FEDERAL Rl!lPORTER.
danger, at least, of injustice,-by requiring individuals to pay, from their own ·means, moneys which should have been paid from the legacies and distributive shares passing through their hands, and would have been 80 paid if the proper officers of the government had discharged their duties. Executors and administrators have been allowed to make distribution under decrees of the state courts, (which were supposed to be a protection,) in ignorance of the claims now Set up. The case of U. S. v. Allen, 9 Ben. 154, did not involve this question, nor was it considered by either counselor court. The incidentalallusion to it iOn the opinion is wholly unimportant. In addition to what ha.s been said, it may be worth while to remark that the subsequent statute of 1866 does provide a remedy against the executor or administrator for willful neglect or refusal to pay. But no such neglect or refusal has been found in this case. UNITED STATES KELLY, Adm'x.
1'.
(DiBtrict Court, E.
n.
May 4, 1886.)
BUTJ,ER, J. For the reasons given in the opinion this day tiled in U. 8. v. Adm'r, ante, 541, judgment must be entered for the defendant on the verdict. While this case arIses under the subsequent statute of 1866, the facts found do not bring the defendant within the provision creating personal liability.
Low v· .l!'ISHER. (Cz'rcuit Court,
n. New Jersey.
MaY' 17,1886.)
In Covenant. Demurrer. Kays, Huston &; Kays, for demurrer· .Francis J. Swayze, contra. If
.
provisions in a contract fot arbitration, and compliance therewith being a condition precedent to a recovery thereon, see Crossley v. Connecticnt Fire Ins. Co., 27 Fed. Rep. 30, and note, 32,
1 Respecting
.,....
"
'
, LOW". FISHER.
543
NIXON, 1. This suit was' originally brought in the circuit court of the county of Sussex. A general demurrer was put in to the declaration, and, pending the proceedings there for a hearing, the case was removed into this court. The action is in covenant. The declaration contains two counts, assigning two breaches of the contract. The counsel for the plaintiff, on the argument, admitted that the first count was insufficient; but he insisted that the breach in the second count was sufficiently assigned and set forth to sustain the suit. Two questions have been presented and argued: (1) Whether an action in covenant is maintainable upon a sealed instrument, when the terms of the contract have been subsequently and materially modified by parol. (2) Whether certain sections of the agreement, which provided that questions of compensation for work not contemplated by the agreement should be settled by a common arbiter, were conditions precedent that barred recovery unless the declaration contained allegations that they had been performed, or averred sufficient excuse for non-performance. 1. It seems to 'be now understood that verbal alterations of a contract under seal which materially change its character, make the whole agreement parol, and that assumpsit, and not covenant, is the proper form of the remedy for its breach. But the principle is not applicable when provision is incorporated in the contract itself for a variation of its terms, and for ascertaining the new rate of compensation to be allowed for such changes. In the prescnt'case the con. tract was for grading and for the masonry on certain specified sections of the New Jersey Midland Extension Railroad, for definite prices, the work to be executed under the direction of the chief engineer of the Scranton Construction Company, and whose determination of all questions arising between the parties should be final and binding upon them. Provisions were made in the contract for varying the work to be performed, in the discretion of the engineer, and for determining the rate of payment to be allowed for the changes. In the recent case of Hamilton v. Hart, 1 Atl. Rep. 254, the supreme court of Pennsylvania carefully considered this question, and, following Carrier v. Dilworth, 59 Pa. St. 406, held that covenant, and not assU1npsit, was the correct form of the action in cases where a 'contract under seal had been varied by parol agreements, unless the changes in the contract were so radical as to make substantially a the presnew contract. I do not find any such radical changes ent case, and must hold that the action is properly brought. 2. The second count of the declaration is founded upon the eleventh section of the contract, which provides "that changes in the alignment, gradients, and forms of structures may be made at the direction of the chief engineer; but no claims for damages shall be made or allo\Ved therefor, nor for any prospective profits or work, whick may,byrea\3on .of. such changes, be abandoned; but ally work <ion,e upon the line .before it is changed, and whic.Qrilayl;>,e, ;abandop.ed_
in
