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tional compensation, claiming that it is entitled to an equitable adjustment on this account. It also sues for the cost of removing some material which collected in the channel of the river after the dredging had been done, and to recover liquidated damages deducted, and, finally, for increased costs incurred as the result of the enactment of the National Industrial Recovery Act. (U. S. Code, Title 15, section 701)

This is another case in which there has been joined two separate and distinct causes of action, one a suit under a contract, and the other a suit arising under an Act of Congress. This is bad pleading, but since this case has been pending here for some time we overlook it and proceed to consider the two causes of action.

The largest claim is that resulting from the removal of a large quantity of hardpan. The plaintiff says that no one expected to encounter this hardpan and, therefore, for this it is entitled to an equitable adjustment under article 4 of the contract. The defendant says that it gave no warranty that hardpan would not be encountered, and in no way misrepresented the situation, and that article 4 is inapplicable.

In 1932 the defendant issued a "Preliminary Notice of the Invitation for Bids for Dredging in Monroe Harbor, Michigan." This notice said:

This office expects to invite proposals prior to the opening of the 1933 working season for the dredging of approximately 3,800,000 cubic yards of material at Monroe Harbor, Michigan-the work to commence on or before the beginning of the season and to be completed by December 1, 1933. In order that prospective bidders may have an opportunity to examine the area of the proposed work before the close of the present season, the following information relative thereto is given.

The material to be removed is believed to be sand, clay, and boulders. However, the price bid per cubic yard for dredging will include the cost of removing all materials encountered, including snags, stumps, trees, underbrush, piling, revetment, stone-filled cribs, and the concrete sub-structure of the Monroe Light. The removal of ledge rock, if encountered, will not be

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required. Probings made by this office indicate that ledge rock will be encountered, if at all, only at the extreme upper end of the proposed work.

Copies of a preliminary location map showing the general features of the proposed work are available in this office and may be obtained, without charge, on request.

The information and data given in this notice are preliminary and tentative only, and are subject to change without notice. More detailed information will be issued at the time of invitation for bids.

Plaintiff received this notice and sent two of its employees to make an investigation of the site. They probed the area to be dredged with an iron pipe and bored 24 or 25 test holes with an auger. This auger penetrated all material in the area, including hardpan, but excepting ledge rock and boulders, and indicated whether the material through which it had passed was hard or soft, but it did not accurately indicate the character of the material.

Subsequent to this the defendant issued its formal invitation for bids. To this was attached the specifications. Paragraph 13 thereof reads as follows:

13. Character of materials.-The materials to be removed are believed to be sand and clay, with some hardpan and boulders, and, in addition: revetment, foundation piling, underbrush, stumps, snags, trees, etc., along the banks of the United States and Monroe Canals; piling, stone-filled cribs, etc., within the contract area; the concrete foundation of Monroe Light; refuse from the Monroe paper mills; and possibly buildings or portions thereof not removed by the owners from within the limits of the proposed work.

Bidders are expected to examine the work and decide for themselves as to its character and to make their bids accordingly. In the event that materials, structures, or obstacles of a materially different character are encountered during the progress of the work, and the cost of their removal or satisfactory treatment obviously would be, in the opinion of the contracting officer, either in excess of, or less than the unit price bid by the contractor, the contracting officer, in either alternative, will then proceed in accordance with the provisions of article

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4 of standard Government Form No. 23, or any authorized revision thereof.

Attached also to the invitation for bids was a map showing the location of places probed by the defendant. This map contained the following data on probing:

The primary purpose of the above probings was to ascertain the existence of ledge rock, and not to discover the character of materials to be dredged. This responsibility was placed upon the bidder, but the defendant furnished it with such information as it had.

Although this map showed that in a number of different holes the probing was "hard all the way," requiring from 125 to 250 blows of a 100-pound hammer to drive the rod from 7 to 11 feet, the defendant did not deduce therefrom that hardpan necessarily would be encountered, but it thought that it might be, and hence included in its specifications of materials to be dredged, "some hardpan." However, when the defendant made its estimate of what the work ought to cost, it did not figure on any hardpan; but this fact was not known to the plaintiff at the time it submitted its bid.

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The plaintiff encountered very much more hardpan than had been expected. The defendant estimated that of the materials dredged about 175,000 cubic yards were hardpan. The plaintiff says that there were about 700,000 cubic yards. Neither party's figures are based upon accurate information, but it is evident that quite a good deal more hardpan was encountered than anybody expected.

However, there was certainly no misrepresentation by the defendant, nor was there any warranty that no hardpan would be encountered. The specifications put plaintiff on notice that it might expect to encounter some hardpan, and bidders were required "to examine the work and decide for themselves as to its character and to make their bids accordingly."

But plaintiff says that whether or not there was a misrepresentation, it is entitled to an equitable adjustment under article 4 of the contract. This article provides in part: "Should the contractor encounter, or the Government discover, during the progress of the work, subsurface and (or) latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, * *" the attention of the contracting officer was to be called thereto and he was to investigate the conditions, and if they were found to be materially different, then he was to make an equitable adjustment of the amount to be paid and the limit of time within which the contract was to be completed. Before plaintiff is entitled to the benefit of this article it must show that the conditions at the site were materially different from those shown on the drawings or indicated in the specifications. They were not different from the conditions shown on the drawings. These drawings showed that certain probings had been soft for a certain distance and "hard all the way" in others. So far as it appears, that information was correct.

Were conditions different from those indicated in the specifications? Paragraph 13 of the specifications provided:

The materials to be removed are believed to be sand and clay, with some hardpan and boulders, and, in addition revetment, foundation piling, underbrush, stumps, snags, trees, etc., along the banks of the United

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States and Monroe Canals; piling, stone-filled cribs, etc., within the contract area; the concrete foundation of Monroe Light; refuse from the Monroe paper mills; and possibly buildings or portions thereof not removed by the owners from within the limits of the proposed work.

This was an indication that the natural riverbed was principally sand and clay, with a minor amount of hardpan and boulders, and that there were, in addition, the other things mentioned. It seems clear to us that a contractor would understand from this specification that the amount of hardpan to be encountered would not be great. If in fact the amount actually encountered was as great as claimed by the plaintiff, we would conclude that the conditions did materially differ from that indicated by the specifications. Plaintiff says that of the 1,592,608 cubic yards of material dredged, 714,741 cubic yards were hardpan. This is about fifty percent, much more than was indicated by the expression "some hardpan." On the other hand, the defendant says that 175,186 cubic yards were hardpan, or 11 percent. We think the expression "some hardpan" would put the contractor on notice that it might expect as much as 11 percent.

Section 13 of the specification provides that in the event that materials are encountered of a character materially different from those indicated in the specifications, or discovered as a result of the bidder's inspection, and the cost of their removal is greater than the price bid, then the contracting officer was required to proceed in accordance with article 4 of the contract. Article 4 requires him to investigate conditions, and if found materially different from those indicated, to make such changes as he might find necessary, and to increase the price to be paid in such amount as he should consider equitable.

The proof shows that he did investigate conditions, and found that of the materials dredged only eleven percent were hardpan, instead of fifty percent, as claimed by the plaintiff. This finding is conclusive on us, unless we determine that it is arbitrary or grossly erroneous, because of the provisions of article 15, providing that