Choctaw & M. R. Co. v. Newton

Citations

• 140 F. 225
• 71 C.C.A. 655
• 1905 U.S. App. LEXIS 3930

Syllabus

<p>1. Contract fob Rah-boad Construction — Provision Making Engineer Umpire.</p> <p>A contractor for railroad construction work, who has voluntarily stipulated in the contract that the chief engineer of the railroad company shall act as umpire, to finally decide all questions arising as to the construction of the contract, the nature and character of the work required or done, the classification of materials excavated, and all other questions in respect to which there might be dispute or. misunderstanding, cannot impeach the decision of such engineer and recover an amount in excess of that shown thereby to be due, except on a clear showing of fraud, or of such an arbitrary and wanton disregard of his plain rights as to be the equivalent of fraud and to show that the umpire’s action was consciously unjust. A direction to a master that, to warrant a finding of fraud in such decision, the evidence must be “reasonably convincing,” does not come up to the measure of proof required.</p> <p>2. Same — Evidence Considered.</p> <p>Conflicting testimony with respect to the amount and proper classification of work done by railroad contractors in the construction of a roadbed considered, and held insufficient to support a finding that the chief engineer, who was made by the contract the final arbiter in such matters, acted fraudulently or corruptly in making his final estimates, so as to warrant the court in setting aside or increasing such estimates.</p> <p>3. Evidence — Presumption from Failure to Produce.</p> <p>The failure of a party to produce testimony within his knowledge and power on a material question involved in the case raises a presumption that the fact is against him.</p> <p>[Ed. Note. — For eases in point, see vol. 20, Cent. Dig. Evidence, §§ 95, 97.]</p> <p>4. Witnesses — Impeachment by Party Producing.</p> <p>A party cannot impugn the integrity of witnesses Introduced by himself and on a part of whose testimony he relies.</p> <p>Sanborn, Circuit Judge, dissentin