Struck Construction Co. v. United States

96 Ct. Cl. 186, 1942 U.S. Ct. Cl. LEXIS 93, 1942 WL 4411
CourtUnited States Court of Claims
DecidedMay 4, 1942
DocketNo. 43914
StatusPublished
Cited by49 cases

This text of 96 Ct. Cl. 186 (Struck Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Struck Construction Co. v. United States, 96 Ct. Cl. 186, 1942 U.S. Ct. Cl. LEXIS 93, 1942 WL 4411 (cc 1942).

Opinion

Madden, Judge,

delivered the opinion of the court:

Plaintiff was the successful bidder for the construction, under a contract with the defendant, acting through the Federal Emergency Administration of Public Works, of a state prison in Tattnall County, Georgia. The contract was dated January 12, 1935, and was originally to have been completed by July 12, 1936. The time was extended by the defendant to December 31, 1936, the date of actual completion of the contract, and plaintiff was paid the contract price. Plaintiff claims that it was required to expend additional amounts for material and labor, and was delayed and otherwise damaged by acts of the defendant during the performance of the contract.

Plaintiff’s first claim is with regard to the concrete walls of the prison buildings. The contract contemplated that the walls of seven of the eight buildings should be of “architectural concrete,” that is, that the concrete walls as they stood after the removal of the forms in which the concrete was poured, should, with some touching up of particular spots, be.the finished walls of the building, without being covered with plaster or faced with brick or stone. The contract specified the “mix” which should be used in pouring these walls. It was to be one part of cement, two and one-half parts of sand, and four parts of gravel or stone, with the privilege in the defendant of varying the proportions of sand and gravel for the purpose of obtaining a denser or more workable mix when thought necessary by the defendant’s superintendent. A small photograph of a piece of concrete wall was furnished with the specifications, and it was specified that the finished wall should have a finish equal to that shown in the photograph. The contract required that plaintiff should build a sample wall, seven by ten feet, which, if approved by the defendant should be the standard according to which the permanent walls should be built.

On May 1, 1935, plaintiff poured a sample wall. It used for forms new plyboard of a type authorized by the con[217]*217tract. When the forms were removed, the wall showed sand streaks where sand, not incorporated in cement, had come to the surface. It also showed small air and water pockets where bubbles of air or drops of water lying next to the forms had prevented the concrete from flattening out against the forms. The defendant’s representatives refused to approve the sample. Another sample wall was poured the next day. The concrete was spaded more to bring it into contact with the forms and to let the air out, as suggested by the defendant’s representatives, but this sample had the same defects and was disapproved. There was correspondence and consultation about what to do. The architect suggested that plaintiff examine the walls of the barracks at Fort Benning, Georgia, which the architect had intended as the standard for the Tattnall job, and plaintiff', the architect, and the project engineer went to Fort Benning to examine the barracks walls. They discovered, according to the architect, that the walls of the barracks were not as smooth as the architect had supposed they were; that more cement had been used in those walls than was specified for the Tattnall work; and that those walls had been painted before the photograph which was attached to plaintiff’s contract was taken.

Plaintiff poured more sample walls, varying the proportions of sand and gravel and following various recommendations of the defendant’s agents, but the defendant refused to approve any of the samples. On June 18,1935, the architect asked plaintiff if it would be willing, without additional compensation, to point up all holes exceeding % of an inch in diameter in a section of wall which plaintiff had poured. Plaintiff said it would, and did so, whereupon the architect approved that wall as a sample. The defendant’s representatives from the Inspection ' Division, however, overruled that approval. Plaintiff advised the defendant that the kind of wall it insisted on could not be made except by using more cement in the mix than was specified, and then doing a “full grouting” job on the wall after the forms were removed. The grouting job suggested consisted of brushing pure or “neat” wet cement onto the entire surface of the wall after the removal of the forms, troweling it so [218]*218as to force it into the depressions in the wall, and, after it had partially set, scraping the wall with the edge of a trowel to remove all of this cement except what was in the depressions; then rubbing the wall with burlap to take off any excess cement not scraped off with the trowel. Plaintiff told the defendant that for the additional cement in the mix and the cement and labor used in grouting, plaintiff should receive additional compensation to be authorized by a change order.

The defendant curtly advised plaintiff that it did not desire the use of additional cement, nor grouting; that it desired only that plaintiff build satisfactory walls. A section of wall was then poured under the personal supervision of an inspector sent by the defendant from Washington. It, too, turned out to be unsatisfactory.

The first sample wall had been poured May 1, 1935. It was now July. Plaintiff had planned to start on the A and B buildings and complete the concrete work on them from foundation to roof and then transfer its equipment and forms to the F and G buildings, which were identical with the A and B buildings, and pour those. Instead it had been obliged to shift about from one place to another pouring foundations, footings, and other unexposed concrete not involved in the wall controversy.

Plaintiff poured a section of wall on the rear of the A building. It used a mixture of concrete containing more cement than the specifications called for and also did a full grouting job on this section. This wall was inspected by a representative of the defendant from Washington, and on July 24, 1935, plaintiff received from the director of the Inspection Division in Washington the telegram quoted in finding 15. Plaintiff replied as follows: “We accept decision finish concrete surfaces contained in telegram today”; and confirmed the reply by letter.

Plaintiff thereafter built the exposed walls in conformity with the approved sample, i. e., using the rich mix and doing a full grouting job, except in one instance. In September, one of plaintiff’s executives from Louisville visited the job. He found that the rich mix was using more cement than [219]*219he had anticipated, and directed the superintendent to revert to the mix specified in the contract. One section of wall was poured accordingly, but the project engineer warned plaintiff that the wall was not satisfactory and plaintiff used the rich mix thereafter.

For the richer mix and the grouting, neither of which plaintiff originally contracted for, plaintiff used more cement, and spent more for labor than performance of its original contract would have required. It claims compensation for these extras. The defendant urges that the exchange of telegrams on July 24 bound plaintiff to supply this additional labor and material without additional compensation. Plaintiff replies (1) that it did not by its telegram of July 24 or its letter of the same date, promise that it would do the work without additional compensation; (2) that if it did so promise, its promise was without consideration and was the result of coercion.

We see no merit in plaintiff’s first point.

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Cite This Page — Counsel Stack

Bluebook (online)
96 Ct. Cl. 186, 1942 U.S. Ct. Cl. LEXIS 93, 1942 WL 4411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/struck-construction-co-v-united-states-cc-1942.