Edward DeV. Tompkins, Inc. v. City of Bridgeport , 94 Conn. 659 ( 1920 )

So long as it remained an operative condition of the contract that the supporting piles of the piers must pierce and extend into the bases of the concrete cylinders, the contractor had little or no choice of general plans of construction; he was in any event committed to the use of coffer-dams, and this was the method contemplated from the first by the city's consulting engineer who framed the requirements of the contract. The trial court so finds, and — at least so far as the evidence enlightens us on accepted engineering processes — was bound so to find. This requirement that the ends of the piles be embedded in the piers that rested on them was confessedly insisted upon until dispensed with by the advisory engineer in the spring of 1917 — nearly a year after the signing of the contract and long after a material part of the delay had been caused. It was therefore a constantly controlling factor of the contractor's course during all the controversy over the building of the piers. Since he was restricted to the use of coffer-dams, his right to use them in the only approved way to make their agency safe, serviceable and effective for his purposes, will be implied. Neither the contract itself, nor his knowledge of the general character of the work confronting him, should be read as demanding the impossible, or as limiting him to that degree of achievement, if a meaning so repugnant to the presumed purpose and intent of the parties can be reasonably avoided. He was bound, then, to make the coffer-dams substantially watertight at their submerged ends, unless he could depend upon a river bottom hard enough to do it for him at a depth to which it was practicable to drive his sheet-piling. Until this "seal" had been provided by either the river bed or the contractor, any attempt at pumping out the water would have been wholly ineffective.

The evidence warrants not only the finding that the natural bed of the river made such an artificial sealing of the coffer-dams necessary, but that the consulting engineer conceded the necessity. The reasonableness of the plaintiff's continued insistence that safety required a concrete seal ten feet thick as against the suggestion of a thinner one by the consulting engineer, is disclosed by the latter's frank but belated admission in his letter to the commission, of December 7th, 1916. After stating that " . . . the specifications call for placing the concrete in the dry, and this was the express desire of the commission," he writes: "It was, however, made plain by me at the time" — obviously referring to the very inception of the defendant's difference with the plaintiff over the construction requirements — "that a reasonable amount of concrete would have to be placed in the bottom of the coffer-dams in the wet in order to seal them so as to enable them to be pumped dry and the bulk of the concrete to be placed in the dry . . . . I am prepared to give my approval for the placing of approximately nine to ten feet of the concrete in the wet."

In the light of the situation which the record discloses, the necessary inferences from this are that the plan which finally enlisted the engineer's approval in December, is none other in effect than the plan which the plaintiff originally submitted to him in June, and that a virtual suspension of activity on this part of the work for the intervening six months is chargeable to his withholding an approval known by him from the first to have been both fairly demanded and fairly deserved. Nor is it disputed that for months after this long overdue recommendation, the commission refused to adopt it, and ultimately gave it only such qualified recognition as may be implied from their reference of the whole matter to Professor Burr for his opinion and determination.

Such latitude as indisputable evidence of this character left the trial court in locating a responsibility for delay arising over any dispute as to the need or required strength of an artificial seal, was further narrowed by Professor Burr's requirement of a concrete seal fourteen feet thick for each of the two end piers where the coffer-dam method of construction was retained under his substituted plan. This radical and significant change of front, coming from the "voice of the commission" — as the plaintiff had been told in advance was to be the function of Professor Burr — may properly enough have had controlling weight with the court in reaching the conclusion that the plaintiff was right in this phase of its controversy over the construction of the piers, and that the defendant was wrong. When these conditions are established as essential, the impossibility of complying with certain other requirements equally definite and positive in expression, is manifest. Since the pumping-out process could not begin until the concrete seal had been laid, at least that much of the mixture must be deposited in the water. For reasons quite as patent, the concrete could not all be poured "in one continuous operation," unless a substantial part of it be laid in the water. With such undeniably contradictory restrictions imposed upon the contractor, there was no alternative to the conclusion that the specifications were ambiguous and inconsistent in requirements materially involved in the construction of the piers.

But the contract itself anticipates the possibility of differences arising from such a cause, and provides a remedy. The consulting engineer is made the arbiter of all disputes which call in question the meaning of his specifications, and the responsibility which the duty casts upon him here is obvious. The purport of the finding is that he refused or avoided this responsibility in an emergency which plainly demanded his action for the plaintiff's enlightenment, and at its persistently urged request. There was ample evidence to sustain this part of the finding, and the conclusion that the defendant rather than the plaintiff is chargeable with delays directly due to the consulting engineer's course, seems to follow as a necessary result. With the finding of these salient and controlling facts justified, further discussion of this branch of the appeal is uncalled for. They furnish the basis for proper inferences, which, with the evidence before us, fully support the finding as it stands. Hourigan v. Norwich, 77 Conn. 358,368, 59 A. 487.

While certain assignments of error challenge the correctness of the conclusion that the plaintiff has established a right to any recovery whatever, (1) some of these present mere questions of fact conclusively disposed of by the finding, (2) others depend upon assumed rulings of the court that are not discoverable on the record, and (3) still others appear to be based upon a wrong idea of the true purpose of the action, and the real grievance upon which the plaintiff relies to maintain it.

The alleged rulings of the court as to the relative importance of the provisions for pouring the concrete in a continuous operation, and for pumping the forms dry, in view of the established conflict of these provisions with other definite requirements of the specifications, are clearly and properly dealt with by the finding. They involve questions of fact, and present no reviewable question of law. The same is true of the assignment which bases error upon the court's holding that the defendant's reasons for terminating the contract were insufficient. The facts found are conclusive of the matter and leave no room for discussion as to the possible misapplication of any legal principle. Whether the plaintiff's detailed offer to build the piers by his submitted method, was a sufficient compliance, so far as it went, with the contract, involved in every real sense the whole underlying dispute of the parties. If by the assignment of error on this feature of the case, the defendant is attacking the correctness of the court's conclusion that the plaintiff did all that was required of it in view of the attitude of the consulting engineer, a question of fact only is involved, upon which the finding is conclusive.

Under the second of the enumerated classes, an inspection of the record makes it quite clear that the trial court did not rule, as the defendant claims, that the consulting engineer had discretion to waive any of the contract provisions in favor of the contractor. The court has distinctly found as a fact, on the other hand, that the consulting engineer had signally failed of his specific duty under the contract to resolve its manifest uncertainties and declare which of its radically contradictory provisions the plaintiff was to follow. Nor did the court rule that the defendant waived a strict compliance with its requirements for building the piers. The very kernel of the case presented by the finding is that anything approaching strict compliance with the specifications was literally impossible.

It is apparent, also, that the court did not rule, as claimed, that the defendant's refusal to permit the plaintiff to build the piers by its own proposed plan constituted "a violation by the defendant of the contract." Such weight as was given the attitude manifested by both the consulting engineer and the commission to the proposal, in determining where the ultimate responsibility for delay rested, is clearly indicated by the finding, and it does not appear that the court attached any distorted or unmerited importance to it, or gave it a significance that was not warranted in law.

Two other assignments of error seem to confuse the real nature of the plaintiff's position here, and so fall in the third of the classes referred to. These are the complaints that the court erred in not holding (1) that the contractor's inability to conform to the specifications was no excuse for his delay, and (2) that if he contracted with knowledge of defects in the specifications, a resulting delay would not excuse his failure to complete his contract within the time prescribed.

It must be borne in mind that the plaintiff is not seeking relief from responsibility for delays imposed upon it by the difficulties of fulfilling a harsh contract. If that were so, there might be room for the argument that one who contracts with open eyes is presumed to know his engagement and to have shouldered the burdens incident to its terms. But that proposition is without special significance in this situation. The plaintiff's position is that of one who has justifiably demanded the fulfilment of a plain duty imposed upon the consulting engineer, the performance of which is of vital consequence to the plaintiff in laying out its work. If there were ambiguities or inconsistencies in the specifications, it was clearly the engineer's duty to resolve them. When the plaintiff has in good faith sought to have an obviously hopeless inconsistency in the specifications removed for the avowed purpose of promoting the progress of the work, it is manifestly not chargeable with the consequences of a delay due solely to a refusal of the engineer to meet that obligation.

The one remaining assignment of error on this part of the appeal is that the court overruled the claim that "if the city gave notice as required by the specifications to terminate the contract, the right to terminate became absolute, and the sufficiency of the reasons was not open to question in this action." The method chosen by the defendant to terminate the contract has been commented on by this court in a similar situation, and because of its harsh and arbitrary character, the necessity is pointed out for exacting of one who elects to avail himself of it, the strictest compliance with its terms. Valente v. Weinberg, 80 Conn. 134, 136, 137,67 A. 369. In justification of the court's rejection of the defendant's claim, attention may be called to the initial requirement that to successfully invoke this method, one must himself be without fault under the contract. By the positive finding of the court, the defendant clearly lacked the essential most necessary to qualify it to act at all under the chosen method.

The rulings on evidence of which the appeal complains disclose no error. The question asked of the witness Tompkins was properly admitted. The relations of the parties to the two contracts were such that if, by an unwarranted interruption of work upon either, the city retarded the fair progress of work under the other, the plaintiff was entitled to the fact for what it was worth upon the material issue of delay. The admission of the testimony as to delay claimed to have been suffered by the plaintiff through the breakage of defective slabs was also correct. It was plainly within the reasonable intent of the parties that these slabs should be capable of successful removal by ordinary methods from the forms where they were cast to the places they were to occupy in the substructure of the bridge. If they failed of this test, to the plaintiff's detriment and through bad construction prescribed by the defendant, the latter is answerable for the consequences. The admission of the question asked of the expert Parsons, and the exclusion of that asked of the chairman of the bridge commission, are too clearly correct to warrant discussion. The court also properly allowed the answer of the expert Moran, to stand, for its bearing upon the comparative importance, from an engineering standpoint, of the specification requiring the concrete for each pier to be poured in one continuous operation. It involved matter of possible importance for the court in its consideration of the contested claim that the specifications were ambiguous and inconsistent in their provisions and wholly impossible of literal fulfilment. The question asked of Professor Burr was rightly excluded. The court's action in no sense restricted the fullest proper inquiry of the witness as to the nature and extent of the claimed defects, and its statement accompanying the ruling made this manifest.

The defendant complains finally, that the measure of damages was not limited to expenditures fairly and reasonably made in work called for by the contract, and that anticipated profits were wrongly allowed. Certain assignments complain more specifically that reimbursement was improperly made for expenditures resulting from, (1) the plaintiff's own delay, (2) a delay due to change of plans, (3) an effort to overcome defects in the plans with full knowledge of which the plaintiff contracted, and (4) difficulties and delays in handling the concrete slabs and driving the wing-piles.

The four specific grounds last disclosed call for only passing comment. They seem either based upon a misconception of the essential ground of the plaintiff's claim, or to rest upon the assumed existence of facts which the defendant no doubt hoped to establish by its attempted recasting of the trial court's finding. While the case as it stands justifies no claim that the plaintiff is profiting either directly or indirectly by any delay of its own, "delay," in any event is not the direct cause of the plaintiff's expenditures, and there is no warrant for a suggestion that the court so treated the matter. The significance of "delay" in the case which the plaintiff undertook to establish, was as a controlling factor in preventing the plaintiff from fulfilling its contract. That, and the defendant's unwarranted failure to make compensating extensions of time for its unfair consequences to the plaintiff, put beyond possibility the completion of the work within the period fixed by the contract. The court has found that this was all due to such conduct of the commission and the consulting engineer as relieves the plaintiff from responsibility, and places the blame upon the defendant. It is misleading, therefore, and quite beside the point to associate these terms "delay" and "expenditure" in the suggested relation of immediate cause and effect. The fairness of the plaintiff's outlay and expense, and the question whether they were rightly included as incurred by it in an honest attempt to fulfil its agreement with the city, depend upon other considerations of fact which the finding of the court makes conclusive. The claim that there was error in allowing expenditures caused by efforts to overcome defects in the plans, is neither quite accurately stated, nor sound in principle. The court finds that difficulties arising from this cause "did not develop till the work was attempted by the plaintiff." The inference follows that the expense was necessarily incurred in an apparently fair endeavor to meet the obligations imposed by the contract. The finding is also sufficient, in its silence, as to whether any expenditure made necessary by defective slabs or wing-piles was included in the sum awarded as damages. The court was not obliged to set up in detail these purely evidential facts, even if the matters with which they deal were recognized and included as elements of damage.

The plaintiff, with a choice of available remedies, elected to "bring his action for damages against the defendant for breaking the contract and preventing the plaintiff's performance of it." Valente v. Weinberg,80 Conn. 134, 135, 67 A. 369. The rule of damages applicable to actions of this character is well settled in this jurisdiction, and is in harmony with that generally recognized elsewhere. Valente v. Weinberg, supra;Warner v. McLay, 92 Conn. 427, 429, 103 A. 113;United States v. Behan, 110 U.S. 338, 4 Sup. Ct. 81;McConnell v. Corona City Water Co., 149 Cal. 60,85 P. 929. Based upon the elementary proposition that the measure of damages for a breach of contract is the loss which the injured party has thereby sustained, the rule in its more specific application embraces the two distinct elements of (1) expenditures already incurred "towards performance," and (2) "the profits that he would realize by performing the whole contract." United States v. Behan, supra.

The trial court recognized this as the true measure, and consistently applied it in reaching the award. The defendant's objection is apparently not to the rule itself, but to a claimed erroneous and faulty application of it. We are unable to sustain this contention upon any of the grounds advanced, and for these reasons: (1) The court has explicitly found that up to the time the plaintiff was forcibly removed from the bridge site, its net expenditures "in the preparation for and the prosecution of its work under the contract," amounted to the definite sum which is used as one of the bases for the award. It was not incumbent upon the court to fortify this ultimate fact by making the supporting details of evidence a part of the finding, which as it stands satisfies every requirement of our practice in that respect. It is, moreover, a necessary inference from the statement of the facts, that the expenditures in question were reasonably incurred for their avowed purpose. Any other construction or conclusion involves the manifest absurdity of our assuming, solely from the lack of a positive finding upon the point, that the court though distinctly recognizing and applying the true rule has ignored the principle of fair and just compensation which is its obvious mainstay. Indeed, having been established as incurred during the fair progress of and in connection with the work, such items of expense were to be regarded as prima facie reasonable for their purpose. "Unless there is some artificial rule of law which has taken the place of natural justice in relation to the measure of damages, it would seem to be quite clear that the claimant ought at least to be made whole for his losses and expenditures. So far as appears, they were incurred in the fair endeavor to perform the contract which he assumed. If they were foolishly or unreasonably incurred, the government should have proven this fact. It will not be presumed." United States v. Behan, 110 U.S. 338, 344,4 Sup. Ct. 81.

The finding makes it clear that both the parties and the trial court proceeded upon this theory of their relative responsibilities, and that the defendant was unsuccessful in any attempt to discredit the disputed items.

(2) The objection to the allowance of anticipated profits is confined to two of the numerous assignments of error on the appeal. The first of these seems to imply that the city's mere unacted-upon right under the contract to annul it upon compliance with certain conditions and in the absence of fault on the contractor's part, will of itself protect the city against a recovery for lost profits where, under avowedly different conditions, it has wrongfully terminated the contract by charging its own fault upon the contractor. There is no such qualification of the rule, and no reason for it. The essential difference between the two situations presented is in the quality of the defendant's act. Its full responsibility for a wrongful breach is not lessened because by legitimate methods it might have terminated the contract without violating it.

The other of the two assignments is that profits are not recoverable where the contractor, with knowledge of "defects and ambiguities" in the plans before executing the contract, has made expenditures "beyond his original estimates" on account of them. There is no such unyielding rule of exclusion, however difficult in practice it may sometimes be to fairly apportion lost profits under such conditions. The question is first and last one of fact, presenting greater or less obstacles according to conditions peculiar to the case in which it arises. But that damages by way of anticipated profits may be difficult of exact proof, in no degree impairs the theory upon which they are allowed, or qualifies the application of the rule. "The rule that damages which are uncertain or contingent cannot be recovered, does not embrace an uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but an uncertainty or contingency as to whether such gain or benefit would be derived at all. It only applies to such damages as are not the certain result of the breach, and not to such as are the certain result but uncertain in amount." Blagen v. Thompson,23 Or. 239, 254, 31 P. 647, 18 L.R.A. 315. So "the profits to be realized cannot in the nature of things be proved with absolute certainty, and no greater degree of proof is required in such cases than in other civil actions." Baltimore O. R. Co. v. Stewart, 79 Md. 487,500, 29 A. 964. "Where prospective profits are not too speculative and remote, where they do arise directly and as a natural consequence out of the injury, they are always allowed as an element of damage." McConnell v. Corona City Water Co., 149 Cal. 60, 65,85 P. 929. And "though the amount of the profits be open to dispute or controversy, still, such profits as the evidence shows would have resulted but for the breach of the contract by the defendant, are a legitimate element of damages." Lanahan v. Heaver, 79 Md. 413,419, 29 A. 1036. "They are nearly always involved in some uncertainty and contingency; usually they are to be worked out in the future, and they can be determined only approximately upon reasonable conjectures and probable estimates." Wakeman v. Wheeler Wilson Mfg. Co., 101 N.Y. 205, 209, 4 N.E. 264.

These extracts from well-considered cases disclose the reasonable theory which underlies the rule and governs its application. Whatever difficulties of proof the nature of such a claim involved, was a matter to be solved and disposed of in the trial court. The finding permits us no construction other than that expressed by its unequivocal language, that "if the plaintiff had been permitted to carry out the contract according to the terms thereof he would have made a profit" of the amount awarded as damages arising from that cause. This, if the finding is to stand, is of course conclusive, and as has been said on another feature of the defendant's claims, the finding properly omits the evidential facts supporting the court's conclusion.

(3) The contract price is not expressly found by the court, but it is discoverable from the exhibits as $210,120. A claimed disparity between these figures and the relatively large sum allowed as damages is relied upon as showing extravagance and a lack of good faith attending the contractor's disbursements. The defendant urges that the alleged disproportion of the amount of the judgment to these figures of the contract, in itself establishes the claim that the plaintiff's expenditures were unreasonable, and not fairly justified by work legitimately done under the contract. The conclusion does not follow. The claim wholly disregards the prolonged controversy of the parties, the possibly controlling effect of the defendant's attitude and demands upon the plaintiff's course and conduct in an effort to fairly maintain its rights, and an ultimate solution of the whole matter by the advisory engineer which the court may well have considered to be in essential harmony with the plaintiff's consistently maintained contention from the first. If, as we must assume, the trial court found that the sums involved were spent in an honest effort by the plaintiff to perform its part of the agreement, their amount, large as it is, furnishes no obstacle to the allowance either in law or in fact. The claim is one more appropriately made in the trial court, for such weight as it might deserve in a consideration of the evidence.

The finding is, as we have intimated, sufficiently full and definite on those features of the case necessarily involved in a consideration of the question of damages. We are also satisfied that here, as on features of the case considered earlier in the opinion, it must stand as warranted by the evidence.

There is no error.

In this opinion the other judges concurred, except WHEELER, J., who dissented.