Merritt, Chapman & Scott Corporation, a Corporation, and the Savin Construction Corporation, a Corporation v. Guy F. Atkinson Company, a Corporation

This is a diversity case wherein the district court had jurisdiction pursuant to 28 U.S.C. § 1332 , and this court has jurisdiction on appeal under 28 U.S.C. § 1291 .

Appellants contracted to build the Folsom Dam, located on the American River fifteen miles east of Sacramento, California. This required the construction of a temporary or cofferdam above and one below the permanent dam site. A diversion tunnel from the upper cofferdam was required to divert the water below the lower cofferdam. The latter was to prevent backing up of water from below into the area where the permanent dam was being constructed.

Appellants raise two points: I — The “government contract defense,” and II— that certain damages were improper.

It was the collapse of the upper cofferdam on two occasions (January 9, 1953, and May 20, 1953) which damaged appellee’s intermediate cellular steel cofferdam, its powerhouse installation, and the working area required therefor. Appellee was awarded damages totaling $519,-761.73.

It seems clear to this court that to enable appellants to rely on their claimed “government contract defense,” their obligation must have been contained within the contract appellants…