Brief for the Respondent in Opposition — Ranieri v. United States

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Serene {

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Opinion below ’ : 1

Jurisdiction ]

Questions presented 2

Statement of facts 9 4

Argument 7

Conclusion 31 é

CITATIONS }

Cases:

Hollerbach v. United States, 233 U.S. 165 13 i

United States y. Atlantic Dredging Co., 253 U.S. 1 ; 13 ’

United States v. Rice and Burton, No. 31, decided Nov. 9, 1942. 13 i

(1) it

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[AIT AIR AOS AEA DI! TAT TREE NANT LI

Inthe Supreme Court of the United States

OcrospeR TeRM, 1942

No. 463

ALEX RANIERI, PETITIONER

Vv.

THe Unirep Srates

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 38-42)

is not yet officially reported.

JURISDICTION

The judgment of the Court of Claims was en-

tered February 2, 1942 (R. 42). A motion for

anew trial was overruled June 1, 1942 (R. 43).

On June 29, 1942, the time within which to file

the petition for writ of certiorari was extended

by order of the Chief Justice to October 29, 1942

(R. 57). The petition for writ of certiorari was

filed October 17, 1942 (R. 58). The jurisdiction

of this Court was invoked under Section 3(b) of

(1)

2

the Act of February 13, 1925, as amended by the

Act of May 22, 1939.

QUESTIONS PRESENTED

1. Whether there is lack of substantial evidence

to sustain certain findings of fact made by the

Court of Claims; whether ultimate findings of

fact of the court are inconsistent with the evi-

dentiary or primary findings; and whether the

court failed to make findings of fact on the mate-

rial issues.

2. Whether, under a contract calling for the

construction of a levee by petitioner, the United

States undertook to furnish petitioner clean earth,

free from all foreign matter which would not

slough or show a tendency to do so and be of the

best grade, or whether it merely agreed to make

earth available out of which petitioner was re-

quired to select the proper type for the construc-

tion of the levee.

3. Whether the United States made any mate-

rial misrepresentation as to the character of earth

available or as to the subsoil conditions which

existed in the borrow pits from which petitioner

was required to take the soil with which to con-

struct the levee.

STATEMENT OF FACTS

This case involves a suit by petitioner against

the United States for the recovery of $258,880.49

claimed to be due on account of construction work

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3

(R. 1-8). The United States filed a special an-

swer denying the sum was due (R. 8-12) and a

counterclaim for $37,653.20 (R. 12-15).

The facts as found by the Court of Claims (R.

30-38) and as shown by the evidence may be sum-

marized as follows:

Petitioner and the United States entered into

a contract dated October 12, 1931, whereby for a

consideration of 12.4 cents per cubie yard peti-

tioner agreed to “furnish all labor and materials,

and perform all work required for the construc-

tion of Item R 831, Chamberlain-Lobdell Levee,

Lots A, B, C, and D, containing approximately

two million nine hundred and fifty thousand

(2,950,000) yards, situated in the Atchafalaya

Front Levee District,’’ in accordance with speci-

fications, schedules, and drawings, all made part

of the contract (R. 30-31). The levee to be eon-

structed extended for a distance of about 22,000

feet (R. 31). The contract provided that work

was to be commenced on each of the four lots

within twenty calendar days after the date of re-

ceipt of notice to proceed and was to be completed

within 450 calendar days from the date of receipt

of such notice (R. 31). On October 30, 1931, peti-

tioner received notice to proceed, thereby fixing

the completion date as January 22, 1933 (R. 32).

Within the contract time petitioner comm.>nced

the preliminary work of clearing, grubbing, and

plowing. which required about one week’s time

Re ies,

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(R. 32). He commenced the placing of material

in the levee on lots A, B, C, and D, 103, 228, 298,

366 days, respectively, after the receipt of notice

to proceed (R. 32).

Under Section 13 of the specifications the Gov-

ernment agreed to furnish the right-of-way and

earth for the construction of the levee without

eost to the contractor (R. 16-17) and under Article

39 of the specifications the material for the work

was to be obtained from riverside borrow pits

and from the existing levee to the extent indicated

in the drawings which the court below found to

be 2,000 linear feet (R. 31). Paragraph 19 of

the specifications (R. 17) stated that the soil con-

ditions indieated that a B section was required

throughout.’ There was sufficient satisfactory ma-

terial in the borrow pits and in the available see-

tions of the old levee from which to construct a

B section (R. 50, 51, 52, 55), and the new levee

was eventually successfully constructed from these

sources (R. 31-32; 52).

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 contract map (R. 31). The chart

classified the earth disclosed by the borings as

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

1 A B section was described as having “a crown of 10 feet,

a riverside slope of 1 on 314, the landside slope as contain-

ing a seepage line of 1 on 614, and the governing material

as loam” (R. 31).

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

clay and sand, soft blue clay, hard blue clay, and

soft brown clay (R. 31; 55). There was no evi-

dence to show that the borings were inaccurately

charted (R. 32).2. Prior to the submission of peti-

tioner’s bid he had been furnished the contract

map and specifications and his representatives

visited and inspected the site of the proposed

levee (R. 31; 46, 48).

The petitioner had no experience in building

levees (R. 31). In the course of the work, Gov-

ernment inspectors served 231 notices upon peti-

tioner of his departures from contract require-

ments, including the overdigging of borrow pits,

impounding water between partial fills, placing

wet materials and materials showing a tendency

to slough on the embankment, improper prepara-

tion of foundations, leaving the foundation base

wet, and digging inspection ditches to excess

of width and depths (R. 32; 52). The contracting

officer on numerous occasions called petitioner’s

attention to the harmful practices of like character

in which he was engaging (R. 33-34), directed

him to correct these practices, and advised him

that he would be held responsible for resulting

damage to the levee (R. 34-36).

On September 15, 1932, the contracting officer

notified petitioner in writing that the progress of

? The evidence conclusively established that the material

actually encountered corresponded closely to that disclosed

by the bori: gs (R. 55).

—_——a LIBRO LONE IM LOLS LAT TS

6

the work was unsatisfactory and demanded the

use of additional equipment. On October 14,

1932, he repeated these demands, pointing out the

harmful practices in which petitioner was en-

gaged, and advising petitioner the embankment

already installed was not considered entirely sat-

isfactory for completion and that no further

partial payments would be made for incomplete

embankments on Lots A and B (R. 34-35). At no

time did petitioner appeal from the decision of

the contracting officer to the Secretary of War (R.

36). On December 12, 1932, petitioner ceased

work on the project and by letter advised the con-

tracting officer that it elected to rescind the con-

tract, contending that subsurface or latent condi-

tions at the site differed materially from those

represented in the plans and specifications (R. 36),

On that date petitioner had completed about 45

percent of the required work and had exhausted

about 91 percent of the contract time (R. 37).

The contracting officer replied on December 14,

1932, denying the right of petitioner to rescind

the contract and demanding resumption of opera-

tions (R. 36). Operations were not resumed and

the contracting officer, on January 3, 1933, termi-

nated the petitioner’s right to proceed under

Article 9 of the contract (R. 36-37). The work

remaining to be done was relet by advertisement

to other contractors who successfully completed

the work at an excess cost to the government of

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$108,995.71 (R. 37-38). At the time petitioner

abandoned work there was retained the sum of

$71,342.51 making the net excess cost to the

United States of completing the levee $37,653.20

(R. 38).

The Court of Claims made an ultimate finding

that plaintiff could have satisfactorily completed

the work in the agreed time with the material

available and that 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 contract, and to unsound practices in the

handling of material (R. 37).

After making the foregoing findings of fact the

court directed that the petition be dismissed and

entered judgment for the United States on its

counterclaim in the sum of $37,653.20 (R. 42).

Petitioner’s motion for a new trial was overruled

(R. 43).

ARGUMENT

Petitioner contends that the court below made

findings of fact which were not supported by evi-

dence, that evidentiary findings of fact are in-

consistent with its ultimate findings of fact, and

that it failed to make findings of fact in respect

of material issues. Petitioner also contends that

under the terms of the contract and specifications

the United States undertook to furnish him clean

earth, free of all foreign matters, which would not

8

slough or show a tendency to slough and would be

of the best grade. Finally, he contends that the

Government misrepresented the working condi-

tions which would be encountered at the site of

the construction of the levee. We submit that

these contentions raise no substantial issue and

are without merit.

1. The finding that sufficient satisfactory soil

was available for the construction of the levee was

correct. The evidence disclosed that there was

suitable material with which to construct a B see-

tion levee of which the governing material is loam

(R. 55). The uncontradicted testimony of the

government expert discloses that loam is a mix-

ture of earth containing less than 30 percent of

clay particles and less than 80 percent of sand

particles (R. 55). Clearly there was enough clay

and sand available to furnish suitable material

for this type of construction * (R. 55). Moreover

a subsequent contractor was able to complete the

building of the levee (R. 51) ; the levees adjoining

at both ends the one here in controversy were

completed within the contract time and without

difficulty (R. 52); and witnesses testified that the

work could have been performed within contract

time (R. 50, 52).

’ The presence of a large amount of clay (buckshot) would

permit the construction of a B section since buckshot is suit-

able even for the construction of an A section, the sidewalls

of which have a sharper angle than a B section (Specifica-

tion 19, R. 17; 50).

9

Petitioner also contends that it was entitled to

a finding that all the material supplied was wet and

showed a tendency to slough. The record, however,

discloses that this condition of the material was

brought about by the faulty methods of construe-

tion employed by petitioner (R. 34-35, 53). Any

type of soil if allowed to become sufficiently im-

pregnated with water will become wet and if im-

properly handled it will show a tendency to slough

(R. 52-53). Rains and seepage were common oc-

eurrences in the part of the country where pe-

titioner undertook to construct the levee. It was

his duty to provide adequate drainage to minimize

the water content and to handle his material in

such a manner as to reduce the possibility of

sloughing to a minimum (R. 34-35, 52-53). This

he did not do. The fact that other contractors

completed their work out of the material at hand

(R. 51, 52) and that the expert witnesses testified

that the work could be completed with the material

available (R. 50, 52) warranted the court below

in refusing to make the finding to which petitioner

claims he is entitled.

The evidentiary facts found by the court below

are not inconsistent with its ultimate findings in

respect of the character of the earth. The evi-

dentiary findings were to the effect that the pe-

titioner unnecessarily permitted material to become

wet and placed wet soil and soil which had a tend-

ency to slough in the levee (R. 32-35). Such find-

inns

RUROINI CAT Odi

10

ings, however, relate to the manner in which pe-

titioner performed his work. They plainly are not

inconsistent with the ultimate findings that there

was material which was satisfactory (R. 37).

Petitioner was not therefore entitled to his re-

quested findings,‘ and the findings of the court

below to which he excepts are all supported by

adequate evidence.’

2. Petitioner erroneously contends that the

United States agreed to furnish him with earth

for the construction of the levee which should be

‘clean earth, free from all foreign matter, which

would not slough or show a tendency to do so and

be of the best grade.’’ The United States under-

took, by Paragraph 13 of the specifications, only

to furnish without cost to the contractor the right-

of-way and earth for constructing the leevee (R.

16-17). Article 7 of the contract provides that

all workmanship, equipment, materials, and ar-

‘If it were material petitioner might have been entitled to

a finding that he encountered cypress stumps in the borrow

pits. Such a finding, however, would necessarily have to be

coupled with a further finding that the presence of cypress

stumps in borrow pits was common occurrence (R. 50, 53)

which should have been expected and that their presence was

not such as to interfere with the successful conclusion of the

work (R. 53). Accordingly, the failure of the court to make

a finding in this respect is immaterial since the conclusion

cannot be affected by it.

‘In the statement of facts, supra, record references to the

evidence which supports the findings of the court below are

given in addition to the record references of the findings

themselves.

11

ticles incorporated in the work covered by the

contract are to be of the best grade of their

respective kinds for the purpose (R. 24). Clearly

this was an obligation placed upon the contractor

and not one assumed by the United States. See-

tion 22a of the specifications which set forth the

manner in which the contractor should construct

the embankment provided that the contractor

should use clean earth free from all foreign mat-

ter in constructing the levee and that no earth

which sloughs or shows a tendency to slough shall

be placed in the embankment (R. 17-18). These

also clearly are obligations which were placed

upon the contractor whose duty it was to select

from the material at hand, which the United

States undertook to furnish, suitable material. As

the court below found (R. 37), there was suitable

material available for the construction of the

levee, and the failure of the petitioner to select

that material, not the failure of the United States

to provide such material, caused petitioner’s

losses.

3. Petitioner’s contention that the United

States misrepresented the character of the soil to

be encountered and the working conditions is with-

out merit. At intervals of 1,000 feet along the

base of the levee borings were taken to disclose

the character of the material present (R. DD).

As the court below found (R. 32) these borings

were accurately charted and properly reflected

the condition of the soil to be encountered. There

SR Ren NO RE My oe IN a

12

was no obligation on the part of the United States

to take any borings at all, and having taken the

borings its sole duty, which it fulfilled (R. 31), was

to make available to the contractor the informa-

tion which it had obtained. Moreover, there was

no misrepresentation of any material facts by any

failure of the Government to disclose facts of

which it had notice. Whether cypress stumps

would be encountered was a matter which the

contractor was as capable of anticipating as the

Government officials. Although there is testimony

to indicate that the character of the vegetation

erowing on the borrow pits was sufficient to warn

of the fact that there may have been an under-

lying eypress swamp (R. 50), other evidence

would support a finding that no one could know

if cypress stumps were present (R. 51). In

either aspect, however, petitioner was placed upon

the same notice as were the officers of the United

States. The prevalence of rainfall and the fact

that drainage might have to be maintained were

a notorious fact which was open for all to see. It

was a condition reasonably to be expected and

po duty existed on the part of the government

io call it to the bidder’s attention, Nor was

there a warranty by the United States of the

working conditions which would be encountered.

Only where the United States either represents

itself as having knowledge which it does not

possess or fails to convey information as to hidden

conditions which it does possess is it held to war-

13

rant subsoil conditions. Jollerbach v. United

States, 233 U. 8. 165, 172; United States v. At-

lantic Dredging Co., 253 U.S. 1, 10-11.

Even assuming that subsoil or latent conditions

existed which neither party to the contract had

in contemplation, it was the duty of the contractor

under Article IV of the contract (R. 23-24) to

proceed with the work and seek an equitable ad-

justment under Article IIT (R. 23) for the in-

creased costs of the work. But petitioner did not

seek his remedy by the procedure thus prescribed

but imstead sought to rescind the contract when

he became dissatisfied with working conditions

(R. 36). He is not now entitled to the benefits

of clauses in the contract with which he failed

tocomply. See United States v. Rice and Burton,

No. 31, decided November 9, 1942.

CONCLUSION

The decision below is correct. We respectfully

submit therefore that the petition for a writ of

certiorari should be denied.

CHARLES Fauy,

Solicitor General.

Francis M. Sura,

Assistant Attorney General.

D. L. Krercer,

Pau A. SWEENEY,

Attorneys.

DECEMBER 1942.

U.S. GOVERNMEN?) PRINTING OFFICE: t9a2