
    COLLINSON P. E. BURGWYN v. THE UNITED STATES.
    [No. 19715.
    Decided March 27, 1899.]
    
      On the Proofs.
    
    The claimant contracted to dredge and remove logs and stumps from the Cape Fear Eiver and relied upon specifications furnished hy the defendants, which contained arithmetical errors relating to the quantities of material to he excavated, by reason of which he underestimated the cost of the work when bidding.
    I. Where a contractor alleges loss hy reason of errors in specifications submitted for the information of bidders he must show that the Government became a guarantor of the correctness of the approximate quantities of material to be handled.
    II. Where specifications for dredging contain no words indicating warranty that the material to be excavated is of a definite or even an approximate quantity and the factors for ascertaining the quantities are given and are open to bidders to make estimates for themselves, no guaranty can be implied.
    
      
      The Reporters’ statement of tbe case:
    ' The following are the facts of the case as found by the court:
    I. On August 12,1892, the defendants, by W. S. Stanton, major, Corps of Engineers, United States Army, advertised for sealed proposals for dredging in the Cape Fear River, below Wilmington, in North Carolina, according to certain specifications and instructions attached to and forming part of said advertisement.
    II. The claimant with others became a bidder for the said work, and his bid was accepted and the contract therefore was, on the 3d day of November, 1892, entered into in writing between him and the defendants, through their agent, said Stanton; which contract, with the advertisement, specifications, and the instructions forming a part- thereof, are made part of the petition herein.
    III. According to the specifications of the said contract, the said claimant agreed to do the work of dredging in and of removing the logs and stumps from the Cape Fear River below Wilmington in accordance with the terms of the said specifications; and the said Stanton, as agent of the United States, agreed to pay for the said work as follows: For dredging at Snows Marsh Shoal, 12.49 cents per cubic yard, measured in scows; for dredging at Reeves Point, Midnight, Old Brunswick Cove, Lilliput Creek, Keg Island, Log and Big islands, and Brunswick River Shoals, 12.55 cents per cubic yard, measured in scows; and for logs and stumps the prices prescribed in paragraph 11 under “Details of the work” in the ' said specifications. It was further mutually agreed that the said work should amount to not less than $325,000 nor more than $140,000.
    IY. On the 25th of November, 1892, the contract, as approved by the Chief of Engineers, was sent to the claimant by the said Stanton, and on the 28th of November, 1892, the claimant acknowledged the receipt of the same. On the same day he commenced to make preparations for the execution of the said work, and on the 8th day of December following he started his plant from Virginia to the Cape Fear River, but owing to the violence of the storms off the coast of Cape Hatteras it was totally wrecked, and only one scow was recovered and gotten to Wilmington in the early part of March, 1893, when the actual work of dredging was at once begun.
    Y. Thereafter, to wit, March 18,1894, said claimant and the defendants, through their agent aforesaid, entered into a supplemental agreement as follows:
    “Articles of agreement entered into this eighth day of March, eighteen hundred and ninety-four (1894), between Major W. S. Stanton, Corps of Engineers, U. S. Army, of the first part, and O. P. E. Burgwyn, being supplemental to articles of agreement dated November 3,1892, entered into between the said Major W. S. Stanton and saidO. P. 15. Burgwyn, of Bichmond, of the county of-, State of Virginia, of the second part:
    “This agreement witnesseth that, in conformity with the advertisement and specifications hereunto attached, and which form a part of this contact, the said party of the first part, for and in behalf of the United States of America, and the said party of the second part, for himself, his heirs, executors, and administrators, have mutually agreed and by these presents do mutually covenant and agree, to and with each other, as follows:
    “That the quantity of work, namely, in amount not less than one hundred and twenty-five thousand dollars ($125,000) nor more than one hundred and forty thousand dollars ($140,000), which in the aforesaid articles of agreement of November 3, 1892, the said party of the second part agrees to do, and which the said party of the first part agrees to do, and which the said party of the first part agrees to pay for, shall be, and is hereby, reduced so that the amount of work both hitherto done and hereafter to be done under the aforesaid articles of agreement shall be in the aggregate, aud at the prices for dredging-specified in the aforesaid articles of agreement, in amount not less than ninety-eight thousand dollars ($98,000) nor more than one hundred and thirteen thousand dollars ($113,000). As the curtailment made by these supplemental articles of agreement of the amount of dredging done and to be done under the aforesaid articles of agreement dated November 3, 1892, is for the advantage of the United States, and for the furtherance of the improvement of the Cape Fear Biver, inasmuch as it will make available sufficient funds to provide a suction dredging steamer for dredging at Snows Marsh Shoal in the Gape Fear Biver and on the bar at the river mouth in place of the United States suction dredging steamer Woodbury, damaged by fire December 16,1893, in consideration thereof it is hereby expressly understood and agreed that if the amount of work hitherto done and in future to be done by the party of the second part under the aforesaid articles of agreement, dated November 3, 1892, shall together not exceed the minimum amount, ninety-eight thousand dollars ($98,000), the party of the first part shall not under the aforesaid articles of agreement require the party of the second part to do any more dredging at the shoal at Snows Marsh, where the dredging is of a more difficult character than at any other locality where dredging is required under the aforesaid articles of agreement: Provided, however, 
      That if required by the party of the first part, dredging’ or redredging shall hereafter be done by the party of the second part at Snows Marsh Shoal under the aforesaid articles of agreement, but only upon the condition and with the special understanding and agreement that such dredging or redredging hereafter at Snows Marsh Shoal shall wholly be in addition to the minimum amount of ninety-eight thousand dollars’ ($98,000) worth of work hitherto done and to be done under the aforesaid articles of agreement, such dredging or redredging hereafter at Snows Marsh Shoal therefore to inure wholly to the reduction of the curtailment herein provided for the amount of work to be done under the aforesaid articles of agreement of November 3,1892. It is also understood and agreed that nothing in this supplemental agreement shall be construed as modifying the aforesaid articles of agreement of November 3,1892, otherwise than as above set forth.
    “This contract shall be subject to approval of the Chief of Engineers, U. S. A.
    • “ In witness whereof the undersigned have hereunto placed their hands and seals the date first hereinbefore written.
    “W. S. Stanton, [seal.]
    “ Major, Corps of Engineers, U. S. A.
    
    “C. P. E. BURGWYN. [SEAL.]
    “Witnesses:
    “ Henry J. Olaric, witness.
    “ Henry J. Glare, witness.
    “ Executed in quintuplícate.
    “ Approved March 20, 1894.
    “ Thos. Lincoln Casey,
    
      '“Brig. Gen., Chief of Engineers.
    
    “We, the subscribers hereto, J. A. Burgwyn, of Jackson, North Carolina, and James JR. Werth, of Richmond, Virginia, being bondsmen jointly and severally in the sum of thirty-five thousand dollars ($35,000) to a contract dated November 3, • 1892, between Major W. S. Stanton, Corps of Engineers, U. S. A., and C. P. E. Burgwyn for dredging in the Cape Fear River below Wilmington, N. O., to which contract the within articles of agreement are supplementary, having carefully examined the said supplementary articles of agreement, do freely and willingly consent to its being'made and forming a part of said original contract, for the faithful performance of which we are bound as aforesaid.
    “• In testimony whereof we hereunto set our hands and seals.
    “ J. A. Burgwyn. [seal.
    “ James R. Werth. [seal.’
    “Harry B. Barer, witness.
    “R. T. Wilson, witness.”
    
      Thereafter, to wit, October 31,1891, said parties entered into a further supplemental agreement, as follows:
    “Articles of agreement entered into this 31st day of October, eighteen hundred and ninety-four (1894), bet.ween Major W. S. Stanton, Corps of Engineers, U. S. Army, of the first part, and C. P. E. Burgwyn, of Bichmond, Henrico County, Virginia, of the second part, being supplemental to original articles of agreement which were entered into between the said parties on November 3, 1892, and approved by the Chief of Engineers November 21,1892, and being also supplemental to articles of agreement, themselves supplementary, dated March 8,1894, and approved by the Chief of Engineers March 20,1894, and by the Secretary of War March 23,1894.
    “This agreement witnessetli that, in conformity with the aforesaid original articles of agreement, the said Major W. S. Stanton for and in behalf of the United States of America, and the said'O. P. E. Burgwyn for himself, his heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows:
    “Whereas the amount of dredging, from one hundred and twenty-five thousand to one hundred and forty thousand dollars’ worth, in the Cape Fear Biver, N. C., provided for in the aforesaid original articles of agreement of November 3,1892, was reduced by said supplementary articles of agreement of March 8,1894, to from ninety-eight thousand to one hundred and thirteen thousand dollars’ worth in order to provide funds with which to build a dredging steamer for use on the said Cape Fear Biver; and whereas, by act of Congress of August 17, 1894, funds with which to build the aforesaid dredging steamer have become available; and whereas it is for the mutual benefit of the U. S., the aforesaid party of the first part, and of O. P. E. Burgwyn, the aforesaid party of the second part, to dredge in the said Cape Fear Biver to the full amount, or approxi- - mately the full amount of $140,000 provided for in said original articles of agreement, it is therefor mutually agreed that the aggregate of the amounts of dredging hitherto done and hereafter to be done under said original and said supplementary articles of agreement shall be as nearly as practicable, but shall not exceed, the said specified maximum amount of $140,000, at the prices specified in said original articles of agreement for dredging at Snows Marsh Shoal and at other shoals below Wilmington, but with the special understanding that the amount of dredging which it is hereby agreed shall be restored to be done shall be done in such relative quantities at Snows Marsh Shoal and at the other shoals below Wilmington as the said party of the first part shall direct.
    “ It is further mutually agreed that nothing in this supplemental agreement shall be construed as modifying the aforesaid original articles of agreement otherwise than as above and hereinafter seb-forth as to date of completion of this agreement.
    “The said party of the second part shall complete the said dredging to the said amount of $140,000 or thereabouts (not exceeding it), on or before the 31st day of May, eighteen hundred and ninety-five (1895).
    “ This contract shall be subject to approval of. the Chief of Engineers, U. S. A.
    “ In witness whereof the undersigned have hereunto placed their hands and seals the date first hereinbefore written.
    “W. S. Stanton, [seal.]
    “ Major of Engineers, U. 8. A.
    
    “0. P. E. Burgwyn. [seal.]
    “Witnesses:
    “Henry J. Clark.
    “Mrs. J. R. Werth.
    “J. Clements Shaker.
    “Executed in quintuplicate.
    “Approved November 3,1894.
    . “Thos. Lincoln Casey,
    “ Brigadier- General, Chief of Engineers.
    
    “We, the subscribers hereto, J. A. Burgwyn, of Jackson, North Carolina, and James It. Werth, of Richmond Ya., being bondsmen jointly and severally in the sum of thirty-five thousand dollars ($35,000) to a contract dated November 3,1892, between Major W. S. Stanton, Corps of Engineers, Cl. S. A., and C. P. E. Burgwyn, for dredging in the Cape Fear River below Wilmington, N. C., to which contract the within articles of agreement are' supplementary, having carefully examined the said supplementary articles of agreement, do freely and willingly consent to its being made and forming a part of said original contract, for the faithful performance of which we are bound as aforesaid.
    “ In testimony whereof we hereunto set our hands and seals.
    “J. A. BURG-WYN. (SEAL.'
    “James R. Werth. [seal.’
    “C. H. Pate.
    “Mrs. J. R. Werth.
    “J. Clements Shaker.”
    No other additional supplemental or amendatory contract was entered into between the parties in relation to this work. All the work done by said claimant was done under the terms of said original contract.
    
      VII. That the full maximum sum provided to be earned by tbe claimant upon this work under the said original contract, to wit, the sum of $140,000, has been fully paid to the claimant by the defendant, and by said claimant accepted from month to month and year to year, as the work progressed, without any objection or protest on hjs part, as in full payment for the work performed by him, nor did said claimant, at any time during the progress of said work, ever notify any officer or agent of the defendants that he expected or intended to claim any additional sum of money or any extra rate of pay on account of said work.
    VIII. In the specifications concerning the numerical quantities of material to be excavated opposite Beeves Point, across Midnight Shoal, at Old Brunswick Cove, opposite Lilliput Creek, opposite Keg Island, at Log and Big islands, and opposite Brunswick Biver the quantities of excavation were erroneously given, in this, that in being overstated they indicated a greater depth of the material to be excavated in a given area than in fact existed, whereby in the prosecution of the work, and to entitle the claimant to the compensation provided for in the contract, it became necessary for him to move his dredging machines over a more extensive area than that stated in said specifications, thus increasing to him the cost of the work more than $3,000.
    IX. The errors aforesaid were discovered prior to the opening of the bids for said work and were made known to all the bidders, including a representative of the claimant, who was then and there present, but he did not withdraw or change the claimant’s bid on account thereof.
    X. The claimant in making his bid relied upon the specifications prepared by the defendant’s officer, without verifying the same in respect of the quantities to be dredged or making any investigation to ascertain the correctness thereof. The maps of the shoals, showing the soundings and depths and other data in the office of the engineer officer in charge, were open to his inspection and verification, as they were to all bidders, some of whom discovered said errors and made their bids accordingly.
    
      Mr. John Goode for the claimant:
    The complaint is that, relying upon the good faith of the defendants and the correctness of the specifications which formed-a part of the contract, be entered into tbe said contract, and after be bad commenced tbe work of dredging, be discovered grave errors in tbe numerical quantities as given by said specifications wbicb changed entirely tbe nature and condition of tbe work to be performed, and materially increased its cost. I insist that it would be inequitable and unjust to permit tbe defendants to escape responsibility for tbeir serious mistakes by taking shelter behind paragraph 33 and paragraph 1 of specifications on details of work. Tbe specifications containing tbe errors of wbicb we complain are as much a part of tbe contract as tbe paragraphs relied upon by defendants’ counsel. The articles of agreement entered into on tbe 3d of November, 1892, expressly provide that the specifications attached shall form a part of tbe contract. These specifications give tbe length of tbe dredging, and the number of cubic yards required to be removed at each shoal. Tbe claimant under tbe contract bad a right to rely upon tbe correctness of those specifications.
    In tbe case of Kennedy v. the United States (24 C. Ols. R., 122), Judge Weldon in delivering the opinion of tbe court, says:
    “These contracts in analogy to most contracts relative to tbe construction of public improvements and in relation to large private enterprises, give tbe engineer in charge extraordinary power of supervision, and while such interests seem to require that power in tbe bands of the superintendent, tbe exercise of tbe power is always subjected to judicial scrutiny when tbe rights of tbe parties become the shbjeet-matter of litigation.
    I submit, tbe weight of tbe evidence does not show that tbe existence of tbe errors was made known before the opening of tbe bids, but that it does show that they were unknown to the claimant at tbe time be executed tbe contract.
    
      Mr. George II. Gorman (with whom was Mr. Assistcmt Attorney-General Pradt) for tbe defendants.
   Peelle, J.,

delivered tbe opinion of tbe court:

This action grows out of tbe contract, made part of tbe petition herein, entered into November 3,1892, by tbe claimant with Maj. W. S. Stanton, Corps of Engineers, United States Army, acting for and on behalf of tbe defendants for dredging in and removing tbe logs and stumps from the Cape Fear River, below Wilmington, in the State of North Carolina.

The work was to be done in accordance with tbe specifications furnished by the defendants for the information of bidders as set forth in the advertisement for sealed proposals made part of the contract.

The gist of the action disclosed by the findings is that the claimant, in making his bid for the work, relied upon the specifications furnished by the defendants and that the specifications so relied upon contained errors in respect of the numerical quantities of material to be excavated, by reason of which, to entitle the claimant to the compensation provided for in the contract, it became necessary for him to move his dredging machines over more extensive areas than those stated in the specifications, thereby increasing the cost of the work to his damage.

To entitle the claimant to recover, he must show that the Government, by the specifications submitted for the information of bidders, thereby became a guarantor in respect of the correctness of the approximate quantities of material to be excavated.

Paragraph 33 of the specifications, under the head of “ General instructions for bidders,” reads:

“ It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders are expected to examine the drawings and are invited to make the estimate of quantities for themselves.”

The foregoing was intended as notice to the claimant that the quantities of materia] to be excavated were approximate only, and he was therein further notified that, whether the quantities so approximately given should turn out to be more or less, no claim should be made by him against the United States on account thereof; and then, to guard against being misled by such approximate quantities, bidders were, as therein stated, expected and invited to examine the drawings and make estimates for themselves.

Had this been done, there can be no question but that the errors complained of would have been discovered by the claimant, as they were by other bidders.

The specifications, under the head of “Details of the work,” in the first paragraph thereof, recite the work to be done — i. e., “to deepen to 18 feet at mean low water * * * the present channel through eight shoals, aggregating 58,300 feet in length.”

And, as a basis from which to work, the length, width, and depth theretofore dredged in each of the shoals, together with the character of the materials removed therefrom, are particularly given; and so the length, width, and depth to be dredged are stated with equal particularity, but the quantities of materials to be removed are stated as approximate only.

In other words, the specifications show that the channel of a given length and width through the shoals had been dredged a depth of 16 feet at mean low water, while the work to be done as therein provided was to deepen the channel to 18 feet a “uniform width, to be prescribed by the engineer in charge, through all the shoals.”

To illustrate, take the shoal described:

“ Second. Opposite Beeves Point, 17 miles below Wilmington, a channel in one straight reach has been dredged to the full width of 270 feet and depth of 16 feet for a length of 700 feet. The material removed was principally sand and mud in various proportions. No logs or stumps were found. To obtain a depth of 18 feet will require dredging for a length of about 2,000 feet, and if dredged to the width of 100 feet, should funds allow, will require the removal of, approximately, 24,000 cubic yards.”

By making computation upon the basis there given it will readily be seen that to excavate 24,000 cubic yards within the area stated would require dredging to a depth of more than 3 feet, whereas by the specifications only 2 feet were required, thus showing an error in the quantity stated of more than one-third.

The order in which the shoals were to be dredged, as well as the width thereof, were, by the terms of the specifications, subject to be varied by the engineer in charge; and any “ excess or deficiency in depth and width” was to be determined by him. So that the claimant when he made his bid was, by the terms of the specifications, given all the information necessary to enable him to make his bid understandingly.

No information regarding the specifications or work to be done thereunder was withheld from the claimant. On the contrary, in addition to the information conveyed by the specifications, the errors complained of in overstating the quantities of material to be excavated in the several shoals were by the engineer made known to the bidders, including a representative of the claimant who was present, before the bids were opened, but tbe claimant’s bid was not changed or withdrawn on account thereof.

As to the legal effect of such notice and whether the conversation in relation thereto was merged in the contract, as previous negotiations varying the terms of a written contract ordinarily are, we deem it unnecessary to pass upon in the view we take of this case. See Brawley v. United, States (96 U. S. R., 173).

The errors consist in this, that the defendants’ officer, while giving a correct basis for computation, stated an erroneous result in respect of the quantities of material to be excavated.

It is as if he had correctly itemized an account and then made a mistake in his addition.

All the factors for the computation were correctly given and were open to bidders, and they were expected and invited to make computations for themselves.

They were by the terms of the specifications “cautioned to satisfy themselves of the character of the material and of the conditions of the work.”

To uphold the claimant in his contention in the face of the specifiations inviting bidders “to make the estimate of quantities for themselves,” some of whom did so and framed their bids accordingly, would be giving the claimant an undue advantage over his competitors in securing the contract, with a right of action over against the Government for any loss he might have sustained by reason of his own neglect in not discovering the errors of which- he complains. To so hold would in our opinion tend to defeat the purpose of the law requiring public works to be let by advertisement to the lowest responsible bidder. And this we say though no notice had been given to the claimant concerning the discovery of the errors before the bids were opened.

During the progress of the work the defendants’ engineer in charge and the claimant entered into the supplemental agreement of March 8,1894, set forth in the findings, whereby the claimant agreed that in the respect of the quantity of work done and to be done under the original contract to entitle him to not less than $125,000, nor more than $140,000, the same might be reduced so that the compensation should be not less than $98,000, nor more than $113,000.

And thereafter, on October 31,1894, the parties entered into tbe further supplemental contract; set out in the findings, whereby it was agreed that the dredging to the full amount of $140,000, provided for in the original contract so reduced as aforesaid, should be restored; and the claimant, though he avers in his petition that he discovered the errors he complains of in January, 1894, signed that contract without protest or objection, and performed the work for which he was paid the maximum compensation as aforesaid.

A question somewhat similarJ;o the one involved in this case was passed upon recently by the Supreme Court of the United States in the case of James JS. Simpson et al. v. The United States, (172 U. S. B.., 372), affirming the judgment of this court in dismissing the petition.

In that case an appropriation had been made for the construction, among others, of a dry dock at the Brooklyn Navy-Yard, and theNavy Department directed that the civil engineer at the yard should, among other things, have borings made to “ ascertain the nature of the soil to be excavated for the pit or basin of the dock,” and also to ascertain “ to what depth, if any, below the line of water mark it will be necessary to have the piling driven to secure a proper foundation for the structure.”

Pursuant to such instructions, the engineer made an examination of the soil and caused borings to be made “to a depth of from 39 to 46 feet.” The result of these borings was delineated on a profile plan purporting to show the character of the underlying soil, “which indicated that the soil at the depth stated was stable and contained no quicksand.”

The advertisement for proposals contained no detailed plans for the work, but bidders were “invited to submit plans and specifications” therefor; and “for information in regard to the location and site” they were referred to the commandant of the navy-yard.

Upon the examination and borings so made by the engineer showing a stable soil, the contractors, without making any examination for themselves, relied and made their bid, and with it submitted specifications, providing, among other things, that the dry docks should be located “upon available sites to be provided by the Government.” Their bid and plans were accepted, and a contract was entered into accordingly.

After the work had progressed for some months it was ascertained that, a “sand stratum” underlay the area of the site, “beginning at a depth of from 26 to 30 feet below the grade of the site and extending to a depth of 70 feet below the same,” by reason of which the contractors necessarily incurred much greater expense than would have been necessary had the examination and borings upon which they relied shown the actual condition of the soil.

The theory upon which that case was prosecuted was that the Government, by the written contract agreeing to provide an available site, thereby “guaranteed the nature of the soil under the site ” and assumed the entire burden, in case it should be ascertained during the progress of the work “that the soil under the selected site differed, to the detriment of the contractors, from that delineated upon the profile plan which had been made by an officer of the United States.”

In meeting that theory the court said: “We look in vain for any statement or agreement or even intimation that any warranty, express or implied, in favor of the contractors was entered into concerning the character of the underlying soil.”

* * * “ The fact that the bidders knew that a test of the soil in the yard had been made, and drew the contract providing that the dock should be located on a site to be designated by the United States, without any express stipulation that there was a warranty in their favor that the ground selected should be of a defined character, precludes the conception that the terms of the contract imposed such obligation on the Government in the absence of a full and clear expression to that effect, or at least an unavoidable implication.”

So in the case at bar there are no words in the contract or specifications, made part thereof, indicating a warranty in the claimants’ favor that the material to be excavated should be of a definite or even an approximate quantity.

It is not a case wherein the quantities of material merely are given, but the factors for ascertaining the quantities in each of the shoals are given as well, and were open to bidders, who were invited to make estimates for themselves.

In the Simpson Case {supra) there was no stipulation or requirement that the contractors should examine the site to ascertain for themselves the character and nature of the soil. On the contrary, they submitted their own specifications, agreeing to do the work as therein provided, the Government to furnish “an available site,” while in the case at bar the specifications were prepared and furnished by the defendants’ officer, in wbicli it was expressly “agreed that the quantities given are approximate only,” and that no claim should “be made against the United States on account of any excess or deficiency, absolute or relative, in the same;” and to guard against errors to their detriment, bidders were invited to make estimates for themselves.

As it was equally open to the claimant to know of the errors before he made his bid, if indeed the errors were not apparent on the face of the specifications, he must be presumed to have had knowledge thereof. Hence the Government can not, in the absence of an express or an .unavoidable implied provision therefor in the contract, be held to have guaranteed that the erroneous quantities stated were correct.

The petition is therefore dismissed.  