M. S. Kelliher Co. v. Town of Wakefield

• Decision Date: 08 January 1964
• Citation: M. S. Kelliher Co. v. Town of Wakefield, 346 Mass. 645, 195 N.E.2d 330 (Mass. 1964)
• Parties: M. S. KELLIHER COMPANY v. TOWN OF WAKEFIELD.
• Court: Supreme Judicial Court of Massachusetts

Page 330

195 N.E.2d 330

346 Mass. 645

M. S. KELLIHER COMPANY v. TOWN OF WAKEFIELD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1963.

Decided Jan. 8, 1964.

Francis W. Marks, Boston, for plaintiff.

Mario Misci, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

SPALDING, Justice.

The plaintiff and the defendant entered into a written contract dated August 19, 1959, for the construction of a school in the town of Wakefield. 'The masonry section of the contract provided for the furnishing and installation of glazed structural ceramic tile. The contract called for colored tile, and provided that the colors should be as selected by the architect. On October 21, 1959, the architect submitted to the plaintiff a color schedule calling for sixteen (16) different colors of tile. Upon receipt of the color schedule, the plaintiff wrote a letter protesting the number of colors selected and claiming extra compensation [for installing the title].' The architect denied the plaintiff's claim. The dispute was referred to arbitration and the plaintiff was awarded the sum of $11,721.25.

After the award was filed in the Superior Court the plaintiff presented a motion to confirm the award and to enter judgment thereon. The defendant presented a motion to set aside the award, contending that it was beyond the authority of the arbitrators to make.

The defendant contended that the court should hear evidence in suppot of its motion but the judge ruled that he would not hear any evidence. Since no exception was taken to this ruling, it need not concern us. The facts set forth above were established by statements of counsel. The judge entered an order amending the proceedings into an action of law, ordering the entry of judgment upon the award, and denying the motion to set aside the award. To this order the defendant excepted. The defendant also appealed but there is no need to deal with the appeal, for all the questions which the defendant seeks to raise are brought here by the exceptions. The appeal, therefore, is dismissed.

Article 39 of the contract provides: 'The architect shall, within a reasonable time, make decision on all claims of the owner or contractor and on all other matters relating to the execution and progress of the work or the interpretation of the contract documents. The architect's decisions, in matters relating to artistic effect, shall be final, if within the terms of the contract documents. Except as above or otherwise expressly provided in the contract documents, all of the architect's decisions are subject to arbitration.'

Article 40 of the contract provides: 'All disputes, claims or questions subject to arbitration under this contract shall be submitted to arbitration in accordance with the...