Construction Aggregates Corp. v. State

170 A.2d 274, 148 Conn. 315, 1961 Conn. LEXIS 179
CourtSupreme Court of Connecticut
DecidedMay 2, 1961
StatusPublished
Cited by5 cases

This text of 170 A.2d 274 (Construction Aggregates Corp. v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Construction Aggregates Corp. v. State, 170 A.2d 274, 148 Conn. 315, 1961 Conn. LEXIS 179 (Colo. 1961).

Opinion

Mellitz, J.

In 1955, the defendant was engaged in the construction of the Creenwich-Killingly expressway, now known as the Connecticut turnpike. To obtain fill for use as embankment on the project, the defendant entered into a contract with the plaintiff by which the latter was to supply the required material through dredging operations in Bridgeport harbor. The plaintiff brought this action, pursuant to authorization; 28 Spec. Laws 512, No. 429; to recover a balance alleged to be due for material excavated from the harbor, and damages for losses [317]*317the plaintiff claims to have sustained as a result of the defendant’s misrepresentation of the nature of the material to be excavated. From a judgment for the defendant, the plaintiff has appealed.

The contract between the parties was entered into on February 15,1955, and required the plaintiff to dredge in a defined area in Bridgeport harbor and deposit the excavated material on adjacent land in such a manner that the portion usable for embankment would be contained in a stockpile and the unusable portion, consisting of silt, clay, mud and the finest grains, would run off into so-called waste areas or back into the water. The plaintiff agreed to supply all the labor and necessary equipment to do the work at the unit price of $.3856 per cubic yard. Payment was to be made for the material dredged as measured in “place,” that is, in the cut. This method of payment involves taking soundings before the commencement, and again after the completion, of the dredging operations, to obtain data for calculating the volume of the material dredged. By the terms of the contract, the quantity of material to be dredged was 4,200,000 cubic yards, and the defendant had the option of increasing or decreasing this quantity by 20 per cent. The defendant exercised its option and reduced the final quantity to 3,833,794 cubic yards, although its actual objective was to obtain 3,250,000 cubic yards. The contract required the defendant to pay for all material dredged, the unsuitable as well as the suitable. A maximum depth was fixed below which the dredging operations were not to be carried on, and the contract provided that material dredged below the permissible depth would not be included for payment. The plaintiff dredged 4,052,995 cubic yards, and the defendant paid the [318]*318plaintiff $1,498,214.17, representing payment for 3,833,794 cubic yards with certain adjustments. The defendant refused to pay the sum of $84,523.91 which the plaintiff demanded for the remaining 219,201 cubic yards it had dredged. In the first count of the complaint, the plaintiff seeks a recovery of this amount.

The plaintiff’s principal claim is set forth in the second count. Its contention is that the defendant misrepresented in the contract the nature and quantitative distribution of the component materials to be dredged and that, as a result, the plaintiff incurred substantially increased costs and was caused to suffer substantial loss and damage. Specifically, the claim is that by reason of the defendant’s misrepresentation, the plaintiff was required to excavate far greater quantities of gravel and coarse sand than it expected to have to and than the defendant represented, and that this resulted in excessive and extraordinary wear and damage to the plaintiff’s equipment, with unreasonable stoppages and delays in the work, so that the direct and overhead costs of the plaintiff were greatly increased, it was unable to complete the work within the contract period, and it had to engage the services of a subcontractor to complete the work, at a cost to the plaintiff greatly in excess of the contract price. Under the second count, the plaintiff seeks a recovery in excess of $770,000.

The provision which forms the basis of the claim in the second count is found in item 281 of the contract. This provision is entitled “Hydraulic Borrow” and reads as follows: “Materials: The material to be excavated consists of medium-to-fine sand, a little coarse sand and gravel, and considerable silt and clay. The total of silt and clay com[319]*319prises about 20% of the total material. The silt and clay are found chiefly in layers of dark gray mud. Further information is given on the boring data which are a part of the plans.” It is the plaintiff’s contention that item 281 is a description of the composition of the material to be found within the dredging area and is in fact and in law a representation of the work which was required to be performed under the contract, a representation which the plaintiff was entitled to, and did in fact, rely on in preparing the bid it submitted for the work. The defendant’s position, sustained by the court, is that the description in item 281, considered in the context of the other provisions of the contract, was an expression of the defendant’s opinion and not in a legal sense a representation on which the plaintiff was entitled to rely as a basis for its bid.

The pertinent provisions of the contract, in addition to item 281, are set forth in the footnote.1 The boring data referred to in item 281 are shown on a [320]*320boring data sheet on which appears the following statement: “The information, including estimated quantities of work, shown on these sheets is based on limited investigations by the State and is in no way warranted to indicate the true conditions or actual quantities or distribution of quantities of work which will be required.”

[321]*321To be entitled to a recovery under the second count, the plaintiff was required to establish that the description in item 281 of the materials constituted a representation of a material fact on which the plaintiff was entitled to rely and on which it did in fact rely, to its damage. E. & F. Construction Co. v. Stamford, 114 Conn. 250, 260, 158 A. 551. The court found the following facts, which are not subject to correction. The notice to contractors was published on December 27, 1954. Bids were requested to be submitted by January 17, 1955, the time being later extended to January 24. The plaintiff was the successful bidder. The contract, entered into on February 15, 1955, required completion within 350 calendar days after the plaintiff received notice to start work. The starting date was March 21, 1955. The plaintiff did not have available equipment of adequate capacity to do the work it contracted to do. After entering into the contract, the plaintiff purchased in Louisiana a dredge known as the “Mississippi,” a converted lighthouse tender which had been used on the Mississippi River. It was old, not equipped to do the job required, and had to be reconditioned, re-equipped, and hauled to Bridgeport harbor from Louisiana before it could be put into operation. Work with the “Mississippi” was not started in Bridgeport harbor until June 29, 1955. A subcontractor of the plaintiff began work with a fifteen-inch dredge on April 16, 1955.

In October, November and December, 1955, the defendant, concerned about the plaintiff’s failure to keep up with the production schedule, repeatedly demanded that the plaintiff accelerate performance of the work and indicated that the defendant might be forced to call the performance bond. At about this time, the plaintiff began to complain that the [322]*322materials in the harbor were coarser than it had expected to find. G-ravel and coarse sand are more difficult and more expensive to pump than silt, clay and medium to fine sand.

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Bluebook (online)
170 A.2d 274, 148 Conn. 315, 1961 Conn. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/construction-aggregates-corp-v-state-conn-1961.