52 Pa. 214 | Pa. | 1866
The opinion of the court was delivered, April 26th 1866, by
It is not necessary to cite authorities for what is so well settled, as that where a railroad or canal company and its contractors, or in a contract between original and sub-contractors, it is agreed that to prevent disputes the engineer of the work shall in all cases determine the amount or quality of the several kinds of work which are to be paid for under the contract, and decide every question which can or may arise relative to the execution of the contract on the part of the contractor, that his decision has been uniformly held to be final and conclusive. This is the substance of the stipulation in the contract before us between the contractor with the company and his sub-contractor, the plaintiff below.
On the trial below the plaintiff claimed for bridge masonry at the rate $10 or $12 per cubic yard for “ ashler range masonry.” The contract was $5.80 for “hammer dressed ashler broken range.” The contract quality was changed by the engineer from this species of work to “ ashler range,” for which in the final estimate he was allowed $6.80 per cubic yard, being an advance on account of the change of $1.30 per cubic yard. The allowance was final if the engineer had authority to make the change; and if there was on fraud or mistake, that he had the authority to make the change, the contract is express. It
It cannot be denied that alterations in the particulars mentioned, when executed by the contractor in obedience to his engagement to make them, are made under the contract. The contractor is by the very terms of his contract, as the portion above quoted shows, bound to do the work as directed. Alterations, therefore, when directed and executed, are as much within the contract as any other part of the work. This gives jurisdiction to the engineer to determine and estimate the allowance incident to the change; and if fair, or rather, not fraudulent, which was not pretended, is conclusive. “ He (the engineer) shall,” says the contract, “ in all cases decide every question which can or may arise relative to the execution of the contract.” Then his decision is to be final and conclusive. The question of compensation necessarily arose in this ease as incident to the change, and we see in the final estimate it was considered, and an allowance of $1.30 per cubic yard made in consequence of it.
The alteration did not abrogate the contract or substitute a new one. It was part of the original contract that alterations might be made, and which the contractor bound himself to execute, not as a new contract, hut under a stipulation in the original contract. We think this very clear, and that the learned judge erred in his ruling on this point, and for this the judgment must be reversed.
We see no error in the 2d assignment. Certainly for work done outside of the contract the engineer had no jurisdiction to determine anything about it. It is alleged that the work claimed for, under this branch of the case, was after the completion of the work under the written contract, and after it had been taken off the contractor’s hands. If, therefore, it was extra work not paid for, the plaintiff had a right to claim for it in this action. Indeed, the plaintiff in error submitted no argument on this part of his case. We discover nothing wrong in it, but the first assignment of error being sustained, the judgment is reversed and a venire de novo awarded.
