Valentini v. City of Adrian, 36

• Decision Date: 28 December 1956
• Docket Number: No. 36,36
• Citation: 347 Mich. 530,79 N.W.2d 885
• Parties: Rudolph A. VALENTINI, Plaintiff, Cross-Defendant and Appellee, v. CITY OF ADRIAN, a Municipal Corporation, Defendant, Cross-Plaintiff and Appellant.
• Court: Michigan Supreme Court

Page 885

79 N.W.2d 885

347 Mich. 530

Rudolph A. VALENTINI, Plaintiff, Cross-Defendant and Appellee, v. CITY OF ADRIAN, a Municipal Corporation, Defendant Cross-Plaintiff and Appellant.

No. 36.

Supreme Court of Michigan.

Dec. 28, 1956.

Miller, Canfield, Paddock & Stone, Detroit, Edward N. Mack, Adrian City Atty., Adrian, of counsel, for defendant, cross-plaintiff and appellant.

Baldwin & Walker, Adrian, Rollin D. Shull, Detroit, for plaintiff, cross-defendant and appellee.

Paul T. Dwyer, Corp. Counsel, Helen Miller Smith, Asst. Corp. Counsel, Detroit, for City of Detroit, a municipal corporation.

Before and Entire Bench.

BOYLES, Justice.

In this case the plaintiff, a sewer contractor, brought suit against the defendant city for damages claimed to have been caused by the excessive cost of constructing a sewer for the city, on account of the city's having misrepresented the character of subsoil conditions, known to the defendant city, namely, quicksand and excessive water. Plaintiff claimed this resulted in his low construction bid for the project and that the unexpected subsoil conditions caused delay, and greatly increased the cost of constructing the sewer. The defendant city filed a cross-claim for damages claimed by it to have resulted from plaintiff's delay, for failure to entirely complete the project; and for the anticipated cost to the city of completing the project.

Issues were joined, considerable testimony taken before a jury, and the court submitted the respective claims of the parties to the jury under appropriate instructions, to decide the disputed questions of fact. The jury returned a verdict for the plaintiff in the sum of $115,741.15, but did not announce any verdict on the cross-claim of the city. However, we may assume that the jury, in rendering its verdict of $115,741.15 for the plaintiff, followed the instruction of the court in that regard, concerning which neither party claims error. The court had charged the jury:

'Now briefly, in summary, you should * * * first determine whether or not the plaintiff is entitled to any damages on his declarations, and if so, how much.

'You should next determine whether or not defendant is entitled to any damages on its claim for damages, and if so, how much.

'Either of these determinaton may come out to a figure of zero or nothing. After making these two determinations you should subtract the two figures, even though one figure may be a zero, and allow to the party suffering the most damages, if any, the amount of the difference, if any.

* * *

* * *

'If you find that neither party is entitled to damages, you will return and announce to the court, your foreman or forewoman speaking, 'We find no cause of action for either party.''

The defendant city (cross-plaintiff) has appealed from the judgment entered for the plaintiff.

Previous to 1950 the city had employed consulting engineers and obtained a master plan for a municipal sewer system. A part of the plan was the construction of an addition to the sewer system of about 8,600 feet across what is known as the Sunnyside area, terminating at the city disposal plant. There had previously been two sewers built in this area.

In 1950 the city solicited bids for the construction of said additional sewer across the Sunnyside area. The plaintiff obtained from the city's consulting engineers and examined a copy of the proposed plans and specifications and spent some time examinating the job, but did not make borings or otherwise examine subsoil conditions. The city's proposed plans and specifications which were on file included the following statements:

'Construction Conditions. It is required that each bidder will examine the drawings and specifications for this work and make a personal examination of the site of the proposed work and its surroundings. * * *

'Sub-soil Conditions. Borings have been made and logs thereof are recorded on the drawings. ¹ This information is offered to the bidder merely as evidence and the bidder himself must assume entire responsibility for any conclusions which he may draw from it.'

Plaintiff's bid was accepted, and a formal contract was executed. Thereafter, in constructing the sewer, the plaintiff encountered unusual quantitles of quicksand and excessive subsoil water conditions which had not been shown on the plans and specifications on file for the sewer, as exhibited by the city; information as to which, although known to it, had been withheld by the city.

The plaintiff encountered some quicksand in about 1,500 feet of the length of the entire job, which finally prevented the usual construction methods, and finally caused the parties to agree to make additional borings to determine the extent of the quicksand area. It led to an agreement to change part of the route, thereby attempting to by-pass the unfavorable subsoil conditions, which, however, was not entirely successful.

The subsoil quicksand and excessive water conditions which seriously hampered the plaintiff's building the sewer had been known to the city for several years, having been disclosed by borings in connection with previous sewer projects in this area, for the knowledge of the unfavorable quicksand and water conditions was shown to be in the city's possession through records previously made by borings made by the engineer employed by the city. The quicksand subsoil was well known to the current foreman of the public works department who had served four years as city commissioner of public works, from 1945 to 1949 (the instant contract was executed in 1950). He testified to previous trouble with quicksand in sewer construction in this area, and that he had known about the quicksand condition for years, in his official capacity with the city.

It was not necessary that the borings should conform to the exact route of the proposed sewer, or be at all times at the same depth. They were, however, in the area to be traversed by the proposed sewer, and some of them were on the proposed route. The fact that the exact route which plaintiff was to follow was changed, during construction, by agreement of both parties, thereby attempting to by-pass the unfavorable subsoil conditions encountered on the route, indicates that these conditions were recognized by both parties as a hazard to the construction.

The withholding by the city of its knowledge of the known conditions, resulting in excessive cost of constructions, forms an actionable basis for plaintiff's claim for damages. Nor does the requirement that the contractor examine the specifications and make a personal examination of the site bar the plaintiff from recovering damages caused by the undisclosed subsoil conditions.

The testimony fairly establishes that the city, through its consulting engineers, had knowledge of the unfavorable subsoil conditions; that these conditions were not made known to the plaintiff; that as a result of encountering these unfavorable subsoil conditions of quicksand and excessive water, plaintiff's construction of the sewer was delayed and resulted in the greatly increased costs of construction for which the plaintiff claims damages. The evidence supports the jury's conclusions to that effect, and the verdict was not contrary to the great weight of the evidence.

The principal claim of the defendant city (appellant) for reversal is that the city's withholding of information as to the quicksand and unfavorable subsoil conditions does not constitute an actionable misrepresentation of facts, as a matter of law. In that connection, the appellant relies largely on the following provisions in the city's advertisement and proposal for bids, which were included in the contract itself, and which, for emphasis, are here repeated:

'Construction Conditions. It is required that each bidder will examine the drawings and specifications for this work and make a personal examination of the site of the proposed work and its surroundings. * * *

'Sub-soil Conditions. Borings have been made and logs thereof are recorded on the drawings. This information is offered to the bidder merely as evidence and the bidder himself must assume entire responsibility for any conclusions which he may draw from it.'

In Hersey Gravel Co. v. State Highway Department, 305 Mich. 333, 9 N.W.2d 567, 570, 173 A.L.R. 302, the plaintiff highway construction contractor filed in the State court of claims a claim against the State highway department for damages resulting from a claimed breach of contract for construction of a State highway in Baraga county. Before making a bid for the job, the plaintiff obtained plans and specifications from the highway department. The blueprints contained notations of soil conditions made as the result of investigations conducted by the district soils engineer of the department, by digging test holes and taking soundings. The plaintiff encountered subsoil conditions (rock), not shown, or disclosed to the plaintiff, although known to the department. The rock conditions resulted in an increased cost of construction. As in the case at bar, the State relied on a provision in the blueprints, supplemented by the specifications, which said:

"Soil notations shown on the plans are for information only and shall not be construed to relieve bidders of their responsibility to satisfy themselves by examining the site of the proposed work as to the actual soil conditions."

In the Hersey case the plaintiff contractor had judgment in the court of claims, which was affirmed by a majority opinion of this Court, from which we quote as follows:

'This provision put plaintiff on notice, but the notations on the plans had the effect of also advising plaintiff that an investigation had been made by the highway department of the character of the soil along the entire proposed highway. The testimony shows that this investigation extended over a considerable period of time. * * * Plaintiff complied with the requirements of the proposal...