Smith v. Boston, Concord & Montreal Railroad , 36 N.H. 458 ( 1858 )

Bell, J.

This case raises several questions of some difficulty, both as to the pleading and the construction of the contract declared on.

Of these the first is, whether breaches of several distinct and separate provisions of the contract can be properly assigned in the same count.

There can be no doubt, says Lawes, (Pleading in Assumpsit 278,) but that in assumpsit the plaintiff is not confined to assign one single breach, as he is in declaring in debt for a penalty; but may, in the former action as well as in covenant, assign as many breaches as ..he thinks proper; at all events, where he does not declare on a promise to pay a penal sum. Lee v. Hewitt, 4 East 154; Athawes v. Ash, Lawes Ast. 73, n; 2 Ch. Pl. 94, 134; 1 Chitty’s Pl. 295; 1 Saund. Pl. & Ev. 133; Com. Dig., Pl., C, 33; 2 Went. Pl. 2,10, &c.

II. 1. No time is stated when the defendants were to furnish the right of way, &c.

No time is stated in the contract, nor from the nature of the contract was it possible to state any. They must be furnished, as they should become necessary in the progress of the work. Where an agreement is mads to do certain things, without any designation of time, the law determines they shall be done in a reasonable time. It is sufficient that the contract is stated as it is made, because the agreement is to be construed in the pleadings, as it is in the original writing.

Neither is it necessary, in alleging the breach, to aver that a reasonable time for the performance has elapsed, and the work has not been done, unless it would otherwise fail to appear from the facts stated, that the stipulation was broken. In the present case it is alleged that the contract of the plaintiff was to be completed before a fixed date, “ on or before October 20.” These stipulations must of necessity precede the completion of the contract ; and an averment that the defendants did not furnish the same at the time they ought to have been furnished, is a sufficient allegation of the breach in this respect.

II. 2. Whenever a request is necessary to be alleged in order to entitle the plaintiff to a right of action, it is necessary that such request should be stated, with time and place, which is not here done. But a request is not necessary in this case. It is not stipulated that these things should be furnished on request, nor can a request be reasonably implied. The need there would be of these things was just as apparent to the defendants as to the plaintiff; Dix v. Flanders, 1 N. H. 246 ; Watson v. Walker, 23 N. H. (3 Foster) 491; and their contract was, that they should be seasonably furnished, without any action of the plaintiff.

II. 3. Whenever an enumeration of particulars would tend to prolixity, a general statement is sufficient. 1 Saund. 116, note 1; 1 Ch. PL 240. That seems in a special manner the nature of this case. The road was twenty miles or more in length. The right of way, track iron, sleepers, and fencing, were to be furnished at all points, and borrowing pits, and station buildings, where required. In the event of any extensive failure to perform this stipulation, it must be impracticable to state the particulars without a very long and detailed statement; and it does not seem to us that such a specification could be reasonably required in a declaration. If it should appear to the court, on application, that such specification was in fact necessary, it might he ordered. Gould’s PL IV., secs. 26, 83, 36; 1 Chitty’s PI. 240.

III. 1. It is objected that the count does not aver that the aggregate amount of all material, &c., was increased by the definite location over the amount shown by the preliminary estimates, &c. The allegation excepted to is as follows:

“ And the said plaintiff avers, that in the building and construction of said railroad, as aforesaid, the aggregate amount of material encountered by the said plaintiff, upon the whole line of said road, was increased by the definite location of the same over the amount as then, to wit, on said first day of July, A. D. 1851, shown by the preliminary estimates in the engineer’s office of said corporation,” &c.

The contract speaks of the aggregate amount of all material; the declaration uses the phrase, the aggregate amount of material, omitting all. It might make a very essential variance in the effect of the contract, if the language of the declaration could be so construed as to make the company liable for any increase of the aggregate material of each kind, instead of the aggregate of all kinds of materials, but it does not seem to us that by any fair construction the contract or the declaration can be so understood; nor does the omission of the word all in any way vary what would otherwise be the effect of the agreement.

III. 2 to 8. These exceptions all rest on the same principle. They raise the questions, whether the plaintiff is entitled to recover any thing on account of any increased aggregate of material, unless upon the allowance of the engineer. Whether it is not the province of the engineer to ascertain, if the aggregate is increased, and how much, as well as what allowance is to be made, and whether it is not the duty of the plaintiff to show that he has done so, or that he has been called upon to do it, and has refused; or that some just cause exists why that has not been done, and if such allowance is made, whether the defendants are liable until notice of it.

The views of the parties differ entirely on these questions ; the plaintiff referring to the estimates in the engineer’s office only, for the aggregate on the preliminary location, averring, in general terms, the aggregate to have been increased, and to what extent, as matters of fact, to he proved and settled upon the trial; while the defendant contends that by the contract the engineer is made the exclusive judge of the quality and quantity of the work, and no action can be maintained, unless upon his measurement and allowance ; that it is the duty of the plaintiff to procure such measurement and allowance, and to give the defendant notice of the result, before any action can be maintained.

An agreement to refer any matters of dispute that may hereafter arise between the parties, is not unusual in contracts of insurance, of partnership, and for the construction of large buildings and other works. In general such contracts do not bar the parties of their remedies by action at law. Scott v. Avery, 20 E. L. & E. 327, 36 E. L. & E. 1; Avery v. Scott, 20 E. L. & E. 334, 8 Exch. R. 487; Goldstone v. Osborne, 2 C. & P. 550 ; Haggart v. Morgan, 4 Sandf. Sup. Ct. 198 ; Reeves v. White, 10 E. L. & E. 343; nor by suit in equity. Mexborough v. Bower, 7 Beav. 127.

They will not be specifically enforced in equity ; Blundell v. Buttargh, 17 Vesey 232 ; Milnes v. Gry, 14 Vesey 400 ; and an action at law on such an agreement affords no effectual redress for a refusal to refer, since it is not easy to show that the party has sustained any actual damage by the refusal.

If an award is actually and fairly made, in pursuance of such a stipulation, by a disinterested arbitrator, the parties are bound by it, as they are in other cases of reference.

If the form of the contract is such as to make the award a condition precedent to the right to recover, as if the agreement is to pay so much as a third person shall determine to be just, then the agreement is binding. So if the work is to be done, or materials are to be furnished, to the satisfaction or acceptance of a third person, or the price to be paid is dependent on his decision as to the quantity, quality, or price of the materials, or workmanship. Parke v. Great Western R. W. Co., 3 R. W. Cas. 17 ; Oakley v. Morton, 1 Kern. 30 ; Gardner v. Williamson, 5 Rich. 28 ; Dabies v. Mayor of Swanzey, 20 L. & E. 529 ; Mason v. Bridge, 14 Maine, 2 Shep. 468 ; McAvoy v. Long, 13 Ill. 147 ; Canal Trustees v. Lynch, 5 Gilm. 521; United States v. Robeson, 9 Peters 327.

In such case it must he alleged that the person designated has accepted, or was satisfied with the materials or workmanship; that he measured or ascertained the quantity, or fixed the price, or did any other thing required by the contract; since, until these things are done, or their performance excused, the plaintiff has no right of action. Scott v. Avery and Oakley v. Morton, before cited ; Grafton v. E. Counties R. W. 22 E. L. & E. 557; Brown v. Overbury, 34 E. L. & E. 610 ; Thurnell v. Balburnie, 2 M. & W. 786, Mur. k H. 235, 1 Jur. 847 ; Ess v. Trescott, 2 M. & W. 385, Mur. & H. 75, 1 Jur. 358 ; Maryatt v. Broderick, 2 M. & W. 369, M. & H. 96, 1 Jur. 242; Smith v. Briggs, 3 Denio 73 ; Lowndes v. Staniford, 14 E. L. & E. 24.

If this provision is omitted in declaring on the contract, the plaintiff must be nonsuited, on the ground of variance, the contract alleged being absolute, while that proved is conditional. If the contract is truly stated, but the averment of a decision by the referee is omitted, the declaration will be held bad on demurrer, or in arrest of judgment, as showing no cause of action; or the plaintiff will be nonsuited because his evidence shows no right of action. Uhtred’s Case, 7 Co. 74; Gould’s PI. 175,269; 1 Chitty’s PI. 309; Com. Dig., Pleader, C., 51, 52 ; Arch. Civ. PI. 96, 99 ; Smith v. Briggs, 3 Denio 76 ; Morgan v. Birnie, 9 Bing. 672; Coombe v. Greene, 2 Dowl. N. S. 1023, 10 M. & W. 480, 12 L. J. N. S. 58.

If the party sued has, by his own act or neglect, prevented the performance of a condition precedent, he cannot take advantage of his own wrongful act, and the averment and proof of this fact will have the same effect as to the right of action as an award or decision according to the terms of the agreement. And for this purpose the acts of his agents, and of persons for whose conduct he is responsible, will have the same effect as his own. Thomas v. Fredericks, 11 Jur. 942 ; 16 L. J. Q. B. 393 ; Morris v. Haight, 14 Barb. 76 ; Mayor of New-York v. Butler, 1 Barb. S. C. 325 ; Smith v. Gugerty, 4 Barb. 614 ; Taylor v. Bullen, 6 Cowen 624; Moakley v. Riggs, 19 Johns. 69; Fleming v. Gilbert, 3 Johns. 528; Kenniston v. Ham, 29 N. H. (9 Foster) 501; Camp v. Barker, 21 Vt. 469 ; Carpenter v. Blandford, 8 B. & C. 575; 4 M. & R. 93 ; Planche v. Colburn, 8 Bing. 14; 1 M. & S. 515, C. & P. 58; Williams v. Bank of United States, 2 Peters 102 ; Miller v. Ward, 2 Conn. 494 ; Jones v. Walker, 13 B. Mon. 163; Hotham v. E. I. Co., 1 D. & S. 638.

No evidence of any wrongful interference of the defendant to prevent a decision, or of neglect of his duty in regard to it, will be admissible, unless the proper averments are found in the declaration ; so that if the whole matter is omitted in the declaration, or if a decision is averred to have been made, no evidence that the defendant prevented a decision, or other excuse for the want of it, will be competent. Oakley v. Morton, 1 Kern. 33 ; Cran v. Clark, 7 Barber 169 ; Baldwin v. Munn, 2 Wend. 399; Phillips v. Rose, 8 Johns. 392; Freeman v. Adams, 9 Johns. 115 ; Fleming v. Gilbert, 3 Johns. 528 ; Little v. Holland, 3 T. R. 590 ; 1 Ch. Pl. 321, 326 ; Milner v. Field, 5 Exch. 829 ; 1 E. L. & E. 531; Morgan v. Birnie, 3 M. & Scott 76; 9 Bing. 672.

Unless it is in terms, or by fair implication from the nature or language of the agreement, made the duty of the defendant to procure a decision of the referee, the responsibility rests wholly on the plaintiff to obtain it.

Though there are cases where it has been held that a reference to a third person, to measure materials or work, to judge of their quality, to fix a price, or to make an appraisal, or the like, is not a submission to arbitration, yet it seems to us that every agreement of parties, by which they bind themselves to abide by the decision of an indifferent third person, as to any matter affecting their rights, is a submission to arbitration, and the decision of such third party upon the matter thus referred to him, is an award. We do not perceive that any difference in the nature or importance of the question submitted, or of the evidence upon which it must be decided, or in the means to be used to arrive at a correct result, can affect in this respect the nature of the proceeding. If the parties have a difference or dispute, however trivial, or upon a matter however simple, and in whatever mode the truth is to be ascertained, and they select an indifferent third person to be the judge between them, and bind themselves to abide his decision, that seems to us a submission to arbitration, and the decision to be an award.

Such an award, decision, appraisal, measurement, or whatever it may be called, of such third person, fairly made, is final and conclusive upon the question referred to him, and upon the rights of the parties in relation to it. Bransoome v. Rowcliff, 6 C. B. 623 ; De Vile v. Arnold, 10 Price 21; Van Cortland v. Underhill, 17 Johns. 405 ; 2 Johns., Ch. 339 ; Oakes v. Moore, 11 Shep. 214 ; Jebb v. Kernan, M. & M. 340. No court will reexamine the merits of a decision fairly made by such a referee. Bean v. Wendell, 22 N. H. (2 Foster) 588 ; Pike v. Gage, 29 N. H. (9 Foster,) 470 ; Greenough v. Rolfe, 4 N. H. 359.

It sometimes happens that parties offering large contracts insist that the work shall be done, or the materials supplied to their acceptance, or that they will pay only such prices, or for such quantities, as they shall themselves decide. As it has always been held that no man can be a judge in his own cause, such agreements have never been considered to be binding. A party cannot reserve to himself by his contract a right to decide wrong in a case involving his own interest. Broom’s Maxims 84 ; Litt., sec. 212 ; Co. Litt. 141, a; Derby’s Case, 12 Rep. 113 ; Bryant v. Flight, 5 M. & W. 114; 2 Horn. & H. 84; 3 Jur. 681; Miner v. Georgia R. R., 4 Geo. 385.

In such case it is only necessary to allege that the contract was properly performed, so that it was the duty of the defendant to accept it, and to aver that the defendant wrongfully refused, or neglected to accept, &c., or to make an appraisal, or that he made an unjust and wrongful decision upon the point, averring the true measurement, price, &c. In many cases it seems to have been held that it is not necessary to make any allusion to these stipulations ; it being the duty of the defendant to accept, and be satisfied if the work is done according to the agreement, and to make an estimation of quantity and quality according to the truth, and to allow a fair and just price, the party having no capricious discretion whatever. It is not easy to reconcile these cases with the rules of good pleading, when such acceptance, appraisal, or the like, is made a condition precedent. Butler v. Tucker, 24 Wend. 447 ; Dallman v. King, 4 Bing. N. C. 105 ; Bryant v. Flight, 5 M. & W. 114 ; Bird v. McGahey, 2 C. & K. 707 ; Moore v. Woolsey, 4 E. & B. 243 ; Moffat v. Dickson, 13 C. B. 543 ; Jewry v. Birsh, 5 Taunt. 302.

Between the two classes of cases to which I have adverted, that of an agreement by way of condition precedent to refer matters in difference growing out of some contract, to the decision of indifferent third persons, and the attempt of a party interested in the same way to constitute himself judge in his own case, there is an intermediate class, where the contract requires that all disputes shall be referred, not to the party himself, but to his servant, agent or employee. As where an insurance company insert in their policies that they will be liable to pay only so much as their board of directors, or a committee of their board, shall allow or award ; or a railroad company require that all materials and work in the construction of their road shall be satisfactory to their engineer, or shall be accepted by him, or that he shall measure all work, and be the final judge of the quantity, quality and price of all work done, and materials furnished under the contract, or a similar provision in other agreements of companies or individuals, as to the conclusiveness of the decisions of their agents, architects or surveyors.

It seems to be every where admitted, that agreements of this kind are not nugatory nor inoperative. The parties are bound by them to a certain extent, and they must therefore be stated in every declaration upon them, according to their legal effect, and the condition precedent must be alleged to have been performed, or some legal excuse for its non-performance assigned, precisely as we have stated in the case of similar agreements to refer to disinterested third persons. This question is, however, entirely unconnected with the question of the conclusiveness of the decision in such cases. It is a question of mere pleading, as to which there is no conflict of authorities.

The statements of a party thus referred to are without doubt evidence between the parties, upon the principle that where a party has referred another to a third person, for information in regard to an uncertain or disputed matter, he makes the statements of such person evidence against himself, and the burden is thrown upon him to show such statements to be incorrect, or mistaken. 1 Greenl. Ev., sec. 184; Garnet v. Ball, 3 Stark. 160 ; Whitehead v. Tattersall, 1 Ad. & El. 491.

The decisions of engineers, &c., under such contracts, have in some cases elsewhere been held to have the binding effect of awards; but it seems it may well be- doubted whether they ought to be so regarded, inasmuch as it is a rule that where a judge is interested in the result of a cause, he cannot, either personally or by deputy, where he has the power of appointing a deputy, sit in judgment upon it. Broom’s Maxims 109 ; Brooks v. Rivers, Hard. 503 ; Derby's Case, 12 Co. 113 ; Anon. 1 Salk. 396 ; Dimes v. Gr. Jn. Canal Co., 16 E. L. & E. 71; Russell v. Perry, 14 N. H. 152. From which it may be fairly inferred that the relation of employer and employed ought to exclude the latter from acting as a judge, or a referee, where his employer is a party. And as corporations necessarily act by their servants and agents, who, for purposes connected with their business, speak the voice of the corporation, it may well be understood that a stipulation in a contract for labor and services to be performed for a corporation, that the work is to be done to the satisfaction of a servant or agent of the corporation, confers no capricious power on such agent, nor any power by his decision to bind conclusively the rights of the parties. He can have no power to deprive a party of his pay by refusing to make an estimate or measurement, nor power to reduce his compensation by a false measurement or estimate. As the party to such contract has precluded himself from revoking the authority of such agent, by making his decision a condition precedent to his right of action, he cannot reasonably be held to hare waived any objection to the person of such referee. We think, therefore, it may well be doubted whether the measurement, appraisal, or other decision of a person so situated, that he cannot, by any possibility, be regarded as indifferent or impartial, can justly be held to have in any degree the conclusive character of an award. There seems to us much good sense in the opinion of Ld. Ch. Cramworth, in the case of Ranger v. Gt. West. R. R. 27 E. L. & E. 35, which was a case of this kind, where it was objected that the engineer was a shareholder.

In delivering the judgment it was said, “ In ordinary cases it is a just ground of exception to a judge, that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent. But here the whole tenor of the contract shows that it was never intended that the engineer should be indifferent between the parties. When it is stipulated that certain questions shall be decided by the engineer appointed by the company, that is in fact a stipulation that they shall be decided by the company. It is obvious that there never was any intention of leaving to third persons the decision of the questions arising during the progress of the works. The company reserved the decision for itself; acting, however, as from the nature of things it must act, by an agent, and that agent was, for this purpose, the engineer. His decisions were in fact their decisions. The company stipulated that their engineer for the time being, whoever he might be, should be the person to decide disputes.

It is, however, unnecessary here to decide any question of this kind, since the points before us relate merely to the pleadings ; and it is in this case averred and made a ground of claim that no decision was in fact made by the engineer.

Where it is stipulated by an agreement between two parties that the one shall do certain work, the other finding materials, there is an implied agreement that the materials shall be furnished, and an action lies for any loss or delay resulting from failure to furnish them. Railroad v. Howard, 13 How. U. S. 307.

“ It is the duty of the employer,” says Gibbon, (Contracts 74, sec. 47,) “ not to do any act which will prevent the workman from performing his contract, and also to do every act necessary to be done by him, to enable the workman to perform it. If the employer, by doing or omitting to do any act, prevent the workman from performing his contract, he is excused from the performance, and is, so far as he has been disabled by the employer, entitled to recover from him any damage he may have sustained by his act or omission. Planche v. Colburn, 8 Bing. 14 ; Coombe v. Green, 11 M. & W. 480 ; Lilley v. Barnsley, 1 C. & K. 344;" Holmes v. Guppy, 3 M. & W. 387.

So where it is agreed that the work shall be done under the superintendence of an engineer, that he shall measure, &c., there is an implied agreement on the part of the employer that a suitable engineer shall be employed, and that he shall do all that the contract requires to be done by him in due season, and an action will lie against the party who neglects to furnish such engineer. Herrick v. Belknap, 27 Vt. (1 Wms.) 679 ; Harrison v. Gt. North. R. W., 8 E. L. & E. 469; 11 C. B. 815; 12 C. B. 576; Mansfield, &c. R. R. v. Veeder, 17 Ohio 385. And the party who does or should employ him can take no advantage of any failure on the part of the engineer to do any thing required by the contract. Harrison v. Gt. North. R. W., above cited ; Kingdom v. Cox, 5 C. B. 522 ; Yew v. Harris, 11 Q. B. 7 ; Smith v. Gugerty, 4 Barb. 623 ; Glen v. Leith, 22 E. L. & E. 489 ; Camp v. Barker, 21 Vt. (6 Wash.) 469.

It is suggested that in the statement of the defendants’ contract to furnish the right of way, &c., there is no statement of any consideration, no direct statement of any promise, and that the assignment of the breach is simply that these things were not furnished within the time in which they ought to have been furnished. These objections to the form of the statement seem to us well founded. The declaration should state the entire consideration of the contract; so much of the whole contract as may be necessary to render each stipulation alleged to be broken, intelli gible. Webster v. Hodgkins, 25 N. H. (5 Foster) 134, 135. It should then state distinctly each agreement of the defendant, as the same is to be implied and inferred from a just construction of the whole contract, with all the conditions and qualifications which affect it. It should then state the performance of all conditions to be performed on the part of the plaintiff, or an excuse for their non-performance, and should then assign the breach of the contract substantially according to its terms. The same remarks will apply to the statement in relation to the increased aggregate of material, and other parts of the contract.

In the case of Clarke v. Grey, 6 East 564, it was held that such parts of a contract as respect only the liquidation of damages, after a right to them has accrued by a breach of the contract, is matter proper to be given in evidence to the jury in reduction of damages, but not necessary to be shown to the' court in the first instance on the face of the record. See 1 Chitt. PI. 300, 301.

But that case was unlike the present. The promise there was unqualified. The agreement as to the damages was collateral. Here the agreement that for the increased aggregate of material the engineer should make such additional allowance as he should think just, constituted a part of the promise itself, qualifying and varying the sense of it, as well as limiting the defendant’s liability upon it. “ If there is any part of an agreement which qualifies or varies the sense and legal effect of the parts set forth, care must be taken not to omit it, as in that case there will be a variance.” Howell v. Richards, 11 East 633 ; Hotham v. H. I. Co., 1 D. & E. 645 ; Miles v. Sheward, 8 East 8 ; Butler v. Tucker, 24 Wend. 447 ; Green v. Leith, 22 E. L. & E. 489 ; Grafton v. E. Co. R. W., 22 E. L. & E. 557 ; Morgan v. Burney, 9 Bing. 672.

As from the contract, in the manner it is stated, the court cannot fail to see that there was a sufficient consideration for the contract, both of the plaintiff and the defendant; as by a careful examination they can infer the conditions and qualifications of the defendant’s contract; and as it is distinctly charged, though in another connection, that the defendants did not cause any measurement to be made by the engineer, according to their agreement, the count cannot be rejected; but it becomes the duty of the court to require it to be amended, and put in a more correct and technical form.

The demurrer, therefore, is sustained.