4. In one very well-considered case upon the subject of extra work, not authorized in the manner specified in the contract, it is said by the Vice-Chancellor: "From what I have been informed of the course taken at law in these cases, it is this: If, in an action by a contractor, it appears that the company have the benefit of the work, done with their knowledge, the court of law does not allow the company to take the benefit of that work without paying for it, although in covenant (or any action upon the contract) the contractor cannot recover." This may be in accordance with the general rules of law applicable to the subject.7 SECTION X. If one Party repudiate the Contract, the other may sue presently. - Inevitable Accident. 1. Party repudiating excuses the other. 2. New contract valid. 3. President cannot bind the company. 4. § 114. 1. Questions often arise in regard to the right of a party to sue for damages before the time for payment arrives, and before he has fully performed on his part. But it seems now to be well settled, that where one party absolutely repudiates the contract on his part, he thereby exonerates the other from further performance, and exposes himself presently to an action for damages.1 C. 790. Pollock, Ch. B., said: "The company is not bound by the mere order of the engineer, or by the contract with one director." But, in many Nixon v. Taff Vale Railw., 7 Hare, 136. But see post, §§ 130, 143. 7 Dyer v. Jones, 8 Vt. 205; Gilman v. Hall, 11 id. 511. cases, the work is done by a sub-contractor, and enures to the benefit of the original contractor, as in Thayer v. Vermont Central Railw., 24 Vt. 440, and would not therefore give any right of action against the company, although in one sense they may put the work to their own use, and so may be said to have the benefit of it, to some extent. 1 Cort v. The Ambergate, Not. B. & E. J. Railw., 17 Q. B. 127; s. c. 6 Eng. L. & Eq. 230; Planche v. Colburn, 8 Bing. 14; Hochster v. De Latour, 2 El. & Bl. 678; s. c. 20 Eng. L. & Eq. 157. But in an action to recover damages on such contract, the jury are not to go into conjectured profits resulting from a subcontract very much below what the plaintiff was to be paid, but only the difference between the contract price and the value of doing the work at the time of the breach, can be given. Masterton v. Mayor of Brooklyn, 7 Hill, 61. The repudiation of a contract by the company, followed by seizure of the works, under 2. Where the contract is unconditionally repudiated by one party, before it is fully performed, it is competent for the other to stipulate for its performance, upon different terms, no doubt. And such stipulation, although not under seal, would probably be regarded as made upon a valid and sufficient consideration; and if made by an agent of the former party to the contract, but who had not authority to bind his principal to such contract, it would nevertheless be binding upon the agent and other party contracting, and would not be required to be in writing, as it would be an original and not a collateral undertaking. 3. But it has been held, that after a railway company has entered into a written contract, for the performance of certain work, the promise of its president to allow additional compensation to the contractors, for the same work, is without consideration and not binding upon the company.2 4. A very singular question arose in a late English case. The plaintiff agreed to make and erect on premises, under the control of the defendants, certain machinery, and the latter were to provide all necessary brick work, &c. Before the works were completed the buildings in which the work was to be done were destroyed by fire. It was held the plaintiffs were entitled to recover for the work already done by them before the fire, and that it was an implied term of the contract that the defendant should provide the buildings in which the work was to be done, and enable the plaintiffs to do their part of the work and therefore that the defendant was not relieved by the occurrence of the fire; as a party who contracts to do a thing is bound to carry out his engagement, or to make compensation, notwithstanding he is prevented by inevitable accident. order of a court, will be held a waiver of their right to proceed by arbitration under the same contract on all matters involved in the question of the legality of the seizure. Putney v. Cape Town Railw., Law Rep. 1 Eq. 84. 2 Colcock v. Louisville Railw., 1 Strobhart, 329; Nesbitt v. L. C. & C. Railw., 2 Speers, 697. The controversy here is in regard to hard pan excavation. And as the plaintiff contracted to do all the work on the road, and to construct the road-bed, and his contract only provided for earth and rock excavation, he is bound to accept his estimates under the contract, and especially, after having done so, he cannot claim extra compensation for excavating hard pan, even if he show that, by usage, "earth" has a technical meaning, and does not include hard pan. 3 Appleby v. Meyers, Law Rep., 1 C. P. 615; s. c. 12 Jur. N. S. 500. *SECTION XI. Decisions of Referees and Arbitrators in regard to construction Contracts. 1. Award valid if substantially correct. 2. Court will not set aside award, where it does substantial justice. § 115. 1. The general rule of law, in regard to the decisions of arbitrators and referees, by which they have been held binding upon the parties, although not made strictly according to the technical rules of law, if understandingly made, and exempt from fraud or partiality, has been sometimes applied to contracts for construction of railway works, the settlement of which has been determined by an umpire. As where the contract reserved the right to the company to alter the gradients of the road, and to substitute piling for embankment without extra allowance. These alterations were made, and thus increased the expense to the contractors. The final settlement being made by referees, to whom "all matters in dispute, with the contract as a basis of settlement," were referred, and they having allowed the contractor compensation for this increased expense, it was held to be within the power conferred upon the referees.1 2. So, too, where the contract specified a price for earth excavation, and another for rock excavation, but nothing was said of "hard pan," a good deal of which occurred in the course of the work, which was admitted to be more expensive than the ordinary earth excavation; the whole subject was referred, and the plaintiff claimed in his specification thirty cents per yard for excavating hard pan, and the referees allowed him fifty cents on trial. The defendants objected to the allowance, being more than the claim. But the court said, where the testimony was received without objection, and showed the party entitled to recover, beyond his specification, the court will not set aside the report, or grant a * 1 Porter v. Buckfield Branch Railw., 32 Maine, 539. In this case the contract provided for payment of a portion of the price of the work in the stock of the company, and the arbitrators directed, that the same proportion of their award should be paid by issuing certificates of stock, and the award was held valid in this particular also. new trial, where it is apparent the party has not recovered more than what he is fairly entitled to.2 SECTION XII. Decisions of Company's Engineers. 1. Estimates for advances, mere approxima- | 4. Estimates do not conclude matters, not re § 116. 1. The English contracts for railway construction generally contain a provision for referring the final settlement with the contractor to an indifferent board of arbitrators, or one selected by the parties respectively, with the umpirage of a third party in case of disagreement.1 Under such contracts the provision in regard to monthly or semi-monthly estimates is such, that they are understood to be mere approximations, and it is only equivalent to a provision, that the company shall advance, from time to time as the work progresses, a stipulated proportion of the work, which they shall, by their engineer, adjudge to be done. All that is requisite to the validity of such estimates is, that they were made bona fide, and with the intention of acting according to the exigency of the contract.1 2 Du Bois v. Delaware & Hudson Canal Co., 12 Wend. 334. 1 Ranger v. Great Western Railw., 5 Ho. Lds. 72; s. c. 27 Eng. L. & Eq. 35, 46. So where in a canal contract it is provided, that the engineer “shall in all cases determine the amount or quality of the several kinds of work" to be done, and the compensation therefor, and either party had the right to compel an indifferent reference, where he felt aggrieved by the decision of the engineer, "to investigate and determine all questions that may arise relating to compensation for work done under this contract;" it was held, this umpirage only extended to the final account of the engineer. People v. Benton, 7 Barb. 209. Under a contract where the company stipulated to pay the contractor ninety per cent of work done, according to the engineer's estimate; and the engineer had the right to declare the contract abandoned, and in that event the ten per cent became forfeited, and the engineer did so declare; it was held that this did *2. But where the contract contains provisions referring the estimate of the quantity and quality of the work absolutely to the determination of the company's engineer, or any particular party, and provides, as is not uncommon in this country, that his decision shall be final, no relief from his determination can ordinarily be obtained, even in a court of equity, unless upon the ground of partiality, or obvious mistake, which latter is held to apply rather to the quantity, than the quality of the work, this being purely matter of judgment and discretion, and which was intended to be concluded by the opinion of the arbitrator.2 But in an English case before Vice-Chancellor Stuart, where in a building contract the corporation reserved the power to determine the contract, which they afterwards exercised, and it was stipulated that any dispute or difference which might arise between the contracting parties should be referred to and settled by the engineer, that it should not be competent for either party to except at law or equity to his determination, and that without the certificate of the engineer no money should be paid to the plaintiffs; " it appearing that the engineer had never refused to discharge his duty according to the contract, and had nothing to disqualify him to act, and was ready and willing to proceed and determine all * matters at issue between the parties, it was held that there was no ground for the equitable interference of the court. 3. If the contractor acquiesce in a particular construction of his not absolve the company from the payment of the ninety per cent upon the work done by the contractor, before the contract was declared abandoned. Ricker v. Fairbanks, 40 Maine, 43. 2 Herrick v. The Vermont Central Railw., 27 Vt. 673; Kidwell v. Balt. & Ohio Railw., infra; Alton Railw. v. Northcott, 15 Ill. 49. In this case it was held that the estimate of the umpire will not bind the parties, if based on an erroneous view of the contract. So a court of equity may correct the mistakes of the engineer, although the contract stipulates that his decision shall be final. Mansfield & Sandusky Railw. v. Veeder, 17 Ohio, 385. So, too, where the engineer proved to be a stockholder in the company. Milnor v. The Georgia Railway & Banking Co., 4 Ga. 385. And in Kems v. O'Reilley, Leg. Int. Aug. 31, 1866, it was decided that the award of an engineer between contractor and sub-contractor is final. And in Leech v. Caldwell, id. Nov. 16, 1866, it was held, that where the subcontractor covenanted to abide the decision of the engineer of the work in any dispute arising on the contract, the alleged fraud of the engineer did not affect the covenant. 3 Scott v. Corporation of Liverpool, 31 Law Times, 147, 1858. |