Brasher v. City of Alexandria ( 1949 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Brasher brought this suit to recover the sum of $16,659.43, representing the balance allegedly due for work done under a contract to construct a sewer system for the city of Alexandria. The facts upon which the claim is predicated are as follows:

On July 29, 1942, the parties entered into a written contract obligating Brasher to furnish "all material and labor and construction complete of an extension of the municipal sanitary sewer system of the city of Alexandria, Louisiana, War Public Works Project Docket No. La. 16-116" for the sum of $161,641.23. Due to the fact that the project was sponsored by the Federal Works Agency, the agreement was of great length, comprising more than sixty pages, and contained provisions relative to the employment of labor which are not commonly found in ordinary construction contracts. The agreement also included other usual provisions, relative to time of completion and the obligations assumed by the contractor, coupled with the main obligation "* * * to furnish all the materials, supplies, machinery, equipment, tools, superintendents, labor, insurance, and other accessories and services necessary to complete the said construction in accordance with the conditions and prices stated in the proposal attached hereto, and in accordance with all the General and Special Conditions of the Contract, and in accordance with the plans, which include all maps, plats, blue prints, and other drawings and printed or written explanatory matter thereof, and specifications and contract documents therefor as prepared by I. W. Sylvester, herein entitled the (Engineer), together with Contractor's written proposal, the general and special conditions of the contract, the contract documents, construction regulations, and the Performance Bond, * * *."

After the confection of the agreement, Brasher endeavored to perform the work under the supervision of the engineer of the city of Alexandria and various city inspectors. During the progress of the job, alterations in the original agreement were made which were necessitated by various conditions encountered by the contractor which were not foreseen by the parties at the time the contract was made. In all, there were 17 "change orders" executed in writing, aggregating a cost of $90,000, which increased the contract price to the sum of $216,239.

During the course of construction between stations 0 ‡ 00 and station 39, the contractor was confronted with a serious soil condition necessitating, in his opinion, the use of extra materials as a cradle to stabilize the pipes to be laid in the trench. Inasmuch as the plans and specifications did not provide for the cradling of the sewer pipes, the contractor requested the Acting City Engineer¹ for a change order so that stabilization of the pipes could be had, recommending that concrete cradles be employed. The Engineer and the Commissioner of Streets and Parks took the position that the furnishing of concrete cradles, or, for that matter, any other material for stabilization of the sewer pipes, was an obligation of the contractor and that the city would not be responsible therefor. In view of the attitude of the city's officers, the contractor laid the pipes in the trench as provided for in the specifications, using wooden boards as a stabilizer. These boards were not an adequate brace for the load sustained by the pipes and, as a result, some 78 pipes on this particular section of the sewer line collapsed. The city thereafter employed another contractor to make the proper repairs between stations 0 ‡ 00 and station 39 at a cost of $13,588.45 and, when Brasher presented his estimate, it deducted that sum from its final payment on the ground that he had failed to fully comply with his agreement.

It further appears that, after the sewer extension had been laid between station 39 ‡ 35 and station 41 ‡ 05 on Wise Street, it failed because of similar soil conditions and resultant lack of stabilization of pipes in the trench to that occurring in the section of the work above mentioned, that is, between stations 0 ‡ 00 and station 39. Upon discovery, the contractor applied to the Acting City Engineer for a written order to correct the condition but the latter refused on the ground that it was the contractor's obligation to stabilize the pipe. Despite the refusal of the City Engineer, the contractor made the necessary repairs at the insistence of the government engineer, who urged him to do so in order that a Negro housing project, which had been erected by the federal government, could be connected to the sewer line. In fact, the evidence shows that the government engineer assured plaintiff that he would see that he was paid under the "force work" provision of the contract. However, the city has never paid the amount of this extra work which is shown to be the sum of $3060.98.

Thus, plaintiff's claim is comprised of two items, $13,588.45, which he contends was wrongfully deducted by the city from the balance due on the contract, and $3060.98, for the extra work in repairing the Wise Street sewer extension. The basis of the cause of action in each instance is that the extra cradling work required for the stabilization of the sewer pipes was due to defective plans and specifications prepared by the City Engineer and that, this being so, he is entitled to recover as he has fully complied with his obligation.

The city, on the other hand, contends in the main that the repairs to the sewer system were necessitated by the contractor's failure to perform in accordance with the conditions of the contract which required him to examine the site and acquaint himself with the general conditions under which the work was to be done and, thus, made it his obligation to overcome any difficulties encountered resulting from soil conditions or otherwise to the end that he deliver a complete sewer system free from defects.

After a protracted trial in the lower court in which a mass of evidence was adduced, there was judgment in plaintiff's favor, as prayed for. The city prosecuted this appeal.

In this court, the city reurges the contention that it is not responsible because the repairs rendered necessary as a result of the soft soil rested upon plaintiff and not upon it.² It also complains about certain conclusions of fact of the trial judge which we find unnecessary to discuss as the record leaves no doubt that the defects in the sewer system were due to soil conditions which made it imperative that the sewer pipes be stabilized by concrete cradling. Hence, the narrow question for decision is whether the obligation rested on plaintiff or upon the city to provide the cradling.

The City Attorney relies upon the general rule that a contractor will not be excused from his obligation by reason of unforeseen difficulties encountered in the work. In support of his argument, he directs attention to various general provisions of the contract, making it the duty of the contractor to examine the site where the work is to be performed, check the plans and specifications, etc., and the cases of O'Leary v. Board of Port Com'rs for Port of New Orleans, 150 La. 649,91 So. 139; Picard Const. Co. v. Board of Com'rs, 161 La. 1002,109 So. 816 and Terrill Const. Co. v. Town of Pineville,168 La. 894, 123 So. 611, are cited as controlling.

The principle depended upon by the city is sustained by the above cited cases, to which may be added Jung v. Gwin,174 La. 111, 139 So. 774, but it is wholly without application to a matter like this, where the work is performed in conformity with plans and specifications prepared by the owner and the damage results from the insufficiency of those plans and specifications. In such instances, the loss must be borne by the owner according to the jurisprudence which is now well settled in practically every American jurisdiction. See annotation in 88 A.L.R. pages 797 through 805 and cases discussed therein including Hebert v. Weil, 115 La. 424, 39 So. 389; Louisiana Shipbuilding Co. v. Bing Dampskibsaktieselskab, 158 La. 548,104 So. 364 and Young v. Barelli, 169 La. 319, 125 So. 258.

The leading case on this subject is United States v. Spearin, 1918, 248 U.S. 132, 39 S.Ct. 59, 61, 63 L.Ed. 166, where suit was brought by the contractor for a balance due for work done under a contract to construct a dry dock and also damages for its annulment. The cause of action was founded upon the theory that the plans and specifications provided by the government for relocation of a six foot sewer were insufficient and defective and that, as a result, the work could not be performed. In upholding the validity of the contractor's contention, the court, through Mr. Justice Brandeis, declared:

"The general rules of law applicable to these facts are well settled. Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered. Day v. United States,245 U.S. 159, 38 S.Ct. 57, 62 L.Ed. 219; Phoenix Bridge Co. v. United States, 211 U.S. 188, 29 S.Ct. 81, 53 L.Ed. 141. Thus one who undertakes to erect a structure upon a particular site assumes ordinarily the risk of subsidence of the soil. Simpson v. United States, 172 U.S. 372, 19 S.Ct. 212, 43 L.Ed. 482; Dermott v. Jones (Ingle v. Jones) 2 Wall. 1, 17 L.Ed. 762. But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. MacKnight Flintic Stone Co. v. New York,160 N.Y. 72, 54 N.E. 661; Filbert v. Philadelphia, 181 Pa. 530,37 A. 545; Bentley v. State, 73 Wis. 416, 41 N.W. 338. See Sundstrom v. State, 213 N.Y. 68, 106 N.E. 924. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work, as is shown by Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933; Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898; and United States v. Utah, N. C. Stage Co., 199 U.S. 414, 424,26 S.Ct. 69, 50 L.Ed. 251, [252, 255], where it was held that the contractor should be relieved, if he was misled by erroneous statements in the specifications.

"In the case at bar, the sewer, as well as the other structures, was to be built in accordance with the plans and specifications furnished by the government. The construction of the sewer constituted as much an integral part of the contract as did the construction of any part of the dry dock proper. It was as necessary as any other work in the preparation for the foundation. It involved no separate contract and no separate consideration. The contention of the government that the present case is to be distinguished from the Bentley Case, supra, [73 Wis. 416, 41 N.W. 338], and other similar cases on the ground that the contract with reference to the sewer is purely collateral, is clearly without merit. The risk of the existing system proving adequate might have rested upon Spearin, if the contract for the dry dock had not contained the provision for relocation of the 6-foot sewer. But the insertion of the articles prescribing the character, dimensions and location of the sewer imported a warranty that if the specifications were complied with, the sewer would be adequate. This impliedwarranty is not overcome by the general clauses requiring the contractor to examine the site,to check up the plans, and to assume responsibility for the workuntil completion and acceptance. The obligation to examine thesite did not impose upon him the duty of making a diligentinquiry into the history of the locality with a view todetermining, at his peril, whether the sewer specificallyprescribed by the government would prove adequate. The duty to check plans did not impose the obligation to pass upon their adequacy to accomplish the purpose in view. And the provision concerning contractor's responsibility cannot be construed as abridging rights arising under specific provisions of the contract." (Italics ours.)

The doctrine of the Spearin case was specifically approved by this court in Louisiana Shipbuilding Co. v. Bing Dampskibsaktieselskab, supra, and fully controls the result in the case at bar. The plans and specifications, prepared by the City Engineer, were insufficient and defective in that no provision was made for the cradling of the pipe to be laid by the contractor. The City Engineer should have been aware that soft soil might be encountered in the construction of the sewer line, necessitating the stabilization of the sewer pipes by use of concrete cradling. His failure in this respect renders the city responsible for the extra work as the contractor performed his obligation strictly in accordance with the plans and specifications furnished him.

The City Attorney also maintains that the city should not be held liable for the repair work done by plaintiff in rectifying the defects on Wise Street, amounting to $3060.98, for the additional reason that plaintiff's request for a change order covering this work was refused. Hence, it is argued that, in view of paragraphs 33 and 34 of the contract providing that the city will not be responsible for changes and extras in work "unless the same was done in pursuance of a written order", no liability ensues.

This proposition cannot prevail because the record makes it clear that refusal of the Acting City Engineer to issue a written order to rectify the defect, resulting from the insufficient plans and specifications prepared by the city, was purely arbitrary and unreasonable. Plaintiff complied with the plans and specifications in laying the sewer line on Wise Street. After the line failed due to the soil subsidence, the Federal Works Administration Engineer urged plaintiff to repair the work so that the Negro housing project (in which the government was interested) could be connected, stating that he would see that plaintiff was paid under the force work provision of the contract. Plaintiff acceded to the request of the U.S.E.ngineer, despite the fact that the Acting City Engineer had arbitrarily refused to issue a change order so that the necessary work could be done. It is to be noted that neither the Acting City Engineer nor the Commissioner of Streets protested against plaintiff making the repairs to the sewer line. On the contrary, they were well aware that he was doing the work and the Chief City Inspector was furnished with itemized vouchers at the end of each day showing the labor and material costs for the day's work. Indeed, they merely took the position that the extra work was an expense to be borne by plaintiff.

The facts herein are strikingly parallel to those in United States v. L. P. J. A. Smith, 256 U.S. 11, 41 S.Ct. 413, 414,65 L.Ed. 808. There, the contractor agreed to excavate a ship channel located in the Detroit River in accordance with certain plans and specifications. The contract provided that final decision relative to the excavating work would rest with the government engineer in charge as to the quality and quantity of work and required the contractor to observe his instructions; that modifications of the work in character and quality were to be agreed upon in writing and that, unless so agreed upon or expressly required in writing, no claim should be made therefor. It appeared that, during the excavation work, Colonel Lydecker, the engineer in charge (having succeeded Colonel Poe), ordered the contractors to work at particular spots on the northerly end of the project where the contractors encountered a mass of limestone bedrock which had to be removed and which was not contained in the plans and specifications. The contractor protested and asked for the fixing of an extra price for doing the work. Colonel Lydecker refused and informed the contractors that, if they did not remove the bedrock, they would be declared in default. They acceded, and later sued in the Court of Claims to recover the extra cost attendant thereto, amounting to $119,304.27. The government defended on the ground that the contract provided that the decision of the engineer in charge as to quality and quantity of the work was final; that his instructions were required to be observed and that the government would not be liable for any modification of the work in character and quality unless agreed to in writing. In rejecting this defense, the Supreme Court of the United States declared:

"The contention overlooks the view of the contract entertained by Colonel Lydecker and the uselessness of soliciting or expecting any change by him. His conduct, to use counsel's description, ``though perhaps without malice or bad faith in the tortious sense,' was repellant of appeal or of any alternative but submission with its consequences. And we think, against the explicit declaration of the contract of the material to be excavated and its price. The contract provided, in response to advertisements and in fulfillment of bids, for the excavation of a ship channel 20 and 21 feet deep and that ``the material to be removed consists of clay, sand, gravel, and boulders, all in unknown proportions.' To these explicit provisions, and their contractual force we may add the judgment and conduct of Colonel Poe, the first engineer officer in charge of the work. He realized immediately when a bed of limestone rock was encountered it was not the material stated in the contract and without hesitation entered into another contract concerning it, and at a price of significant contrast — 18 cents per cubic yard, scow measure, being the price of the first contract, $2.24 per cubic yard of excavation, bank measure, being the price of the second contract.

"We think the case is within the principle of Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 533, 58 L.Ed. 898; Christie v. United States, 237 U.S. 234, 35 S.Ct. 565,59 L.Ed. 933; United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59,63 L.Ed. 166, and United States v. Atlantic Dredging Co.,253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735."

The evidence in the case at bar exhibits that the parties realized that the plans and specifications drawn by the City Engineer were inadequate and, during the progress of the work, many changes were made as the contractor was confronted with various conditions not contemplated or provided for in the specifications. Accordingly, the refusal of the Acting City Engineer to issue the change order for the repairs required on Wise Street, was purely arbitrary as he was well aware that the repairs would have to be made in order for the system to operate. The contractor had complied with the specifications, as there was no provision contained therein for stabilization of the pipes by cradling. If he had not made the repairs, the city would have been required to have the work performed by another contractor. In other words, the claim for this work falls squarely in the same category with the repairs between stations 0 ‡ 00 and station 39. The only difference is that the contractor himself performed the work in this instance. If he had not done so, the city would have been required to employ another contractor to remedy the defect as it did on the repair work between stations 0 ‡ 00 and station 39.

Another complaint of the city is that the judge erred in awarding plaintiff judgment for interest and costs. It is contended that interest and costs may not be assessed against the state or any of its political subdivisions in the absence of specific enactment.

The point is well taken. Act No. 135 of 1936 provides that "neither the State, nor any parish, municipality, or other political subdivision, * * * shall be required to pay court costs in any judicial proceeding * * *" instituted or prosecuted by or against them except stenographic costs for taking testimony. This statute has been construed to mean that not only are political subdivisions exempt from payment of their own costs but that they are likewise not amenable for costs expended by litigants successfully prosecuting claims against them, except in expropriation proceedings. See Westwego Canal and Terminal Co. v. Louisiana Highway Commission, 200 La. 990,9 So.2d 389; Harrison v. Louisiana Highway Commission,202 La. 345, 11 So.2d 612; Makofsky v. Dept. of Highways, 205 La. 1029, 18 So.2d 605 and Hamberlin v. Tangipahoa Parish School Board, 210 La. 483, 27 So.2d 307. Nor is the State and its political subdivisions liable for interest under the well-established jurisprudence. See Boxwell v. Dept. of Highways, 203 La. 760, 14 So.2d 627; Makofsky v. Dept. of Highways, supra, and Hamberlin v. Tangipahoa Parish School Board, supra, on rehearing, see 210 La. 501, 27 So.2d 312.

The city has filed a plea of prescription of one year in this court and asserts, in a supplemental brief, that plaintiff's action is barred because it is founded in tort.

The argument is without substance. This suit is grounded exclusively on the contract and consists of a claim for a balance due and extra work thereunder. It is, therefore, governed by the prescription of ten years under Article 3544 of the Civil Code and does not come within the class of actions prescribed by one year under Articles 3534 and 3536, relating to torts and other matters. See P. Olivier Sons v. Board of Com'rs, 181 La. 802, 160 So. 419; Bandel v. Sabine Lbr. Co.,194 La. 31, 193 So. 359 and Levin's Auction Exchange v. Samuels, La.App., 28 So.2d 340. The cases cited by the city in support of the plea of prescription are inapposite.

The judgment appealed from is amended by disallowing recovery of interest and costs, except stenographic costs, and in all other respects it is affirmed.

MOISE, J., dissents and will assign written reasons.

O'NEILL, C. J., and HAWTHORNE, J., take no part.

¹ Mr. Sylvester, the City Engineer named in the contract, died during the progress of the work.

² The city filed exceptions of vagueness and no cause of action to plaintiff's petition. The exceptions were overruled below and they are stressed again here in the briefs of the city. We do not regard the exceptions as meritorious. Therefore, it suffices to say that an examination of the petition satisfies us that it is quite specific and that it fully sets forth a cause of action, ex contractu.