p. 192the second part, which it is hereby agreed' the party of the second part may do, for other causes than heretofore provided in this contract, then in that case all further operations under this contract shall be suspended within three days after receiving written notice from the party of the second part requiring the. further progress of the work to be suspended, and the party of the first part shall have their, choice either to consider such suspension temporary and resume work on the same within ten days after receiving notice to resume work, or may consider the same at an end, and shall receive full pay for all work by them performed under this contract,' and at the prices herein stipulated, upon the estimate of the engineer, which shall be final and conclusive between the parties to this contract ; which estimates shall not include any anticipated profits that might have accrued from the completion of the said work, it being understood that no claim for damages shall be made by the party of the first part on account of any profits that might accrue from the completion of the same.”
Mr. Normcm WilUamis and Mr. Charles 8. Holt for plaintiff in error.
The final estimate of the chief engineer, if properly made, is the measure of the plaintiff’s rights, and is conclusive. Herrick v. Belknap, 27 Vermont, 673; Martinsburg & Potomac Railroad v. March, 114 U. S. 549 ; Snell v. Brown, 71 Illinois, 133; Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205 ; Sweet v. Morrison, 116 N. Y. 19 .The court having refused to consider the final estimate, not because it was incorrect, but on the ground that the company had no right to make any final estimate at all, the judgment should be reversed.Mr. P. S. Grosscvp for defendants in error.
after stating the case, delivered the opinion of the court.
The written contract between the parties in this case does not materially differ from the one before this court in Martinsburg & Potomac Railroad Co. v. March, 114 U. S. 549 , 553.
p. 193In that case the contractor did not allege in his declaration that the engineer ever certified in writing the complete performance of the contract, together with an estimate of the work done and the amount of compensation due him according to the prices established by the parties; which certificate and estimate was made by the agreement a condition of the liability of the company to pay the contractor the balance, if any, due him. Nor did the declaration allege any facts which, in the absence of such a certificate by the engineer whose determination was made final and conclusive,- entitled the contractor to sue the company on the contract. It was held, in accordance with the principles announced in
Kihlberg v. United States, 97 U. S. 398 , and
Sweeney v. United States, 109 U. S. 618 , that the declaration was fatally defective in that it contained “ no averment that the engineer had been guilty of fraud, or had made such gross mistake in his estimates as necessarily implied bad faith, or had failed to exercise an honest judgment in discharging the duty imposed upon him.” Some observations in that case are pertinent in the present one. It was said-: “We are to presume from the terms of the contract that both parties considered the possibility of disputes arising between them in reference to the execution of the contract. And it is to be -presumed that in their minds was the possibility that the engineer might err in his determination of such matters. Consequently, to the end that the interests of neither party should be put in peril by disputes as to any of the matters covered by their agreement, or in reference to the quantity of the work to be done under it, 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 that determination for mere errors or mistakes upon his part. They chose to risk his estimates, and to rely upon their, right, Tthich the law presumes they did not intend to waive, to demand that the engineer should, at all times, and in respect to every matter submitted to his determination, exercise an honest judgment, and commit no such mistakes as, under all the circumstances, would imply bad faith.”
p. 194The only difference between that case and the present one is that the alleged mistakes of the engineer in the former were favorable to the railroad company, while in this case they are favorable to the contractors. But that difference cannot affect the interpretation of the contract. In the present case the agreement was that the work should be executed under the direction and supervision of the chipf engineer of the railroad company and his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work should be determined, and “ whose determination shall be conclusive upon the- parties.” Any decision of the chief engineer relating to the execution of the contract was to be “binding and final upo'n both parties.” His measurements and calculations as to excavations were made “ final and conclusive.”
• What are the substantial.facts found by the,'court below? The work was in four divisions, each division being in charge of an assistant or division .engineer, who acted under the general direction of the chief engineer. The agreement provided for monthly payments to the contractor, On the certificate of the engineer, “ for work done; ” ten per cent from the value thereof to be retained by the company until the whole work was completed in accordance with the contract. • The work was under the immediate supervision of the division engineer. On the first day of each month he made up and forwarded to the assistant chief .engineer an estimate of work done on each section of his division, according to quantities and classifications. Upon such estimates the assistant chief engineer ascertained the amount due the contractor to the beginning of the month. These monthly estimates were approved by both the assistant chief engineer and chief engineer. This course was ■pursued until the work was substantially completed, and was accepted and taken possession of by the company. Subsequently, without the knowledge or cooperation of the contractors, Baker, a-subordinate engineer of the railroad company, who had not supervised the work of the plaintiffs, reestimated and reclassified it, and upon such reestimate and reclassification, which were approved by the chief engineer,
p. 195the company claimed that the monthly estimates upon which the plaintiffs had been paid from time to time were much too large.
We are of opinion that the ultimate facts, as' found by the court, do not authorize the railroad company to go behind the estimates from time to time by its division engineer, which were approved and certified by the assistant chief engineer and chief engineer. Within a reasonable interpretation of the contract, the last monthly estimate of work done on division nine, (that being the only division here :in dispute,) followed by the acceptance by the company of the whole work, was a certificate of complete performance entitling the plaintiff to be paid in full according to the terms of the contract. While there was evidence tending to show that the estimates by the division engineer, upon which the last monthly certificate was based, were not made up from actual measurements on the ground, but from reports by subcontractors, there was, also, evidence tending to show that the remeasurements and reclassifications which the company caused to be made after the completion and acceptance of the work, and which it calls the “ final estimate,” were inaccurate. But there is no fact distinctly found indicating fraud upon the part of the company’s engineers, or such gross mistakes by them as imply bad faith. It is found only that the monthly estimates might, with reasonable care, have been made nearly accurate, and that, if the ^measurements and reclassifications were correct, the discrepancy between them and the monthly estimates, upon which the plaintiffs were paid from time to time, could be explained only upon the ground of negligence, ’incompetency or dishonesty' upon the part of the division engineer. But the court did not find that the monthly estimates were inaccurate, or that the chief or division engineer was dishonest, or that the subsequent remeasurement and reclassification were •correct. The mere incompetency or mere negligence of the division or chief engineer does not meet the requirements of the case, unless their mistakes were so gross as to imply bad faith.
We are of opinion that the judgment is supported by the finding of facts, and' it is Affirmed.