The Lantry Contracting Company v. The Atchison

• Decision Date: 06 April 1918
• Docket Number: 21,438
• Citation: 172 P. 527,102 Kan. 799
• Court: Kansas Supreme Court
• Parties: THE LANTRY CONTRACTING COMPANY, Appellee and Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant and Appellee

172 P. 527

102 Kan. 799

THE LANTRY CONTRACTING COMPANY, Appellee and Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant and Appellee

No. 21,438

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeal from Shawnee district court, Division No. 1; ALSTON W. DANA judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. REFERENCE--Report of Referee--Motion--Appeal Taken in Time. The defendant, having filed a motion addressed to the district court within three days after the decision of the referee, which motion was overruled less than six months before the appeal was taken, is entitled to a review of the rulings mentioned in that motion, although the referee previously disposed of a motion for a new trial filed before him more than six months prior to the taking of the appeal.

2. ARBITRATION--Partiality of Arbitrator--Decision Not Binding. An arbitrator is the agent of both parties concerned, and where he misconceives the functions of his agency and proceeds on the theory that he is the special agent of one of them and endeavors to secure a result favorable to that one at the expense of the other his decision is not binding, however honest his motives may have been.

3. CONTRACT--Building Tunnel--Payment for "Extras" Demanded. The contract for building a tunnel provided that if extras were furnished for which prices were not fixed in the contract no payments should be made for them unless they had been ordered in writing by the chief engineer of the defendant. Under the plans, the framework of the roof of the tunnel was to be supported by posts resting on the floor. The parties decided that it would be better to have short posts niched into the walls of the tunnel instead of using longer ones resting on the floor of the tunnel, it being agreed that the cost of the work of cutting the niches for the short posts was equal to the difference between the cost of the long and the short posts and should be paid for as lumber. Held, that such work was not an extra within the meaning of the contract.

4. SAME--Orders for "Extras" to be in Writing--Blueprint Sufficient. When the chief engineer ordered that posts should be reset in trenches with concrete foundations, instead of on the floor of the tunnel, and furnished a blueprint showing the plan of that work, it is deemed to be sufficient to meet the requirement that extra work must be done on a written order.

5. SAME--Engineer's Estimate--Objections to be Presented in Ten Days--Failure Excused. One of the provisions of the contract was that if the contractor claimed that the chief engineer in his final estimate had failed to consider or allow for work or material, objections should be presented by the contractor in writing within ten days after the estimate was made, and it is held that in view of the things said and done by the chief engineer the failure of the contractor to present formal objections in writing within the ten-day period does not preclude a recovery on such items.

6. SAME--Partial Payment Made--Not Accord and Satisfaction. A final estimate with a voucher attached was sent by the chief engineer of the defendant to the contractor, without any accompanying statement, which voucher was signed by the contractor as "received on account." No check or money was tendered with the statement, and after the indorsement of the contractor qualifying the acceptance the defendant paid and the contractor received the amount named in the estimate. Held, that the payment and acceptance of the money cannot be regarded as an accord and satisfaction.

7. SAME--Amendment to Petition--No New Cause of Action Stated. The several breaches of the entire contract upon which the action was brought constitute only a single cause of action, and an amendment to the petition made more than five years after the tunnel was finished, setting up an additional item furnished under the contract, is not barred by the statute of limitations.

8. SAME--Ambiguous Contract--Explained by Circumstances. The terms of a contract being ambiguous and open to more than one interpretation, testimony of the circumstances surrounding the execution of the contract may be admitted to aid in its interpretation and in ascertaining the intended meaning.

9. SAME--Findings and Judgment Sustained. The evidence examined, and held to be sufficient to support the special findings upon which the judgment is founded.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, and William Osmond, of Great Bend, for the appellant.

F. Dumont Smith, of Hutchinson, and R. F. Hayden, of Topeka, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by the Lantry Contracting Company against the Atchison, Topeka & Santa Fe Railway Company, to recover compensation claimed for certain extra items of work done, material furnished, and expenses incurred in the construction of the Raton tunnel on the defendant's railroad, for which payment had not been made. The case was tried by a referee, and on February 21, 1916, he returned findings of fact and conclusions of law which were in favor of plaintiff as to three items of its claim. After overruling defendant's motion for a new trial and certain exceptions made by each party to the findings, the referee, on February 22, 1916, filed in the district court his report of the proceedings before him, including his decision. The next day defendant filed in that court its motion for a new trial, as well as certain exceptions to the findings and conclusions of the referee, and on the following day plaintiff filed certain exceptions to the findings and conclusions of the referee. These pended in the district court until January 15, 1917, when the motions were all denied, the report of the referee was confirmed, and judgment was rendered thereon in favor of plaintiff. Two days later the defendant filed another motion for a new trial, which the court denied, and on May 21, 1917, the defendant appealed to this court. A cross appeal is taken by plaintiff from the order of the trial court overruling certain of its exceptions to the findings and conclusions of the referee.

Plaintiff contends that the questions presented are not open to review, because the appeal was not taken within six months after the motion for a new trial was decided. The original abstract failed to show the filing of the motion for a new trial addressed to the court on February 23, 1916, two days after the decision by the referee. When attention was called to the omission, a supplemental abstract was filed showing the filing of the motion on the day stated, and further, that it had been presented to the court and taken under advisement on July 6, 1916, and that a decision overruling the motion was made on January 15, 1917, about four months prior to the taking of this appeal. The grounds of that motion include all the questions that are raised on this appeal, and hence they may be reviewed.

The referee found, and the court adjudged, that the plaintiff was entitled to recover $ 15,646, over and above the allowance made and paid by the defendant, with interest from July 10, 1909, amounting in all to $ 22,895.16. This award included an item of $ 2,443.22, with interest thereon, for the setting of stulls, as to which there was an agreement. Another was for $ 3,140.50 for resetting posts on new foundations of the tunnel lining, which was done on orders and plans given and provided by the chief engineer of the defendant. Then there was still another item of $ 10,063, with interest, for lumber used in the tunnel beyond that allowed in the final estimate of the chief engineer. A claim was also made by the plaintiff for a large sum expended by it in the transportation of coal, which it insists should have been carried by the defendant without charge; but this claim was disallowed by the referee, and upon this ruling the cross appeal is based.

The contention of defendant is that the claims for extra work and material were to be left to the decision of the chief engineer, who was appointed by the parties to give a final decision upon any disputes that might arise, and who, under the contract, was required to make a final estimate of the amount, quantity, and character of all work and material performed and furnished by the contractor, including extra work and material, and that his decision should be final and conclusive and have the effect of an award; and further, that if the contractor should claim that a mistake had been made in the estimate or decision of the chief engineer the contractor should present its objections in writing within ten days after the final estimate was made. It is contended that the plaintiff had failed to comply with these requirements as to disputed items or to prove that they had been waived by the defendant. The plaintiff, on the other hand, insists that the action of the chief engineer in disallowing its claims was not effective, because he acted as the agent of the defendant and not as an impartial arbiter between the parties, that his decisions were the result of partisanship, and therefore were not binding. There is no claim that the chief engineer acted fraudulently, but merely that he misconceived the functions of an arbiter and failed to understand the duties incumbent upon him, and proceeded on the theory that it was still his duty to act as agent for the defendant and to secure the best terms of settlement that he could obtain for it. The referee found, and we think upon sufficient evidence, that he "mistook his position as that of an agent of the defendant for the purpose of securing a settlement in its interest. He did not in all matters exercise his own judgment, but as to some advised with the legal department of defendant, and held himself...