#### WARREN, MOORE AND COMPANY v. THE UNITED STATES.

[No. 34692.

Decided June 12, 1922.]

*On the -proofs.*

*Contract, misrepresentation.*— Where plaintiff sends its superintendent to the site of the contract. work and he makes extensive tests all over such site with a view to ascertaining the conditions of the soil for excavating, and plaintiff makes its bid entirely upon the report of its superintendent, there has been no misrepresentation by defendant as to the character of the subsoil for which plaintiff would be entitled to recover.

*The Reporter’s*statement of the case:

*Mr. Amos J. Peaslee*for the plaintiff. *Peaslee & Compton*were on the briefs.

*Mr. George PL.*Foster, with whom was *Mr. Assistant Attorney General Robert E.*Lovett, for the defendant.

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

I. The plaintiff is a corporation organized and existing under the laws of the State of Pennsylvania, and is and was at the time of the matters herein referred to engaged in *448business as a general contractor, and on October 2, 1918, entered into a written contract with C. W. Parks, Chief of the Bureau of Yards and Docks of the Navy Department, who executed said contract on behalf of the United States, A copy of said contract, together with the general provisions, specifications, and drawings which are a part of the contract, is filed as an exhibit with the plaintiff’s petition and is made a part hereof by reference.

II. Before the contract was entered into, and after five days’ notice given on August 29, 1918, bids were opened on September 3, 1918. The plaintiff applied for the specifications mentioned, in the advertisement for bids and was furnished with copies of the specifications and the plans and drawings. The time for submission of bids was extended three days. On September 11, 1918, all bids submitted were rejected, and five days from the date of the letter rejecting the bids were given to submit new bids. A new bid was submitted by the plaintiff and on September 20, 1918, it was awarded the contract at the contract price of $1,054,000.

III. The specifications provided that the contractor should excavate to the dimensions necessary and to the depths indicated on the drawings, and that any conditions encountered during excavating requiring departure from lines or grades of the work as indicated should be immediately reported to the officer in charge, and that if such change was approved in writing by the officer in charge, or if any change was directed by him in writing then the increase or decrease in contract price would be determined under the provisions of paragraph *17*of the “General provisions.” No conditions were encountered which required a departure from the lines and grades of the work as indicated, and no change was approved in writing by the officer in charge.

IV. Although the time for submitting bids was brief, the plaintiff sent its superintendent to the site of the work. While there he saw rock along the shore when the river was at low tide, and made tests all over the island and dug from twenty to thirty test holes over the portion of the island where the buildings were to be erected, and reported to the plaintiff that the condition of the soil for excavation was *449good, and that there were no signs of rocks. The plaintiff’s superintendent talked with several persons on the island, among others a naval officer in charge of the site. These persons made no representation to the plaintiff’s superintendent as to whether rock would or would not be encountered. The plaintiff based its bid upon the report made to it by its superintendent.

V. The representative of the Navy on the site on September 3, 1918, had in his office a tracing of a map which he had made from a map in the possession of the War Department, which showed a section of the island and shore line. This map from which the tracing was made was prepared by the War Department for the purpose of making an estimate in connection with the proposed channel improvement through Hell Gate. This map was not shown to the plaintiff, and neither the plaintiff nor any of its officers saw this map prior to the submission of the bid for the work.

VI. Shortly after the work was commenced solid rock was encountered. The plaintiff notified the United States of this fact, and asked that proper steps be taken to check the cost of that work, and claimed that this work should be done as an extra to the contract on a basis of cost plus 10 per cent. After the completion of this work it was ascertained that the cost of rock excavation was $30,012.99, plus 10 per cent of which would be the sum of $3,001.29.

The contract provided that the contract price should cover all expenses connected with the work to be done under the contract. It also provided that should the contractor at any time consider that it was being required to furnish any material or labor not called for by the contract a written itemized claim for compensation therefor should be submitted by it to the officer in charge, who was required to refer the same to the Navy Department, Bureau of Yards and Docks, for‘decision, and the plaintiff agreed to accept the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding. This item for the cost of rock excavation was referred to the Bureau of Yards and Docks, and it decided that it would *450not allow any payment for the extra work claimed by the plaintiff.

MEMORANDUM BY THE COURT.

There is no evidence in this case that any misrepresentation, or representation of any sort, was made by the defendant to the plaintiff as to rock, either before or after the plaintiff made its bid. The superintendent of the plaintiff visited the site of the work before the plaintiff made its bid and made an examination of the site and reported to the plaintiff the result of his examination, and upon that report the plaintiff based its bid.

The cases cited in the brief of the plaintiff do not apply here, as the facts in this case differ essentially from the facts proved in the cases cited.

The petition is dismissed.