
    YUTZY VS. BUFFALO VALLEY RAILROAD CO.
    An engineer’s estimate of the amount due a contractor is final and conclusive unless gross mistake is shown.
    Error to Common Pleas of Somerset County.
    This was an action of assumpsit to recover for work on defendants railroad in pursuance of a written contract, one clause of which was as follows: “And it is expressly covenanted and agreed between the parties aforesaid that the monthly and final estimates of the engineer shall be conclusive between the parties to this •contract; the former for the time being, and the latter for all time without further recourse or appeal; the monthl}’- estimates of the ■engineer being, however, subject to correction by him in any subsequent monthly, or in his final estimate, for the reason that the monthly or current estimates being merely made out as a basis for payment on account will necessarily be only approximately correct; pains being taken, however, to make them as accurate as possible. And if the chief engineer deem proper at any time to revise and alter in such a manner and to such extent as he shall see fit, the monthly •or final estimate of said engineer shall be submitted to all intents and purposes in place of the estimate of said engineer ; it being, however, wholly optional with the said chief engineer, to exercise such power of revision or not. And it is further covenanted and •agreed that all extra work required, and not embraced under the items and prices above set out shall be done by the contractor at the estimate of the engineer, and said engineer shall embody in ■each monthly estimate a bill for the same made out as correctly ns possible for the preceding; these bills shall be final for such months, and the acceptance of the estimate by the said contractor shall be deemed and taken as waiving any - further claim for or on account of extra work done up to that time.” Plaintiffs nought to recover on the estimate of the engineer and also for extra work. They offered to prove that they complained that injustice had been done them because the line was chauged from its original location. That the chief engineer was willing to revise his estimate; but that company discharged the engineer, so that he could not make a revised estimate. This offer was rejected •and forms the basis of the specification of error. The engineer testified that he had made the final estimate, and also that from •“6th to 8th January, I had no desire to make another estimate.” He was discharged on January 8th.
    
      W. J. Baer & A. H. Coffroth, Esqs., for plaintiff in error,
    argued ¡that, the company by discharging the engineer rendered it impossible to make a revised estimate and cannot take advantage of their own wrong in so doing. The courts have jurisdiction of a \claim, when the under estimate of the engineer was occasioned by fraud or mistake; 1 Redfield Railways, 444, 5th edition, note. And also where the company prevent an estimate being made; 
      Ibid 452. The right to revise is allowed, though not specified in the contract; Monongahela Navigation Co. vs. Fenlon, 4 W. & S. 211. Where one party has prevented from acting an umpire whose decision was to be final; the other has his legal remedy; Reynolds vs. Caldwell, 1 P. F. Smith 298; North Lebanon Railroad Co. vs. McGrann, 9 Casey 530; Howard vs. Allegheny R. R. Co., 19 P. F. Smith 489.
    
      Messrs. Hay, Uhl and J. Cessna, Esqs., contra.
    
    The engineer made a final estimate; and it was conclusive; Monongahela Navigation Co. vs. Fenlon, 4 W. & S. 205; Faunce vs. Burke, 4 H. 469; Lauman vs. Young, 7 Casey 306; Memphis R. R. Co. vs. Wilcox, 12 Wright 161. Having agreed on an umpire plaintiffs were debarred from a suit at law. O’Reilly vs. Kerns, 2 P. F. Smith 214; Howard vs. Allegheny Valley R. R. Co., 19 P. F. Smith 489. The fraud or mistake of the umpire is not sufficient to relieve a party from the necessity of resorting to him; Reynolds vs. Caldwell 1 P. F. S. 298.
   The decision of the lower Court was affirmed on May 18, 1874, in the following opinion :

Per Curiam:

We think the offer of evidence was insufficient to take the case out of the rule stated in Reynolds vs. Caldwell, 1 P. F. Smith 298, and other cases. The experience of the State, and of canal and railroad companies, in building canals and railroads, has shown a necessity to guard well contracts for constructions, in order to protect against frauds, and false claims. The estimate for work done made by the engineer are therefore made final and conclusive by the terms of the contract. In order to overcome this wise provision the existence of gross mistakes should be clear. This offer contains no averment of such a mistake. Great injustice is not the equivalent of gross mistake, that may arise from other causes than a mistake of measurement. A revision of the measurement of the work is made by the contract to depend upon the judgment and determination of the engineer. There was no offer to show that the engineer himself deemed it proper to revise his final estimate because of mistake. His mere willingness to revise the estimate is not a substitute for his judgment and belief of the necessity of revision. In order to set aside the covenant of finality, the company were entitled to his judgment founded on a belief that a mistake had been committed. Judgment affirmed.  