#### SHERIDAN-KIRK CONTRACT COMPANY v. THE UNITED STATES.

[No. 31245.

Decided December 3, 1917.]

*On the Proofs.*

*Contract; misrepresentations.*— Plaintiff contracted to build a lock and dam in the Ohio River a short distance below the City of Cincinnati. The contract required the foundation of the dam to rest on bedrock. The specifications referred bidders to certain drawings, prepared by the United States Engineer Officer, one' purporting to show the depth at which bedrock had been found at different points on the dam site, and the *83others depicting the work to be done and based on the drawing first mentioned. Plaintiff had no opportunity to investigate for itself as to depths to bedrock, and relied upon the drawings, which proved to be erroneous. During construction bedrock at some points was found at greater depths than indicated by the drawings. The error in the drawings resulted from the auger having at these points struck “ floating rock,” which was mistaken for bedrock. The greater depth to bedrock greatly increased the difficulty and cost of the work to plaintiff.

*Same.*— Where the Government engineers, prior to advertising for bids for the construction of a lock and dam to rest on bedrock, make soundings of the river bed to ascertain the depth of bedrock and delineate the result so obtained upon a map or drawing, upon which map all other drawings pertaining to the work are based, and bidders are not afforded a reasonable time within which to verify the depths of bedrock so obtained, the United States is liable as for a misrepresentation of a material fact, even though the error was honestly made.

*The Ref crier's*statement of the case:

*Mr. William B. King*for the plaintiff. *King <& King*were on the briefs.

*Mr. Marvm Farrington,*with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

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

I. Under date of October 27, 1904, a contract was entered into by and between the United States, acting by Col. G. J. Lydecker, Corps of Engineers, United States Army, and the • Sheridan-Kirk Contract Co., whereby the said company undertook to furnish the material (except cement), appliances, and labor, and to do all work required for constructing Lock and Dam No. 37, Ohio River, located about 12 miles below the city of Cincinnati, Ohio. A copy of said contract, including the specifications forming a part thereof, is annexed to the petition and marked “ Exhibit A.”

II. In accordance with paragraph 37 of the specifications, drawings were exhibited to the claimant prior to the making of the bids, which drawings showed the bedrock below low water at a large number of points on the site of the work. The greatest depth so shown was at the site of the *84lock, 16.90 feet at bole No. 61, and at the site of the dam, 20.81 feet at hole No. 74.

These drawings were based upon data obtained from bor-ings made by Government engineers, were made in good faith by the officers of the United States, and were believed by them to correctly represent the depths to bedrock at the different points shown on said drawings. 4

The actual depth to bedrock at a number of places shown on the drawings were greater than the depths there shown. At one place the distance to bedrock was in excess of 30 feet below low water.

The errors in the drawings were due to the auger of the Government engineers making the test borings upon which the drawings were based, having at those points struck floating or loose rock, which the engineers believed and reported to be bedrock.

Both the claimant and the United States understood that the foundations of the lock and dam were to go to bedrock and in making its calculations and bid before entering into the contract the claimant relied upon the borings and drawings exhibited by the Government as being correct.

There was no opportunity between the date of the advertisement, August 27, 1904, and the opening of bids, September 27,1904, for the contractor to make independent bor-ings by which the contractor might have determined the character of the river bed and the depths to bedrock.

III. The usual and economical method of excavation for such work is to use a floating dredge before the cofferdam is unwatered, and this was the method intended to be used by the claimant for all of the excavation necessary to be done, except rock excavation.

The claimant’s dredges were capable of dredging to a depth of about 24 feet below low water. All of the excavation for the dam above 20 feet below low water was excavated by dredges.

After the cofferdams were unwatered the excavation below the depth of 20 feet below low water was done by hand, with picks and shovels, and the material was removed by the use of skips, derricks, and other machinery. The increased depth *85to bedrock required a considerable increase in the amount of pumping and a more frequent removal of the derricks.

IY. The excavation for the dam was begun at the north or Ohio end. On October 14, 1908, it had progressed to a point about 365 feet southward, when it was found that bedrock did not exist as if had been shown on the drawings.

The claimant continued with the work of excavation, and the depth to bedrock continued to increase. On Novembei 5 and 7, 1908, the claimant wrote the Government engineer with reference to the increased and increasing depth to bedrock, and as to the expense of excavation at the greater depths. The claimant requested that a supplemental contract be entered into for such- excavation below the depths shown on the drawings.

The Government engineer refused the request of the claimant for a supplemental contract, and directed the work of excavation to bedrock to proceed. The Government engineer suggested, in a letter of November 7, 1908, that the claimant submit a statement of the case, and stated that the matter would be forwarded to the department for determination. The claimant proceeded with the work, and on November 16, 1908, wrote the Government engineer as to the cost of excavation, but did not furnish a definite statement or estimate of the increased cost of such excavation.

In the next season, in the fall of 1909, it was found that the bedrock was at still greater depth below water. On November 13, 1909, the claimant was asked to submit a proposal for the extra pumping made necessary by the greatei depth of the excavation, which the claimant promised to submit, but later declined to do on the ground that the extra pumping was only a part of the extra cost of excavation.

The matter was submitted to the Chief of Engineers, and on December 8,1909, he declined to authorize a supplemental contract for excavation required below the depths shown op the drawings. The claimant notified the Engineer officer in charge of the work, the Chief of Engineers, and the Secretary of War that it would do the work, but would demand extra compensation for doing it.

Y. The work performed by the claimant because of bedrock being at greater depth than was shown on the draw*86ings, thereby necessitating a considerable increase in the1 amount of pumping and a more frequent removal of derricks, cost the claimant the sum of $13,254.45 more than the amount received by the claimant from the United States for such increase in work. A reasonable profit on the performance of this work is $2,650.89.

VI. The time of the completion of the work was extended under the provisions of the contract and specifications, for 66£ days on account of unusual floods occurring before 1908. No consideration in this allowance was given to the delay due to the greater depth of bedrock. This extension of time brought the end of the contract time to the 2d of August, 1910. The work was completed late in December, 1910; the cost to the United States of superintendence and inspection of the work from August 2, 1910, to the time of the final completion of the work was $1,192; this amount was deducted from the contract price.

VII. The claimant having failed in the seasons of 1908 and 1909 to maintain adequate forces of men on the excavating and concrete work, and having failed to operate its pumping plant efficiently, the completion of the work within the time extended was not delayed by reason of the unexpected and greater depth to bedrock.

VIII. Prior to the discovery of greater depths to bedrock on the site of the dam than were indicated by the drawings, as recited in the foregoing, greater depths to bedrock had been found at certain points on the sites of the guide walls of the lock than were there indicated by the drawings.

In the case of the lower guide wall the character of the material found at the depth indicated by the drawings for bedrock was such as to be satisfactory for foundation purposes, and excavation to bedrock was not there required.

In the case of the upper guide wall the material encountered at the depth indicated by the drawings for bedrock was not of a satisfactory character for foundation purposes, and a supplemental contract was entered into by the parties for the construction of a pile foundation at that point, instead of having the excavation go to bedrock.

IX. The Government engineers gave the claimant the lines for the masonry foundations of the work.

*87The claimant, in excavating for foundations, did not allow a margin of 5 feet between the foot of the slope and the exterior lines of the masonry foundations, nor were the slopes excavated on a uniform grade or slope of 1 on 1. The claimant began the slopes at the exterior lines of the foundations and excavated them on irregular grades, sometimes less and sometimes greater than a slope of 1 on 1. Between the commencement of the excavation and the time of the construction of the masonry foundations large quantities of earth slipped from those banks into the excavation and had to be removed by the claimant.

In paying for excavation under the contract, allowance was made for actual excavation within lines beginning 5 feet outside of the exterior line of the masonry foundations and extending upward and outward from that point at a slope of 1 on 1; no payment was made for excavated material from outside of said lines, or for material within said lines which was not actually excavated.

The number of cubic yards actually excavated was 117,584.68. Payment was made for 85,584 yards; 32,000.68 yards of actual excavation outside of the aforesaid lines were not paid for. The evidence fails to show what amount of excavation, if any, outside the said exterior lines was necessitated by the greater depths to which the claimant had to go.

The quantity of material within said lines which was not excavated by the claimant, and for which no payment has been made, was 17,443.21 cubic yards. The contract price for excavation was 50 cents per cubic yard.

X. After the masonry work was completed it was necessary to refill the excavation around it. This refill included refilling the 32,000.68 cubic yards of excavation referred to in Finding IX above. The claimant was paid for refill upon the same basis as excavation, and received no payment for this 32,000.68 yards. The contract price for refill is 30 cents per yard.

XI. In constructing the concrete slope wall protection or paving provided for by the supplemental contract, and in constructing the brick paving provided for in the specifications, it was necessary for the claimant to cut down and *88remove a large quantity of the material of the river bank, on the Ohio side, overlying the sites of this paving. The amount cut and graded was 83,729 yards; at the contract rate for said yardage the amount unpaid would be $16,864.50.

XII. Under the provisions of the contract and specifications, at different times during the progress of this work payment was made for removing deposits washed into the spaces inclosed by the cofferdams.

The claimant removed certain other river deposits at different times during the progress of the work for which no payment was made.

1. In the spring of 1906 a deposit was found covering the pile foundation and concrete masonry work of the upper guide wall. In May and June this deposit was removed by the claimant. No order for its removal was given the claimant by the Government engineer; its removal was necessary in order that the work might proceed. Before doing the work of removal a claim for payment for the removal was made by the claimant to the engineer officer. Payment* was properly denied by the officer, as the concrete construction had not promptly followed the excavation as provided for in the specifications. The quantity of deposit so removed was 2,600 cubic yards.

2. In the seasons of 1908 and 1909 the claimant removed deposits from around the outside of the upper guide-wall cofferdam and between this and the protective piling. This consisted in part of material banked against the cofferdam by the claimant to prevent leakage into the cofferdam inclosure and in part of river deposit which had been deposited during the preceding two years during which the cofferdam had been constructed. How much of this was deposited resulting from high water, flood, or freshet does not appear from the evidence. None of it was in the space inclosed by the cofferdam. No order was given the claimant to remove it. The removal of this deposit was necessary for the completion of the contract work. The claimant requested payment for the removal of this deposit, but payment was properly refused by the engineer officers. The amount of the deposit so removed was 7,092 cubic yards.

*898. In the season of 1909 a deposit was removed by the claimant inside the lower guide-wall cofferdam and between that cofferdam and the lower guide wall. A part of this deposit resulted from rises in the river, and a part of it had been dumped there by the claimant. No order was given the claimant for the removal of this deposit; its removal was necessary in order to complete the work required by the contract. It does not appear from the evidence how much of this deposit resulted from high water, flood, or freshets. It does not appear from the evidence that any specific claim was then asserted by the claimant. The amount of such deposit was 2,685 cubic yards.

4. In the season of 1909 the claimant removed a deposit from outside the lower guide-wall cofferdam which had been deposited there by high water in the river; this deposit had to be removed in order to remove the cofferdam. It does not appear from the evidence how much of this deposit was removed. None of this deposit was within the cofferdam inclosure. No order was given for its removal. The claimant discussed with the engineer officer the question of payment for the removal of this deposit, but did not definitely assert a claim for payment at that time.

5. In the fall of 1910 the claimant removed a deposit from the northern end of the cofferdam of 1909. Claimant was ordered to remove this deposit by the engineer officer in charge of the work, and cross sections of this deposit were made by the engineer officer for the purpose of determining its quantity. Before the work was done claimant asked to be paid for it, and this the engineer officer assented to, and demand for payment was made after the work was done. Payment was made for a part of the work, but payment was refused for 8,766.67 cubic yards of deposit so removed. The amount due therefor at the rate provided in the contract would be $5,698.34.

XIII. Claims and protests on account of the items of claim were presented at various times to the officer in charge of the work during the continuance of the work and prior to final payment, except in the instances deferred to in the above findings, but no payment of them has been made to the claimant.

*90CONCLUSION OF LAW.

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to recover the amounts shown in Finding V and paragraph 5 of Finding XII. It is therefore ordered and adjudged that the claimant recover of and from the United States the sum of twenty-one thousand six hundred and three dollars and forty-eight cents ($21,603.48).

MEMORANDUM.

The court, in reaching its conclusions in this case, was governed by the doctrine in *Hollerbach*v. *United*States, 233 U. S., 165, and *Christie*v. *United*States, 237 U. S., 234, in allowing the amount found to be due the contractor in Finding Y. And as to the other amounts allowed it seemed to the court that the evidence plainly showed that these amounts were due the contractor under its contract.

As to the other amounts claimed by the plaintiff the evidence was not sufficient to establish them, and the court, therefore, has not allowed them.

All the judges concur.