dissenting :
If the wit of lawyers could possibly have framed a contract which would have made final the decree of the court below, the one before us ought to have been declared that contract. But it seems from the opinion of a bare majority of this court, a great municipality which of all corporations most needs the protection of the law to shield it from the litigation of un■founded claims, cannot by any possible contract avoid such result. I had earnestly hoped, from an observation extending over years in this court, that we had about reached a point where such contracts as the one before us would have been adjudged inviolable in the absence of fraud, accident or mistake in the making or procuring of it. But the judgment entered to-day forces me to the conclusion that I was mistaken. It throws wide open the door, which I had hoped was about to be effectually closed. The result is what is most to be deplored, not to the city alone for if that were all it would be the consequence of only a single judicial mistake, but it is to be deplored in its probable results to the hundreds of the three classes of cities in the state and the public at large. The notion,will now prevail that though a natural person may by *281his contract protect himself against injustice, a municipal corporation cannot; that from it, as was done in this case, the contractor can collect his full contract price, and then in the teetli of his stipulation not to claim more, sue for whatever sum he has a mind to.
It is conceded, not a single order was given covering damages, or for extras, or for grading, by the city or by its director of public works. The contractors agree to furnish at their own cost anything necessary to complete the grading and construction of the boulevard, and further agree to receive a certain fixed price in full compensation therefor, then follows this stipulation, comprehensive, specific as to detail and sweeping in its language:
“ It being expressly understood and agreed by the parties hereto that the measurements shall be taken after the completion of the work, and the estimate and certificate of the director of the department of public works shall be final and conclusive evidence of the amount of work performed by the said contractor under and by virtue of this agreement, and shall be taken as the full measure of compensation to be received by the contractor, without the right of exception or appeal. And that the aforesaid prices cover the furnishing of all the different materials and labor and the performance of all the work mentioned in this agreement, and in case of any doubt or ambiguity touching any part of this contract, or any of the plans or specifications referred to or connected therewith, or any other matter involved therein, the decision thereon by the said director of the department of public works shall be deemed, taken and treated as final, binding, conclusive and obligatory upon all parties hereto, without the right of exception or appeal.”
Then there are the distinct stipulations that no charge shall be made by the contractor for any hindrance or delay from any cause whatever during the progress of the work, or from the action of the elements, and no charge for extra work except upon the written order of the director of public works.
After receiving all but a small part of the contract price, the plaintiffs made claim for $884,000 additional, although they had received on the contract $782,892.88, claiming that sum to be yet due them for delay, extras, and excess grading. The case went to trial before court and jury and plaintiffs got a *282verdict for §184,427.64 subject to a question of law reserved, “ Whether there was any evidence which entitled the plaintiff to recover.” The court in opinion filed afterwards entered judgment for defendant. Director McCandless of the department of public works had all the plaintiffs’ claims for damages and extras under the arbitration clause in the agreement, which we have quoted, before him and had made an award of a comparatively small sum in their favor. From the evidence it was undisputed, that at the date of the execution of the contract E. M. Bigelow was director of public works who continued in office until June 11, 1900, when he was succeeded by George W. Wilson, who held office until June 11, 1901, when he was removed and E. M. Bigelow, his predecessor, was appointed. He held office until November 25,1901, when he was succeeded by J. G. McCandless, who held office until April 1,1903, when E. M. Bigelow, who still holds the office, was appointed. While Wilson was in office he heard the claim of the parties but made no decision, being removed from office for political reasons before reaching one. Director McCandless took the matter up, notified both parties to appear; plaintiffs denied his jurisdiction and refused to appear; he took up their proofs they had presented before director Wilson, and heard those of the city and awarded plaintiffs §34,120. The plaintiff's claimed at the trial in the court below that this award was not binding on them because Wilson, who had taken jurisdiction, had gone out of office and his duties did not devolve upon his successor. The defendant claimed it bound both parties, and this was really the question reserved.
The court in an unanswerable opinion, it seems to me, decided that the arbitration clause inferred disputes to the director of public works who filled the office at the time the dispute was to be decided ; that it was not the individual but to the officer to whom the dispute was to be referred. The case of North Lebanon Railroad Co. v. McGrann, 33 Pa. 530, is cited to sustain him. We think it is to the point and squarely decides the case. The same principle is announced and applied in at least a dozen states of the union. It accords with both reason and authority. The reference is in no sense to an individual but to the officer. The majority of the court do not overrule Railroad v. McGrann, nor do they wholly disregard it, but they *283set up a fanciful distinction between tbe facts in that case and those in this. If this had been the first case in which the principle had been invoked, rather than strike down this plain, fair contract on the merest technicality, with not a spark of real merit in plaintiffs’ claim, I would hold fast to the principle announced in Railroad v. McGrann as did the court below and rule this case on that.
Brown and Potter, JJ., concur in this dissent.