233 Pa. 36 | Pa. | 1911
Opinion by
This is an action of assumpsit brought to recover a balance alleged to be due on a contract to construct part of a sewerage system in the city of York, and damages arising out of the contract. The statement claims for work which is alleged to be extra and payable for as such and not regular work payable for at unit prices; for the cost of cleaning the sewers for inspection; for damages by reason of the city’s failure to.provide an outlet for the sewers laid by plaintiffs; and for the amount deducted by the city as liquidated damages for failure to complete the work within the time required by the contract. The defendant filed a demurrer to the statement and alleged as causes therefor that the statement disclosed the several items of the claim to be within the scope of the arbitration article of the contract and the decision by the arbitrator was final and conclusive, and that some of the items were lumped charges and not sufficiently specific. The demurrer was sustained by the court and judgment was entered for the defendant. The plaintiffs have appealed.
It is settled in this state that the parties to a building or construction contract may legally provide therein that disputes arising out of the contract shall be submitted for decision to the architect or engineer, and that his conclusion or judgment shall be a final adjudication of the questions submitted. Such submission may include the power to determine the right of the parties to liquidated damages
Art. 3 of the contract between the parties to this litigation provides as follows: “All the work .... shall be done to the satisfaction of the engineer, who shall in all cases determine the amount, quality, • acceptability and fitness of the several amounts of work and materials and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract . . . ., and shall determine all questions respecting the true construction or meaning of the plans and specifications, and his determination and decision thereon shall be final and conclusive; and such determination and decision in case any question shall arise shall be a condition precedent to the right of the contractor to receive any money hereunder.” We think it clear that the items of the plaintiffs’ claim for work on the so-called “dotted line” and “no line” streets, for excavations for house connections at a greater depth than six feet, and for removing and relaying paving on streets over trenches dug by the plaintiffs are within the jurisdiction of the engineer under the arbitration article of the contract and that his adjudication was final. The parties submitted all the items of the claim, except the item for failure to provide an outlet for the sewers laid by the plaintiffs, and, after presenting their contentions pro and con, the arbitrator rendered a decision which disposed of every item of the claim with the
There is no sufficient allegation in the statement that the decision of the engineer or his final estimate was made fraudulently or collusively, neither is there any corruption or misbehavior on the part of the engineer sufficiently averred. There is no allegation that the city used any fraudulent means to procure the decision or estimate of the engineer. His action as arbitrator, therefore, cannot be set aside or invalidated on the ground of fraud, collusion or misbehavior in the performance of the duties imposed by the contract. It is true the statement avers that “the engineer erroneously, wrongfully, contrary to the terms of said contract, and as the plaintiffs believe and expect to prove, at the direction of the board of public works, calculated the amount due the plaintiffs for said
The arbitrator was right in deciding that under the terms of the contract the plaintiffs were not entitled to pay for extra work embraced in the first three items of the plaintiffs’ claim. The first item is for work done on the so-called “dotted line” and “no line” streets. The basis of the claim is the alleged statements and representations made by the engineer at the time the plaintiffs inspected the plan of the streets and before they made their bid and entered into the contract. It is a sufficient answer to the claim that the parties must stand upon their contract, and that the engineer had no authority to change the terms of the agreement which the city made. “Notice to Contractors” conferred no such authority. The plans, specifications and form of contract were at the office of the engineer of the board of public works for inspection by any intending contractor, but no authority was given the engineer to alter or change them in any particular by any agreement, statement or representation, written or oral. It is clear, we think, that the contract itself gives no ground for the plaintiffs’ contention in this respect. The agreement for the work to be done under contract “ B ” was at unit prices, and did not provide for the laying of sewers on
The second item of the claim is for extra excavation for house lateral trenches of a greater depth than six feet. The arbitrator allowed the contractor for this work at unit prices which was clearly right. The depth of the house connections was not fixed by the contract and hence the excavations for making such connections were to be paid for under sec. 39 of his specifications, which provides that: “All work done on excavations as above specified or as may be required shall be included in the prices bid per running foot of sewer construction.” This claim, like the one just considered, is based on the alleged representations of the engineer, which, as we have seen, were not sufficient to modify or change the stipulations of the contract. The contractor was dealing with the municipality and the latter is bound by its contract and not by the unauthorized representations or declarations of its officers which would change the written stipulations of that agreement: Martin v. Berens, 67 Pa. 459; Phillips v. Meily, 106 Pa. 536.
The third item of the claim is for removing and replacing pavements on streets in which trenches were dug and additional sewers were laid by the plaintiffs. The arbitrator allowed compensation for this work at unit prices, and declined to allow for it at the rate at which extra work was to be paid for. This work comes within the provisions of sec. 22, providing for payment at the prices per running foot for resurfacing streets, and of sec. 64 of the specifications, and the arbitrator was right in holding that it was not extra work within contemplation of the contract which entitled the contractor to additional pay for the work. The engineer was authorized to require additional sewers to be laid at unit prices, and it follows that the additional repaving necessary to complete such work should be paid for at the prices fixed for original work of the same character.
It will be observed that the article does not confer upon the engineer generally the power to construe the contract, and thereby deprive the plaintiffs of the right to submit that question to the court. The extent of the authority of the engineer in that respect is his power to determine the “true construction or meaning of the plans and specifications.” As suggested above, he may determine what is extra work within the meaning of the plans and specifications. The contract was let at unit prices, but provision was made for extra work to be paid for at the prices therein specified. The plans and specifications provide what is regular work and what is extra work, and in case of dispute it is the duty of the engineer to interpret the plans
The question presented in the claim for damages for failure to provide an outlet for the sewers requires the construction of the whole contract; and not simply of the plans and specifications. It is a question which must be determined by the construction of the several parts of the agreement which is made up of the notice to bidders, the contract proper, the plans and specifications and all other matter relating thereto. It cannot be seriously contended that the engineer, as arbitrator, would have jurisdiction to determine whether the parties had entered into a contract for the construction of the sewers, or what damages the plaintiffs had sustained if the defendant had refused to permit the plaintiffs to furnish the materials and do the work, or to determine what damages the city had sustained if the plaintiffs had declined to furnish the materials and construct the sewers. With equal reason, it seems to us, that the arbitrator is without jurisdiction to determine whether the contract, as contained in the several parts thereof, contemplated that the city should, by the construction of a sewer under contract “ C” or by other means, furnish an outlet for the sewers constructed by the plaintiffs under contract “ B,” and if such an outlet was contemplated by the parties and provided for in the contract, what damages the plaintiffs sustained by the failure of the defendant to keep its covenant. Keeping in view the settled rule that the court is not to be deprived of its jurisdiction without clear and plain terms in the arbitration clause, we think this is the proper interpretation of the article in contract “3,” conferring arbitral powers on the engineer. There is no express provision in any part of the agreement requiring the plaintiffs to cleanse the sewers, and the question does not depend simply upon the construction of the plans and specifications, but upon an interpretation of the whole agreement. The statement avers that the plaintiffs
By art. 17 of the agreement the contractor was required to complete the work by January 1, 1906, and the city was authorized to deduct out of moneys due the contractor $50.00 per day as liquidated damages for every day the work was not completed beyond the time specified. The arbitrator decided that the city had the right to retain a certain amount under this provision of the agreement. How the arbitrator arrived at the amount for which he allowed a credit does not appear, nor is it material, as we do not think he had the authority to adjudicate the question. It is argued by the defendant that the plaintiffs could only be relieved from their default under this article of the contract by an application to the engineer for an extension of time under art. 16 and, failing to make such application, the city had the right to retain the per diem sum as liquidated damages for any time the contract was not completed beyond January 1, 1906. It is not averred in the statement that the plaintiffs made an application and were refused an extension of time in which to complete the work, but it is averred that the failure to complete the contract “was not due to any fault or neglect on their part but wás the result of the acts, omissions and requirements of the engineers, the board of public works and the defendant as hereinbefore set forth.” These “acts, omissions and requirements” did not consist in obstructing or delaying the contractor “in doing the work or furnishing the materials to be done and furnished by the city” which prevented the contractor from claiming damages, and hence the plaintiffs were relieved from making an application for an extension of time as required by art. 16 of the contract. That article of the agreement provides that if the contractor is obstructed or delayed in the prosecution or completion of the work by any delay
We do not think the omission to itemize the claim for damages for failure to construct an outlet or the claim for liquidated damages retained by the defendant defeats the plaintiffs’ right of action for either of these items. If the defendant city desires a more detailed statement of either item of the claim, and such can be given, it may be obtained by an application for a bill of particulars.