Ricker v. Sanitary Dist. of Chicago

89 F. 251, 1898 U.S. App. LEXIS 3054

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: January 10, 1898
• Status: Published

Opinion

GROSSCUP, District Judge

(orally). The court is relieved, in this case, from entering critically into faetSj because it is admitted by the counsel on both sides that they take no exceptions to the master’s report, although some were, I believe, filed. Therefore, I, in forming my decision, will be governed by the facts as found by tbe master, together with such additional data as have been called to my attention.

The first important fact is that the contract was large in the number of cubic yards to be excavated; large in the amount of money to be expended. The contractors met with a substance not shown by the data purporting to exhibit the nature of the material to be excavated. •. This substance the defendants maintain was not known by them to exist. This substance was different from bine clay, and was so mixed with gravel that none of the ordinary methods for taking out blue clay, blue clay and sand, or even bedrock, were sufficiently adequate to remove it. It is further conceded on both sides that this substance could not be excavated at anything like the ordinary cost of removing ordinary earth, including blue clay, blue clay and sand, yellow clay, or even bedrock, all of which materials are tractable, and can be readily plowed, picked, and bandied by steam shovel. Had this substance been known to exist, the board of trustees of the sanitary district could not have let the contract for anything like the terms on which it was let, and therefore, if the contractors are bound by tbe strict terms of the contract, — in the face of the existence of this wholly unknown substance, — they will unquestionably sutler a loss of from §50,000 to §85,000. Kow, I think this is a very important fact, because it illustrates what should have been tbe conduct of the parties in subsequent dealings. Now, without presuming that the engineer, or any of the members of the board of trustees, knew of the existence of this substance, or even suspected it to exist, it was, nevertheless, within the power of the engineer to have ascertained tiiis fact, with a reasonable degree of certainty, from the previous investigations made on that subject. Here was a great waterway to be put through, necessitating an expenditure of money and energy never excelled, if equaled, in the history of civilization. The engineer of such an undertaking was, in my judgment, called upon to employ every available means to procure such data as would give all tlie contractors an adequate and full knowledge of all the materials to be dealt with in tlie process of excavation, thus putting it in their power to intelligibly submit proposals and estimates for the work. Under the direction of Mr. Cooley, a series of borings were made, and from these investigations it was ascertained that the soil contained a substance which was termed “hard blue clay,” and “hard blue clay with gravel.” An accurate report, showing the result of these borings was made, and placed in the engineer’s office among the files, and the engineer, in my judgment, ought to have known of their existence. It is also important to keep in mind that these reports were made, and recorded in the engineer’s office, previous to the letting of the contract to the complainant. It is also important to know that the trustees instructed the engineering department: to advise with experts, and men of wide experience in works of excavation, so that a complete knowledge of the sbil might be acquired, and such recommendations might be made as would expedite the beginning of the actual construction. Several experts were consulted, and among others who responded to the inquiries was Charles Fitzsimons, a man of vast experience in digging canals, tunnels, and the like. Mr. Fitzsimons gave it as his opinion that the soil under consideration was composed of a peculiar material, which was very hard to drill, and required blasting in order to be excavated. lie also testified that he did not bid on this work for the reason that he was afraid of fouling ibis material, in which event he did not know whether he would make or lose money on tlie contract. In connection with the amount of important information purported to have been within easy reach of the engineer is the testimony insisted upon by the defendant to the effect that the government had also furnished data showing the existence of a peculiar substance which -would be difficult of excavation, because of its intractable character. In view of these facts, I must assume that the data furnished from these several sources .was not beyond the reach of some of the persons connected with the management of the canal, and ought to have been within their knowledge, had the management of this enterprise been tboroughly efficient, or even reasonably careful. Knowledge of the conditions to be met, so far as was reasonably practicable, ought to have been the essence of the contract. Upon the character of that soil depended, in a large measure, the actual cost of the canal.

Now, suppose it is true that they had no definite information as to the existence of this peculiar, intractable substance. It does not follow, in my judgment, that they ought not to have ascertained, from the facts within so easy reach, something relative to the probable discovery and location of such material. The Cooley borings, as well as those carried on by the government, indicated, in some measure, the presence of a material different from that shown to exist on the chart of the defendant. I am led to believe that these prior investigations could have been obtained by the defendant, and, in every sense of the word, should rightly have been put in the possession of the complainants, so that they might be correctly guided in their proposals and estimates on the material to be handled. The suppression of all such prior information unquestionably worked a hardship, if not a fraud, upon the complainants. I am of the opinion that if the trustees, either by actual fraud or by carelessness, kept any facts relative to the material to be excavated from the complainants, they are guilty of negligent performance of their duty. The fact that after the 8th of August the complainants went on with their work, and removed 60,000 cubic yards of soil, 20,000 of which being this hard material, proves beyond a question of doubt that they were led to believe that some satisfactory and sufficient adjustment might still be made. The finding may be that the defendant is guilty, and the exceptions are overruled. I think I ought to add, in this connection, that, in my opinion, the difficulties arising in the case are the result of carelessness, rather than intended fraud.