
    Union Pac. R. Co. v. Anderson.
    1. Under an agreement that one shall be paid such sum for services “as is mentioned in the annexed fee-bill,” such bill specifying in some instances a minimum and maximum sum as a fee for services performed, “ less fifty per cent, on the whole sum for such services as are rendered, and the actual cost ai wholesale prices and cost of compounding medicines used, etc., subject to the approval of the superintendent of the road and surgeon of the division,” such entire claim must be submitted for approval, and the right to recover the same depends upon such approval; it not appearing that the parties whose approval was necessary refused to act or acted fraudulently.
    2. When the question of the intention of parties to an agreement requiring claims to be submitted to persons named for approval is in doubt, all facts relating to the selection of such persons, and their connection with the subject-matter to be approved, together with the contemporaneous construction of the agreement by the parties, may be considered.
    3. When one in good faith objects to a bill presented for payment, and makes out a new bill for a reduced amount, which amount is received and such new bill receipted, this shows a settlement of a disputed claim, binding upon the parties.
    
      Appeal from Jefferson County Court.
    
    This action was commenced by Joseph Anderson against the Union Pacific Railway Company to recover for services and medicines by him rendered and furnished under the following agreement:
    “Memorandum of agreement made and entered into this 11th day of May, 1881, by and between the Union Pacific Railroad Company, party of the first part, and Joseph Anderson, M. D., party of the second part, both of Colorado, witnesseth, that in all cases of injury to employees of the said first party, and others for whom the said first party is responsible, at Golden, the said party of the second part, for and in consideration of the covenants and agreements hereinafter contained, agrees to perform all necessary surgical and medical services for the treatment of said injured persons if required-to do so, and to furnish the necessary medicines and surgical appliances for the same. The said first party hereby agrees to pay the said second party the sum for such treatment as is mentioned in the annexed fee-bill, less fifty per cent, on the whole sum for such services as are rendered, and the actual cost at wholesale prices, and cost of compounding medicines used, payable at the expiration of treatment and discharge of patient, and subject to the approval of the superintendent of the road and surgeon of the division. In all cases the said second party agrees to make reports to the said first party as may be requested by the said first party, and to use diligence and discretion in ascertaining and recording all facts bearing upon the cause of accidents, without extra charge. No indebtedness for the road shall be incurred without special permission before contracting.
    “Joseph Anderson.
    “This agreement will take effect on the 11th day of May, 1881, and remain in full force and effect until the 31st day of December, 1881.
    “H. K. Steele, M. D.,
    “Surgeon Union Pacific Railroad, Colo. Cent’l. “Approved:
    “A. A. Egbert, Supt. Colo. Div.
    “S. D. Mercer, Surgeon, etc.”
    The fee-bill mentioned in the agreement was attached thereto, and for fifty-one items of service it specified a definite sum as a fee, and for four items of service it specified a minimum and maximum sum as a fee for services to be performed. It also contained the following stipulations: “ Tra\ eling long distances to be computed by the time consumed and services performed.” “Any services not mentioned to be charged for upon a basis corresponding with this scale.” It appears from the evidence that the plaintiff rendered certain services to the defendant under said agreement, and for such services charged the minimum rate specified in said fee-bill, except in a few instances where the services were not provided for in the fee-bill, and for such services his charges were proportionate to the rates named in the fee-bill; that he presented his bills for such services to the superintendent or to the division surgeon; that the defendant tendered to the plaintiff the full amount of each bill so presented, or a less sum than the full amount, and, in case a less sum than the full amount of the bill presented was tendered, then a bill covering such charges was made out by the defendant for the amount so tendered, and presented to the plaintiff at the time such tender was made; and, with the exception of one bill, the plaintiff received the amount so tendered, and signed a receipt acknowledging the full payment of the bills so presented ' by defendant at the time of making such tender; that the amount of the bills, so presented by the plaintiff, exceeds the amount of the bills as receipted in the sum of $105.10; that the amount of the bill for services rendered to Jones and Eagan was $29.25, for which defendant tendered to plaintiff the sum of $15, which plaintiff refused to receive. The defendant offered in evidence a letter written by the plaintiff, January 12, 1882, to the chief surgeon of the company, in reply to one received from him, in which letter he states that his resignation was based on the supposition that the company wanted its surgeon to work for a pass, and, after commenting upon the requirements of the company, and their possible effect upon his business, he says: “In regard to extraordinary services, who is to be the judge 2 The surgeon in charge, and parties cognizant of the facts in the case, or the management in Omaha? Now, doctor, the fee-bill under which we have been working, with fifty per cent, off, has not, in many cases, paid me for my time and trouble and expenses, not including loss of business, at home during my absence. My bills have often been cut down twenty-five per cent, likewise. I will ask you to make some definite proposition if you still desire my services for the company, and not have it left to the option of parties who know nothing of the amount of the services rendered. If the matter is left to the judgment of those who are unacquainted with the facts, and we may judge the future by the past, everything will be indefinite and unsatisfactory for all.” Plaintiff obtained a judgment for the sum of $105.10, and defendant appealed.
    
      Messrs. Teller and Orahood, for appellant.
    Messrs. Coe and Sales, for appellee.
   Rising, C.

Counsel for appellant contend that, by the express terms of the agreement between appellant and appellee, the promise of the company to pay appellee for his services is limited by, and is dependent upon, the approval of the bills presented by appellee for such services by the superintendent of the road and the surgeon of the division. Counsel for appellee contend that, because of the fact that in some instances a minimum and a maximum fee was prescribed by the fee-bill for items of service to be rendered, it became necessary that some one should be selected to determine the proper medium in case the fee charged was above the minimum rate, and there was a dispute about it; and that, by reason of such necessity, certain officers of the company were selected as arbiters of that matter. That portion of the agreement which relates to the question raised by the contention of counsel is as follows:. “The said first party hereby agrees to pay to the said second party the sum for such treatment as is mentioned in the annexed fee-bill, less fifty per cent, on the whole sum for such services as are rendered, and the actual cost at wholesale prices, and cost of compounding medicines used, payable at the expiration of treatment and discharge of patient, and subject to the approval of the superintendent of the road and surgeon of the division.” Provision is here made for payment to appellee for services rendered and medicines furnished; the basis is given for ascertaining the amount to be charged for such services, and for medicines used; the time when such payment is made is fixed; but something is subject to the approval of the officers of the company. What is it that must be so approved? It seems clear to us, from the language used, that the matter to be so submitted for approval is the claim to be made by appellee for services rendered and medicines used. It is the entire claim that is to be submitted for approval, and not that portion of it made for services rendered for which the fee-bill prescribes a maximum and a minimum fee. There is nothing in the language used showing, or from which it can be inferred, that the claim subject to such approval is limited to items for services for which there is a minimum and a maximum fee. The services for which the fee-bill prescribes a minimum and a maximum fee are not the only instances where, under the provisions of the contract, appellee must exercise his judgment in making charges. The charge for traveling long distances is to be made for time consumed and for services performed; and for services not mentioned in the fee-bill charges are to be made upon a basis corresponding with the scale of the fee-bill. For the settlement of disputes arising upon such charges, the necessity for an arbiter is as great as in cases when a dispute arises in cases where the fee-bill specifies a minimum and a maximum fee. If it was the intention of the parties to limit the requirement of approval to appellee’s claim for services for which no fee was definitely fixed by the fee-bill, they viPere unfortunate in the use of words to express such intention. No such limit is expressed. The requirement that the matter made subject to approval should be approved by the superintendent, as well as by the division surgeon, goes to show that the limit claimed by appellee was not intended. If the items of service for which no definite and certain charge is prescribed by the fee-bill were the only matters to be submitted for approval, there would be no necessity for associating the superintendent of the road with the division surgeon; but, if the judgment of more than one person was desired, a person would have been selected whose education and experience had been such as to qualify him to act in the premises. The qualifications necessary to enable a superintendent of the road to properly perform the duties of that position would not render him qualified to correctly determine the proper charge to be made for a surgical operation. All the facts relating to the selection of the persons whose approval is required, and relating to the connection of such persons with, the subject-matter to be approved, may be considered for the purpose of ascertaining the intention of the parties to the agreement, when the question of such intention is in doubt; for the reason that it must be presumed that the parties acted consistently in providing means for the accomplishment of the end desired, unless such presumption is precluded by the terms of the agreement. It is evident that the approval of the superintendent of the road was not required because of his fitness to pass upon the question whether the charges made by appellee, for services for which no fixed charge had been agreed upon, were too large; but, as to whether appellee had -been required by appellant to render the services charged for, and as to whether such services had been actually rendered, the superintendent might be much better informed than the surgeon of the division; and we think it clearly appears from the agreement, and the circumstances of the case to be considered, that the claims of appellee as an entiret3 were made subject to approval; and among the circumstances to be so considered is the interpretation which the parties to the agreement have, by their conduct, given it; for it must be presumed that they acted in accordance with their understanding of its requirements. The acceptance by appellee of sums less than the amount claimed by him, and his acknowledgment, upon such acceptance, of payment in full for the services for which his bills were rendered, although such acceptance was under protest, is strong proof that he understood that, to make his claims valid against appellant, it was necessary for him t© have the same approved by the persons named in the agreement. That appellee so understood the agreement is also evidenced by his letter to the chief surgeon. What is said therein about not having the matter of payment for services “ left to the judgment of those who are unacquainted with the facts” has no meaning, except in connection with the idea that the writer desired some definite arrangement by which the payment for his services would not be “ left to the option of parties who know nothing of the amount of the services rendered,” and thus avoid the liability of having his bills often cut down in .the future as in the past. The fact that appellant assumed the right to cut down appellee’s bills, and to make out new bills for the same services, but for the reduced amount of the claim, which were substituted for the original bills, and were receipted by appellee, shows conclusively that appellant then construed the agreement as it now claims it should be construed.

It is claimed by counsel for appellant that, as to the receipted bills, the transaction shows a settlement between the parties of a disputed claim, and that such settlement is not in any manner impeached, and must be held binding upon the parties; and it is contended by appellee that the claims upon which payment was tendered and accepted were not doubtful, but were definite, certain and fixed, and therefore that a payment of part does not bar a recovery for the balance, notwithstanding such claims were receipted in full. The question raised by this contention only affects such claims of the appellee as were cut down by appellant. The action of appellant in cutting down such claims, with the fact that new bills for the same services, for the reduced amount, were substituted for the original bills by appellant, and presented to appellee to be receipted by him, clearly shows that appellant objected to the bills as presented. Whether such objection was well founded or not does not affect the question, if such objection was made in good faith; and it does not appear that it was not so made; so that, independent of the provisions of the agreement relating to the approval of the claims of appellee, it is shown that, as to the receipted bills, appellee is not entitled to recover for the difference between the amount of the bills as rendered and the amount received by him thereon; and upon this question there is no conflict in the evidence. Railroad Co. v. Allen, 46 Ark. 217. As to such claims, the transaction between the parties amounted to an accord and satisfaction. Berdell v. Bissell, 6 Colo. 162-165. In determining what was to be submitted to the superintendent of the road and division surgeon for their approval, we have assumed that it is well settled in this court that it was competent for appellee to contract to submit his claims to the approval of the persons named, and that his right to recover must depend upon such approval. Railway Co. v. Riley, 7 Colo. 494; 4 Pac. Rep. 785; Construction Co. v. Stout, 8 Colo. 61; 5 Pac. Rep. 627; United States v. Robeson, 9 Pet. 327. No claim is made that the persons whose approval was. to be obtained refused to act, or that they fraudulently or corruptly withheld their approval, and the only question we are called upon to pass in relation to such approval is, did appellee agree to submit his claims as an entirety to the approval of such persons ? We think he did so agree, and that, under this construction of the agreement, there is no evidence to support the judgment.

The judgment should be reversed and a- new trial ordered.

Stallcup and De Prance, CO., concur.

Per Curiam.

Por the reasons assigned in the foregoing opinion the judgment is reversed and the cause remanded.

Reversed.  