delivered the opinion of the court, November 13th 1876.
By the contract of December 15th 1869, Barnes agreed to pay to Collins and Moorehead, on the monthly estimates of the engineers of the railroad company, eighty-five per cent, of the value of the work to be by them done, and when all said work was fully completed, “ agreeably to the specification, and in accordance with the directions and to the satisfaction and acceptance of the chief engineer of the Connecticut Western Railroad Company,” there was tobe “a final estimate made'of the quantity, character and value of said work,” agreeably to the terms of said agreement, and' then, and not until then, Barnes became liable to pay the plaintiffs the balance which might appear from such final estimate to be due. *18Now, undeir this contract, what the division engineers have done is of no consequence, for their estimates governed only as to the partial payments, but when Collins and Moorehead came to demand final payment, the reserved fifteen per cent., or whatever may have been due upon the contract, they were.obliged,to produce the final estimate of the engineer-in-chief, for that alone could show that 'the work had been approved and accejrted by him, and without this no action would lie against Barnes. This was the law the parties adopted for themselves, and they must be governed by it. It was but reasonable that it should be so, for Barnes was but a contractor; he was himself governed by the same rule, and if the estimates fell short of the expectations of Collins and Moorehead, Barnes could not help it; he lost as well as they, and they could not expect him to pay what he could not get. Both parties were in the same venture, and its failure was a mutual disaster to be borne equally, and so the contract intended. In like manner, the testimony of Collins about his application to Mr. Schunk, the chief engineer, for estimates in order to settle an alleged dispute between himself and Barnes, amounts'to nothing, for he had those estimates as made for the company and its contractors, and it was not Schunk’s business to revise his work upon the call of a sub-contractor. And what was the dispute between himself and Barnes which required the intervention of an arbiter ? They were in perfect accord concerning the estimates, for, if we are to believe Collins’s own testimony, Barnes found as much fault with the estimates as he did; in the condemnation of the work of the engineer they agreed. The dispute, if such it may he called, was one which no arbiter was needed to settle, for Collins wanted, Barnes to pay him for that which, under the contract, he had nó right to demand; to pay him for work which the final estimate showed he had not done. It is manifest, therefore, that that part of the agreement which constitutes tlie chief engineer an arbiter to settle any disputes that might arise between the parties touching the stipulations therein contained, has no place in this controversy. If, however, Collins is to be believed, there was a subsequent arrangement by which the plaintiffs were to receive a pro rata share of what Barnes might recover from the company in a suit then pending against it. The design of this suit was to compel the company to account for work over and above that estimated by the engineer, and to test the question whether that estimate was conclusive on the contractors, or not. It was, indeed, but common justice, that if the defendant recovered from the railroad company for work done by the plaintiffs, they should receive their fair proportion of what that company might be compelled to pay. Independently of this, however, Collins says, that in consideration of this promise from Barnes, they agreed to suspend an action which they had commenced against him, and to assist, as far as they were able, in the suit against the company; *19all of which he alleges they did do. If these statements be facts, and it be also true that Barnes compromised with the company and received money or other valuables, we cannot see why he should not be compelled to account to the plaintiffs for a proper share of what was received on account of their sections of the work. Furthermore, if, as Collins testifies, Barnes undertook to see that they were paid what was justly due to them, and agreed to conduct- the suit for their mutual benefit, he, in good faith, was bound so to do, and he would be responsible for any fraud or negligence in the prosecution of the suit, or in the compromise by which it was terminated. These were matters that ought to have been submitted to the jury, and the court erred in refusing so to submit them.
The judgment is reversed, and venire facias de novo awarded.