53 Ct. Cl. 170 | Ct. Cl. | 1918
reviving the facts found to be established, delivered the opinion of the court:
This is a suit brought by the plaintiffs to recover an amount alleged to be due them on their contract with the defendants. The plaintiffs agreed with the United States to construct and complete certain canals, branches, and structures on the Minidoka project, in the State of Idaho. Work was begun under the contract in July, 1905, and was completed and accepted on December 4, 1906.
The matter in dispute is the quantity of class 2 material which the plaintiffs handled during the performance of their contract. The specifications provided for four classes of: material. Class 1 was all material which could be plowed by an average four horse or mule team, each animal weighing not less than 1,400 pounds, attached to a suitable breaking plow, all to be well handled by at least three men. For this class 1 material the contractors were to receive $0,104 for each cubic yard excavated, moved, and put in place. Class 2 was indurated material of all kinds which could not be plowed as in class 1, but which required loosening by powder and could then be removed in scrapers. Material of classes 8 and 4 do not concern the issues in this case. It was also provided that the contractors should haul all material free for a distance of not more than 200 feet, but should be paid for any overhaul in excess of that distance at a rate per hundred feet, which was fixed in the contract at $0.01.
A large portion of the canals and laterals was constructed above the natural level of the land, and it was necessary to procure material for the construction of the embankments, and this was done by borrowing earth from pits adjacent to the canals, which were known as borrow pits.
During the performance of their contract the contractors encountered indurated material which they were unable to move with four-horse plows. This material could be moved with 6, 8, and 10 horses, but did not require loosening by powder. This material was found in the borrow pits, and
In August, 1907, the chief engineer visited the Minidoka project, and after examining the borrow pits and after spending some time in making tests with pick and shovel, and finding these tests useless, he directed Mr. F. C. Horn, an engineer in the employment of the Reclamation Service, to equip a plow team, and make tests in accordance with the specifications. Mr. Horn made these tests and reported
The contractors insisted that the classification made by Mr. Lance, the engineer of the surety company, should be accepted by the chief engineer. The chief engineer declined to do this on the principal ground that the tests made by Mr. Lance were made with pick and shovel, and that tests so made were wholly inadequate.
The chief engineer, after giving all parties a full hearing, decided that the estimates made and submitted on May 14, 1907, should stand, and upon that basis decided there was due to the contractors the sum of $15,550.90. This sum the contractors refused to receive and brought this suit. The specifications provided:
“ Upon all questions concerning the execution of the work, and the classification of the material, in accordance with the specifications, the decision of the engineer shall be binding on both parties.”
After a careful review and consideration of the decisions of this court and of the Supreme Court of the United States the following seems to be the well-established rule: Where there is a provision in a contract making the decision of an engineer officer or other officer final as to quality and quantity, distance to be ascertained, classification of material, or any other subject matter in the contract which may be matter of dispute and which may arise during the execution of
In Pacific Hardware Co. v. United States, supra, Campbell, chief justice, in delivering the opinion of the court, said:
“ It has been held that a provision in a contract making the decision of an engineer officer in charge final as to ‘ quality or quantity ’ of material furnished or ‘ distance to be ascertained ’ between the parties will be so treated and as not subject to review by the courts in the absence of fraud or such gross error as implies bad faith or a failure to exercise an honest judgment in the premises.”
In McLaughlin & Co. v. United States, supra, Howry, judge, delivering the opinion of the court said:
“Another rule is that it is competent for parties to a contract of the nature of the present one to make it a term that the decision of an engineer or other officer of all or specified matters of dispute that may arise during the execution of the work shall be final and conclusive, and that in the absence of fraud or of mistake so gross as to necessarily imply bad faith such decision will not be subject to the revisory power of the courts.”
In Kennedy v. United States, supra, the court said:
“At least one of three conditions must exist before the decision of the arbiter can be impeached — fraud, bad faith, or a failure to exercise an honest judgment. A mere mistaken judgment not tainted with fraud, bad faith, or dishonesty will not be sufficient to avoid the decision of the arbiter.”
“The parties, however, concurred in designating a particular person * * *, with power not simply to ascertain, but to fix, the distance which should govern in the settlement of the contractor’s accounts for transportation. The written order of General Easton to the depot quartermaster at Fort Leavenworth was an exercise of that power. He discharged a duty imposed upon him by the mutual assent of the parties. The terms by which the power was conferred and the duty imposed are clear and precise, leaving no reason for doubt as to the intention of the contracting parties. They seem to be susceptible of no other interpretation than that the action of the chief quartermaster, in the matter of distances, was intended to be conclusive. There is neither allegation nor proof of fraud or bad faith upon his part. His action can not, therefore, be subjected to the revisory power of the courts without doing violence to the plain words of the contract. Indeed, it is not at all certain that the Government would have given its assent to any contract which did not confer upon one of its officers the authority in question. If the contract had not provided distinctly, and in advance of any services performed under it, for the ascertainment of distances upon which transportation was to be paid, disputes might have constantly arisen between the contractor and the Government, resulting in vexations and expensive and to the contractor oftentimes ruinous litigation. Hence the provision we have been considering. Be this supposition as it may, it is sufficient that the parties expressly agreed that distances should be ascertained and fixed by the chief quartermaster, and in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the Government. The contract being free from ambiguity, no exposition is allowable contrary to the express words of the instrument.”
In United States v. Gleason, above cited, it is said by the court:
“ Another rule is, that it is competent for parties to a contract of the nature of the present one to make it a term of the contract that the decision of an engineer or other officer of all or specified matters of dispute that may arise during the execution of the work shall be final and conclusive, and that in the absence of fraud, or of mistake so groas as to necessarily imply bad faith, such decision will not be subjected to the revisory powers of the courts.”
Again, in Ripley v. United States, supra, the court in passing upon a clause in a contract similar to the one now under consideration, after stating that there was no finding of bad faith on the part of the officer, said:
“ But the contract did not contemplate the opinion of the court should be substituted for that of the engineer.”
Quotations from the many decisions of the courts in which this subject is treated might be multiplied, but enough has been set out to establish the soundness of the rule laid down above.
In this case a term of the contract was that the decision of the engineer as to the classification of the material should be final. Bad faith is charged, but it is not proven. This court, therefore, will not undertake to go back of the judgment of the engineer and to revise his action by its own views.
The engineer having found that there is due the contractors the sum of $15,550.90, that will be the judgment of this court, and it is so ordered.