Citations
- 34 F. Supp. 490
Full opinion text
YANKWICH, District Judge.
On February 10, 1930, Eivind Anderson, the plaintiff, entered into a written contract with the United States of America, through Ferry K. Heath, Assistant Secretary of the Treasury, acting under the direction of the Secretary of the Treasury, agreeing to construct and complete, according to the plans and specifications attached to the contract, a building to be known as the United States Immigrant Station and Assay Office, at Seattle, Washmgton, at an agreed price of $517,588. He began construction of the building on March 5, 1940, and completed it on November 15, 1931.
In an action under the Tucker Act, 28 U.S.C.A. § 41(20), the plaintiff seeks to recover a total of $5,166.60 claimed to be due him under the contract.
Briefly stated, the facts upon which the demand is based are these:
The plaintiff drove four test piles, after 'which he determined that 777 precast concrete piles of the following lengths: 252 piles 42 feet long; 479 piles 40 feet long; 23 piles 45 feet long; 23 piles 30 feet long; would be necessary to fulfill the requirements of the specifications and contract and to comply with the formulae set forth in them, and to achieve the requisite bearing value of thirty tons.
He manufactured the concrete piles in these lengths, but was not allowed by the Construction Engineer of the Government, acting for the Supervising Architect and the United States, to drive them their full length.
As a result, the plaintiff was compelled to cut off various portions of precast concrete piles, projecting above the elevation determined on by the Construction Engineer, of a total length of 2,606 linear feet.
The complaint stated, and the plaintiff testified at the trial, that the contractual value of the concrete piles so cut off and severed was $3,922.50 and the additional labor and expenses incurred in' cutting them off was $1,244. Claims for these amounts were filed by the plaintiff and were disallowed by the Comptroller General on October 29, 1932.
We need not review, in detail, the proof in the record. So far as material, additional facts will be referred to in the discussion to follow.
I am of the view that the plaintiff has ' not met the burden of proving the liability of the government or its obligation to pay for the footage of pilings not driven and cut off on the order of the construction engineer, Clarence E. Swift.
The contract clearly contemplated the use of a definite amount of precast concrete piling in the construction of the building. Overage was to be paid for by the government at $2.50 per foot additional. Underage was to be deducted at the rate of $1.50 per foot.
Payment was, therefore, to be on the basis of piling actually used