Standard Construction Co. v. Brantley Granite Co.

43 So. 300 | Miss. | 1907

Whitfield, C. J.,

delivered the opinion of the court.

The contract in this case expressly provides in article four that “the contractor shall, within twenty-four hours after receiving written notice from the architect or owner, proceed to remove from the grounds or buildings all material condemned by him, whether worked or unworked, and to take down all portions of the granite which the architect shall by like written notice condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications.” By article six it is likewise expressly provided that “all granite must be equal to the samples which the contractor has submitted to the owner and must be satisfactory to the architect.” Article nine expressly provides that “payment will be made in full within thirty days after the granite has been delivered and accepted by the architect.” These are the plain and unequivocal provisions of this contract. There is no ambiguity whatever about them. The stipulation is that the granite must be satisfactory to the architect and must be accepted by the architect; and it is expressly provided that all not so satisfactory shall be removed from the grounds and building, and actually taken down, although the granite may have been put into the building. The parties were entirely competent to make such contract if they so desired. There is no conflict whatever in the testimony as to the fact that the granite was not satisfactory to the architect and was not accepted by him, but was ordered to be removed from the grounds in accordance with the provisions which we have set out above. There is not a single allegation in the declaration that the architect was guilty of any fraud, or of any such gross mistake as would imply fraud, or of any dishonest exercise of his judgment, and there is not one particle of proof to show any of these things. On this state of case the court should have given a peremptory, instruction for the defendant.

The principle has been over and over settled by the supreme court of the United States, some of the best authorities being very carefully collected in the very able brief of the learned counsel for appellant. The principle was laid down by Judge Harlan in Kihlberg v. United States, 97 U. S., 398, 24 L. Ed., 1106, as being this: That in such case, wherever the parties by their contract have expressly delegated to a tribunal' or persons the determination of the question whether the material is of the required quality, the determination of such persons is final, “in the absence of fraud or such gross mistake as would necessarily imply bad faith or a failure to exercise an honest judgment in the premises.” This principle is reiterated in Sweeney v. United States, 109 U. S. 618, 3 Sup. Ct., 344, 27 L. Ed., 1053, in which case it is further stated that the decision of such person or tribunal is not subject to the revisory powers of the courts, in the absence of fraud as stated above. In the case of United States v. Gleason, 175 U. S., 590, 20 Sup. Ct., 233, 44 L. Ed., 284, the court said: “While we are to determine the legal import of this provision according to its own terms, it may be well to briefly recall well-settled rules in this branch of the law. One is that if a party by his contract charges himself with an obligation possible to be performed, he must make it good, unless his performance is rendered impossible by the act of God, the law or the other party. Difficulties, even if unforeseen, and however great, will not excuse him. If parties have made no provision for dispensation, the rule of law gives none; nor in such circumstances can equity interpose. Dermolt v. Jones, 2 Wall. (U. S.), 1, 17 L. Ed., 762; Cutter v. Powell, 6 T. R., 320; 2 Smith, Leading Cases, 1. Another rule is that it is' competent for' parties to a contract of the nature of the present one to make it a term of the contract that the decision of an engineer or other officer that all or specified matters of dispute that may arise during the execution of the work shall be final and conclusive, and that, in the absence of fraud or mistake so gross as to necessarily imply fraud, such decision will not be subject to the revisory power of the courts. Martinsburg v. March, 114 U. S., 549, 5 Sup. Ct., 1035, 29 L. Ed., 255; Chicago, etc., v. Price, 138 U. S., 185, 11 Sup. Ct., 290, 34 L. Ed., 917. The fallacy, we think, of the court below, was in assuming that it was competent to go back of the judgment of the engineer and to revise his actions by the court. This, we have seen, could only be done upon allegations and proof of bad faith, or of mistake so gross as to justify an inference of bad faith; but in this case we find neither allegation nor proof. The plaintiffs allege that they were prevented from completing their work by 'force and violence, and not through any fault of their own, and that the judgment of the engineer in refusing an extension was, therefore, wrongful and unjust. But, as they agreed in the contract, as we have construed it, that the engineer was to decide whether the failure to complete was due to the force of the elements or to their fault, their allegation now is that the determination of the engineer was wrongful and unjust, because he decided the submitted issue against them. Of course, such an allegation is wholly insufficient on which to base an attempt to upset the judgment of the engineer. Without protracting the discussion, our conclusion is that no allegation or finding is shown in this record sufficient to justify the court in setting aside the jiidgment of the engineer .as having been rendered in bad faith or in any dishonest disregard of the rights of the contracting party.”

It follows, from, these views, that the judgment of the court below is reversed, and the cause remanded.