15. EVIDENCE 213(1)—OFFER OF COMPRO- | refused to measure or estimate all of such extra MISE. A rejected offer of settlement of a dispute under a contract is not admissible in an action on the contract. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §8 745, 748-750; Dec. Dig. 213 (1).] Appeal from Baltimore Court of Common Pleas; Walter I. Dawkins, Judge. "To be officially reported." Suit by Charles B. Clark against the Mayor and City Council of Baltimore. Judgment for plaintiff, and defendant appeals. Reversed, and new trial awarded. Plaintiff's granted prayers and defendant's rejected prayers are as follows: concrete, as so directed to be done, and shall further find that the same has not been paid for or allowed to the plaintiff by the defendant in the payments made to said plaintiff." Granted as modified. Plaintiff's fifth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that the plaintiff, Clark, put certain sheeting in the trenches for the erection of the diversion sewer referred to in the evidence, and that the plaintiff, Clark, has not been fully paid by the defendant, the city of Baltimore, for all sheeting trench and in their discretion did not order to which the defendant engineers saw in the be withdrawn therefrom, then the plaintiff, Clark, is entitled to be paid for all such sheeting which the jury find was so left in the said trenches and was not ordered to be withdrawn by the defendant's engineers, and for which he has not been paid; if the jury so find, at the rate of $40 per thousand feet board measure. Provided, however, the jury further find that the said timber was left in the exercise of such discretion by the defendant's water engineer or his representative, and shall further find that the said engineer or his representative, in computing the monthly and final estimates for sheeting, did not measure the entire amount of such sheeting or did not have reasonably adequate information upon which to prepare such estimates and did not exercise reasonable diligence to secure such adequate information, and made (gross) errors in allowing to plaintiff, Clark, for sheeting in such estimates." Granted as modified. Plaintiff's first prayer: "At the request of the plaintiff, Clark, the court instructs the jury that, if they find from the evidence in this case the following facts: (1) That sheeting was required by the excavation work in building the sewer referred to in the evidence. (2) That, in order to do the excavation work involved (included) in preparing the trenches for said sewer, it was necessary for said Clark to excavate a trench outside of beyond the (neat) lines of a trench having a width at the bottom of 109 inches for the 69 inch sewer, and a width at the bottom of 96 inches for a 60 inch sewer. (3) That the water engineer of the city, or his representative, measured or estimated the material so excavated on the basis of a width of trench of a less area than the trench as actually excavated-then, by Plaintiff's sixth prayer: "At the request of the true construction of the contract involved in the plaintiff, Clark, the court instructs the jury this case, the plaintiff is entitled to be paid that if they find from the evidence in this case for all such material as was (reasonably) neces-that on or before October 11, 1909, the defendsary to be so excavated for which the jury may find the plaintiff, Clark, has not been paid or allowed by the city, at the rate per cubic yard of $1.20 for loose rock, $2.75 for solid rock, and 60 cents for earth." Granted as modified. Plaintiff's second prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that, in excavating the earth or loose or solid rock in constructing the trenches for the work involved in this suit, it was necessary for the plaintiff, Clark, to excavate the same below the grade established by the city's water engineer, and that the plaintiff, Clark, has not been paid for or allowed by the defendant, the city of Baltimore, for any material excavated below the grade established by the city's water engineer, then the plaintiff, Clark, is entitled to recover therefor to such depth as actually excavated, not exceeding six inches below the established grade (payment therefor to be made at the rate of $1.20 for loose rock $2.75 for solid rock)." Modified and granted. Plaintiff's fourth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that the defendant's water engineer, Quick, did by two letters dated October 8, 1908, and October 19, 1908, order in writing certain additional concrete outside of the lines called for by the plans offered in evidence, said concrete to be placed where directed either by said Quick, or his representatives, Sudler or Beatty, and that the plaintiff, Clark, did in consequence of said letters between the dates of October 8, 1908, and December 12, 1908, at places authorized by any one or any of said Quick, Sudler, or Beatty, certain extra concrete work for which he has not been fully paid or allowed by the defendant, then the plaintiff is entitled to recover therefor at the rate per cubic yard of $8 for invert work and $9 for arch work, provided the jury find further that defendant's water engineer or his representative failed or or about ant's water engineer or his representative, with Granted. Plaintiff's seventh prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence that the city's engineers on the work referred to in the evidence required the plaintiff to do certain extra concrete work and failed or refused to give the plaintiff orders in writing therefor, and that the plaintiff was by such failure or refusal, if the jury so find, delayed in the execution of the work required by him to be done under the contract between the parties to this case, and was thereby damaged, then the plaintiff, Clark, is entitled to recover therefor in this action." Granted. Plaintiff's eighth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that the measure of damages for any delay caused to said Clark by the defendant, or its agents, in the premises, (if the jury so find), is the allowance of such sum to the plaintiff as is reasonably necessary to place him in the same condition he would have been in if he had been allowed to proceed without any interference by the defendant or its agents in the premises." Granted. Plaintiff's ninth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that, if they find a verdict in favor of the plaintiff, Clark, then they may (are entitled) in their For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes discretion allow the plaintiff, Clark, interest upon such amount as they may find to be due to the said plaintiff at (the same at) the rate of 6 per cent. per annum, said interest to commence from 30 days after the material and work had been furnished in conformity with the terms of the contract between the parties and (30 days) after the completion and acceptance of the work in writing by the city's water board." Granted as_modified. Defendant's first prayer: "The court instructs the jury that, under the contract offered in evidence, the water engineer was authorized to determine all questions in relation to the amount and quality of the several kinds of work which were to be paid for under said contract, and to determine all questions in relation to said work and the construction thereof, and decide all questions which might arise relative to the execution of said contract on the part of said contractor, and that the estimate and decision of said water engineer, by the agreement of the parties, was made final and that such estimate and decision of the amount and quality of the several kinds of work to be paid for under said contract is a condition precedent to the plaintiff's right to recover, and that upon the undisputed evidence in this case the said water engineer did, on the 11th day of October, 1909, render his decision upon every question in dispute between the parties, and did send a statement to the city comptroller showing his decision, and that according to said decision and the evidence there is now due the contractor (plaintiff) the sum of $3,008, with or without interest thereon, in the discretion of the jury, from the time when the same was due and payable; that there is no evidence in this case legally sufficient to show that the said water engineer, or any engineer representing the defendant on the work mentioned in the evidence, was guilty of any fraud or bad faith in the rendering of said decision, and therefore the same is binding, in this case, and the verdict of the jury should be in accordance therewith." Refused. Defendant's second prayer: "The court instructs the jury that, under the contract offered in evidence, the water engineer was authorized -to determine all questions in relation to the amount and quality of the several kinds of work which were to be paid for under said contract, and to determine all questions in relation to said work and the construction thereof, and decide all questions which might arise relative to the execution of said contract on the part of said contractor, and that the estimate and decision of said water engineer, by the agreement of the parties, was made final, and that such estimate and decision of the amount and quality of the several kinds of work to be paid for under said contract is a condition precedent to the plaintiff's right to recover, and that upon the undisputed evidence in this case the said water engineer did, on the 11th day of October, 1909, render his decision upon every question in dispute between the parties, and did send a statement to the city comptroller showing his decision, and that according to said decision and the evidence there is now due the contractor (plaintiff) the sum of $3,008, with or without interest thereon, in the discretion of the jury, from the time when the same was due and payable; that then the decision of said engineer is binding upon the plaintiff, and the jury should be governed thereby in finding their verdict, unless the jury find that in making such decision the said water engineer was guilty of fraud or bad faith." Refused. Defendant's third prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover any verdict against the defendant, for and on account of any concrete or concrete work done by the plaintiff, as mentioned in the evidence, over and above that which has been allowed by the estimates of the water engineer Defendant's fourth prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover any verdict against the defendant, for and on account of any lumber left in trench, or otherwise left or used in connection with the work mentioned in the evidence, over and above that which has been allowed by the estimate offered in evidence." Refused. Defendant's fifth prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover any verdict against the defendant, for and on account of any damage accruing to the plaintiff because of any delay in connection with the work under the contract mentioned in the evidence." Refused. Defendant's sixth prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to prove that the defendant caused the plaintiff to suffer any delay in the prosecution of the work mentioned in the evidence, for which the plaintiff is entitled to recover any damage." Refused. Defendant's seventh prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover any verdict against the defendant, for and on account of any excavation work done by the plaintiff, as mentioned in the evidence, over and above that which has been allowed by the estimates offered in advance." Refused. Defendant's eighth prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover any verdict against the defendant, for and on account of any improper classification of any of the work done by the plaintiff, as mentioned in the evidence." Refused. Defendant's ninth prayer: "The court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover any verdict against the defendant for or on account of any excavation work done or concrete used, or concrete work done below the subgrade line of the trench, mentioned in the evidence over and above that which has been allowed by the estimates offered in evidence.” Refused. Defendant's tenth prayer: "The court instructs the jury that as a matter of law the letters of October 8, 1908, and October 19, 1908. from Alfred N. Quick, to the plaintiff, offered in evidence, constitute no legal authority to the plaintiff for the doing of work for which the plaintiff is entitled to recover anything in addition to said amounts as may have been allowed under the estimates of the water engineer offered in evidence." Refused. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, and URNER, JJ. Robert F. Leach, Jr., Asst. City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellant. Raymond S. Williams and James Morfit Mullen, both of Baltimore, for appellee. THOMAS, J. In June, 1908, the appellee entered into a contract with the mayor and city council of Baltimore to construct a diversion sewer, according to certain plans and specifications made a part thereof, and to furnish all labor and materials necessary for that purpose. The contract contained, among others, the following provisions: "The water engineer shall have the power to make such changes in the plans or additions thereto as may be found advisable during the progress of the work, and should such changes or addi not herein provided for, the contractor shall per-, form the same as directed and shall be paid therefor an amount equal to its actual cost to him for labor and materials plus twelve and one-half per cent. for profit. The contractor must submit to the water board satisfactory vouchers for all labor and materials furnished by him in the execution of such work, which shall be classed as 'extra work' and must be authorized in writing by the water engineer. "Payments for work shall be made as follows: On or about the last day of each calendar month, the engineer in charge shall make an estimate of the value of the work done and material furnished to that date, and within thirty days thereafter there shall be paid to the contractor ninety per cent. of such valuation, less previous pay ments. Final payment of ten per cent. of the contract price may be withheld for a period of thirty days after completion and acceptance of the work in writing by the water board. "The payment and acceptance of the amounts indicated by the engineer in charge shall not be considered as binding upon either the contractor or the mayor and city council of Baltimore should the mayor and city council of Baltimore have any doubt as to the accuracy and fairness of the estimate, in which event the water board may have a true and correct estimate made, upon which settlement shall be based, and which shall be final and conclusive. "The water board shall act as agent for the mayor and city council of Baltimore in all dealings with the contractor; and the work shall be done under the supervision of the water engineer as president of the board. Whenever the word 'engineer' is used herein, it shall be understood as referring to a duly authorized representative of the water board." Under the head of "Specifications," the contract contained the following provisions: "Diversion sewer with vitrified brick invert and concrete walls and arch, shall be built as shown on the plans," etc. "Excavated material will be classified for payment as 'earth,' 'loose rock,' and 'solid rock.' 'Earth' shall include macadam stones, loam, sand, clay, 'soft rotten rock,' gravel or other earthy material, including boulders of volume not greater than two cubic feet. Loose rock' shall include seamy hard rock that may be economically loosened with pick or bar in pieces of no greater volume than two cubic feet, and also boulders that may be economically broken up for removal by mudcapping or otherwise without drilling. 'Solid rock' shall include solid ledges or large boulders requiring to be drilled and blasted for removal. "Excavated material will be paid for on 'place measurement,' and prices shall include back fill and disposal of surplus material at points designated, etc.-Payments will be based on widths of trenches as follows: ...... For bell mouth and drops neat lines. "Material excavated outside of the above lines unless authorized in writing by the water engineer will not be paid for except where sheeting is required, when the additional width necessary will be allowed. "The depth of trenches in earth shall be to the grade established by the engineer, in loose or solid rock, excavation may extend not more than six (6) inches below the established grade; whenever excavation extends below the established grade the contractor at his own expense shall refill up to the grade line with approved material, furnishing a solid foundation. shall be used where necessary and cradles or platforms shall be laid in the bottom of the trench should the engineer so direct. Sheeting shall be withdrawn at the discretion of the engineer. Sheeting left in place and timber in platform or cradles will be paid for at the proposal prices per foot B. M." Under the head of "Conditions of Agreement," the contract also provided: this contract, that the water engineer shall de"It is agreed by and between the parties to termine the amount and quantity of the several kinds of work which are to be paid for under this contract, and shall determine all questions in relation to said work and the construction thereof, and decide every question which may arise relative to the execution of this contract on the part of the contractor, and his estimate and decision shall be final and conclusive, unless modified, changed or disapproved by the said water board." The contractor agreed to include in his estimate all the labor and all the material necessary to construct the sewer in a substantial and workmanlike manner according to the plans and specification. "The said estimates to include every item of cost in the construction and erection of the said diversion sewer, together with any additional expense which may accrue to said contractor for any part of the work, consequent upon any delays or difficulties encountered of any character whatsoever, and the contractor will not find the said water board liable for any expense over and above the prices as are hereinafter set forth; for extra work shall, under any circumstances, and the contractor further agrees that no claim be allowed or considered, unless ordered as such, in writing, by the water engineer and approved by the water board. "And the contractor agrees to receive, and the mayor and city council to pay, as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to be done under this agreement, and in all respects completing the same, the prices set forth below for each of the various classes or kinds of work to be done or materials to be furnished, to be paid in the following manner, viz.: Monthly payments equal to ninety (90) per cent. of the value of the work when completed as estimated, on or about the twentieth day of each month, by the water engineer or his appointed representative, and final payment of (10) ten per cent. reserved upon the expiration of thirty (30) days after all material and work shall have been furnished in conformity with the terms of this contract, and the water board shall have accepted the same, the said water board will pay to the said contractor whatever money is due or payable to him for the completion and performance of said work, said prices as follows," etc. In this clause the city agreed to pay for excavating earth 60 cents per cubic yard, for excavating loose rock $1.20 per cubic yard, for excavating solid rock $2.75 per cubic yard, for sheeting and other lumber left in the trench $40 per thousand, for the 60-inch sewer in place $6.25 per lineal foot, and for the 69-inch sewer in place $7.25 per lineal foot; and the contract contained the further provision: "And the contractor agrees that all estimates shall be made by the water engineer or his representative, and that payment will be made on the said estimates made by the said water engi following directions in order to avoid the use of concrete on the sides of the trench: The appellee began the work under the contract in July, 1908. Monthly estimates of the work done, etc., were made out by P. "Where the section has run wide in rock, you A. Beatty, the resident engineer, and the ap- have the option of filling with concrete to the sides of the trench-for which no excess will be pellee was paid the amount of the estimates, allowed except at those points and in such quanless the 10 per cent. retained by the city un- tities as I shall authorize in writing-or of der the terms of the contract. In August, forming over such openings to the height of the 1908, after receiving the first estimate, the upper line of brick invert (to which point the appellee complained of the classification of operation) in such a manner as to give the full concrete invert is always brought in the first the material excavated, and wrote Mr. Beat- outside lines of the sewer section. This forming ty asking for a reclassification. This letter will be of one-inch, plank where the voids are was referred to Mr. Quick, the water en- small and irregular and the points of rock afford frequent support. Of two-inch plank where the gineer, who wrote the appellee that, as he voids are large and much stiffness required to had receipted for the work done in July, it maintain line. Before the concrete is placed, was too late to ask for a reclassification of the voids shall be thoroughly filled with rammed the excavation allowed in that estimate, but inspector shall direct where the two-inch plank material suitable to make compact work. The that he would be glad to consider any com- shall be used, and should a discussion arise, the plaint of any subsequent classification, and, engineer will inspect the point and decide upon in answer to a further request of the appel- the thickness of the forming necessary. inspector will keep an accurate record of all lee for a reclassification of said material, Mr. material thus used for forming and you will be Quick wrote him that he had referred the paid for such as must remain in the work. The matter to Mr. Sudler, engineer in charge, and intention being to avoid the claims for excess requested him to meet the appellee and goneer-and to use as little forming lumber as concrete at points not authorized by the engiover the matter with him. practicable in holding the concrete to the neat lines." On October 8, 1908, Mr. Quick wrote the appellee as follows: "Mess. J. B. Clark & Co. 10 E. Lexington Street, City-Gentlemen: We have found it necessary to have additional concrete outside of the lines called for by the plans governing your contract. I understand that you have agreed to put in this concrete at $8.00 a cubic yard. Therefore, you are hereby authorized to place such extra concrete in the arch or sewer invert where directed either by myself, Mr. Sudler or Mr. Beatty, at eight dollars ($8) per cubic yard. Please advise me in reply to the above by return mail if you will undertake this work as directed. Yours truly, [Signed] Alfred M. Quick, Water Engineer.' The In reply to this letter of Mr. Beatty, the appellee wrote him, on December 15th, that the method suggested by him for avoiding the use of concrete on the sides of the trench would delay the concrete work and would cost him more than the amount of timber involved would be worth, and asking him to suggest some other method that would compensate him. On December 10, 1908, the appellee wrote Mr. Quick inclosing a statement of accounts for extra concrete and other items, for which he asked payment in his November estimate, and stating that the same had been taken up with the resident engineer, who, because of his "lack of authority to handle same," had referred the appellee to him. On December 11th the appellee also wrote Mr. Quick complaining that Mr. Beatty, in computing the excavation allowed him, had "figured only on 109-inch width of trench allowed for rock excavation in connection with 69-inch sewer," stating that under the terms of the contract when sheeting is required additional width necessary should be allowed, that, owing to the In answer to the appellee's letter of Oc- formation of the rock he was required to tober 12th Mr. Quick wrote him: To that letter the appellee replied as follows: "Baltimore, October 12, 1908. Mr. Alfred M. Quick, Water Engineer, City Hall, City-Dear Sir: Your letter of October 8th with reference to extra concrete. The price of $8.00 per cubic yard for invert concrete is very satisfactory to us. The cost of arch concrete will be greater on account of richer cement mixture and more difficult form work. We would suggest that $9.00 per cubic yard for arch work would leave us fair profit and would be slightly lower than figured in our bid for similar work. [Signed] Č. B. Clark & Co." "Gentlemen: In reply to yours of the 12th instant, in which you say that $8.00 is a satisfactory price to you for the extra concrete for the invert, but suggest $9.00 for the concrete in the arch of the sewer, I would say that we agree to allow $9.00 the price you suggest; so therefore you will proceed with the extra concreting on the basis of $8.00 per cubic yard for the concrete used in the invert and $9.00 a cubic yard for that used in the arch. Yours truly, [Signed] Alfred M. Quick, Water Engineer." On December 10, 1908, Mr. Beatty wrote the appellee that, in order to avoid the use of concrete outside of the section authorized by the plans, he should bring up the bottom of the trench to the grade of the bottom of the sewer with suitable material properly excavate, it was not possible to sustain the sides of the cut "otherwise than by a slope," and asking that he "be allowed to consider sections to be computed for settlement." In reply to these several claims of the appellee, Mr. Quick wrote him on January 5, 1909, as follows: "I have carefully considered your claim for extra compensation on your contract with the city for building the diversion sewer around the Forest Park Reservoir. With regard to your first claim for certain allowances for extra concrete was to be placed, and gave you no reason crete, we told you exactly where the extra conto suppose that the same order applies to other places. This applies to all voids whether in the side or bottom of the trench. simple fact is that you were directed to place a certain amount of extra concrete, both in the The * * * * been paid for every yard of such concrete, and you should not have put in any extra concrete which you were not authorized to put in by us. As to your third claim, the specifications state distinctly that 'cradles and platforms shall be laid in the bottom of the trench should the engineer so direct. Sheeting shall be withdrawn at the discretion of the engineer, sheeting left in place and timber in platform or cradles will be paid for at proposal price.' You have been paid for every foot of timber in cradles and platforms and every foot of timber in sheeting which you have been directed by us, under the authority of the specifications giving us that discretion, to leave in. That is the only thing we have to be sure of in regard to this claim. In regard to the eighth claim: You have been allowed through rock a width of 109 inches from the bottom of the trench up to within 10 feet of the surface and a width of 121 inches for the remaining 10 feet. This is a liberal allowance for sheeting in either rock or earth, and is all that you are entitled to under the specifications. While we do not admit that the sides of a trench must be excavated to any definite slope in this seamy or irregular rock, or indeed in any rock, even if such were the case the above statement would hold good, since the character and structure, or difficulties encountered in excavating the rock do not under the specifications enter into the question, a definite or maximum width of trench for which payment will be made being specifically stated. I see no objection, however, to allowing you loose rock' price for material in such slips as, in the judgment of the engineer in charge, may not be due to a want of care in excavating the trench or failure to properly sheet the same, and I shall instruct Mr. Beatty to make such an allowance. Yours truly, Alfred M. Quick, Water Engineer." On January 28, 1909, Mr. Quick again wrote the appellee, stating that he had taken up the matter of his claims with the city solicitor and the water board, and that the water board had authorized him to settle the claims for extra concrete and additional excavation upon the terms set out in the letter, with the expectation that he would proceed at once to complete the work. This offer of settlement, so far as the offer to pay for extra concrete was concerned, was not accepted by the appellee. No concreting was done by the appellee after December 12, 1908, and the work under the contract was not resumed until March, 1909. The sewer was completed in September, 1909, the work was accepted by the water board October 11, 1909, and the final estimate of the work, etc., dated October 11th, signed by Mr. Beatty, resident engineer, Mr. Sudler, assistant engineer, and approved by Mr. Quick and the water board, shows that the total value of the work done was $60,086.64, and that the balance due the appellee, being the amount retained by the city, was $6,008.67, of which balance $3,000 was paid the appellee in November, 1909, and the balance was retained by the city until the final adjustment of the "disputed points between" the appellee and the city and the execution of a proper release by the appellee. This suit was brought by the appellee in the court of common pleas in May, 1910; but the trial of the case, which resulted in a judgment in favor of the appellee for $13,666.63, did not take place until October, 1915. The claim of the plaintiff is for excavation in addition to that allowed in the estimates as follows: For excavation below the grade line established by the engineer as the bottom of the trench, $661.41; for excavation beyond the width of trench fixed by the specifications, in addition to that allowed in estimate, $2,754; and for error in classification of material excavated, $5,483.90. The plaintiff also claim's $883.55 for extra concrete placed in voids below the grade line and on the sides of the trench from October 8 to December 10, 1908; $1,246.88 for sheeting left in the trench; $3,180 damages due to delay in the prosecution of the work caused by the city; $3,008.70, the balance due him on the final estimate; and interest on these several amounts from November 15, 1909. In the record of nearly 400 pages there are 37 exceptions to the rulings of the court below on the evidence, and one to its action on the prayers. Only two of the exceptions to the evidence were pressed in this court, and in disposing of these and the prayers we shall not attempt to discuss the evidence in detail, or to refer to it further than is necessary in considering the legal propositions involved, [1-3] The contract, as we have seen, provided that the water engineer should "determine the amount and quantity of the several kinds of work" to be paid for under the contract, determine all questions in "relation" to the "work" and "the construction thereof," and "decide every question" relative to the execution of the contract "on the part of the contractor," and that his estimate and decision should be final and conclusive, unless modified, changed, or disapproved by the water board. Now, it must be conceded that all of the work for which the appellee claims payment in this suit, and all the items of his claim, except the item of balance due on the final estimate and damages due to delay caused by the appellant, are embraced in the broad terms of the above provision, and were passed on by the water engineer. The effect of such an agreement, and of the decision of the person to whom such authority is committed, has been frequently considered and decided in this state, where the agreements have been enforced and the decisions of the engineer have, in the absence of fraud or bad faith, been uniformly upheld. See A. & B. R. R. Co. v. Ross, 68 Md. 310, 11 Atl. 820, M. & C. C. of Balt. v. Talbott, 120 Md. 354, 87 Atl. 941, and M. & C. C. of Balt. v. Ault, 126 Md. 402, 94 Atl. 1044, and the cases therein cited. The appellee recognizes the force of these decisions, but contends, in respect to the claims for additional excavation, that under a proper construction of the contract he was entitled, where sheeting was required, to the "additional width" of trench "necessary," and in loose and solid rock to six inches below the established grade; that the water engineer was not authorized to construe the contract |