Lauman v. Young et al.

• Decision Date: 01 January 1858
• Parties: Lauman versus Young et al.
• Court: Pennsylvania Supreme Court

31 Pa. 306

Lauman versus Young et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Dauphin county.

Page 307

COPYRIGHT MATERIAL OMITTED

Page 308

McCormick and Kunkel, for the plaintiff in error, cited Monongahela Navigation Company v. Fenlon, 4 W. & S. 205; Faunce v. Burke, 4 Harris 469; Fox v. Hempfield Railroad Company, 14 Leg. Int. 148.

J. A. Fisher and Lamberton, for the defendants in error, cited 2 Greenl. Ev. 257; Philadelphia, Wilmington and Baltimore Railroad v. Howard, 13 How. 307, 340; Case v. Cushman, 3 W. & S. 546; Snyder v. Leibengood, 4 Barr 305; Snodgrass v. Gavit, 4 Casey 221; Harris v. Ligget, 1 W. & S. 301.

The opinion of the court was delivered by THOMPSON, J.

1. The first assignment of error is not sustained. The sub-letting to Fisher & Taylor of section No. 48, by the plaintiffs, had taken place a month and a half before the contract between the plaintiffs and defendant was executed, doubtless, under some previous arrangement that the plaintiffs were to have the contract for building sections No. 47 and 48. An estimate had been paid on the work done by the sub-contractors, and they were in active operation on the work at the time. They continued on afterwards, without objection by the defendant or the company, and finished the work on the section, were paid for it, and received the retained per cent. from the defendant. No steps were taken to forfeit the contract. Under these circumstances, the court very properly left the question of knowledge, assent, and acquiescence, on part of defendant, to the jury, which they found to exist. It seems to us, there was abundance of evidence to justify the proceeding. Forfeiture is not a favourite of the law. Acquiescence in acts inconsistent with it, will readily dispense with a right to claim it.

2. The second assignment is also groundless. The defendant had bound the plaintiffs to commence work within two weeks, and to finish by the 1st of October 1855, and covenanted to furnish the right of way. The plaintiffs charged that he failed to do this, so far as section 47, and a portion of 48, were concerned. If this were so, the defendant was answerable on his covenant for a failure to furnish it in a reasonable time after request. The plaintiffs could look to no other source for indemnity. This was the instruction of the court, and there was no error in it.

3. The third assignment raises the important question in the case, and is whether the plaintiffs can sustain their action, not having previously obtained the decision of the engineer as stipulated for in the contract?

It cannot now be doubted, but that if the ground of "dispute" involved in this suit comes within the prospective submission agreed upon in the contract, by the parties, that it cannot be investigated here. Such provisions for settling controversies which might arise between companies and their contractors, as also between individuals, have been fully sustained by this court: Fenlon v. Monongahela Navigation Co., 4 W. & S. 405; Faunce v. Burke & Garder, 4 Harris 469; and Snodgrass v. Gavit, 4 Casey 224.

Is the matter in controversy in this case embraced by and within the jurisdiction conferred by the agreement on the engineer? It is as follows: "To prevent all disputes, it is hereby mutually agreed that the said engineer shall, in all cases, determine the amount and quantity of the several kinds of work which are to be paid for under the contract, and the amount of compensation, at the rates herein provided for; and also that the said engineer shall in all cases decide every question which can or may arise, relative to the execution of this contract, on the part of said contractors; and his decision shall be final and conclusive, and without appeal."

The intention of the parties, to this prospective submission, is very clearly apparent, and is certainly not to be enlarged beyond the plain terms used. The engineer was only to determine upon such matters as the parties submitted to his final adjudication, and they stipulate that, "to prevent all disputes," he shall determine the amount and quantity of work and the compensation to be paid for it, at the rates provided for. This is the first clause of the submission. The words "all disputes" are clearly controlled and limited to the distinctly enumerated grounds of anticipated dispute, in the same sentence, which are so defined that these general words have no force or meaning unless they relate to anticipated disputes arising out of the work to be done, and the compensation to be paid. The parties anticipated disputes from no other source, or if they did, they chose to rely for a settlement of them upon the established tribunals of the county. It is...