173 Pa. 199 | Pa. | 1896
Opinion by
The defendants, Kaufman & Bros., contracted with John Huckestein, a builder doing business as Huckestein & Company, for the erection of a building on Fifth avenue in the city of Pittsburg, for the price of $15,000, to be increased by any changes or additions subsequent to the contract, or during the progress of the work. This price, by subsequent additions, was largely increased. The first contract between the parties was made the 15th of June, 1892, and this, owing to important changes in design and height of building, was followed by three others within sixty days thereafter, whereby the design of the building was greatly changed; before any of the subsequent contracts with Kaufman & Brothers were reduced to writing, Huckestein on 29th of June, 1892, subcontracted the carpenter work to John Frazier, doing business as Frazier Brothers. By this contract, Frazier agreed to do all the carpenter work and furnish all the materials therefor, according to specifications, for the price of $15,000, subject to increase or diminution by change of plans and material; the price was largely increased by subsequent additions. All of the work and material to be subject to the approval of the supervising architect of Kaufman & Brothers. Payments were to be made Frazier as the work progressed, according to the estimate of value by the architect, as follows: When the second floor joists are in place, two thirds of the value of the work up to that point; a like two thirds when third floor joists are in place; and so on, making six distinct payments when the plastering was finished; then the seventh and final payment was to be made when all the work was completed to the satisfaction of the architect; this payment, it was stipulated, might be made by an order drawn by
The contract of Huckestein embodied a stipulation that before final payment to him by Kaufman & Brothers, the building was to be delivered free from all liens. There was also a provision for arbitration, if any dispute arose between owner and contractor concerning the value of any changes or additions to the original contract, and the decision of the arbitrators was to be final and binding on each of the parties. Kaufman refused to make final settlement and payment to Huckestein, until he procured from Frazier a release of right to file a mechanics’ lien. This obstacle to a settlement with Kaufman, brought Huckestein and Frazier into negotiations as to balance due Frazier. On the 2d of June, 1893, they met at the’ office of T. Baird Patterson, Esq., counsel for Frazier, who drew up an agreement, which was there signed by them. In this it was agreed that in consideration of an order for $6,750, given to Frazier by Huckestein on Kaufmans and release by Frazier of right of lien, Huckestein would at once proceed to obtain payment from Kaufman of the full amount yet due over and above the order on his contract as principal contractor; and in case the order was not paid by Kaufmans, would protect Frazier’s claim, and press arbitration against them for the full amount payable under the contract, and on the determination of this suit, then all differences between Huckestein and Frazier should be submitted to arbitration, as provided in the written contract between Huckestein and Frazier, such award to be final. In a subsequent agreement July 27, 1893, it was further agreed that Frazier should have the right to present and prove before the Huckestein-Kaufman arbitration, a bill of $4,971.98, for extra work on the building, for which Huckestein denied liability, but as the architect claimed this bill should be presented through the principal contractor, Huckestein consented it might be so presented, without any acknowledgment of liability therefor on his part.
In arriving at the amount due Frazier, the auditor found that bis full claim had been submitted to the arbitrators, and that under the terms of the submission he was concluded by their award. Frazier contended, in substance, the order for $6,750 on Kaufman, was intended as a payment, was not in dispute and was not submitted to the arbitrators, but their award of $3,539.80 was for extra work not included in the order; and although appellant prefers eight assignments of error, they are all ruled by a decision on this one contention.
The appellant argues, that as at the arbitration the order for $6,750 was not a matter in dispute between the parties, therefore it was not within the terms of the written submission.
There is no doubt that where parties have submitted disputes or differences to arbitrament and award, either party may show that a particular transaction was not in dispute, and was not submitted. Here, the written submission states, “ differences have arisen,” and for the purpose of adjusting said “ differences ” they are referred to the three arbitrators. The claim of Frazier on Huckenstein was for payment of the amount unpaid him on his subcontract, including the $6,750 covered by the order. If Kaufmans had secured payment of this to Frazier, or he had accepted them as his debtors, it might have appeared that this sum was no longer at variance between them. But Kaufmans refused to honor the order, leaving the original relation of debtor and creditor between Huckestein and Frazier unaffected; the debt was still owing and unpaid by Huckestein to Frazier at the
As. to the fact, this is the finding of the learned auditor in the court below:
“ It is clear that Frazier Brothers, in presenting their claim, presented their whole claim. It is also clear from the bill which Huckestein & Company presented to the arbitrators, showing what they admit to be due to Frazier Brothers, that they do not admit the items which Frazier Brothers claim went to make up the order of $6,750. It is a significant fact also, that if the order for $6,750 was not submitted to the arbitrators and they were not to pass upon it, this fact is not mentioned in their report, as the only amount which is admitted by all parties to be undisputed and due to Frazier Brothers, viz, the amount of $1,726, is included in the sum awarded by the arbitrators to Frazier Brothers, and a note is added at the bottom of the award to call special attention to this fact.
“ The auditor therefore thinks that from the papers in the case and the papers admitted to have been before the arbitrators, he is compelled to find that the arbitrators did consider the amount due to Frazier Brothers for all claims of every kind for work done by them upon the Kaufman buildings. In so ruling, he feels that an admitted claim for $6,750 is reduced to $8,589.58 and he is satisfied that the claim should not have been so reduced. However, as the parties have seen fit to select their own court for the trial of matters in dispute between them, he does not see how it is possible at this time to interfere with the judgment of that court.”
The whole argument of appellant is directed to demonstrating that the arbitrators made a mistake in their award; it is in effect urged that instead of awarding Frazier $3,539.58, they should have added to that sum the amount of the order, $6,750. But as the auditor correctly says, the courts cannot review the award of the court constituted by the parties themselves, and
The assignments of error, in view of the very full and clear report of the auditor, hardly demanded the thorough examination we have given them; but appellant’s counsel pressed so earnestly upon us the allegation that his client had been wronged to the extent of $6,750, that we have been moved to a careful review of the whole case with the voluminous testimony appended. We are satisfied appellant suffered no wrong, either by the decision of the auditor or the approval of his report by the court below. If any wrong was done him, it was by a court of his own selection, and, in part, of his own creation; to that court, the arbitrators, he submitted his whole claim; if they erred in passing on the merits of it, the error is beyond our
All the assignments of error are overruled, the decree of the court below approving the auditor’s report is affirmed, and appeal dismissed at costs of appellant.