Rounds v. Aiken Mfg. Co.

• Decision Date: 27 July 1900
• Citation: 36 S.E. 714,58 S.C. 299
• Parties: ROUNDS et al. v. AIKEN MFG. CO.
• Court: South Carolina Supreme Court

36 S.E. 714

58 S.C. 299

ROUNDS et al. v. AIKEN MFG. CO.

Supreme Court of South Carolina

July 27, 1900

Appeal from common pleas circuit court of Aiken county; W. C. Benet Judge.

Action by Charles L. Rounds and J. C. Hagler, co-partners, against the Aiken Manufacturing Company, to set aside an award of arbitrators. From a judgment in favor of defendant plaintiffs appeal. Affirmed.

W. T Gary and G. W. Croft & Son, for appellants.

Henderson Bros. and Joseph R. Camar, for respondent.

POPE J.

This action was commenced on the 1st day of June, 1898. I do not know that any words of mine would more accurately describe how the action was, in the opinion of the plaintiffs, rendered necessary, with the grounds for that opinion, than by adopting those employed by the circuit judge (Judge Benet) in his well-considered opinion. Hence I will reproduce the text of that decree:

"Decree.

"The defendant, the Aiken Manufacturing Company, a corporation by and under the laws of this state, having organized to do business as manufacturers of cotton goods at Bath, in the county and state aforesaid, determined to erect a brick structure or cotton factory at said place; and, having advertised for competitive bids for the erection of said buildings and appurtenances, the plaintiffs on March 11, 1895, filed with the defendant's agent a bid, in writing, to do the work according to the plans and specifications that had been previously prepared by an architect, and which had been examined by the plaintiffs. Said bid, together with the pencil memorandum known in the case as the "Barrett Memorandum," and which will be herein referred to, shows that the plaintiffs undertook to do the work required on the original mill and appurtenances for the lump sum of $53,198; and said bid, so modified by the Barrett memorandum, passed into a written agreement, which was made and executed by the parties on March 16, 1895, which paper is the contract in the case. It is noteworthy that there is not a thing set forth in the contract going to show at what price the plaintiffs were to furnish lumber or material of any kind, except as set forth in the nineteenth section of said article,--that the brick were to be at $4.25 per M., on an estimate that it took 2,000,000 of brick to complete the work. There is nothing in the contract going to show on what basis the plaintiffs estimated that they should be paid for laying brick, either in Portland or Rosendale cement or lime. It is further agreed that all extra work should be paid for in proportion to the work in the original contract, and section 26 provides that no payment on account by the owners shall be deemed a waiver of the right to object to defective material or imperfect work. The work under the contract progressed, and as it progressed extra additions were agreed to be made to the mill and to the work, all under the same contract, and the builders, or plaintiffs, went on to carry out the same. Payments, were made to them from time to time, and it is unquestioned that much more than the original contract price was paid to them. After the work was completed, dispute arose as to the amounts due to the plaintiffs by the defendant, and in order to settle said disputes without litigation an agreement in writing was entered into by the parties to submit the same to arbitration. The terms of said agreement are important. The preamble recites that whereas, the contract aforesaid provides 'that any dispute or difference concerning the meaning and construction of the plans, drawings, or specifications, as to what is extra work, shall be decided by the architect'; and whereas, in the specifications it is provided that 'in case any dispute arises respecting the true value of the extra work, or of work omitted at the request of the owner, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor, and those to have the power to name an umpire, whose decision shall be binding upon all parties'; and whereas, a controversy is pending 'in relation to the price to be paid by said company to said Rounds & Hagler for certain extra work done and performed by said Rounds & Hagler for said company upon their mill and canal and other structures at Bath, and also for material furnished by said Rounds & Hagler in doing such work, and deductions for work omitted.' Then the matter in dispute is submitted to the arbitrament and award of arbitrators, to determine 'the price to be paid for such extra and additional work and material furnished, or of the amount to be deducted for omissions by them in the erection and building of the Aiken Manufacturing Company's mill and canal and other structures at Bath, South Carolina.' It is agreed, further, that the builders shall nominate one of said arbitrators, and the owners another. Those are called, in the submission, 'arbitrators,' and they are given 'power to nominate an umpire.' He is called an 'umpire' in the submission. It is further provided, 'The award of any two shall be final and binding upon the parties.' And there is no provision in the submission as to when the award is to be made, as to how it is to be published, or what notice, if any, is to be given to the parties that the award is reached. There is a provision to this effect: 'That the schedule of measurements as made by Rounds & Hagler and A. H. McCarrell, and contained in their respective books, shall be produced and delivered to the board of arbitrators, and, as far as said measurements coincide and agree, they shall be accepted as correct; and, whenever said measurements do not agree, then the board of arbitrators shall take such course as they may deem proper to ascertain such measurements as they need.' There is no provision in the submission as to the acceptance by the arbitrators of any price that may have been placed upon material or work by the contractors or by McCarrell. Under this submission the corporation appointed, as their arbitrator, Joseph B. Storey; the plaintiffs appointed, as theirs, Charles B. Allen; and those two appointed, as the umpire, T. O. Brown; and on the 15th day of September, 1896, the three parties took an oath to carry out the terms of the submission. The evidence in the case shows that these three gentlemen are competent men, and stand well in the city of Augusta, where they live; and, in fact, in the argument of the case counsel on both sides paid proper tribute to all of them. The two arbitrators, Storey and Allen, met. McCarrell appeared before them as representing the company, and Mr. Rounds the firm of Rounds & Hagler. It is unquestioned that a rule or regulation was agreed on, which was notified both to McCarrell and Rounds, that the arbitrators would meet every afternoon at the office of the Aiken Manufacturing Company, in Augusta, Georgia, at three o'clock, and sit a reasonable time to consider the matters in question. This place was chosen without any objection on the part of Mr. Rounds, and at the suggestion of Mr. Allen, because he said it was more commodious and suitable than his own private place of business. Both McCarrell and Rounds were present at many meetings. The arbitrators made calculations in the presence of both of them, questioned them, examined other witnesses, and went into all documents presented. Rounds made no objection either to the place of meeting, the mode of procedure, or the fact that McCarrell was present, or to the fact that sometimes he was called upon to do figuring for the arbitrators. These meetings continued through many days. Mr. Rounds testifies that he did not attend a good many of these meetings, for the reason that he had business elsewhere that called him, and he could not attend. Mr. Allen testifies that quite frequently, after the arbitrators had their afternoon sittings, he told Mr. Rounds of what was going on, and of the decisions which were reached by the arbitrators. It is established that the mode of procedure adopted by the arbitrators was this: That Rounds presented a claim or estimate of his account, which had been previously prepared by Mr. Allen for him, and from his statements; that McCarrell presented a paper, on the one side of which was stated his claim or estimate of the company's version of what was due, and on the other side his statement of the Allen estimate. The arbitrators compared the Allen estimate with its revision by McCarrell, and found it correct, and then proceeded to gather all the facts they could on the various estimates, considering them item by item. It seems that none of the witnesses who were examined (and they were very few) were sworn, nor did nay person present ask that they should be sworn. The estimate of McCarrell claimed that the company was due to the builders $2,219.39, but, as the arbitrators proceeded, it is shown that when he made that estimate he was not aware of the facts and figures set forth in the bid of Rounds & Hagler and the Barrett memorandum, or that the ventilators put upon the mill were not Star ventilators, as required by the specifications, or of the size required. It appears that Storey and Allen differed very little, and that, whilst on the item of how many brick Rounds & Hagler bid should be placed on the wheel house and wheel pit they differed, yet there was no contrary decision by them; but Allen preferred that the umpire should be called in to verify his work, as the umpire, Mr. Brown, was very familiar with brick work. He was called in on this matter, and a few other minor matters. What took place then will be considered hereafter. On the 10th of November, 1896, an award was made, signed by both arbitrators and the umpire. All of them swear that they signed the award. It seems that Storey and Allen signed together, and called in

...