Sicilian Asphalt Paving Co. v. City of Williamsport ( 1898 )

Opinion bv

Mr. Justice Fell,

The principal question raised by the assignments of error is whether the city engineer and the members of the highway committee were agents of the city merely to inspect the work as • it progressed, or were arbiters finally to determine whether the contract had been complied with. The agreement is obscurely worded, and contains no clear expression of the intention of the parties on the subject. The ordinance, advertisement, proposal and specifications are all made parts of the contract, and an intention which might have been expressed in a few words must be ascertained partly from expression and partly by inference from a long rambling agreement.

The ordinance authorizes the highway committee to appoint inspectors of the work, and it directs the city engineer personally to supervise the work, but it expressly provides that no waiver of performance or acceptance of any part of the work by the inspectors or engineer “ shall bind the city, unless the same be ratified and accepted by the highway committee.” Payment for the work is to be made on acceptance by tlie committee, and the guarantee for ten years commences with the date of acceptance by the committee. By the specifications the committee and the engineer are empowered to direct the work, to discharge incompetent workmen employed by the contractor, to reject materials, to determine the amount due and to settle all disputes which may arise as to tlie meaning of the specifications, and upon these subjects their decision is to be final and conclusive. The provision that the inspection and approval of the work by the inspectors and the engineer shall not bind the city, and that it shall not be bound unless the highway committee ratifies the approval of these officers, gives rise to the implication that tlie acceptance by the committee is to bind the city. Other provisions of the contract imply that the acceptance by the committee was to be conclusive, and not merely a condition precedent in the nature of preliminary proof without which tlie contractor could not recover. Taking the contract as a whole we are not satisfied that tlie construction given by the court is erroneous. No collusion was alleged, and the fullest opportunity was given to show that there liad been fraud or imposition practiced by the contractor.

It is true, that generally tlie cases in which estimates and decisions of engineers have been held to be conclusive rest on a positive stipulation in the contract, but a necessary implication may have all the force of a positive stipulation. In this case the final decision and the acceptance were not left to the defendant’s engineer, but to a committee of councils which was charged with the duty of constructing tlie work, and which represented the city in that regard. If the construction of the contract by tlie court was correct the case is governed by Hartupee v. Pittsburg, 131 Pa. 535, and Bowman Bros. v. Stewart, 165 Pa. 394, and the line of cases of which they are a part.

No question as to the form of tlie certificate of the city controller was raised until the testimony on both sides had closed and the case was about to be submitted to the jury. No objection to the validity of the contract was suggested in the proceedings preliminary to the trial, and it was offered in evidence and admitted without objection. The objection was first made at a time when it was too late for the plaintiff to show ratification. In City of Erie v. Moody, 176 Pa. 478, it does not appear that objection to the execution of the contract was first raised by a point submitted for charge, and that proceeding was by the city to collect an assignment against a property owner whose liability did not depend on contract or consent, but on the strict observance of legal requirements. In this case a defective certificate would not have been necessarily fatal to the plaintiff’s case, and if the objection had been made at the proper time it might have been successfully met. The city solicitor did not join in the defense based on this ground, and any objection to the form of the certificate was properly considered as having been waived.

The judgment is affirmed.