(concurring in result). In concurring with Mr. Justice Boyles’ result, this opinion will express concern for the particular fears which gave rise to his dissents in the Kersey and Knapp Cases. (Hersey v. State Highway Department, 305 Mich *544333 [173 ALR 302]; W. H. Knapp Co. v. State Highway Department, 311 Mich 186.)
This Court should not create a situation where contractors bidding on public works do so with one eye on the job and one on the courts.
Plaintiff Valentini prevailed in the court below by-proving to the satisfaction of a jury that he had suffered damage to the extent of $115,741.15 as a result of the city of Adrian’s violations of certain implied warranties which this Court has previously held to be made as a matter of law by public bodies when they solicit competitive bids on public works. The 2 essential implied warranties appear to be, first, that the material information furnished by the public body, and relied upon by the successful bidder, be true (at least to the extent of the public body’s knowledge); and, second, that it represents all the material knowledge possessed by the public body at the time the bidding documents are prepared which knowledge would have an important bearing upon the execution of the contract.
In the instant case the plaintiff proved only one relevant item pertaining to inaccuracies in the plans and specifications submitted by defendant city of Adrian to bidders on the proposed sewer contract. Significantly, however, that inaccuracy appears to be the omission of the words “water — December 12, 1924” at a depth of 3 feet on a certain boring “P” which went to a total depth of 17-1/2 feet. The record indicates that this boring was the closest one to the area in which plaintiff ran .into subsurface water and quicksand which proved disastrous to his sewer building efforts.
Aside from the testimony referred to above, plaintiff’s case is founded mainly upon proving that the defendant city of Adrian violated its implied warranty of disclosure of all material knowledge which *545it then had which was essential to the proper bidding of this sewer contract.
If the statutory requirement for the public bidding of public works imposed upon municipalities (CL 1948, § 123.204 [Stat Ann 1949 Rev § 5.2704]) is to have any value the doctrine laid doAvn in the Kersey and Knapp Cases, previously discussed by my Brother, must be somewhat narrowly construed. Michigan has already gone beyond the general rule in most jurisdictions as stated in ALR:
“The general rule maybe deduced from the decisions that where plans or specifications lead a public contractor reasonably to believe that conditions indicated therein exist, and may be relied, upon in making his bid, he will be entitled to compensation for extra work or expense made necessary by conditions being other than as so represented.” 76 ALR 269.
We should not extend the present Michigan rule to allow a successful low bidder to transform his fixed-price bid into a cost-plus contract by the simple expedient of proving that conditions which he encountered below the surface of the ground had been there all along and that somebody at some time knew of them or had reason to suspect their existence. The knowledge which the city was required to .disclose was knowledge which it presently had through information or records in possession of its officials or agents.
In the writer’s view, in 2 instances the trial judge received in evidence testimony which, if its receipt is approved here, would extend the implied warranty to the dangerous degree described above. All of the testimony of Ernest Hengst, pertaining to the knoAvledge he derived while employed by some forgotten contractor in digging a sewer in 1908 in the general area of the current dispute, is inadmissible under the *546view just stated. His testimony was extremely remote both, as to time and place and unrelated to any present general knowledge in the community. Asked, for example, whether the sewer he worked on was still there, Mr. Hengst replied, “I don’t know. I haven’t been there this afternoon. I haven’t been there for about 47 years.” Mr. Hengst was never an employee of the city of Adrian and his testimony that unnamed city of Adrian officials viewed the 1908 sewer digging does not serve to charge present day city of Adrian with Mr. Hengst’s recollections of his 1908 experience. Nor does his testimony identifying a now deceased commissioner of public works as having been on the scene, serve this purpose. The objections to Mr. Hengst’s testimony should have been sustained.
Similar objections were made to the testimony of Alden D. Pifer. Mr. Pifer, however, was a former city employee and he testified that he operated a sewer-digging machine on the 1924 sewer project in this same general vicinity under the orders of the then commissioner of public works. Under these circumstances it was within the discretion of the trial court to admit his testimony as to what he did and saw in the performance of his duties as a city employee in relation to the 1924 sewer, particularly since city records of this job showing quicksand were in the hands of the engineers who designed the sewer under litigation. It was hardly permissible, however, over proper objection, to allow Mr. Pifer to give hearsay testimony as to the statements pertaining to quicksand which the then, and now deceased, commissioner of public works made to him.
The most damaging testimony to defendant’s case is that of Freeman Ansted who was subpoenaed by the plaintiff under the statute. At the time of his *547testimony he was employed as foreman of the public works department of the city of Adrian, had served as commissioner thereof from 1945 to 1949 (the plans and specifications for this job were prepared in 1950), and was described as the number 1 employee on the seniority list of the department. This witness’ testimony contained the following:
“When I was commissioner I had some difficulty with the one sewer in that area. I had a cave-in. The tile tipped in the quicksand and the earth washed •down in and I had to fix it of course. * * * I went down to look things over. When I got down there there was a hole washed in the ground about 25 feet. It was an oak tree right down in the bottom •of the hole. Took the tree right down. We went to fix it. We found the tile had tipped in quicksand and standing on end. That was the 54-inch tile. That was the big sewer.”
This record contains, as my Brother has noted, ample evidence from which the jury could have found that the city of Adrian had knowledge of subsurface water and quicksand in the immediate vicinity of the proposed sewer at the time of advertising for "bids and that the plans and specifications actually furnished were misleading. The writer considers the admission of the Hengst testimony and the portion of the Pifer testimony referred to as error, but under the total record not such error as would be prejudicial or likely to alter the result.
My Brother has referred at some length to his views on the function of the dissenting opinion. In this regard the writer prefers Chief Justice Charles Evans Hughes’ view:
“A dissent in a court of last resort is an appeal to. the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly •correct the error into which the dissenting judge *548believes the court to have been betrayed.” Hughes, The Supreme Court of the United States (1928), p 68.
For the reasons stated I concur in Mr. Justice Boyles’ result.
Smith, J., concurred with Edwards, J. Black, J., took no part in the decision of this case.