Passaic Valley Sewerage Com'rs v. Tierney

• Decision Date: 18 September 1924
• Docket Number: No. 2936.,2936.
• Citation: 1 F.2d 304
• Parties: PASSAIC VALLEY SEWERAGE COM'RS v. TIERNEY.
• Court: U.S. Court of Appeals — Third Circuit

1 F.2d 304 (1924)

PASSAIC VALLEY SEWERAGE COM'RS v. TIERNEY.

No. 2936.

Circuit Court of Appeals, Third Circuit.

September 18, 1924.

Riker & Riker, of Newark, N. J. (Adrian Riker, John R. Hardin, and Shelton Pitney, all of Newark, N. J., of counsel), for plaintiff in error.

Griggs & Harding, of Paterson, N. J. (John W. Griggs and John W. Harding, both of Paterson, N. J., and Richard E. Dwight and Oscar R. Ewing, both of New York City, of counsel), for defendant in error.

Before BUFFINGTON and DAVIS, Circuit Judges, and McKEEHAN, District Judge.

McKEEHAN, District Judge.

On December 6, 1913, John C. Tierney and the Passaic Valley sewerage commissioners entered into a written contract under which Tierney agreed to construct what was known as section 1 of the Passaic Valley sewerage works, the work consisting of manufacturing and laying 4,500 feet of concrete pipe in New York Bay, for the purpose of discharging into that bay the sewage from the Passaic Valley. There were to be two parallel lines of 96-inch pipe, each 1,500 feet in length, beginning at a point off Robbins Reef, in New York Bay, and extending towards shore. At the offshore extremities of each of these lines there was to be an elbow, one turnng towards the north and the other towards the south, and the out-shore pipes beyond this point were called specials or fingers, and had attached to them the diffusion nozzles through which the sewage was to be emptied into the bay. These specials or fingers gradually tapered from a diameter of 94 to a diameter of 24 inches. The work was to be completed on or before November 15, 1916.

In June, 1917, when the work had been partially completed, the defendant's chief engineer certified that the work had been unreasonably and unnecessarily delayed, and that Tierney had abandoned it, whereupon the commissioners canceled the contract. Tierney brought suit in the District Court for the District of New Jersey for breach of contract, and recovered a judgment for $183,481.53; this amount including the profits he would have made, had he been permitted to complete the work. From this judgment the defendant prosecutes a writ of error to this court.

After a thorough examination of the voluminous record and briefs of counsel, we think the judgment should be affirmed. On the view we take of the case, it is unnecessary to discuss all of the many questions raised by the assignments of error, though all of them have had our careful consideration. The case turns upon whether the defendant warranted that the methods prescribed by the plans and specifications for supporting the pipes and for making the joints between the pipes water-tight were adequate to accomplish the purpose in view, and whether these methods were in fact adequate for such purpose. The plans and specifications were prepared by the chief engineer of the commissioners, and the contract required that the work should be done in accordance therewith, subject to such modifications and additions as might be deemed necessary by the commissioners' chief engineer, who was given broad powers to make corrections of errors or omissions in the plans and specifications, and to make alterations in the line, plan, grade, form, dimensions, or materials of the work, with the provision that, if such alterations increased the amount of work, such increase should be paid for.

Difficulties were encountered almost from the start, one of them having to do with making the joints between the sections of pipe water-tight. The contract provided that, after each section of pipe had been forced into permanent position with the adjoining section by hydraulic or other power, the space between the flanges should be caulked by divers with oakum and 2½ inches of "lead wool"; the lead to be caulked into both the interior and exterior portion of the joint space. The pipes were then to be tested by a hydraulic pressure of 3 pounds per square inch, and if the leakage in a 100-foot length of pipe should exceed a quarter of a gallon per hour for each foot of pipe "the joints shall be recaulked, and such other additional measures taken as may be necessary to reduce the leakage to within the limit." During the year 1914, the contractor laid 13 of the 96-inch straight pipe on the north line, but not one successful test was secured by merely caulking the joints in the manner provided in the contract. The contractor resorted to various expedients to reduce the leakage to within the required limit. He tried covering the joints with clay. Pine wedges were used. The joints were surrounded with concrete collars, and the oakum was soaked in a tar preparation known as "Hydrex." None of these measures proved effective, and several witnesses called by the plaintiff testified that the design of the joints was fundamentally defective, and that nothing that the contractor could have done could have overcome the faulty design and made the joints tight. There was no denial of this testimony.

The other difficulty encountered had to do with supporting the pipes. The contract provided that the pipes should be laid on blocks consisting of 6-inch by 12-inch sound spruce timber 7 to 9 feet long. Wedges 12 inches long, of 4-inch by 4-inch spruce, were to be placed on the blocking to hold the pipes in position, "and any blocking that has been sunk too deep shall have additional blocking placed upon it to support the pipes at the required elevation." This method proved effective as to a portion of the pipe that was laid, but as the work progressed, and extended to the 84-inch pipe on the north line of specials or fingers, it was found that the bottom was...