
    No. 683
    PITT CONST. CO. v. ALLIANCE (City)
    U. S. Appeals, 6th Circuit
    No. 4098.
    Decided April 9, 1926
    27. ACTION — Where damages are sought for misrepresentation on plans, by which a contract was induced, theory of action not ' changed although damages are computed on the basis of compensation rates for extra work under the contract.
    774. MISREPRESENTATION — City liable as for substantial misrepresentation where blue prints show that structure would be located with reference to existing ground surface and the distance from such surface fo bottom was about nine feet instead of only three feet.
   DENISON, C. J.

The city of Alliance made plans for increasing its waterworks by building, among other things, a new concrete basin. The bid of the Pitt Construction Co. having been accepted, a contract was made. From plans and specifications submitted to the company, it became apparent that certain excavations to the extent of nine feet in depth had to be made in order to support the exterior concrete walls of the basin below the original surface.

When the bottom of the basin was located, under the city engineer’s directions, the company found the excavation to be about nine feet instead of three as shown by the plans. As a result of this the company claimed it incurred an extra expense of $9,000 in moving the dirt necessary to make the back-fill. A suit was brought in the District Court to recover this amount and some smaller items as damages resulting from misrepresentation of facts made by the city in its advertisement and specifications.

Attorneys — E. H. & W. B. Turner, Dayton, and Hart & Koehler, Alliance, for city; F. C. Hunter & Curtis M. Shetler, Alliance & Day & Day, Cleveland, for Company.

It was claimed by the city that' the blue prints did not amount to a misrepresentation of facts; that the company assumed the risk; that the company was charged with notice of the error and that the claim was barred by provisions of the contract. The lower court directed a verdict for the city. Error was prosecuted to the Circuit Court of Appeals, which held:

1. The blue print in question is an express representation to the contractor that the proposed structure would he located with reference to the existing ground surface as shown in the cross sections thereon.
2. The drawing shows that the distance from the surface to the bottom of the structure as it is to he built is about nine feet.
3. The tolerance with which “about” is received does not extend to anything like the discrepancy here shown; and there was a substantial misrepresentation for which the city is liable.
4. The contention that the contractor asscmed the risk is unsound as it is uncertain whether it could be ascertained that 1026 feet above sea level would have been three feet below the ground and not nine feet.
5. The city attempted to- show that the specifications of another set of plans were sufficient to give notice to the contractor of a discrepancy in the blue prints here involved; so that proof that the first set was inaccurate is admissible, merely being in rebuttal of a defense presented by the city at the trial.
6. The provisions in the contract that there can be no compensation for extra work unless by special arrangement, does not control here. The suit is not to recover for extra work; but to recover damages for the misrepresentation by which the contract was induced.
7. Although the damages sought by the company are computed on the basis of 1he extra excavation rates provided in the contract, the character of the actidn is not changed thereby.

Judgment reversed and cause remanded.  