Hartupee v. City of Pittsburgh

Per. Curiam : This case ends a long litigation, involving a large amount of money. Andrew Hartupee, the appellant, contracted in the year 1872 with the city of Pittsburgh, to furnish two pumping engines for the city water works at a cost of $423,550, and to have the same completed and ready for service on or before November 15, 1873. A subsequent contract was made for two more engines at a cost of $375,000, to be completed on or before November 15, 1874. The engines were not finished within the time fixed; the city alleged that the materials used were defective, and not according to specifications. Finally, the city took possession of the engines, completed them, and refused to pay the price stipulated in the agreement. Hartupee then brought an action of assumpsit against the city to recover the stipulated price agreed upon, and was defeated upon two grounds; (a) that he had not complied with his contracts, and (b) that the matters at variance between them should have been submitted to the arbitrament of the mechanical engineer who had the control of the work on the part of the city. See Hartupee v. Pittsburgh, 97 Pa. 107. Subsequently, the case was submitted to the mechanical engineer, who made an award in favor of the city and against Hartupee. Thereupon the city brought suit on the award against David Hostetter, who was Hartupee’s surety for the faithful performance of his contract, and recovered a verdict against him of $375,000, to be released on the payment of $190,200. This case will be found reported as Hostetter v. Pittsburgh, 107 Pa. 419. The present suit was a bill in equity filed by Hartupee against the city, the object of [545] which was, (a) to set aside the award, and (5) to recover the sum of $305,370.16, being the balance claimed by Hartupee as due him under the contracts, and for extra work and material, with costs of suit. The case was heard below by the learned president of Common Pleas No. 1, as examiner and master, under the following agreement of counsel: “And now, December 26, 1888, the court having on the joint application of the plaintiff and defendants consented to sit as master and examiner in this case and hear the testimony of both sides, and the preliminary question involved, now defines said preliminary question to which the testimony shall be confined, as follows: Whether the award of Joseph L. Lowry, meehanical engineer, specified in the bill, and in favor of the city of Pittsburgh, was induced in the manner as charged in the bill, by fraud and collusion, between the said Joseph L. Lowry and the city of Pittsburgh, its agents or representatives?” It is manifest that the settlement of this preliminary question was a prerequisite to the plaintiff being beard upon the merits of his ease. The award of the mechanical engineer was a flat bar to his recovery so long as it was allowed to stand. But if the said award had been procured by fraud in which the city participated, the plaintiff had a right to have it set aside. This court so said in Hostetter v. Pittsburgh, supra, at page 435. The bill came on to be heard before the learned judge below, sitting as examiner and master, and after an exhaustive examination and consideration, the learned judge found and decreed that the allegations of fraud contained in said bill were not sustained. This is the question which now comes here upon this appeal. There are three assignments of error; the first two complain of the rejection of evidence, while the third is merely the general one that the court erred in dismissing the plaintiff’s bill. An extended discussion is not required as to either. The offers of evidence varied somewhat, but not essentially, from those made in Hostetter v. Pittsburgh, 107 Pa. 435, where this court held that they did not tend to connect the city of Pittsburgh with any fraud in the procurement of the award. The offers here, if admitted and proved, would not have connected the [546] city with the alleged fraud. They are substantially, as before observed, the same as were made upon the trial in Beaver county, where they were rejected, not because fraud was not a defence, but because they did not offer to show collusion between the city of Pittsburgh and the referee. We have examined this case with care, and with an anxious desire to see that no injustice has been done to the plaintiff, but we fail to find any legal reason why we should disturb the decree of the court below. The decree is affirmed, and the appeal dismissed at the costs of the appellant.