Merrill Engineering Co. v. United States, 483.

• Decision Date: 23 March 1931
• Docket Number: No. 483.,483.
• Citation: 47 F.2d 932
• Parties: MERRILL ENGINEERING CO. v. UNITED STATES.
• Court: U.S. District Court — Southern District of Mississippi

47 F.2d 932 (1931)

MERRILL ENGINEERING CO. v. UNITED STATES.

No. 483.

District Court, S. D. Mississippi, W. D.

March 23, 1931.

Brunini & Hirsch, of Vicksburg, Miss., for plaintiff.

B. F. Cameron, U. S. Atty., of Meridian, Miss., for defendant.

HOLMES, District Judge.

This suit was filed against the United States by the Merrill Engineering Company, a corporation organized under the laws of the state of Mississippi, seeking to recover damages for breach of contract for the construction of a vitrified brick pavement on the bridge roadway of Wilson Dam, on the Tennessee river, near Florence, Ala.

By written agreement, duly entered into between the parties, the plaintiff undertook to furnish all necessary materials, labor, tools, and appliances, and to construct a brick pavement in accordance with the specifications upon a concrete base provided by the United States, for a consideration of $17,231, which the latter agreed to pay and subsequently paid, the controversy here being with reference to extra compensation for substantial changes alleged to have been made by the defendant and required of the plaintiff in the execution of the work.

The specifications called for a vitrified brick pavement, laid upon a one-inch sand cushion over a concrete base, the bricks to be laid with a joint all around of not more than one-fourth of an inch, and, after the roadway had been rolled and defects corrected, for the joints to be filled with hot asphalt, which should be rolled into the joints with rubber-edged squeegees, operated slowly backward and forward until the joints were full and only a thin coating of asphalt remained on the surface of the bricks. Then a dressing consisting of a thin coating of dry sand was immediately to be placed on the surface of the pavement.

Two days after the work began the consulting engineer inspected the pavement, a short section at the north end of the dam having been completed by the contractor under the supervision of the consulting engineer's inspector who had inspected and approved the bricks at Murphysboro, Ill., before shipment. The consulting engineer found that, in complying with the requirements of a maximum joint of one-fourth inch, a considerable number of bricks were actually in contact, in which case the hot asphalt did not penetrate down such joints to the sand cushion. This was due to the fact that the bricks, though complying with the specifications, were not perfectly true and when laid with a maximum joint of one-fourth inch the contacting of occasional bricks could not be avoided.

Thereupon the consulting engineer personally directed the contractor's superintendent to lay the bricks so that the asphalt filler would form an asphalt joint down to the cushion of sand around all four faces of every brick. To accomplish this the contractor had to insert a one-eighth inch strip of wood between each course of bricks which he removed just prior to filling with hot asphalt. The results of the consulting engineer's orders were:

(1) The maximum width of joints between bricks was about three-fourths of an inch and many joints were one-half an inch.

(2) The joints could not be filled with one pouring of hot asphalt over the pavement, two pourings being necessary.

(3) The thickness of asphalt on top of the bricks was about twice that contemplated by the specifications.

These were substantial changes in the specifications, which not only materially increased the cost of the work, but produced an inferior road. The contractor complained to the contracting officer, who reported the matter to the chief of engineers, and in due time the United States receded from the position taken by its consulting engineer, and the contractor was permitted to finish the work as originally begun in accordance with the specifications. In the meantime, he had completed about one-half of the pavement and sustained the loss sued for, amounting to $2,185.84, for extra labor and materials necessarily incurred in complying with the requirements not set out in the contract.

The plaintiff vigorously dissented from the interpretation of the specifications by the consulting engineer, and complained to the contracting officer with the result stated, but it did not comply with section 38 of the specifications, which is as follows: "38. Claims and Protests. If the contractor considers any work required of him to be outside the requirements of the contract, or considers any record or ruling of an inspector or the contracting officer as unfair, he shall ask the contracting officer for written instructions or decision immediately, and then file a written protest with the contracting officer against the same within five days thereafter, or be considered as having accepted the record or ruling."

To obviate this section as a defense, an act, entitled "An Act For The Relief Of The Merrill Engineering Company," was passed by Congress and approved March 4, 1929 (c. 725, 45 Stat. 2379). It provides that said section 38 shall not constitute a defense to the United States in any suit brought against it within four months after its enactment by the Merrill Engineering Company, of Jackson, Miss., to recover compensation for extra work performed by such company under the contract mentioned.

To this action, subsequently filed within the four months, there is a plea of the general issue under which the defendant gives notice it will prove at the trial that the extra work was not required in writing by the contracting officer, and prices agreed upon and approved by the chief of engineers, as required by article 7 of the contract and section 37 of the specifications, which are set out in the notice. Under the Mississippi practice the plea of the general issue puts the plaintiff to the proof of its claim upon the merits, while the notice thereunder is equivalent to special pleas in bar for failure to comply with article 7 and section 37.

On the merits the case may be quickly...