Northern State Const. Co. v. Banchero

• Decision Date: 14 November 1963
• Docket Number: No. 36953,36953
• Court: Washington Supreme Court
• Parties: NORTHERN STATE CONSTRUCTION COMPANY, Respondent, v. Edward BANCHERO and Edith Banchero, his wife, Appellants. Edward BANCHERO and Edith Banchero, his wife, Appellants, v. Oliver W. OLSON, Respondent.

Page 245

63 Wn.2d 245

386 P.2d 625

NORTHERN STATE CONSTRUCTION COMPANY, Respondent, v. Edward BANCHERO and Edith Banchero, his wife, Appellants.

Edward BANCHERO and Edith Banchero, his wife, Appellants, v. Oliver W. OLSON, Respondent.

No. 36953.

Supreme Court of Washington, Department 1.

Nov. 14, 1963.

Rehearing Denied Jan. 16, 1964.

Weyer, Sandelin & Sterne, Richie H. Sterne, Seattle, Jonson & Jonson, Bernice Jonson, Seattle, for respondents.

PER CURIAM.

This appeal presents two problems: (1) The sufficiency of an application for a continuance, and (2) the finality of an award in arbitration.

Appellants, Edward and Edith Banchero, employed Oliver W. Olson, an architect, to plan and design a large supermarket building for them. Their agreement with him had a clause providing for arbitration of all disputes under the rules of the American Arbitration Association. The architect prepared plans and specifications, and a formal contract of construction was executed by the Bancheros and the respondent, Northern State Construction Company. This contract too contained the same arbitration clause.

During the construction, the concrete floor slab upon which the structure rested showed cracks and defects, and these were markedly aggravated when the builder moved a heavy crane upon the slab with which to hoist the side walls into position. The contractor demanded arbitration with the owners and the owners in turn made demand for arbitration upon the architect. By order of the superior court upon the appellants' (owners') petition, the arbitration proceedings were consolidated for concurrent hearings under the rules of the American Arbitration Association and the statutes of the state.

During the course of arbitration, an additional issue was submitted to the arbitration panel on the question of future responsibility for maintenance of and repair to the concrete slab. After six days of hearings spaced over two months in which the trial court found that 'all parties were given full opportunity to present proof of their claims,' the panel of arbitrators made their award.

The award fixed responsibility upon the owners and required them to pay the builder $41,462.39 for repairs to and changes in the concrete slab, denied the architect's claim against the owners for portions of his architect's fee, denied the owners' claims against the architect and builder, and fixed responsibility for all future maintenance of and repairs to the concrete floor upon the owners.

The case comes here on appeal from post arbitration proceedings in the superior court. Northern State Construction Company filed a motion asking that the award be confirmed and judgment granted thereon, and the owners moved for a vacation of the arbitration award. To support their motion for vacation, the owners (appellants) called each of the members of the arbitration panel as witnesses. Several other witnesses also testified. At the close of the evidence, the owners moved for a continuance to enable tham to prepare and submit the entire transcript of the evidence (statement of facts) heard by the panel of arbitrators.

Refusal of the continuance to allow time for preparing and filing this statement of facts with the trial court containing all evidence heard by the arbitration panel is assigned as one of the errors by the owners here on appeal. Appellants also assign error to the entry of judgment confirming the award.

On the question of the continuance sought by appellants at the close of the evidence, we point out that though addressed to the discretion of the court it nevertheless was controlled by RCW 4.44.040 which, so far as pertinent, reads:

'A motion to continue a trial on the ground of the absence of evidence, shall only be made upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it * * *.'

A motion for continuance is addressed to the sound discretion of the court, and the ruling in exercise of that discretion will be disturbed only for a manifest abuse of that discretion. MacKay v. MacKay, 55 Wash.2d 344, 347 P.2d 1062.

What, then, are items upon which the court's discretion is brought to bear under the statute on continuances, RCW 4.44.040? Where, as here, the continuance is sought by reason of the absence of evidence, the applicants for a continuance were obliged to furnish an affidavit showing the materiality of the evidence to be obtained (Lincoln v. Kuskokwim Fishing & Transp. Co., 118 Wash. 137, 203 P. 62; 12 Am.Jur., Continuances §§ 4, 5), and that due diligence had been exerted to obtain it. Thornthwaite v. Greater Seattle Realty & Imp. Co., 160 Wash. 651, 295 P. 933; Chamberlin v. Chamberlin, 44 Wash.2d 689, 270 P.2d 464, 68 A.L.R.2d 457. And, to preserve the exception to the court's denial of a continuance, an offer of proof showing what the absent evidence would prove is required. State v. Griffith, 52 Wash.2d 721, 328 P.2d 897. Appellants were in a good position to comply with all of these requirements as they were, or should have been, familiar with the evidence presented to the board of arbitrators. Since the trial court had no affidavit or offer of proof before it upon which to grant the continuance, we conclude that there was no manifest abuse of discretion in denying appellants' application for a continuance.

Appellants assign error to the court's confirmation of the award, and in the refusal to vacate it. We agree with appellants that arbitration is...