Snell v. Brown

Citations

• 71 Ill. 133

Syllabus

<p>1. Contract—third person to make estimates and determine quantity and quality. Where a contract for grading and work on a railroad provided Unit the work should be done under the direction and supervision of the chief engineer of the company, and his assistants, bj-whose measurements and calculations the quantities and amounts of the several kinds of work should be determined, and whose decision should be conclusive: Held, that a measurement by an assistant engineer, estimating the embankments made by the contractors, was not conclusive upon the employers that the work was done according to the contract, and that the contractors were entitled to pay for the price thereof.</p> <p>2. Where a party voluntarily enters into a contract that a third person shall measure and estimate the work done, and pass upon its quality, with power to reject and condemn all work and materials which, in his opinion, do not conform to the spirit of the contract, he can not evade or disregard it, except for fraud clearly proved.</p> <p>• 3. Where parties agree to abide by the estimates of a third person, as to the quantity of work done, and his decision whether it is according to the contract, the estimates of such person maybe set aside for fraud; but fraud can not be presumed merely because his estimates for work done pursuant to the contract are less than the measurement of the work actually done. A mistake or error of judgment, in condemning some of the work, affords no ground to impeach his estimate.</p> <p>4. The fact that more work was done than is included in the estimate, may be shown as a circumstance tending, in some degree, to establish fraud, but it is not conclusive. The evidence must show that such party knowingly and wilfully disregarded his duty, and rejected or condemned work which he knew, or at least should have known, .fully conformed, in all respects, to the contract.</p> <p>5. Where a contract to perform certain work provides that a suspension of the work by the e