O'Reilly v. Kerns

• Decision Date: 26 April 1866
• Citation: 52 Pa. 214
• Parties: O'Reilly <I>versus</I> Kerns.
• Court: Pennsylvania Supreme Court

52 Pa. 214

O'Reilly versus Kerns.

Supreme Court of Pennsylvania.

April 26, 1866.

ERROR to the Court of Common Pleas of Berks county.

COPYRIGHT MATERIAL OMITTED

J. Hagenman, J. S. Richards and John A. Banks, for plaintiff in error.—The contract designed that all the work done, whether specifically mentioned in the contract or not, should be settled for according to the determination of the engineer. His decision was therefore final if there were no fraud.

The work then being done under the contract, there was no evidence of a parol agreement to vary the written instrument and enable the plaintiff to sue in assumpsit. The parties cannot seek redress from any other tribunal than that provided for in the

contract, viz., the engineer: Monongahela Bridge Co. v. Fenton, 4 W. & S. 205; Lauman v. Young, 7 Casey 306-309; Fox v. Hempfield Railroad, 14 Leg. Int. 148; Faunce v. Burke, 4 Harris 469-480; Snodgrass v. Gavitt, 4 Casey 221-224; Lubrick v. Lyter, 3 W. & S. 365; McGheehen v. Duffield, 5 Barr 597; N. Lebanon Railroad Co. v. McGrann, 7 Casey 530; McCahan v. Reamey, 9 Id. 535; Irwin v. Shultz, 10 Wright 74; Hardie v. Belger, 11 Id. 60; Memphis Railroad Co. v. Wilcox, 12 Wright 161; Mason v. Bridge, 2 Shepley 468; Dubois v. The Delaware and Hudson Canal Co., 4 Wend. 285; s. c. 12 Wend. 384; 15 Wend. 87.

Where the special parol contract is not alleged in the declaration, the plaintiff cannot recover on it: Irwin v. Shultz, supra.

A. G. Green and J. Hoffman, for defendant in error.—The loss of plaintiff resulted from a breach of the contract by the company. If redress must be sought on the covenant, the company may break the contract as they please, and have the liability fixed by their own agent: Lauman v. Young, 7 Casey 306; Lehigh Coal and Navigation Co. v. Harlan, 3 Id. 420; Dubois v. Delaware and Hudson Canal Co., 5 Id. 82.

The "extra work" was done after the road had been accepted by the company, and clearly did not come within the contract.

The opinion of the court was delivered, April 26th 1866, by THOMPSON, J.

It is not necessary to cite authorities for what is so well settled, as that where a railroad or canal company and its contractors, or in a contract between original and sub-contractors, it is agreed that to prevent disputes the engineer of the work shall in all cases determine the amount or quality of the several kinds of work which are to be paid for under the contract, and decide every question which can or may arise relative to the execution of the contract on the part of the contractor, that his...