94 Wash. 500 | Wash. | 1917
— Action to recover upon a subcontract for grubbing in the construction of the Seattle, Port Angeles & Lake Crescent Railway Company. The contract under which respondents undertook to grub forty stations, in so far as it is material to our inquiry, is as follows:
“(10). The first party further agrees that it will, within ten (10) days after the certificate and estimate shall have been procured by it, as in this section provided for, pay to*501 the subcontractor the sum shown by such certificate to be due, at the following rates and prices^ viz:
Earth or common excavation, per cubic yard. . $ .28
Clearing, per acre.......................
Grubbing per One Hundred (100) feet...... 18.00
. . . When the entire work hereinbefore specified to be done by the subcontractor has been entirely finished and completed to the satisfaction and acceptance of the first party and the chief engineer of said railway company, the first party shall obtain from said chief engineer a certificate to that effect, together with a final estimate of the amount and value of the various kinds of work done by the subcontractor under the terms of this agreement, and it is mutually agreed by and between the parties hereto that such estimate shall be final and conclusive, and within thirty days after said certificate and estimate shall have been furnished by the chief engineer, the first party will pay to the subcontractor the sum or sums, if any, which may be due him under this contract agreeable to said estimates, together with the fifteen per cent above referred to, and any and all other percentages by it retained as aforesaid; and such payment shall be in full settlement for all .work done by the subcontractor under the terms of this agreement.
“(12). . . . When any work, for which no price is specified herein, shall be done by the subcontractor at the request of the chief engineer of said railway company, the subcontractor shall be entitled to a price therefor, to be fixed and determined by said chief engineer.
“(13). It is further mutually understood and agreed that in case any dispute or misunderstanding shall arise between the parties hereto in relation to any of the covenants or stipulations contained herein, or to their performance by either of said parties, the chief engineer of the said railway company shall be and he is hereby made an umpire to decide all such questions, and his decision on any question or matter touching this contract shall be final and conclusive between the parties hereto, and each of them hereby waives any and all right of action at law or otherwise, and agrees to be bound by the decision of said chief engineer. . . .
“(21). It is further mutually understood and agreed that the subcontractor shall be paid at the stipulated rates only*502 for work done as required by the plans, profiles, specifications and instructions of the chief engineer.”
When the subcontract was completed, a dispute arose as to the number of stations respondents had grubbed. Respondents claimed they were entitled to forty stations, while the district engineer refused to allow more than twelve. As provided for in § 13 of the contract, the controversy was taken to the chief engineer of the railway company, who allowed respondents for eighteen stations. Still dissatisfied, respondents brought this action and obtained a judgment, from which this appeal is taken.
The case presents two questions. First, one of fact. What is grubbing? Second, one of law. Is the decision of the chief engineer conclusive? Grubbing is a word of simple meaning, and no difficulty should be encountered in defining it. Referable to both lexicographers and common usage, it means taking out the roots, stumps and obstacles imbedded in the surface of the ground along the right of way, except where not required on account of cuts or fills; the cut and fill rule used in this case being cuts of more than three feet and fills of more than two feet. The ground covered by this subcontract had already been cleared under another contract, so that where fills were required all it would be necessary for respondents to do under their grubbing contract would be to cut the stumps of trees off sufficiently close to fall within a two-foot fill. In cases of cuts of more than three feet, the stumps, roots, stones and other obstacles would be removed as a part of the excavation work. From a profile map in evidence, as explained by the engineer in charge of the work, it would appear that, if respondents were allowed for grubbing every station where a cut is three feet or less or a fill did not exceed two feet, they would not be entitled to a greater number of stations than allowed by the chief engineer.
The lower court seems to have lost sight of the fact that grubbing would not be required on stations showing cuts
There is, however, another reason from which there is no escape, and that is, under the contract the chief engineer is made the final arbiter of all disputes of this character. This provision, when found in a contract, has uniformly been recognized as binding and conclusive upon all parties, except where the award of the arbitrator shows it to have been arbitrarily or capriciously made. There is no such finding in this case, nor is there anything disclosed in the record upon which to base such a finding. The lower court simply substituted its judgment for that of the chief engineer. That cannot be done. For this reason alone the judgment must
The judgment is reversed.
