Petition for Writ of Certiorari — Ranieri v. United States

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a— i MST ION CPOE, I OTE LM AEE VON RS NCE AANA 2

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

No. 463

ALEX RANIERI, PETITIONER,

VS.

THE UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF CLAIMS

INDEX.

Original Print

Record from Court of Claims..................cceeeccec5, 1 1

spec eien AEE Ee OT eT POT CT SEATED Die ain O 1 1

On MOUND | bain eink wrbkicnn vusesdteeke us cere: 11 8

Defendant's special answer and counterclaim. ......... 13 8

Exhibit “E”—Invitation for bids.................. 30 15

MNO hb 00d Beanies ccup angie ccecius diecwove, 61 23

Replication to answer and COURTOPCIBIM ...... 5 wccconne 77 26

Argument and submission of case..................... 83 30

segnpeane«hespcsgyary, adboca-hecenn ROLE Tere POPC EE 85 30

a itso gpeageny-dheca bas de EOE, ET OTT a per eae 92 38

Opinion of the court by Jones, J..............00.0005.. 93 38

RN. RS haan Knew enhiv dow hue vende wticcueuic: 99 42

Proceedings after judgment ....................00..., 101 43

Plaintiff’s application for transcript of record.......... 102 43

Parts of evidence agreed to de ee ee 103 43

Testimony of M. W. O’Mera...................... 104 43

Mervin Armatrong........00ccsccs.. 106 45

Gianway Mawnan, Je. ...6..5.0. 0006. 108 46

We NG ce Shc era bereh eu i. 110 48

bathe essay Beth, ES OPT TT ai 111 48

Be Bas OOO ev on <Venwaddaxanc 118 50

ctainaa eh, <gsceras ME OT Se 115 51

STONE i MMP ow oes kk clever ouncun 116 51

i ee NR a ce nr 120 5D

PRR NR ch ac cas vino. 122 56

Order settling the record .........0....ccedeccecccs, 124 56

Clerk’s certificate ............. (omitted in printing) .. 125

Order extending time within which to file petition for

MNUNEE.. SSahatNhibidchede pene eck Aabil ancien. 126 57

Stipulation as to POURS HNN Ni od bk ved Co 127 57

Jupp & DerweILer (INc.), PRINTERS, WASHINGTON, D, C., GcroBeR 26, 1942,

—2793

{fol. 1]

IN THE COURT OF CLAIMS OF THE UNITED STATES

No. 42851

Avex Ranieri

vs.

Tue Unirep States

I. Petirion—Filed November 23, 1934

To the Honorable, the Court of Claims:

The claimant respectfully represents,—

1. During all the times herein mentioned he was engaged

in the business of a general contractor.

2. That on the 25th day of August, 1931, the Corps of

Engineers of the United States Army, by authority of the

Secretary of War, caused to be published in the newspapers

printed and circulated in the city of New Orleans, Louisiana,

and other cities of the United States, an invitation for bids

for constructing approximately 13,820,000 cubic yards of

levee work on the Mississippi River, in the Second New Or-

leans District.

3. Claimant, being desirous of bidding upon said work,

applied to the office of the District Engineer, in New Or-

leans, as suggested in the advertisement, for information

[fol. 2] as to the nature of the levee work to be done and the

terms and conditions under which it would have to be un-

dertaken.

4. Thereupon claimant was furnished by Lieutenant Col-

onel J. N. Hodges, (who, and his successors, will hereafter

be referred to as the ‘‘contracting officer’’), with the specifi-

tions for the levee work in question which had been pre-

pared by the Government and were on file in the contract-

ing officer’s office in New Orleans, and was notified that all

bids would have to be based upon these specifications. A

copy of these specifications is hereto annexed and marked

exhibit ‘‘a’’,

5. Upon examining these specifications, claimant deter-

mined to bid for the work in the section designated in para-

1—463

LRN: ENS PPG FARE EPL AL BBE ee .

eraphs 1 and 39 of the Specifications, and therein described

as Item R831, Chamberlain-Lobdell Levee, Lots A, B, C

and D.

6. The quantity of dirt to be excavated from borrow pits

and built into a levee was stated in said paragraph 39 to

be 2,950,000 cubic yards.

7. To enable claimant to form an intelligent judgment as

to the price he could afford to bid for doing said levee work,

it was necessary for him to know the character of the ma-

terial to be used in constructing said levee.

8 Claimant had no knowledge or information as to the

character of this material and owing to the large volume

thereof to be excavated and built into a levee, and the ex-

tended area from which the material was to be taken, and

the fact that all bids were required to be submitted within

thirty days from the date of the advertisement, it was im-

possible for claimant to make such an examination of the

character of the material in the area from which the soil

[fol. 3] was to be excavated, (which area was known and

designated as borrow pits) as would have enabled him to

ascertain for himself its character, as the Government well

knew.

9. For information on this subject, claimant was referred

by the contracting officer to paragraph 19 of the specifica-

tions, wherein was made the statement that the governing

material in said borrow pits and to be excavated was |

‘*Loam’’.

10. Claimant understood from these specifications that,—

(a) The United States, (hereinafter referred to as the

‘<Government’’), intended to warrant the governing, preva-

lent material to be excavated and used in said construction

to be loam; that (b) The Government believed that such

was the character of the material that it had information

in its possession sufficient in its opinion to justify sucha

belief; and that (c) Included in that information was the

knowledge furnished by the specimens of the material

which had been obtained by test borings made by the

Government in the usual way for the purpose of ascertain-

ing in the most direct and certain manner the character of

the material.

11. Because claimant knew that the Government had been

having levee work done in that vicinity on both sides of

_—

the Mississippi River for a long time prior to the date of

said advertisement, and that it had had ample opportunity

for and the means of making itself acquainted with the

real character of the material in said borrow pits, and that,

therefore, if the Government believed the governing or

prevalent material to be removed from the area in question

to be loam, there was very little likelihood that the ma-

terial was other than what the Government believed it to

be, and little risk involved in assuming that the Govern-

[fol.4] ment’s belief was well founded, and because he

relied on said representation and warranty so made by the

Government and on its conclusion as to what was shown

by its said borings, which was so embodied in said specifica-

tions, claimant made his bid for said work.

12. That claimant would not have made his bid for said

work except for said representation and warranty by the

Government that the governing or prevalent material to

be excavated and used for said construction was loam.

13. Claimant’s bid was submitted within the time lim-

ited by the advertisement, that is to say, within thirty days

from the date of said advertisement, in writing, with the

guarantee required by the specifications, and said bid was

accepted.

14. Thereafter, to wit, on the 12th day of October, 1931,

claimant entered into a contract, (as contemplated by said

specifications), with the Government, acting by and through

said Lieutenant Colonel J. N. Hodges, the contracting officer,

for excavating said earth and moving it into and construc-

tiong said levee, as provided in said specifications, a copy

of which contract is annexed to this Petition and marked

‘Exhibit ‘‘b’’.

15. That the contracting officer and the officials in the

office of the Chief of Engineers now admit that the borings

made by them do not show that the governing, prevalent or

predominant material to be excavated, moved and built

into a levee was loam, nor do they claim that the borings

show that the governing or prevalent material was what it

was in fact found to be as the material was being excavated,

but they claim that the borings show that the material to be

excavated contained an admixture of clay.

[fol.5] 16. With his plant and equipment, claimant could

easily have completed the excavation of the 2,950,000 cubic

LER Te SM : FLAIR e AS: ONIN NE PRIOR OEP NNER 5 MAAN IT, nah 4 ———

yards of soil from said borrow pits and placed the same

into and constructed a levee as and in the time contemplated

by the contract, if the governing or prevalent material to

be removed had been loam, but the material which was

found to be in the borrow pits could not be excavated and

built into a levee at all at the slope or to gross grade, or in

accordance with the specifications; nor could the material

be excavated and built into a levee at a less slope and with-

out constructing to gross grade except at a cost far beyond

that at which claimant bid for and obtained said contact, if

at all.

17. Claimant began work under said contract at the point

designated by the Government’s engineer.

18. From the very beginning of the work, the governing

or prevalent material encountered by claimant was not

loam, but as the work proceeded, the contractor found that,

while there was some loam for a depth of about four feet,

below that the dirt consisted of an admixture of clay, or-

ganic matter, sand and slit, all heavily impregnated with

water, and with the stumps of a cypress swamp scattered

throughout the area thickly enough to seriously interfere

with the work; the soil was found to be interspersed with

underground water, seeping through it at frequent inter-

vals; and the organic matter readily and quickly absorbed

moisture, spreading it through the soil and holding it, mak-

ing the drying out on exposure to sun and wind difficult and

almost impossible.

A erevass- occurred in the area covered by the borrow pits

preceding the Civil War, about 6300 feet wide, which was

not filled until 1866, and it is a recognized engineering fact

that wherever a crevass- has occurred, difficult conditions

[fol. 6] are certain to be encountered in the use of the soil

for levee building: there will be greater subsidence, a wider

berme is necessary, and excavation in the borrow pits is im-

possible to the usual depth. A levee cannot be constructed

on the site of a crevass- in the usual manner, but all of these

unusual precautions must be taken.

Among the difficulties encountered with the soil as found,

none of which would have been encountered in loam, are the

following,—(1) It was impossible to fill the dipper over a

cypress stump, and as often as one was encountered, the

dipper had to be lifted and again lowered for filling; (2)

Striking of a cypress stump by the dipper at times resulted

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in clogging it in the stump, and at times in damage to the

dipper or its attachments; (3) As the soil was heavily

charged with water,—in large portions of the work to the

extent of 35%,—the water which was raised was just so

much loss,—it was not dirt; (4) The soil was heavy and

slippery, making it difficult to fill the dipper at all, and much

more to fill it to capacity, whereas loam is a ‘*nice, friable,

workable soil’’.

19. That the specifications for the construction of levees

were, as the result of the experience of the Government,

divided into three classes for the three kinds of material

which the Government had found in its Mississippi River

levee work, the crown, the riverside slope and the landside

slope being different according to the governing material

of 75% or more buckshot, or loam, or 75% or more of sand;

that the construction specifications for loam would not

answer for the material which was found in the borrow pits

provided for claimant, and the construction of said levee

with the material found, according to the specifications for

construction with loam, was far more difficult and expensive

[fol. 7] than with loam, and required a much longer time

than allowed by the contract, but, none the less, and after

the Goverment officials knew that the material in said

borrow pits was not loam, but of the kind above described,

they insisted and required that said levee be constructed ac-

cording to the specifications where loam is found.

20. While claimant discovered shortly after starting the

work that the material to be excavated was entirely differ-

ent from that which it was warranted to be by the specifica-

tions, he was not aware and did not discover until after the

cessation of the work on this contract that at the time the

Government invited bids for this work upon said specifieca-

tions containing the warranty that the governing or pre-

valent material to be excavated and built into a levee was

loam, that the test borings which had been made over the

area to be excavated did not show that the governing ma-

terial to be excavated was loam, but on the contrary it

showed such material to be a different material and one

much more difficult and far more expensive to excavate and

to build into a levee.

21. That claimant, soon after discovering that the ma-

terial to be excavated was not loam, made repeated requests

to the contracting officer, and asked for redress,

2—463

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299. And claimant further says that the statement on

the part of the Government ia said specifications that the |

eoverning or prevalent material to be excavated and built

into a levee was loam was not true and that the contracting

officer had no evidence before him to show that the govern-

ing material was loam.

93. Claimant further says that by reason of said mis-

representations contained in said specifi ‘ations and upon

said drawings, he was misled into making a bid for the

[fol. 8] doing of said work which was much lower than he

would ever have made but for said representations, and into

the making of a contract at a price totally inadequate for

the work to be done.

24. That after claimant had found the material and the

conditions in the borrow pits to be of the kind and as above

described, and that said levee, if it could be constructed at

all, could be so constructed only at a very much greater cost

than if said material and conditions had been as described

in the specifications, and that it would take a much longer

time than allowed in the specifications and contract, and

that it was impracticable, if not impossible, with the ma-

terial and conditions as found, to construct said levee as re-

quired by the specifications and after claimant had made

repeated requests to the contracting officer for relief and

redress, and the same had been denied, and on the contrary

said contracting officer had required that said levee be

constructed exactly in accordance with the specifications

and within the time limited thereby, and on the 12th day of

December, 1932, claimant served a written notice on the Gov-

ernment that he rescinded his contract, and that the same

was thereby rescinded.

25. By reason of the soil being clay, organic matter,

water and silt, with the stumps of a cypress swamp scat-

tered over the borrow pits area, with percolating water

under the surface, and said area being the site of a crevass,

instead of loam as warranted by the specifications, the fol-

lowing damages were sustained.

a.) The subsidence of the levee as shown by actual test

amounted to 2.2 feet, and this would amount to approxi-

mately 100,000 yards, which means that claimant carried

that quantity which was useless for levee purposes, instead

[fol. 9] of the loam which he was warranted he would find.

svi»

‘ : LRP ONION

= PLEO LPO LO SP LN WSO LD ALINE CE IEEE eae

a SOLARA SCRE PUL OV RTS. ae

The loss on carrying alone, at the fair price of 20e would

NS ORE ois ake le pe ee -..... $20,000.00

b.) Slides of 250,000 eubic yards occurred,

which the contractor was obliged to move two

additional times. These two additional mov-

ings at one-half the price for the original mov-

ing, or 10e per yard for each moving, and 20e

together made a cost of ......... ' 50,000.00

c.) Because the contractor was unable to

move as much as 20 per cent. of the material

comprised in sections, there was no estimate or

allowance for 54,979 cubic yards moved by him,

which at 20e per yard would amount to. 10,995.80

d.) Between October 25 and December 12, the

claimant placed 75,000 eubie yards for which no

estimate or allowance has been made, amount-

OE NO ts Cec ek ar re nt ; 15,000.00

e.) The Government estimated that claimant

had placed 1,308,889 eubie yards, and allowed

him for that amount at the contract price, but

there should be an additional allowance made

him of the difference between 12.4¢ and 20e,

amounting to 7.6e, and in the aggregate to..... 99,475.56

f.) The retained percentages, aside from in-

terest, which should be added, amount to __. 63,409.13

The total of the above items is the sum of... $258,880.49

for which amount claimant demands judgment.

[fol.10] No other action than as aforesaid has been had

on this claim, in Congress or by any of the Departments.

No person or corporation other than claimant has any

interest in this claim.

And no assignment or transfer of this claim or any part

thereof or interest therein has been made.

Claimant is justly entitled to the amount herein claimed

from the United States, after allowing all just claims and

offsets. Claimant has at all times borne true allegiance to

the Government and has not in any way falsely aided,

abetted or given encouragement to rebellion against said

Government.

And claimant believes the facts stated in this Petition to

be true.

And claimant prays judgment for $258,880.49.

S. Wallace Dempsey, Attorney for Claimant, 721-723

Investment Bldg., Washington, D. C.

[fols. 11-12] Duly sworn to by Alex Ranieri. Jurat omit-

ted in printing.

Il. Genera Traverse—Filed January 12, 1935

And now comes the attorney General, on behalf of the

United States, and ans-ering the petition of the claimant

herein, denies each and every allegation therein contained ;

and asks judgment that the petition be dismissed.

George C. Sweeney, Assistant Attorney General.

ETF.

[fol. 13] III. DeEFENDANT’s Specia. ANSWER AND CouNTER-

ctaim—Filed July 16, 1935, by Leave of Court

Comes now the defendant, by its Assistant Attorney Gen-

eral, and, by leave of the Court first had and obtained and

without waiving any of the defenses interposed or inter-

posable under the general traverse heretofore pleaded, files

this its special answer and counterclaim and set-off herein

and shows unto the Court:

That the defendant admits that the plaintiff and the de-

fendant entered into a contract dated October 12th, 1931,

for the construction of Item R. 831, Chamberlain-Lobdell

Levee, Lots A, B, C, & D, containing approximately two

million nine hundred fifty thousand (2,950,000) cubic yards,

situated in the Atchafalaya Front Levee District; that this

contract is described in plaintiff’s petition and a copy of it

is annexed to the petition and marked ‘‘Exhibit b’’; the

said contract being number W 1096 eng-1929.

[fol. 14] Il

That the time fixed for completion of the levee construc-

tion under this contract was four hundred and fifty (450)

days from the date of the receipt by the contractor of no-

DRE AOL er te utile

SPN STINE np etl aa cab to eR cone yt NEE SEO TES RUST

tice to proceed; that the contractor received his copy of the

contract and notice to proceed on October 30, 1931, thus

fixing January 22, 1933, as the date set by the terms of the

contract for completion; that on November 16, 1931, the

contractor technically complied with the requirement of

the contract by commencing work on Lot A, but thereafter

delayed actual commencement of construction on Lot A for

one hundred (100) days, on Lot B for two hundred and

twenty-seven (227) days, on Lot D for two hundred and

ninety-seven (297) days and on Lot ©, for three hundred

and thirty-five (335) days.

Ill

That from the commencement of the operations the con-

tractor violated the requirements of the contract specifica-

tions and violated the plan of operations which he himself

had submitted, and he otherwise departed from sound

methods of construction, all in wilful disregard of written

and verbal warnings of the resident inspectors for the

United States and of the written instructions of the con-

tracting officer; that specifically, among the unsound prac-

tices resorted to and the contract violations committed,

the contractor provided inadequate drainage; he excavated

[fol. 15] and engaged in multiple handling of wet material

during rains; he placed saturated material within the em-

bankment; he placed wet material on an undrained founda-

tion; he pocketed water between partial fills; he developed

puddling by repeatedly and unnecessarily handling material

prior to its placement in the levee; he caused damage to the

embankment by superimposing the weight of large machines

and operating them from on top of the fill; he constructed

partial fills with excessively steep side slopes thereby cre-

ating planes of cleavage or separation which caused base

slides ; he failed to remove and destroy cleavage planes when

cutting out slides and thereby caused additional slides in the

refill material after cut-outs; he overdug the borrow pits;

he damaged levee foundations by overdigging inspection

ditches; and he failed to start the embankment out full to

the slope stakes and carry it regularly up to the gross fill.

That by reason of the contractor’s failure to begin work

only after long delays on each Lot, and because of his

——— AS SENAY SME IEDR TY EIR AG DS

—

violations of the contract and the specifications, and be-

cause of his failure to diligently prosecute the work and to

place sufficient men and equipment thereon so as to insure

its completion within the time specified, the contractor found

on December 12, 1932, that approximately 91% of the con-

tract time period had elapsed and that only approximately

[fol. 16] 48% of the material was in place, with much of

this material in a condition which was totally unfit and

unacceptable to the United States as levee material, in that

it was wet material which was sloughing or showed ten-

dencies to slough and was full of numerous slides and planes

of cleavage contrary to the requirements of the specifica-

tions. The contractor addressed the following letter to

the contracting officer under date of December 12, 1932:

Careful investigations and extensive explorations of the

conditions at the site have disclosed the fact that the sub-

surface and/or latent conditions differ materially from the

conditions as represented in the plans and specifications,

and you are hereby formally notified that I elect to rescind

my contract with full reservations of all my rights in the

premises.

However, if mutually satisfactory adjustments can be

made, I am willing to proceed with the work and to that

end I hold myself in readiness to discuss this matter with

you at any time within the next forty-eight hours. Kindly

acknowledge receipt of this letter, and oblige,

Yours very truly, Alex Ranieri.

That on December 14, 1932, the contractor received the

following from the contracting officer:

I have your letter dated December 12, 1932, delivered

to my office by your attorneys upon the date named, on the

[fol. 17] subject of your contract for the construction of

Chamberlain-Lobdell Levee, Lots A, B, C, and D, in which

you state that due to subsurface and/or latent conditions

discovered you have elected to rescind your contract, re-

serving in full all your rights under said contract. Your

letter does not disclose in what manner, form, or particular,

subsurface and/or latent conditions differ materially from

the drawings or those shown in the specifications, without

which information I am unable to take further steps as pro-

vided in the contract.

eR RSRRONET TC IEHE —

Your attention is also invited to the fact that irrevocable

powers of attorney granted by you to Manning William

O’Meara and the National Surety Company, each coupled

with an interest in said contract, seem to preclude indi-

vidual action by you in furtherance of your rights under

the contract. You are, therefore, requested to furnish such

information or proof as may be available to you as to what

changes in subsurface and/or latent conditions now exist

under the contract, and to obtain the signature of the above-

named agents and attorneys in fact in support of the evi-

dence so submitted.

In the meantime your right to rescind the contract is

denied and you are expected to proceed with the work called

for under the terms of the contract.

That on the 26th day of September 1932, the petitioner

had entered into a subcontract with Manning William

[fol. 18] O’Meara for the construction of that part of the

new Chamberlain-Lobdell Levee Iter R-831 which was em-

braced within stations 3378 to 3431 in Lot C, and stations

3431 to 3472 in Lot D; that this said subcontract was

amended and extended by addenda thereto on November 9,

1932; that also on November 9, 1932, the petitioner executed

a full and irrevocable power of attorney to the said Manning

William O’Meara covering the portions of the work which

had been sublet to him as set forth above: that the said

power of attorney recites that the said attorney has an

interest in said contract; that a copy of the power of at-

torney to Manning William O’Meara is attached hereto,

marked ‘‘Exhibit C’’ and is made a part hereof.

That on the 26th day of November 1932, the petitioner

executed a full and irrevocable power of attorney to the

National Surety Company of 115 Broadway, New York,

covering all of the work of levee construction of Item R-831,

Chamberlain-Lobdell Levee, Lots A, B, C, and D, with the

exception of the portion of the work which had been pre-

viously sublet to Manning William O’Meara, as set forth in

paragraph V. above; that this said power of attorney re-

cites that the National Surety Company, attorney in fact,

PERRET MEDEA PICLENS EINE AES IN

—

as surety on the bond of Alex Ranieri, has an interest in

said contract; that a copy of this power of attorney to the

[fol.19] National Surety Company is attached hereto,

marked ‘‘Exhibit D’’ and is made a part hereof.

vil

That subsequent to December 12th, 1932, no work of any

sort was performed on any part of the project, Item R-831,

either by the petitioner, or Manning William O’Meara, or

the National Surety Company ; that on January 3, 1933, just

nineteen days prior to the expiration of the contract period

of 450 days allowed for the completion of the work, and with

less than forty-five per cent of the required earthwork in

place, the contracting officer advised the petitioner, and

Manning William O’Meara, and the National Surety Com-

pany that owing to the failure to prosecute the work with

such diligence as to insure its completion within the con-

tract period, the right to proceed with the work was thereby

terminated under the provisions of Article 9 of the contract;

that on the same day, January 3, 1933, the contracting

officer asked the National Surety Company, as surety, to

state whether or not it desired to complete the work in ac-

cordance with the terms of the contract; that the National

Surety Company did not so elect and on May 19, 1933, con-

sented to a re-advertisement of the contract by the United

States without prejudice.

Defendant denies all other allegations of the petition.

[fol. 20] CouUNTERCLAIM

Further answering and by way of counterclaim the de-

fendant alleges:

That the United States, acting through the United States

Engineer Office of the War Department in New Orleans,

Louisiana, on June 6, 1933, readvertised for bids for the

completion of the contract entered into on October 12,

1931, between the petitioner, Alex Ranieri, and the United

States, for the construction of the Chamberlain-Lobdell

Levee, Item R-831, Lots A, B, C, and D; that under the new

specifications, being number 33576, a copy of which is at-

Nyetuure tates eeess ee

EIR LEE oh ITM We OE FSGS ORES NORE VPS

tached hereto and made a part hereof, marked ‘Exhibit

K’’, no material departure was made from the original

specifications; that due to the earthwork already in place,

the amount estimated as being necessary to complete the

levee to original grade and section was given as approxi-

mately 1,612,000 cubie yards; that the time for placing the

same was set at 240 days; and necessarily, by reason of the

former unsatisfactory workmanship and materials in the

earthwork placed by the petitioner, Alex Ranieri, the new

specifications provided for the cutting out of the existing

slides for which no payment was to be made for cutting out

but only for satisfactorily completed levee; that the new

specifications also necessarily required the refilling of cer-

[fol. 21] tain overdug pits and berms because of the prior

negligent and improper work of the petitioner in overdig-

ging the same contrary to his original contract and specifica-

tions. In all other respects the specifications remained

the same,

That bids were opened on June 26, 1933, and the work was

awarded to Walter S. Hardwick and Ferdinand M. Horton,

the low bidder, and a contract was entered into by them with

the United States on July 10, 1933, for the construction of

the uncompleted portion of the Chamberlain-Lobdell Levee,

Lots A, B, C, and D, for a consideration of 18.60 cents per

cubic yard; that a copy of this contract is attached hereto

marked ‘Exhibit F’’, and is made a part hereof; that the

new contract is known as W-1096 eng 2871.

Ill

That all of the work was satisfactorily completed by

Messrs. W. S. Hardwick and F. M. Horton on July 1, 1934;

that the new contractor placed in the levee a total of 1,700,-

650 cubic yards of earth in order to bring the completed

structure to required grade and section; that the following

is a table showing the computation of the excess cost to the

United States brought about by the default of the peti-

[fol. 22] tioner, Alex Ranieri. and the necessity of reletting

and completing the levee as originally contracted for:

Cost of placing 1,700,650 cubic

yards at $.186 per cu. yd. under

contract W-1096-eng-2871 .... $316,320.90

Cost under contract W-1096-eng-

1929 at $.124 per cu. yd...... 210,880.60

EE Cs Soe rg ee $105,440.30

Cost of readvertising and reletting work.... 79.27

Cost of supervision and inspection after de-

fault and prior to completion............. 3,444.31

District and Division overhead after default

and prior to completion .................. 31.83

PMI ge ays ab 108,995.71

Amount due Alex Ranieri and not paid for at

time of default

Retained percentages (10%) on

II os ocean Sh eo wae $11,301.40

25% retained on partial fill....... 36,723.65

Due for 188,044 cubic yards in

place at $.1240 per cubic yard,

EE Oak ies ew ena 23,317.46

———__ $71,342.51

Balance due the United States........ 37,653.20

That by reason of the petitioner’s failure or refusal to

do any more work on his contract after December 12, 1932,

the defendant in readvertising and reletting the levee con-

struction necessary for the completion of the said work was

required to and did pay $108,995.71 more than the work

would have cost had the petitioner completed the construc-

tion of the levee as required by his contract of October 12,

1931; and that, against this sum of $108,995.71 there was,

however, due and owing to Alex Ranieri from the United

States under his contract, the sum of $71,342.51; that this

sum is made up of three items, viz: (a) ten percent retained

percentage on payments made to him, as provided for by

paragraph 7 of the specifications in his contract, and which

amounts to $11,301.40; (b) 25% retained by the United

Rae Re Sie a eet eee - ae ee Rea

2 RORY L Epes 4 sy

ann Ea Late SE EEE RGR a DEAE Pi Sena i : PAR ES oly bite meet ie fase Bat! +

[fols. 23-29] States on partial fills where the levee had not

been completed to grade and section, which sum amounts to

$36,723.65 and which is also provided for by paragraph 7

of the specifications in the contract; (c) the sum of $23,-

317.46 which was due for 188,044 cubic yards of material

in place but which was not paid for by the United States at

the rate of $.1240 per cubic yard.

That the difference between the said excess cost figure

$108,995.71 and the figure $71,342.51, which was due the

petitioner is the sum of $37,653.20, and the defendant has

suffered damage to this amount by reason of the acts and

defaults of the petitioner, and said sum of $37,653.20 with

interest thereon at the rate of 6% per annum from July 1,

1934, when final settlement was had with, and final payment

was made to, Messrs. W. S. Hardwick and F. M. Horton

for the completion of said work, is owing by the petitioner

to and is due the defendant under Article 9 of the original

contract of October 12, 1931.

Wherefore, the defendant prays that the petition filed

herein be dismissed, that the petitioner take nothing, and

that the defendant have judgment over and against the

petitioner for the sum of $37,653.20 with interest at 6% per

annum from July 1, 1934, until paid.

George C. Sweeney, Assistant Attorney General.

Edgar T. Fell, Attorney.

[fols. 30-32] Exutsir E ro CountercLam

[Do not write above this line]

Standard Government Form of Invitation for Bids

(Construction Contract)

Spec. No. 33.576

* * * * * * *

[fols. 33-36] 7. Payments.—(a) For work under straight

contracts.—Payments will be made on monthly estimates of

net yardage in place; provided that only 75 per cent of the

unit price will be allowed for material in fill not completed

to grade and section; and provided further that no estimate

on such incomplete fill will be made on less than 20 percent

of the material comprised in the specified section. This

limits estimates on any section to five. A percentage of 10

percent will be reserved from each payment until the work

is fully completed; except that the contracting officer, at

any time after 50 percent of the work in an item shown in

paragraph 39 hereof as constituting a unit of the contract

has been completed, if he finds that satisfactory progress

is being made, may make any of the remaining payments

in full upon work under said item that has been completed

to grade and section.

When all the requirements of the contract and these

specifications have been fully completed to the satisfaction

of the contracting officer the work will be accepted and final

payment made. (See paragraph 38.) Should two or more

items of work be awarded to one bidder, one contract will

be entered into, but payment of the retained percentages

will be made upon completion of each item of work as listed

in the form of bid.

* * * * * * *

[fol. 37] 9. Acceptance of work.—Continuous lengths of

levee of 500 linear feet or more will be accepted by the con-

tracting officer when fully and completely finished except

timber felling and the sodding or seeding. The intention of

this paragraph is that in case of damage or destruction

through no fault of the contractor of such lengths as have

been accepted such loss falls upon the United States and

not upon the contractor. Portions of levee upon which

payments have been made, but which have not been ac-

cepted as herein provided shall, if damaged or destroyed,

be repaired or replaced by the contractor at his own ex-

pense. Retained percentage upon accepted work will not

be paid to the contractor until the satisfactory comple-

tion and final acceptance as provided in paragraph 7.

[fol. 38] 13. Right of way and material—This agreement

is made with the understanding that the right of way and

earth for constructing the levee will be furnished without

cost to the contractor, except as provided in paragraph 22

(b). Days upon which work is prevented by failure to pro-

vide necessary right of way will not be counted against

the contractor as delay in completion of contract, nor in

computing the time stipulated in paragraph 2 hereof for

commencement of work; but no claim is to be made by

the contractor for damage or expense occasioned by delay

[fol. 39] or failure in securing right of way. In event of

failure to obtain right of way for all or any portion of

the line by the time construction has progressed thereto,

the contracting officer shall have the right to omit wor

on such line or portion of the line.

* * * ” * * *

[fols. 40-42] 19. Net cross section—Unless otherwise

specified in paragraph 39 hereof, levees shall be constructed

to the following net dimensions:

(a) Levees below Cape Girardeau, Mo., and Thebes, II.

Landside slope to

Section Crown Riverside contain seepage Governing

slope line of— material

Feet

Rae gee 10 lon3 1 on 6 75% or more buckshot.

| ER ORL OA 10 lon3\% 1 on 6% Loam.

| MBE ea ee Ger 12 lond5 lon8 75% or more of sand.

* * * * * * .

[fol.43] 22. (a) Embankment.—Unless otherwise specifi-

cally directed by the contracting officer in writing, the em-

bankment shall be started full out to the slope stakes and

be carried regularly up to the gross fill. In the ease of

wagons carrying 5 cubic yards or more and drawn by

not less than 10-ton tractors, the fill shall be deposited in

layers not exceeding 5 feet in thickness. In the cases of

lighter equipment such as scrapers or horse-drawn wagons,

the fill shall be deposited in layers not exceeding 3 feet

in thickness. Where the work is performed by machines,

the requirement of layer construction may be omitted and

the work carried continuously to gross fill. If portions

of the prepared right-of-way or uncompleted levee be

unduly compacted from any cause whatever, before de-

positing any material on such surfaces they must again

be thoroughly broken up as specified in paragraph 20.

[fols. 44-45] Clean earth, free from all foreign matter,

shall be used in constructing the embankment. No earth

which sloughs or which shows tendency to slough shall

be placed in the embankment, except when placed hy-

draulically under paragraph 22 (b). ,

(fol. 46] 24. Disposition of objectionable material.—

When the borrow pits, or the ground to be occupied by

the levee, contains soil which is unfit to be put into or

remain under the levee, the contractor will be required

to remove the same and dispose of it as directed by the

contracting officer. If such material removed from the

ground to be occupied by the levee or removed from the

[fols. 47-53] borrow pits furnished by the United States

is wasted, the contractor will be paid for it at the contract

price per cubic yard.

[fol. 54] 39. Description of work.—Drawings.—The work

shall conform to the drawings marked ‘‘L-8-2268 entitled

Item R 831, Chamberlin-Lobdell Levee’’, which form a

part of these specifications and which are filed in the

U. S. Engineer Office, Second New Orleans District, Foot

of Prytania Street, New Orleans, La.

[fol. 55] Atchafalaya Front Levee District ‘

Net

Item Stations Kind of Cubic _ height,

work yards fee-

R 831-A, Chamberlain-

Lobdell Levee........... 3273+04 to 3329+00 New 307,000 23-30

(a) Time.—Work shall be commenced in accordance with

paragraph 2 of these specifications and shall be completed

within 240 calendar days from date of receipt of notice

to proceed.

(b) Borrow pits——The material required for this work

shall be obtained from riverside borrow pits, and from

the existing controlling levee to extent indicated on draw-

ing.

a ‘*B’’ cross-section is required throughout.

(d) Slides.—Existing slides at the approximate locations

listed below shall be cut out below the sliding surface and

properly restored. The basis for payment will be at the

net quantity in the restoration placed above the actual

cut-out, as cross-sectioned upon completion of cut-out. No

payment will be made for cutting out but only for satis-

factorily completed levee in accordance with paragraph 7

hereof.

Approximate

quantity to be

Approximate stations restored, cu.

yds., net

ot Ok SR URER SS Bae epee apt engine SMe PT: 8,500

a cde ag EE Oy ree Dae om eens 7,000

sos shapieaprshaor tone ein Ades EEE CE NRT AR 35,000

(e) Special provisions—Construction above station 3288

shall not be undertaken until authorized in writing by the

contracting officer.

[fol.56] (f) Refill of overdug pits and berm.—Pit and

berm excavated in violation of specifications by the origi-

nal contractor shall be restored under this contract, Pay-

ment will be made on the basis of net quantity placed.

The following table shows the locations and approximate

quantities of overdug pit and berm:

Where violation Approximate,

Approximate stations exists cu. yds., net

3200+-00 to 3207+-75..................... Rerm 680

DIVO TOO 80 SOLO UO 6 i os eons dnccns Berm 340

3322+00 to 3324+00..................... Berm 10

3301 +25 to $8024-00... 2.00... ....05000., Pit 40

Net

Item Stations Kind of Cubic _ height,

work yards feet

R 831—B, Chamberlain-

Lobdell Levee. .......... 3329+00 to 3378+-00 New 239,000 24-30

(a) Time.—Work shall be commenced in accordance

with paragraph 2 of these specifications and shall be

completed within 240 calendar days from date of receipt

of notice to proceed.

(b) Borrow pits —The material required for this work

shall be obtained from riverside borrow pits.

‘B”’ cross section is required throughout.

(d) Slides.—Existing slides at the approximate loca-

tions listed below shall be cut out below the sliding surface

and properly restored. The basis for payment will be the

net quantity in the restoration placed above the actual

cut-out, as cross sectioned upon completion of cut-out. No

payment will be made for cutting out but only for satis-

Bay eet otse

ALEC" OPEL SE AES or MARE ANNE GPS LNT ELA MEE RIN MITRE be ILS EM PAIL EG EN DABS

[fol. 57] factorily completed levee in accordance with para-

graph 7 hereof.

Approximate

quantity to be

Approximate stations restored,

cu. yds., net

8388-+-75 to SBBH+25..... cece rere eee ee ener reer eenees 8,000

$3364-50 to SBBT475. nce cree cece nent neeneeeveneeens 6,000

SSAO4-B5 tO SOFT ID... ccc ccc cece gee ee ence eecenvenens 7,000

93424-75 to SB454+25. www cece eet e eet e eee rere seeee 19,000

DHG1 BD CO CHOP OB ck cuss csa gucci ener ssvavocedemueseren 8,000

8362+-75 to S8B4+00. ccc ccc cette rent eneeeeeeae enone 14,000

(ce) Refill of overdug berms.—Berm excavated in viola-

tion of specifications by the original contractor shall be

restored under this contract. Payment will be made on

the basis of the net quantity placed. The following table

shows the locations and approximate quantities of over-

dug berm:

Where violation Approximate,

Approximate stations exists cu. yds., Net

3362+-00 to 3378-+00. .. 0... eee eee eee Berm 400

Net

Item Stations Kind of Cubie _ height,

work yards feet

R 831-C, Chamberlain-

Lobdell Levee... iss. oe ess 3378+00 to 3431+00 New 537,000 25-29

(a) Time.—Work shall be commenced in accordance with

paragraph 2 of these specifications and shall be completed

within 240 calendar days from date of receipt of notice

to proceed.

(b) Borrow pits——The material required for this work

shall be obtained from riverside borrow pits.

‘“B’? cross-section is required throughout.

(d) Slides.—Existing slides at the approximate locations

listed below shall be cut out below the sliding surface

(fol. 58] and properly restored. The basis for payment

will be the net quantity in the restoration placed above

the actual cut-out, as cross-sectioned upon completion of

cut-out. No payment will be made for cutting out but

only for satisfactorily completed levee in accordance with

paragraph 7 hereof.

Approximate

quantity to

Approximate stations be restored,

cu. yds., net

3381+00 to 3382+00. cic eer eee e eee nee ee teees 13,000

33824-70 to SBBA4-25 occ cece cere cere neeeeneceeceres 10,000

pana —

(ce) Refill of overdug berm.—Berm excavated in viola-

tion of specifications by the original contractor shall be

restored under this contract. Payment will be made on

the basis of the net quantity placed. The following table

shows the locations and approximate quantities of over-

dug berm:

Where violation Approximate

Approximate stations exists cu. yds., net

3391+-00 to 3898+-00..................... Berm 50

Net

Item Stations Kind of Cubic height,

work yards feet

R 831—-D, Chamberlain-

Lobdell Levee. .......... 3431+00 to 3493+20 New 529.000 21-26

(a) Time.—Work shall be commenced in accordance with

paragraph 2 of these specifications and shall be completed

within 240 calendar days from date of receipt of notice to

proceed.

(b) Borrow pits—The material required for this work

shall be obtained from riverside borrow pits, and from

[fol. 59] the existing levee to extent indicated on drawing.

‘‘B’’ cross-section is required throughout.

(d) Slides.—Kxisting slides at the approximate locations

listed below shall be cut out below the sliding surface and

properly restored. The basis for payment will be the net

quantity in the restoration placed above the actual cut-out,

as cross-sectioned upon completion of cut-out. No payment

will be made for cutting out but only for satisfactorily

completed levee in accordance with paragraph 7 hereof.

Approximate

quantity to

Approximate stations be restored,

cu. yds., net

ania tb cedar bona omth kocech SAE 13,000

(e) Refill of overdug berm.—Berm excavated in viola-

tion of specifications by the original contractor shall be

restored under this contract. Payment will be made on

the basis of the net quantity placed. The following table

shows the locations and approximate quantities of over-

dug berm:

Where violation Approximate,

Approximate stations exists cu. yds., net

3463 +00 to 3476400... 2.0... 00. cece eee Berm 310

4—463

it ae oe

Bic:

(f) Special provisions.—Construction below _ station

3485-+-00 shall not, be undertaken until authorized in writ-

ing by the contracting officer. The right is reserved to

require the construction of a wing levee approximately

500 feet long, at the lower end of the work as indicated

on the drawing. The estimated quantity of this wing

[fol. 60] levee is approximately 35,000 cubie yards, which

is not included in the total estimated quantity shown in

the tabulation above. Material for this work shall be

obtained from river side borrow pits and from the exist-

ing levee to extent indicated on drawings. If constructed

payment for the wing levee will be made at the contract

price per cubic yard.

Estimates by United States——Bidders are advised that

the United States will prepare estimates of cost of con-

struction by the use of Government plant and hired labor

on each individual item and on combinations of items as

listed under ‘‘Combinations’’ in the bid form.

General provisions—The following general provisions

shall be applicable to all work under these specifications:

Measurements for payments.—Payment will be made on

the basis of the quantities placed under these specifica-

tions within prescribed gross dimensions, less the shrink-

age allowance called for by par. 27 hereof.

Yardage will be determined by place measurement.

Determination of settlement.—Claims for reimbursement

for additional yardage under the provisions of first sub-

paragraph of paragraph 28 hereof to be considered must

be substantiated by measurement of the vertical displace-

ment of the foundation made within 48 hours after com-

pletion of embankment at the site of the structure installed

to measure such foundation settlement.

U. S. Engineer Office, Second New Orleans District, Foot

of Prytania Street, New Orleans, La., June 6, 1933.

gamers

[fols. 61-62] Exuisir F ro Counrerciaim

Standard Government Form of Contract

(Construction)

Contract W 1096 eng.-2781. July 10, 1933.

Department: War (Engineer Department at Large) U.S.

Engineer Office, Second New Orleans District.

Contractor: W. S. Hardwick and F. M. Horton.

Contract for Chamberlaim-Lobdell Levee: Amount

RNA EAM C8" AS ee aN grate) te $57,102.00

et I a Cee en 44,454.00

RTI oe ey i Gera we 99,882.00

SI Oe ot nS ea a .. 98,394.00

POOR On Eh 299,832.00

Place: Atchafalaya Front Levee District.

Contract for Construction

[fol. 63] Articie 3. Changes.—The contracting officer may

at any time, by a written order, and without notice to the

sureties, make changes in the drawings and (or) specifica-

tions of this contract and within the general scope thereof.

If such changes cause an increase or decrease in the amount

due under this contract, or in the time required for its per-

formance, an equitable adjustment shall be made and the

contract shall be modified in writing accordingly. No

change involving an estimated increase or decrease of more

than Five Hundred Dollars shall be ordered unless ap-

proved in writing by the head of the department or his duly

authorized representative. Any claim for adjustment un-

der this article must be asserted within ten days from the

date the change is ordered, unless the contracting officer

shall for proper cause extend such time, and if the parties

cannot agree upon the adjustment the dispute shall be de-

termined as provided in Article 15 hereof. But nothing

provided in this article shall excuse the contractor from

proceeding with the prosecution of the work so changed.

ArticLe 4. Changed Conditions.—Should the contractor

encounter, or the Government discover, during the progress

of the work, subsurface and (or) latent conditions at the

[fols. 64-65] site materially differing from those shown on

the drawings or indicated in the specifications, the atten-

tion of the contracting officer shall be called immediately to

such conditions before they are disturbed. The contracting

officer shall thereupon promptly investigate the conditions,

and if he finds that they materially differ from those shown

on the drawings or indicated in the specifications, he shall

at once, with the written approval of the head of the de-

partment or his representative, make such changes in the

drawings and (or) specifications as he may find necessary,

and any increase or decrease of cost and (or) difference in

time resulting from such changes shall be adjusted as pro-

vided in Article 3 of this contract.

* * * * * * *

{fol.66] Arricte 7.—Materials and Workmanship.—Un-

less otherwise specifically provided for in the specifications,

all workmanship, equipment, materials, and articles incor-

porated in the work covered by this contract are to be of the

best grade of their respective kind for the purpose.

[fol. 67] Articte 9. Delays—Damages.—lf the contractor

refuses or fails to prosecute the work, or any separable part

thereof, with such diligence as will insure its completion

within the time specified in Article 1, or any extension

thereof, or fails to complete said work within such time, the

Government may, by written notice to the contractor, termi-

nate his right to proceed with the work or such part of the

work as to which there has been delay. In such event, the

Government may take over the work and prosecute the same

to completion by contract or otherwise, and the contractor

and his sureties shall be liable to the Government for any

excess cost occasioned the Government thereby. If the con-

tractor’s right to proceed is so terminated, the Government

may take possession of and utilize in completing the work

such materials, appliances, and plant as may be on the site

of the work and necessary therefor. If the Government

does not terminate the right of the contractor to proceed,

the contractor shall continue the work, in which event the

actual damages for the delay will be impossible to deter-

mine and in lieu thereof the contractor shall pay to the

Government as fixed, agreed, and liquidated, damages for

each calendar day of delay until the work is completed or

[fols. 68-69] accepted, the amount as set forth in the specifi-

cations or accompanying papers and the contractor and his

sureties shall be liable for the amount thereof: Provided,

That the right of the contractor to proceed shall not be ter-

minated or the contractor charged with liquidated damages

because of any delays in the completion of the work due to

unfor-seeable causes beyond the control and without the

fault or negligence of the eentractor, including, but not re-

stricted to, acts of God, or of the public enemy, acts of the

Government, fires, floods, epidemics, quarantine restric-

tions, strikes, freight embargoes, and unusually severe

weather or delays of subcontractors due to such causes:

Provided further, That the contractor shall within ten days

from the beginning of any such delay notify the contracting

officer in writing of the causes of delay, who shall ascertain

the facts and the extent of the delay, and his findings of

facts thereon shall be final and conclusive on the parties

hereto, subject only to appeal, within thirty days, by the

contractor to the head of the department concerned, whose

decision on such appeal as to the facts of delay shall be

final and conclusive on the parties hereto.

* * * * * * *

(fol. 70] Arricie 15. Disputes.—Except as otherwise spe-

cifically provided in this contract, all disputes concerning

questions of fact arising under this contract shall be decided

by the contracting officer or his duly authorized representa-

tive, subject to written appeal by the contractor within

thirty days to the head of the department concerned, whose

decision shall be final and conclusive upon the parties

thereto as to such questions of fact. In the meantime the

contractor shall diligently proceed with the work as

directed.

ARTICLE 16. Payments to contractors.—(a) Unless other-

wise provided in the specifications, partial payments will be

made as the work progresses at the end of each calendar

month, or as soon thereafter as practicable, on estimates

made and approved by the contracting officer. In preparing

estimates the material delivered or the site and preparatory

[fols. 71-76] work done may be taken into consideration.

(6) In making such partial payments there shall be

retained 10 percent on the estimated amount until final

)

——

SEN

completion and acceptance of all work covered by the con-

tract: Provided, however, That the contracting officer, at

any time after 50 percent of the work has been completed,

if he finds that satisfactory progress is being made, may

make any of the remaining partial payments in full: And

provided further, That on completion and acceptance of

each separate building, vessel, public work, or other division

of the contract, on which the price is stated separately in

the contract, payment may be made in full, including re-

tained percentages thereon, less authorized deductions.

made shall thereupon become the sole property of the Gov-

ernment, but this provision shall not be construed as re-

lieving the contractor from the sole responsibility for the

care and protection of materials and work upon which pay-

ments have been made or the restoration of any damaged

work, or as a waiver of the right of the Government to re-

quire the fulfillment of all the terms of the contract.

* * * * * * *

[fol. 77] IV. RepiicatTion TO ANSWER AND COUNTERCLAIM—

Filed August 23, 1939

The Claimant, for answer to the counterclaim of the De-

fendant, hereby makes the following reply, viz.—

1.) Claimant alleges that he did not unreasonably delay

in commencing the work under contract described in the

petition herein, and alleges that all of the time previous to

his commencing said work was necessarily and profitably

employed by him in making such preparation for said work

that when actual construction began it would be expedited

by the time so taken in proper preparation.

2.) Claimant denies that in doing the construction work

under said contract he violated either the requirements of

the contract specifications or the plan of operations, or

departed from sound construction methods; and claimant

specifically denies that he resorted to any of what are

denominated unsound practices or committed any of what

(fol. 78] are called contract violations enumerated in the

subdivision of Defendant’s special answer and counter-

claim numbered III, and alleges that he did all his work

under said contract in a proper and sound construction

way.

3.) Claimant denies that by reason of his failure to begin

work only after long delay and because of his violation of

the contract in the specifications, and his failure to dili-

gently prosecute the work, and to place sufficient men and

equipment failed to insure its completion within the time

specified, or by reason of any of such alleged happenings

(all of which allegations claimant alleges to be untrue), on

December 12, 1932, only 48% of the material was in place,

with much of it unfit and unacceptable as levee material,

because it was wet material sloughing or showed tendencies

to slough, and full of slides and planes of cleavage, con-

trary to the specification requirements; and, on the con-

trary, claimant alleges that the fact that but 48% of the

material was in place at said date was due wholly to the

fact that the material to be exeavated and placed was not

loam, as represented in the specifications, but an admixture

of clay, organic matter, sand and silt, all heavily impreg-

nated with water, and with the stumps of cypress swamp

scattered throughout the area thickly enough to seriously

interfere with the work, and interspersed with under-

ground water, seeping through it at frequent intervals, and

the site of a crevass- as more particularly described in the

petition, which, while differing as stated from what it was

represented in the specifications to be, made it far more diffi-

cult to excavate and place, and the circumstance that the

United States officials in charge required the work to be

done as if the material had been loam instead of the kind de-

[fol. 79] scribed, which was unsuited to and improper for

the kind of material actually found, which two cireum-

stances together rendered it impossible to complete the

construction within the time specified in the contract, or to

do more than was done at the date mentioned.

This claimant denies that much, or any, except a neglible

amount, of the material which had been placed was unfit,

and alleges that it was proper material and in proper con-

dition, and should have been acceptable to and accepted by

the United States.

4.) Claimant admits that he sent, December 12, 1932, the

notice (denominated a letter in the answer and counter-

claim), set out under No. IV of said answer and counter-

claim, and that he received, December 14, 1932, the com-

munication set out in subdivision IV from the contracting

officer.

Claimant further alleges that it was unnecessary to dis-

close in his said notice in what manner, form, or particular,

subsurface and/or latent conditions differ materially from

the drawings or those shown in the specifications, as it was

wholly known to the contracting officer and to the United

States previous to the letting of the contract herein that the

material to be excavated and placed was not loam, as stated

and shown in the specifications, but was of the character

and kind hereinabove, and in the petition particularly de-

scribed; and the nature of said material was disclosed from

day to day as the work proceeded, from the time that claim-

ant undertook the same, when the contracting officer by

frequent if not daily inspection had become, and was thor-

oughly familiar with the differences in the material between

[fol. 80] the description in the specifications and the ma-

terial actually being excavated and placed.

6.) Claimant further alleges that the powers of attorney

described in the answer and counterclaim to Manning Wil-

liam O’Meara and the National Surety Company did not

give or purport to give said attorneys in fact or either of

them the exclusive right to act for claimant in respect to

the construction contract, or deprive, or attempt or pur-

port to deprive claimant of the right to act with respect

thereto in all matters, and, particularly, in matters between

this claimant and defendant, and claimant, therefore, al-

leges that it was not necessary to have either of said attor-

neys in fact join in claimant’s notice that he rescinded the

construction contract.

7.) Claimant further alleges that defendant never gave

him notice of its readvertising for bids for the completion

of the construction work described in said contract, and

that claimant is not, and did not become bound by said re-

advertising for bids, or by the attempted reletting of the

contract, or the result or any of them of the work done there-

under.

And claimant alleges that by such failure to notify claim-

ant of such readvertising for bids, defendant recognized

claimant’s notice of rescision, and his rescision thereby

was made valid and said failure validated the same.

8.) Claimant further alleges that by virtue of the de-

fendant having misrepresented the nature of the soil to

be excavated and placed as loam when it was not of that

kind, but was of the nature and kind hereinabove and in

the petition particularly described, and was, therefore, far

more difficult and far more expensive to handle, and con-

sumed a much longer time both to excavate and place, and

[fol. 81] through defendant’s insisting and requiring that

said excavating and placing and the construction work should

be done in a manner suited to loam, and unsuitable and ex-

tremely difficult with the soil that was in fact found, claim-

ant had the right to rescind said contract and became en-

titled to payment for the damages which he suffered through

such misrepresentation, and said requirement to do said

work in the manner above described, and for the work which

he did in accordance with the contract and as specified in

the petition herein, and that he is not liable for the in-

creased cost of any part thereof paid by defendant in

completing said construction work; and claimant alleges

that said attempted reletting was made at a time when the

prices of sich construction work were much lower than

when the contract described in the petition was made, and

that, taking this into consideration, the fair value of the

construction work at the time the contract was let, and the

prices which would have been bid had the real nature and

kind of the material to be excavated and placed been made

known, instead of being misrepresented as loam, would

have been more than the $.186 paid to the new contractor,

instead of $.124, the price at which claimant was induced to

bid through said misrepresentation as to the nature of the

soil to be excavated and placed.

That claimant was obliged to and did do all of the pre-

| liminary work necessary to the beginning construction,

which included many details and took a very considerable

time, all of which was done at large cost. That the new

bidder had none of this preliminary work to do, but had

solely the cost of excavating and placing the remaining

[fol. 82] cubic yards to complete construction, without any

of this preliminary expense or delay. That taking into ac-

count the time claimant was obliged to give to preliminary

Work (aside from claimant’s being required by the con-

tracting officer to do the work in a manner unsuitable to the

material encountered, and, therefore, unnecessarily diffi-

cult and expensive, and taking much longer), claimant did

not take as much time per cubie yard in excavating and

placing the material as was taken by the new bidder,

—F

Wherefore, claimant prays judgment, in accordance with

the part of the petition, for $258,880.49, together with in-

terest from December 14, 1932, the date when the contract

described in the petition was rescinded, and for such other,

further, or different judgment or relief as may be just and

equitable in the premises, and for the dismissal of said

counterclaim.

Dated this 13th day of August, 1935.

S. Wallace Dempsey, Attorney for Claimant, 721-

723 Investment Building, Washington, D. C.

[fols. 83-84] Duly sworn to by Alex Ranieri. Jurat omit-

ted in printing.

V. ARGUMENT AND SUBMISSION OF CASE

On October 8, 1941, the ease was argued and submitted on

merits by Mr. S. Wallace Dempsey for plaintiff, and by Mr.

W. A. Stern, IT, for defendant.

[fol. 85] VI. Special Findings of Fact, Conclusion of Law

and Opinion of the Court by Jones, J.—

Filed February 2, 1942

Mr. S. Wallace Dempsey for the plaintiff. Mr. Bruce

Fuller was on the briefs.

Mr. W. A. Stern, II, with whom was Mr. Assistant

Attorney General Francis M. Shea, for the defendant.

This case having been heard by the Court of Claims,

the court, upon the report of a commissioner and the evi-

dence, makes the following

SpeciaL Frypincs or Fact

1. Plaintiff and defendant entered into a contract Octo-

ber 12, 1931, numbered W 1096 eng. 1929, whereby, for a

consideration of 12.40 cents per cubie yard, place measure-

ment, the plaintiff agreed to ‘‘furnish all labor and mate-

rials, and perform all work required for the construction

of Item R 831, Chamberlain-Lobdell Levee, Lots A, B, C,

& D, containing approximately two million nine hundred

fifty thousand (2,950,000) yards, situated in the Atchafa-

laya Front Levee District,’’ in accordance with specifica-

tions, schedules, and drawings, all made a part of the

contract and designated ‘‘Engineer Department, U. S.

Army, Standard Specifications for Levee Work, No. 32.38,

dated August 25, 1931, and drawing entitled Item R 831,

Chamberlain-Lobdell Levee, File No. L-8-2268.’’

Under the contract the work on each of the four lots

was to commence within 20 calendar days after the respec-

tive dates of receipt of notice to proceed thereon and be

completed within 450 calendar days from the date of

receipt of such notice.

[fol. 86] About 2,000 linear feet out of 20,000 feet of an

old levee were made available by the contract for the new

levee construction and the remainder of the material was

to be obtained from riverside borrow pits.

The specifications stated that the soil conditions indi-

cated a B Section was required throughout.

Paragraph 19 of the specifications described a B Section

as having a crown of 10 feet, a riverside slope of 1 on

3%, the landside slope as containing a seepage line of 1

on 61%, and the governing material as loam.

Copy of the contract, the specifications and drawing is

in evidence and made part hereof by reference.

The plaintiff had had no experience in building levees.

Prior to bidding, representatives of the plaintiff visited

and inspected the site of the proposed levee.

2. The levee to be constructed extended from station

3273-+-04 to station 3493+20, a distance of about 22,000

feet. Borings had been taken over the site of the pro-

posed levee at intervals of 1,000 feet, each to a depth of

about 25 feet, and a chart of these borings appeared on

the sasilaas map. Plaintiff had been furnished the con-

tract map and specifications before submitting his bid.

This chart classified the earth disclosed by the borings as

sandy loam, sandy clay, sand and loam, clay, loam, sand

and silt, clay and silt, brown clay, soft brown clay and

sand, soft blue clay, hard blue clay, and lastly soft brown

clay, and indicated the several depths and locations at

which these various classes had been found in the hole

bored.

The average depth of loam or sandy loam disclosed by

these borings was about 6 feet, the maximum depth was 16

feet and the minimum depth 1 foot, a mean depth of 8%

feet.

There was sufficient satisfactory material in the borrow

pits and in the available sections of the old levee from

which to construct a B Section, and the new levee was

PERE PSR, 0

eventually successfully constructed from such sources with

a B Section.

There is no evidence that the borings were inaccurately

charted.

3. On October 30, 1931, the plaintiff received notice to

proceed with the work. This fixed the date for completion

[fol. 87] as on or before January 22, 1933. He commenced

in contract time with preparatory work such as clearing,

grubbing, and plowing, which required about one week’s

time.

Plaintiff began the placing of material in the levee on

Lot A February 10, 1932; on Lot B June 14, 1932; on

Lot D August 23, 1932; and on Lot C September 30, 1932,

103, 228, 298, and 366 days, respectively, after receipt of

notice to proceed.

4. Plaintiff sublet a part of the work as of September 19,

1932, to Robinson & Young, a co-partnership, being certain

work on Lots C and D, and as of September 26, 1932, to

M. W. O’Meara, being certain other work on Lots C and D.

5. In the course of the work the Government inspectors

on the job served current notices upon the plaintiff warning

him of departures he was making from contract require-

ments. The instances of such violations, as communicated

to plaintiff from time to time, were as follows:

Number of instances

Borrow pits:

| ee | ee an Wee ee eet: 23

Embankment:

Not started full out to slope stakes (Par. 22-a).._.. 16

Water impounded between partial fills (Par. 33).. 24

Woe MURMOTO TOR: DERE ooo eee: 40

Material showing tendency to slough (Par. 22-a)... 67

Grade deficient (Construction notes) .......... 3

Surface of incomplete levee not thoroughly broken

and turned to depth of 6 inches (Par. 22-a)..... 2

Foundation:

Not properly prepared (Par. 20)................. 6

Mee AIR ge oes 41

We meer OW MEME TEU. Bee. oes eek hs wae 4

Inspection ditch excessive in width and depth (Par.

Py heehee AN eee ee it eich aie eae 5

Of the total instances as to which warnings were issued

102 related to Lot A, 46 to Lot B, 32 to Lot C, and 51 to

Lot D.

Included in these notices was one dated March 1, 1932,

warning that material placed in the embankment showed a

tendency to slough. The plaintiff took exception to this

criticism March 7, 1932, in the following letter to the con-

tracting officer:

As you know we are having our first experience on build-

ing levees. We proposed when we came into this business

(fol. 88] to do our work just as well as possible and live

up to all reasonable requirements of the inspector and

engineer in charge.

On the morning of March 1, the inspector Mr. Laforber

gave us a ticket for placing wet dirt in the levee. We

wish to say that the dirt placed in the levee was not wet.

This dirt had been dug several weeks ago and drainage

had been maintained ever since. In fact the dirt was so

dry that one could walk on it without soiling anything but

the soles of his shoes.

We would like to call your attention to the fact that we

are dropping from ten to twelve yards at a time and this

may cause a slight settlement of the dirt already dry upon

which it falls. But that does not justify any reasonable

man of intimating or writing something which is false.

There is no proof that the plaintiff at any time other-

wise contested the inaccuracy of these notices.

During the progress of the work the contracting officer,

finding that the plaintiff was violating various provisions

of the specifications in the construction of the levee, or

engaging in harmful practices, communicated such findings

to the plaintiff, directed him to correct the conditions com-

plained of, and warned him that he would be held respon-

sible for resulting damage to the levee, The subject matter

of the contracting officer’s notifications and their dates

are as follows:

Feb. 16, 1932: Water on berm.

Mar. 2, 1932: Water impounded between partial fills.

Apr. 15, 1932: Enbankment not started full out to slope

stakes.

June 18, 1932: Excessive gross gerade.

June 20, 1932: Embankment not started full out to

slope stakes.

EEN AS POR DS TLD IND LN IIS

July 20, 1932: Machine working on incomplete embank-

ment.

Oct. 8, 1932: Slide due to wet material.

Oct. 18, 1932: Slide due to wet material.

Oct. 28, 1932: Overdug borrow pits.

Nov. 26, 1932: Slide due to sloughing material.

Nov. 29, 1932: Slide due to wet material and method of

construction.

Dee. 12, 1932: (1) Slide due to wet material and method

of construction.

Dee. 12, 1932: (2) Slide due to wet material and method

of construction.

Dee. 14, 1932: Placing material with tendency to slough.

On September 15, 1932, the contracting officer notified

the plaintiff in writing that the progress of the work was

unsatisfactory and demanded the use of additional equip-

[fol. 89] ment, and again communicated with plaintiff Octo-

ber 14, 1932, by letter as follows:

A review of the progress of construction on Chamberlain-

Lobdell Levee discloses that none of the embankment in

Lots A and B has been completed to the grade and section

required under the contract. All of the equipment on Lot

A between the dates of August 10, 1932, and October 1, 1932,

has been engaged in cutting out the numerous slides which

occurred in the partially completed embankment. During

the thirty-day period prior to August 10, 1932, there was

placed, in the embankment comprising Lot ‘‘A’’, slightly

less than 9,500 eubie yards of material.

Work on Lot ‘‘B’’ began about April 25, 1932. Numerous

difficulties with your equipment due to breakdowns, and

many days of delay due to lack of proper drainage, arose

during the course of construction, and slides, dues to your

faulty methods of construction, have developed which fur-

ther delay completion. Up to October 1, 1932, none of the

embankment was completed to the grade and section re-

quired under the contract. The lot is only 50% completed

and 75% of the time allowed for its completion has already

elapsed.

Due to unsound construction methods adopted by your-

selves, the embankment as presently installed in Lots ‘‘A”’

and ‘*B’’ is not considered entirely satisfactory for com-

pletion. The unsound construction methods referred to

included operations which provided for handling and re-

handling of material several times before its final place-

ment; construction of partial fills on slopes steeper than

provided for in the contract specifications: introduction of

pockets and valleys into the work between partial fills, which

provided excellent basins for collecting and impounding

rainfall and moisture seepage from the fills; construction of

embankment to heights in excess of gross gerade thereby

providing conditions conducive to (1) slides, beeause slopes

are necessarily steeper than provided for in the contract

specifications, and (2) foundation failures due to the excess

weight imposed by the added load; installation of a drag-

line machine atop partially completed embankment, pro-

ducing excessive vibration and also adding excess weight to

be borne by the foundation area; lack of proper drainage

for the successful execution of the work; overdigging of

borrow pits and excavation of inspection diteh to dimen-

[fol. 90] sions greater than specified, all of which are in the

nature of violations of contract specifications or contrary to

sound construction practice.

It is the opinion of this office that additional difficulties

will probably ensue when completion of the presently in-

stalled partial fill is attempted. The doubtful nature of the

work already done by you prohibits additional partial pay-

ments on work to be done on Lots ‘A’? and ‘‘B’’, You are

therefore advised that no further partial payments will be

made for incompleted embankment in these two items. Pay-

ment for completed embankment will be made as provided

for in paragraph 9 of the contract specifications.

I am in receipt of your letter dated September 24, 1932,

in which you list certain equipment which was proposed to

be placed in operation on your work at onee. This list in-

cluded one Monighan 6 W Dragline, and three small drag-

lines to be used in conjunction with tractor and wagon haul-

ing units. It is noted that the small draglines and the

tractor and wagon units were placed in operation on Lot

“C’? between the dates September 26 and September 29,

1932. However, the Monighan 6 W dragline has not vet

been placed in operation.

Again, on October 2, 1932, you wrote to this office, through

Mr. Edgar S. Maupin, Area Engineer, stating that a Monig-

han 6 W dragline machine would be on the site of the work

immediately. This machine has not yet been placed in

operation, nor is it yet on the site of the work.

It is desired to inform you that in order to complete

Lot ‘‘A’’ within the time fixed for completion, it will be

necessary to install additional equipment capable of

handling at least 2,000 cubic yards per day. The equip-

ment presently engaged on this lot is estimated to have a

capacity of approximately 3,000 cubic yards per day. As

there remains only about 70 effective working days of the

100 remaining calendar days in which to place the remain-

ing 315,000 cubie yards in this lot, the necessity for requir-

ing additional plant is apparent. It is desired to have this

additional plant on the site of operation and in working con-

dition without undue loss of time. You are requested to

inform me concerning plans for installation of this addi-

tional equipment as soon as practicable after receipt of

this letter.

At no time did the plaintiff appeal to the Secretary of

War from any decision of the contracting officer.

[fol. 91] 6. The plaintiff, on or about December 12, 1982,

ceased work on the project, and on that date sent the follow-

ing communication to the contracting officer :

Careful investigations and extensive explorations of

the conditions at the site have disclosed the fact that the

subsurface and/or latent conditions differ materially from

the conditions as represented in the plans and specifica-

tions, and you are hereby formally notified that I elect to

rescind my contract with full reservations of all my rights

in the premises.

However, if mutually satisfactory adjustments can be

made, I am willing to proceed with the work and to that end

I hold myself in readiness to discuss this matter with you

at any time within the next forty-eight hours.

Kindly acknowledge receipt of this letter, and oblige,

The contracting officer replied December 14, 1932, deny-

ine the right of plaintiff to rescind the contract, and de-

manding resumption of operations. Operations were not

resumed. The contracting officer on January 3, 1933, trans-

mitted the following letter to the plaintiff:

Reference is made to Contract W1096eng-1929, entered

into by you on October 12, 1931, for furnishing all labor

and materials and performing all work required for the

construction of Item R 831, Chamberlain-Lobdell Levee,

rai ae rage ee

i 7

Lots A, B, C, and D in the Atchafalaya Front Levee Dis-

trict, containing approximately two million nine hundred

fifty thousand (2,950,000) eubie yards.

Article 1 of said contract provides that the work shall be

completed within the time fixed for completion in paragraph

39 of the specifications made a part of the contract. Para-

graph 39 of the specifications provides as follows:

“Time: Work shall be commenced in accordance with

paragraph 2 of these specifications and shall be completed

within 450 calendar days from date of receipt of notice to

proceed,’’

Notice to proceed under the contract was received by you

on October 30, 1931, thus fixing the date for completion as

January 22, 1933. To present date 430 calendar days have

elapsed since the beginning of the contract period and less

than forty-five percent of the required earthwork has been

construeted. Due to your failure to prosecute the work with

such diligence as to insure its completion within the con-

[fol. 92] tract period, your right to proceed with the work

is hereby terminated under the provisions of Article 9 of

the contract.

On December 12, 1932, the plaintiff had done about 45

percent of the required work, and had exhausted about 91

percent of the contract time.

7. There is an absence of proof that defendant’s officers

at any time misrepresented conditions to the plaintiff, either

orally or in writing, or in particular through the plans or

specifications.

Plaintiff could have satisfactorily completed the work

with the material available and in the agreed time. His

failure to do so was due to his own fault and negligence, to

delay on his part in getting started in the actual handling

of levee material, to his violation of the terms of the con-

tract, and unsound practices in the handling of material.

These unsound practices and contract violations related

mainly to the handling and disposition of material when

wet and tending to slough or slide, and the impounding of

water in partial fills.

8. The work remaining to be done was relet by due ad-

vertisement and bid to other contractors, who suecessfully

completed plaintiff’s work. The actual cost to the defend-

ant of the work remaining to be done, including administra-

tive costs and correction of plaintiff’s work, such as cutting

out and replacing slides, was $319,876.31, which was a fair

and reasonable amount.

Had the plaintiff completed the work remaining to be

done, the cost thereof to the defendant would have been

$210,880.60.

The excess in cost is $108,995.71. At the time of plain-

tiff’s default he had earned, in addition to moneys already

paid him, $71,342.51, which he has never received.

The net excess cost to the United States of completing

plaintiff’s contract, on account of his failure to complete the

contract, is $37,653.20.

ConcLusion oF Law

Upon the foregoing special findings of fact, which are

made a part of the judgment herein, the court concludes, as

a matter of law, that the plaintiff is not entitled to recover,

[fol. 93] and the petition is therefore dismissed. The court

further concludes that defendant is entitled to recover on

its counterclaim $37,653.20.

It is therefore adjudged and ordered that the defendant

recover of and from the plaintiff the sum of thirty-seven

thousand six hundred fifty-three dollars and twenty cents

($37,653.20). Judgment is also rendered against the plain-

tiff for the cost of printing the record herein, the amount

thereof to be entered by the clerk and collected by him ac-

cording to law.

OPINION

Jones, Judge, delivered the opinion of the court:

On October 12, 1931, plaintiff contracted with the defend-

ant to construct certain levees on the lower Mississippi

River containing approximately 2,950,000 eubie yards of

earth. The particular project was known as Item R 831,

Chamberlain-Lobdell Levee, Lots A, B, C, and D. The con-

sideration was to be 12.40 cents per cubic yard. The work

was to begin on each of the four lots within 20 calendar

days after receipt of notice to proceed. Completion was to

be within 450 calendar days from the date of such notice.

According to the contract and specifications the material

for building such levees was to be obtained from an old

levee and borrow pits located on the right-of-way. The

type of material to be selected from these sources was set

out in the specifications.

On October 30, 1931, plaintiff received notice to proceed,

and the date for completion was therefore fixed as not later

than January 22, 1933.

Plaintiff was hopelessly inexperienced in the building of

levees. Most of his construction experience had been in the

city of Chicago and he had never done any levee construc-

tion work.

A machinery salesman by the name of Maxson talked

with Mr. Ranieri and went down to visit the area where the

levee was to be constructed. He was accompanied by a Mr.

Dee, who was a representative of the plaintiff, and also by

a Mr. Derock. Maxson made some estimates and plans of

operation, and together with Derock furnished Dee some

[fol. 94] figures. Upon these figures Dee made some ealeu-

lations. All three looked over the site. The plaintiff used

this information, plan of operations, and the calculations in

making his bid. Maxson then sold him such new and

second-hand machinery as was thought to be necessary in

order for plaintiff to do the essential construction work.

Plaintiff’s unfamiliarity with both this section of the

country and the character of work he had contracted to do

soon became evident. While he commenced within a week

with some preparatory work such as clearing, grubbing, and

plowing which required about two weeks’ time, he did not

begin placing the material in the levee on Lot A until about

103 days after receipt of notice to proceed; on Lot B, 228

days after such receipt; on Lot D, 298 days after receipt of

notice, and on Lot C, 336 days after such receipt.

Plaintiff ran into many difficulties in handling the soil

from the borrow pits, encountering cypress stumps and

other organie matter, which caused damage to his machin-

ery. He also had difficulty with sloughs and slides. There

was also much rainfall. These conditions, however, were

not shown to be unusual in that section.

Many times during the course of the work the Govern-

ment inspectors served notices upon plaintiff warning him

of departures he was making from contract requirements.

Such notices were given in 231 instances, as set out in

Finding 5.

On December 12, 1932, plaintiff ceased work on the proj-

ect, complaining that subsurface and latent conditions dif-

fered materially from the conditions as represented in the

plans and specifications, and gave formal notice that he

elected to rescind the contract, indicating, however, that if

he ea

adjustments could be made he would be willing to proceed.

The contracting officer replied on December 14, 1932, deny-

ing the right of the plaintiff to rescind the contract and de-

manding the resumption of operations. Operations, how-

ever, were not resumed, and on January 3, 1933, the con-

tracting officer sent plaintiff a letter stating that 430 of the

450 calendar days allowed for the completion of the contract

had elapsed, and that less than 45% of the required earth-

work had been constructed, and notifying him that his right

to proceed with the work had been terminated. The defend-

[fol. 45] ant chose to relet the work to be done and it was

let to other contractors who completed the construction of

the levee.

The excess cost of completing the work over the amount

specified in the original contract, after allowing credit for

sums which plaintiff had earned in addition to the money

which had been paid him prior to default was $37,653.20.

Plaintiff sues for various items set out in his petition

aggregating a total of $258,880.49, which he asserts he is

entitled to recover.

Defendant pleads that plaintiff is not entitled to recover

any sum, and that defendant is entitled to judgment on its

counterclaim in the sum of $37,653.20.

Plaintiff bases his claim in the main on the alleged failure

of the defendant to furnish the plaintiff the type of soil

in the borrow pits which was suitable for the building of

such a levee, and upon its failure to disclose to him the na-

ture of the soil, the type of outside material, including

cypress stumps, found in some of the borrow pits, as well

as the excess moisture found in the soil.

Plaintiff’s first point is that defendant agreed to furnish

plaintiff, without cost, clean earth, free from foreign mate-

rial, which would not slough or show a tendency to slough.

He cites Sections 13 and 22 (a) of the specifications. His

reliance on these two provisions discloses that plaintiff

wholly misinterpreted their meaning. Section 13 does pro-

vide that the defendant will furnish the right-of-way and

earth for constructing the levee, but 22 (a) clearly places

the obligation upon the contractor to select from the borrow

pits the type of earth suited for the levees and as ealled for

in the specifications. The plaintiff makes the same charac-

ter of mistake in interpreting Section 19 of the specifica-

tions. He construes this section as a warranty on the part

of the defendant that the material contained in the borrow

Pe heat iol 4%

SPENT MASUR PAI AERA VARESE MOST VON STIS OF ONE TRE TE

pits was loam, whereas the specifications merely require

that a B Section be constructed of loam, which of course was

to be selected by the plaintiff from the material in the

borrow pits.

The evidence shows that there was sufficient material for

this purpose, which conclusion is further strengthened by

the fact that the later contractor completed the work in a

satisfactory manner with materials drawn from these same

borrow pits.

[fol. 96] Plaintiff’s second point that none of the material

in the borrow pits was suited to the construction of a B

Section levee is not borne out by the facts as disclosed by

the evidence, Plaintiff actually built some of the embank-

ment not only to the prescribed grade but higher than the

grade specified.

Plaintiff also emphasizes the fact that insufficient borings

were taken and that these do not properly disclose the char-

acter of the soil which was actually found when the work

began. Nowhere, however, does plaintiff contend that the

charts of the borings show anything different from the true

facts as disclosed by such borings. Only one boring was

made for each thousand feet. There was no obligation on

the part of the defendant to make any borings. However,

there was an obligation on its part, if it did make borings, to

fully disclose such facts as were found. This it did.

The chart classified the earth as disclosed by the borings

as sandy loam, sandy clay, sand and loam, clay, loam, sand

and silt, clay and silt, brown clay, soft brown clay and sand,

soft blue clay, hard blue clay, and soft brown clay. The

borrow pits contained sufficient of the type of material

called for in the specifications for plaintiff to have con-

structed the levee in accordance with the contract.

The evidence rather clearly shows that the conditions

found could not be called unusual. Any sort of investiga-

tion by the plaintiff, as disclosed by the various witnesses

who testified, would have shown him that he would probably

encounter wet soil; that it is not unusual to encounter cy-

press stumps; that water and such stumps are frequently

found in that section, especially where there is an extra

heavy growth of sugar cane, as in the instant case. The

evidence further shows that defendant made no misrepre-

sentation; that it withheld no information; that it aceu-

rately reported the borings, and that therefore the plaintiff

OI DDG ET ONE mm

was not misled in any way by representations of the Gov-

ernment.’

Looking over the entire record it appears to be a clear

case of a man’s undertaking a large and responsible con-

tract for a type of construction for which he was not

equipped either by training or experience, in a section of

[fols. 97-98] the country where soil and water conditions

were entirely different from those to which he had been

accustomed, and where the methods of work required and

conditions likely to be encountered were wholly unfamiliar

to him.

It is unfortunate, but the plaintiff duly signed the con-

tract, which was awarded on his own bid, and voluntarily

undertook its obligations. In view of the facts and cireum-

stances as disclosed by the record we know of no way that

he may avoid the legal consequences of his act.

Plaintiff is not entitled to recover against the defendant,

and defendant is entitled to recover a judgment against the

plaintiff on its counterclaim in the sum of $37,653.20.

It is so ordered.

Mapven, Judge; Lirrteron, Judge; and Wuatey, Chief

Justice, concur.

Wuiraker, Judge, took no part in the decision of this

case.

[fols. 99-100] VII. JupDGMENT OF THE Court—February 2,

1942

Upon the special findings of fact, which are made a part

of the judgment herein, the court concludes, as a matter of

law, that the plaintiff is not entitled to recover, and the

court further concludes that the defendant is entitled to

recover on its counterclaim.

It is Therefore Adjudged and Ordered that the plain-

tiff’s petition be and the same is hereby dismissed, and

that the defendant recover of and from the plaintiff the

sum of thirty-seven thousand six hundred fifty-three dol-

lars and twenty cents, ($37,653.20).

1 Trimount Dredging Co. v. United States, 80 C. Cls. 559;

James Stewart & Co., Inc., v. United States, 94 C. Cls. 95.

[fol.101] VIII. Proceeptnes Arrer J UDGMENT

On April 2, 1942, the plaintiff filed a motion for a new

trial.

On June 1, 1942, the court entered the following order

on said motion:

Order

It is Ordered this 1st day of June, 1942, that the plaintiff’s

motion for a new trial be and the same is hereby overruled.

On July 8, 1942, the plaintiff filed a motion for an exten-

sion of time to September 15, 1942, within which to file a

request for other parts of the record under Rule 99 (b)

and said motion was allowed by the court on July 13, 1942.

[fol. 102] Praintirr’s Appiication For Rercorp—Filed

September 15, 1942

On September 15, 1942, plaintiff filed a request for record

in re certiorari under rule 99 (b), together with other parts

of the evidence agreed to by parties as material to errors

assigned and petition for writ of certiorari.

[fol. 103] IX. Parts of Evidence Agreed to by Parties on

Petition for Certiorari

Parts of the evidence agreed to by the parties as ma-

terial to the errors assigned are as follows:

[fol. 104] M. W. O’Mera, (Plaintiff’s Witness; Tr. 1):

I have been engaged in drainage irrigation and levee con-

struction, investigating different types of soil and handling

it, for 29 years (Tr. 2, qq. 1; 4, 7, 8; Tr. 3, q. 16; Tr. 4, qq.

18, 19, 20-23). I was on the job as a subcontractor during

September, October and November 1932 (Tr. 7).

I found a little bit of loam on the top. I found clay

slough, washing material, places where you found rotten

debris probably in there for centuries, a mixture of every-

thing. This soil was very, very wet. You could see the

SCOR REY PAY TTD. SN ENT ATR NCL PORE OBA GOBBI AP RE MY EET -

. seen PE TEEN AS Me ARE SO AL EL POY ERE PIR

seepage. The soil had a tendency to retain water, except

when you got it under pressure (Tr. 10, 11).

It was the first time in my life I ever encountered soil

like it. A levee can be built with that soil, but it takes a

long time (Tr. 12).

The slope was B-section, six and a half to one, the river

side was three and a half. The levee could not be built up

to gerade on that slope (Tr. 13).

I encountered foreign matter in the borrow pits, a great

many cypress stumps (Tr. 14). Tt was impossible to re-

move them. You had to dig around blindly and break your

equipment. We broke two-inch cables (Tr. 15, 16). Those

eypress stumps interfered with the quantity of dirt we were

to remove from the borrow pit, resulting in leaving 10%

of the borrow pit area, and caused me to go out farther. It

meant rehandling dirt (Tr. 15, 16). I went out 70 feet

farther when I encountered those stumps than provided

originally in our plans (Tr. 17).

We were delayed because of cypress stumps 30 to 40%.

The soil in the borrow pits was charged with water, inter-

fering with my work. The water would run out of the soil I

took from the borrow pits when it was placed into the levee

(Tr. 20, 21). The loss from water in the buckets was ten

to 15%.

The Government objected to my placing sloughing ma-

terial in the embankment. There was no other material to

(fol. 105] be had. I said ‘‘if this material is slough I ean’t

put it in here’’. He said go ahead, but don’t shut down

(Tr. 24).

In order to get the moisture out of the soil, we threw it

up in piles, and let it set a week or ten days. Then we would

eo back and throw it over (Tr. 27). I did not operate and

place soil on the levee at any time during rains. The in-

spector shuts you down immediately (Tr. 29).

In all my experience I never encountered any soil as bad

as this (Tr. 30, 31).

I did not pocket water between partial fills, only for such

time as was required to get it out. The water was taken

off (Tr. 32).

A fair and reasonable charge for building this levee was

18 to 20 cents per eubie yard (Tr. 34).

Before I made my bid to Ranieri, I examined the site,

plans and borings, which on the face of it looked like a

mighty good job (Tr. 54).

WILLE

ae metus

No one realized that there were hidden cypress there

because the soil did not show it (Tr. 56).

When I dug my inspection ditch, it would fill full of water

if you did not keep it pumped. I made protest verbally to

this engineer in charge, Mr. Thompson (Tr. 79). I told him

that the material was so wet it would not go to grade (Tr.

80).

From the specifications a B-section is supposed to be loam,

a high class material (Tr. 96).

_—_—_

[fol. 106] Mervin Armstrong, (Plaintiff’s Witness, Tr.

342).

I am an engineer. I am employed by the Page Engi-

neering Co. which sold equipment to Ranieri. I was em-

ployed with excavating contractors for nearly 25 years

(Tr. 343.) I have been on more than 200 levee jobs, and

constructed them. (Tr. 363.) It was in connection with

the Page Engineering Co. that I had occasion to inspect

the cite of Ranieri’s work. I went to the job January

19, 1932, (Tr. 344), and the second time in July 1932,

(Tr. 347). I was there from January 19th to February

4, 1932; the next trip was July 9th, and I was there inter-

mittently until the 25th. I was back there on August 3rd.

(Tr. 397.)

I examined samples of the soil taken from one place

for the water content. The moisture content of the hard

blue clay was 37 and % per cent., another test showed

31 per cent, and the sandy top soil was 28 per cent. (Tr.

349-352.) I got samples of the materials, weighed them,

put them in the oven, a small stove, where they prepared

their meals, slowly let it dry and weighed it again.

The water was not permitted to remain in any place

for a long period of time, that was the reason adequate

provision was made for drainage, to get it away. (Tr. 352.)

There were eypress stumps in the borrow pits. (Tr. 353.)

Sometimes they were too thick for a bueket to pull be-

tween them. They interfered with the efficiency of the

dragline equipment, and retarded the progress. It was

necessary to go farther out for material. (Tr. 354.)

I would roughly estimate that eighty per cent of the

material was composed of sedimentary material, silty

clays and silty sands. Such material as that could not be

built in the time allowed, 450 days. (Tr. 367.)

The inspection ditches were always being pumped out.

They were wet as ‘‘the devil’, and full of water. (Tr. 368.)

Ranieri pumped out the pocket water between the fills.

I did not observe any pocket water on the levee for any

[fol. 107] period of time. (Tr. 368, 369.)

I saw the sheet of borings. Hard blue clay as I under-

stand it didn’t exist. (Tr. 374.) This clay on this job

was full of vegetable matter, had a stink to it. (Tr. 375.)

In my opinion, it was impossible to get the water out

of the ground to reduce the water content so he could work

and stand on it. (Tr. 380.)

If Ranieri had been ready to proceed at once and if

working conditions had been good, the levee construction

could have been completed within 450 days. Under the

conditions as existed, it was not possible to complete that

levee in four hundred and fifty days. (Tr. 405, 406.)

The Government placed back limits on the pits in some

places due to the fact that the rule was we could not ap-

proach the old controlling levee within a certain limit.

(Tr. 393.)

[fol. 108] Grenway Maxon, Jr. (Plaintiff’s Witness, Tr.

100).

Lama mechanical engineer, graduate of the University of

Wisconsin, and not a construction engineer. I designed

contractor’s equipment for ten years. From my association

with excavating contractors and from my experience in ap-

pearing on jobs since 1926, T am able to judge the various

types of earth excavated by contractors. (Tr. 100, 101).

Ranieri had never done any levee construction work on the

Mississippi River, nor had I. I do not know who in his or-

eanization had had such experience. Iwas at the site a good

part of the time from the last of November 1931 to June 15,

1932, and occasionally for another few months. (Tr. 148).

Before work was started, I prepared and submitted plain-

tiff’s plan of operation, and the machinery to be used, which

the Government accepted. (Tr. 117, q. 27; Tr. 120). The

machinery to be used was one Page Class 222 with a 90 foot

boom and 4 yard bucket; a 430 Page with a 70 foot boom

and 8 yard bucket; (Tr. 102, 103); and a P, & H, machine,

(Tr. 104). With this equipment Ranieri could have started

at one end and come through to the other end of all four

items, and completed the whole of it within 450 days, if

the soil had been as we expected. (Tr. 187, q. 66).

The cypress stumps in the borrow pits interfered with

the amount of dirt that could be had from those borrow pits,

making it necessary to go further out to get material. It

meant practically an entire different plan had to be used,

by hauling part of it and rehandling the dirt twice with the

hig machines. I would say it would double the cost. It

definitely impeded the progress of the work. I did not con-

template any of those conditions at the time I submitted the

plan to the Government (Tr. 140, qq. 195-200; Tr. 1438-145,

qq. 210-214).

Irom my experience with these levees, it would not be

possible to complete a levee of the size undertaken by

Ranieri with that type of material, and bring it up to

grade in a period of 450 days. (q.175). This is an opinion

[fol. 109] based on observation, as I had never done any

levee construction work. (Tr, 212-213).

Just as soon as the borrow pits were opened up, they

brought forth a terrible stench. (Tr. 136, 137). In some

places the water practically cascaded underneath the loam

which was 3 or 4 feet thick in places. (Tr. 134, q. 170).

This soil was not the type of soil that should have gone

into the levee. There was no material close to hand other

than the material provided for in the borrow pits with which

to build the levee. (Tr. 169, qq. 302, 303).

By the method used, they insisted upon bringing the dirt

all the way back. (Tr. 143). Ranieri attempted to fulfill

a requirement which was very difficult to understand. He

first placed the material which they rehandled into the

landside toe and dressed it completely. Then he came with

the big machines and placed the riverside toe, and then had

to level that all off. In other words, he could not put a pile

here, and a pile there to make drainage for the water. They

required him to level that right straight off on top. (Tr.

145).

As to pocket water, I saw one or two little ponds which

he got them right out, they were not permitted to remain

for any length of time. (Tr. 145). Ranieri provided ade-

quate drainage. When you drop a bucket the dirt stands

8to 10 feet high. (Tr.197). At all times there were pumps,

(Tr. 141, 142, qq. 202, 206). Everything possible was done

to drain the site. (Id.; Tr. 196, 197).

About a week or ten days before rescission, financial aid

was badly needed as we had a payroll of seven or eight

thousand dollars staring us in the face, and it would be

only folly to continue on not knowing where we were going

to get money to pay any more expenses that might be

incurred. (Tr. 331).

(fol. 110] Vieror Fasrts, (Plaintiff's Witness; Tr. 218).

I have been a sewer foreman for 18 years. I have handled

various types of earth, many kinds. Tam able to distinguish

between them, to tell the difference. I was foreman of a

shift on this job, from November 14, 1931. (Tr. 218, 219).

The Superintendents were Derock, Ed. White and Joe

White, and after that Mr. McWilliams. (Tr. 248).

There were eypress stumps in the borrow pits. They

were close together, and we could not get the buckets in be-

tween them. (Tr. 224). They slowed the machines down 29

to 30%. We ran short of dirt due to the cypress stumps,

and had to go out further to get some more dirt. (Tr. 225).

In going out further for dirt, in the borrow pit, it was neces-

sary to handle the dirt in wagons sometimes 3 times. (Tr.

229).

The minute it quit raining, we would pump it out and

drain. We did not leave the water on the levee for any

length of time. (Tr. 280). The minute we knew that the

borrow pit was dug too deep, we refilled it the same day.

(Tr. 235).

[fol. 111] Wiis M. Der, (Plaintiff’s Witness; Tr. 953).

I kept the books and records for Ranieri. <A fair price

for the work under the conditions would be 21 cents per

eubie yard, (Tr. 287). We hired McWilliams as superin-

tendent for the job, (Tr. 267), on July 15, 1932. (Tr. 303).

I went to the site previous to the bids and looked over the

land with Derock and Maxon, (Tr. 266), and was there from

July 9, 1932, (Tr. 267), during which time I was on the

job every day for half a day. (Tr. 294).

I made complaints to Colonel Hodges as we were en-

countering the soil in the borrow pits, that it was not a soil

Byers ‘ G a Se a re a Rh aeR

that the levee, as called for in the specifications, could be

brought up to the full gross grade. (Tr. 289). MeWilliams

and I suggested a way in which that levee might be com-

pleted and brought up to gross grade and section, which was

a very slow way of building a levee, but on account of the

nature of the soil we had to do it in that manner , but de-

fendant refused. (Tr. 291).

On account of the cypress stumps, in order to get suffi-

cient dirt, we would go further out. This caused extra

handling either with draglines, tractor or tractor wagons.

(Tr. 279).

Preparations were made for the drainage. They kept

channels open so that no water would at any time aeeumu-

late on the base of the levee. The top of the levee, every

effort was made at all times to keep it in such condition that

it would readily shed water after heavy rains. The pumps

were always in operation, day and night. (Tr. 275, 276, qq.

104, 109).

Plaintiff was paid $80,640.05 <A defendant, and expended

on the work $257,422.88. (Tr. 258, 329, 330).

We sublet almost all of seta C and part of Section D to

O’Mera. We sublet to Robison and Young,—the basing of

the stations on which O’Mera was going to place the top

part of the levee. We purchased six tractors and traetor

wagons. (Tr. 267).

On July 9, 1932, the equipment on the job was one Page

Dragline, 150 foot boom, with a 10 vard bucket; a Page

[fol. 112] Dragline with 160 foot boom and 8 yard bucket: a

Page Dragline with a 90 foot boom and 4 yard bucket; one

P. & H. Dragline No. 700 with a 60 foot boom and 1 vard

bucket; one P. & H. Dragline No. 400 with a 35 foot boom

and *4 eubie yard bucket. (Tr. 271). Later we had Me-

Williams Dragline machine, 125 foot boom and a 4 or 5

yard bucket, and L’Mera’s 6-W Monegan 150 foot boom

with a 6 yard bucket. (Tr. 272).

There was a large quantity of moisture in the soil of the

borrow pits. I picked up some samples at random and

tested them, and found the moisture content from 3314 to

40%, with the average 35% of moisture. (Tr. 279, 280).

[fol. 113] R. H. McWrurams, (Plaintiff’s Witness; Tr.

419).

I am an experienced levee contractor acquainted with

soil formations along the Mississippi Valley. (R. 168;

Tr. pp. 420, 421, qq. 4-14).

The soil conditions were just what I would expect in that

kind of country. (R. 168, Tr. 424-425, qq. 31 and 35).

Eneountering cypress stumps in the borrow pits was not

an unusual occurrence in the Mississippi Valley. (R. 168,

Tr. 429, q. 58). The borings showed that soft clay material

would be encountered, (R. 168; Tr. 439-440, qq. 97-101), and

that they indicated that it was an undesirable contract to

work on. (R. 168; Tr. 442, q. 119). On the sections of the

contract where I worked there were no slides, although

there were numerous slides on other portions of the con-

tract work. (R. 168; Tr. 444-445, qq. 117-121).

The work might have been brought to gross grade and

section in the contract period if good care had been used,

(R. 168; Tr. 447, xq. 186), but plaintiff did not use good

eare. (R. 168; Tr. 447-448, xqq. 187-1388). If plaintiff had

started at the beginning of the contract, he could have com-

pleted the levee within the contract time. (R. 168; Tr.

450, xqq. 154-156).

To an experienced levee builder, the crop of heavy cane

sugar which was on the land at the time of the invitations

for bids, indicated that it lay above cypress stumps. (R.

175; Tr. 426-427, qq. 48-45).

A heavy combination of silt, sand and buckshot furnishes

the most desirable materials to construct a levee. (Tr. 422,

423).

I leased plaintiff a machine in July 1932, and agreed to

give him three days a week of my personal time in an

advisory capacity. (Tr. 424).

It was a dangerous piece of work on account of the char-

acter of the soft material (R. 119; Tr. 459, q. 193) ; the levee

could not have been completed within the contract time, 450

days. (R. 119; Tr. 480, 431, q. 61; Tr. 432, q. 64). The

base should be put in one year and the top put on in another.

[fol. 114] (Tr. 481-482, qq. 61-64). Taking this job as I

found it, when I came there it would have been a dangerous

proposition to have attempted to bring it to gross grade. It

would have been impossible at that time (Tr. 454). The

slope defendant required was not a practicable one. (Tr.

454, Adq. 174).

A fair value for placing the earth in the levee was 20

cents per cubie yard. (Tr. 441, qq. 103-104).

[fol.115] | Joun Koren, (Plaintiff’s Witness, Tr. 471).

I had never seen the job until December 1932, at which

time plaintiff had stopped work and had abandoned the con-

tract. I went to the site of the work at the instance of plain-

tiff’s surety in order to make a report on the general situa-

tion then existing. (R. 169; Tr. 473, q. 12). The slides

could not be attributed entirely to the wetness of the ma-

terial, but that if the contractor used bad methods of opera-

tion it could have been a potential cause of the slides. (R.

169; Tr. 482, 483, qq. 37, 38).

Where you have a cypress swamp you generally have a

class of material that is water soaked, very ha-d to get the

water out, that drains with difficulty. (Tr. 490).

A B-section would not be proper for a wet watery ma-

terial with the characteristics found in that levee, such as

found in the borrow pit, but that material if not wet could

properly serve as a B-section levee. (Tr. 478, 479, q. 27).

There is nothing on the borings which indicated the faet

or degree of wetness of the material (Tr. 481) or the exist-

ence of a cypress swamp. (Tr. 490, qq. 54-56). I do not

think anyone including the Government engineers knew

there was a cypress swamp there. (Tr. 490). Designation

of soft clay indicates the presence of moisture, as it is the

moisture which makes the clay soft. (Tr. 508).

(fol. 116] Wituam J. New, (Defendant’s Witness; Officer

in Charge; Tr. 774).

Plaintiff actually built some of the levee not only to the

prescribed grade, but from 3 to 5 feet above it. Hardwick

& Horton, the subsequent contractor finished the work in

one year’s time, (R. 169; Tr. 786, q. 44), and had no trouble

in completing the job where they built from the ground up.

It was only when they attempted to complete Ranieri’s work

that they encountered difficulties. (Tr. 786).

The new contractor who completed the levee started

operations on July 11, 1933, and continued until July 1,

1934. (Tr. 785). He agreed to complete it in 240 days, but

was obliged to take 115 days additional! time. (Tr. 909, 910,

q. 497).

Plaintiff impounded water, in a particular pool, to a depth

of five feet between partial fills in the center of the levee.

The bad feature of it is there are voids in the finished fill.

(R. 171; Tr. 801, qq. 87-91). Notices charged that Ranieri

over dug his inspectio- ditches, dropped his material from

excessive heights and worked the soil during rain. (Tr.

808). We allow 25 per cent shrinkage on dragline fills to

take care of shrinkage that occurs on account of these voids,

and when rain is permitted to impound or fall on these fills,

without any provision for drainage, naturally the water

permeates the fills and fills a lot of voids, and that increases

the water content of the material. (Tr. 801, q. 91).

Water was permitted to be on the levee base and in the

muck ditches. (R. 171; Tr. 807, 808, qq. 108-110). Had the

work been commenced promptly and properly executed, it

would have been completed on time. (Tr. 782, 783, q. 34).

The height of the levee on Lots A, B and C was to be 33.7

feet, and at Lot D 29.4 feet. (R. 117; Tr. 885, 886, q. 379).

The two adjoining levees, with similar materials, but of

less height, (Tr. 886), were completed in contract time with-

out any difficulty. (Tr. 786, 787). Sometimes a difference

of a foot or two in the height of the levee will determine

(fol. 117] whether or not it will slide. (Tr. 882). Boring

data would give good general idea of the type of soil to be

expected, and the soil actually encountered was the same as

the boring data showed. (Tr. 778, 779). There was suff-

cient material in the borrow pits to build the levee even al-

lowing for the presence of the stumps. (Tr. 841).

After this job was started, after there were certain slides,

additional borings were taken in the borrow pits, we ana-

lyzed the soil and made stability computations, and in the

levee base, to see whether a levee of the height prescribed

could be constructed with the available material. (R. 118;

Tr. 833, 834, qq. 166, 167). That is the usual practice in our

organization. (Id.).

Before the work was started plaintiff submitted his plan

of operation and the machinery to be used. If his equip-

ment were not adequate we had the right to withhold the

awarding of the job to him. (R. 118; Tr. 889, 890, xqq.

400-403).

The exact area from which plaintiff was to obtain the

material was not shown on the map. The specifications

state that the material could be obtained from the riverside

borrow pits. (Tr. 868, xq. 297, 298). It was in that area

GE a NO EEE SION RS OE SIS SEE ERR BL. ED ae i es:

that Ranieri had to take his material, and solely from that

place. (Tr. 868, xq. 299).

I say that the material that Ranieri placed in the levee

had a tendency to slough. I said that in many of our viola-

tion notices, and yet the only place that Ranieri could get

material was from the borrow pits, designated by the Gov-

ernment. (Tr. 869).

A. We didn’t require him to remove material because the

material was not objectionable by the time it reached the

levee. It wasn’t in as good condition as it should have

been, but the material itself was not objectionable in any

form. (Tr. 870).

Q. So that this material that had a tendency to slough

and slide was not objectionable?

A. The material itself was not. (Tr. 370, xq. 307).

[fol. 118] Q. Why did you hand him these certificates?

A. Because of the fact that the contractor had handled

his work in such a way he rendered that material * * *

he broke down its resistence to sliding and sloughing by the

manner in which he prosecuted the work. (Tr. 370, xq. 308).

Material that has a tendency to slough and slide is apt

to slough and slide * * *, but it isn’t objectionable until

you actually get a movement and the cleavage plane is

broken within the embankment. (Tr. 872, xq. 318).

Q). Knowing that the material — was going into the levee

had a tendency to slough and slide, couldn’t you have

avoided this by directing Ranieri to remove it? Was he

paid for the removal of the material?

A. I think not, because that would have been a repeti-

tion of what we had originally. (Tr. 872, xq. 320).

The precipitation in 1932 was 20% more than the aver-

age. (Tr. 848-850, xqq. 218-223).

Material taken from the borrow pit is placed in the levee

in one or two handlings by the machine, and the type of soil

that was used here does not readily give up its moisture

content. (Tr. 839).

There were some cypress stumps or trees found through-

out the length of the job. (Tr. 917, q. 534). There was no

unusual number however on Ranieri’s job. (Tr. 835).

Everyone expects to encounter some cypress stumps. (Tr.

791). Work was completed on similar projects where there

were a lot of cypress stumps without undue delay or equip-

ment breakage, and with equipment similar to Ranieri’s.

(Tr. 792).

When Ranieri encountered these cypress stumps to get

the material that was displaced by the stumps, it was neces-

sary to dig deeper, or go out further for the amount of ma-

terial to replace the volume of the stumps. (Tr. 893).

There were always Government estimates, known as Gov-

ernment engineering estimates used in competition with

contractor’s bids, opened at the same time with the con-

[fol. 119] tractors bids. They are the same thing as the

contractors bidding on the work. The only difference is

that the Government’s estimate does not include profit, and

the idea of allowing 25% over the Government’s estimate,

is to allow the contractor to make a legitimate profit. (Tr.

780).

The total base compression was 132,930 cubie yards on

the work performed by plaintiff. (Tr. 467, q. 295).

MeWilliams is an old levee builder about this section of

the country, and a very good one. (Tr. 892).

There was never any foundation failure of the levee.

(Tr. 810). There is nothing in the specifications against

having water on the berm. (Tr. 852).

Ranieri had an excessive number of rehandles, and each

rehandle cost Ranieri additional money. So, he had noth-

ing to gain by rehandling this dirt more than he thought was

absolutely necessary. (Tr. 903).

Around July 1932, there was a full river stage of the

Mississippi. The level of the river was higher than the

bottom of the borrow pits. (Tr. 861). It affected the

amount of water in the borrow pits and soil there. (Tr.

861).

I am employed as Assistant Area Chief of the second

Mississippi area by the War Department. I am an engi-

necr in charge of all construction work in respect of levees

within that area (Tr. 775-776). I have been engaged in

levee construction work and flood control work on the

Mississippi since 1927, and have had charge of the build-

ing of all levees construeted by the Government from Mem-

phis to New Orleans. (Tr. 776).

My connection with the Ranieri contract was to see that

the work was performed in accordance with the contract

and specifications, and to perform the usual inspections,

and the handling of reports. (Tr. 776.)

Dea SA. M TLE a EPA Rk REE PSE TE CE ROPER BY PIOIBE EN A I ESNS EALN FO

[fol. 120] H. A. Heusmann, (Defendant’s Witness and em-

ployee; Tr. 596).

An engineer and a soil expert, worked for 10 years mak-

ing soil studies, and all things pertaining to soil such as

designing sections for levees, and preparing soil borings.

(Tr. 597).

The borings chart showed that 34% of the materials were

within the loam class. (Tr. 173; Tr. 601, q. 22). Loam econ-

sists of material which contains less than 80% clay par-

ticles and less than 80% sand particles. (Tr. 602). The

soil found in the borrow pits was substantially similar (Tr.

611-618; qq. 56, 76), considering the classifications that

the driller used, such as sand and silt, which makes loam.

In other words, the driller had no analysis to classify his

soils by. He just put sand and silt, and he made a mixture

of both, evidently, that would result in loam. (Tr. 611, 612,

q. 57). The material that was used and available for the

construction of this levee was satisfactory material to

build a levee. (Tr. 614).

The field men are instructed to take borings at intervals

of 5 feet, and when there is a change in the strata, to take

a sample of that at every change. (Tr. 608, q. 42).

The original borings were taken on 73% of the project,

every 1000 feet. (Tr. 694).

There were 17 borings taken. They were each 2 inches in

diameter, and represented an area of 54 square inches, and

the pits were around 300 feet wide, and they were over

22,000 feet in length, and expressing it in percentages, it

would give vou one five-nillionth of one per cent area, or

the surface represented one five-millionth of a per cent of

the borrow pit area. (Tr. 614, qa. 64; Tr. 698, q. 354).

The second set of borings were taken 200 to 400 feet

apart during the work. (Tr. 693).

In speaking of this material as being good for levee pur-

poses, building to a certain degree and a certain height, is

without reference to the leneth of time in which it would take

to bring it up to that height. (Tr. 6638, rxq. 288).

[fol. 121] I saw cypress stumps in these borrow pits, and

I reported them, too, when I made drawings by using the

cross-section of the spoil bank. I indicated the cypress

stumps on it. I saw two of them cut in the spoil bank area,

right where the failure had oceurred between the spoil bank.

(Tr. 628). These cypress stumps in the borrow pits were

ROE

LEA PIES EB) BES TOPE LENE PILL LONE EI Ae WAM ORAS

ASSERT EP RE EN AOD ¢ TIDE AP UI ETE A <a aa.

about 27 feet deep. (Tr. 631, q. 129; Tr. 704, qq. 411, 412).

A stump would be anywhere from 3 feet to a maximum of

about 8 feet in diameter at the base. (Tr. 687, q. 330; Tr.

710, q. 445). If it is an old cypress swamp and the begeta-

tion has grown in there for quite a period, then you get

clay, silt and sand deposited over it, and the organic con-

tent will be high. (Tr. 631, 632, qq. 128-131).

When there are cypress swamps they allow one-third

more for wastage and subsidence. (Tr. 718, qq. 491-494).

[fol. 122] Purr S. Fryy, (Defendant’s Witness, and em-

ployee; Tr. 560).

In defendant’s Exhibit 44, the Government’s estimate for

the work was $487,340. (Tr. 594, qq. 91-92).

The new contractor who completed the work was paid

18.60 cents per cubic yard. (Tr. 595, qq. 91, 92).

Rain on any levee construction job will indirectly affect

the cost. And so will the moisture content of the soil

within certain limits. If there is 30% of water lying on

the ground, the contractor should not be working at that

time. I know from my experiences as an engineer, the

difficulty of moving wet earth into a levee. (Tr. 755, 756,

q. 229).

[fol. 123] 10. The exhibits filed by plaintiff and defend-

ant, to be filed with the Supreme Court of the United States

as part of the record, but not to be printed.

S. Wallace Dempsey, Attorney for Plaintiff; Francis

M. Shea, Assistant Attorney General; Paul A.

Sweeney, Attorney.

[fol. 124] X. Orper Serriine Recorp

The plaintiff having filed a petition for writ of certiorari

to the Supreme Court in the above-entitled case, and both

plaintiff and defendant having requested that certain por-

tions of the evidence which were agreed to by them, and

which are att-ched hereto be included in the record to be

certified to the Supreme Court, and the court having found

that said portions are accurate transcripts of the original

record material to errors assigned, the same are hereby this

Kaen oc. secon race STEN NN AR eR CERN A

16th day of September, 1942, approved as the record to be

certified to the Supreme Court.

By the Court.

Richard S. Whaley, Chief Justice.

[fol. 125] Clerk’s Certificate to foregoing transcript omit-

ted in printing.

[fol. 126] Supreme Court or THe Unirep States

[Title omitted]

Orper Extenpvine Time within Wuicu to Fite Peririon For

CERTIORARI

Upon Consideration of the application of counsel for the

Petitioner,

It Is Ordered that the time within which to file petition

for certiorari in the above-entitled cause be, and the same

is hereby, extended to, and including, October 29th, 1942.

Harlan F. Stone, Chief Justice of the United States.

Dated this 29th day of June, 1942.

[fol. 127] Supreme Court or THE Unitep States

[Title omitted]

STIPULATION

It is hereby stipulated by counsel for petitioner and by

the Solicitor General on behalf of the United States that

the exhibits referred to in the Court of Claims special find-

ings of fact and made a part thereof by reference (R. 86),

and the other exhibits filed by the parties in said Court, (all

exhibits having been made a part of the Agreed Evidence

, by the parties to be filed with the Supreme Court of the

United States as a part of the Record, but not to be printed,

as covered by the Order Settling Record), which have been

withdrawn from the Court of Claims and filed with the Clerk

of this Court, need not be printed, except the parts listed

d—463

below, but shall be considered a part of the Record, and may

be referred to by the Court and by either counsel in the

petition, briefs and on oral argument.

Exhibits C and D filed with defendant’s counterclaim

(R. 24-29) are not to be printed.

(1) The following parts of the Specifications, Exhibit E

are to be printed:

(a) Paragraph 7-a, page 33 of Record.

(b) Paragraph 9, page 37 of Record.

(ec) Paragraph 13, pages 38 and 39 of Record.

(d) Part of Paragraph 19, page 40 of Record.

(e) Paragraph 22-a, pages 43 and 44 of Record.

(f) Paragraph 24, pages 46 and 47 of Record.

(g) Paragraph 39, pages 54-60 of Record.

(2) The following parts of the Contract, Exhibit F, are

to be printed:

[fol. 128] (a) Article 3, page 63 of Record.

(b) Article 4, pages 63 and 64 of Record.

(d) Article 9, pages 67 and 68 of Record.

(e) Article 15, page 70 of Record.

(f) Article 16-a-b-c, pages 70 and 71 of Record.

S. Wallace Dempsey, Counsel for Petitioner, 723 In-

vestment Building, Washington, D. C. Charles

Fahy, Solicitor General.

Endorsed on cover: File No. 46,964. Court of Claims.

Term No. 463. Alex Ranieri, Petitioner, vs. The United

States. Petition for a writ of certiorari and exhibit thereto.

Filed October 17, 1942. Term No. 463, O. T. 1942.

(2798)

>»

| canis

SUPREME COURT OF THE UNITED \STATES

OCTOBER TERM, 1942

—————____ __ __. Pa

No. 463

ALEX RANIERI,

Petitioner,

THE UNITED STATES.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CLAIMS.

S. Wauiace Dempsey,

Counsel for Petitioner.

Bruce Fuuuer,

Of Counsel.

MP RPA

MALARIA SERIALS AVE EDA ALTA EI EOL

INDEX.

Sussecr Inpex.

Page

a Galen Gas eee eT NT ee ee 1

SN US aeniecis oo vy kaldeed doe enee van 1

SIAR Adee ee eens ede ee 2

| SS enn in mana ea 2

oe ei, LT ENO EA ERA FG Tied arene aT 2

I St i ee ee a 3

Specification of errors to be urged............... 6

Reasons for granting the writ................... 10

IIR accS ae ies Vises oh perc ok oak 20

TABLE OF Cases CITED.

American P. & Mfg. Co. v. U. S., 300 U. S. 475, 480... 11

Anvil Mining Co. v. Humble, 153 U. 8. 540, 552....... 18

Chippewa Indians v. U. S., 305 U. S. 479, 481........ 11

Cree YO. te re es so Sh eee eb kk. 14

Connery Coal Etc. Co. v. Comr. Int. Rev., 84 F. (2d)

Ey SA ed ok eee ake Fea ac a Ee valet oe 15

Cotten Go. v.20. &, OT Ch. Ces Gb ick oe icc ccna 16

Dermott v. Jones, 23 How. 220, 235.................. 16

Guerini Stone Co. v. P. J. Carlin Constr. Co., 248 U. S.

NS eons Retna ca wee SPE Seeks ee Legs 17

Ralorweek +. O..8., MES U.S, BBs ov ccc eens 14

Luckenback 8. S. Co. v. U. S., 272 U.S. 533, 539..... 10

McPherson v. San Joaquin Co., 124 Cal. xvii, 56 P. 802. 14

Norrington v. Wright, 115 U.S. 188................. 14

Ohio & M. R. Co. v. McCarthy, 96 U. S. 258.......... 15,17

Philadelphia etc. R. R. Co. v. Howard, 13 How. 307... 14, 18

a Bk ee OS | Rete ea renee 10

Seminole Nation v. U. S., 86 L. Ed. 980, 988, 992, 993. . 10

U. S. v. Esnault-Pelterie, 299 U.S. 201.............. 10

U.S. v. Esnault-Pelterie, 303 U. 8. 26, 31............ 10

U.S. v. Atlantic Dredging Co., 253 U.S. 1,12........ 15

Universal Battery Co. v. U. S., 281 U. 8. 580.......... 10

Wood v. Ft. Wayne, 119 U. S. 312, 322............... 16

Texts Cirep.

Am. Jur., Vol. 12, 2440, ps. 1021, 1022............... 17

Elliott on Contracts, Vol. 3, 32044 ................... 18

Page on Contracts, Vol. 5, 22958, ps. 5222, 5223; 22960,

Sk, ty IS ca. Gu sa kh a sin oben eae ee cs 14,18

Williston on Contracts, Vol. 3, 2657, ps. 1940, 1941 .... 18

—2741

eee: ¥

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

No. 463

ALEX RANIERI,

Petitioner,

vs.

THE UNITED STATES.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CLAIMS.

The petitioner, Alex Ranieri, prays that a writ of certio-

rari issue to review the judgment of the Court of Claims in

the above entitled case.

Opinion Below.

The opinion of the Court of Claims is not yet officially

reported.

Jurisdiction.

The judgment of the Court of Claims was entered Feb-

ruary 2, 1942. A motion for a new trial was overruled on

June 1, 1942 (R. 43). The time to file a petition for a writ

of certiorari was extended by the Supreme Court of the

United States to October 29, 1942. The jurisdiction of this

Court is invoked under Section 3(b) of the Act of February

13, 1925, ec. 229, § 3, 43 Stat. 939, as amended by the Act of

May 22, 1939, infra, pages 2, 3.

Questions Presented.

(1) Whether the Court erred in failing and refusing

to make material findings on material issues, and in making

findings not supported by the evidence as described in Peti-

tioner’s Specification of Errors.

(2) How the Act of May 22, 1939, c. 140, 53 Stat. 752, is

to be interpreted, particularly as to the meaning of the

words ‘‘it shall be competent,’’ and general as to the scope

of the Act and the intent of Congress, and as determining

the rights of the petitioner to a review and determination

thereunder.

(3) Whether the Court erred in dismissing the petition,

and awarding respondent judgment on its counterclaim.

Statute Involved.

(b) In any case in the Court of Claims, including

these begun under section 287 of this title, it shall be

competent for the Supreme Court, upon the petition of

either party, whether Government or claimant, to re-

quire, by certiorari, that the cause be certified to it

for review and determination of all errors assigned,

with the same power and authority, and with like effect,

as if the cause had been brought there by appeal. In

such event the Court of Claims shall include in the

papers certified by it the findings of fact, the con-

clusions of law, and the judgment or decree, as well as

such other parts of the record as are material to the

errors assigned, to be settled by the Court.

The Court of Claims shall promulgate rules to gov-

ern the preparation of such record in accordance with

the provisions of this section.

In such cases the Supreme Court shall have authority

to review, in addition to other questions of law, errors

assigned to the effect that there is a lack of substantial

evidence to sustain a finding of fact; that an ultimate

finding or findings are not sustained by the findings of

evidentiary or primary facts; or that there is a failure

to make any finding of fact on a material issue. As

amended May 22, 1939, ec. 140, 53 Stat. 752.

(Amendment to Act of Feb. 13, 1925, e. 229, ¢ 3, 43

Stat. 939, 28 USCA § 288).

Statement.

Petitioner contracted with respondent in October, 1931,

to build a levee containing about 2,950,000 eubic yards on

the Mississippi River for 12.4 cents per eubie yard.’ Re-

spondent agreed to furnish petitioner without cost the

material for building the levee, from designated borrow

pits,” ‘‘of the best grade’’ ‘‘clean earth, free from all

foreign matter, which would not slough or show a tendency

to slough’’,* with the governing material loam for building

a B-section levee of an average height of 31.5 feet.®

All the earth furnished was very wet and sloughy and

practically no loam, filled with foreign matter and large

cypress stumps, 3 feet below the surface to 27 feet, and 3

to 8 feet in diameter, and not any of it the kind respondent

agreed to furnish. It was not part bad and the remainder

good, but was all bad. There is no limitation of the bad con-

dition to part only in the evidence, but all the descriptions

of its condition as bad were unlimited, and general and

"Cts. Spee. Find. of Faet No. 1 (R. 30),

*R. 16; See. 13 of Specifications; R. 46, 53.

*R. 24; Art. 7 of Contract.

*R. 17; See. 22-a of Specifications.

° Cts. Find. No. 1; R. 31; R. 52.

applied to the whole. There was no earth such as respond-

ent agreed to furnish which petitioner could ‘*select’’ or

pick out.®

A boring’s chart was presented to petitioner which de-

scribed the soil by its various names, but stated nothing as

to the condition of the soil except that only 10%, on two of

the four lots, was soft clay, and failed to show that the soil

6 (a) The soil was not in as good condition as it should have been,

NEW, Deft’s. officer in charge, R. 53; it did not readily give up its

moisture content, Id., R. 53; it contained hidden eypress stumps and

foreign matter, Id., R. 53, and there was no other material available,

Id., R. 52, 53.

(b) Respondent had 142 written weekly Reports of each day’s work

made by its Inspector, 100 of which showed that the soil was wet, very

wet, 14 that it was moist, and none of it dry; that the machines were

idle most of the time on account of the bad condition of the soil for

160 days, and idle parts of practically every day; that there was no good

material or of the type required; that the material was too wet; there

was seepage; pumps had to be operated continuously, and that there was

practically no loam (Deft’s. Ex. 52 A-D).

(e) Respondent's answer alleges—“That much of this material

(in the levee after handling and drying) “was totally unfit,

wet, * * * sloughing, * * * showed tendencies to slough, and

was full of numerous slides and planes of cleavage” (R. 10).

® es oo”

(d) Respondent stated in 107 notices it gave petitioner that the

material was wet and sloughy. Respondent stated in 8 letters that the

material was wet, and showed a tendency to slough. No notice claimed

that there was any better material which petitioner could have selected

or picked out (Cts. Find. No. 4, R. 32).

(e) After the work started there were slides and additional borings

were taken to see whether the levee of the height deseribed could be

constructed with the available material (VEW, R. 52).

(f) “Plaintiff ran into many diffieulties in handling the soil in the

borrow pits, encountering cypress stumps and other organic matter

which caused damage to his machinery” (Cts. Opinion, R. 39), and

respondent knew these conditions before the contract was let (R. 53).

(g) The material here was the worst encountered in 29 years of levee

building, O’Mera, R. 43-45; it was a dangerous piece of work on

account of the soft material, McWilliams, R. 50; the material was

sloughy, and there was no other material, O’Mera, R. 43-45; the water

content averaged 35%, Armstrong, R. 45, Dee, R. 40, eypress stumps

in the borrow pits were 27 feet deep, 3 feet below the surface, and 3 to 8

feet in diameter, HEUSMANN (R. 55-56).

Res

BIOSIS Ca CM EI RE DIOL LOD Og Til ERP LI POE DIO RE 6 INE LEME NIN PR INGE EE PERN OTTER 6 ETERS RIOR Te

gic

was wet and filled with foreign matter and cypress stumps.’

The borings were made only at 1000 feet intervals and only

over 73% of the site representing but one five-millionth of

one per cent of the borrow pit area.*

Respondent approved previous to the work petitioner’s

plan of operation and his machinery.®

Petitioner was delayed constantly by the wet, sloughy

material, and lost most of the time of 160 days and parts

of every day,’® and had 30 to 40% loss of time due to the

eypress stumps which broke his cables and equipment,"

and foreed him to go further out to obtain material,’ and to

obtain extra machinery.” He protested about these condi-

tions being different from what respondent represented,

and its refusal to pay him a large sum due him for work."

On December 12, 1932, there was due petitioner $71,-

342.51 even at the contract price, of which respondent ad-

mits it had no right to retain $23,317.16, but which it re-

fused to pay petitioner who was in dire need of it.®> He

then notified respondent that he elected to rescind his con-

tract due to said conditions, but that he would proceed if

mutually satisfactory adjustments were made. Respond-

ent, December 14, 1932, refused to make any adjustment,

and notified petitioner to proceed with the work under the

terms of the contract. Thereupon petitioner discontinued

work.”®

7 Deft’s. Ex. 16; Note 6 above.

8 HEUSMANN, R. 55.

® Maron, R. 46.

1 Deft’s. Ex. 52 A-D; Note 6-b above.

1! O’Mera, R. 44.

12 Dee, R. 49; NEW, R. 54; O’Mera, R. 44.

Defts. Ex. 52 A-D; Cts. Find. No. 5, R. 36.

Dee, R. 48-49; O’Mera, R. 45; Note 15, infra.

™R. 14; Cts. Find. No. 8, R. 38.

16 Cts. Find. No. 6, R. 36.

a 4%

The fair and reasonable value of petitioner’s work in

placing 1,550,822 cubic yards in the levee,” at 20 cents per

cubic yard,'* and for other work performed by him is™®

$393,700.22, less the $80,640.05 paid *® leaving $313,060.17

due him.

The Court found that there was sufficient satisfactory

material to build the levee, dismissed the petition and

gave respondent judgment on its counterclaim.”

Specification of Errors to Be Urged.

Petitioner urges that the Court of Claims erred in failing

and refusing to make the following Special Findings of

Fact requested by petitioner, viz:—

(1) Respondent by the contract agreed that the (a)

‘‘earth for constructing the levee will be furnished without

cost to the contractor’’ by defendant, and (b) that it should

be ‘‘clean earth, free from all foreign matter’’, ‘which

17 Deft’s. Ex. 52 A-D; on Mareh 5, 1933, Ex. 52-A; March 5, 1933,

Ex. 52-B; March 10, 1933, Ex. 52-C; Feb. 20, 1933, Ex. 52-D.

18 The Government’s estimate as to value of work was 16 cents per

eubie yard, plus 25% profit, making it 20 cents per eubie yard, or $609,175

for the total yardage, NEW, R. 54; FINN, R. 56. The other witnesses

testified also that 20 cents was the fair value per eubie yard; Dee, R. 48;

McWilliams, R. 51.

19 Subsidence was 132,930 cubie yards, NEW, R. 54; 49-390 eubie

yards slides cut and replaced, Deft’s. Ex. 52 A-D, and 18; 12% or

186,098 eubie yards lost by being displaced by water in excavating, O’Mera,

R. 44.

20 Dee, R. 49.

*1 Finding 2, R. 31, 38.

Respondent did not claim in the Court below, and the Court did

not make a finding of fact, that there was sufficient material of the type

required by the contract and specifications to build the levee, but claimed

that it was petitioner’s duty to remove the foreign matter, such as eypress

stumps from the soil, and to dry out the wet, sloughy soil before placing

it into the levee (Deft’s. Brief, p. 167, in Ct. Clms.).

a ee eo et Prk NEL NT RRL ERR TORTIE IEG FY ON CES RE RL! POMS ELSE, pw. we.

aaa t ae

would not slough or show a tendency to do so’ and ‘‘be of

the best grade’’, but respondent failed to furnish peti-

tioner any earth of the kind stipulated and provided only

very wet and sloughy earth, subject to slides, thickly per-

vaded with cypress stumps, reaching from 3 feet to 27 feet

below the surface.

(2) Respondent presented to petitioner a borings chart,

and represented thereby that it had made adequate borings,

and that the only imperfection in the soil was about 10%

soft clay, and respondent failed to show and concealed the

bad condition of the soil, and that there were cypress

stumps and foreign matter in the borrow pits, although it

knew (but petitioner did not), that the borings were wholly

inadequate and that the soil was in an unfit and bad con-

dition, and as to the cypress stumps and foreign matter.

Respondent approved petitioner’s machinery as sufficient,

although it was inadequate under conditions of which it

knew.

(3) Petitioner relied upon respondent’s said agreement

to furnish soil of the kind stipulated, and on its said rep-

resentations as to the borings and the conditions of the

soil, and was misled thereby and by its concealing the ex-

istence of the cypress stumps and foreign matter, and the

bad condition of the soil, and was induced thereby to bid

12.40 cents per cubic yard on constructing the levee when

it was worth 20 cents per yard.

(4) The cypress stumps so obstructed the work and made

it so difficult to secure soil that petitioner was forced to

go further for earth than the contract provided, which

necessitated much additional machinery, and a greatly in-

creased cost for moving the dirt, but defendant insisted that

plaintiff should still move the material at the contract

price.

F .

Be e

peees a, athens SEEN ieee acs Tease ———

(5) Petitioner protested repeatedly to respondent its

failur: to furnish earth such as it agreed to supply, and its

misrepresentations and concealments as to the condition of

the soil, and requested adjustments, but struggled on until

he had placed 1,550,822 cubic yards, which respondent

Accepted, and which became a part of the completed levee,

when, as his protests and requests were ignored, and be-

cause respondent refused to pay him money due him, he

rescinded the contract.

(6) Respondent objected to rescission, but only on the

grounds,—(1) that the rescission notice did not state how

sub-surface conditions differed from the drawings, or those

shown in the specifications, of which difference respondent

was fully aware; (2) that petitioner should furnish proof

as to how sub-surface conditions differed from the draw-

ings or specifications, signed by two outside persons, neither

of whom had any interest in rescission; and (3) that peti-

tioner was expected to proceed with the work under the

terms of the contract.

(7) The reasonable value of the work petitioner per-

formed in moving and placing earth was 20 cents per cubic

yard, and the work performed and its value in items were

as follows, viz:

For placing 1,550,822 cubic yards of material in the levee

$310,144.50.

For 132,930 cubic yards lost through subsidence $26,-

580.00.

For 49,390 cubic yards of slides which respondent re-

quired petitioner to cut and replace $19,758.00.

For a 12% loss through excavating and placing 186,098

cubic yards of water in the soil $37,219.72.

— a ary GAR TORT WN HSA TAPES APO OE AOI i IEE ER LOSES ENTS SE ETD ALI

The total amount earned by petitioner was $393,700.22.

Petitioner was paid $80,640.05.

The balance now due petitioner is $313,060.17.

II.

The Court erred in making the following Special Find-

ings of Fact, and Conclusions of Law:

(1) There was sufficient satisfactory material in the

borrow pits and in the available sections of the old levee

from which to construct a B Section, and the new levee was

eventually successfully constructed from such sources with

a B Section.

(2) About 2,000 linear feet out of 20,000 feet of an old

levee were made available by the contract for the new levee

construction and the remainder of the material was to be

obtained from riverside borrow pits.

(3) There is no evidence that the borings were inaccu-

rately charted.

(4) There is an absence of proof that respondent’s of-

ficers at any time misrepresented conditions to the peti-

tioner, either orally or in writing, or in particular through

the plans or specifications.

(5) Petitioner could have satisfactorily completed the

work with the material available and in the agreed time.

His failure to do so was due to his own fault and negligence,

to delay on his part in getting started in the actual handling

of levee material, to his violation of the terms of the con-

tract, and unsound practices in the handling of material.

These unsound practices and contract violations related

mainly to the handling and disposition of material when wet

and tending to slough or slide, and the impounding of water

in partial fills.

(6) In holding as a Conclusion of Law that petitioner is

not entitled to recover against the respondent, and that

respondent was entitled to a judgment on its counterclaim

for $37,653.20.

Reasons for Granting the Writ.

The Court in failing and refusing to make the material

findings on material issues described in the specifications of

errors (hereinafter called S. E.), and in making the errone-

ous findings, also material and on material issues enumer-

ated in said Specifications, violated the Rules of this Court

(U. S. v. Esnault-Pelterie, 303 U. S. 26), and the Act of

May 22, 1939, c. 140, 53 Stat. 752, supra, and the case should

be remanded for additional and corrected findings (Ripley

v. U. §., 222 U.S. 144; Universal Battery Co. v. U. S., 281

U. S. 580; Luckenback S. S. Co. v. U. S., 272 U. S. 533, 539;

U. S. v. Esnault-Pelterie, 299 U. S. 201; Seminole Nation

v. U. S., 86 L. Ed. 980, 988, 992, 993), or the judgment should

be reversed and judgment for petitioner as claimed be

directed because ‘‘the subordinate or circumstantial find-

ings made by the Court below necessarily override its ulti-

mate findings of fact and show that the judgment in point

of law is not sustainable’ (U. S. v. Esnault-Pelterie, 303

U. S. 26, 31) and is in conflict with the decisions of this

Court as stated under C mfra, pp. 14-17.

(A) The Court below found as evidentiary facets (R. 32-33,

39, 41) that the soil was wet, sloughy, contained cypress

stumps and foreign matter (hereinafter called ‘‘ Prohibited

Soil’’), although the contract and specifications required

respondent to furnish free of cost to petitioner ‘‘soil of the

best grade, free from all foreign matter, which would not

slough or show a tendency to slough’’, with the governing

material loam for building a B-section levee (R. 16, 17, 24;

Notes 2-4 supra, p. 3). (Hereafter called Contract Soil).

er Rete eee Se ee

In conflict with its evidentiary findings, and the substan-

tial evidence, the court made the ultimate finding, not in

issue, that there was sufficient satisfactory material in the

borrow pits and in the available sections of the old levee

to construct a B-section levee, and that the new levee was

eventually constructed from such sources with a B-section

(R. 31-32), and refused to make petitioner’s requested find-

ing on the material issue that there was no Contract Soil

furnished (S. E. 1).

(1) The Court’s evidentiary findings made in its findings

of fact, and in its opinion (which as the meaning is am-

biguous may be resorted to in determining what it meant

by ‘“‘satisfactory material’, American P. & Mfg. Co. v.

U. S., 300 U. 8. 475, 480; Chippewa Indians v. U. S., 305

U. S. 479, 481), clearly show that the ‘‘satisfactory mate-

rial’? was prohibited soil, as follows:

(a) Respondent served 40 notices on petitioner that the

material furnished petitioner was wet, and 67 like notices

that it showed a tendency to slough (R. 33); that it notified

petitioner in writing on eight occasions that the soil was

wet, showed a tendency to slough and did slough (R. 33-34).

No claim was made by respondent then or thereafter that

there was any other material available.

(b) That petitioner ‘‘ran into many difficulties in han-

dling soil from the borrow pits, encountering cypress

stumps and other organic matter, which caused damage to

his machinery’’, and that ‘‘he had difficulties with sloughs

and slides’? (R. 39).

soil probably would be encountered’’; ‘‘that it was not un-

usual to encounter cypress stumps; that water and such

stumps are frequently found in that section’? (R. 41);

Sete ae, ee eet Set

(Clearly Prohibited Soil, and not shown on respondent’s

borings chart).

(d) That respondent agreed to furnish sufficient Contract

Soil to build a B-section levee (R. 41), but all the 168 In-

spection Reports (Deft’s. Ex. 52 A-D) but 2 show that there

was no loam, (the soil required for this steep B-section).

(2) The undisputed evidence also shows that the only

material was sloughing wet material containing numerous

large cypress stumps and organic matter,—Prohibited Soil,

which petitioner protested but was required to use by re-

spondent (R. 43-44; Note 6, supra, p. 4), and,—

(a) Contrary to the Court’s finding that ‘‘2000 linear

feet out of the 20,000 feet of the old levee were made avail-

able by the contract for the new levee’? (R. 31), such was

not provided for by the contract, map or drawings, and

petitioner was required to obtain his ‘‘material solely from

the riverside borrow pits’’ (New, Deft’s. officer in charge,

R. 52-53), and was prevented from approaching and obtain-

ing soil within a certain limit of the old levee (R. 46).

(3) The new contractors were paid once and a half peti-

tioner’s price, and took once and half the time stipulated

(R. 51, 56); which proves that the soil was not ‘‘satis-

factory’’, and that the levee was not completed in a satis-

factory manner.

The material issue (on which petitioner requested find-

ings, S. KE. 1) was whether there was sufficient Contract

Soil, and if not, whether petitioner suffered damages, and

not whether there was ‘‘satisfactory material,’’ or whether

it was physically possible to construct the levee as it was

constructed in once and a half the time stipulated, and at

once and a half petitioner’s contract price.

TN RN ERG ON SPORT ETA ORE LOMO PW, CYT ane

aaa

The relation of the parties is substantially that of seller,

respondent, and of buyer, petitioner, and the cases hold the

word ‘‘satisfactory’’ means so to the buyer. That the soil

was not ‘‘satisfactory’’ to petitioner is shown by his notice

of rescission (Finding by the Court), made because the

soil was different from what it was represented,—because

he was dissatisfied with it (R. 36).

(B) The Court erred in refusing to make petitioner’s re-

quested findings (S. KE. 2, 3, 4), that the borings chart mis-

represented and concealed the true conditions of the soil,

damaging petitioner, and in making the erroneous ultimate

findings,—(1) that there was no evidence that the borings

were inaccurately chartered (R. 32); and (2) that there

was no proof that respondent’s officers at any time misrep-

resented conditions to the petitioner, either orally or in

writing, or in particular through the plans or specifica-

tions (R. 37).

These erroneous findings are overridden by the evi-

dentiary findings, as well as by undisputed evidence, that

the soil was wet, showed a tendency to slough, and contained

cypress stumps and foreign matter, none of which was

shown on the chart (‘‘A’’ above; Deft’s. Ex. 16).

(a) The borings were inadequate, made at 1000 foot

intervals over only 73% of the levee, and amounting to only

one five millionth of one per cent of the pit area. After

work was started, slides made new borings necessary at 200

to 400 feet intervals, and soil analysis and stability compu-

tations to see whether the levee could be constructed with

the material (Notes 8, 6-e, supra, ms. 63.

(b) The chart represented that only about 10% of the

soil was soft clay, but the undisputed evidence shows that

all of the soil was wet. (See ‘*A’’, supra.)

findings made by the Court were on material issues for the

following reasons:

(1) As respondent agreed to furnish the ‘‘Contract

Soil’? (R. 16, 17, 24), it was a condition precedent which

should have been but was not exactly performed (5 Page

on Contracts, § 2958, ps. 5222, 5223; 3 Williston § 657, ps.

1940, 1941; Philadelphia Ete. R. R. Co. v. Howard, 13 How.

307; Norrington v. Wright, 115 U.S. 188; MePherson v. San

Joaquin Co., 124 Cal. xvii, 56 P. 802). Respondent’s breach

of said covenant entitles petitioner to recover his damages.

(Id.; Christie v. U. S., 937 U. S. 234; Hollerbach v. U. S.,

233 U. S. 165).

(2) Failure to show cypress stumps in the borings chart

entitled petitioner to recover his damages. In Christie v.

U. S., supra, the contractors recovered damages because

the borings did not show sunken logs although the con-

tractors ‘‘admitted that they had reason to and did expect

to eneounter some logs’’. Here respondent, by its ex-

periences in building levees in the locality, expected hidden

stumps (R. 53), while petitioner with no experience could

not anticipate them (R. 31).

Failure to state that the material was wet, and pervaded

with foreign matter were material concealments : In Chris-

tie v. U. S., supra, describing material as sand and gravel

without stating that they were cemented together was held

a material concealment.

(3) The representation in the boring chart that only 10%

was soft clay (Note 7, supra, p. 5) was a misrepresentation

and concealment, as it was all wet, entitling petitioner to

recover. (Christie v. U. S., supra; Hollerbach v. U. S.,,

supra.)

(4) The insufficient borings, representing only one five-

millionth of one per cent (‘‘B’’) above), was a deception,

entitling petitioner to rescind the contract. (U.S. v. At-

lantic Dredging Co., 253 U.S. 1, 12).

(5) The insufficient borings chart was accentuated by

approval of petitioner’s plant (R. 46), ‘‘which was assur-

ance that the chart was correct, and justification of reliance

on it’? (Id.).

(6) Petitioner had the right to rely upon respondent’s

agreement ((1) above), and that the boring chart did not

show stumps, organie matter, or wet soil, without mak-

ing an investigation. (Hollerbach v. U. S., supra; Christie

v. U. S., supra.)

(7) The Court in its opinion (R. 41) in attempting to

bolster its finding that the soil was ‘‘satisfactory’’ errone-

ously held that it was petitioner’s duty to select the Con-

tract Soil, and that there was sufficient soil of that type to

build the levee. This statement is contrary to all the evi-

dence, as there was no Contract Soil as shown under A

above.

Moreover, even if the findings quoted showed that there

was soil of the type promised mixed with the eypress

stumps, organic matter, and wet and sloughy soil, petitioner

was not bound to select it from this mass. (Norrington v.

Wright, supra.)

(8) Respondent contended by its answer and throughout

the work by serving 107 notices that the soil was unfit, and

that petitioner was required to make it fit (Note 6, supra,

p. 4), and is estopped thereby from changing and claiming

that this bad soil was ‘‘satisfactory’’. (Ohio & M. R. Co. v.

McCarthy, 96 U. S. 258; Connery Coal Etc. Co. v. Comr.

Int. Rev., 84 F. (2d) 485, 487).

(9) Refusal to find that petitioner relied on respondent’s

agreement to furnish Contract Soil and its representations

as to the borings and the condition of the soil, and was mis-

led thereby and by its concealing the existence of the cypress

stumps and the bad condition of the soil (R. 39), and was

induced thereby to bid 12.40 cents per cubie yard for work

worth 20 cents per yard (Note 18, supra, p. 6), was refusal

of a material finding on a material issue, established by

the evidence. (Hollerbach v. U. S., supra; Christie v. U.S.,

supra.

(10) Refusal to find that cypress stumps so obstructed

the work and damaged the machinery (so stated in the

Court’s opinion, R. 39), and made it so difficult to secure

earth that petitioner was forced to go farther out than the

contract contemplated (R. 44, 49, 54), necessitating ad-

ditional machinery (R. 36), and increasing the cost, but

that respondent insisted that petitioner should still work

at the contract price (R. 36), was a refusal of a material

finding on a material issue, the evidence as to which was

undisputed, entitling petitioner to abandon the work and

recover. (Cotton Co. v. U. S., 87 Ct. Cls. 563; Wood v. Ft.

Wayne, 119 U. §. 312, 322.)

(11) Refusal to find that petitioner protested respond-

ent’s failure to furnish the earth it promised, and its mis-

representations and concealments of the condition of the

soil, and requested adjustments, and that petitioner placed

1,550,822 cubie yards which respondent accepted and it be-

came part of the completed levee, but that respondent ig-

nored petitioner’s protests and requests, and refused to pay

money due him, because of which he rescinded the contract

(Notes 2-18, supra, ps. 3-6), was refusal of a material finding

on a material issue, established by undisputed evidence, en-

titling petitioner to recover. (Dermott v. Jones, 28 How.

220, 235; Guerini Stone Co. v. P. J. Carlin Constr. Co., 248

U.S. 334, 344; 12 Am. Jur. § 440, ps. 1021, 1022.)

(12) Refusal to find that respondent objected to rescis-

sion but only on the ground that the notice did not state how

the subsurface conditions differed from the drawings or

specifications (R. 10-11), which difference it knew (Deft’s.

Ex. 52 A-D), and that petitioner should furnish proof as

to this by two persons not interested in rescission, was re-

fusal of a material finding on a material issue, established

by undisputed evidence.

Respondent is confined to the objections it made, which

were invalid. Rescission became effective through the ob-

jections being invalid. (Ohio & M. R. Co. v. McCarthy, 96

U. S. 258.)

(13) The failure and refusal to find that the fair value

of the work performed by petitioner and described in the

Specification of Errors Numbered 7 was__._. $393,700.22

on which he has been paid only.............. $80,640.05

and that there is still due him... sssisiswsisis $313,060.17

was refusal to find a material finding on a material issue

established by undisputed evidence. (S. E. No. 7; Notes

17-20, supra, p. 6.)

(D) As respondent is in default for performance of a

precedent condition to furnish the Contract Soil, it was

not entitled to recover on its counterclaim, and its claim

that petitioner did not perform the work in a workmanl

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