Condon v. South Side R. R. Co.

• Decision Date: 27 April 1858
• Citation: 55 Va. 302
• Parties: CONDON v. SOUTH SIDE R. R. Co.
• Court: Virginia Supreme Court

55 Va. 302

CONDON v. SOUTH SIDE R. R. Co.

Supreme Court of Appeals of Virginia.

April 27, 1858

The agreement between a rail road company and a contractor provides: And whereas the above work must be inspected and received, it is hereby agreed that the engineer of the company or some one appointed by him, shall be the inspector of said work, shall determine when this contract is complied with according to its just and fair interpretation, and the amount of the same, and all disputes and difficulties arising under the same; and his decision shall be obligatory and conclusive between the parties to this contract, without further recourse of appeal. HELD:

1. The decision of the engineer is conclusive upon the parties: And this in relation to the price of a species of excavation not mentioned in the specifications.

2. Such a contract is legal and binding on the parties.

This was an action of assumpsit in the Circuit court of the city of Petersburg, brought by David Condon against the South Side Rail Road Company. The plaintiff had been a contractor to execute the work on a section of the road of the company; and the only question was, Whether, under the contract between the parties, the action of the engineer in determining the character and fixing the price of removing certain rock, was conclusive upon the parties? The case is stated in the opinion of Judge MONCURE. There was a judgment for the defendant in the Circuit court: and thereupon Condon applied to this court for a supersedeas, which was allowed.

J Alfred Jones, for the appellant, referred to Harrison v The Great Northern R. Co. 8 Eng. L. & E. R. 469; Wilson v. York & Maryland Line R. R. Co. 11 Gill & John. 58; United States v. Robeson, 9 Peters' R. 319; Mansfield & Sandusky R. R. Co. v Veeder & Co. 17 Ohio R. 385; 2 Tuck. Com 30-35; 2 Story's Equ. Jur. § 1053-1056.

Joynes, for the appellee, cited Scott v. Avery, 20 Eng. L. & E. R. 327; S. C. 36, Id. 1; United States v. Robeson, 9 Peters' R. 319; Morgan v. Birnie, 23 Eng. C. L. R. 414; Milner v. Field, 1 Eng. L. & E. R. 531; Glenn v. Leith, 22 Eng. L. & E. R. 489; Grafton v. Eastern Counties R. Co. Id. 557; Northampton Gas-Light Co. v. Parnell, 29 Id. 229; Worsley v. Wood, 6 T. R. 710; Mason v. Harvey, 20 Eng. L. & E. R. 541; Leadbetter v. Etna Ins. Co. 13 Maine R. 265; Kidwell v. Baltimore & Ohio R. R. Co. 11 Gratt. 676; Phil. Wilm. & Balt. R. R. Co. v. Howard, 13 Howard's U.S. R. 307; Delaware & Hudson Canal Co. v. Dubois, 15 Wend. R. 87; Ranger v. Great Western R. R. Co. 27 Eng. L. & E. R. 35; Sherman v. Mayor, & c. of New York, 1 Comstock's R. 316; Boston Water Power Co. v. Gray, 6 Metc. R. 131, 181; Kleine v. Catara, 2 Galli. R. 61; Head v. Muir & Long, 3 Rand. 122; Hollingsworth v. Lupton, 4 Munf. 114; Pollard v. Lumpkin, 6 Gratt. 398; Bassett's adm'r v. Cunningham's adm'r, 9 Gratt. 684; Underhill v. Van Cortlandt, 2 John. Ch. R. 339; Pleasants, & c. v. Ross, 1 Wash. 156; Taylor's adm'r v. Nicolson, 1 Hen. & Munf. 67; Butler v. Mayor, & c. of New York, 1 Hill's R. 489.

MONCURE J.

This is a supersedeas to a judgment of the Circuit court of Petersburg, rendered in an action of assumpsit brought by the plaintiff in error, David Condon, against the defendants in error, the South Side rail road company, on a contract between them, whereby the said Condon agreed to excavate, embank and construct sections Nos. 38 and 40 of the South Side rail road, according to certain specifications, and the said company agreed to pay for the work at certain rates, and in a certain manner, prescribed by the contract. The main, if not the only, object of the action, was to recover eighty cents per cubic yard for twelve thousand six hundred and sixty-two cubic yards of excavation, instead of the price allowed therefor in the final estimate of the engineer of the company, to wit, eighty cents per yard for two hundred and sixty cubic yards, thirty-five cents per yard for five thousand seven hundred and ninety-six cubic yards, and forty cents per yard for the remaining six thousand six hundred and six cubic yards thereof. The declaration contains three counts, all of which are special counts. There is little material variance between them. There was a general demurrer to the declaration, which was sustained by the court, and judgment thereupon rendered for the defendants: to which judgment the supersedeas in this case was awarded.

The contract is set out in totidem verbis in each count of the declaration. It embodies the specifications according to which the work was agreed to be done, but which it is unnecessary to detail. Under the head of " Items to be estimated and mode of estimating," is the following among other statements:

" All materials necessarily excavated for the road way, ditches or common road, will be estimated and paid for by the cubic yard, under the following heads, viz: Common excavation, Loose rock, Solid rock, and Slate that requires blasting.

Common excavation will include sand, clay, gravel, soft rock, loam, and all other earthy matter, also detached rock intermixed, which do not contain more than three cubic feet each.

Loose rock will include all detached rocks containing more than three and less than twenty-seven cubic feet each.

Solid rock will include all rock in masses containing more than one cubic yard, which requires blasting.

Slate--all slate which requires blasting."

The contract then proceeds:

" And the South Side rail road company covenant and agree to pay to the said party of the second part when the above contract shall have been faithfully complied with, at the following rates, to wit:

Section No. 38, 9 1/4 cents per cubic yard for common excavation.

Section No. 38, 9 1/4 cents per cubic yard of embankment.

At the engineer's estimate for loose rock.

Section No. 38, 80 cents per cubic yard for every yard solid rock.

At the engineer's estimate for slate rock.

Section No. 38, $3 per cubic yard of every yard of dry stone drains.

And they will make their payments in the following manner, that is to say: On or about the 1st day of every month during the progress of this contract, the company aforesaid will pay 80 per cent. of the relative value of such work as may be done, to be judged of by their engineer, and at such places as their said engineer may appoint, until the whole of the work herein contracted for shall have been finished agreeably to contract, and shall have been accepted by their said engineer as so finished and completed, when the balance due shall be forthwith paid to the said party of the second part."

Then follow sundry other provisions, of which the last is the following:

" And whereas the above work must be inspected and received, it is hereby agreed that the engineer of the South Side rail road company, or some one appointed by him, shall be the inspector of the said work, shall determine when this contract has been complied with, according to its just and fair interpretation, and the amount of the same, and all disputes and difficulties arising under the same, and his decision shall be obligatory and conclusive between the parties to this contract, without further recourse of appeal."

After setting out the contract, it is, among other things, averred in the first count of the declaration, that section No. 40 had been transferred to another contractor, with the consent of the engineer of the defendants, and been completed and accepted; that in consideration of the agreement aforesaid, the plaintiff entered upon section No. 38, and excavated, embanked and constructed the same according to the agreement; and the same was on the 30th day of March 1852, accepted by the said engineer as so completed; that he did on said section a certain quantity of work stated in detail, one item of which is " twelve thousand six hundred and sixty-two cubic yards of rock in masses containing more than one cubic yard which required blasting; " that the chief engineer of the defendants, C. O. Sandford, appointed one B. H. Gordon to inspect and receive the work; that said Gordon, after he was so appointed, declared that the said twelve thousand six hundred and sixty-two cubic yards of rock excavation were in masses of more than one cubic yard, and required blasting, and could not be classified as " common excavation," yet refused to classify the same (except two hundred and sixty cubic yards) as " solid rock; " but adopting an arbitrary and unauthorized mode of classification, put down five thousand seven hundred and ninety-six cubic yards thereof at thirty-five cents, and six thousand six hundred and six yards at forty cents, instead of the whole at eighty cents per cubic yard; claiming that, under the contract aforesaid, the chief engineer or person appointed by him to inspect and receive the said work, had authority to classify the said rock as " soft rock," although it was in masses of more than one cubic yard and required blasting, and although it could not be classified as common exavation; that the said Gordon, governed by this mistake and illegal view of his authority, proceeded to make the classification (which is set out in the said count) of the work done on said section 38; three of the items of which classification are,

" 260 cubic yards solid rock, worth 80 cents per yard; 5,796 cubic yards soft rock, worth 35 cents per yard; 6,606 cubic yards soft rock, worth 40 cents per yard; "

making the whole amount to the sum of ten thousand four hundred and thirty-eight dollars and sixty-one cents; and that the determination and classification of the said Gordon were adopted and adhered to by said Sandford, the chief engineer of the defendants: whereupon the plaintiff says that the said classification is contrary to the terms of the contract, and illegal and...