Young Fehlhaber Pile Co. v. State

Greenberg, J.

(dissenting). I dissent from the decision about to be made.

On April 22, 1936, the claimant entered into a contract with the State to reconstruct a section of the Babylon Village State Highway No. 5299, Bridge No. 1, and approaches. The contract work consisted of (1) the removal of the existing bridges over a tidal water inlet and the construction of a new concrete bridge in place of same; (2) the removal of an existing town dock and the construction of a new concrete dock and retaining wall. The contractor agreed to complete the work in accordance with the terms of the contract, the specifications and the contract plans, which were component parts of the contract. In the performance of the contract- work, the contractor was required to erect cofferdams both north and south of the bridge site so that the area, in which the new construction was to be built, could be dewatered; the location and type of the cofferdams were left entirely with the contractor. The cofferdams, pumping, bailing and draining, pro *209 vided for in the contract, were to be done for a lump sum bid by the claimant. The plans, in addition to giving the location and the details of the new construction, contained contour lines with numerals appearing thereon, indicating the elevations of the creek bottom in and over which the new structures, provided for in the contract, were to be constructed. These contours and creek bottom elevations were placed on the plans in accordance with information then in possession of the State.

Claimant’s president and chief engineer, upon noticing the published advertisements for bids, secured a copy of the contract plans and specifications about a week previous to the submission of its bid. Claimant’s bid was made to the State after it had examined the plans and specifications and after a visit had been made to the contract site, at which time nothing was done regarding the checking of the depth of the water, and no soundings were taken by the claimant. It was not until after the contract was let and the work about to be commenced, that upon the direction of the State’s employee, soundings were taken and it was then ascertained that the creek bottom elevations, as indicated upon the plans, were incorrect.

The claimant now seeks to recover the additional cost of construction, resulting from the State’s misrepresentation of the creek bottom elevations; it claims to have sustained damage because of the breach of warranty on the part of the State with respect to the creek bottom elevations and because it was directed and compelled to perform work in the erection of a cofferdam, and the pumping, bailing, draining, etc., incident to such cofferdam, to a far greater extent than it had estimated or contemplated in the submission of its bid upon the contract.

There is no doubt that the creek bottom elevations, indicated on the plans constituted a representation and that the contract was made upon the understanding and with the supposition that the bottom of the creek in and over which the claimant was to perform its work, was substantially as therein indicated. However, under the terms of the contract and the specifications and the instructions to bidders, which are part of said agreement, the claimant had agreed that it had satisfied itself, by its own personal investigation and research regarding all the conditions affecting the work to be done, and had agreed to debar-itself from pleading misunderstanding or deception because of estimates of quantities, character, location or other conditions surrounding the work.

Under these circumstances, if the claimant contractor had a reasonable opportunity of discovering the falsity of the statements or representations contained on the plans with respect to the creek *210 bottom elevations, it cannot hold the State liable for having misrepresented the true facts. The courts have heretofore, and in no uncertain terms, laid down the rule of law applicable to the facts in the instant case.

“A contract and specifications may contain representations as to existing physical conditions. If so, a bidder may rely upon them, even though it be provided that he shall satisfy himself by personal inspection and investigation as to their truth, where because of time or situation such investigation would be unavailing. (Faber v. City of New York, 222 N. Y. 255.)” (Foundation Co. v. State of New York, 233 N. Y. 177, 184, 185 .) (Italics supplied.)

“ We have no doubt that it is such a representation. Clearly, the reference to this plan contained in all the papers before us was sufficient to show that- the contract was made by both parties upon the understanding and with the supposition that the bedrock was substantially as therein indicated. It would be wholly inequitable to hold that under such circumstances where the contractor had no reasonable opportunity of discovering the truth, and where the other party had made the examination and asked for bids upon plans showing the results of such examination, the latter can be heard to say that it is not responsible, should those plans wholly misrepresent the facts. (Langley v. Rouss, 185 N. Y. 201 .)” (Faber v. City of New York, 222 N. Y. 255, 260 .) (Italics supplied.)

“ Where the amount of work to be performed and materials to be furnished under and by a contract depend upon conditions that cannot be ascertained by inspection and bidders are not required and given an opportunity to make such investigations as are necessary to satisfy themselves as to the amount of work to be done and materials to be furnished and the contract, plans and specifications include representations as to existing conditions which are inserted for the purpose of enabling contractors to determine what bid to make for the proposed work and materials, a recovery may be had as for a breach of contract for the damages caused if it shall turn out that the representations were erroneous.” (Langley v. Rouss, 185 N. Y. 201, 209 .) (Italics supplied.)

The time available to the claimant and the situation at the contract site were such that an investigation of the existing physical conditions would have divulged to the claimant the true facts. The physical conditions were such that the quantity of work to be performed and the materials to be furnished under the contract, could have been ascertained by an inspection. Furthermore, the claimant herein had a reasonable opportunity of discovering the true existing facts in accordance with the rule laid down in the cases of Langley v. Rouss and Faber v. City of New York (supra).

*211 The plans were in possession of claimant and its chief engineer a week previous to the submission of the bid, during which period the duty of ascertainment of the true conditions existing at the site, which included the elevations of the creek bottom, was upon the claimant. The State cannot be charged with liability, because there is no question that the claimant had sufficient time within which to investigate these conditions. The testimony is that after the contract was let, two of claimant’s employees together with two of the State’s employees, with a level and a rod, took the elevations of the bottom of the creek along a line across the inlet, consuming a period varying from an hour to a half or three-quarters of a day, as estimated by claimant’s witness, and that after the taking of same, and on the same day, made computations which revealed to claimant’s engineer that the elevations of the creek bottom were lower than those shown on the contours on the plans, which were made a part of the contract. If that information was ascertainable after the contract was made, it was equally so prior thereto, and particularly during the week previous to claimant’s bidding on the contract.

Claimant’s investigation and inspection of the site were inadequate. Under a reasonable construction of the provisions of the contract providing for a personal inspection and research by the contractor with respect to the conditions at the site of the contract work, something more than a visual inspection of the site was intended. Merely going over the ground upon which the work was to be done, or inspecting the site by viewing it, would be of no avail and was not the intendment or the understanding of the parties to the contract. If anything, the investigation referred to was intended to be in conjunction with the plans and the data contained thereon, and such investigation as an engineer would make in order to determine the correctness of any representation or warranties as to the existing conditions.

The other item of the claim is to recover amounts deducted for engineering charges because of the delay by the claimant in the completion of the contract. The contract date of completion was extended from September 1, 1936, to April 17, 1937, in accordance with the provision of paragraph 8 of the contract. The delay in the completion of the contract was not caused by the State, and the deduction made for such charges was, therefore, proper and in accordance with the agreement entered into between the parties, and, accordingly, the claimant cannot recover therefor.

It is for these reasons that I dissent and vote to dismiss the claim herein.