280 Reporter's Statement of the Case Under the provisions of Article 3 of the contract the drawings and specifications of the contract are changed to provide for a pile foundation for the north main channel pier of the Bourne bridge made necessary because of the character of material disclosed in the excavation. The north main channel pier of this bridge shall be modified as follows: Stop excavation at elevation 55 instead of elevation 48, drive 560 thirty-eight (38) foot oak or pine bearing piles under the base with cut-off at elevation 59, excavate ground swell to elevation 58, construct base 22 feet thick instead of 25 feet thick, cut sheet piling at or below elevation 88 and leave that portion below such elevation in place as a protection to the base instead of pulling and salvaging all sheet piling, back fill between sheet piling left in place and pier shafts with gravel and small boulders, and modify pier shifts, all as shown on the sheet entitled "Changes in sheet No. 6 contract plans and changes in specifications" attached hereto. By this order the contract price was increased by $36,575. The next Change Order, No. 6, was issued July 11, 1934, and in part provided: Under the provisions of Article 3 of the contract the drawings and specifications of the contract are changed to provide for a pile foundation for the two main channel piers of the Sagamore Bridge made necessary because of the character of material disclosed in the excavation. Each of the two main channel piers shall be modified as follows: Stop the excavation approximately at elevation 54 instead of 46, drive 560 oak or southern yellow pine bearing piles of lengths ranging from 30 to 45 feet under the base with cut-off at elevation 57 for initial operation and 582 for final operation, excavate ground swell to elevation 55.5, construct base 22.5 feet thick instead of 25′ thick, cut sheet piling at or below elevation 83 and leave that portion below such elevation in place as a protection to the base instead of pulling and salvaging all sheet piling, back fill between sheet piling left in place, and pier shafts with coarse gravel and small boulders, and modify pier shafts, all as shown on sheet entitled "Changes in Sheet #6 of contract plans and changes in specifications" attached hereto. The contract price was increased in this order by $75,840. On September 7, 1934, Change Order No. 8 was issued as under Article 3 of the contract, providing for a lesser depth Reporter's Statement of the Case 92 C. Cls. for the two main channel piers of the Sagamore Bridge, and for the use of grout to consolidate the foundation. This order stopped the excavation in the eight most easterly bays of the south main channel pier at an average elevation of approximately 59.5 instead of elevation 55.5, and stopped the excavation in all of the north main channel pier at an average elevation of approximately 58 instead of 55.5. This change order did not modify the consideration. Later, on October 20, 1934, by Change Order No. 9, the grouting specification in Change Order No. 8 was omitted, decreasing the contract price by $960.00. As a result of these change orders Bourne South (June 21, 1934) rested on undisturbed natural soil, Bourne North (June 29, 1934) on wood piles, Sagamore North and South (July 11, 1934) on wood piles. 10. Toward the completion of the job the surface of the concrete, exposed to public view, was marred by sandstreaking. Sand-streaking is visible when there has been left on the surface a commixture of sand, cement, and water, the water has been removed or has evaporated, and the superficial cement, having become separated from the designed mixture, falls or is brushed away from the surface, leaving a surface roughened by the still adhering sand. Sand-streaking is a matter of appearance, not affecting strength or durability of the concrete. The cause of the sand-streaking was not known to either party. Where it made itself manifest, mechanical means were taken to make the surface smooth and presentable, by the use of carborundum bricks, or otherwise. The contract gave detailed specifications as to the concrete mix. Specifications, Articles 201-206, 501–510. Defendant's officers, in order to prevent further sandstreaking, ordered the design of the concrete mix changed. The object of the change was to eliminate sand-streaking. Defendant's engineers did not know that the change would in fact have the desired effect, and they based the change on what in their judgment was a probability. The design then being used for the concrete in question, Class B, was not that originally specified, and the Government's supervising engineers on May 8, 1934, directed plaintiff to use the pro 280 Reporter's Statement of the Case portion tabulated in "Clause 403" (meaning Article 503) of the specifications of 1 unit by volume of cement to 62 units of aggregate. Later in May a change in the surface of the forms was considered by the supervising engineers as a remedy for sand-streaking. On June 4, 1934, the supervising engineers ordered plaintiff to increase the time of mixing from a minimum of 12 minutes to a minimum of 2 minutes, with a view to eliminating sand-streaking. Again, on June 27, 1934, other detailed directions were given plaintiff by the supervising engineers as to placement of the concrete, using gravel for coarse aggregate, and clean, smooth plywood panels in the forms. All of these measures were aimed at securing a surface free of sand-streaking. None of them was successful, although the sand-streaking was somewhat reduced. Sandstreaking is not unusual in work of this character. The change from a mixing time of 12 minutes to 2 minutes entailed an additional cost to plaintiff of $14,659.32, without profit. The additional cement required by the change in design of the mix cost plaintiff $17,642.11, without profit, and the additional expense thereto because of a lower slump requirement in the mix was $12,137.10, without profit. Defendant's engineers also tried to reduce sand-streaking by making the pours of a lesser content. Plaintiff was accordingly on June 29, 1934, ordered to place additional construction joints in pylons of the abutments. This resulted in increased cost to plaintiff of $2,575.12, without profit. The surface of the pylons was too rough and unsatisfactory to the supervising engineers, and they ordered plaintiff to plaster the surface with a mixture of sand and cement. Plaintiff did this work at a cost of $3,700.00, without profit. 11. In the fore part of the contract period there were electric power lines and poles on both sides of the canal that ran across the main channel piers and had to be removed because of interference. They were being used in the operation of the canal. 291825-41-CC-vol. 92- -21 Reporter's Statement of the Case 92 C. Cls. Plaintiff objected to removing them on the ground that there was no contract obligation on its part to do so. Plaintiff was told, by whom does not appear, it would have to re-route them, and it did so, at a cost of $1,272.00. Request for payment was refused by the contracting officer January 6, 1934, on the ground that the expense was, under Article 10 of the specifications, to be borne by the contractor. 12. At the conclusion of the work defendant withheld from plaintiff $1,000 as liquidated damages under Articles 9 of the contract and 3 of the specifications for one day's delay. There is no proof that this withholding was erro neous. Extension of time was granted by the contracting officer for all other delays. 13. By reason of encountering boulders in the foundations of the main channel piers of the Bourne and Sagamore bridges, in size, number, and arrangements, different from that on which it based its bid, plaintiff's subcontractor, Blakeslee-Rollins Corporation, incurred an expense in labor, material, and overhead of $210,441.13, in excess of that entering into the cost figures of its bid, prior to the several dates of the change orders on the four main channel piers, distributed as follows: Bourne North (Prior to June 29, 1934) $42, 404. 31 55, 043. 77 47, 747. 69 65, 245, 36 210, 441. 13 A fair profit is 10 percent of cost, which, on the excess, amounts to $21,044.11, a total of $231,485.24. 14. The plaintiff's earnings on the four main channel piers, up to the time work was started on the change orders, which was on or about July 1, 1934, were as follows: 280 Opinion of the Court The amount of the earnings as thus found represents payments to which the plaintiff's subcontractor was entitled in accordance with the calculations and certificates of the United States Engineer based on the original contract price and the work completed to that time apportioned to the total amount to be done to form the completed structure. 15. On December 24, 1934, plaintiff executed a release to the United States of all claims arising under the contract in suit, saving and excepting the items here sued on. These items were made the subject of a claim thereafter against the War Department, which was denied by the Comptroller General of the United States June 8, 1936, and they have not been paid. 16. There is no satisfactory proof as to the prospective cost of excavation calculated according to a fair and reasonable inference as to the subsurface boulder situation drawn from information available to either party before excavation began. The court decided that the plaintiff was entitled to recover. WHALEY, Chief Justice, delivered the opinion of the court: The plaintiff, P. J. Carlin Construction Company, entered into a contract with the defendant, on November 27, 1933, by the terms of which it agreed to furnish all labor and materials and perform all work required for the construction of the substructures of two highway bridges over the Cape Cod Canal, Massachusetts, for the lump sum consideration of $1,327,700, the work to be performed in accordance with plans and specifications which were made a part of the contract. The bridges in question are known as the Sagamore Bridge and the Bourne Bridge. The substructure of the Sagamore Bridge consists of four separate units of masonry, two abutments and two piers, commonly referred to as channel piers, with one abutment. and one channel pier on each side of the canal. The substructure of the Bourne Bridge consists of eight separate pieces of masonry, two abutments and six piers. Of the six piers, two are commonly called channel piers and four intermediate piers. One abutment, one channel pier, |