Columbian Fuel Corp. v. Warfield Natural Gas Co., Civil Actions No. 694 and 695.

• Court: U.S. District Court — Northern District of West Virginia
• Writing for the Court: Osman E. Swartz, of Charleston, W. Va., for plaintiff United Carbon Co
• Citation: Columbian Fuel Corp. v. Warfield Natural Gas Co., 72 F.Supp. 839 (N.D. W.Va. 1947)
• Decision Date: 01 March 1947
• Docket Number: Civil Actions No. 694 and 695.
• Parties: COLUMBIAN FUEL CORPORATION v. WARFIELD NATURAL GAS CO. UNITED CARBON CO. v. SAME.

72 F. Supp. 839

COLUMBIAN FUEL CORPORATION v. WARFIELD NATURAL GAS CO.

UNITED CARBON CO. v. SAME.

Civil Actions Nos. 694 and 695.

District Court, D. West Virginia.

March 1, 1947.

Hodges & Revercomb, of Charleston, W. Va. (Arthur B. Hodges, of Charleston, W. Va., of counsel), for plaintiff Columbian Fuel Corporation.

Osman E. Swartz, of Charleston, W. Va., for plaintiff United Carbon Co.

B. J. Pettigrew and Campbell, McClintic & James, all of Charleston, W. Va. (Charles C. Wise, and Stanley E. Dadisman, both of Charleston, W. Va., of counsel), for defendant.

MOORE, District Judge.

The complaints in these actions were filed on the same day by different plaintiffs against the same defendant. Both actions involve identical issues which may conveniently be disposed of together. Plaintiffs in both instances contracted to sell natural gas to defendants and the parties were unable to agree upon the price to be paid for gas delivered during the five year period beginning November 1, 1945. Pursuant to the terms of the gas sales contracts, on April 4, 1946, the parties executed submission agreements to resolve the dispute by arbitration. The same arbitrators were named in both agreements and it was agreed that the hearings would be held together. The pertinent parts of these agreements with respect to the issues presented here are as follows:

"5. * * * The decision of said arbitrators, or a majority thereof, when reduced to writing in the form of an award and communicated to the parties, shall be final and binding and may, on motion of either party hereto, be entered as the judgment or decree of the Circuit Court of Kanawha County, West Virginia, and shall be enforceable as such in accordance with the provisions of Chapter 55, Article 10, of the Code of West Virginia. * * *

"11. The compensation for the services of the arbitrators shall be fixed by them and such compensation, their expenses in connection with the performance of their duties and the taxable costs of the Circuit Court of Kanawha County, West Virginia, shall be paid one-half by the party of the first part and one-half by the party of the second part. Each party hereto shall bear its own costs in connection with the hearings before the arbitrators."

The hearings took place in accordance with the submission agreements, and awards were rendered fixing the price of the gas at twenty cents per thousand cubic feet.

Both plaintiffs demand judgments for sums certain asserted to be due for gas sold from November 1, 1945, to December 1, 1946, and pray for decrees requiring further specific performance of the awards.

Defendant has filed motions to dismiss for lack of jurisdiction, and for failure of plaintiffs to state a cause of action in their respective complaints.

Briefly, defendant contends that the arbitration was statutory, pursuant to Chapter 55, Article 10, of the West Virginia Code; that the plaintiffs have, by the terms of the submission agreement, elected to pursue exclusively their statutory remedy in the Circuit Court of Kanawha County; and that no grounds exist as the basis for equitable remedies in enforcing the award.

Plaintiffs take the position that the proceedings were common law arbitrations; but that, even if they were statutory, this Court has general equitable jurisdiction to decree specific performance of the awards.

The question of whether the proceedings were common law or statutory has been the subject of extensive argument by counsel, both orally and in their briefs. Although I do not consider the answer to this question as determinative of the Court's right to afford equitable relief, I conclude that the arbitration was a common law arbitration, though the submission agreement provided for optional enforcement of the award by the statutory method.

Chapter 55, Article 10, Section 1 of the West Virginia Code provides as follows:

"Persons desiring to end any controversy, whether there be a suit pending therefor or not, may submit the same to arbitration, and agree that such submission may be entered of record in any court. Upon proof of such agreement out of court, or by consent of the parties given in court, in person or by counsel, it shall be entered in the proceedings of such court; and thereupon a rule shall be made that the parties shall submit to the award which shall be made in pursuance of such agreement. * * *."

The above section relates solely to the submission of controversies to arbitration. In the cases under consideration, there was no provision in the submission agreements requiring or authorizing entry of record in the Circuit Court of Kanawha County, nor were they in fact ever entered there or elsewhere.

The cases in West Virginia do not distinguish clearly between statutory and common law arbitrations, nor do they indicate in what circumstances such a distinction would affect the remedies which a party may invoke, if at all. Arbitration statutes are generally considered supplementary to but not exclusive of the common law procedure, and parties are at liberty to enter into submissions as at common law. Hughes v. National Fuel Company, 121 W.Va. 392, 3 S.E.2d 621; 6 C.J.S., Arbitration and Award, § 2, page 154 et seq.; 3 Am.Jur. 838, Arbitration and Award, Section 8. The fact that the statute may give a remedy for enforcing the award which is the result of a common law arbitration does not prevent any party from resorting to an independent suit, either to enforce or to set aside the award. In the case of Hughes v. National Fuel Company, supra 121 W. Va. 392, 3 S.E.2d 624, there was no provision in the agreement to arbitrate relative to the entering of the submission as a rule of court, nor was there any provision, as in the instant cases, permitting or requiring enforcement of the award as a judgment. The Court held that the contract was for a common law arbitration. It said in the opinion: "At bar there is presented an executory contractual provision for common law arbitration. The...