Kennedy v. City of Boston

• Decision Date: 30 March 1934
• Citation: 286 Mass. 148,189 N.E. 809
• Parties: KENNEDY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 148

189 N.E. 809

KENNEDY

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1934.

Appeal from Superior Court, Suffolk County; O'Connell, Judge.

Bill in equity by John F. Kennedy, doing business as John F. Kennedy & Co., against the City of Boston.From a final decree, defendant appeals.

Reversed, and decree entered dismissing the bill.

H. Murray Pakulski, Asst. Corp.Counsel, of Boston, and C. H. McCue, Asst. Corp.Counsel, for appellant.

Joseph Joyce Donahue, of Boston, for appellee.

CROSBY, Justice.

This is a bill in equity brought by the plaintiff to cancel a contract for the construction of a sewer for the city of Boston.The case was heard upon a master's report and a decree was entered cancelling the contract.The case is before this court upon the defendant's appeal from the decree.

Pending the hearings before the master, the parties agreed upon the facts and the evidence, and in accordance with the agreement the master found as follows: The plaintiff is, and has been for several years, a general contractor.The defendant is a municipal corporation.‘On the 30th day of April, 1932, a notice to bidders was issued by the Commissioner of Public Works of the City of Boston inviting bids for the construction of sewerage works in Maywoods Brook in Laurel and Ottawa Streets from Dale to Sherman Streets, Eoxbury, and the notice to bidders was contained in a pamphlet of 75 pages produced in evidence as ExhibitNo. 1, which pamphlet also contained a proposal, and a contract.’The work to be done consisted of thirty-nine items variously numbered from one to sixty-two, and the proposal called upon bidders to give prices per linear foot for laying sewer pipe of various diameters, said price to cover the cost of excavating the trench in which the pipe was laid, as well as the costs of refilling the trench, and of incidental work.In each item of the proposal the city fixed a figure showing the quantity of work to be done, and twenty-two items called upon bidders to furnish a price per unit of the quantity fixed by the city in the proposal.There were seventeen items in the proposal where the city stated the quantity, and also set or fixed the price per unit that it would pay.The proposal on page six contained these words: ‘Bidders will insert prices only for the items for which prices have not been fixed by the City.’Item 19 of said proposal stated: “Rock excavation-For 2,500 cubic yards, more or less of rock excavation, the sum of seven dollars ($7.00) per cubic yard,' and the amount of rock excavation, that is, 2,500 cubic yards was the estimated quantity, and the price, that is, $7.00 per cubic yard, was estimated and fixed respectively by the City.'

Bids for the work were opened on May 10, 1932, and it appeared that twenty contractors had submitted bids, and that the plaintiff's bid was the lowest.On May 12, 1932, a contract was signed between the plaintiff and the defendant for the construction of the work for the sum of $52,457.The price of the rock excavation was fixed by the city at $7 per cubic yard, and it was estimated that there would be found approximately 2,500 cubic yards of said rock excavation.If this estimate were in conformity to the facts, the amount to be paid for rock excavation would be $17,500 slightly in excess of thirty-three per cent. of the $52,457, the total estimate for the whole work.The city had tow sets of borings made to indicate the nature of the ground where the sewer was to be constructed.The borings indicated the presence of a ledge from five to fifteen feet below the surface of the street where the sewer was to be constructed.The engineers employed by the city considered the borings to be approximately correct and estimated that the borings showed the presence of about 2,500 cubic yards of rock in the space to be excavated.The engineers employed by the ctiy used the data on the borings to estimate the approximate cost of the sewerage works, and the city in good faith used such estimates, and submitted such data of estimates to all contractors to bid upon the work.The data obtained from the borings were graphically set out according to scale on plans submitted to all contractors.The plaintiff assumed the data concerning the borings were correct, and the statement of the quantity of rock contained in the proposal issued by the commissioner of public works to be substantially correct, and used both as a basis for his bid, and as the ground for making his contract.In submitting his bid he relied entirely upon these data, making no request prior thereto to make his own borings, or to dig test pits, understanding that such a request would not have been granted.The plaintiff had applied at the permit office of the street commissioner in March, 1931, for a permit to make borings before bidding on a sewer job and the clerk of the office told him that permits were never granted to contractors to open streets for such purposes.This application had no relation to the contract in issue in the present case.‘The petitioner did not make any request to the Board of Street Commissioners.’The plaintiff commenced work and carried it on until almost half completed, and found only one hundred seventy-eight cubic yards of rock.On discovering that the amount of rock to be encountered would be considerably less than the estimated amount he at once submitted the matter to the commissioner of public works, and asked that the contract be cancelled.This was refused.Thereafter, the plaintiff, under orders from the city, dug test pits over the remaining portion of the work not yet completed to determine the nature of the ground, and whether or not any rock would be found within the limits of the work.The plaintiff then ceased to perform any further work under the contract, although called upon to do so by the defendant.

The quantity of rock was an important element in the minds of both parties.The error in assuming the amount of rock to be found was not discovered until after the contract was executed, and the work had progressed to a considerable extent.The error in estimating the quantity of rock was unintentional, both parties were ignorant of any serious discrepancy between the amount of rock estimated and the amount actually present until after the excavation had commenced.The amount of rock stated in the proposal was accepted by the plaintiff as approximately correct and his bid was based thereon.

The proposal on page 5, Exhibit 1, provided as follows: ‘It is to be understood that the quantities given in the proposal are assumed solely as a basis for the comparison of proposals.The Commissioner does not expressly or by implication agree that the actual amount of work will even approximately correspond therewith, but reserves the right to increase or diminish the amount of any class or portion of the work as he may deem necessary, without change of price per unit of quantity.’

The contract between the parties begins on page twenty-five of Exhibit 1, and provides that the plans and specifications annexed are made a part of the contract.On page twenty-six of Exhibit 1 appears the following: ‘Article 1.The Contractor has made his proposal from his own examinations and estimates, and shall not hold the City, its agents or employees, responsible for, or bound by, any schedule, estimate, sounding, boring or any plan of any thereof; * * * shall, subject to the provisions of the contract, take all responsibility of, and bear, all losses resulting to him in carrying on the contract. * * *’ On pages twenty-six and twenty-seven, Exhibit 1, it is recited: ‘Article 2.The Contractor shall do the work and do it in the manner set forth in the specifications of the contract, except that the City, by order in writing of the Commissioner, from time to time given to the Contractor or his foreman, may change, increase or take away any part of the work, or change the specifications, plans, drawings, form or materials thereof, or require the Contractor to hasten the work or to furnish any extra materials or extra labor relating thereto, and the Contractor shall conform to the orders.The quantities mentioned in the contract are merely estimates of what will probably be required, and the department reserves the right to increase or diminish the quantities in any of the items as it may deem necessary, without change of price per unit of quantity, provided that the increase or diminution of the sum of all of said items, as determined by the Engineer's final estimate, does not exceed 25 per cent of the total of the original proposal.’The specifications of the contract as appear on page thirty-nine of Exhibit 1 contain the following: ‘Section 1.Manner Of And Things To Be Observed In Doing The Work.-(a) Carefully study these specifications, the plans for the work in the office of the Commissioner, and the orders that shall be made and given as authorized in Articles 2 and 3 of the contract, and procure from the Commissioner information relative to borings when taken, samples of which will be kept in the office of the Commissioner-special information as to any part of the work not fully shown by said specifications, plans or orders-detail drawings of such parts as detail drawings are to be provided for, and-directions as to the order and manner of doing the work.The Contractor shall thoroughly examine the site of the work, consult plans on file in Room 706, City Hall Annex, and familiarize himself with all the sewers, surface drains, underdrains, tide-gates, overflows, brooks, culverts,...