#### R. A. GRIEFEN v. THE UNITED STATES.

[No. 29562.

Decided January 7, 1908.]

*On the defendants' Demurrer.*

The petition shows that a building contract required the contractor to check all drawings furnished him and promptly notify the engineer in charge of discrepancies discovered. Also that bidders were to examine the site and inform themselves of actual conditions. The petition also alleges a misleading representation contained in a circular issued by the Government to prospective bidders saying, “ *it is considered safe to estimate on an average of not more than three feet of mud below the elevation given.”*The claimant seeks to recover damages caused by a greater depth of mud.

I. A circular issued by Government engineers to prospective bidders saying, with reference to the foundation of a building to be erected,’ “ *From previous observations it is considered safe to estimate on an average of not more than three feet of mud*” is upon its face an estimate and not a warranty. The rule of *caveat emptor*applies as to buyer and seller, and requires the bidder to examine for himself whether the estimate is correct. Especially is this so when other provisions of the contract require him to examine the site of the proposed building and inform himself thoroughly of the actual conditions.

II. A claim for damages on account of the error of the Government engineers in the location of a building can not be maintained where the contract made it the duty of the contractor to verify all measurements and figures in drawings furnished to him and the loss was caused by his neglect to do so.

*108
      *The Reporters'*statement of the case:

The averments of the petition will be found in the opinion of the court.

*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the demurrer:

It is patent that the “ circular of information ” was in no sense or degree a guaranty of the conditions described. No part of the information therein contained was carried into the contract in any shape or form. It was simply what it purports on its face to be — a “ circular of information.” Claimant may have relied upon it as being correct, but if he did so it was at his own risk. Paragraph 90 of the specifications, which claimant also had before him, is as follows:

“ 90. *Examination of site.-*— -Intending bidders are expected to examine the site of the proposed building and inform themselves thoroughly of the actual conditions and requirements before submitting proposals.”

If the claimant, instead of adopting this suggestion, chose to rely on “ information ” which was not a part of the specifications, he must take the consequences resulting from any inaccuracies therein. If he was relying upon this circular of information, why did he not have a clause inserted in the contract guaranteeing upon the part of the United States, or at least representing, that there were not more than 3 feet of mud to be found over the site of the foundation? This allegation comes clearly withing the principle announced by the Supreme Court in the case of *Simpson*v. *The United States*(172 U. S., 372-379).

The allegation of the petition with reference to the mistake in locating the building is to the effect that the United States civil engineer staked off the location of the building, but in doing so made an error which was not discovered by the claimant until after the building was in process of construction. The petition is indefinite and uncertain as to the effect this error may have had upon the cost to the claimant of performing the contract. It does not appear from the allegations ivhether work which had been done on the foundation had to be done over again at the proper place, or *109whether the buildings were completed upon the site staked off by the engineer, and it does not matter, so far as the consideration of the question raised in this case is concerned, what the facts were. Admitting that the civil engineer made an error in setting his marks or stakes for the foundation, and that the claimant, assuming that these lines were correctly laid down, began the building operations, and then, discovering the mistake, had to change the location, thus losing the labor and material bestowed upon the work in the mistaken location, it is submitted that he has no grounds of complaint against the United States on account of any loss sustained thereby.

It was the business of the claimant to check over the drawings furnished him and to be responsible for the lines of his work. Had he observed the things required of him in the specifications, he would have discovered, before he had expended any labor or furnished any material in connection with the construction work, that the lines laid down by the civil engineer for the location of the building were in error. Therefore, how can he be heard to complain of a loss which he might have and would have avoided by a reasonably careful observance of his contractual obligations?

It is further alleged in the petition that, because of the foregoing alleged errors, together with alleged delay of the United States in deciding upon the execution of the work and “ other delays and changes,” the claimant was delayed in the completion of his contract for a period of six months beyond the time within which he would have been able to complete it but for said delays and changes, which resulted to his damage in the sum of $9,000. This allegation is insufficient to constitute a cause of action against the United States for the reasons already stated. ■

*Mr. F. S. Bright*opposed:

1. It may be true that there is something about a contract with defendant that relieves it from all the ordinary obligations between ordinary contractors, but it seems to claimant to be beyond dispute that if one person had said to another “ I want you to build me a house. This is my ground. I *110have filled it up. There are certain things used in the fill. The levels are as I give them to you. It is ‘ safe ’ to rely on this information,” and the builder had built the house and by the erroneous information given him had suffered damages, the owner of the land would after such a statement as is given above have been estopped from saying: “ You ought to have made more examination than you did.” Perhaps the United States is not so estopped.

2. Claimant would be entitled to recover for the delay as claimed even if the court should hold that there was no warranty of conditions by the Government in the information it gave bidders. If for the sake of argument it were admitted that claimant, because of the misinformation given by defendant, was compelled to change its construction and had to bear the expense of that change it certainly can not be also contended that, relying upon the information of the defendant and commencing to build upon that information and having to change its construction with consequent great delay, that it is also required to bear the cost of the delay resulting from this and from other delays enumerated in paragraph 9 of the petition, and it is respectfully submitted that the claim for delay is well pleaded.

Finally, the court is asked to bear in mind that in order to find in behalf of the defendant it must in the present state of the case do so upon the theory that, as stated in the petition: “The only knowledge and information in existence relating to the contours of the ground were in the possession of the Government and were supplied bidders in the letter above set out (the circular of information) and the accompanying blue print.”

3. The wrong location of the building was given as one of the added causes of the delay for which claimant was seeking damages, and if the court holds that the demurrer is not well grounded claimant believes that it can offer satisfactory proof on this point when the testimony comes to be taken; but the first question to be disposed of, and the vital one to the case, is claimant’s right to rely on the representations that were made by defendant, as they were made.

*111Barney, J.,

delivered the opinion of the court:

This is a suit to recover damages growing out of a contract made in 1901 for the erection of buildings for the Government in the navy-yard at Portsmouth, N. H. The claim for • damages, as set out in the petition, grows out of an alleged misrepresentation by the officers of the Government, relied upon by the claimant, as to the amount of mud to be removed in the construction of the foundation of the building; also on account of damages incurred by the fact that after the claimant had commenced the construction of the building, and had been to considerable expense in that behalf, a change of location was made necessary for the reason that the location furnished by the civil engineer of the United States was not the location as shown upon the plans furnished bidders by the Government. The petition also contains a count upon *quantum meruit*for extra work performed and extra materials furnished, at the request of the Government, in the construction of the building.

The defendants demurred to the petition generally, and also specially to the whole thereof, excepting the claim upon *quantum meruit*as above stated, upon the ground that the same does not state facts sufficient to constitute a cause of action; and the issue of law arising upon such demurrer is before the court for decision. Upon the argument the attorney appearing for the defendants conceded that the general demurrer, so far as it applied to the cause of action upon *quantum*meruit, was not well taken, and the court agrees with him in that concession. For that reason the remainder of the petition only will be considered in this opinion.

The contract between the parties for the construction of the building is attached to the petition as an exhibit, but only the following provisions of the same, which are contained in the specifications according to which bids were made and the work was done, and which was made a part of the contract, are deemed material to the decision of this case:

> “ 24. The contractor shall check all drawings furnished him immediately on their receipt and promptly notify the engineer in charge of any discrepancies discovered therein. Figures marked on drawings shall in general be followed in *112preference to scale measurements; but the contractor must compare all drawings and verify the figures before laying out the work, and will be held responsible for all errors therein that otherwise might have been avoided. Larger scale drawings shall in general govern smaller scale drawings. In all cases where dimensions are governed by conditions already established, the contractor must depend entirely upon measurements taken by himself, scale or figured dimensions to the contrary notwithstanding. But no deviation from the specified dimensions will be allowed unless authorized by the civil engineer in charge. The contractor will be held responsible for the lines and levels of his work, and he must combine all materials properly.

> * * *#** ❖ *rfi*" *

> “ 90. Examination of site. Intending bidders are expected to examine the site of the proposed building, and inform themselves thoroughly of the actual conditions and require-' ments before submitting proposals.”

The misleading representation complained of by the claimant is contained in a circular of information issued by the Government to prospective bidders for the contract for the erection of the building and is as follows:

> “ From previous observations it is considered safe to estimate on an average of not more than three feet of mud below the elevation given.”

It is contended by the claimant that this extract from the circular of information issued by the Government was a representation amounting to a warranty as to the depth of mud to be excavated in the erection of the building, and that he is entitled to recover for the cost of the excavation of a greater depth.

If no consideration whatever was given to the language contained in the contract upon the subject of the site of the building, it is very doubtful whether the statement as to depth of mud contained in the circular of information referred to can be considered as a representation amounting to a warranty. Upon its face it is a mere “ estimate,” and the rule of *caveat erupt or,*as applicable to buyer and seller, would seem to require the bidder to examine for himself to determine whether this “ estimate ” was correct or not. That *113or doing so is not alleged. When we turn to the specifications, which the claimant also had before him before bidding, paragraph 90 of which has already been quoted, all doubt upon the subject is removed. He is there warned to examine for himself as to the site of the proposed building and to inform himself *“*thoroughly ” of the actual conditions and requirements before bidding. He was in substance told: “ We *believe*certain conditions as to the mud exist; but look carefully for yourself before bidding, so as to be sure.”

general rule that all prior negotiations are merged in the contract afterwards entered into, and which would exclude any consideration whatever of the circular of information referred to, might also be invoked in this connection, so that from no point of view can the contention of the claimant to recover damages, occasioned by alleged misrepresentation, be sustained.

For substantially the same reasons the claim for damages on account of the error of the government engineers in the location of the building is also without foundation. Paragraph 24, above quoted, made it the duty of the claimant to check and verify all of the measurements and figures embraced in the drawing furnished, and if he had done so the mistake in location complained of would not have occurred.

Citation of authorities upon the subject under discussion is hardly necessary, but the following cases are directly in point: *Simpson*v. *United States*(172 U. S., 372 *s. c.*31 C. Cls. R., 217); *Brawley*v. *United States*(96 U. S., 105).

except as to the cause of action upon *quantum*meruit, is sustained with leave to the claimant to amend the same as he may be advised at any time within sixty days.

so as to the cause of action upon *quantum*meruit, is overruled,