Gonder v. Berlin Branch Railroad

171 Pa. 492 | Pa. | 1895

Opinion by

Mb. Justice Fell,

The action was upon a written contract to recover a balance claimed to be due for work done in constructing a section of the defendant’s roadbed. By the provisions of the contract, payments were to be made during the progress of the work on monthly estimates furnished by the engineer; fifteen per cent being retained by the company until the completion.- Upon the completion of the work and its acceptance by the engineer he was to make a final estimate of its quantity, character and value, and the amount ascertained by him to be due was to be paid to the plaintiffs. The estimates thus made by the engineer were to be final and conclusive as to both parties, subject to the right of the president to revise and alter them. As the work progressed estimates were furnished monthly by the engineer and the amounts appearing by them to be due were paid, except the amount of the last estimate. This estimate like the preceding one showed the total allowances and payments, and the principal question at the trial was whether it was a final estimate and fixed the rights of the parties. The plaintiff’s contention was that as it had been furnished after the completion of the work and not revised or altered by the president, it was a final estimate and conclusive upon the defendant company, and that it was incompetent for the engineer afterwards to submit a revised or second final estimate.

It is true that there could be but one final estimate made by, the arbiter chosen by the parties, and that such an estimate in the absence of fraud or collusion was binding and fixed their rights and liabilities. Whether however the estimate furnished was a final estimate was an open question at the trial. In form it was not a final estimate, nor such an estimate as was contemplated by the agreement. It was not intended to show the balance due under the completed contract, but the work done during the preceding month and the amount due for it less the retained percentage. It was similar in form to the preceding monthly estimates, and was made as they had been at the end of the month to show the amount óf work done since the last estimate. It was but one of the series of monthly statements for which the agreement called, and was final only in the sense that it was the last in date and was made after the completion of the work. By agreement of the parties, expressed or implied from theit acts, this estimate might have become a final one, but neither party could arbitrarily make it such. It was competent for the defendant to show that a final estimate had been made by the engineer, fixing the quantity, character and value of the work and the amount due therefor, and testimony tending to prove this should have been admitted.

The defendant should have been allowed to prove also that the engineer at the instance of the plaintiff, in, order to enable him to meet his payments, had increased the amounts of the monthly estimates beyond what was justly due, with the understanding that in the final estimate a reduction of the proper amount should be made. The fact that the engineer was in the employ of the defendant did not commit it to the consequences of his misconduct while acting as an arbiter for both parties, and an award which was the result of collusion with the plaintiff was not binding upon it. The proof of the offer would have shown that the award upon which the plaintiff relied was not only an unjust award, obtained by unfair means and the result of misconduct and collusion, but that it was not intended as a final award.

The deposition of the president of the company is not before us, and the record does not disclose the ground for its rejection. He was not incompetent generally, and whether so as to the particular offer we are unable to judge. He could not however have testified to sustain the offer made. The testimony was incompetent whether the witness was or not. It was his right under the agreement to revise and alter the estimates made. This right he did not exercise, and his approval or disapproval of an estimate submitted did not affect its character as a final award of the engineer.

The third, eleventh, twelfth and thirteenth assignments of error are sustained and the judgment is reversed with a venire de novo-