Fruin-Bambrick Const. Co. v. Ft. Smith & W. R. Co.

Citations

• 140 F. 465
• 1905 U.S. App. LEXIS 4808

Syllabus

<p>1. Contract for Railroad Construction — Provision Making Engineer Umpire.</p> <p>A contractor for railroad construction under a contract whi5h provides that the decision of the chief engineer of the railroad company shall be final and conclusive upon any question arising thereunder is bound thereby, and cannot recover any sum in excess of that allowed in the final estimate of the engineer, unless it is shown that in making such estimate he was guilty of collusion or fraud, or exhibited such an arbitrary and wanton disregard of the contractor’s plain rights under the contract as to be equivalent to fraud, or committed errors or mistakes to the contractor’s prejudice so gross and palpable as to leave no doubt in the mind of the court that grave injustice was done him.</p> <p>2. Same — Construction of Specifications.</p> <p>A provision of the specifications in a contract for railroad construction that “solid rock” shall include “all other material which in the judgment of the engineer cannot be moved without being blasted” is to be given a reasonable construction with reference to practical railroad construction, and solid rock may thereunder include material which can be moved without blasting, where such mode of moving it would not be practical.</p> <p>3. Samf — Fraudulent Action of Engineer — Impeachment of Estimate.</p> <p>Evidence considered, and held sufficient to establish collusion and bad faith on the part of the chief engineer of a railroad company in making the final estimate of construction work done by a contractor, such as to entitle the contractor to show the incorrectness of such estimate, although by the terms of the contract it was made final and conclusive on both parties. The evidence also held to show that a change in the classification of certain of the work by the engineer from that made by his predecessor, who died after the work was completed, was erroneous and not made in good faith, and should be set aside, and the first classification res