Lauman v. Young , 31 Pa. 306 ( 1858 )

The opinion of the court was delivered by

Thompson, J.

1. The first assignment of error is not sustained. The sub-letting to Fisher & Taylor of section No. 48, by the plaintiffs, had taken place a month and a half before the contract between the plaintiffs and defendant was executed, doubtless, under some previous arrangement that the plaintiffs were to have the contract for building sections No. 47 and 48. An estimate had been paid on the work done by the sub-contractors, and they were in active operation on the work at the time. They continued on afterwards, without objection by the defendant or the company, and finished the work on the section, were paid for it, and received the retained per cent, from the defendant. No steps were taken to forfeit the contract. Under these circumstances, the court very properly left the question of knowledge, assent, and acquiescence, on part of defendant, to the jury, which they found to exist. It seems to us, there was abundance of evidence to justify the proceeding. Forfeiture is not a favourite of the law. Acquiescence in acts inconsistent with it, will readily dispense with a right to claim it.

2. The second assignment is also groundless. The defendant had bound the plaintiffs to commence work within two weeks, and to finish by the 1st of October 1855, and covenanted to furnish the right of way. The plaintiffs charged that he failed to do this, so far as section 47, and a portion of 48, were concerned. If this were so, the defendant was answerable on his covenant for a failure to furnish it in a reasonable time after request. The plaintiffs could look to no other source for indemnity. This was the instruction of the court, and there was no error in it.

8. The third assignment raises the important question in the case, and is whether the plaintiffs can sustain their action, not having previously obtained the decision of the engineer as stipulated for in the contract ?

It cannot now be doubted, but that if the ground of “ dispute” involved in this suit comes within the prospective submission agreed upon in the contract, by the parties, that it cannot be investigated here. Such provisions for settling controversies which might arise between companies and their contractors, as also between individuals, have been fully sustained by this court: Fenlon v. Monongahela Navigation Co., 4 W. & S. 405; Faunce v. Burke & Garder, 4 Harris 469; and Snodgrass v. Gavit, 4 Casey 224.

Is the matter in controversy in this case embraced by and within the jurisdiction conferred by the agreement on the engineer ? It is as follows : “ To prevent all disputes, it is hereby mutually agreed that the said engineer shall, in all eases, determine the amount and quantity of the several kinds of work which are to be paid for under the contract, and the. amount of compensation, at the rates herein provided for; and also that the said engineer shall in all cases decide every question which can or may arise, relative to the execution of this contract, on the part of said contractors; and his decision shall be final and conclusive, and without appeal.”

The intention of the parties, to 'this prospective submission, is very clearly apparent, and is certainly not to.be enlarged beyond the plain terms used. The engineer was only to determine upon such matters as the parties submitted to his final adjudication, and they stipulate that, “ to prevent all disputes,” he shall determine the amount and quantity of work and the compensation to be paid for it, at the rates provided for. This is the first clause of the submission. The words “ all disputes” are clearly controlled and limited to the distinctly enumerated grounds of anticipated dispute, in the same sentence, which are so defined that these general words have no force or meaning unless they relate to anticipated disputes arising out of the work to be done, and the compensation to be paid. The parties anticipated disputes from no other source, or if they did, they chose to rely for a settlement of them upon the established tribunals of the county. It is a well settled principle, unless there be a manifest intention* to the contrary, that “ general expressions in a contract are controlled by the special provisions therein:” Story on Cont. § 641. “ If there be a recital of a particular claim, followed by general words of release the general words will be qualified and restricted by the particular recital Id. § 643. Platt on Cov. 379. This is common sense, for why particularize, if the matter is to be controlled by a general provision ? There is certainly no doubt about what was the intention of the parties thus far.

The last clause of this stipulation, we think, is equally clearly limited to disputes arising out of the performance of the work by the contractors. It is quite clear also from the contract itself that the words “execution of the contract on part of the contractors,” meant the plaintiffs. They are repeatedly so designated in it, and in fact, it is usual in all works of this kind so to denominate the party undertaking the work, and nobody so engaged understands the term in any other way. Certainly these parties did not. The engineer was, therefore, to decide every question that could arise relative to the execution of the contract on part of the contractors. He was to be the umpire in settling disputes arising out of the kind, manner, and time of performance by the plaintiffs, and nothing else. This clause was to cover disputes, other than enumerated in the first clause, but like it the decision was only tó be as to performance. The engineer had no jurisdiction, if there was no execution by the plaintiffs of the contract.

The plaintiffs in this case do not sue to recover for work done, in performance of their contract, but to recover damages from the defendant for preventing or refusing to permit them to perform it. There is no dispute about the amount of work done, or the price or the manner of executing the contract, but solely to recover damage for the loss of the contract; and nothing else is claimed in the narr. or was claimed on the trial. The defendant would not have been bound by any decision of the engineer made on the point involved here. To have done so, would have been outside of the submission. He was to determine in regard to work done, and had nothing to do with a dispute between the parties arising from a claim for damages for not being permitted to do work. “ The terms of a contract,” said Ch. J. Gibson, in Harris v. Liggett, 1 W. & S. 301, “ are private laws which the parties prescribe for themselves, to fix the measure of their responsibilities; and they agree to be bound by these and no others. Rut a judge would bind them differently, did he enforce between them duties of imperfect obligation, and support an implication of terms to which they did not accede.” The right of trial by jury will not be taken away by implication merely, in any case. It must appear in all cases that the parties have agreed to dispense with it.

We do not in any wise intend to infringe on the principle of the decision in Fenlon v. Monongahela Nav. Co. The stipulation in that case differs widely from the case in hand. The suit there was to recover for work done, as well as for damages for suspending it, and it was ruled on the following clause in the contract that the engineer had exclusive jurisdiction of the matter : “ It is also mutually agreed between the parties,” says the contract, “ to these presents, that in any dispute which may arise between the contractor and the company, the decision of the engineer shall be obligatory and conclusive, without recourse or appeal.” Very different from the stipulations used in our case, and in which if they had existed, the engineer would undoubtedly have had jurisdiction. We fully accede to the decision in that case. So, in the case of Fox v. The Hempfield R. R. Co., tried in the Circuit Court of the United States before Mr. Justice Grier. The stipulation was, “ that the decision of the chief engineer for the time being shall be final and conclusive, in any dispute which may arise between the parties to this agreement, relative to, or touching the same, and each and every of said parties do hereby waive any right of action, suit or suits or other remedy in law or otherwise, by virtue of said covenant; so that the decision of the engineer shall be final and conclusive on the rights and claims of the said parties.” No more unrestricted submission could well have been framed; and the decision that the jurisdiction of the cause of action belonged to the engineer was undoubtedly in accordance with the eases on this point. We think the learned judge was certainly right in his ruling in the case.

The fourth assignment of error was not pressed.

Judgment affirmed.

Judge Woodward and Judge Strong were not present at the argument, and took no part in the decision.