186 Pa. 256 | Pa. | 1898
Opinion bv
The principal question raised by the assignments of error is whether the city engineer and the members of the highway committee were agents of the city merely to inspect the work as • it progressed, or were arbiters finally to determine whether the contract had been complied with. The agreement is obscurely worded, and contains no clear expression of the intention of the parties on the subject. The ordinance, advertisement, proposal and specifications are all made parts of the contract, and an intention which might have been expressed in a few words must be ascertained partly from expression and partly by inference from a long rambling agreement.
The ordinance authorizes the highway committee to appoint inspectors of the work, and it directs the city engineer personally to supervise the work, but it expressly provides that no waiver of performance or acceptance of any part of the work by the inspectors or engineer “ shall bind the city, unless the same be ratified and accepted by the highway committee.” Payment
It is true, that generally tlie cases in which estimates and decisions of engineers have been held to be conclusive rest on a positive stipulation in the contract, but a necessary implication may have all the force of a positive stipulation. In this case the final decision and the acceptance were not left to the defendant’s engineer, but to a committee of councils which was charged with the duty of constructing tlie work, and which represented the city in that regard. If the construction of the contract by tlie court was correct the case is governed by Hartupee v. Pittsburg, 131 Pa. 535, and Bowman Bros. v. Stewart, 165 Pa. 394, and the line of cases of which they are a part.
No question as to the form of tlie certificate of the city controller was raised until the testimony on both sides had closed and the case was about to be submitted to the jury. No objection to the validity of the contract was suggested in the proceedings preliminary to the trial, and it was offered in evidence and admitted without objection. The objection was first made at a time when it was too late for the plaintiff to show ratification. In City of Erie v. Moody, 176 Pa. 478, it does not appear that
The judgment is affirmed.