

• Decision Date: 09 July 1928
• Docket Number: No. 337.,337.
• Citation: 27 F.2d 686
• Parties: In re HIBBARD et al.
• Court: U.S. Court of Appeals — Second Circuit

27 F.2d 686 (1928)

In re HIBBARD et al.

No. 337.

Circuit Court of Appeals, Second Circuit.

July 9, 1928.

Burlingham, Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for Hibbard.

Hunt, Hill & Betts, of New York City (George C. Sprague, of New York City, of counsel), for the counties.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

The French plan either was, or it was not, such that the counties were bound to use it; the same is true of Ripley's estimate. The commissioner has found that the plan was practicable, and, though he has not expressly said so, his report is consistent only with the finding that it limits the counties in their damages. We start with that assumption. So far as Ripley's estimate covered the repairs, we cannot see that it makes any difference that it was not in the form of an offer. It was equally available, and the counties might not reject it, any more than any other victim of a tort may reject the best means of recoupment at hand. However, there is considerable doubt whether it covered that testing of old material which the counties' experts demanded. If it did not, Ripley would presumably not have stood by it, but would have required a larger sum. The commissioner appears to have thought that the added expense could be covered by the owner's engineering charge. That would be true, if he did the testing, and it resulted in no added loss of material; but it is not apparent that either is true. We can solve this only by saying that, in finding the plan practicable, the commissioner must be understood to have found it practicable as French and Ripley proposed it; that is, with their tests and their replacements. If so, it follows that Ripley's estimate, which was the equivalent in our judgment of a bid, became the limit upon their recovery.

There remains, then, only the question of what it did not cover, upon which it does not seem to us necessary to say much. Of the extras which the commissioner allowed at $4,000 we allow for the railing, painting, and bond $2,750, to which we add 20 per cent. of their cost, or $3,300 in all, making $103,300 as the basic price.

It seems to us that Hibbard has not proved that the counties' engineers were fitted to supervise the construction, which, being altogether novel, might reasonably have required close scrutiny. The customary allowance for this is...