The appellant, by contract with the appellees, did the excavation and mason work in substantially rebuilding a structure burned down. He claimed for extra excavation and damages for delay. The error here assigned as to the first claim is the refusal of this instruction:
“If the jury believe from the evidence that the said architects, Burnham & Root, did not, as a matter of fact, pass upon the claim made by the plaintiff for excavating, but left that matter to be determined by the superintendent, who refused to allow the plaintiff pay for said work, then such act would not be binding upon the plaintiff.”
But, at the instance of the appellant, the court had given this: “The jury are instructed that when the contract provides that the decision of the architect shall be final and binding upon the respective parties to the contract, such agreement does not contemplate that said architect shall do otherwise than to exercise his fair and honest judgment in passing upon the value of the material and services rendered, and such discretion on his part can not be delegated to his superintendent or any other person in his behalf; and in case the exercise of such judgment should be delegated to the superintendent in charge of the work, or to any other person, for his decision, then such a decision would not be binding upon either party to said contract, but such architect may use the services of a superintendent or other person to obtain information as to such work, materials or services, and may act upon such information; the parties who have agreed to submit matters to the decision of two architects are entitled to a decision which is the decision of both.”
Whether, under the contract and specifications, which were put in evidence, without the drawings to which the latter referred, the appellant could make any claim for extra excavation, need not be decided. The instruction given embraced all that the one refused contained.
The claim for damages for delay was fairly submitted to the jury upon conflicting evidence, and the verdict is conclusive.
There is no error and the judgment is affirmed.
Judgment affirmed.