verdict and judgment is for defendants, and is right as a matter of law, the error committed, if any, in the giving of this portion of the charge is immaterial.

In view of this contention it becomes material to a decision of the case to inquire whether upon the whole record, as a matter of law, the trial court rightfully held the arbitration clause formed no part of the contract of plaintiffs, not for the purpose of reviewing or correcting the ruling so made in this respect, for, as the defendants had judgment in their favor, it is manifest this may not be done here on this record. Guarantee Co. of North America v. Phenix Ins. Co., 124 Fed. 170, 59 C. C. A. 376, and cases cited. Yet, as the judgment below was for the defendants, if on the whole record such arbitration clause was, as a matter of law, a part of plaintiffs' contract, and it be true, as stated, such estimates of measurements and classifications of the work done by plaintiffs under their contract as are provided by the specifications were in fact made by the engineers of the railway company, and payment was made by defendants to plaintiffs in accordance with such estimates, and the record contains no evidence tending to impeach and avoid such estimates upon any ground for which they might be avoided, it then follows, of necessity, the judgment below is right and must be affirmed, because at another trial no other judgment than that complained of could rightfully be entered. Therefore the error committed in the charge given is without prejudice.

While it is the rule of the federal courts, if there be error apparent on the face of the record, a presumption of prejudice arises which cannot be disregarded unless the record affirmatively discloses the error was not prejudicial (Mexia v. Oliver, 148 U. S. 664, 13 Sup. Ct. 754, 37 L. Ed. 602; Vicksburg & Meridian Railroad v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 172, 30 L. Ed. 299), yet it is equally as well established by the decisions of the federal courts that no judgment will be reversed for error when it is clear such error did not prejudice and could not have prejudiced the rights of the party against whom the ruling was made. (Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33, 29 L. Ed. 373; Smith v. Shoemaker, 17 Wall. 630, 21 L. Ed. 717; Decatur Bank v. St. Louis Bank, 21 Wall. 294, 22 L. Ed. 560; Railroad Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; North v. McDonald, 1 Biss. 57, Fed. Cas. No. 10,312).

Was the view taken by the trial court of the contract existing between plaintiffs and defendants the correct one? The determination of this question depends upon whether or not those provisions of the specifications of the railway company making the admeasurements and classifications of the engineers of the railway company final and conclusive as to the work done under the specifications became a part of the contract between plaintiffs and defendants. The express language of the contract is, "all work to be done according to the specifications of the Algoma Central Railway Company and to the satisfaction of their engineers." From this language it is manifest plaintiffs must have advised themselves as to what the requirements of the specifications were as to the manner of performing the work to be done under their contract, and at least to this extent the specifications were made a part of their contract. The precise question, however,

is, did plaintiffs, by this reference to the specifications of the railway company made in their contract, adopt the provisions made therein for the admeasurement and classification of the work to be done by them? Having in mind only the language employed in the proposition submitted by plaintiffs and its acceptance by defendants, it is not entirely certain whether it includes the arbitration clause of the specifications, making the measurements and classifications of the engineers of the railway company final, conclusive, and binding upon plaintiffs as to the work agreed to be done by them under their contract. Woodruff et al. v. Hough et al., 91 U. S. 596, 23 L. Ed. 332. But a due regard for the established rules for the construction of executory contracts, in the light of the undisputed facts found in the record, leaves no room for doubt as to its true construction in this case, for the following reasons:

It is a well-recognized canon of construction that the situation of the parties to the contract at the time it was entered into should be considered, as was said by Judge Sanborn in Rockefeller v. Merritt, 76 Fed. 909, 22 C. C. A. 608, 35 L. R. A. 633:

"One of the most satisfactory tests to ascertain the true meaning of a contract is made by putting ourselves in the place of the contracting parties when it was made, and then considering, in view of all the facts and circumstances surrounding them at the time of its execution, what the parties intend by the terms of their agreement. When their intention is thus made clear, it must prevail in the interpretation of the instrument, regardless of inapt expressions or careless recitals." Accumulator Co. v. Dubuque St. Ry. Co., 12 C. C. A. 37, 64 Fed. 70; United States v. Gibbons, 109 U. S. 200, 3 Sup. Ct. 117, 27 L. Ed. 906; Rock Island Ry. v. Rio Grande Ry., 143 U. S. 596, 12 Sup. Ct. 479, 36 L. Ed. 277.

Applying this rule to the facts shown by the record, what was the situation of the parties at the time this contract was made? The defendants were under contract with the railway company to perform the work here subcontracted to be done by plaintiffs. The specifications referred to in the contract under consideration formed a part of that contract. These specifications were submitted to and in the possession of plaintiffs before they made the proposition to contract with defendants. By the express terms of their contract plaintiffs agreed to do their work in accordance with these specifications. The specifications referred to were one paper, and an entirety, and contained general provisions applicable to all work done under the specifications, and under them is found the provisions for measurements and classification of the work by the engineers of the railway company. Hence plaintiffs knew they must examine the specifications in order to determine the manner of doing the work. Having examined them, they knew the defendants were bound by the measurements and classifications of the engineers of the railway company, and that the railway company would pay the defendants for the work done by plaintiffs only in accordance with the measurements and classifications of the engineers of the railway company, and they had no reason to suspect or believe that defendants were binding themselves to pay the plaintiffs for work done in accordance with different measurements or classifications than those made by the engineers of the railway company.

152 F.-4

Again, there is another well-recognized and perfectly just rule of construction of executory contracts, which is:

"Where the parties to a contract have given it a particular construction, such construction will generally be adopted by the court in giving effect to its provisions." 9 Cyc., subject “Contracts,” p. 588.

As said by Judge Thayer in Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co. (C. C.) 34 Fed. 254:

"The agreement being executory, the practical construction adopted by the parties thereto, and by their successors, during a period of several years, is entitled to great, if not controlling, influence in determining what is the proper interpretation of the same, as was held in Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057, 30 L. Ed. 1110, and Chicago v. Sheldon, 9 Wall, 54, 19 L. Ed. 594. It is well understood that the practical construction of a contract adopted by the parties thereto will not control or override language that is so plain as to admit of no controversy as to its meaning. In all such cases the intent of the parties must be determined by the language employed rather than by their acts; but if the language employed is of doubtful import, or if the contract contains no provisions on a given point, or if it fails to define with certainty the duties of the parties with respect to a particular matter or in a given emergency, then beyond all question it is proper to consider how the parties have construed the instrument with respect to such debatable points. If both parties to an agreement for a considerable period, and while free to act, treat a contract as imposing certain duties or obligations, such conduct ought to settle the construction of the instrument if its provisions with reference to such matters are to any extent uncertain, obscure, or incomplete. 'A construction of a contract adopted and acted upon by both parties will be regarded as worked into the contract,' if such construction does not conflict with its express provisions. The manner in which a construction of a contract adopted and acted upon by both parties may, so to speak, be worked into a contract, is well illustrated in Topliff v. Topliff, above cited, and also in the case of Robinson v. U. S., 13 Wall. 363, 20 L. Ed. 653. In the latter case Robinson had contracted to deliver a certain quantity of barley, but whether the delivery should be made in bulk or in sacks was not specified. For a period of six months the barley was delivered in sacks. The court refers to this fact as a proper reason for construing the contract as requiring a delivery in sacks, rather than in bulk. It will rarely be found, we apprehend, that a court will go far astray in arriving at the actual intent of the parties to a contract (which, after all, is the purpose of all rules of construction) by adopting that interpretation which the parties, without compulsion, have themselves adopted and acted upon."

To like effect, see Merriam v. U. S., 107 U. S. 437, 2 Sup. Ct. 536, 27 L. Ed. 531; Uinta Tunnel, Min. & Transp. Co. v. Ajax Gold Min. Co., 141 Fed. 563, 73 C. C. A. 35; District of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585, 31 L. Ed. 526; Michigan Home Colony Co. v. Tabor, 141 Fed. 332, 72 C. C. A. 480; and the many cases cited in 9 Cyc., subject "Contracts," p. 589.

What was the conduct of the plaintiffs during the time this work was being performed by them? As shown by the record, they employed no engineers to measure or classify the work done by them under this contract, and made no such measurements or classifications of the work themselves. The engineers of the railway company were present on the work, and did make such measurements and classifications as the work progressed. Plaintiffs received part payments for work done by them as the work advanced, based alone on estimates made by the engineers of the railway company. And after the completion of their work called for a final estimate of the work done

by them and received payment, not in a round sum, but in odd dollars and cents, based on such final estimates, as made by the engineers of the railway company, and not until more than a year after the completion of their work, and after receiving payment based on the final estimate of the engineers of the railway company, without protest, did they take any steps to make an independent measurement and classification of the work done by them.

The entire record considered, we are of the opinion, even if it might be said the part of the specifications making the estimates of the engineers of the railway company final and conclusive was not in the express terms made a part of plaintiffs' contract, yet the situation and knowledge of the parties at the time the contract was made, and their conduct during the progress of the work, all clearly show their intent to be bound by the stipulation in question, and that such stipulation was worked into and became as fully a part of the contract as though in express terms incorporated therein when made. Such being the contract between the parties, and the evidence found in the record being as above stated, a brief reference to a few wellsettled and fundamental principles governing the effect and the manner of avoidance of such estimates renders entirely clear the rights of the parties to this litigation. Final estimates made by engineers in pursuance of such a contract are in legal effect an award made by arbitrators, and are final and conclusive in the absence of fraud or such gross mistakes as imply bad faith or a failure to exercise an honest judgment. Kihlberg v. United States, 97 U. S. 398, 24 L. Ed. 1106; Sweeney v. United States, 109 U. S. 618, 3 Sup. Ct. 344, 27 L. Ed. 1053; Martinsburg & Potomac R. R. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255; Chicago & Santa Fé R. R. Co. v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. Ed. 917; Wood v. Chicago, S. F. & C. Ry. Co. (C. C.) 39 Fed. 52; Elliott v. Missouri, K. & T. Ry. Co., 74 Fed. 707, 21 C. C. A. 3; Guild v. Andrews, 137 Fed. 369, 70 C. C. A. 49; Choctaw & M. R. R. Co. v. Newton, 140 Fed. 225, 71 C. C. A. 655; Fruin-Bambrick Const. Co. v. Ft. Smith & W. R. Co. (C. C.) 140 Fed. 465; Hartford F. Ins. Co. v. Bonner Mercantile Co. (C. C.) 44 Fed. 151, 11 L. R. A. 623; Republic of Columbia v. Cauca Co. (C. C.) 106 Fed. 337.

Again, final estimates made by engineers in pursuance of a contract between the parties making such estimates final and conclusive when made the foundation of an action at law, or when interposed as a defense to an action at law, cannot be assailed in such action for fraud, such gross mistakes as imply bad faith, or a failure to exercise an honest judgment on the part of the arbitrators, or other like extrinsic matters, if objection to such method of attack be timely made; but for such relief resort must be had to a court of equity. 2 Story's Eq. Jur. § 1452; 3 Cyc. p. 750; Hartshorn et al. v. Day, 19 How. 211, 15 L. Ed. 605; George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Emmet v. Hoyt, 17 Wend. (N. Y.) 410; Truesdale v. Straw, 58 N. H. 207; Hartford Fire Ins. Co. v. Bonner Mercantile Co. (C. C.) 44 Fed. 151, 11 L. R. A. 623; Missouri, K. & T. Ry. Co. v. Elliott (C. C.) 56 Fed. 772; Vandervelden v. Chicago & N. W. Ry. Co. (C. C.) 61 Fed. 54; Stephenson v. Supreme Council

A. L. H. (C. C.) 130 Fed. 491; Levin v. Northwestern Nat. Ins. Co. (C. C.) 146 Fed. 76; Wood v. Chicago, S. F. & C. R. Co. (C. C.) 39 Fed. 52; Herrick v. Railroad Company, 27 Vt. 673; Kidwell v. Baltimore & Ohio Railroad Co., 11 Grat. (Va.) 676; Mansfield & Sandusky R. R. Co. v. Veeder & Co., 17 Ohio, 396; Grant v. Railroad Co., 51 Ga. 352.

Not only has this precise question been ruled, but the very fact that courts of equity have invariably assumed jurisdiction to determine the validity of estimates made by engineers in pursuance of contracts making their findings final, conclusive, and binding between the parties when sought to be impeached for fraud or other extrinsic matters, is conclusive evidence that a court of law has no jurisdiction over such matters if objection thereto be timely made, for, of necessity, if a court of law possesses such jurisdiction a court of equity does not, for in federal courts the distinction between actions at law and suits in equity, and between legal and equitable defenses, is fundamental and jurisdictional. An equitable defense is not admissible in an action at law. In the national courts a case cannot be part law and part equity; there can be no blending of legal and equitable causes of action and defenses. Anglo-American Land, M. & A. Co. v. Lombard, 132 Fed. 721, 68 C. C. A. 89, and cases therein cited; Bagnell v. Broderick, 13 Pet. 436, 10 L. Ed. 235; Bennett v. Butterworth, 11 How. 669, 13 L. Ed. 859; Thompson v. Railroad Companies, 6 Wall. 134, 18 L. Ed. 765; Foster v. Mora, 98 U. S. 425, 25 L. Ed. 191; Northern Pacific Railroad v. Paine, 119 U. S. 561, 7 Sup. Ct. 323, 30 L. Ed. 513; Scott v. Neely, 140 U. S. 106, 11 Sup. Ct. 712, 35 L. Ed. 358; Scott v. Armstrong, 146 U. S. 499, 512, 13 Sup. Ct. 148, 36 L. Ed. 1059; Lindsay v. First Nat. Bank, 156 U. S. 485, 493, 15 Sup. Ct. 472, 39 L. Ed. 505; Davis v. Davis, 18 C. C. A. 438, 72 Fed. 81; Schoolfield v. Rhodes, 27 C. C. A. 95, 82 Fed. 153; Highland Boy Gold Min. Co. v. Strickley, 54 C. C. A. 186, 116 Fed. 852; Crissey v. Morrill, 60 C. C. A. 460, 125 Fed. 878, 886; Platt v. Larter (C. C.) 94 Fed. 610.

It follows, therefore, of necessity, if plaintiffs, not content to rely on that part of the reply denying estimates of the work done by them. under their contract to have been made by the engineers of the railway company, and denying the arbitration clause of the specifications furnished by the railway company to be a part of their contract, desired to avoid estimates which had been made by the engineers of the railway company in pursuance of the contract for reasons set forth in the reply, they must have resort to a court of equity, and could not interpose such defense to the estimates made by the engineers in this action at law if timely objection had been made thereto by the defendants. But, as defendants failed to interpose such objection in the court below, they must be held to have waived it and to have acquiesced in the trial of such equitable issues in this law action, for, it has been held by this court in such cases as this, the objection that an action or any material issue therein raised by the pleadings is cognizable in equity or vice versa is waived by a failure to interpose it in apt time in the trial court. Union Pac. Ry. Co. v. Harris, 63 Fed. 800, 12 C. C. A. 598; Highland Boy Gold Mining Co. v. Strickley, 116 Fed. 852, 54