27 Wash. 31 | Wash. | 1901
The opinion of the court was delivered by
On the 22d day of June, 1898, appellant entered into a written contract with respondent to the following effect: Appellant agreed to construct and
“The said final estimate of the said engineer of the amounts of -work done shall be final and conclusive, and binding upon all the parties to this agreement. But no engineer’s certificate, and no payment by the party of the first part, shall be construed to operate as an acceptance of work theretofore performed, or as a waiver of any claim arising oift of the failure to perform this agreement. The superintendent of the party of the first part is hereby constituted an arbitrator, to whom shall be submitted any dispute arising out of this agreement, or the performance thereof; and his award in the matter shall be final, conclusive, and without appeal therefrom.”
This suit was brought by appellant against respondent, and was begun in November, 1898. In the complaint and amended complaint it is alleged, in substance, that the appellant has duly performed all the conditions of the said agreement on its part to be performed, and that the respondent would permit it to perform, and that respondent has failed to comply with said contract in the following particulars: That the respondent discouraged the men employed by appellant from continuing in the employ of appellant, informing them that they would not receive their pay for services rendered by them for appellant, thereby attempting to make it impossible for appellant to finish its contract within the time specified therein; that in many instances the respondent hired men who were employed by appellant, and took them from
Respondent moves to strike the statement of facts for the reason that the statement was not filed until the 7th day of March, 1901, whereas the judgment appealed from was filed for record on the 9th day of October, 1900. It is urged that the' statement was filed after the expiration of the limit allowed by law, as provided by § 5062, Bal. Code. The motion is well’taken and must be granted. The utmost limit of time within which a statement can be filed is ninety days after the time begins to run within which an appeal may be taken. If filed after thirty days,
There being no statement of facts before the court, the only question for this court to determine is whether the trial court erred in its conclusion of law based upon the findings of facts. Certain affidavits are included with the record certified here by the clerk of the superior court, which have the appearance of having been considered by the trial court at the hearing upon the motion to dismiss; but there is no certificate of the court that they were so considered, other than the general statement in the preface to the findings of facts, and also in the judgment, that the motion was submitted to the court upon the evidence, and “upon the records, foies, and proceedings herein” ' The statement is made both in the findings and in the judgment that the court heard “evidence and proofs,” but no referenee is made to affidavits. If we should assume that the affidavits were by consent treated as evidence at the hearing, still it does not appear that they constituted all the evidence upon which the court’s findings were based. We will not, therefore, inquire into the correctness of the findings, but will confine ourselves to a discussion of the court’s conclusion of law from the findings. The court found substantially as follows: That under the terms of the agreement set forth in the complaint the respondent proceeded to serve written notice upon appellant to arbitrate all the matters, suits, causes, controversies, and differences arising out of said agreement, or out of the performance thereof, or out of the matters and issues involved in this suit, and thereafter the arbitrator, being then the superintendent of respondent, served like written notice upon both appellant and respondent; that thereupon appel
It will be observed from the foregoing that the parties had entered into a written contract whereby they
“The superintendent of the party of the first part is hereby constituted an arbitrator, to whom shall be submitted any dispute arising out of this agreement, or the performance thereof; and his award in the matter shall be final, conclusive, and without appeal therefrom.”
There can be no mistake as to the meaning of the words. Ho ambiguity or uncertainty can be attributed to them. There was a plain, solemn agreement to sitbmit matters in dispute arising out of said contract to an arbitrator. The matters involved in this suit arose directly out of that contract. The court found that appellant commenced this action without ever demanding or offering to arbitrate the matters in dispute, and that it has never at any time before or since the bringing of the action offered to arbitrate or demanded the same. Is the appellant, notwithstanding such failure to demand an arbitration, entitled to maintain this suit? Counsel upon both sides have indulged in elaborate and interesting arguments upon the history of the law pertaining to arbitration both in this country and in England. It seems unnecessary, however, for us to review the authorities outside of this jurisdiction. All questions of public policy as to the propriety of arbitration seem to have been already resolved in this state, both by the legislature and by the courts, in favor of recognizing it as a method by which disputing parties may settle their differences. The legislature long since declared a method by which such
In Herman v. Plummer, 20 Wash. 363 (55 Pac. 315), an action was brought to recover possession of certain property of a local society which was a branch of the Theosophical Society of America. The parties were all members of the local society. The by-laws of the national organization contained the following:
“The executive committee shall be the court of final appeal in disputed questions arising between members of, in and between branches.”
No effort was made before bringing the suit to have the questions involved determined by the committee mentioned in the by-law, and it was held that the action could not be maintained. It is true, there was lacking there the element of a direct, written agreement between the parties to submit to arbitration; but by their subscription to the by-laws of the society an analogous principle was involved. In De Mattos v. Jordan, 15 Wash. 378 (46 Pac. 402), a building contract provided that the bills for materials and labor should be audited and certified by the superintending architect, and that his certificate should be binding and conclusive upon the parties. It was held that recovery could only be had for such items as were audited and certified by the architect. In Van Horne v. Watrous, 10 Wash. 525 (39 Pac. 136), the court said:
“Courts will enforce contracts to arbitrate disputes and make the decision of arbitrators final where the parties to a contract make it clearly to appear that such was their intention; but whenever they leave it doubtful whether such a method of settling a disputed question was in*41 tended to be left to the final decision of arbitrators, the construction is in favor of the right to resort to the courts for redress in the usual manner.”
To the same effect are Skagit County v. Trowbridge 25 Wash. 140 (64 Pac. 901), and School District v. Sage, 13 Wash. 352 (43 Pac. 341). It will be observed that some of tbe foregoing decisions are based on provisions in contracts in all respects similar in principle to tbe one in tbe case at bar. Tbe trial court has found that no effort was made by appellant to have an arbitration, and that tbe arbitrator did not refuse to act. It appears from tbe record that tbe parties submitted themselves to tbe court for tbe trial of those .questions of fact at tbe bearing of tbe motion to dismiss. Tbe demurrer to tbe amended complaint, if it bad been passed upon, should have been sustained for failure to show an effort to arbitrate, or a refusal on tbe part of tbe arbitrator; but since tbe demurrer was never passed upon, and tbe court tried tbe question of fact upon tbe motion to dismiss, tbe same result was reached. Moreover, tbe motion to dismiss was, in its terms, equivalent to a plea of res adjudicata, upon which the parties seem to have submitted themselves for trial. Since appellant could not' maintain this action for reasons herein given, it became as much its duty to participate in tbe arbitration it was notified to attend as if this suit bad never been brought. Having bad such opportunity, and having declined to participate, it must now be bound by tbe result.
Tbe judgment is affirmed.
Reavis, C. J., and Dunbar, White and Mount, JJ., concur.
Fullerton and Anders, JJ., dissent.