Anderson v. Odd Fellows' Hall of Jersey City

Decision Date15 June 1914
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by John B. Anderson and others against the Odd Fellows' Hall of Jersey City. Judgment for defendant, and plaintiffs appeal. Reversed.

For opinion of Supreme Court, see 86 Atl. 367.

Merritt Lane, of Jersey City, for appellants. Melosh & Morten, of Jersey City, for appellee.

BERGEN, J. This action was instituted to recover the value of extra work and material furnished by the plaintiffs, in excess of what a contract between the plaintiffs and defendant for the construction of a building required. The plaintiffs had judgment in the district court for $297, and the defendant appealed to the Supreme Court, where the judgment below was reversed, and a judgment of nonsuit ordered entered in the district court for two reasons, the first being that a covenant contained in the contract, requiring arbitration in certain matters, was a condition precedent, and that without its performance the plaintiffs could not recover.

At the close of the testimony the defendant admitted that as to $227 of plaintiffs' claim written orders required by the contract had been produced, and to that extent the claim was not disputed on that ground, but insisted that, as some of the items were disputed, arbitration as to all was a condition precedent, and this the Supreme Court sustained. To affirm this judgment will sustain a nonsuit where a part of the plaintiffs' claim is not in any wise subject to the arbitration agreement, even if it should be a condition precedent, because not disputed. But, in our opinion, the covenant for arbitration contained in this contract is not a condition precedent to an action for the recovery of the extra work sued for. The contract on this subject provides that: "No alteration shall be made in the work except upon written order of the committee; the amount to be paid by the owner, or allowed by the contractors by virtue of such alterations, to be stated in said order. Should the owner and the contractors not agree as to amount to be paid or allowed, the work shall go on under the order required above, and in case of failure to agree the determination of said amount shall be referred to arbitration as provided for in article XII of this contract." Article XII provides that: "In case the owner and contractors fail to agree in relation to matters of payment, allowance, or loss, referred to in articles III or VII of this contract, or should either of them dissent from the decision of the committee referred to in article VII, * * * the matter shall be referred to a board of arbitration, to consist of one person selected by the owner and one person selected by the contractors, these two to select a third. The decision of any two of this board shall be final and binding on both parties hereto."

The condition to arbitrate, as expressed in this contract, is not, by its terms, made a condition precedent to an action to recover for extra work. It is nothing more than an agreement to arbitrate disputes regarding the amount to be allowed for extra work ordered and performed, in cases where the parties cannot agree, revocable at any time before it is fully executed and an award made, and the bringing of a suit amounts to a revocation. Reed v. Washington Ins. Co., 138 Mass. 572.

In the case of Wolff v. Ins. Co., 50 N. J. Law, 453, 14 Atl. 561, the agreement contained a stipulation that no action should be maintained until after an award be obtained fixing the amount of the claim, as provided by the agreement to arbitrate. This was held to be a condition precedent, but Chief Justice Beasley, who delivered the opinion of the court, distinguished such condition from a case where the agreement merely declares that, if the parties shall disagree as to the amount, such difference shall be arbitrated, which is the situation in the present case, for there is here no contract that the amount shall not be recoverable by suit until after arbitration, or the recovery limited to a sum to be fixed by arbitrators, or that arbitration shall be a condition precedent to a right of action, and therefore the arbitration covenant in this contract is not a condition precedent. Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, 18 N. E. 804, 9 Am. St. Rep. 598. This question was considered in Hamilton v. Home Ins. Co., 137 U. S. 370, 11 Sup. Ct. 133, 34 L. Ed. 708, where the condition was similar to that in this case, there being "no provision whatever...

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9 cases
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    • New Jersey Superior Court
    • January 17, 1964
    ...judicial attitude toward arbitration has changed from disfavor, Vynior's case, 8 Coke Rep. 81 (K.B. 1609); Anderson v. Odd Fellows Hall, 86 N.J.L. 271, 90 A. 1007 (E. & A. 1914), to being highly favored as a method of settling disputes, Donnelly v. United Fruit Co., supra; Shribman v. Mille......
  • First Ecclesiastical Soc. of New Britain v. Besse
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    ... ... This ... court said in Hall v. Norwalk Fire Ins. Co., 57 ... Conn. 105, 114, 17 A ... Washington F. & M. Co., 138 Mass. 572; ... Anderson v. Odd Fellows' Hall, 86 N.J.Law, 271, ... 273, 90 A ... ...
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    ... ... T ... Lane and Thomas & Dahlquist, all of Salt Lake City, for ... appellant ... Samuel ... C. Powell, ... 370, 11 S.Ct. 133, 34 L.Ed. 708; ... Anderson v. Odd Fellows' Hall, 86 ... N.J.L. 271, 90 A. 1007; Read ... ...
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    ...v. Bardsley, supra; Anderson v. Odd Fellows Hall Ass'n, 84 N.J.L. 176, 86 A. 367 (Sup.Ct. 1913) reversed on other grounds, 86 N.J.L. 271, 90 A. 1007 (E. & A.1914). Judgment reversed to the end that a venire de novo may For reversal: Chief Justice VANDERBILT, and Justices CASE, HEHER, OLIPHA......
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