, 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
544
FEDERAL REPORTER.
shall be paid for at the prices fixed in this contract; and when the new alignments, gradients, or forms of structures substituted for those abandoned shall, in the opinion of the chief engineer, materially alter the charaoter of the work, he shall estimate the difference in value thereof, and due allowance shall be made therefor, according to the enhanoed or diminished value of the work." From the terms of the seotion it is manifest that, before a suit can be maintained for a breaoh of the same, two things are necessary: (1) That the chief engineer should be of the opinion that the ohanges made in the alignment, gra,dients, and form of structures have materially altered the oharacter of the work; and (2) that he shall have estimated the differenoe in value. The declaration contains no allegations that the chief engineer had any suoh opinion, or that he has made an estimate of the amount of the enhanced value of the work. On the oontrary, it simply alleges "that he has wholly neglected and refused.so to do." This is hardly sufficient. Non constat that the facts and oiroumstances of the case did not justify his negleot and refusal. As was pertinently observed by ERLE, C. J., in Clark v. Watson, 18 C. B. (N. S.) 278, when oonsidering a demurrer to a declaration in a very analogous case: "This is an attempt on the part of the plaintiff to take from the defendant the protection of his surveyor, [or arbiter,] and to substitute for it the opinion of a jury." It is not neoessary to say whether the count would bave been good if it had alleged that the neglect and refusal of the chief engineer was fraudulent or in bad faith, but the oount, in its present form, cannot be upheld, and the demurrer must be sustained.
GAITHER t1. KANSAS CITY, ETC.,
R. Co.
(Circuit Oou'rt,
w: D. Tennessee.
lIay 22, 1886.)
1.
NEW
The rule that the court will not set aside a verdict because of a difference of opinion as to the amount of damages that should have been allowed, is consistently adhered to, and a new trial may be granted, where the judge is not satisfied that the jury acted with full comprehension of the force of the proof and of the charge of the court upon a matter in dispute.
VERDICT FOR DAMAGES.
2.
SAME-CASE IN JUDGMENT.
Where the jury found a verdict of $250 for personal injury. resulting in the death of a voung colored girl, in a suit by her father for his pecuniary interest in her lrfe, and there was an issue whether the parties were domiciled in Arkansas, where a female becomes of age at 18 years, or in Tennessee, where she is not of age until she becomes 21, and upon this issue the proof was un· satisfactory, and the court was not satisfied that its charge was sufficiently definite on the point, a new trial was granted.
So
NEGLIGENCE-Ac'fION FOR, CAUSING DEATH-MEASURE OF DAMAGES.
Under the Arkansas statute. and those like it, allowing damages for negli, gence resulting in death, only the pecuniary interest of the plaintiff can be recovered; and this may be even less than $250, under some circumstances,
