amount of the various kinds of work done, and to make the estimates upon which the installments were to be paid. The contract provided for changes in the alignment and grades, which would, of course, only be made upon surveys and recommendations of the engineer. Cox and Arnold secretly bribed this engineer by contracting to give him ten per cent of all the profits they might make. They say that for this interest the engineer was to take pains to locate the road so as to save as much expense as possible without injury to the corporation. Unfortunately, however, by the terms of the contract, the profits of the contract would be increased to the advantage of the engineer, as much by changes to the injury of the road as by those which were indifferent or advantageous. Had McLaughlin known of this corrupt bargain, it would plainly have been his duty to end the relation at once, and it is not clear that he would not be liable to the corporation for changes assented to by them only upon the advice of their confidential agent who had been secretly interested against them by McLaughlin's employees.

But I think, in addition to being a fraud for which equity could give relief, it was a clear violation of the contract.

The engineer to some extent occupied the position of a chosen umpire. He was to ascertain the proportion of the work performed, and upon his certificates the installments were to be paid. Certainly it was an agreement for a disinterested umpire, and clearly when one of the parties to the contract made the umpire a secret partner, he disqualified him from acting. He thereby rendered it impossible to perform the contract.

The finding that there was no fraud contradicts the other findings of fact, and is not only unsupported by evidence, but is as clean a traverse of all the evidence upon the subject as could be drawn. McLaughlin was injured by being deprived of the services of an impartial engineer and umpire,

and by risking the loss of his expenditures on the ground that the corporation would not be bound by alterations assented to under the advice of a corrupted engineer.

But while this is clearly so, it does not follow that plaintiffs could not recover the value of their work which had been received by McLaughlin to the extent to which McLaughlin had been benefited thereby, and not exceeding the contract price.

In my judgment, the allowance of the amendment setting up the claim for the actual value of the labor performed was, under the circumstances, an abuse of discretion, which ought to be reviewed by this court. This litigation has been pending for some sixteen years, during all of which time plaintiffs had been contending for compensation at the conventional rates fixed in the contract. During all this time defendant has contended that plaintiffs have been paid the full value of services rendered and the materials furnished. Defendant, had he desired, could not have made an issue upon that question, because plaintiffs persisted in urging their unfounded claim for the contract rates. Not only so, but this contest has been kept up after most clear and explicit rulings of this court that no such action could be maintained, and intimations that plaintiffs' remedy, if they had any, was for the reasonable value of the labor performed and materials furnished. Now, even one who has a grievance owes some duty to his adversary and to society. Because he has been injured, he is not justified in vexing the wrong-doer with malicious litigation, nor can he persist for years in waging a suit which he cannot maintain, and then, upon being defeated, amend and recover that which for years he has virtually declined to accept, when the suit he might have brought has been barred by the

statute.

Here, before this amendment was asked, the suit upon a quantum meruit had been barred seven times over. It

may be admitted that, if made in time, such an amendment would have been proper. Courts are now very liberal in allowing amendments. It is often only a question as to whether the plaintiff should be put to the expense of bringing a new suit. But because the courts are liberal in allowing amendments, parties cannot thereby be deprived of a defense to what is really a new cause of action. If barred when the amendment is asked, it should not be allowed.

This was a new cause of action. It was founded upon a different contract from that alleged; it was for services and materials differing in amount and differently classified. One is for actual services, and the other, though not in form, yet in reality, largely for services and materials only constructively done and furnished. The evidence required to sustain the two actions differs materially.

On former appeals this court has held that the action was not brought upon the implied promise to pay for the actual value of the work, but was an action upon the contract to recover for the part performed according to an arbitrary and conventional standard found in the specific contract, and the precise ground upon which they claimed the right to recover was, that they had been prevented by the defendant from performing. Prevention constituted a part of their cause of action.

Here if they can recover at all, it is upon the ground that the defendant has been guilty of a breach of the contract on his part, in consequence of which he cannot insist upon the performance on the part of plaintiffs, and that, therefore, plaintiffs can abandon the contract and sue for the actual value of the service rendered, and the defendant cannot defeat the action because of the non-performance of the specific contract simply because he was first in default himself. In such a suit the specific contract cuts no figure except as evidence. It is evidence that the work was performed at the instance and request of the defendant; and

as the plaintiff cannot by refusing to perform recover a greater price for his work than he would have been entitled to had he fully performed, the contract price will constitute a limit to his recovery. The contract may also, in a proper case, furnish evidence by way of admission, of the value of the services. But in no sense is this an action upon the specific contract. To the contrary, if that can be established as still subsisting, that fact will defeat the action upon the quantum meruit.

Admitting, however, that the amendment was properly allowed, and that the claim was not barred by the statute of limitations, is there any evidence whatever in the record to support the finding that the actual value of the work and labor done in constructing twenty miles of the railroad was $275,304.07? or that the actual value of the labor performed and materials furnished in the construction of the twentyfirst mile was $28.214.42 ?

It is a circumstance of some significance that the plaintiff upon the last trial, which was the first under a complaint claiming the actual value, put in no new evidence upon the subject. All his evidence consisted in reading from the testimony given on former trials where the specific claim was to recover compensation at contract rates for the profile quantities. And as it is shown without conflict that much of the profile work was never done, it is literally true that in an action upon a quantum meruit plaintiff has recovered upon proof of the value of labor not done. and for materials not furnished. The proof was as to the value of contemplated work delineated upon a profile which the contract stipulated might be departed from, and which, in fact, was not followed, but was intentionally departed from, the work actually done being upon a new survey upon another and a distinct line.

It is claimed, and numerous authorities are cited to the point, that where a specific contract has been partly per

formed and abandoned, under such circumstances that the contractor may sue for the work actually performed, the contract rate of compensation governs even in the suit for actual value. That such rates generally constitute prima facie evidence of the value of the services, by the way of an admission of the parties, is not disputed. But it would be so only when, under general rules applicable to admissions, in reason and justice, such stipulation is an admission of the actual and reasonable value of the service rendered. There is no ironclad rule that it should constitute an admission, however plainly it may appear that it was in fact no admission.

It is true that prior to the contract a profile of the projected road had been made showing the estimated amount and character of work and materials required, and that when the contract price was agreed upon the engineer affixed to the specifications prices for the different kinds of work and materials which should govern as to progress payments, and which in the aggregate amounted to just nine hundred thousand dollars, the contract price. It was also stipulated that the profile might be departed from and a new alignment and grade fixed by the corporation; that the road should be constructed according to such changed alignment, but there should be no change in the compensation. The contract price was to be paid, no matter what changes were made. If changes were made, therefore, this amounted to an express stipulation that the payments should not be made upon the basis of the reasonable and actual value, but upon a conventional standard, expressly ignoring actual values. When the plaintiff brought suit upon a quantum meruit, he expressly waived the benefit of this stipulation. It is in its very nature inconsistent with a quantum meruit. It was a speculating contract, in which both took the chances of making or losing, but each expressly stipulated that the actual amount of work done should not affect the compensation.

LXXVI. CAL.-6