Cole Manuf'G Co. v. Collier

• Decision Date: 04 June 1892
• Citation: 19 S.W. 672
• Parties: COLE MANUF'G CO. v. COLLIER.
• Court: Tennessee Supreme Court

Page 672

19 S.W. 672

COLE MANUF'G CO. v. COLLIER.

Supreme Court of Tennessee.

June 4, 1892.

Cross appeals from chancery court, Shelby county; W. D. BEARD, Chancellor.

Action by the Cole Manufacturing Company against W. A. Collier for the delivery and foreclosure of a deed of trust. Judgment for plaintiff. Both appeal. Affirmed.

Myers & Sneed, for plaintiff. Wm. M. Smith, Gantt & Patterson, and Cacy Young, for defendant.

LEHMAN, Special Judge.

The bill in this cause was preferred by the complainant, a corporation, to recover from the defendant, W. A. Collier, the price and value of labor and material performed and furnished in the construction of a building under a written agreement entered into between them on the 14th day of November, 1889, the portion of which, as far as the same is applicable to the question raised, is as follows: "It is further agreed that, in case any difference should arise between the said Collier and the Cole Manufacturing Co. as to the quality of work or materials, or any other question that may arise under this contract, the same shall be settled by arbitration, each party selecting a good man, and, in the event of their disagreeing, these two shall select a third party, and their decision shall be final. In consideration of the above, said Collier is to pay the said Cole Mfg. Co. nine thousand dollars, ($9,000.00,) more or less, as the amount may be, which amount the said Collier will secure by deed of trust on nine acres of land in the Kinnay Heistand subdivision of land, said trust deed to be drawn at once, and held by E. C. Jones until said building is finished, when he will deliver the same to Mr. W. I. Cole." W. I. Cole was the president of complainant. The bill further alleges the execution of the said trust deed, and the delivery of it to E. C. Jones, and the complainant therein also prayed that the said Jones, who is a defendant in the cause, and Collier be decreed to deliver up said trust deed, and also asked for the enforcement of the same to satisfy the amount owing by W. A. Collier to the complainants. The bill contains averments of various demands made for the delivery of the trust deed, and a request on the part of the defendant, W. A. Collier, to have a submission and arbitrament of the claims of the plaintiff, because of his dissatisfaction, stated in a general way, with the work done and materials furnished by the complainant, and which request, it is alleged, was made after considerable delay subsequent to the completion of the building. The latter allegation is made in the bill in order to excuse the refusal of the complainant to submit the matters to arbitration. The defendant, W. A. Collier, demurred to the bill, assigning as ground therefor the failure and refusal of the complainant to arbitrate differences under the provisions of the written agreement of November 14, 1889. Such demurrer was overruled by the chancellor, and thereupon the defendant, W. A. Collier, filed his answer and cross-bill, in which he denies that the complainant had complied with said contract, and for cross action set up in a general way, without stating the amount thereof, damages accruing to him by reason of the complainant's failure to comply with its contract, and arising from its failure to comply with its agreement to arbitrate. The complainant made no objection to this cross bill, by demurrer or otherwise, but answered the same. The chancellor rendered his final decree, allowing the demand of the complainant, and ordering the...