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April 3, 1968


The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 The plaintiff, Richard Construction Company, Inc., sued the defendant, Monongahela and Ohio Dredging Company, for the breach of a contract to transport for $300 plaintiff's one-story frame building from the bank of the Monongahela River near Maxwell Dam to a point on the same bank approximately seven miles up that navigable river at Rice's Landing near Old Lock No. 6. The defendant contracted to move the building but damaged it in the process, and failed to deliver it at the agreed destination. The plaintiff contends that the damage was caused by the negligent breach of its contract with the defendant. The defendant denies negligence and contends that the plaintiff's officers misrepresented the weight of the building, which misrepresentation was the cause of the damage. The defendant counterclaims for the cost of the transportation at $65 per hour, or a total of $910, which it contends was the agreed price.

 The building involved was owned by the Corps of Army Engineers who put it up for sale at public auction in the latter part of December, 1965. Mr. Richard K. Lightholder, the president of the plaintiff company, contemplated bidding on this building and relocating it on the company's land. Mr. Lightholder asked Mr. A. H. Locke, vice-president of defendant company, how much it would cost to transport the building on the river to the designated point. Since the defendant company was then dredging in the vicinity of Old Lock No. 6 and had its equipment available, Mr. Locke estimated the cost of transportation at $300 to $350. Subsequently, Lightholder pointed out to Locke the destination point.

 On December 23, 1965, Lightholder's bid of $400 for the building was accepted by the Army Engineers, it being the highest and best price bid. A condition of the sale was that plaintiff would move the building from the land on which it was erected. Plaintiff did not undertake to move the building from that land until June, 1966, about 4 months after the defendant had finished its work at Old Lock No. 6. In June, the defendant's equipment was some ten miles down river from Maxwell Dam at Palmer, Pennsylvania. *fn1"

 The plaintiff did not meet its burden of establishing by a fair preponderance of the evidence a bilateral contract whereby defendant was to transport plaintiff's building to the prearranged destination up the river for the sum of $300. On the other hand, the court finds that the plaintiff accepted defendant's offer to transport the building to the prearranged destination at the rate of $65 an hour.

 The court finds as a fact that the building weighed less than 25 tons. It was represented to Locke that 20 to 25 tons was the approximate weight of the building. Sinclair thought the building weighed between 20 and 25 tons and urged Locke to look at the building himself "just to be on the safe side." Locke, whose experience in lifting heavy loads with his crane was considerable, made it his business to look at the building on June 25th, the day before the transportation was to take place, and at least tacitly concurred in that estimate. An experienced builder, Mr. Elmer W. Dickey, Jr., examined the building before and after June 26th and estimated its weight at approximately 20 tons. After the damage occurred Lightholder by standard engineering methods calculated the weight of the building together with underpinning and lifting bar to be less than 25 tons. At trial Locke was of the opinion that the building and underpinning weighed 35 tons. All the foregoing were competent to express opinions concerning the weight of the building. We think the weight of the evidence is in favor of the plaintiff.

 Some time prior to June 26th, the plaintiff had engaged T. R. Lyda Company to construct the underpinning and to move the building from its location to the bank of the river. At that place, plaintiff's employees attached the cable slings to the underpinning and to a lifting bar procured from Fort Pitt Bridge Company, and in all respects prepared the building for the defendant's crane to lift it from the bank of the river and place it on a scow for the trip up the river.

 On June 26th, a Sunday, Locke and his crew started to work at 7:00 A.M. and were underway at 7:50 A.M. with defendant's equipment consisting of a derrick boat, a dump scow, and a tugboat. Locke himself operated the crane and was in command of the crew consisting of a navigator and a fireman. On that day, these men were in the employ of the defendant company and were paid by defendant company for the work performed by them in transporting the plaintiff's building. At all times, they were under the command of Locke.

 The equipment arrived at the shore where the building was located at about 10:00 o'clock. The defendant's crane was rigged with a two-part line. The line was hooked to the lifting bar, and the crane operated by Locke proceeded to drag the building to the edge of the bank, where it became snagged. Plaintiff, who happened to have a high-lift available, at the request of Locke pushed the building off the bank and it was suspended over the water at the end of the crane's cable. At this point, Locke found that his equipment was unable to lift the building. Moreover, the building was slanted either because the cables had been pushed out of position when the building was dragged to, and snagged on, the bank or they had not been properly placed by plaintiff's workmen.

 Prior to dragging the building to the edge of the bank, Locke made no test to ascertain whether the crane could lift the building with a two-part line. A four-part line could have been rigged in a short time. Locke did not ascertain whether the cables had been properly affixed so that when suspended the house would be level. The crane was unable to lift and place the slanted building on the dump scow.

 After consultation with Sinclair, it was agreed that Locke would transport the building several hundred feet up the river to a low bank where it might be beached and leveled. This plan proved impossible because the boom of the crane could not get under intervening high voltage wires (T., pp. 185-186). Following further conversation with Sinclair, and there being no reasonable alternative, Locke towed the building, emersed, up the river and deposited it on a low bank 800 to 1000 feet from the agreed destination point. It did not appear from the evidence that there was any other low bank on which the building might have been placed without the necessity of emersing it in the river.

 Towing the house through the river caused considerable damage, inter alia, to the ceiling, walls, floor, joists, roof, door, jambs, windows and exterior siding; the toilet facilities had to be reset, and the heating and electrical equipment had to be cleaned. It was not disputed that ...

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