193 F. 387 | 3rd Cir. | 1912
In this case Eyre-Shoemaker, Incorporated, .a corporation of Delaware, brought suit against the Buffalo, Rochester & Pittsburgh Railroad Company, a corporation of Pennsylvania, to recover upon a railroad construction contract. At the termination of the plaintiff’s case, the court granted the defendant’s motion for a compulsory nonsuit, and on its refusal to take the same off plaintiff sued out this writ.
The case turns on the construction of that clause of the contract which provides:
“In order to prevent litigation or dispute, and to provide for the prompt settlement of all questions that may arise relating to the execution of the work provided for by this agreement, and to the measurement, classification, and estimates for the same, it is hereby mutually agreed that the decision, arbitrament, classification, and estimates of the chief engineer of this company shall he final and conclusive to both parties.”
All of the claims involved in this suit, including extra work, compensating extensions for delay, change in plans, etc., grew out of the
“when the said percentage so retained, together with the balance due on (he final estimates, shall be paid by the company, upon the certificates of the company’s chief engineer that the whole work provided for in this contract is completed and acceptably finished within the time specified.”
After suit brought the chief engineer, after notice to both parties, proceeded to arbitrate and adjudge all matters in dispute, including the claims in this suit, and awarded the plaintiff some $41,000, which sum the defendant company stood ready to pay, but plaintiff declined to receive. The case turns on the question whether liability by suit on the contract depended on the initial arbitrament of the chief engineer as provided for in the contract itself.
We think the contract in this case unmistakably shows the purpose of the parties to constitute the chief engineer of the railroad the sole arbiter of all questions growing out of the execution thereof. The language is dear and inclusive. The announced purpose of their contract was “to prevent litigation or dispute” and “to provide for the prompt settlement of all questions that may arise.” The scope of such action was stated to be questions “relating to the. execution of the work provided for in this agreement.” It also covered “the measurement, classification, and estimates of the same,” and it was “mutually agreed that the decision, arbitrament, classification, and estimates of the chief engineer of this company shall be final and conclusive to both parties.” Not only is such the case, hut several other parts of the agreement singly and unitedly point to the engineer as the tribunal to settle all questions under the contract. Touching that matter it was aptly remarked by the court below:
“Other provisions of the contract between the parties, showing the relation of the chief engineer to the work, could be referred to, if it were necessary. There is, however, sufficient in what has been shown above to show that the provision for payment by the defendant for the work is so interwoven and correlated with the provisions for arbitrament by the chief engineer that it should not be held that they are severable in their nature, as urged by plaintiff’s counsel.”
Such being the case, it follows that any suit would be prematurely brought on the contract that was instituted before, or without regard
The offers to prove fraud on his part in making the award disclose no such specific acts of commission or omission as would invalidate the- award. The court rightly overruled the offers. Conneaut v. Pittsburgh, supra. ^ Indeed, an examinatio'n of the award shows the utmost fairness on his part, and his allowance to the plaintiff in his final award of some $41,000, or $5,000 more than he stated in the affidavit of defense, shows not only his. unprejudiced feeling toward the plaintiff, but his willingness to revise and, if necessary, correct his prior estimate.
Finding, therefore, no error in the record in the above matters, or in any other regard, the judgment below is affirmed.