T. Foster Callahan, Inc. v. Commissioners of Sewerage Dist. No. 1 of Union Tp. in Union County

• Decision Date: 17 May 1926
• Docket Number: No. 56.,56.
• Parties: T. FOSTER CALLAHAN, Inc., v. COMMISSIONERS OF SEWERAGE DIST. NO. 1 OF UNION TP. IN UNION COUNTY.
• Court: New Jersey Supreme Court

133 A. 408

T. FOSTER CALLAHAN, Inc.,

v. COMMISSIONERS OF SEWERAGE DIST. NO. 1 OF UNION TP. IN UNION COUNTY.

No. 56.

Court of Errors and Appeals of New Jersey.

May 17, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by T. Foster Callahan, Inc., against the Commissioners of Sewerage District No. 1 of Union Township in Union County. From the judgment of nonsuit, plaintiff appeals. Affirmed.

John F. Ryan, of Elizabeth, for appellant.

John K. English, of Elizabeth, for respondent.

HETFIELD, J. This was a suit in the Supreme Court, tried in the Union circuit; the trial judge nonsuited the plaintiff, who has appealed here from the judgment thereon.

Plaintiff contracted with the defendant to construct certain sewers in the township of Union, and, among other things, the contract provided that, in addition to the contract price, the plaintiff was to be paid $4 for each cubic yard of rock and $5 for each cubic yard of quicksand encountered and excavated by plaintiff in the performance of the said contract.

The plaintiff contends that there were 2,530.7 more cubic yards of rock excavated and 155.3 more cubic yards of quicksand than allowed or certified to by the engineer, or paid for by the defendant, and charged the engineer with willfully, fraudulently, deliberately, arbitrarily, and in bad faith refusing to certify and make proper allowances for the quantity of material actually encountered and excavated by the plaintiff.

It is apparent from the terms of the contract that both parties considered the possibilities of disputes arising between them in reference to the execution thereof, and so that the interests of neither party should be put in peril in the event of a dispute as to the quality and quantity of the materials furnished or work done, or the compensation which the plaintiff might be entitled to demand, it was expressly stipulated that the engineer's determination should be final and conclusive. Neither party reserved the right to revise the engineer's determination for any errors or mistakes upon his part, excepting in case that the engineer and the contractor could not agree on any major matter in connection with the interpretation of the contract, in which event the contractor had a right to appeal to the consulting engineer, whose decision should be final and conclusive.

It appears that during the course of the work Mr. Potter, the consulting engineer, was called upon by the contractor and engineer to determine whether certain material encountered in excavating constituted what is known as hardpnn and if under the terms of the contract it should be classified as rock. Mr. Potter ruled that it was hardpan and should be paid for on that basis. There is no evidence that the engineer took exception to Mr. Potter's judgment or refused to follow it. On many occasions the engineer disagreed with the contractor, find a few times with the township inspector, as to the quantity of hardpan excavated, and the plaintiff contends, by reason thereof and the mere fact that the engineer refused to allow the quantity claimed by the contractor, the jury would have been justified in finding that the engineer was guilty of fraud. We do not think so.

In Obism v. Schipper, 51 N. J. Law, 1, 16 A. 316, 2 L. R. A. 544, 14 Am. St. Rep. 668, the learned Chief Justice declared that the conduct of the arbiter could not be impeached for want of skill or knowledge or because his judgments do not...