The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-06-10
LEGAL.
No. Is, 5ss.
The City of Atchison.

~ LEGAL.
No. 1855.
me City of Atchison.
J. R. Rackiine and q. r. Gibson. mariners
TTo snEEnn business under the firm name Of
| 1NdcA4He q Gibson.
/ Error from Atchison County.
| cuu REVERSED.
eyhapus By the Court. Mason. J.
CITY sewer provided additional compensa-
tlon Tor rock excavation 1t also con-
should in all cases determine the auality
Of all materials and decide all questions
! mat should arise relative to the execution
should arise relative to the ne execution Of
the contract and that his decisions should
| pe fnaL Held. that the engineer was
thereby empowered to decide whether in
any particular instance the material exca-
| waited should be classified as rock for the
such additional compensation. and his de-
elusive.
where the contractors sued for additional
compensation upon the theory that the
engineer wrongfully refused to classify as
rock material which should have been so
classified it was error for the court to
submit to the jury the question whether
| the engineer misconceived the terms of
! the contract in respect to the meaning to
pc given to the word rock. and to instruct
them that in such case his decision might
g. Under such circumstances If the
contractors were entitled to recover at all.
upon the theory that the engineer had
acted in bad faith. they were entitled to
additional compensation at the rate fixed
by the contract: although the contract
! provided that all measurements should
fusal to measure the work in controversy
could not force them to rely upon a count
for the reasonable value of their services.
All the Justices concurring.
A true copy.
Attest: D.sAavALENTINE.
ISeal.1 Clerk Supreme Court.
No. 1889.
Henry Sauter
The Atchison. Topeka and Santa Fe Rail-
way Company.
Error from Sedgwick County
~ AFFIRMED.
I. mere Statement s ann Gauf Of the m Station
agent OF railroad company to one about
| to deliver goods to the company for ship
| should arrive at the proposed destination
| at a certain time does not constitute a
contract to carry them within such time.
2. An agreement by railroad COM
pany with a shipper to transport his
| goods from one station to another on its
make the carrier an absolute insurer of
| the goods but their destruction within the
, cuse non-delivery thereof.
All the justices concurring.
| A true copy.
Attest: D. A. VALENTINE.
| lSeal.1 Clerk Supreme Court.
J No; 1880.
The City of Kansas City ct al
! vs.
James McGrew ct al
Error from Wyandotte County, Court of
Common Pleas.
REVERSED.
1 Syllabus By the Court. Porter, j.
Section 100 of chapter 122 of the Laws
of 1903 which forbids any action or suit
/ to be maintained for the purpose of en-
joining any special assessment for public
improvements after the expiration of thir-
ty days from the time the amount OF
cases where the assessments have been
| relieved, and notwithstanding the suit to
the original levy void.
4 All the Justices concurring.
| A true copy.
Attest: D. A. VALENTINE.
| lSeal1 Clerk Supreme Court.
No 1851.
O.. ]. Peterson, Receiver of the Electric
| VS..
| Lucinda Baker.
| Error from Allen County.
AFFIRMED.
| Syllabus. BY the Court. Graves, J.
l. Under the provisions of sections and
3. CHAPTER 373, "a U. S. Stat. at Large, a
receiver who is in charge of corporate
property under an appointment by fed
I eral court. may De SUED IN the courts OF a
state where the property is located, with
| out first obtaining leave of the court MAX
| ing the appointment; and process may be
prescribed by law of such state for SER
vice of like process upon the corporation.
| 2. Where such a receiver has been
| forwards discharged by the court where
the apointn ent was made, and the prop
erty of which he was. in charge is re-
| turned to the owner. but provision is
made. in the order of, discharge for con-
| tinuance of the SUIT in the name of the
receiver, such discharge does not furn 4
suit in the state court.
| g. 1t is not error for the district court
| to refuse to give an instruction to the
| jury as requested when substantially the
| same statement of the law is contained in
the Instructions which are. given.
4. Where the trial court is requested to
! give an instruction to the jury, the ma
/ teriality of which depends upon the ex-
istence of numerous facts recited therein.
and the request is refused. the error, if
any. committed by such refusal, will be
rendered harmless. if the jury by it's spec
| ial findings of fact find against the re-
auesting party as to the existence of the
\ facts recited.
All the justices concurring.
| Attest: D. A. VALENTINE,
| [SeaI! Clerk Supreme Court
No. 1852.
| The City of Erie
l VS..
The Erie Gas & Mineral Company.
Error from Neosho County.
REVERSED.
( Syllabus. BY the Court. Benson. ]
| In consideration of the franchise and
| the transfer of certain leases. wells and
city bonds, the defendant company agreed
4 to pay to the city annually, one-fifth of
4 the actual net profits derived from the
\ sale of gas to the inhabitants of Erie for
domestic purposes. In action for an
accounting and recovery of such profits
| it is held:
| / That the company with the aid con-