114 U.S. 549 (1885), Martinsburg & P.r. Co. v. March

Citation:114 U.S. 549, 5 S.Ct. 1035, 29 L.Ed. 255
Party Name:MARTINSBURG & P. R. CO. v. MARCH.
Case Date:May 04, 1885
Court:United States Supreme Court

Page 549

114 U.S. 549 (1885)

5 S.Ct. 1035, 29 L.Ed. 255

MARTINSBURG & P. R. CO.

v.

MARCH.

United States Supreme Court.

May 4, 1885

COUNSEL

Page 550

[5 S.Ct. 1035] Wayne MacVeagh, for plaintiff in error.

No appearance for defendant in error.

OPINION

HARLAN, J.

This case is within the principles announced in Kihlberg v. U. S. 97 U.S. 398, and Sweeney v. U. S. 109 U.S. 618, S. C. 3 SUP. CT. REP. 344. [5 S.Ct. 1036] Kihlberg sued the United States upon a contract for the transportation of military, Indian, and government stores and supplies from points on the Kansas Pacific Rail way to posts and stations in certain states and territories. The contract provided for payment for transportation 'in all cases according to the distance from the place of departure to that of delivery, the distance to be ascertained and fixed by the chief quarter-master of the district of New Mexico, and in no case

Page 551

to exceed the distance by the usual and customary route.' One of the issues in that case was as to the authority of that officer to fix, conclusively for the parties, the distances which should govern in the settlement of the contractor's accounts for transportation. There was neither allegation nor proof of fraud or bad faith upon the part of that officer in his discharge of the duty imposed upon him by the mutual assent of the parties. This court said: 'In the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the government.' This principle was affirmed and applied inSweeney's Case, in which he sought to recover from the United States the price of a wall built by him around a national cemetery. The contract provided that the wall should be received, and become the property of the United States, after an officer or civil engineer, to be designated by the government to inspect the work, should certify that it was in all respects such as the contractor agreed to construct. The officer designated for that purpose refused to so certify, on the ground that neither the material nor the workmanship was such as the contract required. As the officer exercised an honest judgment in making his inspections, and as there was on his part neither fraud, nor such gross mistake as implied bad faith, it was adjudged that the contractor had no cause of action on the contract against the United States.

Those decisions control the determination of the claim arising out of the contract here in suit, whereby the defendant in error, who was plaintiff below, covenanted and agreed that he would furnish all the material required,--which should be sound, durable, and of good quality, and approved by the company's chief engineer,--and perform all the labor necessary to construct and finish, in every respect, in the most substantial and workman-like manner, the grading and masonry of a certain section of the Martinsburg & Potomac Railroad.

The contract provides that, to prevent all disputes, the engineer of the company 'shall, in all cases, determine' the quantity of the several kinds of work to be paid for under the

Page 552

contract, and the amount of compensation that the appellee should earn at the rates therein specified; that he 'shall, in all cases,' decide every question which can or may arise relative to the execution of the contract, and 'his estimate shall be final and conclusive;' that in order to enable the contractor to prosecute the work advantageously, the engineer 'shall make an estimate from time to time, not oftener than once per month,...

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