Nelson v. Fairchild & North-Eastern Railway Co.

Tbe following opinion was filed March 14, 1916:

Tbe four justices participating in tbe decision are equally divided on tbe question' of affirmance of the whole judgment. Chief Justice WiNsnow and Justice ViNJE are of opinion that under tbe terms of tbe contract the final estimate of tbe chief engineer was final and conclusive in tbe absence of fraud or a mistake in some fundamental fact or right in tbe light of which bis decision should have been but was not exercised. They are also of opinion that there was sucb a mistake here in assuming that tbe contract contained tbe words “not less than one cubic yard” instead of *307tbe words “not over one cubic yard,” and that this erroneous assumption formed one of the fundamental bases on which his estimate of loose rock was made, hence that the estimate as to loose rock was not conclusive but open to correction, and that the findings of the trial' court on that subject are correct. They therefore think that the judgment should be affirmed as to all items except the amount found due for overhaul, as to which they think there should be reversal. Justice Sie-becKER and the writer are of opinion that the estimate of the engineer was not final and conclusive .under the terms of the contract but open to correction, and that mistakes were made by the engineer in estimating the amount due as found by the trial court, therefore that the judgment should be affirmed. In this situation the judgment must be affirmed.

By the Court. — The judgment is affirmed.

A motion for a rehearing was denied, with $25 costs, on May 23, 1916.