#### WALTER D. LOVELL v. THE UNITED STATES

[No. B-306.

Decided February 23, 1926]

*On the Proofs*

*Contract; proposal for bids; misrepresentation.*— Where a proposal for bids says that the site of the building to be constructed should be examined before bidding, and blue prints furnished therewith do not fully disclose the difficulties to be encountered in clearing the site and excavating, and plaintiff’s bid is accepted and he signs the contract without first examining the site, there was no misrepresentation for which damages can be recovered.

*Same; decision of inspecting officer.-*— Where a construction contract provides that the decision of an inspecting officer shall be binding, and in compliance with his decision the contractor makes alterations changing the quality of the lumber used, the contractor can not recover the extra expense he is put to. *Same; changes; order in writing.*— Where the contract provides that no claim on account of changes shall be made unless ordered in writing, the contractor can not recover damages for changes not requested in writing.

*Same; compensation for extra worh; procedure.*— Where a contract provides what must be done in order to obtain compensation for extra work, the procedure so prescribed must be followed.

*,The Reporter’s*statement of the case:

*Mr. M. Walton Hendry*for the plaintiff.

*Mr. Dwight E.*Rorer, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is, and was at the time of the occurrences hereinafter mentioned, an engineer and contractor engaged in the construction of buildings and other public works and had his principal place of business at Minneapolis, Minn.

II. Under date of January 19, 1917, the plaintiff and defendant executed a contract for the construction at Rock Island Arsenal, Ill., of one concrete hollow-tile house, 350 feet of standard railroad, and one loading platform, as more fully appears by the said contract, which, together with specifications therefor, is attached to the petition as Exhibit A and as such is made a part of these findings by reference.

*757III. The defendant furnished blue prints of the project on the basis of which plaintiff’s bid was made. Besides showing the form and structure of the building and loading platform to be erected and the railroad track, these blue prints also contained a contour map of the site in question. The plaintiff did not visit the site of the proposed structure until after the contract had been awarded to him. This examination showed large piles of rock varying in size from that of a man’s fist to a size large enough to require the strength of two men to lift. These rocks were apparently the unused remains of the material used in the construction of the other buildings on the arsenal grounds and had lain in this position for such a length of time that grass, weeds, and trees had grown up in and around, the piles. Had there been an examination of the site prior to the signing of the contract it would have appeared that these rocks were on the surface of the ground. The contour map heretofore referred to showed the elevation of the dirt surface above a fixed point but gave no indication of the elevation caused by the piles of rock. The contour map was so drawn that the site of the structure was located near its right-hand margin while near its left-hand margin appeared in bold print the words “ loose rock.”

*TV.*The plaintiff proceeded to clear the site of this rock, brush, and trees. The cost to the plaintiff in labor for the removal of these was $441.50.

Y. Cross-section sketches purporting to show the profile of the rock underlying the site of the project appeared on the blue prints. On the basis of these sketches plaintiff estimated the amount of rock excavation which would be required. The sketches -disclosed no soundings made and showed no more than the elevations of the rock formation. They are made a part of this finding by reference thereto.

Following the making of the contract but before construction was begun the defendant furnished the plaintiff with other cross-section sketches differing from those first furnished.

The situation as reflected by these two sets of sketches differed to some extent from the real situation as disclosed when excavation was begun. To meet the requirements of *758the foundation plans plaintiff had to excavate 240 cubic yards of rock more than the original sketch indicated would be necessary. The cost of this additional excavation was $720.

VI. The sheathing for the roof of the building was rejected by the defendant’s inspector on the ground that some of it had loose black knots, some of it was strained, and some of it was shaky. It was impossible at that period of time for plaintiff to obtain any lumber sufficient to meet the requirements of defendant’s inspector, and defendant therefore permitted the plaintiff to use the best of said lumber, provided he, the plaintiff, cover the underside of the roof with clean lumber. The cost of this additional lumber was $1,060 and for the labor of putting it on $852.93.

VII. During the construction of the building it became apparent that the defendant had made an error in the plans, so that had the building been constructed in accordance therewith an open air space of approximately 7 inches would have appeared between the top wall and the cornice. The plaintiff was directed to submit a bid for the closing of this space. The plaintiff submitted a bid of $79.20 and was thereupon directed by the defendant to proceed with such work. Thereafter about $56.10 was paid by the defendant, leaving the balance of this account in the sum of $23.10.

VIII. The original plans called for a building consisting of nine bays or sections. A down spout on each side of the building was shown between bays 1 and 2, bays 5 and 6, and bays 8 and 9. Appropriation for a building of that size failed, and before the plaintiff’s bid was accepted the defendant required the submission of a proposal for constructing the building with seven sections, leaving out sections 1 and 2. Plaintiff offered a new proposal, based on the elimination of bays 1 and 2, and in doing so did not include the two down spouts between bays 1 and 2 in his estimate of reduced costs. But defendant, however, intended the full number of six spouts to be a part of the building as reduced in size and refused to accept the building unless the full number of spouts wex-e installed. The installation of these down spouts cost the plaintiff $48.

*759IX. A portion of the concrete foundation was rejected by the defendant’s inspector because it did not present a smooth surface appearance. The plaintiff was required to tear out and repair this part of the foundation and wall at an expense to the plaintiff of $800.

X. On account of the additional time required in labor on the items heretofore set forth plaintiff was obliged under the laws of Illinois to expend the sum of $198.56 additional for insurance against liability under the workmen’s compensation act of that State.

XI. With the exception of the reduced expenditure on the reduction of the size of the building, as found in Finding YIII, the work for which plaintiff claims compensation was not done as the result of a written order of anyone representing the defendant.

XII. Plaintiff’s claim was presented to the Chief of Ordnance of the United States Army October 4, 1918, and was by him referred to the Auditor for the War Department October 15, 1918. Thereafter the claim became the subject of a hearing before the Hoard of Contract Adjustment and was recommended to be allowed in part, but, on December 13, 1921, on appeal the Comptroller General disallowed the claim.

The court decided that plaintiff was not entitled to re-eover.

Booth, Judge,

delivered the opinion of the court:

- The plaintiff on January 19, 1917, contracted to do certain construction work at the Rock Island Arsenal, Rock Island, Ill. The contract called for a concrete hollow-tile house, 350 feet of standard railroad, and one loading platform. The Government prior to soliciting bids for the work furnished blue prints and detail plans and specifications of what would be exacted in reference to the same, and the plaintiff had access to and examined the same. Among the blue prints furnished was a contour map. It disclosed the elevation of the dirt surface above a fixed point within the boundaries of the site selected for the location of the work. It did not within this area show the presence of *760loose rocks upon the surface of the ground nor the elevation caused thereby. The plaintiff, without visiting the site, relied upon this contour map as an exact and precise representation of what amount of excavating he would have to do to render the site available for the construction work to be done. When he began work he found embedded in the ground a considerable quantity of rock varying in size and difficult to excavate and remove because the same had been long since dumped upon the ground and was coverecl by a growth of grass, weeds, and trees. The plaintiff now contends that he is entitled to extra compensation for removing this pile of rocks.

The contention is apparently based upon a misrepresentation and the cases of *Hollerbach*v. *United States*(233 U. S. 165) and *Christie*v. *United States*(237 .U. S. 234) are relied upon. The cases are inapposite. A contour map such as herein relied upon was designed to disclose no more than elevations of surface of the earth; it may not be construed into a warranty that every impediment to clearing the site for the performance of the work is clearly shown thereon. The plaintiff assumed the risk of encountering extraneous deposits which might exist above the surface of the ground. The specifications so warned him, for they provide as follows : “ The location and grade of the buildings shall be as indicated on the drawings. The site shall be cleared by the contractor for the reception of the structure and for that purpose should be examined by him before bidding.” The plaintiff having obligated himself to clear the site and been expressly warned to view the premises may not now complain that he came across difficulties which an observance of the specifications would have obviated and difficulties not unusual and to be anticipated. As well might he claim additional pay for removing trees and brush.

The next complaint centers around the blue prints furnished him as to the estimated quantities of rock excavation necessary to be made. The contention with respect to recovering for this item is identical with the preceding one. Two sets of blue prints disclosing in cross section the rock formation beneath the surface of the ground for foundation purposes were furnished the plaintiff. After the excavation *761work had been completed the plaintiff discovered an alleged error as to the quantity of rock removed, which he ascribes to a misrepresentation in the blue prints. The claim is that in computing the amount of excavation to be done in accord with the blue prints furnished by the defendant it is found that the plaintiff was compelled, at a cost of $720, to remove 240 cubic yards of rock more than the blue prints disclosed as present. In other words, the blue prints were not precisely accurate as to quantities of rock present. The elevation of the rock surface was not correctly depicted by the blue prints, and being so a misrepresentation follows. The blue prints furnished the plaintiff on their face exhibit no words constituting a warranty that the quantities of rock to be excavated will in every particular conform exactly to a computation of the amount to be found by figuring the same upon the basis of the cross sections shown. It is idle to contend that the representations of the blue prints admit of no variation as to quantity, and the defendant be held to a degree of exactness which common experience has long since established as impossible of attainment in this class of work. The plaintiff contented himself with reliance upon the blue prints; he did not take the trouble in an enterprise of this importance to visit the site, as he was invited to do, and discover for himself the difficulties attending the undertaking. Having neglected this important step, we are now asked to hold the defendant responsible on the theory of a misrepresentation, alleged to be established by proving that it must have been erroneous because more rock was encountered than could have been within the area shown upon the blue prints. The contention is without merit. *Simpson & Co.*v. *United*States, 172 U. S. 372; *Fonder Co.*v. *United*States, 48 C. Cls. 198; see also paragraph 2 of specifications.

Specification 66 provides for roof construction. Specification 64 specified the quality of lumber to be used in woodwork. The plaintiff insists that he observed the specifications with reference to the quality of lumber in the construction of the roof, but that the same was rejected by the inspector as not in accord with the contract. Two insurmountable difficulties prevent a recovery for this item. First, the plain*762
      *tiff compromised the contention*with the inspector and proceeded with th'e work according to their mutual agreement. Second, article 3 of the contract contained, among other things, this express provision: “ The decision of the inspecting officer as to the character of the work and the quality and quantity of the materials furnished shall be binding.” *Plumley*v. *United*States, 226 U. S. 545, 547; *Crook*v. *United*States, 270 U. S. 4; *Wood*v. *United*States, 258 U. S. 120.

The item embraced in Finding YII is concluded by what is said in disposing of the preceding item. The contract pointed out in express terms the precise manner of making changes in the contract work. The final paragraph of Article 10 recites: “No claim for addition or deduction on account of any change will be made unless the same was ordered in writing.” The plaintiff had an undoubted right to refuse to proceed with the work brought about by a change in the plans until he received the order in writing. We find no authority in the contract to waive'the provision. The plaintiff knew the provision was in the contract, and he was derelict in proceeding without the written order, and in greater fault in accepting what the defendant paid. *Plum-ley*v. *United*States, *supra.*

Finding VIII depicts a situation which clearly discloses the imposition upon the plaintiff of extra work and the furnishing of materials not required by the contract or specifications. The defendant, because of lack of available appropriations, was compelled to reduce the size of the concrete hollow tile building. The original plans provided for a building 180 feet in length, consisting of nine bays. In order to come within available funds the building was reduced to 140 feet in length and bays 1 and 2 eliminated to accomplish the same. The plaintiff reduced his bid accordingly and the contract as finally executed called for the smaller building. The specifications called for two down spouts attached to bays 1 and 2; i. e., there were six down spouts from the roof specified in the original plans and only four in the modified' plans. When bays 1 and 2 were eliminated it necessarily eliminated all that was required in constructing the same; but the defendant notwithstanding *763this fact, compelled the plaintiff to put on six down spouts, the same as in the original plans. Acceptance of the building was refused until the plaintiff complied with this order. The plaintiff did the work under protest, but he should have done more. The contract, in Article 10, pointed out a method of procedure in case of a dispute of this nature. The plaintiff, instead of pursuing his remedy under the contract, contented himself with a protest and went forward with the work without a written order so to do, or obtaining the decision of the Chief of Ordnance as well as the Secretary of War under Article 13 of the contract. When the plaintiff signed the contract he knew of these provisions and what was required to protect .his rights. Article 16 of the specifications is especially explicit upon the subject of claims for extra work and the court is powerless to read these provisions out of the contract.

The item claimed under Finding IX is not allowable. The same falls within the authority conferred by the contract on the inspector in Article 3 of the contract, a subject heretofore discussed.

The case of *Crook*v. *United States, supra,*determines the claim under Finding X. The final paragraph of Article 6 of the contract brings the same within the cited case. The contract provides as to delays: “ But none of the above causes shall constitute the basis for an action of damages against the United States.”

The petition is dismissed. It is so ordered.

GRai-iam:, *Judge;*Hay, *Judge;*Downey, *Judge;*and Campbell, *Ghief Justice,*concur.