Edwards v. Hartshorn

• Decision Date: 07 October 1905
• Docket Number: 14,258
• Citation: 82 P. 520,72 Kan. 19
• Parties: W. C. EDWARDS v. J. A. HARTSHORN
• Court: Kansas Supreme Court

82 P. 520

72 Kan. 19

W. C. EDWARDS v. J. A. HARTSHORN

No. 14,258

Supreme Court of Kansas

October 7, 1905

Decided. July, 1905.

Error from Harper district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT--Pleading--One Cause of Action--Counts. A party cannot always anticipate what the testimony in a case may develop, and to meet the possible phases of the evidence he may sometimes state his cause of action in different counts.

2. PRACTICE, DISTRICT COURT--Election of Counts. Where a plaintiff set up in his petition three counts based on the same transaction, and at the close of the testimony elected to stand on one of the counts, and the case was submitted to the jury as a single cause of action, the refusal of the court to require an earlier election was not prejudicial error.

3. CONTRACTS--Provision for an Umpire Valid--Effect. A provision in a contract between a principal contractor and a subcontractor for the grading of a railroad that the work should be done under the supervision of the chief engineer of the former, who should make estimates as a basis for the payment of the work done, and that his decision as to all matters of dispute which arose between the parties should be final and conclusive, is valid; and the decision of such an umpire is prima facie conclusive upon all matters submitted to, and fairly and honestly decided by, him.

4. CONTRACTS--Fraud or Mistake of Umpire. If there be fraud or mistake so great and palpable as to imply bad faith or the umpire fail fairly and honestly to perform the function assigned to him, his decision will have no binding force.

5. CONTRACTS--Subsequent Agreement. Nor will it bind if, by the subsequent agreement of the parties, the decision is not to be relied on, but other, fuller and correct estimates are to be made.

6. CONTRACTS--Remedy on the Contract. In either case a proceeding in equity to set aside the decision of the engineer is not a condition precedent to an action at law to recover the money due under the contract, where the work has been satisfactorily completed by the plaintiff and has been accepted by the defendant.

7. CONTRACTS--Interest of Umpire. The fact that the chosen umpire was an employee of the defendant does not of itself weaken the force of his decision, but the law requires of a person so situated the utmost diligence and good faith in the performance of his duties.

John A. Eaton, and Fred Washbon, for plaintiff in error.

T. A. Noftzger, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

This was an action brought by J. A. Hartshorn against W. C. Edwards to recover the balance alleged to be due for the grading of two miles of the Kansas City, Mexico & Orient railroad, in Oklahoma. Originally the Kaw Valley Construction Company, the Union Construction Company and the Kansas City, Mexico & Orient Railroad Company were made defendants, but on the motion of plaintiff a dismissal was entered as to these parties, and the case was tried out against Edwards alone.

The petition contained three counts, all based upon Hartshorn's claim for work done for the defendant. The first was upon an account stating the charges for clearing, grubbing and excavating for the grade of the railroad, and also stating the credits, and asking for recovery of the balance due, $ 5439.16. The second count set up the contract between the parties, the work done in pursuance of it, the failure to measure and estimate the work as the contract specified, and otherwise to perform the contract; and the third count was like unto the second, except that express malice and intentional fraud were charged against some of the engineers in measuring the excavation and determining the amount due for the work. Hartshorn, however, elected to stand upon the second count of his petition, and the averments of the other counts became immaterial.

In the second count the contract between the parties was set forth, under which Hartshorn was to receive fifteen dollars per acre for clearing, twenty-five dollars per acre for grubbing, nine cents per cubic yard for earth excavation, twenty-seven and one-half cents per cubic yard for loose rock, and fifty-five cents per cubic yard for solid rock. The work was to be done to the satisfaction of the chief engineer of Edwards, who was to make measurements and estimates, and was to be paid for when he certified that the work was completely performed.

The petition alleged that the contract contained a provision "that the decision of the chief engineer of the defendant, W. C. Edwards, should be final and conclusive on any dispute which might arise between the parties to said agreement relative to or touching the same, and that each of said parties did thereby waive any right of action or other remedy, in law or otherwise, by virtue of this contract, so that the decision of the chief engineer should, in the nature of an award, be final and conclusive on the rights and claims of said parties, and no suit should be brought until the award of the said chief engineer should have been made and published, and then for the purpose only of enforcing said award." It was further alleged that Edwards was the agent of the construction and railroad companies; that he chose as chief engineer M. P. Paret, who was the chief engineer of these companies, and who was interested in estimating the work done at a lower figure than the correct amount; that Paret, pretending to act as chief engineer for Edwards, made certificates of the work done, but failed and neglected personally to measure and estimate the work done; that, instead of making estimates or measurements of the work personally, he relied upon measurements and classifications made by E. B. Coulson, who was commonly known as a resident engineer; that Coulson was wholly incompetent for the work; that the estimates made by him were erroneous, incorrect, and incomplete; and that neither Paret nor Coulson had ever made any correct estimate, but made one which placed the value of the work done at the sum of $ 5439.16 less than the true amount and value under the terms of the contract.

It was further alleged that two final estimates were made on the work, one for each of the miles graded, but each time Hartshorn refused to receive the sum allowed on these pretended estimates, asserting that they were incorrect, and that a mistake had been made in the classification and measurement of the work; that it was then agreed between him and Edwards that the chief engineer should make a personal examination, and upon this agreement the amounts of the estimates were accepted; that the plaintiff refused to accept said sums, or either of them, until Edwards agreed to make full, correct and final estimates and classifications, and finally accepted the money only as part payment of the work under an agreement that correct estimates and classifications should be made, but that the defendant had since unreasonably and fraudulently refused and neglected to make further, final and correct estimates and classifications. It was further alleged that the work done had been accepted as being in full compliance with the contract, but the defendant, on account of the mistake of the chief engineer, and the fact that Coulson was careless, negligent, and incompetent, and failed correctly to measure, estimate and classify the work done under the contract, had failed to pay him the amount due under the terms of the contract, and that there was still due $ 5439.16, for which plaintiff asked judgment.

In his answer Edwards alleged that the chief engineer did make estimates and classifications of the work done, and that he had paid to Hartshorn the amount of the estimates which were received by the plaintiff. The plaintiff in reply alleged that the estimates mentioned in the answer were those described in the petition as being incorrect, false, and fraudulent. The trial resulted in favor of the plaintiff, the jury awarding him the sum of $ 5439.16.

Error is assigned on the ruling of the court denying the motion of Edwards to require the plaintiff to elect on which count of his petition he would rely. The code requires that the petition shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. (Code, § 87; Gen. Stat. 1901, § 4521.) A party may, however, have demands of a different nature founded on the same transaction, which he may state in separate counts, although only one recovery can be had. There are times when a...