Sartoris v. Utah Const. Co.

• Decision Date: 10 October 1927
• Docket Number: No. 5064.,5064.
• Citation: 21 F.2d 1
• Parties: SARTORIS v. UTAH CONST. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.2d 1 (1927)

SARTORIS v. UTAH CONST. CO. et al.

No. 5064.

Circuit Court of Appeals, Ninth Circuit.

August 1, 1927.

Rehearing Denied and Opinion Modified October 10, 1927.

Horace M. Street, of San Francisco, Cal., for plaintiff in error.

B. M. Aikins, of San Francisco, Cal., for defendant in error Utah Const. Co.

Ford, Johnson & Bourquin, of San Francisco, Cal., for defendant in error Southern Pac. Co.

Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

Having a contract with the defendant railroad company for the construction of a tunnel, the defendant construction company subcontracted the job to the plaintiff, A. J. Sartoris. The subcontract is dated November 15, 1922, and incorporates, as defining Sartoris' rights and obligations, the principal contract; the only difference between the two being a lower rate of compensation to the subcontractor, leaving a margin of profit to the Construction Company. Payment was to be made at a stipulated price per linear foot for excavating the tunnel, inclusive of the necessary temporary timbering, and at a specified rate per cubic yard for the concrete lining in place. Work under the contract was begun November 18, 1922, and was fully completed December 11, 1923. Both the contractor and the subcontractor were paid in full for all concrete installed, and at the contract rate per foot for the tunnel, and also for certain small extras in respect to which there was no dispute.

The controversy arises in this way: A paragraph in the specifications reads: "Part of the tunnel excavation at each end is expected to be in earth formation, and the remainder in solid rock, with possibly a short distance in loose rock, or a combination of all three." And the cross-sectional drawings conform to this expectation or assumption. In the very early progress of the work, however, the plaintiff encountered a formation of unusually fine, loose sand, which turned out to be continuous along the line of the tunnel for most of the way. It being impracticable to carry on the work in the manner originally contemplated, or to install the concrete lining strictly in accordance with the specifications and drawings, plaintiff laid the matter before the railroad company's engineer in charge, who in turn called for directions from his superiors. The upshot was that, following a conference upon the ground, between the chief engineer and two other engineers for the railroad company, and plaintiff, plaintiff was given new specifications, pursuant to which he prosecuted the work to completion. Under these specifications the concrete lining was made thicker, the tunnel bore was correspondingly enlarged, and very much more extensive timbering was required, most of which was necessarily left in the structure.

Plaintiff was paid extra for only the additional concrete, and his claim now in controversy is for the reasonable cost, said to be approximately $73,000, of the extra tunnel excavation and timbering required by the new specifications. Under the terms of the contract the price per linear foot of tunnel excavation was for all kinds of material without classification, and was to "include all temporary shoring or timbering necessary to support the tunnel while permanent lining is being placed." All such timbering was to be removed by the plaintiff before the concrete lining was placed, "unless the nature of the material encountered made it advisable, in the opinion of the railroad company's engineer," to allow certain timbering to remain. Plaintiff concedes that the timbering done was, under the circumstances, necessary to enable him to place the concrete lining, and that it was wholly impracticable to remove it.

In his complaint, plaintiff pleads his claim in two separate counts, the first as upon an express contract, and the second upon an implied contract. Trial by jury was duly waived in writing, and upon hearing the evidence the court dismissed the action. The evidence being conflicting, and having been resolved against the plaintiff, upon the question of an expressed promise to pay, he has here abandoned his first count or cause of action, and accordingly now relies solely upon the theory of an implied promise. It should be added that he seasonably presented a motion for judgment, which was denied, and also a motion for special findings of fact, with like result, and hence our review extends within certain limitations to a consideration of the evidence. Griffin v. Thompson (C. C. A.) 10 F.(2d) 127; Bank v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478.

First, the liability of the railroad company: True though it may be that it was without conclusive knowledge of the character of the formation when it let the contract, we are of the opinion that the language above quoted from the specifications is to be taken as a representation or assurance on the part of the railroad company upon which plaintiff had the right to rely. These specifications were prepared by the company, and, if ambiguous, are to be construed against it. In form it may be conceded the language is not a positive declaration of fact; but we are concerned with the effect, rather than form, and we are to assume that some meaning was intended. The only conceivable purpose of inserting the statement must have been to influence bidders and affect bids; but, if not taken as a definite assurance respecting the character of the formation, how was it expected it would influence a rational bidder? Or are we to believe that it was inserted with the thought that thereby...