Simpson v. United States

• Decision Date: 03 January 1899
• Docket Number: No. 51,51
• Citation: 19 S.Ct. 222,43 L.Ed. 482,172 U.S. 372
• Parties: SIMPSON et al. v. UNITED STATES
• Court: U.S. Supreme Court

172 U.S. 372

19 S.Ct. 222

43 L.Ed. 482

SIMPSON et al.

v UNITED STATES.

No. 51.

January 3, 1899.

The essential facts as found by the court below are summarized as follows: Pursuant to an act of congress appropriating a stated sum for building two 'timber dry docks to be located at such navy yards as the secretary of the navy may indicate' (24 Stat. 484), the navy department on April 19, 1887, advertised for proposals for the building of two dry docks, to be located, one at the Brooklyn and the other at the Norfolk Navy Yard. The advertisement, while pointing out the general nature of the structures and their dimensions, contained no detailed plan of the contemplated work, but announced that 'dry-dock builders are invited to submit plans and specifications with proposals for the entire construction and their completion in all respects,' and, moreover, it was said, 'bidders will make their plans and specifications full and clear, describing the kinds and qualities of the materials proposed to be used.' Besides, the advertisement stated that, 'for information in regard to the location and site of the docks, bidders are referred to the commandants of the Brooklyn and Norfolk Navy Yards.' On May 23d, pending the publication, the navy department addressed to the commandant of the Brooklyn Navy Yard the following letter:

'To enable the dry-dock builders who may apply at the yard under your command for information concerning the proposed new timber dry dock, particularly regarding the foundation of the site selected for the dock, I am instructed by the chief of the bureau to request you to direct the civil engineer of the yard to have the necessary borings made at once, with a view of ascertaining the nature of the soil to be excavated for the pit or basin of the dock, as well as to what depth, if any, below the line of water mark it will be necessary to have the piling driven to secure a proper foundation for the structure.'

Conforming to these instructions, Mr. Asserson, a civil engineer attached to the navy department, made an examination of t e soil, making borings to a depth of from 39 to 46 feet at a distance of 50 feet along a certain length in the middle of a portion of the ground of the navy yard. The result of these borings was delineated on a profile plan purporting to show the character of the underlying soil. It may be conceded that this plan indicated that the soil at the point referred to was stable and contained no quicksand. Simpson & Co., who were experienced dock builders, applied for information as to the proposed site, and a copy of the plan was handed to the firm. Simpson & Co. never knew of the above letter until after this suit was brought, and they did not intimate to any one that the bid which they proposed to submit for doing the work was to be conditioned on the existence in the soil of the site to be selected of the characteristics indicated by the profile plan. It is true, however, that Simpson & Co., in making up their estimate and in preparing their specifications, took into view the presumed condition of the soil, and that the amount of their bid was made up upon the assumption that the soil underlying the dock would prove to be like that indicated by the plan.

In June, 1887, Simpson & Co. bid for the construction of the docks. The first two sentences of their proposal were as follows:

'The undersigned, J. E. Simpson & Co., contractors and builders of Simpson's patent timber dry docks, of the city of New York, in the state of New York, hereby offers to furnish, under your advertisement dated April 19, 1887, and subject to all the requirements of the same, and of the specifications, instructions, and plans to which it refers, two timber dry docks of like dimensions, to be built in accordance with plans and specifications herewith submitted. One of said dry docks to be located at the United States Navy Yard, Brooklyn, in the port of New York, and the other at the United States Navy Yard, Portsmouth, in the port of Norfolk, Va., upon available sites to be provided by the government, for the sum of one million and sixty-one thousand six hundred ($1,061,600) dollars, United States currency.'

The price asked for the two docks was very near the sum authorized by congress to be expended for the purpose.

The specifications referred to were prepared by the firm, and contained the following recital:

'Location. These dry docks shall be located as follows: One at the United States Navy Yard, Brooklyn, in the port of New York, and the other at the United States Navy Yard, Portsmouth, in the port of Norfolk, Va., upon available sites to be provided by the government. The length of each dry dock, respectively, shall be five hundred (500) feet inside of head to outer gate sill.'

Such other portions of the specifications as are material to be noticed are contained in the subdivision headed 'General Construction,' and are as follows:

'Piles. All foundation, brace, and crosscap piles shall be of sound spruce or pine, not less than twelve inches diameter at butt and six inches at top, and of such length as may be required for the purpose, and well driven to a firm bearing.

'Sheet piling for cut-offs shall be of sound spruce, pine, or other suitable material, four inches and five inches in thickness, as shown on plans, dressed to a uniform thickness, grooved and fitted with white-pine tongues, driven close, and to such depth as may be found necessary to make good work, and closely fitted to square piles at intersections.

* * * * * * * *

'Should the character of the bottom be found such as to warrant a modification of the pile system of floor construction, a concrete bed of not less than six feet in thickness may be substituted for the foundation piles, and the floor stringers and cross timbers imbedded therein and firmly secured thereto with iron bolts and anchors.'

The bid was accepted, and a written contract was executed. In this contract, recital was made of the advertisement for proposals, the making of the bid with accompanying specifications, a d the acceptance thereof; and these documents thus referred to were annexed, and made a part of the contract.

The contract contained in its first clause the following:

'The contractors will, within twenty days after they shall have been placed in possession and occupancy of the site by the party of the second part, which possession and occupancy of the said site during the period of construction, and until the completion and delivery of the work hereinafter mentioned, shall be secured to the contractors by the party of the second part, commence, and within twenty-four calendar months from such date, construct and complete, ready to receive vessels, a timber dry dock, to be located at such place on the water line of the navy yard, Brooklyn, New York, as shall be designated by the party of the second part, and will, at their own riskland expense, furnish and provide all labor, materials, tools, implements, and appliances of every description—all of which shall be of the best kind and quality adapted for the work as described in the specifications—necessary or requisite in and about the construction of said dry dock.'

The seventh clause of the contract is stated in the margin.¹

In addition, penalties were stipulated for delay in the performance of the work, and a discretion was vested in the secretary of the navy to allow an extension of time for any failure to complete the dock within the contract period.

The work was to be paid for in installments, upon proper estimate, as it progressed, and 10 per cent. was to be retained by the government until its final completion.

The construction was commenced in Vovember, 1887, and after considerable labor had been expended and material used, 'about August 31, 1888, it first became apparent that a portion of the dry-dock structure had sunk and moved inward towards the excavation, and had thereby sustained damage, and that this damage was caused by encountering a...