delivered the opinion of the court.
This action was instituted in the court below, to recover compensation for work and labour, and services rendered by the appellant, in assisting to erect three bridges for the defendants. In the course of the trial, several prayers were made to the court by the plaintiff’s counsel, for their instruction to the jury upon matters of law, all of which were refused by the court, accompanied however with modifications, in which they expressed their views of the law applicable to the several questions raised in said prayers.
*72It now becomes the duty of this court to say, whether in these opinions expressed by the court below, any error has been committed to the prejudice of the appellant, and for which he has a right to ask a reversal of their judgment. For the performance of the work to be done by the appellant, in assisting to erect the bridges upon the several sections mentioned and specified, special contracts were entered into, through the intervention of an agent, acting in behalf of the company on the one part, and the appellant on the other. In these contracts, after stipulating for the work to be done, and the prices to be paid therefor, there is to be found the following agreement in reference to the masonry work on said bridges. “The whole to be measured by said agent, or the engineer for the time being, whose measurement shall be final and conclusive.” There is also annexed to the agreement the following stipulation. “It is hereby agreed and understood by the parties to this contract, that the foundation shall be prepared at the expense of the said James S. Wilson, the bailing of water excepted, which shall be paid for by said company, at the estimate of the engineer.”
In the course of the trial it was proved to the jury, that the masonry work of the bridges was admeasured not by Trimble, principal engineer for the time being, but -by a Mr. Crain, an assistant engineer of the company in the absence of Mr. Trimble, and without any notice to the plaintiff, and by him was delivered to Trimble, by whom it was delivered to the defendants, as the admeasurement of work called for by the contract. The defendants also gave in evidence an estimate of water expenses made by Trimble, the chief engineer, who proved that he made the same in the absence of the plaintiff, and without giving him notice, so that he might have attended if he had thought proper to do so. After the plaintiff had offered the evidence on his part, consisting of the special agreements relative to the execution of the work to be done by him, and fixing the rate of compensation to be paid for the same, and some other proof- not material to be stated for the purposes of this opinion," he pray*73ed the court to instruct the jury, that if the jury believe, that Mr. Trimble was the engineer of the company, when the masonry of the bridges was completed under the contracts given in evidence, and that Mr. Trimble did not measure said bridges, or either of them, but that the same were measured by Crain, assistant engineer, and that he returned the same to Trimble, as containing the number of perches of mason’s work in said bridges, and that it is said return which is now offered in evidence as the measurement of Mr. Trimble, then the same is not binding and conclusive upon the plaintiff, and the jury must allow to the plaintiff the number of perches which they may find from the evidence were contained in said bridges. This prayer was refused by the court, who added the following modification: “unless they shall also find, that the said measurement was returned by the said Crain to Trimble, the chief engineer of the defendants, and by him was adopted and delivered to the said defendants, under the contracts given in evidence by the plaintiff as his own, and that in the making and adopting the same as aforesaid, there was no fraud either on the part of the said assistant engineer, or Mr. Trimble, or on the part of the defendants in this action.”
We think the court committed no error in rejecting this prayer of the plaintiff, because by the terms of the contract, a certain mode' of ascertaining the number of perches contained in the mason’s work, was fixed upon by the parties, as the rule of evidence, and the plaintiff had no right to resort to any other, until after proper exertions on his part, he had made an ineffectual attempt to procure it. It was his duty to have applied to the engineer to make the measurement, before any other evidence would have been admissible as a substitute for such proof. For this principle see 9 Peters, 327. But we think that there was error in the opinion’ of the court Contained in their modification of the said prayer, because according to the true intent and meaning of the-contract of the parties.we think that to Trimble, or the chief engineer^for the time being, was confided the right and duty, of making the measurement of the masomy work, and that by the express terms of the con *74tract, power was given to no other person for that purpose. In his skill and integrity, or the person who might succeed him in the responsible station which he occupied, full and implicit confidence might have been reposed, which the plaintiff at least might for valid reasons, be unwilling tor epose in a different and subordinate officer, and the execution of the trust by a different person, was an assumption of power, not warranted we think by the express terms of the contract.
That an agent has no power to delegate his authority to another, unless expressly authorised, see 2 Kent’s Com., where he says: “an agent ordinarily, and without express authority", has not power to employ a sub-agent to do the business, without the knowledge and consent of his principal. The maxim is, that delegatus non potest delegare, and the agency, is generally a personal trust and confidence, which cannot be delegated ; for the principal employs the agent, from the opinion which he has of his personal skill and integrity, and the latter has no right to turn his principal over to another, of whom he knows nothing.”
The plaintiff also prayed the court to instruct the jury, that if they believe from the evidence, that said admeasurement of masonry was made without previous notice thereof to the plaintiff, then the same is not conclusive upon him as evidence in this cause. This prayer we think was properly refused by the court, because in performing that duty, his judgment could not have been influenced or enlightened by the production of evidence on the part of the plaintiff, and the purposes of justice did not require that the plaintiff should have been present when that part of the trust confided to the engineer was executed.
The plaintiff further prayed the court to instruct the jury, . that if they believed from the evidence, that no notice was given to the plaintiff previous to the said estimate of the water expenses, so that he might have an opportunity of making his representations and suggestions to the said engineer Trimble, then said estimate is not binding and conclusive upon him. In rejecting this prayer, we think the court below erred. íf *75notice had been given it is fair to presume, that evidence might have been adduced material to a right decision, as to the amount •of compensation proper to be allowed to the plaintiff for his services in bailing the water under the contract made by him with the defendants. The amount of the expenses incurred by him in performing that operation it was reasonable and proper that he should have had an opportunity of submitting to the consideration of the engineer, together with such remarks and observations as he might have thought proper to make upon the subject. Such information, although not binding and obligatory upon him in making the estimate, might at least have had a beneficial tendency in guiding his judgment to a fair, just and accurate result. In coming to the conclusion-we are happy to find, that we are sustained not only by what we deem the principles of right and justice, but by the authority of adjudged cases upon similar subjects. In the case of awards, it is an established rule that notice is necessary to be given to the parties, so that they may have an opportunity of adducing their proofs, before a decision is made upon the matters submitted, and although this may not be considered a case of that description, yet the reason of the rule would seem to be not inapplicable. That notice would be necessary in a case like the present, seems to have been the opinion of the court in 6 Cowen, 106. In that case, rent was due from a tenant to his landlord, and it was agreed, that a shearing machine should be taken in part payment of the rent, at a valuation or appraisement to be made by a certain individual appointed by the parties; the appraisement was made in the absence of the landlord, and without notice to him, and the court say, the appraisal was irregular, and not conclusive on the defendant. Both parties should have had notice, so that an opportunity might be afforded to submit their remarks to the appraiser, and adduce proof if deemed necessary. The plainest dictates of natural justice require, that no man should be condemned unheard. The right to notice was implied in the agreement to submit, and for want of notice the court held the appraisement a nullity. In 5 Wend. 521, this decision of *76the court in 6 Cowen is adverted to, and the reasonableness and propriety of the necessity of notice is admitted as a general rule, sanctioned both by reason and good sense, if it was to be considered as an appraisement; and the court only decide, that the rule was improperly applied in that case, if it was to be considered as an award, which they thought it was not. Speaking of the propriety of notice, the court say: “in the opinion delivered it was said, (though not necessary to the decision of the cause,) that the appraisement was void for want of notice to the person to be charged with it. This proposition is certainly consonant to reason and good sense, and is well established as a principle of equity; as to the appraisement referred to in Peters vs. Newkirk, it could hardly be dignified with the name of an award. Even if it should be so considered, it was not made the foundation of an action. It seems to us however, there is an essential difference between an award upon matters in controversy between parties, and abare appraisement of a chattel.”
The plaintiff then prayed the court to instruct the jury, that if they believe the company had notice, and was present by its own proper officers at the time when the admeasurement of the masonry, and the estimate of the water expenses, which have been offered in evidence by the defendants, were made, and that it was the duty of said officer, in his character of agent of the company, to protect it from any unjust claim or demand made against it, and to investigate all facts having a tendency to promote the interests of the company in regard to such admeasurement of masonry, and estimate of water expenses, and if the jury further believe, that the plaintiff had no notice when said admeasurement and estimates were to be made, and no opportunity of appearing before the person appointed to make them, to speak for himself and make such suggestions, arguments and proofs as he might have to offer in his own behalf, then said admeasurement and estimate, being thus made in the presence of the company, and out of the presence and without notice to the plaintiff, he is not concluded by the same, and the jury are at liberty to allow to the plaintiff the *77number of perches, which they may find from the evidence were contained in said bridges, and also the true value of the water expenses. We think the court below committed no error in rejecting this prayer, because it insists upon notice, both as to the admeasurement of the masonry, and the estimate of the water expenses, and requested the court to tell the jury, that they were at liberty, upon finding the facts therein stated to be true, to give their verdict upon other evidence than that which had been agreed upon by the parties, without any effort being made, or steps taken by the plaintiff, to procure the kind of proof which had been agreed upon by the contracts; all other evidence being inadmissible without an unavailing effort on the part of the plaintiff to procure the stipulated proof.
The plaintiff further prayed the court to instruct the jury, that if they believed from the evidence, that the said estimate of water expenses was grossly inadequate, and that it was made under a gross mistake of the engineer, of the actual value of the water bailing, in consequence of his neglect to employ the usual and proper means of informing himself as to said value, then said estimate is not conclusive upon the plaintiff in this action. This prayer also we think was properly rejected by the court, because it would not follow from the facts stated, that the estimate would not be binding, unless in making it, it was not done bona fide, and that was a fact which ought to have been submitted to the jury; for this principle see 15 Wend. 90, when the court say, that a valuation made by a person selected by the parties will be binding and conclusive, unless made in bad faith, and whether so made or not, was a fact which the jury alone were competent to find.
We think however that there was error in the modifications made by the court to to this prayer, when they say, if the jury shall find from the evidence, that the engineer Mr. Trimble, made a fair and bona fi,de estimate of the amount of expense of bailing the water under the contract; then the same is final and conclusive on the parties, although the jury should believe, that he formed an erroneous estimate of the real expense *78of said bailing, and that it actually cost the plaintiff a larger amount than is stated in his estimate; we think the court erred in the instruction contained in this modification, because they say, that the estimate would be final and conclusive if made bona fide, although erroneous, and this although no notice was given to the plaintiff to enable him to be present when it was made, which notice we think he ought to have had.
The plaintiff further prayed the opinion of the court, and their instruction to the jury, that if they believed from the evidence, that the water expenses were estimated by Trimble, upon'the judgment of others, or that he had not an opportunity of exercising his own upon the quantity or value of the water expenses, or was grossly negligent of the employment of the means of information within his power, to ascertain the value of said water expenses; then the said estimate is not conclusive, but the jury may allow for the same, as much as they were worth. For the reasons already .given, we think the court were right in rejecting this prayer, because the plaintiff asks the court to leave it to the jury to make the estimate upon other evidence than that stipulated by the parties, without his shewing that the proper evidence was not attainable, after he had used his proper and reasonable endeavors to procure the same without effect. To this prayer the court made the same modification as that made to the sixth, which we think was erroneous; because they say the estimate made by Trimble, would be binding and conclusive upon the plaintiff, if made bona fide, although no notice had been given, which for the reasons already stated, we think he ought to have had before the estimate was made.
The defendants then prayed the court to instruct the jury, that under the written contracts given in evidence by the plaintiff, the measurement of the engineer for the time being, of all masonry done under them by the plaintiff for the defendant, as given in evidence by the defendant, is in the absence of fraud on the part of the engineer, or on the part of the defendants, final and conclusive. Secondly, that under the written contracts given in evidence by the plaintiff, the *79estimate of the engineer of the defendants, as to the amount to be paid by the defendants to the plaintiff for bailing of water, as given in evidence by the defendants, in the absence of any fraud on his part, or on the part of the said company, is final and conclusive, as to the amount to be paid by the defendants to the plaintiff on that account.
The plaintiff then prayed the court to instruct the jury, as a modification of the defendants’ second prayer, that gross negligence on the part of Mr. Trimble, would in contemplation of law, amount to fraud, or want of bona fides. The court granted the defendants two prayers, and refused the plaintiff’s prayer of modification, adding a qualification thereto, which is as follows, to wit: “if the jury should think, that there was gross negligence on the part of the engineer, in making the estimate of the water expenses under the contracts, it is evidence from which the jury may infer, that he did not act fairly and bona fide in making the said estimate.”
We think the court erred in granting the prayers made by the defendants, because in the first, the measurement of the masonry according to the evidence, was not made by Trimble, which according to the true construction of the contract ought to have been made by him, and yet the court say, that in the absence of fraud the same w'ould be final and conclusive; and in the second there was error, because the court say, that in the absence of fraud, the estimate of the water expenses made by the engineer, would be final and conclusive, although no notice was given to the plaintiff before the same was made. But wm think the court wrnre right in rejecting the plaintiff’s prayer of modification of the defendant’s second prayer, and were right in their qualification of the same, because we do not think, that gross negligence would in construction of law amount to fraud, but was only evidence to be left to the jury, from which they might infer fraud, or the want of bona fides in the making of said estimate.
In 1 Liver on Prin. and Agent, 342, a case is referred to, where an action was brought against the defendant, for not insuring according to orders, and L. Mansfield, in delivering *80the opinion of the court said, to maintain this action, the defendant must be guilty either of a breach of orders, gross negligence or fraud, treating them as distinct grounds of action, and not as importing in point of law the same thing. We think that the judgment of the court below must be reversed, and a procedendo ordered.
JUDGMENT REVERSED.