necessary to definitely dispose ofthat question in regard to the measure of damages at this time. It is enough, therefore, to say that I consider the petition suffioient to entitle the petitioner to some compensation out . of the fund in court, and shall therefore overrule the objections made to it in behalf of Mr. Bond, and leave all further questions until the hearing.
et al. "'.
S. F. &
(Oircuit Oourt, N. D.lllinoiR. March 20, 1889.)
Plaintiffs contracted to do certain construction work for defendant, "under the direction and supervision of the chief engineer . * * * and his assistants, by whose measurements and calculations the. quantities and amounts of the several kinds of work * * * shall be determined, and whose determination shall'be conclusive upon the parties. * * * The 'said chief engineer 8ha1l decide every question * * * relative to the execution thereof. and his decision shall be binding. and final." The work was done under the.supervision of an assistllnt engineer. who each month forwarded his estimates to the chief engineer, who paid plaintiffs monthly on the basis of such estimates, 'and they paid their subcontractors monthly on the same basis. After the completion of the work the chief. engineer made a remeasurement thereof, when it was discovered that the assistant engineer'li estimates, without the fault of plaintiffs or their SUbcontractors, were largely in excess as to quanti· ties, the result being that the subcontractors had been greatly overpaid.. Held, that defendant, and not plaintiffs, must bear the loss; that, notwithstanding the terms of the contract, defendant was estopped to deny the correctness of the estimates of the assistant engineer whom It had placed in charge of the ··work. The clause of the' contract making the chief engineer the final umpire in all differences between the parties under the contract relates only to the execution of the work, and. has no llpplication to such a question as this.
SA¥E-DECISIOl'l OF ENGINEER.
Aotion on contract.
Swett & Gr088CUp, for plaintiffs. Williams & Thompson, for defendant.
BLODGETT, J. This suit is brought to recover a balance claimed to .be due plaintiffs,on a contract in writing made on the 21st day of March. 1887 I between plaintiffs, constituting the firm of Price, McGavock & Co., party of the first part, and the Chicago, Santa Fe & California RailwayCompanYi Of the second part, by which plaintiffs agreed to do all the grading, clearing, guubbing, and masonry necessary to complete the roadbad of thel'ailroad of the party of the second partfrorn the east bank of ,fhe Mississippi river eastward for a distance of 50 miles, which, in fact · . 'included that portion of defendant's line of railway between the sippi river and Galesburg in the state of Illinois. It is admitwd that the plaintiff soon after .the making of this contract sublet the same to the firm of'Jones, Forrest & Bodkin, who did the work called for by the contract, and this suit is prosecuted in the name of the plaintiffs for the use of
PRICE V; CH.ICAGO, S. F. & C. RY. CO.
Jones, Forrest & Bodkin; and although the contract provides in terms that the work shall not be sublet, or the contract assigned, the parties have stipulated in writing that the defendant will claim no advantage or defense by reason of the plaintiffs having sublet the work. The chief controversy in the case relates to the work done on division No.9, which was about 12 miles in length, the 50 miles covered by the contract having for purposes of construction been divided by defendant into di· visions,and the work on each division having been in charge of an assistant engineer, or division engineer, who was employed by the defendant, and acted under the general direction of the chief engineer of defendant. The coutract contained the following provisions, which bear upon the questions raised in this case: "The work shall be executed under the direction and supervision of the chief engineer of said railway company ami his assistants, by whose measurements and calCUlations the quantities and amounts of the several kinds of work performl'd under this contract shall be determinl'd. and whose determi. nation shall be conclusive upon the parties. * * * The said chief engineer shall drcideeveryquestion which can or may arise between the parties relative to the execution thereof, and his decision shall be binding and final upon both parties. * * * It is further agreed between the parties that monthly payments shall be made by the party of· the second part on the certificate ot the engineer for work done, deducting 10 per cent. from the value of work done as agreed compensation for damages to be forever retained by the party of the second part, in ease the whole amount of work herein named shall not be done in accordance with this agreement. ... ... ... The aforesaid party of the second part hereby agrees that whenever this contract shall be completely performed on the part of the party of the first part, and the engineer has certitled the same in writing, the said party of the second part shall within ten days t4el'eafter pay tll said party of the first part any remaining SUillS due for said work according to this contract." It is claimed on the part of plaintiffs that the work on this divillion 9 was sublet bythesubcontractorsJones, Forrest & Bodkin todiversothersubcontractol"fl under them, to be paid for at certain rates, according to the quantities and classifications made by the engineerin charge; that estimates or certificates were made by such engineer from month to month ofthe amount and class of work done on said division, and Jones, Forrest & Bodkin paid their subcontractors for the work done by them each month on the basis of these monthly estimates; that, after the work on this division was completed, the chief ellgineer of the road caused a remeasurement and reclassification of the work on this division to be made, from which it appeared that the monthly estimates made by the assistant or division engineer had been largely in excess as to quantities. and classified so as to make it m.uch more costly to the defendant; and by this final estimate, made by the chief engineer after the completion of the work on the elltire 50 miles, the excess paid by reason of these overestimates on division 9 was recouped out of the general balance due the contractors for the whole work. The contention on the part of the plaintiffs is that, as they settled with and paid their subcontractors on the basis of quantities and classifications of ,the work shown in the monthly estimates of the defendant's assistant engineer in charge of this division, and on the v.38F.no.4-20
assumption that said quantitieS and classifications were' correctlyrendered, after such ,payments defendant Was estopped, as,against the plaintiffs,from remeasuring or reclassifying such work, even if the estimates of the engineer in charge were incorrect, and deducting the said overpayments, from the balance due:on the whole contractj that if any one has to suffer loss by reason of the incom petency of the defendant's, engineer it should be the defendant, rather than the contractors, who acted in good faith, and made payments to the subcontractors who had done the work on the basis of the correctness of these monthly estimates. It is contended on the part of the defendant that the is an en,tirety for the whole work, and that, if the plaintiffs have been overpaid for any part of it, the defendant has the right to deduct :such overpayment from any balance remahling due the plaintiffs (urider the contract; that the monthly estimates Were 'only subject to correction in theflnal estimilte and calculations tooernade after the completion work; apd that by the terms ()fAbe contract the classificationi' of the work !pade bytbe,chief engineer ;and his aesif:;tants in the· final, estimate are binding and, concIusive upon ·the plaintiffs. . Thereia really no substantial dispute 'upon the material facts intlie 'C,fise.'It. is, conceded that JOI),es, F.orrest & Bodkin,tinder their Bub'bontract with plaintiffs,;perf6rih.ed,tll,ework called '. for, by the contract the and the.det'endant. .The, pr()of shows that the work on this division .No. 9 was substantially all performed by persons who had subcontracts under ;Jones, Forrest &. Bodkinl ·and saidsubco& 'tractol'swere'paid, so far as quantities and classificatlljrls '6fthe ",orkwere ''Concerned, frotIl monthiomonih,oh thebl1;sisof the 'monthly made by the defendant's assistant engineer olthat division; ibernocle .'Of:doing business inregal'd fu these monthly estimates being for each ·division engineer to make up his estimate at thebeginhing of each month done the previousIDorith, and forward it to the chief en··forthe 'gineer. monthly estimates ()f thedivision engineers were forwarded to the plaintiffs with a check in payment, according to thEfteflllS of the icontract, who furnished a copy of said estimates to Jones, Forrest & Bod·kin, with a check for the amount due them undertheirsubcoiJ.tractwith plaintiffs, and they (Jones,Forrest & Bodkin)in tutn settled with their 'subcontractors on the basis'of these estimates as to quantities and dassi.. :fications. The testimony also shows that these monthly estimates on di'v:isiori9 were largely in excess of the work actually done, lind the necesIsaryresultof this method of estimating and paying for theW0Ikdolle ·ftoIll month to month was that the subcontractors under :&Bodkin' were largely overpaid,and· the 108s by' reason of the ment must·:fallon plaintiffs, and on the subcontl'aetorsdirectly under ,them, if the chief engineer can now revise and correct his assistant's :montblyestiinates, and deduct the overpayments made f'Or thisW'ork ·from the :balance: Uue on the contract. It must' be admitted that, if any ;recovery is had in this case in favor of the plaintitfs, it can only be upon .the righ tsof,Pxice, McGavock & Co. ttnder,their contract with the defend-
ant, and the proof shows that the result of these erroneous estimates as toquantitiel'!'a,nd, classifications, of the work \} was to cause Price, McGavock & Co. to payJones, more on account of ea\lh monthly estimate for this division than they would if the estimates had been correct, and Jones, Forrest & Bodkin, in turn paid more to their subcontractors than they would have been entitled to re-ceive if correct monthly estimates had been made; so that the effect of this revision of the estimates on division 9 is to. make Price, McGavock & Co. the losers to the extent of the errors corrected, and Jones, Forrest & Bodkin, .being also the losers, can properly ptosecute.t4is suit in the name of the principal contractors, and for their own use. My own conclusion is that, as both Price, McGavock & Co. and Jones, Forrest & Bodkin acted upon the basis of these monthly statements as to quantities and classes of work shown in those estimates, the defendant is estopped from correcting those estimates to the, damage of the plaintiffs, or those who claim under them. Ida noHhink that the clause of the contract which makes the chief engineer the final umpire in all differences betweerithe parties arising under this contract furnishes any defense. The language of the clause is that the chief engineer shall decide question whiSh can or may arise between the pa,rties relative to the execution of the work, and his decision shall. be final. The question which has arisen here is not as to the execution, "ut as to whetherunder the facts. the· .defendant is bound by the' meaSurements and calculations of quantities of the work returned .by the d'efendant's assistant engineer, under whose immediate charge andsupervisi0ll the :work was done. It is nota question as to the execution of the coi1tfact, but a question as to the right to change the estimates under the circumstances, and, in eftect,these overpayments from the plaintiffs which have hee*made to the subcontractors under Jones, Forrest & Bodkin. Nor do Tdeem it necessary for the purposes of this case to decide what are the powers of the chief engineer in making what he term.s ·. . Probably if the contractors. had .. not acted on these monthl1 or running 'estimates as the work paid the men who.actually did the work on the furnished by those estimates, the right wcorrect errors'rriighthave'existed.'; 'but here were classifications returned by the man whom the defendant had clothed with authority and power to calculate these quantities and makecll1iSsifications of the work, and return them for the purpose of making monthly payments. And, while itmay be granted that either the plaintit.fs or de-fendant must suffer for the errors made by this man, I think the facts make a (;lase. for the application of the familiar rule that where two .InBufter foHheacts 10ssshallliilI upon nocent the' one who placed it 'inthe power of the third to make the The pro,vision ofthe contract aato the duties of the chief in relatio.n 1:0: this work creates at least ail implied obligation oil.the 'J2art 'oUhe .and erigineers/ lind ifany one 'ability .or· should be the defenaant who employed him. I ma)' add thaUdo no1
, FEDERAL REPORTER,
deem it necessary to decide whether the errors in question arise from this engineer's illcompetency or dishonesty, although it is fit that I should say that there is no proof whatever that these false eijtimates were made at the instance or with the knowledge of the· plaintiffs, or of Jones, Forrest & Bodkin. There will therefore be a finding in favor of the plaintiffs for the amount shown by the estimates to be due them on the basis of the correctness of the monthly estimates on division 9, and for the extra work,-such as the extension of embankments at the ends of the bridges, side-track work, etc;,-of which there is no dispute.
«(Jircuit Court. 8. D. (JaU,j'ornia.
March 26, 1889)
ranty sU,ed on. which was that the horse was a reasonably sure foal getter, should lje·given. and at the close of them. plaintiff executed deeds for the land which was exchanged for the horse, and that defendant at the'same time executed the bill of sale of the same date containing the warranty. Defendant testified t,hat he never agreed to give the warranty, and did not give the bill of sale and warranty at the time of the completion of the sale. but that several days after. plaintiff asked for a bill of sale as a favor. and to accommodate him defendant made the' bill of sale. using a blank therefor,. audnot noticing that it contained the warranty; that he had two forms of bills of sale. one of which contained a warranty and the other did not, and that he inadvertently used the former. Defendant was in the habit of giving a bill of sale and warranty for horses sold. Held. that the evidence showed the ex· ecution of the bill of sale and warranty at the time of the sale.
$2.000. which he desired for breeding purposes, it was agreed that the war·
Plaintiff testified that in the nell.'otiations for tlle sale of a horse worth
Defendant having agreed to replace the horse dn delivery of it to him in CRse it should prove barren, and ample evidence of its unfitness for·breeding purposes having been given in the three months following the purchase, plaint'iff should have then retu.rned it. and cannot recover expenses incurred upon it after that time. .
At Law. Curtis & Otis, for plaintiff. Lucien and W. T. Williams, for defendants.
Ross, J. , This action is founded upon a guaranty contained in a bill of sale executed by defendants to the plaintiff for a Clydesdale stallion called "Scotland's King," which reads as follows: . "We hereby guaranty the above-named horse to be a reasonably
getter. with propel' care and handling. In he should prove barren we and p'rice. upon delivagree to replace him with another horse of same eryto us of above-named horse. if as sound and in as good condition as when ' .. ; .' . ' ., . '. '. purchased of us. " ,