I find myself unable to concur with the majority. I don't think the changes in the plans and quantities were so material or radical *Page 684 as to alter the character of the work and justify the application of the quantum meruit rule, but, rather, such changes as it was contemplated might be made by the city within the following provision of the plans and specifications made a part of the contract by reference:
"CHANGES IN PLANS AND QUANTITIES. The City Engineer, under the direction of the Board of Public Works and upon its approval, reserves the right, by proper order in writing, to make changes in the plans for this improvement, to make variations in the quantity of the work to be done, and to eliminate any of the items of work at any time, either before the commencement or during the progress of the work, without thereby altering or invalidating any of the prices herein named. In case such action should diminish the amount of work, no claim shall be allowed for damages on the ground of loss of anticipated profits. Provided, that if such action should be taken after the commencement of any particular piece of work, and should thereby result in extra cost to the contractor, the City Engineer, with the approval of the Board of Public Works, shall make a fair and equitable estimate of the amount to be allowed therefor, which shall be accepted as final by both parties to such contract."
The city engineer certified, and the city paid, such allowances as were due the contractor by reason of the changes made in conformity with this provision.
It is a settled rule in this jurisdiction that, where a contract for public work makes, in explicit language, the decision of the engineer final as to the performance of the contract, such decision is conclusive upon the parties in the absence of fraud, arbitrary or capricious action, or mistake so gross as to imply bad faith.
McKivor v. Savage, 60 Wash. 135, 110 P. 811; Hutchinsonv. Spokane, 72 Wash. 56, 129 P. 892; Mallory v. Olympia,75 Wash. 245, 134 P. 914; McGillivrae v. Bremerton, 90 Wash. 394,156 P. 23; *Page 685 State ex rel. Peterson v. Seattle, 93 Wash. 593, 161 P. 478;Baumgartner v. Renton, 96 Wash. 588, 165 P. 484; CoyleConst. Co. v. Skagit County, 177 Wash. 520, 32 P.2d 106.
I am of the opinion that the judgment of the trial court was correct and should be affirmed.
BLAKE, C.J., MAIN, and BEALS, JJ., concur with GERAGHTY, J.