Mills & Fairfax v. Norfolk & Western R. R.

Citations

• 90 Va. 523
• 19 S.E. 171
• 1894 Va. LEXIS 17

Syllabus

<p>1. Contract — Construction—Fraud.—A stipulation in a contract to construct a portion of a railway, making the estimates and certificates of the company’s engineer as to the amounts due thereunder binding and conclusive on the parties in the absence of fraud, held, not to make such estimates and certificates conclusive on the contractor, where made in such plain violation of the terms and prices specified in the contract as to amount to a fraud, or a mistake so gross as necessarily to imply fraud, or bad faith, especially where the contract also provides for a final estimate of the quality, character, and value of the work according to the contract.</p> <p>2. Idem. — Releases—Failure—Excuses.—The failure or neglect of a contractor for the construction of a portion of a railway, to give, or tender to the railway company, releases from claims or demands of mechanics and material men, or -others, as required by the contract, held, excused where the estimates of the company’s engineer, upon which the payments are to be based, are incorrect and fraudulent, because not within the terms of the contract, especially where all the persons having any claims have been fully paid and the time has expired within which they could assert any demands against the company, or file any liens on its property.</p> <p>3. Action on Contract — Declaration.—Where declaration in an action on such a contract, having set forth the same, alleges performance and acceptance of the work required thereby, and the refusal of the company to pay therefor, except on the estimates and certificates of its engineer made so plainly in violation of the terms and prices specified in the contract, as to amount to fraud, held, the declaration is sufficient in law.</p>