¶1By the terms of the contract between the parties, David L. Hodges was appointed to measure the number of cubic yards of excavation in the ditch. He was, by mutual consent, appointed to perform that service, and the court cannot make for the parties a contract different from that which they have made for themselves. In the absence of fraud, his measurement of the quantity of work done under the contract is conclusive upon the parties, and neither is permitted to show it to be erroneous. Canal Trustees v. Lynch, 5 Gilm. 526.
¶2The Circuit Court therefore decided correctly in rejecting the evidence of the engineer Koscialowskie, of the quantity of work done according to his measurement of the same.
¶3The evidence offered to show what the proper construction of the contract was, was also properly rejected. It was for the court and not for engineers to construe the contract.
¶4Had the contract contained technical terms, known and understood only by scientific engineers, it might have been proper to have received the evidence of those skilled in the science of engineering, to enable the court to determine its meaning. There are, however, no such terms in this contract. McAvoy was to be paid twelve and one half cents per cubic yard of excavation; and the contract then specifies the manner of measuring the work, which, however, is not different from what it would have been, had the contract been silent upon that subject.
¶5The character contained in the contract has no meaning, technical or otherwise ; and the mode provided for ascertaining the number of cubic yards of excavation in the ditch, does not differ from that which any competent engineer would have adopted, if left to measure the work in his own way.
¶6It is clear that Hodges measured the work correctly, and according to his measurement, ‘McAvoy gets pay for every yard of earth actually excavated, while, if Koseialowskie’s mode of measuring, and his construction of the contract had been adopted, McAvoy would have been entitled to claim for more than double the amount of work actually done.
¶7The injustice of such a construction is so manifest, that no court, except such was clearly the contract of the parties, would ever adopt it.
¶8That part of the opinion of the circuit judge, which held that the parties, by their contract, had referred to Hodges the construction of the contract touching the mode of measurement, was, we think, erroneous ; but, as the agreed case gives the dimensions of the ditch, and it appears, by computation, that he adopted the proper mode of measurement, we see no reason for disturbing the judgment of the court.
¶9Hodges, in determining the amount of work done, necessarily had to refer to the contract to see how he was to make the measurement; but his construction of the manner of measuring the work would not be conclusive upon the parties, though his estimate of the quantity of work done, when fairly made in accordance with the manner pointed out in the contract, would conclude them. Judgment affirmed.