Tobin Quarries v. Central Nebraska Public P. & I. Dist., Civil Action No. 57.

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Citation64 F. Supp. 200
Docket NumberCivil Action No. 57.
PartiesTOBIN QUARRIES, Inc., v. CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.
Decision Date08 January 1946

64 F. Supp. 200

TOBIN QUARRIES, Inc.,
v.
CENTRAL NEBRASKA PUBLIC POWER & IRRIGATION DIST.

Civil Action No. 57.

District Court, Nebraska, Hastings Division.

January 8, 1946.


64 F. Supp. 201

W. C. Fraser (of Crofoot, Fraser, Connolly & Stryker) all of Omaha, Neb., and John M. Martin and Frank L. Martin, both of Los Angeles, Cal., for plaintiff.

R. O. Canaday and Paul E. Boslaugh (of Stiner, Boslaugh & Stiner) all of Hastings, Neb. for defendant.

64 F. Supp. 202

DELEHANT, District Judge.

On October 26, 1945, for reasons set forth in an unpublished memorandum, the court declined to enter a summary judgment upon the motion of the plaintiff. That memorandum sufficiently recognizes the jurisdiction of the court resting on diversity of citizenship and the existence of a situation warranting the employment of the statutory procedure for a declaratory judgment. 28 U.S.C.A. § 400. The record then appeared to contain certain issues not wholly legal, which the court was unwilling abruptly to foreclose by a summary judgment. Promptly thereafter the parties stipulated in writing for the final submission of the case upon its merits on the basis of "the pleadings, exhibits and affidavits submitted in support of and in opposition to the plaintiff's motion for summary judgment and upon the argument and briefs of the parties submitted to the court on said motion." Further trial or hearing was waived by both parties.

The defendant is a public corporation erected by act of the Nebraska legislature. One of its properties is the Kingsley Dam, a large multiple purpose structure in the Western part of Nebraska. In 1944 it publicly invited competitive bidding upon certain contract work consisting of the "completion of the construction of the riprap on the upstream slope of the Kingsley Dam and abutments, the north bank of the stilling basin and on road dikes approaching the south abutment." One of the designated principal items of work in the venture was: "Furnishing and Placing Gravel or Rock Spall Filter Layer — 243,500 tons." It is with respect to that item that the present controversy has arisen. The defendant prepared and published detailed plans and specifications for the entire work, upon which the plaintiff, a Missouri corporation engaged in business as a building contractor, made the prevailing bid, resulting in a formal contract dated September 22, 1944.

Section 2.4 of the detailed specifications incorporated into the contract, is in the following language:

"Filter Layer — After the dam surface has been prepared as described above, the filter layer shall be placed. Placement of the filter layer shall follow the preparation of the dam surface within four days after the removal of the concrete riprap, except as approved in writing by the Engineer as heretofore set forth under `Removal, Break-up and Replacement of Existing Concrete Riprap'. The material for this layer shall be gravel, small quarry stone or a mixture of gravel and stone, or a mixture of gravel or stone with broken concrete blocks not exceeding 4" in greatest dimension.

"Gravel shall be clean, hard, durable pieces graded from ¼inch to 2½ inches, of a quality equal to that generally specified for first class, Portland Cement Concrete. Not more than five per cent shall pass through a No. 4 screen.

"Quarry stone shall be equal in quality to that specified below in Paragraph 2.5. As loaded in cars for shipment, not more than 5 per cent shall pass through a No. 4 screen. All stone for the filter layer shall pass between grill bars spaced four inches apart. All slab pieces of stone shall be removed.

"The filter layer shall be 15 inches in minimum thickness over the surface of the dam measured normal to the surface slope of the dam, according to grades established by the Engineer. The Contractor shall protect the filter layer throughout construction operations so that the completed riprap will rest on a filter layer of uniform thickness not less than that specified."

Touching it, the plaintiff, besides quoting the specification of gravel, alleges in the complaint that it "gives to the plaintiff the option to construct the filter layer at its option, of (1) gravel, (2) small quarry stone, (3) a mixture of gravel and stone, or (4) a mixture of gravel or stone with broken concrete blocks not exceeding four inches in their greatest dimension." The court understands the defendant to admit both the exactly quoted and the generally averred provisions of Section 2.4. (See Paragraph V of complaint and Paragraph II of answer.)

From the showings made in support of the motion for summary judgment and now before the court, it satisfactorily appears that the plaintiff, entering upon the performance of the contract, elected to furnish gravel for the filter layer, or the major portion thereof, and proceeded, and proposes to continue, to furnish gravel, of which engineers for the defendant in a series of sixteen tests by samples found that the following several percentages by way of an average throughout the tests

64 F. Supp. 203
were retained on the following respective sized screens

Retained on 2½" 2" 1½" 1" ¾" ½" No 4. Screen
                 ----- ---- ----- ----- ----- ----- ------------
                 3% 5.2% 10.2% 23.6% 34.9% 55.8% 96.7%
                

Thus 3.3% of the gravel furnished passed through a No. 4 screen.1

The defendant, through its engineer, after the work had been partially done declined to allow the plaintiff to continue to furnish the gravel thus tendered and notified the plaintiff in writing that the only filter layer prepared from gravel which would be accepted by the engineer and the defendant must comply with a gradation, in consequence of which the following several percentages would be retained on the following respective sized screens:2

Retained on 2½" 2" 1½" 1" ¾" ½" No. 4 Screen
                 ----- ------ ------- ------- ------- ------- ------------
                 0%-5% 5%-40% 20%-60% 35%-72% 44%-80% 54%-86% 95%-100%
                

Compliance with the defendant's demands for specific intermediate gradations of gravel would very substantially increase the cost to the plaintiff of its work in comparison with the cost involved in its furnishing of gravel as originally furnished and still tendered by it.

Contending that its gravel already furnished and tendered not only meets, but actually surpasses, the requirements of the specifications, and that, if the defendant now desires a specific intermediate gradation between the identified maximum and minimum size requirements it must issue a change order as contemplated in section

64 F. Supp. 204
1.31 of the specifications3 and pay the increased cost thus resulting, the plaintiff instituted this action, and in its complaint prayed for a declaratory decree, finding and decreeing that gravel of the sizes and percentages furnished and tendered by it meets its obligations under the contract; that if the defendant is unwilling to accept such gravel, the defendant is obliged by the contract forthwith to issue a change order as provided in the cited section 1.31, and for general relief and costs

The defendant, answering, maintains the propriety of its engineer's directions, and prays for a declaratory decree to the effect "that the defendant is entitled to a filter layer constructed of pieces of gravel between the sizes of ¼ to 2½ inches that have been graded and is acceptable to the engineer; * * * that the grading of the gravel pieces involves a question of fact and that any dispute with reference thereto must be referred to the engineer for settlement and that his decision thereon shall be final"; and for general relief and costs.

The contract was executed, and is to be performed, in Nebraska. The parties to it are a Nebraska corporation and a Missouri corporation which, in its performance, operates under a license to do business in Nebraska. It is, therefore, a Nebraska instrument; and the law to be administered in this controversy arising out of it is that of Nebraska, Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, which is to be sought after the fashion suggested in Yoder v. Nu-Enamel Corporation, 8 Cir., 117 F.2d 488, 489, 490.

In support of its reliance upon the declared position of its engineer, the defendant relies principally upon two features of the contract, its general prescriptions touching his authority in the matter of inspection and approval and its more specific provision for the reference to him of certain designated disputes.

The general clauses dealing with the supervisory and inspectional authority of the engineer, which the defendant cites,4 are:

"Article II

"The Contractor agrees to furnish and deliver all tools, equipment, apparatus, facilities, transportation (except freight on

64 F. Supp. 205
filter material and rock for riprap) and services, labor and material, and do all work necessary to construct and complete according to the Plans and Specifications, which are entitled `Kingsley (Keystone) Dam — Group 28D-2' and are identified by the signatures thereon of the parties to this Agreement, the work described in Group 28D-2 of his Proposal for which he was the successful Bidder. It is understood and agreed that said tools, equipment, apparatus, facilities, transportation, and services, labor and material shall be furnished, said work performed and completed as required in the Plans and Specifications under the direction and supervision of and subject to the approval of the Owner or its representatives." (Emphasis added)

"From Article III

"The Engineer will, promptly after the completion of the work, make a thorough inspection and if he finds that the work has been performed and completed in accordance

64 F. Supp. 206
with the terms of this contract, he shall so certify in writing to the Owner. If the Engineer finds said work should not be accepted, he shall so state, and shall give his reasons therefor to the Owner and the Contractor.

"The final payment shall become due and payable upon the...

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7 practice notes
  • Clark v. Continental Nat. Bank of Lincoln, Neb., Civ. No. 3-49.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • November 26, 1949
    ...v. Perry, 110 Neb. 535, 194 N.W. 455; Baylor v. Hall, 106 Neb. 786, 184 N.W. 886; Tobin Quarries v. Central Neb. P. P. & I. D., D.C.Neb., 64 F.Supp. 200, affirmed 8 Cir., 157 F.2d 482. Within that rule language of an instrument inoperative to impair or nullify a grant theretofore absolutely......
  • Wildermuth v. United States, No. 10448.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 17, 1952
    ...English Construction Co. v. United States, D.C.Del., 43 F.Supp. 313; Tobin Quarries v. Central Nebraska Public P. & I. Dist., D.C.Neb., 64 F.Supp. 200, affirmed, 8 Cir., 157 F.2d Since the Moorman decision only one court of appeals has expressed any thought of a right to consider a dispute ......
  • CENTRAL NEBRASKA PUB. P. AND I. DIST. v. Tobin Quarries, No. 13360.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 11, 1946
    ...the contentions of the parties, the facts, and the law, is reported in Tobin Quarries v. Central Nebraska P. P. & I. Dist., D. C., 64 F.Supp. 200. The defendant argues that the court erred generally and in every particular in its decree. Affirmatively the defendant 1. That the provision of ......
  • Davies v. Kahn, No. 7523.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 6, 1958
    ...the sash, argues against the defendant's interpretation. Note, Tobin Quarries v. Central Nebraska Public P. & I. Dist., D.C.Neb.1946, 64 F.Supp. 200. Should we, however, make the further assumption that the applicable specifications subject the plaintiff's goods to the architect's approval,......
  • Request a trial to view additional results
7 cases
  • Clark v. Continental Nat. Bank of Lincoln, Neb., Civ. No. 3-49.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • November 26, 1949
    ...v. Perry, 110 Neb. 535, 194 N.W. 455; Baylor v. Hall, 106 Neb. 786, 184 N.W. 886; Tobin Quarries v. Central Neb. P. P. & I. D., D.C.Neb., 64 F.Supp. 200, affirmed 8 Cir., 157 F.2d 482. Within that rule language of an instrument inoperative to impair or nullify a grant theretofore absolutely......
  • Wildermuth v. United States, No. 10448.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 17, 1952
    ...English Construction Co. v. United States, D.C.Del., 43 F.Supp. 313; Tobin Quarries v. Central Nebraska Public P. & I. Dist., D.C.Neb., 64 F.Supp. 200, affirmed, 8 Cir., 157 F.2d Since the Moorman decision only one court of appeals has expressed any thought of a right to consider a dispute ......
  • CENTRAL NEBRASKA PUB. P. AND I. DIST. v. Tobin Quarries, No. 13360.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 11, 1946
    ...the contentions of the parties, the facts, and the law, is reported in Tobin Quarries v. Central Nebraska P. P. & I. Dist., D. C., 64 F.Supp. 200. The defendant argues that the court erred generally and in every particular in its decree. Affirmatively the defendant 1. That the provision of ......
  • Davies v. Kahn, No. 7523.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 6, 1958
    ...the sash, argues against the defendant's interpretation. Note, Tobin Quarries v. Central Nebraska Public P. & I. Dist., D.C.Neb.1946, 64 F.Supp. 200. Should we, however, make the further assumption that the applicable specifications subject the plaintiff's goods to the architect's approval,......
  • Request a trial to view additional results

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