tire consideration was paid when the defendant executed his obligations to that effect. The defendant is entitled to a single satisfaction of his damages, and, as above stated, he may either bring an original action therefor, or set up his demand as a set-off, or counter claim, to any action brought against him by the party who committed the fraud. The fact that the demands sued on were assigned to the plaintiff, does not exonerate him. It is charged that the false representations were made by him, and he must be held personally responsible for the consequences: Eaton & Co. v. Avery, 83 N. Y., 31. The remaining errors which have been assigned, relate principally to matters concerning which the court was vested with large discretion, and we cannot say that it is not properly exercised. The judgment is reversed, and the cause remanded. PEOPLE V. JOBS. Filed October 1, 1884. CHARTER OF GEORGETOWN-VALIDITY OF SPECIAL LEG ISLATION. The charter of Georgetown having become a law prior to the adoption of the constitution, remains in force after such adoption, so far as not inconsistent with the latter instrument. The fact that it is local or special legislation does not affect its validity. THE SAME AUTHORITY OF POLICE JUDGE. Whether the declaration in such charter, clothing the police judge of Georgetown with power to act as justice of the peace, is valid, quare? Conceding, however, that such extension of power is unconstitutional, the authority of the police judge, as such, is not affected thereby. The right of such officer to preside at meetings of the selectmen, and to exercise other powers, usually devolved upon the mayor, is not abrogated by the constitution. ERROR to the district court of Clear Creek county. The opinion states the facts. W. T. Hughes and L. C. Rockwell, for the plaintiffs in error. HELM, J. The demurrer in this case was properly sustained. Under the legislative enactments existing, of which the court takes judicial notice, the complaint does not state a cause of action. The charter of Georgetown became a law prior to the adoption of the constitution; so far, therefore, as not inconsistent with the latter instrument, this charter remained in force after the adoption thereof. The fact that it is local or special legislation does not, under the circumstances, affect its validity: The People ex rel. v. Commissioners of Grand County, 6 Col., 202. Relator claims that the declaration in this charter, clothing the police judge of Georgetown with power to act as a justice of the peace for the entire precinct, is void; he argues that it is inconsistent with one of the constitutional provisions relating to justices of the peace. The correctness of relator's position might be conceded; for the purposes of this case, however, it is unnecessary to decide the question. If we assume that he is right, it by no means follows that the charter is void, wherein it created the office of police judge, and clothes him with power to dispose of cases arising under the town ordinances. The two offices and jurisdictions are entirely distinct; the provisions relating thereto are in no way dependent upon each other. The princpal purpose of the legislature, unquestionably, was to create the office of police judge, and give the person elected thereto power to punish for violations of the town ordinances; thus far the provision is not in the slightest degree inconsistent with the constitution; on the contrary, that instrument authorizes the creation of this office: See art. 6, sec. 1. Since, therefore, the objection of special legislation is not good, so far the charter provision under consideration is perfectly valid. The addition thereto of a clause, authorizing the police judge to fill the office, and perform the duties of justice of the peace, would not, even if such extension of power were obnoxious to the constitution, render the whole section void; such addition might be regarded as surplusage. This is clearly one of those cases where the valid enactment does not fall with the void provision, if such there be: Trippe v. Overacker, 4 Col. L. R., 405; The Board v. Owen (unreported). The complaint declares that respondent disclaims the right to fill the position, and discharge the duties of justice of the peace; it charges him only with occupying the office and performing the duties of police judge, as provided in the town charter. It entirely fails to state facts, showing a usurpation of the latter position by him. Relator's argument questions the existence of the office; he does not contend that if there is a de jure office, his complaint is sufficient to impeach respondent's right to fill it. The fact that respondent is also authorized to preside at the meetings of the selectmen, and to exercise other powers, usually devolved upon the mayor, is not material. Georgetown has, under the charter, no mayor, and we are aware of no constitutional declaration, which renders void the prior territorial legislative enactments, requiring the police judge to fill this office also, and perform the duties connected therewith. The foregoing conclusions render unnecessary a discussion of the further questions presented. The judgment will be affirmed. D. S. P. & P. R. R. v. RILEY. Filed October 1, 1884. STIPULATION IN BUILDING CONTRACT FOR ARBITRATION-CONSTRUCTION OF CONTRACT.— A stipulation in a contract for building a railroad, that in case any disputes or differences arise between the company and contractors "as to the construction or meaning of the agreement or specifications, or sufficiency of the performance of any work to be done under it or price to be paid, the same shall be referred to the chief engineer of the company, who shall consider and decide the same, and his decision shall be final," is valid, and the decision of the engineer on any of such matters is binding on the parties, in the absence of fraud or mistake on the part of such officer. Held, however, that a dispute as to the amount of work done by the contractor was not included within such stipulation. APPEAL from the district court of Arapahoe county. The opinion states the facts. Teller & Orahood, for the appellant. Brown & Putnam, for the appellee. HELM, J. Appellee brought this action in the court below to recover from appellant a balance claimed to be due for grading seven sections of its railroad. This work was done under a written contract, similar in form to those generally adopted in like cases. Among other provisions in the contract is the following: "And it is further agreed that, in case any disputes or differences shall arise between the company and contractor as to the construction or meaning of the agreement und specifications, or sufficiency of the performance of any work to be done under it, or price to be paid, all such disputes or differences shall be referred to the engineer, who shall consider and decide the same, and his decision shall be final to the parties, who hereby submit all and singular the premises to the award and arbitration of the engineer, and agree that the same shall be final and conclusive between them to all intents and purposes whatsoever; and it is further agreed that the submission to the engineer, touching all matters herein contained, agreed to be submitted to him, shall be deemed, considered and taken as an essential part of this agreement, and not revocable by either of the parties thereto." This specification is perfectly valid and binding. It is simply the declaration which contracting parties have a right to make as to what shall be the mode of proof, or what shall constitute sufficient or conclusive evidence, in case disputes arise upon certain matters contained in the contract; provided the evidence so stipulated for be not illegal: McMalone v. N. Y. and E. R. R., 20 N. Y., 463; Smith v. Briggs, 3 Denio, 73; U. S. v. Robeson, 9 Peters, 371; Wilson v. York and M. L. R. R. Co., Gill and Johnson, 73. Appellee claims that the total amount of work done by him, was underestimated by the engineer, and that consequently his compensation was less by several thousand dollars than it ought to have been. His position is and must be, that the aggregate amount of work under the contract, is not one of the matters as to which the engineer's decision was to be final and conclusive. Upon this view of the contract, adopted by the court below, he obtained his verdict. Upon this view alone, could he have maintained his action; for the engineer had passed upon the measurements and fixed the amount of grading done. Appellee charges no fraud against the officer, nor does he aver or attempt to prove any such mistake on the latter's part as will vitiate his determination of the question; these things being true, the engineer's decision would be final if the matter is covered by the italicized phrases in the above paragraph taken from the agreement: Howard v. The Alleghany Valley R. R. Co., 69 Pa. St., 489; Reynolds v. Caldwell, 51 Pa. St., 298; O'Reilly v. Kerns, 52 Pa. St., 214; Condon v. South Side R. R. Co., 14 Grattan, 302; Vanderwerker v. Vermont Cent. R. R. Co., 27 Vt., 130. Our decision upon the errors assigned in this case, must therefore be controlled mainly by the construction we shall give to this portion of the contract. The engineer mentioned, is the chief engineer of the appellant company. The chief engineer of a company engaged in the construction of an extended line of railway, cannot be personally on the ground superintending the work of each of a number of grading contractAs shown by the record in this case, he is obliged to leave the immediate daily supervision of this work to deputy or assistant engineers; these deputies make the necessary measurements and computations from time to time, and report the same to their chief. ors. They represent the company, however, and disputes between them and the contractor, concerning the work, are disputes between the company and contractor. Such disputes, when referring to the specified matters, are, therefore, among the disputes or differences submitted to the chief engineer for arbitrament. With this explanation, let us discover the true intent of the contracting parties in the foregoing language of the agreement. It will be noticed that measurements of the amount of grading done, are not specifically mentioned. It will also be observed that while the "engineer in charge is to make a final estimate of all the work done," differences concerning this "final estimate words submitted to the final decision of the chief engineer; are these matters so submitted, by a fair and reasonable implication from the above language employed in the contract? Disputes on three questions or classes of questions are referred to the engineer for decision: First. As to the construction or meaning of the agreement and specifications. It would not be contended for a moment that this includes differences concerning a final estimate of the amount of grading done. Second. Sufficiency of the performance of any work to be done. This evidently relates to the character and not the quantity of work performed under the contract; there might be no dispute whatever concerning the number of cubic yards in a given piece of grading, yet very great difference of opinion as to whether the work was done in the manner provided by the specifications. Third. The price to be paid. Four different kinds of work in connection with the grading were mentioned in the contract, and a different price was payable for each, viz: "for earth excavation twenty-three cents per cubic yard; for loose rock, thirty-five cents per cubic yard; for solid rock, one dollar per cubic yard; for extra hauling and over one hundred feet, two cents per cubic yard per one hundred feet." It is obvious that in every section to be graded, there would probably be more or less of each of these different kinds of excavation and also a quantity of the hauling mentioned. The expense of constructing a section depended very largely upon the relative amounts of these different kinds of excavation. It was therefore, of the first importance to determine this question, and settle which of the foregoing prices should be paid for a particular piece of grading. This was also a matter about which there was likely to be differences of opinion between the contractor and the assistant engineer inspecting the work. It seems to us the most reasonable conclusion, that the word "price" in the phrase under consideration, was used by the contracting parties with reference to this question i. e. whether twentythree or thirty-five cents or one dollar, or what proportion of each should be paid for a given quantity of grading. It is true that the aggregate amount to be paid could not be ascertained without first making appropriate measurements; but the question whether a given piece of work is "earth excavation"" loose rock" or "solid rock, and consequently the price payable per cubic yard therefor, is answered by inspection and not by measurement, whether twenty-three cents or one dollar shall be paid per cubic yard, is a question entirely separate and independent of the interrogatory as to how many cubic yards a piece of work may contain. This conclusion concerning the meaning of the language adopted in the contract receives additional sanction from the considerations, that the form used was doubtless prepared by attorneys for the appellant company; and the provision for the submission to the engineer of disputes as to the total quantity of grading done could easily have been placed in the agreement, by plain and unmistakable language. The fact that it was not so embodied is an indication that the company did not intend to have it there. We We do not think the district court erred in its theory of the con tract; therefore the evidence objected to was properly admitted, and the instructions fairly state the laws applicable to the case. conclude that the question as to whether the amount of grading done by appellee under the contract was under estimated by the engineer might properly be tried in this case. There was evidence upon this question on which the jury might rest the finding made; as to its sufficiency they were the judges, and this is not one of those instances wherein we would be warranted in disturbing the judgment based upon their verdict. It will therefore be affirmed. |