United Const. Co. v. Town of Haverhill, NH

• Decision Date: 09 November 1925
• Docket Number: No. 62.,62.
• Parties: UNITED CONST. CO. v. TOWN OF HAVERHILL, N. H., et al.
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 538 (1925)

UNITED CONST. CO. v. TOWN OF HAVERHILL, N. H., et al.

No. 62.

Circuit Court of Appeals, Second Circuit.

November 9, 1925.

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M. P. Maurice, of Brattleboro, Vt., and Louis E. Wyman, of Manchester, N. H., for plaintiff in error.

Charles H. Darling, of Burlington, Vt., and Raymond U. Smith, of Woodsville, N. H., for the defendants in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

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

Upon the verdict we must assume that the defendant had not performed its promise to excavate to the solid ledge, and this was unquestionably a breach which it must excuse. It seeks to excuse the breach because of the representation in the plans and specifications that piers of the prescribed dimensions would reach to solid ledge and that it need not excavate further. The towns retort that the plans represented nothing of the kind, and that, if they did, the defendant had undertaken to be responsible for the foundations and had no right to rely upon the plans.

The last position of the towns is certainly untenable under the most recent decisions of the Supreme Court. If the plans and specifications were in fact a representation as to the character of the foundation at that depth, the general engagement of the defendant to be responsible for foundations does not excuse the towns for the misrepresentation, but, on the contrary, the misrepresentation itself excuses the defendant from the performance of its promise to excavate to solid ledge.

These cases are Hollerbach v. U. S., 233 U. S. 165, 34 S. Ct. 553, 58 L. Ed. 898; U. S. v. Spearin, 248 U. S. 132, 39 S. Ct. 59, 63 L. Ed. 166; U. S. v. Atlantic Dredging Co., 253 U. S. 1, 40 S. Ct. 423, 64 L. Ed. 735. The contractor's undertaking was different in each one, and in none was it exactly like the defendant's agreement in the present case. However, the result depended in no instance upon the exact language used, though at least in U. S. v. Atlantic Dredging Co., this was as broad in effect as here. All the contracts attempted to put upon the contractor the duty of satisfying himself as to the physical conditions surrounding his work; all were held insufficient in the face of a representation made by the public authorities, who must be understood to have had a better opportunity to know.

The case of Christie v. U. S., 237 U. S. 234, 35 S. Ct. 565, 59 L. Ed. 933, is akin; but there the United States kept back information which would have disclosed the truth, and the result apparently depended upon that circumstance. It is not quite apparent why that should not have been taken as the ground of decision in U. S. v. Atlantic Dredging Co.; but, though it is mentioned in the opinion, we read the case as falling within the general doctrine most broadly laid down by Mr. Justice Brandeis in U. S. v. Spearin, at pages 136, 137 (39 S. Ct. 59), which we understand to be the authoritative declaration of the court. This understanding of the cases we share with the Circuit Court of Appeals for the Third Circuit, Passaic, etc., Com'rs v. Tierney, 1 F.(2d) 304. There must, we should suppose, be some form of words by which a contractor could engage to assume all risks of the terrain, and absolutely to execute the work, notwithstanding what he might be told by the public authorities. However, it is clear that a rigorous construction of such general clauses is discountenanced, and that, if the contractor is to be bound so absolutely, it must be by...