I cannot agree in affirmance of the judgment entered in the court of claims. Were it not for the serious consequences which follow, some of which are hereinafter noted, I would be disposed to acquiesce in the conclusion reached by Mr. Justice REID on the ground that this case is controlled by the majority opinion inHersey Gravel Co. v. State Highway Department, 305 Mich. 333. The factual background, at least in a general way, and the law issues involved are the same in the instant case as those before the Court in the Hersey Gravel Company Case, But I have an abiding conviction *Page 203 that the result reached by the majority of the Court in theHersey Gravel Case was erroneous; and notwithstanding the dissenting opinion of Chief Justice BOYLES in that case is quite applicable to the instant case, I am constrained to add the following.
Two important features of this record should not be ignored. (1) The trial judge's finding, amply supported by the record, is to the effect that defendants herein were not guilty of fraud or deceit. And (2) the plans and specifications incident to the construction of this highway were furnished by the State and known to plaintiff before it entered into the contract to construct the same for an agreed consideration.
Plaintiff's contract required it to complete this project: "in strict accordance with the plans, specifications and proposal therefor." The proposal recites that the contractor agrees: "To complete the work herein described in strict accordance with the plans therefor and in strict conformity with the requirements of the 1934 Standard Specifications for Road and Bridge Construction of the Michigan State Highway Department. The Standard Specifications contain the following:
"Bidders shall carefully examine the proposal, plans, specifications and supplemental specifications and inspect thesite of the proposed work in order to satisfy themselves, byexamination, as to all local conditions affecting the contract."
Further, there plainly appears upon the plans which constituted the basis of plaintiff's bid the following:
"SOIL NOTATIONS
"Soil notations shown on the plans are for information only and shall not be considered to relieve bidders of the responsibility to satisfy themselves, *Page 204 by examining the site of the proposed work, as to the actual soil conditions."
Plaintiff's claim of right to recover is upon the theory that it was misled by the notations on the plans as to soil conditions, and it would have the Court shut its eyes to the above-quoted provision embodied in the same plans. Such a position is wholly untenable.
Not only was plaintiff as a prospective bidder on this project warned by the above-quoted provision in the plans which were the basis of its bid, but obviously it knew that it was burdened with ascertaining soil conditions through its own efforts as the result of which it actually made a personal investigation of such conditions prior to submitting its bid. If under the circumstances of this case the State is not protected by the terms of the contract, the obvious result is that the State is deprived of its right to make a contract of this character which is binding upon the opposite party thereto. And further, it deprives the State of the benefit of seeking competitive bids for such undertakings, if it is to be held that the lowest bidder, having eliminated the other bidders and having obtained the contract, can be relieved of his contract obligation in the event that unanticipated difficult conditions are encountered.
Under the heading "Unanticipated Difficulty," the Restatement of the Law on Contracts contains the following:
"Facts existing when a bargain is made or occurring thereafter making performance of a promise more difficult or expensive than the parties anticipate, do not prevent a duty from arising nor discharge a duty that has arisen." 2 Restatement of the Law, Contracts, § 467, *Page 205
While clarification of the foregoing proposition seems quite unnecessary, the first illustration given in the Restatement in connection with the above quotation is as follows:
"A contracts with B to erect a building on a certain lot. A finds on starting performance that it is unexpectedly expensive to lay the foundation as he contracted. He does so, however, and partially erects the building when it is destroyed by an earthquake that destroys the foundation as well as the partially erected building. A's duty is not discharged."
Further, the plaintiff in this case ought not to profit at the expense of the State by its contention that because it was somewhat unskilled in its line of activity it did not fully understand the meaning of the "Soil Notations" indorsement upon the plans. Nor should plaintiff, after having bound itself by the terms of the contract, be now heard to say that the time intervening between the first publication for competitive bids and the date for submitting such bids was too brief to enable it to make a thorough investigation of the details of the work it contracted to perform. When plaintiff signed the contract the extent of investigation made by it was known to it and was solely a matter of its responsibility.
Under the findings of the trial court plaintiff is not entitled to recover. We quote the following from such findings:
"Being somewhat familiar with the vicinity in which the road was to be built, * * * (Knapp) became interested in the job. * * * After studying the plans and specifications he made a trip to the site of the job and spent a part of two days observing the territory through which the projects extended. * * * *Page 206
"This action is planted on the theory of breach of warranty and breach of contract. * * * The Court was impressed that the State highway department had considerable information as to subsoil matters which, in violation of its duty, it neglected to make available in unmistakable clear-cut terms to those it was asking to bid upon the project. * * * However, I was equally impressed that there was no intent to wilfully mislead any bidder. There was not a scintilla of evidence tending to show bad faith on the part of defendant's employees. * * * Nevertheless they were mistaken in the legal duty resting upon their shoulders. * * *
"Engineers from the department evidenced no surprise at the difficulties encountered by the Knapp Company and say in substance that the conditions described by claimant would be exactly what they would expect from the soil notations. * * *
"The court finds it was the clear legal duty of the department to furnish all the available information on this subject in a form and in a manner that would appraise [apprise?] the prospective bidders of the nature of the difficulties to be encountered and in terms that would be readily understood by the average road contractor."
The trial court's fundamental error is in the conclusion last above quoted. These parties were dealing at arm's length incident to a project which all parties knew required skill in its performance. The State should not be penalized on the ground that plaintiff was not sufficiently skilled (as it now claims) to understand the technical notations on the plans and specifications as to soil notations. This record cannot be construed to sustain a conclusion that defendants or their employees were guilty of fraudulent concealment of any known fact which they were in duty bound to convey to prospective *Page 207 bidders. The trial court's decision in this respect was in error. This is true both because of the fact that these parties were dealing at arm's length, and especially because of the fact that the plans bore the notation hereinbefore quoted that:
"Soil notations shown on the plans are for information only and shall not be considered to relieve bidders of the responsibility to satisfy themselves, by examining the site of the proposed work, as to the actual soil conditions."
And further, as above noted, there was embodied in plaintiff's contract the provision of the standard specifications of the Michigan State highway department:
"Bidders shall carefully examine the proposal, plans, * * * and inspect the site of the proposed work in order to satisfy themselves, by examination, as to all local conditions affecting the contract."
As quoted above from the court's opinion: "This action is planted on the theory of breach of warranty and breach of contract." Careful review of this record fails to disclose testimony from which it can be concluded that there was any warranty in the contract or any other phase of the contract which was breached by defendants. Plaintiff does not contend, nor could it, that it is entitled to recover against the State or its agencies in tort. This is true because of the State's nonliability in that type of action on the ground of sovereign immunity. In its legal aspect the instant case is in the same field and should be controlled by our decision in Atletwed v.City of Marysville, 295 Mich. 102, wherein the plaintiff contractor was denied right of recovery. *Page 208
The judgment entered in the court of claims should be reversed without a new trial and with costs of both courts to defendants.
WIEST and BOYLES, JJ., concurred with NORTH, J.