Kann v. Bennett ( 1912 )

Opinion by

Mr. Justice Moschzisker,

When the plaintiff offered the architect’s certificate upon which he was suing, the defendant objected, inter alia, upon the ground that it was not a complete award; but it was admitted in evidence. This is complained of in the third assignment of error. The objection should have been sustained, for the award itself shows that the architect did not consider or pass upon at least three items within his cognizance, namely, the claims of the lumber company and the plumbing company, and the Jacobs claim for brick work. In Hamilton v. Hart, 125 Pa. 142, we said, per Mr. Justice Mitchell, “It is well settled that an award which is not final or is not complete as to all the matters included in the submission, is void altogether, and is not admissible even as an account stated;” citing authorities to the effect that “the motive from which the arbitrator resolved to abstain from determining the matters omitted seems to be immaterial,” and that, though the arbitrator might declare he abstained from taking a certain item into consideration “for the reason that a suit in chancery was pending in regard' to that account,” it would not save the award. We further stated that “an award which leaves something still to be done by the arbitrator himself before the existing cause is determined, cannot be said to be final. . . .” The rule there laid down controls this case. If such a partial award as the one here present could be sued upon, we might have the same matter in court over and over again as the omitted items were severally disposed of. The plaintiff should have waited until the mechanic’s lien cases had been finally adjudicated, or, had he seen fit, he might have waived all his rights against the defendant as to the three items omitted by the architect, or, with the acquiescence of the defendant, he might have waived the submission of those items; but he did none of these things. We must take the case as we find it, and it is clear that the award was not final; hence it was not ripe to be sued upon and should have been excluded.

This litigation was here before (223 Pa. 36), and while there is nothing to show that the parties at that time mutually agreed to disregard the award, it appears from the report that the then counsel for the plaintiff conducted his case along different lines from those pursued at the last trial. Speaking by Mr. Justice Potter we said: “Under the theory upon which the cause was tried, the important question which lay at the threshold of the inquiry was whether the plaintiff had failed to furnish sufficient workmen and proper material for the erection of the house, and whether he had prosecuted the work with due diligence.” In the trial now under review the plaintiff proceeded upon the theory that the architect had passed upon those points and that his decision was final and conclusive. The contract provides: “Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or materials of the proper quality, or fail in any respect to prosecute the work with promptness or diligence or fail in the performance of any of the agreements on his part herein contained, such refusal, neglect or failure being certified by the architect, .... and, if the architect should certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall be at liberty to terminate the employment of the contractor for said work and to enter upon the premises .... and .... finish the work. . . . The expense incurred by the owner and any damage incurred through such default, shall be audited and certified by the architect whose certificate thereof shall be conclusive upon the parties and binding without exception or appeal.” Thus the architect was made the arbiter as to the neglect or refusal to proceed with the work, and also to decide whether or not such neglect was sufficient ground for the termination of the contractor’s employment; he did so certify, and the plaintiff, by the unequivocal act of going upon the premises and taking possession, put an end to the employment. The contract required no special form of notice to terminate the employment, and the fact that the plaintiff had previously given notice to the defendant that “I will deem it my privilege to provide such labor and material as may be nécessary, under the terms and provisions of the contract,” instead of saying that he intended to put an end to the employment, fell far short of showing an election not to terminate.

If the contract be regarded as a whole it is apparent that the parties selected the architect as the one to whose final decision they were willing to submit both the preliminary question of the contractor’s default and the ultimate one of the determination of the account between them; and under our cases that is a bar to a common-law action (Hostetter v. Pittsburg, 107 Pa. 419); the fact that the architect was referred to as the agent of the owner; or that the defendant did not see fit to present his evidence, would not make any difference in this respect: Kennedy v. Poor, 151 Pa. 472; English v. Wilmerding Boro. School Dist., 165 Pa. 21. So long as the architect acted independently without fraudulent collusion with the owner, his decision was final in all matters within the scope of his authority under the contract. ‘ ‘ Although an award, like a judgment, may be impeached for fraud, yet the fraud must be actual and not constructive. Partiality and some improper conduct on the part of the arbitrator in making the award would not impeach it, unless the party benefited thereby be implicated in the misconduct. General allegations of fraud without stating the facts which constitute them are not sufficient:” Hostetter v. Pittsburg, supra; Com. v. Pittsburg, 206 Pa. 379. The defendant’s attempt to attack the integrity of the award did not amount to more than a general allegation of fraud. Many of his offers of evidence contained no facts at all, and those stated in the other offers, if proved, were not sufficient to justify an inference of fraud of the character required to be shown in order to avoid such an award. An offer to show fraud should indicate the facts upon which the charge is predicated, for fraud is largely a conclusion of law from facts stated, and it must be made clear to the mind of the court that, the inferences being drawn in favor of the party making the offer, the facts, if believed, would be sufficient to sustain such a finding: We cannot say that the court below committed error in refusing so to view the offers of the defendant.

As to one item awarded the plaintiff we feel that the architect exceeded the scope of the submission. The twenty-third and twenty-fourth assignments of error relate to the item- of 11,070.14, the rental value of the house, allowed as damages for 217 days’ delay; these assignments should have been sustained. The plaintiff might have held the defendant to the completion of the work and claimed the damages for delay allowed in the award. But as we construe the contract it did not contemplate the payment of such damages in the event of the dispossession of the contractor and the taking over of the property before the date allowed for completion: Crawford et al. v. Becker, 13 Hun, 375. Although we recognize the well-established rule that the award of an architect, in matters by contract expressly made subject to his decision, will not be disturbed, yet we have laid it down that “the rule should not at all apply beyond the express covenants of the contracting parties:” Hunn v. Pennsylvania Institution for the Instruction of the Blind, 221 Pa. 403, and that “such an agreement is not to be extended by implication beyond its plain words:” Somerset Borough v. Ott, 207 Pa. 539; Chandley Bros. & Co. v. Cambridge Springs Boro., 200 Pa. 230; Murphy v. Orne, 185 Pa. 250.

We have gone into this case at some length in the hope of defining the rights of the parties so that the controversy may be brought to an end. It is not necessary to discuss the other assignments of error further than to say that the-item of $1,013.30, allowed W. H. Sims for supervising the completion of the building for the owner, was within the cognizance of the architect and his decision thereon is not subject to review. As before pointed out, the award sued upon was not final; but the agreement is in force, and should the architect make a valid award, the plaintiff’s remedy is still open to him: Hamilton v. Hart, supra.

The third, twenty-third, twenty-fourth and the last two specifications are sustained. The judgment is reversed, without prejudice.