Georgia Pacific Ry. Co. v. Brooks, 66 Miss. 583

66 Miss. 583 | Miss. | 1889

Arnold, C. J.,

delivered the opinion of the court.

Without attempting to define the general rule, if there is any on the subject, as to what constitutes multifariousness in a bill in chancery, it is sufficient for the purposes of this case to say, that § 1886 of the code declares, that “the uniting in one bill of several distinct and unconnected matters of equity, against the same defendants, shall not be an objection to the bill,” and that under this provision of the code, the bill here, is not objectionable as being multifarious.

The bill shows no cause for relief on account of the contractors being defrauded in making the original contract. If they were deceived and defrauded in this respect as alleged, they knew it, or in the nature of things ought to have known it before they commenced work under the contract, and they waived the fraud and confirmed the contract by making new agreements and engagements based upon it, and by accepting pay at the contract price. Hanson v. Field, 41 Miss. 712; Edwards v. Roberts, 7 S. & M. 544. The contractors and those claiming under them must abide by the contract as made by the parties, and as subsequently ratified and approved by their conduct.

By the terms of the contract, the contractors were to be allowed an extension of time, to be determined by the engineer of the company, for the completion of the work, if its progress was from any cause hindered or delayed, provided they gave the engineer in charge immediate notice in writing of the cause of the detention. It is alleged in the bill that the work was impeded by the wrongful conduct of the company and its engineers, in various respects, and that immediate notice thereof in writing was given to the engineer in charge, and that he and the company arbitrarily and unjustly refused to allow any extension of time for the completion of the work.

It appears also from the contract that monthly estimates of the relative value of the work to be done by the contractors, were to be made by the engineer of the company, and that his estimates, monthly and final, were to be absolutely conclusive on both parties. And it is alleged in the bill that the engineers were prejudiced against the contractors and partial to the company, and willfully and fraudulently made improper and under-estimates of the work done, and that in other matters confided by the contract to their judgment and decision, the action of the engineers of the ■company was characterized by fraud and willful wrong.

We are of opinion that these allegations gave equity jurisdiction, and that receiving payment by the contractors on the monthly and partial estimates does not preclude them from complaining of the alleged fraud and errors in such estimates, in violation of the ■contract.

The stipulation in the contract that the engineer of the company •should be the sole judge of the estimates implies that he should be competent and act honestly. Neither party would be bound by the fraudulent estimates made by the engineer in such case. 2 Wood on Railways, § 277 ; Herrick v. Belknap, 27 Vt. 673 ; B. & O. R. R. Co. v. Polly, 14 Gratt. 447; B. & O. R. R. Co. v. Laffertys, Ib. 478.

Under the contract the determination of the estimates by the engineer was in the nature of, and must be treated as, an award made by an umpire, selected by the parties for that purpose, and the jurisdiction of equity to set aside an award for fraud or corruption cannot be questioned. 2 Pomeroy’s Eq. Jur., § 919; 2 Story’s Eq. Jur., §§ 1451, 1457 a, 1457 b, and authorities, supra ; Code 1880, § 2413. And the court having jurisdiction for one purpose, will retain the bill for full relief, and adjudicate the rights of the parties in regard to the whole matter. Hunt v. Knox, 34 Miss. 655 ; Gilliam v. Chancellor, 43 Ib. 437.

Decree affirmed and cause remanded.