BATES COUNTY, MO., v. WILLS et al.

BATES COUNTY, MO., v. WILLS et al. (Circuit Court of Appeals, Eighth Circuit. October 17, 1912.) No. 3,470. On rehearing. Denied. For former opinion, see 190 Fed. 522, 111 C. C. A. 354. Thomas J. Smith, of Butler, Mo., and Frank Tiagerman, of Kansas City, Mo., for plaintiff in error. Frank M. I,owe, of Kansas City, Mo., William Mumford, of Pitts-field, Ill., and Judson & Green, of St. Rouis, Mo., for defendant in error. Before HOOK, Circuit Judge,.and RINER and WM. H. MUN-GER, District Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Bates 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. The petition is denied.