207 Pa. 539 | Pa. | 1904
Opinion by
This appeal is from an order making absolute a rule for judg
It does not appear from the notice of the meeting nor from the award made that any matter was in dispute except the amount the borough was entitled to because of the failure of the defendants to complete the work. The distinct averment in the statemenFbf claim is that the defendants failed to comply with the terms of the agreement and abandoned the same, and that the borough was obliged to complete the work at its expense ; and by reason of the failure of the defendants to complete the contract and the abandonment of the same, “ disputes arose between the plaintiff and defendiints with respect to the performance of said contract.” The only inference from what appears in the record of the ease is that the award was in part if not wholly for damages for noncompletion.
The only part of the agreement that provides for a reference is this : “ To prevent all disputes and litigation by and between the parties to this contract, the said engineer shall be referee in all cases to determine the amount, qualitjq acceptability, and fitness of the several kinds of work which are to be paid for under this contract, and to decide upon questions which may arise as to the fulfilment of said contract on the part of the contractor.” It is contended bjr the defendants that an award by the engineer under this clause of the contract is not final and conclusive and that the matter upon which his award was based is not within the terms of the submission.
The first contention cannot be sustained. Technical words are not required to make a binding reference, and the form of submission is not important if it clearly appears that the intent
But while an award made on any subject embraced within the clause of the agreement would be binding on the parties and conclusive of their right, a too wide construction was given the, agreement. An agreement to submit questions that may arise as to the fulfilment of a contract does not give the right to pass on a claim for damages for nonfulfilment. Such an agreement is not to be extended by implication beyond its plain words. The agreement gave the engineer power to determine finally all questions arising as to the amount and quality of the work done, and as to the performance of the contract. These questions were to be decided by reference to the specifications, with the aid of his presumed expert knowledge. But the power to decide whether work has been done in accordance with a contract, and whether a contract has been completed in accordance with its terms, cannot by implication be enlarged so as to include the right to determine what shall be paid by way of damages for nonfulfilment.
In the cases in which the right of a referee to settle disputes arising under contracts of this kind has been sustained, there has been a.gift of power by agreement of the parties, and the questions decided were covered by the letter or were clearly within the spirit of the reference. A review of these cases by our Brother Brown is found in the opinion in Chandley Bros. & Co. v. Cambridge Springs Boro., 200 Pa. 230. We see no ground on which this case can. be distinguished from Lauman v. Young, 31 Pa. 306, in which it was held that an engineer who was given power to determine in all cases the amount and quality of the different kinds of work and the amount due therefor, and to decide every question that might arise relative to the execution of the contract, was not empowered to deter
The judgment is reversed with a procedendo.