St. Paul & Northern Pacific Railway Co. v. Bradbury

Mitchell, J.

1. It seems to us, to use the language of the court below, that defendants’ case “has nothing to rest on.” The “notice to proposers” for the construction of plaintiff’s shops contained plans and specifications of the buildings; also estimates by plaintiff’s en *226 gineers of the amount of material required to construct them according to the plans. But this notice (made a part of the contract) further states that “the quantities and amounts given in these forms of proposals must be verified by the proposer, as the company will not be responsible for any error resulting from their use. They can be verified by.aid of the plans.” P#tterson, defendants’ principal, without verifying these estimates for himself, put in his bid and made a contract to construct the buildings for a certain sum. The offer of defendants on the trial was, in substance, to show that Patterson supposed the estimates were correct, but that in fact they were too small, and that it required much more material to construct the buildings according to the plans. The relief asked is that the contract be reformed, and that Patterson be allowed, in addition to the contract price, the value of the material actually used'in excess of the engineer’s estimates. To reform the contract in this way would be, not merely to make a contract for the parties which they never agreed to, but to make one which defendant expressly declared it would not make. Patterson was expressly notified not to rely on the estimates, but to verify them for himself, which he had the means of doing; also that the company would not .be responsible for any error resulting from their use. He not only put in his bid on this condition, but expressly assented to it in his contract. He took his chances, and must stand the consequences. The fact that it took more material to construct the buildings than estimated by the company’s engineers does not entitle him to any allowance beyond the contract price. Cannon v. Wildman, 28 Conn. 472, 491 .

2. Both parties have discussed the second assignment of error as if the offer referred to was of evidence that Patterson had furnished material for extra work not specified in the plans. We find nothing in the record to indicate that such was the offer, but we will treat it as the parties both seem to have understood it. The contract expressly gave the company the right to extend the contract so as to cover any additional work of the same nature that might be ordered by its chief engineer; also- the right to make any such alterations or omissions of any of the work specified in the drawings as the chief engineer might consider desirable or necessary. It was solely with reference *227 to this right that it was elsewhere stated in the contract that the plans, maps, and profiles of the work prepared by the engineers, and the quantities estimated therefrom, were approximate merely, and were subject to change and alteration. ' It was further provided that, in case of any change in the present plans which necessitated alterations, additions, or omissions, the detailed proposals were to be used as a basis for a determination of the increase or decrease of the contract price of the work. All claims for extra work or material were to be presented to the chief engineer for allowance. It was also mutually covenanted and agreed by the parties that, to prevent disputes and misunderstandings between them in relation to any of the provisions of the contract, or of the true intent and meaning thereof, or the matter of performance thereof, and for a speedy settlement of such as might arise, the chief engineer of the plaintiff “shall be, and he is hereby made and constituted, the sole umpire to decide all such questions and matters. He shall also decide the amount and quantity, character and kind, of work and materials performed and furnished by the party of the first part under this contract, including all work and material; and, his decision shall be final, and shall be binding and conclusive, to all intents and purposes, and in all places, and on the said parties hereto.” Provisions of this kind, especially in building and railroad-construction contracts, are very common, and the binding force of a stipulation leaving the estimate of the quantity and quality of the work absolutely to the determination of the architect or engineer or some other person, and making his decision final, is too well settled to admit of argument. In such a case his decision, in the absence of fraud or such gross mistake as would imply bad faith or a failure to exercise an honest judgment, is conclusive. Kihlberg v. U. S., 97 U. S. 398 ; Lawman v. Young, 31 Pa. St. 306; Lull v. Korf, 84 Ill. 225 ; Herrick v. Belknap, 27 Vt. 673 ; Hudson v. McCartney, 33 Wis. 331 ; Finegan v. L'Engle, 8 Fla. 413, 422 ; Kidwell v. Baltimore & Ohio R. Co., 11 Grat. 676, 690; Whiteman v. Mayor, etc., 21 Hun, 117 . The contract also provided that when the chief engineer was of opinion that Patterson had completed the work according to the contract, he should so certify in writing, with a final estimate of the work done, and a statement of the amount *228 due and unpaid thereon; and that, within 30 days after such final estimate, the company was to pay Patterson all moneys so found due him. In the absence of all the evidence in the case, we must assume that it was proved, as found by the court, and as stated by counsel on the trial as a ground for rejecting defendants’ offer, that Patterson presented his claims for extra material; that the same were fully passed upon by the chief engineer, and each item either allowed and included in the final estimate or disallowed by him; and that this final estimate, so made and determined by the engineer, showed the amount and value of the work done by Patterson as stated in the complaint. Under this state of facts the defendant, without claiming or offering to prove any fraud or partiality on part of the engineer, or anything to indicate a failure on his part to exercise an honest judgment in the matter, proposed to go behind his estimate and decision, and show that he had not allowed Patterson enough. This could not be done. The decision of a court or jury cannot thus be substituted for that of the arbiter or umpire agreed on by the parties.

3. In the absence of all the evidence, we must assume that it fully justified the finding of the trial court that all the extra or additional work done by Patterson was similar to that specifically mentioned in the contract, and hence covered by it. The defendants, upon the authority of Lautenschlager v. Hunter, 22 Minn. 267 , make the point that plaintiff could not avail itself of the provisions of the contract to exclude the evidence referred to in the first and second assignments of error, unless specially pleaded. No such point seems to have been made in the court below; but the court finds, as a fact, that after the work was completed the chief engineer made a final estimate showing the whole amount of compensation payable to the plaintiff under the contract, including all extras. The presumption is that this was justified by the evidence, and that such evidence was admitted without objection, and that the parties voluntarily consented to try all issues covered by the findings of the court, whether within the pleadings or not.

To the suggestion that the sureties were released by the failure of the plaintiff to withhold from Patterson 15 per cent, of the approx *229 imate monthly estimates, it is enough to say that no such defence ■was pleaded, and there is nothing in the record to indicate that the parties consented to try any such issue. It was certainly no abuse of discretion to deny defendants’ motion to be allowed to amend their answer so as to set up this defence, made nearly a year after the case was tried, and submitted on briefs.

Order affirmed.

ÍTote. ' Amotion for a'reargument of this case was denied January 3, 1890.