Annapolis & Baltimore Short Line Railroad v. Ross

| Md. | Jan 6, 1888

Robinson, J.,

delivered the opinion of the Court.

The plaintiffs agreed to build for the defendant company bridges over the Patapsco and Severn rivers. They were to be built on piles, according to specifications which formed part of the contract. The length and price per linear foot to be paid for the piles, and the cost for driving them, and the price per thousand feet for framing the timber, which included the cost of the materials and putting them in place, are all set forth in the specifications. Plans also for the bridges, and the estimated number of piles for each bridge were furnished to the plaintiffs before the contract was signed. The whole work was to be done under the direction of the defendant’s engineer, and he was to be the sole judge of the quantity and quality of the work, and his decision was to be final and conclusive between the parties.

The defendant company reserved the right to “make additions to or deduct portions from the work specified, as shown in the plans, at the same proportional amount of increase or decrease in pay, as the whole amount hears to the original plan ; provided, however, that no alteration shall be made from said plan which shall entail upon the plaintiffs an expense in constructing beyond the proportion of the balance of the work.” It was further agreed that in the event of a difference between the parties in regard to any part of the work done under the contract, the decision of the engineer was to he final and conclusive.

After the plaintiffs had begun the construction of the Patapsco bridge, it was found that owing to the soft bottom of the river, the piles furnished for that bridge according to the specifications, were not long enough to bring the bridge to the level required for the defendant’s road. This they reported to the defendant’s engineer, and they were directed by him to cap the piles near the water’s edge, and to build thereon a trestle work high enough to bring the bridge to the level required. The piles furnished for the Severn bridge were also found too short, and these the engineer directed to be spliced. As these alterations would necessarily increase the cost of construction, the plaintiffs required of the engineer some authority in writing before proceeding to make the same, and thereupon be addressed to them the following letter :

“ Messrs. Ross & Sanford :

Gentlemen:—-You will please order the piles and extra timber used in Patapsco bridge and piles in Severn bridge as required, and keep strict account of extra expenses incurred. Signed, W. D. Janney.”

Upon the receipt of this letter the plaintiffs resumed work, and in the construction of the Patapsco bridge the piles were capped near the water’s edge, and thereon a trestle fourteen feet high was built, and upon this trestle the bridge was laid. In the construction of the Severn bridge the piles were spliced as directed and additional piles furnished. These alterations largely increased the cost of construction, the spliced piles, of which about three hundred were required, alone costing more than three times the price set forth in the specifications. Besides, the plaintiffs suffered loss from delays incident to the furnishing of extra piles. When the bridges were finished the itemized account of the plaintiffs for the Patapsco bridge amounted to $15,614.31, and the account for the construction of the Severn bridge amounted to $30,553.02.

These accounts the defendant submitted to its chief engineer, Latrobe, who, after an examination of both bridges, awarded the plaintiffs $12,491.35 for the Patpsco bridge, and a sum for the Severn bridge much less than that claimed by the plaintiffs. The difference between the sums thus awarded by the engineer, and the amounts claimed by the plaintiffs, is the subject-matter now in dispute.

That alterations were made and that the cost of constructing the bridges, was thereby largely increased is not denied; and the real question is whether the alterations were such as the defendant had the right under the contract to make ? If they were, then in the absence of bad faith or fraud on the part of the engineer, and this is not imputed, his award is final and conclusive. On the other hand, if the alterations are not fairly within the scope of the contract, his award is not binding, because his arbitrament was to be final only in regard to the work done under the contract. The right of the defendant to make alterations in the construction of the bridges, although the cost for labor and materials was thereby increased, cannot be questioned ; provided, however, such alterations did not subject the plaintiffs to an “expense in constructing beyond the proportion of the balance of the work.” Or in other words, as we construe the contract, did not require of them a class of work more costly than originally contemplated. The construction of the contract is for the Court, but whether the work as finally done was within its scope, is a question for the jury. And in regard to this question the evidence is conflicting. On the part of the plaintiffs it shows that they were not only required to furnish extra piles at a greater cost than set forth in the specifications, but also to splice them ata much greater cost; that the construction of the trestle work was a different kind of work than required under the contract, and that the alterations not only increased the cost, but so changed the character of the construction, that they were unable to render an account based upon the compensation as agreed upon. Opposed to this is the evidence on the part of the defendant, to the effect that although the cost of construction was increased, the alterations ■ did not subject the plaintiffs to a class of work more costly than required under the contract. The engineer in his testimony says “the Patapsco bridge in the nature and character of its work was the same, that the form was somewhat modified, but under the item of framing timber there was no difficulty in following and carrying out the rates of compensation as agreed upon. And as to the Severn bridge, that although spliced piles were not spoken of in the contract the class of work was the same, &c.” Upon this evidence it was for the jury to say whether the alterations were or were not within the scope of the contract, or in other words whether they were such as the defendant had the right to make under the contract. If they were not, if they required of the plaintiffs a class of work more costly than that required in the contract, then the estimate of the engineer was not binding, because it was only in regard to the work done under the contract that his decision was to be final and conclusive. And this question was, as we understand the instruction of the Court, submitted to the jury, at the same time speaking for myself I desire to say, that the question was not, in my opinion, submitted in terms as plain and explicit as it ought to have been. If the alterations were not within the scope of the contract, then the plaintiffs were entitled to recover a fair compensation for the increased cost of construction by reason of the alterations thus made, and in estimating which the jury were to be guided by the prices named in the original contract so far as they were applicable to the labor and materials furnished on account of such alterations. And so the Court instructed the jury.

(Decided 6th January, 1888.)

The defendant’s prayers were properly refused, because they assume as matter of law that the alterations were such as the defendant had the right to make under the contract, and that the award of the engineer was therefore conclusive. This, as we have said before, was a question for the jury.

Judgment affirmed.