In re Pope Const. Co. v. State Highway Comm.

• Decision Date: 09 July 1935
• Docket Number: No. 33900.,33900.
• Citation: 84 S.W.2d 920
• Court: Missouri Supreme Court
• Parties: IN RE ARBITRATION OF POPE CONSTRUCTION COMPANY v. STATE HIGHWAY COMMISSION, Appellant.

84 S.W.2d 920

IN RE ARBITRATION OF POPE CONSTRUCTION COMPANY v. STATE HIGHWAY COMMISSION, Appellant.

No. 33900.

Supreme Court of Missouri.

Division One, July 9, 1935.

Appeal from Cole Circuit Court. — Hon. N.G. Sevier, Judge.

TRANSFERRED TO THE KANSAS CITY COURT OF APPEALS.

Louis V. Stigall and Wilkie B. Cunnyngham for appellant.

Lewis Hord Cook and Gilbert Lamb for respondent.

FERGUSON, C.

This is an appeal from an order of the Circuit Court of Cole County vacating an award made in an arbitration between the Pope Construction Company and the State Highway Commission of Missouri. The Pope Company constructed certain sections of state highway in DeKalb and Andrew counties under a contract therefor with the State Highway Commission. Upon the completion of the work the Pope Company claimed the Highway Commission was indebted to it for various extra items aggregating $39,903.61 which the Highway Commission denied. After some discussion and negotiation they entered into a written agreement to arbitrate the controversy. The agreement or submission specifies that the arbitration "shall be under and in accordance with Chapter 122, Revised Statutes 1929," relating to arbitration. In the submission each of the contracting parties appointed or named one arbitrator and agreed that the two arbitrators so named should "nominate and appoint a third arbitrator" which was done. The arbitrators took the oath prescribed by statute. Hearings were had and a report and award made. The arbitrators found that the Highway Commission "is indebted to the Pope Construction Company in the sum of $1,050.35" and made an award in favor of the Pope Company in that amount and assessed the costs. The submission designated the Circuit Court of Cole County as the court to which the award should be returned. Our statute, Section 14023, Revised Statutes 1929, provides that "the court designated in the submission shall, upon motion, by an order in open court, confirm the award unless the same be vacated or modified, ... as herein provided." Pursuant to the designation made in the submission and the provisions of the statute the Highway Commission, due notice thereof having been given in conformity with Section 14024, Revised Statutes 1929, filed its motion in the Circuit Court of Cole County praying that court "to make an order confirming the award and enter judgment" accordingly. The report and award made by the arbitrators was attached to and filed with the motion. Thereupon the Pope Company filed a motion to vacate the award which was sustained by the court and the Highway Commission brings this appeal from the order made vacating the award.

The arbitration statute provides:

Section 14025: "Any party complaining of such award may move the court designated in the submission to vacate the same upon any of the following grounds: First, that such award was procured by corruption, fraud or undue means; second, that there was evident partiality or corruption on the part of the arbitrators, or any one of them; third, that the arbitrators, were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear any evidence pertinent or material to the controversy, or any other misbehavior by which the rights of any party shall have been prejudiced; fourth, that the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final and definite award on the subject-matter was not made."

Section 14026: "Any party to such submission may also move the court designated therein to modify or correct such award in the following cases: First, where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in such award; second, where the arbitrators shall have awarded upon some matter not submitted to them, nor affecting the merits of the decision of the matter submitted; third, where the award shall be imperfect in some matter of form, not affecting the merits of the controversy, and when, if it had been a verdict, such defect could have been amended or disregarded by the court."

Section 14028: "On such application the court may vacate the award in any of the cases hereinbefore specified, and if the...