#### EDWARD J. HINGSTON AND OLAF R. PIHL v. THE UNITED STATES.

[No. 27283.

Decided April 19, 1920.]

*On the Proofs.*

*Contract; liability.*— Where the Government furnishes to a contractor a cofferdam wall to be used as one side of a cofferdam to be constructed by him, and his contract contains a clause that if the said wall is damaged or destroyed it shall be repaired or restored by him, the Government is not liable to him for any losses that may have been caused by leaks or breaks in said wall.

*The Reporter’s*statement of the case:

*Mr. E. C. Brandenburg*for the plaintiffs. *Mr. J. Kemp Bartlett*was on the briefs.

*Mr. Philip G.*Walker, with whom was *Mr. Assistant Attorney General Frank Davis, jr.,*for the defendants.

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

I. On May 26,1900, Edward J. Hingston and Olaf R. Pihl entered into a contract with the United States, approved June 8, 1900, by the Chief of Engineers, to furnish materials and to build a cofferdam, foundation, piers, and abutment for part of a movable dam, to erect Chanoine wickets, and to build a guide crib at Herr Island Lock and Dam, Allegheny River, Pa., and to perform all work in relation thereto in strict accordance with the specifications, a copy of which, together with a copy of the contract, are attached to these findings as part thereof. The approved contract was transmitted to plaintiffs on June 11,1900.

*298II. The Herr Island Dam, extending across the Allegheny Diver from Pittsburgh to Allegheny City, was constructed under two contracts. The section on the Pittsburgh side, extending from the lock out into the river for 150 feet, was constructed under a contract between the United States and Hegeman & Bussell, and was finished in December, 1899. Upon completion of the first contract, the wall of the cofi'er-'dam, extending up and down the river, called the “river wall,” was left standing, together with a small supplemental cpfferdam on the Pittsburgh side built for the protection of the end of the unfinished dam for the use of the contractor who might undertake to complete the dam to the Allegheny side.

The river wall was 290 feet long, and the contractors were required to construct from it two walls, one from the upper end and one from the lower end, approximately 320 feet long, to the Allegheny side of the river, for the purpose of making a cofferdam in which the work under the contract might be carried on, the river wall thus furnishing one side of the cofferdam.

III. The foundation of the dam to be constructed by plaintiffs consisted of three parts: (1) An upstream part, 29 feet wide, with a concrete foundation 12 feet deep. (2) Below this was an apron crib, filled with one man stone, and 20 feet 2 inches wide, and also 12 feet deep. This crib was decked with 10 by 12 oak sheeting. (3) Below and adjoining the crib was a heavy riprap stone prism, 12 feet wide and 9 feet deep. The plaintiff had to dredge and excavate for this foundation a trench or ditch in the bottom of the river about 61 feet wide and about 12 feet deep. After the construction of the foundation the contract called for Cha-noine wickets to be erected thereon. Other work was called for by the specifications.

IY. The two guide cribs for the lock were to be constructed on the Pittsburgh side of the river, where the lock was situated, and the work of construction was to be carried on simultaneously with the work on the Chanoine Dam foundation.

V. On the completion of the 150-foot section of the foundation of the Chanoine Dam and the erection of the wickets, *299the plaintiffs were to erect a pier at the Allegheny end thereof, and then next to it the foundation for bear-trap gate No. l,then another pier, then the foundation for bear-trap gate No. 2, between the second pier and an abutment to be built by plaintiffs on the Allegneny side. After the completion of this work the contractor was to construct a cross cofferdam wall, of the same dimensions as the walls theretofore built, from the first pier, each way, to the two arms of the Hingston and Pihl cofferdam, extending from the ends of the river wall to the Allegheny side.

Upon the completion of this cross wall the contractor was required to remove all of the cofferdam between it and the Pittsburgh side, leaving a smaller cofferdam inclosing the bear-trap piers and foundations, which the contractor was required to keep pumped out until another contractor, who had entered into a separate contract to erect the bear-trap gates, should complete his work. Until all of the work of the plaintiffs should be completed the pumping was to be without expense to the Government; after completion of their work, the Government was to pay the cost of pumping during the work of 'the bear-trap gate contractor. Upon completion of work by the gate contractor the plaintiffs were to remove the existing cofferdam and all deposits within 30 days after notice of the completion of the bear-trap gate, or-to pay $25 a day liquidated damages thereafter.

' YI. Under the Hegeman and Russell contract the foundation of the dam and the stone prism were constructed to within 9 feet of the river wall and the apron crib to within 5 feet of the river wall. After the completion of the dam foundation, apron crib, and stone prism, these contractors had been required to construct on the Pittsburgh side of the river wall a small supplemental cofferdam, inclosing a space around the unfinished end of the permanent dam 100 feet along the river wall and 20 feet wide. This supplemental cofferdam was intended for the protection of the unfinished end of the dam and for the use of the contractor who might undertake to complete the dam in making a connection with the constructed part.

VII. The upstream wall of the cofferdam was built to a height of 6 feet above the Davis Island pool level, and the *300downstream wall to a height of 4 feet above said level. This Davis Island pool was created by a dam in the Ohio River 6 miles below the Herr Island Dam. All cofferdams constructed under the Hegeman and Russell contract and the Hingston and Pihl contract were 12 feet wide, and the coffers were filled with equal parts of sand, clay, and gravel. At the point of crossing the permanent dam the supplemental cofferdam was 12 feet high above the concrete foundation and the water 8 feet deep; above the apron crib it was 10 feet high and the water 6 feet deep; and above the stone prism it was 12.6 feet and the water 8.6 feet deep. The cofferdam of the river wall opposite the crossing was 13.1 feet high from the bottom, and the depth of the water was 9.1 feet.

The wall of the supplemental cofferdam at the point of crossing rested upon the concrete foundation of the permanent dam and upon the decking of the apron crib, but from the decking of the apron crib a bulkhead 2 inches thick, of 10 by 12 inch sheeting, was built parallel with the walls of the cofferdam, and nearly midway between them, through the apron crib and nailed to the cross timbers, and the ends driven from 4 to 6 inches in the bed of the river to prevent the water from flowing through the stones under the cofferdam into the inclosure. At the point of crossing over the stone prism, and for the same piirpose, the two walls of the cofferdam were extended down into the river bed from 4 to • 6 inches. These bulkheads Avere driven before the stones were placed.

The woodAvork of the supplemental cofferdam was not water-tight, and was not intended to be. All cofferdams of this type, no matter how securely closed, are dependent for their impermeability to water on the filling of sand, clay, and gravel.

VIII. Owing to the failure of the contractors to secure promptly the lumber ordered for the cofferdam there was a considerable delay in its construction, and a further delay was caused by leaving open a gap through which the dredges carrying on the excavation work for the foundation simultaneously with the building of the cofferdam could pass out. The plaintiffs’ cofferdam was completed August 20, 1900, *301and pumping out began on August 22,1900, in the same, and continued until September 10, 1900, with two pumps, a 12-inch and 10-inch centrifugal pump. At this time the water had been lowered 8.6 feet, to within a few inches of the river bottom and to the elevation of the water in the foundation excavation. This excavation, as has been stated, was about 12 feet deep, about 61 feet wide, extending to the Allegheny-side. The water in the supplemental cofferdam remained unaffected by the pumping in the large cofferdam. Being unable to make further headway with the two pumps, and believing there was a leak in the supplemental cofferdam and that the water from it found its way under the river wall into the large cofferdam, the contractors cut a hole about 4 feet wide through the river wall, the result of which was that the water rushed in from the little cofferdam. The specifications (paragraph 37) stipulated that the river wall, if injured or destroyed, should be repaired or restored by the contractor, and that the 100-foot section of said wall, common to the large and supplemental cofferdam, should be removed only after the large cofferdam had been unwatered.

Nothing further was done.until September 15, 1900, when another pump was installed, and these pumps worked for six hours. The plaintiffs were attempting to determine whether the leak was large or small. During the six hours the water in both the large and supplemental cofferdams was lowered 3 feet. Thereafter the engineer in charge, having heard that a plank in the supplemental cofferdam wall, where it crossed the stone prism, had been sawed out to allow the water in the Hegeman and Bussell cofferdam above the permanent dam to flow through to the lower part of that cofferdam, concluded the Government should repair the leak in the supplemental cofferdam. Therefore, on September 19, 1900, the plaintiffs were ordered to close the gap they had cut in the river wall, which they accordingly did, and on September 22,1900, began pumping again in the large cofferdam ; but owing to inadequate pumping equipment the water was not entirely pumped out until October 17, 1900, after which work was begun on the Allegheny end of the 150-foot section of the permanent dam which the contractor had agreed to build, and the work was carried toward the section completed under the Hegeman and Bussell contract.

*302IX. After the closing of the cut in the river wall the Government engineer secured the plaintiffs’ pile driver and some of their men and drove steel plates 24 feet long and 8 inches wide and some wooden sheathing alongside the bulkhead in the stone prism, and then installed and worked two 4-inch pumps in the small cofferdam to test the effect on the leak. He afterwards sent a diver down to look for the leak, without success. Becoming convinced the leak was not in the stone prism he turned his attention to the apron crib, and operated the two 4-inch pumps to their full capacity. While they were unable to lower the water more than a few inches, it was noticed that bubbles and particles were rising through the water to the surface at the edges of the three longitudinal timbers in the wall of the apron crib, which indicated the location of the leak. The engineer then drilled holes through the crib decking and down through the stone filling and through pipes poured grout down among the stone filling, stopped the leak, pumped out the cofferdam and turned it over to the contractors. The large cofferdam had been pumped out and work commenced on the permanent dam some time before the leak in the little cofferdam was stopped. The leak in the small cofferdam was caused by the pressure of the water outside cutting a hole in the river bed under the bulkhead in the apron crib.

The river wall had formed one side of the cofferdam constructed and used under the Hegeman and Russell contract, which was readily pumped .out and kept dry during the progress of that work. It was just as good the next year, and the plaintiffs’ cofferdam, a counterpart of the former, could have been pumped out with an adequate pumping equipment in a few days.

X. In stopping the leak in the supplemental cofferdam the engineer used a considerable part of the plaintiffs’ equipment and some of their best workmen, for which no payment has been made to the plaintiffs. The reasonable value of the services of the men and equipment so used has not been established by the evidence.

XI. On November 24, 1900, the plaintiffs were warned by the engineer of the approach of a flood and advised to place some stones to protect the inner corner of the supplemental cofferdam at its intersection with the river wall, where ,it *303had been weakened by the removal of the 100-foot section between it and the plaintiffs’ cofferdam. There was also a sharp corner on the outside, against which the current of the river flowed. The plaintiffs did not take his advice, and the following day, November 25, 1900, he ordered them to do so, and they took the derrick boat and some flats and placed the stones as directed, taking part of the day to complete the work. The flood came on November 2?, 1900, and carried a concrete mixer and engine 5 or 6 miles down the river, both of which were recovered in somewhat damaged condition. Neither the amount of the damages nor the responsibility of the Government therefor has been established to the satisfaction of the court. The use of the derrick boat in making the cofferdam secure did not prevent the plaintiffs from saving their plant from injury.

XII. In carrying out the different work under their contract the plaintiffs had to replace 84,000 feet of oak, valued at $30 per thousand feet; 87,000 feet of hemlock, valued at $20 per thousand feet; 600 cubic yards of stone ballast, valued at $1.75 per cubic yard, or a total value of $5,310 for materials washed away by floods and lost during the progress of the work. The greater part of these materials could have been saved by the exercise of reasonable diligence on the part of the plaintiffs, but no efforts whatever were made by them to save any part of it. The defendants were in no way responsible for these losses.

XIII. Section 45 of the specifications stipulated that no concrete should be laid when the temperature was lower than 36° F. in the shade. In the face of this stipulation of’ the contract the engineer in charge required the plaintiffs to lay cement at different times during the winter of 1900 when the temperature was below freezing and at times below zero. This requirement compelled the plaintiffs to heat sand and gravel and cover newly laid concrete at an increased cost. The actual cost of placing all the concrete was $50,196.25, while the amount paid the plaintiffs therefor was $49,924.35, a net loss of $271.90. There is no evidence to show the number of cubic yards laid while the temperature was at or below 36° nor the actual cost of laying the same.

*304XIY. There was retained by the Government in the final estimates from moneys due the plaintiffs, in accordance with paragraph 33 of the specifications and paragraph 5 of the contract, the sum of $1,145.51, to cover the cost of inspection and superintendence of the work during the time the completion of the contract was extended by the engineer, from October 1,1900, to September 25, 1901.

XY. The plaintiffs’ bid on the work was $101,594.89. The estimate of the cost of the work, not including profits, by the engineer who prepared the specifications, was $121,000. The only other bid on the work was $151,000. The plaintiffs were paid for all of the work performed by them under the contract $105,078.78, from which was deducted $1,145.51, cost of inspection and superintendence.

MEMORANDUM BT THE COURT.

The court’s conclusion is based upon the following considerations :

1. The failure and difficulty in unwatering the plaintiffs’ cofferdam was not attributable to “ a leak ” in the small cofferdam or in the river wall. There was a leak or break in part of the small cofferdam, but the water that found its way into that inclosure did not materially affect the plaintiff’s place of work until they cut the river wall. For this cutting the defendant is not responsible. It was repaired, and the plaintiffs’ cofferdam was unwatered before defendant had remedied the leak in the small cofferdam. The river wall was, and continued to be, reasonably adapted to the uses for which it was designed.

2. While it was probably the defendant’s duty to repair the leak in the small cofferdam, it did so, and gave it to plaintiffs after being repaired in a suitable condition. For the use by defendant’s agents of plaintiffs’ men, machinery, or material the defendant would be liable to plaintiff for the reasonable value thereof if defendant did not pay the men, but there is no proof of what this service or use is worth or from which the same can be found.

3. There is an allowance of $271.90 as the difference between actual cost and payment for laying concrete. If the *305additional cost of beating and laying concrete when the thermometer was below 36° was greater than the amount stated there is no proof from which the same can be ascertained, and there being no proof of the cost there can be no allowance for any profit on such cost.

4. The findings sufficiently show the other items in detail.

An important fact is that the plaintiffs’ bid was quite low for the work required. It was nearly 50 per cent below the nest lowest bid.

Judgment for plaintiff in the sum of $271.90, as shown by Finding XIII.

As to all other claims the petition is dismissed.