139 So. 774 | La. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *113 Some time before April 16, 1928, the defendant, O.M. Gwin, who is a general contractor *114 doing business as the O.M. Gwin Construction Company, entered into a building contract with plaintiffs by which he agreed to construct an annex to the building known as the Jung Hotel in the city of New Orleans; one of the provisions of said contract being that:
"All questions subject to arbitration under this contract shall be submitted to arbitration at the choice of either party to dispute.
"The contractor shall not cause delay of any work during the proceedings of arbitration.
"The award of the arbitrators shall be in writing and it shall not be open to objection on account of the form of the proceedings or the award, unless otherwise provided by the controlling statutes.
"In the event of such statutes providing on any matter covered by this article otherwise than as hereinbefore specified, the method of procedure throughout and the legal effect of the award shall be wholly in accordance with the said statutes, it being intended to lay down a principle of action to be followed, leaving its local application to be adapted to the legal requirements of the jurisdiction having authority over the arbitration."
Another provision of said contract is as follows:
"If the owner should fail to pay the contractor within seven days of its maturity and presentation any sum certified by the architect, or awarded by the arbitrators, then the contractor may, upon seven days written notice to the owner and architect, stop work or terminate this contract and recover from the *115 owner payment for the work executed and any loss sustained upon any plans or materials and reasonable profit and damages."
This was before the effective date of our present excellent law on arbitration, Act No. 262 of 1928 (August 1, 1928); and hence, even by the very terms of the building contract itself, the arbitration, and all the proceedings before the arbitrators, as well as the effect of their award, were to be governed by the former provisions of the Civil Code and Code of Practice on the subject of arbitration.
Thereupon the contractor, in his turn, gave notice to the owners that, if the award were not paid at the end of seven days, he (the contractor) "will (would) exercise the right accorded to him under the contract, to stop work or terminate the contract" (Milner, Atty., to Danziger, Atty., September 10, 1928); meaning thereby that he would avail himself of the right accorded him by the contract, if the owner should fail to pay the contractor within seven days of its maturity and presentation any sum certified by the architect or awarded by arbitrators, "to stop work or in the alternative, to terminate the contract and sue the owner for all profit, loss, damages, etc." (Milner, Atty., to Danziger, Atty., September 7th, 1928.)
If plaintiffs, even though they paid under protest and with full reservation of all their rights, none the less cannot recover the amount paid, then any action to recover said amount must be fruitless; and this suit then raises a mere moot question, not justiciable.
Article 2302 reads as follows:
"He who has paid through mistake, believing himself a debtor, may reclaim what he has paid." (Italics ours.)
But there is no such case here. Plaintiffs may not have owed the amount of the award, but they were laboring under no mistake as to that. They at no time believed that they owed this amount; on the contrary, they at all times believed that they did not oweit, and protested vigorously that they did not. So the payment was not made because of any mistake as to their owing or not owing the amount they paid. When they paid it, they did not believe they were debtors at all; they were, and still are, without having changed their belief in any way, most positive that they were not debtors and did not owe the amount.
Hence they are not in the position of one who "has paid through mistake, believing himself a debtor." And if they paid what they did not owe, it was not through any mistake in believing themselves debtors, but from some other cause; that is, through coercion.
But argues the contractor, under the terms of the contract, he had the right to stop work *119 if the award were not paid in seven days after demand for payment and notice of intention to stop work.
Hence, it is argued, the contractor threatened to do only that which he had a right to do, and that the case falls squarely within the terms of article 1856, Rev. Civ. Code, defining what constitutes want of consent arising from violence or threats; which article reads as follows:
"If the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law and by the circumstances of the case, are of this description."
And it is argued that here the contractor was expressly authorized by the contract to do exactly what he threatened to do, and that this court has repeatedly held that one who, without error or duress, has paid an excessive demand cannot maintain an action for repetition thereof, even though payment was made under protest. Rivers v. N.O. Water Works Co., 35 La. Ann. 822; Carey v. Commonwealth B. L. Ass'n,
But an award of arbitrators, not clothed with the powers of "amicable compounders," cannot be made final and not subject to appeal by convention of the parties to the submission. Rev. Civ. Code, art.
Hence it follows that the award herein could not become final and exigible or executory until after an appeal to the courts had been abandoned or had resulted in an affirmance of the award; unless it be found that these arbitrators were clothed with the powers of amicable compounders.
But they are not called, eo nomine, amicable compounders in the contract, and nothing on the subject of arbitration in that contract (which we have quoted in full in the beginning of this opinion) indicates that the arbitrators were to proceed otherwise than in strict accordance with the law (see article 3110, Rev. Civ. Code); on the contrary, the very reverse of this appears to be the case, as a mere reading of the clause an arbitration (quoted above in full) will show.
We think, and the event shows, that this unusual condition of the soil was an unexpected and unforeseen occurrence, though not a fortuitous event within the meaning of the *122 Code (Rev. Civ. Code, art. 3556, subds. 14, 15, and article 1933, subd. 2).
And in this contract it was not so agreed. On the contrary, the contract very definitely provides, especially in the matter of sheet piling, that the contractor shall beware such conditions. Thus the contract provides: "The General Contractor shall, throughout this entire operation and more especially during the progress of pile driving work and excavating, use extreme care and shall employ every usual and necessary precaution to protect adjoining hotel and other proximate buildings from damage, and the occupants thereof from annoyance." (Italics ours.) And again: "Piling subcontractor shall furnish and drive sheet-piling of sufficient cross sectional dimension and length to afford the resistance necessary to protect all excavations for piers, trenches, tanks, and cellars and elevator-pits, assuming full responsibility for the accomplishment of this. He shall provide such other sheet-piling as may be necessary to insure the safety and integrity of adjoining structures and to prevent injury to city curbs and streets, sewers, drains, and other sub-soil facilities set forth above under caption: `Conditions at Sight,' and shall assume full responsibility for the size and sufficiency of the same to the end *123 employed. He shall cut off sheet-piling when, and to such depths as may be directed by the Architects."
And the fact that the specifications provided that "all sheet piling shall be driven to a point not less than ten feet below levels of adjoining maximum excavations," evidences, not that the contractor was not required to drive the sheet piling more than ten feet below the deepest excavation, even though it proved necessary to go deeper, but that he was required to go at least ten feet below the level of adjoining maximum excavations,whether necessary or not.
C.J., concurs in the decree, but not in what is said in the first paragraphs of the prevailing opinion.