#### MORRIS & CUMINGS DERDGING CO. v. THE UNITED STATES

[No. D-144.

Decided January 11, 1926]

*On the Proofs*

*Contract; effect of second contract.*— The plaintiff proceeded to dredge the area formerly covered by Pier No. 5, ti. S. Shipping Board terminal, Hoboken, N. J., and was obliged to desist owing to the failure of another Government contractor to remove piles which had formed part of the structure of said pier. The Government thereupon gave plaintiff a contract to remove all piles exceeding six feet in length, for a consideration stated therein. *Held,*that by entering into the second contract the defendant abandoned any claim it might have that plaintiff was obliged under its first contract to r'emove the piles forming part of the said structure, and that the plaintiff was entitled to the compensation agreed upon in the second contract as well as that in the first.

*The Reporter’s*statement of the case:

*Mr. James D. Carpenter*for the plaintiff. *McDermott, Enright dk Carpenter*were on the brief.

*Mr. Frederick A.*'Whitney, with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant. *Messrs. Lisle A. Smith, Dan M. Jackson*and *Glen R. Snider*were on the briefs.

*412The court made special findings of fact, as follows:

I. Morris & Cumings Dredging Co., plaintiff, is a corporation organized under the laws of the State of New York, with its principal office and place of business in New York City; and on December *5,*1922, the plaintiff entered into a written contract with the United States whereby it agreed to dredge the slip between Piers 4 and 5, the area covered by Pier 5, and the slip between Piers 5 and 6, situated at the United States Shipping Board Terminal, Hoboken, N. J., for which the United States agreed to pay the sum of 15.94 cents per cubic yard for each cubic yard of material dredged and removed. A copy of said contract is attached to the petition, marked “ Exhibit A,” and is made a part hereof by reference.

II. The proposal for bids for the removal of Pier 5 and dredging at the Shipping Board Terminal, Hoboken, N. J., is attached to the petition of the plaintiff marked “ Exhibit B,” and is made a part hereof by reference. The said proposal is made a part of the contract of the plaintiff with the United States.

III. Before bids were submitted the Shipping Board also furnished prospective bidders, including this plaintiff, two blue prints, one showing the area to be dredged, with soundings and outlines of Pier 5; the other showing the construction of Pier 5 in considerable detail. These blue prints showed there were approximately 3,100 piles in Pier 5.

IY. The “ Supplementary specifications ” contain the following provisions:

“ It is desired that in addition to bids for removal of Pier No. 5 according to specifications already issued another bid be submitted according to the following:

“Aetiole IY. The contractor shall entirely remove Pier No. 5, United States Shipping Board Terminal, Hoboken, New Jersey, as shown on the plan.

“(1) All piles shall be pulled, not broken off, and made into rafts suitable for towing, and such rafts shall be left in slips adjacent to Pier No. 5.

“(2) The burned planking in the deck or flooring shall be disposed of by the contractor.

*413“(3) The stringers or capping shall be either disposed of by the contractor or stored on the bulkhead at the option of the owner. This to be determined as the work progresses.

“No piles nor timber shall be allowed to sink or go adrift.”

Also,

“ Article I. The work to be done under this contract consists of:

“(it) Under contract A, the removal of Pier 5, United States Shipping Board Terminal, Hoboken, N. J., at the foot of First Street, Hoboken, N. J., as shown on plan.

*“(b)*The dredging under contract B, which embraces the removal of all material other than solid rock and includes all mud, sand, shells, clay, gravel, ashes, loose stone, bricks, old logs, piles driven or not driven, cribwork, solid filling, old wrecks, boulders, riprap, etc., between Piers Nos. 4 and 6, United States Shipping Board Terminal, Hoboken, N. J.”

Article VI contains these provisions:

“ It is understood that the foregoing estimates, while calculated from the best information obtainable, are approximate only, and the persons bidding are cautioned that the owner does not hold himself responsible that the foregoing quantities shall strictly obtain in the work; and bidders are required to examine the soundings on file in the office of the engineer, and the premises, and take such steps as may be necessary each for themselves of the quantity and other circumstances affecting the cost of the work.”

Article VII provides that the depth to which dredging was to be done would be specified.

Article VIII provides:

“All dredged material removed from the work will be measured in the scows or other vessels to be used for conveying it away, and any material not so measured before removal will not be paid for.”

Said “ Supplementary specifications ” appear in evidence as part of defendant’s Exhibit C, and are by reference hereby made a part of this finding.

V. The Shipping Board awarded contract A for the removal of Pier 5 to the Robbins-Ripley Co. (Plaintiff did not bid on this contract.) The said contract of the Robbins-Ripley Co. was executed on December 6, 1922.

*414Said contract contains in paragraph C thereof the following provisions:

“ The contractor shall, * * * in strict conformity to the hereinafter contained or hereunto annexed specifications and supplementary specifications * * * and in a good, substantial, and workmanlike manner, complete the removal of Pier No. 5 * * * as shown on plan, together with all work incident thereto, in accordance with the specifications and amended supplementary specifications * *

Also in paragraph 2:

“Time is of the essence of this contract, and the contractor shall carry on the work with such force and in such manner and order as may be directed by the engineer. He shall execute all the work, in every respect, in a thorough and workmanship manner, and he shall fully and entirely complete all the work under this contract on or before the expiration of sixty (60) consecutive calendar days.”

The plaintiff could not perform its contract to dredge the area of Pier 5 until the said pier was removed and the piles pulled as provided for in the contract with the Robbins-Ripley Co. The said Robbins-Ripley Co. did not pull all of the piles in the area of Pier 5.

YI. During the latter part of December, 1922, plaintiff entered upon the work required to be done by its contract, and dredged the greater part of the slips between Piers 4 and 5 and between Piers 5 and 6 before the contractor to Avhom contract A was awarded (the Robbins-Ripley Co.) had completed the work of removing Pier 5 under contract A.

On January 25, 1923, plaintiff suspended work under contract B, due in part to weather conditions and in part to the delay of said Robbins-Ripley Co. in completing said contract A.

VII. On April 27, 1923, plaintiff resumed work under contract B. At that time some of the piles which had been a part of Pier 5 stood above the water at the outshore end of the pier, where they served the purpose of warning river craft to keep off the pier site.

Plaintiff’s dredge commenced one cut 50 feet wide across the outer (river) end of Pier 5 and encountered a large number of piles that were below the surface of the water. *415After completing tbe first cut plaintiff started a second cut 50 feet wide across the end of said Pier 5 and again encountered a large number of piles in the area of Pier 5. Plaintiff had been using dredge *No.*7, which was a large dredge capable of lifting 28 cubic yards of mud in each bite. She was the largest dredge of her class in the world. Plaintiff took dredge *No. 7*from the pier site and placed dredge *No. 5*at work thereon. Said dredge *No. 5*was capable of taking 18 cubic yards of mud at a bite. Before dredge *No. 5-*had finished the second 50 feet across Pier 5 she also encountered a large number of piles, and was withdrawn and put on a third cut 50 feet wide across Pier 5. Dredge *No. 5*worked on this cut a short while, encountered a large number of piles, and was then withdrawn by plaintiff.

VIII. From April 28, 1923, to May 10, 1923, a good- deal of correspondence was had between the plaintiff and representatives of the Shipping Board, the plaintiff complaining that it was being delayed at great loss in its dredging operations at the site of Pier 5 by reason of piles encountered at that site. The plaintiff stated to the representatives of the Shipping Board that it had found *“*hundreds ” of piles which had not been pulled and were broken off. On May 3, 1923, the plaintiff notified the defendant that it had stopped all work at the site of Pier 5 and that it would not continue the work there until the pier site was delivered to them in accordance with the terms of the contract. The plaintiff also wrote the defendant on May 4, 1923:

*“*Our contract does not call for the removal of piles or other material constituting Pier No. 5, which should have been removed by another contractor under contract A.”

The Shipping Board on May 9, 1923, wrote to the plaintiff as follows:

“ Your dredge *No. 7*was taken off of the job at Hoboken by you at 2 a. m., Monday, May 7th.

“ Your dredge *No. 6*was taken off of the job at Hoboken by you at 3.45 p. m., May 7, after it had been ordered to turn to between Piers No. 5 and No. 6 and dredge said slip.

“ This constitutes an abandonment by you of the work to be done under this contract. Accordingly, unless you have resumed work by 8 a. m., Friday, May 11th, we hereby serve written notice upon you, as provided* in paragraph K of the *416contract, that we will forthwith proceed to have this work completed, holding you liable for all damages resulting therefrom.”

IX. On May 10, 1923, Col. Robert M. Watkins, operating manager of said Shipping Board, located at its New York City offices, upon instructions from Mr. Joseph Sheedy, one of the vice presidents of said Shipping Board, called on Mr. George Leary, president of plaintiff company, and negotiations were had regarding the pulling and removal of the piles in the area of said Pier No. 5, but no agreement was reached. During said interview Mr. Leary told Colonel Watkins that his dredges had pulled approximately 1,100 piles from the area of Pier 5 between April 27 and May 3, when they quit work on that area; that the pier being 950 feet long, there would be over 10,000 piles in this pier area if the same ratio continued. Colonel Watkins said that he did not believe there would be any such number.

Colonel Watkins left Mr. Leary, returned to his own office, and telephoned the substance of his interview with Mr. Leary to Vice President Sheedy at Washington, D. C., and was then instructed by said Sheedy to return to Mr. Leary the following day and offer him $6 per pile.

X. On May 11, 1923, a contract in writing was entered into between the plaintiff and the United States whereby it was agreed that the United States would pay the plaintiff $6 per piece for all piles exceeding 6 feet in length pulled and removed. A copy of said contract is set out in paragraph VII of the petition of the plaintiff and is made a part hereof by reference.

XI. On May 24, 1923, the plaintiff commenced work on said pier site. By July 3, 1923, the plaintiff had completed all the work which it had undertaken to do in accordance with the provisions of the two contracts which it had entered into with the United States.

Under contract of date December 5, 1922, it dredged and removed 399,853 cubic yards of material, which at the contract price amounted to the sum of $25,111.12, which sum has not been paid the plaintiff.

Under the contract of May 11, 1923, the plaintiff pulled and removed a total of 11,902 piles from the area of Pier 5, *417which at the contract price amounted to the sum of $71,412. Of this sum the United States paid the plaintiff the sum of $8,556, leaving a balance due and unpaid of $62,856. The sum of $8,556 was payment for the pulling and removal of 1,426 piles from the site of Pier 5, and said sum was included in the bill rendered defendant by plaintiff under date of June 1, 1923, and was paid without protest or question by the defendant.

XII. The defendant has filed a counterclaim claiming that the sum of $8,556 set out in Finding XI was illegally paid.

The court decided that plaintiff was entitled to recover.

Hat, Judge,

delivered the opinion of the court:

This is a suit against the United States in which the plaintiff claims the sum of $87,967.12 by reason of the performance by it of two contracts had by it with the United States. This sum is made up of two items, one of $25,111.12 and the other of $62,856.

The first item of $25,111.12 is claimed under the contract of December 5, 1922, which provided for the dredging of certain slips, and the area of Pier 5 at the site of the United States Shipping Board Terminal, Hoboken, N. J. It is not denied that the dredging was done under the terms of the contract, nor is there any question as to the quantity of material dredged and removed by the plaintiff. The plaintiff is only claiming to be paid the contract price for the work performed by it, and is clearly entitled to it.

The item of $62,856 is claimed by the plaintiff under the provisions of the contract of May 11, 1923. The United States, however, contends that the plaintiff did no more under the contract of May 11, 1923, than it was already obliged to do under the contract of December 5, 1922, and that therefore there is no consideration for the contract of May 11, 1923.

It appears from the facts found that the plaintiff agreed to dredge certain slips between certain piers and the area of Pier 5. It also appears that before the dredging of Pier 5 could be done it was necessary that the structure *418of that pier should be removed, and that the piles which were a part of the structure of said pier should be pulled and removed. A contract was entered into between the United States and the Robbins-Ripley Co. whereby that company agreed to remove the structure of Pier 5, and to pull the piles which constituted a part of the structure of Pier 5. Until that work was completed it was manifestly impossible for the plaintiff to dredge the area of said pier.

The Government contends that the contract of December 5, 1922, obliged the plaintiff in its performance to remove piles from said area, and relies upon the following specification to sustain that contention:

> “ The dredging under contract B [which is the contract of December 5, 1922], which embraces the removal of all material other than solid rock and includes all mud, sand, shells, clay, gravel, ashes, loose stone, bricks, old logs, piles driven or not driven, cribwork, solid filling, old wrecks, boulders, riprap, etc., between Piers Nos. 4 and 6, United States Shipping Board Terminal, Hoboken, N. J.”

But this provision of the contract does not refer to the dredging and removal of piles which constitute a part of the structure of Pier 5. That work was to be done by another contractor under another contract.

When the plaintiff proceeded to dredge the area of Pier 5 it found that the Robbins-Ripley Co. had not pulled and removed the piles which were a part of the structure of said pier. The plaintiff thereupon notified the Shipping Board that it was being greatly delayed by reason of the condition of that area, that there were a great many piles in said area which had not been pulled and removed, and finally removed its dredges and stopped work on that site.

The defendant at first insisted that the plaintiff was bound under its contract to do this work, and threatened to proceed under paragraph K of the contract, which provided that the United States could proceed with the work and hold the plaintiff liable for all damages. This notice was given the plaintiff on May 10, 1928. But on the afternoon of that day the representatives of the Shipping Board entered into negotiations with the plaintiff, having in view the pulling and removal of the piles in the area of Pier 5 by the plaintiff. *419No agreement was reached on that day, but on May 11, 1923, the parties agreed upon the price of $6 per pile, and then entered into the contract of May 11, 1923, whereby it was agreed that the plaintiff should be paid the price of $6 each for all piles exceeding 6 feet in length. By entering into this contract the defendant abandoned its position that the plaintiff was obliged to pull and remove these piles under the provisions of the contract of December 5, 1922; and by not undertaking to proceed under paragraph K of the contract admitted that it was no part of the plaintiff’s obligation to do this work. The United States derived a distinct benefit from the execution of the contract of May 11, 1923; the plaintiff performed the work required of it by said contract; there is no dispute as to the number of piles pulled and removed by the plaintiff, and it is entitled to be paid for the work it performed.

The United States paid for the pulling of 1,426 piles after May 4, 1923, without protest, but claims that it should not have done so, and asks that the amount so paid, $8,556, be set off against any amount which may be found due to the plaintiff. It bases this claim upon the same reasoning which it claims as to all piles pulled under the contract of May 11, 1923, and its counterclaim can not be allowed.

It is further contended by the Government in its’ printed brief that the contract of May 11, 1923, is not enforceable for the reason that the consent of the United States to the same was obtained under duress. This contention was abandoned by counsel for the United States in the oral argument. Indeed, we could not suppose that the United States could have been forced into executing this contract by the plaintiff, and no evidence was introduced to sustain the contention. We conclude that the plaintiff is entitled to be paid for pulling and removing 10,416 piles, for which it has not been paid.

Judgment will be entered against the United States for $87,967.12.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.