The opinion of the court was delivered, at the circuit session in September, 1855, by
Redfield, Ch. J.
In this case the contract is directly between the plaintiffs and the defendants, but resting in parol, the written contract between these plaintiffs and Belknap being referred to, as containing the terms of the contract, between these parties. Work was begun under this contract, on the 1st day of July, 1849, and was, by the terms of the contract, to have been completed by the 1st day of November, after.
No. 4, in the plaintiffs’ account, is the first item upon which any question arises. The only question properly arising here is, whether the plaintiffs are bound by the estimate of the engineer. The contract contains the usual clause that “ the engineer shall be the sole judge of the quantity and quality of the work, herein specified, and from his decision there shall be no appeal,” and in Herrich’s case it was considered upon great deliberation, that the engineer thus became the sole umpire, and that unless the company failed to furnish suitable engineers to make the estimates, no recovery could be had for work under such a contract, until estimated by the engineer, and after an estimate by the engineer, no recovery could be had beyond that sum, unless upon the most irrefragible proof of mistake in fact, or positive fraud in the opposite party in procuring an under estimate, or corruption in the engineer, and in such case the appropriate tribunal for redress, was a court of equity. But we regarded it as now, within the province of a court of law, to afford redress, in such cases, this not by any means ousting the chancery jurisdiction, which was, at one time, the exclusive resort, in such cases. But in the present case there is nothing to show any mistake in fact of the engineer. The estimate is therefore conclusive. The cases showing what precise mistakes will avoid [137]*137an award are reviewed at length in Mr. Smith’s Notes to Caldwell on Arbitration, ed. 1853, pp. 153-177. The case of Underhill v. Van Gortlandt, 2 Johns. Ch. 339, is the most elaborate review of the earlier cases upon this subject extant. Much light is afforded in regard to the present state of the law upon this perplexing subject, in Kleine v. Catara, 2 Gallison C. C. R. 74, and in the very satisfactory opinion of the court, in The Boston Water Power Co. v. Gray, 6 Metcalf, 31.
The only apparent difficulty seems to arise in attempting to define what precise mistake in matter of fact, by the arbitrator, will invalidate the award. It is obvious, that to allow every-mistake in fact, to avoid the award, if clearly proved, would be in effeet, to examine the original controversy, upon its merits, and thus render all awards nugatory. I apprehend the true rule upon this point is that no mistake, in matter of fact, depending upon the misjudgment of the arbitrator, whether in weighing evidence, or the construction of contracts, or written admissions, is of any avail; for these matters are properly submitted to the discretion of the arbitrator and concluded by the award. The mistake must be one which shows that the arbitrator was misled, deluded and so far misapprehended the case, that he failed to exercise his real judgment upon it. The most familiar illustration is a mistake in computation. The use of a false measure, or a false weight is similar. Other illustrations may be supposed. But enough has been said, to show, that no such mistake is shown, in the present case.
Item No. 5, being rejected by the engineer, falls within the rule before laid down, as by the contract all deviations from the contract, in the manner of doing the work, by alterations of plan, &c., are to be referred to the judgment of the arbitrator, and such allowances or deductions made, “ as the engineer may deem fair and equitable to both parties.” And all claims for extra work, were by the terms of the contract, to be supported, by the directions in writing of the engineer, and presented for allowance in a given number of days, nothing of which appears to have been done in regard to this claim. It may be asked how the contractor may have redress, if the work is clearly extra work, and the engineer refuses to give orders in writing. He must of course either decline doing it, or be content to have it treated as ordinary work [138]*138under the contract, if it come within the general terms, and extension of the contract, else such a restriction will afford no such security to the company, as it was obviously intended to do, and as, by its terms, the parties must have expected it would.
Item No. 6, for digging the highway when frozen, seems to be of the same character, if indeed it was not really the fault of the plaintiffs, that the work was not done at an earlier period, and before the ground became so frozen, which would itself form another ground of defence.
Item No. 8, for logging the blasts in Winooski village, is either the ordinary expense of excavating the rock, in a reasonable and prudent manner, which the contract must be understood to have bound the plaintiffs to do, and so not any ground of claim against the defendants, beyond the amount of excavation, at contract price, which is included in the estimates of the engineer; or it is extra work under the contract, and so required to be supported, in the manner specified in the contract, and should be disallowed, because not so supported; or else it requires a new contract with the defendants, express or implied, which is not attempted to be shown, except through the agency of the engineers, who seem to be restricted by the express terms of the contract, from imposing any extra charges upon the defendants, for any work done within the general range of the contract, unless by orders in writing.
The tenth item is for deficiency in the engineer’s estimate of abutments for highway bridge. This claim, in many particulars, seems to stand, upon a different footing from any of the others. It is for a kind of work not included in the contract, reduced to writing, (bridge masonry,) according to the finding of the auditor, although the written contract between the orignal firm and Belknap does seem to include such masonry. But we are to suppose, from the finding of the auditor, that in the contract between plaintiffs and defendants, bridge masonry was excluded. The provisions of the written contract will not extend to this contract. This is found to have been a special contract, for this particular work, made by defendants by their engineer with plaintiffs, and there is nothing to show that there was any agreement, in regard to the conclusiveness of the engineer’s estimates, or extra work. And as the engineer was authorized to make the contract, and had the over[139]*139sight of the work, he would of course, be justified in directing deviations, as the work progressed, which he did, in consequence of which, the number of cubic yards in the structure was increased from 482 to 590. The engineer, in estimating the work, followed his original plan. The deviation from the plan was necessary and acquiesced in by the engineer, in consequence of the defective nature of the stone used, and which it was agreed should be used. Under these circumstances it seems to us the plaintiffs should recover, according to the amount of work done, and that there is nothing in the facts found by the auditor to preclude them. It does not appear whether the bilging of the work was in consequence of the defect of workmanship or of the material used. The auditor expressly says so.
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The opinion of the court was delivered, at the circuit session in September, 1855, by
Redfield, Ch. J.
In this case the contract is directly between the plaintiffs and the defendants, but resting in parol, the written contract between these plaintiffs and Belknap being referred to, as containing the terms of the contract, between these parties. Work was begun under this contract, on the 1st day of July, 1849, and was, by the terms of the contract, to have been completed by the 1st day of November, after.
No. 4, in the plaintiffs’ account, is the first item upon which any question arises. The only question properly arising here is, whether the plaintiffs are bound by the estimate of the engineer. The contract contains the usual clause that “ the engineer shall be the sole judge of the quantity and quality of the work, herein specified, and from his decision there shall be no appeal,” and in Herrich’s case it was considered upon great deliberation, that the engineer thus became the sole umpire, and that unless the company failed to furnish suitable engineers to make the estimates, no recovery could be had for work under such a contract, until estimated by the engineer, and after an estimate by the engineer, no recovery could be had beyond that sum, unless upon the most irrefragible proof of mistake in fact, or positive fraud in the opposite party in procuring an under estimate, or corruption in the engineer, and in such case the appropriate tribunal for redress, was a court of equity. But we regarded it as now, within the province of a court of law, to afford redress, in such cases, this not by any means ousting the chancery jurisdiction, which was, at one time, the exclusive resort, in such cases. But in the present case there is nothing to show any mistake in fact of the engineer. The estimate is therefore conclusive. The cases showing what precise mistakes will avoid [137]*137an award are reviewed at length in Mr. Smith’s Notes to Caldwell on Arbitration, ed. 1853, pp. 153-177. The case of Underhill v. Van Gortlandt, 2 Johns. Ch. 339, is the most elaborate review of the earlier cases upon this subject extant. Much light is afforded in regard to the present state of the law upon this perplexing subject, in Kleine v. Catara, 2 Gallison C. C. R. 74, and in the very satisfactory opinion of the court, in The Boston Water Power Co. v. Gray, 6 Metcalf, 31.
The only apparent difficulty seems to arise in attempting to define what precise mistake in matter of fact, by the arbitrator, will invalidate the award. It is obvious, that to allow every-mistake in fact, to avoid the award, if clearly proved, would be in effeet, to examine the original controversy, upon its merits, and thus render all awards nugatory. I apprehend the true rule upon this point is that no mistake, in matter of fact, depending upon the misjudgment of the arbitrator, whether in weighing evidence, or the construction of contracts, or written admissions, is of any avail; for these matters are properly submitted to the discretion of the arbitrator and concluded by the award. The mistake must be one which shows that the arbitrator was misled, deluded and so far misapprehended the case, that he failed to exercise his real judgment upon it. The most familiar illustration is a mistake in computation. The use of a false measure, or a false weight is similar. Other illustrations may be supposed. But enough has been said, to show, that no such mistake is shown, in the present case.
Item No. 5, being rejected by the engineer, falls within the rule before laid down, as by the contract all deviations from the contract, in the manner of doing the work, by alterations of plan, &c., are to be referred to the judgment of the arbitrator, and such allowances or deductions made, “ as the engineer may deem fair and equitable to both parties.” And all claims for extra work, were by the terms of the contract, to be supported, by the directions in writing of the engineer, and presented for allowance in a given number of days, nothing of which appears to have been done in regard to this claim. It may be asked how the contractor may have redress, if the work is clearly extra work, and the engineer refuses to give orders in writing. He must of course either decline doing it, or be content to have it treated as ordinary work [138]*138under the contract, if it come within the general terms, and extension of the contract, else such a restriction will afford no such security to the company, as it was obviously intended to do, and as, by its terms, the parties must have expected it would.
Item No. 6, for digging the highway when frozen, seems to be of the same character, if indeed it was not really the fault of the plaintiffs, that the work was not done at an earlier period, and before the ground became so frozen, which would itself form another ground of defence.
Item No. 8, for logging the blasts in Winooski village, is either the ordinary expense of excavating the rock, in a reasonable and prudent manner, which the contract must be understood to have bound the plaintiffs to do, and so not any ground of claim against the defendants, beyond the amount of excavation, at contract price, which is included in the estimates of the engineer; or it is extra work under the contract, and so required to be supported, in the manner specified in the contract, and should be disallowed, because not so supported; or else it requires a new contract with the defendants, express or implied, which is not attempted to be shown, except through the agency of the engineers, who seem to be restricted by the express terms of the contract, from imposing any extra charges upon the defendants, for any work done within the general range of the contract, unless by orders in writing.
The tenth item is for deficiency in the engineer’s estimate of abutments for highway bridge. This claim, in many particulars, seems to stand, upon a different footing from any of the others. It is for a kind of work not included in the contract, reduced to writing, (bridge masonry,) according to the finding of the auditor, although the written contract between the orignal firm and Belknap does seem to include such masonry. But we are to suppose, from the finding of the auditor, that in the contract between plaintiffs and defendants, bridge masonry was excluded. The provisions of the written contract will not extend to this contract. This is found to have been a special contract, for this particular work, made by defendants by their engineer with plaintiffs, and there is nothing to show that there was any agreement, in regard to the conclusiveness of the engineer’s estimates, or extra work. And as the engineer was authorized to make the contract, and had the over[139]*139sight of the work, he would of course, be justified in directing deviations, as the work progressed, which he did, in consequence of which, the number of cubic yards in the structure was increased from 482 to 590. The engineer, in estimating the work, followed his original plan. The deviation from the plan was necessary and acquiesced in by the engineer, in consequence of the defective nature of the stone used, and which it was agreed should be used. Under these circumstances it seems to us the plaintiffs should recover, according to the amount of work done, and that there is nothing in the facts found by the auditor to preclude them. It does not appear whether the bilging of the work was in consequence of the defect of workmanship or of the material used. The auditor expressly says so. The plaintiffs should therefore recover the contract price, unless it be shown that the defect was in the workmanship, as the plaintiffs are not responsible for any defect in the materials used.
Items thirteen and fourteen .are for under-estimates of the engineer, and amount to the very considerable sum of $26,000 in round numbers. The auditor does not find any such under-estimates; but does find that in consequence of the manner, in which it was requisite to do the work, to prevent the quicksand running into the pit, by filling in earth and gravel upon the bed of the road, which the auditor finds was the most economical mode of making the road bed keep in form, the plaintiffs incurred expense to the amount of $3,000 more than it would cost to make the same excavation without this precaution. The plaintiffs, when informed of this order of of the engineer, by the resident engineer of the section, told him they should not consent to do the work, in that mode, without extra compensation, and the resident engineer assured them that they should receive such extra compensation. But the auditor finds he had no authority to bind the company, by any such promise, as we have already considered in a former part of this opinion. And the plaintiffs took no steps to perfect any claim for such extra allowance, according to the terms of the written contract, and the engineer when the claim was presented, decided against it. This seems to bring the claim within the rules laid down by us in regard to some of the former items of this account.
The case of Thayer v. this defendant, 24 Vt. 440, is precisely [140]*140in point as to this last item. The assistant engineer there told the plaintiff “ He should have his pay for it; the company would pay him for the sameand so is the decision in Herrick’s case. This disposes of all the questions arising in the case. Judgment reversed and judgment for the smallest sum reported by the auditor except for the item of bridge abutments, for which the plaintiffs are entitled to the largest sum reported.
No copy of the exceptions in the county court was furnised, and I cannot see that any question in regard to the taxation of costs was reserved. Upon the brief of one of the counsel allusion is made to such a question, but it could not be revised here, unless it appears, by the exceptions in the county court, to have been passed upon by that court and ordered to come here for revision.