The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1889-02-12


John r. Howard ct al Appellants, vs. The Pen
sacola & Atlantic r lilroad Company Appel
lee-Gadsden county.
RANEY, j..
l. If complainant amends his bill so as to
materially change its character after plea to it
has been adjudged sufficient, he cannot on an
appeal taken from final decree rendered upon
the case made by the amended bill, plea and an
swer and repllc alton thereto and testimony, as
sign as error the ruling upon the plea to the orig
inal bill.
g. A material amendmen, of a bill, after de-
cree pro confeSso for default in pleading has been
opened, is waiver by the complainant OF his
right TO assign as error on appeal the opening OF
such decree.
g. Charges of fraud or mistake must be specific,
and to avail anything they must be proved If de-
MED.
A. Where a contract ls embodied in several in
slruments, its true meaning is to be ascertained
from q consideration OF all the instruments and
their effect upon each other.
S. Although the parties 10 a written contract
may by the adoption and pursuit OF course OF
dealing inconsistent with provision OF the con-
tract substitute the terms OF their dealing for the
particular provision of the contract, yet they will
not be held to have intended, nor be bound by,
such substitution, when 1t appears that upon DIS
covering that they had through mistake OF bOth
parties been acting contrary To the agreement as
written they abandoned such course OF dealing
and conformed TO the terms of the written con-
tract and the conduct OF the party against
whom il is sought to recover upon the basis OF
such departure from the contract has shown,
from the time of the discovery OF the mistake, a
positive determination to insist upon and ad
here 10 the contract as written.
G. Where differences between the parties to
a contract have been ref rredby them to A third
person. and afterwards settlement has been
agreed to by the contracting parties upon the
basis of the referees adjustment, and such SET
tlement has been partly performed by the pay
ment OF sums In accordance with and IN hQu-
dation of such agreement ofsettlement, the party
receiving the payments will. in the absence of
any fraudulent or unfair dealing oy the other
party to the contract or by such referee, and OF
any mistake upon the plrt Of such referee, be
held 10 the settlement agreed upon by them.
7. The parties 10 a contract may submit their
differences to an employee of one of them for
arbitration or adjustment and agree that his de-
cision shall be final rs between them.
g. A provision by which party, who is to
perform specified work tor another, agrees that
he will not execute any extra work, nor make
anv notifications or alterations in the work
described in the specification and plans, unless
ordered in writing by named agent of the
party for whom the work is 10 be DONE nor
claim pav for extra work, notifications or alter
ations. unless such written order be produced, is
valid
8. Where person has contracted to do work
for another, and has assigned the contract aud
whatever may he payable to him hereunder for
the performance of the work, to a third person
as collateral security for moneys advanced aud
10 be advanced by such third person to enable
the assignee to perform his contract and after
such assignment the parties to the original con-
tract have adjusted their differences as to the
! amount payable under the contract. the fact