213 Ky. 199
Court of Appeals of Kentucky.
Feb. 9, 1926.
Rehearing Denied March 26, 1926.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by S. T. Jackson and another against the Kanawha-Knox Coal Company.
Judgment for plaintiffs, and defendant appeals.

The Kanawha-Knox Coal Company needed railroad tracks and a tipple for the purpose of shipping its coal, and make a contract with S. T. and J. M. Jackson for the work. This contract was in writing. Afterwards, by a parol agreement, they were employed to do, and did, other work outside of the original contract. They brought this suit against the company to recover the balance they alleged to be due them. The company controverted their right to recover the amount sued for, and pleaded various items of damages as a counterclaim. On final hearing there was a judgment in favor of the plaintiffs for $5,966.07, with interest and cost. The coal company appeals.

The ground chiefly relied on for reversal is that the court did not give proper effect to the following clause in the written contract:
"It is understood and agreed by and between the first and second parties to this contract that the party of the first part will advance to the parties of the second part one-fourth (1/4) of the estimated amount of work done on the grading from time to time, providing the work is progressing in a satisfactory manner. It is fully understood that the said first party's engineer's (Mr. Lee) estimate is to be the basis of any advancement made by the party of the first part to said parties of the second part, and that the said engineer's measurements, when the grading is completed, shall be the basis of final settlement."

The proof for the plaintiffs is to the effect that on June 7th, the engineer examined the work they had done, accepted it as complying with the contract and directed them to get out, and this they did; that the engineer never made to them any estimate of the work. The proof for the defendant shows that on June 28th the engineer wrote the coal company a letter inclosing his final estimate, showing that the work only amounted to $3,958.20. But this letter was not sent to the plaintiffs, and they did not know anything about this estimate until some time after the suit was brought, when they were shown a copy of the letter, and, as they say, were then told by the engineer that he had been instructed by the coal company not to let them know what his estimate was. The question presented is, Are the plaintiffs concluded by the final estimates of the engineer? In 6 R. C. L. p. 963, after a discussion of the decisions on the subject, the rule under one line of the authorities is thus stated:
"But it has been said that to make conclusive the decision or certificate of an architect or engineer requires plain language in the contract, and that an estimate of the work done or amount due is not conclusive, in the absence of a provision in the contract to that effect. Under this view, a condition in a contract for work on a railroad that the amount of work performed under the contract shall be determined by the measurements and calculations of the engineer in charge amounts to nothing more than a provision for a means of determining the amount of the work."

Clearly this should be the rule where the person who is to make the estimate or measurement is in the employment of the obligor in the contract, for it is not to be presumed that the obligee intended to make the obligor's measurements conclusive on him, in the absence of clear language in the contract to this effect. The provision that "the said first party's engineer's estimate is to be the basis of any advancement made" does not mean that the obligor was not to pay for any work done that was not estimated. It only fixed a basis for the payments to be made as the work progressed. The provision that the "engineer's measurements when the grading is completed shall be the basis of final settlement" only provides the basis on which the settlement is to be made, that is, the beginning point of the settlement; there being nothing making these measurements conclusive. If this was the meaning, there would be nothing to settle but the amounts paid on the work. That is not the ordinary meaning of a provision for a final settlement. The contract provides for a final settlement by the parties, and it simply provides a basis on which and on other facts they are to make the settlement. To construe it otherwise would be to hold that the obligee by the contract left it to *928 the obligor to measure the work and determine what he should be paid, for Lee was simply one of the company's men, and wholly controlled by it.

The matters in issue, both under the petition and on the counterclaim, were fairly submitted to the jury by the instructions of the court, and the verdict of the jury is not palpably against the evidence. On the whole record no error is perceived to the prejudice of appellant's substantial rights.

Judgment affirmed.

Ky.App. 1926.
280 S.W. 926, 213 Ky. 199


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