Dickie Mfg. Co. v. Sound Const. & Engineering Co.

• Decision Date: 28 July 1916
• Docket Number: 13428.
• Citation: 159 P. 129,92 Wash. 316
• Court: Washington Supreme Court
• Parties: DICKIE MFG. CO. v. SOUND CONSTRUCTION & ENGINEERING CO.

159 P. 129

92 Wash. 316

DICKIE MFG. CO. v. SOUND CONSTRUCTION & ENGINEERING CO.

No. 13428.

Supreme Court of Washington

July 28, 1916

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by the Dickie Manufacturing Company against the Sound Construction & Engineering Company. From an order sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Kerr &amp McCord, of Seattle, for appellant.

Weter &amp Roberts, of Seattle, for respondent.

BAUSMAN J.

This is an appeal from an order sustaining a demurrer to a petition, which sought to declare void a judgment upon an award of arbitration.

In Rem. & Bal. Code, § 420 et seq., we have a comprehensive statute. An agreement to arbitrate must be in writing; each party must appoint one arbitrator; these two must appoint a third, and all must subscribe an oath to make a just award. The board has the right to compel attendance of witnesses, to hear evidence, to adjourn as and for what period it pleases, to decide both law and fact, and to punish for contempt. It is, in short, a temporary court of justice. An award signed by a majority is to be lodged in the superior court. That award, 20 days after copy of it has been served on the losing party, can be converted into an ordinary judgment by order of court. errors of the board may be corrected by the court on exceptions between this service of the award and entry of the decree, and these exceptions may set up misbehavior of the arbitrators, error in fact or law, or corrupt and undue procurement of the decision. The superior court may set aside the award or recommit the hearing, but when the court does put the award into judgment it stands 'as any other judgment' of that tribunal.

Controversies having sprung up between the parties now plaintiff and defendant, they signed an arbitration agreement, each appointed an arbitrator, and these two appointed a third. Plaintiff's arbitrator having after a month of hearings resigned, the others requested plaintiff to appoint a successor, but plaintiff, announcing itself no longer bound, filed a suit on its claims. Thereupon the remaining members proceeded unattended by plaintiff or its witnesses, and after much more deliberation filed an award allowing defendant a recovery for overpayments.

This award, more than 20 days after service of a copy upon plaintiff, was put in judgment. Plaintiff filed no exceptions, but some months later brought the present or second suit to set aside the award, with allegations that the two arbitrators other than plaintiff's had been so prejudiced as to resolve everything blindly against plaintiff, that excessive meetings had been wasted in frivolous deliberations, and that plaintiff's arbitrator, after vainly insisting upon expedition, had abandoned the board in spite of plaintiff's request that he remain. When he left the board only 10 per cent. of the whole subject, it was alleged, had been traversed in 5 weeks, so that plaintiff under all these circumstances had revoked his consent to the proceedings and had brought the other suit. As for the judgment on the award, that was before plaintiff's first suit had reached judgment, which it has not arrived at yet, but was after it had been begun. Finally it had been agreed orally that the arbitration should be at common law and not under the statute, for which reason the taking of judgment on it was unfair. There was then a prayer for cancellation of the judgment and award so that plaintiff might pursue the suit on its demands.

Everything plaintiff now complains of could have been reached by statutory exceptions. These were wholly omitted. Accordingly the suit before us can be maintained only on the theory that there was no statutory arbitration to begin with or that it had finally become void. On both points we must hold decidedly against plaintiff. In the face of so complete an act as ours we are clear, and find this proper occasion to say, that common-law arbitration does not exist in this state, and that the plain purpose of our legislation was to clear much unsettled practice by codifying arbitration. The agreement, quite ample to engage this statute, says not a word excluding it or referring to a different kind. It is of little moment if anything was said afterwards. The minds of the parties had met upon the statute.

Much confusion has been brought into our arbitration practice by common-law doctrines and decisions under statutes of other states, nor have the opinions of this court been entirely harmonious. The present seems a suitable occasion to review them.

That common-law arbitration was excluded by our statute is plain. For instance, either party under the former could repudiate the proceedings before an award was actually returned, and even afterwards, should he refuse to pay it, there was nothing left the prevailing party but to bring a suit upon it. Both these burdensome rights are in express terms swept away, for the statute makes the arbitration a preliminary part of judicial hearing; the award in a sense automatically passing into judgment unless the losing party can persuade the court to modify or set it aside.

Most distinctly too does the change appear from the common law where this statute gives the board a right to compel the attendance of witnesses or to punish for contempt. Nowhere is there recognized or suggested the right of revoking the award at any stage, of independent suit to cancel it, or of proceedings that ignore it. On the contrary, the act directly provides, as we have seen, for excellent internal review. There is indeed a provision that the agreement may impose a bond that the party will abide by the award, but this is not made indispensable nor does it in any event override positive provisions giving the court jurisdiction to adopt, modify, and enforce the award. The bond is to secure payment to the winner as well as additional attorneys' fees or damages from delay.

Without reviewing all our previous cases, we may discuss the most noticeable. Tacoma Ry., etc., Co. v. Cummings, 5 Wash. 206, 31 P. 747, referred to the fact that our statute was peculiar and that 'we can get but little aid from the citation of authorities.' What was involved there was this: The lower court having upon exceptions set aside an award and an appeal having been taken from that ruling, the respondents moved here to dismiss the appeal on the ground that the order was not a final one. This in turn involved the question whether under the statute the court, after setting the award aside, could do anything more with the case. The lower court, we held, had full jurisdiction to determine the controversy. If the arbitrators refused to accept the recommittance of it or to comply with the court's directions, the arbitration then in a sense had failed, and we held that the statute directly authorized the court then to take up a case itself. Equally did we uphold this power if upon hearing the exceptions did not recommit the case but chose to take it over then, for we said:

'But if either of the other grounds of exception are sustained, the arbitration has as fully failed without any such referring back to the arbitrators as it has under the contingency mentioned in said section after the matter has been so referred back, and the arbitrators have refused to comply with the direction of the court. * * * In the light of said section 429 (Rem. & Bal. § 425) it seems clear to us that we must interpret the provisions of section 426 (Rem. & Bal. § 422) as having been intended to clothe the court with full jurisdiction of the controversy to proceed to a final determination whenever the arbitration had failed, and that the only object in enacting said section 429 was to give the parties to the arbitration the benefit of a full determination by the arbitrators if they were qualified and willing to act, even although they had made a mistake in their first award.'

Rem. & Bal. Code, § 422, provides that:

If no exception be filed, 'judgment shall be entered as upon the verdict

of a jury, and execution may issue thereon, and the same proceedings [may be had] upon said award, with like effect as though said award were a verdict in a civil action.'

Rem. & Bal. Code, § 425, provides that if upon exceptions the court shall find error in fact or law it may refer the case back to the arbitrators directing immediate amendment, returnable to the court, 'and on the failure so to correct said proceedings the court shall be possessed of the case and proceed to its determination.'

In a dissenting opinion it was suggested that the court's thus taking full possession of the case might result in...