School Dist. No. 5 OF SNOHOMISH COUNTY v. Sage

• Decision Date: 03 January 1896
• Citation: 13 Wash. 352,43 P. 341
• Court: Washington Supreme Court
• Parties: SCHOOL DIST. NO. 5 OF SNOHOMISH COUNTY v. SAGE ET AL.

43 P. 341

13 Wash. 352

SCHOOL DIST. NO. 5 OF SNOHOMISH COUNTY v. SAGE ET AL.

Supreme Court of Washington

January 3, 1896

Appeal from superior court, Snohomish county; John C. Denney, Judge.

In the matter of Frank Sage and others against school district No. 5 of Snohomish county. Exceptions to the arbitrator's award were overruled, and the school district appeals. Affirmed.

Geo. J Sherry and A. D. Austin, for appellant.

A. K Delaney, for respondents.

ANDERS J.

The respondents entered into a written contract with appellant to erect for it a schoolhouse for the sum of $18,179, according to plans and specifications prepared by its architect, F. A. Sexton, and signed by the parties, and according to the terms of said contract. Prior to the making of this contract, appellant had purchased the Smead heating and ventilating apparatus, for $3,000, to be used in the schoolhouse proposed to be erected, under a written agreement by which the Smead Company were to furnish plans and specifications, and to superintend the putting of the apparatus into the building. Soon after the signing of the contract, the respondents commenced the construction of the schoolhouse, which they completed on or about October 23 1893, to the satisfaction of appellant's said architect who delivered to them a certificate of completion, and also a certificate showing the balance due respondents, including the value of extra labor performed and materials furnished by them. Payments were made by appellant to respondents, from time to time, as the work progressed, the last one having been made on October 15, 1893. Further payment was refused, for the alleged reason, among others, that respondents had not complied with the terms of their contract. Appellant also claimed that, under the contract, respondents were obliged to furnish everything requisite for the building, including the Smead system of heating, and that its cost should be deducted from the contract price of the building. On the contrary, the respondents claimed that they had complied with their contract, and that their agreement did not require them to furnish or pay for the heating and ventilating apparatus purchased by appellant. On its completion, appellant took possession of the building, and occupied it as a schoolhouse. Appellant insisted on deducting the cost of the Smead system from the contract price, and that the final certificates of the architect were not binding upon it, on account of his bad faith with the appellant and collusion with respondents, and of his unfaithfulness to his trust in the preparation of details, and in accepting inferior work and materials, and deviating from plans and specifications, and assuming authority not given by the contract, and that respondents were entitled to no further payment until they had fully and completely performed their contract. In order to settle their differences and disputes, the respondents and appellant, by its board of directors, entered into a written agreement, submitting to arbitration the following questions: (1) As to the mutual differences between said parties, and to determine the amount, if any, due the parties of the first part (respondents) under and by virtue of the aforementioned contract, without any consideration of the heating and ventilating apparatus known as the "Smead System"; (2) as to whether or not the expense of putting said system into the building should be borne by the parties of the first part, and thereupon determine the gross amount, if any, due the parties of the first part under said contract, and to make the proper award under this agreement, as provided by the laws of this state. Under this agreement, the respondents chose L. K. Church, and the appellant chose J. S. White, as their respective arbitrators, and the two chose R. McFarland as the third. After being duly sworn, said arbitrators proceeded to hear, try, and determine the differences submitted to them by said agreement; and, after hearing and considering the evidence produced by the respective parties, a majority of them, on May 16, 1894, made their award, finding that the furnishing of said heating and ventilating system and apparatus was not within the terms of respondents' contract with the school district, and that there was due from said school district to respondents Chapman and Sage the sum of $5,582.89, together with the costs of arbitration, including the fees of respondents' witnesses. This award, together with the written agreement of submission, was filed with the clerk of the superior court of Snohomish county, and a copy thereof served on the school district, as provided by law. Exceptions to the award were served and filed by the appellant, all of which were overruled by the court, and judgment was rendered in favor of the respondents for the amount stated in the award. The school district brings the cause here for review.

The argument of the learned counsel for appellant, as indicated by their brief, seems to proceed upon the theory that this court will try and determine the matters in controversy between these parties upon the evidence which was submitted to the arbitrators, and which has been transmitted to this court as part of the record herein. But such is not the theory of the law. The only power conferred by law upon the court below respecting the questions presented by the exceptions was that which authorized it to refer the cause back to the arbitrators for amendment of their award, in case it appeared that they had committed error in fact or in law, or, if no such error appeared, to confirm the award as made. With the merits of the controversy the court had nothing whatever to do. It was not possessed of the case for the purpose of proceeding to its determination. Code Proc. § 429. Neither is this court so possessed of it. The sole question for our determination is whether the superior court erred in sustaining the award. The court filed no findings of fact or conclusions of law, but simply overruled the objections to the award, the ground of which objections was the statutory one that the arbitrators committed error in fact and in law. Id. § 428.

Having shown the extent and limit of the power of the court in the premises under the statute, the question arises as to how it was to determine whether the errors complained of had been committed. Was it by an examination of all the evidence taken before the arbitrators, and upon which they based their award, or was the question to be determined from the award itself? The legislature has provided that arbitrators shall have power to decide both the law and the fact that may be involved in the cause submitted to them (Code Proc. § 430) and that is the common-law rule, upon a general submission, unless the arbitrators are restricted by the agreement to submit (Morse, Arb. p. 296). The legislature has also provided, as we have seen, that awards may be set aside for error in fact or law; but, inasmuch as there is no provision in the statute requiring arbitrators to file or preserve the...