#### *Kidwell v. The Baltimore & Ohio Railroad Co.

July Term, 1854,

Lewisburg.

(Absent Daniel, J.)

1. Contracts with Railroad—Construction by Parties— Acquiescence in.*—a contractor for the construction of a bridge on a railroad having received the monthly estimates based upon a particular construction of his contract withoutobjection, will be held to have acquiesced in that construction, and to be bound by it.

2. Same—Engineer’s Final Estimate—Conclusiveness of.†—The contract providing that the final estimate of the engineer shall be conclusive upon the parties to the contract, that is” a valid contract, and the estimate of the engineer, in the absence of fraud or mistake, is conclusive.

3. Same—Same—Same.—If the contractor might have refused to abide by the final estimate of the engineer, yet having submitted his charges for the work done to the engineer, and not having objected to his proceeding to make up the final *349estimate, the contractor is concluded by the action of the engineer.

4. Same—Monthly Payments In Depreciated Orders— Case at Bar.—The engineer having the right under the contract to stop the work, if the means for carrying it on should fail, and having informed the contractor that the -work must be stopped unless he would receive his monthly payments in orders which were at a discount; and the contractor having consented to receive them, he is not entitled to recover for the amount of me depreciation of said orders.

The following statement of the case has been prepared by Judge Moncure;

On the 5th of August 1839 the appellant Zedekiah Kidwell contracted with the appellees, the Baltimore and Ohio railroad company, to build and complete, in a workmanlike manner, on or before the first day of September 1840, a bridge, with stone abutments and wooden superstructure, across Iyittle Cacapon creek; all the work and materials of which were to be approved by the engineer or agent of the said company having the superintendence of the work, to entitle the said Kidwell to the compensation stipulated to be paid for the same; it being agreed that the said agent ^should have full power, in case he should believe the said work or any part thereof to be weakly, or otherwise defectively executed, during its progress. or upon its completion, whether said weakness or defect proceeded from the quality, size, or form of the materials used, or the manner of their use, to order the said weakness or defect to be remedied in any manner that he might point out, and for that purpose to order the said work or any part thereof to be taken down and rebuilt; when it should be the duty of said Kidwell to take down and rebuild the same. It was further agreed that said Kidwell should commence working upon the bridge at such time as might be designated by said agent, and at all times when required apply his force to such parts of said bridge as the said agent might indicate ; and should commence and carry on the stone work so as to prevent any delay in the progress of the graduation connected with the bridge: The said Kidwell agreed to comply with other terms which it is needless to enumerate. Ror so doing and performing the work aforesaid, the company agreed to pay at the following rates or prices, viz: Ror every perch of twenty-five cubic feet in the stone work of said bridge, four dollars, and for every lineal foot in the length of the superstructure, twenty-three dollars. The payments were agreed to be made in the following manner, viz: During the progress of the work and until its completion, a monthly estimate was to be made by said agent of the quantity, character and value of the work done during the month, or since the last monthly estimate, four-fifils of which value were to be paid to the said Kidwell, at such place as the said agent might appoint; and when the work was completed and accepted by the agent, there was to be a final estimate made of the quantity, character and value of the work, agreeably to the terms of the agreement, when the balance appearing to be due to *said Kidwell was to be paid to him upon his releasing the company from all claims or demands growing out of the agreement. And it was agreed that the said monthly and final estimates should be conclusive between the parties to the contract; unless the engineer of location and construction might deem it proper at any time to review and alter the monthly or final estimates of said agent; in which event, the estimate of the said engineer was to be substituted in place of the estimate of the agent: it was, however, to be wholly optional with the engineer to exercise such power of revision or not.

It was further agreed, that should the company be delayed by legal process, (or from want of funds caused by an inability to procure payment of the subscriptions made by the state of Maryland and the city of Baltimore to the capital stock of said company, &c.) from prosecuting the work, &c., operating to delay or hinder the completion of the work of said Kidwell, such delay or hindrance should not give him any claim to damages against the company, but should entitle him to such an extension of the time allowed for the completion of the work as should in the opinion of the engineer of location and construction, compensate for such delay or hindrance. And should such delay or hindrance amount to such an interference with the work that the company should see fit to annul the agreement, the said Kidwell should be entitled to be paid the full amount of the work actually done by him under the agreement according to its tenor, and no more.

And it was further agreed, that in case the said Kidwell should not *perform*all the terms stipulated to be performed by him, in manner and form, and within the time mentioned in the contract; or in case it should appear to said agent that the work did not progress with sufficient speed; or in case of interference with *said work by legal proceedings ; the said agent should have power to annul the contract, &c. ; when the agreement on the part of the company should become null, and the unpaid part of *the*value of the work done, (unless the contract should be annulled in consequence of legal proceedings, ) should be forfeited by the said Kidwell, and become the property of the company; and the said company should be at liberty to employ any person in the place and stead of said Kidwell.

Annexed to the said contract, as part thereof, is a paper entitled “Manner and condition, according to which the work must be bid for and executed.” In this paper, it is among other things stipulated as follows: “The bridge is to be built of large sized, hard and durable stone, with good natural beds, undressed, except the corner and coping stones, which shall be rough hammered.”—“The foundation to be *350placed upon solid rock, timber, or other material, as may be directed by the engineer; and all the work both under and above water, except in the cases mentioned below, to. be laid without mortar, and with large stone well bedded and bonded. The piers” “shall be laid in good mortar made with common lime, above the low water line.”—“The preceding general description” “will be subject to modification, &c. ”—“The bids per perch of twenty-five cubic feet, for bridge and culvert work and dry walling, will include cost of digging and draining foundations, scaffolding, centreing, and all other expenses necessary to the completion of the masonry according to the plans.”'—'“The wooden superstructures to be built of white or yellow pine timber, as the one or the other may be most cheaply obtained, of the best quality, with a few sticks of white, oak in each truss frame, according to the plan exhibited in the drawings and models in the company’s office in Baltimore. The cast and wrought *iron of the skew-backs, bolts, &c., to be of good quality, free from all flaws and other defects, and submitted to such tests as the engineer may require. The bid for the superstructures to be by the running foot, and to include scaffolding, materials and workmanship of every kind, excepting painting the bridge and laying the track on the floor.”—“The quantities of masonry and bridging, as here stated, may b.e changed, at the pleasure of the engineer, by alterations in the grades, curves or plans of any part of the work, and the calculations of quantities will be made anew for final settlement with the contractors; it being understood that if by such changes the average haul of materials is lengthened, or the difficulties of the work are considerably increased, the contractor shall be equitably allowed therefor by the engineer.”—“The whole work shall be done under the superintendence of the engineer, in accordance with the plans which will be furnished.”

On the 10th of December 1849 the appellant made a contract with the appellees for the construction of a bridge across the north branch of the Potomac river; which contract was similar to the one before mentioned, except that the work was to be completed on or before the first day of January 1841, and the price to be paid for it was four dollars and ninety-four cents (instead of four dollars) per perch for the stone work, and twenty-five dollars (instead of twenty-three dollars) per lineal foot for the superstructure. The estimated quantity of materials' required -for each bridge was stated in the contracts respectively, and of course very much varied; the bridge across the north branch being much longer than that across the little Cacapon.

The bridges seem to have been commenced shortly after the contracts were entered into respectively; but not to have been completed until, June 1842. During the progress of the work, monthly estimates and payments *were made, and when the work was completed and accepted, final estimates were made, according to the terms of the contracts; from which final estimates it appeared that the value of the work done:

On the North Branch bridge was $49,388 41

On the Kittle Cacapon bridge was 8,649 70

Making together, ... $58,038 11

After the final estimates were made, the company appear to have been always ready and willing to pay the. balance due thereon to Kidwell, who, however, received only a portion of the said balance.

On the 25th of June 1842 Kidwell exhibited his bill in chancery against the company in the Circuit court of Hampshire, complaining that .the agents of the company, to whom such power was reserved, frequently and materially varied the manner, quantity, quality and finish of the work which he had contracted to do; sometimes requiring him to pull down parts of the work after the same was built according to the instructions of the resident engineer, or engineer of the division, sometimes requiring: additional work not contemplated by the terms of the contracts, requiring mortared masonry instead of dry masonry; and especially and most essentially in requiring him to make ranged and dressed work masonry instead of plain natural bedding, and to furnish and use, in the rock masonry on both bridges, cement lime instead of common lime, and in many other respects exacting of him labor and expense not contemplated by the contracts; all of which would be seen by reference to exhibits No. 3 and No. 4, filed with the bill: Also complaining that in the progress of the work the company refused to pay him the monthly estimates, made by their engineer and agent, in par funds, but required him to receive, and his necessities often compelled him to accept, what is commonly called railroad orders, as so *much money;. and that the company, by its officers and agents, charged with the duty of making the monthly estimates, did not make them according to the value of the work done and materials furnished, but according to the contract, or what should have been the contract prices, if no alterations had been made in the manner in which the work was to have been done : And claiming that the company were indebted to him in a very large amount, for extra work done as aforesaid, deficiencj’' in the monthly estimates, and loss upon railroad orders, with interest thereon : And praying for suitable specific and general relief.

In September 1842 the defendants filed their answer; in which they saj' that upon the completion of the work the final estimates were made up by the engineer or agent designated for that purpose in the contracts; that at the time they were made up, the complainant expressed himself fully satisfied with the same and the different items thereof; and that by the terms *351of the contracts the said estimates are conclusive between the parties. The defendants then respond to the different items of the comjilainant’s claim, as set forth in his said exhibits Nos. 3 and 4. In regard to the principal item of the claim, to wit, for the masonry, charged in the said exhibits at nine dollars per perch, instead of the contract prices of four dollars and four dollars and ninety-four cents per perch, making a difference in this single item of thirty-one thousand three hundred and thirteen dollars and twelve cents, the defendants say that in whatsoever respect this masonry varies from the specifications in the contract, it was not varied by directions of the engineer of the defendants, but of choice by the complainant himself, in order to avoid complying with the specifications. The contractor was bound by the contract to furnish stone with good natural beds, and that was all the defendants wanted. When he did not get *stone with good natural beds he was offered the alternative to dress them; which he accepted and assented to without complaining to any of the engineers of the defendants; and the variations from the specifications were thus permitted for the accommodation of the complainant himself. In regard to the next largest item of the claim, about which there is any controversy, to wit, for laying three thousand seven hundred and eighty-seven perch of stone in cement mortar at one dollar per perch, the defendants say that the cement mortar w'as used by the complainant to avoid the expense of obtaining stone with good natural beds, or dressing the beds of the stone to bring them within his specifications. The cost of dressing the beds, if the stone be rough, is greatly lessened by the use of the cement mortar; and in this instance the expense to the contractor was greatly lessened. The saving in the dressing of the beds much more than countervails the expense of mixing and using the mortar.

In regard to the last item of the claim, to wit, for loss on city stock, two hundred and thirty-one dollars: The defendants say that they had power to annul the agreement, provided the want of funds prevented them from prosecuting the work; that they would have been unable to prosecute the work unless the contractors would agree to receive the stock orders of the city of Baltimore in payment of their estimates; and that this fact was communicated to the contractors, including the complainant, who agreed to receive and did receive, the said orders in payment of his demands against the defendants. They aver that the final estimates were made up with the complainant’s assent and co-operation; that he brought his bills and papers to the railroad office in Cumberland, to enable the engineers to make such equitable allowances as they were empowered under the contracts to make, in *order to attain evenhanded justice between the parties in matters which could not be foreseen; and that the engineers made the allowances; many of them at the suggestion of the complainant, who signified his acquiescence in them, and said he had no objection to anything the engineers had done, but on the contrary assured them of his full satisfaction with, all their conduct. But had the complainant not thus assented to the allowances made to him, the defendants insist that, by the express provisions of the contracts, the allowances thus made are final and conclusive between the parties, unless the complainant can show mistake or fraud on the part of the engineers; which the defendants presume will not be attempted.

Finally, they insist that the complainant is entitled to nothing more than is allowed in the final estimates ; and for that amount, they say they are, and always have been, willing to settle.

In June 1843 the complainant filed an amended bill, in which, among other things, he stated that before and at the time the bids were made, upon which the contracts were based, the said company, by their agents and officers, declared that suitable materials for the erection of the bridges which would be required to be built, were to be had convenient to the line of the road and the sites of said bridges; that such declarations were made to the public and to the bidders to induce them to offer for the work at low rates; yet when the stone for the masonry was being procured, that said agents condemned it as unsuitable for the masonry of the bridges contracted for by the complainant, unless first hammered and dressed and prepared at great labor and expense to him; and when so prepared, said company have fathed and refused to make him any allowance for the labor and expense thus exacted of him: which course of proceeding, he charged, was calculated to deceive and mislead, and did in fact *deceive and mislead him, and was a gross fraud upon him, if, as said defendants contend, under the stipulations of said contract, the complainant is not entitled to receive additional compensation for having, under the orders of the officers and agents of said company, put up ‘ ‘ranged work,” instead of “rubble work,” for which he bid and contracted. The complainant further charged, that at the time of the making of the contracts, and during the progress of the .work, Atkinson the agent, and Batrobe the engineer of location and construction, were stockholders of said company, and consequently, not impartial or disinterested; that complainant was not aware of that fact, nor that during the progress of the work said Batrobe would be such engineer, or said Atkinson would be the agent having charge of the work; that the defendants did not give him this information, as they ought to have done; and that he was advised, that for this reason alone, if no others existed, the said estimates cannot be binding and conclusive upon him.

In September 1843 the defendants filed *352their answer, in which, among other things, they admit that said Batrobe, at the time of entering into the contract by the complainant, was a stockholder in the said company; but deny that he was so at the time the final estimates were made up for the building of the said bridges; and also deny that the said Atkinson, the engineer, having charge of the work during the whole time it was in progress, and whose duty it was to make the monthly and final estimates, ever was a stockholder in said company. They aver that the complainant, at the time he entered into the contracts, knew that said Atkinson was the engineer who would have charge of the work, and that said Batrobe was and would be the engineer of location and construction. They deny that they did by their agents and officers state that suitable materials for the erection of *the bridges were to be had convenient to the line of the road and the sites of the bridges. And they positively deny that any misrepresentation, deceit, or fraud, in reference to the stone for said bridges, or to any other matter connected with the said contracts, was practiced upon the complainant by the defendants, or any of their agents or engineers.

A great many depositions were taken in the case, but they are sufficiently noticed in the opinion which follows.

An interlocutory decree was pronounced in the case on the 11th of September 1844, and another on the 12th of April 1845; and a final decree on the 30th of December 1845. By these decrees, the court, being of opinion that the final estimates or certificates of completion of the two bridges in controversy, as made out by the engineer of the said company and filed in the cause, are under the terms of the contracts, final and conclusive between the parties as to the work done and materials furnished under the provisions of said contracts;” and being also of opinion that the complainant was entitled to no relief as to the charge in the bill that a portion of the amount paid to him upon these contracts, was paid in depreciated stock orders of the city of Baltimore, it appearing to the court that such payments were made with his consent, and that there was no sufficient proof in the cause that the said company, as to this transaction, acted mala fide, decreed that the complainant recover against the defendants eight thousand five hundred and eighty-seven dollars and fifty-eight cents (being the balance ascertained to be due on account of the said final estimates), with legal interest on eight thousand five hundred and fifty-nine dollars and five cents, part thereof, from the 10th of April 1845 till paid, and thát each party pay his own costs. Rrom these decrees the complainant obtained an appeal.,

*Grattan and Fry, for the appellant.

Andrew Hunter, for the appellee.

*

Contracts—Construction by Parties.—In Knopf v. R. F. & P. R. Co., 85 Va. 778, 8 S. E. Rep. 787, the principal case is cited to the point that the practical construction which the parties put upon the terms of their own contract is not only to be regarded, but that it must prevail over the literal meaning of the contract. See also, Bank v. McVeigh, 32 Gratt. 530, and foot-note; District of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. Rep. 585; Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. Rep. 1057, 1062.

†

Contracts of Railroads—Engineer’s Estimates—Conclusiveness of.—In support of the proposition laid down in the second headnote, see the principal case cited in B. & O. R. Co. v. Polly, etc., R. Co., 14 Gratt. 469; Iaege v. Bossieux, 15 Gratt. 101; N. & W. R. Co. V. Mills, 91 Va. 643, 22 S. E. Rep. 556 (dissenting the opinion of Buchanan, J.); *foot-note*to Condon v. South Side R. Co., 14 Gratt. 302; Wood v. Chicago, etc., R. Co., 39 Fed. Rep. 53.

In James River, etc., Co. v. Adams, reported as a note at the end of James River, etc., Co. v. Adams, 17 Gratt. 427, 441, it was argued that there is a difference between *monthly*and *final*estimates in regard to their effect as evidence; and that while the latter are conclusive according to the decision of the principal case, the former are not. But Moncure, J., delivering the opinion of the court, held that, whether either are conclusive or not, depends upon the contract, which may make either or both conclusive, according to the intention of the parties.

MONCURE, J.

after stating the case, proceeded:

The principal subject of controversy in this case is, the amount of compensation to which the appellant is entitled for the masonry of the two bridges made by him for the appellees. He charges nine dollars per perch for dressing, ranging and laying the stone, besides making other charges connected with the masonry; whereas the price stipulated in the contracts and allowed in the final estimates, for the entire masonry, is four dollars per perch for that of one of the bridges, and four dollars and ninety-four cents for that of the other. The difference between the amount charged by him, and the amount allowed in the final estimates, for the masonry, is upwards of thirty-five thousand dollars.

The appellant contends that the masonry required by the contracts was “rubble work,” whereas he was required by the appellees to do and .according^ did do “ranged rock work;” that though the contracts required that the stone should have “good natural beds,” and be “well bedded and bonded,” yet those terms should be construed in reference to all the surrounding circumstances, and especially in reference to the quarries in the neighborhood of the bridges, and the, nature and quality of the stone they afforded; that the stone of which the bridges were constructed had “good natural beds,” and might have been “well bedded and bonded,” within the meaning of the contracts, by the use of the hammer merely. That if the work required by the contracts to be done was worth four dollars and four dollars and ninety-four cents per perch, the work required by the appellees to be do.ne, and actually done, was, in the same proportion, worth nine dollars per perch; and that therefore *he is entitled to the latter price. On the other hand, the appellees contend that the stone of which the bridges were constructed had not “good natural beds,” and could not have been “well bedded and bonded,” within the meaning of the contract, by the use of the hammer merely; that they had a right to require, and only required, the work to be done according to the contracts, but as it could not be done with the stone which was used, they were willing that it might be done in the manner in which it was done; that the change in the manner of doing the work was no benefit to them, but an accommodation to the appellant, who was thereby enabled to do it on better terms than he could have done it according to the contracts; that he assented to the change, and did not complain of it to any of the engineers; that the work actually done was but “rubble work,” though of a superior quality, and was not worth more than the contract prices; and that therefore he is entitled only to the contract prices.

The evidence is very conflicting as to the meaning of the technical terms used in the contracts, the character of the work thereby required, and the character and value of the work actually done. It would be difficult for the court to decide upon this evi*353dence without the aid of a commissioner or a jury: But it is unnecessary in this case to do so. The appellees presented to the appellant the alternative of doing the work according to their construction of the contracts, or of doing it as it actually was done; and he elected the latter. He knew that they considered him to be doing the work at the contract prices; and yet during the whole progress of the work, which continued for about two and a half years, he never gave them notice that he would claim a higher compensation. On the contrary, he received from time to time, without objection, the amounts awarded him *in the monthly estimates, though in all of them the work done was charged at the contract prices. Rdgerton, a resident engineer, proves that he had a conversation on the subject with the appellant soon after the work was commenced. The appellant í ‘frequently alluded to the character of the work as being superior to what he was required to do by the contract. He was repeatedly told, if he thought so, to discontinue the work until the question could be settled; to do no more until that matter should be finally settled.” Atkinson, the division engineer, proves that the appellant never complained to him that he was required to do the work in a different style from that required by the contracts; on the contrary, deponent being told that appellant was complaining to others, asked him if he had any complaint, and he answered very positively that he would never have any controversy with deponent. Batrobe, the engineer of location and construction, proves that if he had been apprised of any intention on the part of the appellant to demand extra compensation for his work, he would immediately have had a communication with him on the subject, and have taken measures to put an end to any such expectations. Deponent is satisfied that at the time the appellant got fairly under way with his job, which was in the summer of 1840, he the deponent could have procured the work to be done precisely in the style in which the appellant then proposed to do it, and has since done it, at a price not exceeding that of his contract.

Under all these circumstances, I am of opinion that whatever may be the true construction of the contracts, the appellant acquiesced in the construction placed upon them by the appellees, and is concluded by such acquiescence from claiming a higher compensation for the masons than the prices stipulated for in the contracts, and allowed in the final estimates. *1 am also of opinion that the final estimates are conclusive not only in regard to the masonry, but also in regard to all other items of the appellant’s claim, except two items of small amount, which will be hereafter noticed. The contracts expressly provided that when the work was completed and accepted, final estimates should be made by the agent of the company, of the quantity, character and value of the work agreeably to the terms of the contracts, which final estimates should be conclusive between the parties, unless reviewed and altered by the engineer of location and construction; and that the balance appearing to be due to the contractor should be paid to him upon his giving a release to the company of all claims or demands whatsoever, growing in any manner out of the agreement. The final estimates were made according to the contracts, and have not been reviewed and altered by the engineer of location and construction : Why then are they not conclusive? The counsel for the appellant contended that such provisions are against the policy of the .common law, and have a tendency to exclude the jurisdiction of the courts, which are provided by the government with ample means to entertain and decide all legal controversies. Story on Partn. *I*215, and cases cited in the notes. The doctrine relied on refers to agreements to refer disputes to arbitration; such as a stipulation, usually inserted in articles of partnership, that disputes and controversies between the partners shall be referred to arbitrators named in the articles, or to be named by the respective partners. It may well be questioned whether the provisions of the contracts in this case for the final estimates come within the influence of the doctrine relied on. They seem to stand on higher ground than mere agreements for future reference; and to be substantial and irrevocable parts of the contracts in which they are embodied.

But waiving the decision of that *question, and conceding for the purposes of this case, that these provisions are in effect agreements for future reference, and are governed by the doctrine referred to, I am still of opinion that the final estimates are conclusive. “The maxim often quoted, says Russell on Arbitration 103, 104, 63 Law Libr. that an agreement to refer is not binding, and cannot deprive the court of its jurisdiction, seems sometimes to have been misunderstood.”—“In one sense, it is true, such an agreement may be said not to be binding, for it cannot be pleaded in bar to an action in respect of the matters intended to be referred, and so does not oust the court of its jurisdiction;” and it is very clear that equity will not specifically enforce it. “But in another sense, it is binding, for there is nothing illegal in such a contract; and when it is acted on, and an award has been made, the jurisdiction of the courts over the matter decided by the arbitrator is gone, and all that the court have to say is, whether the award is good or not.” Wellington v. Mackintosh, 2 Atk. R. 569; Hill v. Hollister, 1 Wils. R. 129; Halfhide v. Fenning, 2 Br. C. C. 336; Mitchell v. Harris, 2 Ves. jr. R. 129; Thompson v. Charnock, 8 T. R. 139; Street v. Rigby, 6 Ves. R. 815; Waters v. Taylor, 15 Id. 10; Cleworth v. Pickford, 7 Mees. and Welsb. 313, Lord Abinger, C. B. See the American cases cited in 2 Bro. C. C. 270, note (a) Perkins’ edition.

According to the doctrine as thus laid down, even if the final estimates had been *354made without any co-operation on the part of the appellant, or further assent from him than was given bj’’ his becoming a party to the contracts,. they would have had the effect of final awards, and been conclusive as such. In this case the appellant not only made no objection to the action of the agent in making the final estimates, nor any attempt to revoke his powers to make them, but actually appeared and exhibited his claims against the *company before the engineer, who allowed-some and rejected others, in whole or in part; and the appellant seemed at first to acquiesce in the final estimates which were made. These estimates were made by the resident engineers, with the concurrence of the division engineer. Rdgerton, the resident engineer at the North Branch bridge, says that the appellant never expressed any dissatisfaction with the monthly estimates, and when deponent gave him a copy of the final estimate, he' appeared to be fully satisfied with it, as far as deponent was concerned, and expressed his assent to all the particulars therein. Chiffelle, the resident engineer at the Bittle Cacapon bridge, says that in making out the final estimate the most liberal allowance which truth and equity could have dictated, was made to the appellant. Atkinson, the division engineer, says that he never heard the appellant make any specific objection to any,of the monthly or final estimates. Appellant sometimes asked if the company could not allow more. With regard to the final estimates, deponent took particular care to learn his views, made all the allowances that were required, and supposed he had removed all grounds of complaint, and had made the estimates satisfactory. In order to make up the final estimates and remove all sources of complaint, deponent requested the appellant to remain and come to deponent’s office in Cumberland, and give deponent notice of all extra work that he supposed he had done on the bridges, or under any other head for the company, for which he had not been alreadj' paid. In consequence of this request, the appellant did remain in Cumberland, calling at deponent’s office frequently while the latter was engaged in making up the items, answering such questions as were asked him, and by his conduct satisfying deponent that he considered every ground of complaint was removed. Deponent’s reason for requesting the appellant to be ^'present was, that under such extensive contracts extra charges which were equitable might possibly escape the notice of the engineers, and that deponent wished the appellant to suggest such, if any there were. Told him this was deponent’s •design, and had the benefit of his suggestions accordingly. Has no recollection that he objected to any of the items. When deponent handed him the final estimate of the North Branch bridge, i. e. the amount made up in dollars, the appellant said, good naturedly, as deponent supposed, “Is that all?” The impression made on deponent’s mind was that he was going to,the office to receive the balance due him according to the estimate.

Some of the testimony of the appellant is to some extent in conflict with the foregoing testimony of the appellees, but does not materially alter the case. Better’s testimony tends to prove that the resident engineer, Rdgerton, obtained from the appellant bills only for such “extra work as was occasioned by the mistakes of the engineer, and not for all the extra work. But A. *G.*Kidwell says that he took a great many of the bills for extra work to the engineers. They received a part, rejected a part, and curtathed the amount of a good many of the bills. Bdgerton made out the final estimate, and showed it to the appellant in deponent’s presence. The appellant complained of a good many of the amounts not being large enough, and asked if they were not going to allow for laying the masonry in cement mortar, and cutting and dressing the stone. Mr. Atkinson said he could not allow it, because Mr. Batrobe told him he would not allow it. Davis says, Mr. Atkinson showed the final estimate to the appellant in the presence of deponent, in the railroad office in Baltimore. Thinks it was upwards of eleven thousand dollars. Appellant asked Atkinson if that was all he was going to do for him. Atkinson said, “Yes, and you may be thankful to get that;” and appellant said he would not take it.

*Rrom all the testimony on both sides, it is manifest that the appellant submitted all his claims arising out of the contracts, or on account of the work done by him for the company, to the consideration and decision of the engineer: And upon every principle of law or equity which is applicable to the case, I think the final estimates of the engineer are conclusive; unless they can be avoided on the ground of fraud or mistake. Has fraud or mistake been shown? is therefore the question next to be considered.

In neither of the bills, original or amended, is any fraud imputed to the engineers in making the final estimates. The original bill contains no allegation of any fraud whatever. The amended bill seems to have been filed mainly with the view of supplying this defect; and charges, in effect, that before and at the time the bids were made upon which the contracts were based, the said company, by their agents and officers, falsely and fraudulently represented to the public, and to the bidders, to induce them to offer for work at low rates, that suitable materials for the erection of the bridges were to be had convenient to the line of the road and the sites of the bridges. This charge is positively denied in the answer to the amended bill, and is unsustained by any evidence whatever.

The amended bill also charges that when the contracts were made and during the progress of the work, Batrobe and Atkinson were stockholders of the company, and therefore not impartial or disinterested; that the appellees did not inform the ap*355pellant of this fact as they ought to have done; and that he was not aware of it. The appellees in their answer admit that Fatrobe was a stockholder when the contracts were made; but deny that he was one when the final estimates were made, or that Atkinson ever was one. The answer on this subject is sustained by the evidence ; except that Atkinson says he has had a few shares of *stock at different times, but had none he believes while the North Branch bridge was in progress. The only stock held by him since 1838 was three shares held in trust for another for not more than a year, and then sold in November 1842.

The final estimates, as before stated, were made by the resident engineers, and concurred in by Atkinson the division engineer. I do not think their validity is affected by the fact that when they were made Fatrobe had been a stockholder, and Atkinson was a stockholder in the character of trustee for another, without having, himself, any interest in the subject. Whether, if they had been made by an engineer who, at the time of making them, was a stockholder in his own right, they would have been invalid merely on that ground and in the absence of fraud, is a question which does not arise, and is therefore not intended to be decided.

The answer to the amended bill positively denies fraud of any kind on the part of the company, their agents and officers, and the evidence affords no proof of any such fraud in the transaction.

As to the ground of mistake: If either of the bills contains any charge, certainly the evidence affords no proof of any such mistake on the part of the engineers as can invalidate their final estimates. There is no mistake of law or fact apparent upon the face of the estimates ; and the engineers who made them, testify that all the claims of the appellant against the company, on account of the bridges, which were just and right, were allowed therein.

On this subject, see 2 Story’s Eq. Jur. *§*1453, 4, 5 and 6, and Russell on Arbitration 242, et seq. 63 Law Libr.

The final estimates were intended by the parties to be, and are, conclusive in regard to all work done and materials furnished by the appellant in the construction o£ the bridges, including all extra work. In this "x'respect, the case differs from that of Dubois v. The Delaware & Hudson Canal Company, 12 Wend. R. 334, relied on by the appellant’s counsel. All the items of the appellant’s claim in this suit appear to be for work done by him in the construction of the bridges, except two items of small amount, before referred to. One of these is for building two cattle stops; and is proved to have been paid. The other is for loss on city stock; for which I think the appellees are not responsible; the appellant having agreed to receive the stock at par.

I think there is no error in the decrees for which they ought to be reversed, and am for affirming them.

The other judges concurred in the opinion of Moncure, J.

Decree affirmed.