Choctaw & M.R. Co. v. Newton

• Decision Date: 31 July 1905
• Docket Number: 2,001.
• Citation: 140 F. 225
• Parties: CHOCTAW & M.R. CO. et al. v. NEWTON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F. 225

CHOCTAW & M.R. CO. et al. v. NEWTON et al.

No. 2,001.

United States Court of Appeals, Eighth Circuit.

July 31, 1905

J. M Moore and W. F. Evans (M. A. Low and W. B. Smith, on the brief), for appellants.

John McClure and George B. Rose (U. M. Rose and W. E. Hemingway on the brief), for appellees.

On November 29, 1898, the Choctaw & Memphis Railroad Company entered into a contract with the Choctaw Construction Company for the acquisition of a line of railroad between the Mississippi river and Little Rock, in the state of Arkansas and to construct a railroad from the western terminus of the Little Rock & Memphis Railroad to the western boundary of the state. On November 30, 1898, the Choctaw Construction Company entered into a contract with McCarthy & Reichardt for the construction of about 65 miles of this road, a small part of which work was sublet to the Magoon Construction Company. The important provisions of which contract, in so far as they are essential, are as follows:

'(1) Said work shall be finished in the best and most workmanlike manner, and shall be constructed of the best materials of their several kinds, and all in conformity with the annexed specifications, and conditions, and proposals, which are hereby expressly made a part of this contract.'

'(3) The contractor takes the work solely upon his own information and judgment of the character of the country and the location and amount of the various kinds of materials to be encountered, and without reliance upon the profile and preliminary approximate estimates of the chief engineer of the company.

'(4) The accepted tender of the contractor, the specifications for the doing of the work, and the several parts of this contract shall be taken and construed together, and, if it be found that anything has been omitted or misstated which is necessary for the proper performance and completion of any part of the work contracted for, the contractor will, at his own expense, execute the same as if it had been inserted or properly described herein, as the case may be; and the decision of the chief engineer of the company shall be final as to any such error or omission, and the correction of any such error or omission shall not be deemed to be an addition to or deviation from the work hereby contracted for.

'(5) The chief engineer of the company shall be at liberty at any time, either before or during the construction of the work, or any portion thereof, to order any additional work to be done, and to make any changes in the work contracted for, or in its location or position, either in line or grade, which he may deem expedient, whether such changes increase or diminish the work to be done or the cost of doing the same. All the terms and provisions of this contract shall apply to all such changes, additions, or deviations in like manner and to the same extent as to the work originally contracted for, and no changes, additions, or deviations shall annul or invalidate this contract. Such changes, additions, or deviations shall not affect the prices herein specified; nor shall any bill for 'extras' or other charge or claim be made, allowed, or paid by reason thereof, or any difference occasioned by any such change or alteration in the quantity, quality, location, or nature of the work to be performed.

'(6) Whenever work is required to be done which is not covered by the prices herein mentioned, the chief engineer of the company shall give a written order for the doing of such work, and fix the prices to be paid for the doing of the same. The obtaining of the certificate of the chief engineer of the company as to the work done and the price thereof shall be a condition precedent to the right of the contractor, to be paid for any such extra work. Nothing shall be deemed extra work, however, which can be measured or estimated under the provisions of this contract. All claims for extra work or material must be presented to the chief engineer of the company for allowance at the close of that month in which it was done or furnished, to be included in the estimate for that month; otherwise, all claims therefor shall be deemed absolutely waived by the contractor, and the company shall not be required to allow or pay for the same.'

'(15) All imperfect or insufficient work or material, when pointed out by the chief engineer of the company, shall be immediately remedied and made good and sufficient by the contractor, at his own cost and expense, to the satisfaction of said chief engineer, and any omission by the said chief engineer to disapprove of or reject any insufficient or imperfect work or material at the time of any monthly or other estimate, shall not be deemed an acceptance of such work or material; and the same chief engineer shall have the power to have any defective work and material taken out and rebuilt or replaced at any time at the expense of the contractor.'

Paragraph 16 fixes the prices to be paid for the several kinds of work. The prices for excavation were as follows: Earth, 13 cents per cubic yard; loose rock, 33 cents per cubic yard; solid rock, 60 cents per cubic yard. 'And it is mutually agreed between the parties hereto that all the material excavated by the contractor under this contract shall be classified either as earth, loose rock, or solid rock, and that the chief engineer of the company shall determine how all excavated materials shall be classified, and in all cases of dispute his finding or decision in the premises shall be conclusive on both the parties hereto.

'(17) Approximate estimates of the work done under this contract are to be made at the end of each calendar month by the chief engineer of the company, and payments thereon are to be made by the company to the contractor on or about the 20th day of the next ensuing month, less all previous payments, and less 10 per cent. of the amount of each and every monthly estimate, which percentage shall be retained by the company until the complete performance of this contract by the contractor. The approximate estimate made from month to month shall not in any respect be taken as an admission by the company of the work done, or of its quality or sufficiency, or of the amount due the contractor, nor as an acceptance of the work or release of the contractor from responsibility in respect thereof; but, at the time of the making of the final estimate, the whole of the work and all of the particulars relating thereto, including quantity, quality, and price, shall be subject to revision and adjustment by the chief engineer of the company. The company shall not be liable for any errors or omissions in said approximate monthly estimates, nor for any loss or damage suffered by the contractor by reason of his having settled with his subcontractors on the faith thereof, or otherwise.'

'(23) Before final settlement is made between the parties hereto for work done and materials furnished under this contract, and before any right of action shall accrue to the contractor against the company therefor, the said contractor shall furnish evidence satisfactory to the chief engineer of the company that the work covered by this contract is free and clear from all liens for labor or materials, and that no claim then exists against the same for which any lien could be enforced.

'(24) Whenever, in the opinion of the chief engineer of the company, this contract and all things herein agreed to be done by the contractors shall have been completely performed and finished according to the provisions hereof, and within the time herein limited, said chief engineer shall make and return a final estimate of the work done and materials furnished by the contractor under this contract, together with a statement of the amount due to him therefor and remaining unpaid, and shall certify the same in writing under this hand, and the company shall, within -- days after the completion of the work aforesaid and the return of said final estimate, pay to the contractor the full amount so found to be due to him and remaining unpaid, including the percentage retained on former estimates as aforesaid, except as in this contract is otherwise provided. The procuring of such certificate and final estimate shall constitute a condition precedent to any right of action by the contractor against the company. Before final payment shall be required to be made by the company under this contract, the contractor shall acknowledge and deliver under his hand and seal a release and discharge of and from any and all claims and demands for and in respect of all matters and things growing out of or connected with this contract, or the subject-matter thereof, and of or from all claims and demands whatsoever.

'(25) It is hereby mutually covenanted and agreed by and between the said parties hereto that to prevent disputes or misunderstandings between them in relation to any of the stipulations and provisions contained in this agreement, or the true intent and meaning thereof and of the specifications hereunto annexed, and of the plans, profiles, and drawings relating thereto, or the matter of performance of said contract by either of said parties, and for the speedy settlement of such as may occur, the chief engineer of the company, who may be such at the time of the making of the final estimate, shall be, and he is hereby, made, constituted and appointed the umpire to finally decide all such questions and matters; and he shall also determine, and set forth in the final estimate, the amount and quantity, character, kind and classification of all work and materials performed and furnished by the contractor under this contract, including all extra work and material, and his decision and determination as to any and all such questions, matters, and...