United States v. Spearin Spearin v. United States

Decision Date09 December 1918
Docket NumberNos. 44,45,s. 44
Citation39 S.Ct. 59,248 U.S. 132,63 L.Ed. 166
CourtU.S. Supreme Court

Messrs. Frank W. Hackett, of Washington, D. C., and Charles E. Hughes, of New York City, for Spearin.

Mr. Assistant Attorney General Thompson, for the United States.

Mr. Justice BRANDEIS delivered the opinion of the Court.

Spearin brought this suit in the Court of Claims demanding a balance alleged to be due for work done under a contract to construct a dry dock and also damages for its annulment. Judgment was entered for him in the sum of $141,180.86 (51 Ct. Cl. 155), and both parties appealed to this court. The government contends that Spearin is entitled to recover only $7,907.98. Spearin claims the additional sum of $63,658.70.

First. The decision to be made on the government's appeal depends upon whether or not it was entitled to annul the contract. The facts essential to a determination of the question are these:

Spearin contracted to build for $757,800 a dry dock at the Brooklyn Navy Yard in accordance with plans and specifications which had been prepared by the government. The site selected by it was intersected by a 6-foot brick sewer; and it was necessary to divert and relocate a section thereof before the work of constructing the dry dock could begin. The plans and specifications provided that the contractor should do the work and prescribed the dimensions, material and location of the section to be substituted. All the prescribed requirements were fully complied with by Spearin; and the substituted section was accepted by the government as satisfactory. It was located about 37 to 50 feet from the proposed excavation for the dry dock; but a large part of the new section was within the area set aside as space within which the contractor's operations were to be carried on. Both before and after the diversion of the 6-foot sewer, it connected, within the Navy Yard but outside the space reserved for work on the dry dock, with a 7-foot sewer which emptied into Wallabout Basin.

About a year after this relocation of the 6-foot sewer there occurred a sudden and heavy downpour of rain coincident with a high tide. This forced the water up the sewer for a considerable distance to a depth of 2 feet or more. Internal pressure broke the 6-foot sewer as so relocated, at several places; and the excavation of the dry dock was flooded. Upon investigation, it was discovered that there was a dam from 5 to 5 1/2 feet high in the 7-foot sewer; and that dam, by diverting to the 6-foot sewer the greater part of the water, had caused the internal pressure which broke it. Both sewers were a part of the city sewerage system; but the dam was not shown either on the city's plan, nor on the government's plans and blueprints, which were submitted to Spearin. On them the 7-foot sewer appeared as unobstructed. The government officials concerned with the letting of the contract and construction of the dry dock did not know of the existence of the dam. The site selected for the dry dock was low ground; and during some years prior to making the contract sued on, the sewers had, from time to time, overflowed to the knowledge of these government officials and others. But the fact had not been communicated to Spearin by any one. He had, before entering into the contract, made a superficial examination of the premises and sought from the civil engineer's office at the Navy Yard information concerning the conditions and probable cost of the work; but he had made no special examination of the sewers nor special inquiry into the possibility to the work being flooded thereby, and had no information on the subject.

Promptly after the breaking of the sewer Spearin notified the government that he considered the sewers under existing plans a menace to the work and that he would not resume operations unless the government either made good or assumed responsibility for the damage that had already occurred and either made such changes in the sewer system as would remove the danger or assumed responsibility for the damage which might thereafter be occasioned by the insufficient capacity and the location and design of the existing sewers. The estimated cost of restoring the sewer was $3,875. But it was unsafe to both Spearin and the government's property to proceed with the work with the 6-foot sewer in its then condition. The government insisted that the responsibility for remedying existing conditions rested with the contractor. After 15 months spent in investigation and fruitless correspondence, the Secretary of the Navy annulled the contract and took possession of the plant and materials on the site. Later the dry dock, under radically changed and enlarged plans, was completed by other contractors, the government having first discontinued the use of the 6-foot intersecting sewer and then reconstructed it by modifying size, shape and material so as to remove all danger of its breaking from internal pressure. Up to that time $210,939.18 had been expended by Spearin on the work; and he had received from the government on account thereof $129,758.32. The court found that if he had been allowed to complete the contract he would have earned a profit of $60,000 and its judgment included that sum.

The general rules of law applicable to these facts are well settled. Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered. Day v. United States, 245 U. S. 159, 38 Sup. Ct. 57, 62 L. Ed. 219; Phoenix Bridge Co. v. United States, 211 U. S. 188, 29 Sup. Ct. 81, 53 L. Ed. 141. Thus one who undertakes to erect a structure upon a particular site, assumes ordinarily the risk of subsidence of the soil. Simpson v. United States, 172 U. S. 372, 19 Sup. Ct. 222, 43 L. Ed. 482; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762. But if the contractor is bound to build according to plans and...

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