Garstka v. Russo
| Citation | 37 Wis.2d 146,154 N.W.2d 286 |
| Parties | Clement GARSTKA, Plaintiff-Respondent, v. Vincent RUSSO and Sandra Russo, Defendant-Appellants. |
| Decision Date | 28 November 1967 |
| Court | United States State Supreme Court of Wisconsin |
Douglas & Omernik, Dennis C. Bailey, Spooner, for appellants.
Daniel B. Merriam, Ladysmith, for respondent.
Two issues are presented on this appeal: (1) Whether the award of the arbitrators was valid and binding upon the parties, and (2) whether the evidence supports the findings of the trial court.
Although both the items of labor and materials were submitted to the arbitrators, their work was incomplete in that they dealt only with the extent and value of services performed. The defendants argue the award of $1,500 for services is binding notwithstanding the fact the arbitrators failed to act on the second matter submitted to them. The defendants rely on Donaldson v. Buhlman (1908), 134 Wis. 117, 113 N.W. 638, 114 N.W. 431, for the proposition that where questions which are not dependent upon each other and are severable in their nature are submitted to arbitration, the fact the award upon one question is bad does not necessarily invalidate the award on the other questions unless the same vice affects them all or unless the void part is a consideration for the other parts. While some basis for this argument may also be found in 5 Am.Jur.2d, Arbitration and Award, p. 631, sec. 150, we think the argument is inapplicable to the facts of this case.
Here, the arbitrators made only a partial arbitration and failed to perform the duty placed upon them by the submission which required them to determine the value of the materials furnished as well as the value of the labor. When a matter is submitted to arbitrators and a final and definite award covering all the subject matter submitted is not made, the arbitration has failed to serve its purpose and should not be accepted. Canfield v. Watertown Fire Ins. Co. (1882), 55 Wis. 419, 13 N.W. 252; Stubbings v. McGregor (1893), 86 Wis. 248, 56 N.W. 641. It is essential to the validity of the award in the absence of a saving statute that the award be complete, final and terminate the question under arbitration so as to be subject to complete enforcement by a judgment or a decree. 6 Williston, Contracts, pp. 5397--5398, sec. 1929; 6 C.J.S. Arbitration and Award §§ 81, 89, pp. 226, 235. In the instant case the award served no useful purpose and did not avoid a lawsuit which was the purpose of the submission. As we said in Goldmann Trust v. Goldmann (1965), 26 Wis.2d 141, 150, 131 N.W.2d 902, 907, 'An arbitration award must be final and must not 'naturally lead to and stimulate new controversies and litigation, instead of securing the object sought to be attained by the arbitration of finally and definitely settling the old controversy."
The defendant's argument is untenable. The amount of material was a significant item submitted to arbitration. The arbitrators made no mere error of judgment upon a question of law or fact submitted but entirely mistook their duty. True, one must take arbitrators as they find them with their weaknesses and their frailties, Koepke v. E. Liethen Grain Co. (1931), 205 Wis. 75, 236 N.W. 544, but this rule does not include a failure to perform their duty. The trial court found, and we think correctly, under sec. 298.10, Stats., 1 enacted in 1931 as part of the Wisconsin Arbitration Act, that the arbitrators so imperfectly executed their power that a final and definite award upon the subject matter submitted was not made.
We think the evidence sustains the...
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...Insurance Co., 119 R.I. 801, 806, 383 A.2d 597, 600 (1978) (applying the Rhode Island Arbitration Act); Garstka v. Russo, 37 Wis.2d 146, 149-50, 154 N.W.2d 286, 287-88 (1967) (applying Wisconsin common law of 10 In the ordinary case, arbitration is a freely chosen alternative to avoid the e......
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