Tobin Quarries v. United States, 46433.

• Decision Date: 11 July 1949
• Docket Number: No. 46433.,46433.
• Citation: 84 F. Supp. 1021,114 Ct. Cl. 286
• Parties: TOBIN QUARRIES, Inc. v. UNITED STATES.
• Court: U.S. Claims Court

84 F. Supp. 1021

114 Ct. Cl. 286

TOBIN QUARRIES, Inc. v. UNITED STATES.

No. 46433.

United States Court of Claims.

July 11, 1949.

Frank L. Martin, (John M. Martin, and Martin & Martin, on the brief), for plaintiff.

John B. Miller, Washington, D. C., H. G. Morison, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.

MADDEN, Judge.

On April 11, 1940, plaintiff entered into a contract with defendant to construct a rock-fill dike extending from Moose Creek Butte to Tanana River in Alaska. In the construction of this dike the plaintiff was required to get the rock from Moose Creek Butte, which was represented to be "a solid rock formation." The specifications required that 90 percent of the rock placed in the dike should range in size from ½ cubic foot to 1 cubic yard, and that rock weighing less than 25 pounds should not exceed 10 percent of the total.

It turned out that the rock in the butte was quite friable, and it proved impossible to get rock of the required size without excessive waste. The contractor called this condition to the attention of the contracting officer and asked for a change in the specifications and for compensation for all the rock excavated, whether placed in the dike or not. The contracting officer made an examination of the site and issued Change Order 1, which permitted the placing in the dike of rock weighing less than 10 pounds, instead of 25 pounds, to the extent of 15 percent of the total volume, but the Change Order made no allowance for the excessive waste already encountered.

However, even under this Change Order it was found impossible to secure rock of the required sizes without excessive waste, and the contracting officer then issued Change Order 2, which further modified the specifications to permit the use of quarry-run rock, irrespective of size, except between certain stations in the dike. This Change Order, however, required both faces of the dike to be armored with rock not less than ½ cubic foot in size and with smaller rock, which was not to exceed, however, 15 percent of the volume. Later, the plaintiff asked for a further modification of the specifications due to its inability to secure the required sizes, and finally Change Order 3 was issued eliminating the necessity for armoring the dike on its down-stream face, as required in Change Order 2, except between certain stations. The contract was completed under this Change Order.

The plaintiff sues for its excess costs incurred prior to the issuance of Change Order 2, and also from the time the cost of performance under Change Order 2 became excessive until it was relieved from its requirements by Change Order 3. It also sues for another item to be mentioned later.

The plaintiff sues on the ground that the Government misrepresented the character of the rock in the butte, and also that the plaintiff was entitled to an equitable adjustment of compensation under Article 4 of the contract, because it encountered unforeseen conditions during the progress of the work.

There was no intentional misrepresentation on the part of the Government. There was innocent misrepresentation, but that is only another way of saying that the Government, as well as the plaintiff, was unaware, at the time the contract was made, of the true character of the rock in the butte. The fact that the plaintiff was required by the contract to get its rock from the butte shows that both parties supposed that the rock to be obtained there was suitable for the work, and could be used on a reasonably economical basis. Neither party expected that, to get proper rock from the butte, great quantities of material would have to be picked over, most of which would have to be disposed of as waste. We think, therefore, that the problems of misrepresentation, and of unforeseen conditions not contemplated by the parties really constitute a single problem. And we think that unforeseen conditions, within the meaning of Article 4 of the contract were encountered.

The Government urges that the following...