Lehigh Structural Steel Co. v. Rust Engineering Co.

• Decision Date: 13 June 1932
• Docket Number: No. 5632.,5632.
• Parties: LEHIGH STRUCTURAL STEEL CO. v. RUST ENGINEERING CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 F.2d 1038 (1932)

LEHIGH STRUCTURAL STEEL CO. v. RUST ENGINEERING CO.

No. 5632.

Court of Appeals of the District of Columbia.

Argued May 2, 3, 1932.

Decided June 13, 1932.

H. Winship Wheatley and H. Winship Wheatley, Jr., both of Washington, D. C., for appellant.

Joseph T. Sherier, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

This case comes here by special appeal from an order of the Supreme Court of the District of Columbia denying a motion to confirm an alleged award of arbitration under the United States Arbitration Act (9 US CA § 1 et seq.).

The Lehigh Structural Steel Company, plaintiff below and appellant here, is a Delaware corporation whose principal place of business is at Allentown, Pa.

The Rust Engineering Company, defendant below and appellee here, is a Delaware corporation; both companies being authorized and licensed to do business in the District of Columbia.

The appellee, as general contractor for the construction of an addition to the Government Printing Office in the city of Washington, on December 6, 1928, made a written contract with the appellant as subcontractor for the fabrication and erection of certain steelwork in that building for a compensation of $190,000; the steel to be of certain shapes and specifications and the work to be done within certain dates, time being of the essence of the contract.

This contract provided that controversies arising thereunder should be referred to the arbitration of three arbitrators to be selected by the parties, "the decision of any two of whom shall be binding."

Thereafter a controversy arose between the parties as to an alleged delay of the contractor in preparing for the work of the subcontractor, and other matters, which resulted in a claim for $45,000 by the subcontractor, with an admission of liability for $9,000 by the contractor.

Three arbitrators were duly appointed, who began their work on March 30, 1931, and on October 21, 1931, two of them signed and acknowledged before a notary an alleged award in favor of the appellant for the sum of $27,912.72.

The third arbitrator refused to sign this award at that time, and never thereafter signed it, while one of the two signers subsequently struck out his signature, requesting that further proof be taken as to items and amounts.

On the day the award was signed and acknowledged by the two arbitrators, it was left with the third under an agreement among them concerning which their subsequent affidavits are so contradictory that they cannot all be true.

The defendant, loser in the arbitration, declining to comply with this award, the plaintiff brought suit thereon in the Supreme Court of the District of Columbia, claiming the amount awarded, with interest, to which the defendant pleaded no valid award, and the plaintiff moved for a summary judgment, both parties filing the affidavits required by the rule of court touching such a motion.

In support of this motion the plaintiff contended below, as in this court, that the award was valid, final, and conclusive, and that the United States Arbitration Act entitled the plaintiff to a summary judgment on motion for the amount awarded.

The record filed here contains ten assignments of error presenting these contentions in varying forms, but in the view we take of the case only one need be considered; for neither the declaration nor the plea asserts any right under the United States Arbitration Act, which first appears in the record on the motion to confirm the award by summary judgment.

This motion pleads the statute, and is expressly based on section 9 thereof, which provides...