Wood v. Chicago, S.F. & C.R. Co.

• Decision Date: 04 June 1889
• Citation: 39 F. 52
• Parties: WOOD et al. v. CHICAGO, S.F. & C.R. CO. SUMMERS v. SAME.
• Court: U.S. District Court — Eastern District of Missouri

39 F. 52

WOOD et al. v. CHICAGO, S.F. & C.R. CO.

SUMMERS v. SAME.

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

June 4, 1889

Craig McCrairy & Craig and Mattock & Hiller, for Wood and others.

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

A. J Baker, Mattock, Hiller & Howard, and T. L. Montgomery, for Summers.

THAYER J.

The questions argued by counsel on the submission of the motions to strike out parts of the petitions do not properly arise because the clause of the contracts making the engineer's decision final and conclusive as to the amount and classification of work done is not pleaded in the petitions and the contracts themselves, which are attached as exhibits, form no part of the record, according to the view that is taken in this state. As these petitions are framed, the allegation that the engineer's estimates were fraudulent, collusive or erroneous is redundant matter, and might be properly stricken out for that reason, under the Missouri Code, treating the suits as actions at law. Inasmuch, however, as the questions discussed by counsel must arise on the trial, I consider it proper to determine them now, although they do not arise on the record.

With respect to the question whether a clause in a railroad construction contract is valid that makes the engineer's estimate and classification of work final and conclusive, it will suffice to say that the weight of American and English authority is decidedly in favor of the view that such provisions are binding upon the contracting parties. Herrick v. Railroad Co., 27 Vt. 673; Kidwell v. Railroad Co., 11 Grat. 676-691; Grant v. Railroad Co., 51 Ga. 352, 353; Railroad Co. v. Veeder, 17 Ohio, 396; Railroad Co. v. Northcott, 15 Ill. 49; 2 Wood, Ry.Law, 995, 996; 1 Redf.R.R. 435; Ranger v. Railway Co., 1 Eng.Ry.Cas. 1; Knoche v. Railway Co., 34 F. 471. The law seems to be quite well settled that estimates made by an engineer in compliance with contracts making him the arbiter as to measurements, amount, and classification of work, are conclusive, and can only be avoided by proof of mistake, or fraud, or of gross negligence on the part of the engineer amounting to fraud. It seems to be a mooted question whether an estimate can be avoided for any other mistakes of the engineer than those of fact, as distinguished from mistakes of judgment; the better opinion being no doubt that there is no remedy for mistakes of judgment as to the quality of work done when the engineer or arbiter has acted in good faith in the exercise of his judgment. Ranger v. Railway Co., 1 Eng.Ry.Cas. 1, 13 Sim. 368.

Such provisions in contracts being binding the next question is whether an estimate made by an engineer in accordance with such a stipulation can be avoided in a strictly legal proceeding by proof of fraud, gross negligence, or mistake? Of course, if an estimate thus made is regarded in the light of an award made by an arbitrator, the authorities are practically all one way,--that recourse must be had to a bill in equity, and that neither fraud or mistake can be alleged or proven to avoid the estimate, in a suit at law on the contract to recover a balance claimed to be due. The best-considered cases on the subject, so far as my observation extends, treat estimates (especially final estimates) made by an engineer in...