Full opinion text
MEMORANDUM OPINION MORTON, District Judge. This action was commenced on September 28, 1967, by plaintiff E & R Construction Co., Inc. based upon the provisions of the Miller Act, 40 U.S.C. §§ 270a and 270b. The plaintiff is an Ohio corporation. Defendant, Guy H. James Construction Company, is an Oklahoma corporation, and defendant Federal Insurance Company is a New Jersey corporation which is authorized by the United States to write performance and payment bonds under the terms of the Miller Act. On June 26, 1964, defendant Guy H. James Construction Company (hereinafter “James”) entered into a prime contract with the United States Corps of Engineers providing for the construction of a project in Tennessee known as Cor-dell Hull Lock and Dam, consisting of a lock and dam on the Cumberland River, including items applicable to this action as follows: (1) Construction of a lock with cofferdam surrounding the entire work-site, with an elevation of 480 feet around the lock excavation area, referred to as Stage I. (2) Construction of a cofferdam around lower approach channel to an elevation of 456 feet, referred to as Stage II. (3) Common excavation, consisting of removal of all earth, including the cofferdam, to final elevations, according to plans of U. S. Corps of Engineers. The James contract was a successor to earlier contracts held by other parties for the initial excavation and construction of a cellular cofferdam in the dam area, and for road construction and site preparation, and preceded a subsequent contract for the completion of the dam and for construction of the powerhouse. James, as principal, and Federal Insurance Company (hereinafter “Federal”), as surety, executed to the United States separate bonds, each in a penalty sum of $2,500,000, with performance bond conditioned for faithful performance of the contract, and payment bond conditioned for payment of all labor and material used in prosecution of the contract work. On July 1, 1964, E & R Construction Company (hereinafter “E & R”) entered into a subcontract with James for what may be described generally as the execution of the earth-moving or dirt excavation items under the prime contract. (A copy of the subcontract is included in the Appendix to this ^ninion.) The position of the prime contract undertaken by plaintiff can be more particularly described as follows: Item No. Description Estimated Quantity Unit Price Amount 1 Mobilization & Preparatory Work Lump Sum $ 17,900 2 Lock Cofferdam 100,000 c.y. 0.64 64,000 5 Clearing & Grubbing Lump Sum 11,000 6 Common Excavation 1,480,000 c.y. 0.64 947,200 15 Filter Drainage Layer 5,200 c.y. 5.28 27,456 16a Compacted Impervious Fill 86,000 c.y. 0.14 12,040 17 Random Fill 103,000 c.y. 0.08 8,240 18 Coarse Rock Fill 8,100 c.y. 2.00 16,200 19 Fine Rock Fill 2,000 c.y. 2.00 4,000 20 12-inch Concrete Pipe 200 l.f. 4.00 1,040 21 15-inch Concrete Pipe 240 l.f. 5.00 1,200 22 Bedding for Riprap 7,500 c.y. 5.28 39,000 23 Riprap 24,500 c.y. 1.50 36,750 $1,187,266 The cofferdam system which was utilized on the project was referred to as being in four parts: the “upstream” 480 dike, meaning an elevation of 480 feet; the “downstream” 480 dike; the downstream 456 dike (sometimes referred to as the 460 dike); and the cross-dike. The terms “upstream” and “downstream” are used in relation to a cellular cofferdam that had been constructed under a preceding contract. Stage I of the project refers to the upstream portion of the work; Stage II refers to the downstream portion of the work. The removal of the 456 and 480 dikes, which was accomplished during the latter part of the work, is sometimes referred to as Stage III. During the first part of the job E & R was responsible for the removal or excavation of the overburden on the rock underlying the Stage I area and the construction of the 480 dike; during the second part of the job E & R was responsible for the excavation or removal of the overburden on the rock underlying the Stage II area and the construction of the 456 dike; during the final part of the job E & R was responsible for the general maintenance of the dike system, and the eventual removal of the 456 dike, the 480 dikes, and the cross-dike. The excavation or removal operations by E & R were planned as a use of certain mobile equipment and a dredge that E & R had purchased for this purpose. Stage I excavation was primarily completed with automotive-type earth-moving equipment, although towards the end of this stage a dredge was used to assist in the disposal of Stage I material. Stage II excavation, although begun at higher elevations with automotive-type equipment, was primarily a dredging operation. Stage III, the removal of cofferdams and dikes, was also primarily done by dredge. Stage II was begun before Stage I was completed, but there was a substantial time interval between the completion of Stage II and the commencement of Stage III. This action is based on twelve separate claims or “items.” Plaintiff claims James materially breached the parties’ contract and that plaintiff is entitled to recover in quantum meruit, or, in the alternative, entitled to recover for the damages incurred. STATUTE OF LIMITATIONS DEFENSE Defendants maintain that several items, i.e., Items (b), (c), .(e), (f), (g), (h), (j), and (1) of No. 7 of plaintiff’s amended complaint were asserted as claims against defendants for the first time in the amended complaint, filed on September 22, 1971, and they are barred by the one-year statute of limitations, 40 U.S.C. § 270b. Therefore, the threshold question for the court’s determination is whether the alleged new claims asserted by plaintiff in the amended complaint are barred by the one-year statute of limitations provision in 40 U.S.C. § 270b which provides, in part: “(b) ... no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied . . . .” Defendants contend that in the original complaint filed in this action on September 28, 1967, plaintiff was proceeding on a theory of breach of contract and sought damages therefor. On September 22, 1971, plaintiff filed a motion to amend the complaint and specifically referred to seeking damages and recovery against the defendants for several items of claim on the basis of quantum meruit in addition to breach of contract. The court did not receive any pleadings in opposition to the plaintiff’s motion to amend, and an order granting said motion was entered October 6, 1971. At trial defendants asserted as a defense that the claims based on a theory of quantum meruit were new and consequently time-barred under the Miller Act’s one-year statute of limitations. The court finds that the original complaint in this case covered all the items mentioned in the amended complaint. The amended complaint uses different language in part and is more specific. Additionally, the court finds that the original complaint contained the essential elements of a suit in quantum meruit. The court finds no substantive differences between the allegations in the original complaint and those in the amended complaint. In the original complaint jurisdiction is based on the Miller Act and specifically included are claims in reference to: refusal to pay for work performed, material change in plan of construction of cofferdam, unreasonable interference with performance of subcontract work by placing of shot rock, change in filter drainage material, failure to supply riprap bedding, material, and filter drainage material, change in location of access road, failure to supply coarse rock fill and other rock materials, interference with subcontractor’s use of dredge, and failure to pay for additional excavation. All items growing out of this same contract were mentioned in the original complaint, breach of contract based on interference was claimed, and relief was sought on the basis of work performed but not paid for, all of which can be interpreted as a claim based on quantum meruit. The court finds that the allegations of the original complaint contained the essential elements of a suit in quantum meruit. The court finds the facts and claims asserted in the amended complaint are not barred by the one-year statute of limitations, but instead they fall within the scope of Rule 15(c) of the Federal Rules of Civil Procedure, which provides : “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. . . .” (Emphasis supplied.) 28 U.S.C., Fed.R.Civ.P. 15(c). Defendants contend that a change in the theory of recovery from breach of contract of quantum meruit is barred by the statute of limitations and is contrary to Tennessee procedural practice. Defendants cite Bubis v. Blackman, 58 Tenn.App. 619, 435 S.W.2d 492 (1968). This court adopts the following reasoning and approach: “. . . [R] elation back is properly a question of federal practice under Rule 15(c), and the issue of whether an amendment will relate back should not be determined by resort to state law even in a nonfederal action, but should be decided in terms of Rule 15(c). “While it is a general rule that an amendment which introduces an entirely new claim for relief will not relate back to the date of the original pleading, Rule 15(c) is not limited by the ‘cause of action’ concept, and an amendment which injects a new legal theory, within the scope of the original claim for relief, or adds another claim arising out of the transaction or occurrence set forth in the original pleading should relate back under the terms of Rule 15(c).” Moore, Federal Practice, § 15.15[3], The purpose of the relation back rule embodied in Rule 15(c) is accomplished if the initial complaint gives the defendant fair notice that litigation is arising out of a special factual situation. See, e. g., Longbottom v. Swaby, 397 F.2d 45 (5th Cir. 1968). The relation back theory extends to Miller Act complaints. Security Insurance Co. v. United States, 338 F.2d 444 (9th Cir. 1964). The Ninth Circuit Court of Appeals applied the “relation back” theory and permitted the amendment, whether as an “amendment” to the complaint, or a “supplemental” complaint, holding that in either form, the new items or claims would not be barred, if they grow out of the same contract and bond. Cf. Ruckman & Hansen, Inc. v. Contracting and Material Co., 328 F.2d 744 (7th Cir. 1964); Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962); M. W. Zack Metal Co. v. The S. S. Birmingham City, 291 F.2d 451 (2d Cir. 1961); United States v. Russell, 241 F.2d 879 (1st Cir. 1957). See also, United States for Use and Benefit of Construction Products Corp. v. Bruce Construction Corp., 272 F.2d 62, 66 (5th Cir. 1959); National Surety Corp. v. United States, 378 F.2d 294 (5th Cir. 1967), cert. denied 389 U.S. 1004, 88 S.Ct. 561, 19 L. Ed.2d 598 (1967). See 10 A.L.R. Fed. 553. The test under the express provisions of Rule 15(c) is whether the material representing the amendment grew out of the “same transaction or occurrence.” Wright & Miller, Federal Practice and Procedure: Civil § 1497. See e. g., Matarese v. Moore-McCormack Lines, 158 F.2d 631, 633, 634 (2d Cir. 1946); Bradbury v. Dennis, 368 F.2d 905 (10th Cir. 1966). In the case of Miller Act complaints it is reasonable to conclude that the same contract or bond is equivalent in meaning to the same transaction or occurrence. Compare Security Insurance Co. v. United States, supra, and United States v. Home Indemnity Insurance Co., 246 F.Supp. 27 (E.D.Pa.1965), involving a suit on contracts and bonds other than those relied upon in the originally filed complaint. Finally, in a supplemental memorandum filed by defendant, an argument is made that because of alleged differences between the original complaint and the amended complaint, plaintiff is estopped from filing the amended complaint. The court finds that Rule 8(e)(2) of the Federal Rules of Civil Procedure disposes of this asserted defense : “A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable, or maritime grounds.” 28 U.S.C., Fed.R.Civ.P. 8(e)(2). Accordingly, it is the holding of this court that none of the claims asserted by plaintiff in the amended complaint are barred by the one-year statute of limitations provided in the Miller Act, 40 U.S.C. § 270b. Item (a). SHOT ROCK CLAIM Plaintiff claims that James wrongfully interfered with the performance of E & R’s subcontract work by dumping excavated rock and blasted rock into areas which plaintiff was subsequently required to dredge, and thereby increased the cost of E & R’s subcontract work. E & R maintains that the alleged wrongful interference by James caused substantial injury to E & R, and plaintiff seeks to recover $222,468.59 for property damage to its dredge and for 1,108 hours of down time due to said damage. Defendant denies that E & R has any right to recovery, and it maintains that plaintiff had no contractual right to expect a rock-free cofferdam. Defendant contends that plaintiff, as an experienced contractor, was charged with knowledge that rock plating is customarily used on cofferdams on lock and dam projects in order to provide a hard surfaced haul road along the top of the cofferdam and to establish erosion control along the sides. The initial excavation under the James contract with the Corps of Engineers was in the lock area, Stage I. This excavation was performed by E & R under its subcontract, and was done by earth-moving machinery. As the depth of the excavation increased, the water content in the soil and the winter season weather began to retard E & R’s progress of excavation in Stage I. At this time, E & R proposed a dredging operation in Stage II which would enable crawler pans, working in Stage I, to haul the material a short distance to Stage II and dump it to the dredge. James tendered E & R’s proposal to the Corps of Engineers and permission was granted by the Corps to allow E & R to use its dredge in Stage II under certain restrictions which were later to be established. During the first dredging operation for E & R on this job, E & R averaged 5,608 cubic yards of material dredged per day. The only rock E & R encountered was near the cross-dike which had been excavated by James in Stage I and inadvertently picked up by E & R’s crawler pans and hauled to the Stage II dredge pit together with the 75,000 cubic yards of earth moved by that method. The dredge was permitted to excavate in the Stage II area until it reached Station 12 + 50B, at which point the dredge was taken out of the dredge pit and sent to Uniontown, Ohio, to work on a different project (July 28, 1965). E & R then closed the dredge access to the Stage II excavation and pumped out the water. Under the contract it was the responsibility of James to excavate the rock from the floor of both the Stage I and Stage II areas. James began the Stage II rock excavation on November 3, 1965. The rock excavation was begun at the extreme downstream end of the dredge pit, and the disposition of the first rock which was blasted loose was to bulldoze it into a rock ramp on the landward side of the 456 dike. When the rock ramp was such that it reached to the top of the 456 dike, James began hauling rock out of the hole with dump trucks. At this point, James disposed of a considerable quantity of shot rock by dumping it on the 456 dike in a layer from two to four feet thick, such as to construct a roadway from the access ramp on the 456 dike to the point where the cross-dike intersected the 456 dike. In addition to dumping shot rock on the 456 dike in order to construct a haul road and allegedly provide erosion safety, James also used the 456 dike as a convenient means of disposing of the excavated shot rock, rather than hauling it away to designated spoil areas. After dumping rock on the 456 dike, James hauled several loads of rock over the cross-dike and then to one of the designated spoil areas. Prior to James’ rock excavation operation in the Stage II dredge pit, James had deposited a crushed rock roadway along the course of the downstream 480 dike and on the cross-dike, to which E & R had no objection since crushed stone presented no problem for E & R’s anticipated dredging operation. At a later date in the course of the rock excavation from the Stage II dredge pit, James hauled shot rock from Stage II to a point on the downstream 480 river dike, and utilized that rock to construct a ramp which angled off the 480 dike to the bottom of the Stage I pit hear the cellular cofferdam. In October of 1965, E & R excavated a large hollow spot in the landslide of the 456 dike at its point of intersection with the permanent riprap slope, Station 22 + 10B, to enable E & R to riprap that slope in the dry. Upon completion of that excavation, and while putting the riprap in place, E & R sent a letter to James asking for cross-section measurements to be made in that area so that E & R could be reimbursed for the additional hauling to refill the excavated area. In December of 1965 James filled the entire area with shot rock which it hauled out of Stage II. At the same time, James laid a layer of shot rock to connect this area with the previously constructed shot rock roadway. In addition to purposefully dumping shot rock on the cofferdam and cross-dike, defendant also scattered rock about the area during its blasting operation. E & R, through its project superintendent, Ernest Ward, objected and protested immediately to each of the instances in which shot rock was placed onto either the 480 dike or the 456 dike. On each occasion George Green, the project manager for James, represented to Ward that James would remove all of the rock from both dikes prior to the date on which E & R would resume dredging operations. On July 11, 1966, the dredge returned to the project from Uniontown, Ohio, after first undergoing a complete overhaul in Nashville, Tennessee. E & R had notified James that the dredge was en route and asked that the rock be removed from the dikes prior to its arrival. James assured E & R that the shot rock would be removed. Upon the arrival of the dredge, the project was not far enough along to permit breaching and flooding of the lock cofferdam area, so the prime contractor directed E & R to dredge along the periphery of the 480 dike, after having lowered it to elevation 460 by conventional means, and further directed E & R to maintain a consistent width and consistent two to one slope as the peripheral dredging was executed. As the cofferdam removal phase of the excavation was begun, E & R encountered some difficulty with shot rock in the dike system, which became worse as the excavation proceeded. E & R’s job superintendent Ward vigorously complained to George Green that it was encountering rock difficulties and demanded that James expedite the removal of the rock from the cofferdam system. Defendant’s efforts to remove the rock were ineffective. For example, James’ personnel intentionally dumped rock below the water line adjacent to the cofferdam rather than wait for trucks to return from spoil areas to pick up another load. (See Exhibits 32-44.) E & R continued to complain to James about the rock in and on the cofferdams and in the water next to the bank of the cofferdam. James sent a work crew on several occasions and attempted to remove more rock with the use of a dragline and hand labor. Normally the dredge pumps water and earth, including sand and gravel, through the cutterhead, up into the pump, through the impeller, and out the discharge line where the solid particles are deposited and the water runs off or evaporates. As E & R dredged out the cofferdams, shot rock jammed in the cutterhead, intake line, cleanout tee, pump casing and throughout the 3,000 foot discharge line. When the rock jammed in the cutterhead, it was necessary to cease dredging operations and send men out in a motorboat with crowbars and hammers to extricate the offending rock or rocks. In an attempt to keep shot rock from coming into the dredge’s system, E & R installed protection bars in the cutterhead. The rocks would occasionally jam in the rubber intake line causing it to blow off of its flange coupling, and causing extraordinary deterioration of the hose fibers. Reinstallation or replacement was both a time-consuming and expensive operation. (See Exhibit 122 which is a compilation of the down time of the dredge due to shot rock problems.) Some of the rock was removable through an access door in a cleanout “T” immediately preceding the pump casing. The most serious difficulty occurred when the rock became lodged in the pump casing itself, which necessitated lengthy shutdowns and difficult extrication procedures. When this occurred, the entire pump, main engine and dredge would experience severe vibration which caused metal stress and ultimate metal failure in both moving and stationary parts. The shot rock caused severe problems on the 14-inch diameter discharge line. The rock would frequently jam in the line, necessitating welding operations to remove the section of the pipe, remove the rock and reweld the hole previously cut for access. The abrasive and hammering effect of the rock tumbling through the discharge line caused numerous weak spots which eventually would blow open under the high pressures being utilized to move the material over the 100-foot lift into the discharge area. The rock would pile up in the discharge area, necessitating additional sections of pipe to be added periodically in order to keep from blocking the discharge end. The proof was uncontroverted that E & R’s dredging difficulty became worse as the dredging operation progressed on the job site. This fact existed because the dredging began in the area of the partially contaminated 480 dike and proceeded towards the completely contaminated 456 dike. Ward realized that James would excavate the rock by blasting operations; however, Ward reasonably assumed that the dislodged and scattered rock would be hauled away before E & R was expected to begin carrying out its responsibilities of removing the adjacent material which constituted the surrounding lock cofferdam system. At trial the thrust of plaintiff’s claim against defendant’s blasting procedure was that it was negligently carried out by using too large a charge. The evidence was substantially uncontroverted that defendant carried out its blasting operations in a normal manner, consistent with similar blasting operations. However, the proof did show that defendant neglected to cover the blasting area which resulted in the rock being scattered over a wide area and defendant failed to properly collect and carry away the displaced rock which was thrown upon the adjacent area which plaintiff was required to subsequently dredge. Ward protested to Green about the rock that was cast upon the cofferdam by the blasting. Although plaintiff did not prove that defendant carried out its blasting operations negligently, the evidence is clear that James’ blasting operation was a contributing cause with its dumping operation of distributing shot rock on the cofferdam. The court finds that in addition to any rock which was scattered by blasting about plaintiff’s proposed dredging area, defendant placed rock over the cofferdam system in order to use such as a rock-plated haul road on top, and additionally, James dumped rock on the sides of the cofferdams allegedly to establish a plating for anti-erosion purposes. However, the court finds that such intent was not contemplated by defendant’s or Corps’ personnel until the time of trial. Such a purpose could not be attained by dumping shot rock on the landward slope of the cofferdam, which was part of the area where James dumped shot rock. Prior to trial, defendant’s witnesses in pretrial depositions made no reference to the use of rock plating, of any sort, on cofferdams for erosion purposes. In all of its pretrial pleadings, defendant only referred to the use of rock for haul road purposes. The court finds that the erosion control purpose which was referred to by several of the defendant’s witnesses was the result of the realization that plaintiff had successfully proved that at least one of these areas where shot rock was placed or dumped, allegedly for the purpose of constructing a haul road, was only used by James for several days thereafter. In light of the above findings of fact, the court summarizes as follows: 1. After E & R had completed the construction of the downstream (456 cofferdam, certain rock excavation was performed by James adjacent to the cofferdam, during the course of which it dumped large quantities of shot rock on the surface and slopes of the cofferdam. James did not use designated spoil areas for the disposal of rock until after it had completed the dumping operation on the cofferdam. Additionally, as a consequence of blasting, rock was scattered over the area by James during its rock excavation work. 2. Immediate protests concerning all of these operations of James were made by E & R. Representatives of James made continuing promises of assurance to plaintiff that James would be responsible for removing the rock from the cofferdam; however, its attempts to accomplish the removal of the rock from the cofferdam were ineffectual. 3. At all times James was aware of E & R’s intention to remove the cofferdam by hydraulic dredging and was aware from its own knowledge and protests of E & R that the presence of shot rock on the cofferdam would materially interfere with E & R’s performance of its contractual duties. In Miller Act actions, federal substantive law controls over state law; however, “interstices may be filled by incorporating state law.” United States for Use and Benefit of Astro Cleaning & Packaging Corp. v. Jamison Company, 425 F.2d 1281, 1282, n.1 (6th Cir. 1970). See also United States for Use and Ben efit of Shields, Inc. v. Citizens and Southern National Bank of Atlanta, 367 F.2d 473, 477 (4th Cir. 1966); Central Steel Erection Co. v. Will, 304 F.2d 548, 554 (9th Cir. 1952). No distinction is made between state and federal substantive law in this opinion because the principles applied appear to be valid federal and Tennessee law. The general rule is that public contracts are to be strictly construed and nothing passes by implication. Volunteer Electric Co-op. v. Tennessee Valley Authority, 139 F.Supp. 22 (E.D. Tenn.1954). However, there is also a substantive rule of law that parties to a construction-type contract impliedly agree that the contractor shall be furnished with the site of the work necessary to perform his contract. Each party to a contract is under an implied obligation to restrain from doing any act that would delay or prevent the other party’s performance of the contract. Fritz-Rumer-Cooke Co. v. United States, 279 F.2d 200, 201 (6th Cir. 1960). A party who is engaged to do work has a right to proceed free of let or hindrance of the other party, and if such other party interferes, hinders, and prevents the doing of the work to such an extent as to render the performance difficult and largely diminish the profits, the first may treat the contract as broken and is not bound to proceed under the added burdens and increased expense. Anvil Mining Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed. 814 (1894). In the present action, E & R elected to complete performance even though James materially interfered with its ability to do so. Defendant maintains that this item should be rejected because there is no affirmative prohibition in the specifications against placing or spoiling the shot rock in a way that interfered with plaintiff’s excavation and removal work; also that plaintiff knew or should have known the rock would be dumped on the cofferdam system for the purpose of haul roads and/or erosion control. The subcontract provided: “4) SUBCONTRACTOR has inspected the work site, and does not rely upon representations of CONTRACTOR, beyond terms of the prime contract, etc., as to any matter incident to this subcontract.” In a decision by the United States Supreme Court, a contractor was required “to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance.” The court reasoned that: “. . . [t]he obligation to examine the site did not impose upon him the duty of making a diligent inquiry into the history of the locality, with a view to determining, at his peril, whether the sewer specifically prescribed by the government would prove adequate. The duty to check plans did not impose the obligation to pass upon their adequacy to accomplish the purpose in view. And the provision concerning contractor’s responsibility cannot be construed as abridging rights arising under specific provisions of the contract.” United States v. Spearin, 248 U.S. 132, 137, 39 S.Ct. 59, 61, 63 L.Ed. 166 (1918). The court awarded damages on what amounted to a quantum meruit basis, and specifically according to the formula enunciated in United States v. Behan, 110 U.S. 338, 4 S.Ct. 81, 28 L.Ed. 168 (1884). The Corps of Engineers’ borings of the area were of two types, wash borings and core borings. The first type of boring would not show the presence of rock in the area, but the second type would show the presence of rock. Core borings taken by the Corps of Engineers indicated that the material in the area of the Cordell Hull project was suitable for dredging and generally free of rock. Prior to the bid letting, the plaintiff took hand auger core borings along the edge of the Hardaway excavation (which had been carried out under a previous contract) at various elevations to the level of bedrock, and encountered no rock. Occasionally, rocks which were alluvial in origin were encountered by the dredge, but being round and smooth did not present any serious dredging problem; whereas shot rock is extremely rough in shape with sharp, pointed edges which did cause a serious dredging problem. The test borings that were conducted by the Corps and E & R did not evidence the existence of any rock which E & R could expect to encounter during its earth excavation. Paragraph 4 of the subcontract required E & R to inspect the worksite and accept the reasonable working conditions, without reliance upon representations by James. James maintains that such an inspection would have indicated to E & R that James would be required to build and maintain hard-surfaced haul roads along the cofferdam and dike, and demonstrate the necessity of James to conduct blasting operations in order to perform rock excavation for the dam site. The court believes that this is a reasonable assertion by the defendant, which was, in fact, realized and anticipated by E & R; however, it was not foreseeable that James would use shot rock to accomplish such purposes and it was not reasonable to assume that James would use the cofferdam as a spoil area for the rock which it excavated. The evidence is clear that alluvial rock did not amount to a contributing cause to E & R’s dredging problems. Additionally, the court does not agree with defendant’s assertion that the proof demonstrates that plaintiff’s dredging problems were partially caused by rock • which had been blasted from road-building operations carried out across the river on an earlier construction contract. Defendants aver that the broad general rule is that one who has contracted to perform specific work for a stated price will not be entitled to extra compensation because he encounters difficulties that have not been provided against in the contract. As referred to by the Sixth Circuit Court of Appeals, “the rule is often stated, although seldom followed . . . .” United States v. Ross Corporation, 385 F.2d 564, 566 (6th Cir. 1967), and citations contained therein. The facts of the present case do not demonstrate that plaintiff neglected to foresee a difficulty due to a natural condition, but, instead, the unforeseen condition arose and existed solely because of the wrongful conduct of the defendant James. Defendants have suggested that the specifications applicable here required or allowed the use of the shot rock, as it was used by James. For this reason it is necessary to consider the terms of the specifications. Relied upon by defendants are pages 2-4 of the specifications, Paragraph 2-02(b) (2) (i), which refers solely to the “Powerhouse Cofferdam” portion of the work, which was practically the last step in the James prime contract, and involved repositioning certain cells of the original cellular cofferdam, and constructing a timber crib cofferdam, as depicted in the photograph introduced as Exhibit 217. “2-02. DESCRIPTION OF COFFERDAM * * * -X- * # “(b) New Work. •X- ■ •» -X- -X- * * “(2) Powerhouse. — Prior to the removal of the cofferdam for the lock and dam the contractor shall construct that portion of the powerhouse as indicated on contract drawing Q16-19/5. i. Rock Cap. — The entire cofferdam shall be topped with rock as indicated on the drawing. Care shall be taken in the placement of rock to prevent damage to cells or interlocks. Rock shall be reasonably well graded from the minimum size permitted, weighing approximately 15 pounds, to the maximum size stone permitted, weighing approximately 300 pounds. The quality of the rock shall be such that it will not disintegrate and will properly protect the top of the cofferdam from weather and traffic for a period of approximately three years. Sufficient spalls shall be used as a top layer to produce a reasonably smooth surface suitable for truck traffic.” The “lock cofferdam,” which is the subject of this suit, is an altogether different cofferdam, and is described in Par. 2-02(b)(1), with no reference to a “rock cap,” nor did any of James' drawings indicate a rock cap on the lock cofferdam. Of interest in this connection are Exhibits 135, K, and the testimony of witnesses Marcum (Tr. 1284-1287) and Abbott (Tr. 1145-1154), all of which make clear that the provision relied upon by defendants relates only to the later-to-be-constructed “Powerhouse Cofferdam” and not the lock cofferdam involved in this case. The evidence was substantial that cofferdams on lock and dam projects are generally “topped” with rock. After reviewing the entire record, the court finds that there is a custom within the construction and excavation trade that rock topping of some sort on cofferdams is generally employed to provide use as a haul road and also for plating the river side of a cofferdam during a lock and dam project. The record is deficient as to any regularity in the actual size and type of rock or stone that is used for such topping and plating. The Corps of Engineers’ resident engineer, Lester Marcum, testified that it has been his experience to observe that “. . . all cofferdams have been used as access ways and roadways and have been paved with some material or other. They have been hard topped as a matter of access.” (Tr. 1344) Although * defendants’ witnesses were fairly consistent in their testimony that a plating of some kind is usually placed on the top and outer face of cofferdams, the witnesses failed to testify that shot rock is used for such a purpose. The record also fails to reflect the conditions, requirements and specifications which were applicable to the other jobs alluded to by the witnesses. The court finds that James did prove a usage in the trade; however, it failed to prove a custom within the trade of using shot rock on cofferdams. Testimony of what is usually or generally done is not of the imperative, compulsory and universal character required to establish a custom. Bagwell v. Susman, 165 F.2d 412 (6th Cir. 1948). Existence of usage or custom can only be proved by numerous instances of actual practices, and not by opinion of a witness. A person seeking to establish custom or usage has the burden of proving it by evidence so clear, uncontradictory and distinct as to leave no doubt as to its nature and character. California Fruit Exchange v. Henry, 89 F.Supp. 580 (W.D.Pa.1950), aff’d 184 F.2d 517 (3rd Cir. 1950). Proof of certain isolated instances is not sufficient to establish a usage or custom. Premier Electric Construction Co. v. Miller-Davis Co., 291 F.Supp. 295 (N.D.Ill.1968), aff’d 422 F.2d 1132 (7th Cir. 1970), cert. denied 400 U.S. 828, 91 S.Ct. 56, 27 L.Ed.2d 59 (1970). “Usage” is a repetition of acts, and differs from “custom” in that the latter is the law or general rule which arises from such repetition; while there may be usage without custom, there cannot be a custom without a usage accompanying or preceding it. American Lead Pencil Co. v. Nashville C. & St. L. Ry., 124 Tenn. 57, 134 S.W. 613 (1911). Even assuming that disposal of shot rock is used as part of the custom within the trade, then the question is: what is the effect of the defendant’s continuing promise to remove the shot rock and its ineffectual attempts to remove same? James’ representatives continually made promises of assurance to E & R that the rock would be removed prior to E & R commencing its dredging operations. James used its dragline trucks and a crew of men on several occasions in attempting to remove the rock. James’ removal operations were ineffectual and carried out in a negligent manner at best. For example, James’ work crew dumped shot rock into the water adjacent to the bank of the cofferdam when waiting for dump trucks to return from a designated spoil area. When asked to describe his protestations to Green when he hadr observed the James dragline and hand laborers being used for dumping rock picked up from the cofferdam into the river, Ward testified that “ . . . his [Green’s] reaction was just that he was going to do it. That was all there was to it. There wasn’t any way I could stop him. Q. Do you remember what he said to you? A. That he had work to do and he was going to put the material over there.” (Tr. 155) See also letter of August 12, 1966, Exhibit A, and letter of August 17, 1966, Exhibit B. Ward later stated, “All I know sir, I told him don’t do it to me, you are really going to hurt my dredge operation, and he said he has got work to do down there and he was going to do it.” (Tr. 160). In light of the facts and circumstances of the present case, the court holds that defendant is estopped from asserting the alleged trade custom in defense of its conduct. James’ conduct evidences its recognition that it was responsible to E & R because it had abandoned the usual and normal procedure of any trade custom of “topping” or “plating” a cofferdam. Defendant’s main witness, George Green, testified that the rock would have had to be removed in order to avoid damage to the dredge. “I recognized it had to be properly removed or it would cause damage to the dredge.” (Tr. 995) In response to a letter from E & R requesting immediate removal of the shot rock from the cofferdam, Green replied in a letter dated October 17, 1965 (Exhibit 212), “We did try to do exactly what we had formerly advised you we would do ”, i. e., remove the shot rock. James knew what the consequences would be to the dredge if shot rock were placed on the cofferdam system, but it willfully proceeded to do so. It subsequently promised to remove the rock, but its removal efforts were negligible. Defendant James insists that its promise to remove the rock was an unenforceable “voluntary commitment” which was without consideration and not legally binding. However, the court finds that plaintiff did give valid consideration. Plaintiff could have abandoned or rescinded the contract upon recognizing the material breach of contract which was caused by defendant. Instead, plaintiff attempted to perform as expeditiously as possible in order to comply with the defendant’s continuing requests that E & R complete its work under the contract and as required by Para. 5 of the subcontract. “5) SUBCONTRACTOR shall exercise due diligence and reasonable care to perform upon request by contractor ; and complete the subcontract part of the work within such time as the work of CONTRACTOR or other subcontractors shall not be delayed; . . .” Exhibit 131. The court holds that James’ conduct, in attempting to remove the shot rock, was not a gratuitous act, but evidence of a promise to perform on the part of James. James acknowledged its responsibility for the unwarranted presence of the shot rock on, the cofferdam. E & R reasonably relied upon James’ promise to remove the shot rock and the court therefore holds that James is equitably estopped from denying that the promise is without legal effect. “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Restatement of Contracts, § 90; Corbin, Yol. 1A, § 204. The gravamen of the doctrine of equitable estoppel is that the party pleading the doctrine had been induced to rely upon certain representations, not that he had been fully aware of the consequences of reliance should it prove to have been mistaken, and that the conduct of the person who made the representations had been such as to induce the party to change his position in good faith, or such that a reasonable man would have relied on the misrepresentations. See generally United States v. Reliance Insurance Co., 436 F.2d 1366, 11 A.L.R.Fed. 911 (10th Cir. 1971). Because the Miller Act does not furnish a cause of action in quantum meruit in disregard of the provisions of an express contract, to the extent that a remedy in quantum meruit is provided by applicable state contract law, such a remedy may be asserted in a suit under the Miller Act. United States v. Premier Contractors, Inc., 283 F.Supp. 343, 349 (D.Me.1968), and citations contained therein. Defendant brought itself within the rule first enunciated in such decisions of the United States Supreme Court as United States v. Smith, 94 U.S. 214, 24 L.Ed. 115 (1877); United States v. Barlow, 184 U.S. 123, 22 S.Ct. 468, 46 L.Ed. 463 (1902); United States v. Behan, supra; and particularly Anvil Mining Co. v. Humble, supra, wherein it was said, “A party who engages to do work has a right to proceed free from any let or hindrance of the other party, and, if such other party interferes, hinders, and prevents the doing of the work to such an extent as to render its performance difficult and largely diminish the profits, the first may treat the contract as broken, and is not bound to proceed under the added burdens and increased expense.” 153 U.S. 540, at 552, 14 S.Ct. 876, at 880, 38 L.Ed. 814. In Behan it was said that when a party prevents the other from performing, it is estopped from denying the injured party has been damaged; and in Barlow, the court said that the interference with work of driving piles by the drop-hammer process was the “exercise of superintendence and unwarrantable superintendence”; that it was “improper interference, . . . in a legal sense.” 184 U.S. 123, 137, 22 S.Ct. 468, 474, 46 L.Ed. 463. In United States v. Smith, supra, the interference was an unwarranted suspension of work, and damages were awarded on this basis. It does not appear that there was an express provision in the contract prohibiting suspension of the work. And in Barlow the Secretary of the Navy ordered certain changes in the way piles were being driven. There is no indication that the contract in that ease affirmatively barred such an order, yet damages were awarded on a quantum meruit basis on the ground that this constituted improper interference on the part of the defendant. A breach may occur, even in the absence of an express contract provision barring the act causing the breach. Defendant materially interfered with the performance of the subcontractor work of E & R when it failed to remove promptly the large quantities of shot rock which it had wrongfully deposited on the cofferdam system. This was a material breach of the subcontract which had the effect of a revision and abandonment of the contract by defendants, thus justifying the plaintiff to proceed in quantum meruit. James’ conduct constituted a breach that was “so substantial and fundamental as to go to the very root of the contract.” United States v. Southern Construction Co., 293 F.2d 493, 498 dictum (6th Cir. 1961); Anvil Mining Co. v. Humble, supra; United States v. Behan, supra; United States v. Barlow, supra; United States v. Smith, supra; United States for Use of Susi Contracting Co. v. Zara Contracting Co., 146 F.2d 606 (2d Cir. 1944). See United States v. Ross Corporation, supra, 385 F.2d at 567, for a decision by the Sixth Circuit Court of Appeals which applied the principle laid down by the Supreme Court of the United States which allowed recovery for a wrongful interference or concealment of a material condition. Accordingly, the court holds that E & R is entitled to recover under quantum meruit because of James’ material breach of contract. The court holds that the circumstances described above constituted a gross and material interference with the right of E & R to conduct its work free from such interference, and thus constituted a breach of contract on the part of James, which breach by James increased the cost of performing the work, and the reasonable value of the services rendered by E & R. Damages — Shot Rock Claim One who voluntarily and wrongfully interferes with performance by the other party is estopped from denying the injured party has been damaged to the extent of his actual loss and damage incurred. United States v. Behan, supra. As a consequence of the shot rock difficulties, E & R’s dredge was only able to excavate 1124 cubic yards per day while removing the cofferdam, compared with the 5608 cubic yards dredged per day as achieved in 1965 during its previous dredging operations on this work site. The dredge and all of its accessories, when purchased new at the beginning of the Cordell Hull project, cost E & R $313,925. E & R operated the dredge on a 22-hour basis with a four-man day shift and a three-man night shift which, when averaged, resulted in a direct wage cost of $12.13 per hour. Each hour of down time cost E & R $135.27. During the cofferdam removal phase of the dredging, E & R suffered 1,108.25 hours of down time as a direct consequence of shot rock difficulties and damage, which when multiplied by the $135.27 figure, results in a net loss to E & R of $149,912.98. E & R also expended $13,570.28 for repair parts purchased from the American Marine and Machinery Company, which were utilized to repair shot rock damaged components in the dredge. E & R expended $16,978.82 for replacement pipe, hose, and repair materials purchased from other sources which were attributed to shot rock damage to the dredge and its accessories. In addition, E & R expended $691.99 for extra labor (personnel in addition to the regular dredge crew whose wages were included in the $135.27 calculation), and $433.25 for machinery costs used in conjunction with repairs made to the system as a consequence of shot rock difficulties. Total damages were therefore as follows: Down time: 1108.25 hours at $135.27 per hour......... $149,912.98 AMMCO repair parts ............................... 13,570.28 Pipe, hose, and material purchased from other sources ... 16,978.82 Extra labor ........................................ 691.99 Machinery utilized in repair effort.................... 433,25 Total .................................. $181,787.32 Defendant argues in its post trial brief that plaintiff neglected to take into account the “cost of ownership” concept of damages for idle equipment, i. e., one-third of the rental value. Defendant neglected to recall the testimony that the idle equipment rate would not be applicable to dredge down time because it was required to be kept operational with a crew due to the fact that it would be dangerous to do otherwise. (Tr. 525-526). Defendant also asserted that plaintiff failed to take into account and make proper allowances for normal down time. The evidence is clear that such allowances were made and taken into account. Reference is made to Exhibit E, Plaintiff’s Answers to Defendant’s Interrogatories, and particularly to the answer to Interrogatory No. 17(e): “Yes; the dredge was down approximately 125 hours between July 12, 1966 through January 7, 1967 for routine repairs performed by Plaintiff’s personnel which were not charged to or attributable to the shot rock problem. Repair parts and services totaling $11,052.49 were purchased from AMMCO between July 1, 1966 through January 7, 1967 which were not attributable to or charged to the shot rock problem.” Mitigation The calculation of the amount of the loss to E & R as a consequence of shot rock problems was uncontroverted at trial. The court finds that the source of this loss was the direct consequence of the wrongful conduct of the defendant. In lieu of presenting offsetting evidence directed at the cost of plaintiff’s losses, defendant argues that plaintiff failed to mitigate its damages. The burden of showing that plaintiff could have mitigated its damages after defendant’s breach of contract is on defendant. Tampa Electric Company v. Nashville Coal Company, 214 F.Supp. 647, 652 (M.D.Tenn.1963). James maintains that the choice of an efficient method of excavation rested with E & R, which should have used a method of removal other than dredging for that part of the work where the existence of rock may have made dredging unfeasible, and that proper excavating procedure would have indicated that the dredge should have been preceded by a dragline to locate and remove shot rock. James contends that if E & R had brought in large draglines, mounted in barges, complete with the necessary tugs and trucks, the substantial additional dredging cost could have been mitigated. The proof showed, however, that E & R did not have any large draglines, or barges, or tugs, and was generally not equipped to perform the excavation in any manner other than the manner which had been originally planned several years earlier. No showing was made one way or the other whether E & R could have raised the capital necessary to obtain this equipment, found other work for its dredge, which had been purchased for this job, and completed the cofferdam excavation with draglines and clam shell buckets for less than the increased cost which they incurred by continuing with the dredging operation. The court finds that E & R had no opportunity to realize the full impact of James’ conduct of dumping shot rock on the cofferdam until E & R’s dredging operation was at a point of no return. The dredge originally was used on the least contaminated section of the cofferdam. E & R was promised by representatives of James that the shot rock would be removed. James’ work crew and equipment was observed making efforts to remove the rock. The work crew removed the larger and more apparent shot rock which had previously been observed, although a great amount of this rock was also dumped into the water along the bank of the cofferdam. E & R reasonably relied upon James’ assurances that the shot rock had been successfully removed. Under these circumstances the court finds that it was unreasonable to expect that E & R should have been able to anticipate the rock damage which it subsequently encountered due to the rock which had become submerged underwater along the base of the cofferdam and which had blended with the ground which made up the cofferdam. The remaining rock was undetectable as to its amount and actual location; however, it was in an area which was required to be excavated by E & R. (Tr. 172-73, 184-88). The court holds that James failed to carry its burden of proof on mitigation of damages because it did not demonstrate by a preponderance of the evidence that the alternative method of removal was feasible or had any likelihood of success. Defendant failed to offer any convincing evidence to this court that a dragline or clam mounted on a barge would have effectively removed the shot rock. In fact, the court finds that there was some doubt as to the ability to even float a barge in the channel. (Tr. 173) Homer Manley, defendant’s strongest witness in support of the proposition that there was an alternative means of removing the rock, when asked whether a clam shell could have removed all the rock, responded: “Well, perhaps it could.” (Tr. 1099). The court also finds that defendant failed to carry its burden of proof that the alternative method would have been less expensive for E & R. The only evidence which defendant offered on this matter was the testimony of Manley that he would estimate that the cost of removal would be “a couple hundred dollars” per hundred foot. (Tr. 1103). The court is unable to place much reliance in the accuracy of this estimate. In a case before the Second Circuit Court of Appeals a defendant argued that the construction method used by the plaintiff was not the best or most economical. The court reasoned: “Even if Scaduto’s mode of operation was improper, Orlando, whose agents were in constant supervision of the project, appears largely to have acquiesced in it from the beginning of the work in July, 1955, to April, 1956, and took no steps to change it. Under such circumstances, Orlando may be held to have waived any fault in Seaduto’s manner of operation.” Scaduto v. Orlando, 381 F.2d 587, 593 (2d Cir. 1967), citing United States for Use of Susi Contracting Co. v. Zara Contracting Co., supra, 146 F.2d at 608. Defendant proffered no evidence that it attempted to stop E & R from using a dredge to remove the shot-roek-contaminated cofferdam; instead, the proof clearly shows that James insisted upon E & R’s completion without interruption or delay. The defendant maintains that E & R’s dredging difficulties were complicated by “inexperience of Plaintiff’s management personnel, particularly its Dredge Captain, Ron Ward, who was 22 years of age, with two years of experience:” The court finds this assertion to be without merit or substance. Although the evidence in the record reflects that the dredge captain was only 22 years of age at the time of this job, there is no evidence that he operated the dredge in a negligent manner. He was directed to continue with the use of the dredge, after the shot rock problems arose, by his superior, E. Ward, who was relying upon the promises of James that the rock would be removed. Defendant’s conduct of dumping shot rock in plaintiff’s dredging area was in careless disregard of the contract rights of plaintiff, and constitutes a material breach of the contract by defendant in connection with a substantial part of the work. It is an example of interference with plaintiff’s operations, within the meaning of legal interference as it has been defined by the United States Supreme Court in Barlow and Anvil Mining and the other cases already cited. Plaintiff is clearly entitled to recover in quantum meruit the increased cost occasioned by the presence of the shot rock, which includes damage to equipment and unanticipated delay. In reference to the argument that E & R should have been using a dragline operation, or at least should have changed to a dragline, instead of continuing to use the dredge, the record shows that defendant knew that plaintiff was going to use a dredge to remove the cofferdam and cross-dike. E & R invested $313,925 in a dredge. James tendered no evidence that any of its personnel recommended to E & R to change the manner of its operation when rock difficulties were encountered. In light of the factual background, the court finds that James was obligated to remove the rock and that if a dragline mounted on a barge was an adequate means of accomplishing this objective, then James should have adopted this method. Plaintiff was free to choose its own mode of operation without let or hindrance from defendant, but when defendant took on the responsibility of unjustifiably interfering with plaintiffs operation, it took on the responsibility for any damage caused by its own conduct. After standing by and watching the dredge operation as long as it did during the initial stages, James waived any possible right to insist on some other mode of operation on the part of the plaintiff. Scaduto v. Orlando, supra, 381 F.2d at 593. In summary, James had materially breached the contract by its wrongful conduct. E & R could have elected to rescind or abandon its duty to complete its performance under the contract upon defendant’s breach. United States v. Atlantic Dredging Co., 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735 (1920). Instead, E & R attempted to complete performance and in its attempt to avoid the consequences of James’ breach, E & R incurred losses and additional expenses which are recoverable as damages. Restatement of Contracts, § 336(2), Tampa Electric Co. v. Nashville Coal Co., 214 F.Supp. 647, 652 (M.D.Tenn.1963). The court finds that plaintiff's decision to complete performance was reasonable in light of the circumstances and factual background of this case. Tampa Electric Co. v. Nashville Coal Co., supra, at 652. Accordingly, the court holds that E & R is entitled to recover One Hundred Eighty-One Thousand Seven Hundred Eighty-Seven Dollars and Thirty-Two Cents ($181,787.32) under this claim. Item (b). ITEM 2 CLAIM Under this claim plaintiff maintains that it was not paid according to the terms of the parties’ contract, and, in the alternative, that there was no meeting of the minds as to the terms of the subcontract regarding performance and payment for plaintiff’s work done under this item. (See Subcontract attached hereto in the Appendix, Supplement, pages 1 and 2.) James was paid on a lump sum basis $230,000 by the government for all work performed under Item 2 of its prime contract with the Corps of Engineers. E & R was paid $10,259.20 for Item 2 under its subcontract with James. Item 2 is listed in the subcontract as follows: Item No. Description Estimated Unit Quantity Price Amount 2 Lock cofferdam 100,000 c.y. 0.64 64,000.00 The parties stipulated as follows: “4. A cofferdam system was ‘placed’ (Use-Plaintiff insists same was ‘built’ and Defendants insist that same was ‘completed’ by the addition of materials to existing soil) around the construction area which, through the course of the project, was referred to by both the Use-Plaintiff and the Defendants as being in four parts, the upstream 480 dike, the downstream 480 dike, the downstream 456 dike (sometimes called the 460 dike) and the cross-dike. “5. The cofferdam system was ‘placed’ by stripping the vegetation from the existing earth along with its attached soil, replacing the stripped material, and various other steps including the addition of 16,030 cubic yards of earth to the existing soil and final grading and sloping the total dike system into its finished form.” James was to pay E & R for building the cofferdam system by taking final cross-section measurements of the completed cofferdam system. James paid E & R for a total of 16,030 cubic yards of material which had been added to the natural ter