Maitland v. Reed

• Decision Date: 15 March 1906
• Docket Number: 5,562
• Citation: Maitland v. Reed, 37 Ind.App. 469, 77 N.E. 290 (Ind. App. 1906)
• Parties: MAITLAND ET AL. v. REED ET AL
• Court: Indiana Appellate Court

77 N.E. 290

37 Ind.App. 469

MAITLAND ET AL. v. REED ET AL

No. 5,562

Court of Appeals of Indiana

March 15, 1906

From Laporte Superior Court; James F. Gallaher, Special Judge.

Suit by Alexander J. Campbell against Francis E. Maitland and others.From a decree for plaintiff and for defendantJohn W. Reed the other defendants appeal.

Affirmed.

L. L Bomberger and Allen G. Mills, for appellants.

William J. Whinery, for appellees.

OPINION

ROBINSON, J.

Campbell, a subcontractor, sued the contractor and also the lot owners to recover an amount due him from the contractor and to foreclose a mechanic's lien.The contractor, Reed, filed a cross-complaint against the lot owners--appellants--to foreclose a mechanic's lien.The lot owners filed a cross-complaint against the contractor for damages for failure to comply with the contract.

So far as necessary to determine the questions presented, the facts found by the court are substantially as follows: On June 10, 1903, appellants contracted in writing with appellee Reed to construct a building, on lots owned by them, according to plans and specifications prepared by an architect named, which contract is set out.Afterward, in August, 1903, Campbell contracted with Reed to do the plumbing, gas piping and sewer work for $ 385.The contractor did extra work and furnished extra material for which appellants agreed to pay, making the total amount Reed was to receive for constructing the building $ 4,929.26.Reed failed to construct the building, in certain particulars, according to the plans and specifications, and under the contract appellants removed such portions and reconstructed the same at an expense of $ 192.88.Reed received $ 4,000 from appellants in payment for labor and materials.Within sixty days after the work was done and material furnished Reed filed a notice of his intention to hold a lien, which was duly recorded.For extra work Campbell was to receive $ 20 in addition to his contract, making $ 405 which Reed agreed to pay him, of which amount Campbell has received $ 100.Campbell having failed to do a part of his work according to the plans and specifications, appellants, under the contract, removed and replaced the same at an expense of $ 183.88.Campbell filed a notice of intention to hold a lien, but facts are found showing that prior to that time he executed a waiver of his lien, in consideration of $ 385 paid him.A reasonable fee for appellee Reed's attorney was found to be $ 80.

As conclusions of law the court found: (a) That as between Campbell and appellants the law is with appellants; (b) that Campbell should recover from Reed $ 121.12; (c) that Reed should recover from appellants $ 736.38 and $ 80 attorney's fees, and have his lien foreclosed.Decree accordingly, and that each party to the suit should pay the costs which each has occasioned.

Appellant's filed a plea in abatement to Reed's cross-complaint, alleging the necessity, by the terms of the contract, of a reference to arbitration as a prerequisite to an action by Reed.The demurrer to this answer was properly sustained.The contract contains a provision that any controversy or dispute arising under the contract "shall be settled by the architect, whose decision shall be final and binding upon the parties hereto, except that in the case of a dispute as to the value of extra work or of work omitted, or of the amount of damages referred to in article five, either party may appeal from the architect's decision to arbitration in the following manner:" Either party desiring to arbitrate shall serve a notice on the other party, stating his grievance and his intention of appealing to a party therein named, or a substitute to be selected as specified, and such arbitrator shall have all the powers conferred on arbitrators by the statutes of Illinois, and his ruling shall be final and conclusive as to all questions submitted to him for arbitration.

The answer alleged that the expense incurred by appellants on account of the failure of Reed to comply with the contract had been audited by the architect and was in a sum named, that Reed had been notified thereof, and that he had not appealed from the architect's decision and had not resorted to arbitration as the contract provided.

The parties might properly agree that any controversy or dispute arising under the contract should be submitted for determination to the architect, and it must be shown that such a condition precedent was performed before bringing suit, or a valid reason shown for its nonperformance.But that provision of the contract which assumes to make the decision of the architect, or of an arbitrator, final, is void.It is not competent for parties to a contract, in advance of any dispute, to oust the jurisdiction of the courts by providing that the decision of a party therein named upon a dispute which might thereafter arise shall be final and conclusive.Supreme Council, etc., v. Forsinger(1890), 125 Ind. 52, 9 L. R. A. 501, 21 Am. St. 196, 25 N.E. 129;Louisville, etc., R. Co. v. Donnegan(1887), 111 Ind. 179, 12 N.E. 153;McCoy v. Able(1892), 131 Ind. 417, 30 N.E. 528;Supreme Council, etc., v. Garrigus(1885), 104 Ind. 133, 54 Am. Rep. 298, 3 N.E. 818;Bauer v. Samson Lodge, etc.(1885), 102 Ind. 262, 1 N.E. 571;Kistler v. Indianapolis, etc., R. Co.(1882), 88 Ind. 460.

The contract does not require that the dissatisfied party shall appeal from the decision of the architect.It provides that either party may appeal, in certain matters, from the decision of the architect to arbitration.

This is a money demand upon contract, where either of the parties may wish to be relieved from the...