Johnsen v. Wineman

Fisk, Ch. J. Action to foreclose a mechanic’s lien. The complaint is in the usual form, claiming a balance due on the contract of $354.Y3 and $238.3Y for alleged extras furnished at defendant’s request, and praying for a foreclosure of the lien. The answer, among other things, alleges damages for delay in completing the contract at the rate of $5 per day from November 15, 1912, to April 1, 1913, or a total of $6Y5, such damages having been stipulated for in the contract. It further alleges that pursuant to agreement all matters of difference between the — 119 — parties were submitted to arbitration, and an award was made finding a balance due plaintiff of only $1.14, wbicb has been paid. The answer also contains a counterclaim for damages in the said sum of $675 for the delay in completing the contract as aforesaid, to which counterclaim plaintiff filed a reply denying the same. At the conclusion of the trial the district court, among other things, found the following facts: That on or about April 1, 1918, plaintiff and defendant being in controversy regarding the satisfactory condition of the work and completion of said contract, certain amounts claimed for extra work done upon said building by plaintiff, damages occasioned defendant by plaintiff’s failure to complete the work in a satisfactory manner, and within the time required by the contract, and the amount claimed to be due plaintiff by defendant, and other differences and disputes arising between them, entered an agreement to submit the entire controversy and all differences between them to three arbitrators, — one to be selected by the plaintiff, one by defendant, and the third by the two first chosen, who should act upon all matters of difference between plaintiff and defendant arising out of said AVork, and strike a balance between them, and in pursuance of said agreement to submit to arbitration three arbitrators were chosen in the manner aforesaid, who fully and fairly considered all matters of difference and dispute between plaintiff and defendant, having listened to claims and complaints of each party, and having carefully inspected the work and all matters involved or growing out of said Avork and contract, and having completed their work, ■and on March 29, 1913, being in readiness to make an award which was then in writing but not disclosed to the parties, the plaintiff and defendant in their presence again agreed in writing to which their names were respectively subscribed by them (on the bottom of the same paper ■on which such award Avas written) to abide by and accept Avhatever award should be made by said arbitrators, both plaintiff and defendant agreeing and understanding that said award then in writing, to which they attached their agreement, should determine the entire matter of •controversy betAveen them, and said arbitrators did thereupon and on March 29, 1913, malee an award, and notified plaintiff and defendant thereof, and published said award, by the terms of which it Avas found — 120 — that there was a balance due to the plaintiff from the defendant of the sum of $1.14, and the court finds that the amount so found to be due plaintiff by the arbitrators has' been paid to plaintiff by defendant. .That it was agreed by the parties that said arbitrators should decide and determine all questions and differences between them, and not the matter of extra work alone. VII. That the plaintiff performed extra work, for which he is entitled to-reasonable compensation outside of the regular contract price; the nature and amount of said extra work and its reasonable value as found by the court is as follows, and, together with the contract price, shows the total credits due to the plaintiff in the account as stated by the court: Contract price ................................... $4,029.0(> Boxing sewer pipe................................ 3.64 Frame and door — switch—electric lights.............. 3.60 Treads and raisers, front stairs...................... 30.50 One screen door.................................. 2.50- Angle iron for windows............................ 20.80- Hanging window, toilet room........................ 2.00 Moving skylight, allowed at........................ 10.Off Varnishing stairs ................................. 12.00 Total credits to Jobeasen..........................'. $4,114.04 That the foregoing items of extra work include all additional or extra work and compensation, to which the plaintiff is entitled to a credit upon the contract; that the plaintiff claims to be entitled to other items of extra work, and the same are made a part of the statement of lien filed and claimed by him, but the court finds that none of said other items are proper credits to be allowed to the plaintiff. — 121 — IX. The court finds as credits due the defendant, including the amount of payments on the contract for all of the foregoing, the following: Payments made to date ........................... $3,134.45 Damage to floor .................................. 100.00 Rental lost ...................................... 150.00 Ceiling.......................................... 15.00 Prism light over area not used...................... 82.00 Total credits to Wineman.......................... $4,081.45 And the court finds that, in addition to the said total sum of credits above, defendant is entitled to a balance for deficiency as above stated in iron stairway, bulletin board, and window areas which exceeds the balance of $2.61 in plaintiff’s favor. X. That because-of the submission to arbitration and the agreement to' abide thereby, the award of the arbitrators and the acceptance and performance thereof by defendant, defendant is not indebted in any sum whatsoever to the plaintiff. The court further finds that on the merits, and having examined the items of difference and claims of the respective parties, and stated an account between them, that the defendant is not indebted to the plaintiff in any sum whatsoever. Pursuant to these findings the court made conclusions of law favorable to defendant and entered judgment accordingly. From such judgment plaintiff has appealed, specifying that he desires a trial de novo of the entire case in this court. We are convinced, both on the merits and because of the award of the arbitrators, that the judgment is right and must be affirmed. We choose to place our decision, however, upon the latter ground only, and will proceed to give as briefly as possible our reasons for adjudging that — 122 — the award returned by the arbitrators constitutes a barrier to plaintiff’s recovery. We take it to be well settled that the award, if valid, supersedes plaintiff’s recovery on the contract or for extras. Wiberly v. Matthews, 91 N. Y. 648; New York Lumber & Wood Working Co. v. Schnieder, 119 N. Y. 475, 24 N. E. 4. Is the award valid and enforceable? The answer depends upon whether in this state there may be a common-law arbitration, or, in other words, whether the statutory provisions are exclusive, it being conceded that the proceedings failed to conform with the statutory prerequisites. The question is one of first impression in this jurisdiction, but it has •often arisen and been decided in the courts of sister states. The statutory provisions relative to arbitration are embraced in chapter 40, Code •of Civil Procedure, being §§ 8327-8347 inclusive, Compiled Laws. It is important to note the provisions of § 8345, which reads as follows: “Nothing in this chapter shall be construed to impair or affect any action upon an award or upon any bond or other engagement to abide by an award.” It seems to be almost the unanimous voice of the authorities that the statutory provisions are not exclusive, but merely cumulative, to those at common law, and that an award will be upheld if it is sufficient at •common law. We shall not attempt a citation of the many authorities. They may be found collected in 5 O. J. page 19, note 20. The author •of the above article on Arbitration and Award, in this great treatise, .says: “Usually the statutory provisions regulating the subject of arbitration in the various states refer to the remedy for the enforcement of the award, and, unless by express terms or necessary implication they abrogate the common law on the subject, parties are still at liberty to enter into a submission as at common law.” Section 8345, Compiled Laws, supra, evinces a legislative intent in harmony with the general rule as announced by the authorities. We entertain no doubt that the statutory and common-law proceedings relating to arbitration and award are merely cumulative in this state, and we accordingly so decide. In .addition to the above authorities, see: 2 R. C. L. page 353, and cases cited; 3 Cyc. 586; Lilley v. Tuttle, 52 Colo. 121, 117 Pac. 896, Ann. Cas. 1913D, 196. We have considered the general Code provisions in § 7321, Compiled Laws, cited and relied on by appellant’s counsel in support of his con — 123 — tention, but we do not deem them controlling. Of course, wherever the common law necessarily conflicts with our Code, the latter must govern, but, as we view it, there is no necessary conflict between the Code and the common-law proceeding’s with reference to arbitration. It is well settled that courts favor the settlement of disputes by arbitration. Hackney v. Adam, 20 N. D. 130, 121 N. W. 519; Caldwell v. Brooks Elevator Co. 10 N. D. 515, 88 N. W. 100. ■ But it is next asserted by appellant that the award cannot stand because it is broader than the subsequent agreement to abide thereby. 'Such contention must be overruled. The trial court found that the parties agreed to submit to the arbitrators all matters in dispute between them, and that in fact all such matters were considered and determined by them. Indeed, the testimony is undisputed that such was the agreement. Even plaintiff testifies that they submitted everything to the arbitrators for them to strike a balance. He contends, however, that the written agreement to abide by the award upon its face shows that they thought that it merely covered the extras. Such agreement was signed by both parties before the award was published or its contents made known to either party, and it is as follows: “We hereby agree to accept and abide by the above report rendered by the arbitrator^ in full settlement of contract extras and payments of claims arising from the same.” This contention is likewise devoid of merit, and is evidently an afterthought. If a comma was inserted, as it should have been, after the word “contract,” the real intent of the parties would perhaps appear more clearly. It is manifest that both parties intended that the award should settle all differences. Appellant’s construction of the language leads to an absurdity. He would have us read the word “contract” as there used as though it were an adjective qualifying the noun “extras,” but this construction is farfetched and unwarranted. The contract for the building did not stipulate for “contract extras’’ to be furnished, but it merely anticipated a contingency whereby extras might be furnished. Nor do we deem appellant’s contention sound, to the effect that the arbitrators arrived at their award by allowing respondent credit under the forfeiture clause of the contract stipulating damages at the rate of $5 per day for the delay in completing the work. The testimony of the witness, Halliday, one of the arbitrators, negatives such fact. He — 124 — testified that they refused to abide by the forfeiture clause, and the amount of the award lends support to his testimony. In making the above statements we do not wish to be understood as holding that such so-called “forfeiture clause” is invalid. Whether it should, in a proper case, be enforced as a reasonable stipulation fixing the measure of damages for delay, we are not here required to decide, and we therefore-withhold any expression of views thereon. The contention that the award has not been paid is also without merit, the proof showing that respondent paid out for plaintiff, after the award was published, the fees of all the arbitrators, and was obliged to and did pay and satisfy certain other claims which plaintiff should have paid. The judgment is correct, and is accordingly affirmed, with costs.