G., H. & S. A. R'y Co. v. Henry & Dilley

Citations

• 65 Tex. 685
• 1886 Tex. LEXIS 729

Syllabus

<p>1. General denial—Practice—See opinion for defenses admissible under a general denial.</p> <p>2. Evidence—See opinion for evidence held sufficient to show that the specifications of a contract were furnished to the contractors.</p> <p>S. Contract—Construction—Usage—Authority conferred—Evidence—A contractor agreed to haul and embank hard rock for a railroad company at a fixed rate per cubic yard. The contract provided that “the measurement of quantities will usually be made in the cuts or pits from which the material has been taken;” and “ the quanities and amounts of work performed shall be determined by the chief engineer, and his determination shall be conclusive upon both parties.” The engineer estimated the amount furnished by measuring the excavation from which the rock was taken. The contractor contended that the rock should have been measured after it was embanked. Held:</p> <p>(1) That as the specifications showed that the measurements were not to take place in the cuts in all cases, the exception would have to be determined by outside testimony, by usage, or the practice of the company in like cases;</p> <p>(2) The evidence (as set forth in the opinion) was sufficient to warrant the conclusion that the provision as to measuring in the cuts was not usually enforced when solid rock was the material taken from them;</p> <p>(3) While the determination of the engineer, as to the matter submitted to him, was final and conclusive, unless he was guilty of fraud, misconduct or such gross mistake as would imply bad faith, or a failure to exercise an honest judgment (following M. & P. R’y Co. v. March, 114 U. S. 549), yet, his decision had to be in accordance with the contract;</p> <p>(4) He was to decide under the legal construction of the contract, not upon such construction as he chose; he could not adopt rules of measurement that the contract did not authorize, and, if his measurements wore based upon an erroneous view of the contract, they did not conclude the