Gerard v. Salter

• Citation: 146 Cal.App.2d 840,304 P.2d 237
• Decision Date: 14 December 1956
• Docket Number: No. 62557,No. 62436,62436,62557
• Court: California Court of Appeals
• Parties: Corinne GERARD, Plaintiff and Appellant, v. Sherman E. SALTER, Defendant and Respondent (Superior Court). Corinne GERARD, Plaintiff and Appellant, v. Sherman E. SALTER, Defendant and Respondent (Superior Court). Matter of the Arbitration Between Sherman E. Salter and Corinne Gerard. Civ. 5284.

Page 237

304 P.2d 237

146 Cal.App.2d 840

Corinne GERARD, Plaintiff and Appellant, v. Sherman E. SALTER, Defendant and Respondent (Superior Court No. 62436).

Corinne GERARD, Plaintiff and Appellant, v. Sherman E. SALTER, Defendant and Respondent (Superior Court No. 62557).

Matter of the Arbitration Between Sherman E. Salter and Corinne Gerard.

Civ. 5284.

District Court of Appeal, Fourth District, California.

Dec. 14, 1956.

Monroe & Chula and George H. Chula, Santa Ana, for appellant.

Tobias & Whitlock and George H. Tobias, Santa Ana, for respondent.

GRIFFIN, Justice.

This appeal concerns the validity of awards of a Board of Arbitrators and the court's order confirming the awards, in consolidated actions numbers 62436, In the Matter of the Arbitration between Sherman E. Salter and Corinne Gerard, and action No. 62557, Corinne Gerard v. Sherman E. Salter. The arbitration concerned numerous matters arising out of the contractual work of the builder, respondent Salter, in the construction of a building for the appellant Gerard. The contract was signed on May 2, 1953, for the construction of a commercial building in Laguna Beach. Disagreements arose as to the charge for extras, the quality of workmanship and related matters. Under a provision in the original contract each party appointed one arbitrator who in turn appointed a third. They consisted of one Clarke, Hodgdon and Anderson. The builder claimed approximately $2,000 for extras. On December 10, 1953, they determined that Salter was entitled to a total of $1,760.09, less certain credits, leaving the amount of $1,262.29 due the contractor. They made their award in writing and delivered it to the parties. On March 30, 1954, Salter filed an application in the Superior Court for an order confirming the award of the arbitrators. Appellant Gerard made certain objections thereto and the matter came on for hearing before the trial court. It was stipulated that the entire matter be referred back to the same arbitrators for reconsideration and consolidation with case No. 62557 which was an action for damages for $8,000 for breach of contract, claiming that the building had not been built in a proper manner and the contractor had failed to complete it within the time prescribed. The stipulation was not too specific but the court's minutes show that it was stipulated and ordered that the two cases be consolidated and treated as one matter and that the parties proceed under the arbitration sections of the Code (Sec. 1280 et seq., Code Civ.Proc.). The reporter's transcript shows that respective counsel agreed that the same arbitrators be used and that all matters having heretofore been gone into and all new matters raised in the separate action be submitted to them and they were then to make their findings and report back to the court on the entire matter. Thereafter the three arbitrators met at various places, including the building itself, took evidence for several days, and many witnesses were sworn and examined. It was agreed by them that the former award of $1,262.29 in case No. 62346 for extras, would stand and made written findings to this effect. The findings then recite that the arbitrators have not reached a unanimous decision with regard to the question of Mrs. Gerard's claim arising under case No. 62557, and in this regard two members of the Board of Arbitration, Hodgdon and Anderson, found that the owner, Mrs. Gerard, was not entitled to any of those claims since it was their opinion that Mr. Salter performed all the work in a manner required of him to be done according to his contract and according to the plans and specifications which are a part of the contract that the other member of the board, Clarke, reserved the right to hand in a minority decision or report on this question. 'Therefore, a majority of the Board hereby agrees that the owner, Mrs. Gerard, is not entitled to any damages from the contractor.' All did agree on the amount of fees each arbitrator should have but made no mention of attorneys' fees, interest or other costs. This finding was signed by all three arbitrators, although it was not acknowledged by Clarke. No minority report was filed by Clarke. On motion to confirm the awards and to fix attorneys' fees, objections were filed by appellant claiming that the question of damages in action No. 62557 was outside the scope of the power of the arbitration board, outside of the provisions of the original contract regarding arbitration, and that appellant believed the arbitration agreement required that the award of damages in this case, if any, must be agreed upon by all three arbitrators; that this award was secured through fraud; that arbitrators Anderson and Hodgdon were guilty of misconduct and were biased and prejudiced and that they all met, as arbitrators, and in effect agreed that they would take no action on the damage element of the case but would refer that matter back to the court, and without the consent or knowledge of one arbitrator, the other two entered a new and different decision denying damages. Further objection was made that the allowance of $750 as attorneys' fees was excessive and unauthorized. Evidence was taken by the trial court on the objections made and the award was affirmed as reported by the arbitrators. Interest was allowed by the court from December 10, 1953, the date of the first award by the arbitrators in case No. 62436, including an allowance of $750 as attorneys' fees. Appellant claims on this appeal that the court erred in so doing.

We see no merit to the first claim that the arbitrators had no power or jurisdiction to determine the issues presented by the agreement and the subsequent stipulation and order of the court respecting the damage action. The issues were fairly submitted by stipulation to arbitrators for determination under section 1280 et seq. of the Code of Civil Procedure. No action was ever taken in the court by appellant to be relieved of the stipulation. No sufficient revocation is indicated as suggested by section 1280 of the Code of Civil Procedure. A hearing was had, findings were made, and the court, after a full consideration of the entire matter, adopted those findings and rendered judgment in accordance with them. Once a controversy is submitted to arbitration, it remains before the arbitrators until they have completed their determination of the matter, unless the parties mutually agree to withdraw it. Thus, when the parties agree upon an umpire to abide by his decision, neither of them, without the consent of the other, may, in the absence of fraud, withdraw the question of performance from the common arbiter for the purpose of referring it to a court or jury. 5 Cal.Jur.2d 100, sec. 26; Church v. Shanklin, 95 Cal. 626, 30 P. 789, 17 L.R.A. 207.

Complaint is next made that the award was not made by all three arbitrators. If appellant's stipulation could be interpreted, as may well be, that the arbitrators were proceeding under the original written agreement pertaining to the appointment and service of the arbitrators in respect to both actions, by its very terms, the finding of two out of three of their number was sufficient. If appellant relies upon the statute indicated in the stipulation, Sec. 1053 of the Code of Civil Procedure is also applicable. It provides that when there are three arbitrators all must meet, but two of them may do any act which might be done by all. In the absence of any contractual agreement or stipulation of submission between the parties on the subject, the statutory provisions would be applicable. Pacific Fire Rating Bureau v. Bookbinders', etc., Union, 115 Cal.App.2d 111, 114, 251 P.2d 694; Bierlein v. Johnson, 73 Cal.App.2d 728, 733, 166 P.2d 644; 5 Cal.Jur.2d 102, sec. 30; Sec. 15, Code Civ.Proc.; Griffith Company v. San Diego College for Women, 45 Cal.2d 501, 289 P.2d 476, 47 A.L.R.2d 1349. Besides this, there was competent evidence produced at the hearing to show that appellant was apprised of this fact by her then attorney when she inquired of the arbitrators as to the necessary number required to make a finding as to the damage sustained, and no further objection was made. There is no evidence of fraud.

The claim that two of the arbitrators were guilty of misconduct and were biased and prejudiced is predicated upon the testimony of a contractor who was a witness at the hearing before the arbitrators. He said arbitrator Anderson approached him after he gave testimony and 'in effect, said he did not know how a builder could testify against another builder' and that the witness said he had merely presented the facts. This testimony, as well as any showing of prejudice or misconduct, was repudiated by affidavits of other persons. A mere conflict in the evidence was presented. The trial court held in favor of respondent in this respect. It therefore cannot be considered on this appeal. In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689; Griffith Co. v. San Diego College for Women, supra.

There is some confusion in the record as to a claim by appellant that one...