Edwards v. Hartshorn

Citations

• 72 Kan. 19
• 82 P. 520
• 1905 Kan. LEXIS 302

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>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.</p> <p>2. -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.</p> <p>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.</p> <p>4. - 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.</p> <p>5. - 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.</p> <p>6. - 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.</p> <p>7. -Interest of Unvpire. The fa