Pitt Const. Co. v. City of Alliance, Ohio

• Decision Date: 09 April 1926
• Docket Number: No. 4098.,4098.
• Parties: PITT CONST. CO. v. CITY OF ALLIANCE, OHIO.
• Court: U.S. Court of Appeals — Sixth Circuit

12 F.2d 28 (1926)

PITT CONST. CO. v. CITY OF ALLIANCE, OHIO.

No. 4098.

Circuit Court of Appeals, Sixth Circuit.

April 9, 1926.

COPYRIGHT MATERIAL OMITTED

H. C. Koehler, of Alliance, Ohio, and W. B. Turner, of Dayton, Ohio (E. H. & W. B. Turner, of Dayton, Ohio, and Hart & Koehler, of Alliance, Ohio, on the brief), for plaintiff in error.

Luther Day, of Cleveland, Ohio (F. C. Hunter and Curtis M. Shetler, both of Alliance, Ohio, and Day & Day, of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

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

1. We see no escape from the conclusion that 328.4 is an express representation to the contractor that the proposed structure would be located with reference to the existing ground surface as shown in the cross sections thereon. The facts that this surface indication was not expressly so named every time it appeared, and that the actual distances from it up and down to the top and bottom of the new structure were not stated in figures, are immaterial. We think the drawing shows as plainly as if stated in words that the distance from the present surface of the ground down to the bottom of the structure as it is to be built is about nine feet, and, in thus stating it, the word "about" expresses the tolerance indicated by the word "approximate" on the drawing. Such tolerance cannot extend to anything like the discrepancy here shown, and there was a substantial misrepresentation, for which the city was responsible and the contractor was not.

2. The contract contained this provision: "All bidders under this contract are required before submitting bids to examine the site of the work * * * and to make all necessary investigations in order to inform themselves thoroughly as to the character of the soil and the magnitude of all the work involved, * * * and the conditions and difficulties that would be encountered in the performance of the work. * * * No plea of ignorance of conditions that exist as the result of failure to make the necessary examinations and investigations will be accepted as a sufficient excuse for any failure or omission on the part of the contractor to fulfill in every detail all the requirements of this contract, or will be accepted as a basis for any claims whatsoever for extra compensation."

It is urged that the contractor's duty to examine the premises carried an assumption by him of the risk that there might be an error of the class which developed. We think this contention unsound. Perhaps the contractor by the use of sufficient instruments and effort, or by reference to whatever elevation datum may be the accepted starting point in that locality, could have ascertained that an elevation of 1026 feet above sea level would have been 3 feet below the ground and not 9 feet below, at the point indicated for the forward bottom corner of the structure. Perhaps not. Surveyors often disagree to that extent. So, too, in the case of Hollerback v. U. S., 233 U. S. 171, 175, 34 S. Ct. 553, 58 L. Ed. 898, the contractor need have sunk only five feet to ascertain that there was rock where the specifications showed there was not; but in this case, as in that, the contractor was entitled to accept, and to formulate his bid in reliance upon, the representation of fact by the other party. In substance and effect we cannot distinguish that case from this. See also U. S. v. Smith, 256 U. S. 11, 41 S. Ct. 413, 65 L. Ed. 808, and cases cited on page 17; Faber v. New York, 222 N. Y. 255, 118 N. E. 609.

3. It developed upon the trial that the contour lines upon the general plan 328.1 would not check with the elevations given in 328.4. It was claimed, and comparison of the plans seems to indicate, that there is an average difference of something like three feet — that is to say, that the contour lines of 328.1 indicate the surface of the ground to be about three feet lower in elevation than the surface of the ground as shown on 328.4. Hence it is said that the contractor who had both these plans before...