National Contracting Co. v. Commonwealth

• Decision Date: 27 February 1903
• Citation: 183 Mass. 89,66 N.E. 639
• Parties: NATIONAL CONTRACTING CO. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 89

66 N.E. 639

NATIONAL CONTRACTING CO. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1903

COUNSEL

Richard W. Hale and Frank W. Grinnell, for petitioner.

Frederick H. Nash, for defendant.

OPINION

LATHROP J.

This is a petition under Rev. Laws, c. 201, and is in the nature of an action to recover damages for breach of an entire contract for the building of a section of the metropolitan sewer. The petition proceeds upon the theory that the petitioner began work under the contract, and was proceeding to do everything required by the contract, when the respondent, by its agents broke the contract, and the petitioner ceased work, whereupon the respondent repudiated the contract. Four breaches of contract on the part of the respondent are alleged. We shall consider these in their order:

1. The first relates to the order of the engineer in charge of the work that oak ribs should be used in place of pine ribs and that the petitioner should cease work until oak ribs should be substituted. This is the gist of the complaint, although it is alleged that the contract provided that all timberwork and lumber should be of spruce, and further sets forth that the engineer, in refusing to allow the use of pine, acted unreasonably and without color of reason. We are unable to see how any clause of the contract relating to spruce justifies the use of pine for ribs. Clause 46 of the specifications of the contract provides: 'Spruce lumber shall be used in the construction of wooden platforms for the foundation of the sewer, for pile caps, cradling, or other purposes, at such points, and of such description, as the engineer may direct.' This has nothing to do with the question before us.

The clauses which apply to the question before us are clauses 5 and 13. Clause 5 is as follows: 'All work, during its progress and on its completion shall conform to the lines and levels given by the engineer, and shall be built in accordance with the contract plan and directions given from time to time by him, subject to such modifications and additions as shall be deemed necessary by him during its execution; and in no case shall any work in excess of the requirements of the plans and specifications be paid for unless ordered in writing by him.' Clause 13 is as follows: 'The contractor shall furnish, put in place and maintain in the tunnel and shafts such sheeting, bracing, wooden ribs, metallic plates or lagging as may be required to support the sides and roof of the excavation (whether above or below sewer grade), and to prevent any movement which could in any way injure the masonry, diminish the width necessary for proper drainage, or otherwise injure or delay the work; all slides or caves to be at his cost. Where deemed necessary by the engineer, the contractor shall at his own cost, as provided in Article M, item 'a,' install and use a metal shield to prevent slides, caves or settlement of the streets. If the engineer is of the opinion that at any point suffieient or proper supports have not been provided, he may order additional supports at the expense of the contractor, and the compliance with such orders shall not relieve or release the contractor from his responsibility for the sufficiency of such supports.'

We are of opinion that the engineer had the right to require oak ribs in place of pine ones, and that his judgment was final, unless he acted in bad faith, of which there is no suggestion. We are also of opinion that the petition is not strengthened by the allegation that the engineer acted unreasonably and without color of reason. This is disposed of by the recent case of Audette v. L'Union St. Joseph, 178 Mass. 113, 115, 59 N.E. 668

2. The next allegation is, in substance, that the respondent was required by the contract, if an emergency should demand, to make alterations in the plan of the work; that an emergency did arise, namely, that the earth excavation and refilling in the tunnel was by the contract to be done by the use of compressed air, to be pumped into the tunnel and to be held in by the surrounding material; that the surrounding material did not, in fact, hold the compressed air, or make or allow of or make possible the construction of the earth excavation and refilling in the tunnel in the mode provided in the contract; and that an emergency arose which required the respondent to alter the plans, etc.

The only provision of the contract which provides for an excavation under air pressure is clause 11, which reads as follows: 'The shafts and tunnel are to be excavated under air pressure when necessary to prevent changes in adjacent ground-water levels. The contractor shall provide hydraulic machinery, air pumps, engines and air locks, and shall make other ample provision (including reasonable duplication of plant) for maintaining the necessary degree of air pressure within the tunnel and shafts and for carrying on the other operations called for by this contract.'

There is nothing in the petition to show that, when the alleged emergency occurred, the excavation under air pressure was within clause 11. Nor is there anything in the contract which calls for refilling in the tunnel under air pressure.

If these difficulties could be got over, we are still of opinion that the petitioner does not make out a case. The commissioners who signed the contract in behalf of the commonwealth did not warrant against underground difficulties, but expressly provided to the contrary in clause 4, which reads as follows: 'The plots of borings pipes and other underground objects are supposed to be approximately correct; but should they be found to be otherwise, or...