Phaneuf v. Corey

• Citation: 190 Mass. 237,76 N.E. 718
• Parties: PHANEUF et al. v. COREY et al.
• Decision Date: 05 January 1906
• Court: United States State Supreme Judicial Court of Massachusetts

190 Mass. 237

76 N.E. 718

PHANEUF et al. v. COREY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 5, 1906

COUNSEL

Charles W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for plaintiffs.

R. D Weston-Smith and Howard W. Brown, for defendants.

OPINION

HAMMOND J.

Although the record is voluminous, only two questions are raised here.

The first respects the validity of the award of Sayward, the referee named in the agreement of December 15, 1898. Under the original contract the time set for the stores and basement was 'not later than the 1st day of December 1898,' and that set for the completion of the whole building was 'not later than the 1st day of of January 1899.' Under the agreement of December 15, 1898, these times were changed, respectively, to the 1st day of March, and the 1st day of April, 1899. One of the questions referred to Sayward is stated in the agreement as follows: 'The question of what, if any, amount under and by virtue of the terms of said contract should justly and fairly be deducted from the contract price by reason of the said delay, which it is now agreed and admitted is inevitable, and such amount shall be deducted from the next installment hereafter paid under said contract. And the said Sayward shall consider whether the contractors have suffered because of any fault or delay on the part of the owners in furnishing plans, or in making payments, and if so, shall make proper allowances therefor. But such allowance made to the owners shall not include any such damages to the owners as are referred to in Art. VIII of the original contract, for which the contractors shall continue to be liable.' The referee heard the parties, and in an elaborate report, in which he goes very carefully over the whole matter, awards no damages to the owners for this delay. It is strongly argued by the owners, these present defendants, that the award is invalid upon the ground that it was outside the scope of the submission. It is familiar law that an award made within the scope of the submission is not made invalid by a mistake of the arbitrator as to law or fact. An inspection of the report shows that the arbitrator was guided, as he should have been, by the terms of the contract as he understood them. In the first paragraph of his report he states that the question for him was to determine what amount, if any, under and by virtue of the terms of the contract, and this agreement 'should justly and fairly be deducted from the contract price by reason of the said delay.' At the threshold of the hearing he ruled clearly that 'the terms of the contract could not be waived, for the agreement rested distinctly upon them, and further that a proper conclusion could only be arrived at by using the terms and conditions of the contract as a guide; for they alone indicate what was in view when the contract was made.' Further inspection shows that with the contract as his guide he reasoned to his conclusions. He kept within the scope of his submission. Even if he was mistaken in his interpretation of the legal effect of the contract, the award does not thereby become invalid. The parties received what they agreed to take, the honest judgment of the arbitrator as to a matter referred to him.

The second question arises upon the contention of the defendants that for delay in the completion of the building, allowance should be made to them at the rate of $10 per day from May 20, 1899, the time to which the auditor computed the allowance, until October 6, 1899, the day upon which the defendants terminated the employment of the plaintiffs and took possession of the building. The sixth article of the contract, as amended by the agreement of December 15, 1898 required that the stores and basements should first be 'completed and delivered, ready for occupancy by tenants,' on March 1, 1899, and the whole of the work 'wholly completed' on April 1, 1899; and it is further provided in this same article as follows: 'In case of the failure of the contractor to deliver said stores and basements ready for said occupancy, or to complete the building as aforesaid * * * [at these respective times] * * * the contractor shall forfeit to said...