White, Receiver of Cowardin, Bradley, Clay & Co. v. United States

Mr. Justice McKenna, after stating the facts as above, delivered the opinion of the court. It appears from the findings that the plans showed a roadway bordering the reservoir. This finding seems to be contested by the Government, the contention being that where the roadway was to be placed was '£ merely marked ’ ’ and no detail whatsoever as to its exact location or dimensions was shown by the plans. The finding, however, is more specific. One of the plans showed the work in general sections and indicated the roadway; another showed finished surfaces, with the roadway thereon; still another showed the entire filtration plant, the road again being indicated, and it was marked again on another plan. Such persistent repetition must have had other purpose than mere designation, and, besides, there were supplemental plans furnished the contractor relating to the roadway, giving detail as to grades. And, further, the engineer in charge gave the “toe of the slope” to the contractor and “from time to time furnished him with the lines showing the direction of the road and the stakes showing the grade.” “The fines, slopes, and the character of the material allowed to be deposited thereon” were under his inspection. The force of these findings is added to by the fact that the engineer first in charge and under whom the work was commenced on the roadway drew the plans and his action was their interpretation. It was not inadvertent. The first payment to the contractor was on a voucher which contained the work on the road as an item of liability, and, though subséquent- vouchers omitted such *153 specification, work on the roadway was included in the regular monthly estimates. And this continued until a new engineer came upon the scene. With him came controversy. He not only introduced a new construction of the contract but so far reversed the construction and action of his predecessor as to deduct in the final settlements the amounts allowed by the latter. Undoubtedly the contract has ambiguity and to present and resolve the ambiguity in detail would require a precise and literal examination of the contract. Such examination would greatly and, we think, uselessly prolong this opinion. We should be brought nevertheless to a few broad determining considerations. The contention of the Government is based upon what is said to be the purpose of the contract, which, it is further said, “so far as appellant was concerned [italics counsel’s], was the construction of the filtration plant proper.” The appellant, in opposition, declares that the contract enumerated three kinds of fills “and all other fills and embankments shown by the plans or directed •to be made by the engineer officer in charge.” Though some doubts beset appellant’s contention and some considerations bear against it, there are others which determine for it. The most important of the considerations against it is the charge by the Government that the contractor was paid for every yard of excavation and that the dirt excavated had to be deposited somewhere and the roadway “was just as convenient a place as any to dispose” of it. And this is given strength by the fact that the contractor had arranged, at a considerable cost, with the Soldiers’ Home authorities to dispose of waste material on the grounds of the Soldiers’ Home. But there is the countervailing consideration to which we have adverted, that is, of the action of the engineer first in charge, and it was he who drew the contract. He was there for direction. He considered that the roadway *154 was part of the scheme. He directed and superintended its construction. And it was a systematic structure, not a mere dumping place or deposit for ihaterial. It was constructed upon lines, slopes and grades and of selected materials. Further, in continued manifestation of his judgment that the contract included it and in approval of its conformity to the contract, he directed payment for it. There is nothing which reflects upon the sincerity of his judgment and it is necessarily the important factor in determining the responsibility of the Government. ■Whether the roadway was necessary or accessory to the filtration plant is not important to consider. We may observe, however, that it was subsequently finished by the United States, and manifestly deemed desirable. Judgment reversed and cause remanded with directions to enter judgment for appellant on the findings and in accordance with this opinion. Mb. Justice McReynolds took no part in the consideration and decision of this case.