#### THE SNAKE & TRIEST COMPANY v. THE UNITED STATES.

[No. 28963.

Decided June 9, 1913.]

*On the Proofs.*

The claimants’ contract to build a wharf at the Guantanamo Naval Station, Cuba. The specifications state, *“It is thought that 'piles driven from 12 to IS feet into the bottom where the water is 25 feet deep will fill this specification, hut the Gov*
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      *emment will take no responsibility if longer piles we needed.”*No borings have been made at this site where the work is to be performed. Borings were made at another site, but the facts disclosed thereby are unknown to the claimants when they enter into this contract.

I. A mere expression of opinion by a contracting party does not constitute a warranty; and where the specifications for proposed work merely state what is thought by the contracting officers concerning the length of piles to be used in the construction and then adds, “ *but the Government will take no responsibility if longer piles we needed,”*the expression of opinion was not misleading to the contractors nor a misrepresentation amounting to warranty or fraud.

II. The fact that borings had been made at a proposed site half a mile distant from the one where the work was done can not affect the contractors or the contract if it was not used to deceive.

*The*Reporters’ statement of the case:

The following are the facts of the case as found by the court:

I. In the year 1904 the Government of the United States needed wharves in connection with its naval station, then established at Guantanamo Bay, one of which was desired at the southwest corner of Toro Cay.

As a preliminary step certain borings were made by a civil engineer employed by the Navy Department to determine the character of the bottom at the location of the proposed wharf. After making such examination the engineer prepared the necessary plans and specifications for said wharf, which were approved and adopted by the Navy Department. Thereafter the Navy Department advertised for proposals for the construction of the said wharf.

II. While the advertisement requesting proposals was being published a board of officers met at the city of Washington, and early in the month of June, 1904, determined to change the location of the site from a point eastward of the dry dock, which site had originally been determined upon and where the borings above referred to had been made, to one three-fourths of a mile distant from said first-selected location, to suit the new grouping of the shops and buildings and as better adapted to the needs of the station.

*417III. The work was thereupon readvertised under date of July 7, 1904, and bids were requested for said wharf at the new site, and also for another wharf at Fishermans Point, the bids therefor to be opened at noon on August 16, 1904, The claimant submitted its proposals for both of the said last-mentioned wharves and, being the lowest bidder, a contract was duly executed between the parties on September 17, 1904, for the construction of the wharf at lower Toro Cay for $11,288 and the wharf at Fishermans Point for $6,128. No claim has been filed with reference to the construction of the wharf at Fishermans Point, the claimants encountering no difficulties there which in any way gave rise to a claim, and the construction of that wharf is not involved herein.

IY. No special investigation or borings were made at the new site for which the advertisement requested proposals, nor does it appear that the borings at the original or first location of the wharf were ever made known to the plaintiff. The Government promulgated for the guidance of bidders, in connection with the submission of proposals for said wharf, the same plans and specifications that had been prepared and used for the original site. The specifications for the wharf at the site last determined upon, and which were identical with those that appertained to the first site, contained the following statement:

“ It is thought that piles driven from 12 to 15 feet into the bottom where the water is 25 feet deep will fill this specifification, but the Government will take no responsibility if longer piles are needed.”

The instructions to bidders contained the following provision :

“ Neither the laws nor the regulations make any allowance for *errors,*either of omission or commission, on the part of bidders. It must be assumed that bidders have fully informed themselves as to all conditions, requirements, and specifications before submitting proposals, and they can not be excused or relieved from the responsibility assumed by their proposal on the plea of error.”

Y. The engineer who made the borings and investigation and prepared the plans and specifications with reference *418to the conditions at the site originally selected was personally known by reputation and otherwise to the claimant company. The site at which the wharf was to be constructed was to a certain extent inaccessible, and the facilities for making preliminary investigations both by the claimant and the Government with reference to the conditions actually prevailing, by driving piles and the like, were not of the best. The claimant company had had previous experience in the locality where the wharf was to be constructed in wharf building, and was familiar with the general character of the conditions to be encountered, as well as the uncertainty of the bottom.

VI. The contract for the construction of the wharf, a copy of which is made a part of the petition, bore date the 17th day of September, 1904, and called for the completion of the work within 90 days from its date, or on the 17th day of December, 1904. Materials were ordered and delivered at the site of the work, but the work was not started on said wharf until November 25, 1904, which was within 22 days of the expiration of the contract period. Difficulties were experienced in connection with the driving of the piles, and particularly the length of the same, when the tests prescribed by the contract for penetration were applied. It being found that many of the piles which had been ordered and delivered were too short for the purpose, the claimant company made application to the Navy Department for the privilege of splicing the piles before the same were driven. This privilege was accorded, such splicing requiring some additional time. The tests of'the piles called for by the contract were reduced from about 39 tons to 20 tons, and every opportunity was given to the claimant company in the matter of the gain to be derived from allowing the earth to settle about the piles after driving and before testing.

YII. Prior to the delivery of materials and the beginning of the work upon the contract and on or about the 1st of October, 1904, the Government engineer, accompanied by •one Gordon, a representative of the claimant company, •visited the site of the work, and the Government engineer, *419at the request of the claimant’s representative, made some boring tests on the site of the wharf, as the result of which, though the same were not considered to be entirely sufficient or satisfactory, the claimant’s representative, being unwilling to remain for any further tests, came to the conclusion that piles 55 to 60 feet long would be sufficient. This conclusion was later found, however, to be incorrect, as piles in some instances from 80 to 90 feet in length were required.

YIH. The wharf was completed on or about the 28th day of March, 1905, and accepted on the 5th of May, 1905. On May 19,1905, the claimant company made application for an extension of the contract period up to and including the date of the completion of the wharf, without penalty, stating in said application that — ■

“ Upon starting this work it was found desirable by the bureau to extend the length of the piles furnished for this purpose, which piles were expected to be of the lengths ordered and delivered. By reason of the inequalities of the bottom in which these piles were driven, it was found desirable to splice the piles. This made necessary a considerable amount of additional time in which to do this work. The isolated location of the work, difficulties of getting materials and plant in working order, were also responsible for delay.”

■ This application was duly considered, the extension applied for was granted, and the penalty was waived.

The claimant company was paid in full the contract price for supplying the materials and building the wharf, or $11,288.

IX. Subsequent to the award of the contract the claimant purchased piling in Alabama and ordered it shipped to Guantanamo Bay from Mobile, Ala., there being none in the neighborhood of the proposed site. If there had been no difficulty encountered in connection with the piling, the time required for the completion of the wharf after the delivery of the materials and the beginning of the work, November 25, 1904, and the contract date of the completion, December 16, 1904, was entirely insufficient.

*Mr. Edwin G. Brandenburg*for the claimant. *Mr. F. 'Waiter Brandenburg*and *Mr. Glarenc.e W. Be Knight*were on the brief.

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      *Mr. Franklin W. Gollins*(with whom was *Mr. Assistant Attorney General Huston*Thompson) for the defendants.

AtkiNSok, J.,

delivered the opinion of the court:

Plaintiff company brought this suit against the United States to recover the sum of $1,982.17 claimed to be due as additional cost alleged to have been incurred in the construction of a timber wharf or dock at Lower Toro Cay, United States naval station, Guantanamo, Cuba, in 1904-5.

It is shown by the findings that Naval Engineer C. A. Wentworth, in the month of April, 1904, made certain borings and investigations for the purpose of determining the character of the bottom of a proposed site for a wharf or dock at the naval station, Guantanamo Bay, and as a result of these investigations he prepared the necessary plans and specifications for such a dock. Thereafter the Bureau of Supplies and Accounts of the Navy Department advertised for bids for the construction of said wharf. Section 3 of the specifications contained the following statement: “ It is thought that piles driven from 12 to 15 feet into the bottom, where the water is 25 feet deep, will fill this specification, but the Government will take no responsibility if longer piles are needed.” Early in the month of June of said year it was decided to change the location of the dock to a jioint •about three-fourths of a mile distant from said original location, which it was believed was a more desirable place and better adapted to the needs of the station. Accordingly the work was readvertised on July 7, 1904. In response to this latter advertisement, plaintiff company submitted its bid and was awarded the contract for the construction of said dock for the sum of $11,288.

It appears that the specifications; which were drawn and based on the borings made by the Government at the original site for the dock, were not made known to bidders for the construction of the dock at the new site, and it further appears that no boring tests were made by the Government or anyone else at the new site until after the contract was let to plaintiff company for the construction of the dock.

The findings show that the specifications for the dock at the first location were not changed for the site that was *421finally adopted; and when subsequent investigations and soundings were made it was found that the piles upon which the dock was to rest would be required to be of greater length than the borings at the original site indicated; and when the work was finally performed it was further found that still longer piles would be required, which was necessarily much more expensive than either of the previous borings indicated, thereby causing the plaintiff an alleged loss of $1,982.17, and to recover this sum this suit was instituted. The specifications and contract are made a part of plaintiff’s petition, and to them reference is here made.

The theory upon which the plaintiff company bases its claim for recovery is that the plans and specifications were prepared upon information obtained by borings at one site, and. were promulgated by the Government for the guidance of bidders for a wharf at another site, and for that reason the statement contained in section 3 of the specifications was untrue. That is to say, the Government had no knowledge whatever as to the length of piles which would probably be required at the site where the wharf was finally located.

Hence it is claimed that the expression of opinion contained in said section 3 was untrue and thus misleading to the plaintiff, and 'for this reason was a misrepresentation amounting to a warranty and a fraud upon the plaintiff.

In discussing this question it must be borne in mind that it is elementary as a general proposition that a mere expression of opinion does not constitute a warranty, though there are some exceptions to this rule. For instance, it has been held that where a person made declarations of opinion which he knew to be false, and which misled the other party, this would be ground for relief on the ground of fraud. *(Birdsey*v. *Butterfield,*34 Wis., 52; *Pike*v. *Fay,*101 Mass., 134.) We have no such facts, however, in the case at bar. It is true the expression of opinion in section 3 was based upon borings made at a place other than where the dock was erected; but it may well be believed that the Government engineer who made these borings believed that the same conditions would be encountered at the site where the dock was erected as were encountered at the first proposed site. These sites were not far distant from each other, and there is noth*422ing in the record indicating any variance in conditions. Thus this case falls far short of a fraudulent expression of opinion.

It must also be remembered that the plaintiff, at the time he entered into the contract, had no knowledge that borings or investigations of any kind had been made at either site to determine the probable length of piles which would be required. Hence it could not have been deceived by this expression of opinion contained in section 3; it had every reason to believe that it was a naked statement of mere opinion and nothing more. If it had been represented to the plaintiff that the opinion expressed in section 3 was based upon borings made at the site where the dock was erected, a different case would be presented, and upon which we are not required to express an opinion. It should also be said that the plain'tiff was warned to make its own examinations as to the conditions to be encountered in the instructions to bidders in the following language:

*“*It must be assumed that bidders have fully informed themselves as to all conditions, requirements, and specifications before submitting proposals, and they can not be excused or relieved from responsibility assumed by their proposal on the plea of error.”

We have then the case of a contractor complaining of what he had every reason to believe was a mere expression of opinion based upon no investigation whatever, while it was admonished to make its own investigation and not depend upon the opinion thus expressed.

It follows from the foregoing that the plaintiff’s case is without merit, and the petition is dismissed.

Howry, J., was not present at the trial of this case, and took no part in the decision of the same.