Lantry Contracting Co. v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 102 Kan. 799
• 172 P. 527
• 1918 Kan. LEXIS 146

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>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.</p> <p>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 i§ 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.</p> <p>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.</p> <p>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 blue