| Pa. | Nov 3, 1864
The opinion of the court was delivered, by
— The first and second assignments of error present the same question; and that is, whether the estimates of the chief engineer are to be considered conclusive, precluding all other testimony on the same subject-matter, unless fraud or bad faith be shown on his part. The cases of The Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205, and succeeding cases, amongst which are Faunce v. Burke & Gonder, 4 Harris 469, Snodgrass v. Gavit, 4 Casey 224, Lauman v. Young, Id. 306, McGrann v. North Lebanon Railroad Co., 5 Id. 82, in which the estimates and decisions of the company’s engineers, in case of disputes between the contractors and the company, were held to be conclusive, all rest on a positive stipulation in the contract to that effect; and even the validity of the express stipulation was hotly contested in the first-mentioned case, because it was urged that it was a provision by which the company was enabled to choose its own judge, and one that was directly interested, to sustain their quarrel. To this it was answered that such an objection was waived by the stipulation, and that it was even competent for a contractor to agree to the arbitrament of an • interested party, if he chose; and when, with full knowledge, he did so, he must abide the result. The subsequent cases were all ruled by the decision in this case.
In this contract, however, this stipulation for finality is wanting, and this makes a most material difference. It provides for monthly estimates, and in the end for a final estimate by the engineer, without any declaration as to conclusiveness. His estimates and acts have no quality, therefore, of an adjudication. It must depend for finality on its inherent accuracy, and to test whether it be accurate or not, it is liable to be met by any competent proof, which would disclose its errors and mistakes, if
The third assignment we think is equally unsustained. The court affirmed the defendant’s fourth point, of which it is predicated, most explicitly, but added, that by the agreement of the 12th March 1859 the question propounded was immaterial. This was true if anything can be true. Eor the last-mentioned agreement provided for what matters compensation should be made, leaving the matter of suspension of the work entirely out. If any damage had occurred by reason of that, it was therefore not to be compensated. The remark complained of did not qualify or limit the effect of the general assent given to the defendant’s point, and certainly was not a direction to allow anything on that ground. It was the very opposite, and this was what the defendants were insisting on.
The 5th, 6th, 7th, and 8th assignments may be discussed together. We must regard the contract of the 12th March 1859 as supplementary to the original, dated the 10th of December 1856, and made to provide for winding that contract up on different terms from those stipulated in it. By itself it would be irreversible, and it would be impossible to ascertain what was due the contractor in the original contracts but by it. That contract still remained the contract between the company and the contractor, excepting only in so far as it was modified by the new contract. It was so far modified by it as to release the contractor .from finishing the work, but left it in full force as to what he had earned under it, stipulating for the payment of that when ascertained in the mode prescribed. This was the view the learned judge took of these contracts, and it was the proper and only view to be taken. To charge as prayed for in the defendant’s 7th point, that because the plaintiff had by order of the engineer been dismissed from the work, therefore he could recover nothing for what he had done upon it, notwithstanding the subsequent agreement to pay him for the work, as if nothing of the kind had taken place, would be to determine that the defendants could neither do an honest or liberal thing, even if they were ever so well disposed and determined on doing it. The defendants agreed to take the work off the plaintiff’s hands, and pay him for what he had done, and finish it themselves at their own proper charge and expense. Of course this stipulation is a complete answer to their claim now to be relieved from pay
9. This assignment claims that there was error in deciding in favour of the plaintiff on the reserved points. The first is, will foreign attachment in covenant lie? We need not answer that question; for the defendants having appeared and plead to the action, after that it was to be proceeded in as if commenced by summons: Act of 1836, § 64; 2 T. & H. Prac. 685-86. After appearing and pleading, they cannot contest the regularity of the attachment.
The second point reserved was also properly decided. It was no defence against the plaintiff that.there was an equitable assignment, and a use in favour of somebody. All the defendants had to do with was the legal party, who was the plaintiff. They would not have regarded the use party if his name had been on the record, nor did its absence in the least prejudice their defence: Armstrong v. Lancaster, 5 Watts 68" court="Pa." date_filed="1836-05-15" href="https://app.midpage.ai/document/armstrong-v-city-of-lancaster-6311538?utm_source=webapp" opinion_id="6311538">5 Watts 68. There are several cases of a more recent date, in which the same doctrine is ■asserted. As we discover no error in the case, the judgment is
Affirmed.