104 P. 218 | Utah | 1909
On the 20th day of June, 1905, appellant and respondent entered into a contract by the terms of which appellant agreed to construct and complete a certain dam in Box Elder county, Utah, for the respondent. The contract, among other provisions, contained the following:
“The party of the second part [appellant] hereby undertakes and agrees to furnish the necessary labor and materials, including tools, implements and appliances, required, and to build and complete in a workmanlike manner an earthen dam and concrete tunnel across the creek mentioned above for the party of the first part [respondent], in the manner and under the condition and according to the specifications hereinafter set forth, and the plans for said work prepared by the engineer of the party of the first part.”
The contract specially provided when the work was to be commenced and when completed; the dimensions of the dam and the manner of its construction, together with the kind and quality of the materials to be used. In short the contract in terms provided what the contractor should do> and how the work should be done in constructing the dam. The contract also provided that payments to the contractor “are to be made on the 20th day of each month upon the report of the superintendent for the party of the first part.” In this way seventy-five per cent, of the work done and material furnished by the contractor was to be paid monthly,
“To prevent disputes and litigation it is further agreed by and between the parties of this contract that E. J. Showell shall be referee in, all cases that may arise under this contract. In case the superintendent for the party of the first part shall question the work being done, either in workmanship or material, the contractor shall stop said work until the question has been settled by said referee and the decision of said referee shall be binding on the contractor.”
Appellant, in substance, alleged in his complaint that he had completed the dam in accordance with the terms of the contract, and that the same had been inspected by respondent’s superintendent, and accepted; that appellant had done certain extra work, and had furnished certain material not included in the original contract, and for which respondent was liable under the terms of the contract, amounting in round numbers to $704, and that there was due the appellant the sum of $1095.83 as the twenty-five per cent, remaining unpaid on the contract, the whole amount aggregating the sum of $1799.83, for which appellant demanded judgment. Respondent in its answer admitted the making of the contract, but denied that appellant had constructed the dam in accordance with its terms, or in accordance with the plans and specifications; denied that the dam had been completed and accepted, and also set forth several affirmative defenses and counterclaims which need not be specially mentioned. The case was tried to a jury, and the court withdrew from their consideration appellant’s claim for extra labor and material upon the ground that all the material claimed by appellant was in fact required to be furnished by him under the terms of the contract and as a part of it. The court also withdrew from the consideration of the jury respondent’s special counterclaims for damages, and submitted the case
Appellant contends that tbe court erred in its rulings by excluding bis claim for extra labor and material. We are of tbe opinion that tbe labor and material claimed by appellant as extra were not sucb, but that both tbe labor and material claimed as extra clearly came witbin tbe terms of tbe contract as labor and material to be provided by appellant as part of tbe contract and upon tbe terms and conditions therein specified. Appellant’s contention in this regard, therefore, cannot be sustained.
Appellant further asserts that tbe court erred in refusing appellant’s request to instruct tbe jury to return a verdict in favor of appellant, for tbe sum of $1095.83, tbe amount representing tbe twenty-five per cent claimed to be due him under tbe contract. This claim is based upon tbe provision of tbe contract as construed by appellant, and especially that clause of tbe contract wbicb provided for a referee in case of disputes. As we construe this clause, it was what is usually termed by tbe courts a “precautionary stipulation,” inserted in tbe contract for tbe benefit of tbe contractee. It is not a stipulation whereby tbe
“The rule is that when the architect is, by the terms on, the contract, made the sole arbiter between the parties of matters concerning material and character of work: used in construction, the exercise of his judgment on such matters will be binding on the parties, unless some species of fraudulent conduct in respect thereto is pleaded and proved.”
Tbe referee clause of tbe contract in question is, however, not like tbe one passed on by tbe Supreme-Court of California nor like tbe one referred to by tbe Texas Court of Civil Appeals. This is clearly pointed out by tbe last-named court in tbe Wright Case. It is there in effect beld that tbe rule does not apply if the contract in terms provides tbe bind and quality of tbe material, and bow tbe work
But, assuming that we are wrong in this conclusion, and that the referee clause is to receive the full effect that is usually given to such clauses by the courts in building
The case of United States v. Walsh, 115 Fed. 697, 52 C. C. A. 419, seems to be much in point. In that case a similar clause contained in a construction contract was construed and applied by the United States Circuit Court of Appeals. It is there held that such a clause is to be construed in connection with all the provisions of the contract, and is ordinarily to be regarded as merely precautionary, and for the benefit of the contractee. In that case, like in
In an action upon the contract appellant cannot recover unless and until he shows that he has, substantially at least, complied with its provisions. Appellant alleged that he had so complied and respondent denied these allegations,
While the record is not free from technical errors, yet we are well satisfied that in view of all the evidence appellant suffered no invasion of a substantial right, and hence we are not authorized to reverse the judgment. The judgment therefore is affirmed, with costs to respondent.