200 F.1d 143 - Bates County v. Wills — 200 F. 143

How this case has been cited

Cited by 3 later decisions — most recently November 1936

2 federal appellate ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1On rehearing.

¶2Denied.

¶3For former opinion, see 190 Fed. 522, 111 C. C. A. 354.

¶4Thomas J. Smith, of Butler, Mo., and Frank Tiagerman, of Kansas City, Mo., for plaintiff in error.

¶5Frank M. I,owe, of Kansas City, Mo., William Mumford, of Pitts-field, Ill., and Judson & Green, of St. Rouis, Mo., for defendant in error.

¶6Before HOOK, Circuit Judge,.and RINER and WM. H. MUN-GER, District Judges.

¶7PER CURIAM.

¶8Bates County, Mo., the plaintiff in error, petitions for a rehearing because of the expression in the opinion (111 C. C. A. 354, 190 Fed. 522) that “a willful failure or refusal of the engineer to give estimates would not defeat their (defendants in error's) right to recover.” In the use of the expression there was no purpose to depart from or modify the rule, frequently expressed by this court, that the action of an engineer, architect, or other person invested with the power of decision as to the performance of a contract is conclusive, “except in case of fraud or such gross mistake as implies had faith or a failure to exercise an honest judgment.” City of Trinidad v. Hokasona, 102 C. C. A. 421, 178 Fed. 438; Cook v. Foley, 81 C. C. A. 237, 152 Fed. 41; Roberts, etc., Shoe Co. v. Westinghouse, etc., Co., 74 C. C. A. 348, 143 Fed. 218; Choctaw & M. R. Co. v. Newton, 71 C. C. A. 655, 40 Fed. 225; Guild v. Andrews, 70 C. C. A. 49, 137 Fed. 369; Elliott v. Railway, 21 C. C. A. 3, 74 Fed. 707.

¶9The petition is denied.