| Ark. | Jul 3, 1911
(after stating the facts.) 1. The contract called for the construction of six reinforced concrete culverts. It is admitted that the first three were constructed of concrete, and that the last three were of rubble masonry. There is no dispute between the parties but that this was a change from the terms of the contract, and that such change was authorized by the chief engineer. It is contended by counsel for appellant that the contract authorized the chief engineer to make this change. On the other hand, it is insisted by counsel-for appellee that the contract gave the engineer no such authority. Our own cases establish the doctrine that, unless expressly authorized to do so by the terms of the contract, an engineer or architect has no power to alter, change or modify the contract between the parties, and that his certificate, after he has so changed or modified the contract, stating that the work has been completed according to the contract, will not bind the parties. Boston Store v. Schleuter, 88 Ark. 213" date_filed="1908-11-30" court="Ark." case_name="Boston Store v. Schleuter">88 Ark. 213, and cases cited. Wait, in his work on Engineering and Architectural Jurisprudence, in speaking of the powers of architects and engineers, said: “An engineer is an agent with special power simply to do engineering and to superintend and direct the work. Unless specially conferred, he has no power to contract or to vary the terms of the parties' agreement. He can create no new obligations not embraced by the contract.” Sec. 371. Again he says: “It is usual to constitute the engineer a referee as to the meaning of the plans and specifications, which are his own invention and handiwork, a certain construction of which is necessary to the proper erection and completion of the works. His powers can not be enlarged by implication,, but they will be confined strictly within the terms of the contract.” Sec. 402. In the case of Boston Store v. Schleuter, supra, the architects were, according to the terms of the contract “at liberty to make any deviation from or alteration in the plan, form, construction, detail and execution of the work.” In this respect it is different from the present case. The present contract provides .that the contract shall be completed agreeably to the specifications and according to the direction of the chief engineer. It will be noted that the contract does not give the engineer any power to change, alter, or modify the contract between the parties; and, this being true, his certificate, after he has changed the contract, that the work has been completed according to the contract will not bind the parties. The clause in the contract just referred to does provide that the work shall be done according to the directions of the chief engineer, but it also provides that the work shall be done agreeably to the specifications. By which is meant that the engineer should superintend and direct the. work according to the specification provided for by the contract and made a part of it. Again, it is provided in the contract “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. ” By this is meant that any disagreement arising out of the contract or specifications as to the kind or quality of work required thereby should be decided by the engineer, and that his interpretations hould be conclusive between the parties. There is no dispute, however, between the parties as to what any provision of the contract means, and the whole controversy between them is as to the power of the engineer to change the terms of the contract. This he had no power under the terms of the contract to do. The parties contracted for reinforced concrete culverts. The engineer changed the contract in this respect and permitted the contractors to construct rubble masonry culverts. The testimony on the part of appellee tended to show that the culverts made of boulders were less expensive and not as good for the purposes for which they were intended as those made of reinforced concrete. Moreover, the parties had a right to provide for the kind of culverts they wanted, and we hold that, under the authority given him by the contract in question, the assent of the engineer to the change in the contract was not binding upon the appellee. The acceptance by the engineer of a different class of work from that contracted for did not bind the board to pay for it.
2. It is contended by counsel for appellant that the board accepted these boulder culverts, and should pay for them. They introduced testimony tending to show that Branson was inspector of the levee board; that he knew that these culverts were being constructed out of boulders, and assented thereto. Even if it can be said that Branson had authority to act for the board, his testimony shows that he did not acquiesce in the change made, but on the contrary told the contractors that it was not the kind of work they were looking for. Cole testified that the board did not know anything about the change until the 24th day of September, at which time all of the culverts except one were completed. He says that he at once notified the appellants of their refusal to accept the change.
The court, sitting as a jury, found that there had not been a substantial compliance of the contract by appellants, and that appellee did not accept the work, and there was evidence to support the finding. Fitzgerald v. LaPorte, 64 Ark. 34" date_filed="1897-04-17" court="Ark." case_name="Fitzgerald v. La Porte">64 Ark. 34.
The question whether appellants were entitled to a quantum meruit is not raised by appellant. It may be said, however, that, if such contention were made, the case was not tried on that issue, and there is not sufficient evidence in the record from which a correct .finding in that respect could have been made by the court. An instructive case on this question is that of Foeller v. Heintz, (Wis.) 24 L. R. A. (N. S.) 327, and case note at p. 348.
3. On the cross appeal of appellee but little need be said. It is sufficient to say that the case was tried by the court sitting as a jury, and it is well settled that the finding of fact made by a court is as final on appeal as the verdict of a jury; that is to say, if there is any evidence to support it, it will not be disturbed. We think that the evidence was sufficient to support the finding of the court that the levee board accepted the first three culverts which were built of concrete. This being true, appellants are entitled to recover the contract price therefor.
The judgment will be affirmed.