Mayor of Baltimore v. M. A. Talbott & Co.

Boyd, C. J., delivered the opinion of thé Court. The appellees sued the appellant upon seven contracts made between them for the eonstructon of sewers in the City of Baltimore, and all errors in pleading were waived. The contracts sued on required the performance of work and the furnishing of materials of a total value of over a million dollars, but the appellees had been paid the most of the contract prices, and they only recovered a verdict for $15,183.88, which was a little less than three-fourths of the claims made by them. There are three bills of exception in the record— the first two presenting' rulings as to the admissibility of evidence, and the third embracing the rulings on the prayers.

First — We will consider the first bill of exceptions and the first prayer of the plaintiff together, as they involve the construction of the contract and the question of how far the decision'of the engineer as to the paymenf of the plastering on the extrados of the arches of the sewers and on the manholes was conclusive. It was agreed by counsel that the provisions set out in the record “are the same as those contained in the other six contracts involved in this case,” and hence in discussing the case we speak of the contract, in the singular, although there were really seven. ' The contract signed by the parties recites that whereas the contract for building Section Two of the Outfall Sewer in ³⁵⁷ certain streets in the City of Baltimore, as shown on plans on file in the office of the Chief Engineer of the Sewerage Commission, “subject to all conditions, covenants, stipulations, terms and provisions contained in certain specifications, a copy of which is hereto attached, and in all respects made a part hereof, has recently been awarded to the contractor by the city,” etc., and whereas, one of the conditions of the said award was that a formal contract should be executed, “Flow, Therefore, This Contract Witnesseth, That the contractor doth hereby covenant and agree with the city that they will well and faithfully build said drain in accordance with each and every one of the conditions, covenants, stipulations, terms and provisions contained in said specifications * * *, and will well and faithfully comply with and perform each and every obligation imposed upon them by said specifications, or the terms of said award.” The city then covenants to pay to the contractor “when due and payable under the terms of said specifications and of said award,” the sum named, “and that it will weil and faithfully comply with and perform each and every obligation imposed upon it by said specifications or the terms of said award.” The following provisions in the specifications are a part of the contract: Section 109. “Except when the engineer shall direct otherwise, the arch of the sewer shall he of ‘Class A’ concrete masonry, laid as elsewhere herein specified. Whenever it is advisable, in the opinion of the engineer, the arch of the sewer shall be built of reinforced concrete or brick masonry, of the qualities herein described. The ex-trados of the arch, of whatever material, shall be neatly plastered with cement mortar one-half (%) inch thick over its entire surface extending down to the springing-line on each side, the surface of the arch being thoroughly cleaned and wetted hefore-hand.

This mortar shall consist of one (1) part cement, one-half (%) part lime paste, and four (4) parts clean, sharp sand. The plastering required over the extrados of the arch is to he carried forward as the masonry is laid, and immediately after the arch is completed.” ³⁵⁸ “Section 124. Payment. Brick and concrete masonry will be paid for by tbe cubic yard for tbe net volume of masonry per linear foot required by the dimensions given on the plans.

The length of the sewer will be determined by horizontal measurements, and deductions will be made for masonry omitted at all manholes and openings. Plastering on ex-traños of arch will not be paid for separately, but it is to be included in and covered by the price paid for masonry.” Section 127. “The outside of all manholes shall be neatly plastered with cement mortar one-half (%) inch thick, to such point as the engineer may direct. This plastering will not be paid for separately, but it is to be included in and covered by the price paid for the masonry.” It will be observed that the same provision is made as to the payment for the plastering on the extrados of the arches as for that on the outside of the manholes- The appellant and the appellees differ in their construction of the terms italicized. The appellant contends that by those terms the compensation of the contractors for the plastering was included in the price paid for the masonry; that they were to receive so much per cubic yard for the masonry, and in making their bid for it were supposed to include the compensation for the plastering, which they were required to do.

The appellees on the other hand contend that by the proper construction of the contract they were to be paid for the plastering as if it was masonry, and that hence the measurements of the masonry should have included the half-inch called plastering. The Court below adopted the contention of the appellees both as to the construction of the contract and of the right of the Court to construe it, and hence'refused to allow the question asked the engineer, which was intended to show that he had decided that the measurement of the plastering could not be included with that of the masonry, and that no allowance could be made for it other than what was included in the payment for the masonry, and the Court also by the first prayer in effect instructed the jury to find for the appellees ³⁵⁹ for the amount of plastering at the price fixed for the masonry. It is manifest that something may he said on both sides as to the proper construction of the contract. If in point of fact the appellees in their bid did not take into consideration the fact that they were required to plaster the extrados of the arches and the outside of the manholes, and did not understand that they were to include that in their bid for the masonry, then the city would virtually have that plastering done for nothing; but, on the other hand, if the estimate of the cost of the plastering was to be included in the bid for the masonry, then if it can be measured as if it was a part of the masonry, the city would have to pay twice for it.

If the appellees’ theory be correct, a more simple way would have been to say: “Plastering on extrados of arch will not be paid for separately, but it is to be measured with the masonry and to be paid for at the price paid for masonry.” The appellees contend that it means that the plastering “is to be included in the masonry and covered by the price paid for the masonry,” but the appellant replies that it does not say the plastering is to be included in the measurement of the masonry, but that the payment for the plastering “is to be included in and covered by the price paid for the masonry”— that is to say, included in the price and covered by the price paid for the masonry. The bid of the plaintiffs was “For all ordinary concrete masonry ‘Class A,’ the sum of nine and fifty one-hundreds dollars ($9.50) per cubic yard.” The appellees contend that the half-inch is really concrete of a richer mixture than, the concrete masonry, but whether or not it can technically be said to be concrete, the contract undoubtedly makes a distinction between “concrete” and “plastering,” as those terms are used in it. It is apparent then that the terms used are not so clearly in favor of the appellees that a decision against them was palpable error or suggestive of bad faith on the part of the engineer, and hence we must see whether by the terms of the ³⁶⁰ contract it was for the Court or the engineer to determine the question. It is conceded by the appellees that there was no bad faith on the part of the engineer, but it is claimed by them that no authority was given him to construe the contract.

It will be remembered that the contract was awarded "subject to all conditions, covenants, stipulations, terms and provisions contained in certain specifications, a copy of which is hereto attached and in all respects made a part hereof.” Amongst other provisions is: "Section 6. Engineer to be referee. To prevent disputes- and litigations, the engineer shall in all cases determine the amount, quality and acceptability of the work ivhich is to be paid for under the contract; shall determine all questions in relation to said work and the performance thereof, and shall in all cases decide every question which may arise relative to the fulfillment of the contract on the part of the contractor. His estimate and decision shall be final and conclusive, and in case any question shall arise between the parties touching the contract, such estimate and decision shall be a condition precedent to the right of the contractor to receive any moneys under the contract.” That section in terms authorizes the engineer to -determine the amount of the work which is to be paid for under the contract.

It would be- difficult to imagine any question which might have arisen which more clearly comes within that provision than the one we are now considering. If he could not determine whether the amount was to include the thirteen or twelve inch sewer plus the half-inch of plastering on it, or was not to so include the half-inch, then what could he determine under that provision? Then it -also says: "His estimate and decision shall be, final and conclusive, and in case any question shall arise between the parties touching the contract, such estimate and decision shall be a condition precedent to the right of the contractor to receive any moneys under the contract.” This was cei* ³⁶¹ tainly a question which arose between them “touching the contract.” This is not like the case of Aetna Indem. Co. v. Waters, 110 Md. 673 , relied on by the appellees. 'In that case it was simply agreed that the architect’s decision “as to the true construction and meaning of the drawings and specifications shall be final,” and we said that did not take from the Court and confer upon the architect the power to construe the contract itself.

Judge Schmuckeb said: “The law is clear that the common right of resort to the courts for the determination of the rights of parties or the settlement of disputes between them will not be taken away by inference or implication or anything short of a distinct agreement to waive it. FTo such agreement is found in the contract before us, which in terms limits the architect’s authority to determine the meaning and construction of the drawings and specifications prepared by him, but- does not submit to his decision the contract rights of the parties.” After citing authorities he went on to say: “The question before us is not one of the construction of the drawings and specifications under which the contract is to be performed, although the ascertainment of their true meaning may afford some assistance in its solution. It is a question of the construction of the contract itself to determine whether, under its provisions, the concrete company was under any obligation at all to construct the disputed ceiling.” In that case “The items constituting the concrete construction contracted for are not enumerated in precisely the same language in the sub-contract as in the specification.” That was a suit by a contractor on the bond given him by a sub-contractor. In this case section 8, which referred to “Discrepancies in plans and specifications,” provided that “Should there be any discrepancies in or between, or should any misunderstanding arise as to the import of anything contained in the plans and specifications, the decision of the engineer shall be final and binding.” Therefore it might ³⁶² well be contended that the engineer was required to decide under that section “the import” of the provision in reference to payment for the plastering.

Flor do we find anything in the case of Annapolis & Baltimore Short Line Railroad Company v. Boss, 68 Md. 310 , which can aid the appellees. The work contracted for was to be done under the direction of the defendant's engineer, and he was to be the sole judge of the quantity and quality of the work, and his decision was to be final and conclusive between the parties. The railroad company reserved the right to make alterations, “provided, however, that no alteration shall be made from said plan which shall entail upon the plaintiffs an expense in constructing beyond the proportion of the balance of the work.” The alterations did entail upon the plaintiffs an expense far beyond the cost of the original work contracted for, and the engineer awarded the plaintiffs very much less than they claimed, and the difference was the subject-matter in dispute in that case. Judge Robimbou, in speaking for the Court, said: “That alterations were made and that the cost of constructing the bridges was thereby largely increased is not denied; and the real question is whether the alterations were such as the defendant had the right under the contract to make?

Tf they were, then in the absence of bad faith or fraud on the part of the engineer, and this is not imputed, his award is final and conclusive. On the other hand, if the alterations are not fairly within the scope of the contract, his award is not binding, because his arbitrament was to be final only in regard to the work done under the contract.” It was of course for the Court to construe the contract in so far as it was necessary to determine whether the work was done under it. It is true the engineer was to be the sole judge of the quantity and quality of the work, and his decision was to be final and conclusive between the parties; but, as the Court said, “only in regard to the work done under the contract.” There ³⁶³ were no such provisions in that contract as some of these in this. But if we assume that the Court can determine whether the plastering was done under the contract, there can be no possible doubt about that.

It was admittedly done under the contract, and the engineer was by its terms authorized to determine the question in dispute. If the engineer had determined that the plaintiffs were entitled to he paid half or a quarter of what they claimed, it could not be contended that his decision would not have been final, and when he determined that they were paid, in the price paid for the masonry, why is it not under the provisions we have quoted equally final and conclusive? The rules as announced in Lynn v. B. and O. R. R. Co., 60 Md. 404 ; B. and O. R. R. Co. v. Brydon, 65 Md. 198 ; Smith v. Jewell, 104 Md. 269 ; Pope v. King, 108 Md. 45 ; Seventh Baptist Church v. Andrews & Thomas, 115 Md. 535 . Filston Farm Co. v. Henderson, 106 Md. 335 , and similar cases, are too well settled to require discussion of the general principle that parties can legally leave questions of this character to the decision of their parties, such as engineers, architects and others, and that when they do they are bound by such decision, if made in good