Ross v. McArthur

• Decision Date: 17 May 1892
• Citation: 85 Iowa 203,52 N.W. 125
• Parties: ROSS v. MCARTHUR ET AL.
• Court: Iowa Supreme Court

85 Iowa 203

52 N.W. 125

ROSS

v.MCARTHUR ET AL.

Supreme Court of Iowa.

May 17, 1892.

Appeal from district court, Lee county; C. H. PHELPS, Judge.

The pleadings are quite lengthy, but the following is a sufficient statement thereof to an understanding of the questions discussed. Plaintiff's petition shows that the defendants McArthur Bros. contracted in writing with the defendant company to grub and grade certain parts of its line of road, and that they sublet the grubbing and grading of certain sections thereof to plaintiff by the contract in writing set out; that by said contract plaintiff was to execute his part of the work under the direction and supervision of the chief engineer of the railway company and his assistants, “by whose measurements and calculations of quantities and amounts of the several kinds of work performed under the contract shall be determined, and whose determination shall be conclusive upon the parties;” that the estimates made by the engineer were wrongfully, falsely, and fraudulently made, and not as required by the contract in certain particulars stated; and that the contract between the defendants was the same as that with plaintiff as to classification and estimates of the work and decisions of the engineer. Plaintiff asks judgment and decree correcting the estimates of the work done by him, and payment therefor in the sum of $10,000 with interest. The defendant railway company denies any liability under the contract with plaintiff; denies that the estimates were wrongfully, falsely, or fraudulently made; and alleges that plaintiff's claim for the work was fully settled and paid for. Defendants McArthur Bros. answered, alleging a full and complete settlement of plaintiff's claim according to the award of the engineer; that plaintiff's claim, if he has any, is by reason of the wrongful acts of the chief engineer; that they had no control over his acts; have received no benefit by reason of his wrongful acts, if there be any; and that plaintiff's cause of action, if he has any, is against the defendant railway company. By way of cross petition against the railway company they ask that, if the estimates made are wrongful, they recover against the railway company according to the correct estimates. The railway company answered the cross petition, denying that it was a party to the contract with plaintiff, and alleging full settlement with and payment to McArthur Bros., according to their contract and estimates of the engineer. The case was submitted to the court, and decree entered dismissing plaintiff's petition, from which he appeals.James H. Anderson, for appellant.

James C. Davis, for McArthur Bros.

Gardiner Lathrop, J. D. M. Hamilton, and Ben Eli Guthrie, for Railway Company.

GIVEN, J.

1. The contract between appellant and McArthur Bros. contains this clause: “(2) 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 thereto. * * * Said 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 specification 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 said engineer of the respective quantities of such excavations shall be final and conclusive.” The relief asked is a correction of the estimates made by the engineer, and recovery of the balance due. The ground alleged for such relief is that the estimates were wrongfully, falsely, and fraudulently made. Appellant contends in argument that the agreement to submit to the decisions of the engineer is not valid, or a bar to his right to sue for the work done, for the reason that such an agreement ousts the court of jurisdiction. It would be a sufficient answer that appellant has not pleaded this as a ground for relief, but we add that the authorities are quite uniform in recognizing such contracts as valid and binding. See Railway Co. v. March, 114 U. S. 549, 5 Sup. Ct. Rep. 1035; 1 Redf. R. R. 435; 1 Ror. R. R. 462; Herrick v. Belknap, 27 Vt. 673; Crumlish v. Railway Co., 5 Del. Ch. 270; Snell v. Brown, 71 Ill. 133; Grant v. Railway Co., 51 Ga. 348; Faunce v. Burke, 16 Pa. St. 469; Wood v. Railway Co., 39 Fed. Rep. 52; Flynn v. Railway Co., 63 Iowa, 491, 19 N. W. Rep. 312;Meyers v. Construction Co., (Or.) 27 Pac. Rep. 584.Appellant cites Reed v. Insurance Co., 138 Mass. 575, and Gere v. Insurance Co., 67 Iowa, 273, 23 N. W. Rep. 137, and 25 N. W. Rep. 159, wherein it is held that, under an agreement to submit to arbitration, a submission is not a condition precedent to the maintenance of an action, for the reason, among others, that the agreement to arbitrate is revocable at any time before executed, and the bringing of an action amounts to a revocation. The former case expressly recognizes such an agreement as valid and binding when an appraisal or award has been made under it. Under the rule recognized in the authorities cited, and others that might be added, these parties are concluded by the estimates of the engineer, unless they are shown to have been made as alleged, namely, wrongfully, falsely, or fraudulently.

2. Wenext inquire whether the estimates were wrongfully, falsely,...