Frederickson & Watson Construction Co. v. Department of Public Works

[516]

Opinion

EATON, J.

*

Plaintiff appeals from the judgment after the trial court sustained without leave to amend defendant’s demurrer to plaintiff’s first amended complaint.

Plaintiff, on August 31, 1966, entered into a contract with defendant to build a portion of state highway. Such contract: consisted of (a) standard specifications, (b) plans, and (c) special provisions. Also- furnished to plaintiff was a document entitled “Mass Diagram,” embodying certain results of earlier investigations of the construction site by defendant. The results of such investigations are referred to-, and their effect defined by sections 2-1.03 and 2-1.04 of the standard specifications as follows: “2-1.03 Examination of Plans, Specifications, Contract, and Site of Work.

“The records of such investigations are

not a part of the contract

and are shown solely for the convenience of the bidder or Contractor. It is expressly understood and agreed that the Department assumes no- responsibility whatsoever in respect to the sufficiency or accuracy of the investigations thus made, the records thereof, or of the interpretations set forth therein or made by the Department in its use thereof and there is no warranty or guaranty, either express or implied, that the conditions indicated by such investigations or records thereof are representative of those existing throughout such areas, or any part thereof, or that" unlooked-for developments may not occur, or that materials other than, or in proportions different from those indicated, may not be encountered.” (Italics added.)

“2-1.04 Mass

Diagram.—If

a mass diagram has been prepared for a project, it will be available to the bidders upon the following conditions:

“The swell or shrinkage of excavated material and the direction and quantities of haul or overhaul as shown on said mass diagram are for the purpose of design only, and in like manner as provided in Section 2-1.03, ‘Examination of Plans, Specifications, Contract, and Site of Work,' concerning furnishing information resulting from subsurface investigations,