On Motion for Rehearing.
We have again carefully considered the record in this case in the light of appellant’s motion for rehearing. Appellant among others raises the following contentions :
First: Appellant asserts that the evidence is sufficient to support findings that the decisions of the resident engineer, particularly with reference to the matter of liquidated damages, were the result of “fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment.”
Mark Mosty, one of appellant’s witnesses, testified that the resident engineer stated that it was his intention to break Mr. Ney-land, the appellant, if it was the last thing he ever did. The testimony of this witness and that of Ben Mueller, if believed, indicates that the resident engineer harbored a feeling of ill will or malice toward appellant.
Once it is prima facie established that a decision of the engineer under a contract like the one here involved is erroneous or wrong, testimony tending to show express malice on the part of the engineer toward the contractor would be admissible as being upon the question of whether or not a decision made by the engineer was fraudulent or the result of bad faith. Incorrectness of decision can not, however, be inferred from the existence of bad feeling or ill will between the engineer and the contractor.
As pointed out in the original opinion, we are unable to determine from the record whether the numerous decisions made by the engineer were erroneous or not. For instance, it appears that the resident engineer expressed the opinion that in many details the original plans and specifications were unsuited for the particular roadway covered by the construction contract. For this expressed reason, the engineer made numerous changes in the plans and specifications as he was authorized to do under the contract. In the absence of evidence as to correct engineering practices applicable to the construction of highways over the same or similar terrains as that involved here, we are wholly unable to determine whether or not these changes made by the engineer were correct or justified. We can not conclude from the fact that numerous changes in plans were made that such variations were unwarranted and the result of caprice or ill will on the part of the engineer. The decisions involved in these changes must be shown to be wrong and incorrect by competent evidence.
Appellant asserts that while this case was in the progress of trial in the lower court, the District Judge “in writing advised counsel for appellant that he might proceed to develop his case, but that when he rested he might expect a directed verdict against the appellant.” It is then suggested that for this reason the holding hereinabove stated may not be properly applicable to the matters here discussed. Appellant cites no authorities, and we have been unable to find any, which support the suggestion made. We do not believe that the statement attributed to the trial court by appellant would authorize us to indulge the presumption that the decisions of the engineer were incorrect in the absence of evidence to that effect.
Second: Appellant asserts that the evidence shows that the resident engineer *337failed to endorse upon the original plans the changes and alterations made by him; that damages were sustained by appellant as a result of the failure, and therefore the case should have gone to the jury upon this theory of recovery.
We are unable to agree with appellant’s contention. The contract provided that “authorized alterations will be endorsed on approved plans or shown on supplementary sheets.” The witness Ben Mueller testified that the resident engineer “was handing me slips of paper with the differences in the crown and widths and slips varying from the plans, and I asked him to put the changes on the plans so I would then have the plan to work by, and he started putting them down, he made two changes, and said: no, I am not going to, I might want to change that — you -are trying to get me to stick my neck out; we still have the changes he made.”
According to Mueller, the engineer promised to furnish certain drawings for his guidance in construction work but failed to do so. It does however appear that the construction work progressed and was performed in accordance with changes made orally or in the plans and specifications by means of oral or written instructions of the engineer. This variation of method from that prescribed in the contract is regarded by us as a deviation from the contract rather than an abrogation thereof. The rule, therefore, applicable to this situation is that “while deviations from contract do not necessarily cause a failure of performance or an abrogation, they may entitle the parties to extra compensation or damages.” 17 C.J.S. 1092, Contracts, § 510. It is also well settled that actual damages can not be recovered unless the evidence shows “the extent or amount of the party’s loss, injury or prejudice.” 13 Tex. Jur. 360, § 205.
Mueller’s testimony indicates that delays in the progress of the work were caused by the engineer’s refusal to endorse his changes upon the plans and specifications, but appellant points out no evidence which would afford a basis for a jury’s estimate as to the monetary loss or damages sustained thereby. Appellant seem-•ingly takes the position that the trial court erred in giving the peremptory instruction, even though the record discloses “no satisfactory way of determining the amount of damage.” We have some doubt as to whether or not a cause of action is made out based upon a deviation from a contract as distinguished from a breach thereof, in the absence of proof of actual damages. However that may be, the contract here involved differs from the type usually encountered, in that it provides for an arbiter or referee. Claim for additional time, extra compensation or damages occasioned by changes in plans or failure to make such changes as provided for in the agreement, are matters arising “under the terms of the contract between the parties thereto.” It appears that an award of damages was made by the engineer, the referee under the contract, against the contractor and in favor of the State. It also appears that in fixing the amount of the award certain allowances were made in favor of the contractor. This is apparent from the fact that nearly one year (and a year is generally considered as containing 300 working days) was required by the contractor for the construction of the road covered by the contract. He was allowed 120 days for such construction by the contract, and the award of $5,475 is necessarily based upon a holding that the contractor was only liable for -an excess of 73 days. In order to reduce the amount of the award made in favor of the state, avoid it entirely, or replace it with an award against the State and in favor of the appellant, it was, among other things, incumbent upon appellant to show that the time allowance made by the engineer was incorrect, or that appellant had suffered a pecuniary damage by reason of the action of the State or its employees which had not been allowed by the engineer in a correct and sufficient amount. This obviously can not be done unless some basis or measure of damage is shown by the evidence.
After a consideration of all grounds for rehearing set forth in appellant’s motion, we are of the opinion that our original disposition of this case was correct, and the motion for rehearing is accordingly overruled.