E. H. Morrill Co. v. State

E. H. Morrill Co. v. State

Opinion

 [*789]  [**552]  [***480]    Plaintiff E. H. Morrill Company, as general contractor for the construction of a facility for the State of California, appeals from a judgment of dismissal after the trial court sustained, without leave to amend, the state's demurrer to a complaint for damages for the costs [****2]  of performing additional subsurface rock excavation pursuant to the contract. The damages are alleged to have resulted from the state's misrepresentation or warranty as to subsurface conditions the contractor would encounter in excavating for the facility.

The complaint alleged that plaintiff and the Department of Public Works contracted in 1962 for the construction of the Mono-Inyo Conservation Facility in accordance with plans, specifications and special conditions attached to the written contract. Special Condition 1A-12 provided: "Special Site Conditions. The site is situated on a terminal moraine. The soil is composed of granite boulders, cobbles, pebbles, and granite sand. Boulders which may be encountered in the site grading and other excavation work on the site vary in size  [*790]  from one foot to four feet in diameter. The dispersion of boulders varies from approximately six feet to twelve feet in all directions, including the vertical." (Italics added.)

The complaint alleged further that the Special Condition was false in that it misrepresented the true character of the site, and that the boulders found were substantially larger and more concentrated [****3]  than represented. It is further alleged that the state knew or should have known that the representation was false, because of the state's superior knowledge of the site. Although plaintiff admits to inspecting the site, it alleges that it was unable to discover facts to contradict the representations, and that it relied upon those representations in submitting the bid that became the basis for the contract. Damages are alleged in the amount of $ 28,750, proximately caused by the misrepresentation of site conditions. A second cause of action alleged the same facts on a theory of implied warranty. A third cause of action, on a common count, derives its validity or lack thereof from the propriety of either of the first two causes of action.

The trial court sustained the demurrer and entered its judgment after taking judicial notice of section 4 of the General Conditions of the contract between the parties. It held, pursuant to that section, that the state as a matter of law could not be deemed to have warranted the condition of the job site by its representations in section 1A-12 of the Special Conditions. Section 4 of the General Conditions read, in pertinent part: "Examination [****4]  of Plans, Specifications and Site of Work: The bidder shall examine carefully the site of the work and the plans and specifications therefor, and shall satisfy himself as to the character, quality, and quantity of surface and subsurface  [**553]   [***481]  materials or obstacles to be encountered. He shall receive no additional compensation for any obstacles or difficulties due to surface or subsurface conditions actually encountered.

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