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(182 N.Y.S.)

"Excavation shall consist of the loosening, loading, transporting, and depositing of all material, whether wet or dry, of every name and nature, necessary to be removed."

Before inviting bids, an estimate of the cost of the work was prepared by the state and submitted to bidders. In this estimate there is no subdivision or classification of the excavation item. The item reads: "1,428,000 cu. yds. excavation, per cu. yd. 58 cts., $828,240." In the Information for Proposers, submitted to claimant before bidding, were these provisions, viz.:

"The estimate of quantities is to be accepted as approximate only, proposers being required to form their own judgment as to quantities and character of the work by personal examination upon the ground where the work is proposed to be done, and on the specifications and drawings relating thereto, or by such other means as they shall choose."

"The attention of persons intending to make proposals is specifically called to paragraph 10 of the form of contract, which debars a contractor from pleading misunderstanding or deception because of estimates of quantities, character, location, or other information exhibited by the state."

Paragraph 10 of the formal contract provides:

"The contractor agrees that he has satisfied himself by his own investigation and research regarding all the conditions affecting the work to be done and labor and material needed, and that his conclusion to execute this contract is based on such investigation and research, and not on the estimate of the quantities or other information prepared by the state engineer, and that he shall make no claim against the state because any of the estimates, tests, or representations of any kind affecting the work, made by any officer or agent of the state, may prove to be in any respect erroneous."

With these provisions of the contract and specifications before it and well understood, claimant agreed to excavate all material, wet or dry, of every name and nature, necessary to be removed, for 63.8 cents per cubic yard, and it thereby waived all right to make a claim for damages for any misdescription of material as to either character or quantity. Unless such is the meaning of the provisions quoted from the Information for Proposers, Specifications and Contract, it is difficult to discover any reason for their use. The language is simple and unequivocal, and upon the facts of this case can have no reference or application, except to the information, notations, and legends appearing upon the plans.

The case differs from the Hollerbach and Christie Cases, supra, in important particulars. Neither of these cases considered the effect of contract provisions similar to those involved here with reference to erroneous entries, notations or data appearing on contract plans. The Hollerbach Case, supra, involved a contract for the construction of a dam, including excavation. In the specifications this statement appeared:

"The dam is now backed for about 50 feet with broken stone, sawdust, and sediment to a height of within 2 or 3 feet of the crest."

The statement was not true. Instead of the stone, sawdust, and sediment was found the cribwork of an old dam of solid logs, filled with large stones. The Supreme Court held that the positive and un

equivocal statement in the specifications as to the material backing the dam constituted a warranty, and relieved a prospective bidder of the duty of investigating for himself, and that its character as a warranty was not affected by general provisions in the specifications to the effect that quantities are approximate only, and that bidders should inform themselves as to difficulties attending the execution of the contract, etc., and that a provision in the specifications:

"It is understood and agreed that the quantities given are approximate only, and that no claim shall be made * on account of any excess or defi

ciency, absolute or relative, in the same"

-could not control the express warranty as to character of material at the particular location. In the instant case claimant has agreed that it has made its own investigation and research, that its conclusion to execute the contract is based on such investigation and research, and not on the estimate of quantities or other information prepared by the state engineer, and, in addition, that it will make no claim because any of the estimates, tests, or representations of any kind made by the state may prove in any way erroneous. In the Christie Case, supra, a dredging contract was involved. The specifications provided:

"The material to be excavated, as far as known, is shown by borings, drawings of which may be seen at this office; but bidders must inform and satisfy themselves as to the nature of the material."

These drawings showed gravel, sand, and clay, and no other materials. The findings of the trial court, established the facts that the material to be excavated consisted largely of stumps, buried logs, cemented sand, and gravel, whose presence had been discovered by the government boring parties, who in some instances noted the fact in their boring books, but in many instances, when stumps and logs were encountered, the boring apparatus was moved to other locations, and the results of the boring at such other locations recorded as if taken where staked out, and that the boring sheets referred to in the specifications contained only the record of completed borings, and did not show any record of sunken logs, cemented sand, and gravel, or conglomerate, impenetrable by the drill. The indications of buried logs were called to the attention of the resident engineer, and he was asked if they should be noted on the record of borings, to which he replied that he did not consider them of enough importance to be noted. The specifications provided that bidders were expected to visit the place and make their own estimate of the facilities and difficulties attending the execution of the work, that quantities given were approximate only, and that it "must be understood that no claim shall be made against the United States on account of any excess or deficiency absolute or relative in the same." There was not in that case, as in this, any agreement that claimant had made its own investigations, and had executed the contract relying solely thereon; nor was there any express agreement to make no claim because any representation of any kind might prove in any respect erroneous. The Supreme Court held that in the circumstances of that case there should be a recovery on account of the deceptive representations, and

(182 N.Y.S.)

quite properly, of course. The conditions were represented "as far as known." This was equivalent to a warranty that they were known to be as represented. The conditions were in fact known and, known to be different from those represented, and there was not, as here, any contract provision whose plain meaning relieved the government from the consequences of such misrepresentation.

In the instant case whatever of representation it may be said the notations on the plans accomplished was qualified by the specifications and expressly waived by the contract. The parties by their contract have defined their rights and must be bound by such definition, even though the result seem unjust. O'Brien v. Mayor, 139 N. Y. 543, 573, 35 N. E. 323; Sundstrom v. State, 213 N. Y. 68, 71, 106 N. E. 924; Leary v. City of Watervliet, 222 N. Y. 337, 118 N. E. 849. [8] Claimant claims it had not sufficient time to make its own investigation as to the subsurface materials to be excavated. The evidence is to the effect that claimant's representatives were investigating conditions on the site of this contract about one year before the date of the contract, and it cannot be held that there was not ample time to make the sufficient investigation which by the contract it has agreed it did make.

Moreover, claimant has failed to sustain the burden of establishing by a fair preponderance of the evidence that the plans, considered in connection with the plainly observable surface indications, did not fairly show the conditions actually encountered, and that the conditions encountered were more burdensome and expensive than those fairly indicated by the plans. There is some controversy concerning the amount of rock excavation indicated by the plans and the amount actually excavated. Witness Watt, for claimant, computes the former at 75,038, and admits it might be as much as 4 per cent. greater, or 78,039, cubic yards, while witness Belding, for the state, computes the same item at 77,425 cubic yards. Both figures are of course, approximations. and the variance in result is negligible in the circumstances of this case. Witness Watt, for claimant, computed the amount of rock actually excavated at 94,666 cubic yards, while Mr. Belding, for the state, computed the item at 78,664. The variance here is 16,002 cubic yards. This variance is accounted for, or at least rendered unimportant, by the fact, testified to by claimant's witness Watt, that about 17,000 cubic yards of the total quantity of 94,000 cubic yards of rock excavation were soft shale, taken out by the dipper dredge without drilling and blasting, and without being otherwise broken. It was therefore soft material in contracting parlance, and, if deducted from the 94,000 cubic yards of rock claimed by claimant to have been excavated, reduces that quantity to 77,666 cubic yards, in practical agreement with both claimant and the state as to the amount of rock excavation indicated by the plans.

The evidence establishes the fact that much material consisting of large stones was excavated. No doubt much of this material would appropriately be classed as boulders, much as large stones, and much as cobbles. The complaint is that, except for a short distance only, cobbles were indicated on the plans. However, it is neither

claimed nor proven that the subsurface conditions were any different in this respect than the surface conditions, which revealed the presence of boulders and large stone of varying dimensions in abundance throughout the site of the contract, and the undisputed evidence is that the presence of such material on the surface indicated a similar subsurface condition. Moreover, claimant's director and managing engineer, Japp, testified he would always expect to find boulders on top of rock, and the plans show the presence of rock throughout almost the entire length of the contract site.

[9] Upon all of the evidence I am forced to the conclusion that on examination of surface conditions upon the site of the contract, the bed of the river and the adjoining lands, together with the notations on the plans showing location of rock and other materials penetrated by the sounding rod, must have indicated with practical certainty that an abundance of boulders and other large stones would be encountered in excavating below the bed of the river. That such was the expectation of the claimant is indicated by the fact that its plant was specially devised to deal with just such conditions. I cannot find that it was surprised and disappointed when it encountered them, or deceived by the plans with respect thereto. Witness Japp, for claimant, made a preliminary estimate of the cost of performing the contract, based upon the conditions which he claimed were represented by the plans. His estimate of the cost of the work, as exhibited by the plans, without profit was 47.77 cents per cubic yard. Witness Wells, for the state, fixed the fair and reasonable cost of the work under conditions actually encountered at 56 cents per cubic yard, including a profit of 15 per cent., or 47.6 cents without profit. Witness Lane, for the state, fixed the cost under actual conditions at 60 cents with profit. Deducting an allowance of 15 per cent. from the Lane figure gives a cost without profit of 51 cents per cubic yard. The values of Messrs. Wells and Lane as to the fair and reasonable cost of performance of the work under the conditions actually encountered agree very closely with each other and with witness Japp's preliminary estimate of the cost, based upon the information disclosed by the plans, and tend very strongly to. confirm the conclusion that the plans were not deceptive, and further that the contract price, 63.8 cents, was a remunerative one, and should have yielded all the profit anticipated by claimant when it entered into the contract. It follows that the claim, as to item 9, should be dismissed.

[10] Item 10, alleged in the fourteenth paragraph of the claim, is for increased cost of plant made necessary, as claimed, by the alleged misdescription of material to be excavated, and is for $144,130.98. Of course, no recovery can be had for the increased cost of plant, as such. Claimant so conceded on the trial. If, however, there were to be a recovery on account of increased cost of performing the contract, due to misrepresentation or breach of warranty (item 9), the increased cost of plant necessary to meet the misrepresented conditions would be an element to be considered in determining the amount of the increased cost of performing the work, and not otherwise. As

(182 N.Y.S.)

it has been held that there can be no recovery for item 9, item 10 must fall with it, and for the same reasons should be dismissed.

Findings in accordance herewith may be presented.

WEBB and CUNNINGHAM, JJ., concur.

(112 Misc. Rep. 19)

FRASER v. STATE.

(Court of Claims of New York. May 28, 1920.)

1. Negligence 93 (1)-Driver's negligence not imputable to passengers. The contributory negligence of the driver of an automobile cannot be imputed to the passengers in the car.

2. Canals 18-Persons driving into open bridge must show negligence of state.

Persons injured when the automobile in which they were riding went into a state canal at a place where the bridge was up to permit boats to pass must establish negligence on the part of the state in order to recover. 3. States 112-Not liable for negligence, unless immunity waived.

Primarily the state is not liable for negligence, and it can only be made haole when it waives its immunity.

4. Canals 18-Evidence insufficient to sustain burden of showing absence of watchman at open bridge.

In an action for injuries sustained when the automobile in which the claimants were riding went into a state canal at a place where the highway bridge was hoisted to permit boats to pass, evidence held insufficient to show by a preponderance thereof that there was no watchman present to warn travelers.

5. Evidence 586 (3, 4)—Negative testimony insufficient to sustain burden, when opposed to positive evidence.

Negative evidence that the witnesses did not see a watchman at an open bridge over a canal was insufficient to sustain the burden resting on the parties offering it, when opposed by positive evidence that the watchman was there, a bell ringing, and red lights burning; and this was true, even though the witnesses giving the positive testimony were defendant's employés.

6. Evidence 586 (1) -Evidence that witness did not see object is negative testimony.

Testimony that witnesses did not see an object is no less negative testimony than testimony that they did not hear noises.

Separate claims, by Allan Fraser, by Edith S. Antram, by Bertha G. Antram, by Mary R. Cass. by Harry A. Antram, and by Lathrop P. Smith, against the State. Claims dismissed.

William J. Bullion, of Buffalo, for claimants.

John H. Clogston, Deputy Atty. Gen., for the State.

MORSCHAUSER, J. The above claimants filed claims for damages alleged to have been sustained by them on the 30th day of May, 1917. The claimants Mary R. Cass and Allan Fraser occupied the front seat of an automobile, and the other claimants were occupying the back part of the same automobile, and had left Buffalo in the morning for the purpose of taking a trip to Rochester, N. Y., and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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