
    381 F. 2d 995
    ALLIED CONTRACTORS, INC. v. THE UNITED STATES
    [No. 256-61.
    Decided July 20, 1967]
    
      Andrew B. Kingan, attorney of record, for plaintiff.
    
      Mary J. Turner, with, whom was Acting Assistant Attorney General Oarl Eardley, for defendant.
    
      Before Cowen, Chief Judge, Laramore, Dureee, Davis, Collins, Skelton, and Nichols, Judges.
    
   Per Curiam:

This case was referred to Trial Commissioner Saul Richard Gamer with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in a report and opinion filed on April 19, 1967. Plaintiff has filed no exceptions to or brief on this report and the time for so filing pursuant to the Rules of the court has expired. On June 8, 1967, defendant filed a motion that the court adopt the commissioner’s opinion. Since the court agrees with the commissioner’s findings, opinion and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case without oral argument. Plaintiff is, therefore, not entitled to recover and the petition is dismissed.

OPINION OP COMMISSIONER

Gamer, Commissioner:

Plaintiff entered into a contract with the Army Corps of Engineers for the construction of a “Nike Launching Area” at a site near Davidsonville in Anne Arundel County, Maryland. During construction, two walls collapsed. Plaintiff contends that these walls were constructed by it in strict compliance with the plans and specifications and that their collapse was due only to their erroneous design, for which defendant was responsible. This issuance by defendant of defective plans and specifications, plaintiff argues, amounts to a breach of contract entitling it to recover the additional costs it incurred resulting from the collapse of the walls and their reconstruction, as required by defendant.

On the basis of the record of the trial proceedings herein, it is concluded that plaintiff is not entitled to recover because, even if it is correct in its contention that the walls were erroneously designed, it was obvious, and plaintiff therefore knew or should have known that, considering their nature and character, they would, unless properly supported, collapse under certain conditions, which here materialized. Accordingly, it was plaintiff’s clear obligation to take appropriate protective or precautionary measures to prevent this from happening.

These walls were unusual. They were so-called block masonry walls located on only two sides of a rectangular underground pit. This pit was below, and of smaller dimensions than, another pit. The walls were to be constructed according to a specified planned sequence. First, even prior to the excavation of the pit, wood sheet piling or shoring was to be driven into the earth at the boundary of the pit. After the pit would be excavated up to the sheeting, the block wall (concrete blocks held together with mortar) was then to be built flush against the sheeting. However, the wall extended about 9 inches above the sheeting, the top of the wall thus being in direct contact with earth during such period of construction. The wall was 6 feet, 6 inches, in height, 60 feet long, and only 4 inches thick. A 2-inch subfoundation concrete base was then to be poured. A heavy waterproofing membrane (5 plies) was then to be applied on such base and all tbe way up the inside height of the walls. A 2-foot foundation concrete floor slab was then to be poured on the waterproofed 2-inch subfoundation base, and a 2-foot concrete wall also poured against the waterproofed 4-inch block wall. There was to be nothing between the smooth surfaces of the waterproofed block wall and the 2-foot concrete wall. When completed, the 4-inch block wall and the 2-foot concrete wall together were to form a one-wall-like (i.e., a “monolithic”) structure, with the waterproofing material incorporated within the structure.

Only two of these block walls, located on the opposite sides of the pit, were to be constructed. Thus, during the above-described construction sequence and until the 2-foot wall would be poured against it (and the 2-foot floor slab, which would supply partial support), the walls would stand unsupported by connecting side walls, as in the conventional 4-walled structure, or by any structure on top, or by anything on the waterproofing membrane side f acing the pit. Except for the sheeting and earth on the back side, these long thin walls would thus simply stand without any support.

In the pit in question, plaintiff had by August 4,1954, completed driving the sheet piling, excavating the pit, laying the 4-inch block walls, pouring the 2-inch concrete base, and applying the waterproofing. Heavy rainfall occurred in the area on August 2,3, 5,9, and 10. On the night of August 10, while the south wall was standing in the above-described unsupported position, i.e., prior to the pouring of the 2-foot concrete wall and the 2-foot floor slab, the wall collapsed, falling into the open pit and onto the subfoundation base.

Heavy rain occurred again on the night of August 19. During that night, the wall on the north side of the pit, similarly standing in the same unsupported condition, also collapsed into the pit.

Both walls had collapsed due to the hydrostatic or water pressure exerted behind them and which had been built up as a result of the rains. The pressure simply served to push the walls into the pit, there being no counteracting force of any kind. Although the walls were built against the sheeting, the sheeting was not watertight, nor was it designed to be. It consisted of wood boards driven alongside of each other, with % to 14-inch spaces between the boards, permitting water and silt to penetrate. In addition, since the sheeting did not extend to the top of the wall, the rear of the wall was directly exposed to wet earth.

Plaintiff says it built the walls exactly as called for by the plans and specifications, and that if they were not strong enough to withstand hydrostatic pressure, then it was simply a matter of improper design for which defendant alone was responsible. It contends that a contract drawing contained a “Structural Note” which, properly interpreted, stated that the walls were designed to withstand hydrostatic pressure, a statement upon which it had a right to rely. It points out that the pertinent “Protection” section of the specifications (TP sec. 6-08j (finding 9) ) made no provision for the temporary buttressing or supporting of the walls against hydrostatic pressure due to rain or snow during the course of construction, and that plaintiff fully complied with all of the affirmative requirements which were specified by such section. Thus, attributing its damages solely to defendant’s improperly designed walls, it seeks recovery upon the principles enumerated in such cases as United States v. Spearin, 248 U.S. 132 (1918), Steel Products Engineering Co. v. United States, 71 Ct. Cl. 457 (1931), Stapleton Constr. Co. v. United States, 92 Ct. Cl. 551 (1940), and Warren Bros. Roads Co. v. United States, 123 Ct. Cl. 48, 105 F. Supp. 826 (1952), to the effect that the Government is liable for damages resulting from the issuance of faulty or inadequate plans, specifications, or designs, or for misleading the contractor by erroneous statements contained therein.

Defendant, however, denies that the plans and specifications were in any way defective. It says that the “Structural Note” reference to hydrostatic pressure plainly referred only to the completed structure, and not to uncompleted components during the interim construction period, that plans and specifications do not customarily specify how a contractor should protect his partially completed work during such construction period, and that this is not only the generally recognized responsibility of the contractor, but that the contract here involved specifically provided (Specification GP-11 (finding 9)) that the contractor should be responsible for all work performed until completion and final acceptance, and that it should have been obvious to the contractor that, until the 2-foot concrete walls were constructed against them, the 4-inch block walls would have to have some kind of support against the possibility, in the event of rain, of hydrostatic pressure from the rear.

It is not necessary to determine the dispute between the parties as to whether the design of the walls was in fact improper or as to the technically correct interpretation of the Structural Note concerning hydrostatic pressure. For even assuming, arguendo, the correctness of plaintiff’s contentions in these respects, the “errors” of which plaintiff complains were so obvious that the conclusion is compelled that plaintiff either knew of them or certainly should have recognized them as such.

Here were long, thin walls standing completely unsupported on all sides except the rear. It would almost appear obvious to an inexperienced layman that it would not take much of a push from the rear to topple them. Certainly an experienced contractor such as plaintiff, headed as it is by a competent engineer as its active president, knew or should have known this. The entire record, especially the expert testimony, makes this plain. Hydrostatic pressure is a powerful force. While the walls were standing without support during the above-described interim construction period, it was clear that, if rain of any substantial amount occurred, pressures would begin to be built up and exerted from the rear which the walls could not withstand. This is exactly what happened. The conclusion is inescapable that either plaintiff knew this but decided to take a chance that it would not ram in any substantial amount or that, if the rains did come, plaintiff would be able to get the 2-foot wall or floor slab in before the hydrostatic pressure was sufficiently built up, or that, as sometimes happens, its organization simply slipped up in not recognizing what should have been obvious.

Nor can plaintiff’s present protestations about lack of obviousness be accepted. When, more contemporaneously, it protested the contracting officer’s rejection of its claim which then, as now, was based upon defendant’s alleged dereliction in improperly designing the walls, it flatly stated: “It appears obvious that this four inch wall would not sustain such [hydrostatic] pressure * * * .”

While it may be true, as plaintiff then further contended, that the design of the walls “is a matter over which we did not have any control since the question of design is a function of the engineer [defendant]” and not of plaintiff “as a general contractor,” it is not true that plaintiff was justified in blithely proceeding with its work in the face of obvious and recognized errors. The obligation was cast upon plaintiff to do something about it. It should either have promptly taken up the matter with defendant so that corrections could have been made in the design before the walls were built, or it should simply have taken appropriate steps to support the walls after they were built and until the adjacent supporting 2-foot concrete wall would be poured, or at least until the 2-foot floor slab would be poured, which would give support from the bottom.

While it is, of course, well settled, as the cases plaintiff relies on hold, that “* * * where the government orders a structure to be built, and in so doing prepares the project’s specifications prescribing the character, dimension, and location of the construction work, the government implicitly warrants, nothing else appearing, that if the specifications are complied with, satisfactory performance will result,” J. D. Hedin Constr. Co. v. United States, 171 Ct. Cl. 70, 76, 347 F. 2d 235, 241 (1965), and that “This implied warranty 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 work until completion and acceptance,” United States v. Spearin, supra, at 137, nevertheless it is also well settled that if a contractor knew or should have known of an obvious error in the plans or specifications, he must call it to the attention of the appropriate Government representatives so that proper steps may be taken with respect to the matter. Under such circumstances he cannot claim he was misled. Leal v. United States, 149 Ct. Cl. 451, 460, 276 F. 2d 378, 383 (1960); Ring Constr. Corp. v. United States, 142 Ct. Cl. 731, 734, 162 F. Supp. 190, 192 (1958); Meyerstein v. United States, 133 Ct. Cl. 694, 700, 137 F. Supp. 427, 431 (1956); Ragonese v. United States, 128 Ct. Cl. 156, 162, 120 F. Supp. 768, 770-771 (1954). “* * * [W] hen [the contractor] is presented with an obvious omission, inconsistency, or discrepancy of significance, he must consult the Government’s representatives if he intends to bridge the crevasse in his own favor.” Beacon Constr. Co. v. United States, 161 Ct. Cl. 1, 7, 314 F. 2d 501, 504 (1963). “* * * [A]n experienced contractor cannot rely on government-prepared specifications where, on the basis of the government furnished data, he knows or should have known that the prepared specifications could not produce tbe desired result for £:p * * he has no right to make a useless thing and charge the customer for it.’ R. M. Hollingshead Corp. v. United States, 124 Ct. Cl. 681, 683, 111 F. Supp. 285, 286 (1953).” J. D. Hedin Constr. Co. v. United States, supra, at Ct. Cl. 77. The situation is analogous to that in which a contractor makes an obvious error in his bid of which the Government knew or should have known. Just as the Government must in such a situation take appropriate steps to apprise the bidder of his error, Chernick v. United States, 178 Ct. Cl. 498, 372 F. 2d 492 (1967), so, as the above cases make plain, a contractor who knows or should have known of an obvious Government error must apprise the Government thereof so that appropriate corrective measures may timely be taken.

Plaintiff contends that the very construction design and sequence that were required made impractical any feasible method of bracing or supporting the block walls on the open pit side prior to the pouring of the 2-foot concrete wall because of the danger of damaging the waterproof membrane covering the wall, and also because bracing would interfere with the pouring of the concrete for the 2-foot wall that was to be constructed against the block wall. That part of the pit adjacent to the wall had to be left clear of all construction materials in order to receive the concrete. Only the reinforcing steel for the 2-foot concrete wall could, plaintiff says, occupy such adjacent space and which steel itself would block off any supporting braces.

Although defendant strongly disputes these contentions, arguing that temporary bracing from the open pit side could feasibly be erected, it is plain that, again assuming arguendo their validity, some satisfactory solution nevertheless would have been found had plaintiff timely raised the problem. Indeed, when the walls were reconstructed, plaintiff arrived at the simple solution of anchoring the walls to the sheeting behind them. This was done by driving heavy nails in the mortar between the courses of the blocks. Thus the support came from the rear rather than the open pit side. This simple solution could just as well have been devised before the collapses as after.

For all of the above reasons, the petition should be dismissed.

FINDINGS oe Fact

1. Contract No. DA-18-020-ENG-697 in the sum of $321,584.75 for the construction at a site near Davidsonville, in Anne Arundel County, Maryland, “of Nike I — Launching Area * * * together with all required appurtenant work, complete”, was entered into on May 5, 1954, between plaintiff, an experienced contractor, and the United States, through the Department of the Army, Corps of Engineers.

2. Included in the required contract work was the construction of two large underground storage pits for missiles, designated as “B” and “D” structures, under each of which was a smaller pit whose purpose was to serve as a receptacle for the launching platforms. The whole design, that is, the entire Nike structure, was unusual.

3. To prevent disturbing the 2,000-pound load bearing foundation material supporting the large storage pits, the contractor was required to drive sheet piling, which was to remain in place, at the boundaries of the smaller pits prior to their excavation.

4. The specifications and plans required waterproofing of the entire structure, including the small pits, to prevent seepage of water and condensation, as well as drams around the walls.

5. After excavation of the small pits, the construction sequence was to be as follows: A 4-inch thick concrete block wall was to be laid adjacent to the sheet piling, a 2-inch sub-foundation concrete base was to be poured, membrane waterproofing was to be applied on the 2-inch concrete base and up the inside height of the block walls, after which a 2-foot concrete floor slab and a 2-foot inside concrete wall were to be poured.

6. The contract required the block walls to be tight against the shoring and in constant contact with it. The specifications (Technical Provisions, part IV, sec. 4-08) also required protection of the membrane by an insulation board where backfill or earth was put against it.

7. Standing alone and by themselves (as distinguished from the time when they later became part of the 2-foot inside concrete walls) the 4-inch block walls were not structural members. They were not intended to support loads, either lateral or vertical, or structural members, such as were, for instance, the 2-foot concrete walls. Their principal purpose was to provide a support or backing for the application of the membrane waterproofing. Only 4 inches in thickness, but 6 feet, 6 inches, high, and 60 feet in length, these thin walls could not and were not intended, standing alone, to withstand any substantial amount of hydrostatic pressure. After the 2-foot concrete wall was poured against such 4-inch wall, so that both walls in effect became one (“monolithic” construction), the 4-inch wall would thus constitute a component of the larger wall.

8. The small pits in both “B” and “D” structures contained only two such 4-inch block walls. They therefore stood alone without the support of normally adjoining, concurrently built walls on the east and west sides of the pits, as in the construction of a usual four-sided structure.

9. (a) Section 11 of the General Provisions of the contract provided:

Permits AND RespoNsibilitx por Work, Etc.
The Contractor shall * * * be responsible for all damages to * * * property that occur as a result of his fault or negligence in connection with the prosecution of the work. He shall also be responsible for all * * * work performed until completion and final acceptance, except for any completed unit thereof which theretofore may have been finally accepted.

(b) Section 10 of the Special Conditions of the specifications provided as follows:

PROTECTION OP EXISTING StRUCTITRES, UTILITIES AND Work : Any damage to existing structures or work of any kind, or the interruption of a utility service resulting from failure to comply with the requirements of the clause of the contract entitled “Permits and Responsibility for Work, Etc.”, shall be repaired or restored promptly by or at the expense of the Contractor.

(c) Section 6-08j of tbe Technical Provisions of the specifications, under the headings, “Masonry, Erection, Protection”, provided:

Properly protect surfaces of masonry not being worked on at all times during construction operations. At such time as rain or snow is imminent and the work is discontinued, cover tops of exposed masonry walls and similar surfaces with a strong waterproof membrane well secured in place.

10. Rainfalls occurred in the area during the month of August 1954, on August 2, 3, 5, 9, and 10, which were heavy prior to August 9. Plaintiff conducted continuous pumping operations to keep the site dewatered.

11. Plaintiff completed driving the sheet piling in the small pits, excavated the pits, laid the 4-inch block walls, poured the 2-inch concrete base, and applied the waterproofing membrane to the block walls in both pits by August 4,1954.

12. By letter of August 9, 1954, defendant’s resident engineer informed plaintiff that although the plans indicated that the 4-inch masonry block walls were to be placed against the shoring, there were in some places in the “B” pit spaces of up to 5 inches between the shoring and the walls so that, when the 2-foot concrete wall would be poured, there would be “a possibility” that the 4-inch block wall would shift under the weight of the 2-foot concrete wall against it, which might result in the destruction of the waterproofing on the 4-inch wall. He stated it would be plaintiff’s responsibility to make certain that no damage occurred to the 4-inch wall and the waterproofing membrane on it when the concrete for the 2-foot wall was placed.

13. Plaintiff thereupon, after discussing the situation with defendant’s resident engineer, including the granular material that would be used to fill the voids, filled the voids with sand on August 10,1954, by pouring the sand in from the top of the wall.

14. On the night of August 10,1954, the south 4-inch block wall collapsed inside the pit.

15. The block walls of “D” pit did not collapse although they were subjected to the same rains from August 4 to August 10. On August 10, the 2-foot floor slab was poured in the pit in “D” structure, thereby affording the “D” pit block walls more support than those in the “B” pit.

16. Heavy rain occurred again on the night of August 19, 1954. During the night, the second, or north, block wall of “B” pit collapsed.

17. Defendant required plaintiff to reconstruct the two walls, including the waterproofing membrane, and said reconstruction and repair work was accomplished on both walls by August 25, 1954. Upon reconstruction, plaintiff, after conferring with defendant’s resident engineer, and with such engineer’s knowledge and consent, anchored the walls to the wood sheet piling. This was accomplished by driving heavy nails in the mortar between the courses of the blocks.

18. By letter of October 17, 1956 (over 2 years after the collapse of the walls), plaintiff for the first time presented a formal claim for the additional costs it had incurred due to the collapse of the two walls and their reconstruction. However, plaintiff’s officials had had discussions with defendant’s officials about the matter prior to the presentation of the formal claim. The letter made claim “for extra work * * * concerning the collapse of pit walls not due to any fault or negligence on our part * *

19. By letter of October 24,1956, defendant’s resident engineer denied the claim. He attributed the collapse of the walls on the nights of August 10 and 19, 1954, to plaintiff’s fault, stating that the shoring had not been driven in a true line, leaving air spaces (described as much as 2y2 inches) between the shoring and the wall, and necessitating filling the voids with sand. Since the walls fell thereafter and after it rained, he concluded that the wet sand caused the walls to fall, and that there would not have been such a collapse had the walls been built as indicated on the plans, i.e., with the sheeting and the walls flush against each other. Thus, he attributed the collapse at least in part to the sand pressure behind the walls.

20. By its letter of April 18, 1957 (the long delay is unexplained) , plaintiff denied that it was at fault in any way. It stated that the piling was diligently driven and that the lack of alignment referred to by defendant was not unusual for this type of construction. It further contended that the collapse was not due to any sheeting misalignment but that it was due to hydrostatic pressure which occurred only after the waterproof membrane was placed, and which waterproofing, plaintiff stated, “created considerable water pressure” the effect of which “collapsed the wall.” It stated: “It appears obvious that this four inch wall would not sustain such pressure * * *” but took the position that “this is a matter over which we did not have any control since the question of design is a function of the engineer. As a general contractor we should not be held responsible for the sufficiency of the design for surely we are not to be made the guarantors of an engineering matter which was the function of someone else to perform under the contract.”

However, despite this contention, plaintiff’s claim remained denied.

21. The 4-inch walls themselves (as distinguished from the shoring or any voids between the shoring and the walls) were constructed by plaintiff in compliance with the plans and specifications. No complaint was ever made by defendant with respect thereto, or to plaintiff’s dewatering operations, or to plaintiff’s compliance with the “Protection” provisions of section 6-08j of the Technical Provisions of the specifications.

22. A contract drawing, designated “Sheet 3 of ME 33-15-20”, set forth certain “Structural Notes”, one of which, under the heading “Loading: Walls”, stated that they were “Designed for surcharge effects of 3'-0" fill, vehicles mentioned above [tracked vehicles weighing not over 44,000 lbs.], equivalent fluid pressure of soil & hydrostatic pressure.”

Ultimate FINDING AND CoNClusioNS

23. The walls fell due to the pressure of the water (hydrostatic pressure) behind them, such pressure having been built up due to the rains that occurred prior to their collapse. The sheeting behind the walls consisted of wood boards driven alongside of each other. The sheeting was not watertight nor was it designed to be. There were y8 to y^-inch spaces between the boards. This permitted a certain amount of water and silt to penetrate and thus to come between the boards and the wall. Furthermore, the sheeting did not extend to the top of the pit excavation and the block wall. Thus, about 9 inches of the top of the rear side of the block wall was exposed to earth, making possible direct earth and hydrostatic pressure on the top portion of the wall (although it is true that the hydrostatic pressure would be the greatest at the bottom part of the wall). With this design, and considering the wall dimensions, especially their 4-inch thinness, and their complete lack of support or protection on the open pit side until the 2-foot wall or 2-foot floor slab was erected, it should have been obvious to any experienced contractor that, in the event of any substantial amount of rain occurring prior to the pouring of the 2-foot wall or floor slab, the 4-inch wall would not be able long to withstand any substantial amount of hydrostatic pressure.

CONCLUSION on Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and the petition is dismissed. 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 67(a).
     
      
       Plaintiff had sought a change order for the extra work that the collapse of the walls caused it, but its claim was denied by the contracting officer, the Chief of Engineers, and the Armed Services Board of Contract Appeals (ASBCA No. 6264). After United States v. Carlo Bianchi & Co., 373 U.S. 709, decided June 3, 1963, defendant objected to holding a trial in this case, relying on the finality of the Board decision denying the change order. However, by order of May 13, 1964, the commissioner ruled that, since one of the bases of the claim was that defendant had issued defective plans and specifiea-tions, which -would amount to a breach of contract, the Birnichi doctrine would not serve to deprive plaintiff of a trial in this court, and by order of December 14, 1964, defendant’s request for a review of the commissioner’s ruling was denied by the court, but without prejudice and the case remanded to the commissioner for further proceedings in the light of the court’s opinion in Utah Constr. & Mining Co. v. United States, 168 Ct. Cl. 522, 339 F. 2d 606, decided December 11, 1964. Since the court’s Utah Gonstr. decision affirmed the practice of holding trials de novo in suits founded upon breach of contract despite the agency’s findings on the issues involved in the dispute, it was concluded that the court’s Utah decision would not affect the commissioner’s original ruling permitting plaintiff to proceed with a trial in this court, and such trial proceedings were held on March 15,1966.
      Although the Supreme Court’s subsequent partial reversal of Utah (384 U.S. 394) on June 6, 1966, as well as its decision on the same day in United States V. Anthony Grace & Sons, Inc., 384 U.S. 424, served to cast doubt upon the propriety of conducting trial proceedings in this court in a case such as the instant one where plaintiff had sought change order relief before the agency on the very> “breach of contract” claim for which its petition was filed herein, defendant, in view of the fact that a trial has already been held, now “waives whatever rights it may be deemed to have under the recent Supreme Court decisions in Utah and Grace in the interests of justice and expedition of the case” (Defendant’s Requested Findings and Brief for the Commissioner, p. 1, n. 1).
     
      
       Furthermore, aa to the south wall, the situation, may have been aggravated somewhat by. the filling with sand on August 10, the very day the wall collapsed, of some small voids between the sheeting and the wall. Defendant argues that under the plans, the wall was supposed to have been flush against the sheeting, that the existence of the voids was therefore attributable to improper construction practices on plaintiff’s part, and that the corrective sandfilling technique adopted by plaintiff was also improper in that it served to apply even more pressure against the wall from the rear, thus contributing to the collapse. Defendant says that its resident engineer pointed out to plaintiff that the existence of the voids was due to plaintiff’s improper construction and that plaintiff’s corrective action was taken in response to the engineer’s complaint.
      However, the aggravating effect of this additional factor is somewhat problematical since the subsequent collapse of the north wall occurred without, insofar as the record indicates, any such immediately contributing factor. The engineer’s fear was that, unless the voids were filled, there’ might be wall movement backward when the 2-foot concrete wall was poured against it, with consequent damage to the waterproof membrane. It does not appear that he was thinking, in this connection, of a forward fall into the pit, such as actually occurred.
     
      
       The Note, headed “Loading: walls,” stated that the walls of the structure were “Designed for surcharge effects of 3'-0" fill, vehicles mentioned above [tracked vehicles weighing not over 44,000 lbs.], equivalent fluid pressure of soil & hydrostatic pressure.”
     
      
      
         Plaintiff saya that even if the Note is to be construed as applying only to completed structures, as defendant contends, the 4-inch walls were “completed" when they collapsed, thereby making the Note applicable to them even under defendant’s interpretation.
      Although, in view of the disposition of this ease on other grounds, no resolution of this dispute need be made, it would appear that defendant’s interpretation is the more reasonable because, although these “walls” were in a sense “completed,” they were, in essence nothing more than temporary structures which would ultimately become part of the walls that would result after the 2-foot concrete walls would be poured. The “monolithic” construction would thus result in only one “wall” on each side of the pit. Thus, the 4-inch wall would stand in its so-called “completed” state only temporarily and until the waterproofing could be applied to- it and the 2-foot wall would be poured against it. However, the issue as to whether, under the “rule of ambiguity,” plaintiff’s interpretation is sufficiently reasonable so as to warrant acceptance, is not decided.
     
      
       There was another pit (the “D” pit, as distinguished from the pit in question, the “B” pit) with similar block walls. The block walls of. the “D” pit did not collapse. On August 10, the 2-foot floor slab was poured in the “D” pit, thereby affording support for the block walls at the bottom, where the hydrostatic pressure would be the greatest.
     
      
       What is inexplicable is why it was net at least applied to the north wall after the south wall collapsed.
     
      
       In view of this disposition of the case, no findings have been made concerning the increased costs incurred by plaintiff.
     