Groton Bridge & Manufacturing Co. v. Alabama & Vicksburg Railway Co.

J". A. P. Campbell, Special J., delivered the opinion of the court. This is an action for damages for breach of a contract set forth in complainant’s bill. No objection was made to the jurisdiction of the chancery court, as, doubtless, the defendant welcomed the call to respond to the demand before a chancellor, rather than a jury; and we call attention to this feature of the case, not to make any ruling upon it, but to exclude the con — 170 — elusion that it is to be regarded as an authoritative precedent for maintaining the jurisdiction of chancery in such cases. The facts are that the appellee, having purposed to construct a bridge over Pearl river at its crossing, to be supported by a substructure determined on, and to consist of piers composed of steel cylinders sunk to a certain depth, and filled with concrete, and united, braced, and capped as specified, had drawings made of the proposed substructure, and distributed them and “specifications” among those thought to be likely to bid for the work; and, among others, these were sent to the agent of appellant. The map of the proposed structure showed the intended substructure and superstructure, and the depth to which the cylinders were to be sunk. There were four piers, but the fourth was not included in the invitation for bids. Each pier was to consist of two cylinders placed 17 feet apart. The profile accompanying the specifications showed “borings” in the vicinity of piers Nos. 2, 3, and 4, at varying distances; that opposite No. 2 being 7 feet from it, and that opposite No. 3 being 28 feet from it. The distance between piers Nos. 1 and 2 was 103 feet 6 inches, and between Nos. 2 and 3 was 183 feet, as shown by the profile. The borings in the vicinity of piers Nos. 2, 3, and 4 showed as follows, viz.: Opposite No. 2, “sand,” “fine white sand,” “stiff blue clay;” opposite No. 3, “gravelly clay,” “sand,” “blue clay,” “stiff blue clay;” opposite No. 4, “stiff yellow clay,” “blue clay,” “soft sandy blue clay,” “stiff sandy blue clay” — all commencing at the surface of the earth, and ranging downward. The thickness of each substance was shown on the map. These borings were for the' double purpose of ascertaining the proper depth for the cylinders, and the character of the formation of the earth where the borings were made, whereby to obtain an idea of the probable formation where the cylinders were to be sunk. The size of the borings was 1-| or 2 inches in diameter. The appellant, acting on an estimate by its agent, M. S. — 171 — Hasie, to whom the plan and specifications had been sent, inviting a bid, offered to do the desired work for $9,790.70; and its bid was accepted, and a contract made between the parties in elaborate detail as to its various provisions. The bid and contract were made on the basis of the plan and specifications submitted by the appellee, and in reliance on their truly representing whatever they expressed, and the rights of the parties are to be determined in recognition of this fact. The contract was made February 10, 1898, and soon thereafter the appellant shipped to Jackson, thirteen car loads of material and appliances for the work to be done. Delay occurred in getting these things to the river, and a claim for damages for that delay forms an item of this suit, and was allowed by the chancellor, whose decree was not appealed from by the appellee. The work was commenced and proceeded with until logs were encountered, which precluded further progress until new and different machinery for their removal was obtained. The resident engineer of appellee was applied to, and declined to do anything; and the superintendent and president of the appellee, respectively, were appealed to, and declined to interfere; the agent of the appellant claiming that the expense of removing the obstructions unexpectedly met with 'should be borne by the appellee, and the officers of the appellee denying the claim. The result of the dispute was the procurement of the requisite machinery and appliances for the work, and its ultimate completion, after many interruptions and hindrances by high water occurring several times, and yellow fever alarms, and quarantine restrictions, postponing the completion of the job until June, 1899; resulting in great loss to the appellant, which is sought to be recovered in this suit. Another claim of the appellant is that the working force-in sinking the cylinders was interfered with by the resident engineer of the appellee, who was supervising the sinking of the piers, by his requiring the cylinders to be kept perpendicu-. lar, thereby preventing their being vibrated so as to facilitate — 172 — sinking; and by requiring tbe cylinders to be kept empty of water, whereby tbe difficulty of sinking was greatly increased. Tbe allegation is that tbe engineers of tbe appellee were incompetent for tbe work. On tbe completion of tbe work a statement was made of the sum due appellant, and of payments made, and balance due of $4,213.60. It was certified by Mr. Stubbs, resident engineer of appellee, and approved by tbe superintendent ; and tbe sum named was tendered to tbe appellant-, with tbe requirement of a receipt in full, which was refused, and this suit brought. Tbe decree is for tbe sum previously mentioned as allowed for tbe delay before the work was begun, and for tbe $4,213.60 admitted to be due, and interest, from which decree tbe complainant in tbe chancery court appeals. That tbe contract proved to be an unfortunate one for tbe appellant, resulting in disappointment and great loss, is true; and tbe question is, who should bear it ? Tbe paramount question is the true interpretation of tbe contract as to tbe “borings.” Did tbe appellee warrant tbe borings to show tbe character of tbe obstructions to tbe sinking of tbe cylinders? It certainly did warrant tbe borings to' truly represent, with substantial accuracy, what was found where they were made, but it did not guaranty that tbe same conditions existed where tbe cylinders were to be sunk. It was a natural inference that tbe same general characteristics of tbe earth’s composition would be found at tbe places for tbe cylinders, but it was mere inference, indulged in, no doubt, by both parties; but as nothing was said about this, and the contract is silent as to obstructions, and there is no specific reference in tbe profile or specifications to tbe composition of tbe earth or obstructions to be met in sinking tbe cylinders, it cannot be held that tbe appellee warranted anything more than that tbe borings were true — not that they coiild be relied on as to conditions elsewhere. A fortiori it cannot be held that they were a guaranty that logs .would not be found to bar tbe progress of tbe cylinders. We have examined all tbe citations of tbe learned counsel for ap — 173 — pellant, whose conspicuous industry affords a guaranty that all that are pertinent and accessible have been referred to. The three cases directly in point cited are Delafield v. Village of Westfield, 77 Hun., 124 (28 N. Y. Supp., 440); Simpson v. United States, 172 U. S., 372 (19 Sup. Ct., 222; 43 L. Ed., 482); and Atlantic Dredging Co. v. United States, 35 Ct. Cl., 463. We fully approve all these decisions, and regard that in 172 U. S., 19 Sup. Ct., 43 L. Ed., as exactly like this, and decisive of the question we are discussing, while the other two sustain and enforce our view. In the case in 172 U. S., 19 Sup. Ct., 43 L. Ed., there were “borings” as here, and they were held to perform the office we ascribe to them. In the other cases there was what was justly held to be a specific guaranty, as to which there could not be any just dispute. We would decide each of those cases as they were decided. We are quite sure that the idea of the borings being a guaranty of the character of the strata of earth to be found at the places for the piers was an afterthought of Mr. Hasie, who, in making the estimate for a bid for the work, did not make any distinction between the different strata, and estimated for all one uniform price, although he understood from the borings on the profile that'there were 5 and 9 feet of the hardest clay to be displaced by the cylinders, or 42 feet in all; there being six cylinders. Indeed, it may be justiy doubted if the borings had much or any influence in estimating for the bid or in making the contract. It is certain that there is no •specific reference to them in the specifications or contract, and it is doubtful if there is even a general reference to them. We have disregarded entirely the testimony of the various engineers as to their understanding of the borings, and what they import. The interpretation of the contract and its basis is for the court, without the aid of experts, since there is nothing in them beyond the comprehension of plain people of ordinary understanding and acquirements; no ambiguous expressions, or terms of art, or trade, or science; nothing requir — 174 — ing the help of engineers to determine the meaning of the contract. We hare failed to find in the record any just ground for complaint of the interference of engineers of the appellee with the work of sinking the cylinders, or any responsibility for the unfortunate delay in doing the job, which proved harder than expected. While complaint is made of the interference of the assistant engineer with the sinking of the cylinders, there is also vigorous complaint from the same source that the engineers would not do any thing. It seems to us that the bid of appellant was the result of overconfidence on the part of its agent as to his ability to execute the work. He shows that he regarded the cylinders as of inetal too thin for so great a depth as they were to be sunk, and caused their being strengthened by some addition which he thought would secure safety; and at the time of his testifying, long since the work was done, he regarded it as extraordinary and almost miraculous that the sinking of the cylinders was finally accomplished, which shows that the estimate of cost was an improvident one, and that the real cause of the increased cost arose from the inherent difficulty of the situation. We find no basis for any charge against the appellee other than contained in the decree appealed from, and, in the view we have taken, it is unnecessary to discuss any other question. Affirmed.