The following opinion was filed June 25, 1919:
Eschweiler, J.Seemingly the only obstacle found by the court below to prevent the allowance to the plaintiffs of the two items for inside and outside filling, of $1,272.27 and $2,120.35 respectively, was the conclusion he came to that under the contract and under the decision of the architects to the same effect, and which he held was controlling, the plaintiffs were bound to furnish this sand and labor for these two respective items at their own cost and as a part of their contract obligations.
The contract liability of plaintiffs was bound up with and measured by the plans and specifications by the express pro*68visions of the contract itself. These plans and specifications had been made the foundation for the bids requested under the express terms of the advertisement and thereafter accepted. >
These plans and specifications not only f.ailed to disclose that such items were intended or provided for, but, as reasonably and generally construed, declared to the contrary. Nor is there to be found in any of the language of the contract or of the specifications, either in the provisions as to grading, filling, or in any of the general provisions quoted in the statement of facts, such terms as placed, either expressly or by implication, such conditions within the contract. The plaintiffs were entitled to rely upon what was in effect represented by such plans and specifications. Christie v. United States, 237 U. S. 234, 242, 35 Sup. Ct. 565.
It is further apparent that it was not within the contemplation of the parties at the time of the making of the contract that what was covered by two such items was any. part of that for which they were to be paid the contract price.
The power of the architects under the contract was unquestionably binding when deciding questions arising as to the meaning of the provisions of the plans and specifications concerning all work that was within the contract, but they were not given the power expressly, nor may we give it to them by implication, to either add to or take away from the contractual rights or liabilities of either party under the contract itself. .
The power to construe and define the intent and meaning of plans and specifications made a part of a contract is one thing, and may properly be, as it was in this instance, left to arbiters selected by the parties; the power to construe the contract itself and to determine what is within and what without such contract is a different and independent question, and belongs primarily to the courts. This distinction *69was recognized in First S. & T. Co. v. Milwaukee Co. 158 Wis. 207, 237, 148 N. W. 22, 1093. See, also, Ætna Ind. Co. v. Waters, 110 Md. 673, 691, 73 Atl. 712; Isaacs v. Dawson, 70 App. Div. 232, 75 N. Y. Supp. 37; affirmed, 174 N. Y. 537, 66 N. E. 1100.
To give the latter power to those who may properly be and usually are vested with the first should rest upon express grant rather than upon mere implication. Ruch v. York, 233 Pa. St. 36, 52, 81 Atl. 891; Mayor, etc. v. M. A. Talbott & Co. 120 Md. 354, 363, 87 Atl. 941.
The insistence by defendant, through the building committee and the architects, that the work in question must be. done by plaintiffs as a part of their entire contract, required the plaintiffs to either proceed with the work as they did or to refuse to. proceed at all, thereby subjecting themselves and the county to great damage and delay, and was in effect compelling the plaintiffs to do that which they were not bound to do. Such situation and the work having been done by the plaintiffs under protest against just such a construction as was being given to the contract; the knowledge on the part of all concerned that the work was being so done and it having been done in good faith and a reasonable amount only having been charged for it — all these conditions created a situation under which there arose an implied obligation on the part of the county to pay for such work. 13 Corp. Jur. 245; Molloy v. Liebe, 102 L. T. Rep. n. s. 616.
The construction, therefore, by the architects of the questions involved as to the right of the plaintiffs to charge for and recover .for these two items, being an attempted decision on their part on a matter that was beyond their jurisdiction, is not binding on the parties nor controlling on the court. Shine v. Hagemeister R. Co. 169 Wis. 343, 172 N. W. 750. And as is held in the case last cited, the failure on the part of the architects to give the certificate specified in the con*70tract for these two items, such refusal being based upon their mistaken view of .the law, is no bar to the plaintiffs’ right to recover.
The item of $335.50 for 400 cubic yards of sand was disallowed by the circuit court on the ground that it had never been properly presented to the county board for allowance. Apparently a misunderstanding arose with reference to this item. These 400 cubic yards, with the 1,550 cubic yards covered in the first item above, which, we have seen, should have been allowed, were needed for filling inside the building. It was in exactly the same position under the contract ■ as was the 1,550 yards, except that as to these 400 yards the architects and the building committee had recognized that much, at least, of the inside filling was proper as an extra and had given a written order therefor. This, however, did not deprive plaintiffs of whatever rights they might have with reference to it by virtue of its being necessarily a part of the entire inside filling. It is conceded that it is a reasonable, just, and honest claim and that it was not intended to have been rejected by thé architects or the building committee. It can be and should be properly allowed on the same basis and as a part of the item of inside filling with which it was mingled at the time the bill for such inside filling was presented to the building committee and rejected, and should therefore be allowed. It is therefore not necessary to determine whether or not its presentation as such an extra claim under the written order was properly made or not.
The court below was right in disallowing the claim of $252.68 computed as interest from November 1, 1915, to February 1, 1916, on the final and delayed payment to plaintiffs on the contract price. The contract provided for the manner in which the plaintiffs were to receive their pay and the times therefor. We find nothing in the record which would properly support a finding that the delay, if any, in the issuing of the final certificate and the making of the final *71payment was chargeable to any breach of the contract obligation on the part of the defendant. Some delay is inevitable between the finishing of the work and the issuing of the certificate for the same and such must be within the con-' templation of the parties to such contracts.
It follows that the plaintiffs should be allowed judgment for the sum of the three items of $335.50, $1,272.27, and $2,120.35 respectively, aggregating $3,728.12, so disallowed by the court, together with interest thereon from the date of the filing of the claims with the county board.
By the Court. — Judgment reversed, and the cause remanded with direction to enter judgment for the plaintiffs in the sum of $3,728.12, with interest.
A motion for a rehearing was denied, with $25 costs, on ^November 4, 1919.