State v. Kisselburg
| Citation | 27 Ariz. 336,233 P. 580 |
| Decision Date | 17 February 1925 |
| Docket Number | Civil 2275 |
| Parties | STATE, Appellant, v. M. KISSELBURG and C. T. SCHMIDT, Copartners Doing Business as Such Under the Firm Name and Style of KISSELBURG & SCHMIDT, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.
Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.
Messrs Baker & Whitney and Mr. E. J. Flanigan, for Appellees.
On October 25, 1922, M. Kisselburg and C. T. Schmidt copartners, as Kisselburg & Schmidt, hereinafter called plaintiffs, entered into a contract through the then state engineer, Thomas Maddock, with the state of Arizona, for certain work on the Yuma-Phoenix highway, federal aid project No. 55.
A dispute arose during the course of construction of the road, over the amount due plaintiffs from the state for certain surfacing done under the contract. Plaintiff brought suit against the state of Arizona, referred to hereinafter as defendant, and obtained judgment in the sum of $16,852.76 with interest. From this judgment an appeal was taken by the state.
Defendant makes five assignments of error, which we will consider in such order as seems advisable. The first is, that the evidence failed to show plaintiffs had fully performed their contract, and under the authority of Greenlee County v. Cotey, 17 Ariz. 542, 155 P. 302, they could not recover. The contract called for the payment of ninety per cent of the value of the completed work, in installments as the work progressed, and that is what the suit is for, not for a balance due on a completed contract. The right to sue for installments due exists before the completion of the entire contract. Simms v. Hampson, 2 Ariz. 237, 12 P. 686.
The third is, that under the contract the state engineer had exclusive and final right to determine any dispute between the parties, and as he had determined the issue herein in favor of defendant, it was error for the court to render a judgment which was necessarily in conflict with his holdings. The provision of the contract referred to reads as follows:
"All questions of controversy which may arise between the contractor and the state, under and with reference to this contract, shall be subject to the decision of the state engineer, and his decision shall be final and conclusive upon both parties."
Provisions of this general nature in contracts have been repeatedly construed. While the decisions are not wholly in harmony, we think the better rule is that parties may stipulate the decision of some designated person, even though an agent of one of them, shall be binding as to disputed questions of fact, such as quantity and quality of the work done, etc., but no such stipulation can be made binding parties to accept a decision of law from the umpire, such as the legal meaning of a contract, or the terms thereof. The courts of the land cannot thus lightly be divested of their jurisdiction to pass on questions of law. Mitchell v. Dougherty, 90 F. 639, 33 C.C.A. 205; Gubbins v. Lautenschlager (C.C.), 74 F. 160; National Contracting Co. v. H.R. Water Co., 170 N.Y. 439, 63 N.E. 450; Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N.Y. 250; Blodgett Co. v. Bebe Co., 190 Cal. 665, 26 A.L.R. 1070, 214 P. 38.
It does not appear that there is any dispute as to the quantity or quality of the work, but merely as to the legal construction of the contract, and such being the case the third assignment of error is not well taken.
This brings us to the second assignment, which contains the real matter in dispute between the parties, the fourth and fifth being necessarily governed by our opinion on the first three. Plaintiffs contend the contract provided the unit measure of the surfacing material was loose cubic yardage, f.o.b. cars, while defendant claims it was compacted yardage, in place on the road. In order to determine this question, we must consider certain portions of the specifications prepared by the state, the bid of the plaintiffs, the contract, and if we are still in doubt, the contemporaneous construction, if any, placed on the contract by the parties. We quote from the various documents above referred to, and in evidence, so far as they seem to us to have any bearing on the question at issue.
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