51 Pa. 298 | Pa. | 1866
The opinion of the court was delivered, by
— This was an action of covenant brought by Caldwell against Leech to recover compensation for the graduation, masonry, and other work done on section 43 of the Allegheny Yalley Railroad. Leech with others had been contractors for the entire work of the line,* and Caldwell was a sub-contractor with them for the work on one section.
The articles of agreement fixed very precisely the mode in which alone the sums due from time to time to the sub-contractor should be ascertained. This it did by reference to the estimates that the railroad company had agreed with the primary contractors should be made as the work progressed. And it was stipulated that on or about the first day of each month during the progress of the work, the estimate made of the quantity and relative value of the work done on the section, by the engineer of the railroad company, should be conclusive between the parties to the agreement, of the amount of said work, and that within ten days after the procurement of a certificate of such estimate from the railroad company, the defendant should pay eighty-five per cent, of the amount of such estimate, agreeably to the contract prices. The agreement then went on to declare that when all the work should be completed there should be a final estimate made by the chief or associate engineer of the quality, character and value of said work, agreeably to the terms of the agreement, when the balance appearing due to the sub-contractors should be paid upon their giving a release. After some other provisions, the contract concluded with the following clause: — “ And it is mutually agreed and distinctly understood, that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement, relative to or touching the same, and each and every of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise, by virtue of said covenants, so that the decision of said engineer shall, in the nature of an award, be final and conclusive on the rights and claims of said parties.”
In view of these covenants, irrespective of the stipulation last quoted, it is plain the plaintiff can recover for work done by him under the contract only after estimates made by the engineer of the railroad company. Those estimates, it was agreed, should determine the quantity of work done, and its value, or the sum due to the sub-contractor. It was those that the defendants
There was error also in the instruction given respecting the impracticability of obtaining á revision of the estimates by the chief engineer. The contract was not that the parties waived any right of action or suit at law, only in the event that it might prove reasonably impracticable to obtain a decision of the chief engineer of the railroad company. The possible difficulties of obtaining such a decision were in view of the parties when the contract was made. The engineer has determined the amount due the plaintiff in accordance with the articles of agreement. But the plaintiff alleges that the determination is incorrect. The burden is upon him to show that it is so, and he has but one way in which to show it. That is by the revision of the chief engineer. If he meets with difficulties in obtaining that, or if he cannot obtain it at all, it is his misfortune, not the fault of the defendants ; nothing for which they are responsible upon their covenants. The engineer having made an estimate, the question whether it was erroneous or not, is a question between him and the plaintiff. There is, as before remarked, no evidence that the defendants ever interposed any obstacle in the way of a revision of the estimates by the chief engineer. On the contrary, the proof is that they requested the plaintiff to have a revision made, and requested it at a time when the engineer was at hand, and could have made it. No effort was however made to obtain such action, until about three years after the final estimate was made, when it was manifestly impossible to ascertain the amount of work done in the graduation, or to classify it, if the quantity had been known.
It is of prime importance that parties be held to their contracts. If permitted to cut themselves loose from an onerous stipulation, because it may be inconvenient to perform it, there can be no certainty in agreements. The obligation of a covenant is not changed by the fact that it has not worked the results which were anticipated.
There are other assignments of error in this record, which we need not notice in detail. What we have said will probably put an end to the case, and the other questions attempted to be raised are therefore of no importance.
Judgment reversed, and a venire de novo awarded.