Puget Sound Bridge & Dredging Co. v. Frye

• Decision Date: 25 January 1927
• Docket Number: 20170.
• Citation: 252 P. 546,142 Wash. 166
• Court: Washington Supreme Court
• Parties: PUGET SOUND BRIDGE & DREDGING CO. v. FRYE.

252 P. 546

142 Wash. 166

PUGET SOUND BRIDGE & DREDGING CO. v. FRYE.

No. 20170.

Supreme Court of Washington

January 25, 1927

Department 1.

Appeal from Superior Court, King County.

Arbitration proceeding between the Puget Sound Bridge & Dredging Company and Charles H. Frye. From the judgment entered upon the award, Charles H. Frye appeals. Affirmed.

Donworth Todd & Holman, of Seattle, for appellant.

Preston Thorgrimson & Turner, of Seattle, for respondent.

FULLERTON J.

This is an appeal from a judgment entered upon an award made in an arbitration proceeding.

On August 3, 1923, the appellant, Charles S. Frye, being then the owner of certain tideland lots and blocks situated in the city of Seattle, entered into a contract with the respondent Puget Sound Bridge & Dredging Company, by the terms of which the respondent agreed to fill the lots and blocks, together with the adjoining streets, with earth by hydraulic sluicing to stipulated levels. For the service, the appellant agreed to pay the respondent '23 1/2 cents per cubic yard for all earth placed in the fill, * * *' and to make the payments from time to time as the work progressed, according to estimates made by the engineer in charge. The respondent immediately entered upon the performance of the work, and in the early part of the year 1925 claimed to have completed it, and claimed that there was a balance due it upon the contract. Changes had been made in the original plans and specifications during the progress of the work by the mutual agreement of the parties, and these, with other matters, gave rise to differences between the parties as to the questions whether the work had been performed according to the terms of the contract with the subsequent modifications, and whether there was any balance owing to the respondent. To settle these differences the parties agreed to submit them to the arbitration of one R. H. Thomson. They thereupon entered into the following agreement:

'It is agreed by Charles H. Frye, party of the first part, and Puget Sound Bridge & Dredging Company, a Nevada corporation, party of the second part, as follows:

'(1) The parties hereto entered into a certain written agreement, a copy of which is hereto annexed, whereby first party employed second part to fill by hydraulic sluicing certain portions of the Seattle tidelands described in said contract. Second party entered upon the performance of said work and claims that it has completed said contract (as amended by certain subsequent agreements) and is entitled to a certain balance of compensation therefor. First party disputes said claims and asserts certain counterclaims against second party arising out of alleged delays and improper and negligent performance of said work by second party.

'(2) The parties hereto hereby agree to submit all of their disputes arising out of the making and performance of the aforesaid contract, and any subsequent agreements relating to said work, to R. H. Thomson, as arbitrator. It is agreed that, within 15 days after the signing of this agreement, second party shall serve on first party and file with said R. H. Thomson a written statement of its claim as to the amount of its fill and the compensation it is entitled to for said fill as to each of the descriptions of property set out in the contract annexed hereto, or any modification thereof, together with the total balance it claims now to be due from said Charles H. Frye. Within 15 days thereafter, first party shall serve on second party and file with said R. H. Thomson his claim as to the particulars in which second party has failed to fulfill the terms of the aforesaid written agreement and any subsequent agreements between the parties relating thereto, together with any claims he may have against second party for damages on account of delay in the performance of said work, failure to perform said work in accordance with the aforesaid agreements, negligence in the performance of said work, or other counterclaims or claims of damage arising out of the making and performance, or failure to perform, said contracts, or arising out of second party's work on adjoining portions of said tidelands.

'(3) After the expiration of the time herein allowed for the filing of statements of the parties, and at a time to be fixed by agreement of the parties, or by said arbitrator in the absence of such agreement, said arbitrator shall proceed to hear such evidence as shall be submitted by the parties hereto and take such steps as he may desire to investigate and determine the respective claims of the parties, and shall render his award in writing in accordance with the statutes of the state of Washington. The parties hereto shall each pay one-half of the charges of said arbitrator and shall be bound by his award, as provided by the laws of the state of Washington.

'Dated at Seattle, Washington, this 7th day of February, 1925. Charles H. Frye. Puget Sound Bridge & Dredging Company, by Roy E. Miller, Vice President. Attest: Raymond J. Hoff, Secretary.' [Seal.]

The arbitrator took the statutory oath as such and thereafter proceeded to hear and determine the matters submitted to him, at which hearing the parties appeared in person and by counsel. At the conclusion of the hearing, the arbitrator made the following findings and conclusions:

'January 18, 1926.

'Findings of Arbitrator.

'In the matter of the cause of Puget Sound Bridge & Dredging Company v. C. H. Frye, being claims for material and labor furnished in making fills upon block 226, block 228, block 242, block 251, block 277, and a tract in block 243, all in Seattle tidelands, said fill having been made in the years 1923 and 1924.

'Having carefully studied the contract under which this work was done, and having heard and noted the testimony taken with reference to each claim upon the part of the plaintiff and each counterclaim on the part of the defendant, and having heard the arguments and carefully read the transcript of the stenographic notes of the arguments made by the attorneys on both sides, together with the briefs of attorneys covering certain points, and having given due consideration to all the facts bearing upon the case, the arbitrator finds:

'That upon its claim the plaintiff is entitled to recover for delivery of earth under the contract as shown between levels of the original ground and surface at the time of joint measurement by Fischer and Stuver, and for subsidence in the subsoil occasioned by the weight of the fill----

A total of two hundred twenty-nine thou- sand three hundred eighty (229,380) cubic yards, which, at the contract price of twenty three and one-half cents (23 1/2c) per cubic yard, amounts to fifty-three thousand, nine hundred four dollars and
thirty cents ...............................	$53,904 30
Also for undisputed incidentals in the sum
of two thousand eighty-four dollars and
forty-six cents ..............................	2,084 46
----------
Making a total sum of fifty-five thousand
nine hundred eight-eight dollars and
seventy-six cents ..........................	$55,988 76
The arbitrator finds that there has been
paid on the above, the sum of thirty-nine
thousand two hundred seven dollars and
sixty-eight cents ...........................	39,207 68
----------
Leaving as balance due, regardless of
interest to be added and counterclaims to
be deducted, the sum of sixteen thousand
seven hundred eighty-one dollars and
eight cents ................................	$16,781 08

'Having carefully reviewed the counterclaims with reference to the contract and the testimony, the arbitrator disallows counterclaims A, B, F, G, and I, counterclaims D and K having been heretofore waived, but arbitrator allows on counterclaim Exhibit C:

The sum of two hundred thirty-
four dollars and twenty-five cents ....	$234 25
On Exhibit E the sum of one
hundred dollars and eight cents ........	100 08
On Exhibit H the sum of eight
hundred ninety-three dollars and
three cents ............................	893 03
On Exhibit J the sum of five
hundred ninety-four dollars and
sixty cents ............................	594 60
---------
Making a total of one thousand eight
hundred twenty-one dollars and
seventy-one cents	1,821 71
----------
Which, deducted from sixteen thousand
seven hundred eighty-one dollars and
eight cents ($16,781.08) leaves the sum of
fourteen thousand nine hundred fifty-
nine dollars and thirty-seven cents	$14,959 37
Arbitrator allows interest at the rate of 6
per cent. per annum for nine months,
being the sum of six hundred seventy-
three dollars and seventeen cents	673 17
----------
Which, added to the fourteen thousand
nine hundred fifty-nine dollars and
thirty-seven cents above stated, shows a
balance due Puget Sound Bridge & Dredging
Company in the sum of fifteen thousand
six hundred thirty-two dollars and
fifty-four cents	$15,632 54

'Respectfully submitted.

'R. H. Thomson, Arbitrator.'

After making the award, the arbitrator, following the provisions of the statute (Rem. Comp. Stat. § 422) sealed the award and delivered it to the attorneys of the respondent, who, in turn, without breaking the seal, delivered it to the county clerk of the superior court of King county, the clerk of the superior court of the county wherein the arbitration was had. The arbitrator also delivered a copy of the award to the same attorneys, who caused a copy thereof to be served on the attorneys representing the appellant. To the award, the...