This was an action, below brought by the contractor for the construction of a traction railway known as the Cincinnati & Eastern Railway, under a contract which provided a price per lineal foot for the complete construction and provided certain rates for work to he done not included under this lineal foot rate. By consent of the parties it was referred by the court’ to a referee to take the testimony and report same to the court with his 'conclusions on the law and facts' involved in the issue, as provided in Sec. 11475 G. C., et seq.
The referee’s, report' is very full as t’o all the matters in issue, and it is admitted by counsel upon both sides that his findings of fact on the evidence have the effect of a> special verdict as provided in Sec. 11480 G. C., and .has. been decided in Lawson v. Bissel, 7 Ohio St. 129, 133. And counsel for plaintiff in error admit that the burden is upon them to show his findings of fact are against the decided weight of the evidence.
There is a difference between counsel, however, as tp whether ibis court in reviewing tbe judgment of the court below should treat the judgment as an entirety, and in order to review it consider all of the items of the contract which were controverted before tbe referee, or consider only matters that are specially drawn to tbe attention of the court here by the plaintiff in error and which of course are the matters which were found against plaintiff in error by the court below, plaintiff in error making this contention because no cross-petition in error has been filed on tbe part of tbe defendant in error.
Tbe court is of the opinion that the judgment below should be treated .as a.n entirety and should be modified or reversed by tills .court only in tbe event of its finding that this judgment is manifestly against the weight of the evidence. In order to determine this question, however, it! has been necessary to go over tbe whole record of the ease, which consists of a very large amount of testimony and exhibits. This labor of tbe court has been materially lightened by the very able oral arguments made by counsel, and tbeir full, detailed and exhaustive briefs in which they give special attention to the parts of the record relied upon.
The claim of plaintiff as set out in the petition is made out *621imder eighteen different headings of items, some of which cover many distinct subjects. Plaintiff in error relies particularly upon errors claimed to have been made with reference to five of these items and the claims thereunder. It is however hardly necessary to discuss in detail these claims although the court has given careful attention to all of them. At the trial before the referee, counsel for plaintiff claimed to have shown him to be entitled to a judgment for $67,607.84. The referee in his report took np these items in detail and discussed them separately, resulting in an allowance of $32,905.13. This report on being before the superior court was reviewed by it and further allowance was made to the defendant below on an item for overhaul, under article 31 of the contract, between stations 717 and 750, for which a reduction of $1,100.88 was made, and it also allowed a reduction for 10,000 yards of fill which was estimated to be the amount of material furnished by the water works trustees, being muck taken out of its tunnels and placed by them in the fill as being the most convenient place to waste it. An allowance of $2,500 was given to the defendant for this. This fill was part of the work included to be dome by plaintiff for which be was to receive 25 cents per yard, and he claims that if he had the good fortune to have a stranger volunteer to make part of the fill for him that he should receive the benefit of such work, while the railway company contends that he should only be paid for what he himself does. The referee took the former view of 'the matter, and the court in passing upon Ms report took the latter. It seems to us that the argument of plaintiff is equally strong with that of the defendant, but as there is no cross-petition in error we are not disposed to change the judgment arrived at in that respect, but think that it may be considered in a way in passing upon other errors that are being urged.
The first claim that is urged by plaintiff in error, being 404 lineal feet of track on a switch at a point called Seven Mile, near New Richmond, wMch was not ballasted, is one which we think has merit. A deduction is claimed a,t 15 cents per foot as the value of ballasting. We think that the testimony fails to show that tMs ballasting was ever done by the contractor, and *622therefore find that a deduction of $60.60 should be allowed upon that item.
Another error .seems to have crept in and was: overlooked by the court below in making the final figures of the judgment. In the petition in setting out the items of .account, credit was given to the company, for payments, by cash $116,600, and by order to insurance company $600; making together a total credit of $117,200. In deducting the credits from the amount found due the referee overlooked this credit of $600 and deducted only-cash payment of $116,600 instead of total credits of $117,200.' This seems to have been overlooked by the parties in preparing the entry by the court and was discovered after the case came into this court. This allowance of $600 should also be made.
Considerable argument was devoted to the question of gravel overhaul .account. A question was raised as to whether the Avey gravel pit, which was tendered to the contractor by the company, was in fact a gravel pit and came within the terms of the contract requiring one to be furnished in Clermont county. The referee in addition to hearing the witnesses direct had the additional advantage of - being taken out on the line to see this so-called gravel pit, and we believe his decision as to the amount allowed for gravel over haul was extremely favorable to the defendant below. We also think that the allowance made by the referee for the work performed by the company in completing the track laying and ballasting was rather liberal to the defendant when it is considered that a large part of the amount claimed was for the cost of changing the gauge of the track from the standard gauge of four feet eight and a half inches to the Cincinnati gauge of five feet two and a half inches.
There is some controversy between the parties in the matter of excavation for the car bam. This was work that was done by the contractor outside of the general contract. It is clear that a contract was made for this work,, the only question being whether it should he paid for by the yard under the prices fixed by the general contract or whether, as claimed by the president of the railway company, .a special price of $5,000 had been agreed upon for the entire work. It was of course incumbent upon the defendant to prove this special price, .and we think they *623failed in that proof, but that the work was to be paid for according to the general prices for thie contract.
Arguments were also made as to the binding force of the engineer’s estimate. The contract providing for partial estimates at intervals as the work progressed seems not to have been lu any way followed during the progress of the work, and no final estimate was made on the completion of the work in the usual manner by the engineer in the capacity of a referee or arbitrator, as defendant claims he should be considered. On the contrary, the president of the defendant' company seems to have taken the matter out of the engineer’s hands, and what is termed a final estimate was made by the engineer under his direction. We do not think, therefore, under the cases cited and the terms of the contract, that the contractor is bound by this estimate.
Considering, therefore, the whole record, and the arguments made pro and con as t'o the different controverted items, the court is of the opinion that the judgment below should be modified and the amount thereof be reduced by deducting therefrom the sum of six hundred and sixty and 60-100 ($660.60) dollars. With that modification, it should stand.