Downer Corp., Application of
| Decision Date | 11 December 1956 |
| Citation | 304 P.2d 756,146 Cal.App.2d 708 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the Appllcation of DOWNER CORPORATION, a California Corporation, for an order directing arbitrators to proceed and for the appointment of a third arbitrator. DOWNER CORPORATION, Petitioner and Respondent, v. UNION PAVING COMPANY, Respondent and Appellant. Civ. 8800. |
Henry C. Clausen, Richard G. Burns, San Francisco, for appellant.
Gordon J. Aulik, Stockton, for respondent.
This is an appeal from an order confirming an award of arbitrators and from the judgment entered thereon.
On August 2, 1948, the parties entered into two written joint venture agreements, referred to as the Hagginwood and Contra Costa jobs, respectively. Each contract provided that respondent-appellant Union Paving Company, referred to herein as Union, would furnish the capital; that petitioner-respondent Downer Corporation, referred to herein as Downer, would furnish the machinery, equipment and labor necessary for the performance of two construction contracts which had been awarded to Downer; and that profits or losses would be borne equally by the parties. Both contracts were successful. The Hagginwood job showed a net profit of over $170,000 and the Contra Costa job netted more than $47,000 or an overall total net profit in excess of $217,000, all of which was represented by six percent sanitary district bonds. The bonds from the Contra Costa job bore interest from January 1, 1950, and those from the Hagginwood job from May 1, 1950. On May 8, 1951, the bonds were delivered to Mr. Dowling, president of Union, who converted them to his own use and refused to remit any of the proceeds to Downer.
Downer placed the matter in the hands of its attorney, Mr. Macomber, who unsuccessfully carried on settlement negotiations for approximately six months with Mr. Dowling. Mr. Macomber then advised Union that Downer had appointed him its arbitrator pursuant to the provisions contained in the joint venture agreements '* * * to the end that the said arbitrators shall appoint a third and the said matter shall proceed to arbitration.' Thereafter, by a telegram dated December 18, 1951, Mr. Clausen, attorney for Union, advised Mr. Macomber that he had been designated by that corporation as its arbitrator, but nearly three months elapsed before he was available for a meeting with Mr. Macomber. It then appeared that Mr. Clausen had not talked with Mr. Dowling and knew nothing concerning the matter. Also at that meeting Mr. Dowling stated that he was busy and did not know when he would get around to going over Downer's specifications of objections to the accounting of the joint ventures.
It is contended by Union that immediately following the appointment of the two arbitrators the contemplated arbitration was abandoned in favor of the conduct of negotiations for the settlement by the lawyer-arbitrators on behalf of their respective clients. However, on March 13, 1952, Downer filed petitions seeking an order appointing a third arbitrator and directing arbitration under each contract. Union demurred and moved to strike on the grounds that the court had no jurisdiction; that the California arbitration statutes were not applicable; that there was another action pending; and that Downer had waived its right to arbitration. At the time of the hearing Union filed an answer and return in which it alleged that it had not failed to name an arbitrator nor that the one appointed had been unable to agree with Downer's arbitrator on the appointment of a third, and that Downer was not aggrieved by such failure. Additionally it was alleged that the arbitration clause in the contracts called for common law arbitration, and hence the court had no power to compel the same. Union further alleged that it had not refused to cooperate in naming a third, that the arbitrators could settle the matter between them without the necessity of a third, that in any event Downer had waived its right to arbitration, and concluded its answer with a demand for a jury trial. The contentions of Union were denied, and the court appointed Mr. Kenneth G. McGilvray, an attorney of Sacramento, to act as the third arbitrator.
Thereafter the arbitrators met, went over the evidence and chose Mr. McGilvray to prepare the proposed findings and award. Several hearings were had during the following year, and the matter was eventually submitted for decision on October 9, 1953. Mr. McGilvray completed his work on June 2, 1954, and shortly thereafter sent the transcripts and exhibits to Mr. Clausen with the suggestion that they meet with Mr. Macomber during the week of July 5 to make the final award. Mr. Clausen did not answer that communication. On July 7 Mr. McGilvray wrote to him and to Mr. Macomber setting a meeting at the latter's office in Stockton for July 14. On July 9 Mr. Clausen replied that such time was unsatisfactory; that he had had no opportunity to review the evidence and the proposed award; and that he was preparing for a jury trial and would suggest a meeting in his San Francisco office on August 17. He also noted in his letter that he would object to any meeting of the arbitrators unless all three were present. Thereafter, on July 12, Mr. Gilvray again addressed a letter to Mr. Clausen stating that in view of the fact that the matter had been submitted on October 9, 1953, and that the proposed award together with all exhibits had been in Mr. Clausen's hands for more than a month, he proposed to meet with Mr. Macomber in his office on July 14 and sign the award. Mr. McGilvray and Mr. Macomber met on July 14, modified the award to a degree and signed the same as modified. On that same day Downer filed in the superior court of San Joaquin County a notice of motion for an order confirming the award. Union thereupon filed objections to the motion for an order confirming the award and moved for an order vacating the same and also moved for an order. After a hearing at to enforce the order. After a hearing at which evidence was introduced and briefs filed, the court denied both motions by Union and confirmed the award.
The first source of disagreement relates to the arbitration clause contained in each of the joint venture agreements, which is as follows:
(Emphasis added.)
It is Union's contention that the court lacked jurisdiction to order the appointment of a third arbitrator or to direct the arbitrators to proceed, since the joint venture agreements did not contemplate statutory arbitration. In support of such contention it is argued that the first phrase of the quoted provisions negates any thought that the parties had in mind statutory arbitration, and that therefore the court lacking jurisdiction to entertain the proceeding.
It should be noted that it is now well established '* * * by the adoption of the 1927 statute, the Legislature intended to adopt a comprehensive all-inclusive statutory scheme applicable to all written agreements to arbitrate, and that in such cases the doctrines applicable to a common law arbitration were abolished.' Crofoot v. Blair Holdings Corp., 119 Cal.App.2d 156, 260 P.2d 156, 169. This same question was discussed in 38 Cal.L.Rev. 799. The author notes that while the common law may be applicable to oral contracts, he suggests that it is not applicable to agreements in writing. The writer further states that no special language is required but that the arbitration clause should provide that parties agree to accept the award as final and binding. 'It is reasonable that parties who voluntarily agree in writing to arbitrate should be bound by the statute and should not as an afterthought be permitted to escape from their contract through the portals of the common law.' (Page 809, 38 Cal.L.Rev.) Thus, in Snyder v. Superior...
To continue reading
Request your trial
-
Moncharsh v. Heily & Blase
... ... v. San Diego Col. for Women (1955) 45 Cal.2d 501, 510, 289 P.2d 476; Pacific Vegetable Oil Corp. v. C.S.T. Ltd. (1946) 29 Cal.2d 228, 233, 174 P.2d 441 [hereafter Pacific Vegetable ].) More ... in which said arbitration was had must make an order vacating the award, upon the application of any party to the arbitration: [p] (a ) Where the award was procured by corruption, fraud or ... may not be reviewed except as provided in the statute"]; Downer Corp. v. Union Paving Co. (1956) 146 Cal.App.2d 708, 715, 304 P.2d 756 [same]; Wetsel v ... ...
-
Posner v. Grunwald-Marx, Inc.
... ... for arbitration of disputes as to the 'meaning, performance, non-performance or application' of its provisions, the mere assertion by a party of a meaning of a provision which is clearly ... They include the following: Publicists Local 818 v. National Screen Service Corp., 183 Cal.App.2d 491, 7 Cal.Rptr. 238; Case v. Alperson, 181 Cal.App.2d 757, 5 Cal.Rptr. 635; ... North Hollywood Hosp., Inc., 150 Cal.App.2d 306, 309 P.2d 541; Downer Corp. v. Union Paving Co., 146 Cal.App.2d 708, 304 P.2d 756; Crofoot v. Blair Holdings Corp., 119 ... ...
-
Jefferson Ins. Co. of New York v. Superior Court In and For Alameda County
... ... application was taken under Code of Civil Procedure, section 1286.2, subdivisions (d) and (e), according to the ... (1962) 205 Cal.App.2d 9, 14, 23 Cal.Rptr. 30; Crofoot v. Blair Holdings Corp. (1953) 119 Cal.App.2d 156, 186, 189, 260 P.2d 156 (hearing denied, Supreme Court); B. S. B ... Co. v. Brunner (1961) 191 Cal.App.2d 334, 340, 12 Cal.Rptr. 547; Downer Corp. v. Union Paving Co. (1956) 146 Cal.App.2d 708, 715, 304 P.2d 756, cert. den. 354 U.S. 914, ... ...
-
Ulene v. Murray Millman of Cal., Inc.
... ... Crofoot v. Blair Holdings Corp., ... 119 Cal.App.2d 156, 184, 260 P.2d 156, passim; Flores v. Barman, 130 Cal.App.2d 282, 286, ... v. San Diego College for Women, supra, 45 Cal.2d 501, 516, 289 P.2d 476, 47 A.L.R.2d 1349; Downer Corp. v. Union Paving Co., 146 Cal.App.2d 708, 716, 304 P.2d 756; see also Feldman, op. cit. 462, ... Section 1287 of the Code of Civil Procedure provides that, upon application of either party, the superior court must grant an order confirming an arbitration award unless the ... ...