sec. 1403; Chudnovski v. Eckels, 232 Ill. 312.) Manifestly, the allegations in the declaration in either form of action, in a case of this kind, would be substantially the same, the only difference in the form of the declaration being a technical one as to stating the form of the action. Counsel for the defendant in error presented the actual amendment to the declaration they desired to make and the court entered an order granting leave to so amend. Plaintiff in error thereafter filed the general issue in assumpsit. The case was later submitted to the jury and considered and passed on by them as if the declaration were in assumpsit. "Where there is an order granting leave to amend and the subsequent proceedings in the cause are based upon the assumption that the amendment has been made, the course is to consider the order as standing for the amendment itself. Where a motion to amend has been. granted but no amended pleading appears in the judgment roll, it may be treated, on appeal, as if actually made." (1 Ency. of Pl. & Pr. 641.) This is the rule adopted in most jurisdictions in this country. (3 Am. & Eng. Ency. of Law, 813, and cases cited; Horne v. Meakin, 115 Mass. 326; Johnston v. Farmers' Fire Ins. Co. 106 Mich. 96; Holland's Heirs v. Crow, 34 N. C. 260; Kretser v. Cary, 52 Wis. 374; Lyon v. Brown, 65 Tenn. 64; Hellyer v. Boyser, 76 Ind. 35.) Section 1 of our statute on amendments and jeofails provides that the trial court shall have power to permit amendments "in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment," etc. The same chapter further provides, in considerable detail, as to the pleadings that may be amended, and section 7 states: "The omissions, imperfections, defects and variances in the preceding section enumerated, and all others of a like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by appeal or writ of error." To consider this amendment on this record as actually made in no manner affects the merits of this cause, neither is it against "right and justice." This court has repeatedly held that the failure to file a plea would be cured, under this statute, by verdict. (Brazzle v. Usher, Breese, 35; Graham v. Dixon, 3 Scam. 115; Armstrong v. Mock, 17 Ill. 166; Kelsey v. Lamb, 21 id. 559; Stumps v. Kelley, 22 id. 140; People v. Lindblom, 215 id. 58.) It has been held, also, that where the representatives of a deceased party to the action are made parties on motion, it is unnecessary to amend the declaration formally by the insertion of their names. (Hoes v. VanAlstyne, 20 Ill. 202.) In Deutsch Central Verein v. Lartz, 192 Ill. 485, it was held that where a motion was made to amend the demurrer, when it purported. to be for all the defendants, and make it a demurrer for one defendant only, the order of the court allowing this amendment was all that was necessary, without formally making the amendment in the pleading. Counsel for plaintiff in error relies on the rulings of this court in Wisconsin Central Railroad Co. v. Wieczorek, 151 Ill. 579, Landt v. McCulloch, 206 id. 214, and like cases, in which objections were made to the introduction of certain evidence on the ground of variance between the allegations and the proof, leave being given to amend but no amendment being actually made. This court held that there was a variance between the allegations and the proof, and the amendment could not be considered as having been made on the record in those cases. There is nothing to show in those cases that the parties proceeded as if the amendment had been actually made, as they did in this case. We do not think the ruling in that class of cases is controlling here. The amendment here was actually offered and is in the record. It did not in any way change the character of the proof, either for plaintiff or defendant. Counsel for plaintiff in error pleaded the general issue as if the amendment had been filed and presented the case to the jury assuming that said amendment had been made and was in no way prejudiced on account of the failure to actually file the amendment. Under a reasonable construction of our statute on amendments, and by the weight of authority in this and other jurisdictions, we think, on this record, that the failure to file the amendment should not cause the reversal of this judgment. The judgment of the Appellate Court will be affirmed. MICHAEL COSTELLO et al. Defendants in Error, vs. F. A. DELANO et al. Plaintiffs in Error. Opinion filed June 22, 1916-Rehearing denied October 11, 1916. I. CONTRACTS-when final estimate on a railroad grading contract must be made by chief engineer. Where a contract for railroad grading expressly provides that the work shall be done under the direction of the company's chief engineer, that the decision of the chief engineer shall be final as to the true construction and meaning of the drawings and specifications and that the chief engineer shall make the final estimate, the contractor cannot recover on a final estimate made by the assistant engineer in charge of the work, which estimate the company claims was fraudulent, notwithstanding the contract provides that whenever the term "engineer" is used it is understood to mean the chief engineer or his duly authorized agents, limited by the particular duties respectively intrusted to them. 2. SAME when general definition of "engineer," given in the contract, does not apply. Where a contract for railroad grading makes frequent use of the word "engineer," and expressly states that whenever the term "engineer" is used it is understood to mean the chief engineer or his duly authorized agents, limited by the particular duties respectively intrusted to them, any act which the contract requires to be done by the engineer, without more, may be performed by the chief engineer or any assistant to whom the performance of the act has been intrusted, but where the contract specifies that certain things shall be done by the chief engineer, then the general definition given does not apply and only the chief engineer can perform the act. 3. SAME when payments on previous estimates do not raise any estoppel. Where a contract for railroad grading provides for payments to be made on monthly estimates, the fact that payments during the progress of the work are made upon estimates prepared, in the first instance, by an assistant engineer and approved by the chief engineer does not estop the railroad company from disputing the final estimate of such assistant engineer, where the contract expressly provides that the monthly estimates shall not be conclusive evidence of the performance of the contract, wholly or in part, and requires the final estimate to be made by the chief engineer. CRAIG, C. J., and FARMER and DUNCAN, JJ., dissenting. WRIT OF ERROR to the Appellate Court for the Third District;-heard in that court on writ of error to the Circuit Court of Moultrie county; the Hon. W. G. COCHRAN, Judge, presiding. HUGH CREA, HUGH W. HOUSUM, and E. J. Miller, (J. L. MINNIS, and N. S. BROWN, of counsel,) for plaintiffs in error. JAMES VAUSE, JR., CLARENCE W. HUGHES, Carl D. KIGER, and F. J. THOMPSON, for defendants in error. Mr. JUSTICE CARTER delivered the opinion of the court: Defendants in error brought an action of assumpsit in the Moultrie county circuit court against the plaintiffs in error, who are the receivers of the Wabash Railroad Company, and recovered a judgment for $11,318.63, which the Appellate Court for the Third District affirmed, and the record has been brought to this court by writ of certiorari. The action was brought to recover a balance alleged to be due under a written contract whereby the defendants in error agreed to provide all tools and appliances and perform all labor for the completion of an embankment for new main and side-tracks of the Wabash Railroad Company between the stations of Worden and Foag. The contract was dated May 22, 1912, and provided for the commencement of work within ten days from its date and the completion of the work by August 31, 1912. It contained the following provisions: "It is understood and agreed by and between the parties hereto that the work included in this contract is to be done. under the direction of the chief engineer of said receivers and that his decision as to the true construction and meaning of said drawings and specifications shall be final, and he shall also determine and set forth in his final estimate the amount and kind of all work performed and materials furnished by the contractor under this contract, including all extra work, (meaning all work not covered by this contract,) which final measurements and estimates shall be binding on both parties to this agreement. It is also understood and agreed by and between the parties hereto that such additional drawings and explanations as may be necessary to detail and illustrate the work to be done are to be furnished by said engineer, and the contractor agrees to conform and abide by the same so far as they may be consistent with the purpose and intent of the original drawings and specifications referred to in article 1. Whenever in this contract the term 'engineer' is used it is understood to mean the chief engineer of the receivers or his duly authorized agents, limited by the particular duties respectively intrusted to them. * * * On or about the first day of each month during the progress of this work an estimate shall be made by the engineer of the relative value of the part of the work done up to such time, and upon his certificate of the amount being presented to the proper official of the receivers, or such disbursing agent as the receivers may appoint, the amount of said estimate, less a retained ten per cent and less previous payments, shall be paid to the contractor on or about the 20th day of each month at the nearest disbursing point of the receivers to the contractor's office: And provided further, that upon completion and acceptance of the work under this contract a final estimate |