Bayne v. United States

Citations

• 195 F. 236
• 115 C.C.A. 188
• 1912 U.S. App. LEXIS 1367

Syllabus

<p>1. United States (§ 70*)—Contracts—Construction.</p> <p>A contract for the construction for the United States of a bridge over a river required the contractor to drive 206 piles or more of about 30 feet in length to such a depth that the pile would not penetrate 5 inches or more under a specified number of blows.. Because of the nature of the subsoil, longer piles were necessary, and a supplemental contract provided that if the engineer officer in charge of the work should deem it necessary to drive any number of piles to a greater depth than 33 feet, the United States should pay the contractor the actual cost of furnishing and driving the same less a specified sum for each pile which was the estimated cost of a 33-foot pile in place. To perform the work contemplated, the contractor furnished 191 piles over 33 feet in length, but in driving the same it was found that it was necessary to drive only 89 of such piles to a greater depth than 33 feet, but the contractor furnished and started to drive 191 piles of sufficient length to be driven more than 33 feet if necessary. Sold, that the supplemental contract imposed on the engineer officer the duty of determining whether it was necessary to drive a pile more than 33 feet before it was driven, and where he refused to exercise his best judgment until after the piles were driven, the contractor was entitled to compensation for the actual cost of driving 191 piles which could have been driven more than 33 feet, less the sum fixed for driving a 33-foot pile in place.</p> <p>[Ed. Note.—For other cases, see United States, Cent. Dig. § 53; Dec. Dig. § 70.*]</p> <p>2. Appeal and Error (§ 1149*)—Findings op Fact—Correction op Errors.</p> <p>Where the error of the trial court as to a finding of fact arose out of an erroneous construction of a contract, the Circuit Court of Appeals, though without power to find the facts for itself, has power to correct the erroneous finding by correctly construing the contract, and render jud