Lewis v. Chicago, S.F. & C. Ry. Co.

• Decision Date: 07 December 1891
• Citation: 49 F. 708
• Court: U.S. District Court — Eastern District of Missouri
• Parties: LEWIS et al. v. CHICAGO, S.F. & C. RY. CO.

49 F. 708

LEWIS et al. v. CHICAGO, S.F. & C. RY. CO.

United States Circuit Court, E.D. Missouri, Northern Division.

December 7, 1891

STATEMENT BY THAYER, DISTRICT JUDGE.

This was a suit to recover a balance claimed to be due for grading a portion of defendant's railroad in the state of Missouri. The plaintiffs were subcontractors under McArthur Bros. The contract under which the work was done contained the following clause:

'The work shall be executed under the direction and supervision of the chief engineer of said railway company and his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed under this contract shall be determined, and whose determination shall be conclusive upon the parties hereto; * * * and said chief engineer shall decide every question which can or may arise between the parties in the execution of this contract, and his decision shall be binding and final upon both parties. And whereas, the classification of excavation provided for in the annexed specifications is of a character that makes it necessary that special attention should be called to it, it is expressly agreed by the parties to this contract that the classifications, measurements, and calculations of the said engineer of the respective quantities of such excavation shall be final and conclusive.'

The defendant pleaded this provision of the contract, and further alleged that the chief engineer of the railway company had made a final estimate of the quantity of work done, and that the railway company had paid the amount of such estimate, and were not further liable. The plaintiffs contended that the provision of the contract was not binding upon them; and, furthermore, that the estimate of the chief engineer ought to be disregarded for fraud and mistake on the part of the engineer. Plaintiffs also claimed that they had done certain extra work, not embraced by the provisions of the contract. The specifications attached to the contract under which the work was done contained the following clause:

'Excavation in Loose Rock. * * * Loose rock shall comprise: First. Shale or soapstone lying in its original or stratified position, coarse boulders in gravel, cemented gravel hardpan, or any other material requiring the use of pick and bar, or which cannot be plowed with a strong, ten-inch grading plow, well handled, behind a good six mule or horse team. Second. Detached rock or boulders in masses exceeding 1 1/2 cubic feet and less than one cubic yard.'

By the terms of the contract, all of the material found in the excavations was to be measured either as earth, loose rock or solid rock. The grubbing specification referred to in the opinion was as follows:

'Measurements for grubbing with include all area under embankments and within six feet of slope stakes; also all area within slope stakes of excavations, and within area of all necessary borrow pits where grubbing is necessarily done.'

It appeared in the evidence that the engineers of the railway company, in classifying the material found in the various cuts along the line of plaintiffs' work, had measured the total quantity of material found in the cuts, and allowed a certain percentage thereof as loose rock, based upon their observation of the number of animals that were used in plowing it. As the engineers construed the specifications, shale, cemented gravel, hardpan, etc., were not classified as loose rock, unless more than six horses or mules were required to plow such substances.

Craig, McCrary & Craig, for plaintiffs.

Gardiner Lathrop, Ben Eli Guthrie, and T. L. Montgomery, for defendant.

THAYER, District Judge, (after stating the facts as above.)

For the information of counsel the court states the conclusions it has reached concerning the various questions of law and fact that have arisen in this case as follows:

First. The second clause in the contract, declaring that the engineer's measurements and calculations of the quantity and amount of the several kinds of work, and also that his classification of the material contained in excavations, shall be 'final and conclusive,' is a valid provision, and is binding upon the parties to the agreement. Therefore there can be no recovery in excess of the engineer's final estimate, unless such estimate is successfully assailed for fraud, gross errors, or mistake. Railroad Co. v. March, 114 U.S. 549, 5 S.Ct. 1035; Wood v. Railroad Co., 39 F. 52, and citations; Sweet v. Morrison, 116 N.Y. 19, 22 N.E. 276; Brush v. Fisher, 70 Mich. 469, 38 N.W. 446.

Second. The estimate may be impeached for fraud; that is to say, it may be shown that the engineers in charge intentionally underestimated or overestimated the work. It may also be impeached by proof of gross errors in the measurements and calculations. If the evidence shows such errors, it either creates the presumption of fraud, or warrants the conclusion that the engineers did not exercise that degree of care, skill, and good faith in the discharge of their duty which the law exacts; and in either event the court will disregard the estimate so far as is necessary to do substantial justice. The meaning of the word 'mistake,' as above employed, must be carefully defined.

(a) The court will relieve against mistakes in measurements and calculations that are apparent on the face of the estimate, or that are clearly proven, though not so apparent.

(b) If it is satisfactorily shown that the engineers failed, through oversight, to measure or estimate any particular part of the work, the court will grant relief as to such mistakes.

(c) If it appears that the engineer in charge put a wrong construction on any provision of the contract, the court will correct any substantial errors resulting from such mistake, for the reason that the parties did not make the decision of the engineer as to the proper interpretation of the contract final and conclusive. If is the province of the court to construe the agreement. Bridge Co. v. City of St. Louis, 43 F. 768.

(d) But in determining the kind of material found in the several cuts, the engineers were called upon to exercise their judgment. That was a matter, as the contract in substance recites, which involved the exercise of special skill and attention as the work progressed, and for that reason the parties selected an umpire, by whose judgment they agreed to be bound. Ranger v. Railway Co., 1 Eng.Ry.Cas. 1; 13 Sim. 368. The court will not undertake to revise the decision of the engineer on questions of that character if it appears that he acted in good faith. The utmost it can do is to correct errors of classification that may have resulted from an erroneous interpretation of the contract.

(e) Slight discrepancies in measurements made by the respective parties must also be disregarded; and even when there are discrepancies of some magnitude the court must accept measurements made by the engineers of the railway company, unless the proof clearly shows that they are erroneous. The presumption is that all measurements made by such engineers are correct, and the burden is on the plaintiffs to overcome that presumption. Torrance v. Amsden, 3 McLean, 509; Bumpass v. Webb, 4 Port. (Ala.) 65; Pleasants v. Ross, 1 Wash. (Va.) 156.

Third. After an attentive consideration of the question, the court concludes that the engineers put a wrong construction on the second clause of the specifications, in so far as they construed the 'plowing test' to be applicable to shale, soapstone, cemented gravel, and hardpan, as well as to other hard, earthy substances. The right interpretation of the...