
    THE MIDLAND LAND AND IMPROVEMENT COMPANY v. THE UNITED STATES.
    [No. 33713.
    Decided April 2, 1923. Motion for new trial overruled February 18, 1924.]
    
      On the proofs.
    
    
      Contract; dredging; misrepresentation of materials. — 'Where a contract provides that “ the material to be excavated is believed to be mud, sand, and gravel, but bidders are expected to examine the work and decide for themselves as to its character and make their bids accordingly, as the United States will not guarantee the accuracy of this description; the price per cubic yard will cover the removal of all material encountered except ledge rock,” and the contractor in its proposal voluntarily states that it possesses “ full knowledge of the kind, quantity, and quality of the work required,” and the borings exhibited to the contractor by the Government show substantially the same character of materials as were encountered in dredging, there is no misrepresentation for which the contractor can recover.
    
      The Reporter's statement of the case:
    
      Mr. C. O. Calhoun for the plaintiff.
    
      Mr. Alexander R. McCormick, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant. Mr. Charles M. Nash was on the briefs.
    The following are the facts of the case as found by the court:
    I. The plaintiff is, and was during the transactions hereinafter set out in these findings of fact, a corporation duly incorporated under the laws of the State of New Jersey, with its principal office for the transaction of business in the city of New York.
    II. The plaintiff on August 12, 1907, entered into a contract with the United States to dredge and dispose of approximately 4,177,110 cubic yards of material, scow measurement, in Newark Bay and Passaic River for 16J cents per cubic yard. The work to be performed under the contract was to dredge a channel 16 feet deep at mean low water from Staten Island Sound through Newark Bay and the Passaic River to the Montclair & Greenwood Lake Railroad bridge, a distance of 10.8 miles, 300 feet wide to the Nairn Linoleum Works, a distance of 9.7 miles, and thence 200 feet wide to the Montclair & Greenwood Lake Railroad bridge, 1.1 miles, and the work was required to begin within 30 days after receipt by the contractor of notice of the approval of the contract (par. 14 of the specif.) and to be prosecuted “ with faithfulness and energy.”
    The specifications, among other things, provided (par. 16) that “ A percentage of ten (10) per centum will be reserved from each payment until half of the work under the contract, as estimated by the engineer, has been completed, after which there shall be no further reservation.”
    The specifications also contained a statement (par. 19) that “ The material to be excavated is believed to be mud, sand, and gravel, but bidders are expected to examine the work and decide for themselves as to its character and make their bids accordingly, as the United States will not guarantee the accuracy of this description. The price per cubic yard will cover the removal of all material encountered, except ledge rock.”
    The specifications (par. 21) stipulated that—
    “ The required rate of work will be at least 50,000 cubic yards per month, unless otherwise authorized by the engineer. If at any time after the date fixed for beginning the work it shall be found that operations are not being cari’ied on as rapidly as required by the contract, the engineer shall have power, after due notice in writing to the contractor, to employ such additional plant or labor, or to purchase such material as may be necessary to insure the proper completion of the work within the time specified, and the excess cost thereof shall be a charge against any sum due or to become due to the contractor. This provision, however, shall not be construed to affect the right of the United States to annul the contract.” The paragraph also stipulated that “ No work will be required in the months of December, January, and February, but it may be continued in these months if the contractor so desires.”
    
      On August 3, 1911, the plaintiff entered into a supplemental contract with the Government to widen the channel opposite Lister’s Chemical Works, about 4,500 feet above the beginning of the channel in Newark Bay, and at any bends of the Passaic below the end of the channel at Montclair & Greenwood Railroad bridge, the amount of dredging not to exceed 10 per cent of the amount stated in the original contract (4,177,110 cubic yards), the contract to be governed by the same specifications as the first.
    The contract and specifications are made a part of these findings by reference thereto.
    III. The plaintiff in its proposal, dated June 30, • 1907, for the work on which this claim is based, said:
    “ The manager of this plant has been engaged in this class of work for many years, i. e., Hudson River U. S. contract, 1900, to 1906, completed O. K.; Newark Bay and Passaic River, 1904 to 1906, completed O. K.; New Haven, Conn., U. S. contract, completed O. K.; Great South Bay, 1904, completed O. K.; Patchogue River, 1906, completed O. K.; Staten Island Sound, 1906, completed O. K.; and at least 50 other contracts.”
    “We make this proposal with a full knowledge of the kind, quantity, and quality of the work required, and if it is accepted, will, after receiving written notice of such acceptance, enter into contract within the time designated for the faithful performance thereof.”
    The manager above referred to was John A. Seeley, who made the estimates for the plaintiff’s bid, and who was very familiar with the whole stretch of Newark Bay and Passaic River covered by plaintiff’s contract, his experience extending over a period of 11 .years, and he had been superintendent of a contract for dredging a 12-foot channel over the same course.
    ' IV. Under the act of March 3,1905, Thirty-third Statutes, 1117, surveys and borings were made by the engineer office during the months of October, November, and December, 1906, of the channel from a point near the Red Bell Buoy in Newark Bay to the Montclair & Greenwood Lake Railroad bridge over the bay and Passaic River, a distance of 10.8 miles, in a northerly general direction, with a view to deepening the channel from 12 to 16 feet at mean low water and to determine the character of the material to be removed by dredging. The borings were made with a steel rod an inch and a half in diameter and were driven into the bottom of bay and river by hand power, and the depth of the water and of each kind of material penetrated was recorded. This was the proper and customary way to make borings where the depths of the water and character of the bottom were such as was found in the channel proposed to be dredged. These borings were 143 in number and are recorded on three separate sheets of the survey. On sheet No. 1, the channel is about 2.2 miles in length and the borings were from 1 to 42t> inclusive, and indicate mud, mud and sand, mud and shells, sand, and gravel. On sheet No. 2 the channel is about 3.1 miles in length, and the borings were from 43 to 74, inclusive, and indicate mud, mud and sand, sand, sand gravel and clay, gravel, and clay. On sheet No. 3 the channel is 5.5 miles in length, and the borings are from 75 to 143, inclusive, and indicate mud, mud and sand, sand, sand and gravel, gravel, sand gravel and clay, and bottom bowlders. Gravel, as the term is used in hydrographic engineering, indicates material running from grit to stones 2 inches in diameter, and bowlder, a word used interchangeably with cobblestone, indicates stones from 2J to 8 inches in diameter, rounded by the action of water in the glacial period. These borings were made by competent men in good faith and according to their best judgment, and whenever they struck a bowlder the fact was recorded, the boring stopped at that place, and they went on to another place for another boring. The material afterwards dredged from the channel corresponded generally to the material indicated by the borings. These sheets were furnished to- prospective bidders.
    Y. The Government engineers, in making up their estimates prior to advertising for bids, estimated the cost of dredging the lower reaches of the channel at 26 cents per cubic yard and the upper reaches at 32 cents per cubic yard, the difference in estimates being due to the more difficult character of the material to be dredged and the number of bridges in the upper part of the channel through the draws of which the scows would have to pass. There were four other bids for the work under the contract, ranging from 22.2 cents to 36.4 cents per cubic yard.
    VI. Some time in 1905 the New Jersey Dock & Improvement Co. was organized by putting into it the Hughes Bros. & Bangs dredging plant and the Newark meadows property containing about 3,500 acres of land, and it was financed by Harvey Fisk & Sons and other New York financiers, and John A. Seeley was made manager of the dredging plant. The land at that time was practically worthless and it was the purpose of the company to take contracts for dredging the near-by waters and thereby fill it in with dredged material. After Harvey Fisk & Sons got into the company it proved to be expensive, as the taxes were raised on every acre as soon as it was filled in, and the result was that everybody got out except Fisk & Sons, who had to finance the whole concern. They had placed about $350,000 in the business besides spending $135,000 on repairs to the dredging plant. Finally Harvey Fisk & Sons foreclosed its lien on the dredging plant and Newark meadows and bought in the whole property. They then separated the land from the dredging operations and formed two companies, the Newark Meadows Improvement Co., and the Midland Land & Improvement Co., and John A. Seeley became manager of the dredging company.
    VII. The plaintiff began work on August 28, 1907, at the lower or southern end of the channel near the Bed Bell Buoy in Newark Bay, and working in a northerly direction up Newark Bay completed dredging the channel on sheet No. 1 a distance of 2.2 miles, and thence up through the remaining stretch of Newark Bay and Passaic Biver, shown on sheet No. 2, completed dredging said channel, as shown on said sheet, for a distance of 3.1 miles. On sheet No. 3 plaintiff dredged the channel in the Passaic Biver there shown for a distance of 3.2 miles, for 2.2 miles of which half or less of the width of the channel was dredged.
    When work began the plaintiff had a plant sufficiently powerful to have completed the work in the contract time, and by August, 1909, two years after the work began, it was estimated by the engineer in charge that plaintiff had completed half of the contract work, and it was paid on that basis, less 10 per cent thereon ($33,998.15) held as retained percentages under paragraph 16 of the specifications. The plaintiff made good progress until the end of the year 1909, and was considerably in excess of the minimum quantity, 50,000 cubic yards, required by paragraph 21 of the specifications to be dredged per month.
    There was no material encountered which- plaintiff’s plant, before it was allowed to run down, could not handle. It could and did pump clay and cobblestones in its hydraulic dredges, and where stone was dredged plaintiff was paid for dredging them at special prices.
    After January 1, 1910, the work was carried on spasmodically and the plaintiff was in default nearly every month up to September 24, 1912. During eight months in which work was required no work was done, and in' every month except three plaintiff was in default in its monthly dredging work, and in June, July, August, and September, 1912, it dredged 31,926 cubic yards instead of the minimum required by the contract, 200,000 cubic yards.- In dredging the channel to 16 feet in depth, the plaintiff would frequently dredge to a greater depth, one dredge would sometimes dredge to 19 feet, and plaintiff was paid where it dredged to 17 feet; for dredging beyond that depth it was not paid. The plaintiff up to September 24, 1912, dredged 3,153,632 cubic yards under the terms of its contracts, for which it was paid $478,467.05, which, with the percentages of $33,998.15 retained as aforesaid when the work was half completed, amounted to full payment for all material dredged at the contract price of 16J cents per cubic yard. The actual cost to the plaintiff for the work performed was 20^; cents per cubic yard, a loss of 4 cents per cubic yard, or a total loss of $126,145.28, on the whole work performed.
    VIII. On September 24, 1912, the plaintiff stopped work on the contract. Several months prior to that date all of the stock in the dredging plant, including the retained percentage, was sold to one Frank A. Barnaby for $1,000. The work continued, however, until September 24, 1912, in the name of said company under the management of John A. Seeley. The plant had been gradually running down until at the time the work stopped it was inadequate to perform the contract. Harvey Fisk & Sons, who were not dredgers, wanted to get out of the dredging business.
    IX. On November 1,1912, the plaintiff wrote to the Secretary of War requesting the cancellation of the two contracts. The summary of its letter reads:
    “We respectfully submit in support of our position that the contract should be terminated — ■
    “ 1. Because the difference in cost between excavating and depositing material shown by the corings, and the excavation and depositing of clay, bowlders, and other hard materials actually found, is so materially different and excessive in cost as to be inequitable and unjust, and to require the excavation and disposal of a mass of material not within the terms of the specification at the price bid for the former imposes a burden upon the contractor that is inequitable and unjust.
    “ 2. The bid of this company was justifiably based upon erroneous information and data furnished by the Engineering. Department.
    “ 3. For reasons given the contract should be discontinued and terminated, all percentages retained should be paid to the contractor, and this contractor released from all liability thereunder.
    “ 4. The work should be readvertised on correct information without prejudice to this contractor.
    “ We respectfully request that we be given an opportunity to be heard in this matter and to submit, if you should deem it advisable, evidence to support the contentions urged above. '
    ' “ We further request that the United States Engineer office at the city of New York be advised of this application; that a consideration thereof is pending in your office; and that pending this consideration no further action may be taken by him prejudicial to this contractor.”
    To the above letter the engineer’s office in charge of the work wrote on February 8, 1913:
    “ Sir : Referring to progress of work upon your contract dated August 12, 1907, for dredging in Newark Bay and Passaic River, N. J., and to the decision of the department upon your application dated November 1, 1912, for cancellation of that contract, I have to say that you should resume dredging at the earliest possible date, and not later than March 1,1913, and prosecute the work with faithfulness and energy in accordance with the contract. The entire cessation of the work is not contemplated under the contract,
    
      although you have attained the required average rate of progress to date upon same.
    “ Please advise me of your plans and the date for resuming work, so that the necessary arraangements for inspection by this office may be made.”
    On February 21, 1913, the engineer wrote to plaintiff again as follows:
    “ Sir : Referring to my letter of the 8th instant in reference to work upon the contract of the Midland Land and Improvement Company, dated August 12, 1907, for dredging in Newark Bay and Passaic River, N. J., please advise me when I may expect a reply.”
    To this letter plaintiff replied on February 28,1913:
    “ Colonel : Replying to your esteemed favors of February 8th anad 21st, in reference to work upon the contract of the Midland Land and Improvement Company dated August 12, 1907, for dredging in Newark Bay and Passaic River, N. J., we respectfully refer you to our previous correspondence on this subject, wherein we have informed you of our intention to discontinue work on this contract for reasons therein specified.
    “ Under advice of our attorneys, we have not changed our position in the matter.”
    Letter from the engineer in charge to the Chief of Engineers, dated March 4, 1913, reads:
    “ 1. Referred.
    “ 2. In pursuance of the advice of the department as contained in paragraph 6 of the 1st indorsement, office of the Chief of Engineers, dated Feb. 3, 1913, on my letter dated January 15, 1913 (E. D. 63777/52), in reference to progress of work on the contract of the Midland Land and Improvement Company dated August 12, 1907, for dredging in Newark Bay and Passaic River, N. J., there are inclosed herewith copies of letters from this office to the contractor dated February 8 and 21, 1913, in reference to this work. It appears from paragraph 4 of the department letter above referred to that the contractor will not be in default until July 29, 1913, if the required rate of work, 50,000 cubic yards per month, is used as the required amount of work to be accomplished up to that date.
    
      “ 3. In view of the information now received from the company, advice is requested as to the propriety of annulling this contract at this time. So far as the practical consideration of this contract is concerned, the contractor abandoned work on September 24, 1912, as referred to in my report dated December 13, 1912 (E. D. 63777/40).”
    To this letter the Chief of Engineers replied:
    “ 1. Since the contractor has definitely abandoned the contract, as evidenced by letter of the 28th ultimo, the contract should be at once annulled by giving notice to that effect to the contractor and the sureties, preserving evidence of the receipt of such notices. The fact and date of annulment should be reported hereon in returning this paper.
    “ 2. After annulment of the contract recommendation as to the method of completing the work, or other course to be followed, should be submitted.
    “ By command of the Chief of Engineers.”
    Letter from engineer in charge to plaintiff dated March 14, 1913:
    “ Sirs : Deferring to your letter of February 28, 1913, in which you have definitely informed me that you have discontinued work on your contract for dredging in Newark Bay and Passaic Diver, N. J., dated August 12, 1907, I have to inform you that this contract, with its supplementary contract dated August 3, 1911, is hereby annulled, with the sanction of the Chief of Engineers, ana that arrangements will be made to secure the performance of the uncompleted work in accordance with paragraph 4 of the contract.”
    No protest had been made by plaintiff as to the character of the material to be dredged up to its letter of November 1, 1912, requesting the cancellation of the contracts.
    X. The distance plaintiff would have been compelled to transport its material to sea, if it had not had a dumping ground on its own property, the Newark meadows, would have been from 28 to 35 miles from the beginning of the channel in Newark Bay, with an increasing distance as it progressed upward with its work. It would have been required also to obtain a permit from the New York City government for every scow load dumped into the sea with a city inspector on board to see that it was dumped at the proper place. The evidence does not show how much of plaintiff’s swamp land was filled in under this contract, but does indicate that a considerable part of the 3,500 acres was thus reclaimed. The filling in work had been going on before plaintiff began work on this contract and was continued through other contractors after it had abandoned its contracts. The value of the land after filling in was increased $12,000 per acre over its value prior thereto, or a total increase for the 3,500 acres of $42,000,000. This land became very valuable after the World War began in 1914, when factories were started in Newark and the Government began a shipyard there, and part of the reclaimed land sold for a large sum of money.
    XL After the work was abandoned by the plaintiff and the two contracts canceled as described in Finding IX, the uncompleted part of the work was advertised August 16, 1913, on the same specifications, surveys, and borings, and was awarded to Eugene Breymann at 26$ cents per cubic yard, scow measurement, contract dated October 10, 1913, who completed the work. The amount of material dredged by him was 1,328,257 cubic yards. The surplus dredged by plaintiff over the minimum requirement of the contract at the time it stopped work on September 24, 1912, was ex-haused by said requirement several months before work was begun under the Breymann contract.
    The total cost to the Government for dredging 1,328,257 cubic yards, at 26$ cents per cubic yard, was $356,969.07. If the plaintiff had completed its contract the cost would have been, at 16$ cents per cubic yard, $215,841.76, a difference of $141,127.31, and $107,129.16 more than the retained percentages sued for.
    XII. What became of the books and stock of the plaintiff company has not been satisfactorily shown by the evidence. The charter of the company was forfeited for nonpayment of taxes, after which, at the request of the said Frank A. Barnaby, one Charles II. Wilson and William B. Firmin agreed to act as president and secretary of said company, respectively, and their only official act was to execute the power of attorney appointing Charles F. Wood, attorney in fact, to prosecute this suit. Neither Wilson, Firmin, nor Wood owned any stock in said company, nor had any interest in the two contracts between said company and the United States, nor in the retained percentages, nor did the said Frank A. Barnaby own any stock of record in said company at that time. What interest he or anyone else now has in said company is not shown by the evidence.
   Booth, Judge,

delivered the opinion of the court.

Under the terms of a written contract the plaintiff company assumed obligations to dredge and dispose of 4,177,110 cubic yards of material, scow measurement, in Newark Bay and Passaic Biver for the sum of 16¿ cents per cubic yard. The dredging work provided for in the contract was intended to secure for the defendant a channel 16 feet deep at mean low water, extending 10.8 miles from Staten Island Sound to the Montclair & Greenwood Lake Bailroad bridge. It was to be 300 feet wide for a distance of 9.7 miles and 200 feet from there on, a distance of 1.1 miles, and the contract so provided. Work was to commence within a month after the contractor received notice of the approval of the contract, and was to be prosecuted faithfully and diligently. The specifications, which are made a part of the contract, contained a provision for the retention by the defendant of 10 per cent of all payments made thereunder until half of the work was completed, a fact to be determined by the engineer, and thereafter the plaintiff was to receive payment in full. The work under the contract progressed without any undue friction, and in a manner satisfactory to both parties, until January 1, 1910. As a matter of fact, there was no complaint lodged against the contractor, and none could have been. Subsequent to this time trouble began to develop. The plaintiff fell far below its theretofore efficiency, until at last on September 24,1912, it ceased work entirely, ascribing its difficulties to a distinct change in the character of the material encountered, a difference so violent as to amount, according to the allegations of the petition, to misrepresentation upon the part of the defendant in its specifications. On November 1, 1912, the plaintiff wrote the Secretary of War asking to be relieved from its contract, and predicating its request upon the substantial difference between the character of the material to be dredged, as shown in the specifications, and that actually encountered in the performance of the work, stating the difference to be such as to make the cost of removing the same inequitable and unjust to the contractor. The Chief of Engineers declined to accede to plaintiff’s request, notified the company to proceed with the work, and upon its failure to do so annulled the contract on March 14, 1913. The contract provided for such, a proceeding, and paragraph 4 thereof authorized the defendant to relet the work and recoup the difference in price, if any, from the first contractor. This course was followed by the defendant. The plaintiff company had been paid for all work done up to September 24, 1912, except an alleged mistake in computation included in this suit, and $33,998.15 retained percentages withheld by the defendant under the provisions of the contract. This suit is for the recovery of both items, the $33,998.15 retained and $14,543.26, an alleged underpayment. We have not said anything about the supplemental agreement between the parties executed August 3,1911, because it in no way varies the issue except argumentatively.

If the facts in this case correspond with the facts in the cases of Christie v. United States, 237 U. S. 234, and Hollerbach v. United States, 233 U. S. 165, the plaintiff is entitled to judgment. Of course, such a result might follow, even though there be no such similarity. Inasmuch, therefore, as the contention made indispensably involves a discussion of the facts, the court has endeavored to find them from a record not especially contradictory nor involved.

The contract sued upon was the result of a public advertisement for bids to do the contemplated work. As usual, the defendant made public and available to bidders such information respecting the work as it possessed, which bidders might call for. The plaintiff company was manifestly anxious and deeply concerned in its efforts to procure the contract, for its bid for the same was so decidedly beneath all others that it is inconceivable that experienced engineers would have dreamed of the undertaking at such a figure, unless some other and outside consideration inspired it. The plaintiff company, prior to submitting its bid, had before it subdivision (c) of paragraph 19 of the specifications, as follows :

“ Character of Material. The material to be excavated is believed to be mud, sand, and gravel, but bidders are expected to examine the work and decide for themselves as to its character and make their bids accordingly, as the United States will not guarantee the accuracy of this description. The price per cubic yard will cover the removal of all material encountered except ledge rock.”

It also bad before it borings or soundings shown on three separate sheets, 143 in number, made in November and December, 1906, disclosing conditions found over a distance of 10.8 miles, and conveniently divided into three separate areas, the first sheet disclosing borings in 42 separate places over a distance of 2.2 miles, the second indicating the result at 32 separate places over a distance of 3.1 miles, and the third showing the balance of the 143 over a distance of 5.5 miles. In addition to the above three blue prints, a report made by the Chief of Engineers of the Army to Congress and published as a public document was furnished to the contractor by the defendant, in which it was said, among other things: “ On the whole, the dredging would be comparatively easy and the cost moderate.” Irrespective of this information, the plaintiff company in its proposal, without solicitation or requirement, voluntarily stated that it possessed “ full knowledge of the kind, quantity, and quality of the work required,” and agreed to do the work for 16J cents per cubic yard, when the estimate of cost prepared by the engineers ran from 26 cents, for the lower, to 32 cents for the upper reaches of the area, and no other bidder had submitted a figure less than 22 cents.

Fraud and misrepresentation is frequently difficult to prove, but in this class of cases, wherein it most generally is to be deduced from printed documents, maps, and blue prints, and the influential effect of the same upon bidders, the conclusion as to its existence or nonexistence is not quite so involved as the reconciliation and analysis of oral testimony, keeping in mind, of course, that we are speaking of constructive rather than actual and intended deceit. However, the rule is not to be relaxed. The court must not only find the representations to have been false, but, being so, did actually mislead the bidder who obtained the contract. Christie, v. United States, sufra.

The burden of proving misrepresentation rests upon the party making the allegation. It is not to be presumed, and one may not, either under the Christie or Hollerbach case, simply show a different condition in some respects from that which the chart or blue prints of borings discloses, and rest his case upon the theory that the court must infer a misrepresentation. There must be some degree oí culpability attached to the makers of the maps and charts, either that they were knowingly untrue or were prepared as the result of such a serious and egregious error that the court may imply bad faith. The many contract cases in this court, too many to cite, sustain this principle.

The plaintiff had in its employ as manager and superintendent of its dredging plant Mr. John A. Seeley, an exceedingly competent man. Mr. Seeley made the estimate upon which the company made its bid, and had entire charge of the dredging operations. Mr. Seeley had been for 11 years engaged in dredging over this identical area; he was thoroughly familiar with all local conditions, and while he had not dredged a channel deeper than 12 feet over this same course, he had completed one to that depth, and in so doing it is incredible that he was unfamiliar with the common character of the material to be dredged. Doubtless it was he who wrote into the plaintiff’s proposal that the company was familiar “ with the kind, quantity, and quality of the work required.” Was Seeley, and thereby the plaintiff, deceived by the blue pxúnts? It might well be argued that one of his long experience would not commit the monumental blunder of doing the work called for at such a reduced price unless he was misled as to the character of the material to be removed and the difficulties to be apprehended in performing the contract. The force of such a contention is effectually dispelled when Seeley’s relation to the contract and those interested in the venture, as shown by the record, discloses itself. The origin and organization of the plaintiff company and its affiliation with the Newark Meadows Improvement Co. is fully set forth in Finding VI. The ownership of the two companies was identical, and it was the indisputable purpose and intention, as a part of a large and important enterprise, to secure this contract — hence the obviously low bid — in order to secure a sufficient quantity of material to fill in and fill up a large area — about 3,500 acres — of swamp lands adjoining the lower reaches of the area to be dredged, acquired by the Newark Meadows Improvement Co., and at the time practically worthless unless filled in. It is true the Newark Meadows Improvement Co. agreed to pay 10 cents per cubic yard for the material furnished, but this was in the end more apparent than real. As a matter of fact, proven and not seriously disputed, the enterprise as a whole resulted in immense profits, as shown in Finding X, notwithstanding the dredging contract was performed to the date of abandonment at a serious loss There was nothing wrong in this transaction, and there is no purpose to ascribe any irregularity to it. The parties had a perfect right to undertake it; nevertheless, it is a most potent factor in the determination of the issue as to being misled by the representations of the Government. It seems hardly possible to conclude that Seeley was misled as to local conditions, about which he knew as much as the Government officers. As to the borings themselves, the way employed to make them, appears in Finding IV. It was not unusual. The character of material dredged within the limits of the borings shown on blue print No. 1 is not complained of, except when included in the general average to make up the full percentage of alleged errors. The bor-ings in this stretch of 2.2 miles show “ mud, mud and sand, mud and shells, sand and gravel,” and yet the 10-day reports exhibit a strata of clay along the entire area. Clay is shown along with the above materials, in some instances hard enough to put the pumps of the plaintiff out of commission, and no complaint of any kind or character was lodged with the defendant respecting work in this area. On the other hand, it was done in a most expeditious manner, the quantities dredged being far in excess of the amounts required under the contract, and the same situation obtained as to operations under the second blue print, except that the borings covering this section of 3.1 miles did show the presence of clay. It was not until the plaintiff company had completed fully, or very nearly so, two-thirds of the work, that complaint was made, over five years after it had begun work, and at a time when it became more expensive to operate because so far away from a dumping base. It matters not, in so far as the performance of the contract work is concerned, what was the character of the soil in the first two areas dredged. Surely there was no misrepresentation as to these two areas, for the plaintiff company found the work easy and progress rapid. It claims, and justly so, great credit for efficiency in this respect. It was not until after a very considerable portion of the' work embraced in the third area shown on blue print 3 was done that the plaintiff disavowed the accuracy of the blue prints and entered its protest, an area more than 5 miles from the area already dredged, a considerable dis-tancíe away from the Newark Meadows Improvement Co.’s land, and an area manifestly more expensive to dredge because farther away from the place of deposit.

There is no proof here that the borings did not show exactly what the officers taking them found. While they may not have shown clay as present at each point where the boring were made, they do disclose the presence of clay where clay was found, and in addition show clay present at a sufficient number of places to put the contractor on notice of its presence in the bottom of the channel, and thereby warn him of difficulties to be anticipated. It is not disputed, and may not be, that whenever the steel rod ran upon a bowlder the fact was recorded and the boring apparatus moved to another place for another boring. The record confirms the statement that the material dredged conformed generally to the material indicated by the borings, and no more could be done and no more is required. The facts are totally unlike the record in the Christie case. In the latter case bor-ings were made, and if a log was encountei'ed the officer moved the boring apparatus to a point free from logs and then recorded it as having been made at exactly the point where the log was found, thus leading the contractor to believe that no logs had appeared at this point, when, as a matter of fact, the log was there; had been found but not recorded at all. There can be no misrepresentation in bor-ings recorded as in this case where the record shows beyond doubt that what the borings indicate was correctly and honestly stated on the boring sheets. It would be difficult, even under circumstances a little more favorable to the plaintiff, to hold that an actual mispresentation as to the borings was in all respects the moving and primary cause of plaintiff’s refusal to proceed with the contract. The plaintiff undertook the work at too low a figure, profits were being absorbed, and it was losing money. The contract was growing in burdensomeness, and the plaintiff found it impracticable, although it might have done so, to longer pump its dredged material on the Newark Meadows Improvement Co.’s lands. The plaintiff’s plant was allowed to deteriorate and an accumulating variety of discouraging factors faced the plaintiff if it continued to operate as it had done before. The motive to seize upon most any cause for discontinuance was present.

The plaintiff is suing only for the retained percentages and underpayment, and while it seeks to justify .its procedure and positively disclaims any intent to an actual voluntary abandonment of its contract, and charges the defendant with a breach thereof, no claim is made for damages other than as stated above. This claim we believe to be untenable. The findings show the true state of facts as we view them from the record, with respect to the underpayment claim, and we do not think it necessary to further discuss this item of the claim. It does appear from the evidence that the plaintiff was paid for all the material he was entitled to be paid for under the contract.

It is somewhat doubtful, in view of the facts, whether this suit may be maintained at all under the present status of the corporation. The testimony reveals the fact that before the plaintiff refused to proceed with the contract all stock in the corporation, including the dredging plant, was sold to Frank A. Barnaby for $1,000, including this claim. The charter of the company was forfeited for nonpayment of taxes and the facts incident thereto appear in Finding XII. It may be that the reorganization of the corporation and the election of officers was not in all respects legal. At any rate, there is not sufficient evidence in the record to hold otherwise. The defendant was content to rest the issue on this meager showing of fact, and we are not convinced that we would be warranted in dismissing the case on. this issue alone. The allegations of the petition, not contradicted except as above, disclose the status of the plaintiff, and we have given the facts appearing of record as requested.

The petition will be dismissed. It is so ordered.

Graham, Judge; Hay, Judge; Downey, Judge; and Campbell, Chief Justice, concur.  