author: Mr. Justice Elkin,

text:
    Quade, Appellant, v. The Columbia & Port Deposit Railway Company.

      Railroads — Eminent domain — Condemnation proceedings — Subsequent conveyance of land — Assignment of damages — Pleading—Amendment.
    1. Damages for the taking of land in eminent domain proceedings belong to the owner at the time of the appropriation and do not pass to a subsequent vendee in the absence of anything to show such an intent.
    2. Where a railroad company files a bond in proceedings to condemn a right of way, and thereafter the owner of the land over which the right of way has been condemned, conveys it to another by a deed silent as to the damages, the grantee has no right or claim to the damages, and cannot maintain proceedings against the railroad company to assess them. If he does institute such proceedings, and therein avers that the land injured was his property at the time the injury was committed, and this is contradicted by proof at the trial, he cannot offer in evidence an assignment of the damages from the original owner, procured during the progress of the trial, if he in no way amends his pleadings so as to make an assignment properly admissible in evidence.
    Argued May 15, 1911.
    Appeal, No. 299, Jan. T., 1910, by plaintiff, from judgment of C, P, pancaster Co,, Nov, Term, 1909, No. 37, on verdict for defendant in case of Christian F. Quade v. The Columbia & Port Deposit Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Issue to determine the amount of damages in condemnation proceedings. Before Hassler, J.
    The court charged as follows:
    In this case the land in question was taken on March 19, 1907, that being the day upon which the bond was .filed and approved in this court. The property was not conveyed to the present plaintiff, Christian F. Quade, until March 29, or two weeks afterwards. When it was conveyed to him, it was conveyed subject to what the railroad company had taken, and subject to their rights under their bond, and if any injury was done to the property by reason of the railroad company having taken one-tenth of an acre of it, it was an injury to Frederick F, Quade, the former owner. The damages that he would be entitled to are personal, and do not run with the land, so that a subsequent owner had no standing to recover any damages for the taking of that land. We are, therefore, bound to instruct you that under the law and the evidence your verdict must be for the defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was the charge of the court, quoting it.

      B. F. Davis, for appellant.
    Under the issue, the question of title did not arise, but was an afterthought on the part of the appellee: Ehret v. R. R. Co., 151 Pa. 158; D. L. & W. R. R. Co. v. Burson, 61 Pa. 369; Heise v. R. R. Co., 62 Pa. 67; Turner’s App., 2 Walker (Pa.) 229.
    In the case in hand, there was nothing whatever on the record disputing the title of the plaintiff or his right to recover the damages: United States v. Agee, 108 Fed. Repr. 10; Ehret v. R. R. Co., 151 Pa. 158; State Line R. R. Co. v. Playford, 14 Atl. Repr. 355; Tissue v. R. R. Co., 12 Pa. Dist. Rep. 175.
    July 6, 1911:
    After the bond was approved, the owner of the land for whose benefit the bond was given could not maintain an action of trespass, ejectment or injunction, but would be obliged to follow the remedy provided by the act of assembly. If he assigns his damages, the assignee would be obliged to pursue the same remedy: Frey v. Ry. Co., 91 Wis. 309 (64 N. W. Repr. 1038); Birch v. Ry. Co., 8 N. Y. Supp. 325; Dyer v. Wightman, 66 Pa. 425.
    The defendant by not raising the question of title, but admitting it by having the issue framed for the purpose of ascertaining the damages, thereby waives its right to object on-that ground or to raise the question of title on the trial: Chicago & Iowa R. R. Co. v. Hopkins, 90 111. 316; Peoria, Pekin & Jacksonville R. R. Co. v. Laurie, 63 111. 264; St. Paul & Sioux City R. R. Co. v. Matthews, 16 Minn. 341; Helena & Livingston Smelting & Reduction Co. v. Lynch, 25 Mont. 497 (65 Pac. Repr. 919).

      W. U. Hensel, for appellee.
    Damages, being in compensation of an injury in the nature of a trespass, will not pass by a conveyance of land: Schuylkill & Susquehanna Navigation Co. v. Decker, 2 Watts, 343; Zimmerman v. Union Canal Co., 1 W. & S.. 346; Losch’s App., 109 Pa. 72; James v. West Chester Boro., 220 Pa. 490; McFadden v. Johnson, 72 Pa. 335.
   Opinion by

Mr. Justice Elkin,

The learned trial judge in refusing the motion for a new trial in a concise statement summed up the whole situation and disposed of the contentions of appellant in the following paragraph: “However, in any aspect of the case we do not think the plaintiff is entitled to a verdict. If he bases his claim on the injury he has sustained to his business or as lessee, we answer, that the issue did not make that a question for the jury, nor was there a scintilla of testimony to support it. If he bases his claim on the ownership of the land taken, we answer that he was not the owner of any that was taken. If he bases his claim on the assignment, we answer, that was not a question which the jury was sworn to try, and the whole proceeding from the petition to the appointment of viewers shows it was not to recover the damages by the plaintiff, as Frederick Quade’s assignee.” This controversy started as a condemnation proceeding to assess damages for land appropriated under the right of eminent domain by the appellee company. The appellant here, after the filing of the bond to secure the damages, presented his petition asking for the appointment of viewers to assess them. The viewers were appointed and did assess the damages. From the report of the viewers appellant took an appeal to the court of common pleas. An issue was framed and a statement filed in which it was averred, inter alia, that “The plaintiff was at the time of the committing of the injuries or grievances hereinafter mentioned, and had been for a long time previous thereto, and now is the owner of real estate, to wit, a hotel property,” being the property alleged to have been injured by the appropriation of the right of way. At the trial he proved himself out of court by introducing evidence showing that he did not own the land at the time of the appropriation. Whether this was a mistake of law, or of fact, we do not know, nor does the record inform us. It is settled, however, beyond peradventure of doubt that upon the filing and approval of the bond the title to the right of way passed to the appellee company. From that time the grasp of the owner was released from the property and he was remitted to recourse upon the bond for such damages as he may have sustained: Dilts v. Railroad Co., 222 Pa. 516. It is equally well settled that damages arising by reason of the taking belonged to the owner at the time of the appropriation and do not pass to a subsequent vendee, in the absence of anything to show such an intent: Losch’s Appeal, 109 Pa. 72. Such damages are a personal claim of the owner of the property at the time the injury occurred and do not run with the land or pass by a deed silent as to the damages resulting from such a taking. It is perfectly clear, therefore, that appellant failed to make out a case when his proofs showed that the land did not belong to him at the time of the appropriation. The fact that he subsequently took title to the property by a deed containing no mention of the appropriation, or of any claim for damages by reason thereof, gave him no right of action for injuries resulting to the prior owner. It is perfectly clear, therefore, that up to this point appellant failed to make out a case. He relies on one other point which must be considered. After the taking of testimony at the trial had been concluded, during the interval of an adjournment of court, appellant secured an assignment from the prior owner of his claim for damages which was offered in evidence. He therefore contends that his right of action must be sustained on this ground. To do so is to ignore the pleadings in the case. The issue was made up with appellant as plaintiff and appellee as defendant. The statement averred that the land injured was the property of plaintiff at the time the injury was committed. The case was tried as between the parties thus named, and upon the issue thus pleaded. If we are to have any regard for orderly procedure in the trial of causes parties must be held to be bound by their own pleadings, and this was the position taken by the learned trial judge. Leave to amend the pleadings was neither asked nor allowed, but all parties stood upon the record thus presented until the trial j.udge directed a verdict for defendant. If appellant desired to stand upon the assignment of the claim for damages he should have amended his pleadings so as to cover such a claim. Under these circumstances we see no error in the conclusion reached by the trial judge. The issue which the jurors were sworn to try did not include the prior owner as a party, nor was the assignment of the claim for damages made the basis of the action to recover. Certainly the court was not bound to try the case upon issues not set out in the pleadings. State Line R. R. Co. v. Playford, 14 Atl. Repr. 355, is strongly relied on to sustain the position of appellant. In that case the claimant was a mortgagee in possession of the land at the time the railroad was constructed and the bond to secure damages was given to him. These important facts are entirely lacking in the case at bar. The rule of that case does not apply to the facts of the present case. While it is true the bond in such cases is intended as a protection to the landowner, or to any party injured, this does not mean that any party claiming an injury can proceed without reference to rules of pleading and practice to assert his claim. Claims of this character, like all other issues, must be presented and tried in a regular and orderly way under the pleadings.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Mitchell, Appellant, v. The Columbia & Port Deposit Railway Company.

      Railroads — Eminent domain — Condemnation proceedings — Damages— Evidence.

    1. An appeal from the report of a jury of view awarding damages in a railroad condemnation proceeding is not an action for trespass for an illegal entry entitling the plaintiff to a verdict upon mere proof of the entry. It is an action for damages alleged to have been sustained by the lawful entry of the railroad company under the right of eminent domain, and before the plaintiff can recover he must prove the difference in the market value of his property immediately before and after the construction of the railroad. If he fails to do this a nonsuit is properly entered.
    2. A witness in a railroad condemnation case will not be permitted to express an opinion on the value of the land condemned, where it appears that he never lived in Pennsylvania, was not acquainted with the value of property in the vicinity, and only professed knowledge of property of a similar character thirty miles away in another state; nor will another witness be permitted to express an opinion where it appears that he had been on the tract forty years before, but could not say when he last saw it, and did not pretend that he was acquainted with the value of property in the neighborhood.
    July 6, 1911:
    Argued May 15, 1911.
    Appeal, No. 62, Jan. T., 1911, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1908, No. 91, refusing to take off nonsuit in case of Mary A. Mitchell v. The Columbia & Port Deposit Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    .Affirmed.
    Appeal from award of viewers. Before Landis, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were (1) refusing to take off nonsuit; (4-6) refusing to permit plaintiff’s witnesses, R. O. Mitchell and J. Frank Bowman, to express an opinion as to values.

      B. F. Davis, for appellant.

      W. U. Hensel, for appellee.
   Per Curiam,

The appellant presented her petition to the court below for the appointment of viewers to assess the damages which she alleged she had sustained by the entry of the appellee upon her land for railroad purposes. On appeal from the report of the viewers an issue was framed for the purpose of having a jury pass upon the question of what damages, if any, she had sustained. The action was not, as her counsel contends, one of trespass for an illegal entry, entitling her to a verdict upon mere proof of the entry. It was for damages alleged to have been sustained by the lawful entry of the railroad company under the right of eminent domain, and before the plaintiff could recover she was required to prove the difference in the market value of her property immediately before and after the construction of the railroad: Hope v. Philadelphia & Western R. R. Co., 211 Pa. 401; Moudy Manufacturing Co. v. Penna. R. R. Co., 212 Pa. 156. No competent testimony as to this was offered, and the judgment of nonsuit necessarily followed when asked for. Mitchell and Bowman, the exclusion of whose testimony is complained of by the fourth, fifth and sixth assignments, were clearly incompetent witnesses for the purpose for which they were called. Mitchell never even lived in Pennsylvania and stated frankly to the court that he was not acquainted with the value of property in the vicinity of the plaintiff’s before the railroad went through it. All the knowledge he professed to have was of property of the same character in the state of Maryland — thirty miles away from appellant’s. Bowman had been on the tract forty years before, but could not say when he last saw it and did not pretend that he was acquainted with the value of property in the neighborhood.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Sterner v. S. Morgan Smith Company, Appellant.

      Negligence — Master and servant — Fellow servant — Contributory negligence — Act of June 10,1907, P. L. 528.

    1. If injury results to a servant caused by the action of a fellow servant in obedience to instructions given by a foreman, the negligence of the fellow servant may' not be interposed in defense under the Act of June 10, 1907, P. L. 523.
    2. In an action by an employee against his employer for personal injuries it appeared that the injury was sustained by the fall of one side of a heavy square iron frame, which the plaintiff was painting on the inside. The four sides of the frame were plates one inch thick, thirty inches wide, and ten feet long. They were set on edge so as to form a square box, and were temporarily bolted together to be smoothed off with a cold chisel, and painted, as part of the preparation for their shipment. The foreman of the defendant ordered two of the workmen to remove the bolts when the painting and smoothing was done. He directed the two men to watch the job, and when it was finished to take the frame apart. The foreman was not present when the bolts were removed. It took the men about fifteen minutes to remove the bolts, and plaintiff remained within the frame without protest although the work was done immediately before his eyes, and with much noise. Held, (1) that the injury did not result from the order of the foreman, and there was therefore no negligence on the part of the defendant, and (2) that the plaintiff was guilty of contributory negligence.
    Argued May 15, 1911.
    Appeal, No. 96, Jan. T., 1911, by defendant, from judgment of C. P. York Co., Aug. T., 1910, No. 12, on verdict for plaintiff in case of Wesley Sterner v. S. Morgan Smith Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Warner, J.
    The facts are stated in the opinion of the Supreme Court.
    The defendant presented the following points:
    2. If the jury find from the evidence that the plaintiff saw and heard the defendant’s employees, Slonaker and Smith, removing the bolts from the frame, and, notwithstanding what he saw and heard, remained where he was inside the frame without any protest to Slonaker and Smith, or to their foreman, in charge of this work, he took the risk of any injury which might ensue, and therefore is not entitled to recover in this cause. Answer: This point is refused. There are other facts to be considered by the jury in addition to those mentioned in this point. [3]
    3. If the jury find from the evidence that the plaintiff saw and heard the defendant’s employees, Slonaker and Smith, removing the bolts from the frame, and notwithstanding what he saw and heard, remained where he was inside the frame without any protest to Slonaker and Smith, or to their foreman, in charge of the work, he did not exercise such care as an ordinarily prudent man would have exercised under the circumstances and was guilty of negligence which contributed to the accident and therefore is not entitled to recover in this suit.
      Answer: This point is refused. The jury must determine from all the facts of the case including those referred to in the point, whether the plaintiff was guilty of any negligence which contributed directly to the happening of the accident which caused plaintiff’s injuries. [4]
    4. The plaintiff’s witnesses, Slonaker and Smith, having testified that Schlaanstine, the foreman, ordered them to take out the bolts “when the job” was finished, and that they went to the frame and saw that the job was not done and went away and later returned and took the bolts out — the act of Slonaker and Smith in taldng out the bolts before the plaintiff had finished painting was the negligence of co-employees, for which the defendant cannot be held liable, and the plaintiff cannot recover in this case. Answer: This point is refused as written. It is for the. jury to determine from all the evidence in the case what the “job” was, which is referred to, and whether or not the acts which contributed to the accident resulted from the negligence of the plaintiff’s fellow workmen, for which defendant would not be responsible, or from the negligence of a vice-principal of the 'defendants for which they would be liable in damages if it was the proximate cause of plaintiff’s injury. [5]
    Verdict and judgment for plaintiff for $1,750. Defendant appealed.

      Errors assigned were (3-5) answers to points as above and (8) refusal of binding instructions for defendant.

      Richard E. Cochran, with him Smyser Williams, for appellant.
    The evidence of negligence on the part of this defendant does not even amount to a scintilla and the doctrine that where there is a scintilla of evidence it must be submitted to the jury is exploded: Wojciechowski v. Sugar Refining Co., 177 Pa. 57; Phila. & Reading R. R. Co. v. Yerger, 73 Pa. 124; Mead v. Conroe, 113 Pa. 220; Hauser v. R. R. Co., 147 Pa. 440; Fisher v. Scharadin, 186 Pa, 565,

      July 6, 1911:
    One who knows the risk of what he attempts to do, and, having such knowledge, takes the risk, cannot recover for injuries in consequence: Forks Twp. v. King, 84 Pa...230; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Crescent Twp. v. Anderson, 114 Pa. 643; Landis v. Curtis & Jones Co., 224 Pa. 400; Holden v. R. R. Co., 169 Pa. 1.

      Michael S. Niles, with him Charles A. May, George E. Neff and Henry C. Niles, for appellee.
    It is the duty of a master to provide and keep safe the place in which his employee is to work; nothing but performance can relieve him of this obligation, and the same duty rests upon the vice principal: Vant v. Roelofs, 217 Pa. 535.
    The question of the plaintiff’s contributory negligence was for the jury also, because he denied facts upon which the defendant based its charge that he contributed to his own injury: Carlin v. Butter Co., 220 Pa. 194; Bardsley v. Gill, 218 Pa. 56; Sopherstein v. Bertels, 178 Pa. 401; Cool-broth v. Penna. R. R. Co., 209 Pa. 433.
   Opinion by

Mr. Justice Potter,

The only thing disclosed by this record, upon which a charge of negligence against the defendant can be based, is the fact that the foreman of the machine shop directed two of the workmen to remove the bolts which held together the sides and ends of an iron frame, which was being prepared for shipment. The frame was composed of four pieces each about one.inch thick, thirty inches wide, and ten feet long. These pieces, were set on edge so as to form a square box, and were bolted together at the corners. The frames were set up temporarily in the shop and were to be smoothed off with a cold chisel and hammer, and painted, as part of the process of preparation for shipment. The plaintiff in this case was engaged in doing the painting upon the inside of thé frame just before the accident occurred, and another workman had just finished the chipping or smoothing of the frame with a cold chisel. Two other workmen were directed to take the frame apart and prepare it for shipping. The point upon which this case turns, in so far as any negligence is concerned, which may be attributed to the defendant, is in the form of the order given by the foreman, and the effect naturally to be given to it. The evidence for plaintiff tends to show that the workmen withdrew the bolts, before plaintiff had quite finished his work of painting and as a result one of the pieces of the frame being deprived of support, fell over upon plaintiff and injured him. The question is, whether this injury was caused by the action of fellow servants in obedience to instructions given by the foreman. If so the negligence of the fellow servants may not be interposed in defense, because under the terms of the Act of June 10, 1907, P. L. 523, such a defense is prohibited. We must therefore examine the testimony to see if the natural and reasonable effect of the order given by the foreman was to bring about the injury. According to the testimony of Slonaker, one of the workmen who removed the bolts, the foreman said he wanted them to take out the bolts when the job was finished; meaning thereby, as the evidence shows, when the painting and the smoothing was done. The witness goes on to say: “We couldn’t work at it then, and went back on the floor, and went back afterwards and took the bolts out. He said we should watch the job up, and when it was ready take it apart.” So much for the instructions. What was actually done under them was thus detailed by the same witness: “We went down there after we thought the job was ready, and took the bolts out of the opposite end, and then came up to this end, and there were four turned bolts in there that you have to drive out with a hammer.” There was other testimony corroborative of what this witness said, as to the order given by the foreman, and as to the fact that it was not immediately executed. It further appears that the operation of removing the bolts occupied some time, perhaps half an hour, and the foreman was not there when it was completed. Manifestly the pieces would not be separated until the bolts were out, nor could the piece which upset, fall over until then, It is evident that the order, given by the foreman to take the bolts out when the job was ready, involved no danger to the plaintiff. It is apparent that the workmen properly understood the order as not calling for instant action upon their part, for they waited until, as they said, they thought the job was ready. If the workmen took out the bolts before the job was ready; that is, before the painting was finished, they acted, not in obedience to the order, but in violation of it. If the injury resulted from such a violation of orders, the employer was not responsible. If the foreman had ordered the men to proceed at once with the work without regard to the presence of the plaintiff, then engaged in painting, and injury had resulted as a plain consequence of what was done in direct obedience to the order, the employer would have been liable, and the negligence of the fellow servants, no matter how gross, would under the terms of the act of 1907, not have been admissible as a defense. But the testimony makes it clear that no such thing was done, and the injury cannot by any reasonable inference be regarded as resulting from the order of the foreman to the fellow servants of the plaintiff. If not, then there is nothing in the case to sustain the charge of negligence against the defendant.

It is not necessary to go further and consider the evidence showing contributory negligence by the plaintiff; but if it were, it would appear that the workmen were engaged for more than fifteen minutes in removing the bolts, right under the eyes of plaintiff, and almost within arm’s reach. Some of the bolts had to be driven out with a hammer, which made a noise. It is incredible that plaintiff should not have seen or heard what was going on. If he did, and remained so close to the unsupported piece of iron as to be injured by it when it turned over, he must have contributed thereby to the injury which he received. The third, fourth and eighth assignments of error are sustained.

The judgment is reversed, and is here entered for the defendant.


text:
    Fitzpatrick’s Estate.
    -• Wills — Construction—Legal heirs — “Then”—Trusts and trustees.

    1. Where a testator creates a trust for the benefit of his sister during her life, and after her death gives the principal thereof “to her children in equal shares, but in the event that no children survive her, then I give and bequeath the same to my legal heirs,” and the sister dies without children surviving her, the persons who are entitled to the principal of the fund at the death of the sister are the heirs of the testator living at the time of his death.
    2. In the construction of wills there are instances in which the word “then” as used in connection with the devise of property has been held to be an adverb of time, but this is not the general rule, which is, that it does not point to the time but indicates the event.
    Argued May 15, 1911.
    Appeal, No. 106, Jan. T., 1911, by John F. Barry, from decree of O. C. Lancaster Co., dismissing exceptions to adjudication in Estate of John J. Fitzpatrick.
    Before Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that testator, John J. Fitzpatrick, died December 14, 1889, leaving to survive him, his sister, Catharine R. Eckert, and a nephew and two nieces, the children of a sister who died before the testator.
    The auditing judge construed the clause of the will quoted in the opinion of the Supreme Court as giving the remainder, after the death of his sister without children, to the testator’s legal heirs at the time of his death. He therefore awarded one-half of the corpus to Charles W. Eckert, the executor of Catharine R. Eckert, and the remaining one-half of the corpus to the nephew and two nieces share and share alike.
    The exceptions to the adjudication complained of the award of one-half of the fund to the representative of Catharine R. Eckert, on the ground that Mrs. Eckert was not a legal heir within the meaning of the will. The exceptions were dismissed in an opinion by Smith, P. J.
    July 6, 1911:

      John E. Malone and Richard M. Reilly, for appellants,
    cited: Leeming v. Sherratt, 2 Hare 14; Schuldt’s Est:, 199 Pa. 58; Pleasonton’s App., 99 Pa. 362; Adams’s Est., 208 Pa. 500.

      J. A. Coyle of Coyle & Keller, for appellee,
    cited as to the use of the word “then”: Buzby’s App., 61 Pa. Ill; Ashton’s Est., 134 Pa. 390; Stewart’s Est., 147 Pa. 383; Fuller’s Est., 225 Pa. 626; Vance’s Est., 209 Pa. 561; Hennessy v. Patterson, 85 N. Y. 91; Schwencke v. Haffner, 45 N. Y. Supp. 937; Coggins’s App., 124 Pa. 10; Colonial City Traction Co. v. ft. ft. Co., 153 N. Y. 540 (47 N. E. Repr. 810); Ash v. Coleman, 24 Barb. 645; Bunting v. Speek, 41 Kan. 424 (21 Pac. Repr. 288); Rose v. McHose, 26 Mo. 590; Barker v. Southerland, 6 Dem. Sur. (N. Y.) 220; Hall v. Priest, 72 Mass. 18; In re Moloughney, 73 N. Y. Supp. 598; Connelly v. O’Brien, 58 N. Y. Supp. 45.
   Opinion by

Mr. Justice Elkin,

John J. Fitzpatrick in his last will and testament provided, inter alia, as follows: “I give and bequeath to my hereinafter named executor, the sum of twelve thousand dollars in trust as follows: the same to be invested at interest in good security and the net income thereof to be regularly paid to my sister, Catharine, wife of Charles W. Eckert, during her lifetime and after her death I give and bequeath said principal sum of twelve thousand dollars to her children in equal shares, but in the event that no children survive her then I give and bequeath the same to my legal heirs.” The sister for whose benefit the trust was created died without leaving issue and the question arises to whom shall the corpus of the trust estate be distributed. The learned court below directed the distribution to be made to the “legal heirs” of the testator living at the time of his death. In so doing he applied a rule of construction of almost universal application. The rule is never varied unless from the four corners of the will a different intention clearly appears. This is conceded by learned counsel for appellant, but it is urged that the will considered as a whole does show a different intention. With this contention we cannot agree. The will was drawn by a skillful hand and the language used to express the intention of the testator is clear and unambiguous. A trust was impressed upon the fund set apart for the benefit of the sister during the period of her life. At her death the principal sum was to be divided among her children in equal shares, “but in the event that no children survive her then I give and bequeath the same to my legal heirs.” No children did survive the sister and hence the contingency happened for which the testator made provision. In that event the principal sum was to go to his legal heirs. Who are his legal heirs? This question has been asked and answered in numerous adjudicated cases. They are the heirs living at the death of the testator unless a different intention clearly appears from the will itself. In the present case violence would be done to the plain meaning of words if it should be held that a different intention clearly appears. On the contrary, giving the language used its natural import, the clear intention of the testator seems to have been to provide for the contingency in the event that his sister die leaving “no children survive her.”

In the construction of wills there are instances in which the word “then” as used in connection with a devise of property has been held to be an adverb of time, but this is not the general rule, which is, that it does not point to the time but indicates the event. In the case at bar we are clear that it refers to the event upon the happening of which the legal heirs take, and not to the time when their right to take begins. To this effect can be cited the following cases: Buzby’s App., 61 Pa. 111; Ashton’s Est., 134 Pa. 390; Stewart’s Est., 147 Pa. 383; McCrea’s Est., 180 Pa. 81; Fuller’s Est., 225 Pa. 626. To this might be added a long line of cases in our own state as well as from other jurisdictions. We think the case was properly disposed of by the learned court below.

Decree affirmed, costs to be paid out of the estate.


author: Mr. Justice Mestrezat,

text:
    Ruch, Appellant, v. York.

      Contract — Building contract — Arbitration clause — Scope of arbitration clause — Nonfulfillment.
    1. The parties to a building or construction contract may legally provide therein that disputes arising out of the contract shall be submitted for decision to the architect or engineer, and that his conclusion or judgment shall be a final adjudication of the questions submitted. Such submission may include the power to determine the right of the parties to liquidated damages under the terms of the contract.
    2. The right of trial by jury, however, is not to be taken away by implication, and in order to oust the jurisdiction of the courts it must clearly appear that the subject-matter of the controversy was within the prospective submission.
    3. An agreement of submission is not to be extended by implication beyond its plain words, and a provision therein to submit questions that may arise as to the fulfillment of a contract does not give the right to pass on a claim for damages for nonfulfillment.
    4. Where a sewer contract provides that the engineer “shall in all cases determine the amount, quality, acceptability and fitness of the several amounts of work and material, and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract .... and shall determine all questions respecting the true construction or meaning of the plans and specifications,” and the contract contemplates extra work, whether additional sewers and removing and relaying paving on the streets in which they were laid, and the depth of excavations for house connections were “work not otherwise provided for” in the contract and to be paid for as extra work are questions for the engineer to determine.
    5. The decision of an engineer in such case may be erroneous and not in accord with the true intent of the contract, but that does not invalidate it unless it is tainted with fraud or misconduct to which the city was a party.
    6. Where a city construction contract provides for the construction of sewers at a unit price and it is distinctly stipulated in the contract and specifications that the quantities of work shown on the plans are only approximate, the contractors are entitled to unit prices only for additional sewers, and not for compensation for extra work under a clause in the contract relating to extra work, and providing for its compensation. The same rule applies to a claim for extra excavations for house trenches of a greater depth than that specified in the contract where the cost of excavation is fixed on a unit basis; and also applies to a claim for removing and placing pavements involved in laying additional sewers.
    7. A municipality is bound by the terms of a construction contract which it has executed and not by the unauthorized representations or declarations of its officers which would change the written stipulations of the agreement.
    8. Where a sewer construction contract confers exclusive jurisdiction on the engineer to construe the meaning of the plans and specifications, and to determine what is and what is not extra work, but does not confer upon him generally the power to construe the contract as a whole, the engineer exceeds his jurisdiction in passing upon a claim for damages for failure of the city to provide an outlet for sewers, where his decision involves the construction of the whole contract, and not simply of the plans and specifications.
    9. An engineer has no power to pass upon a claim for damages for delay in the fulfillment of a municipal contract, where there is no provision in the arbitral clause conferring such jurisdiction upon him.
    Argued May 15, 1911.
    Appeal, No. 122, Jan. T., 1911, by plaintiffs, from judgment of C. P. York Co., April T., 1911, No. 35, for defendant on demurrer to statement in case of George W. Ruch and Joseph N. Ruch, trading as George W. Ruch & Company v. York City.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit to recover a balance alleged to be due on a contract for the construction of a sewer system.
    Demurrer to statement. Before Bittenger, P. J.
    The items of the plaintiffs’ claim were as follows; (a) $12,406.40, for work on so-called “dotted line” and “no line” streets; (b) $2,704.76, for extra excavations for house connections below the average depth of six feet; (c) $1,610.11, for removing and relaying paving on streets over trenches dug by plaintiffs; (d) $47,688.69, alleged damage by reason of the failure of the city to provide an outlet for the sewers laid by plaintiffs; (e) $5,388.15, for cost of cleaning sewers to enable the city to inspect the same before acceptance; and (f) $10,865.98, for amount deducted by the city as liquidated damages suffered by it for failure to complete work on or before January 1, 1906, as provided in the contract.
    Notice by advertisement was given by the city that sealed proposals would be received for the construction of a system of sewers in the city of York. Intending contractors were invited to inspect the plans, specifica-. tions and form of contract at the office of the resident engineer of the board of public works. The letting of the work was to be in three separate contracts, denominated contract “ A,” contract “ B ” and contract “ C,” the latter of which was to be a discharge sewer with overflow chamber and all appurtenances. Contract “ A ” and contract “ B ” were let, the latter to the plaintiffs on March 28, 1904; contract “C” was not let and the sewer therein provided has not been constructed. Contract “ B ” was let at unit prices, work was provided for and was to be paid for at the cost thereof plus fifteen per cent. On April 23,1904, the plaintiffs began work under the contract and proceeded with it until December 22,1906, when, the engineer having certified that the plaintiffs had not made the progress required by the contract and had unreasonably and unnecessarily delayed the work, the city under art. 7 of the contract took charge of and completed the work. On October 1, 1907, the engineer in accordance with art. 12 of the contract, made a final estimate of the amount of work done and certified that the work was completed according to the terms of the contract on September 6, 1907.
    The statement avers that the contract was entered into by the plaintiffs upon the faith of the plans, specifications and form of contract shown to them prior to their bid at the office of the resident engineer, and upon the faith of the statements, explanations and directions of the engineer at the said time and place and that plaintiffs made their bid and executed said contract in reliance thereon. It is further averred that the plans indicated by certain marks the location of the streets where the sewerage system was to be constructed, that “solid lines” were explained to represent sewers to be constructed at the present time, and “dotted lines” extensions to be made in the future; that the plans and specifications failed to show the depth of the house connections of the sewerage system and the paving and the character thereof required to be removed and replaced by the contractor; that the engineer instructed the plaintiffs to bid only on the “solid lines” streets as the location of the «ewer; that the engineer represented that the house connections would be at the depth of six feet and that if the contractor was required to go any deeper he would be paid therefor as extra work under the contract; that the plans exhibited to the plaintiffs showed the paving on streets and alleys and the character thereof which was to be removed and replaced as provided in the contract; that the engineer represented that an outlet system would be provided by the defendant for the sewers to be constructed under contract “B ” and that defendant would provide temporary outlets for the work covered by contract “B” in case the outfall part of the sewerage system, covered by contract “ C,” should not be complete until it should be completed or progress sufficiently made to furnish ample outlets for the sewers to be constructed under the contract.
    The several items of the plaintiffs’ claim, except the one for failure to provide an outlet, were submitted to and disallowed by the engineer acting as an arbitrator under the third clause of the contract. The contract, specifications and notice to contractors provide, inter alia, as follows:
    Art. Ill of contract. “All the work under this contract shall be done to the satisfaction of the engineer, who shall in all cases determine the amount, quality, acceptability and fitness of the several amounts of work and materials which are to be paid for hereunder, and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract on the part of the contractor, and shall determine all questions respecting the true construction or meaning of the plans and specifications, and his determination and decision thereon shall be final and conclusive; and such determination and decision in case any question shall arise shall be a condition precedent to the right of the contractor to receive any money hereunder.”
    Art. IV. “The construction of the work shall be in all respects according to the notice and proposal hereto annexed, the specifications hereinafter set forth and the plans exhibited, which notice, proposal, plans and specifications are made part of this contract.”
    Art. V. “The contractor agrees that the quantities stated in the notice to bidders, or at other times, are only for the purpose of comparing, on a uniform basis, the bids offered for the work under this contract.”
    Art. VII. “If the work to be done under this contract shall be abandoned .... or if at any time the engineer shall be of the opinion, and shall so certify in writing to the board, that the conditions herein specified as to the rate of progress are not fulfilled, or that the work, or any part thereof, is unnecessarily or unreasonably delayed .... the board may notify the contractor to discontinue all work .... and the board may thereupon .... complete the work .... and charge the expense thereof to the contractor.”
    Art XI. “The engineer shall make an approximate monthly estimate of the value of the work done and materials incorporated into the work, whenever said monthly work exceeds $500 in value, and eighty per cent of such estimated value will be paid to the contractor when approved by the board.”
    Art. XII. “The engineer shall, as soon as practicable after the completion of the work of this contract, make a final estimate of the amount of work done under this contract, and the value thereof, and the city shall, within thirty days after such final estimate is so made and is approved by the board, pay the entire sum so found to be due hereunder, after deducting therefrom all previous payments, and also all percentages and amounts to be kept and retained under the provisions of this contract. All prior estimates and payments shall be subject to correction in the final estimate and payment.”
    Art XIV. “The contractor shall do any work not herein otherwise provided for when so ordered in writing by the engineer, and shall, when requested to do so, furnish itemized statements of the cost of the work ordered, and give the engineer access to accounts, bills and vouchers relating thereto.”
    Art. XV. “If the contractor claims compensation for extra work not ordered as aforesaid, but nevertheless approved by the engineer, he shall, within one week after the beginning of such work, make a written statement of the nature of the work performed, to the engineer, and shall, on or before the fifteenth day of the month succeeding that in which any extra work shall have been done, file with the engineer an itemized statement of the details and amount of such work; and unless such statements shall be made as so required, his claim for compensation shall be forfeited and invalid, and he shall not be entitled to payment on account of any such work.”
    Art. XVI. “If the contractor is obstructed or delayed in the prosecution or completion of the work by ... . any delay on the part of the city in doing the work or furnishing the materials to be done and furnished by it, the contractor shall have no claim for damages for any such cause or delay, but he shall in such cases be entitled to such extension of the time hereinafter specified for the completion of the work as the engineer shall in writing certify to be just and proper, provided, however, that claim for such extension of time is made by the contractor in writing within a week from the time when any such alleged cause for delay shall occur.”

      Art. XVII. “It is agreed that the contractor shall complete all of the work under this contract on or before the 1st day of January, 1906, and it is further expressly agreed that time is of the essence of this contract, and the contractor agrees that the city is authorized to deduct and retain out of moneys that may be due or become due to him under this agreement the sum of fifty ($50.00) dollars per day as liquidated damages for each and every day that the work is not completed beyond the time herein stipulated therefor.”
    Sec. A, clause V of Specifications. “All work during its progress and on its completion shall conform to the lines and grades given by the engineer, and shall be built in accordance with contract plans and directions given by him from time to time, subject to such modifications and additions as shall be deemed necessary by him during its execution.”
    Clause VI. “The quantities of work shown on the plans and herein stated are only approximate, and are given for the purpose of balancing the bids. As the work progresses it is expected that some of the sewers shown may be omitted, due to the embodiment of existing sewers within the new system, the desirability of which can be determined only after the work has been opened up; and that some sewers may be added to the plans during the progress of the work, due to the building up of additional streets or to other causes. It is distinctly understood that the board reserves the right to add to or take from the total amount of work anticipated under each contract up to the limit of twenty per cent thereof, in accordance with the distinct stipulation specified in article V of this contract.”'
    Sec. C, clause XXXIX. “All work done on excavation as above specified or as may be required, shall be included in the prices bid per running foot of sewer construction, according to the notice to contractors and the proposal annexed.”
    Sec. E, clause LXIV. “The surface of streets, where paved or macadamized, shall have the same materials replaced and deficiencies supplied, and shall in all cases be left in as good a condition as it was previous to the commencement of the work.”
    Clause XXII of the Proposal. “For extra work, if any, performed under art. 14 of the annexed contract, the reasonable cost of the work, as determined by the engineer, plus fifteen per cent of such cost.. The prices bid per running foot for furnishing and laying .sewers include excavation .... refilling trenches, replacing all structures interfered with, resurfacing of streets, and all other work and materials, except that to be paid for separately, as stated in the contract and specifications.”
    Notice to Contractors. “The quantities stated in this proposal are approximate only, and subject to change without liability by the board.”
    The court entered judgment for defendant on the demurrer.

      Error assigned was the judgment of the court.

      H. G. Niles, with him V. K. Keesey and J. S. Blach, for appellants.
    The power to decide whether work has been done in accordance with a contract and whether a contract has been completed in accordance with its terms, cannot by implication be enlarged so as to include the right to determine what shall be paid by way of damages for non-fulfillment : Somerset Boro. v. Ott, 207 Pa. 539.
    The right to trial by jury is not to be taken away by implication: Lauman v. Young, 31 Pa. 306; Dobbling v. Ry. Co., 203 Pa. 628; Jacob v. Weisser, 207 Pa. 484.
    The contractor is not answerable for delay caused by default of the owner’s engineer, or by a change in the plans: White v. School District, 159 Pa. 201; Lilly v. Person, 168 Pa. 219; Pittsburg Iron & Steel Engineering Co. v. Tube Works, 184 Pa. 251; Hucketein v. Kelly, 152 Pa. 631.
    Whether a sum named in a contract as compensation for delay is a penalty or liquidated damages, depends upon the intention of the parties, and the circumstances of the particular case. The presumption is that it is intended as a penalty: Clements v. R. R. Co., 132 Pa. 445; Kunkel v. Wherry, 189 Pa. 198.
    The engineer has no power over the express agreement of the parties, the terms of which are undisputed. He cannot make a new agreement. Such estimates are not conclusive: Drhew v. Altoona, 121 Pa. 401; Fisher v. South Williamsport Boro., 1 Pa. Superior Ct. 386; Koch v. Kuhns, 6 Pa. Superior Ct. 186; Pitts. Terra Cotta Lumber Co. v. Sharp, 190 Pa. 256; Payne v. Roberts, 214 Pa. 568; Jacob v. Weisser, 207 Pa. 484; Chandley v. Cambridge Springs Boro., 200 Pa. 230.
    A party cannot take advantage of his own or his engineer’s fault in not reducing to writing an order for extra work, or in preventing strict compliance with some other formality: Focht v. Rosenbaum, 176 Pa. 14; Pitts. Terra Cotta Lumber Co. v. Sharp, 190 Pa. 256; Payne v. Roberts, 214 Pa. 568; McAvoy v. Insurance & Trust Co., 27 Pa. Superior Ct. 271; McManus v. Philadelphia, 211 Pa. 394; Filbert v. Philadelphia, 181 Pa. 530; Clark & Sons Co. v. Pittsburg, 217 Pa. 46.
    An arbitrator has no power to determine questions involving his own failure to perform his duty: Hunn v. Penna. Institution for the Blind, 221 Pa. 403.

      John L. Rouse, city solicitor, with him James St. Clair McCall, for appellee.
    The very act of submission implies a promise by the parties to abide by the determination of the person to whom the matter is referred, even though there is no express agreement to abide by the award when made: Somerset Borough v. Ott, 207 Pa. 539; McManus v. McCulloch, 6 Watts, 357; Bowen v. Cooper, 7 Watts, 311.
    There was no power in the resident engineer, or any other agent of the city, to change or modify the contract: Fisher v. South Williamsport Boro., 1 Pa. Superior Ct. 386; O’Malley v. Olyphant Borough, 198 Pa. 525; Edsall v. Jersey Shore Boro., 220 Pa. 591; Carpenter v. Yeadon Borough, 208 Pa. 396.
    July 6, 1911:
    It was incumbent upon the appellants by the express terms of the contract to complete the work before January 1, 1906, and the consequences of their failure were expressly agreed to by them. The right to these damages arises entirely out of the terms of the contract, and not from anything extraneous to it: Clark & Sons Co. v. Pitts-burg, 217 Pa. 46; Cónneaut Lake Agr. Assn. v. Pittsburg Surety Co., 225 Pa. 592.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit brought to recover a balance alleged to be due on a contract to construct part of a sewerage system in the city of York, and damages arising out of the contract. The statement claims for work which is alleged to be extra and payable for as such and not regular work payable for at unit prices; for the cost of cleaning the sewers for inspection; for damages by reason of the city’s failure to.provide an outlet for the sewers laid by plaintiffs; and for the amount deducted by the city as liquidated damages for failure to complete the work within the time required by the contract. The defendant filed a demurrer to the statement and alleged as causes therefor that the statement disclosed the several items of the claim to be within the scope of the arbitration article of the contract and the decision by the arbitrator was final and conclusive, and that some of the items were lumped charges and not sufficiently specific. The demurrer was sustained by the court and judgment was entered for the defendant. The plaintiffs have appealed.

It is settled in this state that the parties to a building or construction contract may legally provide therein that disputes arising out of the contract shall be submitted for decision to the architect or engineer, and that his conclusion or judgment shall be a final adjudication of the questions submitted. Such submission may include the power to determine the right of the parties to liquidated damages under the terms of the contract: Clark & Sons Co. v. Pittsburg, 217 Pa. 46; Conneaut Lake Agricultural Association v. Surety Company, 225 Pa. 592. The right of trial by jury, however, is not to be taken away by implication, and in order to oust the jurisdiction of the courts it must clearly appear that the subject-matter of the controversy is within the prospective submission: Lauman v. Young, 31 Pa. 306. An agreement of submission is not to be extended by implication beyond its plain words, and a provision therein to submit questions that may arise as to the fulfillment of a contract does not give the right to pass on a claim for damages for nonfulfillment: Somerset Borough v. Ott, 207 Pa. 539.

Art. 3 of the contract between the parties to this litigation provides as follows: “All the work .... shall be done to the satisfaction of the engineer, who shall in all cases determine the amount, quality, • acceptability and fitness of the several amounts of work and materials and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract . . . ., and shall determine all questions respecting the true construction or meaning of the plans and specifications, and his determination and decision thereon shall be final and conclusive; and such determination and decision in case any question shall arise shall be a condition precedent to the right of the contractor to receive any money hereunder.” We think it clear that the items of the plaintiffs’ claim for work on the so-called “dotted line” and “no line” streets, for excavations for house connections at a greater depth than six feet, and for removing and relaying paving on streets over trenches dug by the plaintiffs are within the jurisdiction of the engineer under the arbitration article of the contract and that his adjudication was final. The parties submitted all the items of the claim, except the item for failure to provide an outlet for the sewers laid by the plaintiffs, and, after presenting their contentions pro and con, the arbitrator rendered a decision which disposed of every item of the claim with the one exception. Whether these items were extra work or were to be compensated for at unit prices was for the engineer to decide under the arbitration article of the agreement. It specifically provides that, ‘ ‘ the engineer shall decide all questions which may arise as to the measurement of quantities and the fulfillment of the contract, .... and shall determine all questions respecting the true construction or meaning of the plans and specifications.” It was the duty of the engineer to make the measurements for the original as well as for the extra work, and it necessarily required him to determine what was extra work and what was the regular work to be paid for at unit prices. This is one of the questions which he especially would be competent to determine and which arose as to the “measurement of quantities.” The location, extent and character of the work, the character and quantity of materials, etc., are shown by the plans and specifications, and hence whether additional sewers and removing and relaying paving on the streets in which they were laid, and the depth of excavations for house connections were “work not herein otherwise provided for” and to be paid for as extra work depended upon “the true construction or meaning of the plans and specifications,” and hence were questions for the arbitrator to determine.

There is no sufficient allegation in the statement that the decision of the engineer or his final estimate was made fraudulently or collusively, neither is there any corruption or misbehavior on the part of the engineer sufficiently averred. There is no allegation that the city used any fraudulent means to procure the decision or estimate of the engineer. His action as arbitrator, therefore, cannot be set aside or invalidated on the ground of fraud, collusion or misbehavior in the performance of the duties imposed by the contract. It is true the statement avers that “the engineer erroneously, wrongfully, contrary to the terms of said contract, and as the plaintiffs believe and expect to prove, at the direction of the board of public works, calculated the amount due the plaintiffs for said work in the manner provided in the said contract for work on sewers indicated on the said plans by solid lines.” But this is not sufficient to charge the arbitrator with fraud, collusion or misbehavior. There are no facts stated which would warrant the conclusion that the arbitrator acted othér than as his best judgment dictated. The decision may be erroneous and not in accord with the true intent of the contract but that does not invalidate it unless it is tainted with fraud or misconduct to which the city was a party. It may be assumed that the board of public works as well as the plaintiffs urged on the arbitrator as forcibly as they could their construction of the contract, but that would not justify setting aside his decision. Prior to making the decision, the engineer heard both parties orally and in writing, and gave “full deliberation to the arguments of counsel thereon.”

The arbitrator was right in deciding that under the terms of the contract the plaintiffs were not entitled to pay for extra work embraced in the first three items of the plaintiffs’ claim. The first item is for work done on the so-called “dotted line” and “no line” streets. The basis of the claim is the alleged statements and representations made by the engineer at the time the plaintiffs inspected the plan of the streets and before they made their bid and entered into the contract. It is a sufficient answer to the claim that the parties must stand upon their contract, and that the engineer had no authority to change the terms of the agreement which the city made. “Notice to Contractors” conferred no such authority. The plans, specifications and form of contract were at the office of the engineer of the board of public works for inspection by any intending contractor, but no authority was given the engineer to alter or change them in any particular by any agreement, statement or representation, written or oral. It is clear, we think, that the contract itself gives no ground for the plaintiffs’ contention in this respect. The agreement for the work to be done under contract “ B ” was at unit prices, and did not provide for the laying of sewers on any certain or definite number of streets. It is true that the “solid line” streets upon the plans were supposed to represent sewers to be constructed at the time of the contract, and that “dotted line” streets represented the extension to be made in the future, but this part of the plans must be construed in the light of the provision of clause 6 of sec. A of the specifications which provides that the sewers to be constructed on the plans may be omitted from or added to the plans during the progress of the work within a limit of twenty per cent of the work originally contemplated. It was, therefore, anticipated that some of the sewers provided for in the contract and shown on the plans should be omitted and that others should be added to the plans during the progress of the work. The limit of departure from the amount of work stipulated in the agreement was twenty per cent of the work originally provided for, and it is not averred in the statement that the limit was exceeded. It is clear, therefore, that the construction of additional sewers was not extra work for which the contractor was entitled to pay as such, but was work for which the contractor was entitled to receive compensation at unit prices. Again, we think the extra work contemplated by the parties was such as was not specifically provided for in the agreement. Article 14 of the contract provides that “the contractor shall do any work not herein otherwise provided for when so ordered in writing by the engineer,” and clause 22 of the proposal provides compensation for such work as follows: “For extra work, if any, performed under art. 14, of annexed contract, the reasonable cost of the work, as determined by the engineer plus fifteen per cent of such cost.” The laying of the sewers was to be paid for at unit prices, and any additional work of that character was to be paid for at such prices and not as extra work as provided in clause 22 of the proposal. It is distinctly stipulated in the contract and specifications that the quantities of work shown on the plans were only approximate, clearly disclosing that, as provided in clause 6, of sec. A, of the specifications, the city had the right to require the contractor to lay additional sewers for which they should be compensated at unit prices.

The second item of the claim is for extra excavation for house lateral trenches of a greater depth than six feet. The arbitrator allowed the contractor for this work at unit prices which was clearly right. The depth of the house connections was not fixed by the contract and hence the excavations for making such connections were to be paid for under sec. 39 of his specifications, which provides that: “All work done on excavations as above specified or as may be required shall be included in the prices bid per running foot of sewer construction.” This claim, like the one just considered, is based on the alleged representations of the engineer, which, as we have seen, were not sufficient to modify or change the stipulations of the contract. The contractor was dealing with the municipality and the latter is bound by its contract and not by the unauthorized representations or declarations of its officers which would change the written stipulations of that agreement: Martin v. Berens, 67 Pa. 459; Phillips v. Meily, 106 Pa. 536.

The third item of the claim is for removing and replacing pavements on streets in which trenches were dug and additional sewers were laid by the plaintiffs. The arbitrator allowed compensation for this work at unit prices, and declined to allow for it at the rate at which extra work was to be paid for. This work comes within the provisions of sec. 22, providing for payment at the prices per running foot for resurfacing streets, and of sec. 64 of the specifications, and the arbitrator was right in holding that it was not extra work within contemplation of the contract which entitled the contractor to additional pay for the work. The engineer was authorized to require additional sewers to be laid at unit prices, and it follows that the additional repaving necessary to complete such work should be paid for at the prices fixed for original work of the same character.

We do not agree with the learned court below that the arbitration clause confers jurisdiction upon the engineer to determine the plaintiffs’ right to or the amount of damages alleged to be due by reason of the failure of the city to provide an outlet for the sewers constructed under contract “B,” or to determine the right of the plaintiffs to recover the liquidated damages withheld by the city for failure to complete the work within the time specified in the contract. Unless clearly conferred by the arbitration article, the arbitrator had no authority to pass upon these questions and thereby deprive the plaintiffs of their right to trial by jury. The burden is upon the defendant to point out the provision in art. 3 of the contract which empowers the arbitrator to pass upon these questions, and failing to do so the plaintiffs have the right to maintain this action and have their rights adjudicated by the court. Turning to the article in question, we see that it authorizes the engineer to determine the amount, quality, acceptability and fitness of the work and materials, to decide all questions which may arise as to the measurement of quantities and the fulfillment of the contract on the part of the contractor, and to determine all questions respecting the true construction or meaning of the plans and specifications. His decision on these questions is made final and conclusive.

It will be observed that the article does not confer upon the engineer generally the power to construe the contract, and thereby deprive the plaintiffs of the right to submit that question to the court. The extent of the authority of the engineer in that respect is his power to determine the “true construction or meaning of the plans and specifications.” As suggested above, he may determine what is extra work within the meaning of the plans and specifications. The contract was let at unit prices, but provision was made for extra work to be paid for at the prices therein specified. The plans and specifications provide what is regular work and what is extra work, and in case of dispute it is the duty of the engineer to interpret the plans and specifications and determine the character of the work. Having done so, he then ascertains the amount, quality and acceptability of the work.

The question presented in the claim for damages for failure to provide an outlet for the sewers requires the construction of the whole contract; and not simply of the plans and specifications. It is a question which must be determined by the construction of the several parts of the agreement which is made up of the notice to bidders, the contract proper, the plans and specifications and all other matter relating thereto. It cannot be seriously contended that the engineer, as arbitrator, would have jurisdiction to determine whether the parties had entered into a contract for the construction of the sewers, or what damages the plaintiffs had sustained if the defendant had refused to permit the plaintiffs to furnish the materials and do the work, or to determine what damages the city had sustained if the plaintiffs had declined to furnish the materials and construct the sewers. With equal reason, it seems to us, that the arbitrator is without jurisdiction to determine whether the contract, as contained in the several parts thereof, contemplated that the city should, by the construction of a sewer under contract “ C” or by other means, furnish an outlet for the sewers constructed by the plaintiffs under contract “ B,” and if such an outlet was contemplated by the parties and provided for in the contract, what damages the plaintiffs sustained by the failure of the defendant to keep its covenant. Keeping in view the settled rule that the court is not to be deprived of its jurisdiction without clear and plain terms in the arbitration clause, we think this is the proper interpretation of the article in contract “3,” conferring arbitral powers on the engineer. There is no express provision in any part of the agreement requiring the plaintiffs to cleanse the sewers, and the question does not depend simply upon the construction of the plans and specifications, but upon an interpretation of the whole agreement. The statement avers that the plaintiffs were not obliged under the contract to clean the sewers, and that if the city had provided an outlet, as required by the agreement, the expense of' such cleaning would have been trivial. This claim, we think, should go to a court and jury.

By art. 17 of the agreement the contractor was required to complete the work by January 1, 1906, and the city was authorized to deduct out of moneys due the contractor $50.00 per day as liquidated damages for every day the work was not completed beyond the time specified. The arbitrator decided that the city had the right to retain a certain amount under this provision of the agreement. How the arbitrator arrived at the amount for which he allowed a credit does not appear, nor is it material, as we do not think he had the authority to adjudicate the question. It is argued by the defendant that the plaintiffs could only be relieved from their default under this article of the contract by an application to the engineer for an extension of time under art. 16 and, failing to make such application, the city had the right to retain the per diem sum as liquidated damages for any time the contract was not completed beyond January 1, 1906. It is not averred in the statement that the plaintiffs made an application and were refused an extension of time in which to complete the work, but it is averred that the failure to complete the contract “was not due to any fault or neglect on their part but wás the result of the acts, omissions and requirements of the engineers, the board of public works and the defendant as hereinbefore set forth.” These “acts, omissions and requirements” did not consist in obstructing or delaying the contractor “in doing the work or furnishing the materials to be done and furnished by the city” which prevented the contractor from claiming damages, and hence the plaintiffs were relieved from making an application for an extension of time as required by art. 16 of the contract. That article of the agreement provides that if the contractor is obstructed or delayed in the prosecution or completion of the work by any delay on the part of the city in doing the work or furnishing the materials he can have no claim for damages for such delay, but is required to make an application to the engineer for an extension of time. The averment in the statement, therefore, takes it out of the provision of this part of the agreement, and alleges that the failure to complete the work was the “acts, omissions and requirements” of the defendant, of a character other than those named in art. 16 of the contract. If the failure to complete the work as required in the agreement consisted in such neglect or default of the city as is not relieved against in the contract, the responsibility must rest with the city and not with the plaintiffs, and it would deprive the defendant of the right to retain for such delay any sum as liquidated damages under clause 17 of the contract. There is no provision in the arbitral clause conferring jurisdiction upon the engineer to determine this question. We have distinctly ruled that a provision in a building contract to submit questions that may arise as to the fulfillment of a contract does not give the right to pass on a claim for damages for nonfulfillment: Somerset Borough v. Ott, 207 Pa. 359. It is equally apparent that such authority is not given by the clause which confers power upon the arbitrator “respecting the true construction or meaning of the plans and specifications.” This is the only part of the clause under which it can be pretended that the arbitrator has jurisdiction to determine the right of the defendant to retain liquidated damages, and as this right is conferred by the contract proper and not by the plans or specifications it is manifest that the clause does not confer authority to determine the question.

We do not think the omission to itemize the claim for damages for failure to construct an outlet or the claim for liquidated damages retained by the defendant defeats the plaintiffs’ right of action for either of these items. If the defendant city desires a more detailed statement of either item of the claim, and such can be given, it may be obtained by an application for a bill of particulars.

For the reasons stated, the judgment of the court below sustaining the demurrer is reversed with a procedendo.