# Petition for Writ of Certiorari — Ranieri v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1331%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1942 - **Citation:** 317 U.S. 690 ## Text 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 9 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. IV 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 — 10 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. 11 Vv 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. VI 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 — 12 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: I 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 _ 13 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, II 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- a 14 [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! + 15 [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. V 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 16 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- 17 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 a 18 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. (c) Cross-section—The soil conditions indicate that 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 19 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. (c) Cross section—The soil conditions indicate that a ‘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 20 [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. (c) Cross-section—The soil conditions indicate that 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 (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 — 21 (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. (c) Cross-section—The soil conditions indicate that a ‘‘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: 22 (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 23 [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 a 24 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 20 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 ) a —— SEN 26 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. (c) All material and work covered by partial payments 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 ww 27 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- sa 28 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 29 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. 31 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 32 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 33 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 34 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- 35 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. a 36 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 37 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- 38 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. 39 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 40 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 41 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 ae 42 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. 43 [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 44 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 45 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 46 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, ac 47 (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, 48 (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. » | 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 lm 2 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. 3 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. 2m Nr 4 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). td 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 5 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% 6 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:— I. (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 , 7 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 ——— 8 (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 ae 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. 10 (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 ll 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). (c) That an investigation would have shown that ‘‘wet 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). 12 (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 13 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.) | 14 (C) Petitioner’s requested findings, and the erroneous 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.) "a 15 (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). 16 (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. 17 220, 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 workmanlike manner or in accordance with the contract provisions is no defense. (1) Respondent agreed to furnish the material and in- serted a provision in the coutract drawn by it that it must be clean earth, free from all foreign matter, which would not slough or tend to do so, and be of the best grade (R. 16, 18 17, 24). On these facts, respondent became bound to fur- nish the material of the kind and in the condition it required it to be used. (Philadelphia, etc., R. R. Co. v. Howard, 13 How. 307.) (2) The obligation to furnish such soil was a condition precedent (Id.; 5 Page on Contracts, § 2958 ; 3 Elliott § 2044; Norrington v. Wright, supra), which respondent was re- quired to perform exactly. (Norrington v. Wright, supra; Anvil Mining Co. v. Humble, 153 U. 8. 540, 552; 3 Williston, § 675.) (3) Respondent did not furnish material of the kind and in the condition it required it to be used. The court below finds that the material was wet and showed a tendency to slough; that there were slides due to wet material, and other slides due partly to wet material (Findings of Fact, R. 32, 39); that petitioner ‘‘ran into many difficulties in handling the soil from the borrow pits’’, ‘‘with sloughs and slides and in encountering cypress stumps and other organic matter, which damaged his machinery’’. (Opinion, R. 39). The evidence shows, without dispute, that the soil was all unfit, and showed a tendency to slough (Note 6, supra). So, respondent failed not alone to perform its precedent con- dition exactly, but it failed altogether, and therefore it cannot recover damages against petitioner. There was no loam, the soil required for this steep B-section (Inspector’s Reports). ‘The party who is in default for performance of a prece- dent covenant cannot recover damages from the adversary party for his default in performance of subsequent cove- nants.’’ (5 Page on Contracts, § 2960, ps. 5 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1331%3A1. Public record. Not legal advice.