¶1(dissenting). Schmitt, a government contractor upon lighthouse work, let a subcontract to Scheibner, the plaintiff’s assignor. The first clause of the contract provided that Scheibner should “well and sufficiently do and finish, under the direction and to the satisfaction of William Ludlow, or his agent,” the work contracted. The following provision relating to extras was made a part of the contract, viz.:
“The said first party may require alterations in the work shown or described in the said drawings or specifications, which the said second party agrees to do according to the directions which may be given, and in every such case the price hereby agreed to be paid for said work shall be increased or decreased, as the case may require, according to a fair and reasonable valuation of the work added or omitted; the value of such work to be fixed by fair admeasurement and valuation, to be made by the engineer, or by some competent person appointed by him. Such alterations or variations shall in no way render void this contract, and no claims for such alterations or variations, or the increased or decreased price therefor, shall be valid, unless founded upon written agreement.”
¶2Ludlow was the government engineer, and Overton, an appointee (i. e., an agent of Ludlow), had the supervision of the work. Schmitt directed Scheibner to follow Overton’s instructions as to extras, and he did so; and this action is brought to recover upwards of $2-, 500 for such extras. The defendant claims that no such ad-measurement or valuation as is required by the contract has been made. Scheibner testified that at the start he asked Overton to give him a statement of the extra work, but he refused, and told him that he had no power to do it; yet Scheibner says that he went on and did the work as directed. The circuit court held that the inspector, Over-ton, was the authorized agent of Ludlow, the engineer; and as he was the only one representing Ludlow, who was at no time present at the scene of the building, application to Overton was all that was necessary.
¶3*294The contract expressly provides for an inspection by Ludlow, or his agent, but it requires the estimate and valuation to be made “by Ludlow, or some competent person appointed by him.” A reasonable interpretation of this last provision is that, if Ludlow was unable or indisposed to make the estimate, he might appoint some one for the purpose, upon application. If, on application, he had refused to do either, and Schmitt had thereupon refused to adjust the matter, it is probable that the courts would relieve the plaintiff; but, in my opinion, we cannot say that the appointment of Overton as inspector authorized him to make estimates and valuation. Plaintiff shbuld have made an effort to comply with the contract, before bringing an action against the defendant.
¶4I think the judgment should be reversed, and a new trial ordered.