G., H. & S. A. R'Y Co. v. Dilley

• Decision Date: 25 June 1886
• Docket Number: Case No. 2040
• Court: Texas Supreme Court
• Parties: G., H. & S. A. R'Y CO. v. HENRY & DILLEY.

65 Tex. 685

G., H. & S. A. R'Y CO.

v.HENRY & DILLEY.

Case No. 2040

Supreme Court of Texas.

June 25, 1886.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The plaintiffs' (appellees) petition was to set aside the determination of the engineer, as to the quantities and amounts of part of the work (rock bank hauled) done, and his decision upon the question which arose between the parties, during the progress of the work, in the execution of a contract for railroad construction, made December 1, 1881; and to recover for such rock bank hauled in excess of the quantities as determined by the engineer.

The petition and the contract exhibited stated: “The quantities and amounts of the several kinds of work performed under this contract, shall be determined by the chief engineer, or by an assistant engineer acting under his direction; and his determination shall be conclusive upon both parties. The chief engineer, or his assistant, * * * * shall decide every question which can, or may, arise between the parties, relative to the execution thereof,” (this agreement) “and his decision shall be final and binding on both parties to this contract.”

The ground of complaint stated against the determination and decision of the engineer was that the quantity of rock bank hauled was determined by measuring the excavations, or pits, from which the material had been taken, to make the bank, and the allegation was that plaintiffs were entitled to have all measurements and estimates of such enbankments made of the embankment itself, and were not required to accept, as the contents of embankment, estimates based on measurements of the excavations, or pits, from which the material was taken; that they had been furnished with the estimates of all the work done by them under the contract, and the same amounts to $667,420.20, which sum defendant paid them, and they accepted the estimates as correct, except in the particular pointed out.

The contract provided that payments were to be made on the fifteenth of each month, as the work progressed. The work was completed by the contractors, and received by the road, on September 10, 1882. The other facts necessary to be stated will be found in the opinion.

E. P. Hill, for appellant, on the effect of the engineer's decision, cited: Herrick v. V. C. R. R., 27 Vt. 673;Kidwell v. B. & O. R. R. Co., 11 Gratt. 676;Condon v. R. R. Co., 14 Gratt. 302; Commonwealth v. Clarkson, 3 Penn. St. 277; R. R. Co. v. Wilcox, 48 Penn. St. 161; Howard v. A. V. R. R. Co., 69 Penn, St. 493; McMahon v. R. R. Co., 20 N. Y. 463; Grant, Alexander & Co. v. R. R. Co., 51 Ga. 348; Finegan v. L'Engle, 8 Fla. 413; R. R. Co. v. Riley, Sup. Ct. Col., October, 1884; 2 Myers' Fed. Dec. 1298; Kihlberg v. United States, 97 U. S. ??98; Aspley v. Thomas, 17 Tex. 220; 3 Graham & Waterman on New Trials, 1278; Jones v. Prosh, 6 Tex. 202; 2 Story's Eq., secs 1452-1456; Boston Water Power Co. v. Gray, 6 Met. 131; Burchell v. Marsh, 17 How. 344; Schenk v. Cuttrell, 1 Green's Ch. 297; Roloson v. Carson. ?? Md. 208.

Baker, Botts & Baker, for appellees, on the binding effect of the engineer's measurement, cited: A. M. C. & N. A. R'y Co. v. Northcott, 15 Minor 49; McAvoy v. Long, 13 Ill. 147;Kistler v. R'y Co., 88 Ind. 460; 1 Rorer on Railroads, 461; Kihlberg v. United States, 97 U. S. 398; 1 Red. 416.

WILLIE, CHIEF JUSTICE.

The appellant's assignments of error question the judgment of the court below, only so far as it allows to Henry & Dilley the sum of $32,737.50 for one hundred and nine thousand one hundred and twenty-five cubic yards of hard rock hauled and embanked for the railway company, and ten per cent. upon that sum as a bonus for the early completion of the work. If the allowance of the principal sum above stated is correct, there is no doubt as to the right of the appellees to the ten per cent. bonus, as the whole work contracted for was completed within such time as entitled them to the additional amount claimed, under the terms of the agreement.

The right to the principal sum depends upon whether the amount of rock hauled and embanked by the appellee is to be determined by measuring the excavation from which it was taken, or the embankment of which it formed part, after being hauled. The appellant contends that the former, and the appellees that the latter, should be estimated. The proof shows that the rock embanked will measure fifty per cent. more than before it is quarried, and this difference amounts to the one hundred and nine thousand one hundred and twenty-five cubic yards upon an estimate of the entire solid rock work done by the appellees under their contract.

The court accepted the views of the appellees, and, hence, its judgment in their favor for the hauling and embanking of the one hundred and nine thousand one hundred and twenty-five cubic yards of rock, and the ten per cent. bonus thereon. The contract, itself, does not state in terms as to whether the pit or the embankment is to be resorted to in making the measurement. It purports to attach as part thereof some specifications, by which the work is to be performed, and these specifications provide, among other things, that “the measurement of quantities will usually be made in the cuts, or pits, from which the material has been taken.”

The contract further provides, as follows: “The quantities and and amounts of the several kinds of work performed under this contract shall be determined by the chief engineer, or by an assistant engineer acting under his direction; and his determination shall be conclusive upon both parties.”

The appellant contends that the specifications, as above quoted, fix the manner of making the estimates; and, if not, that the contract, itself, leaves this to the decision of the chief engineer, or his assistant. And these officers, having made their estimates by measuring the excavations, they have thereby determined this to be the meaning of the contract, and the appellees are bound by this decision. It is further urged by the company that the usage of itself and other companies, in the light of which usage the contract must be interpreted, has always been to measure the excavation, and not the embankment, in settling with contractors; and the appellant further relies upon the fact, that Henry & Dilley settled with it upon estimates based upon a measurement of the pits, and thereby ratified the action and decision of the engineers.

A question, preliminary to the consideration of these defences, arises upon an objection taken by the appellees to the right of the company to make them under the general denial--the only answer filed by it to the petition. We think that so far as the defences founded upon the award of the engineer, the provisions of the specifications, and the usage of railway companies are concerned, they could properly be urged under a general denial, as applied to the allegations of the petition. The petition set forth the contract, including the agreement as to what the engineer should decide; it sets forth his decision, but alleges that it is not based on such measurement of the rock as appellees are entitled to, under their contract, and such as is usual and customary under like contracts.

A denial of these allegations put the plaintiffs below upon proof of their contract, and of the failure of the engineer to comply with it in making the measurement, and of the usage alleged by them. Evidence that no such contract was made, or that the engineer was authorized by its terms to determine how the measurement should be made, or that the specifications, which the petition alleged were part of the contract, provided that the measurement should not be of the embankment, as claimed in the petition, but of the pits, or that the usage was contrary to what it was averred in the petition to be, would be in denial of its allegations, and admissible under the general denial. But, if the defendant proposed to show that, admitting the allegations to be true, the plaintiffs had ratified and endorsed the action and estimates of the engineer, by accepting and settling by them with the company, without reservation or protest, this would amount to a plea of confession and avoidance, and was not admissible upon the only answer set up by the defendant to the petition. Had objection to this evidence been made, it should have been excluded.

It is proper, however, to add, that the proof received by the court upon this question does show that, upon making thefinal settlement, the chief engineer told the appellees that if his men had made a mistake, or errors in measurement, it should be corrected. The estimates were, therefore, accepted with this reservation, and were not ratified by the contractors.

We think the evidence shows, with sufficient certainty, and without contradiction, that the estimates were furnished to the contractors, although they were not attached to the contract. It is true that Mr. Dilley, one of the contractors, says that he never saw them until within a month or two of the time when the contract was completed. But it further appears that he was not the person who supervised the work, or who staid upon the ground when it was being performed. His partner, Henry, did this, and he was the person most likely to be in possession of the paper. It was not found...