ON PETITION POR REHEARING.
PER CURIAM.A petition for a rehearing has been filed in this case, and upon an examination of it, the court was at first disposed to strike it from the files on account of the disrespectful and discourteous language in which it was couched. However, since it was filed, the resident attorney has with*36drawn from the petition and the court is satisfied that he took no part in the preparation of the same. On further consideration, the court concluded to and has made a careful examination of the questions raised by the petition, and we will proceed seriatim to consider them.
Counsel for petitioner raises six questions in his petition, all of which have been considered in the former hearing of this ease, except one, and that is the first question suggested by the petition to the effect that the respondent, the Nelson Bennett Co., showed no legal right to recover in this action and that it affirmatively appears that it has no right to recover by reason of the fact that it had not complied with the requirements of the statutes of Idaho as to foreign corporations.
The trial court in its first finding of fact found that the Nelson Bennett Co. was an incorporation duly organized and existing under and by virtue of the laws of the state of Washington, and during all of the times mentioned in the complaint had carried on business as a contractor, in its corporate name, in Cassia county, state of Idaho, and at all of said times had accepted the provisions of the constitution and complied with the laws of the state of Idaho relative to nonresident corporations doing business within this state. In support of this contention, counsel calls our attention to folio 707 of the transcript, wherein it is made to appear, on the trial of the case, the respondent’s counsel offered in evidence a certificate executed by the Secretary of State, dated December 1, 1904, reciting the fact that the articles of the incorporation of the Nelson Bennett Co. were filed August 1st, 1904, and marked “Plaintiff’s Exhibit 11,” which was received in evidence. It also appears in the transcript that counsel for respondent offered in evidence a certified copy of the written designation of agent by the Nelson Bennett Co., from the county recorder of Cassia county, which certificate was marked “Plaintiff’s Exhibit 21” and received in evidence. Those exhibits with others introduced on the trial of the case were brought to this court by stipulation of counsel for inspection, and many of them not printed in the tran*37script. On an examination of said exhibit 11, we find that the Secretary of State of the state of Idaho certifies that the Nelson Bennett Co. filed in his office on the 1st day of August, 1903 (not 1904, as stated in the transcript), a properly •authenticated copy of its articles of incorporation. It also appears from Plaintiff’s Exhibit 21 that the Nelson Bennett Co. had filed its written designation of agent upon whom process could be served, with the county recorder of Cassia county as early as June 22, 1903. This evidence was amply sufficient to sustain the finding of the trial court to the effect that said respondent corporation had complied with the constitution and laws of this state in regard to foreign corporations doing business in this state.
Said exhibit 11 shows that a mistake was made in the transcript at folio 707, where it recites that the certificate of the Secretary of State shows that the articles of incorporation of the Nelson Bennett Co. were filed in the office of the Secretary of State on August 1, 1904, when, as a matter of fact, said certificate shows that said articles were filed August 1, 1903.
Another complete answer to this contention is that the court by its first finding of fact found that the Nelson Bennett Co. was a foreign corporation, “and at all said times had accepted of the constitution and complied with the laws of the state of Idaho relative to nonresident corporations doing business within this state.” That finding was not excepted to and there is no assignment of error in the record specifying in any manner that said finding is not supported by the evidence. Under the practice of this court, it will review no decision or ruling of the trial court unless the same is assigned as error. And under the rules of this court, the brief of appellant must contain a distinct enumeration of all errors relied upon by the appellant. The record contains no exception to said finding of the court, and appellant’s brief contains no suggestion that that finding of the court is not supported by the evidence. It is too late to assign that finding of fact as an error and present it for the first time on a petition for a rehearing.
*38Another answer to this contention of petitioner is that the Nelson Bennett corporation alleged in its complaint that it had complied with the requirements of the constitution and statutes of this state in regard to filing its articles of incorporation and designating an agent upon whom service of process could be made, and the appellant in its answer denied that allegation on information and belief. That denial on information and belief is no denial of the allegations of the complaint above referred to; hence that allegation is admitted. The fact whether the respondent corporation had complied with the constitution and laws of this state in regard to filing its articles of incorporation and designating an agent upon whom process could be served could have been ascertained by the appellant from the records of the office of Secretary of State and of the auditor of the county where the principal business of the corporation was carried on, as the law requires them to be made matters of record there, and its denial of that fact upon information and belief is not sufficient and is no denial whatever.
Under the provisions of sec. 4183, Bev. Stat., if a defendant has no information and belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in the answer and place his denial on that ground, but this does not authorize a defendant to make a denial on information and belief when the truth of the fact alleged is a matter of public record and within his reach. This court has held in Simpson v. Remington, 6 Ida. 681, 59 Pac. 360, that a denial on information and belief is not permitted “where by a mere inspection of a public record the defendant may have obtained the knowledge as to whether an execution had been issued and returned.” This court again said, in Work Bros. v. Kinney, 7 Ida. 460, 63 Pac. 596, when considering such denials, that ‘ ‘ This is not good pleading, and such denials of matters of record within reach of the defendants, are insufficient.”
We shall consider the second and third contentions as one, as they refer to the same stipulation in the contract on which this action was brought.
*39It is contended tbat tbis court has erroneously construed the provisions of the written contract, which provide that the •estimates of the engineer should not estop the company from annulling the other provision, making his decision final and conclusive between the parties. This court in effect held that a stipulation in a contract requiring the submission of differences and controversies arising thereunder to the chief engineer of one of the contracting parties as umpire, and leaving the measures, estimates and classification of the work to him, and providing that his measurements and classifications shall not estop the party employing the engineer from disputing or questioning them, will not be enforced by the courts as a binding obligation against the other party to the contract. We still adhere to that rule. The contract provides as follows :
“Said second party shall not be estopped by any estimate made by its engineer from showing at any time the true and correct amount and character of the work which shall have been done and materials which shall have been furnished by said first party, or by any person under this agreement. ’ ’
There the contract expressly provides that the second party shall not be bound by the estimates of its engineer of the amount and character of the work. We take it that that applies to all estimates of the several varieties of material required to be excavated and removed and classification of the same. So far as the umpire is concerned, his decision is made •binding upon the first party and not binding upon the second, and for that reason the courts of this state will not enforce such a one-sided provision.
Counsel cites in support of his contention the case of Mundy v. Louisville etc. R. R., 67 Fed. 635, 14 C. C. A. 583. That case involved a contract for the construction of a railroad, and contained a provision to the effect that in computing the.final estimate and giving his final certificate, the engineer should not be bound by any preceding estimates and •certificates, but that such preceding estimates and certificates should be held to be only approximate to the final estimate. That is a very different provision from the one.under consid*40eration. That authorizes the engineer to correct his first estimates in his final estimate, but it did not relieve the second party from the decision of the engineer as made by his final estimates, as does the contract under consideration. The estimate of the chief engineer under the provisions of the contract involved in this case does not bind, and was not intended to bind, the second party, and for that reason the contract in the ease at bar is not similar in that regard to the one in the Mundy ease above cited.
It is also contended that this court has expressly found that the lower court was authorized to go behind the stipulation of the contract as to the finality of the chief engineer’s decision, and thus sets aside the contract for constructive fraud of the chief engineer, and that the court lays down a new rule of law in that regard. Counsel seems to misapprehend, or does not desire to understand, the decision in that regard. In support of this contention, counsel quotes as follows from the opinion:
“The decision of the questions which arise and require the exercise of a judgment of a qwsi-judieial character cannot be delegated by the chief engineer or umpire to anyone. The parties in this ease have agreed to abide by the deliberate and fair judgment of the ‘chief engineer.’ In order for him to fairly, honestly and justly exercise that judgment, it was necessary for him to hear the facts and to take such steps as would enable him to come into possession of the facts in controversy or on which, his judgment and decision depended. Such was not done.”
Counsel says that he does not propose that the implications which arise therefrom shall go unchallenged. The quoted portion of the opinion fairly expresses the views of this court upon the point there under consideration. The record clearly shows that the chief engineer took the estimates and classifications from his subordinates. He knew that his subordinate, Shobert, was very much prejudiced against Mr. Bennett and threatened to “do him.” Mr. Bennett informed Mr. Bickel of this fact and requested him to place some other engineer who was not prejudiced against him in *41charge of his work. Mr. Biekel’s reply indicated that Mr. Shobert was just the kind of a man he wanted as a subordinate, and Mr. Bickel exhibited, as we gather from the record, such arbitrary and wanton disregard of the Nelson Bennett Co. ’s rights as to be equivalent to fraud. This court has held that in order for the chief engineer to honestly and justly exercise his judgment in regard to the matter in controversy, it was necessary for him to hear the facts and to take such steps as would enable him to come into possession of the facts in controversy, and that he hád not done so. We think the record fully justifies the conclusion the court reached on that point.
In this connection it is contended in the third specification that this “court has abrogated the stipulation of the contract, making the decision of the engineer final, not because of any actual or positive fraud or dishonesty, bias or prejudice, but for mistakes of policy, or constructive fraud, thereby declaring a new rule of law, heretofore unheard of.” The court has done nothing of the kind, and no such construction can reasonably be drawn from the opinion. The trial court found as follows:
“That the said chief engineer wrongfully, arbitrarily and without having made proper examinations, inspections and tests, and without having made proper observations, and without sufficient knowledge upon which to found a just judgment in respect to the kind, quality and classification of materials, and in violation of good faith and duty, did make, cause to be made and permit untrue and grossly erroneous estimates and classifications' of the kind, character and amount of materials removed and placed, and work done, by said plaintiff. The said chief engineer, in arriving at his conclusions, based his judgment almost entirely upon reports made to him by his subordinates, and without any due or proper examination made by him to verify these reports. That the reports of the subordinates were grossly incorrect and untrue. ’ ’
If that finding of the trial court is not sufficiently strong to satisfy counsel that the court found the chief engineer ex*42hibited such an arbitrary and wanton disregard of respondent’s plain rights under the contract as to be equivalent to fraud, or had committed errors and mistakes to the respondent’s prejudice, so gross and palpable as to leave no doubt in the mind of the court that grave injustice had been done to the respondent, it must require very strong language to satisfy him. In effect the trial court found that said engineer was guilty of fraud, although the word “fraud” was not used in that finding. The words, “wrongfully,” “arbitrarily,” “without sufficient knowledge,” “in violation of good faith,” “untrue,” “grossly erroneous,” “grossly incorrect,” and “untrue” are used in said finding. If that finding only finds that said engineer was moved by “mistakes of policy” only, and not by fraud, as suggested by counsel, then we do not understand the language used therein.
The contract considered in Mundy v. Louisville etc. R. R. Co., supra, expressly stipulated that the decision of the engineer should not be conclusive in case of “fraud or mistake.” But the court there held that the stipulation in the contract, to wit, that the engineer’s decision should not be conclusive in cases of fraud or mistake, did not vary the construction of the contract; that in such a contract, the exception therefrom of fraud or mistake would be implied if they were not expressed in the contract; that that exception in such contract is always implied whether it is written in the contract or not. We think that the correct rule. That the provision is not contained in the contract under consideration, but it is clearly implied therein, and the contract will be construed the same as though it were written in the contract.
The court has not desired to reflect on the integrity of any person, as insinuated by counsel for the petitioner, but is controlled solely by the facts as they appear in the records before us. Counsel, with some asperity, has deemed it wise to suggest in his petition for a rehearing that the standing of the engineers referred to, for fairness and honesty, will continue to be of the best, regardless of the decision of this court. So far as this decision is concerned, it is immaterial *43to us wliat their standing ever has been or continues to be. ¥e have been called upon to decide this case upon the record, regardless of the standing of any of the persons named therein, and if their candor and fairness is impeached by evidence in the record, we are not responsible for that.
It is next contended that the court misapprehended the proof in respect to certain items of work in the “hard-pan,” and for that reason failed to reduce the judgment as it ought to have been. "We have gone through the evidence and carefully considered the extensive quotations therefrom contained in the petition, and we are fully convinced that the conclusion reached by the court is correct and should be sustained. The controversy arises mostly from the classification of the hard-pan. While it is true the evidence shows that much of said hard-pan was plowed with a ten-inch plow and six horses, it is also true that the evidence shows that in plowing with six horses and a ten-inch plow, the plow was so set as to cut but six or eight inches in width, and, under the contract, all hard-pan or all earth that could not be successfully plowed with a ten-inch plow and six horses was to be classified as “loose rock,” and simply because many of the contractors did, as they testified, “wear the hard-pan out” with a ten-inch plow and six horses, the record does not show that they could successfully plow it with six horses and a ten-inch plow. There is nothing in this contention.
It is next contended that the court is mistaken as to the state of the proof as to the total quantity of material removed, and upon the. uncontested facts the judgment should be further reduced. It was alleged in the complaint that there had been placed 184,551 cubic yards of embankment in the Dry creek dam, and the answer admitted that there had been placed there 176,073 yards. It was contended that respondent should be paid for only 160,273 cubic yards thereof, that being “within the lines of the stakes and directions given by defendant’s engineer,” and it is averred that respondent was to put a two-foot excess on the sides and top of the dam without pay. It was admitted that there was more material actually placed on the Dry creek dam than was included in the *44measurements of the company’s engineer, and it appears that said excess amounted to something over 20,000 yards. It is clear from the record that there was a dispute in regard to the quantity of material placed in the Dry creek dam, and the court found that there were 208,992 cubic yards placed therein, and that the appellant allowed respondent for only 160,273 cubic yards placed therein. Counsel for appellant admits on page 106 of his brief that respondent never admitted that the total measurements of the chief engineer of the Dry creek dam were correct. The transcript and the briefs of counsel clearly show that there was a contest over the amount of material placed in said dam. After again going over the matter, we are satisfied that our former decision herein is correct. So far as the classification of the material is concerned, we are satisfied with the conclusion reached in our original decision.
The next question raised by the petition is an allowance of $1,008 for “bond-plowing” on the main canal. There is nothing whatever in the contract or specifications requiring “bond-plowing.” In the specifications for the Dry creek dam, which were handed the respondent sometime after he had commenced work on his contract, was a specification for “bond-plowing” and it is as follows: “The surface will then be thoroughly plowed, first, in a direction parallel with the stream-bed, and the second time, parallel with the axis of the dam, throwing up ridges and making deep furrows between.” There is no requirement in the contract or specifications for “bond-plowing” anywhere on said canal, except as above set forth, and that applies only to the Dry creek dam.
It is contended that as respondent agreed to construct the banks of the canal in a good, workmanlike manner out of materials excavated out of the prism of the canal, making the embankment as near water-tight as possible of suitable fiia-terials to be judged by the engineer and in accordance with his instructions, respondent was required to do certain “bond-plowing,” and that in order to do said work in a workmanlike manner, “bond-plowing” must be done. It was held by the *45trial court that under those provisions of the contract, “bond-plowing” was not required to be done; or, if done, under the orders of the engineer, a reasonable compensation should be paid therefor. We think that ruling of the court is correct, and that under the terms of said contract, wherever the respondent did “bond-plowing” under the orders of the chief ■engineer, he was entitled to receive compensation therefor.
We find no merit in the petition. A rehearing is denied.