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Opinion of the Court plain that they were misled or damaged by the defendant because of that fact.
The further contention that plaintiffs were misled by the failure of the contracting officer to inform them of the boulder difficulties then being encountered by a dredging contractor in widening and deepening the canal at another point is without merit. Plaintiffs knew that boulders were distributed throughout the entire area of the canal and were liable to be encountered at any point. This information if imparted would have added nothing to the knowledge already possessed by plaintiffs and would in no way have aided them in reaching a conclusion as to what the situation in respect
to the presence of boulders might be in this case. The court in the Blakeslee case, supra, after careful analysis of the cases including the principal ones relied upon herein by plaintiff, reaffirmed the rule as stated in General Contracting Corporation v. United States, 88 C. Cls. 214, 248, reading :
In order to sustain misrepresentation it must be proven that the defendant's official made a boring and found a certain condition and did not register exactly what was found, but, on the contrary, regis
tered a different condition from what the boring showed. In the Blakeslee case, supra, Judge Williams stated:
The defendant having furnished to plaintiffs all the information in its possession in respect to the subsurface conditions existing at the site of the piers, without misrepresentation or concealment in any respect, is not liable to plaintiffs for any loss incurred by them in the
performance of the work. There is no claim by plaintiff that defendant's responsible officers failed to tabulate and make available all information revealed by the borings made at each of the sites of the main channel piers for the two highway bridges. Plaintiff and its subcontractor were informed in the specifications for the work which accompanied the invitation to bid that wash borings had been made under direction of the contracting officer and of the engineer at various points at the sites of the work and that dry samples of the materials obtained had been preserved and labeled. Plaintiff and its
92 C. Cls. Opinion of the Court subcontractor were experienced contractors and knew what the wash-boring method was. They were further informed in Article 34 of the specifications that borings apparently indicated that boulders might be encountered in varying numbers and sizes at any or all of the excavations to be made for the work and bidders were warned to take into account the possibility that conditions affecting the cost or quantities of work to be done might differ from those indicated.
It follows from the above that the portion of plaintiff's laim based on misrepresentation by defendant of subsurface conditions must be denied.
Plaintiff further alleges that delays in the completion of the four main channel piers caused plaintiff a delay of 89 days in its efforts to complete the concrete superstructure work and that during all of this period it maintained three complete concrete units in its plant ready for work at an actual cost to it of $79,018.02, including a profit of 10 percent. It seeks to recover this amount on the theory that the delay was caused by subsurface conditions being other than those represented by responsible officers of the defendant. This claim must fall because it is predicated upon defendant's liability for the delay by reason of misreprosentation and we have found there was no misrepresentation.
Plaintiff also contends that $1,000 was improperly deducted from payments made to it by the Government as liquidated damages for delay in the completion of the contract, the deduction having been made pursuant to the provisions of the contract with respect to liquidated damages. No evidence having been introduced to substantiate this allegation and no mention of it having been made in plaintiff's brief, this claim is likewise denied.
The fourth claim by plaintiff is based on its relocation, at a cost of $1,272, of overhead electric lines existing at the beginning of the work in the vicinity of the Bourne and Sagamore channel piers. It is contended that the position of these lines made it physically necessary to move them before commencing the work and that such relocation was entirely outside the provisions of the contract. This
Opinion of the Court contention cannot be sustained for the reason that Article 10 of the specifications provides, inter alia: must include all expenses for extra work and difficulty incident to maintaining rail, highway and canal traffic during construction *.” These power lines were being used in connection with the canal, and are therefore within the terms of this provision. This item in plaintiff's claim is denied.
The fifth and final item of plaintiff's claim is for $55,785.02, the cost—including a reasonable profit of 10 percent—incurred by plaintiff in complying with orders given by defendant's contracting officer and consulting engineers in an endeavor to eliminate a discoloration on the surface of the concrete called sand-streaking. Toward completion of the work under the contract the surface of the concrete exposed to public view was marred by still adhering sand, a result caused 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. The cause of this sand-streaking was
. not known to either party and the contracting officer and consulting engineers of defendant, with the hope of eliminating the condition, gave certain orders to plaintiff. First, the design of the concrete mix was ordered changed. The design being used for the concrete in question, Class B, was changed by the order to the design, proportions of which were tabulated in Article 503 of the specifications. The effect of this order was to require additional cement in the design of the mix at a cost to the plaintiff of $17,642.11. The supervising engineers of defendant also directed plaintiff to increase the time of mixing from a minimum of 11/2 minutes to a minimum of 2 minutes, a change which entailed a cost to plaintiff of $14,659.32. A third order provided for a lower slump requirement in the mix and resulted in a cost to plaintiff of $12,137.10. Defendant's engineers also tried to eliminate or reduce sand-streaking by making the pours of a lesser content. Plaintiff was accordingly directed to place additional construction joints in pylons of the abutments at a cost of $2,575.12. Finally, under the di92 C. Cls. Opinion of the Court rections of defendant's contracting officer, plaintiff was ordered to plaster the surface of the pylons at a cost of $3,700. A reasonable profit of ten percent on the above cost figures is $5,071.37, making a total of $55,785.02.
Plaintiff contends that in complying with these orders made for the purpose of eliminating or reducing sandstreaking it performed extra work not authorized by the contract, plans and specifications. Article 506 of the specifications provides that for the pylons the forms should be surfaced with steel plates or other material which will produce an equally good surface, and that in addition, any areas indicated as "smooth surface” on the contract plans shall be constructed with such smooth-surface forms. Where smooth-surface forms are not required, lumber is specified. Article 507 provides for the method of treatment of concrete surfaces by rubbing with carborundum brick and water. The Government in these sections chose to procure a satisfactory surface appearance by specifying with detail the work to be done affecting concrete surfaces. The Government, if it desired, could hare required that plaintiff produce a surface free from sand-streaking, an appearance not unusual in work of the character here involved. Not having done so defendant cannot complain when, without fault of plaintiff, compliance with the detailed specifications prepared by defendant fails to produce the desired result. There is no claim by defendant or any evidence of plaintiff's failure to comply with the specifications in Articles 506 and 507.
Examination of the contract, plans, and specifications fails to reveal any provision authorizing the making of these orders for the purpose of eliminating or reducing sandstreaking. Under Articles 502 and 503 of the specifications, it is true that officers of defendant could have increased the content of the cement in the mix, lowered the slump requirement, and increased the mixing time to 2 minutes as was done by the orders here in question-without exceeding in any case maximum requirements fixed by the contract. However, these orders could be made under the provisions only for the purpose of improving the strength or “workability” of the mix. The orders were made to eliminate
On Motion for a New Trial
sand-st reaking, a matter of appearance not affecting the strength or “workability.” In respect to the order requiring additional construction joints the contract maximum was exceeded in that Article 506 calls for a fixed number of joints by specifying that the joints shall be spaced at fixed distances. Article 507 expressly states that “no grout or mortar shall be used” on exposed surfaces. Nevertheless, plaintiff was required to plaster the surface of the pylons with a mixture of sand and cement.
Plaintiff is entitled to recover $56,785.02 (see below), a sum composed of the cost of complying with orders given by defendant in endeavoring to secure a surface free from sandstreaking and a reasonable profit of 10 per cent thereon. All other items of plaintiff's claim must be denied.
It is so ordered.
LITTLETON, Judge; and GREEN, Judge, concur.
ON MOTION FOR NEW TRIAL
(Decided March 3, 1941) Mr. Mark W. Norman for the plaintiff. Mr. Raymond E. Hackett was on the brief.
Mr. Assistant Attorney General Francis M. Shea for the defendant. Messrs. George F. Foley and Rawlings Ragland were on the brief.
WHALEY, Chief Justice, delivered the opinion of the court:
The defendant moves for a new trial alleging, as errors of law, first, that the court erred as a matter of law in rendering judgment for plaintiff on the fifth item of its claim in an amount in excess of that claimed and prayed for in plaintiff's petition; second, that the court erred as a matter of law in failing to give effect to the release which plaintiff executed on December 24, 1934; third, that the court erred as a matter