Mr. Justice Mercur
delivered the opinion of the court, May 2d 1881.
This contention may be considered under turn main propositions. The one, whether the plaintiff proved a substantial fulfilment of his contracts; the other, whether the questions in dispute should have been submitted to the mechanical engineer for final decision.
1. Thé agreements were in writing and under seal. The first was executed in August 1872; the latter in September 1873. In each contract, the plaintiff agreed to furnish the labor and materials, and construct, deliver and set up in all respects, complete and ready for the service required of them, on specified grounds of the city, two graduating double cylinder plunger pumping engines, each of the dimensions, designs and materials explained and exhibited in accompanying specifications and drawings, which were declared to form a part of the agreement, the same as if embodied therein. The specifications, inter alia, declared “ all of the material used in the construction of the machinery to be of the very best. The iron castings to be sound and perfect, and-made of iron that will sustain a tensile strain of twenty-five thousand pounds to the square inch. All the wrought-iron forgings for shafts, connecting-rods, cam-rods, wrists, stretchers and bolts, to be made of the best scrap or Juniata iron, that will sustain a tensile strain of sixty thousand pounds to the square inch.” The form of each contract was substantially in the same terms. The pair mentioned in the first contract ivas to be completed by the 15th November 1873; the other pair by the 15th November 1874. After the execution of the second agreement, the work for both pairs of engines Avas prosecuted together. The sum which the plaintiff was to receive under both contracts, was $798,500; [117]*117but be claimed the additional sum of §100,000 for extras. He has been paid §593,206.84, leaving a balance of over §300,000 still claimed by him.
In July 1878, the first pair of engines was tested and found to he defective, although one of them was occasionally used thereafter. In December following, the other pair was so far advanced as to admit, of its being used to some extent in pumping water, but was not fully completed.
The contracts specified that approximate monthly estimates of work completed should be made by the mechanical engineer of the board of water commissioners, and eighty per cent, thereof paid. After the faithful erection of the engines to the satisfaction of the engineer, and after their working was found satisfactory, all the residue was to he paid, except ten per cent., which was to be retained until the expiration of twelve months thereafter. During this time of probation, the contractor was to maintain them in good working order and repair. The contracts further declared, “ On condition of the true and faithful performance of all the requirements of the agreements and the specifications hereto annexed,” the city agreed to pay the gross sum named.
It was authorized for certain causes specified, to declare the contracts forfeited; and then in a subsequent clause it was declared, in case of a forfeiture for any of the causes mentioned, or in case of failure to perform and satisfy the other conditions and obligations of the contracts on due notice given to the plaintiff by the mechanical engineer, the contract might be declared null and void, and the city might contract with other parties for the completion of the work.
In February 1879, after due notice to the plaintiff and demand of possession, the city, under claim of forfeiture, took possession of the works in their unfinished condition, and refused to pay the price stipulated in the written agreements. Thereupon the plaintiff brought this action, alleging substantial performance, and waiver. The plea denied the averments. After the plaintiff closed his evidence, the court ordered a compulsory nonsuit, and refused to take it off. These are the errors assigned.
As the agreement of the city was to pay only “ on condition” of performance of all the obligations assumed by the plaintiff, as an entire contract, he was bound to prove its substantial fulfilment. The character, quality and tensile strength of the iron were of vital importance, and, as we have shown, were stated in the agreement in clear and unmistakable language. On the trial, the plaintiff gave no direct evidence that any of the iron or materials were of the kind and quality stipulated; nor that the city expressly waived any obligation relating thereto. He relied on the action of the mechanical engineer, and his monthly certificates during the progress of the work; and the possession taken by the city [118]*118and its subsequent use thereof, to show assent to the kind used or waiver of the kind required. It is true, it has been held in some eases, where the work is done under the supervision of the engineer of the owner, that changes in the agreed manner of doing the work may be assumed to have been assented to by him, and bind his principal: Danville Bridge Co. v. Pomroy and Colony, 3 Harris 151. Yet in a suit brought on a written contract to furnish materials and build a canal-boat, the fact that the person for whom it was being built, was present when the contractor made changes from the specifications in the contract, creates no presumption that the owner waived a performance of the written contract: Young v. White, 5 Watts 460. This contract in writing being in behalf of a municipal corporation, a due regard to public rights furnishes a strong reason for holding, that no implied waiver of the terms of the contract shall be presumed from the presence of the mechanical engineer. His monthly estimates and certificates had reference only to the apparent value of the work done, and not to the quality, to him unknown, of the iron used. In none of his reports does he refer to the quality of the metal in the castings, or in the wrought-iron work. No certificate declares the materials were of the quality specified in the contract.
A clear distinction exists between the form and manner in which the work was done, and the quality of the material used therein. The former may readily be visible to the eye, and a presumption of assent thereto might arise, when no assent as to the quality of the material could be presumed. In the present case, the latter could only be ascertained by a test, which the engineer was not authorized to make and did not attempt to make. The iron was so put in place, that much of it was either covered or concealed from view. Its quality and tensile strength could not thereafter be ascertained. They were known to the plaintiff. If they filled the contract, he could have testified to the fact or proved it by others.
Thus it has been shown there was no waiver of the quality of the material during the progress of the work. It is contended the city waived it by taking possession and using it. In support of this view the cases of Preston v. Phinney, 2 W. & S. 53; Wilhelm v. Caul, Id. 26; Chambers v. Jaynes, 4 Barr 39, and others, were cited. The rule recognised by these cases is not applicable to the facts of the present case.
An engine erected on the land of the city is not like a portable article that might have been thrown back on the hands of the manufacturer. Having become attached to the land of the formey it became the property of the city. No right was waived by taking possession and using them to a limited extent: Monro v. Butt, 8 Ellis & Black. 737; Bryant v. Stillwell, 12 Harris 314. This conclusion is strengthened by the terms of the contract.
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Mr. Justice Mercur
delivered the opinion of the court, May 2d 1881.
This contention may be considered under turn main propositions. The one, whether the plaintiff proved a substantial fulfilment of his contracts; the other, whether the questions in dispute should have been submitted to the mechanical engineer for final decision.
1. Thé agreements were in writing and under seal. The first was executed in August 1872; the latter in September 1873. In each contract, the plaintiff agreed to furnish the labor and materials, and construct, deliver and set up in all respects, complete and ready for the service required of them, on specified grounds of the city, two graduating double cylinder plunger pumping engines, each of the dimensions, designs and materials explained and exhibited in accompanying specifications and drawings, which were declared to form a part of the agreement, the same as if embodied therein. The specifications, inter alia, declared “ all of the material used in the construction of the machinery to be of the very best. The iron castings to be sound and perfect, and-made of iron that will sustain a tensile strain of twenty-five thousand pounds to the square inch. All the wrought-iron forgings for shafts, connecting-rods, cam-rods, wrists, stretchers and bolts, to be made of the best scrap or Juniata iron, that will sustain a tensile strain of sixty thousand pounds to the square inch.” The form of each contract was substantially in the same terms. The pair mentioned in the first contract ivas to be completed by the 15th November 1873; the other pair by the 15th November 1874. After the execution of the second agreement, the work for both pairs of engines Avas prosecuted together. The sum which the plaintiff was to receive under both contracts, was $798,500; [117]*117but be claimed the additional sum of §100,000 for extras. He has been paid §593,206.84, leaving a balance of over §300,000 still claimed by him.
In July 1878, the first pair of engines was tested and found to he defective, although one of them was occasionally used thereafter. In December following, the other pair was so far advanced as to admit, of its being used to some extent in pumping water, but was not fully completed.
The contracts specified that approximate monthly estimates of work completed should be made by the mechanical engineer of the board of water commissioners, and eighty per cent, thereof paid. After the faithful erection of the engines to the satisfaction of the engineer, and after their working was found satisfactory, all the residue was to he paid, except ten per cent., which was to be retained until the expiration of twelve months thereafter. During this time of probation, the contractor was to maintain them in good working order and repair. The contracts further declared, “ On condition of the true and faithful performance of all the requirements of the agreements and the specifications hereto annexed,” the city agreed to pay the gross sum named.
It was authorized for certain causes specified, to declare the contracts forfeited; and then in a subsequent clause it was declared, in case of a forfeiture for any of the causes mentioned, or in case of failure to perform and satisfy the other conditions and obligations of the contracts on due notice given to the plaintiff by the mechanical engineer, the contract might be declared null and void, and the city might contract with other parties for the completion of the work.
In February 1879, after due notice to the plaintiff and demand of possession, the city, under claim of forfeiture, took possession of the works in their unfinished condition, and refused to pay the price stipulated in the written agreements. Thereupon the plaintiff brought this action, alleging substantial performance, and waiver. The plea denied the averments. After the plaintiff closed his evidence, the court ordered a compulsory nonsuit, and refused to take it off. These are the errors assigned.
As the agreement of the city was to pay only “ on condition” of performance of all the obligations assumed by the plaintiff, as an entire contract, he was bound to prove its substantial fulfilment. The character, quality and tensile strength of the iron were of vital importance, and, as we have shown, were stated in the agreement in clear and unmistakable language. On the trial, the plaintiff gave no direct evidence that any of the iron or materials were of the kind and quality stipulated; nor that the city expressly waived any obligation relating thereto. He relied on the action of the mechanical engineer, and his monthly certificates during the progress of the work; and the possession taken by the city [118]*118and its subsequent use thereof, to show assent to the kind used or waiver of the kind required. It is true, it has been held in some eases, where the work is done under the supervision of the engineer of the owner, that changes in the agreed manner of doing the work may be assumed to have been assented to by him, and bind his principal: Danville Bridge Co. v. Pomroy and Colony, 3 Harris 151. Yet in a suit brought on a written contract to furnish materials and build a canal-boat, the fact that the person for whom it was being built, was present when the contractor made changes from the specifications in the contract, creates no presumption that the owner waived a performance of the written contract: Young v. White, 5 Watts 460. This contract in writing being in behalf of a municipal corporation, a due regard to public rights furnishes a strong reason for holding, that no implied waiver of the terms of the contract shall be presumed from the presence of the mechanical engineer. His monthly estimates and certificates had reference only to the apparent value of the work done, and not to the quality, to him unknown, of the iron used. In none of his reports does he refer to the quality of the metal in the castings, or in the wrought-iron work. No certificate declares the materials were of the quality specified in the contract.
A clear distinction exists between the form and manner in which the work was done, and the quality of the material used therein. The former may readily be visible to the eye, and a presumption of assent thereto might arise, when no assent as to the quality of the material could be presumed. In the present case, the latter could only be ascertained by a test, which the engineer was not authorized to make and did not attempt to make. The iron was so put in place, that much of it was either covered or concealed from view. Its quality and tensile strength could not thereafter be ascertained. They were known to the plaintiff. If they filled the contract, he could have testified to the fact or proved it by others.
Thus it has been shown there was no waiver of the quality of the material during the progress of the work. It is contended the city waived it by taking possession and using it. In support of this view the cases of Preston v. Phinney, 2 W. & S. 53; Wilhelm v. Caul, Id. 26; Chambers v. Jaynes, 4 Barr 39, and others, were cited. The rule recognised by these cases is not applicable to the facts of the present case.
An engine erected on the land of the city is not like a portable article that might have been thrown back on the hands of the manufacturer. Having become attached to the land of the formey it became the property of the city. No right was waived by taking possession and using them to a limited extent: Monro v. Butt, 8 Ellis & Black. 737; Bryant v. Stillwell, 12 Harris 314. This conclusion is strengthened by the terms of the contract. They sub[119]*119stantially declare that all materials on which advances may have been made shall thereby become, as far as acceptable in other respects, the exclusive- property of the city, “ but this right of property, as a gauge of such advances, shall not be construed as binding the city to receive or admit of the application of such materials if they should afterwards be found objectionable or imperfect.” Thus in view of the large advances made by the city it had a right of property and of possession which it might assert without waiving any of its rights, and without any presumption that it thereby released the plaintiff from the fulfilment of his obligations specified in his contract. A very substantial part of that obligation was to' furnish iron of the quality and strength stipulated. The burden was on him to prove he had furnished such. This he wholly failed to do. Still further the written agreement declared “it is hereby understood that with the exception of such corrections as the engineer under the provisions of this contract is authorized to make, and shall make in vmting, the terms and conditions of this instrument, or any one of them, cannot be dispensed with, altered or rendered in any sense null and void without the written consent of (the city) attached to or endorsed on this agreement, specifying what modifications may have been agreed upon.” This language is clear and specific; and was manifestly intended to protect the city against all such implied or presumptive changes or waivers as are now attempted to be sustained. If the plaintiff disregarded these provisions of the contract, whereby he was damaged, the city is not responsible therefor.
2. The contract declares “ it is further agreed that in case any question or dispute between the parties shall arise under this contract or touching the quantity, qtiality, or value of any work done thereunder, the same shall he referred to the mechanical engineer whose decision shall be final and conclusive. And the said (plaintiff) hereby waives and releases all right of action and suit at law under or by virtue of this contract.” It will be observed that all the questions or disputes are stated disjunctively. If either one arises it shall he referred as there stated. It may arise under the contract or touching any one of the things therein stated. It is very manifest from what has been said, and by the bringing of this suit, that questions and disputes have arisen under this contract, and also touching the quality and value of the work done thereunder, yet the plaintiff did not offer to refer any of them to the engineer. That effect shall be given to an agreement to refer matters of dispute to an engineer named, has often been held. As to questions covered by the agreement, the party cannot maintain a common-law action without a previous arbitrament of the engineer or an offer by one and a refusal by the other to so refer: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 210; Lauman v. [120]*120Young, 7 Casey 308; Reynolds v. Caldwell, 1 P. F. Smith 298; O’Reilly v. Kerns, 2 Id. 214; Howard v. Allegheny Valley Railroad Co., 19 Id. 489.
We deem it unnecessary to further consider the facts in detail. Under all the evidence we see no error in the judgment of the court.
Judgment affirmed.
Sharswood, C. J. and Gordon, J. dissented.