Bowman Bros. v. Stewart

• Decision Date: 07 January 1895
• Docket Number: 106
• Citation: 165 Pa. 394,30 A. 988
• Parties: Bowman Bros. v. Henry Stewart et al., Appellants
• Court: Pennsylvania Supreme Court

30 A. 988

165 Pa. 394

Bowman Bros. v. Henry Stewart et al., Appellants

No. 106

Supreme Court of Pennsylvania

January 7, 1895

Argued October 24, 1894

Appeal, No. 106, Oct. T., 1894, by defendants, from order of C.P. No. 2, Allegheny County, Oct. Term, 1893, No. 535 making absolute a rule for judgment for want of a sufficient affidavit of defence. Affirmed.

Assumpsit to recover contract price for paving a portion of Versailles avenue in the city of McKeesport.

From the record it appeared that the contract under which the work was done, contained a clause making the city engineer's decision final.

Defendants filed an affidavit of defence in which they averred that plaintiffs had violated their contract in many essential particulars; that the estimate of the engineer employed by them showed that the entire grading of the avenue did not exceed 13,961 cubic yards, while the city engineer's estimates for the grading amounted to 25,195 cubic yards; and that on a street 3,280 feet in length, and 50 feet in width defendants' engineer found that 1,237 lineal feet of curbing was soft common sandstone, and not at all according to the specifications; that he also made a test of the brick used and found that from one fourth to one third of the brick was defective and was only ordinary fire brick, pervious to water and easily disintegrated by frost and sun, wholly unfit for the purpose and already showing manifest evidence of decay.

On a rule for judgment for want of a sufficient affidavit of defence the following opinion was filed by WHITE, J.:

"The resolution of the city councils granting permission to the defendants (or the property-holders represented by the defendants) 'to contract for, and have graded, curbed and paved with fire brick at their own expense,' Versailles avenue, expressly provided that it should be done 'under the direction of the city engineer,' and he was 'directed to see that the work is properly done.' Under this resolution the defendants made the contract with the plaintiffs to do the work.

"The contract was very full and specific, describing in detail all materials and work. Section 44 provided that 'To prevent all disputes and litigation it is further agreed by and between the parties to this contract that the engineer shall in all cases determine the quantity and quality of the several kinds of work which are to be paid for under this contract, and their decision shall be final and conclusive in the premises; and they shall determine all questions in relation to lines, levels and dimensions of the work, or as to the interpretation of the plans and specifications.'

"The comprehensive language of this section covers all questions or disputes that might arise between the contracting parties and is also conclusive upon the city. It embraces materials as well as work, for it embraces all 'which are to be paid for under this contract.' The city engineer was made the final arbiter in all matters.

"The affidavit of claim avers that the 'plaintiffs performed said contract, under the directions of F.W. Patterson, city engineer of said city, and to his satisfaction; . . . that at the completion of the work, the said engineer made a final estimate thereof, showing the amounts due plaintiffs and plaintiffs, during the year following the completion of the work, made all repairs required by said engineer.' None of these averments is denied in the affidavit of defence.

"The contention of the defendants is, that the engineer was negligent and careless in superintending the work, and making his estimates; that some of the materials -- bricks...