McClendon v. Shutt

• Decision Date: 23 November 1959
• Docket Number: No. 41291,41291
• Citation: 237 Miss. 703,115 So.2d 740
• Parties: J. C. McCLENDON, Jr. v. Robert F. SHUTT et ux.
• Court: Mississippi Supreme Court

Page 740

115 So.2d 740

237 Miss. 703

J. C. McCLENDON, Jr. v. Robert F. SHUTT et ux.

No. 41291.

Supreme Court of Mississippi.

Nov. 23, 1959.

Estes & Alexander, Mize, Thompson & Mize, Gulfport, for appellant.

White & White, Gulfport, for appellees.

McGEHEE, Chief Justice.

The appellant is a building contractor who agreed for a stipulated price to construct a 24-unit motel for the appellees on a tract of land owned by them in Harrison County, Mississippi.

The appellees brought this suit against the appellant J. C. McClendon, Jr., the contractor, and alleged that they owed the said contractor the sum of $6,000.30, but that after deducting their claims for damages in the aggregate sum of $5,758.96 on account of the delay in the construction, they alleged that they owed the contractor only a balance of $241.34, which amount was tendered into the registry of the Chancery Court of Harrison County upon the filing of this suit by the owners against the said contractor.

The contractor filed an answer to the bill of complaint, as amended, and alleged, among other things, that 'The bill of complaint fails to allege the submission of the dispute to a board of arbitration in accordance with Article 40 of the general conditions of the contract' between the parties. The chancellor found that such arbitration agreements may be revoked or cancelled at will by either party prior to actual award. In his opinion on the trial of the case he recognized that New York and California, in particular, had, by statute, abrogated this common-law rule and had provided for the enforcement of arbitration agreements. He cited 3 Am.Jur. 856, Section 31, to the effect that 'So long as agreements to arbitrate, made in advance of the controversy, remain executory, different rules prevail than in the case of executed agreements. It is settled at common law that a general agreement, in or collateral to a contract, to submit to final determination by arbitrators the rights and liabilities of the parties with respect to any and all disputes that may thereafter arise under the contract is voidable at will by either party at any time before a valid award is made, and will not be enforced by the courts, because of the rule that private persons cannot, by a contract to arbitrate oust the jurisdiction of the legally constituted courts.' See also 6 C.J.S. Arbitration and Award Sec. 29, p. 169.

In the case of Jones v. Harris, 59 Miss. 214, this Court said: 'The right of either party to revoke a submission before award made, where the submission is not a rule of court, or regulated by statute changing the common law, is well settled and universally recognized,' citing authorities. Cf. Standard Mill Work & Supply Co. v. Mississippi Steel & Iron Co., 205 Miss. 96, 38 So.2d 448, 452, wherein this Court stated: 'Again, either party to a written agreement for submission to arbitration has the right to revoke the submission before award is made', citing...