McHugh v. Philadelphia

Opinion by Eice, P. J., This action of assumpsit was founded on a written contract between the plaintiff and the defendant for grading Gross street from Media street to Lansdowne avenue in accordance with certain plans and specifications. After the work was completed the city paid the amount appearing to be due the plaintiff by the measurements (2213 cubic yards) certified in writing by the district survey- or. The plaintiff claiming that the filling done by him amounted to 3,117 cubic yards, brought this suit to recover the difference. The dispute as to the quantity of filling was carried into the trial and the conflicting evidence being oral, and there being no requests for find [552] ings of fact or conclusions of law, the court’s general finding in favor of the defendant ordinarily would have been as conclusive as the verdict would have been if there had been a jury trial. See Peoples v. Philadelphia, 62 Pa. Superior Ct. 553, and cases there cited. But it is argued that the opinion filed by the trial judge in connection with his finding shows.that the finding was not based on the oral testimony, but on the erroneous assumption that under the terms of the contract the certificate of the district surveyor was conclusive. We do not so understand the opinion. What 'the learned judge said was “Whether or not the measurements made by th.e surveyor of the district upon which payment was made were accurate, this court can have no concern, for the obvious reason that the parties agreed in their contract that the decision of the arbitrator should be conclusive.” Beading this in conjunction with the former part of his opinion the fair inference is that the “arbitrator” he referred to was not the district surveyor, but the officer designated in paragraph 43 of the specifications which he quotes as determining the manner in which disputes as to quantities shall be-adjusted. The paragraph reads as follows: “To prevent all disputes and litigation, the chief of the Bureau of Highways shall in all cases determine the amount or quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, and he shall in all cases decide every question which may arise relative to the performance of this contract on the part of the contractor, and such estimate and decision shall be final and conclusive and such estimate and decision in case any question shall arise shall be a condition precedent to* the right of the contractor to receive any money under this contract.” The validity of this agreement is beyond question: Ruch v. City of York, 233 Pa. 36; Reilly v. Rodef Sholem Congregation, 243 Pa. 528. Nor is there any doubt that the [553] question which arose here between the parties as to the quantity of filling was one of the questions upon which the decision of the chief of the Bureau of Highways was to be final and conclusive. If it be said that he made no decision, the answer is that the plaintiff could not defeat the agreement by bringing a common law action without even attempting to comply with the condition precedent: Lauman v. Young, 31 Pa. 306; Hartupee v. Pittsburgh, 97 Pa. 107 ; Citizens Trust and Surety Company v. Howell, 19 Pa. Superior Ct. 255. The assignments of error are overruled and the judgment is affirmed. Adopted by the court.