Barclay v. Deckerhoof

Per Curiam, The agreement, referring to the'architect “ All disputes, however arising, and all questions of doubt as to the tenor and intention of the drawings and specifications, or of the contract,” is certainly broad enough to embrace the question whether the contractor and his sureties were bound to refund to the plaintiff the amount paid by him on the mechanic’s lien, especially in view of the clauses in the building contract by which the contractor agreed to deliver the building free from all claims, and to furnish, provide and deliver, at his own cost, all necessary materials. The construction given to the agreement by the referee appears to work substantial justice, but whether it does or not is immaterial, inasmuch as the parties agreed that his-decision should be final. The fact that the architect, prior to his acting as referee, was called as a witness on the trial in the common pleas, did not disqualify him to act as such referee. It is not alleged that as referee he acted otherwise than fairly and properly. The interlocutory.judgment against Deekerhoof ceased to be operative upon the reversal of that case by this court, and cannot have any effect here. By their points submitted on the trial of that case, the defendants challenged the jurisdiction of the common pleas, and plaintiff thereupon elected to suffer a nonsuit and paid the accrued costs. They cannot now object that the tribunal of their original agreement and subsequent election was resorted to. The jurisdiction of the referee does not appear .to have been ousted by anything that occurred subsequently to his appointment. While the subcontractor was doubtless bound to observe the [387] terms of his own contract with his principal, he was not bound by the agreement to refer, to which he was not a party. His scire facias on the mechanic’s lien, which the plaintiff resisted as far as he could, and the defense which the latter notified the sureties to interpose, cannot therefore affect the agreement to refer. There is no sufficient evidence that the plaintiff made a voluntary payment of the mechanic’s lien or accepted the building and waived performance of the building contract. On the contrary, the evidence shows that unusual care was exercised to negative such conclusions. For these and other reasons, given by the learned trial judge, the defendants’ point on that subject might well have been refused. It is unnecessary to consider the specifications of error in detail. We find nothing in either of them that would justify a reversal of the judgment entered on the verdict in favor of the plaintiff; nor do we think that further discussion of any of the questions involved is necessary. Judgment affirmed.